Page 1 before the iowa industrial commissioner ____________________________________________________________ : ROBERT LEE BAIER, : : File No. 921026 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N WESTHOFF, INC., : : Employer, : Defendant. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Robert Lee Baier, claimant, against Westhoff, Inc., employer (hereinafter referred to as Westhoff) whose insurance status is unknown, defendant, for workers' compensation benefits as a result of an alleged injury on October 13, 1988. On July 23, 1990, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. On April 13, 1990, sanctions were imposed against defendant for failure to comply with a direct order from this agency to file a responsive pleading to the petition. From that date, the record was closed to further evidence or activity by defendant. At the time of hearing, oral testimony and written exhibits were received only from claimant. Despite notice of the hearing, defendant did not physically appear to moni tor the hearing proceedings. No transcript of the hearing was taken. Defendant had been ordered to furnish a court reporter and none appeared at the hearing. Claimant waived a transcription of the proceedings and agreed that the only record of the proceedings for the purpose of appeal will be this decision. issues The parties submitted the following issues for determi nation in this proceeding: I. Whether claimant received an injury arising out of and in the course of employment; II. The extent of claimant's entitlement to disabil ity benefits; III. The extent of claimant's entitlement to medical benefits; Page 2 IV. The extent of claimant's entitlement, if any, to additional benefits for an unreasonable denial or delay in payment of benefits; and, V. Claimant's rate of weekly compensation. findings of fact Having heard the testimony and considered all the evidence, the deputy industrial commissioner finds as follows: From his demeanor while testifying, claimant is found credible. The following findings are based upon claimant's credible testimony. The claimant is 40 years old having been born on April 22, 1949. The claimant is married. He had two children from his current marriage and three dependents from a prior mar riage on the date of injury, October 13, 1988. Claimant has a high school education along with some training immediately thereafter in auto mechanics. The claimant indicated that he could read the daily newspaper, but he also admitted dur ing the course of the hearing that he often could not under stand words over five to six letters long. He indicated that he seldom read books or serious magazines. His speech patterns during the hearing indicated a limited grasp of grammar, diction and punctuation. The claimant has not been employed as an auto mechanic for over 30 years. The claimant's prior employment over the last 20 years has been as an over-the-road semi truck driver specializing in 18 wheel vehicles. The claimant has no other significant work experience other than as a sergeant in the National Guard where his position is a supervisory rather than a laboring position. The claimant did work for a short period of time for IBP, Inc. as a butcher. He also worked in general housing construction many years ago and for a short time after high school in auto mechanics. The claimant has never been a foreman or had a supervisory position other than the National Guard nor has he had an office job for any employer. All prior jobs required claimant to work in a cold environment, indoors and out. The claimant was hired by the defendant in Iowa after he applied at defendant's Sioux City, Iowa office in person. The claimant drove trucks owned by the defendant and received $.15 per mile loaded and $.13 per mile while empty. The claimant was required to unload trucks by himself or to pay for the unloading out of his own pocket. The claimant would be phoned and told to pick up loads in Sioux City or other locations as the Sioux City, Iowa office of the defendant directed. On or about October 13, 1988, claimant received an injury arising out of and in the course of his employment with Westhoff. Claimant picked up a semi and trailer at the employer's Sioux City, Iowa address and drove to Mississippi. There he picked up fish and drove that load to Pennsylvania. From Pennsylvania he drove to New Jersey. He Page 3 was then driving back through Pennsylvania on the way to Canada at which time he was in an accident in Lehigh County, Pennsylvania as shown in Exhibit 12. Pictures of the dam aged tractor, shown as Exhibit 13, clearly indicate on the vehicle that it was owned by the defendant as does the acci dent report, Exhibit 12. The claimant was immediately taken by ambulance to the Allentown Hospital in Pennsylvania where he was admitted and major facial surgery was contemplated. (Exhibits 1 and 4). While hospitalized the claimant was seen by Harvey S. Cheng, M.D., (Exs. 5 & 15), George C. Chovanes, M.D., (Exs. 4 & 16), Mohammad A. Malik, M.D., (Ex. 3) and Geoffrey G. Hallock, M.D., (Exs. 2 & 17). All of these doctors have indicated that their treatment was as a result of this on-the-job injury. At that point the defendant elected to transport the claimant back to Sioux City, Iowa by plane, partially at its expense. The claimant incurred $47.41 in transportation expenses from Allentown, Pennsylvania to the Philadelphia, Pennsylvania airport from which point he returned to Sioux City. The claimant has not been reimbursed by the defendant for the $47.41 in transportation expenses. Upon returning to Sioux City the claimant immediately underwent surgery at Marian Health Center performed by Stanley Bloustine, M.D., (Exs. 6-8, 18-19). The claimant continued to be seen by Dr. Bloustine thereafter. Claimant had sustained a 10 percent permanent partial impairment to the body as a whole as a result of his head injuries sus tained on October 13, 1988 (Ex. 20). This finding is based upon the views of Dr. Bloustine, the treating physician. The defendant has paid none of the claimant's medical bills for treatment and its only effort to help the claimant to date was to pay for a one way ticket from Philadelphia to Sioux City, Iowa. The unpaid medical bills to date are itemized in Exhibits 1-11. The claimant continues to be seen by a chiropractor (Ex. 9), but no CT scan, myelogram, MRI, EMG or other diagnostic tests or medical care have been provided by the defendant to date. Claimant has extensive medical restrictions due to the injury. Prior to the accident he had passed routine D.O.T. physicals required annually of truckers and he has no other significant history of accidents or worker's compensation claims. Claimant has returned to work as a semi truck driver. The claimant testified that his night vision is getting worse and he must now wear glasses. He is required to adjust his seat to the maximum possible position in his cur rent short trips as a short haul semi driver. His head is now near the roof in the truck. This raising of the seat is necessitated by the fact that he cannot work with his arms extended straight out from his shoulders due to the pain in his neck and shoulders. He has avoided working where manu ally steered trucks are in use and he holds the bottom of the steering wheels to avoid shoulder and neck pain. He Page 4 indicated that he could not reach high to unhook trailer hoses at this time and that he could not unload reefers or dry vans, because the products are stacked too high in them for him to reach any longer. The claimant has readjusted the mirrors on semis he drives due to his inability to prop erly rotate his neck. He also avoids climbing ladders on the back of trucks and he has eliminated from consideration all trucks that carry produce and have refrigeration units mounted near the tops of ladders on trailers. The claimant restricts his lifting on the job currently to 15 pounds. The claimant currently drives no further than 500-600 miles per day, with frequent stops at least once each hour being required due to his need to get out of the truck and walk around as a result of his neck and shoulder pain. His current employer has been understanding regarding the amount of time lost due to these stops. The materials he hauls currently also do not demand delivery with constant time deadlines. The claimant currently need only turn a lever to have his trucks unloaded through their bottoms and no other physical labor on his part is required. The claimant testified that he has modified his entire home life to adjust to his limitations arising from this accident. He indicated that he purchased additional pipes for his vacuum and a telescoping duster so that he does not have to reach above shoulder level or stoop over with his neck parallel to the ground. Mopping or sweeping bothers him because he has to bend forward too far. He has trouble grocery shopping in getting products off of the bottom shelf, again due to his bending restriction. He purchased garbage cans on wheels to avoid carrying over 15 pounds at a time. The jarring of walking upstairs seems to bother his neck and upper back and shoulders in particular as does walking on irregular hills or surfaces. He indicated that he is very careful in the type of chair that he sits in and he gets up and moves around at least every hour. The claimant testified that he was told by Dr. Bloustine to avoid cold weather, fumes or chemical smells on a permanent basis due to his facial surgery. He also testi fied that high humidity and gasoline fumes particularly aggravate him. The claimant wears a mask while unloading farm products currently, even if it is a 100 degree humid day. The claimant must wear a mask constantly throughout the winter whenever he is outside. The claimant would not consider working for a major oil or chemical company because such products aggravate his nasal condition. Dr. Bloustine also advised him to avoid hyperventilating or breathing extremely hard from excessive work or excitement as that could also aggravate his facial condition. The claimant cannot control his bite and he has lost feeling in four of his front teeth. He cannot tell hot from cold due to the numbness in his mouth and he can easily burn himself while eating or in drinking items such as hot coffee. He must eat out of the side of his mouth on a con tinuing basis. The claimant indicated that his left hand experiences Page 5 radiating numbness and pain from his neck and that he has trouble carrying or handling things in that hand since his accident. The claimant indicated that he had not seen a chiropractor since 1973 and that he had no treatment for his back or neck or shoulders at any time thereafter. He testi fied that he would avoid work requiring pushing or pulling with his arms, such as operating a forklift or bulldozer, front end loader, sewing equipment or other such work that would put pressure on his shoulders and neck. Based on the views of Dr. Bloustine (Ex. 20), the claimant was temporarily totally disabled from October 13, 1988 through November 9, 1988. Although interrogatories and requests to produce were sent to the defendant, no wage records for the claimant's employment with the defendant have been provided at any time. Based upon the claimant's employment with the defendant in 1988, as shown in Exhibit 22, it can be concluded that the claimant's average weekly wage was $288.56. This was arrived at by taking the figure from his 1988 W-2 from the defendant, $13,850.93 and divid ing that amount by 48 weeks excluding the four weeks during which the claimant was temporarily totally disabled from this injury. The claimant had four exemptions and was sin gle at the time of injury. The following medical bills were incurred as a conse quent of the October 13, 1988 industrial injury. a) The Allentown Hospital - Lehigh Valley Hospital Center, $3,085.58 b) Dr. Geoffrey G. Hallock, $775.00 c) Dr. Mohammad A. Malik, $235.00 d) Allen Neurosurgical Association, Inc., $280.00 e) Dr. Harvey S. Cheng, $110.00 f) Marian Health Center, $2,604.22 g) Woodbury Anesthesia Group, $192.00 h) Dr. Stanley Bloustine, $1,025.00 i) Hillier Chiropractic Clinic, $68.00 j) Sav-Mor Pharmacy, $37.18 k) Mileage, $102.06 l) Cab fare from Allentown, PA to Philadelphia, PA, $47.41 Total Medicals Unpaid $8,561.45 The claimant currently earns $5.00 an hour hauling farm related materials, including farm chemicals. The claimant testified that he was very worried about losing this employ ment because his employer had only six trucks total and he was not aware of any other employer that was so forgiving regarding delivery times and his unloading limitations. The claimant indicated that he currently accumulates very little overtime and he indicated that his gross annual earnings should be approximately $11,000.00 this year. Without his current restrictions, he believed he could not receive $.20 a mile or more hauling cross country as he used to and that his earnings could be as high as $30,000.00 a year if he did not have such restrictions. The claimant testified that 80 percent of the jobs he has held and some 75-80 percent of the jobs in the industry Page 6 require over-the-road truck drivers to be able to unload their trailers themselves. The only alternative to a truck driver unloading the trailer himself would be to constantly attempt to locate temporary manpower to unload their trail ers and to then pay for such laboring work out of his own share of the profits from each load hauled. He indicated that his only option, given his lack of training or experi ence in any other field of employment, was to work on short haul routes not requiring him to physically unload the trucks. Therefore, as a result of his work injury of October 13, 1988, claimant has suffered a 40 percent loss of earning capacity. conclusions of law I. Claimant has the burden of proving by a prepon derance of the evidence that claimant received an injury which arose out of and in the course of employment. The words "out of" refer to the cause or source of the injury. The words "in the course of" refer to the time and place and circumstances of the injury. See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited therein. In the case sub judice, it was clearly shown by the evidence offered that claimant was severely injured in an accident which arose out of and in the course of his employ ment with Westhoff. II. Claimant must establish by a preponderance of the evidence the extent of weekly benefits for permanent dis ability to which claimant is entitled. As the claimant has shown that the work injury was a cause of a permanent physi cal impairment or limitation upon activity involving the body as a whole, the degree of permanent disability must be measured pursuant to Iowa Code section 85.34(2)(u). However, unlike scheduled member disabilities, 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 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 condi tion 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, imme diately 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 Page 7 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 has suffered a 40 percent loss of his earning capacity as a result of the work injury. Based on such a finding, claimant is entitled as a matter of law to 200 weeks of per manent partial disability benefits under Iowa Code section 85.34(2)(u) which is 40 percent of 500 weeks, the maximum allowable for an injury to the body as a whole in that sub section. As claimant has established entitlement to permanent partial disability, claimant is entitled to weekly benefits for healing period under Iowa Code section 85.34 from the date of injury until claimant returns to work; until claimant is medically capable of returning to substantially similar work to the work he was performing at the time of injury; or, until it is indicated that significant improvement from the injury is not anticipated, whichever occurs first. It was found that claimant was off work due to his injuries from October 13, 1988 through November 9, l988, a period of four weeks. III. Pursuant to Iowa Code section 85.27, claimant is entitled to payment of reasonable medical expenses incurred for treatment of a work injury. However, claimant is enti tled to an order of reimbursement only if claimant has paid those expenses. Otherwise, claimant is entitled to only an order directing the responsible defendants to make such pay ments. See Krohn v. State, 420 N.W.2d 463 (Iowa 1988). In the case at bar, the medical expenses found causally con nected to the injury will be awarded. IV. Additional benefits, up to a maximum of 50 per cent, can be awarded for an unreasonable denial or delay in payment of weekly disability benefits under Iowa Code sec tion 86.13(4). Defendant, in this case, failed to pay any such benefits for no apparent reason. An additional two weeks will be awarded for denial of healing period benefits and an additional 100 weeks for a delay in paying permanent partial disability benefits. V. Given the finding of gross weekly wage and claimant's marital and exemption status, claimant is enti tled to a rate of weekly compensation in the amount of $192.13 according to the industrial commissioner's published rate booklet. order 1. Defendant shall pay to claimant two hundred (200) Page 8 weeks of permanent partial disability benefits at a rate of one hundred ninety-two and 13/l00 dollars ($192.13) per week from November 10, 1988. 2. Defendant shall pay to claimant healing period ben efits from October 13, 1988 through November 9, 1988 at the rate of one hundred ninety-two and 13/100 dollars ($192.13) per week. 3. Defendant shall pay to claimant additional benefits for an unreasonable denial or delay in payment of weekly benefits in the amount of one hundred two (102) weeks from the date of injury herein, October 13, 1988. 4. Defendant shall reimburse claimant his medical expenses in the sum of eight thousand five hundred sixty-one and 45/l00 dollars ($8,561.45). 5. Defendant shall hereafter provide such reasonable and necessary medical treatment for the work injury of October 13, 1988, as is recommended by claimant's physicians including any necessary transportation to receive such treatment. 6. Defendant shall pay interest on weekly benefits awarded herein from the date they were due as set forth in Iowa Code section 85.30. 7. Defendant shall pay the costs of this action pur suant to Division of Industrial Services Rule 343-4.33. 8. Defendant shall file activity reports on the pay ment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this ____ day of August, 1990. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Dennis J. Mahr Attorney at Law 318 Insurance Centre 507 - 7th St Sioux City IA 51101 Mr. William J. Westhoff Westhoff, Inc. 120 Livestock Exchange Bldg Sioux City IA 51101 REGULAR & CERTIFIED MAIL Page 9 5-1803 Filed August 27, 1990 LARRY P. WALSHIRE before the iowa industrial commissioner ____________________________________________________________ : ROBERT LEE BAIER, : : File No. 921026 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N WESTHOFF, INC., : : Employer, : Defendant. : ___________________________________________________________ 5-1803 Extent of disability. Page 1 before the iowa industrial commissioner ____________________________________________________________ : BERNARD GROSS, : : Claimant, : : vs. : : File No. 921036 QUAKER OATS COMPANY, : : A P P E A L Employer, : Self-Insured, : : D E C I S I O N 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 July 16, 1991 is affirmed and is adopted as the final agency action in this case, with the following additional analysis: Agency precedent is clear, where a party fails to comply with prehearing order requiring service of exhibit & witness list on opposing party that party's evidence is excluded. See, Clousing v. Rosenboom Machine & Tool, Appeal Decision, filed May 15, 1989. Lack of prejudice or disadvantage does not justify admission of evidence where claimant failed to comply with the prehearing order. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of November, 1991. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Page 2 Copies To: Mr. Robert R. Rush Mr. Matthew J. Nagle Attorneys at Law 526 2nd Ave. SE P.O. Box 2457 Cedar Rapids, Iowa 52406 Mr. James E. Shipman Attorney at Law 1200 MNB Bldg. Cedar Rapids, Iowa 52401 Mr. Dean A. Lerner Mr. Charles S. Lavorato Assistant Attorneys General Tort Claims Division Hoover State Office Bldg. Des Moines, Iowa 50319 9999 Filed November 26, 1991 Byron K. Orton DRR before the iowa industrial commissioner ____________________________________________________________ : BERNARD GROSS, : : Claimant, : : vs. : : File No. 921036 QUAKER OATS COMPANY, : : A P P E A L Employer, : Self-Insured, : : D E C I S I O N and : : SECOND INJURY FUND OF IOWA,: : Defendants. : ___________________________________________________________ 9999 Summary affirmance of deputy's decision filed July 16, 1991, with short additional analysis. Page 1 before the iowa industrial commissioner ____________________________________________________________ : BERNARD GROSS, : : File No. 921036 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N SECOND INJURY FUND OF IOWA, : : Defendant. : ____________________________________________________________ statement of the case This is a proceeding in arbitration filed by Bernard Gross on October 4, 1989, seeking benefits under the Iowa Workers' Compensation Act from employer Quaker Oats Company and the Second Injury Fund of Iowa on account of an alleged injury of September 20, 1989. Prior to hearing, claimant entered into a settlement agreement with defendant Quaker Oats and now seeks relief only from the Second Injury Fund of Iowa. He asserts that he had a preexisting disability to the left foot, and has now sustained bilateral arthritic injuries to the lower extremities. This cause came on for hearing in Cedar Rapids, Iowa, on July 11, 1991. The record consists only of claimant's testimony. Claimant offered certain exhibits (1 through 15) and would have presented another witness, his wife, if so allowed. However, because he failed to timely serve a witness and exhibit list on defendant Second Injury Fund of Iowa in accordance with the hearing assignment order filed herein on January 25, 1991, that evidence was excluded. issues The parties have stipulated that an employment relationship existed between claimant and Quaker Oats Company on September 20, 1989, that the appropriate rate of weekly benefits is $404.27 and that the commencement date for permanent partial disability, if awarded, is March 10, 1990. Issues presented for resolution include: 1. Whether claimant had a qualifying prior loss for Second Injury Fund purposes; 2. Whether claimant sustained an injury arising out of and in the course of his employment with Quaker Oats Company on September 20, 1989; 3. Whether the alleged injury caused permanent disability; and, 4. If so, whether it is an occupational disease under chapter 85A, an injury to two or more scheduled members Page 2 under Iowa Code section 85.34(2)(s), or otherwise is compensable under the Second Injury Compensation Act and the extent thereof. findings of fact The undersigned deputy industrial commissioner, having heard the testimony and considered all of the evidence, finds: Bernard Gross, 56 years of age at hearing, has congenital flat feet and an ankle deformity on the left side. He has long suffered pain in his feet and has favored the left leg. He described this as hampering some of his activities (for example, climbing ladders at home) and he wears special shoes with arch supports. It is claimant's understanding that he suffers arthritis in both knees. It was observed that he is now quite bowlegged. He first noticed this condition in 1986 and now suffers pain in the knees at all times. Pain also now extends up to his hips. The record does not contain any expert opinion as to whether claimant's condition, be it arthritic or otherwise, is causally related to employment with Quaker Oats Company. conclusions of law Claimant has the burden of proving by a preponderance of the evidence that he received an injury on September 20, 1989 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of" refer to the course or source of the injury. McClure v. Union, et al., Counties, 188 N.W.2d 283 (Iowa 1971). This requirement is satisfied by showing a causal relationship between the employment and the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986). The Supreme Court of Iowa in Almquist v. Shenandoah Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) discussed the definition of personal injury in workers' compensation cases as follows: While a personal injury does not include an occupational disease under the Workmen's Compensation Act, yet an injury to the health may be a personal injury. [Citations omitted.] Likewise a personal injury includes a disease resulting from an injury. . . . The result of changes in the human body incident to the general processes of nature do not amount to a personal injury. This must follow, even though such natural change may come about because the life has been devoted to labor and hard work. Such result of those natural changes does not constitute a personal injury even though the same brings about Page 3 impairment of health or the total or partial incapacity of the functions of the human body. . . . . A personal injury, contemplated by the Workmen's Compensation Law, obviously means an injury to the body, the impairment of health, or a disease, not excluded by the act, which comes about, not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee. [Citations omitted.] The injury to the human body here contemplated must be something, whether an accident or not, that acts extraneously to the natural processes of nature, and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. The claimant has the burden of proving by a preponderance of the evidence that the injury of September 20, 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). Assuming that claimant's understanding as to his bilateral condition is accurate, common knowledge and the experience of this agency recognizes that arthritis is a common degenerative disease which afflicts workers and nonworkers alike. This agency has often held that arthritic conditions have either been caused by or aggravated by employment, but in other cases, claimant has failed to establish that necessary causal nexus between the arthritic condition and employment. As noted above, no expert evidence has been admitted into the record. Particularly where it is alleged that a degenerative condition such arthritis is causally related to the employment, expert opinion is crucial. In its absence, Page 4 it must be held that claimant has failed to sustain his burden of proof. Accordingly, Second Injury Fund liability has not been established. order THEREFORE, IT IS ORDERED: Claimant shall take nothing from this proceeding. Each party shall be responsible for its own costs pursuant to rule 343 IAC 4.33. Signed and filed this ______ day of ____________, 1991. ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Matthew J. Nagle Mr. Robert R. Rush Attorneys at Law 526 Second Avenue SE P.O. Box 2457 Cedar Rapids, Iowa 52406-2457 Mr. James E. Shipman Attorney at Law 1200 MNB Building Cedar Rapids, Iowa 52401 Mr. Charles S. Lavorato Mr. Dean A. Lerner Assistant Attorney General Tort Claims Division Hoover State Office Building Des Moines, Iowa 50319 1108; 2901 Filed July 16, 1991 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : BERNARD GROSS, : : File No. 921036 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N SECOND INJURY FUND OF IOWA, : : Defendant. : ____________________________________________________________ 1108; 2901 Claimant settled with employer, but failed to serve witness and exhibit lists on sole remaining defendant, the Second Injury Fund. With evidence excluded, claimant failed to prove causal relationship between employment and lower extremity arthritis. Page 1 before the iowa industrial commissioner ____________________________________________________________ : ROXANN DOLPHIN, : : Claimant, : : vs. : : File No. 921038 BEEF SPECIALISTS OF IOWA, INC,: : A R B I T R A T I O N Employer, : : D E C I S I O N and : : HARTFORD INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ introduction This is a proceeding in arbitration brought by Roxann Dolphin, claimant, against Beef Specialists of Iowa, Inc., employer and Hartford Insurance Company, insurance carrier, defendants for benefits as the result of an alleged injury which occurred on June 10, 1989. A hearing was held at Storm Lake, Iowa, on November 8, 1990. Claimant was represented by Steve Hamilton. Defendants were represented by Matthew Grotness and Frank T. Harrison. The record consists of the testimony of Roxann Dolphin, claimant; Bret Dolphin, claimant's husband; Danny Mohni, supervisor; and joint exhibits 1 through 13. The deputy ordered a transcript of the hearing. stipulations The parties stipulated to the following matters at the time of the hearing: That an employer-employee relationship existed between claimant and employer at the time of the alleged injury. That claimant asserts no claim for temporary disability benefits. That the commencement date for permanent disability benefits, in the event such benefits are awarded, is June 10, 1989. That the rate of compensation, in the event of an award, is $176.10 per week. That the fees charged for medical services are fair and reasonable and that they were incurred for reasonable and necessary medical treatment. That the causal connection of the expenses to treatment Page 2 for a medical condition upon which claimant is now basing her claim is admitted, but the causal connection of this condition to a work injury remains an issue to be decided in these precedings. That defendants make no claim for credit for employee nonoccupational group health plan benefits or workers' compensation benefits paid to claimant prior to hearing. That there are no bifurcated claims. issues The parties submitted the following issues for determination at the time of the hearing: Whether claimant sustained an injury on June 10, 1989, which arose out of and in the course of employment with employer. Whether the injury was the cause of permanent disability. Whether claimant is entitled to permanent disability benefits. Whether claimant is entitled to medical benefits. findings of fact injury Claimant sustained the burden of proof by a preponderance of the evidence that she sustained an injury on June 10, 1989, which arose out of and in the course of employment with employer. Claimant started to work for employer on January 30, 1989 (transcript pages 19 & 39). She terminated her employment on August 19, 1989 (tr. pp. 35 & 49). Claimant testified that she is 5 foot 7 1/2 inches tall and weighs 165 pounds (tr. p. 11). She testified that she processed meat carcasses eight to ten hours a day, five to six days a week. Her job was to trim skirts with a straight knife. She described a skirt as a slab of meat approximately two inches thick, that weighed approximately 10 pounds which was oval shaped and was approximately two feet by two feet in size. She testified that she was expected to trim a skirt every 35 seconds. She estimated she trimmed 80 to 90 skirts per hour. She demonstrated it took approximately eight to ten cuts to trim a skirt. The job essentially means removing a piece of fat which is sandwiched in between two pieces of meat. She also cut off the diaphragm and put it in a tub, then flipped the skirt over and trimmed and scraped off the fat (tr. pp. 19-23 and 44-47). Claimant testified that she was also required to lift tubs which weighed approximately 50 to 75 pounds every half hour. She admitted she had never weighed a tub. Danny Mohni, a supervisor, said that he weighed a tub and it Page 3 weighed approximately 41 to 42 pounds (tr. pp. 23 & 63). Claimant testified that near the end of February or approximately the beginning of March 1989, she began to have pain in the top of her shoulders and in her neck. She had no part-time jobs and was not doing anything outside of her employment to account for this pain (tr. pp. 24 & 25). She denied any prior injury or diseases to her neck, back, shoulders or hands (tr. p. 16). Claimant testified that she complained several times to her supervisor, Rick Maranell, and Cindy Armstrong, the plant nurse, that she needed medical care, but they did not send her to a doctor. Claimant related that on June 10, 1989, Armstrong made out an accident report and sent her to see John P. McCarthy, D.C. (tr. pp. 25-27). Dr. McCarthy's records show that he saw claimant on June 15, 1989. He recorded the onset of the problem as June 10, 1989. He said the cause was carrying tubs. He recorded that claimant had no past injury. He said the chief complaint was left upper dorsal pain that radiates down the left side and up into the neck and off and on into the left arm. He noted that claimant had these complaints for a long time, since at least February and that its gotten gradually worse. Turning her head to the left radiated pain in to the left dorsal area (exhibit 7, page 4). He returned claimant to work the following day on June 16, 1989, without any restrictions. Claimant said she saw Dr. McCarthy two or three times and then quit because it felt like he put her neck out of place (tr. pp. 26 & 27). Claimant then went to see Rex J. Jones, D.C. The first time she did not have authority, but after the first time, Armstrong said to bring in the bill and she then authorized claimant to see Dr. Jones approximately twice a week in April, May, June and August of 1989 (tr. pp. 28 & 29). The records of Dr. Jones show that he first saw claimant on June 21, 1989, for neck and upper back pain. He noted a bump on the right side of the scapula and spine--not as large as on the left side. He noted the original injury was near the end of March, carrying tubs. He recorded that her hands were numb most of the time, the left hand will cramp up at night, there is pain in the palm, the first three fingers were numb on the left hand, and the middle finger on the right hand wakes her up at night (ex. 5, p. 4). Claimant reported to him that the initial accident occurred on June 10, 1989, working on the line, lifting heavy tubs of meat. Previously she was injured near the beginning of March, but she was not sent to a doctor at that time. She said both injuries occurred in a similar way (tr. p. 31). On July 10, 1989, Dr. Jones referred to the Dictionary of Occupational Titles and said that claimant was capable of performing medium work, which is lifting 50 pounds maximum with frequent lifting and/or carrying of objects weighing up to 25 pounds. He said she could stand and walk six to eight hours a day, could use her feet for repetitive movements and operating foot controls, that she could squat, climb and Page 4 perform overhead work frequently and bend intermediately and that she was capable of working at shoulder level with both hands. Dr. Jones commented, "Bending over the table will keep her upper back muscle spasm sore and affect her spinal function. Repetitive movement will cause her pain to be recurrent." (ex. 5, p. 9). On July 14, 1989, Dr. Jones wrote: 1) developing early trigger finger in right hand-little finger 2) developing early ganglion cysts on both wrists from chronic tendon irritation. 3) use wrist splints if possible. On June 17, 1989, Dr. Jones told employer to, "Please put wrist wraps on Roxanne [sic]". (ex. 5, p. 11). On August 18, 1989 Dr. Jones wrote: I am writing in regard to Roxanne [sic] Dolphin. I have recommended that she not work at this type of occupation because of the repetitive nature of the work. She is developing chronic upper back strain, tendinitis of the wrists, has a snapping finger developing, and complains of carpal tunnel-like symptoms in the arms and hands. She does no[t] have the physical build necessary for this job. (exhibit 12, page 5) On August 23, 1989, the doctor reported to Job Service that claimant had upper back and neck complaints, snapping finger, and carpal tunnel-like symptoms in the hands. In answer to the question, "Was disability `employment related'?", Dr. Jones marked the block, "yes." In answer to the question, "Did you advise the individual to quit his/her job?", Dr. Jones checked the block marked, "yes." He said the reason claimant could not perform her occupation was because she had light duty for two weeks and was wearing wrist splints on the job, but the upper back was getting worse. In answer to the question of whether there were restrictions, Dr. Jones said, "This person has not been released from care yet but should not lift or pull." (ex. 5, p. 13). There is also a bill from Dr. Jones in evidence for a re-examination on December 20, 1989, an office visit and ultrasound therapy on December 26, 1989, and a later office visit on September 6, 1990. The total charges are $76. Dr. Jones checked the block to show that the condition was related to patient's employment for an injury which occurred on June 10, 1989 (ex. 1). J. Michael Donohue, M.D., performed an independent medical examination for the Iowa Division of Rehabilitation Services. He said claimant complained of: (1) neck pain; (2) headaches; (3) tenderness in the shoulders between the shoulder blades; and (4) numbness in both hands with cramping of her forearms. His physical examination noted Page 5 some mild restrictions of motion on flexion and hyperextension of her neck. He diagnosed: (1) chronic cervical strain; (2) chronic myofascial strain rhom boids and levator scapulae bilaterally; and (3) flexor tenosynovitis--it should be noted that on examination today, the patient has moderate nodular formation along the flexor tendons at the wrist that appears to be a variant of a flexor tenosynovitis. Dr. Donohue wrote: I discussed the findings with the patient. Based on her current condition and history. I believe it would be recommended that the patient train in a job that is less strenuous on both her upper extremities as well as her neck area. I certainly would agree with her current occupational choice of accounting and anticipate that she would do well. (exhibit 8, page 2) He recommended that claimant begin an aggressive strengthening program for both shoulders as well as her neck and to avoid irritating activities with repetitive use of her arms at work (ex. 8, p. 3). On December 21, 1989, Dr. Jones said claimant reported complaints of headaches in the back of her skull, neck pain, pain between the shoulder blades and along the scapula, pain over the left shoulder and numbness in both hands while writing or taking tests. Her cervical range of motion was measured with a goniometer and an inclinometer. He stated, "Patient exhibits thoracic outlet syndrome bilateral but more pronounced on the left with radiation ot [sic] the left hand." He stated she had a moderate case of fibrositis in the muscles of her upper back and shoulder which become symptom expressive when fatigued, overworked, under stress and tension or chilled. He concluded: This patient did not have the physical build to do the type of labor she was required to do at BSI. I recommended that she quit her job and seek education and other employment more suited to her physical build and qualifications. This patient appears to have developed the symptoms she now has while working this past year at BSI as she relates no prior history of problems. (exhibit 11, page 2) Defendants contended that claimant had seen doctors on prior occasions, but claimant explained that the certificate for return to work from Bhupala R. Kalkpolli on June 7, 1989 was treatment for a common cold by her family physician (tr. pp. 33, 34, 40 & 43). She further testified that the note from Herman M. Tan, M.D., dated June 23, 1989 was treatment for infertility (ex. 4; tr. p. 49). Defendants claim that they are not liable for the fact that claimant did not have the proper physical build for this work as related by Dr. Jones. However, it is a well known principle of workers' compensation law that the employer Page 6 takes the employee in "as is" condition. Hanson v. Dickenson, 188 Iowa 728, 732 176 N.W. 823, 824 (1920). The chief Iowa workers' compensation text book states: The statute prescribes no standard of fitness to which the employee must conform, and compensation is not based on any implied warranty of perfect health or of immunity from latent and unknown tendencies to disease, which may develop into positive ailments, if incited to activity to any cause originating in the performance of the work for which he is hired." (Lawyer and Higgs, Iowa Workers' Compensation--Law and Practice, section 4.2, second paragraph, page 21). Claimant's testimony and the reports of all three doctors--Dr. McCarthy, Dr. Jones, and Dr. Donohue--all attribute claimant's complaints to her employment for this employer. Claimant's evidence is not rebutted, controverted, contradicted or refuted by any other evidence either medical or nonmedical. Therefore, it is determined that claimant sustained an injury on June 10, 1989, which arose out of and in the course of employment with employer. causal connection-entitlement-permanent disability It is determined that claimant has sustained a 15 percent industrial disability to the body as a whole caused by this injury. Claimant and all three doctors attribute her complaints to her neck, shoulders, hands and upper back to her employment for employer. Dr. McCarthy did not assign an impairment rating, but only saw her two or three times at the beginning of her treatment and therefore, would not be in a position to give an impairment rating; nor is there any evidence that he was asked to give an impairment rating. He did return claimant to work without restrictions. Dr. Donohue, the only orthopedic surgeon to examine claimant, did not assign an impairment rating, but did find a limitation of range of motion in her cervical spine and verified claimant's other complaints in her shoulders and hands. In effect, he told claimant to change employment and approved her choice of accounting for a change of occupation. On December 26, 1989, Dr. Jones reported his cervical range of motion measurements and stated that using the Guides to the Evaluation of Permanent Impairment, third edition, that claimant sustained a 5 percent whole man impairment. He added: This patient's hand numbness was not rated as a specific nerve root could not be established. The fibrositis was also not rated as the guides do not address this condition even though it can be very debilitating to a persons ability to perform certain tasks and occupation. Page 7 (exhibit 12) Claimant was 23 years old at the time of the injury and 24 years old at the time of the hearing. Because of her young age, her disability is not as great as it would be for a person in the peak earning years of their employment career. Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report of the Industrial Commissioner 34 (Appeal Decision 1979); Walton v. B & H Tank Corp., II Iowa Industrial Commissioner Report 426 (1981); McCoy v. Donaldson Company, Inc., file numbers 782670 & 805200 (Appeal Decision April 28, 1989). Claimant has a high school education. In December of 1986, claimant attended the American College of Word Processing for 21 weeks in Des Moines and completed the course in the spring of 1987 (tr. p. 17). She has attended Northwest Iowa Technical College on two occasions. On the first occasion, right after high school, she was unsuccessful and quit school. The second time, she attended three quarters of three months each, a total on nine months, and obtained a diploma in clerical accounting in May 1990. She was an honor student (tr. pp. 12, 36, & 51). An injured employee's ability for retraining is one of the consider ations used in the determination of industrial disability. Conrad v. Marquette School, Inc., IV Iowa Industrial Commissioner Report 74, 89 (1984). Claimant is not able to return to repetitive work with her hands and arms. Based on the reports of Dr. Donohue and Dr. Jones, she is foreclosed from this type of work in the future. Rohrberg v. Griffin Pipe Products Co., I Iowa Industrial Commissioner Report 282 (1984); Michael v. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218, 220 (Appeal Decision January 30, 1979). Even though claimant quit the job which caused her injuries, she did so on the recommendation of Dr. Jones, her treating physician, who made it quite clear that this was the only way to resolve her current medical complaints. Dr. Donohue concurred in this opinion. This prohibition of no repetitive work eliminates many of the jobs which are the easiest to obtain and which frequently pay the most money with the least amount of preparation or education for the job. Claimant's past employments as a bookkeeper, night auditor and accountant for various employers, will be helpful in the future. Claimant will not be able to return to most meat packing jobs, such as those that she has held in the past. Claimant is currently employed as a sales person in a jewelry shop in her home town at $4.20 per hour, but hopes to find accounting work in the future (tr. p. 36). Claimant testified that she continues to have pain in her neck and shoulders on both sides for which she takes ibuprofen, two or three tablets, twice a day (tr. p. 37). She has found it best if she tries not to lift 10 or 15 pounds (tr. p. 40). Wherefore: (1) based on the foregoing considerations; (2) and all of the factors used to determine industrial disability, Peterson v. Truck Haven Cafe, Inc., vol. 1, no. Page 8 3 State of Iowa Industrial Commissioner Decisions 654, 658 (Appeal Decision February 28, 1985) and Christensen v. Hagen, Inc., vol. I, no. 3, State of Iowa Industrial Commissioner Decisions 529 (Appeal Decision March 26, 1985); and (3) relying on agency expertise, [Iowa Administrative Procedure Act 17A.14(5)]; it is determined that claimant has sustained a 15 percent industrial disability to the body as a whole and that claimant is entitled to 75 weeks of permanent partial disability benefits. medical benefits Claimant is entitled to $71 of the $76 of medical expenses incurred with Dr. Jones in December 1989 and September 1990. She is not entitled to the $5 for copying charges on December 4, 1989. This is a trial preparation expense and not an authorized medical expense under Iowa Code section 85.27. Claimant testified that this treatment with Dr. Jones was related to this injury. Dr. Jones' report and his statement for these services indicate that they are related to this injury. Claimant testified that she was authorized to see Dr. Jones by Armstrong and that this authority was never revoked at any time (tr. p. 32). Claimant's testimony is not rebutted, controverted, contradicted or refuted, even though Armstrong was present in the courtroom at the time of the hearing and heard claimant's testimony. Therefore, claimant is entitled to recover $71 for the medical expenses of Dr. Jones (ex. 1). conclusions of law Wherefore, based on the evidence presented and the foregoing and following principles of law, these conclusions of law are made: That claimant sustained an injury on June 10, 1989, to her neck, upper back, shoulders, hands and ganglion cysts which arose out of and in the course of employment with employer. Iowa Code section 85.3; McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). That the injury was the cause of permanent disability. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945). That claimant is entitled to 75 weeks of permanent partial disability benefits based upon a 15 percent permanent functional impairment to the body as a whole. Iowa Code section 85.34(2)(u). That claimant is entitled to $71 in medical expenses incurred with Dr. Jones. order THEREFORE, IT IS ORDERED: That defendants pay to claimant seventy-five (75) weeks Page 9 of permanent partial disability benefits at the rate of one hundred seventy-six and 10/100 dollars ($176.10) per week in the total amount of thirteen thousand two hundred seven and 50/100 dollars ($13,207.50) commencing on June 10, 1989 as stipulated to by the parties. That defendants pay to claimant or the provider or medical services, Dr. Jones, seventy-one dollars ($71) in medical expenses. That all accrued benefits are to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That the costs of this action, including the cost of the transcript, are charged to defendants pursuant to Division of Industrial Services Rule 343-4.33. That defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this ____ day of November, 1990. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Steven D. Hamilton Attorney at Law PO Box 1088 606 Ontario St Storm Lake, Iowa 50588 Mr. Frank Harrison Mr. Matthew Grotnes Attorneys at Law 2700 Grand Ave. STE 111 Des Moines, Iowa 50312 Page 1 51106; 51401; 51402.20; 51402.30; 52209; 51402.40; 1803; 51402.60; 52501; 52700 Filed November 29, 1990 Walter R. McManus, Jr. before the iowa industrial commissioner ____________________________________________________________ : ROXANN DOLPHIN, : : Claimant, : : vs. : : File No. 921038 BEEF SPECIALISTS OF IOWA, INC,: : A R B I T R A T I O N Employer, : : D E C I S I O N and : : HARTFORD INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 51106; 51401; 51402.20; 51402.30; 52209 Claimant proved a cumulative type of injury which arose out of and in the course of her short employment with employer by her own testimony and the reports of the three doctors who treated her. 81402.40; 1803 Claimant, age 25, high school graduate, received one impairment rating for 5 percent and two doctors told her to not perform any more repetitive work. She followed the doctors and quit this job and went to school to become an accountant. Claimant was awarded 15 percent industrial disability. 51402.60; 52501; 52700 Claimant awarded medical bill defendants refused to pay. Employer had authorized this doctor and had never revoked the authorization. Page 1 before the iowa industrial commissioner ____________________________________________________________ : CAROLYN HELM (BEEBE), : : Claimant, : : vs. : : File No. 921040 DAHL'S FOOD MART, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ introduction This is a proceeding in arbitration brought by Carolyn Helm against Dahl's Food Mart, employer, and Employers Mutual Companies, insurance carrier. In her petition, claimant has alleged a work-related injury of June 5, 1989 and seeks workers' compensation benefits. However, the prehearing report and the evidence show that claimant should have alleged an injury date of June 21, 1989. Claimant did not move to amend the injury date, nor was there a motion to conform to the proof, but due to an absence of prejudice or surprise to the defendants, the undersigned finds that claimant's alleged injury date should be June 21, 1989. See, Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 999 (1961). The case was heard at Des Moines, Iowa on May 28, 1991 and was considered fully submitted upon conclusion of the hearing. Leave was granted so that the parties could file briefs. Claimant chose not to file a brief. The record in this proceeding consists of the testimony of the claimant; claimant's exhibits A-H; and, defendants' exhibits 1-15. Page 2 issues Pursuant to the prehearing report submitted and approved at the hearing, and in conjunction with the hearing assignment order, the following issues were presented for resolution: 1. Whether claimant received an injury which arose out of and in the course of her employment; 2. Whether there is a causal relationship between the alleged injury and claimant's disability; 3. Whether claimant is entitled to temporary total or healing period benefits, or permanent partial disability benefits; 4. Whether claimant is entitled to medical benefits as provided for under Iowa Code section 85.27; and, 5. Claimant's workers' compensation rate. findings of fact The undersigned deputy, having heard the testimony and considered all of the evidence received, finds the following facts: Claimant was born on December 15, 1943. At the time of the hearing, she was 47 years of age. Claimant began working for Dahl's Food Mart in April of 1989. Her primary job duties included waiting on customers, clearing tables of plates and carrying them to the kitchen, washing the dishes, and preparing food. Claimant stated that when she removed the dishes from the tables, she would place them in a tub and would fill the tub only one-fourth full so that she could easily carry the dishes to the kitchen. Claimant described that she began to experience problems with her hands after working at Dahl's for approximately three and one-half months. She stated that during a two week period, the restaurant was unusually busy, and in order to keep up with the demands of the job, she began to fully load her tub with dishes and would proceed to carry it to the kitchen. At some point, her hands and wrists began to hurt, and she started to drop dishes due to a loss of gripping ability. Claimant reported the problem to the assistant manager, Judy Robbins, who sent claimant to the Hilltop Medical Clinic for an examination. On July 13, 1989, claimant came under the care of Douglas Reagan, M.D. He noted positive findings for carpal tunnel syndrome; ulnar tunnel syndrome; cubital tunnel syndrome; pronator syndrome and possible radial nerve entrapment at the elbow. Results of an EMG demonstrated mild bilateral carpal tunnel syndrome, and Dr. Reagan stated that these findings, "may be related to the fact that she has had two carpal tunnel releases in the past." (Cl. Ex. C). She was referred to Ronald S. Bergman, D.O. He scheduled an EMG of both wrists, and took claimant Page 3 off of work through August 1, 1989, the date of her next appointment. (Cl. Ex. D). It was recommended that claimant undergo conservative treatment initially, and she began physical therapy in August of 1989. The physical therapy treatment provided little relief. (Cl. Ex. C). Eventually, Dr. Bergman diagnosed bilateral carpal tunnel syndrome, ulnar tunnel syndrome, and cubital tunnel syndrome. He performed surgery on the right upper extremity on September 20, 1989, and surgery on the left upper extremity on November 6, 1989. (Cl. Ex. A, B). On July 24, 1990, Dr. Bergman performed a disability evaluation to determine the amount of permanent partial disability sustained by claimant. His opinion provides, in pertinent part: 12 percent impairment of the left upper extremity due to decreased range of motion of the wrist and elbow, decreased strength, decreased sensation and pain. 7 percent impairment of the right upper extremity due to decreased range of motion of the wrist and elbow, decreased strength and pain. (Cl. Ex. F). Claimant has a history of wrist problems, and has had four prior carpal tunnel release surgeries performed. In February of 1987, after the last surgery, she was given impairment ratings of two percent of the left hand and three percent of the right hand. (Defendants' Exhibit 3). analysis and conclusions of law The first issue to be addressed is whether claimant received an injury on June 21, 1989, which arose out of and in the course of her employment with Dahl's. An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). Claimant has the burden of proving by a preponderance of the evidence that she received an injury on June 21, 1989, which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the Page 4 injury. Crowe, 246 Iowa 402, 68 N.W.2d 63. The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63. The evidence reflects that claimant had a preexisting condition as a result of numerous, prior carpal tunnel releases. However, she had not had any difficulty in performing her waitressing job prior to the unusually busy period she worked prior to the injury date of June 21, 1989. A determination that an injury "arises out of" the employment contemplates a causal connection between the conditions under which the work was performed and the resulting injuries; i.e., the injury followed as a natural incident of the work. Musselman v. Central Tel. Co., 154 N.W.2d 128 (1967). Claimant was required to perform a variety of duties as a waitress, including carrying tubs of dishes and washing the same. The evidence shows that she was performing these duties in a manner consistent with the job demands, and that she subsequently felt pain and loss of strength in her grip. She was working scheduled hours at the required location. It is concluded that claimant received an injury which arose out of and in the course of her employment. The next issue to be addressed is whether there is a causal relationship between the injury and disability. The claimant has the burden of proving by a preponderance of the evidence that the injury of June 21, 1989 is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). Page 5 However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Furthermore, if the available expert testimony is insufficient alone to support a finding of causal connection, such testimony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish compensability, the injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960), and cases cited. Defendants argue that claimant's current condition, and the condition which prompted surgery was not causally connected to her employment as a waitress at Dahl's. They based their argument on the fact that there is no opinion with respect to causal connection from any of claimant's treating physicians, and that the evidence suggests that claimant has continuously suffered from carpal tunnel symptoms following her prior surgeries. Page 6 Claimant argues that the condition of her wrists was stable prior to her employment with Dahl's, and because of the nature of the job, there is a causal connection between claimant's injury and the disability. The evidence shows that claimant has experienced varying degrees of carpal tunnel symptoms as far back as 1987. (Def. Ex. 6). In fact, her treating physician, Raymond Webster, M.D., found a mild decrease in grip strength, cyanotic coloring in her hand, and positive Tinels sign upon his examination in February of 1987. He suggested that she should not return to any type of manual labor, and advised occupational retraining. Although defendants make a strong point in suggesting that claimant was still suffering from carpal tunnel syndrome even after the surgeries she had in 1984 and 1985, there was no diagnosis of carpal tunnel syndrome after these surgeries. In fact, Dr. Webster opined that there would be an "increased risk" for her to develop carpal tunnel symptoms. (Def. Ex. 6). Additionally, there is no evidence to suggest claimant was treated for carpal tunnel syndrome after 1987. Her visit to Robert Jones, M.D., in December of 1988 focused on other physical complaints. Likewise, although defendants are correct in asserting that there is no medical opinion with respect to causal connection, there is sufficient evidence to suggest that claimant's work related injury is causally connected to her present disability. The next issue to be addressed is whether claimant is entitled to temporary total or healing period benefits, or permanent partial disability benefits. A worker who sustains a personal injury which arises out of and in the course of her employment which causes permanent partial disability is awarded healing period benefits for the time off of work. These benefits begin on the date of the injury, and continue until the employee has returned to work or it is medically indicated that significant improvement from the injury is not anticipated, or until the employee is medically capable of returning to employment substantially similar to the employment in which she was engaged at the time of the injury, whichever occurs first. See, Iowa Code section 85.34(1). In the instant case, claimant has sustained a permanent partial disability, as noted by the impairment ratings given to her by Dr. Bergman. As a result, claimant is awarded healing period benefits from June 21, 1989 through January 2, 1990, as stipulated by the parties. Claimant is also awarded permanent partial disability benefits under Iowa Code section 85.34(s), which allows claimant to recover compensation based on 500 weeks due to a bilateral injury. Claimant's entitlement to permanent partial benefits is governed by Iowa Code section 85.34(s) which provides, in Page 7 pertinent part: Compensation for permanent disabilities and during a healing period for permanent partial disabilities shall be payable to an employee as provided in this section. .... (s.) The loss of both arms, or both hands, or both feet, or both legs, or both eyes, or any two thereof, caused by a single accident, shall equal five hundred weeks and shall be compensated as such, however, if said employee is permanently and totally disabled the employee may be entitled to benefits under subsection 3. Dr. Bergman concluded that claimant's right upper extremity exhibited a seven percent permanent impairment, and the left upper extremity twelve percent permanently impaired. Prior ratings (due to the previous work-related injuries) to the right and left upper extremities were three percent and two percent, respectively. As a result, claimant's disability due to her work at Dahl's resulted in a four percent permanent partial disability of the right upper extremity, and a ten percent impairment to the left upper extremity. By using the conversion tables of the AMA Guide, this results in a body as a whole rating of eight percent. Claimant is entitled to 40 weeks of permanent partial disability benefits. The next issue to be addressed is whether claimant is entitled to medical benefits pursuant to Iowa Code section 85.27. The Code provides, in relevant part: The employer, for all injuries compensable under this chapter...shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies therefor and shall allow reasonably necessary transportation expenses incurred for such services. As it has been found that claimant sustained a compensable injury, she is awarded medical benefits and transportation expenses pursuant to the aforementioned code section. The last issue to be addressed is claimant's workers' compensation rate. Claimant worked for the defendant for ten weeks, and was paid on an hourly basis. Her rate of pay per hour was $5.00, although claimant worked some overtime hours and oddly, was paid at a rate of $2.50 per hour. Claimant has also submitted evidence with respect to tips she earned during her employment with Dahl's. Page 8 There is no dispute that claimant worked ten weeks prior to her injury on June 21, 1989, and her gross income during that time was $1,434.07. This amount includes both the overtime hours (which were paid at one-half of her regular hourly earnings) and, the tips she earned as shown on claimant's Exhibit G and defendants' Exhibit 7. As a result, claimant's gross weekly earnings total $1,434.07. This figure will be divided by the ten weeks of employment which totals $143.41, which represents her average weekly earnings. Claimant's rate includes the tips she received, as the agency considers that the employer is entitled to the tips, but usually allows the employee to receive them directly. Therefore, tips fall under the definition of gross earnings pursuant to Iowa Code section 85.61(12). The parties stipulated that at the time of the injury, claimant was single with no dependant children. According the appropriate rate book, claimant's workers' compensation rate is $93.30.(1) order THEREFORE, it is ordered: That defendants pay to claimant healing period benefits beginning June 21, 1989 through January 2, 1990 at the rate of ninety-three and 30/100 dollars ($93.30) per week. That defendants pay forty (40) weeks of permanent partial disability benefits at the rate of ninety-three and 30/100 dollars ($93.30) beginning January 3, 1990. That defendants shall pay for the costs of the medical benefits incurred, and reasonable transportation costs incurred. That defendants shall receive credit for benefits for previously paid. That defendants shall pay the accrued amounts in a lump sum. That defendants shall pay interest pursuant to Iowa Code section 85.30. That defendants shall pay the costs of this proceeding as govern by rule 343 IAC 4.33. That defendants shall file claim activity reports as required by the agency. Signed and filed this ____ day of August, 1991. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER (1). Guide to Iowa Workers' Compensation Claim Handling (July 1988) Page 9 Copies To: Mr Joseph L Marks Mr Todd E Babich Attorneys at Law Omega Place Ste 9 8515 Douglas Avenue Urbandale Iowa 50322 Mr Brian L Campbell Attorney at Law 801 Grand Avenue Ste 3700 Des Moines Iowa 50309 5-1800 Filed August 28, 1991 PATRICIA J. LANTZ before the iowa industrial commissioner ____________________________________________________________ : CAROLYN HELM (BEEBE), : : Claimant, : : vs. : : File No. 921040 DAHL'S FOOD MART, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1800 Claimant's job as a waitress included some heavy lifting, and aggravated a preexisting deposition to carpal tunnel, bilaterally. Based on Iowa Code section 85.34(s) and the court's interpretation of the same in Simbro, claimant awarded eight percent PPD.