Page 1 before the iowa industrial commissioner ____________________________________________________________ _____ : JULIE MOSES, : : Claimant, : : vs. : : File No. 900554 IOWA NORTHLAND REGIONAL : COUNCIL OF GOVERNMENTS, : : A P P E A L Employer, : : D E C I S I O N and : : AETNA CASUALTY & SURETY, : : 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 July 8, 1991 is affirmed and is adopted as the final agency action in this case with the following additional analysis: Claimant indicated in her testimony (transcript, pages 54 and 57) that she returned to work after her injury of April 23, 1987. Her eligibility for temporary total disability benefits would end when she returned to work. See Iowa Code section 85.33(1). Claimant returned to work prior to the time she eventually terminated her employment in September 1988. The question of entitlement to temporary total disability benefits is for the period subsequent to September 26, 1988. Because claimant had returned to work prior to that date she is not entitled to temporary total disability benefits after that date. Claimant has the burden of proving entitlement to benefits for the alleged closed head injury and for the alleged aggravation of her preexisting psychological condition. The evidence in this case does not demonstrate that claimant had a closed head injury. Numerous medical reports made shortly after the injury of April 23, 1987 do not mention symptoms of a head injury. Claimant must prove that an aggravation of a preexisting condition is a material aggravation if it is to be compensable. Doctors Boarini, Taylor, and Rizzo, all medical doctors, had access to and reviewed the medical records of claimant. (Dr. Rizzo's deposition is Exhibit Page 2 CCC.) These doctors were of the opinion that claimant's psychological problems were long standing. The opinions of Dr. Verduyn can be given little weight as he had an incomplete history. Neither Kenneth Wernimont nor John Bayless are medical doctors and therefore cannot give medical opinions. Dr. Akbar's statement that claimant's chronic depressive disorder started since the injury (see Exhibit CC, p. 20) appears to be a recitation of the history given to him rather than his opinion. In addition, it does not appear that Dr. Akbar was aware of the medical evidence which shows that claimant's psychological problems predated the fall of April 23, 1987. Therefore, Dr. Akbar's opinion, if any, can be given little weight. Claimant has not proved that the work incident on April 23, 1987 was a material aggravation of a preexisting condition. It should be noted that claimant's argument in her appeal brief indicates that this case involves an alleged psychological condition arising from a physical injury (the so-called physical-mental injury). Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of December, 1991. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Jay P. Roberts Attorney at Law 620 Lafayette St. P.O. Box 178 Waterloo, Iowa 50704 Mr. James E. Walsh, Jr. Mr. Bruce L. Gettman, Jr. Attorneys at Law P.O. Box 596 Waterloo, Iowa 50704 5-1108.50 5-2204 Filed December 26, 1991 Byron K. Orton MAM before the iowa industrial commissioner ____________________________________________________________ _____ : JULIE MOSES, : : Claimant, : : vs. : : File No. 900554 IOWA NORTHLAND REGIONAL : COUNCIL OF GOVERNMENTS, : : A P P E A L Employer, : : D E C I S I O N and : : AETNA CASUALTY & SURETY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ _____ 5-1108.50 Claimant's alleged closed head injury was not causally related to claimant's work injury on April 23, 1987. 5-1108.50 Claimant failed to prove that her psychological condition was aggravated by a physical injury. Claimant's psychological problems predated her fall at work and her psychological conditions and symptoms were not materially aggravated by her injury. Page 1 before the iowa industrial commissioner ____________________________________________________________ : JULIE MOSES, : : Claimant, : : vs. : : File No. 900554 IOWA NORTHLAND REGIONAL : COUNCIL OF GOVERNMENTS, : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : AETNA CASUALTY & SURETY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration upon the petition of claimant, Julie Moses, against her employer, Iowa Northland Regional Council of Governments, and its insurance carrier, Aetna Casualty and Surety Company, defendants. The case was heard on October 2, 1990, in Waterloo, Iowa at the Black Hawk County Courthouse. The record consists of the testimony of claimant. The record also consists of the testimonies of: Kenneth Wernimont, clinical social worker; Sharon Winberg, former director of housing; David Moses, spouse of claimant; Jeremy Green, son of claimant; John David Bales, clinical psychologist; Dr. Michael Taylor, M.D., psychiatrist; Patricia Neighbors, bookkeeper; and, Sharon Juan, Executive Director of INRCOG. The record also consists of the following exhibits: A-Z, AA-ZZ and AAA-FFF. Attorneys for the parties are herein advised they submitted medical records for a woman by the name of Sheri Swanson. Obviously, the attorneys did not review the documents for their relevancy. Finally, many of claimant's records were duplicated. This duplication resulted in unnecessary time being spent reviewing the record. The record was extensive in and of itself. It took many hours to review the same. In the future, the attorneys are counseled to peruse their evidence before offering it to the deputy. Both briefs were read and reviewed by the undersigned. Defendants' motion for a protective order is denied. issues The issues to be determined are: 1) whether claimant received an injury which arose out of and in the course of Page 2 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; and, 4) whether claimant is entitled to certain benefits pursuant to section 85.27. findings of fact The deputy, having heard the testimony and considered all the evidence, finds: Claimant was 36 years old at the time of the hearing. She had commenced her employment with INRCOG on October 7, 1985. INRCOG was a planning agency for city, county, state and federal agencies. Claimant worked as an administrative assistant/ secretary and was required to perform routine secretarial duties for the executive director of INRCOG and for other program people. On April 23, 1987, claimant was preparing to post the office afternoon mail. She was walking down three flights of stairs at the Russel Lamson Building in Waterloo when she slipped on the stairs. There were no actual witnesses to the accident. However, Paul Karnatz, an employee working at the front desk of the building, testified he saw claimant on the steps immediately after the fall. The next day claimant sought medical attention from Robert D. Buckles, M.D. According to Dr. Buckles' records, claimant indicated she had fallen down three stairs and landed on her left side, injuring her back, hip and elbow. There was no mention of any head injury at that time. X-rays of the pelvis and spine were taken but they were negative. On April 27, 1987, claimant again sought medical attention from Dr. Buckles. He reported in his notes: "Pain in occiput & behind the eyes. She didn't hit her head when she fell." (Exhibit P7) Claimant again saw Dr. Buckles on May 4, 1987. She reported stiffness in her shoulder, wrist and elbow. She attributed the stiffness to her typing. Nearly three months later, claimant returned to Dr. Buckles. She reported she bent over on July 30, 1987 and felt something snap in her back. Several weeks later, claimant had surgery for a cyst on her left ovary. The surgery was totally unrelated to her fall. Concurrently with her visits to Dr. Buckles, claimant also treated with William Peterson, D.C., claimant's treating chiropractor since 1983. Dr. Peterson treated claimant on April 24, 1987. He treated claimant for the same spinal problems as before her fall at the Russel Lamson Building. On that date, claimant completed an accident report for Dr. Peterson. She indicated she had fallen down three steps. Claimant made no mention of any injury to her head. The only new injury she expressed was an injury to the left elbow. Otherwise, all other complaints had been Page 3 complaints voiced on prior occasions by claimant to her treating chiropractor. In his deposition of March 8, 1990, Dr. Peterson declined to provide claimant with an impairment rating. He testified: A. I don't feel that I'm in a position to state whether or not she would be suffering any permanent impairment due to this accident in question. However, I do feel as though emotionally the tension, stress factor has greatly been increased since the accident in question. (Ex. VV, page 55, line 23 - page 56, line 3) In February of 1988, Dr. Buckles referred claimant to Roswell M. Johnston, D.O., an orthopedic specialist. Dr. Johnston examined and treated claimant. He prescribed physical therapy. In his report of February 12, 1988, Dr. Johnston related claimant's work injury as: [S]he had gone down one flight of stairs and was coming around the landing and was about to go down the next flight of stairs when suddenly she slipped. She doesn't know exactly what happened other than she just had her feet go out from underneath her and she landed flat on her back on top of the stairs with her right leg hooked behind and underneath her and she struck her left elbow on apparently one of the stairs. She also caught her ribs as well.... (Ex. S4) Dr. Johnston diagnosed claimant's condition as: My impression is that she suffered multiple contusions from a significant injury when she fell, however, there appears to be nothing of any permanent damage and nothing that needed to be fixed or repaired as it were. I have encouraged her to continue with the physical therapy, emphasizing shoulder girdle strengthening exer cises and if, at some point in time, her trochanteric bursitis becomes more symptomatic then one may consider an injection of this area. Otherwise, most of her injuries are time dependent and may continue to hurt anywhere from several months to upwards to a year or longer. (Ex. S5) Dr. Johnston continued to treat claimant conservatively. In his report of January 9, 1990, Dr. Johnston provided a permanent partial impairment rating for claimant. Dr. Johnston opined: In response to your question number one, you will notice in the sentence before I state that she Page 4 suffered multiple contusions from a significant injury when she fell. Stating that there appeared to be nothing of any permanent damage was a poor choice of words on my part. That was meant to imply that there was nothing injured that needed to be operated on. It was not to imply that she was not going to have a degree of impairment or permanent problems. In response to your question number two; my opinion remains that she has a permanent, partial impairment of 5% of the whole person. I have no occasion to render impairment ratings when I dictate a consultation to another referring physician; and that was not what I did in the letter to Dr. Buckles on February 12, 1989, as I indicate above. The rating rendered, is based on my experience and judgment as well as the AMA Guidelines and the Minnesota rules governing workmen's compensation practices and procedures. With regard to your third inquiry; I do not notice any significant changes in the patients [sic] exam, except she showed improvement with regard to her elbow and the injury to her ribs. The patient's rating is based primarily upon the subjective complaints as outlined in my notes. Julie continued to get stiff quite easily after sitting for prolonged periods which she described as anywhere from one to two hours, at which time she would begin to get muscle cramping into her lower back. I do not think she would be a candidate for any type of job which involved repetitive bending and stooping or any degree of heavy lifting. I think she should be able to handle general secretarial type of activities, if she is able to get up and move about every one to two hours. This opinion, of course, is based primarily upon my evaluation and notes from approximately a year and a half ago. (Ex. S25 & S26) Dr. Johnston testified by deposition on February 19, 1990. He could not state with a reasonable degree of medical certainty that claimant's injuries were causally related to her fall. He testified that claimant had not complained of headaches or other problems with her head. Dr. Johnston diagnosed claimant as having contusions over the trochanter. He noted claimant continued expressing complaints which showed no significant improvement. He also noted claimant expressed a pain response to palpation in the area of her contusions. Dr. Johnston opined claimant reached maximum medical improvement as of July 27, 1988. He also opined claimant was capable of performing secretarial duties so long as she was allowed to move about the office. Claimant received additional medical evaluation and/or Page 5 treatment. One of the physicians included W. H. Verduyn, M.D. He examined claimant on various occasions between March 7, 1989 and February 26, 1990. At his initial examination, claimant indicated she suffered from chronic pain. Dr. Verduyn did not have a complete medical history for claimant. He did not request any medical records prior to the fall at work. However, after his initial examination, Dr. Verduyn diagnosed claimant as having: IMPRESSION Fall on 4/23/87 causing: 1) Post traumatic syndrome. 2) Severe headaches. 3) Memory problems. 4) Concentration problems. 5) Probable partial complex seizures. 6) Organic depression due to traumatic brain injury. (Ex. Z4) Dr. Verduyn order an MRI of claimant's head. The test was negative. Dr. Verduyn also requested a twenty-four hour EEG. Marc E. Hines, M.D., reviewed the EEG in his report of March 20, 1989. Dr. Hines wrote: TECHNICAL SUMMARY: This patient's EEG shows no abnormality which cannot be explained on the basis of muscle or other artifact except for brief periods of three to four seconds in which there is sudden onset of slowing of the background rhythm activity down to 0.5-2.0 Hertz slow activity of moderate to low voltage. There appears to be some flattening of the background record other than the slowing at these times. These occur repeatedly during the EEG not associated with any specific events in the diary. There are no other paroxysmal or lateralizing findings which cannot be explained on the basis of muscle or other artifact. IMPRESSION: These periods of slow activity are nonspecific and certainly are most consistent with sudden onset of bilateral cerebral dysfunction- the etiology of which cannot be determined from this recording but has been seen to occur in some individuals with cerebrovascular insufficiency. Occasionally, this can be due to diffuse cerebral dysfunction during a cardiac arrhythmia or other such event causing rather diffuse hypoxia and ischemia. The exact etiology here, however, is not possible to tell from the EEG. Unfortunately, given the montage of the 24-hour ambulatory EEG, one cannot make any certain statement since it is primarily a frontal temporal montage, there are no posterior areas to observe during the EEG recording. There were no other abnormalities. (Ex. R1) Page 6 Dr. Verduyn also referred claimant to John D. Bayless, Ph.D., licensed psychologist for neuropsychological testing. TEST RESULTS AND INTERPRETATION: She scored in the average range on a battery of intelligence tests (WAIS IQ = 92, at the 30th percentile), which is clearly beneath expectations given her educational and occupational achievement. While her capacity for abstract reasoning and immediate recall of digits was near normal, calculations were extremely spotty, and her reasoning and judgement performances were affected by vague responses. Her fund of knowledge was also erratic. In the nonverbal subtests, constructional praxis and visuomotor coordination were adequate but logical sequencing of picture stories was significantly impaired. Dichotic listening, facial perception, and judgement of line direction were normal, however. Conversational speech was generally fluent, well articulated, and nonparaphasic, and the patient performed quite well in a word finding task. Reading and spelling were generally adequate as well, at the 32nd and 79th percentiles, respectively. Erratic performances were also noted in memory functioning. Recall of geometric designs was adequate, but earlier assessment of memory for paragraph length material was grossly impaired. Recall of word pairs was weak as well. However, the patient was temporally oriented, and mental tracking performances were surprisingly adequate. In order to get some idea of her capacity for initiative, planning, and plan execution, the Tinkertoy Test was administered. The resulting construction was somewhat vaguely named, but the overall complexity score was within normal limits. She generated an MMPI profile that appears to be a reliable one, yet very abnormal one. The profile suggests very atypical and bizarre thinking and experience, as well as multiple somatic complaints, coupled with a high need for attention. Depression, anxiety, suspiciousness, and frustrations were all very notable components. In contrast, this patient's acceptance of stereotypically feminine attitudes and interests suggest considerable emotional constriction. IMPRESSION: Grossly erratic cognitive performances, with clear evidence of impairments in attention, concentration, and motivation. There is little doubt that the patient's emotional distress clearly colored her test performances. As a result, her emotional turmoil may well serve to mask more subtle bonafide cognitive deficits. The MMPI suggested major turmoil with somatic overconcern and unusual thinking and experience. Page 7 At the same time, such globally elevated profiles are often seen in persons with underlying epilep tiform disorder. It is impossible to determine whether the patient's current mental status difficulties were secondary to brain dysfunction or emotional disturbance. Certainly, the patient's report of satisfactory educational, occupational, and family life prior to her injury could raise the question of a mild closed head injury. It is equally reasonable to assume that the patient's emotional difficulties clearly contributed to her erratic test performances. (Ex. AA2 & AA3) Dr. Verduyn was questioned in his deposition of October 25, 1989, whether he agreed with the opinion of Dr. Bayless that it was impossible to determine whether claimant's medical problems were secondary to brain dysfunction or emotional disturbances. Dr. Verduyn determined both secondary brain dysfunction and emotional disturbances played a roll in claimant's condition. One cause fed into the other. Dr. Verduyn treated claimant for partial complex seizures with medication. Claimant's headaches improved. Dr. Verduyn opined claimant sustained a brain injury and that it was very likely that claimant had struck her head when she fell down the stairs. However, he did acknowledge that it was possible that claimant's emotional difficulties contributed to her poor test performance. Claimant was also examined and tested by M. Eyad Dughly, M.D., a neurologist. Dr. Dughly conducted an EEG. He interpreted the report as a normal one. In his report of September 20, 1989, Dr. Dughly wrote: (1) Yes, Mrs. Moses did specifically indicate that she fell down three stairs in the initial intake history in our office. (2) Mrs. Moses did not tell us, during her initial examination or any of her follow up visits, that she struck her head when she fell down the stairs. She reports that she was dazed but did not lose consciousness. (3) No, there were no objective signs that had indicated that Mrs. Moses had struck her head when she had fallen down the stairs. (4) Although there were no objective signs that Mrs. Moses had sustained any type of head injury from the fall down the stairs, she did report a significant increase in headaches since the accident. It is known in the neurological literature that head trauma may precipitate or significantly worsen vascular headaches. Although she did report mood changes, sleep impairment and cognitive changes, all of these are subjective com plaints. Page 8 (5) As previously stated, Mrs. Moses did not report during her initial history or in follow up visits that she had lost consciousness during the fall down the stairs, but, in the last visit, she reported that she did lose consciousness for an uncertain amount of time. (Ex. Y35) Claimant was seen by a neurological surgeon on March 5, 1990, pursuant to a request by defendants. Dr. Boarini opined in his report of March 20, 1990: Upon examination, this patient had an extremely flat affect. She had a normal gait, but refused to cooperate with part of the examination including walking on her heels and toes, stating that she could not do those things. This appeared to be quite inconsistent with her ability to otherwise move. She had a normal range of motion in the neck in all directions and normal flexion in the lower back. Romberg testing was normal and there was no evidence of any dysmetria or ataxia. Strength testing was normal in all groups. Funduscopic examination was normal. The cranial nerves showed normal external ocular motility in all directions with no nystagmus. Hearing was grossly intact. Facial movement and sensation were normal. Palate and tongue moved normally. The patient did complain of decreased sensation over the left face and leg, but said she could not tell whether there was decreased sensation in the left arm. Interestingly, the patient split sensa tion to a tuning fork over the midline including the skull and spine repeatedly. This is clearly not a physiological finding and indicates either malingering or a psychological component to the complaint. The patient's arms and forearms measured symmetrically. Deep tendon reflexes were symmetric and physiologic in biceps, triceps, knees and ankles. Plantar reflexes were downgoing bilaterally. In summary, this patient had a fall in 1987 which is difficult to document precisely but there is no evidence as best I can tell that she has suffered any significant head injury. She has an extremely long history of hard to treat headaches and a history of depression. She has an entirely normal neurological examination at the present time. I have reviewed CT scans from 1986 and an MRI scan of the head from 1989. These are normal. Thoracic and lumbosacral spine films done in 1987 are also normal. I can find no evidence that there was a significant head injury at any time or that any of this patient's symptoms are related to the 1987 incident. There are strong functional overtones to her examination as well as an extremely flat Page 9 affect, lack of cooperation, a history of clinically significant depression. In terms of her injury in 1987, there is no basis for assigning an impairment rating or any work restrictions related to that. (Ex. V6) Also, pursuant to a request from defendants, claimant was examined on February 2, 1990, by Michael Taylor, M.D., a psychiatrist. At the hearing, Dr. Taylor testified: Q. What's your assessment, first of all? A. I did not see any abnormality of mental status examination at the time that I talked with her. You need to understand that when I say mental status examination, I'm talking only about how she appeared on that day when I spoke with her. Q. Okay. And what was your diagnosis then, Doctor, based upon your visit with her and her husband and your review of all the information? A. Somatization disorder. Q. And can you tell us in laymen's terms what that is? A. It is a disorder which starts usually in late adolescence or less frequently in early 20s, which is characterized by a fluctuating course that sometimes symptoms are more severe, sometimes symptoms are less severe, and the symptoms are a wide variety of medical complaints or somatic complaints which cause the person to seek medical attention and for which any organic cause is not found. And the additional criteria is that these com plaints have to involve a number of different organ symptoms rather than being just focused on one particular organ system. Q. This somatization disorder, is that the same or similar to hypochondria? A. No. It is similar in that it's generally listed in the same section of the DSM-III, which is the way we categorize psychiatric disorders, but it is a much better researched and studied diagnostic entity than would be hypochondria, which is really more a lay term. Q. In your opinion, Doctor, based upon the various records that you reviewed, the depositions that you reviewed, and your meeting with Mr. and Mrs. Moses, in your opinion, how long had Julie Moses suffered from this disorder? Page 10 A. Well, certainly since the early 1970s, but it's impossible to assess exactly when it started. She had a hospitalization at age five for what at that time was diagnosed as a catatonic state. There's very little information in the medical record about that. The attending doctor was originally concerned about schizophrenia, and then -- which is a severe psychiatric illness, and then later when she was discharged attributed the so-called catatonic state to anxiety. So it could well be that we were seeing early manifestations of this that far back. Q. Are there certain factors or elements that you look at to determine if a person has this disorder? Is there a checklist or something of that nature? A. There is a checklist, and it's also important to have as much medical information as possible because these patients frequently don't like to accept the fact that this might be an emotional disorder rather than a physical disorder, so they're inclined to minimize some difficulties, and it's helpful to have as much outside information for that reason as possible. Q. Okay. And you testified there is a particular checklist for this disorder. How many factors are there that you look for? A. Well, the criteria -- the diagnostic criteria from the Diagnostic and Statistical Manual of the American Psychiatric Association, Edition Three Revised, has two main categories, but then the actual checklist is 35 symptoms involving seven different organ symptoms. And in order to meet the criteria, 13 of the 35 symptoms must be met. Q. And from your review of Julie Moses' medical records before April 1987, how many of those symptoms did she in fact meet? A. Eighteen. (Partial Transcript, p. 10, line 10 through p. 13, line 11) Dr. Taylor testified he saw no signs of a closed head injury. He opined that claimant's symptoms would improve over time. He also opined that claimant would not have been any different on the date of the hearing even if she had not fallen on April 23, 1987. The basis for Dr. Taylor's opinion is detailed in the transcript at pages 16-17 of the partial transcript. There Dr. Taylor testified: A. Well, the pattern of Julie Moses' somatic Page 11 concerns or somatic complaints was well established long before the incident in April of 1987. The symptoms that she was experiencing now aren't significantly different from the symptoms she's experienced in the past. I just can't conceive of any way that we could attach any significance to whatever it was that happened on April 23, 1987. The situation has not changed her way of dealing with situations. Dealing with stress has not changed from what it was before. Q. Doctor, are your opinions within a reasonable degree of medical certainty? A. Yes. (P.T., p. 16, l. 22 - p. 17, l. 10) Dr. Taylor related the aforementioned 18 factors in his testimony. He stated: A. Vomiting other than during pregnancy, abdominal pain other than when menstruating, nausea other than motion sickness, diarrhea, pain in extremities, back pain, pain during urination, other pain excluding headache, shortness of breath when not exerting oneself, dizziness, amnesia or memory problems, difficulty swallowing, loss of voice, blurred vision, trouble walking, urinary retention or difficulty urinating, burning sensation in sexual organs or rectum other than intercourse, painful menstruation. (P.T., p. 23, l. 19 - p. 24, l. 4) After her fall on April 23, 1987, claimant missed some work. It was impossible to determine from exhibit MM-18 which days were allocated to her workers' compensation claim. Claimant terminated her employment with defendant-employer on September 26, 1988. After her termination, claimant was not employed, nor had she sought employment. conclusions of law Claimant has the burden of proving by a preponderance of the evidence that she received an injury on April 23, 1987, which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). An employee is entitled to compensation for any and all 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. Page 12 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 v. Fischer, Inc., 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 v. John Deere Waterloo Tractor Works, 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 her injury arose out of and in the course of her employment. Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). In the course of employment means that the claimant must prove her injury occurred at a place where she reasonably may be performing her duties. McClure, 188 N.W.2d 283 (Iowa 1971). 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 April 23, 1987, is causally related to the disability on which she now bases her claim. Bodish, 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, 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). While a claimant is not entitled to compensation for Page 13 the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). When an aggravation occurs in the performance of an employer's work and a causal connection is established, claimant may recover to the extent of the impairment. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 (1960). The Iowa Supreme Court cites, apparently with approval, the C.J.S. statement that the aggravation should be material if it is to be compensable. Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's Compensation sec. 555(17)a. Our supreme court has stated many times that a claimant may recover for a work connected aggravation of a preexisting condition. Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). See also Auxier v. Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960). 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, 252 Iowa 613, 620, 106 N.W.2d 591 (1960), and cases cited. 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 , 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960). See also Barz, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist, 218 Iowa 724, 254 N.W. 35 (1934). If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term `disability' to mean `industrial disability' or loss of earning capacity and not a mere `functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of Page 14 earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disabil ity. This is so as impairment and disability are not syn onymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately 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. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial dis ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, l985). Claimant has sustained her burden of proving that she had a work related injury which arose out of and in the course of her employment. She fell down three steps at the Russel Lamson Building on April 23, 1987. Claimant was in the course of her employment when she tripped. She was leaving the building in order to post the daily mail for defendant-employer. Clearly, she sustained a work related injury. Page 15 The next issue to address is whether claimant's claimed injuries are causally related to her work injury of April 23, 1987. Claimant alleges she has sustained injuries to her neck, shoulders, lower back and that she has also suffered a closed head injury. There is no question claimant has had a plethora of illnesses. The medical evidence is overwhelming. Since age five, claimant has had both physical and emotional difficulties. Defendants cite the following exhibits as indicative of claimant's prior complaints: D1 dated 12-13-78, F4 dated 1-27-84; F10 dated 9-28-83; P3, P7 dated 12-5-86 and 12-30-86; CC1 dated 8-30-76; CC2 dated 9-8-76; CC4 dated 9-23-76 and 10-6-76; P2 dated 12-5-86, 12-9-86 and 12-22-86; P7 dated 12-29-86; P5 dated 12-29-86; K11 dated 12-6-82; M28 dated 5-20-84; B1 dated 1-29-74; B4 dated 2-9-87; C3 dated 11-30-82; C4 dated 6-1-83 & 2-2-84: C5 dated 10-3-84; 11-1-84 & 2-17-86; C7 dated 6-2-86; C3 dated 12-21-82 & 12-28-82; A2 dated 4-12-83 & 4-15-83. and, L4-L9 dated 5-16-60; L20-23 dated 11-4-71; CC11 dated 12-12-87; CC12 dated 12-28-87 & 1-29-88; P9 dated 7-17-87; P12-14 dated 8-4-87; CC17 dated 2-20-89; C4 dated 2-2-84; C5 dated 11-1-84; M3 dated 5-21-84; P12-14 dated 8-4-87; BB4 dated 11-19-87; BB5 dated 6-14 & 6-17-88. Claimant, on cross-examination, had agreed she had seen more than 30 medical practitioners prior to 4-23-87. Between January 1985 and November 1985, claimant had seen her chiropractor on 19 occasions. From January 16, 1987 to April 17, 1987, claimant had visited Dr. Peterson nine times. Claimant's post-injury complaints have encompassed chronic pain complaints of all of the aforementioned body parts plus complaints of left elbow pain. With respect to claimant's left elbow injury this injury is directly attributable to claimant's fall on April 23, 1987. The day after the injury, claimant was given a sling to wear on her left upper extremity. A causal connection exists between the left upper extremity injury and the work injury on April 23, 1987. With respect to the injuries involving the lower back, shoulders, neck, hip and left lower extremities, there was an aggravation of a pre-existing condition. According to Dr. Buckles' records for April 24, 1987, claimant sustained "multiple contusions & sprains." Dr. Buckles also noted "lower thoracic soreness." Dr. Johnston later confirmed Dr. Buckles' diagnosis of "multiple contusions." Dr. Buckles and Dr. Johnston prescribed physical therapy for claimant's "multiple contusions." Dr. Peterson also treated claimant for the same area both pre and post-injury. However, Dr. Peterson noted there was a different level of intensity after the work injury. He testified : Page 16 A. I would have to answer that that there was a different level of intensity. I do not have this marked as such. I am going on the spasticity that she had when we first saw her the day of the 24th, so I would have to answer that at that initial period of time, that there would have been an exaggeration of her level of intensity as far as her pain as compared to when she had come in prior to for just more or less general checkups. (Ex. VV, p. 57, ll. 11-19) Dr. Peterson, in his testimony, later testified: Q. How long, in your opinion, Doctor, would it have taken -- did it take Julie to get back physically, her physical problems, back and cervical, to the point where she was at least before the time of the accident? A. I would say that on a fall such as she took, again, as I had stated before, that there was definitely an aggravation at a different level of intensity, and the fact that the areas we worked on she didn't really produce any new subluxation complex, she just aggravated her old condition, so I would say probably within a period of maybe 12 to 14 treatments that she was probably structurally physically back to about the same level as far as the neuromuscular involvement goes. A. What about the pain she was complaining of when she came in, did that tend to linger longer than prior to the accident? Q. Initially I would say that she probably had a little more intensity, but probably going back, again, when she came in prior to the accident, there were days when her pain threshhold [sic] she expressed quite a bit of pain; there were other times when it wasn't so bad. Generally speaking we probably ran about that same pattern after the accident, although probably initially the first week or two she did express probably more pain at that time because of the aggravation of the tissues involved. (Ex. VV, p. 62, l. 17 - p. 63, l. 20) It is the determination of the undersigned that claimant aggravated her back, neck, shoulder, hip and leg condition. The next issue to address is whether there is a nexus between the work injury and claimant's alleged closed head injury and/or alleged psychological condition. Claimant, in her brief, alleges she sustained a closed head injury or, in the alternative, that if "it is not a head injury something Page 17 occurred to Julie Moses to change the course of her life." It is the decision of this deputy that claimant did not sustain a closed head injury on April 23, 1987. On the day after the work injury, claimant told her treating physician she had not hit her head in the fall. The medical records for April 24, 1987, do not reveal any bumps or bruises on claimant's head. Claimant did not relate to Dr. Buckles that she had lost consciousness. While claimant experienced headaches post-injury, it is quite evident she had experienced severe migraine headaches prior to her injury on April 23, 1987. The prior headaches were so painful claimant required pain pills from her physicians for the headaches. Pre-injury, she even required emergency room care for herself because of her headaches. It is acknowledged that Dr. Verduyn diagnosed claimant as having a closed head injury. However, at the time of the diagnosis, Dr. Verduyn had not had a complete medical history for claimant. He was only vaguely aware that claimant had experienced previous headaches. He was unaware that claimant had encountered prior problems with blurred vision. He was not informed that claimant had previous bouts of depression or anxiety problems. Dr. Verduyn was not aware of prior problems with dizziness, vertigo and nausea. He was not informed that on October 17, 1982, claimant had fallen at home, struck her head and was rendered unconscious. His opinion is not accorded much weight in light of the inaccurate medical history. Then there is the April 5, 1980 report of Dr. Bayless. He writes: IMPRESSION: Grossly erratic cognitive performances, with clear evidence of impairments in attention, concentration, and motivation. There is little doubt that the patient's emotional distress clearly colored her test performances. As a result, her emotional turmoil may well serve to mask more subtle bonafide cognitive deficits. The MMPI suggested major turmoil with somatic overconcern and unusual thinking and experience.... Dr. Bayless testified it was impossible to determine whether claimant's mental difficulties were secondary to brain dysfunction or emotional problems. Additionally, Dr. Bayless, like Dr. Verduyn, had an incomplete medical history for claimant. Dr. Bayless was told "there were no previous closed head injuries." He was not informed of the 1982 injury where claimant had lost consciousness, after striking her head. Moreover, Dr. Bayless was not provided with claimant's pre-injury medical records prior to Dr. Bayless' examination and testing. Claimant described herself as emotionally stable even though she had encountered prior emotional problems which necessitated counseling. It seems Dr. Bayless, like Dr. Verduyn, had an inaccurate picture of claimant. The testimony of Dr. Bayless is considered less than accurate since he had an inaccurate medical history. Page 18 A treating physician's testimony is not entitled to greater weight as a matter of law than that of a physician who later examines claimant in anticipation of litigation. Weight to be given testimony of physician is a fact issue to be decided by the industrial commissioner in light of the record the parties develop. In this regard, both parties may develop facts as to the physician's employment in connection with litigation, if so; the physician's examination at a later date and not when the injuries were fresh; his arrangement as to compensation; the extent and nature of the physician's examination; the physician's education, experience, training, and practice; and all other factors which bear upon the weight and value of the physician's testimony. Both parties may bring all this information to the attention of the fact finder as either supporting or weakening the physician's testimony and opinion. All factors go to the value of the physician's testimony as a matter of fact not as a matter of law. Rockwell Graphic Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985). Next, there is the opinion of Matthew Rizzo, M.D., a board certified neurologist. Dr. Rizzo examined claimant on May 10, 1990. Prior to rendering an opinion, Dr. Rizzo reviewed all of claimant's medical records. He opined claimant had a normal neurological examination but that the results of two of the tests were consistent with either hysteria or malingering. In his deposition, Dr. Rizzo testified he saw no evidence of a closed head injury. Likewise, there is the psychiatric examination. There is the testimony of Michael Taylor, M.D. He found no evidence of a closed head injury. Finally, there is the fact that claimant did not mention any possible closed head injury until after her brother had suffered the same type of injury in a tragic motorcycle accident. This fact coupled with the fact that the alleged closed head injury was not raised for many months after the April fall, raises a question in this deputy's mind whether claimant is entirely credible. Claimant did not sustain a closed head injury as a result of her April 23, 1987 work injury. As mentioned previously, claimant, in her brief contends if she did not sustain a closed head injury, "something occurred to Julie Moses to change the course of her life." It is not clear to the undersigned what claimant means by this statement. Claimant does not come out and state she is alleging a psychological claim as a result of her injury on April 23, 1987. Nor does claimant meet her burden of proof with respect to a claim for psychological or emotional injury. Claimant has not proven that she has sustained some type of post traumatic stress disorder. Dr. Bayless raised this as a possible cause for her poor cogni tive performance. However, Dr. Taylor, a psychiatrist, rather than a psychologist, refutes this possibility. Dr. Taylor opined claimant suffered from somatization disorder which is totally unrelated to any fall on April 23, 1987. Page 19 More weight is given to the opinion of Dr. Taylor, a medical doctor rather than to the opinion of Dr. Bayless, who is not medically trained. This deputy acknowledges claimant has some type of emotional or psychological difficulty. However, given claimant's psychological problems since age 5, this deputy can find no evidence that the problems were the direct result of claimant's fall on April 23, 1987. Rather, claimant's difficulties seem to relate to her family or marital situations. Therefore, it is the decision of the undersigned that claimant has not sustained a psychological or emotional injury because of her fall on April 23, 1987. Claimant did not incur any permanent injuries to the body as a whole or to the left upper extremity. There were no objective findings to substantial any permanent partial impairment. Dr. Peterson declined to rate claimant as having a permanent impairment. Initially, Dr. Johnston opined there was no permanency involved. Only later did Dr. Johnston provide a permanent impairment rating of five percent. Even then, his rating was based upon claimant's subjective complaints as well as upon her responses to touch. Claimant's only restrictions were to refrain from wearing high heeled shoes and to have a job where she was able to freely move from position to position. She had no other restrictions. Claimant did not sustain a permanent partial disability. In the pre-hearing report, the parties agreed that while the issue of temporary total disability or healing period benefits was in dispute, the parties stipulated the time off work was from September 26, 1988. Claimant is unable to substantiate that she is entitled to temporary total disability benefits from this date on since Dr. Johnston, the treating orthopedic surgeon, opined claimant had reached maximum medical improvement as of July 27, 1988. Therefore, claimant has no temporary total disability ben efits due to her. The final issue to address is whether claimant is entitled to medical benefits pursuant to section 85.27. This section provides in relevant portion: The employer, for all injuries compensable under this chapter or chapter 85A, shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing ambulance and hospital services and supplies therefor and shall allow reasonably necessary transportation expenses incurred for such services. The employer shall also furnish reasonable and necessary crutches, artificial members and appliances but shall not be required to furnish more than one set of permanent prosthetic devices. ... For purposes of this section, the employer is Page 20 obliged to furnish reasonable services and supplies to treat an injured employee, and has the right to choose the care. The treatment must be offered promptly and be reasonably suited to treat the injury without undue inconvenience to the employee. If the employee has reason to be dissatisfied with the care offered, the employee should communicate the basis of such dissatisfaction to the employer, in writing if requested, following which the employer and the employee may agree to alternate care reasonably suited to treat the injury. If the employer and employee cannot agree on such alternate care, the commissioner may, upon application and reasonable proofs of the necessity therefor, allow and order other care. In an emergency, the employee may choose the employee's care at the employer's expense, provided the employer or the employer's agent cannot be reached immediately. This division has held that it is inconsistent to deny liability and the obligation to furnish care on one hand, and at the same time, to claim a right to choose the care. Therefore, a denial of liability precludes an employer from selecting the medical care. Lewis E. Jones v. R. M. Boggs Company, Inc., File No. 655193 (Arbitration Decision - July 22, 1986); Kindhart v. Fort Des Moines Hotel, (Appeal Decision, March 27, 1985); Barnhart v. MAQ Incorporated, I Iowa Industrial Commissioner Report 16 (Appeal Decision 1981). Only certain medical expenses which were incurred by claimant are causally related to claimant's work injury of April 23, 1987. They are as follows: Dr. Robert D. Buckles $ 654.00 915 W. 4th St., W'loo Pd. 602.00 7/17/87 through 2/29/88 Due 52.00 CNS Management and Rehab, P.C. $ 1,061.00 Dr. W. H. Verduyn Pd. 268.80 2051 Kimball Ave., W'loo Due 792.20 3/7/89 through 6/8/89 Orthopaedic Specialists $ 398.00 Dr. Roswell M. Johnston Pd. 329.00 Ste. 330 Schoitz Med. Arts Ctr. Due 69.00 2055 Kimball Ave., W'loo 2/12/88 through 5/30/90 Waterloo Physical Therapy Clinic, Inc. $ Page 21 2,034.00 Dr. Buckles Pd. 2,034.00 277 E. San Marnan Dr., W'loo Due 0.00 7/31/87 through 3/3/89 Covenant Medical Center unknown for 4/24/87 emergency room only Evansdale Chiropractic $ 2,395.44 office Pd. 1,491.48 4/24/87 through 9/23/89 Due 903.96 Clinical Radiologists, P.C. unknown 4/24/87, 5/5/87 Total unknown order THEREFORE, IT IS ORDERED: Defendants are responsible for the payment of medical bills as aforementioned in an unknown amount. Defendants are responsible for the following costs of claimant pursuant to rule 343 IAC 4.33: Witness Fees 1. Northeastern Psych Clinic; Ken Wernimont 78.00 2. Dr. John Bayless 150.00 3. Dr. Michael Taylor 150.00 Deposition Transcripts 1. Julie Moses 8/1/89 37.95 2. Julie Moses 8/18/89 36.80 3. Julie Moses 9/19/89 33.35 4. Dr. Roswell M. Johnston 2/19/90 43.70 5. Dr. Peterson 3/8/90 83.95 Defendants shall file a claim activity report as required by this division pursuant to rule 343 IAC 3.l. Page 22 Signed and filed this ____ day of July, 1991. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Page 23 Copies To: Mr. Jay P. Roberts Attorney at Law 620 Lafayette St P O Box 178 Waterloo IA 50704 Mr. James E. Walsh, Jr. Mr. Bruce L. Gettman, Jr. Attorneys at Law River Plaza Bldg 10 W 4th St P O Box 596 Waterloo IA 50704 5-1108.50 July 8, 1991 MICHELLE A. McGOVERN before the iowa industrial commissioner ____________________________________________________________ : JULIE MOSES, : : Claimant, : : vs. : : File No. 900554 IOWA NORTHLAND REGIONAL : COUNCIL OF GOVERNMENTS, : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : AETNA CASUALTY & SURETY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1108.50 Claimant's alleged closed head injury was not causally related to claimant's work injury on April 23, 1987. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DENNIE FIELDS, Claimant, vs. File Nos. 900561 900562 GENUINE PARTS COMPANY, A P P E A L Employer, D E C I S I O N and TRAVELERS 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 November 27, 1991 is affirmed and is adopted as the final agency action in this case. Defendants shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of November, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. R. Ronald Pogge Attorney at Law 2700 Grand Avenue STE 111 Des Moines, Iowa 50312 Mr. James E. Thorn Attorney at Law P O Box 398 Council Bluffs, Iowa 51502-0398 9998 Filed November 25, 1992 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DENNIE FIELDS, Claimant, vs. File Nos. 900561 900562 GENUINE PARTS COMPANY, A P P E A L Employer, D E C I S I O N and TRAVELERS INSURANCE COMPANY, Insurance Carrier, Defendants. ____________________________________________________________ 9998 Summary affirmance of deputy's decision filed November 25, 1992. Page 1 before the iowa industrial commissioner ____________________________________________________________ : DENNIE FIELDS, : : Claimant, : : vs. : : File Nos. 900561 & 900562 GENUINE PARTS COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : TRAVELERS INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Dennie Fields, claimant; against Genuine Parts Company, employer; and Travelers Insurance Company, insurance carrier; defendants, to recover benefits on account of one or more alleged injuries. This matter came on for hearing before the undersigned deputy industrial commissioner July 11, 1990, in Council Bluffs, Iowa, and was considered fully submitted at the close of the record. The record in this case consists of the testimony of Dennie Fields, claimant; Sandra Fields, his wife; Gary Rosenbohm; Angeline Rome; and joint exhibits 1 through 38, inclusive. Claimant submitted an excellent trial brief. The deputy ordered a transcript of the hearing. Claimant submitted an excellent posthearing supplemental brief. Defendants did not submit a trial brief or a posthearing brief. issues Pursuant to the prehearing report and order submitted and approved on July 11, 1990, the following issues are presented for resolution: 1. Whether the claimant sustained an injury arising out of and in the course of employment between March 20, 1988 and April 1, 1988 (file number 900561) and/or a cumulative injury on May 21, 1988 (file number 900562); 2. Whether the injury or injuries are the cause of the disability on which claimant now bases his claim; 3. Claimant's entitlement to weekly benefits, if any; 4. Claimant's entitlement to medical expenses under Iowa Code section 85.27; and 5. Whether claimant provided notice as mandated in Page 2 Iowa Code section 85.23. It should be noted that claimant initially pled an injury date of March 1, 1988, in file number 900561. At the time of the hearing, claimant amended the injury date without objection from defendants and with consent of the undersigned to sometime between March 20, 1988 and April 1, 1988 (transcript page 38). The issue of Iowa Code section 85.38(2) credits was withdrawn by the parties because they agreed it could be worked out between themselves (tr. pp. 6-8). findings of fact The undersigned deputy industrial commissioner, having heard the testimony and considered all of the evidence finds that: Claimant began employment with defendant employer in April 1963. His only previous employment was that of an upholsterer. With defendants, claimant worked as a stock clerk, order puller, back order clerk, field representative, assistant to the stock room manager, and as a branch store manager at the time of the alleged injuries. Claimant last worked on or about May 20, 1988. In 1975, claimant was injured at work when a 400-lb barrel fell on him. Claimant underwent lumbar surgery performed by Maurice Margules, M.D. Claimant returned to work without significant problems and remained essentially problem-free until 1988. (Claimant did experience some problems in 1977 which required a short-term traction therapy. Claimant experienced intermittent problems with stiffness thereafter, but sought no further medical care.) Sometime in late March 1988 (claimant could only relate the injury date to the opening of baseball season in Kansas City) claimant described that he "pulled a battery, set it on the shelf -- or on the counter and realized it was the wrong one, so I started to the back of the store to grab another one and I was going to the back, the phone rang and I turned and that's when something popped." (tr. p. 35). Claimant experienced pain in his lower back and down through his leg which progressively became worse. Claimant continued to work until May 21, 1988, when the pain "just got to the point where it was hurting bad enough that I knew something was wrong so I went to see -- get it fixed." (tr. p. 40). Claimant went to see a chiropractor on the advise of Bill Perkins, manager of defendants' main counter in Omaha. Claimant continued to experience pain and eventually went back to see Dr. Margules on May 26, 1988. Claimant was hospitalized and Dr. Margules performed a neurolysis of the L5 nerve root (removal of scar tissue) on the right on June 3, 1988, and was released from the hospital June 9, 1988. Dr. Margules noted considerable scarring about the nerve and that the dissection was somewhat difficult. Claimant continued to have problems and believes he has become worse Page 3 since the surgery. Mrs. Fields believed claimant "went downhill" after surgery. Claimant was readmitted to the hospital July 5, 1988 through July 16, 1988, for recurrent back pain. No treatment has eased claimant's symptoms and pain. Claimant has been seeing and/or treated by Daniel McKinney, M.D., neurosurgeon; Robert Hacker, M.D., neurosurgeon; John C. Van Gilder, M.D., professor of neurosurgery at the University of Iowa Hospitals and Clinics; and is currently under the medical care of John W. Marshall, M.D., internal medicine. Dr. McKinney offered a diagnosis of: I thought Mr. Fields had suffered from a radiculopathy, which is an irritation of a nerve root, which was probably caused when he made his turn and the nerve root was encased in scar tissue and unable to have normal mobility and, thus, it was irritated. I also thought he was suffering from a degenerative lumbar disc of longstanding. (joint exhibit 38, page 8) Dr. McKinney acknowledged that what occurred at work in March of 1988 did not cause the scarring which would have resulted from the 1975 surgery. However, Dr. McKinney stated that while scarring is a normal part of healing, "Some people do develop more than others and I think that usually it doesn't bother unless there is some other injury involved." (ex. 38, p. 15). Dr. McKinney went on to explain that although he did not totally disagree with Dr. Margules' diagnosis that claimant's condition was caused by the scar tissue: I think that certainly the perineural scar tissue set up the -- set up the -- set the picture for the patient's complaints. I think that had he not had that, he probably wouldn't have had any difficulty when he turned to answer the phone. So I -- but I think that, you know, the onset of his symptoms, I think there must have been some torsion or stretching of the nerve root to cause this type of intractable pain which he complained about. (joint exhibit 38, page 22) Dr. Hacker, who evaluated claimant on November 14, 1988, found: He described a back injury occurring in 1975 that was treated with lumbar disc surgery. Recurrent symptoms occured [sic] while lifting and twisting in March of 1988. Pain in the lowback [sic] and diffusely about the right leg was his problem and unfortunately this problem did not improve with conservative therapies and chiropractic treatment. A repeat operation was Page 4 performed in June of 1988, and he was told that scar tissue was found without disc being evident. His right leg pain apparently was worse and despite conservative therapies with medication and physical therapy his symptoms have not improved. ... I expect that Mr. Fields has a chronic lumbar pain problem due to lumbar disc surgery, scarification and I presume lumbar arachnoiditis. In my experience these problems can be quite disabling with pain and immobility the result. (joint exhibit 17) Dr. Van Gilder, who saw claimant September 20, 1988, diagnosed arachnoiditis at L5 and recommended conservative treatment stating that "perhaps with prolonged physical therapy he may demonstrate some improvement in his symptomatology." (ex. 10, p. 2). Claimant is in constant pain, has difficulty sitting and standing, can only walk short distances, has used a cane since July of 1988 and on occasion uses a wheelchair. Claimant eats his meals while lying in a recliner and cannot do his previous job with defendant employer. Defendant employer asserts claimant failed to provide notice of the alleged injury as required by statute. Sandra Fields recalled contacting Angie Rome when claimant first began seeing a chiropractor to inquire whether the bills would be covered by insurance. Mrs. Fields specifically recalled telling the personnel director that claimant was injured when he turned to answer the phone at work. Ms. Rome has no specific recollection of any such conversation and asserted the first time she was aware that claimant was claiming an injury arising out of and in the course of employment was when she received a letter from defendants' counsel dated August 30, 1988. Gary Rosenbohm, who took over as store manager and had worked with claimant prior to claimant's leaving employment May 21, 1988, recalled that claimant told him he injured his back when he twisted to answer the phone and that Angie Rome, when claimant was in the hospital the first time, called and asked him how claimant got hurt. Rosenbohm testified that he told her claimant injured his back while twisting to answer the telephone immediately after lifting a battery (tr. pp. 19 & 20). Ms. Rome denied any such call occurred. (tr. p. 72). First reports of injury were filed with the industrial commissioner on March 9, 1989. The report filed in file number 900561 indicates an injury date on or about March 1, 1988, a commencement of disability on May 13, 1988, and that the employer first knew of the condition May 21, 1988. The injury in this file on the first report of injury is described as "twisted around to answer telephone while walking down aisle." File number 900562 reflects an injury Page 5 date of May 21, 1988, with the same date used to report when the employer first knew of the condition. Neither report is signed nor dated. CONCLUSIONS of law and analysis Before any other issue is discussed it is first necessary to determine whether claimant provided notice to defendant employer as provided by Iowa Code section 85.23. Section 85.23 requires an employee to give notice of the occurrence of an injury to the employer within 90 days from the date of the occurrence, unless the employer has actual knowledge of the occurrence of the injury. The purpose of the 90-day notice or actual knowledge requirement is to give the employer an opportunity to timely investigate the facts surrounding the injury. The actual knowledge alternative to notice is met when the employer, as a reasonably conscientious manager, is alerted to the possibility of a potential compensation claim through information which makes the employer aware that the injury occurred and that it may be work related. Dillinger v. City of Sioux City, 368 N.W.2d 176 (Iowa 1985); Robinson v. Dep't of Transp., 296 N.W.2d 809 (Iowa 1980). The time period for giving notice does not begin to run until the claimant as a reasonable person, should recognize the nature, seriousness and probable compensable character of the injury. The reasonableness of claimant's conduct is to be judged in light of claimant's education and intelligence. Claimant must know enough about the condition or incident to realize that it is both serious and work connected. Positive medical information is unnecessary if information from any source gives notice of the condition's probable compensability. Robinson, 296 N.W.2d at 812. Failure to give notice is an affirmative defense which the employer must prove by a preponderance of the evidence. DeLong v. Highway Comm'n, 229 Iowa 700, 295 N.W. 91 (1940). As noted above, the burden of proof of failure to give notice is upon the employer. The undersigned concludes that that burden has not been met in this case. The undersigned finds convincing the testimony of Gary Rosenbohm (who told Angie Rome in May that claimant injured his back answering the telephone at work) and Sandra Fields (who explained to Angie Rome how claimant injured his back when inquiring about the payment of chiropractic bills just as claimant began seeing the chiropractor May 21, 1988.) Ms. Rome appeared to the undersigned to be a concerned personnel manager who kept abreast of all that was going on in the company with employees as well as with their families. It seems inconsistent that she would have been aware of medical treatment without inquiring as to the reasons for that treatment. The undersigned does not mean to cast doubt on Ms. Rome's credibility because of her lack of recollection. However, it is concluded that such conversations did take place. As these phone calls occurred well within 90 days from the time claimant answered the Page 6 telephone and initially injured his back, notice cannot be an issue. Finally, although not conclusive on the issue of notice, both first reports of injury filed in these cases, show that the employer was aware on May 21, 1988, that claimant was alleging an injury arising out of and in the course of employment. Again, the defense of notice under Iowa Code section 85.23 must, therefore, fail. Attention is thus turned to whether, and when, claimant sustained an injury arising out of and in the course of his employment. 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). Claimant asserts a cumulative trauma occurring May 21, 1988. When the disability develops gradually over a period of time, the "cumulative injury rule" applies. For time limitation purposes, the compensable injury is held to occur when because of pain or physical disability, the claimant can no longer work. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). The evidence does not establish claimant's condition which led to his disability developed gradually over a period of time. Rather, the act which precipitated claimant's condition occurred when he turned to answer the phone. Claimant did not gradually experience pain until it became disabling. Claimant was fine until a traumatic event, the turning to answer the phone, occurred. The mere fact that claimant continued to work after the traumatic event does not give rise to a cumulative injury. Claimant did not become disabled from the traumatic event until May 21, 1988. Simply because claimant left work on May 21, 1988, does not allow the undersigned to conclude that any new injury occurred on that date. Claimant's condition came about as a result of turning to answer the phone. Therefore, it is concluded (1) that claimant's injury occurred as alleged in file number 900561 and (2) that no injury arising out of and in the course of employment as alleged in file number 900562 occurred on May 21, 1988. "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 Page 7 N.W.2d 283; Musselman, 261 Iowa 352, 154 N.W.2d 128. The record establishes that the claimant's actions of answering the phone meet the tests cited above. The words "out of" refer to the cause or source of the injury. Crowe v. DeSoto Consol. Sch. Dist., 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 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). There can be no dispute that claimant suffered from a preexisting condition. Claimant had had prior back problems which had resulted in surgery and had continuing problems in 1977. No allegation is made, nor could it be made, that the act of turning to answer the phone caused the scar tissue to form. Defendants' counsel pointed out in Dr. McKinney's testimony that, notwithstanding this incident, scar tissue had formed as a result of the previous surgery. However, the fact that claimant suffered from a preexisting condition does not prevent the finding of a compensable injury. 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). As previously stated, claimant had prior back surgery. However, from 1975 until 1988, with the exception of a brief period in 1977, claimant worked regularly, had little pain and was able to perform satisfactorily all of the Page 8 responsibilities of a store branch manager. While the scar tissue had built up around the surgery site since the time of the surgery, this condition was not disabling and did not affect claimant's abilities to maintain his employment at an acceptable level until the occurrence of the traumatic event. While this condition made claimant more susceptible to injury, 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. Dr. McKinney clearly relates claimant's actions in answering the phone to his current disability when he testified: Q. [I]s it still your opinion within a reasonable degree of medical certainty that the symptoms for which you examined Mr. Fields are compatible with the type of incident he described when he turned and felt the immediate pain in his back and down his legs? A. Yes. Q. Okay. And, Doctor, from the operative report and the other records you've studied and your examination of Mr. Fields, do you have any reason to believe that if he had not turned at that moment that he would have felt pain anyway? A. I don't think that he would have. There is a possibility he might have. (joint exhibit 38, page 26) Finally, although it has already been concluded claimant did not sustain a new injury on May 21, 1988, the fact that claimant continued to work following the original incident is further evidence of a continual aggravation of the preexisting condition. Clearly, claimant's actions in continuing to work during this period of time could not have made his back any better. It is concluded that claimant has established that the injury is the cause of the disability on which he now bases his claim. While claimant suffered from the preexisting condition, the same did not become symptomatic until the time of the traumatic event. It was the traumatic event which gave rise to the second surgical procedure from which claimant has not and is not expected to recover to his presurgical level of activity. Causal connection has been established through both expert and lay testimony. Since the parties have stipulated and agreed that, if the injury is found compensable, they can agree on medical expenses pursuant to Iowa Code section 85.27 both past and future and credits for each, that issue will not be specifically addressed herein (tr. pp. 6-8). Page 9 The final issue for resolution is the extent of claimant's disability. Since claimant has an injury to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It is therefore plain that the legislature intended the term `disability' to mean `industrial disability' or loss of earning capacity and not a mere `functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience, motivation, loss of earnings, severity and situs of the injury, work restrictions, inability to engage in employment for which the employee is fitted and the employer's offer of work or failure to so offer. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). The evidence in this case clearly establishes that claimant is totally incapacitated by pain. Dr. McKinney, when he saw claimant on July 11, 1988, found claimant unable to work and provided a guarded prognosis on the basis that conditions such as the claimant finds himself are difficult to treat and often do not respond to usual types of treatment. (See joint exhibit 38, page 11, lines 16 through 18). No physician has provided any treatment nor recommended any treatment which might alter for the better claimant's condition. On July 7, 1989, John Marshall, M.D., who is claimant's treating doctor, reported: My impression of Mr. Fields situation is of chronic low back pain which seems to be essentially incapacitating, partially as it relates to his physique and general size. It is unlikely that he will have any significant improvement over the years. I sincerely doubt that he will ever be functional to the point that he was prior to his back pains that he was admitted for on the 20th of May in 1988. I know Mr. Fields has been trying to obtain disability, but apparently has been turned down. I quite honestly do not see how Mr. Fields will have any hopes of significant rehabilitation or promise for meanful employment given his current condition. I also doubt there will be significant improvement in the immediate future. As far as Mr. Fields' restrictions, I feel that he will be limited to sitting for short periods of time or lying and that prolonged standing, sitting, and walking will Page 10 be quite uncomfortable for him. I'm unsure as to whether any of these positions will risk further injury, however, I feel he will have a significant amount of discomfort which would prevent him from being gainfully employed. (joint exhibit 19, page 2) Claimant had no significant problems prior to this injury. Although claimant had sustained a prior injury to his back, it did not prevent him from gainful employment and specifically did not prevent him from returning to his regular employment. Apportionment under such circumstances is inappropriate and unavailable. Bearce v. FMC Corporation, 465 N.W.2d 531 (Ia. App. 1991). Claimant is incapable, as a result of this injury, from seeking and maintaining any type of gainful employment. Claimant is, therefore, entitled to permanent total disability benefits commencing May 21, 1988. order THEREFORE, IT IS ORDERED: Defendants shall pay unto claimant permanent total disability benefits at the rate of three hundred thirty-seven and 12/100 dollars ($337.12) per week as stipulated to by the parties commencing May 21, 1988, and continuing for the period of disability. All benefits that have accrued shall be paid to claimant in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. Defendants shall pay all medical expenses pursuant to Iowa Code section 85.27 as stipulated and agreed to by the parties on the record at the hearing (tr. pp. 6-8). Costs of this action are assessed against defendants pursuant to Iowa Code section 86.40. Signed and filed this ____ day of November, 1991. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. R. Ronald Pogge Attorney at Law 2700 Grand Ave, STE 111 Des Moines, IA 50312 Mr. James Thorn Attorney at Law 310 Kanesville Blvd. Page 11 PO Box 398 Council Bluffs, IA 51502 Page 1 51106 51108.50 51401 51402.20 51402.30 52206 52209 1402.40 51804 52401 52803 Filed November 27, 1991 Walter R. McManus, Jr. before the iowa industrial commissioner ____________________________________________________________ : DENNIE FIELDS, : : Claimant, : : vs. : : File Nos. 900561 & 900562 GENUINE PARTS COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : TRAVELERS INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 51106 51108.50 51401 51402.20 51402.30 52206 52209 It was found that claimant did sustain an injury arising out of and in the course of employment when he turned to answer the telephone at work and scar tissue from a lumbar laminectomy in 1975 that had entrapped the nerve root caused an aggravation of a preexisting condition. It was determined there was no cumulative injury on a second date alleged by claimant approximately one month after the traumatic injury described in the foregoing paragraph. 1402.40 51804 Claimant awarded permanent total disability benefits. Several doctors said he was unemployable. There was no controverting medical or other evidence to the contrary. 52401 52803 Claimant gave proper notice through his wife. Also, employer had actual notice through a coemployee of claimant. Also, the first reports of injury showed actual notice within 90 days of the injury. Page 1 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : TIMOTHY J. PARSON, : : Claimant, : : vs. : : File No. 900577 MARTIN ENGINEERING CO., : : 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. : ___________________________________________________________ INTRODUCTION This is a proceeding in arbitration brought by Timothy J. Parson, claimant, against Martin Engineering Company, employer and Liberty Mutual Insurance Company, insurance carrier, defendants, for benefits as the result of an alleged injury which occurred on March 28, 1988. A hearing was held in Davenport, Iowa, on July 31, 1990, and the case was fully submitted at the close of the hearing. Claimant was represented by Mike Kane. Defendants were represented by Greg A. Egbers. The record consists of the testimony of Timothy J. Parson, claimant; Lou Gutierrez, assistant manager; Larry Goldbeck, manager engineering systems and services; and the rebuttal testimony of Chris Babcock and claimant. The written exhibits admitted into evidence are defendants' exhibits A through I. Defendants objected to claimant's exhibit 1, and it was excluded, because it was not served within 15 days prior to the hearing as required by paragraph seven of the hearing assignment order. Defendants also objected to the testimony of Chris Babcock for the reason that a witness list had not been served on defendants within 15 days prior to the hearing. The objection was sustained and Babcock was not allowed to testify during claimant's case in chief; he was allowed to testify, without objection, as a rebuttal witness within a limited rebuttal scope. Defendants ordered a transcript of the hearing and offered to supply a copy to the industrial commissioner's file. Defendants counsel attached a description of disputes to the prehearing report. Defendants' attorney submitted posthearing briefs. Claimant's attorney did not file a brief. STIPULATIONS Page 2 The parties stipulated to the following matters: That an employer-employee relationship existed between claimant and employer at the time of the alleged injury. That 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. That the rate of compensation is $291.95 per week. That the fees charged for medical services and supplies are fair and reasonable. That the causal connection of the expenses to treatment for a medical condition upon which claimant is now basing his claim is admitted, but that the causal connection of this condition to a work injury remains an issue to be decided by these proceedings. That defendants make no claim for credit for employee nonoccupational group health plan benefits or workers' compensation benefits paid to claimant prior to hearing. That there are no bifurcated claims. That defendants were no longer asserting a jurisdiction defense as was indicated in the prehearing report. Furthermore, jurisdiction was not designated as a hearing issue on the hearing assignment order. ISSUES The parties submitted the following issues for determination at the time of the hearing: Whether claimant sustained an injury on March 28, 1988, which arose out of and in the course of employment with employer. Whether the injury was the cause of either temporary or permanent disability. Whether claimant is entitled to either temporary or permanent disability benefits. Whether claimant is entitled to medical benefits under Iowa Code section 85.27. Whether claimant gave proper notice, as required by Iowa Code section 85.23, was asserted as an affirmative defense by defendants. FINDINGS OF FACT INJURY Page 3 Claimant did sustain an injury on March 28, 1988, which arose out of and in the course of employment with employer. Claimant testified that he was hired by employer on March 28, 1988. Coincidentally, this was claimant's first, last and only day of work for employer. Claimant was to perform welding work on a coal hopper. The area was covered with fly ash. The work area was wetted down with water to prevent a fire from the welding. This made the work area slippery. While climbing on the equipment, carrying a torch head and hose, claimant slipped, got his foot tangled up in the hose, fell backward about five feet and struck a railing with his back. He immediately experienced severe pain in his lower back. The pain then subsided to a serious ache. Claimant testified that he finished working out that day, but during the night developed severe lower back pain and got up and went home from the work site at approximately 2 a.m. the following day, March 29, 1988. At home, claimant saw his personal physician, Thomas F. Garland, M.D., on March 29, 1988. Dr. Garland's office notes verify that claimant saw him on that date after sustaining a fall at work. Dr. Garland reported, "Evidently slipped and fell over backwars [sic] on angle iron, and not only hit his back but strained it, and kind of doubled over and hyperextended his back." (exhibit C, p. 4). Babcock testified that he did not see claimant fall, but did find where his foot had slipped and found him lying down after the fall. Dr. Garland referred claimant to Anthony J. Piasecki, M.D., an orthopedic surgeon. Claimant also saw Paul F. Koob, D.O., for an independent medical examination. Both of these doctors proceeded on the history of the fall that was related by claimant and expressed no reason to dispute the history given by claimant (ex. C, pp. 61-63; ex. H, pp. 1 & 2). Gutierrez, claimant's supervisor, testified that he was at the work site and that claimant did not report any kind of a work injury to him on March 28, 1988. Babcock testified that there was conversation the following morning, March 29, 1988, in the hotel when Gutierrez was present and it was discussed that claimant had hurt himself on the preceding day and gone home. Claimant's testimony, Babcock's testimony, Dr. Garland's testimony, and Dr. Koob's testimony concerning the occurrence of an injury was not rebuted, controverted, contradicted or refuted. Therefore, it is determined that claimant did sustain an injury on March 28, 1988, which arose out of and in the course of employment with employer when he fell and injured his lower back. TEMPORARY DISABILITY-CAUSAL CONNECTION-ENTITLEMENT Dr. Garland reported on March 31, 1988, on a workers' compensation report that claimant would require treatment for a few weeks, but as far as permanent disability, none was Page 4 anticipated (ex. A, p. 1). The doctor clearly reported to the insurance carrier on July 1, 1988, that claimant had sustained a back injury on March 28, 1988, which resulted in radicular symptoms to the right leg also. Dr. Garland stated, "He was last seen on June 29, 1988. His pain was almost resolved completely. I anticipate that we will release him for work on July 12, 1988." (ex. B). The office note of Dr. Garland on March 28, 1988, clearly shows that claimant was taken off work at that time (ex. C, p. 5). On June 29 the doctor's notes indicate, "Will continue with Physical Therapy. See him back on July 11th, and at that time will target him for release for work. He agrees with this." (ex. C, p. 10). The physical therapist noted on July 5, 1988, that claimant was feeling substantially better, had no new complaints and it was anticipated that he would be discharged from the physician's care the following week (ex. D, p. 6). Therefore, it is determined that claimant was temporarily disabled from March 29, 1988 to July 12, 1988 and is entitled to permanent disability benefits for this period of time, a temporary period of 15.143 weeks. Claimant had a flare-up of his back, and right hip and leg pain in November of 1988. He received additional treatment from Dr. Garland and additional physical therapy. Claimant did not prove that this period of disability was caused by the injury of March 28, 1988. Even though the doctor said that claimant was completely disabled in November and December of 1988, the doctor did not say that the disability was caused by the injury of March 28, 1988. On the contrary, Dr. Garland said that claimant suffered from a severe chronic back disorder which was exacerbated by minimal work and that this has been his history in the past. Moreover, he added that his history certainly suggests that his back problem has been long-standing and is exacerbated by minimal physical activity (ex. C, pp. 58 & 59). Claimant testified and the medical reports demonstrate by an abundance of evidence that claimant suffered a compression fracture of T-11 and L-2 in October 1984 when he was pinned under a tractor on his private residence. He saw Dr. Garland and the veteran's administration several times for low back and right hip and leg pain after this tractor accident. He had even applied for social security disability benefits, but was denied benefits. Therefore, it is determined that the recurrence of back and right leg pain which Dr. Garland records on November 23, 1988 was not caused by the injury of March 28, 1988. PERMANENT DISABILITY-CASUAL CONNECTION-ENTITLEMENT It is determined that the injury of March 28, 1988, was not the cause of permanent disability and that claimant is not entitled to permanent disability benefits. Claimant testified that he was able to work after July 11, 1988, but employer told claimant that no work was available. Page 5 Claimant understood this to be correct because he was only hired for a period of a short period of time on a very temporary job that was to last less then a month. Claimant further acknowledged that the area of his back problem is the same area that gave him trouble after the tractor accident in October 1984; however, after that accident he was still able to lift, but now he is not able to lift. Claimant agreed with the list of jobs shown on his employment history (ex. I). The history shows that he has had several jobs for short periods of time and that there are significant gaps where he was not employed at all. Claimant admitted that he was not currently seeing a doctor; he was not taking any medications; and he was not receiving physical therapy. He agreed that he last received physical therapy in January 1989. Claimant testified that his back continued to hurt him at a subsequent employment to this injury when he had to reach to put product in baskets about shoulder height. Claimant also acknowledged that on this subsequent employment application he indicated that he did not have any physical limitations. He further granted that the doctor prohibited him from heavy lifting after the tractor accident in October 1984. S.W. Williams, D.O., told the Veteran's Administration on May 9, 1985, that claimant sustained a compression fracture of T- 11 and L-1 or L-2 as earlier said and that he was unable to lift more than five pounds at the time claimant applied for a veteran's administration pension disability. Claimant testified that he did not receive a pension benefit. Claimant applied for social security disability benefits after the tractor accident and again after this injury, but was declined benefits on both applications. Claimant acknowledged that he applied for and received a handicapped parking status prior to the current injury (ex. C, pp. 2 and 26). Defense counsel pointed out that claimant was diagnosed as having arthritis when he continued to have back and right hip complaints after the tractor accident (ex. C, p. 1). Claimant, who was six feet tall and weighed approximately 297 pounds, admitted that he had been advised to lose weight by Dr. Piasecki, but that he had been unable to do so (ex. C, pp. 8 & 61-63). Defendants' counsel pointed out that Dr. Garland noted on July 11, 1988, "He has minimal discomfort left, and, in fact, he describes the pain he has left as that which he started work with." (ex. C, p. 10). Claimant admitted that when Dr. Garland had arranged another CT scan for him in March 1989, that he canceled the scan stating that his leg pain was gone (ex. F, p. 2). In none of his reports did Dr. Garland state that claimant's injury was the cause of permanent disability (ex. A, p. 1; ex. B, p. 1; ex. C, pp. 36, 56 and 58). On the contrary, Dr. Garland indicates that claimant's back problems have been long-standing and chronic (ex. C, p. 58) which are due to repeated injuries to his back (ex. C, p. 56). Dr. Piasecki said that plain x-rays showed some degeneration Page 6 at different levels in claimant's back and that the CT scan from L-3 to the sacrum was negative (ex. C, p. 62). Dr. Piasecki diagnosed a contusion of the low back with radicular symptoms, possibly a disc syndrome. He did not recommend surgery, but rather conservative therapy. He found a lack of significant neurological findings. He did not give a permanent impairment rating. He did not issue any restrictions or limitations (ex. C, p. 63). Dr. Koob, claimant's independent medical examiner, diagnosed, "Back injury exact etiology cannot be determined with a single exam. I think he does have definite restriction in his range of motion. How much is due to injury and how much is due to his weight and poor physical condition a little hard to say." (ex. H, p. 2). Dr. Koob did not make a specific finding of causal connection to any disability caused by the injury of March 28, 1988. He did not award a permanent impairment rating. He did not recommend any restrictions or limitations. It is determined that the injury of March 28, 1988 was not the cause of permanent disability and that claimant is not entitled to permanent disability benefits. Page 7 MEDICAL Claimant requested medical bills totaling $336.50 for his treatment with Dr. Garland from March 29, 1988 through May 9, 1988 (ex. G, pp. 1-3). The parties stipulated that these medical expenses are fair and reasonable. It is now determined that they were caused by this injury. NOTICE-IOWA CODE SECTION 85.23 Defendants did not prove the affirmative defense of lack of notice. Claimant testified that he reported the injury to Gutierrez when it first occurred and that he reported it to him again later in the day. Gutierrez claims that claimant did not report an injury at any time on March 28, 1988. Babcock stated that on the following morning when claimant was missing that it was mentioned in the presence of Gutierrez that claimant hurt his back and probably went home. Claimant further testified that he called employer a week later and talked to a lady when he reported that the doctor told him that he was to stay off work. Claimant further stated that he asked for worker's compensation at that time and was told that he was not entitled to workers' compensation. This last testimonial point was not contradicted by defendants even though Barb Zalewski, personnel director, was present in the court room at the time of the hearing. Babcock's rebuttal testimony indicated that employer either knew or should have known that claimant was injured on March 28, 1988. It is noted that all of Dr. Garland's office notes for several entries after March 29, 1988, have written in the name and address of employer and the entry for March 29, 1988, is marked, "worker's [sic] comp." (ex. C, p. 4). It is determined that claimant's testimony, which was corroborated by Babcock, established that he did report this injury on the day that it occurred. Claimant testified he reported it again one week later to the office of the employer. This testimony along with the doctor's entries that claimant did report a work injury, is determined to be the weight of the evidence. It is determined that defendants did not prove that claimant failed to give notice as required by Iowa Code section 85.23. CONCLUSIONS OF LAW Wherefore, based on the evidence presented and the foregoing Page 8 and following principles of law, these conclusions of law are made: That claimant sustained the burden of proof by a preponderance of the evidence that he sustained an injury on March 28, 1988, which arose out of and in the course of employment with employer. Iowa Code section 85.3; 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). Claimant sustained the burden of proof by a preponderance of the evidence that the injury was the cause of temporary disability from March 29, 1988 to July 12, 1988. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945). Claimant sustained the burden of proof by a preponderance of the evidence that he is entitled to 15.143 weeks of temporary total disability benefits. Iowa Code section 85.33(1). Claimant did not sustain the burden of proof by a preponderance of the evidence that the injury was the cause of permanent disability and therefore, claimant is not entitled to permanent disability benefits. Iowa Code section 85.34(2)(u). That claimant is entitled to medical benefits in the amount of $336.50. That defendants did not sustain the burden of proof by a preponderance of the evidence that claimant failed to give notice. Iowa Code section 85.23. ORDER THEREFORE, IT IS ORDERED: That defendants pay to claimant fifteen point one four three (15.143) weeks of workers' compensation temporary total disability benefits at the rate of two hundred ninety-one and 95/100 dollars ($291.95) per week in the total amount of four thousand four hundred twenty-one dollars ($4,421) commencing on March 29, 1988. That all accrued benefits are to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That defendants pay to claimant or the provider of medical services, Dr. Garland, $336.50, in medical expenses. That the costs of this action, including the cost of the transcript, are charged to defendants pursuant to Division of Industrial Services Rule 343-4.33. That defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule Page 9 343-3.1. That defendants file a first report of injury. Signed and filed this ____ day of August, 1990. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Mike Kane Attorney at Law 213 E Platt Maquoketa, Iowa 52060 Mr. Greg A. Egbers Attorney at Law 600 Union Arcade Bldg 111 E 3rd St Davenport, Iowa 52801-1596 PARSONS V. MARTIN ENGINEERING 51106; 51401; 51402.20; 51402.30; 51402.40; 51402.60 51801; 51803; 52401, 52801; 52802; 52803; 52501; 52602; 52700 Filed August 22, 1990 Walter R. McManus, Jr. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : TIMOTHY J. PARSON, : : Claimant, : : vs. : : File No. 900577 MARTIN ENGINEERING CO., : : 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. : ___________________________________________________________ 51106; 51401; 51402.20; 51402.30; 51402.40; 51402.60 Claimant did prove an injury arising out of and in the course of his employment on his first, last and only day of work for this employer when he fell while working on a coal hopper and injured his back. 51801 Claimant awarded temporary total disability benefits for the period he proved he was off work caused by this injury from March 29, 1988 to July 12, 1988. The other times off work were not proven to be caused by this injury. 51803 Claimant did not prove that the injury was the cause of any permanent disability and he was not awarded permanent disability benefits. PARSONS V. MARTIN ENGINEERING 52401; 52801; 52802; 52803 Defendants did not prove claimant failed to give notice. There were numerous indications that defendants had notice in several ways. 52501; 52602; 52700 Claimant attached a list of medical expenses to the prehearing report which listed only the provider and the total due each provider. The parties stipulated that the medical expenses were reasonable but did not stipulate that they were reasonable and necessary treatment for this injury or that they were caused by this injury. Claimant's exhibits, which may have contained itemized bills, were excluded from evidence because they were not served 15 days prior to hearing as required by paragraph 7 of the hearing assignment order. Some bills for the treating physician were found in defendants' evidence and claimant was allowed these expenses. No other medical expenses were allowed.