before the iowa industrial commissioner _________________________________________________________________ : JAMES JONES, : : Claimant, : : vs. : : File No. 897423 PRAIRIE FARMS DAIRY, INC., : : A P P E A L Employer, : : D E C I S I O N and : : NATIONAL UNION FIRE : INSURANCE 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 April 29, 1992 is affirmed and is adopted as the final agency action in this case. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of December, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Arvid D. Oliver Attorney at Law 2635 Hubbell Ave. Des Moines, Iowa 50317 Ms. Dorothy L. Kelley Attorney at Law 500 Liberty Bldg. Des Moines, Iowa 50309 9998 Filed December 21, 1992 BYRON K. ORTON EAN before the iowa industrial commissioner ____________________________________________________________ _____ : JAMES JONES, : : Claimant, : : vs. : : File No. 897423 PRAIRIE FARMS DAIRY, INC., : : A P P E A L Employer, : : D E C I S I O N and : : NATIONAL UNION FIRE : INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ _____ 9998 Summary affirmance of deputy's decision filed April 29, 1992. Page 1 before the iowa industrial commissioner ____________________________________________________________ : JAMES JONES, : : Claimant, : : vs. : : File No. 897423 PRAIRIE FARMS DAIRY, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : NATIONAL UNION FIRE : INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ On March 1, 1989, James Jones, (claimant) filed a petition for arbitration as a result of an injury to claimant's head occurring on June 3, 1988. Prairie Farms Dairy (Prairie Farms) was identified as employer and National Union Fire Insurance Company (NUFIC) was identified as the workers compensation insurer for Prairie Farms (collectively defendants). On July 30, 1991 these matters came on for hearing in Des Moines, Iowa. The parties appeared as follows: the claimant in person and by his counsel Arvid Oliver of Des Moines, Iowa and Prairie Farms and NUFIC by their counsel Dorothy Kelly of Des Moines, Iowa. The record in this proceeding consisted of the following: 1. The live testimony of the claimant, Deborah Jones, Charles Allen, Tom Thuman, Patricia Conway. 2. Joint exhibits 1-20 3. Claimant's exhibits A-GG. 4. Defendants' exhibit I, II, VI. preliminary matters On July 31, 1991, after the record was closed, the Division received a letter from Dan L. Keyser, M.D., from the Department of Neurology at Iowa City. This information, while received in the file, was not considered as part of the evidence in this case since it was not offered into evidence at the time of the hearing. The record was closed at the conclusion of the hearing pursuant to rule 343 IAC 4.31. stipulations The parties stipulated to the following matters at the time of the hearing: a. An employer-employee relationship existed between claimant and employer at the time of the alleged injury. Page 2 b. The type of permanent disability, if the injury is found to be a cause of permanent disability, is industrial disability to the body as a whole. c. The rate of compensation, in the event of an award, is $302.74 per week. Claimant is married and has no dependent children. He is entitled to two exemptions. d. The parties have agreed that if the providers of the medical services in this matter were called to testify they would state that the fees for services rendered were reasonable and defendants would not offer contrary evidence. e. Defendants have paid 22 weeks of workers' compensation benefits to claimant at the rate of $302.74 per week prior to hearing. f. Claimant's claim for permanency has been bifurcated. g. The parties have stipulated to the costs of this action. Issues The issues for resolution are as follows: 1. Whether claimant sustained an injury on June 3, 1988, which arose out of and in the course of his employment with Prairie Farms. 2. Whether a causal relationship exists between claimant's claimed injuries and the claimed disability and the nature and extent of any entitlement to benefits, if any. 3. Whether claimant is entitled to medical benefits, including a determination of causal connection to the work injury and the causal connection of this condition to a work injury. 4. Whether defendants are entitled to credit. Page 3 FINDINGS OF FACT After considering all of the evidence and the arguments of counsel, the undersigned makes the following findings of fact and conclusions of law. 1. The evidence compels a finding that claimant is not credible. Inconsistencies in the documentary evidence and the testimony given in this matter supports this conclusion. 2. At the time of the hearing James Jones was 52 years old. At the time of the injury, claimant was 49 years old. Claimant's educational background is cloudy. Claimant apparently began school in Alabama. The evidence is inconclusive as to whether claimant ever finished high school or obtained a GED.(1) Likewise the evidence is inconclusive on the question of whether claimant attended college and obtained sometime thereafter a doctor of divinity degree.(2) 3. Claimant's social history is equally confused. Claimant indicated in various histories and at the time of the hearing that he grew up in an environment where smoking and drinking were not tolerated. Claimant had indicated that his father was dead in one history from complications of alcohol abuse. In another history, claimant indicated that his father was alive. Claimant has been married three times. He is divorced from his first wife. Claimant had six or seven children by his first wife, Dolly Jones. His second wife died. By the time claimant was married for a third time, claimant had incurred substantial personal indebtedness individually and with his church in Salt Lake City.(3) Claimant's financial problems have not abated. He is still paying creditors from Utah on a monthly basis. Claimant has an arrest and conviction record beginning in 1972 and ending in 1981. Additionally, claimant was involved in litigation regarding unpaid wages and child support.(4) The dispute with claimant's first wife was acrimonious. Finally, when claimant began his course of treatment at the University of Iowa he was involved in litigation regarding back pay that was eventually resolved in his favor with a settlement of $52,500. 4. Claimant has preexisting health problems. While claimant was employed at Roberts Dairy in Lincoln Nebraska, he sustained a work injury to his back. Claimant recovered a lump sum settlement in the approximate amount of $13,000. Claimant has had reactions to toxic chemicals. These exposures have caused sore throat, itchy eyes, dizziness, occasional headaches and weight loss. Claimant was treated for the exposures. Claimant has microcytic hyperchromic anemia and he has had gastrointestinal complaints. Claimant also has presbyopia and myopic astigmatism in the left eye and with asymmetric optic nerves with normal intraocular pressure. Claimant was advised to use corrected glasses for near vision and was not wearing glasses at the time of the hearing. 5. Since high school, claimant has had a checkered employment history. He has been employed from time-to-time as a pastor, and a dairy industry worker. Claimant has had interests in Big Foot Services, a pest control and a janitorial service(5). Claimant has also worked in construction, as a cab driver, and as an aide in an institution for mentally retarded and brain damaged (1). Claimant indicated that he attended elementary and high school in Alabama, however claimant cannot remember what schools he attended nor did he have any record of completing the course of study at his high school. At the time of the hearing, claimant testified that he graduated from high school. However, in some of the medical histories given, claimant indicated that he had a GED. In other histories given he indicated that he had graduated from high school. Prior employment applications indicated that claimant attended Sun Town High School until the ninth grade. However, he also included a graduation date of 1955. (2). In the medical histories claimant gave to his doctors, he indicated that he had attended a pastoral college and divinity school to obtain his pastoral credentials. He also indicated that he had obtained a philosophy degree and a doctor of divinity degree through the mail. Claimant has also indicated that the church organization he serves conferred a doctor of divinity on him. However, claimant could not remember the institution or organization that had conferred the doctor of divinity degree nor could he describe the courses he had taken while in school at the time of the hearing. (3). Claimant owed between $20,000 and $30,000 to creditors as a result of his living and working in Salt Lake City. Claimant owed $2,341.87 for the burial of his second wife. He owed $2500 in back rent. Claimant had an outstanding balance of $9,549.54 unpaid with a department store in Salt Lake City. Claimant and his sons also owed $15,000 in unpaid wages for a construction company they operated in Salt Lake City. Additionally, claimant's Salt Lake City church was in arrears on its obligations. As a result of these financial difficulties, claimant's church sent a letter to its creditors on February 6, 1986, regarding the church's inability to pay its bills. Claimant indicated that he would make suitable arrangements with the church's creditors to pay them. (4). While claimant was in Salt Lake City, he experienced difficulty with the State of Utah Revenue officials regarding wage claims that were due in owing employees of Bigfoot Services, Inc. and Jones and Jones Construction Company. The dispute over unpaid wages was a litigated claim that resulted in a judgment against claimant. Additionally, claimant was in arrears on his child support and collection actions had been commenced by his former wife. Claimant had ongoing litigation with his former wife Dollie Jones regarding child support and disability payments. (5). Claimant filled out an application to transact business under an assumed name, Big Foot Services, in Utah in April of 1988. Big Foot Services was a business that claimant pursued with two of his sons, Lorenzo Jones and James Jones, III. A balance sheet from Big Foot Services as of December 31, 1985, indicated that Big Foot had paid salaries to James Jones and Lorenzo Jones as partners of this enterprise. Page 4 individuals. 6. As a dairy worker, claimant began his career in Alabama. Claimant's began his employment with Prairie Farms Dairy in Des Moines on July 16, 1982. Claimant was laid off in April of 1983. Thereafter, claimant moved to Salt Lake City. While there, claimant established a congregation for his church and Big Foot Services. Claimant returned to Des Moines to work for Prairie Farms in 1987. Claimant's job at Prairie Farms was to run a gallon filler. He was required to put caps into the cap feeder and release jams. 7. When claimant returned to Des Moines, he was asked to pastor a new church in Mason City. Claimant moved to Mason City and maintained a home in Des Moines. Claimant established a congregation in Mason City for the Zion Temple Church. The church provided claimant with living expenses and a 1975 Jaguar. When claimant first moved to Mason City, the church also owned a van that was available for his use. The congregation owns a building in Mason City. Claimant signed the mortgage for the church in his capacity as pastor of the congregation. A note was due on the property in December of 1991. 8. Claimant has given varying accounts of his head injury on June 3, 1988(6). The account given on June 24, 1988 will be adopted as the most accurate. Claimant went to the emergency room at Des Moines General and reported that on June 3, 1988 he was in the process of unjamming a gallon filler machine, and raised up under a metal bar hitting the top of his head. At the time claimant clocked out, he advised his supervisor that he had bumped his head while working. The supervisor examined claimant's head and could detect no blood or a bump. There was no evidence of a laceration or intermittent bleeding or evidence of a healed wound when claimant was examined at Des Moines General. No one saw claimant strike his head. No coworkers advised the supervisor that claimant was unconscious or appeared dazed at the time that he bumped his head. Additionally, claimant made no indication to the supervisor that he was dazed or was suffering from head pain or blurred vision. 9. As a rule when an employee is injured on the job at Prairie Farms, the employee is sent to the emergency room at (6). In some versions he indicated that he had struck his head and suffered a laceration which bled at the time of the injury and then intermittently for two weeks (Jt Ex. 1, p.4). Even though claimant's head was bleeding, he did not go to the hospital for care. He gave other descriptions of the injury where he was nearly unconscious from the blow to his head. On other occasions he says he saw stars from the blow to his head. He described the item he hit as a track, a metal hook on an overhead track, a bolt, and a piece of metal. At other times he indicated that a piece of metal hit him. He indicated that he was standing bent over and then quickly jumped to an upright position and hit the top of his head. Other times he indicated that he stood up suddenly and struck his head. On some occasions he developed nausea and other occasions he did not. Page 5 Mercy Hospital. The supervisor in charge of the area, is the only authorized individual to direct employees to medical care in the event of a work injury. When claimant called in sick around June 24, 1988, he did not say that he was suffering the ill effects of the injury of June 3, 1988 or that he needed to see the company doctor. Claimant never obtained authorization for his visit to the Des Moines General emergency room after the incident on June 3, 1988. Moreover, claimant did not obtain authorization to seek medical assistance in Iowa City, or at Mayo Clinic. 10. On June 27, 1988, claimant was seen by Dr. Washburn in the Park Clinic in Mason City. Claimant gave a history of his injury. Since that incident, claimant complained of headaches, blurred vision and some numbness of the left arm and a little bit of weakness on the left side with pain down the left arm. He has also noted some slowness in thinking. Dr. Washburn apparently felt after examination that claimant was suffering from post-concussion syndrome. On June 28, 1988, claimant had CT examination which was negative for mass lesions or enhancing lesions. There was no evidence of intracranial hemorrhage and the skull was intact. There was nothing to suggest a subdural hematoma. 11. On July 22, 1988, claimant was evaluated by Sant M.S. Hayreh, M.D. Claimant indicated at the time that his main problem was poor memory, headaches and neck pain, left arm and leg pain since his June 3, 1988 injury. He also noted that his pep and energy level was low and he felt tired and exhausted most of the time. Claimant was moody but without suicidal ideation. Claimant reported to Dr. Hayreh that his medical history was insignificant for any major medical problem except a back surgery in 1981. On examination, Dr. Hayreh found that it was remarkable for a flat affect. The neurological examination revealed that claimant was alert and awake with fairly good recent and remote memory. Claimant had problems with simple subtractions even though he had a GED. His right and left orientation was intact, his speech was normal and his cranial nerve examination showed visual acuity that needed correction. Upon examination on the left side, claimant reported subjective dulling but was otherwise normal. There was no atrophy and claimant had full range of motion. The lower extremity examination was normal with straight leg raising negative bilaterally. Claimant's gait was normal along with the associated swing in both upper extremities. Claimant's neuropsychological testing was highly inconsistent. These findings were non-conclusive and there is a significant degree of underlying secondary gain. In conclusion, Dr. Hayreh thought that claimant had the following problems: (1) post traumatic syndrome with headache and memory loss and a significant degree of underlying secondary gain with depressive symptoms; (2) musculoskeletal type of neck pain; (3) non-specific aches and pains in different parts of his body without any objective findings that are functional in nature; (4) microcytic hyperchromic anemia for which Page 6 claimant needs treatment; (5) depressive neurosis. At that point, Dr. Hayreh released claimant to see him on an as needed basis. 12. On August 18, 1988, claimant had a psychological evaluation by Dr. Peltan in Mason City. Claimant gave Dr. Peltan an incomplete and inconsistent social history. Dr. Peltan administered a series of tests to claimant to measure neuropsychological functions.(Jt. Ex. 4) Dr. Peltan concluded that claimant's neurophysiological findings were highly inconsistent. Claimant's tests varied so widely that it was difficult to determine whether claimant had indeed suffered a closed head injury. Furthermore, there is no consistent data to indicate the locus of a lesion as expected in an individual with a closed head injury. His forgetfulness and other problems might be understood best in terms of his personality structure and perhaps more importantly in terms of the secondary gain that his injury and supposed deficit might provide him. Dr. Peltan concluded, within a reasonable degree of psychological certainty, that the tests when taken as a whole would not show that claimant suffered any kind of brain trauma. This conclusion was due to the lack of consistency between the testing. If the test results were accurate, claimant would be fairly severely impaired requiring a good deal of supervision of his every day activities. Claimant clearly did not require a good deal of supervision. 13. Claimant was next seen at the University of Iowa on September 16, 1988. He went the University Hospitals on his own referral. Claimant was seen by Dr. William Yates, a psychiatrist. Dr. Yates diagnosed claimant as having atypical depression. The diagnosis was confirmed by D. Langbehn, M.D., and Neill Graff-Radford, M.D., who evaluated claimant in order to rule out major depressive disorder. They found that there was no obvious cognitive deficit. 14. In September of 1988, claimant participated in two hearings regarding a back pay dispute with Prairie Farms. At the time of the hearing claimant had no problem with his memory. He was able to recite dates and contacts precisely during the course of that hearing. Claimant negotiated a very favorable settlement in September where he recovered $52,500, and health and welfare benefits until he began to draw his pension. Additionally, he agreed to a paid-up pension and then he voluntarily resigned from Prairie Farms effective June 6, 1989. He was on a voluntary leave of absence in the interim. Claimant's current benefits include health insurance and a monthly payment from the pension fund. During the course of these proceedings claimant was under the care of Dr. Peltan and was beginning his treatment at the University of Iowa for the claimed memory loss and other conditions relating to the injury of June 3, 1988. Claimant did not disclose that he was involved with this litigation to these doctors. 15. Claimant returned to the University of Iowa and saw Dr. Yates on September 29, 1988. Dr. Yates concluded that Page 7 claimant showed mild to moderate deficits in the acquisition and recall of novel information and speed reading ability in the context of relatively average aspects of intellect, visiospacial abilities and speech and language. His deficits on tests of memory, processing of information and diminished effort were consistent with cognitive impairment seen secondary to depressive episodes as acknowledged by the patient on a self-report inventory. Claimant was advised for the need of a full neurophysiological examination in the event of litigation. 16. On November 3, 1988, claimant was administered an Minnesota Multiphasic Personality Inventory (MMPI). The results were invalid. Claimant's response style was suggestive of a calculated effort to endorse multiple and severe psychological and physical symptoms of distress. 17. On November 4, 1988, Dr. Yates directed a letter to claimant documenting his current condition for insurance and work purposes. Dr. Yates gave a brief summary of claimant's condition and symptoms. Dr. Yates indicated that the symptoms presented following a work-related head injury. He went on to indicate that, although claimant's symptoms were not classical for depression, a working diagnosis to rule out depression was made and medication was begun. Dr. Yates concluded his letter by indicating that claimant was unable to resume his previous employment because of memory and other cognitive impairments demonstrated by neuropsychological testing which may be due to depression. 18. Claimant gave incomplete histories to the doctors who examined him at the University of Iowa. When Dr. Yates first saw claimant, he did not have available to him past medical records as to the nature of his complaints or records from Dr. Hayreh, M.D., or Mark R. Peltan, Ph.D.. There was no social history taken from claimant. Dr. Yates indicated during his deposition that if claimant was involved in litigation he would have a poor response to treatment for major depressive disorder. Dr. Yates also indicated that social factors can influence the onset of a major depressive episode. These can include interpersonal difficulties with significant family members, changes in work, occupational status, changes in financial situation, or death, sickness or injury to close family members. These factors would also include divorce and child custody issues. Dr. Yates was not aware that claimant was undergoing any change in job status or having domestic problems in connection with his child support payments at the time he was under evaluation by Dr. Yates. Dr. Yates did not know that in June of 1989 claimant was looking forward to retirement from work. Dr. Yates was also not aware that claimant was involved in a back pay dispute with Prairie Farms at the time of his treatment. Nor did he know that claimant was having financial problems with creditors from Utah. Nor was Dr. Yates aware that claimant had a criminal record. If Dr. Yates had been aware of those changes, it could affect his impression of claimant's condition. Page 8 However, it did not. Dr. Yates also indicated that it is possible for an individual to develop a major depressive disorder without having any complaints of any type of head trauma. Additionally, Dr. Yates could not explain the inconsistencies in claimant's neurobehavior evaluation tests regarding problem solving tasks and other neuropsychological testing. 19. A variety of tests were run on claimant after his initial examination by various departments at the University Of Iowa and all of the tests, MRI scans, CT scans, EMG studies, and nerve conduction velocity studies were negative. This included the cervical spine MRI. 20. On December 19, 1988, Dr. Yates wrote to Renee Kidman and indicated that the exact cause of claimant's depression was unknown. Dr. Yates reported that a major depressive disorder can result from head trauma, although a normal MRI makes this less likely. Claimant had a normal MRI in this case. 21. On January 4, 1989, Dr. Yates again directed a letter to claimant regarding his condition. The letter indicates that claimant had been seen three times by the Psychiatry Clinic in Iowa City. Dr. Yates summarized a report from David A. Kent, M.D., which indicated there is reasonable medical certainty that claimant's his closed head trauma is somehow associated with his current symptomatology. Claimant was given no return to work date in this report. 22. Thereafter, claimant was seen on a regular basis by Dr. Yates and others at the University of Iowa for depression. Dr. Yates continually changed his mind regarding the cause of claimant's depressive disorder. In March of 1989, he outlined claimant's symptoms as including chronic headaches with depression, subjective complaints of difficulty with his memory and thinking and suicidal ideation. Dr. Yates went on to report that claimant's symptoms have been somewhat atypical of depression, but the working diagnosis for claimant's condition was now major depressive disorder. He indicated that, in view of the time sequence of the onset of symptoms, he felt that his head injury was a contributing cause of his current psychiatric condition. He went on to say that he thought claimant should be given some consideration for appropriate workers' compensation. In July of 1989, after claimant had been hospitalized for depression and after he had generated remarkably inconsistent results on neuropsychological tests before and during his hospitalization(7), Dr. Yates indicated that claimant has a depressive disorder of unclear etiology. Claimant had no neurological deficits that could be documented. With these results, Dr. Yates indicated that it would be extremely difficult to rule out malingering or factitious disorder in connection with claimant's complaints regarding his depressive disorder.(8) Dr. Yates confirmed this conclusion during his deposition. 23. On March 17, 1989, claimant filled out an application for disability insurance benefits with Social Security Administration. Claimant identified his disabling condition as poor memory. Claimant did not indicate that the disabling condition was work related. 24. On March 20, 1989, Dr. Yates concluded that claimant's symptoms are somewhat atypical of depression, but he was working with a diagnosis of probable major depressive (7). Claimant continued to generated invalid testing results at the University of Iowa. The tests administered by Daniel Tranel, Ph.D., on March 6, 1989, indicated that claimant was unable to exert any effort at all on testing that he had performed in connection with neuropsychological evaluations. Dr. Tranel felt that claimant had deliberately directed his efforts to generate defective scores. Again on June 20, 1989, Keith Rogers, M.D., a staff psychiatric physician at the University of Iowa Hospitals and Clinics, indicated that the results of claimant's MMPI were suggestive of someone trying to magnify the extent of his physical and mental disabilities. Dr. Rogers' impression was that it was difficult to attribute the onset of the claimant's mood disturbance wholly to the head trauma without any other physiological sequelae or laboratory abnormality. Dr. Rogers ruled out an organic mood syndrome and a major depressive disorder for claimant. During claimant's hospital stay, staff physicians Summers, M.D. and Woods, M.D.,. indicated that, if claimant's responses to the neuropsychological tests were valid and reliable, it would be indicative of a severe depression symptomatology. However, claimant continued to deliberately generate defective performances on neuropsychological testing so that there was virtually no way to tell whether there was a relationship between his depression and memory deficits. (8). A factitious disorder and malingering are similar in that they are based on an attempt by a patient to produce symptoms for secondary gain. Malingering would generally be an attempt to produce symptoms for monetary purposes for financial reimbursement. Factitious disorder can be a conscious production of symptoms for nonmonetary kinds of purposes such as attention or getting into the hospital. Generally, in order to make this kind of diagnosis, the doctor would have to look for evidence that the patient has a previous history of such behavior. The doctor would suspect an individual who may have personality disorders, any social personality disorders which would include criminal behaviors as part of their background. This also could include individuals who have been involved in litigation. Page 9 disorder. In view of the time sequence of the onset of his symptoms, it was Dr. Yates' feeling that the head injury was a contributing cause to his current psychiatric condition. On March 27, 1989, Dr. Yates had another opportunity to evaluate claimant. Dr. Yates indicated that claimant was probably suffering from a major depressive disorder, status post-closed head trauma, and chronic headaches. Dr. Yates believed that claimant's condition at this point was work related. 25. On June 3, 1989, claimant had a psychological evaluation performed by Janis L. Konke, M.S., a licensed psychologist, and Alford S. Karayusuf, M.D. Claimant was referred for the purpose of obtaining additional information about his current level of intellectual functioning. Claimant gave background information regarding his head injury and his course of care since that time. Claimant gave no social history other than post injury history regarding mood swings and interaction with his wife. Claimant was given several tests. As a result of these tests Dr.Karayusuf and Ms. Konke concluded that the results from the testing suggest mild deterioration in memory from his current IQ scores. But it was difficult to determine whether claimant showed a decline in overall cognitive performance because of uneven motivation on the test. 26. On June 20, 1989, claimant was admitted to the University of Iowa Hospitals for treatment of a major depressive disorder. Claimant gave a history of his head injury and then the immediate onset of depression. Claimant was examined by Dr. Summers who was unable to explain why claimant's depression occurred when he was completely healthy prior to the head trauma of June 3, 1988. In the clinical notes of June 19, 1989, Dr. Summers indicated that claimant's depression was improving rapidly. However, he found it difficult to attribute claimant's depression to his head injury, since the depression is progressive and it suddenly responded to Prozac. This conclusion was bolstered by the multiple abnormal and invalid neuropsychological testing results. 27. Claimant's behavior during his hospitalization continued on its inconsistent course. Claimant was complaining of sleep loss yet while hospitalized, he was sleeping eight and one-half hours to nine hours per night and complained of sleeplessness. Claimant was also complaining of memory loss but he had excellent recall of his medical history and the course of care that he has received. At the conclusion of claimant's neurobehavioral consultation, R. D. Jones, Ph.D., found that claimant was deliberately attempting to generate defective performance on the neuropsychological tests. 28. At the time of his discharge, claimant was diagnosed as having major depressive disorder, microcytic anemia, status post-head injury June 1988, and atypical chest pain. The staff indicated that it was difficult to attribute the onset of his mood disturbance solely to a head trauma without any other psychological sequelae or laboratory abnormality. However, Dr. Rogers indicated it can be possible that claimant's mood disturbance is solely related to the head trauma in which case an organic mood syndrome is an appropriate diagnosis. A major depressive disorder is essentially the same syndrome. Dr. Rodgers went on the Page 10 conclude that there was no etiological factor present in this circumstance. Consequently a major depressive disorder is less likely than an organic mood syndrome. Dr. Rodgers noted that because of the pending litigation and an invalid MMPI with exaggerated complaints and there is a possibility of malingering or a factitious disorder. 29. On March 7, 1990, Dr. Yates prepared a progress note regarding claimant's condition and the possible relation to his head injury. The visit with claimant on this date was designed to further evaluate historical factors in his symptoms. Claimant's history was tidied up in Dr. Yates' report. The assessment on this date was that claimant had a major depressive disorder secondary to his head injury. On March 20, 1990, Dr. Yates indicated that it was his professional opinion that claimant's accident on June 3, 1988, caused his current psychiatric illness. 30. Claimant was examined by Samuel L. Graham, Ph.d., on July 2, 1990. Dr. Graham concluded that claimant was uncooperative and his response style suggested a conscious attempt to magnify symptoms or to claim symptoms to enhance his chances of monetary gain. Claimant's test results were not consistent with known and accepted profiles for cognitive disorders or emotional patterns. Claimant was found to be motivated noncompliant(9). Dr. Graham's findings were consistent with those of Dr. Peltan and the University of Iowa. Claimant was tested for potential epileptic conditions which were negative. Based on a review of all of the records made available to him, Dr. Graham concluded that there is no reliable evidence to support the claimant's claim of cognitive deficits and, if there were reliable evidence to support the alleged cognitive deficits, they would most reasonably be attributed to psychological/psychiatric factors and not organic factors related to the reported head injury. 31. On September 10, 1990, Joseph M. Doro, D.O., a neurologist, had an opportunity to evaluate claimant. Claimant gave a description of his injury and symptoms. Dr. Doro summarized claimant's medical care and test results to September 10, 1990 from the records made available to him. On examination, Dr. Doro found that claimant was able to give a good amount of information about his illness and he was able to go into detail about what happened at the time of his injury and also about the number of other physicians that he has seen. Dr. Doro found this ability to be inconsistent with poor memory or memory loss. Dr. Doro concluded after the exam and review of claimant's records that, in his opinion based upon a reasonable degree of medical certainty, there was no neurological basis for claimant's complaints. 32. On March 20, 1991, claimant began a self referred evaluation at Mayo Clinic. At the time of his admission, claimant was diagnosed as having post traumatic syndrome with somatization and normal neurological studies. When claimant was evaluated in the neurological clinic he gave a description of his injury and symptoms. After the (9). Motivated noncompliance is interpreted to mean that a patient is being uncooperative intentionally for some reason that is outside of the normal assumption of the motivation of the patient seeking treatment, such as, secondary gain. Page 11 examination, Dr. Bastron thought that claimant was suffering from post-traumatic syndrome. Dr. Bastron noted that there was no evidence of organic disease or damaged nervous system on clinical examination. He noted that there was a secondary gain element involved in claimant's case. The eye clinic confirmed that claimant needed glasses to correct a blurred vision problem. On continued examination at the neurological clinic, Dr. Peterson noted that claimant's symptoms are those of a depression disorder and chronic pain disorder. The MMPI shows general elevation and marked elevation of several scales associated with somatization and obsessive thinking. Dr. Peterson found it hard to believe that claimant's depression could be due to his original injury if it was as trivial as it seems. Dr. Peterson related claimant's depression to the unsettled litigation. Dr. Peterson thought claimant was probably overstating his symptoms and complaints. At the time of his discharge, claimant's final diagnosis was post-traumatic syndrome, sexual dysfunction, possible depression, prosbyopia, mild anemia due to beta thalsassemia trait, and tension headaches and tension myalgias of the neck. 33. On May 17, 1991, Dr. Peltan had an opportunity to review claimant's medical records for the time period after he evaluated claimant in 1988. These records contained further social history for claimant including pending child support litigation and his financial problems. Many of the stressors in claimant's life, Dr. Peltan concluded, were self-induced. Claimant was undependable about paying bills and meeting other financial obligations. This pattern appeared to be longstanding. His behavior seems to be in keeping with Dr. Peltan's previous impression of an individual who manipulates the system, who is opportunistic and who disregards the usual social norms. He concurs with findings from the Mayo Clinic that, due to claimant's pending litigation, it is difficult to assess the presence of depression. Dr. Peltan concluded that claimant had created a life style for himself that is depressing. Whether or not he has an actual effective illness is questionable. 34. On June 10, 1991, claimant's medical records were reviewed by James L. Gallagher, M.D., a board certified psychiatrist. Claimant did not appear for the scheduled appointment on May 1, 1991. Claimant refused to attend the evaluation by Dr. Gallagher because claimant's counsel believed that defendants had already had enough opportunities to evaluate claimant. Dr. Gallagher had a complete record of claimant's treatment. Based upon this record, he concluded that Dr. Yates' diagnosis was flawed and that the causal connection between the injury and claimant's depression had no basis in the medical evidence accumulated after claimant was injured in 1988. Dr. Gallagher questioned Dr. Yates' diagnosis of either atypical depression or major depressive disorder because it was not clear how these diagnoses are different. Page 12 Additionally, he notes that the connection between the injury and the depression was not clear and was a puzzlement even to Dr Yates. Dr. Gallagher found that there was an acceptance of claimant's stated subjective complaints without reference to premorbid functional history which was significant for life stressors. Dr. Gallagher also pointed to the normal neurological findings and test results at the University of Iowa and by Dr. Doro as supporting his conclusion that the causal connection between claimant's injury at work and his depression was tenuous. Dr. Gallagher indicated that the inconsistent test results also support his conclusion that claimant's injury at work did not cause his depression. Dr. Gallagher found that there was clearly a pattern of symptom maximization in order to achieve financial gain. Dr. Gallagher concluded that claimant was demonstrating all of the indicators for malingering. These indicators include (1) the medical/legal contest, (2) the obvious inconsistencies in neuropsychological testing, (3) Dr. Yates' own puzzlement as to why claimant would develop a depressive disorder after his head injury (4) claimant's pre-morbid history and (5) the fact that there simply is no substantial evidence of head injury. 35. On May 24, 1991, Renee Kidman, a rehabilitation professional, began a rehabilitation services for claimant. After testing, Ms. Kidmant concluded that the claimant gave less than optimal effort on the tests and the results were inconsistent with his abilities. Claimant was unconcerned about the future since his wife was working, he was drawing the maximum Social Security benefits, he has a retirement benefit, and he has a Jaguar in the garage. 36. On June 17, 1991, Dr. Verma examined claimant for evaluation of left-sided numbness. Dr. Verma had a history of claimant's injury and symptoms after the injury. Dr. Verma was aware of claimant's other treatment at the University of Iowa and Mayo Clinic. After the examination, Dr. Verma's impression was that claimant was suffering from post-traumatic syndrome with numerous somatic complaints probably related to underlying depression. He was also suffering from tension headaches, subjective paresthesia on the left side, nonanatomical in distribution with several of the somatic complaints most likely related to the underlying depression. Dr. Verma noted that the unsettled litigation made assessment of these conditions difficult. Claimant had give way weakness on the left during the examination. A repeat EMG and nerve conduction study was done on June 25, 1991. The test was normal for the left arm and leg. 37. Claimant's monthly income, consists of a Social Security check for $781 per month. Additionally, claimant draws a pension benefits form his union in the amount of $234 per month. Income for claimant's family includes a Social Security disability payment for claimant's child currently living with him in the amount of $333 and for his wife in the amount of $330. Total monthly income for the Page 13 household is $1,681 per month. The bulk of these sums are tax free. Additionally, claimant qualifies for medicare benefits since he is on Social Security disability. 38. On March 1, 1990, the University of Iowa Hospitals submitted a bill in the amount of $8,124.55 for services rendered to claimant. There is a medical service balance of $1,122.00. Of these amounts, it appears that claimant had work done on his teeth while he was at the University of Iowa Hospitals on June 27 for a total of $55.75. Claimant also apparently had chest x-rays, and an electrocardiogram on at least two occasions. The amounts for those services were $29.25 and $172.00, respectively. Claimant also had a stress test and a treadmill test totalling $149.50 and $45.50, respectively. Medical services in connection with the cardiovascular stress test totalled $104.00. Claimant also had subsequent x-rays of his teeth that cost $16.00 for the medical services provided in connection with the x-rays. Additionally, the costs associated with the chest x-rays and the electrocardiogram totalled $26.00 and $24.00, respectively. CONCLUSIONS OF LAW 1. Whether claimant sustained an injury on June 3, 1988, which arose out of and in the course of his employment with Prairie Farms. Claimant urges that he has suffered an injury that arose out of and in the course of his employment when he struck his head in some fashion on June 3, 1988. The defendants urge that the injury did not occur. Claimant has the burden of proving by a preponderance of the evidence that he received an injury on June 3, 1988 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904, 908 (Iowa 1976); Musselman v. Central Telephone Co., 154 N.W.2d 128, 130 (Iowa 1967). The words "arising out of" have been interpreted to refer to the cause and origin of the injury. McClure v. Union County, 188 N.W.2d 283, 287 (Iowa 1971); Crowe v. DeSoto Consolidated School District, 68 N.W.2d 63, 65 (Iowa 1955). The words "in the course of" refer to the time, place and circumstances of the injury. McClure, 188 N.W.2d at 287; Crowe, 68 N.W.2d at 65. An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while the employee is doing work assigned by the employer or something incidental to it. Cedar Rapids Community School District v. Cady, 278 N.W.2d 298, 299 (Iowa 1979), McClure 188 N.W.2d at 287; Musselman, 154 N.W.2d at 130. 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 injury; i.e., the injury followed as a natural incident of the work. Musselman, 154 N.W.2d at 130; Reddick v. Grand Union Tea Co., 296 N.W. 800, 804 (Iowa 1941). The Supreme Court has defined a personal injury for the purposes of workers' compensation cases. Almquist v. Page 14 Shenandoah Nurseries, 254 N.W. 35, 38 (Iowa 1934). In this case the Court found that a personal injury, is an injury to the body, the impairment of health, or a disease, not excluded by the Workers Compensation Act, which comes about, not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee. The injury to the human body must be something, whether an accident or not, that acts extraneously to the natural processes of nature, and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. The Almquist Court further observed that while a personal injury does not include an occupational disease under the Workmen's Compensation Act, yet an injury to the health may be a personal injury. A personal injury includes a disease resulting from an injury. However, the result of changes in the human body incident to the general processes of nature do not amount to a personal injury. This is true, even though natural change may come about because the life has been devoted to labor and hard work. Results of those natural changes do not constitute a personal injury even though the same brings about impairment of health or the total or partial incapacity of the functions of the human body. In this instance, the claimant has not shown that he has suffered an injury that arose out of and in the course of his employment. The only medical evidence that establishes a causal connection between claimant's depression, and his bump on the head is by Dr. Yates. Dr. Yates' opinion is discounted in this instance because he had an incomplete history when claimant presented for treatment. Claimant failed to give any social history which might have influenced Dr. Yates opinion of the cause of claimant's depression. More compelling are the opinions of the University of Iowa doctors, the doctors at Mayo Clinic and Drs. Doro and Gallagher regarding the cause of claimant's depression. None of these professionals were willing to make the same connection that Dr. Yates made on the same facts. With the additional facts provided to Dr. Peltan and Dr. Gallagher the connection between the work injury and the resulting depression becomes even more tenuous. The varying descriptions of claimant's injury suggest that he could not refrain from embellishing the claimed hurt once he decided there was a secondary gain element in the telling and re-telling of the circumstances of the injury. The subsequent medical reports and tests could find no evidence of the injury to claimant's head. Des Moines General emergency room doctors found no evidence of a laceration or intermittent bleeding from claimant's head at the time they examined claimant. There was no evidence of any lesion or subdural hematoma after the injury when a CT scan was performed in early July. In short, there was no objective evidence to support the existence or after effects Page 15 claimant's alleged injury. Claimant's supervisor did not see any evidence of an injury and none of claimant's coworkers saw the injury. Claimant's report of the injury is the only report of the injury and it is unreliable. Moreover in connection with claimant's depression, claimant's inconsistent test results and convenient memory failures along with the medical conclusions in this regard all support the conclusion that claimant's depression did not result from any incident at work. Consequently, claimant will take nothing from this proceeding. The remaining issues raised by the claimant are moot since claimant has failed to pass the threshold test for establishing a workers' compensation claim. Claimant is not entitled to a running healing period award and claimant is not entitled to have his medical bills paid. order THEREFORE, it is ordered: 1. That claimant shall take nothing from this proceeding. 2. The costs of this action shall be assessed to claimant pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of April, 1992. ________________________________ ELIZABETH A. NELSON DEPUTY INDUSTRIAL COMMISSIONER Page 16 Copies To: Mr Arvid D Oliver Attorney at Law 2635 Hubbell Avenue Des Moines Iowa 50317 Ms Dorothy L Kelley Attorney at Law 500 Liberty Building Des Moines Iowa 50309 5-1108 Filed April 29, 1992 ELIZABETH A. NELSON before the iowa industrial commissioner ____________________________________________________________ : JAMES JONES, : : Claimant, : : vs. : : File No. 897423 PRAIRIE FARMS DAIRY, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : NATIONAL UNION FIRE : INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1108 The evidence was insufficient to show that claimant's injury, a major depressive disorder arose from a bump on his head. The claimant was not credible and the evidence regarding his injury was in such disarray that a finding of arising out of and in the course of employment could not be made. Page 1 before the iowa industrial commissioner ____________________________________________________________ : DONNA L. SPARROW, : : File No. 897528 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N SHELLER-GLOBE CORP., : : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Donna L. Sparrow, claimant, against Sheller-Globe Corp., employer (hereinafter referred to as Sheller), a self-insured defen dant, for workers' compensation benefits as a result of an alleged injury on October 4, 1988. On April 17, 1990, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of con tested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. Oral testimony and written exhibits were received during the hearing from the parties. The exhibits offered into the evidence are listed in the prehearing report. According to the prehearing report, the parties have stipulated to the following matters: 1. On October 4, 1988, claimant received an injury which arose out of and in the course of his employment with Sheller. 2. Claimant's entitlement to temporary total disabil ity or healing period benefits extend from October 10, 1988 through April 13, 1989. 3. The injury is a cause of permanent disability and the type of disability is an industrial disability to the body as a whole. 4. Permanent partial disability benefits shall begin on April 14, 1989. 5. Claimant's rate of weekly compensation as a result of the injury in this proceeding shall be $265.65. 6. All requested medical benefits have been or will be paid by defendant. issue Page 2 The only issue submitted by the parties for determina tion in this proceeding is the extent of claimant's entitle ment to disability benefits. findings of fact Having heard the testimony and considered all the evi dence, the deputy industrial commissioner finds as follows: A credibility finding is necessary to this decision as defendant places claimant's credibility at issue during cross-examination as to the nature and extent of the dis ability. From her demeanor while testifying, claimant is found credible. Claimant has worked for Sheller since April of 1984 and continues to do so at the present time. Claimant's health prior to her employment at Sheller and her work injury herein was good and she had no prior low back problems. Claimant's highest paying job before her injury was making "inserts." Prior to the work injury in this case, claimant was demoted in a plant reduction to the mold room and it was while performing mold room duties that she suffered the injury herein. On October 4, 1988, claimant injured her low back by rupturing a disc at the L4-5 level of her spine while push ing a mold form across a cement floor. Claimant's condition was rather quickly diagnosed as a ruptured disc and she underwent surgery to correct the problem on October 17, 1988, by Robert Mirbegian, M.D., claimant's primary treating orthopedic surgeon. Claimant required several months to recover from the surgery. Claimant was first released to light duty in February 1989, but a job was not found to accommodate her restrictions and she did not actually return until April 14, 1989. Dr. Mirbegian initially recommended a temporary restriction that she should have a job that would allow her to change positions every couple of hours. Claimant did not return to the mold room in April 1989. She returned to work to a different job called "trimming plugs." This job is light duty and allows claimant to either sit or stand. Claimant continues to perform this job at the present time. Claimant did not suffer a loss of earnings from moving from the mold job to her current job. No evidence was offered as to what the job of making inserts pays at the current time. As a result of the work injury of October 4, 1988, claimant has a 10 percent permanent partial impairment to the body as a whole. Also, claimant is permanently restricted from activity which would require lifting over 5-10 pounds and is restricted from repetitive bending, stoop ing or lifting. She also can only perform jobs which allow her to change positions frequently in the course of a work day. Claimant must change positions every few hours to pre vent pain and numbness in her legs. The percentage of impairment finding was based upon the views of Dr. Mirbegian. There was another rating by Dr. G. M. Crank. Page 3 His views could not be given greater weight than those of Dr. Mirbegian for a variety of reasons. First, there is no indication of any specialty, if any, or what type of medical training Dr. Crank has had as he did not sign his name with any title such as M.D., D.O. or D.C. Also, Dr. Crank gives a disability rating but states that it is not permanent as claimant should still be under care. Claimant testified that Dr. Crank imposed a 5-10 pound restriction and imposed restrictions against bending, reach ing and stooping. It is found that these inded are her cur rent restrictions. This finding that the restrictions coin cide with those imposed by Dr. Crank is based primarily on the credible testimony of claimant as to her own assessment of her limitations. As a result of the work injury of October 4, 1988, claimant has suffered a 15 percent loss of earning capacity. The claimant's loss of earning capacity has been minimized because of defendant's accommodation for her disability. Prior to the injury, claimant was able to perform heavy lifting, repetitive lifting, bending, twisting and stooping and prolonged sitting and standing. Due to the work injury and resulting physical limitations, claimant's medical con dition prevents her from returning to her former work to the mold department or making inserts. However, claimant has been returned to work in a job she requested to minimize her pain and discomfort. Also, claimant is relatively young at the age of 29 years. Claimant's past employment primarily consists of waitress work and assembly. Claimant has not offered evidence that she is unable to perform a waitress job although an inability to perform repetitive lifting and bending would restrict her from most assembly work. Claimant's earnings to date have not been affected and this will continue so long as she is able to continue in her pre sent job at Sheller. There was no evidence that this job was not suitable or stable at the present time. Page 4 conclusions of law I. Claimant must establish by a preponderance of the evidence the extent of weekly benefits for permanent dis ability to which claimant is entitled. As the claimant has shown that the work injury was a cause of a permanent physi cal impairment or limitation upon activity involving the body as a whole, the degree of permanent disability must be measured pursuant to Iowa Code section 85.34(2)(u). However, unlike scheduled member disabilities, the degree of disability under this provision is not measured solely by the extent of a functional impairment or loss of use of a body member. A disability to the body as a whole or an "industrial disability" is a loss of earning capacity resulting from the work injury. Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A physical impairment or restriction on work activity may or may not result in such a loss of earning capacity. The extent to which a work injury and a resulting medical condi tion has resulted in an industrial disability is determined from examination of several factors. These factors include the employee's medical condition prior to the injury, imme diately after the injury and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, l985). In the case sub judice, it was found that claimant has suffered a 15 percent loss of earning capacity as a result of the work injury. Based upon such a finding, claimant is entitled as a matter of law to 75 weeks of permanent partial disability benefits under Iowa Code section 85.34(2)(u) which is 15 percent of 500 weeks, the maximum allowable for an injury to the body as a whole in that subsection. The parties stipulated as to the extent of claimant's entitlement to healing period benefits. order 1. Defendant shall pay to claimant seventy-five (75) weeks of permanent partial disability benefits at the stipu lated rate of two hundred sixty-five and 65/l00 dollars ($265.65) per week from April 14, 1989. 2. Defendant shall pay the healing period benefits as stipulated but for the period of time stipulated by the par ties from October 10, 1988 through April 13, 1989, at the rate of two hundred sixty-five and 65/l00 dollars ($265.65). 3. Defendant shall pay accrued weekly benefits in a Page 5 lump sum and shall receive credit against this award for all weekly benefits previously paid. 4. Defendant shall pay the interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 5. Defendant shall pay the cost of this action pur suant to Division of Industrial Services Rule 343-4.33. 5. Defendant shall file activity reports on the pay ment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this ____ day of September, 1990. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. James P. Hoffman Attorney at Law Middle Road Keokuk IA 52632 Mr. Harry W. Dahl Attorney at Law 974 73rd St Suite 16 Des Moines IA 50312 5-1803 Filed September 4, 1990 LARRY P. WALSHIRE before the iowa industrial commissioner ____________________________________________________________ : DONNA L. SPARROW, : : File No. 897528 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N SHELLER-GLOBE CORP., : : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 5-1803 Extent of permanent partial disability benefits. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : NANCY L. KAMERLING, : : Claimant, : : File Nos. 997296 vs. : 938346 : 898273 MARRIOTT CORPORATION, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : ARGONAUT INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Nancy Kamerling, claimant, against Marriott Corporation, employer, hereinafter referred to as Marriott, and Argonaut Insurance Company, insurance carrier, defendants, for workers' compensation benefits as a result of alleged injuries on September 15, 1988, March 3, 1989 and October 19, 1989. On September 16, 1993, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a hearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. The oral testimony and written exhibits received during the hearing are set forth in the hearing transcript. According to the hearing report, the parties have stipulated to the following matters: 1. An employee-employer relationship existed between claimant and Marriott at the time of the alleged injuries. 2. On September 15, 1988 claimant received an injury arising out of and in the course of employment with Marriott. Defendants dispute the occurrence of an injury on March 3, 1989 and October 19, 1989. 3. Claimant is not seeking additional temporary total or healing period benefits in this proceeding. 4. Medical benefits are not in dispute. ISSUES The parties submitted the following issues for Page 2 determination in this proceeding: I. Whether claimant received injuries arising out of and in the course of employment in March and October 1989; and, II. The extent of claimant's entitlement to permanent disability benefits. FINDINGS OF FACT Having heard the testimony and considered all of the evidence, the deputy industrial commissioner finds as follows: Claimant, age 59, has worked for Marriott since 1984 and continues to do so at the present time. At the time of the injuries, claimant was a cook at Cornell College. The college contracts out its food service function to defendants. Due to restrictions on her physical activity, claimant now works as a cafeteria worker performing duties such as delivery of food; setting up equipment; maintaining the salad bar; making coffee; clean up; etc. Claimant stated that she prefers working as a cook. Claimant has demonstrated by the evidence injuries at the times alleged. The undisputed injury in September 1988 involved a slip and fall in which she injured her back. Claimant received chiropractic treatment for this injury. Claimant states that this involved primarily the upper back. However, her medical records show a primary diagnosis of grade I spondylolisthesis with degenerative arthritis at the L4-5 level of her lower spine. Claimant also injured her back on March 3, 1989 and again on October 19, 1989 while performing her duties at Marriott. Although denied by defendants, there is little question that she suffered pain and required treatment at these times. However, the real fighting issue is the causal connection of these injuries to permanency. Also, there is little question in the record that claimant does suffer a significant permanent impairment as a result of her back condition. Functional capacities testing indicates a general inability to lift, carry, push or pull heavy weights. However, claimant has had chronic back problems since a fall while trout fishing in August 1986. Claimant has received regular chiropractic care since that time following repeated episodes of back strain and pain after physical activity involving numerous falls, twisting episodes, bending from painting, jerking from an auto accident and using household appliances. This continuous and chronic condition continues at the present time. Claimant has not been without chiropractic care for more than six months since 1986. By far the most significant injury was the December 15, 1988 fall at work. Claimant, at hearing, admitted that most Page 3 of her problems began at that time. The evidence does not show a change in the course of pain and treatment as a result of the incidents at work in March and October 1989. It is found that these injuries were only temporary aggravations of claimant's pre-existing condition. Claimant has failed to show that either of these injuries were a cause of her current permanent disability. The only physician to render a causation opinion definitely does not relate the spondylolithesis to any of the injuries herein. Also, he indicates that the question largely is the matter of when the first onset of symptoms occurred. These appear to be well before either of the two injuries on March 3, 1989 and October 19, 1989. Whether or not the December 15, 1988 injury is a causative factor in permanency is not relevant as more than three years elapsed between the last payment of weekly benefits for that injury on November 11, 1988 and the filing of the arbitration petition for that injury on December 12, 1991. CONCLUSIONS OF LAW I. Claimant has the burden of proving by a preponderance of the evidence that claimant received an injury arising out of and in the course of employment. The words "out of" refer to the cause or source of the injury. The words "in the course of" refer to the time and place and circumstances of the injury. See generally, Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). An employer takes an employee subject to any active or dormant health impairments. A work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. U.S. Gypsum, 252 Iowa 613, 620, 106 N.W.2d 591 (1961), and cases cited therein. In the case sub judice, sufficient evidence was presented to show work injuries at the times alleged. However, the real dispute involved causation of those injuries to permanency. II. The question of causal connection is essentially within the domain of expert medical opinion. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion of experts need not be couched in definite, positive or unequivocal language and the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). The weight to be given to such an opinion is for the finder of fact to determine from the completeness of the premise given the expert or other surrounding circumstances. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Furthermore, if the available expert testimony is insufficient alone to support a finding of causal connection, such testimony may be coupled with non-expert testimony to show causation and be sufficient to sustain an award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 Page 4 N.W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (1974). To establish compensability, the injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith at 354. In the case of a preexisting condition, 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). In the case sub judice, claimant contends that she has suffered additional disability as a result of the work injuries in March and October 1989 due to additional permanent impairment to the back. First, the evidence established that she suffers from a permanent impairment to the back. However, the evidence failed to show the requisite causal connection between any of these work injuries and the permanent impairment. Any claim based upon the December 15, 1988 fall injury at Marriott must be denied as it is untimely. Claimant must establish by a preponderance of the evidence that she filed her claim with this agency within the prescribed period of time allowed under Iowa Code section 85.26. Such a showing is necessary to demonstrate this agency's subject matter jurisdiction over the controversy and a condition precedent to filing suit for comp benefits under chapters 85, 85A, 85B and 86 of the Iowa Code. Mousel v. Bituminous Material and Supply Co., 169 N.W.2d 763 (Iowa 1969). Generally, claims for benefits must be filed within two years of the date of injury or within three years of the date of a late payment of weekly benefits. As it was found that more than three years elapsed between the last payment of weekly benefits and the filing of the petition for the December 15, 1988 injury, the claim is untimely and barred by Iowa Code section 85.26. ORDER 1. All of the claims in this proceeding are dismissed with prejudice. 2. Claimant shall pay the costs of this action pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of December, 1993. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Page 5 Mr. James Thomas Attorney at Law 102 North Ford Street Anamosa, Iowa 52205 Ms. Carolyn M. Hinz Mr. Matthew J. Brandes Attorneys at Law 1200 MNB Building STE 1200 115 Third Street SE Cedar Rapids, Iowa 52401 5-1803 Filed December 14, 1993 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ NANCY L. KAMERLING, Claimant, File Nos. 997296 vs. 938346 898273 MARRIOTT CORPORATION, A R B I T R A T I O N Employer, D E C I S I O N and ARGONAUT INSURANCE, Insurance Carrier, Defendants. ___________________________________________________________ 5-1803 Non-precedential, extent of disability case. Page 1 before the iowa industrial commissioner ____________________________________________________________ : HAYDEN WATTS (DEC) by : JOLIENE WATTS-wife, : : File No. 898366 Claimant, : : A P P E A L vs. : : D E C I S I O N IBP, INC., : : Employer, : Self-Insured, : Defendant. : ____________________________________________________________ _____ statement of the case Claimant appeals from a Ruling on a Motion for Summary Judgment dismissing claimant's cause of action for failing to file an original notice and petition within the two years statute of limitations. issue The sole issue on appeal is whether defendant's motion for summary judgment should be granted. findings of fact Claimant's cause of action allegedly arises from the death of her husband on August 31, 1988 while employed by the defendant. Claimant's original notice and petition was filed by claimant's first attorney on January 25, 1989, but the $65 filing fee was not paid. An order was filed giving claimant 14 days to pay the fee. Claimant complied with the order on February 9, 1989. This action was subsequently dismissed without prejudice by claimant on July 27, 1990. Claimant refiled the original notice and petition, pro se, on August 30, 1990, but failed to enclose the $65.00 or in the alternative, failed to file an application for deferral of the filing fee at the time the original notice and petition was filed pursuant to rule 343 IAC 4.8(2). The filing was denied on September 7, 1990 by a deputy industrial commissioner for failure to comply with rule 4.8(2). Claimant filed an application to defer the payment of the filing fee, along with a financial statement on September 24, 1990. An order allowing the deferral was entered on October 4, 1990. Claimant's original notice and petition was considered filed on September 24, 1990 at the time the motion for summary judgment was considered by the deputy. The defendant filed a motion for summary judgment on February 1, 1991 and claimant filed a resistance on February Page 2 15, 1991. applicable law To be successful on a motion for summary judgment, the moving party must demonstrate the absence of any genuine issue of material fact and show that he or she is entitled to judgment as a matter of law. Iowa R.Civ.P. 237(c); Trumbo v. Morris, No. 0-400/89-1736, slip op. at 3 (Iowa Ct. App. Nov. 29, 1990); Hall v. Barrett, 412 N.W.2d 648, 650 (Iowa Ct. App. 1987); Suss v. Schmmel, 375 N.W.2d 252, 254 (Iowa 1985). The burden of showing that there is no genuine issue of material fact is upon the party moving for summary judgment. Sparks v. Metalcraft, Inc., 408 N.W.2d 347, 350 (Iowa 1987); Northrup v. Farmland Industries, Inc., 372 N.W.2d 193, 195 (Iowa 1985). The resisting party, however, must set forth specific facts showing there is a genuine issue for trial. Iowa R.Civ.P. 237(e); Iowa Civil Rights Commission v. Massey-Fergusen, Inc., 207 N.W.2d 5, 8 (Iowa 1973); McCollough v. Campbell Mill & Lumber Co., 406 N.W.2d 812, 813 (Iowa Ct. App. 1987); Pappas v. Hughes, 406 N.W.2d 459, 460 (Iowa Ct. App. 1987). The resisting party may not rely solely on legal conclusions to show there is a genuine issue of material fact justify denial of summary judgment. Id. at 460; Byker v. Rice, 360 N.W.2d 572, 575 (Iowa Ct. App. 1984). When confronted with a motion for summary judgment, the undersigned is required to examine, in the light most favorable to the party opposing the motion, the entire record including the pleadings, admissions, depositions, answers to interrogatories and affidavits, if any, to determine whether any genuine issue of material fact is generated thereby. Sparks v. Metalcraft, Inc., 408 N.W.2d at 350 (Iowa 1987); Drainage District No. 119, Clay County v. Incorporated City of Spencer, 268 N.W.2d 493, 499-500 (Iowa 1978). A fact question is generated if reasonable minds can differ on how the issue should be resolved. Northrup v. Farmland Industries, Inc., 372 N.W.2d 193, 195 (Iowa 1978); Henkel v. R & S Bottling Co., 323 N.W.2d 185, 187-188 (Iowa 1982). If upon examination of the entire record the undersigned determined no such issue is present, and the movant is entitled to judgment as a matter of law, entry of summary judgment is proper. Sparks v. Metalcraft, Inc., 408 N.W.2d at 350. Rule 343 IAC 4.8 governs the commencement of action before the Division of Industrial Services. Rule 343 IAC 4.8(2) states: a. On or after July 1, 1988, for all original notices and petitions for arbitration ... seeking weekly benefits filed on account of each injury, ... alleged by an employee, a filing fee of $65 shall be paid at the time of filing.... .... If no filing fee is paid at the time of filing of the original notice and petition, the industrial commissioner shall return the original notice and petition to the party Page 3 filing it. Filing an original notice and petition without paying the fee shall not toll the state of limitations. Tendering an amount less than $65 will be considered failure to pay a filing fee. .... h. The industrial commissioner may accept for filing an original notice and petition without prepayment of the filing fee if in the discretion of the industrial commissioner the petitioner is unable to pay the fee at the time of filing. A deferral of payment of the filing fee shall only be granted upon written application by the petitioner. The application shall be filed at the same time of the original notice and petition is filed. The application shall be in the form required by the industrial commissioner and shall include an affidavit signed by the petitioner. Also pertinent is rule 343 IAC 2.1 which states, "For good cause the industrial commissioner or the commissioner's designee may modify the time to comply with any rule." conclusions of law A genuine issue of material fact exists in this case which makes summary judgment improper. Claimant filed an affidavit which accompanied her resistance to defendant's motion for summary judgment. In her affidavit, claimant attests that she filed her original notice and petition on August 30, 1990. Defendant asserts that claimant's original notice and petition was not filed until September 24, 1990. If claimant filed her petition on August 30, 1990 it was timely filed. On the other hand, if claimant filed her original notice and petition on September 24, 1990 it was not timely filed. Therefore, a genuine issue of material fact exists which would make summary judgment improper. For the sake of judicial economy, the issue of when claimant's original notice and petition was filed will be determined at this time. In this case, one deputy industrial commissioner ruled that claimant's original notice and petition was denied on September 7, 1990, for failure to include a filing fee or in the alternative, an application for deferral of filing fee pursuant to rule 343 IAC 4.8(2). As a result, claimant's original notice and petition was not considered filed until September 24, 1990, the date claimant's application for deferral was received. The deputy industrial commissioner ruling on the summary judgment had no authority to overrule the prior ruling of another deputy industrial commissioner and therefore, is bound by the prior ruling denying claimant's original notice and petition on September 7, 1990. The industrial commissioner, however, under rule 343 IAC 2.1 may modify the time to comply with any rule of this agency if good cause is shown. It is apparent from looking at the file that claimant, while proceeding pro se, had very little resources at her disposal. On the back of claimant's original notice and petition, claimant writes that she lives on social security Page 4 benefits of two hundred and fifty-six dollars per month and cannot afford to pay the filing fee. This appears to be a request for a deferral of the filing fee. This request for deferral did not, however, comply with rule 343 IAC 4.8(2)(h) which states that the request for deferral shall be filed in the form required by the industrial commissioner. Claimant complied with rule 4.8(2)(h) on September 24, 1990 when she filed her request for deferral which was approved by a deputy industrial commissioner. Claimant attempted to comply with rule 4.8(2)(h) on August 30, 1990 when she wrote on the back of her original notice and petition that she was unable to pay the filing fee. Under the circumstances presented here, a rigid interpretation of rule 4.8(2)(h) does nothing to further the purpose of the rule, rather it traps a pro se claimant. "Courts to do not favor the defense of statute of limitations." Sprung v. Rasmussen, 180 N.W.2d 430, 433 (Iowa 1970), Vermeer v. Sneller, 190 N.W.2d 389, 394 (Iowa 1971). It is determined that claimant has shown good cause why the industrial commissioner should modify the time to comply with rule 4.8(2)(h) which requires claimant's application for deferral to accompany claimant's original notice and petition. In this case, claimant's original notice and petition is considered timely filed on August 30, 1990, the date which claimant's original notice and petition was received. WHEREFORE, the decision of the deputy is reversed and remanded. THEREFORE, it is ordered that this case is placed back into assignment for prehearing. Signed and filed this ____ day of October, 1991. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. John E. Kultala Attorney at Law 511 Blondeau St. Keokuk, Iowa 52632 Ms. Marie L. Welsh Attorney at Law PO Box 515 Dept. #41 Dakota City, Nebraska 68731 2906 Filed October 21, 1991 Byron K. Orton PJL before the iowa industrial commissioner ____________________________________________________________ : HAYDEN WATTS (DEC) by : JOLIENE WATTS-wife, : : File No. 898366 Claimant, : : A P P E A L vs. : : D E C I S I O N IBP, INC., : : Employer, : Self-Insured, : Defendant. : ____________________________________________________________ _____ 2906 The sole issue on appeal is whether defendant's motion for summary judgment should be granted. Held that a genuine issue of material fact exists in this case which makes summary judgment improper. Claimant filed an affidavit attesting that she filed her original notice and petition on August 30, 1990. Defendant asserts that claimant's original notice and petition was not filed until September 24, 1990. If claimant filed her petition on August 30, 1985 it was timely filed. On the other hand, if claimant filed her petition on September 24, 1990 it was not timely filed. Therefore a genuine issue of material fact exists. In this case, it was determined that claimant filed her original notice and petition on August 30, 1990. On the back of claimant's original notice and petition filed on August 30, 1990, claimant writes that she lives on social security benefits and cannot afford to pay the filing fee. This appears to be a request for a deferral of the filing fee. This request for deferral did not, however, comply with rule 343 IAC 4.8(2)(h). Under the circumstances presented here, a rigid interpretation of rule 4.8(2)(h) does nothing to further the purpose of the rule, rather it traps a pro se claimant. Pursuant to rule 343 IAC 2.1, it is determined that claimant has shown good cause why the industrial commissioner should modify the time to comply with rule 4.8(2)(h). In this case, claimant's original notice and petition is considered timely filed on August 30, 1990. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ HAYDEN JASPER WATTS (Deceased) by JOLIENE WATTS (Spouse), File No. 898366 Claimant, D E C I S I O N vs. O N IBP, INC., D E A T H Employer, B E N E F I T S ------------------------------------------------------------ STATEMENT OF THE CASE This is a proceeding for death benefits which was filed by Joliene Watts, claimant, who is the spouse of decedent Hayden Jasper Watts, and against the decedent's employer, IBP, inc., defendant. The case was heard on January 12, 1994 at the Des Moines County Courthouse in Burlington, Iowa. The record consists of the testimony of claimant. Additionally, the record consists of the testimony of David Springer, security guard for defendant's Columbus Junction plant, the testimony of Otis Pettit, former trainer for defendant, and the testimony of Terry Zimmerman, medical case manager for the Columbus Junction plant. The record also consists of joint exhibits A-O. STATEMENT OF THE ISSUES The issues to be determined are: 1) whether decedent's death arose out of and in the course of his employment; 2) whether death benefits are appropriate in this case; and 3) whether claimant is entitled to funeral expenses for the burial of decedent. FINDINGS OF FACT The deputy, having heard the testimony and considered all the evidence, finds: Decedent died on August 31, 1988. At the time, he was 43 years old. He was married to claimant and he had three minor children. The records indicate that on August 16, 1988, decedent went to see M.F. Austin, M.D. There were complaints of chest pain. The physician's clinical notes stated: The patient is a 43-year old white male who comes in now with a complaint of chest pain. The patient states that two months he had a Page 2 heavy chest pressure in the center of his chest which made it difficult to breathe. He believes it came on at rest but he is not certain and it went away. He has seen Dr. Lee in the past and the chest pain has become more frequent and he comes in now to be evaluated for the chest pain. As noted above he was seen when he had chest pain two months ago but starting on Sunday he developed pain with exertion. Since Sunday whenever he exerts himself and walks more than three or four blocks he gets a heavy sharp pain in the chest which he will not describe as pressure and the pain radiates from the substernal area up to his neck and produces numbness in his left arm, shortness of breath and diaphoresis. If he then rests he has no further problems. Normally he works in building construction but he is between jobs so he did not carry out his normal job yesterday or today. He has a positive family history with a brother having died from a heart attack at age 48. His father died of a heart attack at age 60. PMH- Otherwise unremarkable. He's had two biopsies of subcutaneous skin lesions which sound like lipomas. He smokes 1 1/2 packs of cigarets [sic] per day and has for 30 years. He drinks four bottles of beer per day and over six cups of coffee. His social and family history is otherwise unremarkable. ROS-Noncontributory. On exam he is a well muscled white male appearing his stated age. Skin without cyanosis or jaundice. HENT exam unremarkable. Neck supple. No thyroidomegaly, no clinically significant lymphadenopathy. Lungs clear to A & P except for diffuse wheezing on expiration and a slight prolongation of the expiratory phase. Cardiac exam showed no JVD, no carotid bruits, no HJR. S1 and S2 were normal. There were no murmurs, rubs of gallops. Abdomen was tender in the epigastrium but otherwise benign. Extremities showed no edema. Neurological exam showed no focal deficits. I. 1. Chest pain rule out coronary artery disease. 2. Shortness of breath with wheezing ? COPD with bronchospasm. 3. Epigastric tender ? ulcer disease/gastritis. Page 3 The patient was sent for routine labs and pulmonary function test and treadmill. In addition he was started on the following medications: 1. Nitroglycerin SL prn if chest pain is not relieved after three nitroglycerins call paramedics and go to E.R. 2. Nifedipine 10mg p o t. i. d. 3. Pepsid 40mg p o q h.s. The patient was also instructed to limit his smoking to one half pack of cigarets [sic] per day, decrease his coffee intake to two cups per day and to hold his alcohol intake to no more than two hours per day. These instructions will be in place until the patient seems [sic] in followup. (Exhibit A-1). Decedent was scheduled for a second appointment on August 23, 1988. However, he failed to keep that appointment. Decedent had a complete pulmonary function exam on August 19, 1988. T. Hakes, M.D., interpreted the tests. The physician opined: INTERPRETATION: Screening PFT compatible with obstructive airways disease which is mild to moderate. Most impairment is in the small airways. There is slight improvement after the administration of bronchodilator. On August 24, 1988, decedent completed a medical history questionnaire as a pre-employment requirement for defendant. Decedent indicated on the face of the questionnaire that he did not have heart disease, that he had never had any prior chest pains, that he had never contacted a physician concerning any chest pains, and that he had not seen a physician for the past six months. (Exhibit F-2, F-3) These statements were made contrary to the truth. On August 26, 1988, decedent again met with Dr. Austin. The office notes indicated the following relative to decedent's condition: This patient is a 43 year old white male who I saw last week for evaluation of chest pain and S.O.B. His evaluation included PFT's which showed obstructive way disease responsive to bronchodialator. His treadmill stress test was Page 4 negative. Routine labs showed a mild hypercholesterolemia with a cholesterol of 238. His resting EKG was normal. His epigastric pain has responded to decreasing coffee and alcohol. IMPRESSION: 1. COPD with bronchospasm. 2. Hypercholesterolmia. The patient was started on Albuterol inhaler two puffs q.i.d., Theolair SR 200mg p.o.b.i.d. and a low cholesterol diet. He will followup with me in six weeks. If this medications give him any complications he will call in. He will otherwise have prescriptions phoned in when his samples run out. He may need a tetnus booster for a job. He is going to start working Saturday. If he does he will call the office about getting tetanus shot. (Exhibit A-2). Decedent commenced his employment with defendant on August 27, 1988. Initially, claimant participated in an orientation program. However, on August 31, 1988, claimant was assigned to perform duties in the trolley room. Claimant worked the second shift which began at 4:00 p.m., and ended at midnight. Floyd Nott began training claimant to watch the line of hog hooks as they traveled on the trolley. Mr. Nott testified all claimant had to do was to watch the trolley line and to pick up any hooks which would fall from the line. (Exhibit M-7) From approximately 5:30 p.m. until 7:45 p.m., there was a power outage at the Columbus Junction plant. (Exhibit E) The record establishes that the temperature high for that date was 83 degrees. (Exhibit N-2) After the power was restored, Mr. Nott left the trolley room so he could take his fifteen minute coffee break in the employee lounge. He testified he left decedent alone for approximately fifteen minutes but then when he attempted to return to his work station, he was unable to do so, as someone in the plant had found decedent lying dead on the floor of the trolley room. Decedent was discovered at approximately 8:35 p.m. An ambulance and paramedics were called to the plant site. Emergency resuscitation was attempted but with no success. Eventually, Curtis Frier, D.O., medical examiner was called to the plant. He received his telephone call at approximately 9:40 p.m. Dr. Frier testified by deposition that: Page 5 When I got there the deceased was laying on a back board. The ambulance personnel had attempted resuscitation, apparently before I arrived. .... He was found lying on his back board, as I previously stated. He was breathless, pulseless, his pupils were fixed and dilated, his face was dusky, cyanotic, there was small amount of blood noted on his left nostril, there was small abrasion with slight amount of blood on his right elbow, his shirt was unbuttoned on the front, pants were on, belt was buckled, his body was greasy or oily, but the entire room was greasy or oily. There was no evidence of abrasions or contusions on his head, face or neck. No wounds were noted on his chest or on his abdomen or his back. He was noted to have multiple tattoos on his arm, and he was lying between two tanks separated by 15, 29 feet in the trolley room. (Exhibit K- ) Dr. Frier completed the death certificate. He listed, "acute pulmonary edema" as the cause of death. (Exhibit K-9) During cross examination, the medical examiner elaborated: Q Doctor, have you arrived at an opinion of the cause of death of Mr. Watts based upon your review of the autopsy and your investigation? A It was a sudden event, whatever was the trigger. His whole body was congested, which would speak of a process not only in the lungs but of the heart suffering acute congestive failure during the process. He had a blood clot in his coronary artery that was not a new blood clot. It was already organized, it was there prior to the event. However, he did not show signs of muscle damage, so my guess would be that at least contributing to it would have been a lack of oxygen to the heart, spasm in the coronary artery long enough to cause fibrillation. But we cannot completely rule out a combination of lung and cardiac involvement. Q Is it fair to state that he died of natural causes not related to work at IBP? A It was definitely natural causes. (Exhibit K-13-K-14). Page 6 Min Chung, M.D., conducted an autopsy of decedent's body on September 1, 1988. The autopsy was conducted at the Keokuk Area Hospital. Dr. Chung completed an autopsy report. In the report the pathologist made the following pathologic diagnoses: Hypoplastic coronary arteries with moderate atherosclerosis and thrombosis of the left anterior descending branch of the left coronary artery. Myocardial hypertrophys (cardiomegaly), 480 gm (N: Mean-373; Range- 304-392). -Hypermia of the face, neck, and anterior chest wall, severe (photo). -Visceral congestion and/or edema, moderate to severe: both lungs (photo), gastrintestinal tract, liver, spleen, pulmonary hilar and peribronchial lymph nodes, right kidney, right adrenal, thyroid and brain. -Pulmonary intra-alveolar hemorrhage, bilateral, mild. Atherosclerosis of the aortic valve, mild; and aorta, mild to moderate. Page 7 Agenesis of the left kidney and left adrenal gland, and compensatory hypertrophy of the right kidney. Abrasion of the right elbow. Livor mortis of enterior dorsal aspect of the body surface. Rigor mortis of the entire body including all articular joints of four extremities. NOTE: In my opinion, hypoplastic coronaries with atherosclerosis and thrombosis of the left anterior descending branch, and cardiomegaly are significant findings which are related to Mr. Watts' immediate cause of death; and other findings including the clinical laboratory test results are contributory or less significant factors. Estimated time between his death and the autopsy is 6 to 12 hours based on rigor mortis. The pathologist did not perform a scene investigation. .... myocardium mild to moderately congested. No evidence of acute myocardia infarct. .... Valves Aortic valve mildly sclerotic. Coronary arteries Lumina of the left and right coronaries very narrow and wall partially calcified (needed decalcification for sectioning). Organized thrombus and narrow lumen (50%) of LAD. Left and right coronaries [t]hin and wall moderately sclerotic. LAD beginning area has a small blood clot. DIAGNOSES - Hypoplastic coronary arteries with moderate atherosclerosis and thrombosis of the LAD. - Myocardial hyper trophy (carduimegaly), 480 gm (N: Mean-373: Range-304 to 392). - Atherosclerosis of the aortic valve, mild. .... LUNGS Page 8 Combined weight 1850 gm (N: Mean-825; Range-685 to 1050). Surface brown to purple, cut surfaces purple, and entire lung wet. Small vesicles on the lung surface. All lobes show sever vascular congestion, and mild intra-alveolar hemorrhage and edema. Alveoli contain small number of pigmented macrophanges. Occasional alveolar septa destroyed. Bronchus and peribronchial lymph node also markedly congested. DIAGNOSES -Pulmonary congestion, bilateral, severe (photo). -Pulmonary intra-alveolar hemorrhage and edema, mild. (Ex. C-1; C-5). In the fall of 1993, various records were forwarded to Jay Dix, M.D., a board certified pathologist in anatomic and forensic pathology. The physician authored a report, dated November 21, 1993. He opined in that report: OPINION: Mr. Hayden [sic] died suddenly due to heart disease and not from a noxious chemical substance. There is no anatomic or scene evidence to suggest cadmium or some other chemical as a cause. The presence of heart disease, especially on organizing thrombus (blood clot) in the coronary artery, and the absence of other diseases or drugs/chemicals reveals the cause of death to be heart related. Mr. Hayden [sic] died from an arrhythmia complicating his underlying heart disease. The thrombus is a build up off [sic] material that plugs up the coronary artery which feeds the heart muscle blood and oxygen. This thrombus appears to be approximately 3 or 4 days old at a minimum. Mr. Hayden [sic] had a history of chest pain which may have been caused by the underlying heart disease. A negative tread mill test does not preclude heart disease as a cause of sudden death. It is not uncommon for a person to receive a "clean bill of health" from a physician only to die suddenly of heart disease a short time after the examination. Forensic pathologists like myself, see this not uncommonly. People with heart disease as seen in Mr. Hayden [sic] are prone to die suddenly at any time. However, in my experience, people with this type of disease are prone to have arrhythmias and sudden death when they are in a stressful; situation. If Mr. Hayden [sic] was in a Page 9 non-stressful work situation then his death would be considered natural and not work related. On the other hand, if he were working in a stressful environment his death would be work related and an accident. I was asked to comment about whether or not a high environmental temperature would be considered stressful. I believe a high temperature would be stressful if the person was not used to working in such conditions. Mr. Hayden [sic] had worked for only 4-5 days at this job. With his heart condition, a temperature over a hundred degrees would cause him stress. [T]he heart beats faster to dissipate the heart. This could also be compounded if he didn't drink enough water and became dehydrated, causing his heart to work even harder. A diseased heart, working harder, may develop an arhythmia, causing sudden death. My final opinion is that Mr. Hayden died of heart disease. A room temperature of over 100 degrees Fairenheit would be a contributing factor in his death. I can't give a percentage of contribution, but any contribution is significant. (Ex. J-1-J-2) After Dr. Dix completed the aforementioned report, his deposition was given. He provided his opinion relative to the cause of decedent's death: Q. And what did you determine then from reviewing that the cause of death to be? A. Well, I then would look at the autopsy reports. [A]lso looked at the slides in this case as well. Q. What did those reveal to you? A. Well, they revealed a man that had basically some pulmonary edema or fluid on the lungs and his underlying problem which is his heart disease. He had an enlarged heart and he had abnormalitites specifically atherosclerosis of his coronary arteries with a recent thrombosis or blood clot in the coronary artery. Q. Okay. When cause of death then is listed as pulmonary edema that is ultimately, I guess, what killed him but-- A. No, that's not what killed him. Q. I'm sorry. What then would it be? A. He died of his heart disease. Q. Okay. The fluid on the lungs, I guess, is Page 10 just a result of the heart disease then? A. Well, it was a result of the agonal state that he was in. I don't think he died specifically of pulmonary edema. He had pulmonary edema but that came about from the dying process. Q. Was that blood that got in there then or what kind of fluid? A. Well, edema fluid is usually clear fluid. It's in the blood system or in the cells in the body and it leaks out of the blood vessel system and goes into the lungs. Q. You mentioned then the thrombosis or I believe in your November 21st report you typed up thrombus. Could you explain what that is? A. A thrombus is a blood clot that happens from a buildup of and a sludging of the blood within a blood vessel. This one happened to be there for a few days. Q. Your report I believe says it was there approximately three or four days old at a minimum. Could you give any kind of a maximum or any time frame there, I guess, of how old that may have been? Page 11 A. I don't know that I could give a maximum. That is very difficult to do that when you are looking at thrombi. I feel comfortable that it was three or four days minimum but I can't tell if it's been there a week or nine days or ten days. It's just -- it's impossible for me to tell that. (Ex. L-6-L-7). Later in his deposition, Dr. Dix discussed the role of one's work environment on a person with heart disease. Dr. Dix testified that: Q. You had-- I believe, in your concluding statement in your report you mentioned that-- talking about the stressful situation or possible stressful situation. I wanted to get into that a little bit more now if I could. A. Yes. Q. You mentioned a high temperature would be stressful, could be a stressful situation that could cause the onset of this type of condition. A. Yes. Q. Any--is there-- I believe you said over 100 degrees Farenheit [sic] and on down in the final paragraph. A. Yes. I was asked-- since it's not in the reports necessarily I was asked specifically if that might be a contributing factor and it was my opinion, still is, that if someone was in an environment that was unusual for that person, specifically if it was too hot then that might be a stressful factor and in my opinion if they were not used to that plus having an underlying heart disease that would have been a contributing factor. I can't tell you exactly what percentage would have been a contributing factor. It could be 50 percent or 1 percent. I just don't know. Q. What were some of the others? You said any contribution would be significant. What were some other significant factors in this case? A. Well, the most significant factor is his underlying heart disease. Then there are essentially no other significant factors unless there is something at the workplace that might have caused his stress. Q. When you talk about a hundred degrees that would be, I guess, regardless of whether he was working or not working? Would that make any difference at all? I mean, if he was sitting out in a hundred degree weather outside would that be Page 12 a stressful factor also? A. Well, I believe that if he is not used to it then it would be stressful but I certainly would believe that if he were working at the time and-- which causes an increase in heart rate just by the work itself that would be more stressful. (Ex. L11-12). Later Dr. Dix elaborated upon questioning: Q. I'm sorry, I didn't state that question very well. Anything about Mr. Watt's condition other than the underlying heart condition that struck you as unusual about the results of the autopsy? A. Other than the heart disease I don't see anything in the autopsy report which would lead me to believe that he might have died from anything else or that there was something there that would have caused an exacerbation of his problem. (Ex. L-14). Dr. Dix also testified that decedent's death was sudden. The pathologist defined his understanding of "sudden death." He stated: A. Yes, at least sudden in the respect that the man was found dead. Now, sudden means different things to different people. Certainly in that span that he was not seen I don't know if he had any signs or symptoms of anything going on but in that particular time frame I would classify that as sudden death. Q. Is this uncommon for people who are diagnosed two weeks earlier that at least without signs of heart disease to have a sudden onset of this? A. No, it's not uncommon for me to do an autopsy on a person that has recently had a physical exam and the physician gave them the "clean bill of health". Q. And what generally would bring on, if you can give me kind of a whole range of things that would bring on a sudden heart attack? A. Well, the most important thing would be stress as far as some other factor. It's probably safe to say that most people who die suddenly though do not die under stressful circumstances but anything of stress can certainly bring about the problem just as readily as a non-stressful circumstance. We talked a little bit about the possibility of a hot environment. What is in a hot environment Page 13 that would bring on a sudden heart attack? A. Well, a hot environment I consider a stress in that the person is trying to cool down the body and by doing so may raise the rate, heart rate, and any time you raise the heart rate you are -- can be prone to a sudden death. (Ex. L-16-L-17). CONCLUSIONS OF LAW The claimant has the burden of proving by a preponderance of the evidence that the alleged injury actually occurred and that it arose out of and in the course of employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of" refer to the cause or source of the injury. The words "in the course of" refer to the time, place and circumstances of the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 1971). The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, its mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956). If the claimant had a preexisting condition or disability that is materially 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 (1962); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961). When an aggravation occurs in the performance of an Page 14 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). Iowa claimants with preexisting circulatory or heart conditions are permitted, upon proper medical proof, to recover workers' compensation benefits where the employment contributes something substantial to increase the risk of injury or death. The employment contribution must take the form of an exertion greater than nonemployment life. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). The comparison, however, is not with the employee's usual exertion in employment, but with exertions of normal nonemployment life of this or any other person. Sondag, 220 N.W.2d at 905. These exertions may be physical or emotional. Swalwell v. William Knudson & Son, Inc., II Iowa Industrial Commissioner Report 385 (App. 1982). The Sondag rule is favored by Professor Larson in his treatise on workers' compensation. See 1A Larson Workmen's Compensation Law, 38.83 at 7-172. According to Professor Larson, the causation test is a two-part analysis. First, medical causation must be established. That is, medical experts must causally relate the alleged stress, whether emotional or physical, to the heart injury. Second, legal causation must be established. That is, the factfinder must determine whether the medically-related stress is more than the stress of everyday nonemployment life. Claimant must satisfy both a legal test and a medical test in order to prove that a heart attack superimposed upon a preexisting condition arose out of and in the course of claimant's employment. The legal test can be satisfied by meeting one of three legal standards: work exertion greater than nonemployment life; work exertion greater than normal work exertion; or employee impelled to continue exertion after the onset of symptoms. Bailey v. Moorhead Construction Co., File no. 872710, Appeal Dec. July 27, 1992; Peterson v. Lloyd R. Warren d/b/a Warren Masonry, File No. 981365 App. Dec. June 30, 1993. In Peterson, supra, the industrial commissioner held that decedent's death was not work related. The industrial commissioner determined decedent's death did not meet the "legal test" which was described in the aforementioned paragraph. Peterson had experienced angina symptoms on two nonwork days just prior to the fatal attack. Additionally, decedent was overweight, a heavy smoker, had a history of heart trouble, consumed extraordinary quantities of Tylenol, Rolaids and soda pop, and he experienced the attack before commencing work again. The commissioner found that decedent's work of laying brick did not cause greater exertion than normal nonemployment activities. In Peterson a brick tender handed the bricks to decedent, decedent worked in a heated winter environment. Additionally, the commissioner determined that the medical opinion which causally connected decedent's fatal heart attack to his work was based on incorrect assumptions and therefore the" medical test" was not met. Page 15 In the instant case, decedent died of preexisting heart disease. The facts indicate decedent had been experiencing chest pains two weeks prior to his employment with this defendant. Decedent was a smoker and he consumed alcohol. Heart disease was prevalent in his family. He had been on medication for his heart disease. Decedent did not keep all medical appointments with his physician. All medical evidence supports the conclusion that claimant died of his preexisting condition. There was insufficient reliable medical evidence to find a causal connection between decedent's work exertion and his death. Even Dr. Dix testified that claimant died of heart disease. (l-6) While Dr. Dix opined that certain stressful conditions in the work environment could have some effect upon claimant's preexisting condition, there was no factual evidence to support a finding that the temperature was excessive, that the inside environment was humid, or that improper ventilation existed in the building. Dr. Dix's opinions regarding possible stressful factors were based on erroneous assumptions concerning the work environment on the day in question. The evidence does not support the allegations of a stressful environment. There was no evidence that decedent's work exertions on the date of his death were greater than nonemployment life; or that his work exertions were greater than normal work exertions. At the time of his death, decedent was observing hooks travel on the trolley. Only several times per hour was he required to hang hooks which had fallen from the trolley. Finally, decedent died almost immediately. There is no evidence whatsoever that decedent continued working after he experienced symptoms. The legal test has not been met. Nor has the medical test been met. Claimant has failed to establish that decedent's death arose out of and in the course of claimant's employment. Claimant takes nothing further from these proceedings. ORDER THEREFORE, it is ordered: Claimant takes nothing further from these proceedings. Each party shall pay the costs the party has incurred pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of August, 1994. ________________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Page 16 Copies To: Mr John Kultala Attorney at Law P O Box 520 Keokuk IA 52632 Mr John M Comer Attorney at Law P O Box 515 Dept #41 Dakota City NE 68731 1400; 2202; 2601.10 Filed August 23, 1994 Michelle A. McGovern BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ HAYDEN JASPER WATTS (Deceased) by JOLIENE WATTS (Spouse), File No. 898366 Claimant, D E C I S I O N vs. O N IBP, INC., D E A T H Employer, B E N E F I T S ------------------------------------------------------------ 1400; 2202; 2601.10 Decedent was a 43-year-old male with heart disease. Two weeks prior to the commencement of his employment with defendant, decedent sought medical treatment for chest pains. He was diagnosed as having heart disease, and medication was prescribed. Decedent was advised to stop smoking and to decrease his alcohol and coffee intake. On the fourth day of his employment, claimant was observing hooks travel across the trolley system. He was alone for approximately 15 minutes. During this time, decedent died. The evidence supports the conclusion that decedent died of the preexisting condition. There was insufficient medical evidence to find a causal connection between decedent's work exertion and his death. Held: Claimant was unable to prove that death benefits were appropriate in this case.