Page 1 before the iowa industrial commissioner ____________________________________________________________ : TERRY SCHWAB, : : Claimant, : : vs. : File No. 918186 : CLOW CORPORATION, : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : GAB BUSINESS SERVICES, INC., : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case Claimant Terry Schwab seeks benefits under the Iowa Workers' Compensation Act upon his petition in arbitration against defendant employer Clow Valve Company and defendant insurance company GAB Business Services. He asserts an injury involving multiple parts of the body attributable to that employment as of April 22, 1989. This cause came on for hearing in Ottumwa, Iowa, on December 18, 1991. The record consists of joint exhibits 1 through 4 and the testimony of claimant and Denise Spurgeon. Official notice was taken of the first report of injury filed in this matter on May 2, 1989. issues The parties have stipulated that claimant sustained an injury arising out of and in the course of his employment on April 22, 1989, to the rate of compensation ($191.89 per week), and that certain benefits were voluntarily paid prior to hearing. Issues presented for resolution include: 1. Whether there exists a causal relationship between the injury and temporary and/or permanent disability; 2. The extent of temporary disability and the nature and extent of permanent disability, if any; and, 3. Entitlement to medical benefits. Defendants asserted an authorization defense to the claim for medical benefits. This defense was ruled invalid at hearing because defendants have denied an injury arising Page 2 out of and in the course of employment and accordingly are not entitled to direct the course of treatment. Barnhart v. MAQ, Inc., I Iowa Industrial Commissioner Report 16 (1981). Although the parties stipulated that providers of medical services would testify in the absence of contrary evidence that fees were reasonable and necessary, causal connection to the work injury is disputed as is whether those expenses were incurred for reasonable and necessary treatment. findings of fact The undersigned deputy industrial commissioner finds: Terry Schwab, 36 years of age at hearing, left school in the eleventh grade and has never completed requirements for a General Equivalency Diploma. He has taken courses in auto mechanics and welding, obtaining certification in the latter field. Mr. Schwab has worked primarily as a carpenter, welder, mechanic and in automobile salvage yards. Mr. Schwab commenced employment with defendant Clow Valve Company on April 15, 1989. Much of claimant's work consisted of finishing heavy valves with hand grinders weighing up to perhaps 35 pounds (a two-handed model). Claimant worked seven days during the period April 15 to April 22, inclusive, including several 12-hour shifts. On or about April 22, claimant woke up with pain and swelling in the arm. Defendants referred him to Bradley R. Adams, D.O. Chart notes prepared by Kim Nikkel, R.N., dated April 24 show that claimant appeared complaining of right shoulder and arm being swollen and numb for 2-3 days. However, observation showed no obvious deformity or swelling to the right arm and range of motion was normal. Grip in the right hand was decreased. Claimant was thereupon taken off work after Nikkel spoke to Dr. Adams. Claimant was eventually seen by Dr. Adams on April 28. Chart notes show he was doing much better but continued to have mild numbness involving the middle and ring finger of the right hand. Swelling had decreased significantly (this notation is difficult to understand, since Nikkel had observed no swelling at all only two days earlier). Claimant had full range of motion of the shoulders, elbow, wrist and hand. Assessment was of right upper extremity strain. By May 2, Dr. Adams noted that claimant, although "a little bit better," continued to have pain mostly in the upper trapezius region with some radiation down the right upper extremity. Assessment then was of myofascial strain. Chart notes of May 5, May 12 and May 22 continue to refer to complaints of pain involving the right upper extremity and right trapezius area. On June 2, Dr. Adams diagnosed myofascial strain of the right shoulder girdle and right upper extremity which he causally related to work activity based on a history of onset of symptoms after performing work. Dr. Adams referred claimant to Lawrence J. Rettenmaier, M.D., a rheumatologist. Page 3 Dr. Adams' notes do not make any reference to pain in the cervical or thoracic spine. According to claimant, he began developing back pain approximately seven to ten days after symptoms appeared in the right arm and shoulder. However, his recollection of time passage may be imperfect, as shown by his testimony that he worked for Clow for several weeks or a month before symptoms developed, clearly an error. Given that Dr. Adams did not chart complaints of thoracic or cervical spine pain, it is probable that those symptoms developed more than a week after upper extremity symptoms. Dr. Rettenmaier treated claimant from July 7, 1989, through September 10, 1990. By July 7, claimant had developed headaches, photosensitivity and sleep disturbance. Dr. Rettenmaier's initial impression was of neuritis-developing into chronic pain syndrome, right bicipital tendinitis and paracervical muscle strain. Treatment in large part consisted of physical therapy and recommended home exercises. By August 18, claimant was reported to show continued improvement with intermittent rare episodes of severe pain in the paracervical muscles, trapezius and a trigger point in the paraspinus muscles. Impression was of myofascial pain syndrome, right upper extremity. By October 13, 1989, Dr. Rettenmaier noted no significant change with respect to myofascial right upper extremity pain since the last visit, although claimant was markedly improved over his initial evaluation. Again, claimant had no evidence of a focal muscular or neurological deficit on examination and the doctor emphasized the importance of returning to work. By September 10, 1990, there had been no significant change in claimant's reported symptoms. Upon his impression of myofascial pain syndrome of the right upper extremity which had evolved into a chronic pain syndrome, Dr. Rettenmaier ordered additional testing performed at Mercy Hospital Medical Center. Charges of $1,154.00 remain unpaid and in dispute. He also suggested that claimant be evaluated by a general surgeon experienced with thoracic outlet syndrome. All diagnostic testing has essentially proved negative. A bone scan performed by Andrea H. McGuire, M.D., led to an impression of scattered degenerative and periodontal changes with no evidence for reflex sympathetic dystrophy. Radiological examination by John Tauscher showed a normal right shoulder as to bones, joints and soft tissues. A cervical spine study done by Dr. Tauscher was also negative. A view of the dorsal spine read by Dr. Tauscher showed bone mineralization within normal limits without fracture or dislocation, but a "tiny" osteophyte consistent with mild degenerative disease at the anterior end plate of a lower thoracic disc space. Dr. Tauscher also found probable mild facet arthropathy at L5-S1, but the lumbosacral spine was Page 4 otherwise normal. Nerve conduction studies performed by A. Neptune, M.D., were normal. Two other EMG studies of the right upper extremity have also been interpreted as normal. On September 18, 1990, Dr. Rettenmaier wrote that it was probable that claimant's symptoms are related to work. He noted that claimant had recently returned with rather diffuse musculoskeletal complaints, dysesthesias and continued sleep disturbance, and recommended that claimant be off work secondary to pain. On May 7, 1991, Dr. Rettenmaier wrote claimant's attorney that claimant had appeared to have full range of motion of all joints tested when last seen on September 10, 1990. As symptoms were apparently not present until shortly after beginning work with Clow, Dr. Rettenmaier believed this would "imply that the job was directly related to his symptoms." As previously noted, most symptoms were of soft tissue rheumatism. On November 1, 1991, Dr. Rettenmaier wrote that claimant had initially presented with complaints of pain along the right shoulder girdle and upper extremity, but that rather diffuse musculoskeletal complaints developed over time. The best diagnosis was of chronic pain syndrome, which he defined as pain not of psychiatric origin which persists greater than six months and defies repetitive examinations as well as appropriate laboratory and radiographic testing. As claimant had full range of motion of all joints, Dr. Rettenmaier assessed no permanent functional impairment as per American Medical Association guidelines. He believed that claimant had reached maximum medical recuperation in late 1989, perhaps in the area of September or October, and would "definitely" encourage claimant to get along with his life, perhaps considering vocational rehabilitation for assistance in finding a productive job. He has not imposed permanent restrictions. Claimant was seen for evaluation of possible thoracic outlet syndrome on October 2, 1990, by C. David Smith, M.D. At that time, his main complaints appeared to be in the neck and lower back. Physical examination revealed a slight decrease in right grip strength without evidence of muscle atrophy. The neck had full range of motion. Symptoms were not seen as consistent with thoracic outlet syndrome. Claimant was also treated by a chiropractor, Terryl L. Wolfswinkel, D.C., beginning in November 1989. Dr. Wolfswinkel's diagnosis was of thoracic outlet syndrome, cervical segmental dysfunction and cervicocranal syndrome. On May 1, 1991, Dr. Wolfswinkel opined that claimant's "condition" was initiated by work-related trauma. He noted that symptoms of headache, numbness and tingling in the right arm and swelling of the first two digits of the right hand appear to become aggravated by stress fatigue and emotional upset. Clinical findings included palpable trigger points of the trapezius and rhomboid muscle group, rotational fixations of the lower and upper cervical spine Page 5 and malposition of the upper mid dorsal spine. Dr. Wolfswinkel also suggested physical restrictions, including no work with hands above shoulder height, weight limits of 15 pounds from the floor, 25 from the counter, no looking up longer than 2-3 minutes at a time, and against prolonged use of the right hand in any activity. It does not appear from Dr. Wolfswinkel's records that he was aware claimant's neck and back symptoms came on over time and remote from the initial upper extremity symptoms noted April 22, 1989. Claimant was also seen for evaluation by Daniel J. McGuire, M.D., in October 1991. Dr. McGuire made specific note of claimant's failure to follow the aggressive home exercise program that had earlier been recommended by Dr. Rettenmaier and physical therapists and concluded that subjective complaints of pain were not borne out by objective findings. Dr. McGuire, an orthopaedic surgeon, assigned no permanent functional impairment and believed that maximum medical improvement would have been within 6-12 months from the date of the incident. Dr. McGuire recommended no permanent medical restrictions. He did, however, offer a number of recommendations, including cardiovascular conditioning, a regular exercise program, cessation of smoking and acceptance of the fact that hypertension was not secondary to the job incident. Claimant now has numerous and diffuse complaints, all of which he blames on the work injury under review. These include headaches, swelling of the right arm, hand, neck and right shoulder, back pain, neck pain and hypertension. By the time of his deposition on September 4, 1991, he was able to walk only six or seven blocks before having to sit down because of pain from the mid-back up to the top of his head. He also at that time complained of pain and numbness appearing in the left hand. The evidence is in some dispute as to why claimant has not returned to work, light duty or otherwise. Claimant was not found to be a particularly credible witness. Here, it might be noted that he has in the past shown something of a disregard for legal niceties. For example, he has ignored a court-ordered child support obligation for years and has refused to file tax returns for the past five or six years to prevent the government "taking what I have got now." (Schwab deposition, page 37, line 6) On the other hand, safety coordinator Denise Spurgeon did not appear to be a completely disinterested witness either. She sought at all times to cast claimant in the worst possible light, for example, dividing a single incident into two, so as to disparage claimant's motivation to return to work. Claimant appeared for work wearing shorts, then went for a physical therapy appointment. The appointment ended two hours before he returned to work, too late for a transaction at the personnel office. This all occurred on one afternoon, but Spurgeon implied that these were separate incidents. She Page 6 also maintained that Dr. McGuire is the new "authorized" doctor (although, as noted earlier, defendants are not in a position to select medical care while denying liability), but conceded that claimant has never been so advised. It might here be noted that defendants refused to pay the costs of testing recommended by Dr. Rettenmaier, who was at that time the authorized physician. The refusal came after the testing, not before. No warning was given. The testing appears reasonable and necessary, given claimant's longstanding complaints. It is the general impression of this observer that defendants did not want claimant to return to work, but that he also lacked motivation to do so. conclusions of law The parties have stipulated that claimant sustained an injury arising out of and in the course of employment. Causal connection to temporary or permanent disability remains in dispute. The claimant has the burden of proving by a preponderance of the evidence that the injury of April 22, 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 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). As to healing period or temporary total disability, note that Dr. Adams, Dr. Rettenmaier and Dr. Wolfswinkel find a causal nexus. There is no contrary expert opinion of record. Defendants' disputation of this point is without a shred of supporting evidence. Claimant has met his burden of proof. Because this decision does not find that claimant has proved permanent disability, he must be compensated for Page 7 temporary total disability, rather than healing period. Under Iowa Code sections 85.32 and 85.33, temporary total disability in excess of four days is compensable from the date of injury until the employee has returned to work or is medically capable of returning to employment substantially similar to that in which he was engaged at the time of injury, whichever first occurs. Dr. Rettenmaier believed that maximum improvement was reached in September or October 1989. He does not specify a particular date. Dr. McGuire suggests that maximum improvement should have been reached between six and twelve months from the date of injury. These opinions are consistent, at least as to the lower part of Dr. McGuire's range. Claimant has established entitlement to 26 weeks of temporary total disability commencing April 22, 1989. Defendants shall have credit for benefits voluntarily paid and a dollar-for-dollar credit for any wages paid during brief attempts at work during that time. Claimant has not established entitlement to permanent disability benefits. Dr. Rettenmaier and Dr. McGuire assign no permanent impairment and recommend no permanent physical restrictions. Many of claimant's symptoms developed well after he ceased working for Clow. While claimant's treating chiropractor, Dr. Wolfswinkel, does recommend restrictions, it appears that he is taking into account complaints involving the spine, headaches and possibly the left hand. None of these have been shown to be causally connected to the work injury. While Dr. Wolfswinkel does opine that such a causal relationship exists, it does not appear that he had an accurate history of the slow development of extraneous symptoms. The opinions of Drs. McGuire and Rettenmaier are more persuasive. Because claimant's initial injury extended into the body as a whole (rhomboid and trapezius muscles), it must be compensated industrially, if at all. Industrial disability measures the extent to which the work injury reduces claimant's earning capacity. Second Injury Fund v. Hodgins, 461 N.W.2d 454 (Iowa 1990). Absent any medical restrictions, claimant has failed to prove any permanent reduction to his earning capacity. Defendants shall be ordered to pay testing expenses authorized by treating physician Rettenmaier at Mercy Hospital Medical Center. These appear at exhibit 3, page 19 and total $1,154.00. order THEREFORE, IT IS ORDERED: Defendants shall pay to claimant twenty-six (26) weeks of temporary total disability benefits at the stipulated rate of one hundred ninety-one and 89/100 dollars ($191.89) per week commencing April 22, 1989. Defendants shall have credit for benefits voluntarily paid and, on a dollar-for-dollar basis, for any wages earned Page 8 in employment with Clow Valve Company subsequent to April 22, 1989. As all weekly benefits have accrued, they shall be paid in a lump sum together with statutory interest pursuant to Iowa Code section 85.30. Defendants shall pay claimant's bill with Mercy Hospital Medical Center totalling one thousand one hundred fifty-four and 00/100 dollars ($1,154.00). Costs are assessed to defendants pursuant to rule 343 IAC 4.33. Defendants shall file claim activity reports as requested by the agency pursuant to rule 343 IAC 3.1. Signed and filed this ______ day of ____________, 1992. ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Lance A. Grotewold Attorney at Law 118 North Market Street Oskaloosa, Iowa 52577 Mr. E. J. Kelly Attorney at Law Suite 111, Terrace Center 2700 Grand Avenue Des Moines, Iowa 50312 5-1402.40; 5-1402.60 Filed February 19, 1992 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : TERRY SCHWAB, : : Claimant, : : vs. : File No. 918186 : CLOW CORPORATION, : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : GAB BUSINESS SERVICES, INC., : : Insurance Carrier, : Defendants. : ____________________________________________________________ 5-1402.40; 5-1402.60 Claimant failed to prove permanent disability. Temporary total disability and medical benefits were awarded. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : CHARLES GERACE, : : Claimant, : : vs. : : File No. 918232 APACHE HOSE & BELTING CO., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CRUM & FORSTER COMMERCIAL : INC., : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by claimant, Charles Gerace, against Apache Hose & Belting Co., employer, and Crum & Forster Commercial Ins., insurance carrier, both as defendants. Mr. Gerace bases his claim upon an injury which occurred on May 24, 1989. The case was heard and fully submitted at Cedar Rapids, Iowa, on August 4, 1992. The record consists of testimony from the claimant; claimant's exhibits 1 through 5; and, defendants' exhibits A and B. ISSUE The parties submit the following issue for resolution: 1. The nature and extent of claimant's injury. PROCEDURAL MATTERS Several prehearing motions were made and taken under advisement at the time of the hearing. Claimant sustained a work injury on May 24, 1989, and filed his petition on June 11, 1991, alleging a 30 percent impairment to the left lower extremity. Defendants' answer denied this allegation for lack of information and knowledge sufficient to form a belief to admit or deny. Thereafter, claimant served requests for admissions and interrogatories to defendants. Germane to this proceeding are the following requests for admissions propounded by claimant on or about August 11, 1991, and answers supplied by defendants on or about September 11, 1991: REQUEST NO. 2: The claimant suffered a permanent impairment to the left lower extremity Page 2 as a result of the subject injury. RESPONSE: Admit. REQUEST NO. 3: Claimant suffered a 30% permanent partial impairment of the left lower extremity as a result of the subject injury. RESPONSE: Admit. The interrogatory propounded by claimant and the answer by defendant relevant to this matter states the following information: INTERROGATORY NO. 18: State the extent of permanent partial disability and rate that you acknowledge claimant is entitled to and state the factual basis for your position. ANSWER: Thirty percent of the leg based on the report of Dr. Roach dated 7/2/90. On August 29, 1991, after the request for admissions and interrogatories were served on defendants, but apparently before defendants answered, claimant received a report from Martin Roach, M.D., stating that claimant had sustained a permanent impairment of 30 percent to the foot, which converted to a 21 percent impairment to the lower extremity. This report was served on defendants after they had answered the interrogatories. As late as July 14, 1992, defendants were ready to stipulate that claimant had sustained a 30 percent impairment to the left leg, as shown on the draft of the prehearing report provided by defendants, and attached to claimant's resistance to the defendants' amendment to their admissions. At the hearing, defendants attempted to amend their admissions as follows: 1. Request 2: Admit but consider left lower extremity is foot. 2. Request 3: Admit 30% permanent partial impairment of foot and 21 permanent partial impairment of lower extremity per note of Dr. Roach, August 29, 1991, attached. Claimant vehemently objects to defendants' attempt to Page 3 change the admission, and argues that if they are allowed to do so, he has not been given the opportunity to present evidence to address issues pertaining to the nature of claimant's disability. Defendants contend that to allow the amendment to the admissions would not prejudice claimant's case. The Iowa Rules of Civil Procedure have been adopted by the industrial commissioner for use in proceedings before the agency. See, rule 343 IAC 4.35. If the rules of civil procedure are inconsistent with the rules of the division of industrial services, the administrative rules will take precedence. See, rule 343 IAC 4.35. Included therein are rules 121 through 134 for discovery. Iowa R.Civ.P. 128 governs the effect of admissions and provides the following information: Any matter admitted under R.C.P. 127 is conclusively established in the pending action unless the court on motion permits withdrawal or amendment of the admission. Subject to the provisions of R.C.P. 138 governing amendments of a pretrial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining that party's action or defense on the merits... The Iowa Supreme Court has articulated a two prong test to be used when deciding whether an admission can be withdrawn. Allied Gas v. Federated Mutual Insurance Co., 332 N.W.2d 877, 879 (Iowa 1983). The first prong of the test is to determine whether the amendment will aid in the presentation of the merits of the action. The second prong of the test is to determine whether the party obtaining the admission will be prejudiced in maintaining or defending the action if the admission is amended or withdrawn. In the case at bar, although the admissions address an issue which arguably will determine the extent of disability, claimant's actual request is a misstatement of the information contained in Dr. Roach's initial and subsequent reports. To allow claimant to capitalize on an artfully drafted, yet inaccurate presentation of the evidence would appear not only to impede but also undermine the judicial process. Likewise, the second prong of the test, that claimant would be prejudiced if the defendants were allowed the amendment has also not been met. Claimant knew that the admission was incorrect as early as August of 1991, almost one year before the hearing. He chose not to seek other opinions regarding his disability. As a result, claimant has been aware that the initial rating given by Dr. Roach was to the foot, not the lower extremity. Therefore, claimant is not prejudiced by the amendment to the admission. Page 4 At the hearing, the undersigned allowed the admission of a deposition of Martin Roach, M.D., taken for a third party action. The undersigned was not aware that the deposition was taken on June 6, 1992. According to the hearing assignment order, claimant's case preparation for the workers' compensation case was to have been completed by June 4, 1992. On that basis, the undersigned did not consider claimant's exhibit 5, and excludes it from the evidence. FINDINGS OF FACT The undersigned deputy, having reviewed all of the evidence received, finds the following facts: At the time of the hearing, Charles Gerace was 29 years of age. He is married and has three children. Claimant served six years in the army and received an honorable discharge due to a service disability due to an unsuccessful bunionectomy to his left foot. Claimant began working for the defendant Apache Hose & Belting Company, in July of 1988. He worked as a belt fabricator, and while he was assisting a co-employee on a specific task, a large roll of belting which weighed more than 1800 pounds rolled over his left foot, ankle and his left leg. He was taken to the hospital by ambulance where he was an inpatient for twelve days. Claimant underwent surgery to repair a medial malleolar fracture of the left ankle (Claimant's Exhibit 1a, page 1; Claimant's Exhibit 1c, pages 1-6). Claimant continued under the care of Marvin Roach, M.D. In September of 1989, claimant underwent a second surgery designed to fuse a portion of a joint in his first toe (Cl. Ex. 1a, pp. 2-6). Claimant was referred to the Work Injury Rehabilitation Center (WIRC) in Cedar Rapids, Iowa, for an evaluation of his injury. The notes indicate that claimant had sustained a severe crush injury to the left lower leg and ankle, and claimant complained of pain primarily in the ball of the foot and about the ankle. An examination revealed that claimant had restricted range of motion in the ankle, and it was advised that he begin a general conditioning program emphasizing strengthening the ankle (Cl. Ex. 1b, pp. 1-2). In February of 1990, claimant was released to return to limited work, four hours a day with elevation of the foot and no lifting. Dr. Roach noted that claimant was making slow progress, and his examination revealed decrease sensation over the medial and plantar surface of the foot (Cl. Ex. 1A, p. 7). Claimant continued to see Dr. Roach in February, May and June of 1990. He complained of pain and Dr. Roach noted subluxation of the lateral aspect of the foot particularly with weight bearing. On June 29, 1990, Dr. Roach stated Page 5 that "[h]is disability rating is 30% as a result of the injury of 5/24/89." (Cl. Ex. 1a, p. 8). In August of 1990, claimant sought a second opinion from the University of Iowa Hospitals and Clinics. An examination revealed a slightly swollen left ankle, with limited range of motion. He demonstrated some numbness in the medial plantar nerve. Evaluating physicians (Drs. Newhouse and Marsh) did not recommend a arthrodesis for pain, and declined to assess a disability impairment rating. Apparently, they agreed with Dr. Roach's rating, as the report states "it would be unlikely our assessment would offer him a significantly larger disability impairment rating than what he is currently receiving." (Cl. Ex. 1d, p. 1). In June of 1991, claimant returned to Dr. Roach for an examination. Although additional surgery was discussed, it was not recommended and claimant was given an insert for his shoe to help the MP joint. In August of 1991, claimant returned to Dr. Roach with complaints of pain in the foot and lower leg. He was to be fitted for an ankle brace to provide stability. At this time, Dr. Roach clarified his disability rating: Discussed the patient's permanent impairment today with Mr. Rush his attorney. In the 30% impairment rating was for his foot for the subtalar arthritis, plantar faciitis and scarring. This would relate to the percent impairment of the lower extremity at 21% according to the Guides for Evaluation of the Permanent Impairment, AMA Edition. (Cl. Ex. 1a, p. 11) In May of 1992, claimant sought treatment from St. Luke's Hospital emergency room, complaining of a painful lump on his left foot. He was sent to Dr. Roach who ordered blood tests. Claimant requested a second opinion, and an appointment with another physician in Dr. Roach's office, D. Hart, M.D. Eventually, it was determined that claimant was suffering from a staph infection, and he was given a home IV antibiotic which provided relief (Cl. Ex. 1a, pp. 13-14; Cl. Ex. 1c, pp. 13-18). Currently, claimant stated that he feels pain when he walks, stands, or travels on uneven terrain. He wears a special shoe and also sports a leg brace which extends from the bottom part of his foot to the bottom part of his knee. Claimant walks with a noticeable limp. ANALYSIS AND CONCLUSIONS OF LAW The first issue to be addressed is whether claimant has sustained an injury to his foot or leg. Both would be considered scheduled member injuries, and claimant would be compensated for the amount of disability sustained multiplied by the number of weeks assessed to each member under Iowa Code section 85.34(2). Currently, the loss of or Page 6 loss of use of a leg is compensated for 220 weeks; the loss or loss of use of a foot is compensated for 150 weeks. The right of an employee to receive compensation for injuries sustained is statutory. The statute conferring this right can also fix the amount of compensation payable for different specific injuries. The employee is not entitled to compensation except as the statute provides. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). Although claimant argues that he is entitled to 30 percent impairment to the left lower extremity, the undersigned finds otherwise. It is clear that Dr. Roach's impairment ratings were misconstrued by claimant. The first rating given by Dr. Roach simply states that claimant has a 30 percent disability. He makes no mention of whether the disability is to the leg or the foot. Approximately one year later, after discussing the matter with claimant's attorney, he clarifies his rating and clearly states that he assessed claimant as having a 30 percent impairment to the foot, which converted to a 21 percent impairment to the leg. The threshold issue then becomes whether the ankle is part of the foot or part of the leg. For purposes of the case at bar, claimant's crush injury was to the medial malleolar, which involves the lower end of the tibia or shin bone. Additionally, some of the surgery has required placement of a screw in the bottom of the tibia to stabilize the ankle. Although claimant's subsequent problems have focused on a joint in his first toe and his arch, he continues to have some swelling of the ankle and discomfort where the pin is located. As a result, it is found that claimant sustained an injury to his left leg. Pursuant to Dr. Roach's impairment rating, the only impairment rating given in this case, claimant has sustained a 21 percent permanent partial disability to his left lower extremity. Therefore, he is entitled to 46.286 weeks of permanent partial disability benefits. According to claimant's gross weekly earnings, $246 per week, his marital status (married) and five exemptions, claimant's correct workers' compensation rate is $176.02, according to the Guide to Iowa Workers' Compensation Claim Handling (July 1, 1988). ORDER THEREFORE, it is ordered: That defendants shall pay claimant forty-six point two eight six (46.286) weeks of permanent partial disability benefits at the rate of one hundred seventy-six and 02/100 dollars ($176.02) per week beginning February 2, 1991. 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. Page 7 That defendants shall pay the costs of this action, excluding the deposition of Martin Roach, pursuant to rule 343 IAC 4.33. That defendants shall file an activity report upon payment of this award as requested by this agency, pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of September, 1992. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Robert R Rush Attorney at Law 526 2nd Ave SE P O Box 2457 Page 8 Cedar Rapids IA 52406 Mr Harry W Dahl Attorney at Law 974 73rd St Ste 16 Des Moines IA 50312 5-1800; 5-2906 Filed September 15, 1992 Patricia J. Lantz BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : CHARLES GERACE, : : Claimant, : : vs. : : File No. 918232 APACHE HOSE & BELTING CO., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CRUM & FORSTER COMMERCIAL : INC., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1800; 5-2906 Claimant sustained a traumatic crush injury to the ankle. The main point of contention (on the merits) was whether claimant's injury was confined to the foot or lower extremity. Claimant underwent two surgeries to the foot, ankle and portions of the tibia. The evidence supported a finding that claimant's injury and subsequent disability was to the left lower extremity. Procedurally, claimant tried to argue that artfully drafted request for admissions which misrepresented a doctor's report bound defendants to an admission that claimant had sustained a 30% impairment to the leg/lower extremity. The decision focuses on the misrepresentation by claimant's counsel, and allowed defendants to amend their answer to certain admissions. Claimant knew almost one year before the hearing that the doctor assessed claimant's impairment as 30% to the foot, or 21% to the left lower extremity. No prejudice was shown. Page 1 51803 1107 2200 1108.20 Filed March 13, 1992 Jean M. Ingrassia before the iowa industrial commissioner ____________________________________________________________ : ELIZABETH MCLAUGHLIN, : : File Nos. 918331 Claimant, : 931329 : 931328 vs. : : UNIVERSAL HOME HEALTH CARE, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : FIDELITY AND CASUALTY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ I. RE: File number 918331: 51803 Claimant alleges a permanent right eye impairment as a result of an incident on May 9, 1989, when a Pepsi Cola pop bottle exploded in her face. Credible evidence from an optometrist and three ophthalmologists conclude that there is no objective evidence to verify claimant's alleged loss of right-sided peripheral vision. Expert opinion clearly demonstrates that her injury was trivial and there is no objective ocular damage to correlate with her subjective complaints of visual field loss. Thus, the greater weight of evidence supports temporary but no permanent disability as a result of the May 9, 1989, injury. II. Re: File number 931328: 1107 Claimant alleges she sustained an injury to her right shoulder and right hip as a result of an automobile accident on her way to work. Defendants deny liability based on the "coming and going" rule. Claimant worked as a home health aide and was required to bring her car to work. She had no fixed work situs, instead, she provided services to various patients in their homes. She traveled from her home, using her personal car, to her patient's home. The general rule is that, absent special circumstances, an employee is not entitled to compensation for injuries occurring off the employer's premise on the way to and from work. Under a separate rule which acts as an exception to the "going and coming" rule, an employee's trip to and from work is considered within the course of employment if the employee is required, as a part of his employment, to provide a vehicle for use during the Page 2 working day. Medical Associates Clinic, P.C. v. First National Bank of Dubuque, 440 N.W.2d 374 (Iowa 1989). Since claimant was required to bring her car to work for its use in furtherance of employer's practice, her automobile accident on the way to work arose out of and in the course of employment. 2200 Claimant contends that the automobile accident on September 28, 1989, was caused by her visual impairment. The Iowa Supreme Court in Oldham v. Scofield and Welch, 222 Iowa 764, 767, 266 N.W. 480, 482 (Iowa 1936), held that "where an accident occurs to an employee in the usual course of his employment, the employer is liable for all consequences that naturally and proximately flow from the accident." Since it was previously determined that claimant incurred no permanent impairment as a result of her initial injury and returned to her usual job activities on May 26, 1989, with no restrictions or disability, the September 28, 1989, automobile accident and minor ligamentous strain to the right shoulder and right hip cannot be found to have naturally and proximately resulted from the original injury. III. Re: File number 931329: 1108.20 Claimant alleges that she developed psychological problems as a result of her initial physical trauma on May 9, 1989. The proof of the causal connection between an injury and an alleged disability is dependent on medical opinion. That medical opinion cannot only be the opinion of a psychologist. Saunders v. Cherry Burrell Corp., II Iowa Ind'l Comm'r Rpt 333 (App. Dec. 1982); Palmer v. Norwalk Community School District, II Iowa Ind'l Comm'r Rpt 302 (App. Dec. 1981); Ohnemus v. John Deere Davenport Works, file number 816947 (App. Dec. Feb. 26, 1990). Claimant relied on a clinical psychologist's opinion to establish causation. A psychologist is not a physician and lacks the expertise to determine the relationship between the mind and the body. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : AHMAD HATEM, : : Claimant, : : vs. : : File No. 918564 PIZZA HUT, INC, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : AMERICAN MOTORISTS INS., : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Ahmad Hatem, claimant, against Pizza Hut, Inc, employer, hereinafter referred to as Pizza Hut, and American Motorists, insurance carrier, defendants, for workers' compensation benefits as a result of an alleged injury on May 18, 1989. On June 1, 1993, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a hearing report of contested 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 hearing report, the parties have stipulated to the following matters: 1. On May 18, 1989, claimant received an injury arising out of and in the course of employment with Pizza Hut. 2. Claimant is not seeking additional temporary total or healing period benefits in this proceeding. 3. If the injury is found to have caused permanent disability, the type of disability is an industrial disability to the body as a whole. Page 2 ISSUES The parties submitted the following issues for determination in this proceeding: I. The extent of claimant's entitlement to permanent disability benefits. II. The extent of claimant's entitlement to medical benefits. FINDINGS OF FACT Having heard the testimony and considered all of the evidence, the deputy industrial commissioner finds as follows: Claimant worked as a delivery person for Pizza Hut in 1989. On or about May 18, 1989, claimant suffered a work injury while driving an automobile. The injury occurred when he was struck in the rear by another vehicle. Claimant was transported to the hospital after the accident and received emergency care for whiplash and aggravation of chronic low back pain. Claimant testified by deposition. He stated that he experienced neck and back pain with headaches and dizziness after the work injury. He also stated that he developed swelling and pain in his left leg a few weeks later. Claimant had a prior neck and back injury in 1987 when he fell at a bakery where he was working. Claimant was hospitalized at that time and received treatment though April 1989. Claimant has had chronic neck and back pain with headaches since this 1987 work injury. Also, a few months after the injury while claimant was living in California, he was treated for thrombophlebitis resulting in swelling of his left leg. Claimant seeks permanent disability as a result of the second work injury on May 18, 1989. He states that he has constant neck and low back pain with headaches and dizziness. He states that he has also had left leg swelling and pain between the knee and heel since the 1989 injury. It could not be found that the work injury of May 18, 1989, was a cause of permanent impairment or disability. Claimant has had the same complaints of neck, back and headache pain since 1987. No physician states that he suffered permanent effects from the 1989 injury. Most of claimant's physicians rendering an opinion state that he only aggravated the prior existing chronic pain problems and then returned to the same condition he was before May 18, 1989. The only physician to state that there may be some after effects from the May 18, 1989 injury was Winthrop Risk, M.D., who stated that after the 1989 injury, claimant reported that he could not drive. However, claimant was still in his healing period at the time and claimant has the ability to drive today. Page 3 Claimant seeks reimbursement of the medical expenses listed in the hearing report. However, no testimony was given to substantiate the causal connection of these expenses to the injury. No dates were included in the listing. It is therefore not possible to render a specific finding as to these listed expenses. It is found that claimant recovered from the injury as of December 4, 1989. This was the time claimant's treating neurosurgeon in California, Earl F. Jordan, M.D., finally opined that claimant's condition was not changed by the May 18, 1989 injury. All treatment for neck, back and headache pain between May 18, 1989 and December 4, 1989, is found causally connected to the May 18, 1989, except for treatment rendered to claimant's left leg for thrombophlebitis. CONCLUSIONS OF LAW I. The claimant has the burden of proving by a preponderance of the evidence that the work injury is a cause of permanent disability. Generally, a claim of permanent disability invokes an initial determination of whether the work injury was a cause permanent physical impairment or permanent limitation in work activity. 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, positive 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 to determine from the completeness of the premise given the expert or other surrounding circumstances. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). In the case at bar, expert opinion had to be heavily relied upon due to claimant's prior injury and prior chronic complaints very similar to the complaints he had after the injury in this case. Expert opinion was lacking to support the contentions of claimant and claimant failed to show casual connection to permanency. II. Pursuant to Iowa Code section 85.27, claimant is entitled to payment of reasonable medical expenses incurred for treatment of a work injury. A specific finding with reference to the requested expenses was not possible without evidence to backup the listing in the hearing report. However, it was found that expenses incurred after the injury through December 4, 1989, were work related and they will be awarded . Page 4 ORDER 1. Defendants shall pay to claimant all medical expenses incurred by claimant between May 18, 1989 and December 4, 1989, for treatment of neck and back pain, headaches and dizziness. Claimant shall be reimbursed for any of these expenses paid by him. Otherwise, defendants shall pay the provider directly along with any lawful late payment penalties imposed upon the account by the provider. 2. Defendants shall pay the costs 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, 1993. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Kenneth F. Dolezal Attorney at Law 4920 Johnson Ave N.W. Cedar Rapids, Iowa 52405 Mr. Mark A. Woollums Attorney at Law 111 E 3rd St STE 600 Davenport, Iowa 52801-1596 51803 Filed October 26, 1993 Larry P. Walshire BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ AHMAD HATEM, Claimant, vs. File No. 918564 PIZZA HUT, INC, A R B I T R A T I O N Employer, D E C I S I O N and AMERICAN MOTORISTS INS., Insurance Carrier, Defendants. ___________________________________________________________ 51803 Nonprecedential, extent of disability case. Page 1 before the iowa industrial commissioner ____________________________________________________________ : DALE L. KUNKEL, : : File No. 918568 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N GRIFFIN WHEEL, : : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Dale L. Kunkel, claimant, against Griffin Wheel Company, employer (hereinafter referred to as Griffin), a self-insured defen dant, for workers' compensation benefits as a result of an alleged injury on May 16, 1989. On October 12, 1990, a hearing was held on claimant's petition and the matter was considered fully submitted 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. Oral testimony and written exhibits were received during the hearing from the parties. The exhibits received into the evidence are listed in the prehearing report. According to the prehearing report, the parties have stipulated to the following matters: 1. On May 16, 1989, claimant received an injury which arose out of and in the course of his employment with Griffin. 2. Claimant's entitlement to temporary total disabil ity or healing period benefits extends from May 17, 1989 through August 27, 1989. 3. If the injury is found to have caused permanent disability, the type of disability is an industrial disabil ity to the body as a whole. 4. If permanent disability benefits are awarded, they shall begin as of August 28, 1989. 5. Claimant's rate of weekly compensation is $342.75. 6. All requested medical benefits have been or will be paid by defendant. issue Page 2 The only issue submitted by the parties for determina tion in this proceeding is the extent of claimant's entitle ment to permanent disability benefits. 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 defendant places claimant's credibility at issue during cross-examination as to the nature and extent of the injury and disability. From his demeanor while testifying, claimant is found credible. Claimant was employed by Griffin for 12 years prior to the injury and continues to work for Griffin at the present time. Griffin manufactures steel railroad car wheels. At the time of the injury claimant was a Linberg Furnace opera tor and he continues in this job at the present time. Claimant describes his job as one of the best jobs in the plant. On May 16, 1989, claimant injured his low back while pulling a heavy wheel with a rope. Claimant experienced a sudden onset of back pain radiating into the right leg. Claimant had no prior back problems and was in good health prior to the injury. Claimant was treated primarily by Philip Wilson, M.D., a board certified specialist in public health. This deputy commissioner is unfamiliar with such a medical specialty and it was never explained in the record. Although initially Dr. Wilson felt claimant had many possi ble problems, his final diagnosis was degenerative disc dis ease, back strain and sciatica in the right leg. This diag nosis was made following claimant's six day hospitalization. Claimant was also treated in consultation with Dr. Holt, speciality unknown. Both Dr. Wilson and Dr. Holt did not diagnose a herniated disc despite a MRI report showing evi dence of a small herniation at the L5-Sl level of claimant's spine. These doctors attribute claimant's pain to the degenerative disc disease. No explanation was given as to the doctors' apparent disagreement with the radiologist report. Defendant points out in its brief that an x-ray report showed no changes in claimant's spine since a prior x-ray in 1986. No reports were submitted with reference to any such x-ray or why an x-ray was taken at that time. Defendant argues that this x-ray report shows that the injury could not have caused the degenerative disc disease in claimant's pain. However, one could also argue that this report is clear evidence that claimant's problems are not caused by the degenerative disc disease but the herniated disc because the only thing new is the herniation. In any event, the treatment by Dr. Wilson consisted of medication, exercises and physical therapy. This treatment only par tially alleviated claimant's pain. This pain reoccurred in July 1989, at which time Dr. Holt was consulted. Claimant then underwent a couple of epidural steroid injections. These injections appeared to greatly alleviate claimant's pain according to Dr. Wilson. Claimant testified that the relief only lasted a few days and the pain returned. Page 3 It is found that the work injury of May 16, 1989, is a cause of a mild permanent partial impairment to the body as a whole. This finding is made absent a specific rating by any physician. However, as a result of claimant's lack of progress, Dr. Wilson imposed permanent activity restrictions against the handling of very heavy objects weighing 75 pounds or greater. In addition to the physical restriction, this finding of impairment is based upon the credible testi mony of claimant and his family that almost all of claimant's off work physical activities have been severely curtailed as a result of the work injury. With reference to the issue of causation, defendant quotes in its brief from Dr. Wilson's deposition relative to his initial working diagnoses. However, in later testimony in this deposition, Dr. Wilson stated as follows on the issue of the causation of claimant's condition: A I think the gentleman had pretty well, as I -- My discharge summary back when he was in the hospital, I think he had a degenerative lumbosacral disk disease with a back sprain and had sciatica in the right leg. Q Okay. And given -- And I take it that is either caused by or secondarily caused by the type of history he gave of being injured. Is that correct? A It could be compatible with it, yes. Q Okay. And you didn't find -- He didn't give you any other event to find that it would be compatible with it, did he? A No. Therefore, given claimant's credible testimony as to the nature of the injury and the symptoms arising therefrom, such testimony by Dr. Wilson establishes by the greater weight of the evidence the requisite causal connection between the injury and claimant's back difficulties, especially when claimant had no such problems before the work injury. It is further found that the work injury is a cause of only a five percent loss of earning capacity. Claimant is permanently restricted from very heavy work. However, he is still able to perform lifting up to 75 pounds in the opinion of his physicians and his pain appears to be mostly under control. Despite the restriction placed upon him by Dr. Wilson, claimant is not compelled to leave his job as a furnace operator but has only been restricted from pulling any more heavy reels. Apparently, Griffin has made accom modations for this disability and has allowed claimant to return to his old job. According to Griffin Wheel manage ment, claimant is performing his job adequately at the present time. Claimant's job appears to be stable and secure at least at the present time. At this time, claimant has not suffered a loss of income as a result of the work Page 4 injury. conclusions of law The claimant has the burden of proving by a preponder ance 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 temporary 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 determination of whether the work injury was a cause of permanent physical impairment or permanent limitation in work activity. However, in some instances, such as a job transfer caused by a work injury, permanent disability benefits can be awarded without a show ing of a causal connection to a physical change of condi tion. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben 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, positive 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 circumstances. 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). As the claimant has shown that the work injury was a cause of a permanent physical impairment or limitation upon activity involving the body as a whole, the degree of perma nent disability must be measured pursuant to Iowa Code sec tion 85.34(2)(u). However, unlike scheduled member disabil ities, the degree of disability under this provision is not measured solely by the extent of a functional impairment or loss of use of a body member. A disability to the body as a whole or an "industrial disability" is a loss of earning Page 5 capacity resulting from the work injury. Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A physical impairment or restriction on work activity may or may not result in such a loss of earning capacity. The extent to which a work injury and a resulting medical condition has resulted in an industrial disability is determined from examination of several factors. These factors 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. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, l985). In the case sub judice, it was found that claimant suf fered a five percent loss of earning capacity as a result of the work injury. Based upon such a factual finding, claimant is entitled as a matter of law to 25 weeks of per manent partial disability benefits under Iowa Code section 85.34(2)(u) which is three percent of 500 weeks, the maximum allowable for an injury to the body as a whole in that sub section. order 1. Defendant shall pay to claimant twenty-five (25) weeks of permanent partial disability benefits at the rate of three hundred forty-two and 75/l00 dollars ($342.75) per week from August 28, 1989. 2. Defendant shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for all benefits previously paid. 3. Defendant shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 4. Defendant shall pay the cost of this action pur suant to rule 343 IAC 4.33, including reimbursement to claimant for any filing fee paid in this matter. 5. Defendant shall file activity reports on the pay ment of this award as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of March, 1991. Page 6 ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. James P. Hoffman Attorney at Law Middle Rd Box 1087 Keokuk IA 52632 Mr. John E. Kultala Attorney at Law 511 Blondeau St Keokuk IA 52632 5-1803 Filed March 6, 1991 LARRY P. WALSHIRE before the iowa industrial commissioner ____________________________________________________________ : DALE L. KUNKEL, : : File No. 918568 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N GRIFFIN WHEEL, : : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 5-1803 Extent of permanent disability benefits. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JAN KLEBS, Claimant, vs. File No. 918569 JOHNSRUD TRANSPORT, INC., A P P E A L Employer, D E C I S I O N and GREAT WEST CASUALTY, Insurance Carrier, and SECOND INJURY FUND OF IOWA, 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 October 13, 1993 is affirmed and is adopted as the final agency action in this case. Second Injury Fund shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of February, 1994. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Thomas P. Lenihan Attorney at Law 5835 Grand Ave. #104 Des Moines, Iowa 50312 Mr. Stephen W. Spencer Attorney at Law Page 2 P.O. Box 9130 Des Moines, Iowa 50306-9130 Ms. Joanne Moeller Assistant Attorney General Tort Claims Division Hoover State Office Bldg. Des Moines, Iowa 50319 5-1803; 3000 Filed February 28, 1994 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ JAN KLEBS, Claimant, vs. File No. 918569 JOHNSRUD TRANSPORT, INC., A P P E A L Employer, D E C I S I O N and GREAT WEST CASUALTY, Insurance Carrier, and SECOND INJURY FUND OF IOWA, : Defendants. _________________________________________________________________ 5-1803 A 49-year-old truck driver who suffered a first injury to his right knee in April 1986 and a second injury to his right arm in May 1989 found entitled to 50 percent industrial disability based upon an inability to return to his past work as a truck driver and a 50 percent loss of earnings. 3000 Claimant, who worked for employer two weeks before becoming injured, was determined by employer and insurance carrier to have the potential of earning $712.16 per week based upon the gross weekly earnings of a similarly situated employee. In a settlement agreement between claimant and employer, this rate was reaffirmed and stipulated as the correct rate by claimant, employer and insurance carrier and approved by the industrial commissioner. At the hearing, Second Injury Fund challenged, but produced no evidence to the contrary, the stipulated rate. It was determined, in the absence of evidence to the contrary, that the rate stipulated to by the parties and approved by the commissioner, was the appropriate rate in this case. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : JAN KLEBS, : : Claimant, : : vs. : : File No. 918569 JOHNSRUD TRASNPORT, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : GREAT WEST CASUALTY, : : Insurance Carrier, : : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Jan H. Klebs, claimant, against the Second Injury Fund of Iowa concerning an alleged first injury to the right knee on April 18, 1986 and an alleged second injury to the right arm on May 17, 1989. A settlement agreement was entered into between claimant and employer on September 23, 1992. This matter came on for hearing before the undersigned deputy industrial commissioner on October 7, 1993, in Des Moines, Iowa. The claimant was present and testified. Documentary evidence identified in the record consists of claimant's exhibits 1 through 14 and defendant's exhibits 1, 2, 4, 8, 9, 12, 15, 17, 21, and 22. ISSUES Pursuant to the hearing report and order approving same dated October 7, 1993, the parties have presented the following issues for resolution: 1. Whether claimant is entitled to Second Injury Fund benefits; and 2. The appropriate rate of compensation. FINDINGS OF FACT The undersigned has carefully considered all the testimony given at the hearing, arguments made, evidence contained in the exhibits herein, and makes the following findings: Page 2 Claimant was born on March 9, 1944, and graduated from high school in 1964. His work experience has been as a mail room clerk, meat packer, assembly line worker, truck driver and security guard. A review of the pertinent medical evidence of record reveals that on April 18, 1986, while delivering a load in Tulsa, Oklahoma, claimant was driving his 18-wheel rig coming out of a parking lot onto a road which was under construction and the wheels slipped off of the edge of the road onto the soft shoulder and onto its side. While attempting to get off of the truck, claimant slipped and fell and sustained injuries to his right wrist, right knee, head and neck. On July 16, 1986, claimant underwent an arthroscopy and arthroscopic partial right lateral meniscectomy by Marshall Flapan, M.D. Dr. Flapan examined claimant on September 22, 1987, at which time he determined that claimant had reached maximum medical improvement and as a result of his knee injury and subsequent surgery he had sustained a 5 percent permanent partial impairment of his right lower extremity. Claimant was released to perform his previous occupation as a truck driver (claimant's exhibit 2). Claimant was referred by Liberty Mutual, the insurance carrier for Ace Lines, Inc., to Resource Opportunities, Inc., for a vocational rehabilitation assessment on October 29, 1987. Claimant related to Jeff L. Johnson, rehabilitation consultant, that his injuries precluded him from performing his work as a truck driver. As a result of Mr. Johnson's efforts, claimant secured a job with N.P.I. Security and Smart Industries as a security guard. Claimant testified that he worked for N.P.I. from June through September 1988 and earned $4.50 per hour (cl. ex. 6). In August 1988 claimant entered into a settlement agreement with Ace Lines, Inc. He then quit his job at N.P.I. and moved to Las Vegas, Nevada, in an attempt to find other work. He lived in Las Vegas for about three months and returned to Des Moines, Iowa. He then went to work for A.D.M. driving a tractor. He worked there about one month and he was discharged. On April 21, 1989, he made application with Johnsrud Transport, Inc., for work as a truck driver (defendant's ex. 9). On April 21, 1989, Robert C. Jones, M.D., claimant's former attending physician, released him to return to regular work duties with no restrictions (def. ex. 4). On April 24, 1989, claimant underwent a pre-employment physical examination which was reviewed by Kevin F. Smith, M.D. The examination was essentially unremarkable (cl. ex. 8). Claimant testified that he was hired by Johnsrud as a tanker trucker. He stated he was employed to drive interstate tanker trucks from Des Moines, Iowa, and/or assigned pick-up locations to the west coast of the United Page 3 States. On May 17, 1989, while pulling on a frozen PTO shaft, he noted some pain, grating and swelling in his right shoulder. He saw Dr. Smith on May 18, 1989, and was given medication and ice to administer to the sore area. The record indicates that on May 24, 1989, claimant was examined by Peter D. Wirtz, M.D. The examination revealed ruptured biceps and tenderness over the rotator cuff. He was started on conservative nonsurgical management. However, with continued symptoms and loss of function, a diagnostic MRI was performed which showed soft tissue inflammation of the area of the rotator cuff as well as bicipital tendon rupture. He was continued on conservative therapy until January 23, 1990, at which time he underwent decompression to the right shoulder to relieve any inflammation on the rotator cuff tendon area. Dr. Wirtz last saw claimant on June 14, 1990, at which time he had a functional loss of motion. He was advised that he could return to work on July 12, 1990, with limitations of repetitive over-shoulder-height activity and lifting, pushing and pulling no greater than 10 pounds. He was given a 13 percent impairment rating to the right upper extremity (cl. ex. 9). Claimant presented to Dr. Flapan on July 23, 1992. At this time, Dr. Flapan affirmed Dr. Wirtz's 13 percent impairment rating of the shoulder and assessed an additional 4 percent to the right upper extremity secondary to the biceps rupture (cl. ex. 10). On September 23, 1992, claimant entered into a settlement agreement with employer for 52.5 weeks of workers' compensation benefits or 21 percent permanent partial disability to the arm (ex. 7). CONCLUSIONS OF LAW The issue to be determined is whether claimant is entitled to Second Injury Fund Benefits. Section 85.64 governs Second Injury Fund liability. Before liability of the Fund is triggered, three requirements must be met. First, the employee must have lost or lost the use of a hand, arm, foot, leg or eye. Second, the employee must sustain a loss or loss of use of another specified member or organ through a compensable injury. Third, permanent disability must exist as to both the initial injury and the second injury. The Second Injury Fund Act exists to encourage the hiring of handicapped persons by making a current employer responsible only for the amount of disability related to an injury occurring while that employer employed the handicapped individual as if the individual had had no preexisting disability. See Anderson v. Second Injury Fund, 262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers' Compensation-Law and Practice, section 17-1. The Fund is responsible for the industrial disability present after the second injury that exceeds the disability Page 4 attributable to the first and second injuries. Section 85.64. Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467 (Iowa 1990); Second Injury Fund v. Neelans, 436 N.W.2d 335 (Iowa 1989); Second Injury Fund v. Mich. Coal Co., 274 N.W.2d 300 (Iowa 1970). The record clearly establishes that claimant sustained a first injury on April 18, 1986, to his right knee and was given a 5 percent permanent impairment rating by Dr. Flapan, his treating physician. Claimant sustained a second injury on May 17, 1989, to his right arm. In a settlement agreement, claimant received 52.5 weeks (250 x 21 percent) of permanent partial disability benefits. Clearly, claimant has sustained permanent disability to the specified member set out in section 85.64 and Second Injury Fund benefits are therefore triggered. An assessment of industrial disability is therefore appropriate in this case. 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 the employee is fitted. Olson v. Goodyear Serv. 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 disability. Impairment and disability are not synonymous. The degree of industrial disability can be much different than the degree of impairment because industrial disability references to loss of earning capacity and impairment references 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 the healing period; the work experience of the employee prior to the injury and after the injury and the 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. Likewise, an employer's refusal to give any sort of work to an impaired employee may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). 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 Page 5 each of the factors are to be considered. 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 as well as general and specialized knowledge to make the finding with regard to degree of industrial disability. See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 529 (App. March 26, 1985); Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 654 (App. February 28, 1985). Compensation for permanent partial disability shall begin at the termination of the healing period. Compensation shall be paid in relation to 500 weeks as the disability bears to the body as a whole. Section 85.34. Claimant is 49 years old. He is a high school graduate. He attended truck driving school and obtained a certificate after completing the program. Claimant's injury precludes him from performing his usual job as a truck driver. Claimant has worked as a security guard for the Des Moines Art Center since June 1988. He works 35.5 hours per week and currently earns $5.58 per hour. Claimant testified that the work is easy and accommodates his physical limitations. Employer offered claimant light duty work which claimant rejected and he quit Johnsrud on May 26, 1989, because he did not like office work (def. ex. 8). Claimant testified that he currently earns about $200 per week. Claimant worked 12 1/2 years for Bookey Packing Company and earned $300 per week (def. ex. 1). As a truck driver for Ace Lines he earned $391.03 per week (cl. ex. 1). Claimant was to be compensated by Johnsrud Transport at the rate of $0.18 per mile, which rate was to be increased to $0.20 per mile with longevity. Unfortunately, claimant only worked two weeks for Johnsrud before he was injured on May 17, 1989. In the two weeks prior to his injury, claimant earned $142.90 the first week and $238.16 the second week. His average gross weekly earnings were $190.53 (ex. 11, page 2). In reaching a settlement agreement with employer, employer calculated claimant's workers' compensation rate based upon the gross weekly earnings of a similarly situated employee at $712.16 per week (cl. ex. 11, p. 1). This rate was calculated eight months after claimant's injury date and was provided to the insurance carrier on or about January 3, 1990. This rate was reaffirmed and stipulated as the correct rate by the claimant, employer and insurance carrier at the time of the settlement, September 1992 (cl. ex. 7). Claimant's May 17, 1989 work injury has resulted in a significant loss of earnings and earning capacity. Obviously, employer felt that claimant would have been capable of earning at least $700 per week as an interstate tanker trucker. However, it is speculative as to whether Page 6 claimant would have reached this wage level since he only worked for employer two weeks before becoming injured. During the course of claimant's work history, his earnings averaged about $400 per week. This is a more accurate assessment of claimant's earning capacity. After carefully considering all of the factors of industrial disability, including those previously specifically discussed, the undersigned concludes that claimant has sustained 50 percent industrial disability. This is equivalent to 250 weeks. The Second Injury Fund's liability is reduced by the combined losses of claimant's right knee (5 percent of 220 weeks or 11 weeks) and claimant's right arm (21 percent of 250 weeks or 52.5 weeks). Iowa Code section 85.34(2)(m) and (o). The total reduction is 63.5 weeks. The Second Injury Fund's liability is 186.5 weeks of permanent partial disability benefits. The next issue to be decided is the appropriate rate of compensation. Section 85.36 of the Iowa workers' compensation law provides in relevant part as follows: The basis of compensation shall be the weekly earnings of the injured employee at the time of the injury. Weekly earnings means gross salary, wages, or earnings of an employee to which such employee would have been entitled had the employee worked the customary hours for the full pay period in which the employee was injured, as regularly required by the employee's employer for the work or employment for which the employee was employed, computed or determined as follows and then rounded to the nearest dollar: 6. In the case of an employee who is paid on a daily or hourly basis, or by the output of the employee, the weekly earnings shall be computed by dividing by 13 the earnings, not including overtime or premium pay, of said employee earned in the employ of the employer in the last completed period of thirteen consecutive calendar weeks immediately preceding the injury. 7. In the case of an employee who has been in the employ of the employer less than thirteen calendar weeks preceding the injury, the employee's weekly earnings shall be computed under subsection 6 taking the earnings, not including overtime or premium pay, for such purpose to be the amount the employee would have earned had the employee been so employed by the employer the full thirteen calendar weeks immediately preceding the injury and had worked, when work was available to other employees in a similar occupation. (Emphasis added.) The application of Section 85.36(7) is mandated. Section 4.1(30), Code of Iowa, 1993, Page 7 provides in part as follows: 30. Shall, must and may. Unless otherwise specifically provided by the general assembly, whenever the following words are used in a statute enacted after July 1, 1971, their meaning and application shall be: (a) The word "shall" imposes a duty. (Emphasis in original) Section 85.36(7) is the appropriate method to determine claimant's earnings in this case. This section specifically states that the weekly earnings shall be computed as under section 85.36(6), but the earnings to be divided by 13 shall be the amount the employee would have earned had the employee been so employed by the employer the full 13 calendar weeks immediately preceding the injury and had worked when work was available to other employees in a similar occupation. The record in this case discloses what claimant's earnings would have been had he been employed the full 13 weeks preceding his injury and what an employee in a similar occupation earned from the employer during this period (cl. ex. 11). The employer calculated claimant's compensation rate based upon the gross weekly earnings of a similarly situated employee, Mr. Vine, at $712.16. This rate was calculated eight months after Mr. Klebs' injury date, and was provided to the insurance carrier on or about January 3, 1990. This rate was reaffirmed and stipulated as the correct rate by the claimant, employer and insurance carrier at the time of the settlement agreement in September 1992 (cl. ex. 7). Defendant Second Injury Fund urges that claimant's compensation rate be determined by averaging his gross weekly earnings for the two weeks prior to his injury and dividing by two. However, this method is used only when a determination cannot be made as to what claimant's earnings would have been had he been employed by employer for the full 13 calendar weeks immediately preceding the injury. Hardy v. Abell-Howe Comp., file number 814126 (App. Dec. December 21, 1990). Defendant Second Injury Fund argues that they are not bound by the settlement and computation agreement between claimant and employer because they were not a party to such agreement. Northrup v. Tama Meat Packing, file number 724196 (App. Dec. March 19, 1990). Any settlement must be approved by the industrial commissioner to be enforceable. Iowa Code sections 86.27, 86.13, 85.35, and 85.47. Like any settlement, an agreed-on commutation also requires the approval of the industrial commissioner. Although the terms of the agreement are not binding on the Second Injury Fund, when challenging the terms thereof, the burden of proof is on the party who would suffer loss if an issue were not established. In this Page 8 instance, the Second Injury Fund contests the rate of compensation agreed to by the parties and approved by the commissioner and urges a significantly lower rate. The burden shifts to the Second Injury Fund to prove by a preponderance of the evidence that their rate calculation is more appropriate. Iowa Rule of Appellate Procedure 14(f). Other than attacking the rate submitted by claimant, the Second Injury Fund presented no evidence to the contrary. They produced no witnesses supporting their contentions. Thus, based upon the uncontroverted, uncontradicted, unrebutted, and unrefuted evidence it is determined that based on a gross weekly wage of $712, claimant's rate of compensation is $425.94 per week. ORDER THEREFORE, IT IS ORDERED: That the Second Injury Fund pay to claimant one hundred eighty-six point five (186.5) weeks of permanent partial disability benefits at the rate of four hundred twenty-five and 94/100 dollars ($425.94) per week. The Second Injury Fund's liability begins at the end of the employer's liability for weekly benefits. Finneman v. Wilson Foods Corp., file numbers 834479/913590 (App. Dec. March 17, 1993). That the Second Injury Fund pay accrued weekly benefits in a lump sum. That the Second Injury Fund pay interest on unpaid weekly benefits beginning on the date of this decision. Braden 459 N.W.2d 467, 473. That the Second Injury Fund pay costs pursuant to rule 343 IAC 4.33. That the Second Injury Fund file claim activity reports as required by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of October, 1993. ______________________________ JEAN M. INGRASSIA DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Thomas P. Lenihan Attorney at Law 5835 Grand Ave #104 Des Moines, Iowa 50312 Mr. Stephen W. Spencer Attorney at Law PO Box 9130 Des Moines, IA 50306 Page 9 Ms. Joanne Moeller Assistant Attorney General Hoover State Office Bldg Des Moines, Iowa 50319 51803 3000 Filed October 13, 1993 Jean M. Ingrassia BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JAN KLEBS, Claimant, vs. File No. 918569 JOHNSRUD TRASNPORT, INC., A R B I T R A T I O N Employer, D E C I S I O N and GREAT WEST CASUALTY, Insurance Carrier, and SECOND INJURY FUND OF IOWA, Defendants. ___________________________________________________________ 51803 A 49-year-old truck driver who suffered a first injury to his right knee in April 1986 and a second injury to his right arm in May 1989 found entitled to 50 percent industrial disability based upon an inability to return to his past work as a truck driver and a 50 percent loss of earnings. 3000 Claimant, who worked for employer two weeks before becoming injured, was determined by employer and insurance carrier to have the potential of earning $712.16 per week based upon the gross weekly earnings of a similarly situated employee. In a settlement agreement between claimant and employer, this rate was reaffirmed and stipulated as the correct rate by claimant, employer and insurance carrier and approved by the industrial commissioner. At the hearing, Second Injury Fund challenged, but produced no evidence to the contrary, the stipulated rate. It was determined, in the absence of evidence to the contrary, that the rate stipulated to by the parties and approved by the commissioner, was the appropriate rate in this case. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : TERRELL MORRISON, : : File Nos. 918693 Claimant, : 974076 : vs. : : A R B I T R A T I O N EATON CORPORATION, : : D E C I S I O N Employer, : Self-Insured, : Defendant. : : ___________________________________________________________ STATEMENT OF THE CASE This case came on for hearing on April 8, 1993, at Des Moines, Iowa. These are proceedings in arbitration wherein claimant seeks compensation for permanent partial disability benefits as a result of alleged injuries occurring on March 8, 1989 and March 3, 1989. The record in the proceedings consist of the testimony of the claimant, Dennis Gates, and joint exhibits 1 through 9. ISSUES The issues regarding both cases are: 1. Whether the injuries arose out of and in the course of claimant's employment on March 3, 1989 and March 8, 1989; and, 2. The extent of claimant's permanent disability. FINDINGS OF FACT The undersigned deputy having heard the testimony and considered all the evidence finds that: Claimant is 31 years old. Claimant testified in person at the hearing and through his deposition taken on November 21, 1991, represented by joint exhibit 1. Claimant testified that just prior to graduating from high school in May of 1980, he joined the national guard and went to basic training after graduation for three months. Upon his return, he looked for and did miscellaneous jobs such as farm work, helping with the harvest, hauling wagons and loading bins. He also worked with livestock, feeding them, etc. Claimant began working for defendant employer in January 1981. Claimant related the various jobs he had with defendant employer up to the time he began having back problems which involved the suja chucker. It is also referred to as a lathe job which he was working as of December 7, 1988. He described the nature of that job which Page 2 claimant said involved bending over a box, getting cylinders weighing approximately seven pounds out of the box and stacking them onto a table, etc. Claimant said he had worked at this job for approximately three months when he started noticing back problems. Claimant later indicated that the size of the gears on this particular job would weigh from 5 to 10 pounds and that he would lift one with each hand so that the maximum he would be lifting at one time would be a total of 20 pounds, 10 pounds in each hand (Joint Exhibit 1, pp. 16-17). Claimant estimated he was working on this lathe job (turret lathe) approximately two years up to December 1988. Claimant further described the drill press job that he had prior to working on this lathe job. Claimant went over his post-high school education. He went to college in 1982 at the Iowa Western Community College in Clarinda and took basically business courses and accounting courses. He then dropped out after the spring of 1983 but then went back to school in 1985 and graduated in 1987 with an associate degree. Claimant then testified he went back to school at Buena Vista and took four classes in 1988. Claimant has not returned to school since 1988 but indicated he would like to go back to school to get his four year degree and obtain a degree in business mid-management. Claimant indicated his desire to obtain a Major status in the armed services but would need a four year degree. He hopes to stay in the guard for a minimum of 20 years for retirement purposes. He indicated there was a timetable in which he had to get his degree by October 1995 but now indicates that that has changed and he now does not have to meet the degree requirements until later. He has nine years to go until his 20 year retirement. Claimant testified he was a first lieutenant at the time of his injury in 1989 and was an executive officer and was to take over a company in the summer of 1989. Claimant said that he would have been back on active guard duty after having been on inactive leave when his back problems started and upon the advice of the doctor, he was told to get out for at least one year. Claimant said he was inactive in May of 1989 through February of 1991. He described the inactive status as requiring him to be subject to call but not required to go on weekend drills or annual training and that you don't receive pay and the time doesn't count as far as retirement (Jt. Ex. 1, p. 29). Claimant said that in order to regain his practice status in February 1991, he had to take a physical which was done by a Colonel Ruben Altmam a doctor chosen by the Guard. Claimant is currently a company executive officer, second command. He takes over for the company commander when the commander is gone and runs errands. He is also responsible for the recruiting program and other administrative tasks. Claimant described the one weekend a month that is required and what happens during that one weekend and two weeks of summer or winter camp. He indicated that on the Sunday of that weekend there is more training and physical exercises which includes jogging and running. Page 3 At the time of his deposition in November of 1991, claimant said that he was not having any type of physical problems and was intending to stay in the national guard until he retires. He indicated that after 20 years of service you are locked in with retirement. Claimant testified that he must pass the physical fitness test each year and in this test there are so many pushups required in a two minute time, 60 sit-ups and a two mile run that is to be done within certain time restraints. He said he has passed these tests and acknowledged that some of these things he does as required activities were not to be done due to his injury. He said he is still doing these exercises but contends he does them with pain and lives with the pain for the next several weeks. He said he doesn't elaborate his back problems to the government. His best score now is 250 and before his injury it was around 300 and claimed he was in excellent condition before his injury. Claimant related that his work injury on Friday, March 3, 1989 occurred while he was bending over a box to pick up a couple of gears and felt a sharp pain in his hip. Claimant said it felt like a pinched nerve but he wasn't really sure what had happened and didn't know if he had pulled a muscle while bending over the box or what. Claimant returned to work the following Monday and still had the same pain in his hip, but it was also in his lower back. Claimant said that this low back pain did not start hurting him before he returned to work on March 6, 1989 and continued to work on that day. Claimant said it continued to bother him and was getting worse and on March 7, 1989, he went to the doctor. At that time he was having muscle spasms and placed on medication and the doctor wanted him to start a physical therapy program that day. On March 8 and 9, 1989, claimant returned to work and worked until he had back surgery on May 30, 1989, except for one day in which the parties agreed claimant was off on May 23, 1989. Claimant described the various medical services he received and also the work he was doing in the periods of time he was working and then off work for healing periods. The parties have stipulated regarding claimant's healing period so that is not an issue herein. Those periods total 22.714 weeks. Claimant testified regarding defendant employer's voluntary layoffs. After a layoff in 1990, he returned to work in November of 1990. Claimant testified regarding the various positions the company was having him do in order to accommodate him as he was still having back problems. Claimant testified that in May of 1991, the job assignment with the Boromatic machine was going to be phased out. In order to stay in the department, he bid on a job that was open. The job was the auto drill and tap job again which he had formerly worked on. Claimant indicated that at the time he bid on the auto drill and tap job, since he had done it before and was doing it part-time, it was not causing him any problems physically. Eventually, when claimant started running the auto drill and tap job day Page 4 after day, he indicated his back started aching and kept getting worse and he began taking Advil and some other lower back pain pills. Claimant indicated he talked to Mr. Gates about the problems the job was giving him and claimant saw Dr. Morrison around July 3, 1991. Claimant indicated he discussed various jobs with Mr. Gates and there was a discussion about being sent to a doctor again and the claimant indicated he thought he had better quit. Claimant indicated that the employer suggested a rehabilitation progam rather than claimant quitting at that point. Claimant was asked if he would consider and, in fact, did end up bidding on the gear hobbing job which appeared claimant would have time to walk around after loading the machine and waiting for the cycle about an hour. Claimant indicated that this job required bending over baskets, picking up gears and loading them into a machine and was similar to what he had done when he was working on the suja chucker job in which he would grab with each hand gears weighing approximately 10 pounds each. After deciding what to do claimant said he officially quit working for defendant employer on July 12, 1991. Claimant also emphasized at that time that driving to and from work was causing him pain and spasms and that sitting in a car or in a sitting position caused the pain to become worse. Claimant contended that in a 36 mile distance he would have to get out and walk around twice. Claimant said that before quitting his job with defendant employer, he did not ask Mr. Gates whether they could put him into a low stress job until another permanent job shows up. He has not sought employment or inquired with defendant employer for any job since he quit. Claimant related the various jobs he has applied for or sought employment (Jt. Ex. 1, pp. 75-76). Claimant acknowledged that as of this time he has no restrictions from a doctor, including R. Schuyler Gooding, M.D. Claimant also understood that a year after his surgery, he could pretty much do what he thought he could do. Claimant was generally asked if there was any activities other than driving or riding in a car that he had previously testified to that he can't do today that he could do prior to March 3, 1989. Claimant responded that there is nothing that he can think of he did before that he just absolutely could not do now (Jt. Ex. 1, p. 8). He did indicate he gave up bow hunting deer. Claimant said he could do the Boromatic machine job with defendant employer and possibly some other jobs but he indicated he couldn't do other past jobs. Claimant went over the various things in greater detail as far as recreation that he can't do now that he could do prior to March 3, 1989. These include various activities of hunting, running, playing basketball, baseball, holding his children, etc. It appears that he either can't do these jobs, is limited, or in great pain when he does them. Claimant was asked as to any other injuries he may have had, particularly involving his back prior to March 3, 1989. Page 5 Claimant related some instances which are of no significance nor were there any residue resulting from any of said injuries that would involve claimant's current condition. Claimant indicates is not claiming a traumatic injury on March 3 or March 8, 1989, but that it was a cumulative back injury that resulted in a cumulative injury over a period of time while working for defendant employer which resulted from the various bending and stooping that resulted from his work. On cross-examination, claimant for the first time indicated that he is now a reserve deputy and has been for a little over a year. He indicated he has gone through 30 hours of training, range qualifications, went to the Iowa Law Enforcement Academy learning heavy weapon, revolver, semi-automatic use, CPR, etc. He indicates he is a volunteer and rides with a full-time deputy sheriff. He estimated in six months he rode approximately 200 hours in the car. He indicated that he does other functions other than riding in the car while doing this volunteer work. He indicated the shifts are eight hours and he averages five hours on a shift. Claimant had some criminal justice education when he was in school and has applied for a full-time job as a deputy sheriff with the Taylor County Sheriff Department before he got into the deputy reserves. He felt that working in the reserves may help him to get a job. Claimant indicated that the Taylor County Sheriff would like him to work full time for him if a job opens. On cross-examination, claimant also indicated he was intending to start school at Northwest Missouri State on June 16, 1993, but does not know if he will take a full load. Claimant also indicated he has applied for a deputy sheriff position with Montgomery County. He indicated he has passed the physical agility test. On cross-examination, claimant was asked about certain activities. He acknowledged that he had participated in the martial arts but was not doing this and had a Tae Kwon Do red belt but was not doing martial arts on the day of the injury. He emphasized he is a very active person. He acknowledged he does paint cars on his own and had done this for ten years now. He acknowledged he didn't tell Dennis Gates about the March 3, 1989 incident because he thought other activities could have caused it. Claimant said he hadn't painted a car for about a year prior to March 3, 1989, and is not playing basketball or softball. He indicated he last played basketball approximately one year ago in March of 1992, at which time he broke his thumb. Claimant was asked about his voluntary layoffs in 1990 and 1991, and claimant indicates that driving to and from work bothered him and he needed to recuperate. Claimant acknowledged that in March of 1993, he drove to Fort Benning, Georgia, in connection with national guard training. Claimant was then referred to joint exhibit 5, pages 1,2 and 3, in which he had an army physical fitness test and Page 6 scored 250 points out of 300. He did 55 pushups in two minutes and did the two mile in 12 minutes and 42 seconds and obtained a perfect score. This test was on October 1, 1991, approximately three months after he quit the company. That same exhibit, on page 4, indicates claimant had no limitation and good strength in his leg. The rest of the doctor's writing is illegible as to comments concerning his back. Claimant said he is combat fit to be company commander but indicated it would be for a short time and that he couldn't do maximum effort. It appears to the undersigned that claimant, when it comes to the national guard, performs tests and is very fit, but when it comes to non-national guard situations, he is not in good condition to do certain things that may be just as strenuous or even less strenuous. Claimant indicated that if he told the doctor he couldn't do certain things such as sit-ups and pushups, then he would be out of the national guard. He contends he downplays his condition so that he can stay in the guard. The fact is he does do the required exercises to pass the physical tests. It would be expected that he would put good effort in and not play lame whether he wanted to be in the national guard or not when it comes to attempting to pass any tests. Claimant seems to send mixed signals. If it wasn't that he wanted to stay in the guard so he could eventually reach his 20 year retirement minimum in approximately nine years he may otherwise not have put forth the effort as obviously he doesn't want to continue working for defendant employer. One of the apparent reasons is that driving to and from work affects his back. Claimant's position is that he is not being dishonest but is downplaying his physical condition when it comes to the national guard. It appears to the undersigned that claimant wants to display excellent physical condition when it comes to national guard and those good benefits which have financial rewards but also wants benefits from defendant employer based on the fact that he is disabled. Claimant then was referred to joint exhibit 5, page 30, where he was hurt while running a two mile run. Said exhibit reflects that claimant was running at slower pace than he usually runs because the group was slower. It appears that he had the capabilities of running faster than this group of national guard men in this particular run. Claimant contends that because of running slow it took more energy and he did end up with what appears to be a pulled hamstring muscle. Claimant emphasized he doesn't have trouble running and has no limitation when doing pushups. Mr. Gates testified at the hearing and through his deposition on January 17, 1992, represented by joint exhibit 2. He testified he has been employed by defendant employer since November of 1979 and has been the human resource manager since June 1981 and deals with workers' compensation, etc. He said claimant was off March 8, 1989 through April 16, 1989, and on his return on April 17, Page 7 claimant told him that his situation was not work related. Mr. Gates said he told claimant he would work with the claimant. Mr. Gates said he called claimant again the next week and claimant told him it was not work related and that he was taking therapy treatment. Mr. Gates indicated that when a person has even a pain in his leg such as claimant contended on March 3, 1989, the company procedure is for the employee to report it to the foreman. He said nothing was reported under that procedure. Mr. Gates indicated that defendant employer tried to accommodate claimant and in July 1991, when he was able to accommodate claimant with the gear hobbing machine job, he thought this was a better job for the claimant and could better accommodate him. He said claimant told him to put in a bid for that job and on July 12, 1991, he called claimant to tell him that he got the job for him and the claimant then changed his mind. Mr. Gates said the claimant told him he didn't want to make the trip back and forth driving. He said that on July 2, 1990, he talked to claimant about obtaining medical care and said that claimant could have gone through this while working at his job at the gear hobbing machine. Mr. Gates emphasized that claimant would still be at the plant if claimant hadn't quit and that the plant could have accommodated claimant with his seniority. Mr. Gates said there are other employers in the area that claimant could work for and that one particular company, Pella Rolscreen, added 300 jobs. He acknowledged that claimant is very physically active and that claimant is not content to be inactive. Mr. Gates indicated that there was no company record of his March 1989 conversation with claimant but that if claimant had said he had an injury or had a pain while lifting a part, the situation would have been investigated. Mr. Gates said that until the time that claimant went to Dr. Gooding and Dr. Gooding indicated on April 27, 1989 that claimant's back problems are work related, claimant never even thought of his condition being work related (Jt. Ex. 2, p. 14; Jt. Ex. 3, p. 1). Mr. Gates said that when claimant told him he was leaving he sent claimant a form and claimant filled it out (Jt. Ex. 4, p. 65). Joint exhibit 3, page 1, has been previously referred to as the April 27, 1989 letter of Dr. Gooding who referred to the fact that because claimant has been employed by defendant employer over the past eight years and the past two years has worked at a job which requires constant bending and lifting, he indicated it appears claimant's low back problems are work related. The doctor wasn't aware of any specific incidents or activities which would account for the disc problem. Joint exhibit 3, pages 41, 46 and 48, reflect that Page 8 claimant had a microdiscectomy left L5-S1 level on May 31, 1989. The undersigned notes in various medical records that in neither the history or reasons for admission there is comments that claimant's employments over the past two years requires frequent bending and lifting. The undersigned sees nothing as to claimant's other activities that are non-work connected and it is obvious from claimant's testimony and confidence in himself that he was actively engaged in other non-work activities whether it be playing various sports, martial arts, painting cars, doing other physical activities on his own or in connection with the national guard as required in the national guard training. Joint exhibit 3, page 21, is the medical records of claimant indicating that on April 26, 1992, he injured his left thumb while playing basketball. Joint exhibit 3, page 14, is a letter of Michael J. Morrison, M.D., that was in response to claimant's attorney's letter of May 21, 1990. Dr. Morrison indicated that on the date of obtaining a history from the claimant there was no specific account of an injury to his back at work. He therefore was unable to have an opinion regarding the causal connection of his back condition as related to an on-the-job injury. Joint exhibit 3, page 17, is a September 24, 1991 letter of Dr. Morrison in which he again indicated that he would be unable to have an opinion regarding the causation of claimant's back condition as related to an on-the-job injury. On page 15 of joint exhibit 3, Dr. Morrison on November 26, 1991, wrote again that he had no information in his records to suggest or document that claimant had a work-related injury. In this report, he did indicate that as far as a permanent impairment following claimant's lumbar laminectomy, he opined that claimant had a 10 percent permanent impairment to claimant's body as a whole. He also opined that claimant would have permanent restrictions of no frequent bending over, squatting, kneeling or crawling and not be expected to do heavy lifting greater than 30 to 40 pounds on a frequent basis since this would have a tendency to re-aggravate his lower back condition. On March 12, 1990, Dr. Gooding opined that claimant had a 15 percent permanent partial disability to the whole person because claimant's low back anatomy has been permanently altered virtually because of the on-the-job injury which required surgery. He also gave some lifting restrictions and claimant was not to routinely do bending, lifting and carrying or to stand or sit for extended periods of time without frequent opportunities to get up and move around (Jt. Ex. 3, p. 9). Joint exhibit 7 is the income tax returns of claimant. They verify claimant's testimony that he was financially better income wise from 1989, 1990, 1991 to 1992, progressively. In 1991 and 1992, claimant's W2 shows it includes active duty wages, also. Joint exhibit 6, page 11, Page 9 is the October 7, 1992 report from the Iowa National Guard indicating claimant was promoted to the rank of captain. Page 12 of this exhibit, dated January 30, 1992, is a national guard order ordering claimant to active duty at Fort Benning March 22, 1992 until June 15, 1992. It indicates thereon that claimant should report in a satisfactory physical condition, able to pass the army physical fitness test. Claimant filed two actions alleging injuries on March 3 and March 8, 1989. It is obvious from the record and also from claimant's attorney's comment that at most we have one cumulative injury and that the reason two petitions were filed was for additional protection to the claimant to make sure the correct injury date was alleged. We will proceed on the basis of alleged March 8, 1989 cumulative back injury represented by file No. 918693. On the prehearing order, all the issues are identical as to the alleged injury dates and file numbers. Claimant contends that he incurred an injury that arose out of and in the course of his employment on March 8, 1989. Claimant emphasized that he is not contending any traumatic injury on that date but that he has incurred a cumulative low back injury. The medical records show that claimant apparently first developed a pain on Friday, March 3, 1989, and that by the next Monday and Tuesday the pain became worse and he did not come to work on March 8, 1989. Dennis Gates, who is the workers' compensation and human relations department director, indicated that claimant did not notify him on that date of an injury or pain and indicated on more than one occasion up until around the middle of April 1989, that he did not know the cause and did not indicate that he incurred any work injury. It appears that it wasn't until Dr. Gooding, in an April 27, 1989 letter represented by joint exhibit 3, page 1, in which he indicated from the history claimant gave him, that it appears claimant's low back problems are work related, that claimant then took the position that he did incur a work-related injury. Claimant emphasized how good a condition he has been in and all the activities that he has participated in prior to March 3, 1989. It is evident that he considers himself to have continued to keep himself in very good physical shape but indicated he does have a low back condition that is disabling him. Claimant has been very active in the national guard and is extremely motivated to continue at all costs his active participation in the national guard as he desires to put in 20 years minimum and obtain a good retirement. He has nine years to go. The evidence shows that one must pass not only a physical fitness test but that the guidelines and the standards set by the national guard are very substantial. Claimant must do certain things as far as pushups, running, etc. In order to keep in shape in order to comply with the rigid national guard criteria, claimant indicates that he is doing more than he is able to do and on the other hand is Page 10 contending he has a substantial disability which prevents him from working at gainful employment particularly at the defendant corporation. Claimant insists that he is not being dishonest by "pretending" that he is not injured or has no disability so that he can stay in the national guard and yet does very strenuous exercises, in some instances coming up with a perfect score and in other instances coming up with 250 out of 300 points. When he sheds his national guard uniform and gets into the non-military world, he is allegedly substantially disabled. Claimant emphasized that he is and has been an active person. The undersigned believes he still participates to a substantial degree in many or most activities he did before his alleged March 3, 1989 injury. Claimant was involved in a multitude of sports, in martial arts in addition to keeping in shape in order to comply with the national guard physical fitness standards. The record does not show that claimant incurred any injury at any other place. The record also shows that claimant did not incur a trauma on March 3, or 8 of 1989. He alleges a cumulative low back injury. Claimant has the burden of proof. Claimant is and has been involved in many activities in which his condition resulting in a surgery could just as likely have caused or contributed to claimant's current alleged disability as any alleged work injury. At sometime claimant himself did not believe he had a work injury and it appears that not until Dr. Gooding made the suggestion in April 91, that claimant then took that position. It is obvious that Dr. Gooding was given the history of strictly claimant working at a repetitive type job involving bending and stooping but obviously did not know of claimant's other activities that involved running, pushups, sit-ups and army active duty training. Dr. Morrison on three separate occasions represented by joint exhibit 3, pages 14, 15, & 17, could not opine that claimant's back condition was related to any job injury. He had the same information as Dr. Gooding. In fact, Dr. Morrison indicated that claimant had informed him of no specific job injury when he gave him a history. There is two impairment ratings issued in this case, one by Dr. Morrison of 10 percent and one by Dr. Gooding of 15 percent. The mere fact there is an impairment rating does not mean that it had to be as a result of work injury. The undersigned therefore finds that claimant has failed to carry his burden that he incurred an injury that arose out of the course of his employment on either March 8 or March 3, 1989, and that claimant's medical condition is just as likely to have occurred or to have been caused by nonwork injury or cumulation of various activities of scooping, bending, running, pushing, lifting etc. as his work. The undersigned finds there is no causal relationship between any work injury and claimant's alleged medical condition, impairment, disability or any surgery that he had. Although the above findings disposes of or makes moot any other issue the undersigned will comment on concerning Page 11 the only other remaining issue in this case and that is the extent of any permanent disability. The undersigned has found that claimant did not carry his burden to show that he incurred an injury that arose out of the course of employment. The evidence in this case shows that claimant would have very little industrial disability if he had otherwise proven his case. Claimant was accommodated by the defendants and they made substantial effort to accommodate claimant and in fact the evidence would indicate that they had a place for claimant that he could work and that if claimant had not quit voluntarily in July of 1991, he could and would have most likely still been there working. The undersigned finds that claimant's reasons for quitting are not valid taking into consideration the effort and activity he must perform in order to keep up with the national guard. Claimant said he has been painting cars for 10 years. There is no offering in the evidence indicating that the painting that he does in that regard would take any more or less effort than some of the work he was doing at the defendant employer, one of which jobs did involve some painting. Claimant would like to work in the criminal justice system and work for a sheriff's department. It appears he has spent substantial time on a voluntary nonpaying basis riding around and helping a deputy sheriff when he could in fact be looking for and obtaining work elsewhere for which he would receive some compensation. Claimant is highly motivated to keep up and obtain his retirement with the national guard and perform all the physical activities necessary but lacks motivation to get a paying job that would most likely take less effort than doing some of the national guard work. Claimant gave up a good opportunity working for the defendant employer. Claimant claims his back hurt when he drove to defendant employer and yet it seems he does considerable riding in the car or driving when it comes to national guard duty work or training or working for free for the sheriff's department. Claimant seems to have had no problems sitting still while testifying for approximately two hours plus and, also, sitting in the courtroom and yet it appears that he is not able to do this when he is in a setting somewhere else. The undersigned questions the claimant's credibility as to the extent and alleged cause of his injuries. As indicated earlier the extent of his injuries is moot in light of the fact that the undersigned has found that claimant did not incur an injury that arose out of and in the course of his employment on either March 8 or March 3, 1989. Therefore, claimant takes nothing from these proceedings. CONCLUSIONS OF LAW Claimant has the burden of proving by a preponderance of the evidence that he received injuries on March 3, 1989 or March 8, 1989, which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d Page 12 904 (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 injuries of March 3, 1989 and March 8, 1989, are causally related to the disability on which henow bases 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). It is further concluded that claimant did not incur a cumulative injury to his low back on either March 3 or March 8, 1989, that arose out of the course of claimant's employment and that claimant's alleged medical condition, his disc surgery and any impairment or disability, is as likely to have risen out of nonemployment activities as it would have any work activity and that there is no causal connection between his alleged disability and any alleged work injury. ORDER IT IS THEREFORE ORDERED: That claimant takes nothing from this action. That claimant pay costs of this action. Signed and filed this ____ day of May, 1993. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Roger L Ferris Attorney at Law 1900 Hub Tower 699 Walnut Des Moines IA 50309 Mr Alan H Bjork Attorney at Law 1300 Des Moines Bldg Des Moines IA 50309 5-1100; 5-1803 Filed May 6, 1993 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : TERRELL MORRISON, : : File Nos. 918693 Claimant, : 974076 : vs. : : A R B I T R A T I O N EATON CORPORATION, : : D E C I S I O N Employer, : Self-Insured, : Defendant. : : ___________________________________________________________ 5-1100 Found claimant's injuries on March 3, 1989 and March 8, 1989 did not arise out of and in the course of his employment. 5-1803 No industrial disability awarded. Claimant took nothing as to both cases.