BEFORE THE IOWA INDUSTRIAL COMMISSIONER MICHAEL DEAN HANSEN, Claimant, VS. File No. 900508 U. S. ASPHALT, A R B I T R A T I O N Employer, D E C I S I O N and LIBERTY MUTUAL INSURANCE CO., Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration wherein Michael Dean Hansen seeks to recover additional compensation for healing period and permanent partial disability based upon an injury of May 7, 1987. Defendants stipulate to the occurrence of an injury and have paid two and three-sevenths weeks of compensation under the Nebraska Workers' Compensation Act for which they seek credit. Defendants dispute the claim for additional healing period and permanent partial disability compensation. The case was heard and fully submitted at Council Bluffs, Iowa on February 21, 1990. The record in the proceeding consists of testimony from Michael Dean Hansen and Deanna J. Rogge, D.C., jointly offered exhibits 1 through 6, and claimant's exhibit A. FINDINGS OF FACT Michael Dean Hansen is a 25-year-old man who dropped out of school following completion of the ninth grade. His work history includes herding livestock at the Omaha stockyards, operating equipment such as trucks, caterpillar tractors, road graders, asphalt rollers and loaders and other types of work which are generally in the nature of moderate or heavy labor. HANSEN v. U. S. ASPHALT Page 2 On May 7, 1987, Hansen was scooping asphalt with a scoop shovel while working on a project for the employer. He experienced the onset of pain in his lower back and found that he was bent over and unable to straighten up. He sought treatment immediately from Deanna J. Rogge, D.C. Dr. Rogge provided claimant with chiropractic treatment commencing on May 7, 1987 and running through May 23, 1987 (exhibits 2, 3 and 4). The final diagnosis was acute subluxation of the lumbar and lumbosacral spine with resultant intervertebral disc syndrome with bilateral extension sciatic neuralgia. Dr. Rogge indicated that a final prognosis in the case was deferred, but that some type of post-traumatic pathology was probable (exhibit 5). Dr. Rogge authorized claimant to return to work on May 25, 1987 with a restriction of light duty and a lifting limit of 15 pounds. She recommended continued chiropractic care (exhibit 3). Hansen did return to work for the employer on May 25, 1987 and continued to work for the employer until July 4, 1987 when he resigned. Hansen explained that when he returned to work, the employer assigned him to operate the asphalt roller and other machines. Hansen stated that the machines vibrated so severely that he was unable to endure the pain and resigned. After a period of unemployment, Hansen worked tending vending machines. He subsequently obtained his present job as a truck driver for a lumberyard. Hansen restricts his lifting activities. He complained of continuing pain and discomfort in his lower back and in both legs. Hansen was evaluated by orthopaedic surgeon Daniel J. Larose, M.D., on February 8, 1990. Dr. Larose found no objective evidence of injury and no permanent impairment. He characterized claimant's complaints of pain as surprising and somewhat suspicious. Dr. Larose reported that the probability of having two years' duration of back pain, without any objective findings, following an apparently minor injury is small (exhibit 1). It is found that Michael Dean Hansen was temporarily totally disabled and unable to perform the normal duties of his employment during the period of time that he was under the treatment of Dr. Rogge. It is also found that his complaints of pain and discomfort are exaggerated and that the assessment made by Dr. Larose regarding the lack of any permanent disability is correct. HANSEN v. U. S. ASPHALT Page 3 CONCLUSIONS OF LAW Claimant has the burden of proving by a preponderance of the evidence that he received an injury on May 7, 1987 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The claimant has the burden of proving by a preponderance of the evidence that the injury of May 7, 1987 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). It has previously been found that Hansen was temporarily disabled for a period of two and three-sevenths weeks, but that he has no permanent disability as a result of the May 7, 1987 injury. His entitlement to weekly compensation is therefore two and three-sevenths weeks payable commencing May 8, 1987 at the stipulated rate of $193.63 per week. Payments paid under the workers' compensation law of one state are credited to workers' compensation liability in any other state. Thomas v. Washington Gas Light Co., 448 U.S. 261, 100 S. Ct. 2647, 65 L. Ed. 2d 757 (1980); George H. Wentz, Inc. v. Sabasta, 337 N.W.2d 495, 498 (Iowa 1983). Defendants are therefore entitled to full credit for the benefits paid to Hansen under the Nebraska Workers, Compensation Act. ORDER IT IS THEREFORE ORDERED that defendants pay Michael Dean Hansen two and three-sevenths (2 3/7) weeks of compensation for temporary total disability at the stipulated rate of one hundred ninety-three and 63/100 dollars ($193.63) per week payable commencing May 8, 1987. The entire amount thereof is accrued, past due and owing and shall be paid to claimant in a lump sum together with interest pursuant to section 85.30 of The Code after crediting defendants with the two hundred thirteen and 33/100 dollars ($213.33) paid to claimant under the Nebraska Workers' Compensation Act. HANSEN v. U. S. ASPHALT Page 4 IT IS FURTHER ORDERED that the costs of this proceeding are assessed against defendants pursuant to Division of Industrial Services Rule 343-4.33. IT IS FURTHER ORDERED that defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 26th day of June, 1990. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Lyle A. Rodenburg Attorney at Law 100 Park Building Council Bluffs, Iowa 51503 Mr. James E. Thorn Attorney at Law 310 Kanesville Blvd. P.O. Box 398 Council Bluffs, Iowa 51502 1704, 5-1801 Filed June 26, 1990 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER MICHAEL DEAN HANSEN, Claimant, VS. File No. 900508 U. S. ASPHALT, A R B I T R A T I O N Employer, D E C I S I O N and LIBERTY MUTUAL INSURANCE CO., Insurance Carrier, Defendants. 1704, 5-1801 Claimant awarded two and three-sevenths weeks temporary total disability. Employer granted credit for benefits paid under the Nebraska Workers' Compensation Act. Page 1 before the iowa industrial commissioner ____________________________________________________________ : LYLE RIDNOUR, : : Claimant, : : vs. : : File No. 900513 CLARINDA MENTAL HEALTH : TREATMENT, : : A P P E A L Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed August 2, 1991 is affirmed and is adopted as the final agency action in this case, with the following additional analysis: The Iowa Supreme Court has recently interpreted Iowa Code section 85A.12. Iowa Code section 85A.12 does not yield to such an interpretation. This is because, although the claimant contends otherwise, we are not dealing with a statute of limitation. The provision does not list times within which claims must be brought, a routine ingredi______ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Sheldon M. Gallner Attorney at Law 803 3rd Ave. P.O. Box 1588 Council Bluffs, Iowa 51502 Mr. James A. Pratt Attorney at Law 508 South 8th Street Council Bluffs, Iowa 51501 Mr. Craig Kelinson Assistant Attorney General Tort Claims Division Hoover State Office Bldg. Des Moines, Iowa 50319 2203 Filed December 16, 1991 Byron K. Orton EAN before the iowa industrial commissioner ____________________________________________________________ : LYLE RIDNOUR, : : Claimant, : : vs. : : File No. 900513 CLARINDA MENTAL HEALTH : TREATMENT, : : A P P E A L Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 2303 Even if claimant were presumably exposed to tuberculosis at his place of employment, he was not entitled to recover under section 85A because his period of disablement did not begin within one year of the last injurious exposure to the disease. Claimant was diagnosed as having tuberculosis in January of 1986. He was not disabled until November of 1988. Claimant did not have a recurrent bout of tuberculosis in the interim. The claimant did not have a right of recovery under Iowa Code section 85A.12. Meyer v. Iowa State Penitentiary, 476 N.W.2d 58 (Iowa 1991) (October 16, 1991) states section 85A.12 creates a right of recovery and claimant must meet conditions of code before the statute provides possible recovery. 2203 Filed August 2, 1991 ELIZABETH A. NELSON before the iowa industrial commissioner ____________________________________________________________ : LYLE RIDNOUR, : : Claimant, : : vs. : : File No. 900513 CLARINDA MENTAL HEALTH : TREATMENT, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 2203 Claimant presumably exposed to tuberculosis at his place of employment, was not entitled to recover under section 85A because his period of disablement did not begin within one year of the last injurious exposure to the disease. Claimant was diagnosed as having tuberculosis in January of 1986. He did not leave work until November of 1988. Claimant did not have a recurrent bout of tuberculosis in the interim. Page 1 before the iowa industrial commissioner ____________________________________________________________ : EFRAIN GONZALEZ, : : Claimant, : : vs. : : LINCOLN SALES & SERVICE, INC. : : File No. 900515 Employer, : Self-Insured, : A R B I T R A T I O N : and : D E C I S I O N : CRST, INC., : : Employer, : : and : : REVIEW PLUS INSURANCE, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in arbitration upon claimant's petition filed January 23, 1989. Claimant sustained an injury to his arm on May 6, 1988 in a motor vehicle accident. He now seeks benefits under the Iowa Workers' Compensation Act from self-insured employer Lincoln Sales & Service, Inc., employer CRST, Inc., and insurance carrier Review Plus Insurance. Hearing on the arbitration petition was had in Cedar Rapids, Iowa, on July 18, 1990. The record consists of claimant's testimony, claimant's exhibits 1 through 3 and defendants' exhibits A through E, both inclusive. issues Pursuant to the prehearing report, the parties have stipulated: that claimant sustained an injury on May 6, 1988, arising out of and in the course of employment with Lincoln Sales & Service (although the existence of an employment relationship with CRST is disputed); that the injury caused temporary and permanent disability; that claimant's entitlement to healing period benefits is from the date of injury to September 12, 1988; that claimant has sustained a permanent disability of 20 percent loss of the arm; that the appropriate rate of weekly compensation is $175.67; that affirmative defenses are waived (except for lack of jurisdiction under Iowa Code section 85.71); that Page 2 the fees charged for medical expenses are fair and reasonable and were incurred for reasonable and necessary medical treatment and are causally related to the work injury; that defendants paid 10 and 5/7 weeks of compensation at the rate of $190.00 per week prior to hearing. Issues presented for resolution include: whether Iowa has jurisdiction of this claim under section 85.71, and if so, whether claimant was employed by CRST as opposed to Lincoln Sales & Service. findings of fact The undersigned deputy, having heard the testimony and considered all of the evidence, finds: At all times relevant, claimant was and is now a resident of Chicago, Illinois. During late 1988, he was completing a truck driving course. While so engaged, he applied for work with CRST or Lincoln Sales & Service ("Lincoln") in late December, 1987. On December 28, 1987, claimant visited a terminal operated by Lincoln in Schererville, Indiana. While there, he signed a series of acknowledgements which in part relate to contemplated employment with Lincoln. One such acknowledgement was to the effect that any compensation as the result of a workers' compensation injury or illness would be governed by and according to the benefits provided by the state of Indiana. Claimant was sent to this terminal by the job placement department of the driving school he had attended in Chicago. Claimant interviewed with Bruce Shultz, a trainer. Shultz indicated that he worked for CRST and that claimant would also, but the paperwork prepared at the time indicated that Shultz operated under the aegis of Lincoln. Although Shultz advised that "paperwork" would go to CRST in Cedar Rapids for approval, claimant understood that he was hired on the spot and was to report the following day for training. He did so, again in Indiana, and undertook an orientation course and was given various tests. Claimant was given identification cards at his orientation. Thereafter, claimant drove truck nationwide, not only in the Midwest, but to both coasts. He was dispatched by a dispatcher operating out of Cedar Rapids for CRST. Claimant did not drive outside of the United States and has conceded that his employment has never been "principally localized" in the state of Iowa, that he never "regularly worked" in the state of Iowa and has never been "domiciled" in this state. Claimant sustained a work injury on May 6, 1988, when his truck was involved in an accident in the state of Nebraska. Claimant's partner was driving while claimant was asleep in the sleeper compartment. conclusions of law Page 3 Since this injury occurred outside the territorial limits of Iowa, claimant may invoke Iowa jurisdiction only if one of the four subsections of section 85.71 apply. Subsection 1 applies if the employment is principally localized in Iowa, the employer has a place of business in this or some other state and the employee regularly works in the state, or if the employee is domiciled in this state. As claimant did not regularly work in the state and was not domiciled in the state, he cannot invoke the provisions of subparagraph 1. Claimant did not work under a contract of hire made in Iowa for employment outside the United States. Therefore, subparagraph 4 does not apply. A prerequisite to invoking either subparagraph 2 or 3 is that the contract of hire be made in this state. A contract is generally considered to have been made in the state where the offer is accepted. Burch Mfg. Co. v. McGee, 231 Iowa 730, 2 N.W.2d 98 (1942). The evidence in this case clearly shows that the contract was made in the state of Indiana. The hiring agreement may have been subject to approval by other corporate representatives, but the offer and acceptance were in Indiana. Claimant is of the view that because paperwork was to be approved in Iowa, the contract was made in Iowa. However, no manifestation of offer or acceptance occurred in the state of Iowa. Corporate decision making may occur on numerous levels and in numerous locales, but what is important is the location in which the legal act occurred. For example, postulate that claimant's application might have been considered by a geographically dispersed committee through a conference telephone call, but this does not mean that the contract was "made" in all of the states in which a participant sat at the time. Claimant applied for work in the state of Indiana and was tendered employment in that state. In George H. Wentz, Inc. v. Sabasta, 337 N.W.2d 495 (Iowa 1983), claimant was domiciled in Iowa, but hired and injured in South Dakota where he performed all of his work. The court found claimant's admission that he was hired in South Dakota binding; therefore, the need to even discuss subsections 2 through 4 was obviated. The Wentz court cited to Burch Mfg. for the proposition that generally, the place a contract is formed is where the meeting of minds occurs or where the final act necessary to form a binding contract takes place. While corporate officials in Iowa may have had some impact on the corporate decision to hire claimant, the meeting of minds and the last act necessary to constitute a contract both took place in the state of Indiana. As the contract was made in Indiana, claimant cannot find relief under subsections 2 or 3. Because this agency lacks jurisdiction to adjudicate this claim, it would be inappropriate to rule as to whether CRST, in addition to Lincoln Sales & Service, was an employer. Page 4 order THEREFORE, IT IS ORDERED: As this agency lacks jurisdiction to adjudicate the claim, claimant shall take nothing. Costs of this action shall be assessed to claimant pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this ______ day of ____________, 1990. ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Wallace L. Taylor Attorney at Law 630 Higley Building Cedar Rapids, Iowa 52401 Mr. Richard P. Moore Attorney at Law 2720 First Avenue NE P.O. Box 1943 Cedar Rapids, Iowa 52406-1943 2303 Filed July 23, 1990 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : EFRAIN GONZALEZ, : : Claimant, : : vs. : : LINCOLN SALES & SERVICE, INC. : : File No. 900515 Employer, : Self-Insured, : A R B I T R A T I O N : and : D E C I S I O N : CRST, INC., : : Employer, : : and : : REVIEW PLUS INSURANCE, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 2303 Where claimant, domiciled in Illinois, made a contract of hire in Indiana to drive a truck and the employment was not localized in any state or outside the United States, this agency lacked jurisdiction under Iowa Code section 85.71. BEFORE THE IOWA INDUSTRIAL COMMISSIONER DAVID MILLAR, Claimant VS. File No. 900518 IOWA REALTY d/b/a VALLEY WEST INN, A R B I T R A T I 0 N Employer, D E C I S I 0 N and CRUM & FORSTER COMMERCIAL INS., Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by David Millar, claimant, against Iowa Realty d/b/a Valley West Inn, employer (hereinafter referred to as The Inn) , and Crum & Forster Commercial Insurance Company, insurance carrier, defendants, for workers' compensation benefits as a result of an alleged injury on September 24, 1988. On September 27, 1989, 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 contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. Oral testimony and written exhibits were received during the hearing from the parties. The exhibits offered into the evidence are listed in the prehearing report. According to the prehearing report, the parties have stipulated to the following matters: 1. Claimant is seeking temporary total disability only from September 24, 1988 through October 8, 1988, except for September 30 and October 1. Defendants agree that claimant was not working during this period of time for defendant employer. 2. That the alleged injury is not a cause of permanent disability at this time. MILLAR V. IOWA REALTY Page 2 3. Claimant's rate of weekly compensation in the event of an award of weekly benefits from this proceeding shall be $119.75. 4. With reference to the medical bills submitted by claimant at hearing,. the providers would testify that the charges were fair and reasonable and incurred by claimant for reasonable and necessary treatment. Defendants are not offering contrary evidence. However, defendants dispute the causal connection of these expenses to the work injury. ISSUES The parties have submitted the following issues for determination in this proceeding: I. Whether claimant received an injury arising out of and in the course of employment; II. The extent of claimant's entitlement to temporary total disability benefits; and, III. The extent of claimant's entitlement to medical benefits. STATEMENT OF THE FACTS The following is a brief statement highlighting some of the more pertinent evidence presented. Whether or not specifically referred to in this statement, all of the evidence received at the hearing was independently reviewed and considered in arriving at this decision. Any conclusions about the evidence received contained in the following statement shall be viewed as preliminary findings of fact. Claimant testified that at the time of the alleged work injury he was working as a cook for The Inn. At approximately 6:15 a.m. on Saturday, September 24, 1988, claimant said that he slipped and fell on the floor in the kitchen while handling a five gallon pot of water. He said that no one was present at the time of the fall and that he reported the incident to his supervisor, the chef, upon his arrival between 8:30 and 9:00 a.m. Claimant said that he experienced pain in his lower back and upper shoulder after the fall but continued to work because no replacement could be found for him. He said that he filled out a written accident report at the request of the general manager on Sunday, September 25. Claimant testified that he was told by his superiors at The Inn to go to his own doctor. He said that he did not have enough money to do so but eventually went to the free clinic at Broadlawns Hospital on Monday, September 26, 1988. Claimant said that he was told at that time that there would be a three hour waiting period so he left and returned on Tuesday, September 27, 1988. MILLAR V. IOWA REALTY Page 3 According to the clinic notes of the staff physician and physician's assistant at Broadlawns, claimant reported.a fall in the kitchen at work three days prior in which he "injuring his back, mainly on the right side." Claimant at that time reported past back problems, one as recently as a month prior which required his rest for approximately three weeks. Upon a diagnosis of low back strain, the treating physician prescribed physical therapy and medication. Although not contained in the clinical notes, the staff physician assistant, David Yurdin, stated in a memo that he recommended claimant not do any prolonged standing, lifting, bending or other activities which aggravate his pain. Claimant returned to work only briefly for two days on September 30 and October 1. Claimant explained that he could not perform his job at The Inn under the restrictions described by Yurdin. As instructed by Broadlawns, claimant returned to Broadlawns after approximately two weeks on October 11, 1988, for a follow-up visit. Clinical notes indicate that the physicians felt claimant had underwent a dramatic improvement at that time with only a little sensitivity after prolonged standing. At that time, he was released by the physician and physician's assistant to return to work without restrictions. At the time of the alleged work injury, claimant stated that he was employed as a general manager of a vacuum cleaner sales business working out of his home. He stated that he handled the hiring, training and paperwork of his sales staff. He stated that he also was engaged in sales work himself. He said that he continued this activity during recovery from his back strain but was not able to do this work as well as before the injury. Upon his release to return to work at The Inn, claimant immediately quit his employment with The Inn. According to the separation notice signed by claimant's supervisors, claimant left the employment in order to devote all of his time to his other full time work. Claimant testified that he resigned because he could not work both jobs at the same time. Claimant did not specify in his testimony the exact amount of time devoted to the work at The Inn and his sales activity. Claimant currently complains of occasional back spasms after sitting for prolonged periods of time and stated that he must limit the amount of lifting he does in his current job. He explains that he has not continued treatment for lack of financial resources. APPLICABLE LAW AND ANALYSIS Note: A credibility finding is necessary to this decision as defendants place claimant's credibility at issue MILLAR V. IOWA REALTY Page 4 during cross-examination as to the occurrence of the injury and resulting disability. From his demeanor while testifying, claimant will be found credible. I. Claimant has the burden of proving by a preponderance of the evidence that claimant received an injury which arose out of and in the course of employment. The words out of" refer to the cause or source of the injury. The words "in the course of" refer to the time and place and circumstances of the injury. See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979) ; Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited therein. Defendants essentially attack claimant's credibility in denying that the injury actually occurred. In their brief, they note claimant's delay in reporting and receiving treatment of the injury, the lack of objective evidence of the injury and that he quit after he was released to return to work. Claimant testified that he reported the injury as soon as he could to his supervisor, the chef, on the day of the injury. This was not controverted by any of defendants' evidence. Second, the lack of objective evidence did not prevent the treating physicians from diagnosing a back strain. Third, it is not unusual in the experience of this agency for injured workers to delay a few days in seeking treatment for back injuries, especially persons who have had prior back problems. Generally, treatment is.sought when symptoms fail to quickly resolve after a few days. Finally, from his demeanor while testifying, claimant will be found credible. By virtue of his credible testimony, claimant has shown that he sustained a work injury. A finding of whether or not this was a permanent injury or a temporary aggravation of a prior existing back problem is not necessary as claimant is not seeking permanent disability benefits in this proceeding. II. Claimant is seeking temporary total disability benefits for the time he was unable to return to work as a cook. Pursuant to Iowa Code section 85.33(1), an injured worker is entitled to such benefits from the date of injury until claimant returns to work or until claimant is medically capable of returning to substantially similar work to the work he was performing at the time of the injury, whichever occurs first. MILLAR V. IOWA REALTY Page 5 It is unclear from the evidence presented the exact amount of time claimant devoted to his work as a cook and to work in a sales business. It is clear, however, that claimant spent a considerable amount of time in his sales activity as he felt the need to quit when he was released to return to work as he.could not do both of these jobs at the same time. If claimant had only briefly returned to work or only had occasional employment, during the recovery period, such work would not affect his temporary total disability benefits. However, claimant appears to have continued to engage in what apparently is his primary work activity, vacuum cleaner sales and he quit the cooking job at the first opportunity. Therefore, claimant has failed to show that he was temporary totally disabled during the period of time he was recovering from the work injury. Therefore, claimant is not entitled to temporary total disability benefits. III. Pursuant to Iowa Code section 85.27, claimant is entitled to payment of reasonable medical expenses incurred for treatment of a work injury. Claimant requests payment of a $60 chiropractic bill for treatment he received on December 14, 1988. This was well after his release to return to work by Broadlawns. No physician has opined that this treatment or any of his current difficulties are attributable to the fall in September of 1988. Although it is possible for this agency to find causal connection of a medical problem to a work injury without expert medical opinion, this agency can do so only in limited situations where there is a clear pattern of problems beginning with the date of injury. In this case, claimant admits to prior injuries, one of which only occurred a month prior to the work injury which appeared from a time lost standpoint to be more serious than the work injury. Therefore, a finding cannot be made on lay testimony alone that claimant's current problems or the problems in December of 1988 were the result of the September 1988 injury. The medical bill requested therefore cannot be awarded. Although claimant takes nothing from this proceeding, claimant will be awarded costs. Defendants have denied a work injury took place and a finding was made in claimant's favor on this matter. Also claimant's arguments appear to have been made in good faith. FINDINGS OF FACT 1. Claimant was a credible witness. Claimant's appearance while testifying indicated that he was testifying truthfully. 2. On September 24, 1988, claimant suffered an injury to his low back which arose out of and in the course of his MILLAR V. IOWA REALTY Page 6 employment with The Inn. Claimant suffered low back strain from a fall at work as a cook. 3. The work injury of September 24, 1988, was not a cause of a period of total disability from work. Claimant was not able to return to work as a cook from September 24, 1988 through October 8, 1988, except for September 30 and October 1. During the time he was off work as a cook, claimant received treatment of the work injury consisting of limitations on activity, physical therapy and medications for pain. However, claimant was able to continue in sales activity work in which he devoted a considerable amount of time in the management of the business out of his home. Claimant was compelled to resign from his employment as a cook after his release to full duty following the work injury because he could not perform work at both jobs at the same time. Claimant failed to show that he was totally disabled during the times he was off work as a cook. 4. Claimant failed to show that the chiropractic bill he incurred on December 18, 1988, was causally connected to the work injury herein. 5. As the matter was not at issue, there is no finding as to whether or not the work injury is a cause of permanent disability. CONCLUSIONS OF LAW Although claimant established that he suffered a work injury on September 24, 1988, claimant failed to show entitlement to further weekly or medical benefits. 1. The claimant's claim for weekly and medical benefits is denied. 2. Defendants shall pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 27th day of March, 1990. LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER MILLAR V. IOWA REALTY Page 7 Copies To: Mr. Arvid D. Oliver Attorney at Law 2635 Hubbell Ave Des Moines IA 50317 Mr. Harry W. Dahl Attorney at Law 974 73rd St, Suite 16 Des Moines IA 50312 1801 Filed March 27, 1990 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER DAVID MILLAR, Claimant, VS. File No. 900518 IOWA REALTY (VALLEY WEST INN), A R B I T R A T I O N Employer, D E C I S I O N and CRUM & FORSTER COMMERCIAL INS., Insurance Carrier, Defendants. 1801 - Temporary total disability benefits A claim for temporary total disability benefits was denied. Although claimant was not able to return to work as a cook following the work injury, he was able to carry on his vacuum cleaner sales business during the period of recovery. Upon his release to return to work as a cook, two weeks after the injury, claimant quit the cook job because he said he could not devote time to both jobs. 5-1402.20, 5-1801 Filed August 10, 1990 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : ROBERT HAULK, : : File Nos. 881096 Claimant, : 894140 : 900519 vs. : : A R B I T R A T I O N ROADWAY EXPRESS, INC., : : D E C I S I O N Employer, : Self-Insured, : Defendant. : ____________________________________________________________ 5-1402.20, 5-1801 Claimant proved injury to his right elbow, but failed to prove two alleged back injuries. He was awarded six days of temporary total disability benefits. Page 1 before the iowa industrial commissioner ____________________________________________________________ : GREGORY PARHAM, : : Claimant, : : vs. : : File No. 900530 EXIDE CORPORATION, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : WAUSAU INSURANCE COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ Statement of the case This is a proceeding in arbitration upon the petition of claimant, Gregory Parham, against his employer, Exide Corporation, and its insurance carrier, Wausau Insurance Company, defendants. The case was heard on June 28, 1990, in Burlington, Iowa at the Des Moines County Courthouse. The record consists of the testimony of claimant as well as the testimony of Barb Kirchgassner, plant nurse. Additionally, the record consists of joint exhibits 1-30, defendants' exhibit A and a copy of claimant's medical expenses. issues The sole issues to be determined are: 1) whether claimant received an injury which arose out of and in the course of employment; 2) whether there is a causal relationship between the alleged injury and the disability; 3) whether claimant is entitled to temporary disability/healing period benefits or permanent partial disability benefits; 4) whether claimant is entitled to medical benefits under section 85.27; and, 5) whether claimant tendered notice under section 85.23. (There is a section 86.13 issue which has been bifurcated.) findings of fact The deputy, having heard the testimony and considered all the evidence, finds: Claimant is 34 years old. He was hired by defendant-employer to drive a fork lift truck. He worked the 10:30 p.m. to 6:30 a.m. shift. In order to drive the truck, claimant was required to steer the wheel with his left hand and to use a throttle with his right hand. These hand movements would control the movement of the truck. Page 2 Claimant operated the truck at least six hours per day. Claimant was installing a stereo system in his truck on Saturday, October 8, 1988. He bumped his left hand on a metal portion of the vehicle. Claimant testified he hit his body at approximately one inch below the wrist and the little finger. Claimant also testified he was not bothered by this incident subsequent to its occurrence. However, claimant did seek medical treatment at the Burlington Medical Center on October 10, 1988. Notes for the emergency room of the Burlington Medical Center on October 10, 1988, provide under the heading, "Nursing history/assessment:" Pt states he was working on his car 10-8-88 & hit back door with the back of hand & wrist. Able to flex and extend hand & wrist - states difficult to pull objects, good Radial pulse Left hand. Claimant testified that on October 9, 1988, he was working the third shift for defendant. At approximately 3:00 a.m., on October 10, 1988, he experienced pain in his left hand and arm. He stated, he reported the pain to his foreman, John Forester, and that he requested an aspirin for the pain. Claimant testified his pain occurred after driving his fork lift truck. Under the heading, description of illness or injury, for the same hospital record as above, the note states: pt sts hurt Lt wrist & hand while working on his car 10-08-88 X-rays were taken of the left hand on October 10, 1988. G. Day, M.D., a radiologist provided in his report: LEFT HAND: Examination of the left hand shows no evidence of fracture or dislocation. The bones and joints appear normal. LEFT WRIST: Examination of the left wrist shows no evidence of fracture, dislocation, or periarticular calcification. The bones are of normal density. IMP: Normal left hand and wrist. Claimant, several weeks later, completed a form for employee disability income. On the face of page one, claimant wrote: C. Description of accident or sickness I hit my hand, might have been a nerv (sic) I Hit D. Date of accident or beginning of sickness 10-8-88 [x] AM [ ] PM Page 3 E. Were you at work  yes [x] no Have you or will you file for Workers' Compensation Benefits? [ ] yes [x] no ... On the same form, claimant's treating physician wrote: Is condition due to injury or sickness arising out of patient's employment? [ ] yes [x] no Claimant was referred to an orthopedic surgeon, Keith W. Riggins, M.D. Dr. Riggins examined claimant's left hand. Eventually surgery for a trigger finger release of the left thumb was performed on December 28, 1988. Dr. Riggins' office notes revealed that claimant complained of three week pain and dysesthesia of the left median nerve on January 25, 1989. The notes reflected complaints of right hand pain to Dr. Riggins on February 8, 1989. A motor nerve conduction test was performed on February 8, 1989 by Burton Stone, M.D. Dr. Stone opined: The only finding is a mild increase in sensory distal latency on the right side. Could represent early carpal tunnel syndrome, but not conclusive. Dr. Riggins referred claimant to the University of Iowa Hand Surgery Service. Claimant was examined by Curtis M. Steyers, M.D., on July 26, 1989. Dr. Steyers continued to treat claimant through February 21, 1990. Originally, Dr. Steyers diagnosed claimant as having right and left carpal tunnel syndromes. That diagnosis was ruled out. Claimant was later diagnosed as having flexor tenosynovitis of the index and long fingers on the right Page 4 hand only. As of February 21, 1990, Dr. Steyers diagnosed claimant as having some residual flexor tenosynovitis in the right index and long finger. Claimant also sought treatment from William W. Eversmann, Jr., M.D., at Iowa Medical Clinic, P.C., from April 19, 1989 to June 16, 1989. Dr. Eversmann diagnosed claimant as having mild carpal tunnel syndrome on the left side. Dr. Eversmann wrote in his note of June 16, 1989: On radiographic examination, there is evidence of an old fracture of the little metacarpal of the right hand, which is solidly healed and certainly no problem at this time. I would guess that this fracture is in the range of about three months old or fourth [sic] months old, certainly not too much longer than that. At the MP joints bilaterally, he has some congenital deformities with flattening of the MP heads which is not significant and is constitutional and has been present since birth. His radiographs are otherwise normal. I have talked to Greg at some length. I do believe he has a very mild carpal tunnel syndrome on the left side, which has been adequately treated with the intermittent use of splints which he has used over the last several weeks. I do not feel that I can make a diagnosis of any other significant condition in either upper extremity and I question honestly whether or not he is having significant symptoms, although he makes quite a large and loud case, almost histrionic at times for the pain distribution, which in many cases is non-anatomic, as I have described earlier. I have little to offer this man at this time. I think he has been adequately treated for his carpal tunnel and certainly with his present activity level, I do not expect it to recur using the splints intermittently. I do not find any other diagnostic pattern with his symptom complex. I have suggested to him the possibility of a consultation for a work-up for systemic arthritis with either his family doctor or an internist locally in Burlington. I find no indication to entertain that work-up here in Cedar Rapids that great of distance from his home, since I know there are qualified people to perform such a work-up closer to his living area. I will plan on seeing him only as necessary. I have not at any time taken this man off work, nor have I suggested to him that he should not work after any of our visits. (Eversmann) (VT)nr Page 5 conclusions of law Claimant has the burden of proving by a preponderance of the evidence that he received an injury on October 10, 1988, which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). The opinions of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardward, 220 N.W.2d 903 (Iowa 1974). An opinion of an expert based upon an incomplete history is not binding upon the commissioner, but must be weighed together with the other disclosed facts and circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867 (1965). The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. Burt, 247 Iowa 691, 73 N.W.2d 732 (1955). In regard to medical testimony, the commissioner is required to state the reasons on which testimony is accepted or rejected. Sondag, 220 N.W.2d 903 (1974). The claimant must prove by a preponderance of the evidence that his injury arose out of and in the course of his employment. Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). In the course of employment means that the claimant must prove his injury occurred at a place where he reasonably may be performing his duties. McClure, 188 N.W.2d 283 (Iowa 1971). Page 6 Arising out of suggests a causal relationship between the employment and the injury. Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). The claimant has the burden of proving by a preponderance of the evidence that the injury of October 10, 1988, is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). In the case at hand, claimant has not established by a preponderance of the evidence that he has sustained an injury which arose out of and in the course of his employment. Neither has claimant established the requisite causal connection. Claimant has admitted striking his hand and wrist against his truck on October 8, 1988. This incident did occur outside of claimant's employment. Subsequent to the incident, claimant did present himself at the emergency room. He reported the October 8, 1988 incident to the emergency room personnel. He did not attribute his left hand pain to driving a fork lift truck. Nor did claimant report any right hand pain to the medical personnel. Several weeks later claimant completed an application for disability income benefits. He again cited the October 8, 1988 incident as the event which caused his alleged disability. Claimant specifically wrote that his disability occurred when he had hit his hand and that he was not at work. Claimant never mentioned any accident involving his right hand on that application form. Claimant did not report a work injury to Barb Kirchgassner, R.N., when he applied for disability income benefits in October of 1988. On the application he expressly denied he was at work. Ms. Kirchgassner was unaware of any potential workers' compensation claim until she received the notice of January 4, 1989. It was sent by certified mail. Claimant's physician, Dr. Riggins, was provided with the history of the October 8, 1988 incident. His notes do not reflect a history of repetitive motions at work until his report of March 20, 1989, where he writes: Mr. Gregory Parham was treated for a trigger thumb of the left hand which is not felt to be due to the episode of blunt injury described at work. He subsequently, while off work, began to note symptoms of carpal tunnel syndrome in the right hand and has been referred to the University of Iowa Hand Surgery Service for their evaluations. Since the patient was off work when carpal tunnel symptoms developed, I would not consider them Page 7 secondary to his work environment. Initially, claimant was off work from October 10, 1988 to June 18, 1989. Bilateral carpal tunnel-like symptoms did not appear until claimant had been off work for some months. His surgeon, Dr. Riggins, did not believe the symptoms were secondary to claimant's work situation. While it is noted that Dr. Steyers causally related claimant's flexor tenosynovitis to his work environment, Dr. Steyers had an incomplete medical history. Therefore, his testimony is not given as much weight as the opinion of Dr. Riggins, the treating surgeon. Finally, there is the opinion of Dr. Eversmann. He too appears to have an incomplete medical history. He also questions the degree of claimant's symptoms. In his office notes of June 16, 1989, the physician makes note of his opinion. Finally, there is claimant's own testimony. He was not a credible witness at the hearing. He denied completing the employee disability income benefit application form. His denial was not believed by the undersigned. Defendant's attorney was able to satisfactorily challenge claimant's credibility. Therefore, in light of the foregoing, it is the determination of the undersigned that claimant has not proven by a preponderance of the evidence that he has sustained an injury which arose out of and in the course of his employment. Nor has claimant proven the requisite causal connection between claimant's claimed condition and his work situation. order THEREFORE, IT IS ORDERED: Claimant takes nothing from these proceedings. Costs of this action are assessed to claimant pursuant to Division of Industrial Services Rule 343-4.33. Page 8 Signed and filed this ____ day of August, 1990. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Patrick L. Woodward Attorney at Law 321 North Third St Burlington IA 52601 Mr. Larry L. Shepler Attorney at Law Suite 102, Executive Sq 400 Main St Davenport IA 52801 5-1100 Filed August 29, 1990 MICHELLE A. McGOVERN before the iowa industrial commissioner ____________________________________________________________ : GREGORY PARHAM, : : Claimant, : : vs. : : File No. 900530 EXIDE CORPORATION, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : WAUSAU INSURANCE COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1100 Claimant was not credible. It was determined claimant did not sustain an injury which arose out of and in the course of his employment. Page 1 before the iowa industrial commissioner ____________________________________________________________ : MERLE BOYCE, : : Claimant, : : File No. 900543 vs. : : ALUMINUM COMPANY OF AMERICA : A R B I T R A T I O N : Employer, : D E C I S I O N Self-Insured, : Defendant, : ___________________________________________________________ introduction This is a proceeding in arbitration brought by the claimant, Merle Boyce, against Aluminum Company of America, employer, self-employed, defendant, to recover benefits as a result of an alleged injury sustained on January 22, 1987. This matter came on for hearing before the deputy industrial commissioner in Davenport, Iowa, on March 21, 1990. The record consists of the testimony of claimant, Ken Maxwell, Kevin O'Brien, Kay Pille, and Gary Mlakar; Joint Exhibits 1 through 21; and defendants' Exhibit A and B. issues The issues the parties set out in the prehearing report for resolution are: 1. Whether claimant's injury arose out of and in the course of his employment on January 22, 1987; 2. Whether claimant's disability is causally connected to his January 22, 1987 injury; 3. The nature and extent of claimant's disability; 4. Whether claimant gave timely notice under Iowa Code section 85.23; and 5. Whether claimant timely filed his original notice and petition as provided by Iowa Code section 85.26. review of the evidence Claimant testified in person at the hearing and by way of deposition taken June 22, 1989. Claimant said he is a high school graduate and took one year of college training in auto mechanics. Claimant stated he did auto body work for two years before he began working for defendant on October 23, 1979. Claimant described the various jobs and duties he performed for defendant over the approximate fourteen years before he left his employment in 1987. Claimant testified at first that he was injured on January 22, 1987 while running a slitter machine which cuts and Page 2 trims sheets of aluminum. Claimant said that the machine jammed with some scraps of aluminum and he tried to unjam the machine. Claimant stated that when the jamming broke loose by his pulling, the aluminum sprang out like a coiled spring hitting, cutting and bruising both arms in the area of his hands and across his face. Claimant said the wounds were minor and no band aids were put on the wounds. Claimant testified he sought medical help at the plant and an outside doctor immediately and was returned to light duty work with restrictions that same day. Claimant said he then worked only two hours because his left arm was hurting too much. Claimant said he never worked again for defendant after January 17, 1987 when he was red tagged (red carded). Red carded means the employee cannot come back to work for medical reasons. Claimant said he inquired about work but was told by defendant that there was nothing for him to do unless he is 100 percent whole. Claimant related he has never been employed anywhere since January 1987. Claimant stated he received sickness and accident benefits from January 1987 until they expired approximately two years later. Claimant said social security awarded him benefits by a decision December 8, 1988 retroactive to January 23, 1987 to the present. Claimant testified he is 100 percent disabled for social security purposes. Claimant related his many physical problems since January 1987, which included low back surgery, right knee surgery, right and left shoulder surgery and therapy. On cross-examination, claimant readily admitted his injury occurred on January 16, 1987 and not January 22, 1987. Claimant emphasized he has incurred no injuries of any kind since January 16, 1987. Claimant admitted he was being medically treated for shoulder problems prior to January 16, 1987 and, in fact, had a frozen shoulder at that time. Claimant said he injured his left shoulder in a hunting accident. He also admitted he was having low back problems before January 16, 1987. Claimant acknowledged he had a test performed on January 20, 1987 regarding his back and is not claiming any back problems as a result of his alleged slitter machine accident of January 16, 1987. Claimant cannot recall a January 1987 discussion with Mlaker, Maxwell, Bacon and Campbell regarding his January 16, 1987 accident and workers' compensation and sickness and accident benefits, but claimant did acknowledge he knew the difference between workers' compensation and sickness and accident benefits. In his deposition, claimant contends he injured his arms, back and shoulders three or four days before he was red carded on January 22, 1987. (Defendant's Exhibit A, page 20) Claimant then acknowledged that Deposition Exhibit 2 is the same as hearing Joint Exhibit 2 and that this Page 3 exhibit correctly describes the accident. This joint exhibit reflects: Q. Is that an accurate description of the accident? A. Yes, because I believe I had a small scratch on my cheekbone too. Just a small one. Q. Okay. Then on that printed portion of the form, same Exhibit, it says, Nature of Injury, it says, quote, "left and right forearms, contusions, right forearm posterior surface, slight abrasions, good ROM, left forearm, posterior surface, abrasions and contusions. C/O" -- for complains of -- "left shoulder pain. States he bruised shoulder in November last year and presently under Dr. Miller's care for a bruised R cuff. (Outside injury)," closed quotes. In his deposition, claimant testified he injured his left shoulder in a hunting accident prior to January 16, 1987, for which he received treatment and was scheduled for an arthrogram on January 21, 1987. Claimant claimed he suffered bilateral frozen shoulders as a result of his January 16, 1987 injury. Claimant testified he had knee problems and resulting surgery but indicated the January 16, 1987 injury in no way caused his knee problems. Claimant testified in more detail in his deposition as to medical problems, surgeries and contentions. Due to the nature of this case and other dominating issues, the undersigned feels it unnecessary to set out claimant's testimony in any more detail than has already been done. It will have no bearing in the ultimate decision herein. Kay Pille, a registered nurse in defendant's medical department for the last sixteen years, testified she knows claimant. She testified to certain exhibits, Joint Exhibits 1 and 2, in explaining claimant's complaints of abrasions and contusions on January 16, 1987 to both his forearms and a complaint regarding his left shoulder pain. She said claimant was told his left shoulder problem was an outside (not workers' compensation) injury. She said claimant told her he was being treated for his shoulder already by a Dr. Miller. Pille said her last and the medical department's last contact with claimant was on January 20, 1987. She said claimant had no further plant injury after January 16, 1987. Pille also related the case number assignment to each case as they came in. Claimant's was 87-0026. Gary Mlakar, defendant's senior job safety engineer on January 16, 1987, testified he has been working for defendant for the last ten and one-half years. His job includes investigating plant injuries. He said he knows claimant and met with him January 19, 1987 following claimant's January 16, 1987 accident. He acknowledged his notes are reflected in Joint Exhibit 2. He recalled other defendant employers attending the meeting were Mr. Maxwell, Mrs. Bacon, and Mr. Campbell. He said the group concluded Page 4 claimant's forearm injuries were related and, therefore, a workers' compensation matter and that claimant's shoulder was already being treated and was not a workers' compensation matter. Mlaker indicated claimant appeared to understand the difference between sickness and accident benefits and workers' compensation benefits. He acknowledged Joint Exhibit 2, page 3, was his notes and signature and reflects the conclusion of the meeting. Ken Maxwell, claimant's shift supervisor on January 16, 1987, testified that Joint Exhibit 21 was signed by him on January 16, 1987 after his department investigated claimant's accident on that date. He agreed that this exhibit is the bottom part of Joint Exhibit 2, the injury, illness and accident report, the top one-third of which is originally filled out by the medical department. He testified the top one-third of Joint Exhibit 2 is identical to the top one-third of Joint Exhibit 21. Maxwell stated he has been employed with defendant for eleven years. Kevin O'Brien testified he is in the human resources department at defendant and this department administers the workers' compensation claims. He said he has been employed one year with defendant and has access to claimant's employment records. He explained the case number procedures in which a case number is given to each injury report chronologically on the day it is received. He said claimant's number given to his case on January 16, 1987 is 87-0026. He indicated the prior number 0025 was for another employee's injury on January 14, 1987 and that the three subsequent numbers after 0026 were also on January 16, 1987 for other employees. O'Brien stated claimant has been receiving disability and retirement benefits from defendant since February 1989. He said claimant received sickness and accident benefits from defendant prior to February 1989 and beginning after his January 16, 1987 injury. The medical evidence in the form of exhibits will not be reviewed herein as there is evidence on the issue of the statute of limitations that is dispositive of any issue that may arise from the medical exhibits and testimony as to causal connection and whether claimant's injury arose out of and in the course of his employment and the nature and extent of claimant's disability. applicable law and analysis Iowa Code section 85.26 provides, in part: An original proceeding for benefits under this chapter or chapter 85A, 85B, or 86, shall not be maintained in any contested case unless the proceeding is commenced within two years from the date of the occurrence of the injury for which benefits are claimed or, if weekly compensation benefits are paid under section 86.13, within three years from the date of the last payment of weekly compensation benefits. Claimant is approximately 43 years of age. The parties Page 5 set out several issues to be decided. There is one issue in which the evidence is overwhelming and convincing. The undersigned will discuss the 85.26 issue first as it is dispositive of all other issues. It is also for this reason that the applicable law as to the other issues has not been set out. Often when there may be a close question on an issue that may dispose of most or all of the other issues in a case, the undersigned has in certain cases discussed those other issues. In this current case, notwithstanding the claimant's allegations in his petition of a January 22, 1987 injury, claimant, as well as all other witnesses, testified that claimant's injury for which he is present today, in fact, occurred on January 16, 1987. It appears this January 16, 1987 injury at least involved injuries to claimant's forearms. Claimant's attorney also acknowledged this January 16, 1987 injury date. All the written exhibits of defendant employer kept in the ordinary course of business indicate claimant's injury from the slitter machine jam-up occurred on January 16, 1987. Claimant's attorney argues two points: First, claimant didn't come to his office until January 20, 1987 on a divorce matter and mentioned this accident and the attorney then filed as soon as possible with no time to investigate. Second, claimant's attorney then argues that claimant was somehow convinced or told that claimant's injury would be taken care of as a workers' compensation matter and, therefore, defendant's action waived the applicable 85.26 statutory provisions. There is no credible evidence that defendant tried to make claimant fail to file an action. In fact, it appears defendant enabled claimant to collect on all the possible insurance disability benefits connected with claimant's employment based on the employer's investigation of the accident and what claimant told them and based on what medical evidence the employer received as to claimant's prior and current medical treatment for medical problems not connected with the claimant's January 16, 1987 injury. Claimant testified he knew the difference between workers' compensation benefits and sickness and accident benefits, one being for work-related injuries and the other for nonwork-related injuries. Claimant must accept some responsibility on his own. Ignorance of the law is no excuse. Claimant has proceeded with other legal matters including social security disability benefits which he received in 1988 retroactive to January 23, 1987. Claimant obviously is aware of the legal system. Although the file may appear confusing, the parties agree that if January 22, 1987 were the injury date, 85.26 would not be applicable. The uncontroverted evidence shows claimant's injury occurred January 16, 1987 and, therefore, his action was filed in excess of two years after his injury and the undersigned so finds. Since the above issue is dispositive of all other issues, the undersigned sees no reason to further discuss any other issues, facts or law. Claimant's action is dismissed and claimant takes nothing from this proceeding. Page 6 findings of fact 1. Claimant incurred a work-related injury to his forearms resulting in some abrasions and bruises on January 16, 1987. 2. Claimant failed to timely file his original notice and petition by January 16, 1987. conclusions of law Claimant received an injury to his forearm which arose out of and in the course of claimant's employment on January 16, 1987. Claimant failed to file his original notice and petition by January 16, 1987 in violation of Iowa Code section 85.26. order Claimant's original notice and petition is dismissed. Claimant takes nothing from these proceedings. Claimant shall pay the costs of this action, pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this _____ day of March, 1990. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Page 7 Copies to: Mr David Scieszinski Attorney at Law P O Box 394 Wilton IA 52778 Mr Thomas N Kamp Attorney at Law 600 Davenport Bank Bldg Davenport IA 52801 5-2402 Filed March 29, 1990 Bernard J. O'Malley before the iowa industrial commissioner ____________________________________________________________ : MERLE BOYCE, : : Claimant, : : File No. 900543 vs. : : ALUMINUM COMPANY OF AMERICA : A R B I T R A T I O N : Employer, : D E C I S I O N Self-Insured, : Defendant, : ___________________________________________________________ 5-2402 Claimant failed to file his arbitration petition timely within the two years of his injury in violation of Iowa Code section 85.26.