Page 1 before the iowa industrial commissioner ____________________________________________________________ : LESTER MAXWELL RICHARDSON, : : Claimant, : : vs. : : File No. 902330 THE WEITZ CORPORATION, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This case came on for hearing on November 4, 1991, in Des Moines, Iowa. Claimant seeks compensation for permanent partial disability benefits as a result of an alleged injury that occurred on September 10, 1988. The record in the proceedings consists of the testimony of the claimant and defendants' exhibits A through F. Defendants filed a motion to dismiss or preclude testimony in the introduction of the claimant's exhibits. The undersigned ruled on the motion on November 4, 1991, at the beginning of the hearing. The undersigned ruled that because of the untimeliness of the claimant filing the witness lists and service of exhibits, claimant was unable to have admitted into evidence his exhibits 1 through 11. With the motion by defendants being sustained, the claimant had no exhibits or evidence other than claimant's testimony. issues The issues for resolution are: 1. Whether claimant incurred an injury that arose out of and in the course of his employment on September 10, 1988; 2. Whether there is any causal connection to claimant's alleged temporary or permanent disability and his alleged September 10, 1988 injury; 3. The nature and extent of claimant's disability and entitlement to disability benefits. Claimant contends he has a body as a whole injury and defendants contend that at most it is a scheduled injury to claimant's left foot. 4. Whether claimant is entitled to 85.27 medical benefits, the issue being causal connection and Page 2 authorization, particularly as to a $795.47 bill; and, 5. The responsibility of costs. Particularly, should a medical report not admitted into evidence be a part of the statutory costs. findings of fact The undersigned deputy, having heard testimony and considered all the evidence, finds that: Claimant is a 54-year-old who has been in the concrete finishing industry as an employee for approximately 35 years. He began working on a job for defendant employer in August of 1988. Claimant explained the nature of his work. Claimant said that while performing his job on September 12, 1988, he twisted his left foot on a rebar in the poured concrete and was wrenched back and caught himself before he fell. Claimant said he was unable to perform his job for two or three weeks and the pain was unbearable. The testimony is confusing as to how much he did or didn't work and the time he was off. Claimant contends he was unable to work the rest of 1988. Claimant was confusing in his testimony. His petition has September 10, 1988 as the date of injury and he testified as to a September 12, 1988 injury date and an October 12, 1988 injury date. Defendants' exhibit B shows October 12, 1988. The first report of injury (Def. Ex. A) shows September 12, 1988, and that defendants first knew of claimant's condition on October 26, 1988. Claimant contends he had one injury. It appears to the undersigned that the day in question is actually September 12, 1988. Claimant acknowledged he tried to work after his injury and that John H. Kelley, M.D., released him to work on December 19, 1988. Claimant said that he went to the union hall to get work as defendant employer laid him off. Claimant admitted that after he saw Dr. Kelley and was released in December 1988, he did not go for his next medical treatment until October 3, 1989, ten months later. On cross-examination, claimant admitted to working at several jobs in 1989 and at a job in October 1990. On direct examination, claimant gave the impression he did little or no work in 1989 and 1990. Claimant agreed that his 1989 wage income was $7,860 plus $3,800 in unemployment. His 1988 income was $6,900 (Def. Ex. D). Claimant testified he hasn't worked in 1991. Defendants' exhibit E1 reflects on June 21, 1990, a letter of R.J. Weatherwax, M.D., which was sent to claimant's attorney. He noted that claimant had abnormal posturing of the toes at that time and the deforming of the high arch and clawing of the toes were present prior to the injury, a problem which he evaluated was unrelated to the injury. He also referred to the treatment by Dr. Kelley who found no fractures of any bones. Dr. Weatherwax went on to Page 3 emphasize that any deformities or disabilities claimant was having are not related to any injury claimant sustained in September 1988, as they existed prior to that as clearly outlined in an x-ray report of September 12, 1988. Defendants' exhibit E3, which is a report of Dr. Kelly, refers to the December 19, 1988 date as to claimant being advised that he could return to work after the first of the year and that he will not have a permanent disability as a result of his work-related injury. The undersigned believes the doctor means impairment and not disability. Claimant's September 12, 1988 left foot x-rays show no evidence of fracture or destruction. There is reference to deformity in claimant's foot joints, etc. (Def. Ex. E4) On October 11, 1989, there is the first reference to claimant having back problems and Patrick D. Reibold, M.D., indicates claimant was having multiple problems with spondylosis at L3-4, 4-5 and 5-1. There is a bit of disk herniation at 5-1 (Def. Ex. E6). The undersigned notes that there is no medical evidence in the record that indicates claimant has any permanency, particularly relating to any work injury. There is no evidence that any alleged work injury substantially and materially aggravated any preexisting condition that resulted in any permanency. Claimant has the burden to show not only that an injury arose out of and in the course of his employment, but that there is causal connection to any temporary or permanent disability to the alleged work injury. The undersigned finds that an event occurred on September 12, 1988, while claimant was at work. Claimant testified he was off two or three weeks and also his testimony was confusing and seemed to indicate he was off considerably more time. Defendants' exhibits reflect that claimant was released to go back to work on December 19, 1988. Another report indicated he could return the first of the year 1989. Claimant's testimony is very confusing as to how much time he was off between September 12, 1988 and December 19, 1988. It is obvious to the undersigned that he was off in excess of three weeks. The parties have stipulated that claimant has been paid 7.714 weeks of temporary total disability benefits amounting to $2,585.60. Although payment of these benefits is not an admission of liability, the undersigned believes that within the approximate thirteen weeks between September 12, 1988 and December 19, 1988, that there would appear to be about 7.714 weeks that claimant was off work and the undersigned so finds. The undersigned finds that this 7.714 weeks was caused by claimant's work injury on September 12, 1988. As to the 85.27 medical benefits, there is no evidence of any medical bill that was paid by the claimant or that he owes such a sum to a doctor and claimant has failed to carry his burden as to the 85.27 medical benefits issue. As to the costs, the statutory costs will be assessed in the order. As to any doctor's report that would otherwise be considered as part of the statutory costs, the costs of said report shall not be considered as part of the Page 4 costs as said report was not admitted into evidence pursuant to the ruling of defendants' motion to exclude certain evidence. conclusions of law Claimant has the burden of proving by a preponderance of the evidence that he received an injury on September 12, 1988 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). The claimant has the burden of proving by a preponderance of the evidence that the injury of September 12, 1988 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). 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. It is further concluded that: Claimant incurred an injury that arose out of and in the course of his employment on September 12, 1988, and that this injury caused claimant to incur temporary total disability of 7.714 weeks, payable at the rate of $327.52 per week. Claimant has failed to prove that he is entitled to any permanent partial disability benefits, either to the body as a whole or to a scheduled left foot injury. Claimant has failed to prove that his September 12, 1988 work injury substantially and materially aggravated any Page 5 preexisting condition. Claimant is not entitled to any 85.27 medical benefits. The cost of any medical report that was not admitted into evidence shall not be part of any court costs assessed herein. order THEREFORE, it is ordered: That defendants shall pay unto claimant seven point seven one four (7.714) weeks of temporary total disability benefits at the rate of three hundred twenty-seven and 52/100 dollars ($327.52). That defendants shall receive credit against the award for weekly benefits previously paid. Defendants have paid the seven point seven one four (7.714) weeks referred to above, as stipulated by the parties. That defendants shall pay the costs of this action, pursuant to rule 343 IAC 4.33. That defendants shall file an activity report upon payment of this award as required by this agency, pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of November, 1991. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Page 6 Copies to: Mr I John Rossi Attorney at Law Skywalk Ste 203 Seventh & Walnut Des Moines IA 50309 Ms Valerie A Fandel Attorney at Law Terrace Ctr Ste 111 2700 Grand Ave Des Moines IA 50312 5-1100; 5-1108; 5-1402.40 5-1801; 5-2503; 2907 Filed November 19, 1991 Bernard J. O'Malley before the iowa industrial commissioner ____________________________________________________________ : LESTER MAXWELL RICHARDSON, : : Claimant, : : vs. : : File No. 902330 THE WEITZ CORPORATION, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1100; 5-1108; 5-1402.40; 5-1801 Claimant awarded 7.714 weeks of temporary total disability benefits after proving injury arose out of and in the course of claimant's employment and causal connection. Claimant did not prove any permanency. Defendants had already paid the 7.714 weeks. Due to untimely witness and exhibit lists, claimant's only evidence was his own testimony. 5-2503 Claimant lost on 85.27 issue. No alleged bill in evidence. 2907 Held: Statutory costs do not include the cost of a medical report which was excluded from evidence. BEFORE THE IOWA INDUSTRIAL COMMISSIONER DARRELL D. DEAN, File No. 902397 Claimant, A R B I T R A T I O N vs. D E C I S I O N IBP, INC., F I L E D Employer, FEB 13 1990 Self-Insured, Defendant. INDUSTRIAL SERVICES STATEMENT OF THE CASE This is a proceeding in arbitration brought by claimant Darrell D. Dean against self-insured defendant employer IBP, Inc., to recover benefits under the Iowa Workers' Compensation Act as the result of an injury allegedly sustained in September, 1988. This matter came on for hearing before the undersigned in Burlington, Iowa, on February 6, 1990, and was considered fully submitted at the close of evidence. The record in this proceeding consists of the testimony of claimant, Paula Tate, Randy Fehlberg and defendant's exhibits A through D. Defendant's exhibit E was offered and an objection based on relevance was interposed. The question was taken under advisement. It is now ruled that the objection is overruled and defendant's exhibit E is admitted into evidence. Claimant offered exhibits A through Q. However, an objection based on claimant's failure to timely serve a notice of exhibits pursuant to the prehearing order was sustained and those exhibits excluded from the record. ISSUES Pursuant to the prehearing report submitted by the parties and approved at hearing, the following issues have been stipulated: that an employment relationship existed between claimant and employer at the time of the alleged injury; that at the time of injury, claimant' gross average weekly earnings were $264.00, he was married and entitled to six exemptions; affirmative defenses are waived. Issues presented for resolution include: whether claimant sustained an injury in September, 1988 arising out of and in the course of his employment; whether the alleged injury caused temporary or permanent disability and the extent thereof; the type of permanent disability and commencement date if awarded; the extent of claimant's entitlement to medical benefits; taxation of costs. REVIEW OF THE EVIDENCE Claimant testified that he was employed by defendant from January 20, 1988 through November 23, 1988, at which time he was discharged. He stated that his jobs included turning hogs on a gam table for approximately one month, stacking boxes near a conveyor belt, operating a dehairer machine (which included picking up shovelfuls of wet hair from the floor) and operating a side shaver. Claimant was performing this last job at the time of his discharge. Claimant testified that his first job was turning hogs on the gam table for approximately one month. He noted that the hogs, weighing approximately 200-250 pounds, would sometimes pile up and begin to fall off the table. Claimant indicated that he was forced to wrestle hogs back onto the table if they began to fall and that two or more employees would have to lift hogs back to the table if they actually fell to the floor. Claimant testified that he developed groin problems while working at the gam table in approximately January, 1988. He further testified that an unnamed physician advised him that he had suffered strain in approximately April, 1988. Claimant indicated that he continued working, but eventually voluntarily discontinued working overtime in summer, 1988. His strain improved while he was working a shaving job. However, when he took a job that involved cleaning and shoveling hair and water, he "felt a lot of strain" such as had been the case when he was working the gam table. Claimant testified that he was discharged after he missed a day's work because he had failed to call in to report that absence in a timely fashion. Afterwards he stated that he advised Paula Tate of his hernia problem and was referred to P. Tung, M.D., for physical examination which eventually led to hernia surgery. When claimant was released to return to work following his surgery, he had no job, having previously been discharged. Claimant testified that he had suffered no prior groin pain or stress in his previous employment history. Claimant did not testify to any incident in or about September, 1988 as per the allegations of his petition. On cross-examination, claimant reiterated that he first noticed a bulge in his groin in approximately January, 1988. He again stated that he did not visit a physician until approximately April, 1988, and was told at that time that he had developed a hernia. Claimant admitted that he failed to disclose this physician's identity or opinion in his answers to interrogatories. Claimant also admitted that he first notified defendant of his claimed work injury after he had been discharged. Paula Tate testified to being workers' compensation coordinator at the time of claimant's discharge. She testified that there were no reports of claimant's injury until after he had been discharged. At that time, claimant was referred to a physician for an examination. She further testified that claimant had been discharged on November 12, 1988 and first notified defendant of his work injury on November 16, 1988. Claimant did not state how his hernia had occurred. Ms. Tate also testified that although it is normally standard operating procedure for a physician to seek company authorization before performing surgery, this was not done in the present case and defendant did not authorize claimant's hernia surgery. Randy Fehlberg testified to being a general supervisor with authority over the gam table where claimant allegedly was injured. He testified that claimant did not notify him of his groin injury during the course of employment, and to his knowledge notified nobody else. He stated that claimant was removed from overtime eligibility after June, 1988, but that this was due to inadequacies in his job performance and not on a voluntary basis by claimant. Fehlberg also testified that a hoist is available to pick up hogs from the floor and that employees do not normally pick up hogs from the floor, although it may be common to catch or wrestle carcasses that are starting to fall from the gam table. General surgeon P. Tung, M.D., wrote on February 6, 1989 that claimant had been seen on December 18 of that year [sic]. Claimant demonstrated a bulging mass from the right lower end of the inguinal area, by history for about one and one-half months' duration. Dr. Tung wrote that surgical repair was performed on December 22, 1988. Claimant needed six weeks for recuperation. On January 3, 1989, claimant was doing well and was discharged back to his normal life without any limitations. A medical file card admitted into evidence reflects that claimant called to ask about post-termination insurance on November 16, 1988 based on a hernia claimed to have developed while working. Further records reflect that claimant was discharged on November 12, 1988 for absenteeism. APPLICABLE LAW AND ANALYSIS Claimant has the burden of proving by a preponderance of the evidence that he received an injury which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) 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 v. DeSoto Consol. Sch. Dist., 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 v. DeSoto Consol. Sch. Dist., 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 v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Musselman v. Central Telephone Co., 261,Iowa 352, 154 N.W.2d 128 (1967). The supreme court of Iowa in Almquist v. Shenandoah Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) discussed the definition of personal injury in workers' compensation cases as follows: While a personal injury does not include an occupational disease under the Workmen's Compensation Act, yet an injury to the health may be a personal injury. [Citations omitted.] Likewise a personal injury includes a disease resulting from an injury....The result of changes in the human body incident to the general processes of nature do not amount to a personal injury. This must follow, even though such natural change may come about because the life has been devoted to labor and hard work. Such result of those natural changes does not constitute a personal injury even though the same brings about impairment of health or the total or partial incapacity of the functions of the human body. .... A personal injury, contemplated by the Workmen's Compensation Law, obviously means an injury to the body, the impairment of health, or a disease, not excluded by the act, which comes about, not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee. [Citations omitted.] The injury to the human body here contemplated must be something, whether an accident or not, that acts extraneously to the natural processes of nature, and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. The claimant has the burden of proving by a preponderance of the evidence that the injury is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The record in this case is utterly devoid of any work incident in September, 1988, although Dr. Tung wrote that claimant's history was of a bulging mass for about one and one-half months prior to December 18, 1988. Claimant's testimony was that he developed groin problems as early as January, 1988, when he was working on the gam table. He alleged that an unnamed physician advised him in April of that year that he had sustained a hernia. If claimant did develop a hernia in January, 1988, it remains unclear why he waited until after his discharge in November of that year to report it. Based on claimant's demeanor, his contradiction of reported fact (why he stopped working overtime in summer, 1988) with respect to the testimony of Randy Fehlberg, and the inherent unlikeliness of the sequence of events to which he testified, it is found that claimant was not a credible witness. While he may believe that a causal connection exists between his hernia and his employment, the evidence does not contain one shred of expert testimony to that effect. The nature of an inguinal hernia is such that it might or might not be caused, aggravated or lighted up by an exertion at work. Absent any credible or expert evidence as to the causation issue, it must be found that claimant has failed to meet his burden of proof in establishing an injury arising out of and in the course of his employment. It is further the case that all of the credible evidence is that claimant's treatment by Dr. Tung was not authorized by defendant. Based on the foregoing, other issues are moot. FINDINGS OF FACT THEREFORE, based on the evidence presented, the following ultimate facts are found: 1. Claimant was employed by defendant from January 28, 1988 through November 12, 1988. 2. On November 16, 1988, claimant for the first time alleged that he had sustained a hernia injury during the course of his employment. 3. There is no expert testimony causally connecting claimant's hernia condition to his employment. 4. Although claimant has opined that his hernia was caused by his work in January, 1988, he was not qualified as an expert and his testimony generally lacked credibility. 5 There is no evidence in this record of any work injury in September, 1988. CONCLUSION OF LAW WHEREFORE, based on the principles of law previously cited, the following conclusion of law is made: 1. Claimant has failed to meet his burden of proof in establishing an injury arising out of and in the course of his employment or any causal relationship between his hernia condition and that employment. ORDER THEREFORE, IT IS ORDERED: Claimant shall take nothing from this proceeding. Costs of this action shall be assessed against claimant pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 13th day of February, 1990. DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Charles O. Frazier Attorney at Law 206 North Seventh Street Keokuk, Iowa 52632 Mr. Marlon D. Mormann Attorney at Law P.O. Box 515, Dept. #41 Dakota City, Nebraska 68731 5-1402.30 Filed February 13, 1990 DAVID RASEY DARRELL D. DEAN, Claimant, File No. 902397 vs. A R B I T R A T I O N IBP, INC., D E C I S I O N Employer, Self-Insured, Defendant. 5-1402.30 Where claimant lacked credibility and presented no expert evidence on causation, he failed to establish that hernia condition arose out of and in the course of employment. Page 1 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : DARREN R. DEMOSS, : : Claimant, : : vs. : File No. 902475 : EAGLE MANUFACTURING, : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : GREAT AMERICAN INSURANCE : COMPANIES, : : Insurance Carrier, : Defendants. : ____________________________________________________________ STATEMENT OF THE CASE Claimant Darren R. DeMoss seeks benefits under the Iowa Workers' Compensation Act upon his petition in arbitration against defendant employer Eagle Manufacturing and its insurance carrier, Great American Insurance Companies. Mr. DeMoss sustained a work injury on December 8, 1988. This cause came on for hearing in Dubuque, Iowa, on March 11, 1992. The record consists of joint exhibits 1 through 13 and the testimony of claimant, David Allendorf, Kim Bemboom, John Lugrain and David Stineman. ISSUES The parties have stipulated that claimant sustained an injury arising out of and in the course of his employment on December 8, 1988, that the injury caused temporary disability, to a weekly compensation rate of $195.37 and that defendants paid four weeks, three days of voluntary benefits at the erroneous rate of $200.14 per week. Issues presented for resolution include: 1. Whether there exists a causal relationship between the work injury and permanent disability; 2. The extent of temporary and permanent disability; and, 3. Entitlement to medical benefits under Iowa Code section 85.27. FINDINGS OF FACT Page 2 The undersigned deputy industrial commissioner finds: Darren R. DeMoss, 28 years of age at hearing, is a high school graduate. He also has a one-year apprenticeship certificate following study in diesel mechanics at a local community college. Mr. DeMoss began his employment history in high school as a gas station attendant. Later, he worked in maintenance for the same company and still later drove and delivered product locally and up to 100 miles distant. This work involved relatively heavy lifting and handling of petroleum products. Thereafter, claimant worked as a laborer and delivery worker for a construction company. Duties included delivery of drywall materials to residential and commercial properties and some hanging of drywall. This work also required relative heavy labor. Claimant next worked as a floor cleaner and night stocker for a supermarket business. This job required a good deal of standing and walking. Mr. DeMoss took work with Eagle Manufacturing in June 1988. He worked on the shipping dock, loading and unloading trucks, up to and after the work injury of December 8. It is undisputed that the work was heavy. Mr. DeMoss was considered a valuable employee and is still working for Eagle Manufacturing today. On December 8, 1988, claimant was injured while pushing a heavy load of windows on a cart. The windows started to fall over while a turn was made and Mr. DeMoss suffered a crushing injury when he unsuccessfully tried to hold them up. He was struck on the top of the head and left dazed and groggy. Claimant was taken for treatment to Finley Hospital in Dubuque. Contemporaneous notes reflect complaints of pain in the neck and left shoulder. X-rays were negative, but discovered a previously unknown and asymptomatic congenital fusion of the vertebrae at C5-6. Diagnosis was of contusion of the neck with mild to moderate muscle spasm. No complaints relative the lumbar spine were recorded, and no examination or treatment to this area appears. Claimant testified that he was unable to get out of bed the next morning and felt "paralyzed." He thereupon presented to Robert Scott Cairns, M.D., on December 12 with complaints of pain in the neck and thoracic spine. This is consistent with claimant's trial testimony that, although he "ached everywhere," he complained of pain in the upper back, shoulder and neck with radiating pain to the upper extremities and head. Dr. Cairns, an orthopaedic surgeon who testified by deposition on March 4, 1992, initially diagnosed a soft tissue injury of the cervical and dorsal spine and denied any initial impression of lumbar injury. He took claimant off work and recommended physical therapy. Page 3 As the parties have stipulated, insurance coverage was no longer provided by Great American Insurance Companies after December 31, 1988. On January 9, 1989, Dr. Cairns released claimant to return to work. On the following day, claimant returned with additional neck complaints, but again with no lumbar complaints. On January 27, 1989, claimant for the first time complained of lumbar spine symptoms. Dr. Cairns testified: Q. To your understanding, Doctor, the lumbar spine complaints that were made on that date, were they related to his employment duties just that week of that appointment? A. Well, he stated he went back to work the first of the week and after several days his work demands were increased and then he started to develop the back pain. Q. The complaints that Mr. DeMoss made on that date would be different than those that he made at least initially? A. Yes. Q. And you again took him off of work and recommended that he continue with the therapy and work hardening? A. Yes. Q. Going down then to December 14th Mr. DeMoss informed your office I believe that his employer wanted him to come back to work and that Mr. DeMoss felt great at that time so you went ahead and gave him a release? A. On February 14th. Q. Yes. Your dictation note for March 7th then, Doctor, apparently at that time Mr. DeMoss informed you that he was doing fine except for a small area of the low back? A. Yes. Q. Any findings at that point in your exam regarding the cervical or upper dorsal region? A. No, that wasn't much of a problem at that point. Q. Then continuing to move along then, your note for April 14th indicates, I take it, a new injury Page 4 to the low back, if you know? A. Oh, yes. Yes. Q. Mr. DeMoss described a specific incident caused by lifting at work? A. Yes. (Dr. Cairns deposition, page 6, line 7 through page 7, line 17) Claimant testified that when he first returned to work in January, he was given light-duty work as a data entry operator. He experienced neck and back stiffness with all the sitting required by that job, but was able to perform the work. After his assigned project was completed, claimant returned to the shipping dock. Claimant testified that his upper back and neck had completely recovered before he returned to the dock. At first, he felt all right, but gradually developed the back symptoms that brought him to Dr. Cairns on January 27. Mr. DeMoss described a lifting incident on February 14 which involved an audible "pop" in the lower back near his belt line. Claimant admitted that his lower back had improved prior to this traumatic incident which has been compensated as a work injury by another insurance carrier. Following the April incident, Dr. Cairns ordered a CT scan, which showed a small central defect at L5-S1. Dr. Cairns' initial impression was that this finding had no real significance. After June 1989, claimant did not regularly visit Dr. Cairns. As of December 5, 1989, Dr. Cairns believed claimant had no ratable permanent impairment for the lumbar spine or the cervical spine. Dr. Cairns saw claimant again for evaluation on February 4, 1992. This examination, which included additional x-ray studies, resulted in findings of a mild restriction in motion of the cervical spine which had not been seen before. However, a measuring instrument known as an inclinometer was used at this examination for the first time. The doctor was unable to tell whether there had been any change in range of motion between December 1989 and February 1992, although he believes that some restriction in range of motion is necessarily incident to the claimant's congenital cervical anomaly. Still, any congenital restriction in range of motion must be very minor, since claimant has undergone at least two medical examinations that failed to discover any diminishment in range of motion and Dr. Cairns testified the loss would probably not be seen on physical examination. Any congenital restriction in claimant's range of motion would necessarily be present at all times. Dr. Cairns also discovered minimal degenerative changes at C4-5 and, perhaps a little, C3-4. The doctor believed it was medically possible that these changes were attributable to the subject work injury, but he agreed that Page 5 he could not assign causation to a "reasonable degree of medical certainty." Dr. Cairns assigned an impairment rating relative limitation in cervical spine motion as constituting three percent of the whole man, half of which he attributed to the work injury, half to the congenital defect. The doctor also rated impairment to the lumbar spine, but attributes causation either to incidents in February or April, 1989 (in fact, being unable to tell whether the lumbar spine impairment was work related at all). Dr. Cairns recommended medical restriction against repetitive overhead lifting and against lifting in excess of 50 pounds. He was not asked whether either recommendation was mandated by impairment to the cervical spine, lumbar spine, or both. In agency experience, restrictions against overhead lifting are common in cases of cervical injury, so it is found that this restriction is causally related to cervical impairment. The same cannot necessarily be said of the 50-pound weight lifting restriction. In early 1990, Mr. DeMoss decided to seek additional treatment because of continuing neck and thoracic spine complaints. Second shift supervisor John Lugrain recommended that claimant seek chiropractic treatment during a casual conversation in the break room, even giving claimant a business card from the office of Samuel J. Sullivan, D.C. However, Mr. Lugrain specified that claimant should seek payment from the company health insurance carrier rather than the workers' compensation carrier. Defendants did not authorize the care claimant received from Dr. Sullivan, beginning February 1, 1990. Dr. Sullivan, who identifies himself as a specialist in chiropractic orthopaedics, testified by deposition on February 25, 1992. Claimant's chief complaint at the first visit was of mid-cervical and upper thoracic pain, soreness and lack of motion. Dr. Sullivan testified to finding osteophytic changes at several cervical and thoracic levels (including C3-4 and T6-7) which he did not consider age-related, since claimant was only approximately 26 years old when first seen. Dr. Sullivan undertook a course of chiropractic manipulation therapy, the cost of which remains in dispute. Dr. Sullivan causally related thoracic and cervical degeneration to the injury in December 1988, assessing a 12 percent "disability" to the cervical spine and 6 percent of the thoracic spine. Although Dr. Sullivan testified that he had formulated his impairment rating through the "American Medical Association Disability Text" (presumably the AMA Guides to the Evaluation of Permanent Impairment), it appears from his testimony that he considered factors not normally taken into account by medical practitioners using the Guides; that is, claimant's ability to work and look overhead "and that type of thing." Page 6 Dr. Sullivan imposed restrictions against overhead work and recommended the use of proper body mechanics when lifting. Asked whether claimant's lumbar spine condition was attributable to an accident "such as" the subject accident, Dr. Sullivan testified that it would be possible, but that he did not remember anything happening to the lumbar spine at the time of injury. He did not rate impairment to the lumbar spine. The parties have stipulated that claimant earned $4,034.29 during the 13 weeks prior to December 8, 1988. The first report of injury, which was received into evidence notwithstanding Iowa Code section 86.11, showed an hourly wage of $7.28 with an average of 45 hours per week. Mr. DeMoss is still employed by Eagle Manufacturing in the double hung windows section. He is currently earning $8.23 per hour. He voluntarily sought a change in shift for personal reasons unrelated to his work injury. Darren DeMoss now complains of chronic pain from the neck to below his shoulder blades and in the shoulders, worse in the morning. Some days he suffers from sore arms. He complains that his hands get numb when he works overtime. He testified to certain activities which he no longer enjoys, including several sports and auto mechanics. He testified to trouble sleeping. Claimant suffers occasional pain in the lower back with activity, but this diminishes with rest. Upper back and neck pain are more constantly present. CONCLUSIONS OF LAW The parties stipulate that claimant sustained an injury arising out of and in the course of employment on December 8, 1988, and that the injury caused temporary disability. The extent thereof remains disputed. Since this decision finds that claimant has sustained industrial disability, his temporary disability is compensable as a healing period under Iowa Code section 85.34 rather than temporary total disability compensable under Iowa Code sections 85.32 and 85.33. Under Iowa Code section 85.34(1), healing period is compensable beginning on the date of injury and continuing until the employee has returned to work, it is medically indicated that significant improvement from the injury is not anticipated, or until the employee is medically capable of returning to substantially similar employment, whichever first occurs. Claimant was released to return to work effective January 9, 1989, and did so. He is entitled to healing period from December 9, 1988, through January 8, 1989, or 4.429 weeks. Page 7 The parties dispute whether the injury caused permanent disability. 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). Here, it is necessary to distinguish between cervical and thoracic symptoms on the one hand and lumbar complaints on the other. With respect to the latter, be it noted that Dr. Cairns causally relates lumbar symptoms to incidents in February and April 1989. Possible work injuries on those dates are not presented in this litigation. Great American Insurance Companies did not provide workers' compensation insurance in 1989, and the April incident has been treated as compensable by another carrier. Dr. Sullivan did not express an opinion as to whether lumbar symptoms are work related. It must be concluded that claimant has failed to meet his burden of proof in establishing a causal nexus between any present lumbar complaints (and medical restrictions relating thereto) and the injury of December 8, 1988. However, it is held that claimant has met his burden of proof in establishing the necessary causal nexus between the work injury and his cervical and thoracic complaints. Both treating physicians have testified to the possibility that such a nexus exists. Claimant has testified that his symptoms did not exist prior to that injury, and have remained relatively chronic ever since. This is sufficient to establish causation. Becker v. D & E Distrib. Co., 247 N.W.2d 727 (Iowa 1976); Bradshaw v. Iowa Methodist Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). Since claimant has an impairment to the body as a whole, an industrial disability has been sustained. Page 8 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). Compensation for permanent partial disability shall begin at the termination of the healing period. Compensation shall be paid in relation to 500 weeks as the disability bears to the body as a whole. Section 85.34. Claimant is still a young man who appears to be of an intelligence suitable for further training. He is a high school graduate and graduated from an apprenticeship program in diesel mechanics. He has suffered no actual loss in earnings, since Eagle Manufacturing has been able to offer him continued employment. Claimant appears to be well-motivated to work. He has a work history involving a good deal of heavy manual work, but not necessarily overhead work. The only medical restriction shown to be necessitated by this work injury is the recommendation of both physicians against overhead work or repetitive overhead work. The weight restriction imposed by Dr. Cairns has not been shown attributable to the claimant's cervical problems as opposed to his lumbar problems. Dr. Sullivan's recommendation that claimant employ good body mechanics while lifting is not really a significant restriction, since everyone should do that anyway. Restrictions against overhead work will very probably bar claimant from seeking employment as a mechanic. This is an occupation by which he is suited by training, but one in which he has no significant work experience. The restriction might well interfere with his ability to work as a drywall installer, and on the shipping dock at Eagle Manufacturing (semi-trailer trucks are typically loaded all the way to the trailer's ceiling), although the latter problem is alleviated by defendants having provided other work. Claimant's work experience as an oil station attendant and grocery store cleaner and stocker would not necessarily be affected by the restriction. The fact of the restriction itself, though, may make claimant a less Page 9 desirable employee in the competitive labor market. While claimant continues to suffer pain, pain is not compensable in and of itself unless it has an impact upon earning capacity. Claimant's inability to participate in sports may be illustrative of his condition, but does not directly affect earning capacity. Considering these factors in particular and the record otherwise in general, it is held that claimant has sustained a permanent partial industrial disability of 15 percent of the body as a whole attributable to the work injury of December 8, 1988. Accordingly, he shall be awarded 75 weeks of benefits. Claimant also seeks Dr. Sullivan's medical expenses under Iowa Code section 85.27. In pertinent part, that section provides that employer is obliged to furnish reasonable services and supplies to treat an injured employee, but has also the right to choose the care so long as it be offered promptly and be reasonably suited to treat the injury without undue inconvenience to the employee. Dr. Sullivan's care was not authorized by defendants. Claimant has not followed the statutory procedure for seeking alternate care. Accordingly, Dr. Sullivan's expenses are not compensable. ORDER THEREFORE, IT IS ORDERED: Defendants shall pay unto claimant four point four two nine (4.429) weeks of healing period benefits at the rate of one hundred ninety-five and 37/100 dollars ($195.37) per week commencing December 9, 1988. Defendants shall pay unto claimant seventy-five (75) weeks of permanent partial disability benefits at the rate of one hundred ninety-five and 37/100 dollars ($195.37) per week commencing January 9, 1989. As all benefits have accrued, they shall be paid in a lump sum together with statutory interest pursuant to Iowa Code section 85.30. Costs are assessed to defendants pursuant to rule 343 IAC 4.33. Defendants shall file claim activity reports as required by the agency pursuant to rule 343 IAC 3.1. Signed and filed this ______ day of _________, 1992. Page 10 ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. David A. Lemanski Attorney at Law 1141 Main Street Dubuque, Iowa 52001 Mr. Jon K. Swanson Attorney at Law 900 Des Moines Building Des Moines, Iowa 50309 5-1108 Filed June 10, 1992 DAVID RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : DARREN R. DEMOSS, : : Claimant, : : vs. : File No. 902475 : EAGLE MANUFACTURING, : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : GREAT AMERICAN INSURANCE : COMPANIES, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 5-1108 Cervical and thoracic problems were causally related to work injury, but not lumbar problems. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : JEFFREY W. MONELL, : : File No. 902825 Claimant, : : vs. : MEMORANDOM OF : PERFORMANCE CONTRACTING, : DECISION ON INC., : : ALTERNATE Employer, : : MEDICAL CARE and : : AMERICAN INTERNATIONAL INS., : : Insurance Carrier, : Defendants. : ___________________________________________________________ On February 10, 1994, 1993, claimant filed an application for alternate medical care under Iowa Code section 85.27 and rule 343 IAC 4.48. A hearing was held on February 16, 1993. All parties were given proper notice. Claimant sustained an injury on December 5, 1988, which arose out of and in the course of his employment. Claimant is dissatisfied with the medical treatment offered by the defendants. The hearing was recorded via an audio tape, and a complete decision was dictated into the record on the day of the hearing. The decision will be reproduced in typewritten form only if the decision is appealed, and the parties are advised to follow the procedures outlined under the administrative code. Any rights of appeal will run from the date the decision was dictated into the record, February 16, 1993. The deputy ordered that claimant's petition for alternate medical care is granted. The decision was rendered February 16, 1994. The undersigned has been delegated the authority to issue final agency action in this matter. Appeal of this decision, if any, is judicial review pursuant to Iowa Code section 17A.19. Signed and filed this ____ day of February, 1994. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Page 2 Copies To: Mr Dennis J Mahr Attorney at Law 507 7th St 318 Insurance Centre Sioux City IA 51101 Mr John E Swanson Attorney at Law 8th Flr Fleming Bldg Des Moines IA 50309 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DARLENE EMBRAY, Claimant, vs. File No. 903026 THREE M COMPANY, A R B I T R A T I O N Employer, D E C I S I O N and OLD REPUBLIC INSURANCE COMPANY, Insurance Carrier, Defendants. ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Darlene Embray, claimant, against Three M Company, employer, and Old Republic Insurance Company, insurance carrier, defendants, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained on January 8, 1988. This matter came on for hearing before the undersigned deputy industrial commissioner on November 30, 1993, in Des Moines, Iowa. The record was considered fully submitted at the close of the hearing. The claimant was present and testified. Also present and testifying were Linda Anderson, Charles Arnold, Kathy Bennett, Bonnie J. Harkins, Jim Brown and Connie Husted. The documentary evidence identified in the record consists of joint exhibits 1-34. ISSUES The parties submitted the following issues for determination at the time of the hearing: 1. Whether claimant sustained an injury on January 8, 1988, which arose out of and in the course of employment with employer; 2. Whether the alleged injury is the cause of permanent disability and, if so, the extent thereof. FINDINGS OF FACT The undersigned has carefully considered all the testimony given at the hearing, arguments made, evidence contained in the exhibits herein, and makes the following findings: Claimant was born on November 21, 1943 and graduated from high school in 1962. She has worked in the past as a dental assistant, production line worker, dispatcher and customer relations supervisor. On March 29, 1976, she commenced working for employer. She started as a coder Page 2 treater assistant and in 1978 was promoted to production supervisor. She sustained a work-related low back injury on July 10, 1984 which required one lumbar and two cervical surgeries. Her work schedule between March 4, 1985 and February 3, 1986 is summarized in the deposition of Robert Sharkey (Exhibit 28, pp. 7-8). From February 1986 through July 1987 she worked with the clerical secretary in the coding department performing miscellaneous paper work. In July of 1987, she was transferred from the coding department to the employee corrective action request system (ECR) under the supervision of Jim Brown. Claimant testified that she suffered another work-related injury on January 8, 1988. She alleges that as a result of this injury she has severe low back pain, right hip and right leg pain, severe right-sided headaches, numbness in the right arm, right leg and right foot (Ex. 27, p. 4). A review of the pertinent and medical evidence of record reveals that on July 10, 1984, claimant fell at work and developed low back pain, severe headaches, right arm pain and right leg pain. On September 4, 1984, Robert Hayne, M.D., performed a lumbar laminectomy due to a herniated disc at the fifth lumbar interspace on the right. She was subsequently diagnosed with a herniated intervertebral disc at the fifth and sixth cervical interspace on the right and Dr. Hayne performed cervical fusion on December 27, 1984. On May 21, 1985, Dr. Hayne performed a cervical fusion revision due to compression of the sixth and seventh cervical nerve roots on the right side secondary to bony spur formation. On September 6, 1985, claimant saw Robert C. Jones, M.D., for evaluation. He recommended a pain clinic. On October 31, 1985, claimant was evaluated by James L. Blessman, M.D., for admission to Mercy Hospital Pain Clinic. She participated in the program at the clinic until November 29, 1985 when she was discharged. On February 13, 1986, Dr. Hayne determined that claimant had reached maximum medical recovery. He gave her an 8 percent impairment rating for symptoms referable to the low back region and an additional 11 percent for symptoms referable to her neck. Claimant settled her case with employer for 250 weeks of permanent partial disability benefits. A commutation agreement was filed with the Iowa Industrial Commissioner on September 16, 1986 (Exs. 1, 8, 9 & 18). Claimant's pain persisted. In addition, her husband died suddenly in December 1987. On February 23, 1988, she presented to Marc E. Hines, M.D.. He diagnosed chronic pain secondary to cervical and lumbosacral radiculopathy and prescribed pain medication. Claimant returned to Dr. Hines on March 22, 1988. His progress notes indicate that she was very depressed due to her husband's death and was still suffering daily right-sided chronic back pain and occipital headaches. Dr. Hines continued her pain medication and recommended counseling with Dr. Wayne, Ph.D.. Claimant paid a final visit to Dr. Hines on April 6, 1988, requesting Page 3 higher doses of medication. He was unwilling to increase her dosage and recommended an EKG. Meanwhile, claimant declined further counseling sessions with Dr. Wayne (Ex. 5). In attempting to deal with her depression and grief, claimant underwent counseling with Robert Hutzell, Ph.D., at Mater Clinic. An initial interview was conducted on April 20, 1988. She completed nine sessions and made good progress. Treatment was discontinued on June 15, 1988 (Ex. 21). On August 26, 1988, claimant presented to Kenneth VanWyk D.C., with complaints of upper back pain which she attributed to moving a heavy box at work (Ex. 6, pp. 33-34). She completed a questionnaire for Dr. VanWyk and in response to the question, "Do any other diseases or accidents affect your employment?" Yes, back injury (1984) (Ex. 8, p. 35). During the course of treatment with Dr. VanWyk, claimant complained of neck pain and headaches. A notation dated September 14, 1988 states that claimant had fallen the Sunday before and hurt her left hip. On September 22, 1988, she presented with acute low back pain after suddenly bending and turning. A notation dated November 3, 1988 states that she experienced right arm numbness when riding a bicycle. On October 7, 1988, she presented with pain in the low back and sacral area with radiation into the legs since Monday. On November 4, 1988, she presented with continued soreness and weakness in the right leg especially going up and down stairs for a couple of days. Dr. VanWyk advised that she quit back exercises because they may aggravate her condition. She indicated she did not want to quit work to give her back and leg a rest because she was too nervous and tense at home. She also refused to see a medical doctor or undergo a CT scan. She was advised not to move furniture as she did a few weeks prior. On November 7, 1988, she presented with increased right hip and leg pain. At this time, she informed Dr. VanWyk that she fell in the parking lot at Three M Company in January 1988 and her back and leg has been getting worse ever since. Two days later she presented with soreness in her right leg and left hip after falling. At this time, claimant consented to a CT scan (Ex. 6). On November 10, 1988, claimant underwent a lumbar CT scan. The radiologist's impression was a herniated disc at the L3-4 level (Ex. 7, p. 7). Claimant saw Robert C. Jones, M.D., a neurosurgeon on November 14, 1988. A preliminary history taken from claimant states that she fell in January 1988, while getting into the car in employer's parking lot and has had low back and right leg pain ever since. Dr. Jones admitted claimant to Mercy Hospital Medical Center on November 18, 1988 for a myelogram. The findings were consistent with a herniated disc and surgery was scheduled for November 29. Dr. Jones performed a decompressive lumbar laminectomy at L3 with removal of a huge subligamentous extruded disc on the right. On December 12, 1988, claimant contacted Dr. Jones and stated that she sneezed and Page 4 developed terrible pain in the low back and right leg. She was treated conservatively without improvement. Dr. Jones saw her again on May 25 and July 14, 1989. Her complaints were referable to low back and right leg pain. On July 18, 1989, a myelography with a post myelogram computerized scan of the back was performed at Mercy Hospital. The results suggested a recurrent disc on the right at the L3-4 level. On July 21, 1989, Dr. Jones performed a re-operation lumbar laminectomy (decompressive) at L3-4 with removal of a huge recurrent disc on the right (Exs. 7-9). Claimant continued to have low back and right leg pain. She was seen by Dr. Jones on a number of occasions. A lumbar myelogram was performed on October 23, 1989 and failed to show any cause for her pain. When last seen by Dr. Jones on March 9, 1990, claimant complained that her condition was worse than before. She declined treatment at Mercy Pain Center. Dr. Jones recommended the Low Back Pain Clinic in Minneapolis (Ex. 8, pp. 21-22). Claimant was evaluated at the Institute for Low Back Care June 19-20, 1990. A functional capacity evaluation stated that, in an eight hour work day, claimant was capable of sitting, standing and walking six hours. It also stated that she was capable of frequent carrying and lifting at waist level up to 10 pounds and occasionally up to 24 pounds. Also, it was determined that she was able to occasionally bend/stoop, squat, climb, reach above shoulder level, kneel, balance, and push/pull. Finally, it was noted that she can occasionally lift 25 pounds at waist level (Ex. 11, pp. 5-6). Claimant applied for social security disability benefits sometime in 1990. Pursuant to that claim, she was referred by her attorney to Sam L. Graham, Ph.D., for a psychological assessment on August 9, 1990. Dr. Graham found that claimant presented with a clear pattern of symptoms suggestive of Major Depressive Disorder which has developed within the context of her chronic pain disorder. He recommended aggressive psychiatric treatment (Ex. 12). Claimant then underwent ten sessions of individual psychotherapy with Todd F. Hines, Ph.D., from September 26, 1990 through November 27, 1990, when she was released from his care, psychologically improved (Ex. 13). Claimant was also being followed by John Kanis, D.O., for various complaints. He performed a complete physical evaluation on June 6, 1991 and diagnosed chronic myofascial pain syndrome, chronic cephalgia, overweight, nicotine addiction, possible intermittent aspirin toxicity and depression (Ex. 7, pp. 3-6). Claimant was referred by defendants to Daniel McGuire, M.D., for an independent medical examination. Claimant presented to Dr. McGuire on March 26, 1992. She presented with an extreme amount of non-physiologic complaints with no objective findings on physical examination of true radiculopathy. Other than decreased pulses in her lower extremities no other positive findings were evident. After Page 5 reviewing claimant's extensive medical records, Dr. McGuire concluded that she has myofascial pain syndrome with numerous aches and pains without any objective neurological findings. He concluded that she is not a candidate for any further surgery. Dr. McGuire reported as follows: ... when you look at her diagnostic studies from 1988, you really do not find much in the way of acute changes. These are long-standing congenital problems. They are not related to 1984; they are not related to 1988; they are related to birth. She has short pedicles and with that she has the resultant small canal, which makes her prone to developing spinal stenosis. She has degenerative changes in the facet joints, which cause the canal to be even a little bit smaller. She then had a little bulge of her disk on the left side at L3-4. She had right leg symptoms and ended up with an operation. I see the surgeries of 1988 and 1989 could be completely unrelated to her fall in 1988 as by the history the patient provided in the medical records. The history that she provided to me was different. I guess I am prone to believe the history of 1988. After the fall in January 1988 she was able to continue to work. As a result of the fall in January of 1988, I believe she could work. Whatever job she was doing at that time, for sure she could do that. I am sure I would have had her back to working more hours per day than she was. We probably could have lifted her weight restrictions some. Even with the two surgeries in 1988 and 1989, I still would have her working. Realistically she needs to be on a 10-20 pound weight limit. That is more a humane restriction than rigid. I am sure in her activities of daily living that she moves things around that weight 5, 10, 15 pounds, such as a grocery sack or a roast beef from the oven (Ex. 16, p. 11). On October 12, 1993, claimant presented to Donna Bahls, M.D., for evaluation. Dr. Bahls felt that no further diagnostic workup was warranted and discussed with claimant medical management of her pain. She prescribed Prozac and Doxepin along with Anaprox (Ex. 14). Claimant was referred by defendants to William R. Boulden, M.D., for evaluation on November 22, 1993. Dr. Boulden issued a report pursuant to that examination and testified by deposition (Ex. 25, p. 5). Dr. Boulden indicated that in formulating his opinions, he relied upon claimant's medical records, which were furnished by defendants, his examination of claimant and other facts concerning her employment. Based on that evidence, Dr. Boulden concluded that claimant's fall on January 8, 1988, Page 6 was not a substantial factor in producing any permanent disability or permanent impairment (Ex. 25, p. 8). Dr. Boulden testified that he spent a significant amount of time looking through every x-ray available pertinent to claimant's past and present medical condition. CONCLUSIONS OF LAW The party who would suffer loss if an issue were not established has the burden of proving that issue by a preponderance of the evidence. Iowa R. of App. P. 14(f). The claimant has the burden of proving by a preponderance of the evidence that the alleged injury actually occurred and that it arose out of and in the course of employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of" refer to the cause or source of the injury. The words "in the course of" refer to the time, place and circumstances of the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 1971). The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). A personal injury contemplated by the workers' compensation law means an injury, the impairment of health or a disease resulting from an injury which comes about, not through the natural building up and tearing down of the human body, but because of trauma. The injury must be something which acts extraneously to the natural processes of nature and thereby impairs the health, interrupts or otherwise destroys or damages a part or all of the body. Although many injuries have a traumatic onset, there is no requirement for a special incident or an unusual occurrence. Injuries which result from cumulative trauma are compensable. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985); Olinistered by the application of logical and consistent rules or formulas notwithstanding its benevolent purpose. It cannot be made to depend on the whim or sympathetic sentiment of the current administrator or presiding judge. We apprehend every member of this court is sympathetic to claimant in the instant case. But the compensation statute is not a charity. It is a humanitarian law to be administered, not by sympathy, but by logical rules, evolved from the determination of many cases under literally countless factual variations. Compensation is to be paid by the employer (or [the] insurer) as a matter of contract, not as a gratuity. It is payable only when the facts show the injury is within the contract--that it 'arose out of and in the course of the contracted employment.' Bulman v. Sanitary Farm Dairies, 247 Iowa 488, 494, 495, 73 N.W.2d (1955). There is insufficient evidence to support a finding that the incident on January 8, 1988 was a substantial factor in causing claimant's severe low back pain, right hip and right leg pain, severe right-sided headaches, numbness in the right arm, right leg and right foot which Page 8 subsequently resulted in surgery on November 29, 1989 and July 28, 1989 and the disability on which she now bases her claim. Claimant relies on Dr. Jones and chiropractor VanWyk to support her contentions that the injury of January 8, 1988 caused her current disability. However, her contentions are not supported by the medical evidence. While claimant reported to her supervisor on January 8, 1988, that she slipped in the parking lot and twisted her body causing a sharp pain in her lower back, she neither missed time from work nor sought any medical attention. She continued working approximately six hours per day, as prior to the injury, and in fact, testified that by mid-May 1988, had increased her hours to nearly eight per day. The first time claimant sought medical attention after January 8, 1988, was approximately six weeks later when she saw Dr. Hines, a neurologist, on February 23. At that time, Dr. Hines diagnosed "chronic pain secondary to cervical and lumbosacral radiculopathy." This was the same diagnoses he made in 1987. His notes make no reference to an incident on January 8, 1988. Claimant saw Dr. Hines again on March 22, 1988, primarily for depression, but chronic back pain was also noted. The same comments are made by Dr. Hines during an April 6, 1988 visit. Claimant saw a psychologist who works with Dr. Hines on March 29 and April 7, 1988. Again, no reference is made regarding an incident on January 8, 1988. During the remainder of April, May, June, July, and most of August 1988, claimant did not seek medical care for her alleged work injury. She participated in counseling sessions with a psychologist to help her through the grief process. On June 8, 1988, the psychologist recorded "no impairment of her job" and on June 15, 1988, he recorded "work going well" (Ex. 21). On August 26, 1988, claimant saw Dr. VanWyk, a chiropractor. In completing his patient intake form, she noted that she injured her upper back at work earlier in the day moving a heavy box. Regarding prior accidents affecting her employment, she listed "back injury (1984)", but made no mention of the January 8, 1988 incident. She saw Dr. VanWyk on numberous occasions. On September 9, 1988, he reported that the dorsal area was better and that she was "about back to pre-accident status." On about September 11, 1988, claimant fell at home. When she saw Dr. VanWyk on September 14, 1988, he reported that she hurt her left hip and had some sciatic soreness. Dr. VanWyk's records also show an incident on September 22, 1988, when claimant turned suddenly and had acute pain in her low back. She told her supervisor about problems while riding her bike from Knoxville to Pella on October 1, 1988. On October 7, Dr. VanWyk recorded onset of low back, dorsal and leg pain the previous Monday or Tuesday. On November 4, 1981, Dr. VanWyk noted that claimant had been moving furniture several weeks previously and developed back pain. Although claimant saw Dr. VanWyk on approximately 35 occasions between August 26 and November 7, 1988, it was not Page 9 until November 7th, that his notes contain any reference to a January 8, 1988 parking lot incident (Ex. 6). This was ten months after the occurrence, and is the very first mention of the incident to any medical provider in the voluminous medical records. However, notwithstanding claimant's long history of problems before January 8, 1988 and the several incidents after January 8, 1988, beginning with November 7, the history claimant gave to physicians, including Dr. Jones, centers on the January 8, 1988 parking lot incident. On January 18, 1989, Dr. Jones wrote in a letter to GAB Business Services, Inc. as follows: "She continues to be under my care; continues to have significant discomfort and from what she tells me there appears to be a cause and effect relationship between the fall at work in January of 1988 and her continuing discomfort and subsequent surgery." (Ex. 8, p. 13). Dr. Jones testified in a deposition taken on October 4, 1993. He was given no other history regarding the several incidents which occurred between January 8 and November 7, 1988. Dr. Jones based his opinion as to causation solely on the incomplete history given to him by claimant. Therefore, Dr. Jones' opinion as to causation is not entitled to significant weight and consideration. An expert's opinion based on an incomplete history is not necessarily binding on the commissioner. The opinion must be weighed with other facts and circumstances presented. Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Dr. VanWyk's opinion as to causation is also not entitled to significant weight and consideration. Dr. VanWyk was asked whether in his opinion, within a reasonable degree of chiropractic certainty, the cause of claimant's low back problems which resulted in surgery in November of 1988 resulted from the fall in January 1988. Dr. VanWyk, responded, without explanation, that the fall, and only the fall, caused the low back problems which resulted in the November 1988 surgery. It is interesting to note that Dr. VanWyk's progress notes indicate that he was not even aware of a January 1988 injury until November 7, 1988 (Ex. 6, p. 5). Opinions as to causation have also been rendered by two orthopedic surgeons. Dr. McGuire examined claimant on March 26, 1992 and reviewed her extensive medical records. After examining her diagnostic studies, Dr. McGuire concluded that claimant's medical problems are long-standing congenital problems and in no way related to the fall in January 1988 (Ex. 16, p. 11). Dr. Boulden, a board certified orthopedic surgeon, examined claimant on November 22, 1993 and also reviewed her extensive medical records. He reported, in pertinent part, as follows: Therefore, in trying to put pieces together here, I believe the patient as been stated by other opinions that she had a congenital spinal stenosis. I think the first operation was for spinal stenosis not truly a herniated disc. I Page 10 believe that she continued to develop an acquired degenerative spinal stenosis on top of cogenital spinal stenosis which finally become quite persistent in her symptoms, sometime in October or November of 1988. When this actual disc protrusion at L3-4 was starting to get worse and worse and is unknown but there were already signs of problems with this disc even in 1984 to 1986. Therefore, I doubt that the fall of January 1988 really caused the disc to rupture to the point where surgery was needed in November of 1988. I believe there are several other instances that is reported in the records such as moving furniture, falling on her left hip, twisting, turning, and lifting as such that all could be very significant participating factors and would align with the proper chronological aging before the symptoms got quite severe. Therefore, it is hard for me to correlate the January 8, 1988 slip and twisting injury as the need for the surgery of November, 1988 (Ex. 19, pp. 9-10). 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 176, 192 (Iowa 1985). The record reveals a possibility of numerous intervening events, other than the January 8, 1988 incident, as possible and perhaps more probable explanations for claimant's disability. Under the record presented, reasonable persons could well disagree as to whether the January 8, 1988 incident was a substantial factor in producing any permanent disability or permanent impairment. The greater weight of the evidence does not support claimant's claim that the January 8, 1988 incident is a proximate cause of the disability on which she now bases her claim. This determination is dispositive of the entire case and further analysis is unnecessary. Page 11 ORDER THEREFORE, IT IS ORDERED: Claimant shall take nothing from these proceedings. That defendants pay all costs pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of December, 1993. ______________________________ JEAN M. INGRASSIA DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Ronald Pogge Attorney at Law 2700 Grand Ave., Suite 111 Des Moines, IA 50312 Mr. Roger L. Ferris Attorney at Law 1900 Hub Tower 699 Walnut Des Moines, IA 50309-3947 5-1100, 5-1108, 5-1803 Filed December 20, 1993 Jean M. Ingrassia BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DARLENE EMBRAY, Claimant, vs. File No. 903026 THREE M COMPANY, A R B I T R A T I O N Employer, D E C I S I O N and OLD REPUBLIC INSURANCE COMPANY, Insurance Carrier, Defendants. ___________________________________________________________ 5-1100, 5-1803 Claimant failed to show by preponderance of the evidence that a work injury was a substantial factor in causing permanent disability or permanent impairment. 5-1108 The opinion of claimant's treating surgeon was based on an incomplete history and is not binding on the commissioner. The opinion must be weighed with other facts and circumstances presented. Because claimant's treating surgeon was given an incomplete history, his opinion as to causation was not entitled to significant weight and consideration. The opinions rendered by two highly qualified orthopedic surgeons was entitled to more weight and consideration. In forming their opinions, they relied on the totality of claimant's voluminous medical records and work history. Page 1 before the iowa industrial commissioner ____________________________________________________________ : CARL DAVID, : : Claimant, : : vs. : : File No. 903104 MID-CONTINENT BOTTLERS, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : AETNA CASUALTY & SURETY CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Carl David, claimant, against Mid-Continent Bottlers, Inc., employer, and Aetna Casualty & Surety Company, insurance carrier, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury allegedly sustained on May 17, 1988. This matter came on for hearing before Deputy Industrial Commissioner Jean Ingrassia in Cedar Rapids, Iowa on December 17, 1990. The record was considered fully submitted after the filing of briefs by both parties on January 16, 1991. The record in this case consists of testimony from the claimant, Carl David; Adriano Galvez; and Edwin Serovy. The record also consists of joint exhibits A-AD, claimant's exhibit 1 and defendants' exhibit 1. issues Pursuant to the prehearing report and order submitted and approved December 17, 1990, the parties stipulated that the time off work for which claimant now seeks temporary total disability benefits commenced January 31, 1989 and ended November 28, 1989; the rate of weekly compensation in the event of an award of weekly benefits is $250.74 per week; and the fees charged for medical services or supplies rendered to the claimant are reasonable and authorized by defendant. The parties further stipulated that the claimant received sick pay/disability income in the amount of $5,200.00 and medical/hospitalization expenses in the amount of $12,501.35. The issues remaining to be decided are: 1) Whether claimant received an injury arising out of and in the course of his employment on either May 16 or May 17, 1988; 2) Page 2 whether a causal relationship exists between claimant's claimed injury and his disability; 3) whether claimant is entitled to temporary disability/healing period benefits or permanent partial disability benefits; and 4) whether claimant is entitled to medical benefits. findings of fact The undersigned has carefully considered all the testimony given at the hearing, the arguments made and the evidence contained in the exhibits, and makes the following findings: The claimant was born on November 6, 1937 and completed the twelfth grade of school in 1956. He testified that he worked for Mid-Continent Bottlers from April 26, 1976 through January 1989 when he went on sick leave. He was terminated from the company in January 1990. From April 1, 1990 through August 1990, he worked for Gale Industries as a telemarketing agent and salesman. He quit this job because it required road travel and some heavy lifting. Recently, he took a counseling position with the Area Substance Abuse Council. In this capacity, he is on call 24 hours but works Friday through Saturday, midnight to 8:00 a.m. and earns $6.00 an hour. Prior to working for Mid-Continent, Mr. David worked as a packinghouse laborer and insurance salesman. A review of the pertinent medical evidence reveals that the claimant was seen by Richard Rowe, M.D., on July 23, 1981, for complaints of pain and muscle spasms in his left shoulder. He had been using a crowbar at work and slipped and pulled some muscles in his shoulder. A history of shoulder separation in 1970 and bursitis with multiple Cortisone injections was noted. He was off work for awhile and participated in physical therapy which seemed to improve his symptoms (Exhibit F4). On July 26, 1982, the claimant was evaluated by Warren N. Verdeck, M.D., for complaints of pain in his neck and left shoulder. He related this pain back to an injury in March 1982, when his pickup was hit in the parking lot at work. After taking x-rays, Dr. Verdeck diagnosed a cervical strain with muscle tightness. His pain persisted and EMG studies were performed on August 27, 1982. The results showed severe suprascapular nerve injury but incomplete, mild carpal tunnel syndrome and moderately severe ulnar neuropathy at elbow level (Ex. W, page 5). Because of persistent pain at the base of the left neck, Dr. Verdeck referred the claimant to James R. LaMorgese, M.D. He saw the claimant on December 16, 1982 and felt that he had early cervical spondylosis, an element of thoracic outlet syndrome and entrapment neuropathy. He was prescribed Motrin (Ex. W, p.11). Dr. LaMorgese saw the claimant for follow-up evaluations in January, February and March 1983. Claimant continued to complain of intermittent left neck pain and cramping and numbing sensations in his hands. Dr. LaMorgese felt that these symptoms were related to claimant's March 1982 work injury (Ex. F4-section 10). As to this injury, the claimant testified that he settled out of court with the Page 3 insurance company for $3,000.00. This is verified in exhibit O4. Claimant next saw Dr. Verdeck on June 3, 1986. He presented with a long history of numbness and tingling in both hands. EMG studies were performed and showed severe ulnar neuropathy bilaterally, mild right carpal tunnel syndrome and severe left carpal tunnel syndrome. On June 23, 1986, left carpal tunnel release and ulnar nerve transposition with decompression was performed at Mercy Hospital. On July 29, 1986, right carpal tunnel release and anterior transposition of the right ulnar nerve was per formed. Dr. Verdeck saw the claimant for carpal tunnel related problems through October 17, 1986 and, at that time, he still had some right sided numbness. He was given an impairment rating of five percent on the right side and three percent on the left side (Exs. D & W). During a deposition taken on June 27, 1990, John L. Banks, M.D., family practitioner, testified that he first saw Mr. David on July 22, 1988. He presented with complaints of left sided headaches and left neck pain which he attributed to being hit on the top of his head with a pop case being thrown off the line at work. A cervical spine x-ray was ordered and an appointment with Erich Streib, M.D., was arranged. According to Dr. Banks, claimant made no mention of an incident at work regarding a broken fork lift seat and experiencing pain in his arm and shoulder when he slid back in the seat (Ex. E). Dr. Streib saw the claimant on July 29, 1988. His com plaints were primarily referable to intermittent headaches which he related to an accident in 1982 and a work incident in November of 1987 when an empty case of pop hit his head. Dr. Streib felt that the claimant's headaches were muscle contraction headaches or tension headaches. He also noted myofascial pain and tenderness of the shoulder muscles on both the right and left side but no neurologic abnormalities to suggest nerve root disease, peripheral nerve disease or intracranial (Ex. V). After being evaluated by Dr. Streib, the claimant was seen by Dr. Maercklein, (a vacation relief doctor for Dr. Banks), on August 5, 1988. During this visit, claimant stated that he was feeling better. He made no mention of any arm or shoulder problems and his activities were not restricted in any way (Ex. E, p. 10). He was next seen by Dr. Banks on December 5, 1988, and at this time his complaints were referable to pain in his right neck and right trapezius muscle and right arm. He attributed his dis comfort to a defective fork lift seat and an incident which occurred in May 1988. Dr. Banks testified that this was the first time Mr. David mentioned any problems with the fork lift seat (Ex. E, p. 11). This was also the first time that he complained of problems into his right arm and shoulder. However, on examination, there were no abnormal objective findings. Claimant was referred back to Dr. Streib who referred him back to Dr. Verdeck. Page 4 Dr. Verdeck saw the claimant on January 6, 1989. At that time, he complained primarily of right shoulder and some neck pain. X-rays taken of his shoulder revealed some mild degenerative or arthritic changes at the shoulder joint. His impression was either a rotator cuff tear or possibly an impingement syndrome (a tendinitis type condition of the rotator cuff muscle in the shoulder). His complaints persisted and on February 13, 1989, he had an MRI and arthrogram performed. The tests revealed a rotator cuff tear and a small mild or moderate herniated disk on the right side at C5-6. On March 6, 1989, claimant had exploratory surgery and a definite tear was ruled out. An impingement syndrome was diagnosed and decompression was per formed. Subsequent to surgery, claimant continued to have symptoms referable to his hand and neck. EMG studies taken in July 1989 were negative. An MRI C-spine scan showed slight protrusion and bulge of C5-6 on the right. Office notes from Dr. Verdeck dated July 31, 1989, indicate that, "He relates that he has had this particular pain ever since in [sic] was struck in the head by a pop case at work." (Ex. W, p. 19) He was referred to Chad D. Abernathey, M.D., a neurosurgeon, for further evaluation. Dr. Abernathey testified by deposition on November 16, 1990. He stated he saw claimant on August 4, 1989, and performed a total system examination with concentration upon the neurologic exam. It was his clinical impression that claimant was suffering from a C-6 radiculopathy secondary to a cervical abnormality of the C-5/C-6 level. A CT myelogram was recommended and performed. The results demonstrated a large extradural defect at the C-5/C-6 level on the right. Surgery was recommended. Claimant's symptoms did not improve and he returned to Dr. Abernathey indicating an interest in pursuing surgical options. Thereafter, a repeat MRI examination was performed in October 1990 and the results were similar to the August 1989 examination (Ex. G, p. 15). When last seen by Dr. Verdeck on November 8, 1990, claimant complained of right upper extremity pain with increased activities. An anterior discectomy and fusion was recommended for improvement of his symptoms (Ex. W, p. 25). At his hearing, claimant testified that on Tuesday, May 17, 1988, while in the employ of Mid-Continent Bottlers, he was operating fork lift No. 34, which was the line fork lift at the time and the seat gave way and slid back while he was turning the vehicle causing him to overextend his arms. This resulted in immediate pain in his right upper extremity including his arm, shoulder and neck. He testified that the incident occurred about one hour after his starting time but he continued to complete his normal work shift which ran from 6:00 a.m. to 2:00 p.m. He testified that Mr. Galvez, his supervisor, was out of town at the time and he therefore reported the incident to Mr. Serovy, warehouse manager. He stated that Mr. Serovy was aware that the fork lift seat was Page 5 broken because a new seat had been ordered for the vehicle more than a month before the incident happened. He alleged that he reported the incident to Mr. Galvez within the week and an appointment was made for him to see Dr. Banks, the company doctor. As to his recreational activities, Mr. David testified that between August 1988 and March 1989, he bowled on two teams and participated in two bowling leagues. He bowled approximately 108 games using a 15-16 pound ball. He has not bowled since having rotator cuff surgery on March 6, 1989. Also testifying at the hearing was Mr. Adriano Galvez, operation's manager and claimant's supervisor at Mid-Continent for the past 12 years. He testified that claimant came to him in July 1988 and told him that he was not feeling very well because of headaches and shoulder pain. He was referred to Dr. Banks, the company physician, for evaluation and treatment. No report of injury was written up at this time. On December 2, 1988, he filed a first report of injury when the claimant presented with complaints of neck and arm pain. He was under the impression that this related to an injury in November 1987 when claimant was hit on the head with a wooden pop case. He was aware that claimant had filed a claim related to that injury and he presumed that this claim was a recurrence of an old injury. When he filed the first report of injury, he did not specify the date that the injury occurred because the claimant did not provide one (Defendant's Ex. 1). Unbeknownst to Mr. Galvez, May 16, 1988, was later inserted on the work injury report and made part of the record in this case (Ex. L). Finally, Mr. Galvez testified that maintenance documents indicate that fork lift No. 36 rather than No. 34 was used on the production line in May 1988. This fork lift did not have a defective seat or any other maintenance problems at the time Mr. David was allegedly operating it. Mr. Edwin Serovy, warehouse manager at Mid-Continent Bottlers, also testified at the hearing. He stated that contrary to claimant's assertions, he did not report an incident or injury to him on either May 16 or 17, 1988, nor did he mention anything regarding a defective fork lift seat. If he had reported such an injury, claimant would have been taken off the fork lift and forms would have been filled out and a report of injury filed. He stated that prior to May 19, 1988, he had supervised Mr. David on different jobs and he was aware of the pop case incident. It was not until December 1988 that he learned of the alleged fork lift incident. In any event, he corroborated Mr. Galvez's testimony that fork lift No. 36 was assigned to the production line May 16-17, 1988, and this machine did not have a defective seat. He was aware that fork lift No. 34 had a broken seat and maintenance records demonstrate the same. Finally, he testified that contrary to claimant's assertions and in his experience as a fork lift operator, Page 6 the vehicle is steered with the left hand, and not the right, because the right hand operates the levers on the con trol panel. In navigating the vehicles backwards, the operator's head is turned to the right. Also, a broken seat moves in the same manner as an unbroken seat because there is a brace in back of the seat which obstructs it from moving more than l/2-2 inches from front to back. CONCLUSIONS OF LAW The first issue to be determined is whether claimant has received an injury which arose out of and in the course of his employment. Claimant has the burden of proving by a preponderance of the evidence that he received an injury on May 17, 1988 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). The supreme court of Iowa in Almquist v. Shenandoah Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) discussed the definition of personal injury in workers' compensation cases as follows: While a personal injury does not include an occupa tional disease under the Workmen's Compensation Act, yet an injury to the health may be a personal injury. [Citations omitted.] Likewise a personal injury includes a disease resulting from an Page 7 injury....The result of changes in the human body incident to the general processes of nature do not amount to a personal injury. This must follow, even though such natural change may come about because the life has been devoted to labor and hard work. Such result of those natural changes does not constitute a personal injury even though the same brings about impairment of health or the total or partial incapacity of the functions of the human body. .... A personal injury, contemplated by the Workmen's Compensation Law, obviously means an injury to the body, the impairment of health, or a disease, not excluded by the act, which comes about, not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee. [Citations omitted.] The injury to the human body here contemplated must be something, whether an accident or not, that acts extraneously to the natural processes of nature, and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. After carefully reviewing the total evidence in this case, the undersigned concludes that the claimant did not receive injuries to his shoulder and neck arising out of and in the course of his employment with Mid-Continent Bottlers. The record in this case is replete with inconsistent evidence including contradictory testimony regarding the alleged injury date, reporting of the incident to company supervisors, and information given to physicians who have treated/examined the claimant. Some of the claimant's testimony is contradicted by other witnesses and the medical reports. In this regard, Dr. Wirtz, in his deposition, testified that the records were inconsistent with the oral history given to him by the claimant (Ex. F, p. 13, lines 15-21). Dr. Verdeck testified that on two occasions, February 27 and July 31, 1989, claimant indicated that in his opinion, his problems were related to the pop case incident. Furthermore, claimant did not relate that he saw Dr. Yang Ahn on August 20, 1987, for pain in his neck, right shoulder, right hand and at that time was diagnosed with having a C spine radiculopathy (Ex. D, pp. 24-25). On May 11, 1990, Dr. Wirtz testified in a deposition that when he saw claimant on February 7, 1990, he related that he had no prior neck or shoulder problems until the fork lift incident in May of 1988 (Ex. F, pp. 7-8). Finally, Dr. Banks testified that when he first saw the claimant in July 1988, he related his symptoms to the pop case incident. Later on, he said he thought that his neck problems were caused by a defective fork lift seat (Ex. E, pp. 19-20). Page 8 Claimant's inconsistent statements make it impossible to support a recovery in this case. When versions of the injury change, the undersigned cannot determine which version to believe. The record contains numerous inconsistencies and contradictions. Claimant changed his story repeatedly and vacillates even as to his injury date. The record and other testimony convincingly refuted his allegations. Accordingly, based upon the total evidence in this case, claimant has failed to sustain his burden of proof and has not established a causal relationship between his present complaints and a work-related injury on May 17, 1988. The other issues are moot. ORDER THEREFORE, IT IS ORDERED: Claimant takes nothing from these proceedings. Costs of this proceedings are taxed equally to claimant and defendant. Page 9 Signed and filed this ____ day of January, 1991. ______________________________ JEAN M. INGRASSIA DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Thomas M. Wertz Attorney at Law 4089 21st Ave SE Suite 114 Cedar Rapids IA 52404 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 1402.30 Filed January 23, 1991 JEAN M. INGRASSIA before the iowa industrial commissioner ____________________________________________________________ : CARL DAVID, : : Claimant, : : vs. : : File No. 903104 MID-CONTINENT BOTTLERS, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : AETNA CASUALTY & SURETY CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1402.30 Claimant failed to prove by a preponderance of the evidence that he incurred a shoulder and neck injury arising out of and in the course of his employment.