BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : RONNIE SLECHTA, : : Claimant, : File Nos. 908692 and 908693 : vs. : : A R B I T R A T I O N CLOW CORPORATION, : : D E C I S I O N Employer, : Self-Insured, : Defendant. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Ronnie Slechta, claimant, against Clow Corporation, employer and self- insured defendant, to recover benefits on account of alleged injuries of May 2, 1987 and May 7, 1987. This matter came on for hearing before the undersigned deputy industrial commissioner on July 23, 1990, in Des Moines, Iowa, and was considered fully submitted at the close of the hearing. Claimant was represented by Fredd J. Haas. Defendant was represented by Timothy Wegman. The record in this case consists of the testimony of claimant, Ronnie Slechta; Dean McAllister, private investigator; Tom Holmberg, industrial relations manager; joint exhibits 1 and 2; claimant's exhibits 1 through 6 inclusive; and defendant's exhibits A through G. Exhibit G, a video, was placed in the custody of defendant until all appellate periods expire. Defendant presented a brief description of disputes at the time of the hearing. The deputy ordered a transcript of the hearing. Both attorneys submitted excellent posthearing briefs. ISSUES Pursuant to the prehearing report and order submitted and approved June 26, 1990, the following issues are presented for resolution: 1. Whether on May 2, 1987 and/or May 7, 1987, claimant sustained injuries which arose out of and in the course of his employment; 2. Whether the injury is the cause of the disability on which claimant now bases his claim; 3. Whether claimant is entitled to healing period benefits; SLECHTA V. CLOW CORP Page 2 4. The nature and extent of claimant's entitlement to permanent partial disability benefits, if any; 5. Whether claimant is entitled to Iowa Code section 85.27 medical expenses; and 6. Whether claimant gave timely notice pursuant to Iowa Code section 85.23 FINDINGS OF FACT Claimant began working for defendant employer in October 1980 and has held a number jobs during his tenure there. In September 1986, claimant was working in the grinding room, grinding castings, when he first noticed he was having trouble with his hands and fingers getting numb and tingling. Claimant sought no treatment for the problem and, after a few months, it went away until February 1987. At that time, claimant was "driving the semi" and his arms, elbows, biceps, shoulder, and hands began hurting. Claimant contacted the company nurse and filed an accident/injury report. (See, claimant's exhibit 4). Claimant was seen by Stephen M. Mineart, M.D., on February 5, 1987, with complaints of pain, "in the shoulders, elbows, wrists and hands with stiffness; stated that such activities as pouring a pot of water into a coffee pot would cause pain, cause a grabbing sensation, and be unable to complete tipping the pot." (ex. F, page 6, lines 11-16). Dr. Mineart diagnosed fibromyositis (a term he described as including scarring from old muscle or tendon injury) and arthritis from old injuries. Claimant had sustained a gunshot wound to the left shoulder in 1979, a fractured right clavicle in a 1981 motorcycle accident; a right shoulder injury when, during the handcuffing process, his right arm was forced behind his back causing right shoulder problems; and a broken left wrist in 1974. Dr. Mineart tested claimant for rheumatoid arthritis, but ruled that out as a diagnosis when the tests came back negative. On February 10, 1987, Dr. Mineart returned claimant to work under restrictions of no heavy lifting, pushing and pulling for two weeks with a final diagnosis of tendonitis and chronic fibromyositis due to old injuries. Dr. Mineart explained that although it would be his usual practice to inquire about an employee's work activity, he was not familiar with claimant's employment with defendant employer. Claimant was referred to Jack Brindley, M.D., board certified orthopedic surgeon, on February 23, 1987, who prescribed a splint. Claimant was taken off work for a period of time and returned to work April 8, 1987, working until May 2, 1987, when he was: SLECHTA V. CLOW CORP Page 3 A. ...cleaning some castings in one machine; and, like I said earlier, they wouldn't come off the line right so I had to reach up and pull on them. And then there was a lip where it -- on the line right at the end of it where you slide them onto the pallet, and you have to kind of lift up and pull so you can get the casting over the lip. Q. And what happened when you did that? A. I got a -- There was a popping in my neck and the pain shot down my shoulders. (transcript page 50, lines 19-25 and page 51, lines 1-2) Claimant was seen at the Mahaska County Hospital and remained off work until May 5, 1987, although he described continued problems with his shoulder, arms and hands. Claimant went out on strike with other employees on May 7, 1987, and continued to treat with Dr. Brindley, who eventually suggested he be seen at the Mayo Clinic. After returning from the October visit at the Mayo Clinic, claimant continued to treat with Dr. Brindley in 1988, had no treatment in 1989 and last saw Dr. Marc Hines for his problems on March 1, 1989, with pain in the inner aspect of his elbows and burning in the left triceps and in the posterior osseons insertional area. Claimant never returned to work with employer although he participated, at times, on strike duty. On or about June 3, 1987, claimant began working for Jordan Construction doing carpenter work and finishing concrete. Claimant did not believe this was heavy work. Claimant last worked for Jordan Construction in July of 1987 and asserted he quit because, "I just -- The guys -- The guys that I rode with come by one morning, and I just told them I couldn't do it no more, I wasn't going anymore. That was it." (tr. p. 59, lines 16-18). Claimant had not complained of any problems to his supervisors at Jordan Construction and asserted he did not inform the company of his reasons for leaving. Glen Jordan, vice-president of Jordan Construction, described claimant's duties as: A. ...he finished concrete and shoveled concrete, carried reinforcing steel, applied it in place, set forms. Just more or less a common laborer. Q. Did this work entail heavy lifting? A. Yes. (ex. C, p. 4, lines 19-24) SLECHTA V. CLOW CORP Page 4 Jordan also described claimant as a dependable, good worker, who left because: A. The reason he told me that he left, he was going to go back on the picket line there at that manufacturing company where he worked. They were having labor problems then, so he was going back on the picket line. Q. Did Mr. Slechta ever state to you that the reason for him leaving Glen Jordan Construction Company was that he was experiencing pain, and he shouldn't have been there? Do you recall that? A. No. I don't think he ever said it. (exhibit C, page 8, lines 10-20) Claimant has also been employed in self-employment and described having built two porches (decks) and removing metal (gold) from plastic telephone cards using propane torches and nitric acid. Claimant explained being able to "get through" the work he has to perform, but afterwards it may take two or three days of total rest before he can do anything again. Claimant acknowledged his left arm has gotten better since the original problem, but continues to experience problems with his hands, in the middle of his shoulder blades, below the neck, and a numbness in his fingers with more problems on the right. Dr. Brindley first saw claimant on February 23, 1987, with complaints, A. ...of pain in his wrist, elbow, shoulders, had been hurting off and on for some time, but had been worse in the last month. He said that at some times he did have tingling into his hands, but when I saw him he wasn't having any tingling. He said that when he had this pain he would have so much pain that he wasn't able to grab something out of his pocket, such as a cigarette. Said that one arm was as bad as the other. Patient had had a previous gunshot wound in his left shoulder and had had a previous fracture of the left wrist, and also a fracture of the right shoulder area. (Exhibit A, page 5, lines 19-25; page 6, lines 1-7) Tinel's sign was negative over the wrist, but Dr. Brindley found some tingling over the olecranon groove (elbow). Nerve conduction studies were negative and claimant was found to have good range of motion of the neck with no loss of strength. Dr. SLECHTA V. CLOW CORP Page 5 Brindley explained he ordered the tests because, "his symptoms were very vague. This fellow is a real nervous guy. And his symptoms were quite vague." (ex. A, p. 7, lines 17-19). Claimant continued to be symptomatic when Dr. Brindley saw him on March 27, 1987. In his report of that day, Dr. Brindley stated he was unsure of his diagnosis, but would continue physical therapy since it appeared to be helping. On April 3, 1987, claimant reported he was having pain that went down both arms and Dr. Brindley referred claimant to the University of Iowa Hospitals and Clinics. Claimant was seen on April 20, 1987, by John C. Godersky, M.D., Assistant Professor of Neurosurgery at the University of Iowa Hospitals and Clinics. Dr. Godersky was unable to explain or diagnose claimant's problems. When Dr. Brindley next saw claimant on April 27, claimant expressed his dissatisfaction with his visit to Iowa City. Dr. Brindley was also at a loss to explain claimant's symptoms and decided to refer claimant to the Mayo Clinic. Claimant was seen by Robert G. Siekert, M.D., of the Mayo Clinic, on October 13 through 16, 1987. Neurological and orthopedic examinations were conducted and were found to be normal. Dr. Siekert reported that the exact pathophysiologic basis underlying claimant's pain syndrome was not apparent. Dr. Brindley saw claimant again and reported (Brackets appear where the exhibit was illegible.): Patient wasn't very satisfied with his visit to Iowa City, they didn't [ ] [v]ery many answers for him, still has the pain in his arm. Hurts him to pro-[ ] [h]is forearm, this will hurt down into the forearm muscles, it hurts him to [e]xtend his fingers. This sounds like somewhat of a shock like pain so you [ ] if it is not nerve impingement. I took x-rays of the elbow and maybe [ ] is a little spurring off the coronoid anteriorly. He has had an old fracture [ ] forearm and has some dorsal angulation of the distal fragment that doesn't [ ] to be that sereveto [sic] cause problems. I am really at a loss for the cause [ ] symptoms. He also was complaining today that his left knee has bothered him [for] [a]bout two weeeks [sic] and hurt[s] along the medial joint line. It hurts him to squat. [ ]ys he did bump this a couple weeks ago while at work, it is possible that [ ]ght have a meniscus injury. Because he continues to have problems with the [ ] arm I think we will refer him to SLECHTA V. CLOW CORP Page 6 the Mayo Clinic as I really don't ahve [sic] any [ ] answers for him or suggestions. (Joint Exhibit 1, page 7). On January 24, 1989, Dr. Brindley saw claimant and described claimant as having symptoms which were still very vague and, in addition to problems previously described, he had aching and pain in the posterior neck which was a new symptoms. Dr. Brindley was still at a loss for a diagnosis and referred claimant to Dr. Marc Hines. Dr. Hines concluded that claimant "may have some mild cervical radiculopathy" which "may or may not be contributory to his symptoms, it is difficult to state." (ex. 6). Dr. Hines found claimant to have a somewhat confusing history, but found an EMG to be more abnormal than previously described. Dr. Hines opines claimant "may have some mild T.O.S. This rather difficult diagnosis could explain some of the patient's symptomology and some of the milder changes seen on the EMG at this time." (ex. 6). Although Dr. Hines recommended an MRI be done, Dr. Brindley did not see claimant after he was seen by Dr. Hines. On September 16, 1988, Dr. Brindley opined: I think it is possible that Mr. Slechta's myofascial pain in his left is due to an overuse syndrome at the Clow Corporation. I cannot say that there is a reasonable degree of medical probability that this is the cause. ... I do not think it would be wise for the patient to do repetitive type work with his arms or to do heavy lifting over twenty five pounds. I feel that these restrictions probably should be permanent in nature. I feel that the patient's loss of physical function to both arms would be rated at 5% for the left arm and 5% for the right arm. (Joint Exhibit 1, page 15) In his deposition, Dr. Brindley discussed the impairment rating stating it was given: A. Mainly for pain, just pain, and he just did not seem to be getting well. I guess that I for a long SLECHTA V. CLOW CORP Page 7 time believed this patient was really having real symptoms, although I was a little bit skeptical of him. But he came in, kind of like I said, was very nervous and very much in earnest. And even though his symptoms were vague, I thought there might be some strange syndrome going on here. So I guess I felt that he did have a problem that was likely work related, and that's why. But I never did make a definite diagnosis. Q. Now, the five percent to the left arm, would that be just for the pain that he was reporting in the forearm elbow area? A. Yes. And probably -- yes. Q. What about the five percent impairment to the right arm? What is that based on? A. Well, I don't know if that's based just on that subacromial impingement syndrome. When I initially saw this patient he was complaining of very similar symptoms in both arms, very -- what he complained of in his left arm was very similar to what he had in his right arm. Q. Would the five percent impairment to the right side include some of the problems and symptoms he was reporting below shoulder level? A. Yes. Q. I want to ask you about that, because according to your office notes, especially 9-28-88, he indicated that the right shoulder was doing very well, isn't having any problems with that. And I was wondering based upon your office note of 9-28-88 whether the five percent rating which you had given several days before that time would include anything for the right shoulder? Do you understand my question? A. I guess if I had seen him before I made this statement I might not have said that. Q. Might not have said the five percent? A. Yes. Q. As of your last examination of the patient on January 24, 1989 then, did you feel he had any permanent impairment with regard to his right shoulder? SLECHTA V. CLOW CORP Page 8 A. No. Q. Would he still be given a five percent impairment for the right side then in your opinion or would that be reduced? A. No, that would be reduced. Q. Would he have any impairment? A. That's hard to say. I guess my notes are fairly vague. I know that he did complain, just on recall, that he complained of both arms hurting him. I guess he always hurt more on the left. (Exhibit A, page 36, lines 5-25; p. 37, lines 1-25; p. 38, lines 1-8). Dr. Brindley restricted claimant from doing repetitive work with his arms and heavy lifting over 25 pounds. As Dr. Brindley opined repetitive work "probably had brought on claimant's symptoms." Dr. Brindley based these restrictions on subjective findings stating: A. ...I have to admit that I really don't know -- I thought I knew this patient but I'm not sure how -- what he was doing when he wasn't here in my office, you know, giving me his complaints. So I really -- I don't really know the patient. Q. I guess I'm a little confused by that statement. A. Well, I guess when I found out he was in trouble, that kind of swayed my opinion a little bit that, you know, this patient my have kind of a sociopathic type of personality and that he may have been using that when he was dealing with me. Q. Do you know what kind of trouble he was involved in? A. I think it was some kind of drug problem. I think he was selling drugs. Q. And you are not saying that influenced your medical opinions here today, are you? A. I guess that -- to be honest with you, I'd say that it does make me question what -- everything was always vague anyway, and the patient -- on hindsight the patient was always so nervous, acted peculiar. I SLECHTA V. CLOW CORP Page 9 wondered if maybe he wasn't on drugs or something when I saw him. Maybe the drugs were causing some of the symptoms. I don't know. (Exhibit A, p. 39, lines 5-25; p. 40, lines 1-5) On December 14, 1988, Dr. Brindley explained: Please refer to my letter of September 16, 1988. In the second paragraph I said that I cannot say that there is a reasonable degree of medical probability that this is the cause. On thinking about this more I do think that there is a greater than 50% chance that Mr. Slechta's myofascial pain is secondary to the accumulated effects of his work. (Joint Exhibit 1, page 16) Dr. Brindley testified, "I say it is hard to say the symptoms are work related at this point. We don't have a clear- cut diagnosis, but I do think that more than likely his symptoms are related to his work." (ex. A, p. 47, lines 17-20); but also stated: I guess I did say that, that there was a greater than 50 percent chance that Mr. Slechta's myofascial pain is secondary to the accumulated effects of his work. I do think that it's possible that his symptoms are secondary to his work, although at this point I guess I'd have to say that I think -- I'd have to say it's a possibility. I guess with -- in reviewing all of the material here and then just kind of always having a question about this patient when I saw him, wondering what was going on with this guy. I've never seen anybody as nervous as this person. I guess I'd have to say I'd say it's a possibility. (Exhibit A, page 56, lines 17-25; page 57, lines 1-4) Dr. Brindley candidly admitted his opinion was effected by the knowledge that claimant had some drug-related problems. Q. Now, you tell me what effect his problems that you related with regard to drugs now has on your opinion? A. I kind of -- this patient really never had any objective findings. I always thought his symptoms were quite vague. He'd come in one time and complain of one thing, and then he wouldn't be consistent the next time. SLECHTA V. CLOW CORP Page 10 I thought that there was times that he showed up, the reasons he was showing up was because he was concerned about his work situation, and I sometimes felt that possibly he wasn't just showing up for treatment, but just to possibly get his workman's comp. I kind of always -- I was a little skeptical of this patient, I guess. Then I found out he was in trouble, I guess that led me to question the reality of his symptoms. (Exhibit A, page 57, lines 8-22) At his counsel's request, claimant was evaluated by Jerome G. Bashara, M.D., on March 2, 1990. Dr. Bashara opined: DIAGNOSIS: Chronic rotator cuff tendinitis of both shoulders with some mild residual loss of motion, felt to be directly related to his work at his Clow Corporation from a repetitive overuse of both shoulders and upper extremities for a period of time. RATING: I would give the patient a 6% permanent/partial physical impairment of each upper extremity related to his shoulder injuries. RECOMMEND: I would recommend that he not participate in any activity which involved the heavy repetitive use of the upper extremities at or above shoulder level. Other than the restrictions above, I do not feel that any other medical treatment is necessary at the present time. (Joint Exhibit 1, pages 3-4, tab 3) Claimant was examined by John H. Kelley, M.D., on April 12, 1990. Dr. Kelley reported: X-RAYS: I reviewed his x-rays and they are essentially within normal limits. IMPRESSIONS: I am unable to make definite orthopaedic or neurologic examination in this case. He seems to have some findings in the right wrist of a mild carpal tunnel syndrome. He also has some findings of the right elbow of a minor degree of ulnar nerve neuropathy. He was examined by several different specialist[s] in the early stages of this medical problem and from what I could postulate is that he may have had a minor degree of neuropathy, secondary to nerve impingement. He is a very muscular man and this SLECHTA V. CLOW CORP Page 11 might be a factor in causing the myopathy. I would defer to Dr. Socarras for this diagnosis. (joint exhibit 1, pages 4-5, tab 2) Dr. A. Socarras reported that: "Conduction velocity studies of the ulnar nerves are normal. Rt and left median nerve motor conduction studies are normal. Rt. median median nerve distal sensory latency is relatively prolonged. This finding may be compatible with a mild carpal tunnel syndrome on the right. Clinical correlation is recommended." (jt. ex. 1, p. 1, tab 9). Defendant asserts claimant failed to provide notice of the alleged injury of May 7, 1987. While the injury date is coincidental to the date of strike at Clow Corporation, defendant failed to provide any evidence in support of this affirmative defense. Claimant testified he advised defendant of his problems and the record would show defendant employer received medical reports from claimant's treating physicians. Therefore, the affirmative defense must fail. CONCLUSIONS OF LAW AND ANALYSIS Claimant alleges, in this case, two separate injuries: A traumatic injury to his upper back and neck occurring on May 2, 1987, when he was moving casting, and a cumulative injury to his body as a whole occurring on May 7, 1987, the day claimant left employment as a result of the strike, never to return to work there. Of first concern, then, is whether claimant has established the injury and/or injuries arising out of and in the course of his employment. The claimant has the burden of proving by a preponderance of the evidence that the alleged injury actually occurred and that it arose out of and in the course of employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of" refer to the cause or source of the injury. The words "in the course of" refer to the time, place and circumstances of the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 1971). 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 SLECHTA V. CLOW CORP Page 12 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). The claimant has the burden of proving by a preponderance of the evidence that the injuries of May 2, 1987 and May 7, 1987, are 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). 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, 261 Iowa 352, 154 N.W.2d 128 (1967). There is no evidence to dispute claimant's assertion that, while working on May 2, 1987, he felt a "pop" in his neck. Whether this event rises to the level of an injury caused by his employment is, however, a separate issue. That is, merely because claimant has an incident at work, does not necessitate a conclusion that a compensable injury has occurred. Likewise, there is no evidence in the record to refute claimant began to experience symptoms in his extremities while employed with defendant employer. As above, this fact does not necessarily give rise to a compensable injury. In order to answer these issues, attention must first turn to the medical evidence presented. As cited above, the question of whether the work caused the injury is within the domain of expert testimony. Claimant has been treated and/or evaluated by no less than six doctors. Dr. Mineart, who initially treated claimant, diagnosed chronic fibromyositis and tendonitis. He was unable to render any opinion on causal connection since he was not familiar with claimant's employment situation. SLECHTA V. CLOW CORP Page 13 Dr. Godersky of the University of Iowa was unable to explain or diagnose claimant's problems. Dr. Siekert of the Mayo Clinic could not identify any pathophysiologic basis for claimant's symptoms after a neurologic and orthopedic examination. Dr. Kelley found what "seemed" to be mild carpal tunnel syndrome in the right wrist. However, this was almost three years after claimant's alleged injury and after claimant had engaged in other employment. Dr. Kelley phrased his opinions in very equivocal language. His impression was left as being unable to render any opinion in this case. Dr. Bashara does find a causal connection. However, Dr. Bashara saw claimant on only one occasion and based his opinion only on the objective findings of "mild" loss of motion. Again, this examination was done almost three years after claimant's alleged injury date. Dr. Brindley saw and treated claimant for the longest period of time. A careful review of Dr. Brindley's opinions on causal connection shows he has wavered on the issue throughout the course of the treatment. On April 7, 1987, as throughout his treatment of claimant, Dr. Brindley could not identify the cause of claimant's symptoms, but thought it more than likely they were work related even without a clear diagnosis. In September 1988, Dr. Brindley thought it "possible" that claimant's pain was due to overuse at Clow Corporation, but could not say that there was a reasonable degree of medical probability that this was the cause. Dr. Brindley clarified that opinion in December 1988 by stating that there is a greater than 50 percent chance claimant's pain was secondary to the accumulated effects of his work. (Dr. Brindley did not identify what work.) In his testimony, Dr. Brindley candidly admitted his inability to treat claimant effectively. Dr. Brindley described claimant as presenting "vague" symptoms that would change between visits and "jump around." Dr. Brindley wavered between an opinion that the repetitive work "probably" caused the symptoms to his final opinion that: ...although at this point I guess I'd have to say that I think -- I'd have to say it's a possibility. I guess with -- in reviewing all of the material here and then just kind of always having a question about this SLECHTA V. CLOW CORP Page 14 patient when I saw him, wondering what was going on with this guy. I've never seen anybody as nervous as this person. I guess I'd have to say I'd say it's a possibility. (Exhibit A, page 56, lines 22-25; page 57, lines 1-4) As cited above, a possibility of causal connection is insufficient. The undersigned concludes the most informed medical opinion in this case comes from Dr. Brindley who saw and treated claimant over an extensive period of time. Dr. Brindley's opinion fails to establish a causal connection between claimant's problems and his employment. The greater weight of medical evidence fails to show claimant sustained an injury which arose out of and in the course of employment on either May 2 or May 7, 1987. Therefore, claimant shall take nothing as a result of these proceedings. ORDER THEREFORE, IT IS ORDERED: Claimant shall take nothing as a result of these proceedings. Costs are assessed against defendant pursuant to rule 343 IAC 4.33, including the cost of the attendance of the court reporter at hearing and the cost of the transcript, Iowa Code section 86.19(1). Signed and filed this ____ day of December, 1991. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Fredd J. Haas Attorney at Law 5001 SW 9th St. SLECHTA V. CLOW CORP Page 15 Des Moines, Iowa 50315 Mr. Paul Thune Mr. Timothy W. Wegman Attorneys at Law 300 Fleming Bldg 218 6th Ave. PO Box 9130 Des Moines, Iowa 50306-9130 51100 51401 51402.20 51402.30 51402.40 51402.60 52206 52209 52401 Filed December 30, 1991 Walter R. McManus, Jr. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : RONNIE SLECHTA, : : Claimant, : File Nos. 908692 and 908693 : vs. : : A R B I T R A T I O N CLOW CORPORATION, : : D E C I S I O N Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 51100 51401 51402.20 51402.30 51402.40 51402.60 52206 52209 Claimant failed to prove injury arising out of and in the course of employment either as a traumatic injury, a cumulative injury or an aggravation of a preexisting condition. Six doctors examined claimant and reported. Four of them could not diagnose what was wrong with claimant. The treating orthopedic physician wavered through the evidence from him and finally concluded that the work only "possibly" was the cause of claimant's complaints. Claimant's one time evaluator found causal connection, but gave no explanation that would support his opinion. 52401 Defendant alleged lack of notice, but presented no evidence of it. The notice defense was not proven. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ALAN LILLIBRIDGE, Claimant, VS. File No. 908697 DAKOTA PORK INDUSTRIES, A R B I T R A T I 0 N Employer, D E C I S I 0 N and CNA, Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration wherein Alan Lillibridge seeks compensation for healing period, permanent partial disability and payment of medical expenses based upon an alleged injury which allegedly occurred on or about February 6, 1989. The case was heard and fully submitted at Sioux City, Iowa on January 11, 1990. The record in the proceeding consists of jointly offered exhibits 1 through 14 and testimony from Shirley Bauer. FINDINGS OF FACT Alan Lillibridge commenced employment at Dakota Pork Industries on February 6, 1989 as shown in exhibit 9. He worked until February 15, 1989 on which day he did not show up or call in. He worked again on February 20, 1989 and has not since showed up for work or called in other than to quit on March 6, 1989. On February 15, 1989, Lillibridge sought treatment from Michael A. Jennings, M.D., who was claimant's family doctor and also one of the authorized company physicians for Dakota Pork Industries. Dr. Jennings noted that claimant had carpal tunnel syndrome of the right hand and authorized claimant to resume working with a restriction against repetitive motion of the right wrist. Dr. Jennings indicated that the injury was related to claimant's repetitive work (exhibit 1). After leaving Dakota Pork LILLIBRIDGE v. DAKOTA PORK INDUSTRIES Page 2 Industries, Lillibridge obtained employment in Council Bluffs, Iowa where he worked cleaning cars for Tim O'Neill Chevrolet, Inc. The employment started on February 28, 1989 and ran through May 11, 1989 (exhibit 10). On February 23, 1989, claimant sought treatment for the carpal tunnel condition at Cogley Medical Associates, P.C., in Council Bluffs, Iowa. EMG tests were conducted on March 25, 1989 at which time it was indicated that claimant had bilateral carpal tunnel syndrome. Michael K. Zlomke, M.D., reported on July 11, 1989 that claimant has bilateral carpal tunnel syndrome which, according to the history provided, was related to the work that claimant performed at Dakota Pork. Surgery was recommended (exhibit 4). Claimant subsequently had surgery performed on the right hand on September 12, 1989 (exhibits 6 and 14). Claimant did not appear to testify at the hearing. There is no evidence in the record regarding the exact activities which he performed when employed at Dakota Pork Industries. According to Shirley Bauer, the plant nurse, the pre-employment physical which was performed would not have disclosed a carpal tunnel syndrome condition if it had been present at the time claimant was hired. Those who work in packinghouses appear to have a relatively high incidence of carpal tunnel syndrome. The condition is one which, however, does not typically develop in a period of time as short as the time that Lillibridge was employed at Dakota Pork Industries. From the medical records in evidence, it cannot be determined whether or not any of the physicians who saw Lillibridge were aware that he had held the job for only approximately a week. The record is devoid of claimant's work history prior to his employment at Dakota Pork Industries. It is certain, however, that if a person had preexisting carpal tunnel syndrome, work which required use of the hands would certainly aggravate the symptoms as occurred when claimant was employed at Tim O'Neill Chevrolet. It is therefore found that the evidence fails to show it to be probable that the work Alan Lillibridge performed at Dakota Pork Industries in February 1989 was a substantial factor in producing the bilateral carpal tunnel,syndrome which he developed. The record fails to show it to be probable that the employment at Dakota Pork Industries substantially aggravated what was probably a preexisting condition other than temporarily. The evidence fails to show it to be probable that any temporary aggravation was of LILLIBRIDGE v. DAKOTA PORK INDUSTRIES Page 3 sufficient magnitude to be disabling. Dr. Jennings did not take claimant off work, but allowed him to return to work with restrictions. Work complying with the restrictions was apparently available as claimant did return to work for one day on February 20, 1989. CONCLUSIONS OF LAW Claimant has the burden of proving by a preponderance of the evidence that he received an injury on or about February 6, 1989 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 words "arising out of" refer to the cause or source of the injury. McClure v. Union County, 188 N.W.2d 283, 287 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The "arising out of" requirement is satisfied by showing a casual relationship between the employment and the injury. Sheerin v. Holin Co., 380 N.W.2d 415, 417 (Iowa 1986). An employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 (1960). See also Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). It has previously been found that the evidence has failed to prove, by a preponderance of the evidence, that it is probable that claimant's carpal tunnel syndrome was caused by the employment at Dakota Pork or aggravated by that employment sufficiently to cause it to be disabling. The record shows nothing more than an aggravation of the symptoms of what was most likely a preexisting condition. The record does not show the employment at Dakota Pork to have in any manner changed the nature of what was most likely a preexisting condition. It is therefore concluded that claimant is not entitled to any recovery in this case. LILLIBRIDGE v. DAKOTA PORK INDUSTRIES Page 4 ORDER IT IS THEREFORE ORDERED that claimant take nothing from this proceeding. IT IS FURTHER ORDERED that the costs of the action are assessed against the claimant pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 25th day of June, 1990. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Harry H. Smith Attorney at Law P.O. Box 1194 Sioux City, Iowa 51102 Mr. Michael P. Jacobs Attorney at Law 300 Toy Bank Building Sioux City, Iowa 51101 5-1402.30, 5-1402.40 Filed June 25, 1990 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER ALAN LILLIBRIDGE, Claimant, VS. File No. 908697 DAKOTA PORK INDUSTRIES, A R B I T R A T I 0 N Employer, D E C I S I 0 N and CNA, Insurance Carrier, Defendants. 5-1402.30, 5-1402.40 Claimant, who failed to appear at hearing and testify, failed to carry the burden of proving injury arising out of and in the course of employment or any disability resulting from any such injury. Page 1 before the iowa industrial commissioner ____________________________________________________________ : DAVID L. FANK, : : Claimant, : : vs. : File No. 908778 : MIDWEST WHEEL COMPANIES, : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : ALLIED GROUP INSURANCE, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case Claimant David L. Fank seeks benefits under the Iowa Workers' Compensation Act upon his petition in arbitration against his employer, Midwest Wheel Companies, and its insurance carrier, Allied Group Insurance Company. The parties agree that he sustained a work injury attributable to that employment on February 3, 1989. The cause came on for hearing in Mason City, Iowa, on January 21, 1992. The record consists of joint exhibits 1 through 26, 28, 29, 31 and 33, claimant's exhibits 34 and 35, defendants' exhibits A, B and C, and the testimony of claimant, David McGuire and Randy Conrad. issues The parties have stipulated that claimant sustained an injury arising out of and in the course of his employment with Midwest Wheel Companies on February 3, 1989, and that the injury caused temporary disability from February 3, 1989, through June 6, 1990. The parties have further stipulated to the rate of compensation, agree that all requested medical benefits have been or will be paid by defendants and that certain benefits have been voluntarily paid prior to hearing. Issues presented for resolution include: 1. Whether the work injury caused permanent disability; and, if so, 2. The nature and extent thereof. findings of fact Page 2 The undersigned deputy industrial commissioner finds: David Fank, 32 years of age at hearing, is a 1978 high school graduate, but earned relatively low grades. Post high school, he took business courses at a local community college for less than one quarter before quitting to accept work. He was not doing well academically at the time. Before his community college efforts, claimant worked in customer service and the shipping department for a large manufacturing concern. The work required lifting in the 40-60 pound range. After leaving school, he worked for approximately two years in warehouse, shipping and stocking for another manufacturing concern. Lifting requirements were frequent, up to 60 or 80 pounds. After this business closed, claimant was unemployed for a time, but did some intermittent cement finishing with an uncle. Claimant next worked a temporary job for a few months entering stock invoices into a computer data base. His next job, with Wellborn Industries, lasted approximately two years. This involved light work on an assembly line, dipping control boards into an acid solution. He next worked for approximately one year behind the counter at a gas station, also light work. In December 1985, claimant took work with Midwest Wheel Companies, part time at first, full time 4-6 months later. He started in the warehouse, then drove a delivery van in northern Iowa and Minnesota. Both jobs required frequent lifting and handling of heavy truck parts. Extensive medical records reflect a history of varied and relatively frequent health complaints, some of which involved the lower back. In July 1981, claimant reported occasional pulling discomfort in the lower back with heavy lifting. In January 1983, he complained of lower back pain over the last year following a fall, but with no radiation of pain into the lower extremities. Claimant sought treatment on several more occasions in early 1983 and was treated conservatively, including with two weeks of bed rest. Complaints continued into April and May, and again in November 1983. Back pain was again reported in May 1984 and multiple lumbar spine x-rays were taken in May of that year, read as normal. Nonetheless, claimant continued to work without medical restriction. On February 3, 1989, claimant was helping in the warehouse during inventory. While sitting on the top shelf of a parts rack stacking boxes, approximately six feet up, the wooden shelf broke and he fell. Claimant landed on his right knee and head and believes he bumped his back against the rack. Many boxes of equipment also fell on him. Page 3 Mr. Fank was admitted to St. Joseph Mercy Hospital on the same day with complaints of right knee pain, some low back pain and a mild headache. Lumbar spine films were negative. It was originally felt that he sustained a nondisplaced interior fracture of the right patella and he was placed in a long leg cast. By February 5, claimant noted severe worsening of back pain. This proved a chronic problem. He was discharged from the hospital on February 8, but over the next few months, back pain increased and began radiating into the buttocks. Knee complaints also continued. On October 13, 1989, claimant underwent arthroscopic surgery to the right knee; post-operative diagnosis was of right knee superolateral synovial snapping band with medial synovial shelf. The surgeon was Sterling J. Laaveg, M.D. On October 24, 1990, Dr. Laaveg noted that claimant still had occasional aching and some patellofemoral crepitus, but range of motion was normal and ligaments were stable. Dr. Laaveg assessed a three percent impairment rating of the right knee, which he converted to a one percent "whole person" rating. Dr. Laaveg joined in the medical restrictions suggested by neurosurgeon David W. Beck, M.D., being a 50-pound lifting restriction, but did not impose any additional restrictions relative the knee. By December 1989, claimant's back pain had continued to worsen and he developed spasms over the posterosuperior iliac crest on the right. Magnetic resonance imaging on December 6 revealed a herniated disc at L4-5. An epidural injection on December 11 was unsuccessful and led to increased pain. On January 11, 1990, Dr. Beck performed a percutaneous discectomy which proved, after arduous physical rehabilitation, to be quite successful. Dr. Beck released claimant to return to work with a 50-pound weight restriction for as many hours as he could handle effective June 6, 1990. Dr. Beck saw David Fank again on September 17, 1990. Claimant continued to have intermittent low back pain, but no radiating pain. Range of motion was limited, but claimant was neurologically intact. Dr. Beck's final impairment rating was eight percent of the body as a whole. On February 25, 1991, Dr. Beck wrote that the entire impairment was directly related to the 1989 work injury. Midwest Wheel did not accept claimant back as an employee after he was released because all jobs in the plant require lifting in excess of 50 pounds. However, substantial vocational rehabilitation services were provided, although without notable success. Claimant undertook an extensive job search in Mason City, Forest City, Des Moines and southern Minnesota, contacting literally hundreds of employers. Mr. Fank also experienced a number of personal problems at this time, including a dissolution of marriage and personal bankruptcy. He has suffered from some depression. David McGuire, a vocational Page 4 rehabilitation worker, made numerous efforts to help claimant find work and testified that Mr. Fank "really tried" for some ten months to meet his agreed commitment of ten job contacts and three interviews per week, but "just didn't have the luck" to find suitable work. Services were eventually discontinued in approximately June or July 1991 when claimant, discouraged and preoccupied by his father's severe health problems, experienced a substantial decline in motivation. McGuire finds that claimant's medical restrictions would not much affect the possibility of obtaining a sales job (as he wants), but would entail a loss of access to 25 percent or more of delivery jobs. Claimant also sought help from the Iowa Division of Vocational Rehabilitation Services, including a complete evaluation at the facility operated by that agency. Psychological testing was done, including administration of the Wechsler Adult Intelligence Scale-Revised. Results suggested intellectual functioning within the low average range, with significant weakness in overall intellectual efficiency. Test results were within the division's current guidelines for the classification of Borderline Intellectual Functioning. It was generally felt by DVRS that claimant's further education potential is limited and that he may be overly optimistic as to his ability to function in certain jobs requiring clerical and arithmetic skills. Evaluator Clorida Ferguson concluded that claimant lacked adequate academics for his stated goals and had limited potential to improve his skills. For example, he reads at the ninth grade level and performs math at the seventh grade level. Mr. Fank has had terrible luck in obtaining suitable work. He worked on a road construction crew for a few days in July 1991 and had accepted work as a computer sales representative on a probationary status as of December 1, 1991. Unfortunately, claimant has sold only one computer and was not paid either in December or January because of the precarious financial condition of his employer. It seems unrealistic to believe that this job will prove the answer. conclusions of law The parties dispute causal nexus to permanent disability and the nature and extent thereof. There is clearly permanent disability, as witness Dr. Laaveg's impairment rating to the right leg. The more serious question is whether claimant's back surgery and related medical restriction bears the same causal nexus. This is claimant's burden to prove by a preponderance of the evidence. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). A possibility is insufficient to meet that burden; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). Page 5 Even though claimant has a history of back complaints, the record shows that he was essentially free of symptoms in the several years prior to his work injury, and without dispute was able to work a heavy job without restriction. Dr. Beck, the treating surgeon, has opined without contradiction that claimant's impairment is wholly related to the work injury. It is so found. An injury to the back is an injury to the body as a whole. Thus, the entire injury must be compensated industrially. 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, expe rience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disabil ity. This is so as impairment and disability are not syn onymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional Page 6 impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial dis ability. See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 529 (App. March 26, 1985); Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 654 (App. February 28, 1985). Claimant has limited academic skills and a work history in shipping and warehouse work, assembly line work, data entry, sales and parts delivery. A 50-pound weight restriction disables claimant from many of the specific positions he has previously held, but would not necessarily disable him from similar jobs with other businesses. Obviously, for example, not all delivery work entails weights of greater than 50 pounds; but some does. Claimant is a high school graduate, but was a poor student and has limited academic skills. He is outgoing and may well prove to be a success in the sales profession, but this remains to be seen. Claimant initially demonstrated commendable motivation in job seeking, but his zeal has diminished as he has contacted literally hundreds of employers without success. It is unlikely that all of his failures can be attributed to the work injury, since a 50-pound lifting restriction is substantially less onerous than is the case with many back injuries considered by this agency. Still, a history of surgical back injury is likely to diminish claimant's attractiveness as a potential employee to at least some employers. It is commendable that defendants provided vocational rehabilitation services. Nonetheless, Midwest Wheel was unable to provide further work due to medical restrictions stemming directly from the work injury. In and of itself, the failure to provide continuing employment may justify an award of industrial disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). Considering then these factors in particular and the record otherwise in general, it is held that claimant has sustained a permanent industrial disability equivalent to 30 percent of the body as a whole, or 150 weeks. order THEREFORE, IT IS ORDERED: Defendants shall pay claimant one hundred fifty (150) weeks of permanent partial disability benefits at the stipulated rate of one hundred ninety-three and 80/100 Page 7 dollars ($193.80) per week commencing June 7, 1990. Any accrued benefits shall be paid in a lump sum together with statutory interest pursuant to Iowa Code section 85.30. Defendants shall have credit for all benefits voluntarily paid prior to hearing. Costs, including page 2 (but not page 4) of claimant's exhibit 26, are assessed to defendants pursuant to rule 343 IAC 4.33. Defendants shall file claim activity reports as requested by the agency pursuant to rule 343 IAC 3.1. Signed and filed this ______ day of ____________, 1992. ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert S. Kinsey III Attorney at Law 214 North Adams P.O. Box 679 Mason City, Iowa 50401 Mr. Richard R. Winga Attorney at Law 300 American Federal Building P.O. Box 1567 Mason City, Iowa 50401 5-1803 Filed March 24, 1992 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : DAVID L. FANK, : : Claimant, : : vs. : File No. 908778 : MIDWEST WHEEL COMPANIES, : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : ALLIED GROUP INSURANCE, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 5-1803 Industrial disability determined. Page 1 before the iowa industrial commissioner ____________________________________________________________ : LARRY HECHT, : : Claimant, : File No. 909093 : vs. : : A R B I T R A T I O N WILSON FOODS CORPORATION, : : D E C I S I O N Employer, : Self-Insured, : Defendant. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Larry Hecht against his former employer, Wilson Foods Corporation, on account of a stipulated injury of November 21, 1988. The only disputed issue in the case is the extent of permanent partial disability which has resulted from that injury. The record in the proceeding consists of testimony from Larry Hecht, Marie Hecht and Jerry Davis. The record also contains jointly offered exhibits 1 through 25 and 33, as well as defendant's exhibit A. findings of fact Larry Hecht is a 53-year-old high school graduate who had been employed by Wilson Foods since 1968. Prior to that time he had engaged in a variety of occupations including manufacturing, truck driving and packing house work. Larry has no post-high school formal education. He has performed a variety of jobs during the course of his employment with Wilson Foods. Commencing in 1988 Larry began developing problems with his left shoulder and hand. After a period of conservative treatment was unsuccessful, he was referred to orthopedic care and eventually came under the care of Scott B. Neff, D.O. On or about February 8, 1989, Dr. Neff performed surgery in the nature of subacromial decompression, excision of the distal clavicle and rotator cuff repair on Larry's left shoulder. During the same procedure, the left carpal tunnel release was also performed. After an extended period of recovery, Larry was released to return to work with restrictions consisting of maximum lifting of 50 pounds, 25 pounds for frequent lifting and a restriction that he work at or below chest level (exhibit 5, page 1; ex. 12, p. 3). An impairment rating of 15 percent of the upper extremity, an amount equivalent to 9 percent of the body as a whole was assigned by Dr. Neff. None of the impairment was attributed to the carpal tunnel condition (ex. 5, p. 2). Larry has also been evaluated by orthopedic surgeon Page 2 A.J. Wolbrink, M.D. Dr. Wolbrink provided an impairment rating of 13 percent of the left upper extremity due to the shoulder and 7 percent due to the carpal tunnel condition for a combined impairment of 11 percent of the whole person (ex. 6, pp. 19-20). Dr. Wolbrink indicated that it would be advisable, though not essential, for Larry to discontinue his work at Wilson Foods in order to lessen the potential for further problems with his left shoulder and arm (ex. 6, p. 18). When Larry was released to return to work following his surgery, he initially was placed on a cleanup crew. After approximately a month he was assigned to a job in the deli-light department where he wiped the meat away from the sealing surface for packaged meats. The job was well within the activity restrictions originally recommended by Dr. Neff. At the start of each day, however, Larry handled heavier pieces of meat. On occasion he was taken off the wiping job and assigned other duties so others could be trained to perform the wiping job. Larry was able to perform his work but experienced considerable pain. On or about April 1, 1991, Larry resigned from his position with Wilson Foods and began drawing social security retirement benefits. Larry's decision to retire was reasonable in view of the recommendations from Dr. Wolbrink. He was eligible for retirement benefits from Wilson Foods and also eligible for social security retirement benefits. It was quite reasonable for him to retire rather than risk further damage to his shoulder but it was not medically necessary. Since retiring, Larry continues to experience pain in his shoulder. He has obtained a part-time job at Shoney's Restaurant, but at hearing stated that even the activity associated with that job was becoming unbearable. He indicated that if he had not been injured, he would have preferred to continue working until at least age 65. His retirement at age 62 has produced a reduction in his monthly social security retirement benefit. Larry had sufficient seniority that it was unlikely that he would have been bumped out of his wiping job or other jobs which fit within his medical restrictions. The injury and shoulder condition is found to have prompted Larry to retire sooner than he would have otherwise retired. His comment to a doctor about wanting to work two more years, is noted to be the amount of time that would be necessary to qualify for social security benefits. It is not necessarily an indication of a long-standing plan to retire at age 62 irregardless of his condition of health. It is as easily interpreted to mean a desire to salvage enough physical capacity to continue working until the age at which he would be qualified for retirement benefits. It does not refute his testimony that he would have preferred to continue working until at least age 65 if he had not been injured. conclusions of law Page 3 Since claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City 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. Larry Hecht is in the age range where individuals in our society typically retire. A person's physical health is often a factor in determining the precise date of retirement. The early retirement has caused Larry to lose actual earnings although much of the loss has been replaced by social security and the employer's pension plan. It has also caused him to experience a reduction in what the monthly amount of social security would be if he had continued working until age 65. The early retirement has produced an increase in his expenditure for medical insurance. His decision to retire at age 62 was not improvident. It does not indicate any lack of motivation to be employed. It is merely what many would term the smart thing to do under the circumstances. It was not, however, mandated by disability or lack of ability to continue working. When all the pertinent factors of industrial disability are considered, it is determined that Larry Hecht has sustained a 15 percent reduction in his earning capacity as a result of the November 21, 1988 injury. Under the provisions of Iowa Code section 85.34(2)(u) he is, therefore, entitled to recover 75 weeks of permanent partial disability compensation. He has previously been paid 45 weeks and is, therefore, entitled to an additional 30 weeks of benefits. According to the stipulation made in the prehearing report, those additional benefits should be payable commencing payable May 22, 1990, after credit is given for the previously paid benefits. order Page 4 IT IS THEREFORE ORDERED that the employer pay Larry Hecht thirty (30) additional weeks of compensation for permanent partial disability at the stipulated rate of two hundred forty and 33/100 dollars ($240.33) per week payable commencing May 22, 1990. The entire amount thereof is past due and owing and shall be paid to Hecht in a lump sum together with interest pursuant to section 85.30 of the Code of Iowa. It is further ordered that the costs of this action are assessed against the employer pursuant to rule 343 IAC 4.33. It is further ordered that the employer file claim activity reports as requested by the agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of December, 1992. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Steve Hamilton Attorney at Law PO Box 188 Storm Lake, Iowa 50588 Mr. David L. Sayre Attorney at Law 223 Pine St. PO Box 535 Cherokee, Iowa 51012 Page 1 51803 Filed December 14, 1992 Michael G. Trier before the iowa industrial commissioner ____________________________________________________________ : LARRY HECHT, : : Claimant, : File No. 909093 : vs. : : A R B I T R A T I O N WILSON FOODS CORPORATION, : : D E C I S I O N Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 51803 Sixty-three-year-old claimant with torn rotator cuff who, following treatment, worked approximately one and one-half years and then retired awarded 15 percent permanent partial disability. Permanent impairment rating was in the range of 10 percent and usual restrictions of medium work at or below chest level had been imposed. Claimant had been able to continue working but experienced considerable pain in doing so. Decision to retire at age 62 found to be reasonable. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ MIKE LaBARGE, Claimant, vs. File No. 909191 FAIRVIEW BODY SHOP, A P P E A L Employer, D E C I S I O N and UNION INSURANCE CO., Insurance Carrier, Defendants. ____________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed November 6, 1991 is affirmed and is adopted as the final agency action in this case. Claimant and defendants shall share equally the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of October, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Thomas J. Currie Attorney at Law P.O. Box 998 Cedar Rapids, Iowa 52406-0998 Mr. Richard C. Garberson Attorney at Law P.O. Box 2107 Cedar Rapids, Iowa 52406 9998 Filed October 30, 1992 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSSIONER ____________________________________________________________ MIKE LaBARGE, Claimant, vs. File No. 909191 FAIRVIEW BODY SHOP, A P P E A L Employer, D E C I S I O N and UNION INSURANCE CO., Insurance Carrier, Defendants. ____________________________________________________________ 9998 Summary affirmance of deputy's decision filed November 6, 1991. Page 1 before the iowa industrial commissioner ____________________________________________________________ : MIKE LaBARGE, : : Claimant, : : vs. : : File No. 909191 FAIRVIEW BODY SHOP, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : UNION INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Mike LaBarge, claimant, against his former employer, Fairview Body Shop, and its insurance carrier, Union Insurance Company. The matter came on for hearing before the undersigned on September 16, 1991, at Cedar Rapids, Iowa. The evidence in the case consists of the testimony from claimant; Dave Dirks, owner of the Fairview Body Shop; William John Robb, M.D.; claimant's exhibits 1 thorough 32; and, defendants' exhibits A-E and G-AA. issues In accordance with the prehearing report submitted by the parties at the hearing, the following issues are presented for resolution: 1. Whether claimant sustained an injury on January 24, 1989, which arose out of and in the course of his employment with the Fairview Body Shop; 2. Whether there is a causal relationship between the alleged injury and claimant's disability; 3. Whether claimant is entitled to temporary total or healing period benefits or permanent partial or permanent total disability benefits; 4. Whether claimant is entitled to medical benefits pursuant to Iowa Code section 85.27; and, 5. Whether claimant is entitled to penalty benefits as governed by Iowa Code section 86.13(4). findings of fact Page 2 The undersigned deputy, having reviewed all of the evidence received, finds the following facts: Claimant was born on November 30, 1959. He graduated from Anamosa High School in Anamosa, Iowa, in 1978. Since 1979, claimant has worked for the Fairview Body Shop in Anamosa, Iowa. For ten years, he worked as an independent contractor, and became an employee of the body shop in January 1989. Claimant was employed as a "body" person, and his work consisted of repairing dents and replacing parts in cars and pickups. He did not do any mechanical work, only body work. Claimant described the physical requirements of the job as requiring light to heavy lifting, from 5 to 100 pounds. He was also required to stand, which varied between 5 to 10 minutes to two hours. As a body person, he was required to bend, kneel, stoop, push and pull. Claimant testified that as an employee, he earned $6 per hour and worked between 38 and 43 hours per week. David Dirks, the owner of the shop, stated while he agreed claimant earned $6 per hour, claimant usually worked between 25 and 30 hours per week. No records were produced to corroborate either party's testimony. Claimant testified that on January 24, 1989, he arrived at work between 8:30 and 9:00 a.m. Claimant stated he felt fine, and had no back, leg or hip problems. In the morning, claimant was busy painting, sanding and putting parts on a vehicle. He took a lunch break between 11:30 a.m. and 12:30 p.m. He returned to work, but early that afternoon had to drive downtown to get additional sandpaper. As he returned from the errand, he drove his truck into the driveway and parked. He got out of the truck, walked approximately 15 feet when he slipped and fell on the ice. Claimant fell to the ground, and landed on his left hip. As he got up, he noticed pain in the left hip which he described as "bruised." He walked into the shop, but did not tell his employer because claimant did not feel the fall had caused any serious problems. Claimant continued to work throughout the day. He noted that when he sat down, he would get stiff and sore. Claimant left work at approximately 5:00 p.m., went home to eat dinner, and spent the rest of the evening watching television. The next morning, claimant noted he was stiff and sore in the left hip, but described no other symptoms. He went to work and worked his normal shift, returned home to eat dinner, and spent the remainder of the evening watching TV. He did not tell anyone about the accident the day before. On January 26, 1989, claimant again noted stiffness and soreness in the left hip. He worked his normal shift, left the body shop at approximately 5:00 p.m., returned home and ate dinner. On this evening, claimant went bowling, as he was a member of a league. Claimant stated that during the first of three games, he had no difficulty bowling, although he did feel stiff and sore in the left hip. Claimant, for the first game, had a score of 223. The second game, claimant felt more soreness Page 3 and tightness in the left hip, but finished the game with a score of 179. Claimant was unable to bowl the third game due to stiffness and soreness, and a replacement, Jim Holub, became the team's replacement bowler. Claimant testified that at this point his symptoms were gradually becoming worse. Claimant left the bowling alley at approximately 11:30 p.m. and did not require assistance. He stated that he had no difficulty driving home, and when he arrived at his house, he went to bed. On January 27, 1989, claimant awoke with stiffness and soreness of the left hip, but displayed no other symptoms. He called his employer and told Mr. Dirks he would be unable to work due to stiffness and soreness in the left hip. Claimant stated that he would be in the next day to work. Mr. Dirks testified that when claimant called in on that date, he stated, "Dave, I'm not going to be in today because I threw my back out at the bowling alley." Claimant stated that during the rest of the day, he took Advil on a regular basis, laid around the house, and did not take any physical activities. That evening, he fell asleep on the couch and woke up at approximately 2:30 a.m. Claimant stated that when he went to get up to proceed to his bedroom, he could not feel anything from his waist down. Claimant woke up his parents who called an ambulance to take claimant to the Anamosa Hospital in Anamosa, Iowa. He was sent back home, and returned by ambulance the next morning and was subsequently transferred to Mercy Medical Center in Cedar Rapids, Iowa, on January 31, 1989. Claimant was seen by his family, Warren Verdeck, M.D., an orthopedic specialist who referred claimant to James LaMorgese, a neurosurgeon, who began treating claimant on January 31, 1989, at the Mercy Medical Center in Cedar Rapids (Defendants' Exhibits O, P, Q). Dr. Verdeck was the first physician to diagnose possible cauda equina syndrome, and the diagnosis was confirmed by Dr. LaMorgese shortly after claimant's admittance to Mercy Medical Center (Def. Exs. S and T). Claimant was scheduled for emergency surgery on the evening of January 31, 1989. The surgery revealed a large herniated disk at the L3-4 level. A large extruded fragment was removed (Def. Ex. U). Claimant was discharged from the hospital on February 13, 1989, with a final diagnoses of a central extruded disk at the L3-4 level; cauda equina syndrome; and, lumbar laminectomy at the L4 level. Upon neurological examination, the claimant displayed no strength in the musculature around the ankles and into the feet and toes. Knee and ankle reflexes were absent bilaterally, and there was decreased sensation around the buttocks from S1 to the S5 level. There was severely decreased sensation on the bottom of claimant's feet, which extended laterally up the leg to the calf area. He also displayed markedly decreased rectal tone without significant feeling. He was transferred to St. Luke's Hospital for intensive rehabilitation (Def. Ex. X). Claimant received 33 physical therapy treatments while an inpatient at St. Luke's Rehabilitation Unit between Page 4 February 13 and March 3, 1989. Some goals were met, although claimant still displayed difficulty in walking long distances, and his ability to stand unaided was fair. The physical therapist at St. Luke's recommended further physical therapy as an outpatient at the Anamosa Community Hospital (Claimant's Exhibit 14, pages 1 through 121). In April of 1990, claimant returned to Dr. LaMorgese, who made the following notations: The patient still has a complete footdrop on the right. The patient does have significant weakness in the gastocnemius muscle on the left which I rated as 4 out of 5 strength. The patient has numbness around the buttocks, groin, and penis areas. He also has decrease sensation in the right ankle and foot and some mild decreased sensation in the right ankle and foot and some mild decreased sensation in the left foot. The patient still has some stress incontinence. The patient does have to digitally disimpact himself in the mornings. The patient is walking with the aid of one Canadian crutch. The patient is attending physical therapy once a month at this point. (Cl. Ex. 11, p. 8) Dr. LaMorgese rechecked claimant in October 1990 and his finds were the same as in April of 1990 (Cl. Ex. 11, p. 8). From May of 1989 through July of 1991, Dr. LaMorgese rendered several opinions with respect to the cause of claimant's condition and claimant's disability. He concluded that claimant's extruded disk was due to the fall in the parking lot, that the disk extrusion led to the cauda equina compression, and that claimant had sustained a functional impairment of 40 percent of the body as a whole (Cl. Ex. 11, pp. 1 through 6). He restricted claimant's lifting ability to 15-20 pounds with limited bending and stooping, and walking not more than two hours at a time (Cl. Ex. 17, p. 56). Dr. LaMorgese was deposed for the case August 26, 1991 (Cl. Ex. 20). Dr. Verdeck, who treated claimant early on in the medical process, voiced a different opinion: Mr. Garberson related the history that the patient had fallen on Tuesday afternoon, the 24th of January, 1989---one week before seeing me. This was apparently not reported to his employer. He then worked the remainder of Tuesday, all of Wednesday, and all of Thursday, with no history of any problems at work. Allegedly then, during bowling on Thursday night, the symptoms developed. Based on the above history as given to me it would seem more probable that his herniated disk was caused from bowling, rather than the fall of 2 1/2 days earlier. Page 5 (Cl. Ex. 11, p. 10; Def. Ex. Y) W. John Robb, M.D., an orthopedic specialist, reviewed the case and testified at the hearing. In essence, his testimony is that claimant's description of the fall wherein he landed on his left hip would not cause the disk extrusion and subsequent cauda equina syndrome. Dr. Robb explained that the most common causes of herniated discs are bending over and lifting; whiplash of the low back; and, a fall whereby a person lands on both buttocks and "jams" the spine. He stated that bowling using a 16 pound ball produces the bending and lifting mechanism which would cause pressure to the spine and cause a posterior or backwards herniation. Most disc herniations are lateral. Dr. Robb also testified that he believed that if claimant's fall of January 24, 1989 had injured the disc in the low back, it would have affected his ability to work during the next several days, and that claimant would have experienced severe back pain. Since claimant only complained of stiffness, and he was able to work the rest of the day of January 24, 1989, and the following two days, Dr. Robb felt that claimant had sustained a contusion or strain from the fall, but the disc problem came from his bowling activities. Claimant has had some preexisting problems with his back, including a possible central disc herniation at the L4-5 level, and possible loss of normal lumbar lordosis (Def. Exs. G and H). analysis and conclusions of law The first issue to be addressed is whether claimant received an injury on January 24, 1989, which arose out of and in the course of his employment. 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). Claimant has the burden of proving by a preponderance of the evidence that he received an injury on January 24, 1989 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 (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. The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union Page 6 et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63. "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; Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Claimant described an incident whereby he had returned from a work-related errand, parked his pickup in the parking lot of the employer, got out of the pickup and slipped on ice. It would appear that claimant's act of purchasing additional sandpaper in order to perform his job duties is a general requirement contemplated by the employer. It is found that claimant has proven by a preponderance of the evidence that he fell in the parking lot while returning from running an errand for the employer. Claimant must also prove by a preponderance of the evidence that he sustained an injury in the course of his employment. From the record, it appears that claimant was performing his normal and required job duties during his regular shift for the employer. He fell while he was on the employer's premises during claimant's normal work hours of employment. He had not departed from the scope of his employment, and it is found that claimant received an injury which arose out of and in the course of his employment. The next issue to be addressed is whether there is a causal relationship between the injury and claimant's disability. The claimant has the burden of proving by a preponderance of the evidence that the injury of January 24, 1989 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, 261 Iowa 352, 154 N.W.2d 128.. Page 7 Furthermore, if the available expert testimony is insufficient alone to support a finding of causal connection, such testimony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish compensability, the injury need only be a significant factor, not be the only factor causing the claimed disabil ity. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980). For the most part, claimant gave a consistent history to the medical providers, stating that his problems began on January 24, 1989, when he slipped on the ice while walking in the employer's parking lot (Def. Exs, M, O, Q, R and X). However, there are notations in the record which indicate claimant felt his condition was improving until the evening he bowled, January 26, 1989 (Def. Exs. L and P). In determining the causal connection between the fall and claimant's current disability which was caused by a herniated disc, cauda equina syndrome and the resulting laminectomy, it is necessary to review and evaluate his testimony in conjunction with the medical reports and opinions. Specifically, although Dr. LaMorgese opined that claimant's disability was related to the fall, his deposition testimony creates an additional opinion which indicates that claimant actually herniated the disc while bowling: Q. Do you think that's a significant point; that is, the time when he first experienced stiffness in his low back? A. I think it's helpful in that if he had symptoms, obviously immediately after which he did not seem to have down the leg, it makes it a little bit more ambiguous as to what was the inciting injury for this disc problem, but I -- I think, in fact, he did have some continuing symptoms. He actually thought he was getting better for a while there; I mean, I do remember that and I do have that, I believe, in my -- in my Mercy consultation, but the fact is that he was also symptomatic. Q. And the symptoms that he always described after he slipped and fell were a bruise-type feeling, did he not? A. I think he called it pain in the left hip. I don't know if he said it was a bruise. Q. Again, I guess we'll let that record speak for itself. When do you understand he first developed Page 8 pain radiating into a leg? A. I believe he talked about that the night that he was at bowling where he had severe pain in the -- in the back and down into the left leg. Q. Is that consistent with the onset of cauda equina as a result of the disc being herniated at or about that point in time? A. At that night he -- obviously something was happening to his back and he did not seem to have weakness, although none of us examined him at that period of time, but he did not complain of numbness or weakness; it was mainly pain. I assume that he was herniating the disc at that point and then subsequently that evening when he was home he went on to extrude the disc where he developed the paralysis and the numbness. Q. So at this point your opinion is that he was herniating the disc itself during the bowling event? A. Right. .... Q. Certainly. Is is possible in your opinion that the activity of bowling the evening of January 20 - -- I think it was January 28, 1989, was the event that caused a -- the disc in his low back to bulge and that it later extruded? Is that a possibility? A. I do not feel the activity of bowling in and of itself would have caused the herniated disc unless he had had a predisposing factor; in other words, the disc had to be weak for it to have herniated and subsequently extruded that night. Q. And things that could make that disc weak would be such things as other fall incidents and his predisposition toward disc problems, whatever that may have been in his case? A. It's certainly possible. .... Q. Yeah. You apparently are in disagreement with Dr. Verdeck with -- at least with reference to his office note of November 1989 about the event which caused the disc to become herniated. .... A. ...I would agree with Dr. Verdeck and Dr. Robb is that Mr. LaBarge did not have an extruded disc with cauda equina compression on the date of the Page 9 -- of the fall; that is, January 24, 1989. I do believe like they that the disc did extrude or herniate the day he was bowling and the subsequent early morning hours of, I guess, Friday, so that we actually have some agreement here. I guess where the disagreement would be is what led to this extruded disc subsequent days later, and I -- and I think that may have not even been addressed by Dr. Verdeck very carefully. I don't know that for a fact though. (Cl. Ex. 20, pp. 29-30, 36, 38-39) At the hearing and during his deposition, claimant described his physical condition after the fall as feeling as though he had bruised his left hip, and did not have any other symptoms. The day after the fall, claimant complained of a stiff and sore left hip, but did not complain of leg pain or lower back pain. Two days after the fall, claimant stated that he was still feeling stiff and sore in the left hip, with no complaints of lower back or leg pain (Def. Ex. Z, pp. 44-52). Claimant first noticed discomfort and pain "running" through his legs while he was bowling. Additionally, he felt a "twinge" of pain in his hip that he described as being different than that feeling he had had after the fall (Def. Ex. Z, pp. 55-56). Of particular note is that claimant did not attempt to bowl the third game and a replacement team member, Jim Holub, acted as a substitute for claimant to bowl the third game. Mr. Holub was deposed for the case, and his testimony indicates that there was a noticeable difference in claimant during the latter part of the second game. Although there are some inconsistencies between Mr. Holub's deposition and the statement he gave to the defendants during their investigation of the claim, he described that there was a noticeable difference in claimant's ability to bowl during the first game and during the second game. In fact, Mr. Holub indicated that by the end of the second game, claimant was sweating "profusely" and was unable to sit comfortably. Mr. Holub indicated that it was clear claimant was in pain (Cl. Ex. 19; Def. Ex. B and C). There is no doubt that claimant has sustained permanent, serious damage to his back and as a result has a major disability which does affect and will continue to affect his ability to earn a living. However, given the facts of the case and the evidence presented to the undersigned, it is not possible to relate his disability to the work-related fall. It is impossible to determine how much damage occurred when claimant fell, and how much damage was caused while he was bowling. It is possible that claimant injured his back when he fell at work, and that the bowling incident aggravated the condition as Dr. LaMorgese suggests in his deposition testimony. And, although workers are generally compensated for preexisting conditions that are aggravated by a work injury, the reverse is not compensable. In other words, Page 10 claimant's injury was aggravated by a nonwork activity, bowling, and the results of that aggravation are not compensable under workers' compensation. As a result, claimant takes nothing from these proceedings. order THEREFORE, it is ordered: That claimant takes nothing from these proceedings. That defendants shall pay the costs of this action, pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of November, 1991. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Thomas J Currie Attorney at Law 3401 Williams Blvd SW P O Box 998 Cedar Rapids IA 52406 Mr Richard C Garberson Attorney at Law 500 MNB Bldg P O Box 2107 Cedar Rapids IA 52406 5-1100; 5-1108 Filed November 6, 1991 Patricia J. Lantz before the iowa industrial commissioner ____________________________________________________________ : MIKE LaBARGE, : : Claimant, : : vs. : : File No. 909191 FAIRVIEW BODY SHOP, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : UNION INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1100; 5-1108 Claimant slipped on ice in employer's parking lot. He continued to work without any problems for the next two and one-half days. He then went bowling, and developed severe back pain, which eventually was diagnosed as an extruded disc at the L3-4 level. Held: Claimant sustained an injury which arose out of and in the course of his employment. Held: Claimant did not sustain his burden to show that the fall was a cause of his disability. The record demonstrated that claimant sustained the herniated disc while bowling.