Page 1 before the iowa industrial commissioner ____________________________________________________________ : JOHN REISCH, : : Claimant, : File No. 910198 : vs. : A R B I T R A T I O N : FDL FOODS, INC., : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ____________________________________________________________ introduction This is a proceeding in arbitration brought by John C. Reisch against FDL Foods, Inc., his employer, based upon an alleged injury of July 8, 1988. The date of injury which was alleged was amended at hearing to conform to the proof. Claimant seeks to recover compensation for healing period and permanent partial disability. The primary issues to be determined are whether claimant's back condition is the result of an injury which arose out of and in the course of his employment. In the event that the employment relationship is found, the remaining issue is the extent of permanent partial disability. The case was heard and fully submitted at Dubuque, Iowa on November 7, 1990. The record in the proceeding consists of claimant's exhibits 1 through 8, defendant's exhibits A through F, and H through K. The record also contains testimony from John C. Reisch. findings of fact Having considered all the evidence received, together with the appearance and demeanor of the witness, the following findings of fact are made. John C. Reisch is a 55-year-old man who is presently employed at FDL Foods, Inc., where he has been employed since 1953. Prior to 1982, the name of the employer was Dubuque Pack. Reisch has high seniority which is sufficient to allow him to obtain and hold nearly any job which he desires. At the time of hearing, he was in a higher paying bracket of job than the one he was performing in July of 1988. John is a high school graduate. His prior work history includes painting houses. Most of his work has involved manual labor. In July of 1988 he was unmarried, but had a 17-year-old son whom he considered to be a dependent and for whom he provided support. Page 2 John has a history of back problems going back as far as 1975 (claimant's exhibit 5, pages 34, 36 and 37). On the Sunday night following July 8, 1988, John experienced the onset of severe pain in his right hip. He could not think of anything which he had done over the weekend to cause the problem, but he had driven from Dubuque to the Wisconsin Dells, stayed overnight at a motel and then returned to Dubuque on Sunday. John sought medical treatment, was diagnosed as having a herniated lumbar disc and underwent surgery which was performed by orthopaedic surgeon Gerald L. Meester, M.D. (defendant's exhibit D). John eventually recuperated from the surgery and was released to return to work. He carries a permanent restriction against lifting more than 10 or 15 pounds (claimant's exhibit 7, page 8). Dr. Meester has rated him as having a 10 percent permanent impairment of the body as a whole based upon his back condition and surgery (claimant's exhibit 7, page 9). At hearing, John testified that on approximately June 1 or May 31, 1988, he had slipped into a window well at home and experienced pain in his groin area. He did not miss work due to the problem and stated that the pain went away within a few days. John testified at hearing that, on July 8, 1988, a machine which he normally operated at work was malfunctioning and that it was necessary for him to carry boxes weighing over 80 pounds across the room where he worked in order to band them. John stated that, on Saturday following that exertion, he had back muscle spasms which made it hard for him to bend over or straighten up. Claimant was initially seen by his family physician. The history he gave consisted of severe pain in his right hip and leg which had its onset with a car trip taken that weekend (defendant's exhibit A, page 1). A second history from July 12, 1988 relates that claimant stepped into a hole on the first of June while at home. The note indicates that he developed intense pain in the back and down the right leg, but that it improved until the pain recurred on Sunday (defendant's exhibit B, page 2). Claimant was referred to orthopaedic surgeon Gerald Meester, M.D. The history given to Dr. Meester was that claimant had injured his right hip when he slipped into a window well during early June and that the pain had progressed. Dr. Meester has expressed the opinion that work in the nature of carrying 80-pound boxes could certainly aggravate a low back condition, but that according to his records and the medical history which he has recorded, there is nothing to indicate that claimant had performed those activities (defendant's exhibit E, pages 7 and 8; exhibit 7, pages 4, 5, 9, 10 and 11). Page 3 The evidence in this case is somewhat conflicting with regard to the immediate medical history preceding the onset of claimant's symptoms. It is particularly noted that the severe symptoms did not have their onset until Sunday evening after claimant had engaged in a considerable amount of driving. The initial medical history indicates that back pain had been present for approximately the preceding two weeks (defendant's exhibit A, page 1). According to Dr. Meester, activity of carrying such as claimant described at hearing could aggravate a back condition. The factual issue which is determinative in this case is whether or not an aggravation from carrying while at work was a substantial factor in producing the onset of claimant's severe symptoms, the need for surgery and his resulting physical impairment and disability. It is determined that the evidence in this case is at equipoise. John Reisch appeared to be quite forthright and honest as he testified. The record, however, contains three medical histories, namely that of two weeks of back pain followed by severe pain which started while taking a car trip; pain which had its onset from stepping in a window well and then recurred without any apparent aggravating cause; or, as claimant asserts, his pain was precipitated by heavy lifting and carrying at work two days prior to the onset of his severe symptoms. It would be understandable if one physician had obtained an incorrect history, but the others were consistent with the claimant's testimony. That is not the case here, however. conclusions of law Claimant has the burden of proving by a preponderance of the evidence that he received an injury on July 8, 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). When an aggravation occurs in the performance of an employer's work and a causal connection is established, claimant may recover to the extent of the impairment. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 (1960). The result of this case turns upon the requirement to carry the burden of proof by a preponderance of the evidence. It is certainly possible that John Reisch injured his back at work in the manner which he asserted at hearing. It is also possible, however, that the carrying he performed on July 8, 1988 is not responsible for his back problems. He had a prior history of some back difficulties. The act of riding long distances in a car has itself been known to aggravate a back condition. The history of two weeks of back pain prior to the July 12, 1988 office visit detracts from claimant's claim. It is determined that John Reisch has failed to prove Page 4 by a preponderance of the evidence that it is probable that his back surgery and resulting disability was proximately caused by the work activities he performed on July 8, 1988. While it is certainly feasible and possible for the sequence of events to have occurred as claimant asserts, the evidence, when viewed as a whole, fails to show it to be probable. Since claimant has failed to prove that his back condition is the result of an injury which arose out of and in the course of his employment, he is not entitled to receive any recovery in this claim. order IT IS THEREFORE ORDERED that claimant take nothing from this proceeding. IT IS FURTHER ORDERED that the costs of this action are assessed against the claimant pursuant 343 IAC 4.33. Signed and filed this ______ day of ____________, 1990. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Page 5 Copies To: Mr. James P. Hoffman Attorney at Law Middle Road P.O. Box 1066 Keokuk, Iowa 52632 Mr. James M. Heckmann Attorney at Law One CyCare Plaza Suite 216 Dubuque, Iowa 52001 5-1402.30 Filed November 19, 1990 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : JOHN REISCH, : : Claimant, : File No. 910198 : vs. : A R B I T R A T I O N : FDL FOODS, INC., : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ____________________________________________________________ 5-1402.30 Where the evidence showed three possible sources for the aggravation of the claimant's preexisting back condition, and only one of those three had a work relationship, it was held that the claimant had failed to prove that the condition was an injury which arose out of and in the course of his employment. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ MERLE FAWCETT, Claimant, vs. File No. 910205 CUNNINGHAM HEATING, A P P E A L Employer, D E C I S I O N and ALLIED MUTUAL INSURANCE, 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 June 21, 1991 is affirmed and is adopted as the final agency action in this case. Defendants shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of November, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Harold B. Heslinga Attorney at Law 118 North Market Street Oskaloosa, Iowa 52577 Mr. D. Brian Scieszinski Attorney at Law 801 Grand Avenue Suite 3700 Des Moines, Iowa 50309 9998 Filed November 25, 1992 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ MERLE FAWCETT, Claimant, vs. File No. 910205 CUNNINGHAM HEATING, A P P E A L Employer, D E C I S I O N and ALLIED MUTUAL INSURANCE, Insurance Carrier, Defendants. ____________________________________________________________ 9998 Summary affirmance of deputy's decision filed June 21, 1991. Page 1 before the iowa industrial commissioner ____________________________________________________________ : MERLE FAWCETT, : : Claimant, : : vs. : : File No. 910205 CUNNINGHAM HEATING, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : ALLIED MUTUAL INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Merle Fawcett, claimant, against Cunningham Heating, employer, and Allied Mutual Insurance Company, insurance carrier, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained on November 19, 1988. The record was considered fully submitted at the close of the hearing. The record in this case consists of claimant's testimony and joint exhibits 1-2. issues Pursuant to the prehearing report and order dated May 16, 1991, the parties have stipulated as follows: 1. That claimant sustained an injury on November 19, 1988, which arose out of and in the course of employment with employer; 2. That the injury is a cause of temporary and permanent disability; 3. That claimant has been paid 26 weeks of healing period benefits; 4. That the extent of claimant's entitlement to weekly compensation for permanent disability has been stipulated to be 60 weeks for a scheduled member injury to the upper extremities which converts to a functional impairment of 12 percent to the body as a whole; and, 5. That the claimant's rate of weekly compensation is stipulated to be $178.56. The remaining issues to be decided include: Page 2 1. Whether claimant is entitled to medical benefits under Iowa Code section 85.27; 2. Whether claimant's unpaid medical expenses are causally connected to his work injury of November 19, 1988; and, 3. Whether such expenses were authorized by defendants. The parties do not dispute that the charges for the medical services or supplies rendered to claimant are fair and reasonable and that such expenses were incurred for reasonable and necessary medical treatment. findings of fact The undersigned has carefully considered all the testimony given at the hearing, the arguments made, the exhibits contained herein and makes the following findings: Claimant testified that he sustained bilateral fractures of his wrists on November 19, 1988, when he fell approximately 15 feet off scaffolding. He was treated by Bradley R. Adams, D.O., who performed surgery. He testified that defendants paid for all medical treatment and surgery in November 1988. In May 1989, he underwent carpal tunnel release of the left upper extremity by Dr. Adams which was also paid for by defendants. He was released to return to work on June 16, 1989. He worked for defendants until September 11, 1989. Defendants paid all of his medical bills through September 1989. Claimant then worked as a hog feeder in a confinement operation; sanitation truck driver; and trucker. Claimant has been employed as a truck driver with Steel Trucking Company since November 1990. Claimant testified that he has had continuous problems with his wrists and arms and physicians have recommended additional surgery. It is his contention that his current problems are the result of his previous injury and that his medical expenses after September 1989, have been for treatment of these problems and should be paid for by defendants. Page 3 Claimant submitted a list of outstanding medical bills which have not been paid for by defendants. They include as follows: Date Provider Amount 04-09-90 Medicap Pharmacy $ 59.85 04-17-90 Des Moines Orthopaedic Surgeons 205.00 09-04-90 Mahaska County Hospital 72.00 09-04-90 Radiology Associates of Ottumwa, P.C. 13.50 10-08-90 Iowa Institute of Orthopaedics 160.00 Total $510.35 The record indicates that claimant saw Dr. Adams on April 9, 1990, with complaints of right glenoscapular shoulder pain. He related that he had to do a lot of pushing, lifting and carrying as a hog feeder. Dr. Adams diagnosed "myofascial strain" and prescribed Flexeril and Voltaren (Ex. 1, page 6). The Medicap Pharmacy bill for $59.85 pertains to the prescription drugs prescribed by Dr. Adams (Ex. 2, p. 8). On April 17, 1990, claimant presented to Delwin E. Quencer, M.D., with complaints of right shoulder and upper back pain. A physical examination was performed and x-rays were taken (Ex. 1, pp. 7-8). Dr. Quencer's bill for his services total $205.00 and is set out in exhibit 2, page 1. On September 4, 1990, claimant was treated in the emergency room of Mahaska County Hospital with complaints of left arm pain at the site of the scar from the pin site as a result of surgery performed on November 19, 1988. Physician's notes indicate that claimant's complaints were referable to chronic discomfort in the left wrist and forearms with no recent injury. X-rays of the left wrist revealed an old fracture with residual degenerative disease (Ex. 1, pp. 9-10). The cost of emergency room treatment was $72.00 and radiology expenses were $13.50 (Ex. 2, pp. 2-4). On October 8, 1990, claimant presented to Dr. Adams with continuing complaints of pain in the left wrist and numbness involving the median nerve distribution of the left hand. After examination and x-rays, Dr. Adams concluded that claimant has carpal tunnel syndrome. He recommended repeat EMG nerve conduction studies and an arthrogram to check out suspected ligamentous disruption of the scapholunate ligament in the left wrist (Ex. 1, pp. 11-12). Claimant saw Dr. Adams for follow-up examination on October 17, 1990, to inform him that the insurance company refused to pay for his EMG nerve conduction studies (Ex. 1, p. 13). Page 4 Dr. Adams submitted a bill to defendant insurance carrier in the amount of $160.00 for the aforementioned examination and x-rays (Ex. 2, p. 6). conclusions of law The only issue to be determined in this case is whether claimant is entitled to certain medical expenses under Iowa Code section 85.27. Iowa Code section 85.27 provides, in part: For purposes of this section, the employer is obliged to furnish reasonable services and supplies to treat an injured employee, and has the right to choose the care. The treatment must be offered promptly and be reasonably suited to treat the injury without undue inconvenience to the employee. If the employee has reason to be dissatisfied with the care offered, the employee should communicate the basis of such dissatisfaction to the employer, in writing if requested, following which the employer and the employee may agree to alternate care reasonably suited to treat the injury. If the employer and employee cannot agree on such alternate care, the commissioner may, upon application and reasonable proofs of the necessity therefor, allow and order other care. In an emergency, the employee may choose the employee's care at the employer's expense, provided the employer or the employer's agent cannot be reached immediately. Defendants assert that claimant's outstanding medical expenses totaling $510.35 are not causally connected to his work injury of November 19, 1988, and therefore such expenses are unauthorized. Defendants argue that claimant was seen by Dr. Adams on April 9, 1990, for complaints referable to shoulder pain as a result of his work in a hog confinement operation. They also argue that claimant saw Dr. Quencer on April 17, 1990, with the same complaints. The record clearly reveals that claimant's symptoms of right shoulder and upper back pain developed as a result of his repetitive pushing activities while working in the hog confinement operation. Accordingly, claimant has not proven by a preponderance of the evidence that the medical bills associated with the symptoms are causally related to his injury on November 19, 1988, and therefore cannot be attributable to defendants. Accordingly, the unpaid medical bills of $59.85 and $205.00 are not the responsibility of defendants. Claimant's emergency room treatment on September 4, 1990, the x-rays taken pursuant to that treatment and follow-up evaluation by Dr. Adams on October 8, 1990, clearly relate to his original injury in November 1988. Thus, defendants shall pay for services performed at Mahaska County Hospital, Radiology Associates and Iowa Institute of Page 5 Orthopaedics. The total unpaid balance for these bills is $245.50. Claimant requests that defendants pay for diagnostic studies recommended by Dr. Adams including EMG nerve conduction studies and an arthrogram as well as future surgery if such is deemed necessary. Since claimant's ongoing problems are a result of his injury in November 1988, and since defendants have admitted liability for such injury, claimant is entitled to medical care and treatment causally related to that injury. Accordingly, defendants are liable for the diagnostic testing recommended by Dr. Adams and, if necessary, surgery to treat his current problems. order THEREFORE, IT IS ORDERED: Defendants shall pay disputed medical expenses of: 09-04-90 Mahaska County Hospital $ 72.00 09-04-90 Radiology Associates of Ottumwa, P.C. 13.50 10-08-90 Iowa Institute of Orthopaedics 160.00 Total $245.50 Defendants shall also pay for diagnostic testing recommended by Dr. Adams including EMG nerve conduction studies and an arthrogram and, if necessary, surgery on the left wrist for possible carpal tunnel syndrome. Costs of this action are assessed against defendants pursuant to rule 343 IAC 4.33. Defendants shall file a claim activity report as requested by this agency pursuant to rule 343 IAC 3.l. Page 6 Signed and filed this ____ day of June, 1991. ______________________________ JEAN M. INGRASSIA DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Harold B. Heslinga Attorney at Law 118 N Market St Oskaloosa IA 52577 Mr. D. Brian Scieszinski Attorney at Law 801 Grand Ave Suite 3700 Des Moines IA 50309 5-1108; 5-2500 Filed June 20, 1991 JEAN M. INGRASSIA before the iowa industrial commissioner ____________________________________________________________ : MERLE FAWCETT, : : Claimant, : : vs. : : File No. 910205 CUNNINGHAM HEATING, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : ALLIED MUTUAL INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1108; 5-25004 The only issue is liability for unpaid medical expenses and entitlement to future medical treatment. Defendants liable for medical expenses incurred for treatment of impairments causally related to original injury and for diagnostic testing and surgery recommended by treating physician. Page 1 before the iowa industrial commissioner ____________________________________________________________ : JEFFREY B. HOWARD, : : Claimant, : : File No. 910281 vs. : : MIDWEST USA, INC., : A R B I T R A T I O N : Employer, : D E C I S I O N Defendant. : : ___________________________________________________________ statement of the case This is a proceeding in arbitration wherein the claimant seeks compensation for 4.429 weeks of temporary total disability and $804.55 in medical bills as a result of an alleged injury that occurred on May 6, 1989. The record consists of claimant's exhibit A. On August 22, 1989, defendant was sanctioned by Deputy Larry Walshire, which sanction closed the record to further evidence or activity by defendant. The record indicates that defendant has done nothing further in this case as a defense and only wrote a letter, dated April 30, 1990, which is meaningless for the purpose of this decision. The undersigned takes official notice of the petition filed by claimant through his attorney. The undersigned finds that claimant slipped and fell while loading defendant's truck at Orange City, Iowa, on May 6, 1989, and as a result fractured his right ankle and bruised the cervical portion of his spine. As a result of said injury, claimant incurred only temporary total disability of 4.429 weeks. Claimant incurred no other impairment or further disability. As a result of claimant's injury, claimant incurred medical bills in the amount of $804.55. At the time of his injury, claimant was earning gross wages of $575 and, therefore, is entitled to a weekly benefit rate of $359.22 per week for the 4.429 weeks that he was temporary totally disabled. The undersigned finds that claimant's temporary total disability and medical bills were causally connected to his May 6, 1989 injury and that said injury arose out of and in the course of his employment. Defendant did not in any way defend said action or answer claimant's petition. The status of the record for the purposes of hearing shows that there are no issues that are in dispute and that defendant is, in fact, in default as to any issues or the claimed amount for which claimant is requesting an award. The undersigned finds that claimant is entitled to $1,590.83 temporary total disability benefits Page 2 and $804.55 medical benefits. conclusions of law Iowa Code section 85.32 provides: Except as to injuries resulting in permanent partial disability, compensation shall begin on the fourth day of disability after the injury. If the period of incapacity extends beyond the fourteenth day following the date of injury, then the compensation due during the third week shall be increased by adding thereto an amount equal to three days of compensation. Iowa Code section 85.33 provides, in part: Except as provided in subsection 2 of this section, the employer shall pay to an employee for injury producing temporary total disability weekly compensation benefits, as provided in section 85.32, until the employee has returned to work or is medically capable of returning to employment substantially similar to the employment in which the employee was engaged at the time of injury, whichever occurs first. It is further concluded that: Claimant's injury on May 6, 1989 arose out of and in the course of his employment and that claimant's temporary total disability of 4.429 weeks and his medical bills in the amount of $804.55 was causally connected to his injury. order THEREFORE, it is ordered: That claimant is entitled to four point four two nine (4.429) weeks of temporary total disability benefits at the rate of three hundred fifty-nine and 22/100 dollars ($359.22) per week, beginning May 6, 1989. That defendant shall pay the accrued weekly benefits in a lump sum, and since no benefits have been paid there is no credit against same. That defendant shall pay interest on the benefits awarded herein, as set forth in Iowa Code section 85.30. That defendant shall pay claimant's medical costs in the amount of eight hundred four and 55/100 dollars ($804.55). These costs are itemized in claimant's Exhibit A. That defendant shall pay the costs of this action, pursuant to Division of Industrial Services Rule 343-4.33. That defendant shall file a first report of injury. Page 3 That defendant shall file an activity report upon payment of this award as required by this agency, pursuant to Division of Industrial Services Rule 343.3.1. Signed and filed this _____ day of September, 1990. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr John J Wolfe Attorney at Law 402 6th Ave S Clinton IA 52732 Midwest USA P O Box 404 Savanna IL 61074 CERTIFIED & REGULAR MAIL 51801; 51100; 51108 Filed September 12, 1990 Bernard J. O'Malley before the iowa industrial commissioner ____________________________________________________________ : JEFFREY B. HOWARD, : : Claimant, : : File No. 910281 vs. : : MIDWEST USA, INC., : A R B I T R A T I O N : Employer, : D E C I S I O N Defendant. : : ___________________________________________________________ 51801 Found claimant was temporary totally disabled for 4.429 weeks and entitled to some medical benefits. 51100 Found claimant's injury arose out of and in the course of claimant's employment. 51108 Found claimant's temporary total disability was causally connected to his work injury. Page 1 before the iowa industrial commissioner ____________________________________________________________ : CHARLENE J. JOHNSON, : : Claimant, : : vs. : : File No. 910294 HARKERS WHOLESALE MEAT, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : NATIONAL UNION FIRE INSURANCE,: : Insurance Carrier, : Defendants. : ___________________________________________________________ introduction This is a proceeding in arbitration brought by the claimant, Charlene J. Johnson, against her employer, Harkers, Inc., and GAB Business Services, Inc., insurance carrier, defendants, to recover benefits as the result of an alleged injury occurring on April 3, 1989. This matter came on for hearing before the undersigned deputy industrial commissioner at Sioux City, Iowa on November 30, 1990. A first report of injury was filed June 2, 1989. The record consists of joint exhibits A through X; claimant's exhibits 1 through 4; and, defendants' exhibit AA; testimony from claimant; Philip Renders; Sheila VanDriel; Judy Baatz; Derrick Hellinga; Paul DeRocher; and Joel Hoogeveen. issues Pursuant to the prehearing order and the stipulations of the parties at the hearing, the parties stipulated that claimant's workers' compensation rate is $153.24. The following issues are presented by the parties for resolution: 1. Whether claimant sustained an injury which arose out of and in the course of her employment; 2. Whether claimant's disability is causally related to her injury; 3. Whether claimant is entitled to temporary total or healing period benefits; 4. Whether claimant is entitled to permanent partial or permanent total disability benefits; Page 2 5. Whether claimant is entitled to medical benefits pursuant to Iowa Code section 85.27. findings of fact The deputy, having heard the testimony and considered the evidence, finds: Claimant, Charlene Johnson, (according to medical records) was born June 21, 1949. She began working for Harker's, Inc., on February 29, 1988. She was initially hired to a production B position, and continued with this job title until her separation from her employment with Harker's on April 3, 1989. During her employment with Harker's, claimant was evaluated on five separate occasions: March 28, 1988; May 30, 1988; August 29, 1988; November 28, 1988; and, February 27, 1989. (Joint Exhibits U, T, R, O, N) The record reflects that claimant received excellent work appraisals during these evaluations. The controversy is this case seems to form around the appraisal given to claimant on November 28, 1988. Claimant's rendition of the meeting that took place during the evaluation is quite different than defendant's recitation of the meeting. Claimant states one of her supervisors, Derrick Hellinga, asked her to report employees who violated USDA and Harker's sanitary rules or regulations. The evidence does show that around the time of claimant's November 1988 appraisal, Bud Baumgart, the plant manager, had concern about employees violating these sanitary rules. A memo written by Baumgart to all employees on November 17, 1988 states in part: During the past several weeks, there has been a number of reports that employees are violating U.S.D.A. - Harker's sanitary rules and regulations.... U.S.D.A. is a government agency that monitors the manufacturing of food products, assuring nutrition and wholesomeness. Even without U.S.D.A. or Harker's Supervision and Quality Control being around to monitor these rules, employees should on their own, through common sense and concern for others, follow all sanitary rules and regulations.... It is extremely important that all U.S.D.A. and Harker's rules and regulations are met. Employees caught violating these rules and regulations will be disciplined. During claimant's case-in-chief, she implicated several Page 3 supervisors who asked her to report workers who were violating the rules and regulations, including Derrick Hellinga; Paul DeRocher; and Joel Hoogeveen. All of these supervisors testified at the hearing, and denied that they asked claimant to monitor or report on the other workers. Claimant also contends that a conspiracy was formed between other coworkers and her supervisors. Claimant suspicioned that the conspiracy was to divert the "problem women" away from new workers to claimant. Claimant was unable to define what she meant by "problem women." Again, supervisors who testified for their company, denied any knowledge of "problem women", and denied any such plan. Claimant also argued that several workers in the plant had conspired against her and blamed her for another coworker's health problem. Defendant denied any knowledge of this. Lastly, claimant indicated that a conspiracy existed in order to facilitate adherence to the plant's work rules and regulations. Defendants' witness, Derrick Hellinga, did state that he followed-up on her complaints about these conspiracies, but found no foundation for her concerns. Claimant stated she discontinued her "reporting and monitoring" duties after one week. Although she was not certain as to the date she started, she remembered that she began reporting workers on a Monday, after a holiday. The evidence shows the time-frame to be on President's Day, February 20, 1989. Claimant left work on April 3, 1989. She began to see Kenneth Miller, D.O., for help. He kept her off of work, as a result of tension and stress, for an indefinite time. (Ex. A, Page 42). On April 27, 1989, he wrote the following letter: To Whom It May Concern: On April 3, 1989 I first examined and treated Sherry for stress and tension as result of a work related incident. Sherry feels that she was "used" and deceived by the supervisor while trying to resolve a conflict with co-workers. She also feels there is a conspiracy among supervisors, the plant manager, and co-workers to discredit her by discussing her past medical and social history. These accusations have caused tension, anxiety, and stress and as result, she remains totally disabled or unable to work. (Joint Ex. A, p. 41) Claimant stayed off work, under Dr. Miller's advice, until August 3, 1989. Although claimant states she did not quit her job, defendants contend she called the plant and quit. (Defendants' Ex. AA). Page 4 Dr. Miller wrote a letter to defendant Harker's Inc., on August 3, 1989, stating: The following information is a summary compiled from my office records regarding Sherry Johnson. I first treated Sherry on November 21, 1984, for a routine yearly check-up. On June 6, 1986 she was treated for muscular pain with osteopathic manipulative therapy, analgesic and anti-inflammatory medication. Over the next several months she was treated on regularly scheduled office appointments for chronic myofaschitis of the cervical dorsal spine and anxiety. She possibly has a borderline personality disorder, for she is unstable in several areas including behavior, mood and self image. Her psychologic factor may have contributed directly or indirectly to her physical disorder. Due to the psychological problems she was treated by a Psychologist. On April 3, 1989, I again examined and treated this patient for stress, tension and anxiety. At that time is was determined that the patient would probably benefit by having a leave of absence from work due to a stressful situation. On April 17, 1989, during this visit the patient discussed with me the problems she was having at work with co-workers and supervisors. I have previously submitted this information to your office in the letter dated April 27, 1989. Since then I have seen Sherry on regularly scheduled office visits. We have tried to reduce the tension and anxiety that she experiences with mild tranquilizers. I have discussed with her on multiple occasions the problems and situations that she has experienced. She has considerable amount of anger and guilt due to the financial loss for not working. In summary, over the past three years there have been multiple occasions when she experienced overwhelming mental and emotional stress, tension, anxiety, anger and frustration. She has received medication for the treatment of these problems. Has responded favorably. However, there have been long periods of time when she has been totally incapacitated by these symptoms. At the present time she is unable to return to work as result of the anxiety, tension and frustration. It has been extremely difficult for her to cope during this period of unemployment due to the financial burden that was placed on the family due to the loss of income. Claimant has had a history of physical problems, brought on by an automobile accident in which she was involved in December 1983. Medical records from 1973 through 1990 indicate she has also received treatment for Page 5 major depression, anxiety and stress at the latest in 1986. (See, Jt. Ex. A, p. 43). conclusions of law 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). Injury is not limited to a physical injury; it can also be defined as a psychological injury. Claimant has the burden of proving by a preponderance of the evidence that she, received an injury on April 3, 1989 which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). 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 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 first step in resolving this matter is determine whether claimant sustained an injury which arose out of and in the course of her employment. The injury claimant apparently relies upon is her emotional state. The standard for determining whether a mental injury arose out of and in the course of employment was discussed in Ohnemus v. John Deere Davenport Works, (Appeal Decision, February 26, 1990): In order to prevail claimant must prove that he suffered a non-traumatically caused mental injury that arose out of and in the course of his employment. This matter deals with what is referred to as a mental-mental injury and does not deal with a mental condition caused by physical trauma or a physical condition caused by mental Page 6 stimulus. The supreme court in Schreckengast v. Hammer Mills, Inc., 369 N.W.2d 809 (Iowa 1985), recognized that issues of causation can involve either causation in fact or legal causation. As stated in footnote 3 at 369 N.W.2d 810: We have recognized that in both civil and criminal actions causation in fact involves whether a particular event in fact caused certain consequences to occur. Legal causation presents a question of whether the policy of the law will extend responsibility to those consequences which have in fact been produced by that event. State v. Marti, 290 N.W.2d 570, 584-85 (Iowa 1980). Causation in fact presents an issue of fact while legal causation presents an issue of law. Id. That language was the basis of the language in Desgranges v. Dept of Human Services, (Appeal Decision, August 19, 1989) which discussed that there must be both medical and legal causation for a nontraumatic mental injury to arise out of and in the course of employment. While Desgranges used the term medical causation the concept involved was factual causation. Therefore, in this matter it is necessary for two issues to be resolved before finding an injury arising out of and in the course of employment - factual and legal causation. Proving the factual existence of an injury may be accomplished by either expert testimony or nonexpert testimony. .... Not only must claimant prove that his work was the factual cause of his mental injury, claimant must also prove that the legal cause of his injury was his work. In order to prove this legal causation claimant must prove that his temporary mental condition "resulted from a situation of greater dimensions than the day to day mental stresses and tensions which all employees must experience." Swiss Colony v. Department of ICAR, 240 N.W.2d 128, 130 (Wisc. 1976). See also, Kostelac v. Feldman's Inc., (Appeal Decision, June 13, 1990). Claimant has the burden of proving that her mental condition arose out of and in the course of her employment with defendant, Harkers, Inc. In the instant case, claimant has failed to produce enough evidence to persuade the undersigned that due to her working environment, she now has mental problems. Although claimant was credible, she did not produce enough specific and reliable information to support a finding in her favor. It is concluded that claimant has failed to establish by a preponderance of the evidence that her injury arose out of and in the course of Page 7 her employment, either factually or legally. Claimant's own physician stated that her emotional problems surfaced in 1986, which pre-dates her employment with defendants, and the injury date. And, it was not shown that her mental condition resulted from an employment situation of greater dimensions than the daily stress experienced by all employees. The greater weight of the evidence shows that, although claimant was one of defendant's better employees, she began to have emotional problems that caused her demise. The root or cause of these problems has not been shown to stem from her employment. order THEREFORE, it is ordered: Claimant takes nothing from the proceedings. Defendants are assessed costs pursuant to Rule 343 IAC 4.33. Page 8 Signed and filed this ____ day of January, 1991. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Ms Charlene J Johnson 1321 Avenue H Hawarden Iowa 51023 Mr Thomas M Plaza Attorney at Law 701 Pierce St Ste 200 PO Box 3086 Sioux City Iowa 51102 Page 1 before the iowa industrial commissioner ____________________________________________________________ : SANTOS G. BUENO, : : Claimant, : File No. 910353 : vs. : : A R B I T R A T I O N H.J. HEINZ, : : D E C I S I O N Employer, : : and : : LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Santos Bueno, as a result of injuries to his low back which occurred on February 8, 1989. Defendants accepted compensability for the injury, paid weekly benefits and medical expenses. The case was heard and fully submitted in Davenport, Iowa, on January 29, 1991. The record in the proceeding consists of joint exhibits A through O and testimony from claimant, Maria Bueno and Kelly Kendall. issues The sole issue for determination is the extent of entitlement to weekly compensation for permanent partial disability under Iowa Code section 85.34(2)(u). findings of fact Having considered all the evidence received, the following findings of fact are made: Santos Bueno injured his low back when he lifted a bucket weighing about 50 pounds at his employer's place of business on February 8, 1989. Claimant had previous injuries to his low back in 1984 and 1987 that resulted in medical treatment. Claimant experienced a long period of convalescence before returning to work for employer. He treated with numerous doctors during the period in question. Initially, he was seen by William Catalona, M.D. He also received treatment from Robert J. Chesser, M.D. and Byron W. Rovine, M.D. He also had an evaluation performed by the University of Iowa Spine Diagnostic and Treatment Center. Page 2 Claimant's low back condition was diagnosed as an L5-S1 herniated disc. All doctors eventually agreed with this diagnosis (Joint Exhibit E, page 6; Jt. Ex. K, p. 6; Jt. Ex. J, p. 17; and Jt. Ex. L, p. 16). Claimant refused to undergo further testing that was recommended by the University of Iowa and also refused to undergo surgery in order to correct the L5-S1 disc herniation (Jt. Ex. H, p. 44). Claimant testified that he was afraid of surgery and its consequences. Permanent work restrictions were assigned as a result of the February 8, 1989 injury and claimant returned to work for employer. The work restrictions are best described as alternate sitting and standing every 15 minutes with no lifting over 15 pounds (Jt. Ex. L, p. 16; Jt. Ex. C, p. 33). Claimant's job at the time of the February 8, 1989 injury was a grade level 6. Subsequent to returning to work with the specified work restrictions, claimant has been limited to performing grade level 1 and 2 work. Exhibit O reveals the pay rates for the different grades at employer's place of business. Claimant's grade level for February 8, 1989 is not shown on Exhibit O. However, the ratio from year to year appears to be similar. As of March 1, 1989, a grade 6 employee would earn $10.885 per hour, a grade 2 employee would earn $10.105 per hour, while a grade 1 employee would earn $9.91 per hour. Claimant sustained a 78 cent to 97 cent per hour loss of wages due to the work restrictions imposed. A whole body impairment was also assigned by the various doctors. The examining doctors agreed that claimant's back condition should be rated at 7-10 percent permanent partial impairment to the body as a whole (Jt. Ex. E, p. 3; Jt. Ex. L, p. 17; Jt. Ex. N, p. 5) James Weinstein, M.D., has confronted with the issue of apportionment of the impairment with respect to claimant's prior back injuries of 1984 and 1987, as compared to the February 8, 1989 injury (Jt. Ex. N, pp. 9 & 10). Dr. Weinstein opined with reasonable medical certainty that the February 8, 1989 injury should be allocated one-third of the total impairment rating with the remaining two-thirds attributable to the prior back injuries. Medical evidence contradicting Dr. Weinstein's opinion on apportionment was not offered. It is found that claimant's permanent partial impairment to the low back is 9 percent to the body as a whole. It is found that as a result of the February 8, 1989 injury, claimant sustained a 3 percent permanent partial impairment to the body as a whole. It is found that as a result of claimant's prior back injuries which occurred in 1984 and 1987, he sustained a 6 Page 3 percent permanent partial impairment to the body as a whole. However, no showing was made the 1984 and 1987 injuries restricted claimant from performing work for which he had previous training and experience. The sole issue presented for determination is the extent of claimant's entitlement to industrial disability resulting from the February 8, 1989 low back injury. The industrial disability may be apportioned between the preexisting low back condition and the 1989 injury if work restrictions were imposed as a result of the prior injuries. Dr. Weinstein's apportionment of impairment, however, does not equate to apportionment of industrial disability in that no showing was made that the 1984 and 1987 injuries restricted claimant from performing his previous duties, thereby resulting in an actual loss of earning capacity. Factors effecting industrial disability are claimant's age, education experience, impairment and work restrictions. Employer's offer of work post-injury is also a factor to be considered. Claimant was age 41 at the time of the injury in question. He has a third grade education with work experience consisting primarily of heavy manual labor both before and after his commencement of employment with employer in December 1977. Subsequent to the 1984 and 1987 back injuries, claimant was able to perform grade 6 heavy labor work for employer. Subsequent to February 8, 1989, claimant has been limited to grade 1 or 2 light labor work. No showing was made that claimant had specified work restrictions which resulted form the 1984 and 1987 injuries. It is found that claimant sustained 20 percent industrial disability as a result of the February 8, 1989 injury to his low back. The total industrial disability of 20 percent is attributable to the February 8, 1989 injury in question. The February 8, 1989 injury was assigned an industrial disability primarily because that injury resulted in work restrictions which prevented claimant from performing grade 6 work. All other factors being equal, the 1989 injury caused an actual loss in earnings and a much greater loss in access to the unskilled labor market as compared to the earlier alleged back injuries. It should be noted that the employer acted in good faith by returning claimant to its work force subsequent to the injury. If the employer had refused to accommodate claimant's work restrictions the industrial disability would have been significantly higher. This employer is commended for its accommodation of injured employees upon their return to the work force. conclusions of law Functional impairment is an element to be considered in Page 4 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 impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial dis ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, l985). Apportionment of industrial disability is not appropriate unless there is a showing that the prior injury resulted in physical work restrictions that have a direct effect upon the injured employee's earning capacity. Bearce v. FMC Corporation, Iowa Supreme Court, No. 458/89-1423, filed January 23, 1991). Page 5 Upon considering all the material factors, it is found that evidence in this case supports an award of 20 percent permanent partial disability which entitles claimant to recover 100 weeks of benefits under Iowa Code section 85.34(2)(u) as a result of the February 8, 1989 low back injury. order THEREFORE, it is ordered: That defendants pay claimant one hundred (100) weeks of permanent partial disability benefits at the rate of two hundred ninety-two and 28/100 dollars ($292.28) commencing November 1, 1989. It is further ordered that defendants shall receive credit for benefits previously paid. It is further ordered that all accrued benefits are to be paid in a lump sum. It is further ordered that interest will accrue pursuant to Iowa Code section 85.30. It is further ordered that the costs of this action are assessed against defendants pursuant to rule 343 IAC 4.33. It is further ordered that defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of March, 1991. ______________________________ MARLON D. MORMANN DEPUTY INDUSTRIAL COMMISSIONER Page 6 Copies to: Mr William J Bribriesco Attorney at Law 2407 18th St Ste 202 Bettendorf IA 52722 Mr Greg A Egbers Attorney at Law 600 Union Arcade Bldg 111 E 3rd St Davenport IA 52801 5-1803 Filed March 11, 1991 Marlon D. Mormann before the iowa industrial commissioner ____________________________________________________________ : SANTOS G. BUENO, : : Claimant, : File No. 910353 : vs. : : A R B I T R A T I O N H.J. HEINZ, : : D E C I S I O N Employer, : : and : : LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803 Claimant, age 41 with a third grade education and work experience consisting of heavy manual labor, received low back injury that restricted his performing certain jobs for employer. Restrictions were 15 minutes standing and 15 pounds lifting. Claimant refused surgery and employer returned him to employment at light duty. Claimant had previous low back injuries. Claimant awarded 20% industrial for most recent low back injury.