Page 1 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JOYCE SCHROEDER, Claimant, vs. File No. 894119 WELLS' MANUFACTURING CORPORATION, A P P E A L Employer, D E C I S I O N and CNA INSURANCE COMPANIES, Insurance Carrier, Defendants. ____________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed August 10, 1990 is affirmed and is adopted as the final agency action in this case with the following additional analysis: There is no statutory authority to order defendants to pay a late payment penalty or fee imposed by claimant's medical providers. That portion of the order contained in the arbitration decision filed August 10, 1990 which ordered defendants to pay a late penalty is reversed. All other aspects of the arbitration decision filed August 10, 1990 are affirmed. Defendants shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of June, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Page 2 Copies To: Mr. Gregory J. Siemann Attorney at Law 801 North Adams Carroll, Iowa 51401 Mr. Claus H. Bunz Attorney at Law 206 Main Street Manning, Iowa 51455 Mr. Michael P. Jacobs Attorney at Law 300 Toy Bank Bldg. Sioux City, Iowa 51101 9999 Filed June 30, 1992 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JOYCE SCHROEDER, Claimant, vs. File No. 894119 WELLS' MANUFACTURING CORPORATION, A P P E A L Employer, D E C I S I O N and CNA INSURANCE COMPANIES, Insurance Carrier, Defendants. ____________________________________________________________ 9999 Summary affirmance of deputy's decision filed August 10, 1990, with short additional analysis. Page 1 before the iowa industrial commissioner ____________________________________________________________ : JOYCE SCHROEDER, : : Claimant, : : vs. : : WELLS' MANUFACTURING : File No. 894119 CORPORATION, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CNA INSURANCE COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Joyce Schroeder, claimant, against Wells' Manufacturing Corporation, employer (hereinafter referred to as Wells'), and CNA Insurance Company, insurance carrier, defendants, for workers' compensation benefits as a result of an alleged injury on October 15, 1987. On May 9, 1990, 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 which was approved and accepted as a part of the record of this case at the time of hearing. Oral testimony and written exhibits were received during the hearing from the parties. The exhibits offered into the evidence are listed in the prehearing report. According to the prehearing report, the parties have stipulated to the following matters: 1. Claimant's rate of weekly compensation in the event of an award of weekly benefits from this proceeding shall be $131.84. 2. The medical bills submitted by claimant at hearing were fair and reasonable and causally connected to the medical condition upon which the claim is based but that the issue of their causal connection to the work injury remained at issue to be decided. issues The parties submitted the following issues for determi nation in this proceeding: Page 2 I. Whether claimant received an injury arising out of and in the course of employment; II. Whether the claim is barred as untimely under Iowa Code section 85.26 or barred for untimely notice under Iowa Code section 85.23; III. The extent of claimant's entitlement to disabil ity benefits; and, IV. The extent of claimant's entitlement to medical benefits. findings of fact Having heard the testimony and considered all the evidence, the deputy industrial commissioner finds as follows: A credibility finding is necessary to this decision as defendants place claimant's credibility at issue during cross-examination. From her demeanor while testifying, claimant is found credible. Claimant worked for Wells' from October 1985 until the plant in Manning, Iowa closed in January 1990 and operations moved to Mexico. Initially, claimant was in assembly where she was required to hand torque parts. In December 1986, claimant was transferred to the job of material handler. In this job she moved parts and materials to and from assembly lines. This job required considerable amount of lifting boxes weighing approximately 54 pounds from conveyors and pushing and pulling hand carts weighing approximately 200 pounds. Also, claimant was required to move pallets with a pallet jack and load and unload ovens with 50 pound racks. Much of this work involved over head use of her arms. Claimant said that between August 1987 and June 1988, her work load greatly increased when a fellow materials handler was assigned to other duties. On December 1, 1989, claimant injured both her right and left arms by developing a condition known as bilateral carpal tunnel syndrome to the extent that she needed surgery. Claimant's job as a material handler at Wells' was a significant precipitating factor to these conditions. The date of December 1, 1989, was used as the injury date as this was the first time claimant was absent from her work for a significant period of time to obtain surgery and relief from her pain. Claimant was to have surgery on the left side immediately following the right arm surgery. Claimant's bilateral carpal tunnel injury developed gradu ally over time and was not the result of any single accident or event. As soon as claimant learned of her condition from an EMG test in March of 1988, claimant immediately reported the injury to her supervisors at Wells'. Claimant had expe rienced problems in 1985 as an assembler but claimant did not at that time think the problems to be serious and no treatment was sought. The above finding of a causal connection between bilat Page 3 eral carpal tunnel syndrome to claimant's work at Wells' was made despite the fact that claimant also worked as a part-time hair dresser in addition to her employment at Wells'. The primary treating orthopedic surgeon, Philip Myer, D.O., opined in his deposition that claimant's lifting at work as a material handler was a significant precipitating factor in causing the carpal tunnel syndrome and the need for his treatment. He further opined that the use of claimant's hands in her hair dressing business did not appear to be a significant causative factor. The finding that the bilateral carpal tunnel syndrome to both the right and left arm occurred at the same time is also based upon the deposition testimony of Dr. Myer which is uncontroverted in the record. Claimant had surgery to the right arm on December 1, 1989. It was also recommended that claimant receive after this surgery, surgery on her left arm. Both the surgery to the right arm and the recommended surgery to the left arm occurred following a period of unsuccessful conservative treatments by Dr. Myer and others. The need for such surg eries were confirmed by EMG testing conducted by David L. Friedgood, D.O., a neurologist, who also diagnosed bilateral carpal tunnel syndrome in March of 1988. Although Dr. Myer recommended surgery to the left arm, no surgery has been performed. Delay in claimant's receipt of surgery on the right arm and the continuing delay in left arm surgery is the result of defendants' denial of liability for any work injury to either arm. Claimant has not as yet reached maximum medical recov ery from either her right or left carpal tunnel syndrome as significant improvement in her condition is expected from further treatment. This finding is based upon the uncontro verted opinions of Dr. Myer. Although he opines that claimant suffers from a 10 percent "disability" to the right arm due to her right carpal tunnel syndrome, Dr. Myer said that this could be reduced from further treatment. Page 4 Until claimant reaches maximum improvement, no finding can be made as to claimant's permanent partial impairment or permanent partial disability to either the right or left arm. In July 1988, claimant suffered an injury to her neck, back and shoulders from her material hand over job. This condition also developed gradually over time as a result of claimant's work at Wells'. These problems are currently diagnosed as thoracic and cervical myalgia. Claimant had similar back problems before her employment at Wells' in 1977. Claimant's neck, back and shoulder conditions are a separate and distinct problem unrelated to claimant's carpal tunnel problems. Claimant first noticed back and shoulder problems in October of 1987. However, the injury date of July 1988, was chosen as the most proper injury date for this cumulative trauma as this was the time of claimant's last injurious exposure to work which led to a specific diagnosis and treatment of the condition by Dr. Myer. Again, all of these above findings with reference to the neck, back and shoulder conditions are based upon the reports and uncontroverted opinions of Dr. Myer. Claimant failed to prove that her neck, back and shoulder injury of July 1988, is a cause of temporary or permanent impairment or that such an injury requires further treatment. Although claimant continues to work as a part-time hair dresser, she has not returned to the job she was doing at the time of injury nor has she returned to any similar work since the plant closing on January 1, 1990. Claimant was recovering from the right hand surgery at the time the plant closed and recovery from that surgery would have been six to eight weeks. However, claimant was scheduled to have imme diate left hand surgery following this recovery. Therefore, even if the plant had not closed, claimant would not have been able to return to work at Wells' until after her left hand surgery. Claimant's work at Wells' irreversibly aggra vated both the right carpal tunnel syndrome and the untreated left carpal tunnel syndrome. For that reason, claimant was not physically able to continue work at Wells' until completion of both surgeries. To date, claimant has never been offered left hand surgery by defendants. conclusions of law I. Claimant has the burden of proving by a prepon derance of the evidence that claimant received an injury which arose out of and in the course of employment. The words "out of" refer to the cause or source of the injury. The words "in the course of" refer to the time and place and circumstances of the injury. See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). 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 v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited Page 5 therein. It is not necessary that claimant prove that her dis ability results from a sudden unexpected traumatic event. It is sufficient to show that the disability developed grad ually and 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 pre vents the employee from continuing to work. In McKeever, the injury date coincides with the time claimant was finally compelled to give up her job. This date was then utilized in determining the rate and timeliness of the claim under Iowa Code section 85.26 and notice under Iowa Code section 85.23. This agency may chose an injury date in cumulative trauma cases different from those alleged in the petition. McCoy v. Donaldson Company, Inc., case no. 752670, Appeal Decision filed April 28, 1989. In the case sub judice, two separate cumulative injuries were found. As claimant was not compelled to per manently leave her work due to either injury prior to the closure of the plant, the injury dates that were chosen were those that were most consistent with the McKeever case. Both of these injury dates were different from the date alleged in the petition. II. Defendants raised the affirmative defense that claimant's claim was not filed within the prescribed period of time allowed under Iowa Code section 85.26. Generally, claims for benefits must be filed within two years of the date of injury or within three years of the date of the last payment of weekly benefits. An injured employee is permit ted to file a workers' compensation claim after the pre scribed periods under the so-called "discovery rule." In Orr v. Lewis Cent. Sch. Dist., 298 N.W.2d 256 (Iowa 1980), the Iowa Supreme Court held that the two year period to file a claim does not start to run until a worker discovers or in the exercise of reasonable diligence should have discovered the nature, seriousness and probable compensable character of the injury. Defendants have also raised the issue of the lack of timely notice of the work injury within 90 days from the date of the occurrence of the injury under Iowa Code section 85.26. Lack of such notice is an affirmative defense. DeLong v. Highway Commission, 229 Iowa 700, 295 N.W. 91 (1940). As discussed above with reference to cumulative trauma under the McKeever case, the date used for cumulative trauma governs the issues of timeliness under both Iowa Code sec tions 85.26 and 85.23. For both injuries found in this case, defendants were given clear notice within the appro priate statutory times given the dates of injury that were found. Also, on the whole record, it is rather clear that both defendants in this case have been aware of claimant's condition and its work relatedness long before any recommen Page 6 dation of surgery was made. Both claimant and defendants learned of the diagnosis of carpal tunnel syndrome at the same time, March 1, 1988. Dr. Myer's diagnosis of shoulder, neck and back problems were contained in reports specifi cally directed to defendants in conjunction with his report ing on claimant's carpal tunnel syndrome problems. Furthermore, there is no indication on the record as to when the last payment of benefits had been made. Therefore, the assertion that the claims were untimely must be and is denied. III. Claimant is entitled to temporary total disabil ity or healing period benefits under Iowa Code sections 85.33(1) and 85.34(1) from the first day of disability until claimant returns to work; until claimant is medically capa ble of returning to substantially similar work to the work she was performing at the time of injury; or, until signifi cant improvement for medical treatment is no longer antici pated, whichever occurs first. It was found that claimant's current right arm disability can be improved with further treatment in the opinion of the treating physician and that claimant is still in need of left arm surgery to treat her left carpal tunnel syndrome. The need for further treatment for the shoulder, neck and back has not been shown. Also, it was found that claimant's bilateral carpal tunnel syn drome problems are worsened from work similar to the work she was performing at Wells' in the opinion of the treating physician. Therefore, claimant is not able to return to substantially similar work that she has done until comple tion of her treatment. Claimant, therefore, is entitled to a running award of temporary total disability or healing period benefits until such time as claimant reaches maximum healing and a final permanent partial impairment rating can be made for an award of scheduled member benefits under Iowa Code section 85.34(2)(s). IV. Pursuant to Iowa Code section 85.27, claimant is entitled to payment of reasonable medical expenses incurred for treatment of a work injury. In the case at bar, claimant is requesting the expenses set forth in exhibits 12 through 18. It was stipulated that these were causally con nected to the condition upon which her claim is based. Only the causal connection of that injury was disputed. As both Page 7 the bilateral carpal tunnel syndrome and the shoulder, neck and back problems are found work related, the expenses will be awarded. order 1. Defendants shall pay to claimant temporary total disability or healing period benefits from December 1, 1989, at the rate of one hundred thirty-one and 84/l00 dollars ($131.84) per week for an indefinite period of time until the criteria for ending such benefits occurs as set forth in Iowa Code sections 85.33(1) or 85.34(1), whichever section is applicable. 2. Defendants shall pay the medical expenses listed in the prehearing report. Claimant shall be reimbursed for any of these expenses paid by him. Otherwise, defendants shall pay the provider directly along with any lawful late payment penalties imposed upon the account by the provider. Also, defendants shall provide further care as recommended by P. L. Myer, D.O. 3. Defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for all 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 cost of this action pur suant to Division of Industrial Services Rule 343-4.33. 6. Defendants shall file activity reports on the pay ment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this ____ day of August, 1990. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Claus H. Bunz Attorney at Law 206 Main St Manning IA 51455 Mr. Gregory J. Siemann Page 8 Attorney at Law 801 North Adams Carroll IA 51401 Mr. Michael P. Jacobs Attorney at law 300 Toy Nat'l Bank Bldg Sioux City IA 51101 1802 Filed August 10, 1990 LARRY P. WALSHIRE before the iowa industrial commissioner ____________________________________________________________ : JOYCE SCHROEDER, : : Claimant, : : vs. : : WELLS' MANUFACTURING : File No. 894119 CORPORATION, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CNA INSURANCE COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1802 Running award of healing period benefits was given as claimant clearly had not reached maximum healing in the uncontroverted opinion of the treating physician. Page 1 before the iowa industrial commissioner ____________________________________________________________ : LINDA SCHNEIDER, : : Claimant, : : vs. : : File No. 894126 WHEATLAND MANOR, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : IOWA HEALTH CARE ASSOCIATION : (CONSTITUTION STATE SERVICE : CO.), : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in arbitration brought by Linda Schneider against her employer, Wheatland Manor, and its insurance carrier, Iowa Health Care Association, based upon an alleged injury on July 23, 1988. She seeks compensation for healing period, permanent partial disability and payment of medical expenses. The disputed issues include whether or not Linda sustained an injury on July 23, 1988 which arose out of and in the course of her employment; whether the alleged injury is a cause of any temporary or permanent disability and, if so, the extent of permanent disability. The dates for which she was off work on account of the condition which is the basis for this claim are established by stipulation. The rate of compensation was stipulated to be $129.48 per week. However, a review of the Guide to Iowa Workers' Compensation Claim Handling effective July 1, 1988 shows that a married individual with two exemptions and a gross weekly wage of $190.00 is entitled to a weekly compensation rate of $130.05. The only issues with regard to the medical expenses incurred are causation and liability of the employer. The record in this proceeding consists of testimony from Linda Schneider, Sueann Van Daale and Susan Klaas. The record also consists of exhibits 1 through 38. findings of fact Having considered all the evidence received, together Page 2 with the appearance and demeanor of the witnesses, the following findings of fact are made. Linda Schneider is a 49-year-old married woman who lives at Toronto, Iowa. She obtained a GED in 1972. Linda was described by her present supervisor, Susan Klaas, as an excellent, honest and trustworthy employee. Sueann Van Daale, her former supervisor, expressed similar high regard for Linda. Linda Schneider is found to be an impeccably credible witness, despite the variance in the medical histories which appears in the records of this case. The sequence of events which she described at hearing is found to be accurate and correct. The variance in the medical histories is attributed to her lack of medical expertise in knowing what does or does not cause herniated discs, the pain which she was experiencing and the pain medication which had been administered to her. It is specifically found that Linda was struck on the back five times on July 23, 1988, that the blows caused severe pain, and that the pain subsided somewhat, but never completely resolved during the following days leading up to August 9, 1988 when claimant was hospitalized for severe pain in her leg. It is found that the incident of falling with the bicycle did not injure claimant's back and produced only an abrasion type injury on her leg. Following hospitalization on August 9, 1988, Linda was diagnosed as having a herniated intervertebral disc. Surgery was performed. After recuperating, she returned to work with restrictions. It was later determined that the surgery had not completely removed all the disc material and a second surgery was necessary. Following that surgery, claimant's symptoms markedly improved and she returned to work at Wheatland Manor Nursing Home. She has now resumed what is essentially full-duty employment, although she follows a 60-pound lifting restriction and does not lift patients without assistance. Since returning to work following the surgeries, Linda has received the maximum pay raises available. The injury has not caused any reduction in her actual rate of earnings. It has been medically indicated that claimant should not lift more than 50 pounds without assistance, but could lift patients weighing up to 125 pounds with assistance. She has been assigned an eight percent permanent partial impairment rating (exhibit 33). Claimant is performing her job to the satisfaction of her employer. She finds that work fatigues her, but she has been able to perform her work. At the time of hearing, she was off work due to a recent incident which was not related to this claim. The only physician to express an opinion on the cause for claimant's herniated disc is Jerald W. Bybee, M.D. In his deposition, exhibit 34, and also in exhibit 1, he Page 3 explained that a herniated disc normally involves some underlying or preexisting deterioration and degeneration and that claimant's being struck in the back by a patient could quite possibly have been the ultimate event which caused her disc to rupture. Dr. Bybee also explained that being struck in the back is not a common or routine history which is seen in patients with a herniated disc, but that it is certainly conceivable that it could be the cause. Dr. Bybee was unwilling to state within a reasonable degree of medical probability, however, that the blows on the back are what caused this claimant's disc to herniate. He stated that he would defer to an orthopaedic specialist in that regard. He expressed the opinion that he did not hold sufficient expertise to express an opinion on causation (exhibit 34, pages 19-26). Claimant denied having any significant back problems prior to July 23, 1988. The medical records do not indicate any significant prior back problems. conclusions of law Claimant has the burden of proving by a preponderance of the evidence that she received an injury on July 23, 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. Cent. Tel. 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 23, 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 Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). There is sufficient evidence to support an award where Page 4 the medical opinion testimony states that a causal connection is possible and other facts exist which indicate the existence of a causal connection. Becker v. D & E Distrib. Co., 247 N.W.2d 727 (Iowa 1976). Dr. Bybee's reluctance to consider himself an expert for purposes of issuing an opinion is not controlling. His status as a licensed physician gives him the level of expertise which makes his opinions helpful to the trier of fact. Iowa Rule of Evidence 702. Despite his reluctance to characterize himself as an expert in comparison to an orthopaedic surgeon, he is, nevertheless, an expert in comparison to a lay person. His testimony is accepted as expert testimony, though the weight given to it is not as great as the weight which would be given to that of a well-qualified orthopaedic surgeon who would have a higher level of expertise than a family practitioner. In this case, it is determined that the opinion of Dr. Bybee which shows the causal connection to be possible and the claimant's history as related at hearing are sufficient to support a finding of proximate cause between the July 23, 1988 incident of being struck in the back and the herniated disc which became fully manifest on August 9, 1988, a span of little more than two weeks later. In making this determination, it is recognized, pursuant to section 17A.14(5) of The Code that the onset of severe symptoms does not always immediately follow the precipitating trauma, that claimant had no significant history of prior back problems, and that she did have continuing back pain of a lesser degree ever since being struck on July 23, 1988. The testimony from Sueann Van Daale and the incident report, exhibit 30, clearly show that claimant experienced severe pain at the time she was struck in the back. It is therefore determined that the herniated disc which afflicted Linda Schneider was the result of the injury of July 23, 1988 which arose out of and in the course of her employment with Wheatland Manor. According to the prehearing report, claimant's entitlement to healing period compensation under Iowa Code section 85.34(1) runs from August 9, 1988 through January 8, 1989 and again from May 1, 1989 through June 23, 1989. The first period covers 21.857 weeks while the second covers 7.714 weeks for a total of 29.571 weeks of healing period compensation. The parties stipulated that claimant's permanent partial disability entitlement is payable commencing June 24, 1989. That stipulation will not be disturbed, even though January 9, 1989 could be the correct commencement date. If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial Page 5 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 physical restrictions which Linda Schneider presently follows are not extreme. She has suffered no actual loss of earnings. She seems to be able to perform her job to the satisfaction of her employer. She is at an age where extremely heavy work would not normally be a chosen occupation for someone of her physical stature. Her few medical restrictions have been accommodated by her employer. When all the material factors of industrial disability are considered, it is determined that Linda Schneider sustained a 15 percent permanent partial disability under Iowa Code section 85.34(2)(u). This entitles her to receive 75 weeks of compensation for permanent partial disability. Since the employer has been found to be liable for claimant's herniated disc, it is responsible for the expenses of medical treatment as itemized in exhibit 38. Counsel stipulated that they would reach agreement concerning the correct amount. order Page 6 IT IS THEREFORE ORDERED that defendants pay Linda Schneider twenty-nine and four-sevenths (29 4/7) weeks of compensation for healing period at the rate of one hundred thirty and 05/100 dollars ($130.05) per week with twenty-one and six-sevenths (21 6/7) weeks thereof payable commencing August 9, 1988 and the remaining seven and five-sevenths (7 5/7) weeks payable commencing May 1, 1989. IT IS FURTHER ORDERED that defendants pay Linda Schneider seventy-five (75) weeks of compensation for permanent partial disability at the rate of one hundred thirty and 05/100 dollars ($130.05) per week payable commencing June 24, 1989. IT IS FURTHER ORDERED that all amounts of weekly compensation which are past due and accrued shall be paid to claimant in a lump sum together with interest computed pursuant to Iowa Code section 85.30 from the date each payment came due until the date of actual payment. IT IS FURTHER ORDERED that defendants pay claimant's medical expenses as set forth in exhibit 38. IT IS FURTHER ORDERED that the costs of this action are assessed against defendants pursuant to 343 IAC 4.33. IT IS FURTHER ORDERED that defendants file claim activity reports as requested by this agency pursuant to 343 IAC 3.1. Signed and filed this ______ day of ____________, 1990. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Michael W. Liebbe Attorney at Law 116 East 6th Street P.O. Box 339 Davenport, Iowa 52805-0339 Ms. Vicki L. Seeck Attorney at Law 600 Union Arcade Building 111 East Third Street Davenport, Iowa 52801 1402.20; 1402.30; 1803 Filed December 18, 1990 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : LINDA SCHNEIDER, : : Claimant, : : vs. : : File No. 894126 WHEATLAND MANOR, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : IOWA HEALTH CARE ASSOCIATION : (CONSTITUTION STATE SERVICE : CO.), : : Insurance Carrier, : Defendants. : ____________________________________________________________ 1402.20; 1402.30 Where claimant was found to be an impecably credible witness, the varying medical histories did not prevent her from establishing her claim. 1803 Forty-nine-year-old claimant, who worked as a nurse's aide, suffered a herniated disc and returned to work without any loss of actual earnings and was awarded 15 percent permanent partial disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER RICHARD W. HOUSTON, Claimant, File No. 894129 vs. A P P E A L IOWA MEN'S REFORMATORY, D E C I S I O N Employer, F I L E D and NOV 30 1989 STATE OF IOWA, IOWA INDUSTRIAL COMMISSIONER Insurance Carrier, Defendants. STATEMENT OF THE CASE Claimant appeals from a ruling on motion to dismiss denying claimant's cause of action. The record on appeal consists of claimant's petition, defendants' motion to dismiss and the ruling on the motion to dismiss. Both parties filed briefs on appeal. ISSUE Claimant states the issue on appeal is whether the deputy industrial commissioner erred in sustaining defendants' motion to dismiss. REVIEW OF THE EVIDENCE The ruling on the motion to dismiss filed February 3, 1989 adequately and accurately reflects the pertinent evidence and it will not be reiterated herein. APPLICABLE LAW The citations of law in the ruling on the motion to dismiss are appropriate to the issues and evidence. ANALYSIS The analysis of the evidence in conjunction with the law in the ruling on the motion to dismiss is adopted. FINDINGS OF FACT 1. Claimant was injured July 16, 1986 while an inmate at the Iowa Men's Reformatory. 2. Claimant's original petition seeking arbitration and medical benefits was filed with the industrial commissioner's office on December 19, 1988. CONCLUSIONS OF LAW Deputy industrial commissioner did not err in sustaining defendants' motion to dismiss. Claimant failed to file his original petition for arbitration and medical benefits within the two year statutory time limit as required by Iowa Code sections 85.59 and 85.26. While the deputy industrial commissioner went outside of the pleadings to determine whether an acknowledgment of compensability was on file, it was done for the claimant's benefit and in no way prejudiced the claimant. Defendants' failure to file an acknowledgment of compensability pursuant to Iowa Code section 85.59 does not extend the statute of limitations beyond two years. The acknowledgment of compensability satisfies the notice of injury requirement, Iowa Code sections 85.59 and 85.23. Defendants' failure to file an acknowledgment of compensability does not affect the statute of limitations. WHEREFORE, the ruling of the deputy is affirmed. ORDER THEREFORE, it is ordered: That the motion to dismiss is sustained, claimant has failed to state a claim upon which relief may be granted. Signed and filed this 30th day of November, 1989. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. James P. Hoffman Attorney at Law Middle Road P.O. Box 1066 Keokuk, Iowa 52632-1066 Ms. Joanne Moeller Assistant Attorney General Tort Claims Division Hoover State Office Bldg. Des Moines, Iowa 50319 2301 - 2402 Filed November 30, 1989 DAVID E. LINQUIST BEFORE THE IOWA INDUSTRIAL COMMISSIONER RICHARD W. HOUSTON, Claimant, File No. 894129 vs. A P P E A L IOWA MEN'S REFORMATORY, D E C I S I O N Employer, and STATE OF IOWA, Insurance Carrier, Defendants. 2301 - 2402 Claimant in this matter was injured while an inmate. The appeal decision affirmed deputy's decision sustaining defendants' motion to dismiss for lack of subject matter jurisdiction. Claimant failed to file an original petition within the two year statute of limitation. Defendants' failure to file an acknowledgment of compensability does not affect the statute of limitations beyond two years. before the iowa industrial commissioner ____________________________________________________________ : ELMER TOLSON, : : Claimant, : File No. 894134 : vs. : A P P E A L : JOHN DEERE DES MOINES WORKS, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 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 January 28, 1991, 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 September, 1991. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. James Lawyer Attorney at Law West Towers Office 1200 35th Street Ste 500 West Des Moines, Iowa 50265 Mr. Roger Ferris Attorney at Law 1900 Hub Tower 699 Walnut Street Des Moines, Iowa 50309 9998 Filed September 27, 1991 BYRON K. ORTON MAM before the iowa industrial commissioner ____________________________________________________________ : ELMER TOLSON, : : Claimant, : File No. 894134 : vs. : A P P E A L : JOHN DEERE DES MOINES WORKS, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 9998 Summary affirmance of deputy's decision filed January 28, 1991. Page 1 before the iowa industrial commissioner ____________________________________________________________ : ELMER TOLSON, : : File No. 894134 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N JOHN DEERE D.M. WORKS, : : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ statement of the case This is a proceeding in arbitration upon the petition of claimant, Elmer Tolson, against his employer, John Deere Des Moines Works, self-insured defendant. The case was heard on April 18, 1990, in Des Moines, Iowa at the office of the industrial commissioner. The record consists of the testimony of claimant, and the testimony of the safety director, Gary Higbee. Additionally, the record consists of joint exhibits 1-15. issues The issues to be determined are: 1) whether claimant sustained an injury which arose out of and in the course of his employment; 2) whether there is a causal relationship between the alleged injury and the disability; and 3) whether claimant is entitled to temporary total or permanent partial disability benefits. findings of fact The deputy, having heard the testimony and considered all the evidence, finds: Claimant was 61 years old when he began experiencing difficulties with his lower extremities. He felt burning in his legs with some numbness and tingling. Primarily the burning was felt at night. Physical activities did not aggravate his complaints. Claimant had been employed at John Deere in Des Moines since May 18, 1959. He had held various positions including janitor and shear helper. For the past 19 years claimant had worked as a fork truck operator. His duties included taking rotary holes off the line, placing the material onto pallets, picking up the pallets and stacking the pallets. He drove the fork lift truck approximately 6 1/2 hours per day. The fork lift truck had hard rubber tires. The forks were on the front and the back was weighted to insure balance. Claimant testified the ride was rough and the floor was not smooth. Page 2 Claimant, a diabetic, sought medical attention for his burning sensation. He went to his family physician, an internist, Mayank K. Kothari, M.D. Dr. Kothari treated claimant for his diabetes and for the burning sensation. The physician diagnosed claimant as: His diagnosis at this time was myelopathy as a result of degeneration to the spinal cord as a result of aggrevation [sic] of his injury by his regular job of forklifting methods. The aggrevation [sic] stems from the jolting and jarring he experiences during the forklifting maneuvers. A myelogram as well as a CAT scan of the lumbar spine was ordered and this revealed some narrowing along the lumbar spine. Dr. Kothari referred claimant to Alfredo D. Socarras, M.D., a neurologist who examined claimant on March 9, 1987. Various medical tests were conducted. Dr. Socarras, in his deposition of April 12, 1990, opined: In summary, the neurological examination showed no significant deficit and the electromyogram that I performed on May 25th, 1989 was also normal. I expressed in that letter to Doctor Kothari that I did not have the answer for Mr. Tolson's problem, that I could not explain this satisfactorily. I raised the question of restless leg syndrome, but this is usually something that occurs at night. The patient will complain of discomfort in both lower extremities, will have to move and walk in order to get some relief and the cause or etiology is obscure. We don't know why this happens, but it happens. So that was the last time I saw Mr. Tolson and that was my conclusion. (Exhibit 2, page 16, lines 7-19) Dr. Kothari also referred claimant to an orthopedic surgeon, Scott Neff, D.O. Dr. Neff examined claimant. In his deposition, Dr. Neff testified: So with the history we know of at least 9 or 10 years, it would seem very reasonable, and it would be my opinion, that that type of activity would contribute to repetitive cyclical loading of hundreds and hundreds of times per day, which would, indeed, produce spinal stenosis at a greater or more rapid rate than he would be genetically predisposed to have occur. Q. Do you believe that that work activity as I described was a substantial contributing factor to his onset of symptoms that you treated him for? A. Yes. (Ex. 1, pp. 16-17, ll. 20-6) Dr. Neff also opined that claimant had a 20 percent permanent partial impairment, with 10 percent attributable to claimant's repetitive work activities. Dr. Neff restricted claimant from heavy repetitive cyclical loading of the lumbar spine, bouncing in the seated or standing position, avoiding shoveling, repetitive twisting or turning, jumping, bending over or long-term walking on a Page 3 hard surface. He opined that claimant's bouncing around on a fork lift contributed to the development of spinal stenosis. Dr. Kothari also referred claimant to a neurosurgeon, Randy Winston, M.D. Dr. Winston examined claimant on April 10, 1987. The physician testified that claimant's disease was still in doubt. Dr. Winston did not believe that claimant's disease was caused by his work activities, or that it was traumatically related. Dr. Neff referred claimant to the University of Iowa for additional testing. Matthew Rizzo, M.D., a neurologist, examined claimant. Dr. Rizzo opined in his report of July 29, 1987. The patient did not appear to have any surgical obstruction of the spinal cord or nerve roots to account for his symptoms. We referred the patient to neurosurgery who agreed with this impression. It is possible that the patient has a small fiber sensory neuropathy related to diabetes to account for the burning in his legs. Such a problem would not show up on EMG or nerve conduction testing. It is unclear what the relationship of this patient's previous injury has to his current symptoms. In view of the patient's complaints after a trial of Elavil to 75 mg PO q.h.s. (he did not feel well at 100 mg PO q.h.s.). We would recommend the trial of another medication such as Tegretol or a nonsteroidal anti-inflammatory agent to treat this patient's dysesthesias. Control of his diabetes is also important. Please let us know if you have any further questions. Claimant was off work from May 17, 1987. He retired on April 1, 1988. conclusions of law Claimant has the burden of proving by a preponderance of the evidence that he received an injury on May 17, 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. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). "An injury occurs in the course of the employment when it is Page 4 within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). The claimant has the burden of proving by a preponderance of the evidence that the injury of May 17, 1987, is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). In the case at hand, claimant has failed to prove by a preponderance of the evidence that his condition is causally related to the duties he performed at work, specifically the repetitive riding on a fork lift. The medical cause of claimant's condition is unknown. Drs. Socarras, Winston and Rizzo could not relate claimant's problems to his work situation. Nor could they determine the probable cause of claimant's condition. As Dr. Socarras so aptly put it: "I still am not able to be certain of the etiology or the cause of his symptoms." (Ex. 2, p. 19). Only Dr. Kothari and Dr. Neff related claimant's injury to his work environment. However, Dr. Kothari's opinion was outside his practice of internal medicine. Consequently, his opinion was not accorded the weight that was given to the opinions of Drs. Socarras, Winston and Rizzo who did testify within the confines of their respective disciplines. Finally, there was the opinion of Dr. Neff. He causally related claimant's condition to excessive bouncing in a fork lift truck over many years. However, testimony from Gary Higbee was produced which established that fork lift driving was not that rough and that driving a fork lift truck was considered a lighter duty position. Claimant has failed to meet his burden of proof. order THEREFORE, IT IS ORDERED: Page 5 Claimant takes nothing further from these proceedings: Each party shall pay his/its own costs pursuant to rule 343 IAC 4.33. Page 6 Signed and filed this ____ day of January, 1991. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. James Lawyer Attorney at Law West Towers Office 1200 35th St STE 500 West Des Moines IA 50265 Mr. Roger Ferris Attorney at Law 1900 Hub Tower 699 Walnut Des Moines IA 50309 5-1108 Filed January 28, 1991 MICHELLE A. McGOVERN before the iowa industrial commissioner ____________________________________________________________ : ELMER TOLSON, : : File No. 894134 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N JOHN DEERE D.M. WORKS, : : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 5-1108 Claimant failed to prove by a preponderance of the evidence that he sustained a cumulative trauma injury to his back. Page 1 before the iowa industrial commissioner ____________________________________________________________ : PHYLLIS J. FOWLER, : : Claimant, : : vs. : : File No. 894136 J. B. HUNT TRANSPORT, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : FIDELITY AND CASUALTY COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ INTRODUCTION This is a proceeding in arbitration brought by claimant, Phyllis J. Fowler, against J B Hunt Transport, employer and Fidelity and Casualty Company, insurance carrier, defendants, to recover benefits under the Iowa Workers' Compensation Act for an alleged injury on February 2, 1987. This matter was scheduled to come on for hearing at 1:00 p.m., August 7, 1990, in the Industrial Commissioner's Office at Des Moines, Iowa. The undersigned was present. Neither claimant nor defendants appeared. summary of the evidence Claimant failed to present any evidence in support of the allegations found in his original notice and petition. At the time of the hearing, neither an agreement for settlement nor a request for continuance was on file. Claimant has 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). findings of fact WHEREFORE, it is found: 1. Neither claimant nor defendants appeared at the scheduled time and place of hearing. 2. The undersigned deputy industrial commissioner was present and prepared to proceed to hearing. 3. At the time of the hearing, neither an agreement for settlement nor a request for continuance was on file with the industrial commissioner. 4. Claimant failed to present any evidence to support allegations of a compensable injury. order THEREFORE, IT IS ORDERED: Page 2 Claimant has failed to meet his burden of proof that he sustained an injury which arose out of and in the course of his employment. Claimant take nothing from this hearing. Costs are taxed to the claimant pursuant to Division of Industrial Services Rule 343-4.33 Signed and filed this ____ day of August, 1990. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Jacob J. Peters Attorney at Law 233 Pearl Street PO Box 1078 Council Bluffs, Iowa 51502 Mr. Michael Hoffmann Attorney at Law Breakwater Bldg. 3708 75th St Des Moines, Iowa 50322 Page 1 51400; 51402 Filed August 7, 1990 Walter R. McManus, Jr. before the iowa industrial commissioner ____________________________________________________________ : PHYLLIS J. FOWLER, : : Claimant, : : vs. : : File No. 894136 J B HUNT TRANSPORT, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : FIDELITY AND CASUALTY CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 51400; 51402 Neither claimant nor counsel appeared 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 ____________________________________________________________ : ROBERT HAULK, : : File Nos. 881096 Claimant, : 894140 : 900519 vs. : : A R B I T R A T I O N ROADWAY EXPRESS, INC., : : D E C I S I O N Employer, : Self-Insured, : Defendant. : ____________________________________________________________ statement of the case This decision concerns three proceedings in arbitration brought by Robert Haulk against his former employer, Roadway Express, Inc., based upon alleged injuries of February 1, 1988, November 8, 1988 and January 16, 1989. The primary issues to be determined are whether claimant sustained injury which arose out of and in the course of employment on the dates alleged, determination of claimant's entitlement to compensation for healing period or temporary total disability for the November 8, 1988 injury, and compensation for permanent disability for all three injuries. Claimant seeks medical expenses under the provisions of Iowa Code section 85.27 for all three injuries. Defendant has asserted a defense in the nature of lack of subject matter jurisdiction under section 85.71. Defendant has also asserted lack of notice as a defense in case number 881096. The case was heard and fully submitted on March 15, 1990 at Davenport, Iowa. The evidence in the case consists of testimony from Robert Haulk, claimant's exhibits 1 through 15 and defendant's exhibits 1 through 10. findings of fact Robert Haulk is a 56-year-old man who had been a truck driver for 35 or 40 years. The last day he worked was January 16, 1989. Haulk has an eighth grade education and now lives on a pension. He fishes for recreation. Haulk stated that he is unable to lift, stand or sit very long. He was not aware of anything he could do in the way of employment. Haulk stated that he has pain which goes up and down his right arm from the hand to the pit of his shoulder. He stated that his neck and low back give him continuous pain which is like a tooth ache. He stated that chiropractic treatments provide temporary relief. Haulk feels that he had more years of work left in him if his back had not gotten bad. Claimant has not sought work. Claimant testified that he injured his back on February 1, 1988 while hooking up or taking apart a set of double Page 2 bottom trailers at Walcott, Iowa. He stated that he was moving the "jiff lock" when he experienced the onset of pain. Claimant testified that he reported the incident to the dispatcher, but was not offered any medical treatment. Claimant stated that he went to Thomas A. Brozovich, D.C., Dennis D. Burkhardt, D.C., and William J. Dougherty, M.D. Dr. Burkhardt's records show that claimant received treatments on January 29, 1988 and February 9, 1988. Neither makes any mention of any history of accident or injury (claimant's exhibit 1, page 16). Claimant's records with Dr. Brozovich show regular treatments from April 22, 1988 through October 14, 1988 and then a gap in treatments until January 23, 1989. The notes from the 1989 visits make no reference to any report of any particular recent injury. The note of January 25, 1989 refers to a "since last exacerbation," but at no point is that exacerbation identified (claimant's exhibit 4, pages 19-21 and 31). The records do indicate that claimant was authorized by Dr. Brozovich to be absent from work on several occasions running from June 3, 1988 through January 3, 1989 (claimant's exhibit 4, pages 34-43). On July 31, 1989, Dr. Brozovich issued a six-page report in which he discussed injuries of April 27, 1984, July 21, 1987, February 25, 1988 and January 16, 1989. The report does not make any reference to injuries of February 1, 1988 or November 8, 1988. Hyman S. Lans, M.D., issued a written report on November 25, 1988. In it, he relates a history of injury in 1984 and then experiencing pain in the low back and numbness in both legs on February 1, 1988. The doctor concludes that claimant has a 22 percent functional impairment of the whole man as a result of an injury. The report does not indicate whether the impairment is due to the 1984 injury or whatever occurred while claimant was driving on February 1, 1988 (claimant's exhibit 2). Claimant's exhibit 6 indicates that claimant was in physical therapy from September 20, 1988 until October 31, 1988 under the direction of Dr. Dougherty. On October 31, 1988, claimant was authorized six weeks' rental of a TENS unit. Claimant was seen by Dr. Dougherty on May 17, 1984 with a report of injury on April 25, 1984. Claimant was noted to have a spondylolysthesis of the first degree with some disc space narrowing at L4-5 and L5-S1. A CT scan showed no abnormalities (claimant's exhibit 7, pages 1 and 2). Dr. Dougherty reevaluated claimant on July 30, 1986. X-rays were interpreted as showing some progression of the disc space narrowing (claimant's exhibit 7, page 3). On January 19, 1987, claimant again reported increased back pain. A CT scan of the lumbar spine was taken on January 21, 1987 and interpreted as showing no change in comparison to the 1984 CT scan (claimant's exhibit 7, pages 4 and 5). On September 20, 1988, Dr. Dougherty reported that claimant has established degenerative disc disease and that he has had a Page 3 flare-up of the condition (claimant's exhibit 7, pages 6 and 7). Barry Lake Fischer, M.D., evaluated claimant on October 6, 1988. The history taken referred to the onset of pain in his low back and numbness in both legs while driving on February 1, 1988 and a previous low back injury in 1984. The diagnosis included a bilateral lumbosacral strain injury. Dr. Fischer rated claimant as having a functional impairment of 25 percent of the man as a whole as a result of an injury. The report does not specify whether the impairment is from the 1984 injury or the 1988 injury (claimant's exhibit 5). On November 8, 1988, Haulk was making a delivery at Mount Joy, Iowa when he slipped and hit his right elbow. He continued to work that day, but on the next day was seen at the Moline Public Hospital. X-rays disclosed no abnormality (claimant's exhibit 8, pages 2 and 7). He was taken off work until November 14, 1988 (claimant's exhibit 8, pages 3, 4 and 9). Claimant was also seen by R. D. Retz, M.D., who indicated that claimant was released to return to work on November 18, 1988 (claimant's exhibit 8, page 8). Jeffrey C. Allgood, M.D., issued releases which authorized claimant to return to work on November 15, 1988, November 16, 1988, November 17, 1988 and November 18, 1988 (claimant's exhibit 9). Claimant was seen by William R. Whitmore, M.D., on December 16, 1988. A steroid injection was administered (claimant's exhibit 10). According to claimant, relief from the injection lasted only a couple weeks. When Dr. Whitmore saw claimant on January 19, 1989, it was noted that claimant had retired. There was no mention made of any recent back injury. James F. Dupre', M.D., evaluated claimant. He found no objective evidence of abnormalities other than the spondylolysthesis (defendant's exhibit 5). Claimant has had back problems since 1984. They have worsened since that time. The record in this case fails to contain any corroboration for claimant's testimony of a February 1, 1988 back injury. It is therefore found that claimant has failed to introduce evidence showing it to be probable that he sustained any injury or became disabled on February 1, 1988. The evidence indicates that claimant's back problems had been quite symptomatic during much of the last six months of 1988. He was seeing a chiropractic physician regularly. He received physical therapy and a TENS unit. He was off work frequently. The records fail to show that claimant sought any medical treatment for the alleged January 16, 1989 injury at or about the time it allegedly occurred. To the contrary, the record indicates that claimant chose to retire. Claimant may have experienced an increase in his symptoms or a flare-up of his symptoms due to activities he engaged in on January 16, 1989, but the record fails to show that anything that might have occurred on that date produced any temporary or permanent disability. Page 4 In view of claimant's well documented degenerative condition, it is quite believable that most any activity could increase his symptoms or produce discomfort. Claimant has failed to introduce evidence showing it to be probable that he was injured or became disabled on January 16, 1989. It is found that Robert Haulk did injure his elbow as he alleged on November 8, 1988. Since he worked all of that day, the disability from the injury commenced on November 9, 1988 and ran through November 17, 1988, the date he was last examined by Dr. Retz. Since Dr. Retz was an authorized treating physician, his assessment in that regard will be accepted as being correct. November 18, 1988 was the day that claimant returned to work, not the last day of disability resulting from that injury (claimant's exhibit 8, page 8). The record fails to show any evidence of permanent disability affecting claimant's right elbow or arm. The total period of disability from the elbow injury is nine days. Claimant's exhibit 11 contains bills from Dr. Brozovich. All appear to deal with claimant's back. None appear to deal with his elbow injury. Claimant's exhibit 12 also appears to deal with claimant's back. The dates of services are January 19, 1987 and September 20, 1988. Claimant's exhibit 13 is $90.00 in charges for x-ray consultation. This also appears to relate to claimant's back and the reports found in evidence as claimant's exhibit 3. Claimant's exhibit 14 deals with the physical therapy for claimant's back which is shown in claimant's exhibit 6. Claimant's exhibit 15 is charges from Dr. Whitmore who treated claimant's elbow. The charges total $122.50. conclusions of law Claimant has the burden of proving by a preponderance of the evidence that he received an injury which arose out of and in the course of his employment on each of the three dates alleged. 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). It is concluded that claimant sustained an injury to his right arm which arose out of and in the course of his employment on November 8, 1988. It is further concluded that claimant has failed to prove, by a preponderance of the evidence, that he sustained any injury on February 1, 1988 or January 16, 1989. Defendant's defense of lack of jurisdiction under section 85.71 is without merit. The injury occurred in Mount Joy, Iowa. Schmidt v. Pittsburgh Plate Glass Co., 243 Iowa 1307, 55 N.W.2d 227 (1952). Claimant was disabled for a period of nine days as a result of that elbow injury. Under Iowa Code sections 85.32 and 85.33, he is therefore entitled to recover temporary Page 5 total disability compensation for six days. According to the stipulation made by the parties, the rate of compensation is $432.96 per week. Since the defendant's have been found to be responsible for the elbow injury, they are also responsible for the expenses of medical treatment, including the charges in the amount of $122.50 with Dr. Whitmore. It is concluded that claimant has failed to prove, by a preponderance of the evidence, any entitlement to recover any additional medical expenses in this proceeding since he has failed to prove that there were injuries which arose out of and in the course of employment on either February 1, 1988 or January 16, 1989. order IT IS THEREFORE ORDERED that defendant pay claimant six-sevenths (6/7) weeks of compensation for temporary total disability at the rate of four hundred thirty-two and 96/100 dollars ($432.96) per week payable commencing November 12, 1988. The entire amount thereof is past due and owing and shall be paid in a lump sum together with interest pursuant to Iowa Code section 85.30 computed from the date the weekly compensation benefits were due and payable until the date of actual payment. IT IS FURTHER ORDERED that defendant pay claimant's medical expense with Dr. Whitmore and Orthopaedic Surgery Associates, P.C., in the amount of one hundred twenty-two and 50/100 dollars ($122.50). IT IS FURTHER ORDERED that the costs of this proceeding are assessed against defendant pursuant to Division of Industrial Services Rule 343-4.33. IT IS FURTHER ORDERED that defendant file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this ______ day of ____________, 1990. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Peter M. Soble Attorney at Law 505 Plaza Office Building Rock Island, Illinois 61201 Mr. John A. Hoekstra Mr. John C. McAndrews Page 6 Mr. Peter C. Fieweger Attorneys at Law 200 Plaza Office Building P.O. Box 3250 Rock Island, Illinois 61204-3250 5-1402.20, 5-1801 Filed August 10, 1990 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : ROBERT HAULK, : : File Nos. 881096 Claimant, : 894140 : 900519 vs. : : A R B I T R A T I O N ROADWAY EXPRESS, INC., : : D E C I S I O N Employer, : Self-Insured, : Defendant. : ____________________________________________________________ 5-1402.20, 5-1801 Claimant proved injury to his right elbow, but failed to prove two alleged back injuries. He was awarded six days of temporary total disability benefits.