1403.30, 1806, 2209 4000.2 Filed May 15, 1990 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : CALVIN PARKER, : : Claimant, : : vs. : : File Nos. 894148 JOHNSRUD TRANSPORT, INC., : 894149 : Employer, : A R B I T R A T I O N : and : D E C I S I O N : GREAT WEST CASUALTY CO., and : THE HARTFORD, : : Insurance Carriers, : Defendants. : ____________________________________________________________ 1403.30, 1806, 2209 Claimant fell in February, was off three days, and then returned to his normal employment activities. Over the following summer, he developed back complaints which ultimately became disabling in October. Two weeks following the February injury, the employer changed workers' compensation carriers. Both denied liability for the disability which began in October. The cumulative trauma rule was applied together with the normal rule regarding burden of proof for apportionment of disability. The second carrier was held entirely responsible for healing period and permanent partial disability. 4000.2 Where the fact of the occurrence of the injury was not a subject of a bona fide dispute and was not fairly debatable, the second insurance carrier was held responsible for a 50 percent penalty under 86.13. No penalty awarded for failure to pay permanent partial disability since there was no demonstrated reduction in actual earnings following claimant's return to work. Page 1 before the iowa industrial commissioner ____________________________________________________________ : CALVIN PARKER, : : Claimant, : : vs. : : File Nos. 894148 JOHNSRUD TRANSPORT, INC., : 894149 : Employer, : A R B I T R A T I O N : and : D E C I S I O N : GREAT WEST CASUALTY CO., and : THE HARTFORD, : : Insurance Carriers, : Defendants. : ____________________________________________________________ statement of the case This decision concerns two proceedings in arbitration brought by Calvin Parker against his former employer, Johnsrud Transport, Inc., and two of its successive workers' compensation insurance carriers. File number 894149 deals with an alleged injury of February 5, 1988 while file number 894148 deals with an alleged injury of October 28, 1988. With regard to the claims considered in this decision, The Hartford provided insurance coverage until February 19, 1988, and thereafter Great West Casualty Company insured the employer. The case was heard and fully submitted at Des Moines, Iowa on November 30, 1989. The record in the proceeding consists of testimony from the claimant, Delmar Calvin Parker, Terry Keithline, David Probasco, Dale Tupy and Mike Williams. The record contains lay exhibits A through J, medical exhibits A through I, and joint exhibits 1 through 12. issues Claimant seeks compensation for healing period, permanent partial disability and payment of medical expenses. The issues to be determined include: whether claimant sustained an injury on February 5, 1988 or October 28, 1988 or on both dates which arose out of and in the course of employment; determination of claimant's entitlement to compensation for healing period and permanent partial disability resulting from each of the alleged injuries; and, determination of claimant's entitlement to Page 2 payment of medical expenses under Code section 85.27 in relation to each injury. There is a dispute with regard to which of the two insurance carriers is responsible for paying any compensation or medical expenses which might be awarded. Claimant also seeks additional compensation under the fourth unnumbered paragraph of Code section 86.13 for the unreasonable denial of compensation. Both carriers have declined to pay any weekly compensation to claimant. The rate of compensation is likewise disputed. It was stipulated, however, that claimant was married with four exemptions at the time of the alleged February injury and with five exemptions at the time of the alleged October injury. The dispute regarding section 85.27 benefits is based upon liability and causal connection. The total sought by claimant is $1,238.40 as listed in his attachment to the prehearing report. findings of fact Delmar Calvin Parker is a 52-year-old married man who was employed by Donco Transportation at Des Moines, Iowa at the time of hearing. He works as a truck driver in the states of Michigan, Illinois, Missouri and Minnesota. He frequently makes runs to St. Louis, Kansas City, Omaha and Minneapolis which are normally completed in one day. Parker is a 1956 high school graduate who took some courses to become a pilot in the early 1960's, but did not become certified. Following high school, Parker farmed, operated heavy equipment, owned and operated a bar and cafe and worked as a lumberjack. In 1986, Parker began driving for Johnsrud Transport, Inc. He performed long distance, over-the-road driving throughout much of the United States. He transported liquids and was normally away from home for periods ranging from one to three weeks at a time. He estimated, however, that he drives approximately as many miles now with Donco as he did with Johnsrud. Parker stated that, prior to working for Johnsrud, he had been in good health and never had any back problems, despite the fact that some of his prior employments had been physically demanding. Parker testified that on, February 5, 1988, while unloading in Chicago, Illinois, he fell, landing on his butt with the metal end of the large hose used to unload the fluid from the tanker trailer smashing into his groin. Parker reported the incident to the dispatcher, but was assigned to haul a load to Arkansas. When he returned to Des Moines on February 8, 1988, he was treated at the Mercy Medical Clinic and taken off work until February 11, 1988. The condition was diagnosed as a groin strain (exhibit 1, pages 1 and 2; medical exhibit B, pages 8 and 9). Based upon those records, it is found that Parker was off work on Page 3 February 8, 9 and 10, 1988, a period of three days, and then returned to work on February 11, 1988. Parker's testimony regarding the events which occurred on February 5, 1988 is corroborated by the prompt reporting of the incident to the dispatcher and medical records. It is therefore found that claimant was injured in a fall on February 5, 1988 in the manner in which he described. After returning to work, Parker resumed his normal duties and did not miss any work due to injuries until September, 1988 when he was off work for approximately three weeks due to an ulcer condition. Claimant stated that initially following the February injury his pain was in the groin region and made his entire body hurt. He stated that during the spring and summer of 1988 his back problems gradually developed. According to Dale Tupy, claimant's complaints, which were made within a month following the February 5 incident, consisted of groin pain, not back pain. Parker stated that when he returned to work following being off for the ulcer, he was assigned to a truck which had a rougher ride than the one which he had previously driven. He complained to Dale Tupy about the rough ride of the truck. Tupy stated that he could not recall any complaint of back pain, but that he did tell claimant that any request for medical treatment had to be processed through Mike Williams, the Johnsrud human resources manager. Williams acknowledged that he met with claimant in October, 1988 at which time claimant requested medical attention for his back. On October 29, 1988, claimant was seen at the Iowa Methodist Medical Center emergency room for back pain. The history given was that it started with a fall which occurred on the job last spring and had been progressive. The records indicate that claimant attributed the pain in part to driving a truck with an uneven seat and poor springs. Parker was taken off work at that time (exhibit 3, pages 1 and 4; exhibit 2, page 1; medical exhibit D, pages 11, 12 and 15). Thereafter, Parker entered into a course of medical treatment, initially with Des Moines orthopaedic surgeon Ronald K. Bunten, M.D., and subsequently with Des Moines orthopaedic surgeon William R. Boulden, M.D. Both physicians diagnosed multi-level degenerative disc disease and felt that no surgery was currently warranted. On November 14, 1988, Dr. Bunten indicated that, if claimant could obtain a better seat in the truck, he could return to work within a few weeks. On December 30, 1988, Dr. Bunten recommended that it would be advisable for claimant to seek work other than driving a truck (exhibit 4, pages 1, 2 and 4; medical exhibit E, pages 21, 22 and 23). Dr. Boulden evaluated claimant on March 7, 1989. He Page 4 placed claimant into a course of therapy and exercise treatment at the Manual Therapy Center. Claimant showed improvement, though not complete resolution of his symptoms (exhibit 11, pages 8 and 9). Dr. Boulden felt that claimant's pain was from degenerative changes in his spine which were of longstanding origin and that neither the fall of February 5, 1988 nor the cumulative trauma of driving a truck had accelerated the degenerative process (exhibit 11, pages 7 and 16-18). He stated that the condition was congenital and would have degenerated regardless of claimant's occupation, but that the slip and fall and driving had caused the condition to become more symptomatic (exhibit 11, pages 11, 12 and 16-18). Dr. Boulden related the symptoms to both the fall and the ensuing driving (exhibit 11, pages 18 and 19). Dr. Boulden rated claimant as having a 10 percent permanent impairment based upon the degenerative changes and the fact that they were symptomatic. He apportioned that 10 percent disability, 5 percent to the preexisting condition and 5 percent to the traumas sustained with Johnsrud Transport (exhibit 11, pages 10, 18-20 and 25). Dr. Bunten had also rated claimant as having a 10 percent permanent impairment of the body. He felt, however, that the injury of February 5, 1988 had precipitated the symptoms and was the significant event while the subsequent cumulative trauma was merely an aggravation of a preexisting condition (exhibit 4, page 5; medical exhibit E, page 24). Dr. Boulden reported on October 16, 1989 that the continued truck driving performed in 1988 caused claimant's symptoms (exhibit 5, page 5). Dr. Boulden has stated that claimant is not disabled from working, only from long distance truck driving (exhibit 5, page 4). Dr. Bunten did not disagree with that assessment (exhibit 4, page 5). Dr. Boulden reported that claimant had reached maximum medical improvement on April 18, 1989. On May 10, 1989, he gave claimant an unrestricted release to return to work at claimant's request (exhibit 11, pages 10 and 12). While working for Johnsrud, claimant was paid by the mile. Initially, $.03 per mile of the total was deemed by the employer to be a "per diem allowance" for expenses. Later, that allowance was changed to $.04 per mile without changing the amount of the total mileage payment (exhibit 7, page 62). Other records commonly show the pay being computed at a fixed rate per mile without any reference to any part of it being an allowance for expenses (exhibit 7, pages 69 and 135). The employer's records show claimant's total earnings, including the amount treated by the employer as a "per diem allowance" to have been $4,819.36 or an average of $370.72 for the 13 weeks that claimant actually worked preceding the week which included February 5, 1988. The records show that claimant's total earnings during the Page 5 13 weeks that he actually worked preceding the week which included October 28, 1988 averaged $417.56 (exhibit 9, page 3). It is found that the amount termed by the employer as a "per diem allowance" was based upon the miles the driver traveled, rather than the number of meals consumed or any other relationship to actual expenses. The term "per diem" normally refers to a daily expense allowance, rather than an allowance based upon the amount of work performed by the employee. The "per diem" method used in this case by the employer would have provided nothing to an employee for layover days or days spent while waiting for loads, but would have provided a large amount on those days where the driver traveled a relatively large number of miles, even though it might have been performed in only one day. Claimant's medical records show him to have made some upper back complaints in August, 1987, and to have had leg injuries in July, 1987 and May, 1988 (medical exhibit G, pages 28 and 29). The records show claimant to have made complaints of low back pain on August 30, 1988 and to have been taken off work for two days with a severe back strain on September 26, 1988 (medical exhibit G, pages 30 and 31). Claimant was involved in an apparently minor accident on June 4, 1988 (exhibit 7, page 58). Based on the evidence in the record of the case, it is found that claimant's back symptoms did not commence immediately following the February 5, 1988 injury, but did come on gradually over the following spring and summer. It is further found that in those few instances where Drs. Bunten and Boulden disagree, Dr. Boulden's assessment is accepted as being correct due to his more extensive and more recent involvement in the case. In particular, his assessment that the continued driving in 1988 caused the symptoms as reported on October 16, 1989 is found to be correct rather than the contrary assessment from Dr. Bunten. The medical expenses claimant seeks to recover as shown in exhibit 6 are as follows: Central Iowa Orthopaedics 03-07-89 $ 100.00 03-28-89 30.00 04-18-89 30.00 Total $ 160.00 J. M. Cunningham, D.O. 11-17-88 $ 20.00 Iowa Methodist Medical Center 10-29-88 $ 107.05 11-09-88 467.85 Total $ 574.90 Page 6 Radiology P.C. 11-09-88 $ 75.00 Des Moines Orthopaedic Surgeons, P.C. 11-09-88 $ 60.00 12-30-88 32.00 Total $ 92.00 Grand Total $ 921.90 The record contains a bill for each of the claimed expenses, except Manual Therapy Center, to corroborate the claimed expenses listed by claimant as part of the prehearing report. conclusions of law Claimant has the burden of proving by a preponderance of the evidence that he received injuries on February 5, 1988 and October 28, 1988 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Aggravation of a preexisting condition is one form of compensable injury. 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). Claimant's testimony regarding falling on February 5, 1988 having been accepted as correct, it is therefore concluded that Calvin Parker sustained an injury on that date which arose out of and in the course of his employment. The same is true regarding the injury occurring through the cumulative trauma of driving during the spring and summer of 1988 culminating with disability commencing on October 29, 1988. It is therefore concluded that claimant sustained an injury which arose out of and in the course of his employment on October 28, 1988. Both injuries were in the nature of an aggravation of a preexisting condition. The claimant has the burden of proving by a preponderance of the evidence that the injury is the cause of 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 Page 7 v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). A cause is proximate if it is a substantial factor in bringing about the result. It need not be the only cause. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980). Under the cumulative trauma rule, the date of injury is the date that disability commences and the employer who employs the employee on that date is the one responsible for payment of compensation for disability resulting from that cumulative trauma injury. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). A claimant is not charged with a burden of proof as to the actual apportionment of damages or disability in an aggravation case. Any burden of that nature is placed upon the party standing to gain by litigating the apportionment issue. If the evidence does not provide a basis for apportionment, the defendant is responsible for all of the disability. Varied Enterprises v. Sumner, 353 N.W.2d 407 (Iowa 1984); Becker v. D & E Distributing Co., 247 N.W.2d 727, 731 (Iowa 1976). As Dr. Boulden noted, even though there may be a physical defect, there is no disability and no basis for imposing an impairment rating until the condition is in some manner symptomatic. The existence of an asymptomatic anatomical defect is not disabling until the symptoms limit the individual's ability to perform activities. When symptoms are not corroborated by the existence of a physical defect or abnormality, they do not generally support an award for disability benefits. When symptoms are justified by a demonstrated physical abnormality, a change in symptomatology can support an award for disability. 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). In this case, Calvin Parker has a longstanding, preexisting degenerative condition, the nature of which has Page 8 not been altered by either work injury, other than by causing the onset of symptoms. As a result of those symptoms, both Drs. Boulden and Bunten have recommended that claimant refrain from performing the long distance truck driving which he had performed for Johnsrud Transport. Because of the onset of symptoms, Dr. Boulden has provided an impairment rating. The record does not disclose whether or not Dr. Bunten follows the same requirement for symptomatology as Dr. Boulden before assigning an impairment rating. Calvin Parker now has an impairment rating and a recommendation from his physicians that he avoid long distance truck driving. He has not demonstrated a substantial reduction in actual earnings due to the change in the nature of his work. In fact, his rate per mile has increased and according to his testimony, he drives approximately the same number of miles now as he did with Johnsrud. The record supports a modest award of permanent partial disability compensation in view of the elimination of over-the-road truck driving as one of the means of livelihood available to the claimant. When all material factors of industrial disability are considered, it is determined that Calvin Parker has a 10 percent permanent partial disability as a result of his work injuries sustained while employed by Johnsrud Transport, in particular, the injuries of February 5, 1988 and October 28, 1988. When the normal rules dealing with apportionment of disability are applied, it is determined that the injury of October 28, 1988 is a proximate cause of the permanent disability. Claimant had been symptom-free prior to the first injury. The back complaints did not come on until some point in time after the February injury had occurred. They came on only after claimant engaged in continued driving. They became disabling only after he was assigned the rough-riding truck. For these reasons, it is determined that as between the employer's two insurance carriers, Great West Casualty Company is solely responsible for payment of the permanent partial disability compensation award. It having been determined that all permanent partial disability resulted from the second injury, claimant's weekly compensation entitlement for the February 5, 1988 is properly characterized as temporary total disability under Iowa Code section 85.31. For such injuries, compensation begins on the fourth day of disability after the injury, unless the incapacity extends beyond 14 days. Iowa Code section 85.32. It is therefore concluded that claimant is not entitled to recover any weekly compensation based upon the February 5, 1988 injury. With regard to the October 28, 1988 injury, claimant was taken off work when he sought medical treatment on October 29, 1988 and remained off work under appropriate medical care until May 10, 1989 when Dr. Boulden issued a Page 9 release. Dr. Boulden had reported earlier, however, that claimant had reached maximum medical improvement on April 18, 1989. That date fixes the end of claimant's entitlement to healing period compensation under Code section 85.34(1). The entitlement to healing period compensation is 24 and 4/7 weeks. The 50 weeks of compensation for permanent partial disability are therefore payable commencing April 19, 1989. As between the two insurance carriers, Great West Casualty Company is responsible for payment of all healing period compensation. The medical expenses were all incurred for treatment of claimant's back condition. The employer has been held liable for that condition and is therefore responsible for payment of the medical expenses totalling $921.90 as shown in exhibit 6. Since these expenses were all incurred subsequent to the date of injury for the October injury, Great West Casualty Company is responsible for their payment as between the two insurance carriers. Claimant seeks to recover additional compensation under the fourth unnumbered paragraph of Code section 86.13. Chapter 85 of The Code makes employers responsible for payment of compensation for all injuries which arise out of and in the course of employment. Chapter 87 requires all employers to carry liability insurance, or qualify as a self-insured, in order to guarantee sufficient solvency to pay the weekly benefits as the same come due under Chapter 85. As no weekly compensation was awarded for the February 5, 1988 injury, there is no need to discuss the reasonableness of the denial of payment of compensation for that injury. The October 28, 1988 injury, however, produced an extended period of healing period and some permanent disability. A dispute between which of an employer's two insurance carriers is liable is not a lawful defense to a claim for benefits under Chapter 85. In fact, section 85.21 provides a method by which such disputes can be properly litigated and determined without delaying or denying an otherwise valid claim for workers' compensation benefits. There is no requirement for any insurance carrier to make use of section 85.21. But, when the only bona fide, justiciable dispute in a case is to determine which of an employer's two carriers is responsible for paying, it is very appropriate to make use of section 85.21. The law places the liability for payment on the employer. The primary roles of the insurer are to act as the employer's representative for administering and paying the claim as well as a guarantee of solvency. When the only bona fide dispute in a case is that of which of an employer's two carriers is liable for payment, it is a classic, textbook example of a situation in which the imposition of a penalty under section 86.13(4) is fully warranted. Failure to pay a claim is unreasonable unless the validity of the claim is Page 10 fairly debatable. Dolan v. Aid Ins. Co., 431 N.W.2d 790 (Iowa 1988); Kimberly-Clark Corp. v. Labor & Indus. Review Comm'n, 405 N.W.2d 685 (Wisc. App. 1987); Anderson v. Continental Ins. Co., 271 N.W.2d 368, 376 (Wisc. 1978). In this case, there was no reasonable basis for denying Calvin Parker's claim for healing period compensation following the October 28, 1988 injury. An additional 12 weeks of compensation is therefore awarded for the unreasonable denial of the claim. Since Great West was held liable for payment of that healing period compensation, it is also liable for payment of the 12-week penalty. The issue of permanency is different, however. Dr. Boulden released claimant to return to work without restrictions. Claimant had a preexisting condition and the type of work he has reentered is quite similar to that he performed prior to the injury. There is no showing that his actual earnings have decreased significantly as a result of the injury. Whether or not any permanent industrial disability had resulted was fairly debatable and no penalty is warranted for the failure to pay permanent partial disability compensation voluntarily. The final issue for determination is the rate of compensation. Parker's total average weekly earnings were previously found to be $417.56 for the 13 weeks that he actually worked prior to the date of injury. The use of the term "per diem" by an employer does not establish that the payment is actually reimbursement of expenses or an expense allowance under section 85.61(12). The evidence in this case clearly shows that the so-called "per diem" payment was not in any manner related to actual expenses. In fact, the amount classified as "per diem" could be the greatest on those days when the actual expenses incurred were the least. Widdig v. Lincoln Sales & Serv. Inc., file number 851716 (Arb decn., July 20, 1989); Minnick v. CRST, Inc., file number 865832 (Arb. decn., December 21, 1989). In this case, it is concluded that claimant's earnings included the amount classified as "per diem" by the employer. It was stipulated that he was married with five exemptions. The rate of compensation is therefore $275.36 per week. order IT IS THEREFORE ORDERED that Johnsrud Transport, Inc., and Great West Casualty Company pay Calvin Parker twenty-four and four-sevenths (24 and 4/7) weeks of compensation for healing period at the rate of two hundred seventy-five and 36/100 dollars ($275.36) per week commencing October 29, 1988. IT IS FURTHER ORDERED that Johnsrud Transport, Inc., and Great West Casualty Company pay Calvin Parker fifty (50) weeks of compensation for permanent partial disability at the rate of two hundred seventy-five and 36/100 dollars ($275.36) per week commencing April 19, 1989. Page 11 IT IS FURTHER ORDERED that Johnsrud Transport, Inc., and Great West Casualty Company pay the entire amount of the foregoing award in a lump sum, as it is all accrued, together with interest computed at the rate of ten percent (10%) per annum from the date each weekly payment came due until the date of actual payment in accordance with Iowa Code section 85.30. IT IS FURTHER ORDERED that Johnsrud Transport, Inc., and Great West Casualty Company pay three thousand three hundred four and 32/100 dollars ($3,304.32) to claimant in a lump sum, payable on the date of this decision representing twelve (12) weeks of compensation payable as a penalty under the fourth unnumbered paragraph of Iowa Code section 86.13. IT IS FURTHER ORDERED that Johnsrud Transport, Inc., and Great West Casualty Company pay the following medical expenses: Central Iowa Orthopaedics $ 160.00 J. M. Cunningham, D.O. 20.00 Iowa Methodist Medical Center 574.90 Radiology P.C. 75.00 Des Moines Orthopaedic Surgeons, P.C. 92.00 Total $ 921.90 IT IS FURTHER ORDERED that defendants Johnsrud Transport, Inc., and Great West Casualty Company pay the costs of the proceeding in file number 894148 and that Johnsrud Transport, Inc., and The Hartford pay the costs of the proceeding in file number 894149, all pursuant to Division of Industrial Services Rule 343-4.33. IT IS FURTHER ORDERED that Johnsrud Transport, Inc., and Great West Casualty Company 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 Page 12 Copies To: Mr. Steven C. Jayne Attorney at Law 5835 Grand Avenue Suite 201 Des Moines, Iowa 50312 Mr. Stephen W. Spencer Attorney at Law Suite 300, Fleming Building P.O. Box 9130 Des Moines, Iowa 50306-9130 Mr. Marvin E. Duckworth Mr. Jeff M. Margolin Attorneys at Law Suite 111, Terrace Center 2700 Grand Avenue Des Moines, Iowa 50312 Page 1 before the iowa industrial commissioner ____________________________________________________________ : CHERYL CHRIS BURGESS, a/k/a : CHRIS BURGESS, : : Claimant, : : File No. 894169 vs. : : A R B I T R A T I O N FARMLAND FOODS, INC., : : D E C I S I O N Employer, : : and : : AETNA CASUALTY & SURETY : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Cheryl Christine Burgess, claimant, against Farmland Foods, employer, and Aetna Casualty and Surety Company, insurance carrier, to recover benefits under the Iowa Workers' Compensation Act as a result of an alleged injury sustained on or about November 11, 1988. This matter came on for hearing before the undersigned deputy industrial commissioner on October 15, 1990. The record was considered fully submitted at the close of the hearing, although leave was granted for the parties to file briefs. The record in this case consists of the testimony of the claimant, Scott Burgess, Jack McQuarter, Wayne Bush, Katie Hanigan, Denise Sonnichsen, and Tami Walker. Defendants lodged an objection to witness Jack McQuarter's testimony. The objection is based upon claimant's lack of supplemental answers 30 days prior to hearing to defendants' interrogatory which asked to identify witness with knowledge of claimant's injury. Claimant did list witness Jack McQuarter on the witness list which was served on defendants 15 days prior to hearing, as required by the Hearing Assignment Order. His testimony is allowed. Defendants also objected to claimant's exhibits B, C, D, E, K, and portions of exhibit H. The objection is based on claimant's failure to provide defendants copies of the exhibits, as required by the Hearing Assignment Order. The objection is sustained, and these exhibits were not considered. Claimant's objections to defendants' exhibits 1 through 5, are overruled. issues Page 2 Pursuant to the prehearing report and order approved October 15, 1990, the following issues are presented for resolution: 1. Whether claimant sustained an injury which arose out of and in the course of her employment; 2. Whether there is a causal connection between the alleged injury and the disability; 3. Whether claimant is entitled to temporary disability/healing period benefits or permanent partial or total disability benefits; 4. Whether claimant is entitled to medical benefits under Iowa Code section 85.27; 5. Whether defendants are entitled to a credit under Iowa Code section 85.38(2); 6. Whether defendants are entitled to recover costs for preparation of a motion to compel discovery totaling $100.00. findings of fact The undersigned deputy industrial commissioner, having heard the testimony and considered all the evidence, finds that: Claimant, Cheryl Chris Burgess, began working for defendant Farmland Foods in mid-1975. In 1977, she moved to California, but returned to Iowa, and to her employment with Farmland Foods in 1978, where she was a secretary to the research and development manager. Ross Jabaay was her supervisor. In 1982, claimant transferred to a job as a data entry operator, and continued to work in this position for more than 3 years. She then transferred to a secretarial position in the technical services department, where her supervisor was Wayne Bush. Eventually, she became an administrative assistant for the department. In 1986, Farmland underwent a major reorganization, which resulted in a large reduction of staff. Claimant's job was re-classified by Dr. Bush as a part-time position, but she continued to full-time by adding responsibilities from other departments. Claimant continued to work under this arrangement will November 10, 1988, when she took a leave of absence. She has not returned to work, other than some self-employment activities which involve making dried flower arrangements and selling them through a store in Denison, Iowa. Claimant's claim is based on her employment environment from 1986 through November 10, 1988, when she was under the supervision of Wayne Bush. During this time, claimant Page 3 became depressed over what she described as stressful working conditions. Claimant testified that on many occasions, her job duties demanded her to work overtime hours, and although Dr. Bush rarely authorized these hours, overtime work she performed for other departments was approved. Claimant felt she was given more responsibilities, but not enough time to complete her job duties without working overtime hours. During the time claimant was under Dr. Bush's supervision, she on several occasions attempted to change jobs within the company. Dr. Bush was concerned about her repeated attempts to leave his department, but did not reprimand her in any way. Claimant was also given a performance evaluation on January 25, 1988 by Dr. Bush. Both agreed it was a good, if not an excellent, evaluation, and claimant was given a raise based on her performance and longevity with the company. In January 1987, every person on staff was asked to fill out a position questionnaire that described their daily job responsibilities and duties, and long term goals. These questionnaires were sent to an independent evaluating company, which subsequently "graded" each position. Dr. Bush reviewed claimant's submitted questionnaire, and felt it accurately reflected her position, which was given a grade 21. Eventually, claimant applied for a position as secretary to Jake Jacoby, but did not get the job. On November 10, 1988, she expressed to Dr. Bush that the position with Jacoby was probably at least a grade 23 to 25. Claimant also stated that she was very unhappy with the grade 21 assigned to her position. Claimant manifested some physical problems during her tenure with Farmland Foods. As early as 1982, claimant sought medical treatment for inflammatory arthritis. Correspondence from Steven J. Wees, M.D., to Dennis W. Crabb, M.D., and Dr. Crabb's medical records indicate claimant suffers from inflammatory or rheumatoid arthritis. She has also suffered from stomach problems, which appear to be associated with the medication taken for the arthritic condition. analysis and conclusions of law The first issue to be addressed whether claimant sustained an injury which arose out of and in the course of her employment. Claimant has the burden of proving by a preponderance of the evidence that she received an injury on November 11, 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). An employee is entitled to compensation for any and all Page 4 personal injuries which arise out of and in the course of the employment. Iowa Code section 85.3(1). The standard for determining whether a mental injury arose out of and in the course of employment was discussed in Ohnemus v. John Deere Davenport Works, (Appeal Decision, February 26, 1990): 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 a physical condition caused by mental stimulus. The supreme court in Schreckengast v. Hammer Mills, Inc., 369 N.W.2d 800 (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 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, Page 5 240 N.W.2d 128, 130 (Wisc. 1976). In the instant case, a psychologist provided an opinion which causally connected claimant's mental condition to her work. Robert Joneson, Ph.D., voiced the following opinion on December 9, 1988: She basically denied any other significant stresses in her life at this time. She is a woman who does admit to some feelings of not being able to express herself very well. She describes her childhood years as a time when she was not allowed to express angry feelings nor to assert herself. For this reason she feels that it's still hard for her to do this and this may be a factor in her current situation in dealing with her supervisor. Mental Status Exam: This woman was alert and oriented. Her mood was depressed and her affect was appropriate to her mood. She denied any suicidal ideation. She does admit to significant sleeping difficulties and also to loss of appetite. I did not detect any disturbance of though or perception. Diagnostic Impression: Major depression. Summary: I believe that this woman is experiencing significant stress in dealing with her supervisor at work. According to Cheryl she has tried to alleviate this stress through appropriate channels at Farmland Foods but there has not been any resolution of the problem. At this time she is having difficulties sleeping as well as eating. She is extremely tearful and anxious and I believe that she is quite unable to work at this time. She is being continued on her antidepressant medication by her physician and I am continuing to see her in psychotherapy. I do believe that much of her current stress and depression is related to the situation between she and her supervisor. Dr. Joneson was deposed on May 11, 1990, and changed his impression of her condition to one of adjustment reaction, rather than major depression. (Claimant's Exhibit G, Pages 5 & 15). Claimant proved that her work was the factual cause of her mental condition. Claimant's own testimony relates a difficult relationship with Dr. Bush. She was a credible witness, and denied that any other experiences or problems in her life caused her to stop working for defendant Farmland Foods. But under the theory followed by this agency, she also must prove that her work was the legal cause of mental condition. The standard for making this determination is whether claimant proved that her mental condition resulted from a situation of greater dimensions than day to day Page 6 mental stresses and tensions which all employees must experience. The evidence in this case does not show that claimant was subjected to any greater stresses than other employees. Tami Walker, a witness no longer working for the company, was hired as a replacement for claimant's position after claimant left her employment, and took on additional responsibilities. She felt Dr. Bush treated his employees well. Another witness stated that she did not know of any instances where Dr. Bush ranted, raved or yelled at people. What is clear from the evidence provided is that claimant was unhappy with Dr. Bush's management style. Medical records from Dr. Wees substantiates claimant's attitude: 8-5-87 Cheryl is having quite a bit of trouble at work. It is a long story but things have been brewing and getting out of control over the past year and a half. Basically she hates her boss and I suspect he probably hates her. She says she is not getting credit for the work she does. She is looking for new jobs and feels she is being discriminated against because she is a woman.... There is no evidence to support the argument that claimant had to endure work-related stresses of greater magnitude than other employees. In fact, the evidence point to claimant's improved mental status prior to her leave of absence on November 10, 1988. Of particular note is Dr. Wees' medical record entry dated October 31, 1988: She continues to have troubles both with anxiety and depression though not as troublesome as these symptoms have been in the past. She had a good summer working with her flowers. Her husband is now working in Omaha laying hardwood floors. They may well move to Omaha and rent out the home on their acreage. With the improvement in her mental status she has regained some appetite and some weight. She said she had dropped down to about 102 pounds. She also admitted that she had had problems with one of her sons, who ran away from home; an alcoholic mother who required financial and physical help from claimant; and other situations which could cause stress in a person's daily life, and intensify stressful situations at work. It is difficult to determine whether claimant's day-to-day work environment was greater in dimension than situations all employees must experience. From the evidence provided, it is impossible to conclude that her employment was the legal cause of her Page 7 mental condition. In summary, claimant has failed to prove that she suffered an injury which arose out of and in the course of her employment. THEREFORE, it is ordered: Claimant takes nothing from these proceedings. Defendants pay all costs of this action pursuant to 343 IAC 4.33. Claimant shall pay defendants one hundred dollars ($100) for the costs incurred in preparing a motion to compel discovery. Signed and filed this ____ day of January, 1991. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Stephen M Engelhardt Attorney at Law 30 S 14th Street PO Box 217 Denison Iowa 51442 Page 8 Ms Judith Ann Higgs Attorney at Law 200 Home Federal Building PO Box 3086 Sioux City Iowa 51102 2204 Filed January 22, 1991 PATRICIA J. LANTZ before the iowa industrial commissioner ____________________________________________________________ : CHERYL CHRIS BURGESS, a/k/a : CHRIS BURGESS, : : Claimant, : : vs. : : File No. 894169 FARMLAND FOODS, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : AETNA CASUALTY & SURETY : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 2204 Claimant worked as an administrative assistant at Farmland Foods. On November 10, 1988, claimant took a leave of absence due to stress-related emotional problems, which was diagnosed as adjustment reaction. A psychologist found a relationship between claimant's condition and her employment. Claimant testimony was credible, and she blamed her condition on the employment, and proved factual causation between her employment and mental condition. However, claimant failed to prove by a preponderance that her mental condition was the result of a work situation of greater dimensions than the day to day mental stresses and tensions which all employees must experience. Benefits denied. Page 1 before the iowa industrial commissioner ____________________________________________________________ : DEMA K. GIRE, : : Claimant, : : vs. : : File No. 894174 ACCO BABCOCK, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CIGNA INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ introduction This is a proceeding in arbitration brought by Dema K. Gire, claimant, against Acco Babcock Company, employer, and Cigna Insurance, insurance carrier, defendants, for benefits as the result of an injury which occurred on April 9, 1987. A hearing was held in Ottumwa, Iowa, on February 23, 1990, and the case was fully submitted at the close of the hearing. Claimant was represented by William Bauer. Defendants were represented by Charles E. Cutler. The record consists of the testimony of Dema K. Gire, claimant; Judith Ann Cox, personnel and purchasing officer; Kent Jayne, rehabilitation supervisor and vocational consultant; joint exhibit 1, pages 1 through 69; claimant's exhibit 1, pages 1 through 23; employer's exhibit 1, pages 1 through 9; and employer's exhibit 2, pages 1 through 3. Both attorneys submitted excellent posthearing briefs. The deputy ordered a transcript of the hearing. stipulations The parties stipulated that claimant sustained an injury on April 9, 1987, which arose out of and in the course of employment with employer. issues The parties submitted the following issues for determination at the time of the hearing: Whether the injury was the cause of temporary disability. Whether the injury was the cause of permanent disability. Whether claimant is entitled to permanent disability benefits, and if so, the extent of benefits to which he is Page 2 entitled. Whether claimant is entitled to penalty benefits under Iowa Code section 86.13(4). findings of fact causal connection-temporary disability-permanent disability It is determined that the injury of April 9, 1987, was the cause of both temporary and permanent disability. Claimant injured her lower back while lifting a box 10-foot long which weighed somewhere between 130 and 170 pounds. She reported the injury to the foreman. She saw Terry J. Sutton, M.D., the company doctor (who was also her personal physician) the following day on April 10, 1987. Dr. Sutton recorded a lumbosacral strain and prescribed bed rest, heat and medication. Dr. Sutton took her off work for two days. Claimant returned to the same job without restrictions even though her back was still sore. She testified that her back became progressively worse and she developed pain in her legs by October, November 1987. Claimant denied and there is no evidence of any prior, subsequent or intervening injuries, accidents or incidents. Claimant returned to see Dr. Sutton on November 13, 1987. An x-ray of the lumbosacral spine on the same date was negative. However, a lumbar CT scan on December 4, 1987, disclosed both anterior and posterior herniated nucleus pulposus at the L4-5 level. Dr. Sutton referred claimant to Donald D. Berg, M.D., an orthopedic surgeon, who saw claimant on December 8, 1987; December 21, 1987; and January 1, 1988. Dr. Berg treated claimant on the basis of the April 1987 lifting injury. No other cause for her back complaints was suggested or mentioned. Dr. Sutton then referred claimant to Edward G. Law, M.D., who saw claimant on January 27, 1988. He treated claimant on the basis of the history of the April 1987 lifting injury at work. No other cause for claimant's complaints were suggested or mentioned. An EMG did not demonstrate radiculopathy. The physical therapist treated claimant on the basis of the April 1987 injury at work. Dr. Law tried a physical therapy and work hardening program. Claimant returned to work for approximately two weeks in April of 1988 without restrictions. She returned to heavy work again lifting 75-pound bars between 100 and 200 times per day. Dr. Law concluded that claimant would not be able to return to factory work again because the job was just too strenuous for her bad L4-5 disc. He recommended vocational rehabilitation and a job change (joint exhibit 1, page 22). Dr. Sutton also concurred in this recommendation (jt. ex. 1, p. 11). Dr. Law diagnosed that claimant had a bulging L4-5 lumbar disc, symmetric bulging, circumferentially with some very mild impingement. In a surgeon's report, signed by Dr. Law, he described Page 3 the nature and extent of injury as follows, "In 4/87 while lifting heavy metal she had acute onset of pain in back & legs. She has trunk stiffness & weakness." (jt. ex. 1, p. 28). This report asks the following question, "Is accident above referred to the only cause of patient's condition?" Dr. Law answered, "Yes." (jt. ex. 1, p. 28). Thus, the entire sequence of medical treatment flows from the injury date of April 9, 1987. All of the doctors were selected by the employer and insurance carrier. They all proceeded on the basis of this work injury. In the surgeon's report, Dr. Law specifically stated that the only cause of the patient's condition was this accident. Therefore, it is determined that the injury of April 9, 1987, was the cause of both temporary and permanent disability. entitlement-temporary disability benefits The parties stipulated (transcript page 5) and the evidence supports that claimant is entitled to temporary disability benefits from November 13, 1987 through August 19, 1988, when Dr. Law gave an impairment rating, imposed permanent work restrictions and discharged claimant from his care (jt. ex. 1, p. 25). Therefore, it is determined that claimant is entitled to 40.143 weeks of healing period benefits. entitlement-permanent disability It is determined that claimant has sustained a 35 percent industrial disability to the body as a whole and is entitled to 175 weeks of permanent partial disability benefits. In Dr. Law's final letter, on August 19, 1988, he stated: I believe that Dema Gire's healing period is now ended. I believe that she is left with a permanent partial impairment rating of approximately 10% because of the fact that she has permanent work restrictions and will no longer be able to work at any of the trades at which she has been employed at in the past and for which she has training and previous work experience. She has a bulging L4-5 disc and has a 10% chance of developing a disc herniation in the future. I think she has permanent work restrictions of no lifting more than 50 pounds, no bending, twisting, or stooping. I believe that she would never be able to do any type of factory, machinist, or welding work in the future. I think she would do quite well if she Page 4 were retrained or re-educated to do such jobs as a repiratory [sic] therapist, or a dental assistant. She has no return appointment scheduled at this time. (joint exhibit 1, page 25) Thus, claimant is foreclosed from performing her past employments of machinist and welder. Michael v. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218, 220 (Appeal Decision January 30, 1979); Rohrberg v. Griffin Pipe Products Co., I Iowa Industrial Commissioner Report 282 (1984). Defendants complain that the impairment rating is not stated to be based upon the Guides to the Evaluation of Permanent Impairment, published by the American Medical Association nor is it based upon the Orthopedic Surgeon's Guide. Defendants further contend that it appears to be more of an industrial disability rating than a functional or physical permanent impairment rating. Dr. Law is the only doctor who gave an impairment rating. His impairment rating is placed in evidence as a joint exhibit. Neither defendants nor claimant asked for a clarification of his rating by way of correspondence. Neither party chose to depose Dr. Law. Therefore, Dr. Law's permanent impairment rating is accepted as the permanent impairment rating of a medical doctor and the treating physician of claimant for the purpose of determining industrial disability in this case. Defendant employer terminated claimant by a letter dated October 7, 1988, which stated as follows, "Your termination is based on Dr. Edward Law's letter of August 19, 1988 in which Dr. Law states your healing period is ended and will never be able to do any type of factory, machinist or welding work in the future." (claimant's ex. 1). Claimant's job as a girder fabricator, was agreed by both parties to be heavy work which required claimant to lift between 50 and 100 pounds, nevertheless, the fact that employer has no work which claimant can do is evidence of a substantial disability. Professor Larson states, "It is hardly necessary to labor the inconsistency of permitting an employer to fire a man for physical defects caused by his own employment conditions, and then to disclaim compensation liability by presenting medical evidence that the man is not really disabled after all." 2 Larson Workmen's Compensation Law, section 57.61(b) at pages 10-173 and 10-176. Claimant, born November 3, 1951, was 35 years old at the time of the injury, 38 years old at the time of the hearing and 39 years old at the time of this decision. Thus, claimant's disability is more serious than it would be for an older or younger employee because it occurred at the peak years in her earnings history. Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report of the Industrial Commissioner 34 (Appeal Decision 1979); Walton v. B & H Tank Corp., II Iowa Industrial Commissioner Report 426 (1981); McCoy v. Donaldson Company, Inc., file numbers 782670 & 805200 (Appeal Decision 1989). Page 5 Claimant completed 11 years of education, but quit high school in the twelfth or senior year. There was no evidence of any additional education or training. She did obtain her GED with the assistance of defendants' vocational rehabilitation consultant. Claimant was tested extensively for additional education and training and scored average or better in most areas. Therefore, at age 39, retraining is definitely a course of action which she could take. Retraining is one of the factors considered in determining industrial disability. Conrad v. Marquette School, Inc., IV Iowa Industrial Commissioner Report 74, 89 (1984). Retraining is a factor which increases industrial disability because claimant is precluded from working full and sometimes part-time during retaining in addition to the cost of tuition, books and fees. With the assistance of defendants' vocational rehabilitation consultant, claimant did enroll in the health information technology program at Indian Hills Community College. The consultant helped claimant obtain grants from the Joint Training Partnership Act (JTPA). Claimant attended the initial courses in her home town of Fairfield, but was unable to continue the course because she did not have transportation for the additional courses which were taught in Ottumwa. Claimant started school in June of 1988. When she missed the summer course in 1988 because of no transportation and failed to reapply for the JTPA grant within 90 days, she lost JTPA funding. From the fall of 1988 through the hearing date on February 23, 1990, claimant's chief employment has been babysitting at $1.25 per hour. Claimant did work a few days as a telemarketer selling dinners by telephone and earned $100. Claimant contends that she cannot get a job because she does not have the training and she cannot take the training because she does not have transportation. Claimant submitted her name to Job Service, but expected them to call her with suitable opportunities. Claimant only tried to find employment at two places during this entire 15-month period. Thus, claimant's motivation to either attend school or return to work is seriously questioned. An employee making a claim for industrial disability will benefit by showing some attempt to find work. Hild v. Natkin & Co., I Iowa Industrial Commissioner Report 144 (Appeal Decision 1981); Beintema v. Sioux City Engineering Co., II Iowa Industrial Commissioner Report 24 (1981); Cory v. Northwestern States Portland Cement Company, Thirty-third Biennial Report of the Industrial Commissioner 104 (1976). Since claimant has not sincerely sought any employment within the limits permitted by Dr. Law, her potential for the labor market has not been tested and makes it more difficult to ascertain how much industrial disability she has actually sustained. Schofield v. Iowa Beef Processors, Inc., II Iowa Industrial Commissioner Report 334, 336 (1981). Page 6 Employers are responsible for a reduction in earning capacity caused by the injury. They are not responsible for a reduction in actual earnings because the employee resists returning to work. Williams v. Firestone Tire and Rubber Co., III Iowa Industrial Commissioner Report 279 (1982). Defendants' vocational rehabilitation witness at the time of the hearing testified about a number of job openings in the general area at the time claimant was terminated, but admitted that the vocational consultant at the time of her termination did not attempt to place claimant in any of these jobs and he did not know whether they required transportation in order to be able to perform them. At the time claimant started to school both claimant and the vocational rehabilitation consultant at that time knew that claimant did not have transportation in order to commute to Ottumwa which would eventually be required in order to complete the 18-month course. Nevertheless, claimant, with the recommendation of the specialist, began the course which she was not able to complete. Defendants contended that if claimant completed the health information technology program she could earn up to $20,000 a year or more. Statistics from the college showed a high placement rate for those who graduate, but the vocational rehabilitation specialist did not know how many of the beginning class actually completed the course. Whether claimant, in her poverty, and without transportation, and a heavy labor factory work background, at age 39, could have completed this course and obtained one of these high paying jobs, is too speculative to be considered as realistic. Stewart v. Crouse Cartage, file number 738644 (Appeal Decision filed February 20, 1987); Umpress v. Armstrong Rubber Co., file number 723184 (Appeal Decision filed August 27, 1987). Claimant said her investigation showed that if she completed the course she could earn $5 per hour and possibly as much as $7 per hour. This would still result in a 30 percent actual wage loss if claimant did complete the course and got a job for as much as $7 per hour. If she only earned $5 per hour, it would constitute a 50 percent loss in actual earnings. Claimant testified that her disabilities are that she can no longer play basketball, bowl, lift over 50 pounds or bend, stoop or twist. She testified that she still has occasional pain in her back. Claimant received no treatment for this injury after October 18, 1988. She hires snow removal and yard work done. Wherefore, based upon (1) the foregoing factors; (2) all of the factors used to determine industrial disability, Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 State of Iowa Industrial Commissioner Decisions 654, 658 (Appeal Decision February 28, 1985), Christensen v. Hagen, Inc., vol. I, no. 3, State of Iowa Industrial Commissioner Decisions 529 (Appeal Decision March 26, 1985); and (3) employing agency expertise [[Iowa Administrative Procedure Act 17A.14(5)]; it is determined that claimant has sustained an industrial disability of 35 percent to the body as a Page 7 whole and that claimant is entitled to 175 weeks of permanent partial disability benefits. penalty benefits It is determined that claimant is not entitled to any penalty benefits under Iowa Code section 86.13(4) for delay in commencement or termination of benefits without reasonable or probable cause or excuse. Defendants paid all of claimant's medical bills. Defendants paid claimant's healing period benefits from November 13, 1987 through August 19, 1988. Defendants paid claimant 50 weeks of permanent partial disability benefits based upon Dr. Law's impairment rating of 10 percent to the body as a whole. At the same time, defendants have disputed the causal connection of the injury of April 9, 1987, to claimant's bulging disc which foreclosed her from all past employments and brought about her termination from this employer. The burden of proof of unreasonableness is upon the claimant. Curtis v. Swift Independent Packing, IV Iowa Industrial Commissioner Report 88, 93 (1984). Generally, penalty benefits are not awarded where there is a legitimate dispute on either causation or the extent of impairment. Just v. HyGrade Food Products Corp., IV Iowa Industrial Commissioner Reports 190 (Appeal Decision 1984). Likewise, in more recent times it has been determined that penalty benefits are not due where defendants assert a claim that is fairly debatable. Seydel v. U of I Physical Plant, Appeal Decision November 1, 1989; Stanley v. Wilson Foods, file number 753405 (Appeal Decision August 23 1990). Defendants have seriously disputed causation because in none of the written correspondence from Dr. Law, Dr. Berg or Dr. Sutton, is there a clear, specific statement that this injury is the cause of the disability. Eventually, claimant did prevail on the causation issue because of the answer in the standard form surgeon's report which states that the injury was the only cause of the patient's condition. However, defendants' position was not unreasonable in view of the clarity of Dr. Law on all of the other points involved in the case, but on which he made no specific statement of causation in any of his letters. Causal connection was fairly debatable. The fact that claimant lost two days of work at the time of the injury on April 9, 1987, and then was able to work for seven months, until November 13, 1987; gave defendants reasonable grounds to dispute causation, especially in view of the fact that she had performed heavy work of this nature most of her adult life, but defendants never established that claimant suffered any prior, subsequent or intervening injuries, accidents or incidents which would have caused this disability. Furthermore, defendants have contested the amount of industrial disability (1) due to the manner in which Dr. Law expressed his permanent impairment rating and (2) due to claimant's apparent lack of incentive and motivation to Page 8 either attend school or diligently and seriously search for a job that pays a reasonable amount of income. Therefore, it is determined that claimant is not entitled to penalty benefits under Iowa Code section 86.13(4). conclusions of law WHEREFORE, based upon the foregoing and following principles of law, these conclusions of law are made: That the injury of April 9, 1987, was the cause of temporary disability. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945). That claimant is entitled to 40.143 weeks of healing period benefits for the period from November 13, 1987 through August 19, 1988, as stipulated to by the parties. Iowa Code section 85.34(1). That the injury of April 9, 1987, was the cause of permanent disability. Bodish, 257 Iowa 516, 133 N.W.2d 867; Lindahl, 236 Iowa 296 18 N.W.2d 607. That claimant sustained a 35 percent industrial disability to the body as a whole. Diederich v. Tri-City R. Co., 219 Iowa 587, 593, 258 N.W. 899 (1935); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). That claimant is entitled to 175 weeks of permanent partial disability benefits. Iowa Code section 85.34(2)(u). That claimant is not entitled to penalty benefits. Iowa Code section 86.13(4). order THEREFORE, IT IS ORDERED: That defendants pay to claimant forty point one four three (40.143) weeks of healing period benefits at the rate of two hundred fifty-eight and 90/100 dollars ($258.90) per week in the total amount of ten thousand three hundred ninety-three and 02/100 dollars ($10,393.02) commencing on November 13, 1987. That defendants pay to claimant one hundred seventy-five (175) weeks of permanent partial disability benefits at the rate of two hundred fifty-eight and 90/100 dollars ($258.90) per week in the total amount of forty-five thousand three hundred seven and 50/100 dollars Page 9 ($45,307.50) commencing on August 20, 1988. That defendants are entitled to a credit for all weekly benefits paid to claimant prior to hearing. It was stipulated that defendants are entitled to a credit for fifty (50) weeks of permanent partial disability benefits paid to claimant at the rate of two hundred thirty and 70/100 dollars ($230.70) per week. It also would appear that defendants are entitled to a credit for the healing period benefits paid to claimant prior to hearing, but the amount of the weekly payment and the precise period of payment was not specified in the prehearing report, but was asserted at the beginning of the hearing (tr. p. 7). That interest will accrue pursuant to Iowa Code section 85.30. That all accrued benefits will be paid in a lump sum. That the costs of this action are charged to defendants. This includes the one hundred eleven and 50/100 dollars ($111.50) stipulated to by the parties at the commencement of the hearing (tr. p. 8). and also includes the attendance of the court reporter at hearing. Rule 343 IAC 4.33. It also includes the cost of the transcript. Iowa Code section 86.19(1). That defendants file claim activity reports as requested by this agency. Rule 343 IAC 3.1. Signed and filed this ____ day of July, 1991. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. William Bauer Attorney at Law 100 Valley St. PO Box 517 Burlington, Iowa 52601 Mr. Charles Cutler Attorney at Law 729 Insurance Exchange Bldg. 505 Fifth Ave. Des Moines, Iowa 50309-2313 Page 1 51401 51402.40 51802 51803 54000.2 Filed July 9, 1991 Walter R. McManus, Jr. before the iowa industrial commissioner ____________________________________________________________ : DEMA K. GIRE, : : Claimant, : : vs. : : File No. 894174 ACCO BABCOCK, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CIGNA INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 51401 51402.40 Claimant proved the injury was the cause of her temporary and permanent disability. Even though the treating physician did not address causation in any of his letters, he did indicate on a standard form surgeon's report that the injury was the only cause of claimant's disability. This evidence was not controverted, contradicted, rebutted or refuted. No other cause was in evidence. The sequence of events of the medical treatment flowed from the stipulated injury. All of the medical practitioners, who were selected by defendants, proceeded on the history of this injury in administering treatment to claimant. 51802 Claimant awarded healing period for the period of time stipulated to by the parties. 51803 Claimant awarded 35 percent industrial disability. Claimant, age 39, was at the peak of her earnings career. She had an eleventh grade education, but obtained a GED with the assistance of defendants' vocational rehabilitation counselor. Claimant was retrainable based on her test scores, but retraining would increase industrial disability because of the time lost from compensable work while attending school plus school costs of tuition, books and fees. Claimant was fired because she could not do her job or Page 2 former jobs because of the doctor's restrictions of no lifting over 50 pounds, no bending, twisting or stooping. Claimant's actual earnings loss was estimated to range between 30 percent and 50 percent. A projected income if she completed a health technology course and could get a job at the highest salary was rejected as too speculative to be realistic. Claimant had a nonoperated herniated disc. The physician's 10 percent rating was phrased in terms of industrial disability rather than permanent physical impairment, but was accepted as the impairment rating since it was a joint exhibit and neither party sought to obtain a clarification of it. Claimant was forced to quit the training course because she had no transportation, but failed to seek any retraining or seriously seek any employment within her restrictions. A satisfactory explanation was not given for claimant's lack of motivation. 54000.2 No penalty benefits awarded. Causation and the amount of permanent disability were fairly debatable. 1402.20, 1803, 2201 3202 Filed April 23, 1990 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : KURT A. LANG, : : Claimant, : : vs. : : File Nos. 894185 FARMSTEAD FOODS, : 894186 : Employer, : A R B I T R A T I O N : and : D E C I S I O N : AETNA CASUALTY & SURETY : COMPANY, : : Insurance Carrier, : : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : ____________________________________________________________ 1402.20, 1803, 2201, 3202 Claimant left work by reason of cumulative injury to right hand -- carpal tunnel syndrome. Although asymptomatic, physician found carpal tunnel syndrome to left hand also, and performed bilateral surgery. Claimant did not return to work between surgeries. Following Himschoot v. Montezuma Mfg., (672778) and Johnson v. George A. Hormel & Co., (782796, 792733), it was held claimant suffered only one injury on the day he left work. Second Injury Fund benefits were denied and claimant was compensated under 85.34(2)(s) pursuant to Simbro. Page 1 before the iowa industrial commissioner ____________________________________________________________ : KURT A. LANG, : : Claimant, : : vs. : : File Nos. 894185 FARMSTEAD FOODS, : 894186 : Employer, : A R B I T R A T I O N : and : D E C I S I O N : AETNA CASUALTY & SURETY : COMPANY, : : Insurance Carrier, : : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : ____________________________________________________________ statement of the case These are proceedings in arbitration brought by claimant Kurt A. Lang against defendant employer Farmland Foods, defendant insurance carrier Aetna Casualty & Surety Company and defendant Second Injury Fund of Iowa to recover benefits under the Iowa Workers' Compensation Act as the result of injuries allegedly sustained on March 15, 1988 (894185: right hand) and April 30, 1988 (894186: left hand). These matters came on for hearing before the undersigned in Storm Lake, Iowa, on April 11, 1990. The cause was considered fully submitted at the close of hearing. The record in this proceeding consists of claimant's exhibits 1 through 33, Second Injury Fund exhibit A and the testimony of claimant and Mary Tigges. issues Pursuant to the prehearing report submitted by the parties and approved at hearing, the following issues have been stipulated: that an employment relationship existed between claimant and employer at the time of each alleged injury; that claimant sustained an injury on March 15, 1988 and April 30, 1988 arising out of and in the course of that employment (Second Injury Fund of Iowa disputes this issue); that the alleged injury or injuries caused temporary and permanent disability; that claimant is entitled to compensation for healing period from July 14 through July Page 2 18, August 5 through October 10, and December 27, 1988 through January 4, 1989; that claimant has sustained a scheduled member disability to the hands and the commencement date for permanent partial disability is January 5, 1989; that the appropriate rate of weekly compensation is $198.67, based upon gross weekly earnings of $285.17, a marital status of married and entitlement to five exemptions; that affirmative defenses are waived; that all requested medical benefits have been or will be paid by defendants except for P. L. Hildebrand, M.D., authorization for that treatment being disputed; that defendant employer and insurance carrier paid 12 weeks, 2 days healing period and 19 weeks permanent partial disability at the stipulated rate prior to hearing. Issues presented for resolution include: as to Second Injury Fund, whether claimant sustained one or two injuries and the date thereof; the extent of claimant's entitlement to compensation for permanent disability. Based on injury dates in March and April, 1988, the parties' stipulation as to the rate of weekly benefits cannot be accepted. The "Guide to Iowa Workers' Compensation Claim Handling" published by this agency and effective July 1, 1987, reflects that an individual with claimant's earnings, marital status and exemptions is entitled to a rate of $198.06. However, if the injury is found to have occurred on July 14, 1988, the "Guide" effective July 1, 1988 reflects that the correct rate for an individual situated as is claimant is indeed $198.67. review of the evidence Claimant, 28 years of age, testified that his health was good when he began employment with defendant on November 4, 1987. Defendant operates a meat packing business. Claimant worked as a fatter and boner using a wizard knife to shave fat from meat, a repetitive motion job. Claimant indicated that he began developing problems with his right hand while operating the wizard knife. This included tingling in the fingers and soreness in the wrist and arm. He reported to the company nurse and was sent to a physician who diagnosed sprain and returned claimant to light-duty work. Claimant continued having problems with his right hand, and after approximately a week and a half continued going to the nurse. He requested an examination by a different physician, but was refused. While sick with the flu, claimant visited P. L. Hildebrand, M.D., to obtain a slip releasing him to return to work. While there, claimant complained of pain to his right hand as an incidental concern. Dr. Hildebrand took x-rays of both hands, followed by EMG tests. At this time, approximately April 1, 1988, claimant still had developed no problems with his left hand. As a result of the EMG tests, Dr. Hildebrand diagnosed carpal tunnel syndrome to each hand, although the left hand was still asymptomatic. Because eventual problems were Page 3 anticipated with the left hand, surgery was done on each extremity. Claimant returned to work, but both hands continued to be sore. Claimant was eventually put on permanent light-duty work and finally discharged by approximately August 7, 1989. Claimant currently complains that his right hand becomes sore doing knife work (he is currently employed as a cook) and that his left hand is sore most of the time, especially in the scar on his wrist. On cross-examination, claimant noted that his left hand problems never cause him to lose work, since he had not returned to work following his right carpal tunnel syndrome surgery before undergoing similar surgery to the left hand. Claimant had never had pain to the left hand or symptoms of any kind prior to that surgery. Claimant also conceded that he did not know whether the various billings shown on exhibit 33 (Dr. Hildebrand, the only medical expense in dispute) was for treatment of his influenza or his hand. With respect to the nurse's notes of July 15 and August 4, 1988 (relating to complaints to both hands), claimant denied that the notes were accurate. Mary Tigges testified to being a registered nurse employed by defendant employer as an occupational health nurse. She testified that her notes show that claimant made no visits between March 30 and July 15, 1988. Therefore, she concluded that claimant did not come into the nurse's quarters to request seeing a new physician. She testified further that it was very rare for the nurse's department to fail to chart visits relating to potential work-related problems, such as potential repetitive motion injuries of the hands. Claimant's attendance records for calendar year 1988 are in evidence as Second Injury Fund exhibit A. They reflect that claimant missed no days in March, 1988 and was ill on April 1, 1988. He was ill again on May 4, two days in June, and missed three days in July prior to July 13, 1988. Thereafter, claimant missed substantial time as per the parties' stipulation. Chart notes of Donald Soll, M.D., dated March 31, 1988, show that claimant was seen for a check on his right hand and arm as he had been having pain and difficulty making a fist. Dr. Soll found no evidence of carpal tunnel syndrome and put claimant on light-duty work for two weeks. Company nurse's notes of March 30, 1988, reflect that claimant complained of a sore right shoulder and numbness of the hand and arm. Further notes of July 15, 1988 reflect that claimant was seen by Dr. Hildebrand for problems with numbness and pain in both hands, but that Dr. Soll had been seen in March for problems with the right hand. Page 4 Records of Midlands Family Medicine show that "PLH" (apparently Dr. Hildebrand) noted on July 13, 1988 that claimant presented on that date with bilateral carpal tunnel syndrome and that EMG studies were recommended. Dr. Hildebrand took claimant off work the same date. Claimant was also seen by Thomas P. Ferlic, M.D. Dr. Ferlic opined on June 23 and July 14, 1989, that claimant had sustained a five percent disability to each hand by reason of his carpal tunnel surgical releases. applicable law and analysis The key issue in this case is whether claimant sustained one injury or two separate injuries and the date or dates thereof. There is no indication whatsoever in the record that claimant suffered any traumatic injury to his hands. Rather, he developed tingling and pain to the right following extended repetitive motion at work, but when the diagnosis was fortuitously made by Dr. Hildebrand, claimant found that he had asymptomatic carpal tunnel syndrome to the left hand. In cases of cumulative injury, the injury is deemed to have occurred for workers' compensation purposes when because of pain or physical inability the claimant is no longer able to work. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). In this case, claimant developed pain to the right hand gradually, first making complaint on or about March 31, 1988. However, the record further reflects that even though he had begun developing pain, he was not forced to miss work due to pain or disability. The first claimant was taken off work was July 14, 1988, after Dr. Hildebrand diagnosed bilateral carpal tunnel syndrome, although the left was and remained asymptomatic until following surgery. The injury date for claimant's right-sided carpal tunnel syndrome is therefore July 14, 1988. But what of the left side? Claimant was never forced to leave work because of left-sided pain since his asymptomatic condition was discovered in the absence of any complaints on his part. However, it seems absurd to this writer to arbitrarily choose a different date for the "second" injury to the left side other than the date of diagnosis and when claimant was taken off work. The industrial commissioner has previously held that bilateral carpal tunnel syndrome resulting from one gradual injury process constitutes the loss of two members from one accident and is evaluated on a functional basis under Iowa Code section 85.34(2)(s). Himschoot v. Montezuma Mfg., file number 672778 (App. Decn. April 15, 1988); Johnson v. George A. Hormel & Co., file numbers 782796 and 792733 (App. Decn. June 21, 1988). On the basis of the foregoing, it is held that claimant has failed to meet his burden of proof in establishing that he has sustained two separate injuries. He has sustained one injury, bilateral carpal tunnel syndrome, and the injury Page 5 date is July 14, 1988. Therefore, there is no liability on the part of the Second Injury Fund of Iowa. The undisputed evidence in this case is that claimant has sustained a five percent functional disability to each hand. Pursuant to the Guides to the Evaluation of Permanent Impairment published by the American Medical Association, a five percent impairment of the hand is equivalent to a five percent impairment of the upper extremity and a five percent impairment of the upper extremity is equivalent to a three percent impairment of the whole person. The combined values chart published in that publication reflects that two separate three percent whole body impairments is equivalent to a six percent combined value. Pursuant to Iowa Code section 85.34(2)(s), the loss of both hands caused by a single accident shall equal 500 weeks and be compensated as such. However, benefits under that section are calculated on a functional impairment basis and not an industrial disability basis. Simbro v. Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983). Six percent of 500 weeks is 30 weeks. As defendants have paid claimant only 19 weeks of permanent partial disability prior to hearing, he shall be awarded an additional 11 weeks. Because the injury date has been determined to be July 14, 1988, claimant's rate of compensation is $198.67, based on the "Guides to Iowa Workers' Compensation Claim Handling" effective July 1, 1988. Claimant seeks reimbursement of a total of $63.70 in charges of Community Memorial Hospital. These expenses were not authorized by defendants. While claimant alleges that he unsuccessfully sought further examination after March 31, 1988, the undersigned finds defendants chart notes to be more reliable. There can be little argument but that a meat packing business, and especially the nurse's station attached thereto, is well acquainted with the symptomatology of carpal tunnel syndrome and other repetitive motion ailments. Mary Tigges testified that special care would be made to mark such complaints in the nurse's notes. No such request on claimant's part appears. Particularly after an individual had already made one complaint and been sent to a physician, it strikes this writer as most unlikely that further complaints and requests for medical examination would not be recorded in the individual's chart. It is therefore concluded that claimant's visit to Dr. Hildebrand (originally, for an unrelated problem) was unauthorized and not compensable. Jeffrey v. Jack A. Schroeder, Inc., 32nd Biennial Report of the Iowa Industrial Commissioner 121 (1974). findings of fact THEREFORE, based on the evidence presented, the following ultimate facts are found: 1. Claimant began suffering symptoms of pain and numbness to the right hand prior to March 31, 1988, when he first made complaint. Page 6 2. Claimant was diagnosed as suffering bilateral carpal tunnel syndrome on July 13, 1988, even though he was asymptomatic on the left side at that time. 3. Thereafter, claimant underwent surgery for carpal tunnel syndrome on each hand; claimant's left hand remained asymptomatic up to the time of surgery, although he has suffered pain thereafter. 4. Claimant first left work by reason of carpal tunnel syndrome on July 14, 1988. 5. Claimant's visit to Dr. Hildebrand on July 13, 1988 was unauthorized by defendants. Defendants were never asked to provide additional treatment. 6. Claimant has sustained a functional impairment of five percent to each hand. Using the charts and combined values table published by the American Medical Association in its Guides to the Evaluation of Permanent Impairment this corresponds to a six percent impairment of the body as a whole. conclusions of law WHEREFORE, based on the principles of law previously cited, the following conclusions of law are made: 1. Claimant sustained a single injury, bilateral carpal tunnel syndrome, on July 14, 1988. 2. Because claimant did not sustain a second injury, there is no liability on the part of Second Injury Fund of Iowa. 3. Claimant's compensation must be calculated on the basis of Iowa Code section 85.34(2)(s), on the basis of 500 weeks, but not industrially. 4. Claimant's appropriate rate of compensation is $198.67 per week. 5. Defendants are entitled to credit for all healing period and permanent partial disability paid voluntarily to claimant prior to hearing. ORDER THEREFORE, IT IS ORDERED: Claimant shall take nothing from this proceeding with respect to defendant Second Injury Fund of Iowa. Defendants Farmland Foods and Aetna Casualty & Surety Company are to pay unto claimant an additional eleven (11) weeks of permanent partial disability benefits at the rate of one hundred ninety-eight and 67/100 dollars ($198.67) per week, totalling two thousand one hundred eighty-five and 37/100 dollars ($2,185.37). Page 7 As all benefits ordered herein have accrued, they shall be paid to claimant as a lump sum together with statutory interest pursuant to Iowa Code section 85.30. Costs of this action shall be assessed to defendants Farmland Foods and Aetna Casualty & Surety Company pursuant to Division of Industrial Services Rule 343-4.33. Defendants shall 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. ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Harry H. Smith Attorney at Law P.O. Box 1194 Sioux City, Iowa 51102 Mr. Glenn Goodwin Attorney at Law 4th Floor, Equitable Building Des Moines, Iowa 50309 Ms. Eleanor E. Lynn Mr. Dean Lerner Assistant Attorneys General Tort Claims Division Hoover State Office Building Des Moines, Iowa 50319 BEFORE THE IOWA INDUSTRIAL COMMISSIONER SCOTT FROST, Claimant, File No. 894189 vs. A R B I T R A T I O N FABRICATING MACHINE SYSTEMS, D E C I S I O N Employer, F I L E D and MAY 14 1990 NEW HAMPSHIRE CO., INDUSTRIAL SERVICES Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Scott Frost, claimant, against Fabricating Machine Systems, employer, and New Hampshire Insurance Company, insurance carrier, to recover benefits under the Iowa Workers' Compensation Act as the result of an alleged injury of May 27, 1988. This matter came on for hearing before the undersigned deputy industrial commissioner April 23, 1990 and was considered fully submitted upon the close of the hearing. The record in this case consists of the testimony of claimant, Shawna Frost and Mindy Youngberg and joint exhibits I through IV, inclusive. ISSUES Pursuant to the prehearing report and order submitted and approved April 23, 1990, the following issues are presented for determination: 1. Whether claimant sustained an injury on May 27, 1988, which arose out of and in the course of his employment; 2. Whether claimant's alleged work injury is the cause of the disability on which he now bases his claim; 3. Claimant's entitlement to temporary total disability benefits as the parties have stipulated that the alleged work injury is not the cause of a permanent disability; and, 4. Claimant's entitlement to medical benefits pursuant to Iowa Code section 85.27. FACTS PRESENTED Claimant testified that on Friday, May 27, 1988, at approximately 10:00 p.m. he was injured when a wire wheel on a grinder caught on a nipple and hit him in the groin. Claimant explained that the sharp pain he immediately felt subsided somewhat and that because he did not believe he was injured (having checked himself out in the bathroom), he did not report the incident to any supervisor. Claimant maintained he remained at home with his parents all weekend, applying ice packs to the area, until the "excruciating pain" forced him to the hospital on Sunday where he eventually underwent surgery for a traumatic rupture of the right testis. On cross-examination, claimant acknowledged he was aware of the employer's procedure for reporting injuries and that he had not utilized that procedure in this instance, although he had utilized it in the past. Shawna Frost, who identified herself as claimant's ex-sister-in-law, having been married to claimant's brother Allen, testified that, on the Saturday before Memorial Day in 1988, claimant was partying with a group of people at a park and, during the course of the gathering, began wrestling with his brother Allen. Ms. Frost stated she observed claimant get kneed in the groin and run off into the woods. Ms. Frost explained she tried to find claimant but could not, although she saw him later at a bar and heard Allen tell claimant he should "turn it in" that he had been injured at work. Mindy Youngberg, who identified herself as Shawna Frost's sister, testified that she saw claimant wrestling at the park on Saturday, although she did not see him get injured. Ms. Youngberg stated that she saw claimant later that evening at a house party (after the party at the park, but before the group went to the bar) and that claimant appeared to be fine. Michael Strope, who identified himself as a night supervisor at FMS Corporation for two years and as claimant's supervisor on May 27, 1988, testified that employees were to report injuries to him immediately and that claimant was aware of and had utilized the procedure. Mr. Strope explained claimant reported no injuries at all on the night of May 27, 1988, testifying: Q. Can you tell me how he appeared that night? A. He appeared to be in good health and not to be hurting any. After this incident supposedly happened I discussed this with all the other employees in the building and of all the other employees -- only one other employee said he saw this happen. None of the other employees saw Scott in the area, or stated to me that they saw Scott appear to be hurting or injured. Q. Now, this allegedly occurred in a grinding area. Are you familiar with that area? A. Correct. Q. And that's an area where Mr. Frost was assigned to work that night, or supposed to be? A. No. Scott Frost was assigned to work in the machine area of the building, which is at the opposite corner from the grinding area, and as far as I knew that's where he was at all night long, and when I asked the other employees in the building, nobody had even seen him up in the grinding area, except for Matt. (Joint exhibit IV, page 6, line 5 through page 7, line 1) On cross-examination, Mr. Strope stated: [Q.] . . . You made mention of talking to some other employees, did you not, and only one indicated knowledge of the injury, and that was Matt Bordeaux? A. Correct. Matt told me that Scott was in his area and he had taken a grinder and that he thought that Scott had hit himself.in the groin with it, but I believe he told me that he didn't actually see it. He had his back turned at the time. And then I was asking him some more questions and he just basically said "I don't remember". Then when I want back to ask him more, then he was gone. He had left. (Joint exhibit IV, page 14, line 23 through page 15, line 11) On February 14, 1990, Joseph J. DiMartini, M.D., urologist, opined: On 5-30-88, Mr. Scott Frost underwent removal of the right testicle because of traumatic rupture of that organ. Testicular rupture is usually caused by a severe blow to that area. This is usually in the form of an industrial or sports related accident. Mr. Scott Frost gave me a history of having had a large grinder smash into his right hemiscrotum on the [sic] May 28, 1988. Therefore, I believe the rupture was caused by an industrial accident. [Joint exhibit I(B), page 12] APPLICABLE LAW AND ANALYSIS 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 claimant must prove by a preponderance of the evidence that his injury arose out of and in the course of his employment. Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). In the course of employment means that the claimant must prove his injury occurred at a place where he reasonably may be performing his duties. McClure v. Union, et al., Counties, 188 N.W.2d 283 (Iowa 1971.). Arising out of suggests a causal relationship between the employment and the injury. Crowe v. DeSoto Consol. School Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). Claimant asserts that he was injured at work when the grinder kicked back and hit him in the groin, that he was in pain then and all the following weekend, that another employee witnessed his reaction immediately after the incident and that his parents witnesses his "moaning" as he stayed home all weekend. Claimant did not, however, present any testimony from the coworker or his family which could have substantiated his allegations. Claimant did not provide any explanation for his failure to produce such evidence. In Crosser v. Iowa Dept of Public Safety, 240 N.W.2d 682 (Iowa 1976), the court, at 685, held: The trial court's ruling noted its finding was supported and bolstered by the fact another officer who had observed plaintiff's performance of the sobriety test was not called to testify, though present in the courtroom. In this the trial court was referring to the inference which arises where, without satisfactory explanation, relevant evidence within the control of a party whose interests would naturally call for its production is not produced. In such circumstances it may be inferred the evidence would be unfavorable. State v. Thomas, 162 N.W.2d 724, 727 (Iowa 1968) and authorities. See also McCormick on Evidence (Second Ed. 1972) 272, pp. 656-659; II Wigmore on Evidence (Third Ed. 1940) 285-291, pp. 162-188; 29 Am.Jur.2d, Evidence, 175 and 180, pp. 220 and 224-227; 31 C.J.S. Evidence 156(l), pp. 391-396. Although it may not have been reasonable to have expected claimant to have provided the coworker as a witness since claimant is no longer employed by FMS Corporation, the fact that claimant could not produce his parents to testify to support his allegation that he was writhing in pain at home all weekend allows the undersigned to draw the inference as provided by the court in Crosser, 240 N.W.2d 682. In light of the testimony of Shawna Frost and Mindy Youngberg, it is inferred that such evidence would lay open deficiencies in claimant's case. In addition, the record establishes claimant had availed himself of defendant employer's procedure for reporting injuries on previous occasions, but did not follow the procedure in this instance. When a pattern of conduct once established is altered, one cannot help but question why. Reviewing the evidence, it is shown that claimant's self-serving testimony, standing alone, is insufficient to support his allegations that on May 27, 1988, he sustained an injury arising out of and in the course of his employment. Considering the above, it is found that claimant's testimony is without credibility and is not based in fact. Therefore, claimant shall take nothing as a result of these proceedings and the other issues presented need not be addressed. FINDINGS OF FACT Wherefore, based on all of the evidence presented, the following findings of fact are made. 1. Claimant's testimony is without credibility. 2. Claimant's allegation that he was injured on May 27, 1988 when a wire wheel on a grinder caught on a nipple and hit him in the groin has not been established by credible evidence. 3. Claimant did not sustain an injury arising out of and in the course of his employment on May 27, 1988. CONCLUSION OF LAW Therefore, based on the principles of law previously stated, the following conclusion of law is made: Claimant has failed to establish he sustained an injury which arose out of and in the course of his employment on May 27, 1988. ORDER THEREFORE, IT IS ORDERED: Claimant shall take nothing as a result of these proceedings. Costs of this action are assessed against claimant pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 14th day of May, 1990. DEBORAH A. DUBIK DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. John E. Behnke Attorney at Law Box F Parkersburg, Iowa 50665 Mr. William D. Scherle Attorney at Law 803 Fleming Building Des Moines, Iowa 50309 5-1100 Filed May 14, 1990 DEBORAH A. DUBIK BEFORE THE IOWA INDUSTRIAL COMMISSIONER SCOTT FROST, Claimant, vs. File No. 894189 FABRICATING MACHINE SYSTEMS, A R B I T R A T I 0 N Employer, D E C I S I 0 N and NEW HAMPSHIRE CO., Insurance Carrier, Defendants. 5-1100 Claimant alleged he sustained an injury when he was kicked in the groin by a grinder while at work. However, other evidence in the record established that claimant was at a party and was kneed in the groin by his brother during a wrestling match. Therefore, no injury arising out of and in the course of employment was found and claimant took nothing as a result of the proceedings.