Page 1 before the iowa industrial commissioner ____________________________________________________________ : CURTIS NEWSOME, : : Claimant, : : vs. : : File No. 894197 JERRY J. KOBS, INC. AND PRO, : DRIVERS, 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. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Curtis Newsome, claimant, against Jerry J. Kobs, Inc. and Pro Drivers, Inc., employer, and Aetna Casualty & Surety Company, insurance carrier, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained on February 12, 1988. This matter came on for hearing before the undersigned deputy industrial commissioner in Sioux City, Iowa, on July 24, 1991. The record was considered fully submitted at the close of the hearing although the parties were given leave to submit briefs. The record in this case consists of joint exhibits 1-42 and claimant's exhibit A; claimant's testimony; testimony from claimant's wife, Patti Newsome; and testimony from Keith Pease. issues Pursuant to the prehearing report and order dated July 24, 1991, the parties have submitted the following issues for resolution: 1. Whether claimant sustained an injury on February 12, 1988 which arose out of and in the course of employment with employer; 2. Whether the alleged injury is the cause of temporary and permanent disability; 3. The extent of entitlement to weekly compensation for temporary and permanent disability, if any; 4. The commencement date for permanent partial disability, in the event such benefits are awarded; and 5. Whether claimant's medical expenses are causally connected to the work injury and whether such expenses have Page 2 been authorized by defendants. Defendants additionally raise the issue of jurisdiction under Iowa Code section 85.71. findings of fact The undersigned has carefully considered all the testimony given at the hearing, the arguments made, and the evidence contained in the exhibits herein, and makes the following findings: Claimant, an over-the-road truck driver, while in the employment of carrier, Jerry J. Kobs, Inc., Sergeant Bluff, Iowa, overturned his truck in Woodbine, Illinois, on February 12, 1988 (Exhibit 40). Claimant was able to extricate himself from the truck and was transported via police car to Freeport Memorial Hospital. X-rays of the cervical spine showed no fracture or dislocation. X-rays of the thoracic spine showed arthritic changes throughout the lumbar intervertebral joint. X-rays of the lumbar spine showed no evidence of any recent injury. Arthritic changes were noted throughout the lumbar intervertebral joints and the L5-S1 facet joints. No destructive bone lesions, spondylolysis or spondylolisthesis was present. Claimant was released with instructions to use Tylenol for pain. He was not advised to remain off work (Exs. 1 and 2). On July 21, 1988, claimant presented to the emergency room at Wishard Memorial Hospital with complaints of paresthesia in his left lower extremity and loss of dorsiflexion in his left foot. He was noted to have elevated blood sugar. He was scheduled for neurological evaluation and x-rays. Left hip x-rays showed severe degenerative and destructive changes from a former fracture which was surgically repaired. Left foot drop was thought to be related to diabetes myelitis. He was prescribed a cane and left foot drop brace. He was referred to physical therapy for exercise training (Exs. 5-10). On October 19, 1988, claimant underwent a social security disability examination by Henry E. Montoya, M.D. His complaints were referable to constant pain in his lower back associated with numbness in his left leg and a burning sensation in his leg and left foot. He related difficulty in standing and walking due to pain and a drop foot. Dr. Montoya observed as follows: He appears to be quite concerned and worried because he has had many troubles in his lifetime with his left lower extremity and now the question is that he might have some arthritis perhaps in his left hip because of previous problems and me may not recover from the nerve damage which is now affecting the left leg and the left foot. (Ex. 11) EMG studies were performed on October 25, 1988, and were consistent with L5-L1 radiculopathy (Exs. 12-14). Lumbosacral spine films taken on March 14, 1989 revealed mild sclerosis of the articular processes of L5, S1 (Ex. 15). A lumbar myelogram taken on March 28, 1989 was Page 3 consistent with spinal stenosis most severe at L3-4 and L4-5 without definite disc herniation (Ex. 19). A CT scan of the lumbosacral spine was then taken. Results indicated (1) congenital spinal stenosis with super-imposed acquired degenerative disease of the facets and end plates along with ligamentum flavum hypertrophy causing severe spinal stenosis from L1 through L5; and (2) no focal herniated nucleus pulposis (Ex. 18). Claimant received no further treatment referable to his orthopedic problems until April 1, 1991, when he was evaluated by Michael D. Kornblatt at the request of Aetna Insurance Company. He was noted to ambulate with a cane in his right hand and unable to put any weight on his left lower extremity when walking. This extremity was observed to be externally rotated. On examination, he had limited range of motion of the lumbosacral spine in all directions and some tenderness with palpitation of the left posterior superior iliac spine. Flexion, extension, lateral bending and rotation was limited. Straight leg raising was positive on the left at 45 degrees. Atrophy was noted in the left thigh and calf. His left lower extremity was short by approximately one-half inch. He had limited external and internal rotation and abduction of the left hip. X-rays of the lumbosacral spine revealed slight narrowing of the L5- S1, L4-5 and L3-4 disc spaces. Facet hypertrophy was noted at L3-4, L4-5, and L5-S1. X-rays of the left hip revealed severe degenerative arthritic changes involving the femoral head and the acetabulum (Ex. 28). Dr. Kornblatt recommended an MRI scan of the lumbar spine. This was performed on April 8, 1981, and revealed congenitally narrow spinal canal accentuated by disk bulging at L1-2, L2-3, L3-4 and L4-5. Spinal stenosis was maximum at L3-4 and left sided herniations were noted at L2-3 and L4-5. Significant facet degeneration was seen at L5-S1 bilaterally (Ex. 29). Dr. Kornblatt recommended further testing including a CT scan of the lumbar spine from L3 through S1. This was performed on April 18, 1991 and revealed significant central and left L4-5 herniated disc with central left L5-S1 herniated disc. Facet arthritis was also noted at L4-5 and L5-S1 and L3-4 (Exs. 31 and 32). Dr. Kornblatt's report dated April 22, 1991, indicates that he planned on performing a lumbar decompression on May 15, 1991. There is no medical evidence in the record regarding this surgical procedure. However, claimant testified that he underwent back surgery on June 13, 1991 by Dr. Kornblatt. Claimant testified that presently he experiences involuntary motor nerve movement in his left leg and restricted range of motion as a result of his back surgery. He testified that he cannot tie his shoe laces or lift more than 25 pounds. He can only stand 15 minutes and sit for two hours. Claimant's source of income is social security disability benefits which he was awarded on October 27, 1988. Disability was found due to arthritis in the left hip Page 4 commencing April 21, 1988 (Exs. 38-39). conclusions of law The first issue to be resolved is whether this agency has jurisdiction over claimant's Iowa workers' compensation claim. Claimant alleges that he is entitled to Iowa workers' compensation benefits because his employment was principally localized in this state, his employer has a place of business in this state and he was working under a contract of hire made in this state. Because the claimant was injured outside the territorial limits of Iowa, determination of whether there is jurisdiction under the Iowa workers' compensation law depends on a review of the facts under Iowa Code section 85.71. Section 85.71 provides: If an employee, while working outside the territorial limits of this state, suffers an injury on account of which the employee, or in the event of death, the employee's dependents, would have been entitled to the benefits provided by this chapter had such injury occurred within this state, such employee, or in the event of death resulting from such injury, the employee's dependents, shall be entitled to the benefits provided by this chapter, provided that at the time of such injury: 1. The employment is principally localized in this state, that is, the employee's employer has a place of business in this or some other state and the employee regularly works in this state, or if the employee is domiciled in this state, or 2. The employee is working under a contract of hire made in this state in employment not principally localized in any state, or 3. The employee is working under a contract of hire made in this state in employment principally localized in another state, whose workers' compensation law is not applicable to the employee's employer, or 4. The employee is working under a contract of hire made in this state for employment outside the United States. In interpreting section 85.71(1), the Iowa Supreme Court in Iowa Beef Processors, Inc. v. Miller, 312 N.W.2d 530, 534, (Iowa 1981), stated domicile alone is not sufficient to entitle an employee, injured outside Iowa, to benefits under our Act, but rather, some meaningful relationship between domicile and the employer-employee relationship must exist. The court then held that the Page 5 employer's placement of a help wanted ad, to which claimant responded, in an Iowa newspaper was not material to claimant's employment and was, therefore, insufficient to supply the necessary connection. The court did not address the issue of how sufficient the connection between domicile and the employment relationship must be to entitle an employee injured in another state to benefits under our Act. The Iowa Supreme Court next addressed the interpretation of section 85.71 in George H. Wentz, Inc. v. Sabasta, 337 N.W.2d 495 (Iowa 1983). In Wentz, the court expressly overruled Haverly v. Union Construction Co., 18 N.W.2d 629 (Iowa 1945). That case held that making an employment contract in Iowa would support an award of benefits under our Act. The Wentz court at 499 said: "We think Iowa law on extraterritorial application of our workers' compensation act has changed since the Haverly decision, and the rule of that case is no longer is valid." The court then said at page 500: The place of contract or hiring becomes significant only when the employment is not principally localized in any state, the law of the state where the employment is principally localized is not applicable to the employer, or the employment is outside the United States....Permitting recovery of Iowa benefits based solely on a showing the contract of hire was made in Iowa, following Haverly, would render nugatory the additional requirements of subsections 85.71(2), (3) and (4) of the act. Page 6 In Iowa Beef Processors and Wentz, the court referred to the Counsel of State Governments Model Act definition of principally localized employment which reads as follows: A person's employment is principally localized in this or another state when (1) his employer has a place of business in this or such other state and he regularly works at or from such place of business, or (2) if clause (1) foregoing is not applicable, he is domiciled and spends a substantial part of his working time in the service of his employer in this or such other state;... Claimant testified that he is not a resident of the state of Iowa and has never been domiciled in the state. There is, however, contradictory and conflicting evidence as to whether claimant's employer has a place of business in the state of Iowa. In this regard, claimant testified that in November 1987 he answered an advertisement posted on a billboard at Sapp Brothers in Omaha, Nebraska, for Jerry J. Kobs, Refrigerated Service, Sergeant Bluff, Iowa. He placed a phone call from an 800 number listed in the ad and spoke with a gentleman by the name of Keith who was the safety director. As far as he knew, Keith was located in Sergeant Bluff, Iowa. After discussing the particulars of the job, a reference check was done and claimant was recontacted that evening. He was asked to come to Sergeant Bluff the next day and when he arrived he contacted Mr. Jerry Kobs who told him to check into a room at the truck stop. The next morning, claimant was contacted by Mr. Kobs and told to get breakfast for himself and his wife and to charge it to his account and then go back to the motel and wait for someone to come and pick him up. One of Mr. Kobs' employees met him at the hotel in a pickup and took him to Mr. Kobs' office where he met Mr. Kobs and Keith. He testified that at that time, he filled out employment application forms, drivers' qualification cards and was then administered the Department of Transportation safety test. That same afternoon, he made his first run for Mr. Kobs. He took a tractor and an empty trailer from Sergeant Bluff, Iowa to John Morrell Meat Packing Plant in Sioux Falls, South Dakota. Claimant testified that he was always dispatched from the Sergeant Bluff, Iowa office and made many deliveries in the state of Iowa. As to Jerry Kobs' relationship with Pro Drivers, claimant testified in a deposition on August 23, 1990, as follows: Q. Did you ever hear anything about Pro Drivers? A. Yes. Q. What did you hear about Pro Drivers? What do you know about those people? A. The safety director at Mr. Kobs's company, I only know him by his first name, Keith, informed me that Pro Drivers did not exist and it was nothing more than a mailing address in the State of Indiana so that Jerry could hide money and that I was never to refer to Pro Drivers and never to Page 7 attempt to go to that address in Indiana because it was a waste of time. He told me, he said, Every contact you make will be right here at Jerry's trailer. Every paycheck you get will have Jerry's name on it, but because of the fact that we can't list you as a Kobs's driver for whatever reasons that him and Mr. Kobs had worked out, he said, you have to run under the name of Pro Drivers. I told him that I didn't understand and he told me I didn't need to understand. Q. so you never received any paychecks from Pro Drivers or anything of that sort? A. No, Ma'am. (Ex. 37, pp. 43-44) Mr. Keith Pease also testified at the hearing. He stated that in 1987 he was employed by Jerry Kobs as safety director and by Pro Drivers, Inc., as field representative stationed in Sergeant Bluff, Iowa. He stated that Pro Drivers, Inc., is an Indiana corporation whose place of business is in Angola, Indiana. He stated that Pro Drivers, Inc., was set up to do the hiring and recruiting of drivers for Jerry Kobs. He indicated that Mr. Kobs is president of Pro Drivers and Pro Drivers employs all of Mr. Kobs' truck drivers. He admitted that all payroll checks are mailed from Sergeant Bluff, Iowa. He stated that Mr. Kobs leases its drivers from Pro Drivers, Inc. and Pro Drivers employs all of the truck drivers. Obviously, claimant was not aware of the complicated relationship between Jerry Kobs and Pro Drivers but since most of his dealings were with Mr. Kobs in Sergeant Bluff, Iowa, he assumed he was employed by Mr. Kobs. In any event, the primary focus under Iowa Code section 85.71 is on the jurisdiction where the employee's employment is "principally localized." George H. Wentz, Inc. v. Sabasta, 337 N.W.2d 495, 500 (Iowa 1983). Under Iowa Beef Processors, Inc. v. Miller, 312 N.W.2d 530, 533, (Iowa 1981), a person's employment is principally located in this or another state when his employer has a place of business in this or such other state and he regularly works at or from such place of business. Claimant's testimony, corroborated by his wife, indicates that his employment with defendants was principally localized in the state of Iowa in that he spent most of his time there while on the job. Claimant resided in Iowa at the time of the accident. He received all of his assignments and paychecks from Sergeant Bluff, Iowa. Thus, 85.71(1) is clearly applicable to claimant. His employment is principally localized in the state of Iowa and his employer has actively engaged in doing business in Iowa with its dispatch office located in Sergeant Bluff, Iowa. Therefore, this agency has jurisdiction over claimant's claim. The next issue to be decided is whether claimant sustained an injury on February 12, 1988, which arose out of and in Page 8 the course of employment with employer and, if so, whether such injury is a cause of temporary or permanent disability. Claimant has the burden of proving by a preponderance of the evidence that he received an injury on February 12, 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). 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 ant the injury. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). A determination that an injury "arises out of" the employment contemplates a causal connection between the conditions under which the work was performed and the resulting injuries; i.e., the injury followed as a natural incident of the work. Musselman, 261 Iowa 352, 154 N.W.2d 128; Reddick v. Grand Union Tea Co., 230 Iowa 108, 296 N.W. 800 (1941). An injury incurs in the course of employment when it is within the period of employment at a place where the employee reasonably may be performing his duties, and while he is fulfilling those duties or engaged in doing something incidental thereto. McClure, Supra, at 283. The record clearly demonstrates that claimant was in the course of employment and performing his employment duties when he was involved in a single truck accident. Claimant testified and the accident report corroborates that on February 12, 1988, he was eastbound on U.S. 20 hauling a mixed load of boxed and carcass lambs when his truck overturned on a curve and he suffered some minor injuries. A causal connection exists between the conditions under which claimant's work was being performed and the resulting injury. Thus, claimant has shown by a preponderance of the evidence that the injury he suffered arose out of and in the course of employment. The claimant has the burden of proving by a preponderance of the evidence that the injury of February 12, 1988 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal Page 9 language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). When an aggravation occurs in the performance of an employer's work and a causal connection is established, claimant may recover to the extent of the impairment. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 (1960). The Iowa Supreme Court cites, apparently with approval, the C.J.S. statement that the aggravation should be material if it is to be compensable. Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's Compensation sec. 555(17)a. An employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 (1960). See also Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). In his petition for workers' compensation benefits filed on January 19, 1989, claimant stated that he was injured on February 12, 1988, and that such injury affected his back and lower extremities. In his deposition, claimant testified that at the time of the accident he had severe back pain, a useless left leg and a right leg that felt like rubber (Ex. 37, pp.66-67). At the hearing, claimant argued that his current back and leg problems were caused by his truck accident in February 1988. The medical evidence does not support claimant's contentions that his current disability is causally related to his work incident. A February 12, 1988 emergency record indicates that claimant was treated for superficial abrasions and discharged. Physical examination notes indicate he was able to move all extremities, had good distal pulses and no Page 10 extremity trauma. X-rays of the entire spine revealed no fractures or dislocation. Lumbar spine x-rays showed no evidence of any recent injury although arthritic changes were noted throughout the intervertebral joints and at L5-S1 facet joints. Claimant was discharged the same day without incident (Exs. 1-2). Claimant's next visit to the hospital occurred in July when he was seen following two days of foot pain, four or five days of foot weakness and an inability to flex his foot upward. He denied trauma and specific notation was made of "no back pain." (Ex. 5, p. 1) However, claimant reported an injury to his back in a motor vehicle accident five months before which resulted in his requiring complete bed rest for two weeks (Ex. 5, p. 2). There is no documentary evidence to support that assertion (Ex. 2). Claimant specifically denied back pain subsequent to that time (Ex. 5, p. 2). There is no mention of nose bleeds or psychological difficulties which were reported by claimant and his wife for the first time to defendants' knowledge at the time of hearing. Claimant's spouse testified that her husband or she told the doctors of all of his complaints. The neurologist who evaluated claimant for his foot complaints declared the most likely etiology of his complaints to be diabetes (Ex. 5, p. 4). X-rays of the left hip showed severe degenerative and destructive changes. There was articulation of the femoral head with the acetabulum. There were sclerotic bones on both sides of the hip space (Ex. 7). In October claimant was seen for evaluation for disability determination services by Henry E. Montoya, M.D., whose specialty is internal medicine and rheumatology (Ex. 11, p. 9). Again, there are no complaints of nose bleed or psychiatric problems (Ex. 11, p. 2). Specific examination was directed to the nose and a finding was made of no blood or discharge (Ex. 11, pp. 4,6). Claimant apparently told the doctor he had nerve damage (Ex. 11, p. 1). He denied an awareness of arthritis, although, of course, his x-rays at the time of injury showed arthritic changes (Ex. 11, p. 5). Claimant has reported eating aspirin at a rate of twenty to twenty-five per day. There is no documentation for that claim in that he was reportedly taking pain pills as needed. Dr. Montoya, who is not an orthopedist, diagnosed diabetes mellitus and obesity as well as chronic low back pain and left foot drop secondary to a back injury (Ex. 11, p. 7). However, the comments made by Dr. Montoya suggest and the award made by social security lead to the conclusion that claimant's difficulty was a preexisting hip problem rather than his back (Ex. 11, p. 8; ex. 39; ex 38). Additional evidence of the hip problem is found in a May 29, 1989 medical report which records a diagnosis of avascular necrosis (Ex. 17). The purpose of this visit to the hospital appears to be to "clear" claimant's back before considering a total hip replacement (Ex. 6). A myelogram was done with a CT scan which showed congenital spinal Page 11 stenosis and acquired marked degenerative changes. There was neither a nerve root compression nor a herniation (Ex. 18). The following month claimant was treated for an upper gastrointestinal bleed with a secondary history of alcohol abuse. He was hepatitis-B surface antigen positive (Ex. 21, p. 2). At the time of his hospitalization he had no focal or sensory deficits (Ex. 21, p. 1). Again, there are no accounts of nose bleeds or psychological problem. His aspirin intake was reported as three to four per day (Ex. 21, p. 1). Dr. Kornblatt did not see claimant until more than three years after his injury. Dr. Kornblatt received a history that was inaccurate. Claimant reported that he was unable to work after the injury. Claimant described his pain as going from his left buttocks to his thigh rather than as originating in his back (Ex. 28, p. 1). It may be that the pain was accurately described in that it originated with his initial hip injury years before. Dr. Kornblatt reports what claimant told him when he writes: "Mr. Newsome was injured at work in a roll over truck accident on February 12, 1988. Since then he has had severe, incapacitating left radicular leg pain and low back pain." The doctor asked claimant to obtain his old myelogram and studies so that these could be evaluated (Ex. 28, p. 3). Dr. Kornblatt ordered an MRI which showed a congenitally narrowed spinal canal with herniations at two levels (Ex. 29). These were not present in the prior studies (Ex. 18). Dr. Kornblatt refers to the stenosis as congenital rather than traumatic. He then writes that claimant is "significant [sic] disabled due to lumbar spinal stenosis with lumbar herniated discs and left hip degenerative arthritis." (Ex. 32) Claimant has some significant health problems, but whatever disability claimant has at the present time stems from his hip. He had a severe, traumatic injury to his hip. That significant injury was followed by lengthy hospitalizations and multiple surgeries. By contrast he had an employment incident for which he was given Tylenol and lost no time from work. There is no statement of medical causation supporting claimant's claim. Dr. Kornblatt merely records what claimant reported regarding injury to his back. There is no evidence to support an aggravation of whatever preexisting condition claimant may have. Claimant received no further medical treatment for complications related to his February 1988 accident. Claimant and his spouse admitted no further medical care was requested. Neither did claimant ask for time off. Mr. Keith Pease testified he was not asked to provide additional medical care. He specifically recalled claimant's telling him that he was not hurt and that he was able to drive. When claimant was no longer leased to Jerry Kobs, Inc., he immediately went to work for another trucking company. When Page 12 he quit that work, he applied for unemployment from Pro Drivers thereby asserting he was ready, willing and able to return to work. Claimant bears the burden of proof. He has failed to show by a preponderance of the evidence that the injury of February 12, 1988 is causally related to the disability on which he now bases his claim. This issue is dispositive of the entire case and further analysis is unnecessary. order THEREFORE, it is ordered: That claimant take nothing from this proceeding. That the parties pay their own costs pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of August, 1991. ______________________________ JEAN M. INGRASSIA DEPUTY INDUSTRIAL COMMISSIONER Copies to: Ms Kay Dull Attorney at Law P O Box 3107 Sioux City IA 51102 Ms Judith Ann Higgs Attorney at Law 701 Pierce St Ste 200 P O Box 3086 Sioux City IA 51102 Mr George Hirschback Attorney at Law 920 W 21st St P O Box 155 South Sioux City NE 68776 5-1108; 5-2301 Filed August 6, 1991 Jean M. Ingrassia before the iowa industrial commissioner ____________________________________________________________ : CURTIS NEWSOME, : : Claimant, : : vs. : : File No. 894197 JERRY J. KOBS, INC. AND PRO, : DRIVERS, 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. : ___________________________________________________________ 5-2301 Claimant was injured outside the territorial limits of Iowa, defendants raise jurisdiction under 85.71. Found that claimant's employment was principally localized in Iowa and employer regularly works out of Iowa with a dispatch office in Sergeant Bluff where claimant received all of his assignments and paychecks. Thus, jurisdiction of this agency over claimant's claim established. Iowa Beef Processors, Inc. v. Miller, 312 N.W.2d 530, 533, (Iowa 1981). 5-1108 Claimant did not prove by a preponderance of the evidence that his injury on February 12, 1988 is causally related to the disability on which he now bases his claim. Claimant sustained minor abrasions when his truck rolled over on a curved road. before the iowa industrial commissioner _________________________________________________________________ : DONALD F. PECK, : : Claimant, : : vs. : : File No. 894350 MERRILL MANUFACTURING, CO., : : A P P E A L Employer, : : D E C I S I O N and : : AETNA CASUALTY & SURETY : COMPANY, : : Insurance Carrier, : Defendants. : _________________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed February 26, 1991 is affirmed and is adopted as the final agency action in this case. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of January, 1993. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Harry H. Smith Attorney at Law P.O. Box 1194 Sioux City, Iowa 51102 Ms. Judith Ann Higgs Attorney at Law P.O. Box 3086 Sioux City, Iowa 51102 9998 Filed January 26, 1993 Byron K. Orton DRR before the iowa industrial commissioner ____________________________________________________________ _____ : DONALD F. PECK, : : Claimant, : : vs. : : File No. 894350 MERRILL MANUFACTURING, CO., : : A P P E A L Employer, : : D E C I S I O N and : : AETNA CASUALTY & SURETY : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ _____ 9998 Summary affirmance of deputy's decision filed February 26, 1991. Page 1 before the iowa industrial commissioner ____________________________________________________________ : DONALD F. PECK, : : Claimant, : : vs. : : File No. 894350 MERRILL MANUFACTURING CO., : : 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. : ____________________________________________________________ statement of the case This is a proceeding in arbitration upon claimant's petition filed August 3, 1989. Donald F. Peck alleges that he suffered exposure to a powdered substance known as fluorescein in the course of his employment with Merrill Manufacturing Company on July 20 or July 28, 1988 and thereafter developed extensive symptomatology. He now seeks benefits under the Iowa Workers' Compensation Act from that employer and its insurance carrier, Aetna Casualty & Surety Company. A hearing was thereafter held in Storm Lake, Iowa, on July 26, 1990. The record consists of joint exhibits 1 through 39 and 42 through 55, claimant's exhibits 56 through 101, and the testimony of the following witnesses: claimant, Sandra Rollison, David Crippin, M.D., Kim Quirin, Steve Rice, Dawn Peck and Karen Stricklet. issues Pursuant to the prehearing report submitted by the parties, it is stipulated that an employment relationship existed between Donald Peck and Merrill Manufacturing Company on July 28, 1988, that the appropriate rate of weekly compensation is $184.55, and that certain weekly benefits were voluntarily paid prior to hearing. Issues presented for resolution include: 1. Whether claimant sustained an injury arising out of and in the course of his employment with Merrill Manufacturing Company on or about July 28, 1988; 2. Whether there exists a causal relationship between that injury and any resulting disability; Page 2 3. The nature and extent of claimant's disability, if any; 4. Whether claimant is entitled to medical benefits under Iowa Code section 85.27; and, 5. Whether claimant is entitled to penalty benefits under Iowa Code section 86.13. findings of fact The undersigned deputy industrial commissioner, having heard the testimony and considered all of the evidence, finds: Donald Peck is an intelligent 36-year-old man. He is 6 feet 1 inch tall and weighs 255 pounds, 10-15 pounds more than at the time of his exposure to fluorescein. He is a 1972 high school graduate and has worked in packinghouses, a factory, a warehouse and in shipping and receiving for Merrill Manufacturing Company starting July 5, 1988. On a date originally alleged to have been July 20 and now believed to be July 28, 1988, claimant lifted an empty pallet and a quantity of red powder (estimated to be five pounds) fell on him. He was at the time wearing a sleeveless work shirt unbuttoned to the navel, jeans, a hard hat and goggles. A quantity of the red powder, later identified as fluorescein, contacted claimant's skin. As it was a hot day, he was perspiring and the powder turned green on contact with perspiration. Claimant notified the plant superintendent and was told to wash up. When he did, his skin turned from green to yellow, then orange before resuming normal coloration. After finishing his shift, claimant returned home and showered. As before, his skin was green in places. Rinse water in the shower sequentially turned green, yellow and orange. These color changes are characteristic of fluorescein. Claimant testified that the following morning he became sick to his stomach and vomited. His urine was an unusual dark color and odor. He noticed sores on his arm and at work, suffered a persistent nosebleed. During the next few days, he continued feeling nauseous and vomiting. His urine remained dark. The sores (described by claimant as like a large pus-infected pimple and by his wife as the size of a quarter to a half dollar, red, inflamed and cratered when broken) became larger and spread to the back, chest and hairline. Claimant states he developed a "strange" feeling in his chest and suffered additional nosebleeds. By August 10, condition of the sores was such that a red streak was visible in the right arm. Fearing blood poisoning and at the advice of his wife, Dawn Peck, claimant sought treatment at Buena Vista County Hospital and was seen by David Crippin, M.D. Claimant's presenting history was of getting chemical on the right forearm at work one month Page 3 before, making a sore that had gradually become more red and pussy. Dr. Crippin's chart notes reflect: "The patient denies fevers, chills or other complaints." Diagnosis was of right arm cellulitis (soft tissue inflammation) with lymphadengitis (relating to lymphoid tissue). Claimant was seen for evaluation by Linda Garb, M.D., on June 26, 1990. A report was thereupon issued by her and consulting physician Ilene R. Danse, M.D. Both Dr. Garb and Dr. Danse testified by deposition on July 11, 1990. Claimant gave Dr. Garb the following history: None of the powder got in his eyes because they were protected by the safety glasses. He does not recall whether he breathed the powder or got any in his mouth. He does not recall any unusual taste. He noted no burning or itching sensation of his skin or eye irritation, nor did he develop hives. He does not recall whether he had any cough, or nose or throat irritation. He noted no shortness of breath. He had no nausea or vomiting, dizziness, loss of consciousness, seizures, or headache. . . . . He felt all right that evening, although he noticed his urine was a dark golden yellow color and had a strong odor. The unusual color and odor lasted for several months. The next morning he went to work, although he felt nauseated and vomited once or twice. He vomited 2 to 3 times a day for a couple of days afterward. Then the vomiting became less frequent, but he continued to have nausea and abdominal discomfort and he ingested a pack of Rolaids every two days which provided some relief. The day after the spill, he had his first nosebleed. It lasted 15 to 20 minutes and he was able to stop it with pressure. He states his handkerchief was covered with blood. He continued to have similar nosebleeds over the next several months. He only rarely had nosebleeds which lasted for about 5 minutes prior to this. . . . . Within a day or two following the exposure, he noted some shortness of breath which gradually worsened. . . . . Soon after the exposure he developed fatigue and muscle weakness, which persisted to the present. Shortly after the incident, he also noted a personality change, mental confusion, and memory Page 4 loss. . . . . Shortly after the exposure, he developed sharp pains under his right shoulder blade and ribs. He states these could occur at any time and were not related to position or activity. It felt as if a knife was stuck in his shoulder blade -- this sharp pain came on suddenly and would cause him to shout out loud with pain at work, which alarmed his co-workers. The intense pain lasted a moment, then subsided to a burning pain which lasted for 20 or 30 minutes, then cleared. These initially occurred a few times a week and by the spring of 1990 had decreased to approximately once a week. Shortly after the exposure, he began losing hair on his scalp, and lost all of the hair in both axillae, and much of the hair on his back. He attributes this loss to the powder, although he told me his head had been covered by the hard hat and most of the powder fell on the lower half of his face, his chest, and arms -- areas which did not lose hair. The hair on his scalp and axillae has returned to normal; much of the hair on his back has returned, but is not as profuse as before the incident, according to Mr. Peck. He says despite the fact that he saw physicians on 5 occasions over a 3-week period from August 10, 1988 to September 3, 1988, for the skin lesions, which he advised the doctors were probably caused by the fluorescein exposure, he never mentioned his symptoms of nausea, vomiting, shortness of breath, sharp pains in his chest which made him call out, nose bleeds, [sic] hair loss, fatigue, muscle weakness, dark yellow urine, personality change, or mental confusion to the physicians. He says he did not do so because he wanted to keep working and he was concerned the doctors would want him to take time off work. He had no difficulty in performing his job and, in fact, was promoted during this time. Claimant testified that he continued to suffer from nausea and continued to produce dark and foul-colored urine. He indicated that other symptoms gradually came on, including memory loss, hair loss, nosebleeds, fatigue and shortness of breath. Mr. Peck testified that he normally only complains of whatever symptom may be most troubling when he seeks medical attention and does not necessarily disclose all his symptoms. However, records of the Buena Vista County Hospital reflect that claimant had been seen on the order of 60 times in the previous decade (a number that is "terribly unusual" in the view of Dr. Crippin, a board-certified family practitioner who testified at hearing) and commonly complained of multiple symptoms. These symptoms include Page 5 many which claimant now attributes to his fluorescein exposure, including dizziness, fatigue and bronchitis. Claimant conceded at hearing that he had complained of vomiting on approximately 20 medical visits prior to the fluorescein exposure. Claimant continued to work and was even promoted after six months to a supervisory position. However, he testified that his job performance deteriorated after he began really failing some two or three months after the exposure. Steve Rice, claimant's good friend, testified that sores on claimant's arms continued to get worse and he developed shortness of breath. Rice further indicated that claimant began slowing down on the job, but had been such a high quality worker before that he was still a good worker even in his reduced state. Claimant's wife testified that he gradually became more fatigued during the fall of 1988. His hair thinned on his head, back and in the armpits (this symptom has not been medically documented) and his mood became increasingly grumpy. Claimant eventually sought a referral from the Polk County Medical Society, and thereby came under the care of Mark Thoman, M.D., who promptly took claimant off work. Dr. Thoman is board certified in pediatrics and clinical toxicology; he testified by deposition on May 10, 1990. As of that time, he had seen claimant on 13 occasions beginning March 26, 1989. In April and May 1989, Dr. Thoman evolved a diagnosis of fluorescein toxicity with involvement of several organ systems: respiratory, central nervous system and integument, particularly the skin. Claimant was thereafter referred by defendants to the Mayo Clinic in Minnesota where he was seen in early May. That evaluation was discussed by Melvin A. Amundsen, M.D., in a deposition on June 25, 1990. Dr. Amundsen is board certified in internal and preventative medicine and occupational medicine. He is not a toxicologist. However, a working knowledge of toxicology is necessary to a specialist in occupational medicine. Dr. Amundsen testified that if a person were normally to react to fluorescein, the reaction would typically occur immediately and that the most common sign is hives. Other symptoms can include nausea, vomiting, dizziness and faintness. Claimant's primary complaints at Mayo were of sharp pain in the back and chest, coughing, sores, shortness of breath, irritability, lack of concentration, poor memory, reduced sexual interest and fatigue. On examination, fluorescein was not present at the lowest detectable level in the blood or urine. Laboratory evaluations were generally unremarkable. Dr. Fransway of the Dermatology Department did not suspect a causal relationship between fluorescein toxicity and furunculosis (the persistent or simultaneous occurrence of furuncles, Page 6 boils or painful nodules due to staphylococci bacteria). The Department of Neurology conducted a normal neurologic exam without evidence of thoracic radiculopathy or other disease of the nervous system. Electromyography of the chest region was normal. Pulmonary function testing, including a methacholine challenge, was normal. Respiratory and blood gas studies were normal. Electrocardiogram was normal, except that cardiovascular conditioning was reduced below normal (indicating below normal stamina). Dr. Amundsen indicated that every physician who had seen claimant at the Mayo Clinic concluded that there was no evidence of a relationship between his exposure to fluorescein and current complaints. No impairment was seen and there was nothing to indicate that claimant was unable to work. No evidence of any disease or injury was found. Although a Minnesota Multiphasic Personality Inventory did not indicate psychiatric problems, Dr. Amundsen could suggest only psychiatric factors as accounting for claimant's symptoms. However, based on claimant's reported symptoms, the staff allergist suggested that if claimant had symptomatic benefit from a bronchodilator, one should be used. Speaking generally, Dr. Amundsen did not believe that any of claimant's reported symptoms were possible based on his reported fluorescein exposure. The Mayo Clinic released claimant to return to work. Dr. Thoman thereupon recommended that claimant return on a part-time basis, and he did so for approximately two weeks. Thereafter, Merrill Manufacturing required him to return to full-time work. He did so in early July 1989, and alleged at hearing that this return to work led to exacerbated shortness of breath, nausea, vomiting, dizziness and headaches. Claimant indicated he felt ill on July 28, but went to work anyway. He smelled paint fumes and felt much worse. He left work (the parties dispute whether with or without permission) and consulted Dr. Crippin, who hospitalized him. Dr. Crippin's initial impression was of hyperventilation and shortness of breath, history of fluorescein exposure by patient (without confirmed evidence of objective findings by Mayo Clinic) and "possible hyperventilation syndrome with certainly some anxiety overlying features possibly related to work and stress versus stress from going down to the doctor yesterday." Discharge diagnosis was of shortness of breath with hyperventilation and anxiety, secondary thereto. While claimant was hospitalized overnight during this incident, he was criticized by Steve Anderson, owner of Merrill Manufacturing Company. Anderson believed claimant had left work without permission and accused him of misconduct. On the following day, Dr. Thoman again took claimant off work. Claimant was apparently motivated to seek legal advice at about this time and filed his petition herein on August 3, 1989. Page 7 On March 28, 1989, Steven Zorn, M.D., had performed pulmonary function testing. That study was normal. Dr. Zorn performed a repeat pulmonary function study including methacholine challenge on August 1, 1989. As both studies were within normal limits, Dr. Zorn found no evidence of bronchial hyperreactivity. However, his comments indicated that claimant had slightly increased coughing and wheeze which disappeared after the use of a bronchodilator. In a letter dated August 9, 1989 to Dr. Crippin, Dr. Thoman interpreted Dr. Zorn's normal studies as showing that claimant had a hyperreactive element to his pulmonary status dependent upon environmental exposure. In a letter of July 11, 1989, Dr. Thoman had opined (based in part upon his understanding that claimant had inhaled fluorescein) that the exposure had left Mr. Peck with directly related chemical dermatological sequelae and a "sensitization" to dust, smoke or noxious fumes as a result of respiratory irritation from fluorescein. Dr. Crippin further referred claimant to another pulmonologist, Robert M. Stewart, M.D., who saw claimant on December 6, 1989 and May 2, 1990. Physical examination was normal. A review of chest x-rays and previous pulmonary function studies was found normal. An additional methacholine challenge was performed and interpreted as normal. Nonetheless, it was Dr. Stewart's impression that claimant had clinical findings consistent with hyperreactive airway disease, even though this could not be documented through pulmonary function studies. "Peak flow" studies demonstrated episodic drops in peak flow, which is somewhat suggestive of hyperreactive airway disease. Peak flow studies were self-administered by claimant at home, and are therefore dependent upon full cooperation. Dr. Stewart stated that he did not know if claimant's problem was in any way related to the fluorescein exposure, but was unaware of fluorescein causing such problems in other patients. He believed claimant likely to continue having difficulty upon future exposure to irritants such as fumes, dust and possibly cold air, and recommended employment restrictions to avoid such exposure. Claimant underwent a residual physical functional capacity assessment in connection with a Social Security claim on October 29, 1989. Dr. Ross found no exertional limitations, no postural limitations, no manipulative limitations, no visual limitations, no communicative limitations and a single environmental limitation: all exposure to fumes, odors, dusts, gases, poor ventilation and the like should be avoided. Dr. Ross found that claimant had not shown any significant pulmonary or other damage as the result of fluorescein exposure, but had developed a sensitivity to certain odors which should be avoided; otherwise ventilatory function studies indicated no restriction of function. A psychological assessment done for Social Security on March 16, 1990 by psychologist John McMeekin, Ed.D., found no evidence of psychiatric disorder and intellectual functioning from the average range up to superior or higher. Page 8 Generally speaking, and in the quantities used by ophthalmologists (to check for scratches on the cornea or by injection for arterial mapping) fluorescein is not an especially toxic substance. Nonetheless, rare adverse reactions do occur. In his deposition testimony, Dr. Thoman pointed out his belief that claimant had an "overwhelming" exposure to the substance. He further noted that animal studies indicate fluorescein is readily absorbed through the respiratory tract and can be sensitizing to the skin and respiratory system. He believed that claimant's skin showing signs of exposure within hours and a respiratory involvement becoming apparent within some days along with later developing symptoms all were consistent with fluorescein exposure. Dr. Thoman believed claimant's history and physical did not implicate other conditions as potentially causative of symptomatology. With respect to taking claimant off work in July 1989, Dr. Thoman testified he believed claimant's hospitalization was due to a lung infection (Thoman deposition, page 25). As has been seen, this view is inconsistent with that of the treating physician, Dr. Crippin. Dr. Thoman also found that claimant suffered toxic vitiligo (chronic depigmentation of skin patches), but this sign was interpreted by Dr. Garb as merely an untanned area in the folds of claimant's neck skin. Dr. Thoman's examination of claimant on the day prior to his deposition yielded the following: [A.] The physical examination, he was a husky fellow, and some of the tests we did along with the physical, he was 72 and a half inches, which is six foot one and a half inch, 257 pounds, his blood pressure was normal, his hearing showed some decrease in the left side, below what would pass for a flight physical under class one or two. He had 20/20 vision, both on near and far vision. His peripheral vision was okay. his throat was slightly red. Other than that, his muscle strength was moderate to good. His deep tendon reflexes were symmetrical and brisk. His cranial nerves, two through twelve, were normal. He had the tenderness over the right chest, which he had complained about, and was quite sensitive, not over the kidney, but over the lower rib cage on the right. We did a CBC for a complete blood count, which was normal, SED rate, which was normal. We did a series of chemical tests. His glucose and cholesterol were normal, triglycerides were normal. SGGT was elevated, although he did not have -- he's a husky guy, and it was difficult to feel the liver edge, but he does have an elevated GGT, which can go along with the medication he is taking or chemical exposure. GPT was elevated. 41 is the upper normal for a male. It was 70.2. Page 9 SGOT was normal. His bilirubin was normal, and the urinalysis was normal. So those were the tests we did yesterday. The history update, physical exam, and the tests, which showed some elevation in some of the liver enzymes, two of the liver enzymes. Otherwise his tests were -- his medical tests were normal. (Dr. Thoman deposition, page 30, line 8 through page 31, line 18) Dr. Thoman directly opined that claimant's problems were causally related to fluorescein exposure. He believed claimant should be restricted to a non-chemical environment and had other limitations due to fatigue or loss of strength (for example, being able to drive only an hour or two). He assessed claimant as having sustained a 50 percent "functional disability." Dr. Garb testified after an extensive examination of claimant on June 26, 1990. Blood and urine testing was normal, except for a slight elevation on one liver function test. Dr. Garb opined that claimant suffers from allergic rhinitis (or hay fever) and obesity. She concluded that present complaints were not related to fluorescein exposure. Dr. Garb found no permanent functional impairment of the respiratory system, cardiovascular system, central nervous system, skin or musculoskeletal system. She believed that claimant could continue to work. Dr. Danse based her testimony on a review of claimant's medical records, Dr. Garb's examination and research of the literature concerning fluorescein exposure. She noted that allergic reactions to fluorescein typically occur within moments of receiving intravenous injections. As did Dr. Garb, she found no causal relationship between the skin problems for which claimant first saw Dr. Crippin and the exposure. Dr. Danse did not believe claimant had experienced a very substantial exposure to fluorescein, in that very little would penetrate the intact skin. She also pointed out that the literature (although apparently sparse) indicates that there is no dose response; that is, it cannot be said that increasing the dosage necessarily increases the likelihood of an adverse reaction. What reactions are reported in the literature generally relate to the intravenous injection of large quantities of fluorescein. Dr. Danse generally found claimant to be objectively normal and suggested that he might suffer from hay fever or psychological problems (in addition, she simply did not believe all that he said). In the report she co-authored with Dr. Garb, it was noted: The first time any of Mr. Peck's symptoms other than skin lesions are mentioned in the records is in March 1989. It is difficult to believe that he would deliberately not mention these alarming symptoms to his doctors, and in fact tell the doctor at Family Health Center on 3/8/89, as verified inthe [sic] records, that he had no other Page 10 symptoms except some chest pain and scalp hair loss, and now insists all these other symptoms had been present all along and are gradually getting worse. It is medically improbable that symptoms associated with exposure to fluorescein in July 1988 should have their onset in March 1989 and progressively worsen. It seems much more likely that symptoms at this time are due in part to allergic rhinitis -- which Mr. Peck denied having previously until I advised him it is recorded in the medical records of Dr. Hruska on 4/1/88. His symptoms of itchy, tearing eyes, nasal congestion with a clear nasal discharge whenever he goes outside are classic symptoms of allergic rhinitis, or hay fever. Millions of Americans have these annoying symptoms, but do not stay home from work because of hay fever. His several pulmonary function tests, including histamine challenge, cold challenge and exercise test, provide no objective evidence of hyperreactive airway disease. His use of the peak flow meter indicates his peak flows sometimes are as low as 400 ml. This is a test that requires full patient cooperation and thus, is not an objective measure of hyperreactive airway disease. Mr. Peck has been placed on several medications which have well-known side-effects. Several of the symptoms he has, including cough, wheezing, nausea, throat irritation and dryness, and dizziness are known to be associated with use of Intal, Proventil, and Ventolin. We question whether he needs any of these medicines. In addition to the symptoms which Mr. Peck attributes to fluorescein, Dr. Thoman has stated that Mr. Peck has other symptoms and findings which Dr. Thoman attributes to the fluorescein incident. Dr. Thoman reports that some of Mr. Peck's liver function tests were slightly abnormal; however, no abnormal tests were found in the records. Liver function tests performed in July 1989, May 1989 and March 1989 were normal, so apparently the abnormalities Dr. Thoman found occurred some time later. The liver function tests performed on June 28, 1990 at Dr. Garb's request were all normal except for a mild elevation in the SGPT of 57 (normal range 3-36). This is a level not uncommonly seen in otherwise-healthy people. Significant liver disease is associated with much higher elevations of several liver tests. In the three studies previously mentioned of over 230,000 exposures to fluorescein, abnormal liver function is not reported. In those chemicals which are associated with abnormal liver function, the abnormality occurs during or shortly after the time of exposure, not months later as in Mr. Peck's case. Mr. Peck is taking Ibuprofen, which Page 11 has been reported to cause liver damage in humans. Dr. Thoman says Mr. Peck has vitiligo caused by fluorescein. Vitiligo is caused by very few chemicals. It is not caused by fluorescein. This substance is extensively applied topically in eyes; invariably, tearing causes the fluorescein to come in contact with patients' cheeks and eyelids, and no vitiligo has been reported. The area which Mr. Peck identified as vitiligo is an irregular, barely-discernible area on his throat. Mr. Peck is a large, overweight man, and in order to view the area, I had to have him hold his head up and I pulled the skin taut. This area is not usually exposed to the sun, which could explain the lack of tanning. Mr. Peck reports his urine turned dark yellow and had a foul odor for months after his exposure. While we commiserate with Mr. Peck's problem, this would not be caused by fluorescein, which in patients receiving injections, turns urine a bright yellow for up to 36 hours. Foul odors do not occur from fluorescein and it is medically impossible that months of dark yellow urine was [sic] related to this "exposure". Also, Mr. Peck's urinalyses on several occasions were normal. In fact, Mr. Peck did not sustain any period of total disability following the incident when fluorescein spilled on him. Objectively, he has minor symptoms which it is our opinion are related to hay fever and the adverse effects of his medications, and do not explain his inability to work. Dr. Thoman suggests that Mr. Peck has become allergic to a wide variety of chemicals because of the fluorescein incident. That such a condition exists, which has been called environmental illness or chemical AIDS, has been proposed by some physicians to explain unusual symptoms, but scientific analysis of these claims has not corroborated the existence of such illness in the over 15 years that it has been reported. In recent years, the Scientific Board of the California Medical Association and the American College of Physicians (reports attached) (references 4, 5 and 6) have carefully examined the claims of these practitioners and found no objective evidence to support these conjectures. Patients are done a great disservice when they are given faulty diagnoses and treated unnecessarily with powerful medications with substantial adverse effects. In summary, some fluorescein powder fell on Mr. Peck, a husky 36-year-old warehouseman, while he was at work. He rinsed most of it off within Page 12 minutes and later showered. This experience, in our medical and toxicological opinion, has caused him no harm. He seems to have some seasonal allergic rhinitis (hay fever) which he had prior to this employer and which is non-industrial. (Danse-Garb report, pages 19-21) Dr. Crippin testified to his opinion that claimant's reported symptoms are causally related to chemical exposure, based primarily on timing. He noted that claimant did not mention nosebleeds, shortness of breath, nausea or other symptoms when first seen for his dermatological problem, a staphylococcus aureus infection (referred to as a common bacterial infection which can result from any break in skin integrity). He believed claimant to be asymptomatic, except when exposed to a triggering agent, but was unsure whether claimant's state of sensitivity was causally related to the fluorescein exposure as opposed to any preexisting propensity. He noted that claimant had at least five prior bronchial attacks, and felt that if fluorescein had actually been inhaled, claimant should have shown a fairly quick reaction (at least within a few days of exposure). Claimant currently complains that various fumes (painting solutions, gasoline, perfume, etc.) cause shortness of breath, nausea, dizziness, headaches and disorientation. He complains that his activities are now greatly restricted, and that he has given up many activities such as singing in the church choir, acting as a boy scout scoutmaster, hunting, fishing, hiking, wood cutting and the like. conclusions of law The parties dispute whether claimant sustained an injury arising out of and in the course of employment. Claimant did suffer an exposure to fluorescein as he related (Steve Rice saw the substance on his person), but this exposure did not necessarily cause injury. Claimant has the burden of proving by a preponderance of the evidence that he received an injury on July 20 or 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. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of" refer to the source of the injury. McClure v. Union, et al., Counties, 188 N.W.2d 283 (Iowa 1971). This requirement is satisfied by showing a causal relationship between the employment and the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986). Claimant has reported numerous symptoms, but few objective signs have been seen. The crux of this dispute is whether a causal relationship exists between those reported symptoms and fluorescein exposure. It is claimant's burden to prove that causal nexus by a preponderance of the evidence. Page 13 The claimant has the burden of proving by a preponderance of the evidence that the injury of July 20 or 28, 1988 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Claimant has not met his burden of proof on the issue. While the original petition alleged an exposure of July 20, claimant at hearing claimed an exposure of July 28. As defendants have pointed out, claimant is by no means casual about dates. In testimony about his prior history, claimant proved capable to a remarkable degree of specifying exact dates with respect to numerous occurrences. In any event, medical treatment was not sought until August 10, 1988, either 13 or 21 days following the exposure. Claimant then sought treatment for cellulitis associated with a staphylococcus infection (universally described as very common) and specifically denied fevers, chills or other complaints. Yet, he now asserts that he had developed very extensive symptoms indeed by this time, including nausea and vomiting, dark and foul-smelling urine, sores spreading to the back, chest and hairline (Dr. Crippin reports sores only on the arm), shortness of breath and serious nosebleeds. It seems extremely unlikely that claimant would have actually denied these alarming symptoms, especially given his "terribly unusual" extensive preexisting medical history, including numerous instances of multiple-symptom complaints. While symptoms reported are numerous indeed (of course, many of these symptoms also preexisted the exposure), objective signs of impairment are another story, although claimant has been seen and worked up by numerous well-qualified physicians, including the Mayo Clinic. Tests of liver function have been mildly elevated in some areas, although as Drs. Garb and Danse point out, the readings are not extreme and may well be associated with use of various medications, including Ibuprofen. Claimant has complained of hair loss, confirmed by his wife. Medical documentation for hair loss is not seen in the record. Claimant and his Page 14 wife are, of course, interested in the litigation. Claimant complained of dark and foul-smelling urine for months following his exposure, but no medical documentation exists. Rather, urinalyses have been normal. Dr. Thoman felt that claimant suffered vitiligo, but Dr. Garb looked at the same section of skin and saw only a less tanned area in the folds of the neck. Without determining which physician is correct, it seems apparent that Dr. Thoman's finding is at least fairly debatable. Peak flow pulmonary testing has shown abnormalities, but there is a major subjective component to this testing, because it is done by claimant, at home, and is dependent upon his full cooperation. Dr. Crippin finds a causal relationship between claimant's reportedly enhanced sensitivity and the original occurrence, but this conclusion is based in his own words upon "timing." Dr. Crippin, of course, is not a toxicologist or occupational medicine practitioner. Timing of the onset of symptoms (and especially claimant's failure to report those symptoms) was a major factor in the contrary conclusion reached by Drs. Danse and Garb, both with much greater qualifications in those areas. Dr. Thoman, on the other hand, does find a causal nexus between exposure and symptomatology, and he is also highly qualified in toxicology. Claimant has strenuously argued that Dr. Thoman's certification in toxicology, or, in claimant's words, "medical" toxicology, is superior to the certification of Dr. Danse. However, the weight of the evidence reflects that the certification of these two toxicologists merely derives from different organizations. Dr. Danse sees no substantial difference between the two organizations, and she and Dr. Amundsen point out that the American Medical Association does not recognize either certification. While Dr. Thoman was a treating physician, it is not necessarily the case that a treating physician's testimony is to be given more weight than a physician who examines claimant in anticipation of litigation. Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d 187 (Iowa 1985). Rather, such factors as education, compensation, the date of the examination, experience and the like go to the value of a physician's testimony as questions of fact, not law. A reading of Dr. Thoman's testimony indicates that his view is similar to that of devotees of "clinical ecology," as per references 4-6 attached to Danse deposition exhibit 1. These views are apparently now somewhat controversial in the field of toxicology. At least, those references are fairly critical and the theories have not been accepted, at least by the California Medical Association or the American College of Physicians. The Danse-Garb report and underlying reasons are, with all due respect to the opinion of Dr. Thoman, more persuasive to this reader. It may be that claimant's current symptomatology is simply a coincidental progression of his numerous preexisting symptoms, many of which are of similar ilk. Perhaps the symptomatology is in part psychosomatic. Page 15 Perhaps the symptomatology is merely an invention for purposes of seeking compensation benefits. It is unnecessary to decide. What is necessary is to determine whether claimant has met his burden of proof in establishing that such symptoms exist and are causally related to fluorescein exposure. Given the lack of objective signs (subjective symptoms have commonly been found non-compensable by this agency in the absence of objective proof), the existence of numerous preexisting similar symptoms, claimant's failure to make complaint of symptoms other than dermatological to any physician until March 1989, almost nine months later (and actually denying other complaints to Dr. Crippin in August 1988), and the views of Drs. Garb and Danse (which seem to this writer more consistent with other objectively determinable facts), it must be held that claimant has failed to meet that burden of proof. He has not established a compensable injury arising out of and in the course of employment with Merrill Manufacturing Company as alleged. Other issues are thereby rendered moot. Page 16 order THEREFORE, IT IS ORDERED: Claimant shall take nothing further from these proceedings. The costs of this action shall be assessed to defendants pursuant to rule 343 IAC 4.33. Signed and filed this ______ day of ____________, 1991. ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Harry H. Smith Attorney at Law P.O. Box 1194 Sioux City, Iowa 51102 Ms. Judith Ann Higgs Attorney at Law 200 Home Federal Building P.O. Box 3086 Sioux City, Iowa 51102 1108.30; 1402.30; 2205 Filed February 26, 1991 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : DONALD F. PECK, : : Claimant, : : vs. : : File No. 894350 MERRILL MANUFACTURING CO., : : 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. : ____________________________________________________________ 1108.30; 1402.30; 2205 Claimant failed to prove that exposure to fluorescein was causally related to his numerous subjective symptoms. Objective signs were few and easily explained as preexisting or related to other causes. Page 1 before the iowa industrial commissioner ____________________________________________________________ : IMOGENE WIELAND, : : Claimant, : : vs. : File No. 894597 : JIMMY DEAN MEAT CO., : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : TRAVELERS, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in arbitration brought by Imogene Wieland against her employer, Jimmy Dean Meat Company, and the Travelers Insurance Company based upon an alleged injury to her right leg and back that occurred on August 26, 1988. The occurrence of the injury is disputed as is claimant's entitlement to benefits for the alleged injury. The case was consolidated with file number 891393 and heard at Des Moines, Iowa on August 28, 1990. The record consists of testimony from Imogene Wieland, Dale Wieland, Jeff L. Johnson, Dan J. Nanneman and Jerald Ross Lewis. The record also contains joint exhibits A through H, claimant's exhibits 1 through 12 and defendants' exhibit I. findings of fact Having considered all the evidence received, together with the appearance and demeanor of the witnesses, the following findings of fact are made. Imogene Wieland experienced difficulty with her right leg as a result of operating a foot pedal which was part of her job at Jimmy Dean Meat Company. The record fails to show that she missed any time from work as a result of the condition. To the contrary, the notes from James Blessman, M.D., indicate that she was released to return to work with a restriction against using a foot pedal (exhibit F, page 4). At the time of hearing, claimant stated that the problem with her leg and back were temporary and had gone away. The record contains no medical evidence which shows that the leg or back condition was in any manner permanent or required any substantial medical treatment. The record contains no evidence of the amount of any medical expenses incurred in treating the leg or back. It is therefore found that Imogene Wieland did injure Page 2 her right leg on or about August 26, 1988 while operating a foot pedal which was part of the duties of her employment at Jimmy Dean Meat Company. It is further found that the evidence does not support the existence of any injury to her back as a result of that work activity. The evidence fails to show that the injury produced any temporary or permanent disability. conclusions of law Claimant has the burden of proving by a preponderance of the evidence that she received an injury on August 26, 1988 which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Claimant has proven, by a preponderance of the evidence, that she suffered a minor injury to her right leg on August 26, 1988 as alleged. Claimant has failed to prove, by a preponderance of the evidence, that her back was injured as a result of that incident or work activity. Claimant has failed to prove, by a preponderance of the evidence, that the injury to her leg produced any temporary or permanent disability which would entitle her to receive weekly compensation under Iowa Code sections 85.33 or 85.34. Claimant has failed to prove, by a preponderance of the evidence, that there are any medical expenses which were incurred in treating the leg injury which have not been paid in full by the employer and its insurance carrier. In summary, claimant has proven the occurrence of a minor injury, but has failed to prove that she is entitled to any benefit under the Iowa workers' compensation laws as a result of that injury. Page 3 order IT IS THEREFORE ORDERED that claimant take nothing from this proceeding. IT IS FURTHER ORDERED that the costs of this action are assessed against the claimant pursuant to rule 343 IAC 4.33. Signed and filed this ______ day of ____________, 1991. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Steven C. Jayne Attorney at Law 5835 Grand Avenue Suite 201 Des Moines, Iowa 50312 Mr. Helmut A. Mueller Attorney at Law RR 5 Osceola, Iowa 50213 Mr. Glenn Goodwin Attorney at Law 4th Floor, Equitable Building Des Moines, Iowa 50309 5-1402.40 Filed January 11, 1991 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : IMOGENE WIELAND, : : Claimant, : : vs. : File No. 894597 : JIMMY DEAN MEAT CO., : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : TRAVELERS, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 5-1402.40 Claimant proved a minor injury as alleged, but failed to prove entitlement to any benefits as a result of that injury.