Page 1 before the iowa industrial commissioner ____________________________________________________________ : CHARLOTTE SMITH, : : Claimant, : : vs. : File Nos. 869128 : 910567 LOUIS RICH COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ introduction This is a proceeding in arbitration brought by Charlotte Smith, claimant, against Louis Rich Company, employer, and Liberty Mutual Insurance Company, insurance carrier, defendants, for benefits as a result of an injury on July 10, 1987, file number 869128, and another injury on October 14, 1987, file number 910567. In both instances, claimant fell at work and injured her back and right leg. Claimant was represented by Michael W. Liebbe. Defendants were represented by Greg A. Egbers. The record consists of the testimony of Charlotte Smith, claimant; Susan Smith, claimant's daughter; and, Linda Riley, safety supervisor. The record also contains joint exhibits A through J. stipulations The parties stipulated: That an employer-employee relationship existed between claimant and employer at the time of both injuries; That claimant sustained an injury on July 10, 1987 to her low back and right leg and another injury on October 14, 1987 to her low back and right leg, both of which arose out of and in the course of employment with employer; That the injuries were the cause of both temporary and permanent disability; That claimant was paid temporary total disability benefits from November 9, 1987 through January 15, 1989; temporary partial disability benefits from January 16, 1989 through December 4, 1989; temporary total disability benefits from December 5, 1989 through December 10, 1989; and, temporary partial disability benefits again from December 11, 1989 through the date of the hearing. The Page 2 parties further agreed that entitlement to temporary disability benefits was no longer a disputed matter in this case at this time and that no determination was needed on claimant's entitlement to temporary disability benefits; That the type of permanent disability is industrial disability to the body as a whole; That the commencement date for permanent disability benefits is August 4, 1989; That the proper rate of compensation is $171.02 per week; That claimant's entitlement to all medical benefits has been or will be paid by defendants; That defendants make no claim for credit for employee nonoccupational group health plan benefits paid to claimant prior to hearing; That since the parties have agreed that the commencement date for permanent disability benefits is August 4, 1989, defendants are entitled to a credit for all workers' compensation benefits paid to claimant commencing on August 4, 1989 against any award of permanent disability benefits made in this decision; and, That there are no bifurcated claims. issue The parties presented one issue for determination: Whether claimant is entitled to permanent disability benefits and, if so, the extent of benefits to which she is entitled. Page 3 findings of fact causal connection -- entitlement -- permanent disability Claimant, born October 24, 1935, was 51 years old at the time of both injuries and 54 years old at the time of the hearing. The fact that claimant is in the early 50's makes the disability more severe than it would be for a younger person just beginning their earning career or an older person nearing retirement. McCoy v. Donaldson Co., file numbers 782670 and 805200 (App. Decn., April 28, 1989); Walton v. B & H Tank Corp., II Iowa Industrial Commissioner Report 426 (1981); Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report of the Industrial Commissioner 34 (1979). Claimant testified that she graduated from high school. Therefore, she has the benefit of a high school education. There was no evidence of additional education or training. Claimant has a stable employment background and was articulate at the hearing. Therefore, there is no reason to believe that claimant would not benefit by additional education or training. However, additional education or training at her particular age would be difficult, time consuming and expensive. An employee's capacity for additional education or training is one of the considerations in the determination of industrial disability. Conrad v. Marquette School, Inc., IV Iowa Industrial Commissioner Report 74, 89 (1984). Claimant was employed by a Country Kitchen Restaurant for ten years from 1973 until 1983. For the last five or six years of this employment, she worked as an assistant manager. This meant that she was required to fill in for any other employees who did not show up for work. Therefore, she cooked, waited on tables, washed dishes and operated the cash register. Claimant started to work for employer in July of 1983. She started out operating a Whizard knife. Her job for the past several years was removing lower pocket fat from turkey thighs with a straight knife (exhibit G). Claimant denied any prior lumbar back problems and there is no evidence in the record of any prior lumbar back problems. Claimant admitted that she saw Karen Edkin, D.C., for treatments to her cervical spine and thoracic spine in 1983, 1984, 1985, 1986 and 1987 prior to these injuries. Dr. Edkin's records did not show any lumbar spine treatments prior to the date of these two injuries (exhibit E). Claimant testified and the company's records verify that on July 10, 1987, claimant caught her toe in a rug, fell and landed on her knee (exhibit F, pages 3, 4, 8, 10 and 12). Claimant testified that she saw Dr. Edkin. Dr. Edkin recorded that she saw claimant on July 11, 1987. Claimant reported that she had fallen at work the day before onto her right knee and felt a sharp pain in her low back and sciatic pain down her right leg to the knee. Dr. Edkin reported a loss of range of motion and x-rays disclosed a Page 4 subluxation of the fifth lumbar vertebra and the sacrum. The doctor showed that standing eight hours a day on the line for employer was the etiology of claimant's problem (exhibit E, page 2). Claimant further testified that on October 14, 1987, she slipped on wet carpeting and landed on her knees and hand. The company records also verify this injury was reported by claimant (exhibit F, pages 3, 4, 8, 10 and 12). Dr. Edkin gave claimant spinal adjustments for the subluxation of the fifth lumbar vertebra and sacrum from July 11, 1987 through November 18, 1987 (exhibit E, page 4). The doctor noted that she referred claimant to William Catalona, M.D., an orthopaedic surgeon, after consultation with employer when claimant did not respond to her adjustments. Dr. Edkin said that she saw claimant only one more time after that on April 8, 1988 for a headache complaint. The doctor said she did not examine or adjust claimant's low back, but noticed foot drop on the right side in April of 1988 (exhibit E, page 3). Dr. Catalona first saw claimant on November 12, 1987 for low back pain and right sciatica which she related to two injuries at work where she slipped and fell. A myelogram and CT scan on November 17, 1987 at Muscatine General Hospital disclosed a large intervertebral herniated disc at L5-S1 (exhibit A, page 1; exhibit B, pages 1-4). Dr. Catalona performed a laminotomy and discectomy on November 19, 1987 for a herniated nucleus pulposis at L5-S1 (exhibit A, page 1; exhibit B, pages 6-9). Claimant reported a sudden recurrence of low back pain on December 11, 1987 which occurred on December 7, 1987. Claimant was admitted on January 6, 1988 for a repeat myelogram and CT scan which disclosed a recurrence of a large herniated intervertebral disc at L5-S1 on the right side which was encroaching the nerve root at that level (exhibit A, page 1; exhibit B, pages 10-13). Dr. Catalona stated on January 6, 1988 that it was still early post-op and he was reluctant to perform a second procedure, but claimant wanted to know what was causing her pain (exhibit B, page 11). Because she was having persistent pain, she elected to have the second discectomy, even though it was explained to her that the second operation does not relieve as much pain as the initial discectomy and it is accompanied by a higher rate of complications (exhibit B, page 15). The second surgery was performed on January 14, 1988 (exhibit A, page 1; exhibit B, pages 16-21). Dr. Catalona recorded that he found severe scarring in the interlaminer space and, while dissecting out scar from the space, he severed the nerve root (exhibit A, pages 1, 10 and 11). Dr. Catalona further explained as follows: A repeat discectomy at the same level was done on 1/14/88 and during the procedure because of the severe scarring in the interlaminer space while dissecting out scar from the space, the nerve root at this level was lacerated. There was no twitching of the lower extremity muscles on Page 5 lacerating the nerve which usually happens on merely handling the nerve so it came as a surprise. I completed the procedure and repaired the nerve and posteroperatively she has shown no motor or bowel-bladder dysfunction. She does have a patch of hypaesthesia and paresthesia in back of her right thigh and complains that her right leg tires easily. (Exhibit A, page 12) Dr. Catalona stated that claimant would have permanent impairment along with industrial impairment. He planned to use the Cybex muscle test and quantification of the EMG as criteria for determining her permanent impairment (exhibit A, page 12). On March 11, 1988, Dr. Catalona stated that claimant "[s]hould avoid long periods of standing, walking, bending, stooping, climbing, twisting, reaching, pushing, pulling or lifting more that 20#." (Exhibit A, page 9) He further prognosticated, "Using AMA Guide, estimate PI of 15% to 20% of the whole man." (Exhibit A, page 9) Claimant was returned to work on January 16, 1989 working two to four hours per day with gradually increasing the number of hours depending upon her tolerance. Loren L. Arp, L.P.T., designed a "sit-stand" device which would provide claimant support in performing her old job. Dr. Catalona said claimant should avoid long hours and overtime work. He recommended that she start off working an hour or two per day (exhibit A, page 13). Because of a potential law suit against Dr. Catalona, he declined to give an actual permanent functional impairment rating, but did refer claimant to Byron W. Rovine, M.D., a neurosurgeon (exhibit A, page 14). On July 13, 1988, Dr. Rovine reported, "Mrs. Smith recovered from her second operation, but has continued to have low back pain, especially on exertion and she has numbness in the right posterior thigh and some weakness in the right leg. She also had inability to wiggle her toes." (Exhibit C, page 3) Dr. Rovine estimated that claimant would have a 15 percent impairment, 8 percent of which was based on restriction of spinal motion and 7 percent of which was based on neurological deficit in her right lower extremity. He did not consider the impairment to be permanent at that time. He did not believe claimant could work a 6-10 hour day at that time (exhibit C, pages 4 and 5). On March 29, 1989, Dr. Rovine reported that claimant had received extensive physical therapy, and had attended back school and work hardening programs. She had been examined by Cybex technique on a number of occasions. Claimant had not improved since July of 1988, but rather demonstrated some further loss of strength. The EMG's that had been performed disclosed scattered denervation activity in the gastrocnemious and soleus, gluteous maximus and right lumbosacral paraspinals. Despite extensive therapy, she had Page 6 not improved significantly. She worked two hours a day, then three hours a day, but was unable to tolerate four hours a day. Dr. Rovine used a goniometer and measured claimant on the standards in the AMA Guides to the Evaluation of Permanent Impairment, Third Edition, and determined that claimant had a 14 percent permanent impairment based upon loss of motion. He awarded another 6 percent of permanent impairment for residual symptomatology which included: (1) slow gait; (2) favoring her right lower extremity; (3) Achilles' reflex absent; (4) weakness of dorsiflexion of the right foot; (5) marked weakness of dorsiflexion of the right great toe; (6) mild weakness of knee flexion on the right; (7) difficulty standing on her right heel; and, (8) extreme difficulty arising from a squatting position. His total final permanent impairment rating was 20 percent to the body as a whole (exhibit C, pages 1 and 2). Claimant never did return to work full time able to perform her job as she had done in the past. The records show several trial periods of two hours per day, three hours per day, four hours per day, and back to three hours per day (exhibit A, page 15). Dr. Catalona said, "Regarding the long term ability for her working, one needs to wait and see." (Exhibit A, page 16) Claimant has missed a number of complete days and series of days from time to time due to her low back and right leg pain (exhibit A, pages 18, 20, 22, 23, 24, 25, 26, 27 and 28). Dr. Catalona reported on August 30, 1990, just a few days prior to the hearing, that an MRI report showed a bulging annulus on the right at L5-S1 with soft tissue defect measuring one centimeter in diameter below the disc space slightly encroaching the dura. Dr. Catalona recommended and claimant was working at the time of the hearing six hours per day on Monday and Friday and four hours a day on Tuesday, Wednesday and Thursday (exhibit A, page 28). This was the extent of claimant's progress after a great deal of work hardening and physical therapy (exhibit D, pages 1 and 2; exhibit F, page 29; exhibit I). Loren L. Arp, the licensed practical therapist, testified by deposition on October 11, 1989 that he performed physical therapy and work hardening with claimant and tested her several times on the Cybex equipment. He believed that claimant made a sincere effort (exhibit I, pages 1-13). He went to the plant, examined the work place and designed the "sit-stand" device to provide support for claimant's back (exhibit I, pages 14 and 15). Arp said claimant was compliant and cooperative (exhibit I, page 16). He stated her job did not require heavy lifting or bending. Standing could be a problem (exhibit I, pages 20 and 21). Mr. Arp had attempted to return claimant to eight hours of work per day, but had been unable to do so because of her weakness and pain (exhibit I, pages 21 and 22). He did not think claimant could work full time (exhibit I, page 28). Arp did not know of anything else in the physical therapy Page 7 field he could have done to enable claimant to work full time (exhibit I, pages 28 and 29). On August 9, 1989, Arp stated that his final Cybex test disclosed that claimant finished up at 54 percent normal extension strength and 34 percent normal extension endurance (exhibit I, deposition exhibits 7 and 10). Claimant testified that she did not quit work because she needed the income. She had applied for Social Security, was denied, subsequently appealed and was denied again. Claimant felt like she needed to continue physical therapy in order to continue to be able to work. She felt that, without physical therapy, she probably could not work any longer. Claimant related that she takes six to eight Advils per day for pain. She said she had considered a medical malpractice case against Dr. Catalona, but did not bring it because a medical expert advised her that what occurred probably was not truly malpractice but something that could happen under ordinary circumstances. Claimant admitted that she had not tried to perform any other jobs for employer. Susan Smith, claimant's daughter, testified that she lived with her mother and that since the injury her mother had been cranky and edgy. Susan testified that her mother had not been impaired prior to this injury. She said her mother now limps and her activities are more restricted. Susan stated that, when her mother stands up, she has to catch herself because she begins to fall. Linda Riley, safety supervisor, testified that she worked with Dr. Catalona and claimant in trying to provide suitable employment for claimant within her medical job restrictions. Riley compiled a list of numerous jobs in numerous departments that she thought it was possible claimant could perform if she tried, but claimant had not applied for any other positions. She did acknowledge that claimant had no seniority in any department other than her own department of cut-up. Riley stated that the company had provided claimant with the "sit-stand" device recommended by Loren Arp and also employment of six hours per day on Monday and Friday and four hours per day on Tuesday, Wednesday and Thursday as finally recommended by Dr. Catalona. She acknowledged that this list was dated May 31, 1989 and that this was September of 1990. Of the jobs in the cut-up department, the first 30 jobs were all standing jobs which left only 7 other jobs where claimant would have any seniority. Riley said that in January of 1989, claimant seemed to be anxious to return to work. Claimant testified by way of rebuttal that she watched the board daily and saw only one of these jobs posted. Furthermore, most of the jobs were not within her work restrictions or else she was not qualified to perform them. Wherefore, based upon claimant's age of the early 50's; her high school education and trainability; her past versatile and stable employment record; claimant's permanent impairment rating of 20 percent to the body as a whole; claimant's restrictions of not to lift more than 20 pounds, Page 8 to avoid long hours and overtime work, and her inability to work for prolonged periods of time while standing; the permanent weakness and pain in claimant's back and right leg; loss of range of motion; two lumbar surgeries, one of which inadvertently severed a nerve; the fact that employer is providing employment for employee within her medical restrictions and has gone to great lengths to accommodate claimant with employment, and claimant's willingness to continue to work in spite of her limitations; the fact that claimant still is not able to work full time and there is no indication that she ever will be able to work full time again; the fact that the treating physician and the evaluating physician both found that claimant was getting worse rather than better; and, because even after two surgeries claimant still had a bulging annulus at the level of the prior two surgeries; it is determined that claimant has sustained a 40 percent industrial disability to the body as a whole and that claimant is entitled to 200 weeks of permanent partial disability benefits. Dr. Catalona prognosticated on September 1, 1989, "Certainly Ms. Smith is not getting younger and along with her back problem will suffer fatigue the more she works." (Exhibit A, page 16) However, this decision is based on her condition at the time of this hearing and not what might occur after the hearing. conclusions of law Wherefore, based upon the evidence presented and the foregoing and following principles of law, these conclusions of law are made. That the injuries of July 10, 1987 and October 14, 1987 were the cause of permanent disability. 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). That claimant has sustained a 40 percent industrial disability to the body as a whole. Diederich v. Tri-City Ry. Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935); Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). That claimant is entitled to 200 weeks of permanent partial disability benefits. Iowa Code section 85.34(2)(u). order THEREFORE, IT IS ORDERED: That defendants pay to claimant two hundred (200) weeks of permanent partial disability benefits at the rate of one hundred seventy-one and 02/100 dollars ($171.02) per week in the total amount of thirty-four thousand two hundred four and 00/100 dollars ($34,204.00) payable commencing on August 4, 1989 as stipulated to by the parties. That defendants are entitled to a credit for all workers' compensation benefits paid to claimant either as temporary total disability or temporary partial disability since that date as stipulated to by the parties. Page 9 That all accrued benefits are to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That the costs of this action are charged to defendants pursuant to Division of Industrial Services Rule 343-4.33. That defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. That defendants file a first report of injury for the injury that occurred on October 14, 1987. Signed and filed this ______ day of ____________, 1990. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Michael W. Liebbe Attorney at Law 116 East 6th Street P.O. Box 339 Davenport, Iowa 52805 Mr. Greg A. Egbers Attorney at Law 600 Union Arcade Building 111 East Third Street Davenport, Iowa 52801 Page 1 before the iowa industrial commissioner ____________________________________________________________ : DALE LEMANTON, : : Claimant, : : vs. : : File No. 910597 D.C.S. SANITATION MANAGEMENT : INC., : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : AETNA CASUALTY & SURETY : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in arbitration brought by Dale Lemanton against D.C.S. Sanitation Management, Inc., his former employer, and Aetna Casualty & Surety Company, its workers' compensation insurance carrier. Lemanton seeks additional compensation for healing period or temporary total disability and permanent disability affecting his left eye resulting from an injury of November 21, 1988. On the prehearing report, it was indicated that there was a dispute regarding whether claimant sustained an injury on November 21, 1988 which arose out of and in the course of his employment with the employer, but at the hearing, defense counsel indicated that there was no dispute regarding the incident and that the principal dispute in the case was whether or not Lemanton could recover additional compensation for permanent partial disability of his left eye since the eye had been previously injured and he had been previously compensated for 100 percent loss of the use of his left eye. The record in the case consists of testimony from Thomas John Gairloch Leitch, M.D., a Council Bluffs, Iowa ophthalmologist and Dale Lemanton. The record also contains jointly offered exhibits 1 through 27. findings of fact Dale Lemanton severely burned his face and left eye in an industrial accident that occurred while he was employed by Blue Star Foods in 1977. He experienced a long course of difficulties with the eye. On March 13, 1978, J. C. Filkins, M.D., one of the treating ophthalmologists, reported that claimant had a 100 percent loss of vision in Page 2 his left eye as a result of that injury. Dr. Filkins also indicated that claimant could possibly regain some of the lost vision with a corneal transplant. A corneal transplant was attempted in 1980, but was rejected shortly after the procedure had been performed. A second transplant was performed in 1983 which was apparently successful and provided claimant with some vision in his left eye until he reinjured the eye by striking it on a table in 1985 (exhibits 13 and 14). Lemanton underwent a third corneal transplant surgery on March 4, 1988 (exhibit 17). Dr. Leitch indicated in his notes of June 3, 1988 that felt the prognosis was good (exhibit 24, page 6). The medical records following that surgery indicate that the graft was doing well, though some problems are noted in office visits of July 21, 1988 and August 18, 1988 (exhibit 21, pages 2-4; exhibit 24, page 7). On August 26, 1988, while performing cleanup work for the employer, claimant was again struck in the eye with steam. He was seen by Dr. Leitch and a fresh abrasion was observed on the left eye. The abrasion healed in two days and the corneal graft remained clear (exhibit 24, page 6; exhibit 27, page 8). When seen on September 22, 1988 at the University of Iowa Hospitals and Clinics, severe surface changes were noted on the cornea. When seen on October 27, 1988, the assessment made was that he was still doing well, although the irregular surface and epithelial cysts were noted. Claimant was seen again at the University of Iowa Hospitals and Clinics on November 29, 1988 at which time he expressed that he felt his visual acuity had decreased. An abrasion was observed on the eye (exhibit 21, page 6). Dr. Leitch saw claimant on December 11, 1988 and a large abrasion was noted. The abrasion was slow to heal. Dr. Leitch indicated that, if claimant could have returned to work in a clean, safe environment, he could have done so as early as January 10, 1989 since the abrasion had healed by that time (exhibit 20; exhibit 27, page 20). Dr. Leitch also indicated that, in view of the problems with the eye, it was not advisable for claimant to return to the type of work he had performed for this employer which presented opportunity for further injury. The corneal graft subsequently was rejected. Dr. Leitch reported that claimant had complete loss of vision in his left eye due to the repeat steam burns which had caused the graft to fail (exhibit 23; exhibit 27, page 10). Dr. Leitch indicated that the loss of vision in the left eye is probably irreversible (exhibit 27, pages 15 and 16). J. H. Krachmer, M.D., from the University of Iowa Hospitals and Clinics, also indicated that further corneal grafting would have little chance of success (exhibit 22). Dr. Leitch stated that, if the recent graft had not been rejected, claimant would probably have been able to regain some vision with the left eye through the use of a corneal contact lens (exhibit 27, page 23). Page 3 Dr. Leitch's assessment of the case is corroborated by the records from the University of Iowa Hospitals and Clinics. It is specifically found that the corneal graft which was performed in 1988 would probably have been successful in restoring some vision in claimant's left eye if it had not been injured on November 21, 1988 in the meat hook incident. The steam injury from August 1988 may have possibly played some part in causing the graft to be rejected, but it is clear that the November injury certainly did so. While the graft appeared successful prior to the traumas, it had not yet progressed to the point that claimant had normal vision. The record of the case does not contain specific percentage ratings of the degree of vision which claimant has, had or would have regained if the traumas had not occurred. Dr. Leitch expected that the corrected vision would be in the range of 20/30 or 20/40. At one point, Dr. Leitch noted that claimant could count fingers at eight feet with the left eye. The uncorrected vision was still not particularly good at the time of the August and November traumas. It is found that, in late 1987, claimant's vision in his left eye was essentially limited to light perception and that the same state exists at the present time. He essentially has a total loss of use of the left eye. It is further found that, immediately prior to the 1988 traumas, claimant had regained approximately 40 percent of the vision in his left eye. If the expected recovery following the graft surgery had occurred, as is found to be probable, he would have regained approximately 90 percent of the use of the left eye when corrective lenses were employed. conclusions of law Claimant has the burden of proving by a preponderance of the evidence that he received an injury on November 21, 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). The claimant has the burden of proving by a preponderance of the evidence that the injury of November 21, 1988 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). Dr. Leitch's assessment has been previously found to be correct. It is therefore determined that the rejection of the transplanted cornea is the result of an injury which arose out of and in the course of claimant's employment with Page 4 D.C.S. Sanitation Management, Inc. Claimant seeks healing period. He was off work starting November 29, 1988. He was released to safe work by Dr. Leitch on January 18, 1990 (exhibit 27, page 14). The fact that claimant could have returned to safe work in January is not controlling since such work was not made available to him. It is determined that claimant reached maximum medical recuperation when he was seen by Dr. Leitch on May 18, 1989. It was at that point that active medical treatment ceased. The healing period is therefore 24 and 3/7 weeks. The law of workers' compensation recognizes that the state of permanency which supports an award need not be absolute perpetuity. Wallace v. Brotherhood of Locomotive Firemen & Enginemen, 230 Iowa 1127, 300 N.W. 322 (1941). The workers' compensation law allows review-reopening [section 86.14(2), Code of Iowa]. It is not impossible for a person with a permanently damaged member to recover more use of the member than what the medical practitioners had originally anticipated. In this case, it had been indicated as early as 1978 that a corneal transplant could possibly restore some of claimant's vision. If the restoration had occurred promptly, the employer liable for the 1977 injury could have reopened the case in order to reduce the amount of permanent disability compensation payable. Since all payments had been paid and the statute of limitations provided by Code section 85.26(2) had elapsed, the employer was not able to recoup any part of the permanent partial disability compensation which had been paid. This is the reverse of the situation that occurs when an injured person's condition unexpectedly worsens after the time for review-reopening has elapsed. The correct rule of law is that the amount of compensation awarded for permanent disability is based upon the actual loss which was proximately caused by the injury. Evidence showing prior payment of permanent disability compensation can certainly be used to establish the existence of a preexisting condition as a basis for apportionment of disability, but it is not conclusive. It does not bar payment of additional compensation in those cases where the degree of disability has lessened since the original award of disability compensation was made. 2 Larson Workmen's Compensation Law, section 59.42. It is therefore concluded that Dale Lemanton is entitled to recover weekly compensation for a 40 percent loss of the vision in his left eye. This entitles him to recover 56 weeks of compensation at the stipulated rate of $178.38 in accordance with Iowa Code section 85.34(2)(p). The compensation is payable commencing on May 19, 1989, the day after the end of the healing period. In making this assessment, the award is made based upon uncorrected vision. order IT IS THEREFORE ORDERED that defendants pay claimant twenty-four and three-sevenths (24 3/7) weeks of Page 5 compensation for healing period at the stipulated rate of one hundred seventy-eight and 38/100 dollars ($178.38) per week payable commencing November 29, 1988. IT IS FURTHER ORDERED that defendants pay claimant fifty-six (56) weeks of compensation for permanent partial disability at the stipulated rate of one hundred seventy-eight and 38/100 dollars ($178.38) per week payable commencing May 19, 1989. IT IS FURTHER ORDERED that all amounts be paid in a lump sum as they are accrued and past due, together with interest pursuant to Iowa Code section 85.30. IT IS FURTHER ORDERED that the costs of this action are assessed against defendants pursuant to Division of Industrial Services Rule 343-4.33. IT IS FURTHER ORDERED that defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this ______ day of ____________, 1990. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Stephen A. Rubes Attorney at Law 222 South Sixth Street Council Bluffs, Iowa 51501 Ms. Judith Ann Higgs Attorney at Law 200 Home Federal Building P.O. Box 3086 Sioux City, Iowa 51102 1703, 1802, 1803 Filed August 3, 1990 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : DALE LEMANTON, : : Claimant, : : vs. : : File No. 910597 D.C.S. SANITATION MANAGEMENT : INC., : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : AETNA CASUALTY & SURETY : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 1802, 1803 Healing period ended when active medical treatment ceased. 1703 Claimant, who had previously been compensated for 100 percent loss of his left eye due to an earlier accident, but had regained some use of the eye through corrective surgery, was held to be entitled to recover additional permanent disability compensation for the loss of use of the eye which was caused by the subsequent injury. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ MARVIN R. SNYDER, Claimant, vs. File Nos. 910623/974049 INTERSTATE DETROIT DIESEL, A P P E A L Employer, D E C I S I O N and WAUSAU INSURANCE COMPANIES, 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 29, 1992 is affirmed and is adopted as the final agency action in this case. Claimant 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. David D. Drake Attorney at Law West Towers Office 1200 35th St., Ste 500 West Des Moines, Iowa 50265 Mr. Marvin E. Duckworth Attorney at Law 2700 Grand Ave., Ste 111 Des Moines, Iowa 50312 9998 Filed November 17, 1992 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ MARVIN R. SNYDER, Claimant, vs. File Nos. 910623/974049 INTERSTATE DETROIT DIESEL, A P P E A L Employer, D E C I S I O N and WAUSAU INSURANCE COMPANIES, Insurance Carrier, Defendants. ____________________________________________________________ 9998 Summary affirmance of deputy's decision filed June 29, 1992. Page 1 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : MARVIN R. SNYDER, : : Claimant, : : File Nos. 910623 vs. : 974049 : INTERSTATE DETROIT DIESEL, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : WAUSAU INSURANCE COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE Claimant, Marvin Roger Snyder, seeks benefits under the Iowa Workers' Compensation Act, and has filed two petitions in arbitration against Interstate Detroit Diesel, employer, and Wausau Insurance Companies, insurance carrier, as defendants. The files were consolidated, and a hearing was held on April 2, 1992, at Des Moines, Iowa. The record in these cases consists of the testimony from the claimant and Larry Crowell; and, joint exhibits 1A through 1M and 2 through 13. Agency file No. 910623 presents the following issues for resolution: 1. Whether there is a causal relationship between claimant's injury of February 24, 1989 and his current disability; 2. Whether claimant is entitled to temporary total or healing period benefits, or permanent partial or total disability benefits; 3. Whether claimant is entitled to medical benefits as governed by Iowa Code section 85.27; and, 4. Whether defendants are entitled to credit for benefits previously paid as provided for under Iowa Code section 85.38(2). Agency file No. 974049 presents the following issues for resolution: 1. Whether claimant received an injury on March 7, 1989, which arose out of and in the course of his Page 2 employment; 2. Whether there is a causal relationship between the alleged injury and claimant's disability; 3. Whether claimant is entitled to temporary total disability or healing period benefits, or permanent partial or total disability benefits; 4. Whether claimant is entitled to medical benefits as provided for under Iowa Code section 85.27; and, 5. Whether defendants are entitled to credit for benefits previously paid as governed by Iowa Code section 85.38(2). FINDINGS OF FACT The undersigned deputy, having reviewed all the evidence received, finds the following facts: Claimant was born on November 5, 1950. At the time of the hearing, he was 41 years of age. After graduating from high school in 1969, claimant entered the army and spent four months on active duty. At that time, he was diagnosed as having a benign tumor in his left ear, and received an honorable discharge. In 1970, claimant was hired by Hicklin G.M. Power as a mechanic. Hicklin G.M. Power is now known as Interstate Detroit Diesel, and will hereinafter be referred to as defendant. For the first several years, claimant worked as a mechanic trainee, and joined the engine guild in 1973. In order to join, he was required to complete and pass a written test, which enabled him to work on all types of G.M. diesel motors and engines. In order to maintain his membership in the guild from 1970 through 1989, claimant continued to take various tests to improve his classification. In 1989, claimant was classified as a master craftsman. Claimant's job duties while working for defendant including complete overhaul of diesel engines, transmissions and electrical systems. Defendants' shop repaired all types of G.M. heavy machinery, including engines, bulldozers, road graders and scrapers, and trucks. Claimant described his job as very heavy labor and everyday duties involved and extensive amount of bending, stopping, squatting and lifting of up to 200 pounds. Hoists were available to lift heavy parts and equipment. Rebuilding the diesel engines required claimant to use a creeper to allow him to perform overhead work from underneath the machines. Working on various electrical systems required the least amount of physical demands as claimant was required to lift 35 to 70 pounds occasionally. On February 24, 1989, claimant was working in the shop Page 3 on a truck that had just come in and was still icy from road conditions. As claimant began to climb down from the cab of the truck, he slipped, fell to the floor and twisted his left knee. He went to lunch, and his left knee became so painful that he was unable to work. Claimant reported the incident to his foreman, Dave Anderson, and was sent to the Iowa Lutheran Medical Center emergency room. Claimant was treated by Rodney Johnson, M.D., who ordered various tests, put a splint on the left knee, and gave claimant a pair of crutches. Claimant attempted to return to work within the next several days, but due to the pain returned to Dr. Johnson. Although all of the test results were negative, claimant underwent arthroscopic surgery in March 1989. During the surgery, Dr. Johnson performed a partial lateral menisectomy with debridement of the medial femoral condyle (Joint Exhibit 1a, page 2). In August of September of 1989, claimant underwent a high tibial valgus osteotomy on the left lower extremity. This was performed to alter the weight bearing stresses of claimant's knees. Claimant began physical therapy prior to the osteotomy, and testified that he developed problems with his shoulders, elbows, wrists and his hiatal hernia. Eventually, Dr. Johnson referred claimant to James A. Rand, M.D., at the Mayo Clinic. Dr. Rand felt no further surgical intervention was necessary, and on May 3, 1990, claimant was released by Dr. Johnson and was to return to work. Both Drs. Rand and Johnson felt claimant would be unable to perform his previous job duties with the defendant and Dr. Johnson recommended vocational rehabilitation (Jt. Ex. 1d, p. 2). Apparently, claimant contacted the defendant, who stated that with the restrictions placed upon him he would be unable to perform work at the company. No light duty work was available. Claimant has received several impairment ratings. Dr. Johnson, claimant's treating physician causally relates claimant's left knee problems to the February 24, 1989 work injury. He assigned to the claimant an impairment rating of 20 percent to the left lower extremity (Jt. Ex. 1g, pp. 7- 8). Dr. Johnson also states that 5 percent of this impairment rating is due to claimant's previous knee surgery in 1981 (Jt. Ex. 1d, pp. 3,5). Dr. Rand of Mayo Clinic states in his reports that he is unable to determine how much of the claimant's present complaints in his knees relate to his previous surgeries or any work-related injuries (Jt. Ex. 1e, p. 1). Marvin Dubansky, M.D., also evaluated claimant. He reviewed the medical records and related claimant's left knee complaints to the fall on February 24, 1989, as an aggravation of the preexisting degenerative condition of the Page 4 claimant's knee and tear of the lateral meniscus. He opined that the claimant has an impairment rating of 21 percent to the left lower extremity, and anticipated no further impairment if the claimant undergoes total knee arthroplasty in the future. Claimant's past medical history is remarkable for a myriad of physical ailments. Specifically, claimant has had hearing loss associated with ear problems since the 1970's. He has had several surgeries to repair ruptured eardrums, but continues to experience loss of hearing in the left ear. Additionally, claimant has been diagnosed as having bilateral carpal tunnel syndrome. In 1986 or 1987, he underwent carpal tunnel surgery on the left wrist but due to what claimant perceived as an unsuccessful result, he declined to have a release done for the right wrist. Claimant has also undergone prior knee surgeries, specifically, bilateral retinacular releases in 1981 (Jt. Ex. 1d, pp. 20, 31-32; 1i, p. 15). Claimant admitted that chiropractic treatment received from May through September of 1986 had involved treatment for arm and shoulder complaints (Jt. Ex. 1d, p. 18). No impairment ratings had been given as a result of any arm or shoulder conditions until August of 1991, after he had obtained his subsequent employment with Benson Motors. The claimant also testified to continuing problems and medical treatment for his wrists, elbows, shoulders, back and knees since beginning work at Benson Motors in December of 1989. He admitted that in June of 1991 his right elbow locked up while using a grease gun requiring medical treatment and he had also gone to the emergency room in August of 1991 for pain in his elbows caused by his work at Benson Motors (Jt. Exs. 1-4). The medical records show that claimant has had previous problems with his right knee dating back to 1981, including surgery by Dr. Boulden (Jt. Ex. 1d, pp. 20,31,32). After his fall on February 24, 1989, the claimant initially complained only of left knee problems and, in April of 1989, began to complain of problems in both his right and left knees (Jt. Ex. 1d, p. 13). Significant degenerative changes or arthritis have been noted in both the claimant's left and right knee (Jt. Ex. 1d, p. 14; Jt. Ex. 1e, p. 1; Jt. Ex. 1i, p. 9). In October of 1989, claimant advised Dr. Johnson that the symptoms in his right knee developed at the time of his fall on February 24, 1989 (Jt. Ex. 1d, p. 6). Although Dr. Johnson suggests claimant's problems in his upper extremities may be related to cumulative injury at Interstate Detroit Diesel (Jt. E. 1d, p. 1), Dr. Dubansky suggests that this injury, if any, is ongoing with the claimant's work at Benson Motors. Claimant has been given an impairment rating of 20 percent to the right upper extremity and 15 percent of the left upper extremity as a result of these complaints (Jt. Ex. 1g, pp. 1,2). This impairment rating was given in August of 1991 after the Page 5 claimant had been off work at Interstate Detroit Diesel since March of 1989 and had returned to work for a subsequent employer, Benson Motors, for approximately eight months. The medical evidence shows that claimant was diagnosed with a hernia ten years ago. He had continuing problems with the hernia including problems in August of 1988, four months prior to his knee injury on February 24, 1989 (Jt. Ex. 1m, pp. 2,3). At the time of his hernia surgery in June of 1989, he reported that his complaints had already been increasing over the past year unrelated to any injury at Interstate Detroit Diesel (Jt. Ex. 1i, p. 4). Dr. Johnson has suggested that the medications given to the claimant for his knee injury may have exacerbated his hernia complaints. However, Dr. Johnson does not state this opinion to any probability (Jt. Ex. 1d, p. 9). The claimant has not been given a permanent impairment rating for his hernia condition. Despite all of claimant's physical ailments, he is currently working as a mechanic for Benson Motors in Ames, Iowa. As such, he performs maintenance and overhaul of engines, transmissions, rear ends, and services trucks. Claimant testified that his position requires him to bend, stoop, squat and climb stairs. He frequently works underneath vehicles and lifts in excess of 200 pounds. His position with defendant required less lifting, and he was provided more variety of work with Benson Motors. Additionally, claimant testified that his current position aggravates his knees, wrists, elbows, shoulders and back. He further stated that he feels worse today than he did one year ago. ANALYSIS AND CONCLUSIONS OF LAW For agency file No. 910613, the first issue to be addressed is whether claimant's injury on February 24, 1989, is the cause of a permanent disability. An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). The claimant has the burden of proving by a preponderance of the evidence that the injury of February 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 Page 6 unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). 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 disability. Blacksmith v. All-Amnerican, Inc., 290 N.W.2d 348, 354 (Iowa 1980). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). The medical evidence clearly shows that the only condition that has been causally related to the claimant's fall on February 24, 1989, is an injury to his left knee. Both Drs. Johnson and Dubansky relate the condition of claimant's left knee to the work injury. His impairment ratings of 15 percent or 21 percent to the left lower extremity from Dr. Johnson and Dr. Dubansky respectively would be related to this condition. Both doctors provide credible documentation as to the impairments, and each opinion carries the same weight as the other. As a result, the undersigned believes that an average of the two ratings provides the most equitable result. Claimant is awarded 39.857 weeks (18% of 220 weeks) of permanent partial disability payments. For claimant to prevail in file No. 974049, he must prove by a preponderance of the evidence that he sustained an injury on March 7, 1989, that arose out of and in the course of his employment. 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 Page 7 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 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, 261 Iowa 352, 154 N.W.2d 128. Especially germane to the case at bar is the agency's reliance upon Almquist v. Shenandoah Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934). The Supreme Court of Iowa in Almquist, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934), discussed the definition of personal injury in workers' compensation cases as follows: While a personal injury does not include an occupational disease under the Workmen's Compensation Act, yet an injury to the health may be a personal injury [Citations omitted.] Likewise a personal injury includes a disease resulting from an injury....The result of changes in the human body incident to the general processes of nature do not amount to a personal injury. This must follow, even though such natural change may come about because the life has been devoted to labor and hard work. Such result of those natural changes does not constitute a personal injury even though the same brings about impairment of health or the total or partial incapacity of the functions of the human body. .... A personal injury, contemplated by the Workmen's Compensation Law, obviously means an injury to the body, the impairment of health, or a disease, not excluded by the act, which comes about, not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee. [Citations omitted.] The injury to the human body here contemplated must be something, whether an accident or not, that acts extraneously to the natural processes of nature, and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. And, claimant relies upon a cumulative trauma theory to advance his claim. Page 8 When the disability develops gradually over a period of time, the "cumulative injury rule" applies. For time limitation purposes, the compensable injury is held to occur when because of pain or physical disability, the claimant can no longer work. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). Claimant has failed to prove that he sustained cumulative trauma to his shoulders, arms, elbows and wrists over the past twenty years that required him to quit work. Not only have none of the claimant's physicians stated to a sufficient degree of medical certainty that these complaints are in any way related to any injury on February 24, 1989, or cumulative injury as a result of his employment with Interstate Detroit Diesel on March 7, 1989, but at least one physician (Dr. Dubansky) was of the opinion that claimant's continued work with Benson Motors appears to be the cause of claimant's physical problems. Likewise, claimant has not suffered any disability from the other physical problems he attributes to cumulative traumas. Claimant states that his shoulder, elbows and wrists "ache." Yet, claimant has continued to work as a mechanic since his full recovery from the left knee reconstructive surgery. As a result, claimant takes nothing for file No. 974049. ORDER THEREFORE, it is ordered: That defendants shall pay claimant permanent partial disability benefits for thirty-nine point eight five seven (39.857) weeks at the rate of two hundred ninety-seven and 30/100 dollars ($297.30) per week beginning May 3, 1990. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall pay the costs of this action, pursuant to rule 343 IAC 4.33. That defendants shall file an activity report upon payment of this award as required by this agency, pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of June, 1992. Page 9 ---------------------------- PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. David D Drake Attorney at Law West Towers Office 1200 35th St Ste 500 West Des Moines IA 50265 Mr Marvin E Duckworth Attorney at Law Terrace Ctr Ste 111 2700 Grand Ave Des Moines IA 50312 5-1100 Filed June 29, 1992 Patricia J. Lantz BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : MARVIN R. SNYDER, : : Claimant, : : File Nos. 910623 vs. : 974049 : INTERSTATE DETROIT DIESEL, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : WAUSAU INSURANCE COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1100 Claimant failed to prove by a preponderance of the evidence that numerous complaints of pain in his shoulders, wrists, arms and back were caused by cumulative trauma spanning twenty years. Page 1 before the iowa industrial commissioner ____________________________________________________________ _____ : STEVEN L. SWANK, : : Claimant, : : vs. : : File No. 910780 DRS TRANSPORT, INC., : : A P P E A L Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ _____ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed January 23, 1991 is affirmed and is adopted as the final agency action in this case with the following additional analysis: Although claimant maintains his loss of earnings that resulted when he went from being a truck owner-operator to an employee are due to his inability to work as hard because of his injury, the medical evidence shows that claimant is under no medical restrictions on truck driving. Claimant has not carried his burden to show that the loss of earnings that resulted was in fact caused by his work injury. Rather, the greater weight of the evidence shows that claimant's financial decision not to buy a new truck was primarily responsible for his loss of earnings. Claimant's self-perceived inability to work the hours necessary to pay the financial obligations of a new truck are not supported by the medical evidence, and in fact are contradicted by it. As to claimant's rate, claimant relies on his 1988 income tax return, representing a period of time when he was an owner-operator. The proposed arbitration decision erroneously refers to truck rental. Claimant does urge inclusion of depreciation and interest costs in that portion of his truck revenue representing his wages. However, depreciation and interest on equipment are not wages. The Iowa Supreme Court adopted district court language in D & C Express v. Sperry, 450 N.W.2d 842 (Iowa 1990), saying: "Many factors, such as interest paid, depreciation....enter into a Page 2 determination of taxable income that would not be applicable to determine wages." The evidence indicates that the employer and insurance carrier considered 33 percent of claimant's revenue as wages. There was also evidence that 33 percent is the industry standard. When claimant's interest and depreciation are not considered, claimant's actual revenue from the truck after deducting expenses is approximately 30 percent. It is found that one third of claimant's revenue represented claimant's wages. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of March, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Steven C. Jayne Attorney at Law 5835 Grand Ave., Ste 201 Des Moines, Iowa 50312 Mr. James C. Huber Attorney at Law 418 6th Ave. 500 Liberty Bldg. Des Moines, Iowa 50309-2421 3001; 1108.50 Filed March 26, 1992 Byron K. Orton JMI before the iowa industrial commissioner ____________________________________________________________ _____ : STEVEN L. SWANK, : : Claimant, : : vs. : : File No. 910780 DRS TRANSPORT, INC., : : A P P E A L Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ _____ 3001 Truck owner-operator's gross earnings did not include depreciation and interest on his truck, citing explicit language in D & C Express v. Sperry, 450 N.W.2d 842 (Iowa 1990). 1108.50 Greater weight of evidence showed truck owner-operator's decision to go from owner-operator status to employee stemmed not from his injury, but from his economic decision not to buy a new truck. Claimant's self-perceived inability to work enough hours to make payments on a new truck was outweighed by the medical evidence, which showed no restrictions on how many hours he could work. before the iowa industrial commissioner _________________________________________________________________ : LYNN SITES, : : Claimant, : : vs. : : File No. 910873 DONALD LAHR TRUCKING, : : A P P E A L Employer, : : D E C I S I O N and : : CIGNA, : : Insurance Carrier, : Defendants. : _________________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed August 13, 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 December, 1991. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Robert R. Rush Mr. Matthew J. Nagle Attorneys at Law P.O. Box 2457 Cedar Rapids, Iowa 52406 Mr. John M. Bickel Attorney at Law P.O. Box 2107 Cedar Rapids, Iowa 52406 9998 Filed December 30, 1991 Byron K. Orton EAN before the iowa industrial commissioner ____________________________________________________________ _____ : LYNN SITES, : : Claimant, : : vs. : : File No. 910873 DONALD LAHR TRUCKING, : : A P P E A L Employer, : : D E C I S I O N and : : CIGNA, : : Insurance Carrier, : Defendants. : ____________________________________________________________ _____ 9999 Summary affirmance of deputy's decision filed August 13, 1991, with short additional analysis. Page 1 5-1803; 5-2906; 5-3001 Filed August 13, 1991 ELIZABETH A. NELSON before the iowa industrial commissioner ____________________________________________________________ : LYNN SITES, : : Claimant, : : vs. : : File No. 910873 DONALD LAHR TRUCKING, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CIGNA INSURANCE COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803 Claimant, 37 at the time of the hearing, with a work history of manual labor and truck driving, injured his back in a fall from the top of a truck. Claimant has an attendance certificate from the West Delaware School District and is able to read at a 7th grade level. Claimant has historically earned between $3.00 and $7.00 per hour. Claimant has low motivation to find alternate employment due to reasons unrelated to his work injury. He is foreclosed from returning to truck driving. Claimant has a lifting restriction of 25 pounds. Claimant was working at the time of hearing as a bartender. Claimant was awarded 45 percent industrial disability. 5-2906 Claimant attempted to use the First Report of Injury to prove rate. The testimony was excluded pursuant to Iowa Code section 85.11 (1991). Claimant's objection to the testimony of two of defendants' witnesses was sustained. Defendants failed to seasonably supplement answers to interrogatories to advise claimant that they intended to call Susan Voelker and William Brunsmann as witnesses pursuant to Iowa Rule of Civil Procedure 122. Defendants' motion to amend admissions was denied. Defendants were not entitled to withdraw their admissions at the close of their case in chief because to do so would be highly prejudicial to the claimant. Page 2 Claimant's objection to hearsay testimony was overruled. Authority cited in the claimant's brief was adopted. The standard adopted at the time of the hearing was correct. 5-3001 Claimant earned irregular wages and worked only 8 weeks for employer before he was injured. Three of the weeks were excluded because of holidays and short work weeks. Claimant's gross weekly wage was found to be $439.00. Claimant's rate was found to be $259.45 Page 1 before the iowa industrial commissioner ____________________________________________________________ : SANDRA S. DORFMAN, : : Claimant, : : File Nos. 878903 vs. : 894241 : 911102 JOHN MORRELL & CO., : : 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 COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case Case number 878903 is a proceeding in arbitration upon the June 22, 1988 petition of claimant Sandra S. Dorfman seeking benefits under the Iowa Workers' Compensation Act from employer John Morrell & Company and its insurance carrier, National Union Fire Insurance Company. Claimant alleges a work-related psychological disturbance. File number 894241 is also a proceeding in arbitration upon a petition filed June 2, 1989. Claimant seeks benefits under the Iowa Workers' Compensation Act from the same defendants upon allegations of injury to the lower back and hip on August 29, 1988. Case number 911102 is also a proceeding in arbitration upon claimant's petition of June 2, 1989. Claimant seeks benefits from the same defendants upon allegations of an injury to the shoulders and neck of February 6, 1989. These causes were consolidated by order of July 18, 1989. The consolidated actions came on for hearing in Sioux City, Iowa, on September 13, 1990. The record consists of joint exhibits 1 through 85, claimant's exhibit A and the testimony of claimant, Robert Calvert and Patricia Ann Reilly. Page 2 issues The parties have stipulated that an employment relationship existed at all times relevant and that claimant sustained injury arising out of and in the course of that employment on August 29, 1988 and February 6, 1989. Issues presented for resolution in file number 878903 include: 1. Whether claimant sustained a psychological injury arising out of and in the course of her employment with John Morrell on or about April 20, 1988; 2. Whether there exists a causal relationship between that injury and any subsequent temporary disability (claimant does not seek benefits based on permanent disability); 3. The extent of claimant's temporary disability, if any; and, 4. Whether claimant is entitled to medical benefits under Iowa Code section 85.27. Issues presented for resolution in file number 894241 include: 1. Whether there exists a causal relationship between claimant's injury of August 29, 1988 and any subsequent temporary or permanent disability; 2. The nature and extent of claimant's disability, if any; and, 3. Whether claimant is entitled to medical benefits under Iowa Code section 85.27 or medical evaluation benefits under Iowa Code section 85.39. Issues presented for resolution in file number 911103 include: 1. Whether there exists a causal relationship between claimant's injury of February 6, 1989 and any subsequent temporary or permanent disability; 2. The nature and extent of claimant's disability, if any; and, 3. Whether claimant is entitled to medical benefits under Iowa Code section 85.27 or medical evaluation benefits under Iowa Code section 85.39. findings of fact The undersigned deputy industrial commissioner, having heard the testimony and considered all of the evidence, finds: Sandra S. Dorfman, 30 years of age at hearing, Page 3 completed only the ninth grade in school, quitting at age 16 to work. Grades were poor and claimant admits that her reading comprehension, spelling and arithmetic skills are poor. She has had no further education. Claimant's work history includes one or two months as a milk shake maker and cashier for an ice cream stand, six months of work as a cook and order filler for a fast food restaurant, one summer's work as an order filler for a root beer stand, approximately three years' work as a cookie packer for a bakery, and employment since 1980 with John Morrell and a predecessor business known as Iowa Meats. Defendant John Morrell is engaged in the meat packing industry. While off work for approximately one year during a strike ending in 1988, claimant worked approximately two months as a telemarketer and six months as a pizza baker. Claimant's prior health history includes juvenile onset diabetes, lifelong obesity and a history of emotional problems. She also complained of low back pain to George G. Spellman, M.D., in 1982, but does not now recall that complaint. She was admitted to the Marian Health Center in Sioux City on August 18, 1983 and discharged on August 22 with a diagnosis of adjustment disorder with disturbance of emotions. The discharge summary noted that claimant had been admitted in an extremely anxious and depressed state, feeling unable to cope, feeling "harassed by people," and with severely compromised self-esteem. She was described as a "worrier" (obsessive personality disorder), a characterization with which she agrees. Claimant was readmitted to the Marian Health Center on January 17, 1984 and discharged on January 23. Final diagnosis of Gerald A. Brooks, M.D., included, on Axis 1, major depressive disorder, agoraphobia with panic attacks and eating disorder with obesity. On Axis 2, avoidance personality disorder was diagnosed. Page 4 Claimant underwent gastric bypass surgery in 1986, returning to work later that year. She had weighed as much as 313 pounds before this surgery, and weighed 173 at hearing. Claimant is five feet, eight inches tall. As noted, John Morrell was involved in an extended and apparently bitter labor dispute ending in March 1988. Replacement workers were hired during the strike. Robert Calvert, a supervisor with eight years' employment with John Morrell, testified that there was substantial friction between replacement workers and strikers when the labor dispute was finally resolved and that ill will continued to characterize feelings between the two groups. Claimant described her return to work following the strike as fraught with tension. She complains that replacement workers demonstrated hostility towards union workers in general and her in specific by performing the work improperly, hiding meat, laughing at claimant and generally "harassing" her. She presented to the Siouxland Mental Health Center on May 11, 1988 with moderate to severe problems of depression, anxiety and fear. Licensed social worker Gary Lewis wrote on May 18 that claimant found working with replacement workers to be a stressful experience and felt claimant was suffering from an acute adjustment reaction which he believed was essentially temporary in nature. On June 13, psychiatrist Ralph Walker, M.D., wrote that claimant was treated for depression and anxiety and unable to return to work at that time. Claimant was certified to return to work by Stewart Fern, M.D., effective August 10 with no restrictions. The record does not disclose when claimant first left work. Upon returning to work, claimant was given a job stripping tenders (pulling fat from a cut of meat). On August 25, 1988, she slipped and fell while carrying a heavy basket of tenders, landing on her buttocks, especially on the left side. Claimant complained of lower back pain and numbness to the left leg developing shortly thereafter. Claimant was first seen by Milton Grossman, M.D., on August 29, complaining of pain in the lumbar region and left hip. Dr. Grossman diagnosed strain and returned claimant to work with a lifting restriction of 10 pounds occasionally and with occasional bending, kneeling and reaching above shoulder level. Claimant was seen on September 1 at St. Lukes Regional Medical Center by Paul A. Berger, M.D. His impression was of low back pain secondary to contusion injury with myofascial strain. Claimant was advised to stay off work. After several more visits, Dr. Grossman released claimant to return to work effective September 7 with similar restrictions, adding prohibitions against the use of straight knife or whizard knife. Claimant was again taken off work on September 19 by William F. Krigsten, M.D. Claimant had at that time no leg pain or hip pain or apparent neurological changes. However, Page 5 she had marked tenderness and spasm in the lumbar spine, mainly over L4 and L5. No complaints of pain radiation were made. Range of motion in the back was limited by 75 percent. Diagnosis was deferred, but Dr. Krigsten mentioned the possibility of bursitis in the trochanter. When next seen by Dr. Grossman on September 22, claimant was kept off work. Claimant was seen again by Dr. Krigsten on September 27. Loss of range of motion was now only 50 percent and the back was less painful. Diagnosis was of acute lumbosacral spasm, possible disc injury. However, Dr. Krigsten then again deferred diagnosis on October 4. Claimant was next seen by Quentin J. Durward, M.D., of Sioux City Neurosurgery, P.C. Dr. Durward wrote on October 6 that physical examination showed some mild bilateral paraspinal spasms and some reduction of range of motion. External rotation of the hip was mildly restricted. Plain x-rays were normal. Dr. Durward suspected that claimant may well have suffered a mild injury to a disc in the subject fall, causing persistent low back pain, and that posterior thigh discomfort might be caused by an irritated nerve. Dr. Durward recommended physical therapy and intermittent use of a back brace. Magnetic resonance imaging was performed on October 11, 1988, by James C. Beeler, M.D. His impression was of: 1) Minimal bulging of the annulus fibrosis L4-5, believed physiological in extent. 2) Mild desiccation of the L5-S1 intervertebral disc, within normal limits for age. 3) No evidence of eccentric herniated disc material or significant spinal stenosis. Claimant was seen again by Dr. Durward on November 2. Dr. Durward's review of the MRI scan showed minimal desiccation at L5-S1, but nothing else. Claimant's back pain had "really settled very nicely." She was released to return to work with restrictions against lifting or stretching 10 pounds and against standing more than 20 minutes without a 10-minute sitting break. Claimant was further restricted against grasping or knife work. However, as of November 7, Dr. Krigsten wrote that claimant was not then working. In fact, the form 2A filed by defendants with this agency and in the administrative file reflects that voluntary payments were made from September 14, 1988 through January 15, 1989, a total of 17 weeks, 5 days. Claimant made reference in her testimony to returning to work after 17 weeks, indicating that, for whatever reason, she probably did not return to work on Dr. Durward's release. Official notice is hereby taken of the form 2A contained in the administrative file and filed March 20, 1989 under Iowa Code section 17A.14(4). The parties have not previously been notified of this action, but it is held that fairness to the parties does not require an opportunity to contest taking notice of this form. Claimant was subsequently paid voluntary temporary partial disability Page 6 benefits beginning January 16, 1989 and ending February 4. This also is consistent with claimant's testimony. Claimant was seen by B. W. Nelson, M.D., on November 16, 1988. Complaints were made of low back pain and dull aching anterior left leg pain to but not below the knee, back pain predominating. On examination, range of motion was limited. Although sensory examination was equivocal, claimant did not show signs of exaggerating her complaints ("negative excessive grimacing and jerking"). Assessment was of chronic myofascial strain, with likely significant deconditioning syndrome. Prognosis was good and no permanent impairment was expected. Length of treatment would probably take about eight weeks. On December 1, claimant was seen by John A. Walck, M.D., after having completed two weeks of isokinetic rehabilitation upon Dr. Nelson's prescription. Range of motion was limited. Dr. Walck's assessment was of myofascial strain. On December 21, claimant was seen again by Dr. Nelson. His assessment was of chronic myofascial strain superimposed upon a deconditioning syndrome which was responding very nicely to rehabilitation. Prognosis for full recovery without permanent impairment remained excellent, although claimant was still temporarily disabled from work. Range of motion was improved and claimant stated that she was definitely feeling better, although still having some low back and left leg pain, both significantly improved. Page 7 On January 11, 1989, claimant stated her leg pain was completely gone, but she still had some occasional (yet greatly improved) aching pain in the low back. Claimant was returned to work effective January 16 with a 40-pound lifting restriction, to start at four hours per day, gradually increasing to eight by a target date of February 13. Dr. Nelson anticipated there would be no further restrictions as of February 13. However, the injury of February 6, 1989 intervened. As early as 1985, claimant recalls complaining of pain in the arms, although she had no history of neck pain. By August 1988, claimant noticed numbness, aching and tingling symptomatology in both arms. After returning to work in January 1989, those symptoms became constant in the left arm and intermittent in the right. Claimant is right-handed. On February 8, 1989, she was seen by Daniel Youngblade, M.D., with complaints of both arms going numb since returning to work three weeks before. The history given Dr. Youngblade was that the right arm had previously become numb in August 1988, but was asymptomatic while she was off work. Claimant was released to light duty upon a diagnosis of questionable muscle spasm of the right neck and shoulder. Dr. Youngblade took claimant off work on February 15 on the same diagnosis. Claimant was seen again by Dr. Nelson on February 20. His chart notes reflect that claimant stated her back pain was doing quite well, but that she now suffered from severe neck pain and that the entire left arm would go numb from the neck down to the fingers. The entire right arm was painful, especially to palpation anywhere. Assessment was of cervical strain with no localizing or neurological findings. Subjective complaints were felt to outweigh objective findings. However, he saw nothing in claimant's physical examination which would preclude her from work, even though range of motion of the spine was still limited. Since Dr. Nelson apparently specializes in lumbar and thoracic back problems and not cervical problems, claimant was referred back to Dr. Youngblade. On February 21, Dr. Youngblade kept claimant off work. On March 1, 1989, Keith McLarnan, M.D., diagnosed thoracic outlet syndrome with possible carpal tunnel syndrome of the right wrist and continued claimant off work. She was referred for radiological studies of the cervical spine which were performed on that date. Radiologist D. C. Rife, M.D., found no abnormalities. Magnetic resonance imaging of the cervical spine was performed by G. R. Jackson, M.D., on March 10. Dr. Jackson found mild bulging of the annulus at C5-6 and C6-7 with no evidence of disc herniation. No other abnormalities were seen. His impression was of mild degenerative changes at those levels. Electromyography was performed by B. Krysztofiak, M.D., on March 30. Results were consistent with bilateral carpal Page 8 tunnel syndrome, right greater than left. By April 24, 1989, claimant reported to Dr. Youngblade that she had not improved since going off work on February 15. She felt fine if not doing anything, but symptoms flared up on activities such as mopping or sweeping. She was kept off work. On May 2, 1989, claimant was seen again by Dr. Durward, giving a similar history. Physical examination found full range of neck motion, but slight hardness of the muscles on the right side of the spine. Thoracic outlet signs were negative. Dr. Durward believed claimant's syndrome was mainly due to carpal tunnel syndrome, right more than left, but that there might be a superimposed component of cervical radiculopathy. He specifically noted the MRI scan reporting mild degenerative changes at C5-6 and C6-7, with mild bulging of the annulus at those levels. Dr. Durward prescribed a collar and wrist splint. X-rays of the cervical spine by G. R. Skorey, M.D., on May 2, 1989 were negative, except for some straightening in the neutral position. On May 17, 1989, Dr. Durward reported that most of claimant's neck and right shoulder discomfort had resolved, as well as carpal tunnel syndrome symptoms on the right. Claimant was referred to physical therapy and occupational therapy. On June 27, Dr. Durward reported that claimant had excellent range of motion of the neck, but tightness of the paraspinal muscles and trapezei. Claimant was reported as dramatically improved, and her only complaint was inability to elevate the left arm above the shoulder and pain in the left hip on walking. Upon review of myelogram studies, Dr. Durward found the lower back to be normal. He reported a central and right C5-6 disc bulge, but believed it to be asymptomatic. He recommended further physical therapy and believed claimant would be able to return to work in two weeks' time; however, he did not see claimant again, but referred her back to Dr. Youngblade. Page 9 On July 5, 1989, that physician reported: Patient returns with neck, back, shoulder pain. Multitude of problems. Still complaining about her lower back pain. Hasn't complained of pain and discomfort in her neck. Soreness with her right arm, shoulder and hand whenever she uses her right arm. Discussion with husband referrable [sic] to her condition with some concern as to whether she has a true mechanical or physical problem after all the testing, etc. that has been done. She has been unable to do any work at home. Is not caring for her children as usual. They are "getting by with a lot of things". Husband is not overly pleased with the overall situation as well. I've advised the patient and her husband that we will try the physiotherapy at St. Luke's over the next 10 days to 2 weeks and see if she shows any improvement. If she does will continue the therapy. If she doesn't seem to be making any progress we're going to have some neuropsychologic intervention to try to ascertain the full picture [of] this patients [sic] problem. This is the last indication of record that claimant was seen by a treating physician. Claimant has not returned to work and, per the stipulation of the parties, voluntary benefits were still being paid as of the date this cause was heard. Ms. Dorfman was seen for evaluation on July 13, 1990 by Pat Luse, D.C., of the Nebraska Chiropractic & Nutrition Clinic. Claimant complained of pain in the low back, neck and both hands present at all times and tingling and numbness in the left leg. Claimant also complained of headaches and neck stiffness. Dr. Luse found a reduced range of motion in both the cervical and lumbar spine and hypesthesia on the left at L4-5 and C6-7. Dr. Luse reported 11 other positive examination findings of significance, including cervical compression, Lasegues Lt, DLR, Kemp, Shoulder decompression and percussion. Radiographic studies were reviewed and new studies made. Diagnosis was: 1. Chronic cervical sprain/strain 2. Chronic lumbar sprain 3. Bilateral carpal tunnel syndrome Dr. Luse stated that subjective complaints were consistent with objective findings and concluded that claimant did receive "an injury" as a result of her "work accidents." Claimant was suffering left leg tingling, hand weakness, neck pain and stiffness and low back pain as a result of "this accident." Dr. Luse reported that claimant had stated she had been involved in "work-related accidents" on August 29, 1988 and February 6, 1989. The record does not disclose the extent to which Dr. Luse was aware that claimant alleged one injury by reason of a traumatic incident (a fall) affecting the lumbar spine plus a Page 10 cumulative injury to the cervical spine, shoulder or arms. In any event, using the American Medical Association Guides to the Evaluation of Permanent Impairment, Dr. Luse concluded that claimant had sustained a five percent impairment of the body as a whole by reason of her cervical spine, an additional five percent impairment of the body as a whole as a result of her lumbar spine, a seven percent impairment of the right upper extremity and a two percent impairment of the left upper extremity. Dr. Luse suggested restrictions against lifting more than 20 pounds, frequent bending or twisting and repetitive motion work with either upper extremity. Claimant was also seen for evaluation on July 27, 1990, by John J. Dougherty, M.D. Dr. Dougherty is a board-certified orthopaedic surgeon and testified by deposition on August 8, 1990. In a report of July 30, 1990, Dr. Dougherty noted that he had read all the voluminous medical records, but his report of that date and subsequent deposition contain a number of factual errors. Of these, the most significant is that he was aware of only one work injury, that being in February 1988 (but apparently referring to the fall in August 1988). He reported that some of the problems with claimant's back were certainly a direct result of the weight she carried before (Dr. Dougherty mistakenly believed claimant had weighed 350 pounds, but this error is perhaps one of degree only, in that claimant once weighed in the range of 315 pounds). He reported that claimant may have a little degenerative disc in the neck, but at C4-5 and C5-6, not C5-6 and C6-7. He conceded that claimant may have a mild carpal tunnel syndrome on the right, but questioned whether it was causing her problem. Minimal tenderness about the shoulders might be mild tendonitis. He did not believe that claimant had sustained any significant permanent partial impairment. Chart notes reflected that range of motion (the location is unclear, but apparently everywhere) was "satisfactory," but some restriction was nonetheless reported. He did not believe claimant's back was giving her any significant discomfort related to the fall and saw nothing significantly wrong with the hip. Assessment was of low back pain secondary to chronic lumbosacral sprain, questionable myotendonitis of the shoulder, questionable early degenerated disc at L4-5, L5-6, possible fibromyalgia, scoliosis to the left in the dorsal spine and slightly shortened right lower extremity. In his deposition testimony, Dr. Dougherty suggested that not all of claimant's problems were physical and questioned why she was off work so long. Asked if it was possible that some of claimant's physical problems could cause mental problems, he was inclined to think it was the other way around. Claimant was seen for vocational rehabilitation consultation by Karen L. Stricklett, M.S., at defendants' request on July 24, 1990. Based on the chiropractic Page 11 limitations suggested by Dr. Luse and claimant's work history, Ms. Stricklett believed claimant was employable as a cashier, counter attendant, telephone solicitor, sales clerk, quality control inspector, production machine tender (in certain settings), canteen operator or children's attendant. The record does not reflect that Ms. Stricklett was actually able to place claimant in employment, being hired for evaluation only. Patty Reilly, a vocational rehabilitation worker with Rehabilitation Professionals, Inc., saw claimant three days prior to hearing, supposedly for placement assistance, but also in large part to bolster the defense case herein. She suggested several current openings, mostly in minimum wage jobs (claimant earned approximately $9.00 per hour with defendant as of February 1989) and recommended largely the same potential jobs as did Karen Stricklett, adding dispatcher and lab technician to the list. One questions how many lab technician openings realistically will be filled by individuals possessing a ninth grade education with poor reading, spelling and arithmetic skills. Sandra Dorfman complains at present of constant pain on the left side from her toes to her head and pain affecting the entire right arm. She complains that she cannot participate in athletic activities, ceramics, bicycling or perform housework chores (although she testified she can perform some light work, such as setting the table and combing her own hair). She complains of reduced grip strength. She is currently receiving Social Security disability benefits; indeed, her income from Social Security and voluntary workers' compensation benefits exceeds her previous income when employed. Claimant has not sought work since employment with defendant, except that she underwent vocational rehabilitation testing with Goodwill Industries some eight months prior to hearing, and was considered suitable for farm work (this being before the suggested weight limitation imposed by Dr. Luse). conclusions of law File number 878903, the alleged psychological injury, shall be first considered. Defendants dispute whether claimant sustained any such injury arising out of and in the course of her employment. The words "arising out of" refer to the cause or source of the injury. McClure v. Union, et al., Counties, 188 N.W.2d 283 (Iowa 1971). This requirement is satisfied by showing a causal relationship between the employment and the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986). With respect to psychological injury, Iowa follows the Wisconsin Rule propounded in Swiss Colony v. Dep't of Indus., L & H. R., 240 N.W.2d 128 (Wisc. 1976). Under the Wisconsin Rule, recovery from emotional injury requires that the injury result from emotional trauma or stress which is of greater dimension than those stresses which all employees experience on a day-to-day basis. The requirement involves medical proof of causation that in fact connects the Page 12 employment stress with the injury. On this record, there is no medical opinion connecting claimant's psychological problems of 1988 with her employment. A licensed social worker, Gary Lewis, opined that a causal relationship did exist, but he is not a medical practitioner. Even a psychologist, an individual more highly trained in the workings of the mind than a social worker, lacks the expertise involved in examining the relationship between mind and body such as is held by a psychiatrist. Saunders v. Cherry Burrell Corp., II Iowa Industrial Commissioner Report 333 (1982). Particularly given claimant's history of psychological disability, in part related to her belief that she had been "harassed" by fellow workers, it cannot be said that the opinion of Mr. Lewis is sufficient to carry claimant's burden of proof on the issue. The parties have stipulated that claimant sustained a work injury on August 29, 1988. Actually, the correct date is August 25. However, they dispute whether that injury is causally related to temporary or permanent disability. The claimant has the burden of proving by a preponderance of the evidence that the injury of August 25, 1988 is causally related to the disability on which she now bases her 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 Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). On September 1, 1988, Dr. Berger recorded his impression of low back pain secondary to contusion injury with myofascial strain. As to temporary disability, no contrary medical view appears of record. Essentially all physicians have reported restricted range of motion of the lumbar spine. Dr. Krigsten and Dr. Durward each reported spasm ("marked" on September 19 and "mild" on October 6, 1988). These multiple findings constitute objective proof of injury. The only two physicians to render opinions as to claimant's permanent disability are Dr. Dougherty and Dr. Page 13 Luse. While this observer might be inclined to give greater weight to the opinion of a board-certified orthopaedic surgeon than that of a practitioner of chiropractic, all other things being equal, it should be noted that Dr. Dougherty, while opining that claimant had no permanent impairment relating to the injury, also reported some restriction in claimant's range of motion. Absent another cause, this is indicative of continuing disability. Reading Dr. Dougherty's testimony as a whole, it appears probable that he believes claimant to be either exaggerating or inventing her pain. This observer believes claimant has done little to minimize the extent of her residual lower back pain, but it is nonetheless credible that she still finds herself suffering. Given claimant's testimony of continuing symptomatology, a history of objective signs and continued loss of range of motion along with the extensive record of continued treatment, it is held that claimant has met her burden of proof in establishing a causal nexus between her injury of August 25, 1988 and current disability relating to the lumbar spine. Under Iowa Code section 85.34(1), healing period is compensable beginning on the date of injury and continuing until the employee has returned to work, it is medically indicated that significant improvement from the injury is not anticipated, or until the employee is medically capable of returning to substantially similar employment, whichever first occurs. Claimant was taken off work by Dr. Berger for six days beginning September 1, 1988. Healing period can be intermittent. Willis v. Lehigh Portland Cement Co., Vol. 2-1, State of Iowa Industrial Commissioner Decisions 485 (1984). She was again taken off work by Dr. Krigsten on September 19 through January 15, 1989, a total of 17 weeks. With respect to file number 911102, defendants admit claimant sustained a work injury on February 6, 1989. However, they dispute causal connection to temporary or permanent disability. Claimant was taken off work by Dr. Youngblade on February 15, 1989. In cases of cumulative injury, the injury occurs for workers' compensation purposes on that date when, due to pain or physical inability, claimant is no longer able to work. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). It is held that February 15 is the proper injury date. The fact that the parties stipulate an injury occurred combined with claimant being taken off work by Dr. Youngblade for symptoms related to that injury establishes that temporary disability is causally related to the work injury. With respect to permanent disability, once again only Dr. Luse and Dr. Dougherty have rendered opinion. For the same reasons set forth above, it is held that claimant has established permanent disability relating to the injury of February 15. Claimant has never been released to return to work following the February 15, 1989 injury. Dr. Luse evaluated impairment based on an examination of July 13, 1990. It has Page 14 frequently been held that the rendering of an impairment rating implies that healing is at an end. Of record, this is the first of the triggering events set forth in section 85.34(1) to occur. Therefore, claimant is entitled to healing period benefits from February 15, 1989 through July 13, 1990, a total of 73 weeks, 3 days. 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 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 Page 15 Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985). The most recent physician to impose medical restrictions is Dr. Luse. While the restrictions he imposed are more stringent than treating physicians', it appears that substantial time has elapsed since those restrictions were imposed. For that reason, Dr. Luse's proposed restrictions are more reliable. As will be recalled, those restrictions barred lifting in excess of 20 pounds, frequent bending or twisting and repetitive motion work with either upper extremity. Those restrictions presumably bar employment in the meat packing industry or as a cookie packer. Claimant may well be able to work as a cook, order filler, telemarketer or pizza baker. Given her ninth grade education and limited capacity for retraining, it is probable that claimant will for the foreseeable future be limited to employment paying largely minimum wage or little more. Claimant's job with John Morrell paid more than twice that. Considering these factors then in specific and the record otherwise in general, it is held that claimant has sustained an industrial disability causally related to her injuries of August 25, 1988 and February 15, 1989 equivalent to 50 percent of the body as a whole, or 250 weeks. Claimant had improved greatly from the 1988 injury when the 1989 injury intervened. Her current disability is related to both injuries. The fairest apportionment on this record appears to be that 50 percent of claimant's total industrial disability is independently attributable to each disputed work injury. Claimant also seeks to be compensated for the evaluation performed by Dr. Luse. Iowa Code section 85.39 provides: If an evaluation of permanent disability has been made by a physician retained by the employer and the employee believes this evaluation to be too low, the employee shall, upon application to the commissioner and upon delivery of a copy of the application to the employer and its insurance carrier, be reimbursed by the employer the reasonable fee for a subsequent examination by a physician of the employee's own choice, and reasonably necessary transportation expenses incurred for the examination. The physician chosen by the employee has the right to confer with and obtain from the employer-retained physician sufficient history of the injury to make a proper examination. The evaluation performed by Dr. Luse preceded the evaluation performed by Dr. Dougherty. Prior to Dr. Dougherty, the record does not show that any physician retained by the employer had evaluated claimant's disability. A reading of the statute indicates that such an evaluation is a condition precedent to claimant's Page 16 entitlement to benefits under section 85.39. Accordingly, defendants prevail on this issue. order THEREFORE, IT IS ORDERED: In file number 878903: Claimant shall take nothing. In file number 894241: Defendants shall pay unto claimant seventeen (17) weeks, six (6) days of intermittent healing period benefits (September 1 through September 6, 1988 and September 19, 1988 through January 15, 1989) at the stipulated rate of two hundred thirty-one and 87/100 dollars ($231.87) per week and totalling four thousand one hundred forty and 50/100 dollars ($4,140.50). Defendants shall pay unto claimant one hundred twenty-five (125) weeks of healing period at the stipulated rate of two hundred thirty-one and 87/100 dollars ($231.87) per week commencing January 16, 1989 and totalling twenty-eight thousand nine hundred eighty-three and 75/100 dollars ($28,983.75). In file number 911102: Defendants shall pay unto claimant seventy-three (73) weeks, three (3) days of healing period benefits commencing February 15, 1989 at the stipulated rate of two hundred forty-two and 89/100 dollars ($242.89) per week and totalling seventeen thousand eight hundred thirty-five and 16/100 dollars ($17,835.16). Defendants shall pay unto claimant one hundred twenty-five (125) weeks of permanent partial disability benefits at the stipulated rate of two hundred forty-two and 89/100 dollars ($242.89) per week commencing January 14, 1990 and totalling thirty thousand three hundred sixty-one and 25/100 dollars ($30,361.25). Page 17 In all cases: Defendants shall have credit for all voluntary benefits paid. The costs of these actions shall be assessed to defendants pursuant to rule 343 IAC 4.33. Defendants shall file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ______ day of ____________, 1991. ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Harry H. Smith Attorney at Law P.O. Box 1194 Sioux City, Iowa 51102 Ms. Judith Ann Higgs Attorney at Law 200 Home Federal Building P.O. Box 3086 Sioux City, Iowa 51102 Page 1 before the iowa industrial commissioner ____________________________________________________________ : DENNIS HEDGES, : : Claimant, : : vs. : : File Nos. 943956 & 911208 MISSOURI VALLEY STEEL, : : A R B I T R A T I O N Employer, : Self-Insured, : D E C I S I O N : and : : LIBERTY MUTUAL, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Dennis Hedges, claimant, against Missouri Valley Steel Company, employer (hereinafter referred to as Valley Steel), and Liberty Mutual Insurance Company as well as Valley Steel as self-insured, defendants, for workers' compensation benefits as a result of alleged injuries on March 3, 1989 and June 13, 1990. On October 1, 1991, a hearing was held on claimant's petition and the matter was considered fully sub mitted at the close of this hearing. The parties have submitted a prehearing report of con tested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. The oral testimony and written exhibits received during the hearing are set forth in the hearing transcript. According to the prehearing report, the parties have stipulated to the following matters: 1. An employee-employer relationship existed between claimant and Valley Steel at the time of the alleged injury on June 13, 1990. 2. Only defendant Liberty Mutual stipulated that on March 3, 1989, claimant received an injury which arose out of and in the course of employment with Valley Steel and claimant. Both Liberty Mutual and claimant stipulated that the extent of claimant's entitlement to temporary total dis ability or healing period benefits extends from March 4 through March 7, 1989, entitling claimant to one day of workers' compensation. Claimant acknowledged that this had been paid. 3. If the injury is found to have caused permanent disability, the type of disability is an industrial disabil Page 2 ity to the body as a whole. issues The parties submitted the following issues for determi nation in this proceeding: I. Whether claimant received an injury on June 13, 1990, arising out of and in the course of employment; II. The extent of claimant's entitlement to disabil ity benefits; and, III. The extent of claimant's entitlement to medical benefits, specifically those received and offered by Horst Blume, M.D., subsequent to the June 1990 injury and claimant's medical mileage expenses as set forth in exhibit 72. Claimant had identified other issues at the prehearing conference but the above issues where the only ones identi fied in the prehearing report. findings of fact Having heard the testimony and considered all the evi dence, the deputy industrial commissioner finds as follows: A credibility finding is necessary to this decision as defendants place claimant's credibility at issue during cross-examination as to the occurrence and extent of the injuries and disabilities. For reasons that will be fully explained below and from his demeanor while testifying, claimant is not found credible. Claimant is 35 years of age. He worked for Valley Steel from August 1987 until his termination in February 1991. Valley Steel is a fabricator of heavy steel girders and beams. Claimant was a welder. Employees at Valley Steel are required to lift on occasion very heavy materials up to 100 pounds but hoists are available to assist when necessary and appropriate. After the alleged second back injury in this case, claimant was assigned to light duty involving janitorial work. Claimant was terminated for absenteeism without excuse. In January 1991, claimant was absent for a few days but failed to call in. Claimant admitted at hearing that he had a poor attendance record at Valley Steel both before and after the work injuries in this case although he stated that he had valid excuses for not appearing at work on most occasions. On or about March 3, 1989, claimant injured his lower back while lifting a heavy beam off the legs of a fellow employee in the performance of his duties at Valley Steel. This fellow employee had lost his balance while walking and fell to the ground grasping adjacent metal beams in the pro cess pulling them down on top of him. The injury arose out of and in the course of claimant's employment. Valley Steel's records which appear more reliable than claimant's memory show that this incident described by claimant and the fellow employee probably occurred a few days earlier on Page 3 February 28, 1989. However, a change in injury date from the one alleged is meaningless to the issues and a change in agency records and injury reports appears unnecessary. Although claimant is not credible, his story of the incident is verified by the fellow employee. There is a dispute as to the type and number of beams lifted by claimant but there appears to be no dispute that at least one 20 foot beam weighing up to 100 pounds was involved. Claimant subse quently complained of pain in the dorsal lumbar regions of his lower spine with radiation into the legs by treating company physician Joe M. Krigsten, M.D. Claimant was treated conservatively by Dr. Krigsten while he was taken off work for four days. Claimant received no other treat ment for his back until the alleged work injury in June 1990. At hearing, claimant stated that despite his return to work he never fully recovered from the March 1989 injury and continues to have pain. He stated that he requested addi tional medical treatment from Valley Steel after being released by Dr. Krigsten but was refused this treatment. This story is not credible as will be explained below. Claimant claims a work injury involving his whole back from his shoulders to his buttocks occurring on June 13, 1990, while sliding a heavy "eye" beam at the Valley Steel plant. There were no witnesses to this incident. The only non-supervisory employee to testify could not remember the incident. Defendants disputed claimant's credibility and have denied that the incident occurred. Defendants point to claimant's inconsistent testimony during the course of these proceedings and deliberate misrepresentations in the past. Claimant responded to questions in his deposition dur ing this litigation while under oath on two occasions and on one occasion in answers to interrogatories in which he denied any back problems before the injury of March 3, 1989. However, later in his deposition when presented with con trary information, claimant admitted that in August 1988, he sought treatment from a chiropractor at the Bronson Clinic for a mid-back and shoulder pain. Claimant stated to Dr. Bronson (first name unknown) at the time that the pain had lasted one week prior to the appointment and was interfering with his work, sleep and daily routine. Claimant also reported to Dr. Bronson a history of intermittent upper back pain "for some time." The fellow employee who testified at hearing stated that claimant complained of back pain not only after the March 3, 1989 injury, but prior to this injury as well. During his deposition, claimant denied that he had been involved in any motorcycle accidents before or after the March 3, 1989 injury. In his answers to interrogatories, he denied any accidents outside of the workplace. However, when confronted with the attendance record at Valley Steel indicating that he missed a day of work in July 1989 due to a motorcycle accident, claimant stated, rather incredibly, that he did not consider the "dumping" of his motorcycle into the mud as an accident. He admitted that he lost a day of work and sprained his ankle as a result of this accident. A witness at the hearing who appeared credible testified Page 4 that she was a secretary at Valley Steel and on the one occasion claimant appeared for work after a motorcycle acci dent with what appeared to be concrete burns on his face. She said that this was the same type of injury she observed on her brother after a motorcycle accident. She could not give the precise date and time of the motorcycle accident. Claimant stated at hearing and in his deposition that he had not received treatment after Dr. Krigsten released him back to work in March of 1989 because he was denied treatment by Valley Steel management after repeated requests. This is not believable because he did not seek treatment from any other physician, including his family doctor. Claimant did not hesitate to seek medical treatment on his own in June 1990 after the alleged second back injury when he became dissatisfied with the other company furnished physician, D. M. Youngblade, M.D. Claimant was terminated for failing to call in for approximately three days when he failed to appear for work in January 1991. The Valley Steel secretary, who testified at hearing about claimant's appearance after a motorcycle accident, testified that upon orders from her superiors, she had unsuccessfully attempted to reach claimant by telephone during his absences immediately prior to the termination. Claimant testified that he had hurt his back at the time at home and stated that he could not be reached by phone because his phone service was not functioning and that he was unaware of this malfunction at the time. However, when asked earlier by defense council why he did not call in, claimant testified that he attempted to do so and discovered that his phone was out of order. At no time did he satis factorily explain why he could not have a friend or his wife call in for him. His only response was a comment that his wife would not do so. However, his wife testified that she would have done so had he asked. Finally, defendants point out that claimant lied in his application for employment with Valley Steel in 1987 stating that he was a high school graduate when in fact he dropped out of high school in the eleventh grade. Claimant explained that he had to lie in the application because employers like Valley Steel discriminate against persons who do not have high school diplomas. Although claimant was not under oath when he filled out his application, it is appar ent that claimant is the type of person who is prepared to misrepresent the facts when it is advantageous for him to do so. One facet of the evidence that appeared to support a finding for claimant with reference to the claimed work injury in June of 1990, was the testimony of Valley Steel management at the hearing. When asked why claimant had not been paid workers' compensation benefits after the alleged June 1990 injury, management representatives could not delineate the specific reasons for denying the claim stating that the denial was the decision by outside claim adjusters. Obviously, a belief that claimant was lying about the claimed incident was not in the forefront of their minds as a reason for denying the claim. However, it is also appar ent that these management personnel where unaware at the Page 5 time of the claimed injury of many of the inconsistencies that this undersigned deputy industrial commissioner is now facing with claimant's testimony. Finally, in reviewing claimant's account of the June 13, 1990, alleged injury, the undersigned finds even more inconsistencies. According to the office notes of Dr. D. J. Miedema, M.D., an associate of Dr. Youngblade, claimant reported low back pain after the claimed June 13, 1990 inci dent. At the time, as a result of this complaint, Dr. Miedema diagnosed lumbosacral sprain. It was not until June 18, in an appointment with Dr. Youngblade, that claimant began to complain of upper back pain. According to the office records of Jay T. Strittholt, M.D., an orthopedic surgeon, to which claimant was referred by Dr. Youngblade, claimant reported to him on June 28, 1990, that after push ing the heavy steel at work he felt immediate pain between his shoulder blades. On June 29, 1990, claimant told his family doctor, M. D. Van Patten, D.O., that he hurt his "whole back" in the June 13, 1990 incident. At hearing, claimant stated that he only aggravated his low back in this work injury but primarily injured his upper and mid-back from the incident. As a result of the above inconsistencies viewed as a whole, the undersigned is unable to find that claimant suf fered any work injury on or about June 13, 1990, to his back. It is clear from the medical evidence that claimant suffered upper and lower back pain in June 1990. It is also apparent that this pain was significant and chronic and required several weeks of absence from work after which per manent work restrictions were imposed against heavy lifting and repetitive bending, climbing and stooping. However, absent a finding that claimant suffered some sort of injury at work to precipitate this pain and disability, it is just as likely that the pain occurred without an injury. Claimant has been diagnosed since March 1989, as suffering from preexisting and congenital back problems called spina bifida and grade 1 spondylolysis. The medical evidence establishes that these conditions can cause pain and dis ability without an injury. The Bronson Clinic records and the testimony of claimant's fellow employee at hearing, established that claimant did in fact suffer back pain prior to March 3, 1989, without an injury. Furthermore, it could not be found that the work injury of March 3, 1989, was a cause of permanent impairment or permanent disability. Claimant was off work for four days and returned to full duty at work. He did not receive medi cal treatment for his back after his release by Dr. Krigsten for over 18 months. As explained above, claimant's testi mony that he continued to have pain and his explanation for not seeking treatment is not credible. No physician has opined that claimant suffers from permanent impairment or disability from the March 1989 injury. One physician, a board certified neurosurgeon, Joel Cotton, M.D., has specif ically opined that claimant does not suffer permanent partial impairment from the March 1989 injury. Another neu rosurgeon, Horst Blume, M.D., states that claimant has a multitude of back problems, including a herniated disc and thoracic outlet syndrome attributable to both the March 1989 Page 6 and June 1990 incidents which he believes requires further treatment. Dr. Blume's opinion cannot be given greater weight over those of Dr. Cotton. Dr. Cotton disagrees with Dr. Blume and his qualifications are at least equal to if not greater than those of Dr. Blume as Dr. Cotton is board certified. The only other causal connection opinion of signifi cance was that of the orthopedic surgeon who examined claimant in January 1991, Anil Agarwal, M.D. He stated that due to significant preexisting back conditions, the March 3, 1989 injury was only an aggravation of preexisting condi tion. However, he stated that the claimant's symptoms at the time, which he diagnosed as chronic lumbar strain, were causally connected to this injury. Dr. Agarwal went on to state that he did not believe that claimant suffered from any permanent disability following the alleged injury of June 13, 1990, but he could possibly give a five percent rating due to chronic pain since that injury. Dr. Agarwal's views, with reference to permanent disability as a result of the March 1989 injury, are not specifically delineated in his reports and consequently his views are very unclear. Given such evidence, the undersigned feels that it is not reasonable for him to find permanency as a result of the March 1989 injury based upon this ambiguous opinion of Dr. Agarwal alone absent a credible claimant and absent a con tinuous pattern of medical treatment and verified lost work in the interm between March 1989 and June 1990. conclusions of law I. Claimant has the burden of proving by a prepon derance of the evidence that claimant received an injury which arose out of and in the course of employment. The words "out of" refer to the cause or source of the injury. The words "in the course of" refer to the time and place and circumstances of the injury. See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited therein. II. The claimant has the burden of proving by a pre ponderance of the evidence that the work injury is a cause of the claimed disability. A disability may be either temporary or permanent. In the case of a claim for tempo rary disability, the claimant must establish that the work injury was a cause of absence from work and lost earnings during a period of recovery from the injury. Generally, a claim of permanent disability invokes an initial determina tion of whether the work injury was a cause of permanent physical impairment or permanent limitation in work activ ity. However, in some instances, such as a job transfer caused by a work injury, permanent disability benefits can be awarded without a showing of a causal connection to a physical change of condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Page 7 Coal Co., 288 N.W.2d 181 (Iowa 1980). The question of causal connection is essentially within the domain of expert medical opinion. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion of experts need not be couched in definite, pos itive or unequivocal language and the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). 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 cir cumstances. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Furthermore, if the available expert testimony is insufficient alone to support a finding of causal connec tion, such testimony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. Asse 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 compensabil ity, the injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith, 290 N.W.2d 348, 354. In the case of a preexisting condi tion, 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). In the case sub judice, claimant sought permanent par tial disability benefits as a result of the March 3, 1989 injury and healing period, permanent partial disability and medical benefits as a result of the alleged June 13, 1990 injury. Given the findings in this case, claimant is not entitled to any of the requested benefits. order 1. Claimant's petitions are dismissed with prejudice and he will take nothing from this proceeding. 2. Claimant shall pay the cost of this action pursuant to rule 343 IAC 4.33, including reimbursement to claimant for any filing fee paid in this matter. Signed and filed this ____ day of October, 1991. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Page 8 Mr. Harry H. Smith Attorney at Law P O Box 1194 Sioux City IA 51102 Mr. Roger L. Carter Attorney at Law P O Box 912 Sioux City IA 51102 5-1103; 5-1803 Filed October 25, 1991 LARRY P. WALSHIRE before the iowa industrial commissioner ____________________________________________________________ : DENNIS HEDGES, : : Claimant, : : vs. : : File Nos. 943956 & 911208 MISSOURI VALLEY STEEL, : : A R B I T R A T I O N Employer, : Self-Insured, : D E C I S I O N : and : : LIBERTY MUTUAL, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1103; 5-1803 A claim for workers' compensation benefits denied as the claim was largely based upon claimant's credibility and claimant could not be found credible.