Page 1 before the iowa industrial commissioner ____________________________________________________________ : KENNETH EARL CORNWELL, : : Claimant, : : vs. : : File No. 929175 d/b/a GUS' FAMILY RESTAURANT : (P & T INC.), : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : AMERICAN FAMILY INSURANCE : GROUP, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Kenneth Earl Cornwell, claimant, against P & T, Inc., d/b/a Gus' Family Restaurant, employer (hereinafter referred to as Gus' Restaurant), and American Family Insurance Group, insurance carrier, defendants, for workers' compensation benefits as a result of an alleged injury on September 23, 1989. On October 1, 1991, 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. The oral testimony and written exhibits received during the hearing are set forth in the hearing transcript. According to the prehearing report, the parties have stipulated to the following matters: 1. An employee-employer relationship existed between claimant and Gus' Restaurant at the time of the alleged injury. 2. If defendants are liable for the alleged injury, claimant's entitlement to temporary total disability or healing period benefits extends from September 23, 1989 through November 17, 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. Claimant's gross rate of weekly compensation at the Page 2 time of the alleged injury was $117.25 per week. Claimant's marital status and entitlement to exemptions remains in dis pute with reference to the calculation of claimant's rate of compensation. 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 his employment; II. The extent of claimant's entitlement to disabil ity benefits; and, III. The extent of claimant's entitlement to medical benefits. findings of fact Having heard the testimony and considered all the evi dence, the deputy industrial commissioner finds as follows: Claimant, age 36, worked for Gus' Restaurant as a dish washer for approximately two weeks prior to the injury. It is unclear from the evidence what the customary number of hours for employees were at Gus' Restaurant. According to exhibit 21, claimant worked a total of 70 hours at $3.35 per hour while employed with Gus' Restaurant before and after the injury. The exhibit appears to be inconsistent with the parties' stipulation with reference to temporary total dis ability or healing period entitlement. The stipulation indicated that claimant was off work immediately after the alleged injury. However, there may be more evidence other than this exhibit to support the stipulation and the stipu lation will be honored. Consequently, it is assumed by virtue of the stipulation that claimant left work after the injury. Claimant has not returned to work at Gus' Restaurant although he has been released to return to work within physician imposed work restrictions. On or about September 23, 1989, claimant injured his low back while lifting a heavy load of dishes while working at Gus' Restaurant. This injury arose out of and in the course of employment. Claimant immediately reported the injury to the head waitress and was told to go to the hospi tal for treatment of his complaints of severe low back pain. At the emergency room, claimant was treated by physicians for low back pain and numbness in his legs. The diagnosis was low back pain and spondylolisthesis (hereinafter referred to as "spondy") at the L5, Sl vertebral level of claimant's low back. Physicians recommended that claimant remain off work for three or four days. Claimant remained off work and returned for treatment at the hospital on two more occasions in September and October 1989 with continued complaints of low back pain and right leg pain. Claimant was then referred to an orthopedic surgeon and released to return to work with the restriction of no lifting over 20 pounds. Physicians at that time also recommended that Page 3 claimant use a back support brace or corset. In early October 1989, claimant was treated by Duane Nelson, M.D., an orthopedic surgeon, who diagnosed symp tomatic Grade II spondy. Dr. Nelson treated claimant over the next few weeks with a back brace and instructions to avoid aggravating activity. In a report dated January 1990, Dr. Nelson opined that claimant's spondy was a permanent condition that causes recurrent back pain and that this con dition consists of an eight percent body as a whole perma nent partial impairment according to the AMA rating guide lines. Dr. Nelson recommended surgery to stabilize claimant's low back if the back brace was not successful. Claimant has to date rejected this surgical option to treat his spondy condition. The injury of September 23, 1989, was not the first time claimant has experienced low back pain radiating into his legs. It was not the first time claimant had been diag nosed as suffering from spondy. It also was not the first time claimant had been advised to wear a back brace and undergo surgery. At the emergency room on September 23, 1989, claimant told his physicians that he had experienced chronic low back pain in the past and received treatment between 1982 and 1985. He also stated to these physicians that he had been advised in the past to have surgery to cor rect a defect in his back but had rejected this option and consequently was experiencing occasional low back pain. Claimant's history of back and leg pain extends back to either 1977 or 1978 (the record is not precisely clear on which date). At that time claimant testified that he suf fered a work injury to his low back while performing heavy lifting loading trucks in the State of California. Treatment at that time involved physical therapy including ultrasound, heat packs and massages. Claimant was off work for a period of time following this injury. Claimant admit ted in his deposition testimony that this injury motivated him to change his employment to a cook job because he felt that work as a cook was lighter duty. It should be noted that claimant was involved in a motorcycle accident in 1979 in which he received a skull fracture and a compression fracture of the cervical spine. However, the medical records failed to show that he suffered any low back injury or pain after this incident. Claimant was first diagnosed as suffering from develop mental abnormalities at the L5, Sl level of his lower spine in January 1985, by Richard D. Walter, M.D. At this time claimant suffered back pain while working in a job in the State of Pennsylvania. Dr. Walter described the condition as anthrolithesis and spina bifida occulta. In his deposi tion testimony, claimant explained that this was a different term used by physicians in Pennsylvania for what he under stood to be the spondy condition. Claimant was next treated in the State of Colorado for low back pain and radiating pain in both legs in January 1988 by John L. Miller, M.D. At this time claimant sought Page 4 disability benefits from the State of Colorado as a result of his back problems. According to Dr. Miller's records, the onset of low back pain and leg pain occurred without a specific injury, only after just heavy exertion. The fact that this pain occurred again in the winter time is consis tent with claimant's testimony at hearing and in his deposi tion that his low back condition worsens in wet damp cold weather and improves in sunny warm weather such as in the summertime. Dr. Miller also diagnosed spina bifida occulta at L5, Sl with low back pain. He noted that this pain had lasted for two years and had now begun to radiate into his legs. Dr. Miller examined claimant again in September 1988. According to Dr. Miller's last report, claimant was suffer ing from a permanent condition due to his chronic low back and leg pain. Dr. Miller, at that time, imposed a work activity restriction of no lifting over 20 pounds and no frequent lifting over 10 pounds. He also recommended that claimant wear a back brace but, according to claimant's tes timony, the use of this back brace or corset did not help his problems at that time. In October 1988, claimant suffered two significant falls down a stairway that were only two weeks apart. The last fall resulted in an injury to claimant's shoulder. Claimant testified that these falls were caused when his "legs locked up." According to exhibit 7, a medical record of the treatment claimant received after these incidents, claimant suffered a shoulder joint separation in the last fall down the stairway. Claimant testified that he continues to have permanent back and right leg pain since the September 1989 work injury. Although he has been released to return to work within his restrictions, claimant has never returned to work at Gus' Restaurant. Why claimant did not do so is unclear in the record. Claimant had testified that he usually attempted to stay within Dr. Miller's work restrictions when he was working at Gus' Restaurant prior to the work injury. Claimant stated that he was usually successful in staying within his restrictions but on the day of the injury he was in a hurry and had loaded down a tray with too many dishes. Claimant has had three jobs since leaving Gus' Restaurant. He worked for a few weeks during the summer following the work injury as a carpenter. His employer in this carpenter job testified at hearing that claimant was required to lift heavy objects from 50 to 75 pounds while working for him and that claimant exhibited no back problems in performing this work. Claimant worked briefly as a book store manager and is now working delivering laundry. Claimant testified at hearing that the laundry job requires very little heavy lifting but does require pushing carts of laundry and loading and unloading a laundry truck. Claimant is paid $3.85 per hour in his current job and works approximately 20 hours a week. Claimant states that his back pain is now worse than it was in September 1989. Claimant has failed to show that the work injury of September 23, 1989, was a cause of permanent partial impair ment or a significant contributing factor in the imposition Page 5 of his current work restrictions limiting lifting and the amount of standing, sitting and walking. Claimant states that although the work restrictions were imposed long before he worked at Gus' Restaurant, he recovered from his back problems and was able to perform heavy lifting in various landscaping jobs prior to working at Gus' Restaurant. He also, for a brief time, was employed as an appliance repair man in a job requiring heavy lifting. Immediately prior to the employment at Gus' Restaurant, claimant worked for the owner of the restaurant for a brief time in yard cleanup. Claimant stated that he was required to perform heavy lift ing and repetitive lifting and stooping while doing this yard work. However, the evidence indicates that claimant had been working in excess of his restrictions since working at Gus' Restaurant and his release to return to work by Dr. Nelson. It is clear that claimant has a practice of exceed ing his limitations, especially in the summertime when his back feels good. At times when he does exceed his limita tions, these incidents lead to the onset of back pain requiring medical treatment and absence from work. The fact remains that claimant's underlying condition continues to be spondy and/or spina bifida occulta. This condition remains essentially the same since it was first diagnosed in 1985. Claimant relies largely upon the views of a neurosur geon, Horst Blume, M.D., who examined claimant at the request of claimant's lawyer in 1991. Dr. Blume provided a 15 percent permanent partial impairment rating and causally related this impairment to his "injuries." Whether this includes the injury in September 1989, is unclear from the doctor's report. However, Dr. Blume's causal connection opinion is deficient on its face. At no time does Dr. Blume mention any of claimant's past back problems and it is unknown whether claimant ever told Dr. Blume of these prior problems. Furthermore, Dr. Blume diagnoses the injury to be an aggravation of a preexisting condition but does not explain how he arrived at the conclusion that this aggrava tion led to permanency. Defendants rely upon the views of John J. Dougherty, M.D., an orthopedic surgeon who, after reviewing claimant's medical records, concluded that the spondy is not work related and congenital. Dr. Dougherty, however, never actually examined claimant. There appears to be a consensus of medical opinion in the record that the spondy or the spina bifida occulta is the only permanent condition suffered by claimant and that this condition is congenital and unrelated to the injury of September 23, 1989. Claimant has been suffering recurrent episodes of low back and leg pain caused by aggravations of this condition since 1985. Dr. James Walston, M.D., who examined claimant in September 1990, for the State Department of Vocational Rehabilitation, refers to the spondy as a congenital problem. Dr. Walters, referred to above, also refers to spondy as a developmental condition. Dr. Dougherty likewise as mentioned above considers spondy as congenital. Dr. Blume refers to the injury as an aggra vation of a preexisting spondy condition. Dr. Blume also refers to a suspected ruptured disc but according to Dr. Page 6 Blume this can only be confirmed by further testing. Such testing has not been done. Consequently, no findings could be made as to Dr. Blume's suspicions. Therefore, claimant certainly has a serious and perma nent back problem but this condition preexisted the injury at Gus' Restaurant. The injury at the restaurant only tem porarily aggravated the condition and claimant soon returned to the same condition he was in prior to the injury. There is a dispute with reference to claimant's rate of compensation. With reference to claimant's marital status, the evidence indicates that claimant was divorced from both of his prior spouses prior to the injury. At the time of the injury he was single. Claimant has six children from two prior marriages. Claimant appears to have some obliga tion under existing divorce decrees to support these chil dren but has never done so. There is no evidence to suggest that claimant has ever claimed these children as exemptions on his tax returns. Claimant did not express regret in failing to support his children and did not express any interest in starting such support in the future. Claimant clearly has completely abandoned his parental obligations of support long ago with reference to these children. Page 7 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. There is little question in this case that the work injury occurred. The fighting issue was the causal connec tion of this injury to the underlying spondy or spina bifida occulta condition which is the only condition found to be permanent in this case. It was found that the injury was not so causally connected and that the injury only caused a temporary aggravation of a preexisting condition. II. As claimant only suffers from a temporary aggra vation, he is only entitled to temporary total disability. The parties have stipulated to the extent of this entitle ment in the prehearing report. With reference to the dis pute concerning claimant's rate of compensation, the gross weekly rate was stipulated. It was found that claimant was single at the time of injury. It was also found that claimant has six children from two prior marriages but he has never supported any of them. It had been specifically found that he had abandon his support obligation long ago. It has been held by this agency that whether or not a claimant is current in his child support payments, a legal obligation based upon a court decree to support the children is sufficient to qualify for exemptions under the workers' compensation law even if the court decree conditions enti tlement to a tax exemption upon being current in payments. Biggs v. Donner, II Iowa Industrial Commissioner Report 34 (Iowa 1982). However, in the Biggs case, there was a clear legal obligation and no actual abandonment of the children by the claimant. Claimant was simply not current in his payments. The case at bar is quite different. The court decrees are vague and claimant has never supported his chil dren. It was quite clear at hearing that he had no inten tion of doing so in the future. Allowing claimant to claim an exemption for claimant's rate of compensation would be illogical and wholly inconsistent with the statutory pur poses of providing for exemptions in calculating rate of compensation. Claimant's rate of compensation is therefore $80.40 per week. This was arrived at using the commis sioner's rate booklet for an injury in September 1989, given a gross weekly rate of $117.25 with single status and enti tlement to one exemption. Page 8 According to the prehearing report, claimant has been paid 40 weeks of compensation at the rate of $80.40 per week. Claimant therefore has been paid in excess of his entitlement to weekly benefits. Defendants seek reimburse ment for this excess amount of payment. It has been held that this agency has no statutory authority or jurisdiction to reimburse defendants for voluntary payment of weekly ben efits. Comingore v. Shenandoah Art. Ice, Etc., Co., 208 Iowa 430, 437, 226 N.W. 124 (1929). III. Claimant seeks payment of the evaluation he received from Dr. Blume under Iowa Code section 85.39 and/or 85.27. Iowa Code section 85.39 allows for payment by defen dant of a second opinion on the extent of permanent disabil ity. However, to be entitled to benefits under that code section, the work injury must have caused some degree of permanent disability. Claimant failed to establish this causal connection in this case. Therefore, claimant is not entitled to an independent examination under Iowa Code sec tion 85.39. Claimant is also entitled to payment of reasonable med ical expenses for an injury. However, Dr. Blume's examina tion did not appear to be treatment but only an evaluation of the extent of disability for the purposes of rendering an opinion on causal connection. Therefore, claimant is not entitled to payment of Dr. Blume's bill under either Iowa Code section 85.27 or 85.39. order 1. Claimant takes nothing from this proceeding and claimant's petition is dismissed with prejudice. 2. Claimant shall pay the costs of this action pur suant to rule 343 IAC 4.33. Signed and filed this ____ day of November, 1991. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Page 9 Copies To: Mr. Dennis J. Mahr Attorney at Law 318 Insurance Centre 507 7th St Sioux City IA 51101 Mr. Jeffrey A. Sar Attorney at Law 750 Pierce St P O Box 717 Sioux City IA 51101 5-1803; 3003 Filed November 12, 1991 LARRY P. WALSHIRE before the iowa industrial commissioner ____________________________________________________________ : KENNETH EARL CORNWELL, : : Claimant, : : vs. : : File No. 929175 d/b/a GUS' FAMILY RESTAURANT : (P & T INC.), : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : AMERICAN FAMILY INSURANCE : GROUP, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803 Claim for permanent benefits denied for failure to show causal connection. 3003 Child support obligation and entitlement to exemptions. Prior agency decision Biggs v. Donner, which held that claimants are entitled to exemptions for children from former marriages even though claimant is not current in child support payments under court decrees was held inapplicable to the facts of this case. Claimant had six children from two prior marriages. He never supported any of the children. Held that a finding of complete abandonment of the support obligation regardless of a court support order and being simply behind in payments is distinguishable to prevent application of the Biggs holding. It was stated that it would be totally illogical and contrary to the expressed intent of our statutes to allow claimant in this case to claim exemptions for his children. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ MICHAEL FLIER, Claimant, vs. File No. 929228 ART FLIER, A R B I T R A T I O N Employer, D E C I S I O N and IMT INSURANCE COMPANY, Insurance Carrier, Defendants. ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Michael Flier, claimant, against Art Flier, employer, and IMT Insurance Co., insurance carrier, defendants, for workers' compensation benefits as a result of an alleged injury on August 27, 1989. On May 18, 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 August 27, 1989, claimant received an injury arising out of and in the course of employment with Art Flier. 2. Claimant is entitled to temporary total or healing period benefits and to permanent disability benefits, the extent of which is in dispute. 3. At the time of injury, claimant was married and entitled to three exemptions. 4. Medical benefits are not in dispute. Page 2 ISSUES The only issues submitted by the parties for determination in this proceeding are the extent of entitlement to disability benefits and weekly rate of compensation. FINDINGS OF FACT Having heard the testimony and considered all of the evidence, the deputy industrial commissioner finds as follows: A credibility finding is necessary to this decision as defendants placed claimant's credibility at issue during cross- examination as to the nature and extent of the injury and disability. From his/her demeanor while testifying, claimant is found credible. Claimant is a 27-year-old farmer from Rock Rapids, Iowa. At the time of the injury herein, he was employed as a farmer with his father. This injury occurred when his leg became entangled in a rope, buckling his left knee, while working with cattle on the Flier farm. Claimant has had considerable problems with this knee ever since. Claimant received immediate treatment for the knee injury from a hospital emergency room. Claimant's primary orthopedic surgeon since the injury has been F. G. Alvine, M.D.. His treatment has included, so far, three surgeries to install a metal screw support, reconstruct tendons and then remove the support screw. According to Dr. Alvine, it is possible that claimant will eventually require a full knee replacement at some point in time over the next 20 years. He recommended that any insurance settlement take this factor into account. Active treatment of the left knee by Dr. Alvine extended form the date of injury until he gave a permanent impairment rating on April 10, 1992. Claimant was not released to return to work until June 1992. A one time evaluator, Peter Wirtz, M.D., another orthopedic surgeon retained by defendants rated claimant's impairment in January 1991, but this was before claimant's last surgery. It is found that claimant did not reach maximum healing until the rating by his primary physician on April 10, 1992. According to exhibit 10 and claimant's testimony, claimant partially returned to work from May 1, 1990 through November 20, 1990, but the particulars as to this employment and rate of pay were not available in the record. Claimant was off work at all other times until the maximum healing date. With reference to permanent disability, Dr. Alvine Page 3 opined that claimant is suffering from a 16 percent permanent disability to the leg as a result of the knee injury based upon some sort of Minnesota rating statute, the particulars of which is not available in the record. Upon further injury from attorneys in this case, Dr. Alvine deferred to another orthopedic surgeon, John J. Dougherty for a rating. Dr. Dougherty opined that claimant suffers from a 30 percent permanent partial impairment from the injury. Based upon the views of Dr. Dougherty, it is found that the injury of August 27, 1989, was a cause of a 30 percent permanent partial impairment. Claimant also complains of back pain which he attributes to extra stress on his back due to his knee problems. It is found that such back pain is causally connected to the knee injury herein. However, Dr. Alvine opines that this is not a significant injury and no physician has opined that the back condition is permanent. Therefore, it could not be found that the injury extends beyond the leg and into the body as a whole. The injury is limited to the leg. Claimant credibility testified that his gross income on the date of injury included not only his salary of between $1100-1200 per month but also included $125 per month for rent that was paid by his employer to a third person and to meat and food products which he valued at $80-90 per month. Based upon this uncontroverted testimony, it is found that claimant's gross monthly income was $1360 per month consisting of $1150 in salary, $125 in rent, $85 in food. Converting this monthly income into a weekly gross by multiplying by 12 and dividing by 52, results in a gross weekly wage at the time of injury of $313.85. CONCLUSIONS OF LAW The extent of claimant's entitlement to permanent disability benefits is determined as follows: A permanent partial disability is either scheduled or unscheduled. A scheduled disability is evaluated by the functional method. The industrial method is used to evaluate an unscheduled disability. Martin v. Skelly Oil Co., 252 Iowa 128, 133 106 N.W. 2d 95, 98 (1960); Graves v. Eagle Iron Works, 331 N.W. 2d 116 (Iowa 1983); Simbro v Delong's Sportswear 332 N.W. 2d 886, 997 (Iowa 1983). When the result of an injury is loss to a scheduled member, the compensation payable is limited to that set forth in the appropriate subdivision of Code section 85.34(2). Barton v. Nevada Poultry Company, 253 Iowa 285, 110 N.W. 2d 660 (1961). "Loss of use" of a member is equivalent to "loss" of the member. Moses v. National Union C.M. Co., 184 N.W. 746 (1922). Pursuant to Code section 85.34(2)(u), the industrial commissioner may equitably prorate compensation payable in those cases where the loss is something less than that provided for in the Page 4 schedule. Blizek v. Eagle Signal Company, 164 N.W. 2d 84 (Iowa 1969). In the case sub judice, it was found that claimant's injury was limited to a scheduled member, the leg. It was further found that he suffered a 30 percent permanent loss of use of his leg. Based upon such a finding, claimant is entitled to 66 weeks of permanent partial disability benefits under Iowa Code section 85.34(2)(o) which is 30 percent of 220 weeks, the maximum allowable weeks of disability for an injury to the leg in that subsection. Claimant has been paid 66 weeks for permanency but at a different rate that was found in this case as will be discussed below. The fact that claimant may need a knee replacement in the future was not included in assessing the extent of liability. Claimant's entitlement to permanent partial disability also entitles him 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/she 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 reached maximum healing on April 10, 1992, but partially worked for a period of time before that. Healing period and temporary partial disability benefits will be awarded accordingly. Specific award, with reference to partial disability benefits, cannot be made due to a lack of specifics as to the partial employment. As it was found that claimant was earning the sum of $313.85 per week at the time of injury, given the stipulations as to martial status and entitlement to exemptions, claimant's weekly rate of compensation for an injury during FY 90 is $208.01. Therefore, as claimant has been paid only a weekly rate to date of $176.31, claimant is entitled to additional money even for permanent disability. ORDER 1. Defendants shall pay to claimant sixty-six (66) weeks of permanent partial disability benefits at a rate of two hundred eight and 01/100 dollars ( $208.01) per week from April 11, 1992. 2. Defendants shall pay to claimant healing period benefits from August 27, 1989 through April 10, 1992, at the rate of two hundred eight and 01/100 dollars ($208.01) per week except for the period from May 1, 1990 through November 10,1990, for which claimant will be paid temporary partial disability at a rate to be consistent with Iowa Code section 85.33. Page 5 3. Defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for all benefits previously paid. 4. Defendants shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 5. Defendants shall pay the costs of this action pursuant to D.I.S. Rule 343 IAC 4.33, including reimbursement to claimant for any filing fee paid in this matter. 6. Defendants shall file activity reports on the payment of this award as requested by this agency pursuant to D.I.S. Rule 343 IAC 3.1. Signed and filed this ____ day of July, 1993. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. E. W. Wilcke Attorney at Law 826 1/2 Lake Street P.O. Box 455 Spirit Lake, IA 51360 Mr. Timothy A. Clausen Attorney at Law Jackson Plaza, Suite 300 Fourth and Jackson Streets P.O. Box 327 Sioux City, IA 51102 5-1803 Filed July 23, 1993 Larry P. Walshire BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ MICHAEL FLIER, Claimant, vs. File No. 929228 ART FLIER, A R B I T R A T I O N Employer, D E C I S I O N and IMT INSURANCE COMPANY, Insurance Carrier, Defendants. ___________________________________________________________ 5-1803 Non-precedential, extent of disability case. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ________________________________________________________________ RONALD C LATTA, Claimant, vs. File No. 929256 & 984828 LATTA AND SONS, INC., A R B I T R A T I O N Employer, D E C I S I O N and ALLIED GROUP, Insurance Carrier, and SECOND INJURY FUND OF IOWA, Defendants. ________________________________________________________________ STATEMENT OF THE CASE This decision concerns two proceedings in arbitration brought by Ronald C. Latta against his former employer Latta and Sons, Inc. based upon injuries that occurred on September 19, 1989 and April 18, 1991. The rate of compensation is disputed for the 1989 injury. Both injuries contain an issue of whether the disability that resulted is a scheduled disability or one that is unscheduled and should be compensated industrially. Claimant seeks to recover expenses incurred in obtaining an independent medical examination and alternatively asserts that some portion of the expenses constitute treatment under section 85.27 if they are not covered by section 85.39. The employer seeks credit under section 85.38(2) for payments paid to the claimant at the same time as weekly benefits were being paid by the insurance carrier. Claimant also seeks to recover disability compensation from the Second Injury Fund of Iowa. The case was heard at Cedar Rapids, Iowa on February 6, 1995. The record consists of testimony from Chris Simon, Patrick Latta and Ronald Claude Latta, the claimant. The record also contains claimant's exhibits 2 through 6, 8 through 10, and 14 through 19 and defendants' exhibit A. FINDINGS OF FACTS Latta and Sons, Inc. was a small family owned and family operated business that engaged primarily in the function of drilling water wells. The business was started in approximately 1950 by claimant's father, Everett Latta. Everett, claimant and claimant's brother Don had equal shares in the business until 1967 when Everett's health made him unable to participate. Thereafter claimant's mother, Ermabelle Latta, became the owner of one-third of the business. Ermabelle had been active in the day-to-day operation of the business until 1989 when she was hospitalized for health problems. After recuperating she remained active in the business until approximately 1993. (Exhibit 18, pages 4, 5, 9, 10) Ermabelle managed the office while claimant and his brother Don operated drilling crews. (Ex. 18, pp. 6, 10) According to Ermabelle, the business had run smoothly until claimant's second injury and Don Latta was given control of the business. (Ex. 18, p. 8) She stated that the business became unprofitable but that if claimant had not been injured that it likely would have continued. (Ex. 18, pp. 7, 8, 15) As a result of the problems with the business it was sold. The evidence from Chris Simon and Ermabelle Latta confirms that prior to the 1989 injury claimant was a robust individual fully capable of performing the very vigorous physical work associated with drilling wells. After the first injury he never regained his prior level of activity. He was able to supervise and operate equipment such as a trencher and backhoe. The first injury produced loss of strength in his right arm and some loss of range of motion in his right shoulder. (Ex. 9, pp. 4, 5; Ex. 5, p. 5; Ex. 6) The initial injury reports for the 1989 injury showed fractured seventh and eighth ribs with the seventh being a displaced fracture. (Ex. 2, p. 1) The injury was followed by continuing complaints of pain in the upper back, rib cage area and chest. (Ex. 3) Excessive abduction of the scapula was observed with forward shoulder posture. (Ex. 3, p. 1) The physical therapist reported that shoulder/scapula/thoracic injuries that were treated in 1989 are difficult to resolve completely and will often produce gradual weakness in the shoulder. (Ex. 4) Andrea J. McFadden, PA-C, has reported that following the 1989 injury claimant had residual musculoskeletal torso pain or post-injury neuralgia, either of which could be permanent. More than a year after the injury claimant continued to have persistent right-sided thoracic pain and inability to use a pipe wrench, a common tool in the well drilling business. (Ex. 6) Similar notes appear in the records of Charlotte H. Koenig, M.D., claimant's family physician. (Ex. 5, pp. 5, 6) It is found that the 1989 injury affected claimant's rib cage and right shoulder which in turn limited his ability to make full use of his right arm. William A. Roberts, M.D., the orthopedic surgeon who treated claimant's 1991 fractured left arm, found claimant to have a 3 percent impairment due to loss of right shoulder abduction, an amount which he considered to be equal to 6 percent of the right upper extremity. (Ex. 9, pp. 4, 5) Dr. Roberts made no attempt to provide any rating of impairment for residuals from the rib fractures. (Ex. 9, p. 15) Dr. Roberts did not, however, causally connect the right upper extremity impairment to the September 1989 injury. (Ex. 9, p. 10) He did not suggest any other possible origin for that impairment. Andrea McFadden, PA-C, felt that the residual impairment on claimant's right side had resulted from the 1989 injury. (Ex. 6) Richard F. Neiman, M.D., evaluated claimant. He found claimant to have an 8 percent impairment of the right upper extremity due to the shoulder and attributed that impairment to the 1989 injury. (Ex. 10, p. 3) He equated the impairment to 5 percent of the whole person or of the body as a whole. It is found that the disability resulting from the 1989 injury is not limited to claimant's right arm. It extends into his shoulder and rib cage. The arm itself was not known to have been injured in that accident. The claimant has a loss of use of the right arm in the range of 6 percent as evaluated by Dr. Roberts but that loss of use is found to have its origin in claimant's right shoulder, scapula area and rib cage. The precise physiological cause for the loss of use of the right arm has not been identified but it is clear that the seriousness of the 1989 injury, the crushing nature of the injury could readily have produced abnormalities which are not easily identified. Following the 1989 injury claimant was able to return to work, albeit in a somewhat different capacity. He was no longer able to perform heavy physical labor. He was still able to supervise and operate equipment such as trenchers and backhoes. His inability to perform as he had prior to the injury required that another person be assigned to the drilling crew that he supervised. Instead of the crew typically consisting of two people as it had before his injury, it was now necessary for the crew to consist of three people in order to accomplish the same tasks. It is expected that the need for a third person would adversely impact the profitability of the business. Claimant's only relevant work experience is in the well drilling field. The work was described at hearing as being quite physically demanding. The loss of physical capability is a very large loss for a person employed in the well drilling business. Despite his limitations, following the 1989 injury, claimant was able to resume working. His earnings actually increased in 1990. (Ex. A, p. 55; Ex. 15a, 15b, 15c) On April 18, 1991 claimant was operating a tractor when it flipped over backwards. He suffered a severe fracture of his left arm as well as other lesser injuries. Despite extensive efforts at physical therapy claimant has a very substantial loss of use of the left arm. Dr. Roberts has rated it at 31 percent. (Ex. 9, p. 10) Dr. Neiman has rated the loss at 48 percent. (Ex. 10, p. 3) According to Dr. Neiman claimant has a frozen shoulder condition related to the 1989 injury and it is permanent. (Ex. 19, pp. 11-13, 17, 18, 59, 60) He has a 5 percent impairment of the whole person due to that injury. (Ex. 19, pp. 13-16) Dr. Neiman acknowledged that claimant's description of the severity of his injuries in 1989 have been exaggerated. (Ex. 19, p. 37) Dr. Neiman's impairment rating for the left upper extremity was 48 percent. (Ex. 19, pp. 26-29) After recovering from the 1991 injury claimant resumed work in the company business. He was still able to supervise much as he had following the 1989 injury. He had additional limitations, however, due to the condition of his left arm. This further limited his capabilities in the well drilling business. In early 1994 Latta and Sons, Inc. was sold. (Ex. A, pp. 39-47) Claimant has not resumed employment or actively sought employment since the sale. He applied for and received social security disability benefits. He is now receiving retirement benefits from social security. (Ex. A, pp. 59-67) He was 65 years of age at the time of hearing and has a tenth grade education. Claimant's earnings are found in the record at exhibit 14, page 3. The record of the case contains a little that describes the pay practices of the employer. It is well established that claimant was injured on September 19, 1989 and did not work for several weeks thereafter. The pay records, however, found at exhibit 14, page 3, show him to have worked overtime for the period ending September 22, 1989. The period ending September 29, 1989 shows pay for a 40-hour week. A 1989 calendar shows September 19 to have been a Tuesday and September 22 and 29 to be Fridays. It is found that the date when paychecks were issued by the company reflects the earnings from the week before the week in which the paycheck was actually issued. In other words, the pay shown for the period ending September 22, 1989 was based upon earnings for the work week ending September 15, 1989. It would be virtually impossible for claimant to have worked 10.5 hours of overtime in addition to his regular 40 hours during the week when he was injured on Tuesday, September 19. The 13 weeks to be used in computing the weekly rate of compensation therefore appear to be all the weeks shown on exhibit 14, page 3, except the week of September 29, 1989. It also includes the week of June 30 shown on exhibit 14, page 2. It should be noted that overtime was paid at time and one-half for the week of June 30, 1989. The correct amount to be used should therefore be $440. Claimant's earnings during the last completed 13 consecutive calendar weeks immediately preceding the injury are therefore $7,120.10. The average weekly earnings are $547.70. Claimant was paid amounts by the employer while he was off work and receiving workers' compensation benefits. The record of this case does not show the existence of any group plan. Since the record does not show the existence of any group plan there is nothing to indicate that the payments which were paid to claimant would not have been payable when there was an injury that arose out of and in the course of employment. The overwhelming majority of the payments appear to be in the nature of a supplementation of the workers' compensation benefits. The form 2A in the file shows the first payment to have been made on October 3, 1989 for the 1989 injury and the last to have been paid on January 12, 1990. It would not be uncommon, when dealing with a family owned and operated business, for the business to have paid the claimant during the time before compensation benefits were started and to have commenced paying him again as soon as he resumed working. There is nothing in the record to indicate that the persons issuing the checks to claimant intended that they be paid in lieu of workers' compensation. There is nothing to indicate that the intent of the employer business was anything other than to supplement the workers' compensation benefits. The pay claimant received from the business on September 29, 1989 was actually pay for the work that he had performed during the week ending September 22, 1989. The delay of one week between the time when work was actually performed and the week in which the paycheck was issued appears to have continued to be in effect at the time of the 1991 injury. The fact that claimant's brother continued to be paid wages while he was off work for a nonoccupational condition is further evidence that the family business intended to provide for the family members in times of hardship regardless of the cause of the hardship. It is not evidence that there was a formal group plan of some type. With regard to the charges from Dr. Neiman for the independent medical examination the record fails to show the necessity of conducting additional x-rays or EMG tests. The record shows that such tests had previously been performed by other medical care providers. In the absence of some justification for repeating those tests, it cannot be found that conducting them was reasonable. There is evidence in the record that claimant has had problems with divorce, alcohol abuse and depression. The record does not show that those conditions had any impact upon the nature or extent of his permanent disability from the 1989 and 1991 injuries. The record also reflects that claimant also suffers from diabetes. The evidence is conflicting between Dr. Neiman and Dr. Peterson with regard to whether or not the diabetes has resulted in any neuropathy affecting claimant's upper extremities. (Ex. 8, pp. 7, 8; Ex. 10, p. 3) The record does not show that claimant has any other complications from his diabetes. It seems to be reasonably well controlled. It is certainly possible that diabetic neuropathy contributes to his loss of use of his arms, but the record fails to show that with any certainty or probability. The record of the case shows that claimant engages in social country dancing. The record fails to give any indication of how the dancing has any impact upon his degree of disability or earning capacity. conclusions of law The party who would suffer loss if an issue were not established has the burden of proving that issue by a preponderance of the evidence. Iowa R. of App. P. 14(f). The claimant has the burden of proving by a preponderance of the evidence that the alleged injury actually occurred and that it arose out of and in the course of employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of" refer to the cause or source of the injury. The words "in the course of" refer to the time, place and circumstances of the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 1971). The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Industrial disability or loss of earning capacity is a concept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment of physical capacity creates an inference of lessened earning capacity. The basic element to be determined, however, is the reduction in value of the general earning capacity of the person, rather than the loss of wages or earnings in a specific occupation. Post-injury earnings create a presumption of earning capacity. The earnings are not synonymous with earning capacity and the presumption may be rebutted by evidence showing the earnings to be an unreliable indicator. Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218 (1979); 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. Claimant is an older worker and is in the age range where people in our society commonly retire. The workers' compensation system is designed and intended to replace earnings that are lost due to injury. It serves no legitimate purpose to award benefits for wage loss for times after when wages would have ceased due to retirement. It is not intended to be a windfall in the nature of a supplemental retirement income benefits. Cruz v Chevrolet Grey Iron Div. of Gen. Motors, 247 N.W.2d 764, 775 (Mich 1976); Brecke v. Turner-Busch, Inc., 34th Biennial Report of the Industrial Commissioner 34, (App. 1979); Hainey v. Protein Blenders, Inc., file no. 708955 (App. 1985). Apportionment of disability between a preexisting condition and an injury is proper only when some ascertainable portion of the ultimate industrial disability existed independently before an employment-related aggravation of disability occurred. Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991); Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984). Hence, where employment is maintained and earnings are not reduced on account of a preexisting condition, that condition may not have produced any apportionable loss of earning capacity. Bearce, 465 N.W.2d at 531. Likewise, to be apportionable, the preexisting disability must not be the result of another injury with the same employer for which compensation was not paid. Tussing v. George A. Hormel & Co., 461 N.W.2d 450 (Iowa 1990). The burden of showing that disability is attributable to a preexisting condition is placed upon the defendant. Where evidence to establish a proper apportionment is absent, the defendant is responsible for the entire disability that exists. Bearce, 465 N.W.2d at 536-37; Sumner, 353 N.W.2d at 410-11. 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 caused by the second injury that exceeds the scheduled compensabile values of the disabilities 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 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). Permanent partial disabilities are classified as either scheduled or unscheduled. Compensation for scheduled permanent partial disability is determined under Iowa Code section 85.34(2)(a) - (t) according to the functional loss of use of the member without considering the impact of the injury upon the individual's earnings or earning capacity. Simbro v. Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v. Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960); Moses v. Nat'l Union Coal Mining Co., 194 Iowa 819, 184 N.W. 746 (1921). An injury to a scheduled member may, because of after effects or compensatory change, result in permanent impairment of the body as a whole. Such impairment may in turn be the basis for a rating of industrial disability. It is the anatomical situs of the permanent injury or impairment which determines whether the schedules in section 85.34(2)(a) - (t) are applied. Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986); Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Dailey v. Pooley Lbr. Co., 233 Iowa 758, 10 N.W.2d 569 (1943). Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). When disability is found in the shoulder, a body as a whole situation may exist. Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 (1949). In Nazarenus v. Oscar Mayer & Co., II Iowa Industrial Commissioner Report 281 (App. 1982), a torn rotator cuff was found to cause disability to the body as a whole. Section 85.39 permits an employee to be reimbursed for subsequent examination by a physician of the employee's choice where an employer-retained physician has previously evaluated "permanent disability" and the employee believes that the initial evaluation is too low. The section also permits reimbursement for reasonably necessary transportation expenses incurred and for any wage loss occasioned by the employee's attending the subsequent examination. Defendants are responsible only for reasonable fees associated with claimant's independent medical examination. Claimant has the burden of proving the reasonableness of the expenses incurred for the examination. See Schintgen v. Economy Fire & Casualty Co., File No. 855298 (App. April 26, 1991). Defendants' liability for claimant's injury must be established before defendants are obligated to reimburse claimant for independent medical examination. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). It is concluded that the disability from the 1989 injury is not limited to a scheduled member. The physiological change and abnormality that has been identified has not been confined to claimant's right arm. The disability appears to be in the shoulder girdle, a part of the body which is not a scheduled member. Accordingly, the disability resulting from the 1989 injury is to be compensated industrially based upon the loss of earning capacity that it produced. Claimant was able to resume accommodated work with his original employer following his recovery from the 1989 injury. That is true in large part because he was, from a practical standpoint, his own employer. It is unlikely that he, as a one-third owner of the business, would have refused to allow himself to return to work and earn a living. He was still able to make a contribution to the business but his capabilities were limited. It became necessary for the business to assign another person to perform those functions which he could no longer perform. The fact that claimant's income appears to have increased from his previous full year of income is not highly probative under the circumstances of this case since the employment setting is not competitive employment in the broad labor market. Claimant liked the well drilling business and was knowledgeable about the well drilling business. If the family business had continued to be profitable and had not been sold he would likely still be functioning in that business. That did not occur however. As indicated by Ermabelle Latta, if claimant had not been injured the business likely would have continued to function smoothly and likely would not have been sold. The fact that the business was disrupted by claimant's injury is not a direct factor affecting his degree of disability. One might expect that the need to have others perform functions which claimant had previously performed adversely affected the profitability of the business. Nevertheless, just as the peculiar owner-employee relationship in this case makes comparison of preinjury and postinjury earnings of little materiality to the issue of loss of earning capacity, the fact of closing the business likewise has little materiality to the issue of loss of earning capacity. Earning capacity is based upon the broad labor market, not just a single employer. The 1989 injury caused claimant to no longer to be able to perform the full range of physical work associated with well drilling. He still had knowledge and other valuable skills. The number of positions in the well drilling business is quite limited. Simply stated, there are not many opportunities for strictly supervisory employment in the well drilling industry. When claimant's education, work experience and all other material factors are considered, it is determined that Ronald C. Latta sustained a 40 percent loss of earning capacity and permanent partial disability as a result of the September 19, 1989 injury. This entitles him to receive 200 weeks of compensation for permanent partial disability payable commencing January 8, 1990. Fifteen weeks of that entitlement has been previously paid. The April 18, 1991 injury produced disability that is limited to claimant's left arm. The extent of that disability is found to be 40 percent. That entitles him to recover 100 weeks of compensation for permanent partial disability payable commencing December 12, 1991. Seventy-seven point five weeks of benefits have previously been paid. Since claimant lost a portion of the use of his right arm in the 1989 injury and then lost a portion of the use his left arm in the 1991 injury, the case meets the criteria for a claim against the Second Injury Fund. In this case the first injury essentially limited the claimant to supervisory and light work. His earning capacity was most greatly impacted by the 1989 injury. Since the second injury is a scheduled injury the liability of the employer is no different than what it would be if there had been no preexisting disability. The 1989 injury was not limited to a scheduled member but the compensable value of that injury is a 6 percent loss of the arm or 15 weeks. The extent of industrial disability that can be attributed to the 1991 injury is determined to be 20 percent, an amount equivalent to the employer's liability for the scheduled disability of the left arm. It is therefore concluded that the claimant is not entitled to receive any recovery from the Second Injury Fund of Iowa. The rate of compensation for the 1989 injury is to be determined under section 85.36(6). In view of the nature of the ownership of the business, the undersigned questions whether section 85.36(11) is the appropriate method but no evidence under that method was introduced. Accordingly, section 85.36(6) will be used. As previously noted, the earnings to be used are those earnings from the 13 weeks preceding the week in which the injury occurred. With some employers there is a delay between the week when earnings are earned and when they are actually paid to the employee. The statute refers to earnings, not receipt. Claimant's gross earnings for the appropriate 13 weeks are therefore $7,120.10. The average is $547.70. Since claimant was married and entitled to two exemptions the rate of compensation for the 1989 injury is $336.26 per week. Claimant's entitlement under section 85.39 is to an independent medical examination of the degree of disability. The entitlement does not normally include repeating diagnostic tests which have previously been conducted, though in some circumstances doing so might be reasonable. The burden of proving reasonableness of repeating tests rests upon the claimant. The evidence in this case fails to show that it was reasonable or necessary for the purpose of determining the degree of disability for those tests to be repeated. Accordingly, claimant is not entitled to recover the costs of the x-rays and EMG tests which were directed by Dr. Neiman. Dr. Neiman was not an authorized physician and the record provides no basis for considering the costs of those tests to be treatment expenses that would be recoverable under section 85.27. Defendants seek credit under section 85.38(2) for the payments paid by the employer to claimant for periods of time when he was receiving workers' compensation benefits. Section 85.38(1) clearly provides that the employer's obligation to pay compensation benefits is not reduced by payments received from other sources. The majority of the amounts for which a credit is sought appear to have been paid to supplement workers' compensation benefits. The workers' compensation and the supplement, when combined, do not exceed the claimant's customary earnings for most of the weeks. The most controlling factor on this issue, however, is that the evidence fails to show the existence of a group plan. The evidence fails to show that the payments paid by the employer to claimant would not have been payable even though there was an injury that was compensable under chapter 85 of the Code. In view of the traumatic nature of claimant's injuries there was no question regarding their compensability under chapter 85 of the Code. It is therefore concluded that defendants are not entitled to any credit under section 85.38(2). When the employer's practice of paying wages during the week that follows the week during which the wages were earned, it becomes apparent that there is no basis for a credit under section 85.38(2) or otherwise. It is noted that there is some overlap with payment of permanent partial disability benefits from the 1989 injury and healing period and permanent partial disability compensation from the 1991 injury. While a person cannot receive both healing period and permanency benefits from one injury at the same time there is no prohibition in law or logic against receiving permanency benefits from a prior injury at the same time as healing period or permanency benefits are being paid from a subsequent injury. It is envisioned by the workers' compensation statutes that permanent partial disability benefits be paid while the employee is working and earning wages after recuperation from an injury and returning to work. If a subsequent injury occurs and those earnings are then replaced by healing period benefits for the subsequent injury, that occurrence does not create any reason for interrupting or discontinuing the permanent partial disability benefits which are being paid for the prior injury. The two injuries are separate and distinct and are to be treated as such. ORDER IT IS THEREFORE ORDERED that on account of the September 19, 1989 injury in file number 929256 defendant employer and insurance carrier pay Ronald C. Latta two hundred (200) weeks of compensation for permanent partial disability at the rate of three hundred thirty-six and 26/100 dollars ($336.26) per week payable commencing January 8, 1990. Defendant employer and insurance carrier are entitled to credit in the amount of four thousand eight hundred sixty-six and 75/100 dollars ($4,866.75) for the fifteen (15) weeks of benefits previously paid at the rate of three hundred twenty-five and 45/100 dollars ($325.45) per week. The remaining amount is past due and owing and shall be paid in a lump sum together with interest pursuant to section 85.30. Defendant employer and insurance carrier shall also make a lump sum payment to claimant, with interest, representing the difference between the healing period benefits which were paid at the incorrect rate and the rate of compensation that has been determined for the 1989 injury in this decision. It is further ordered that in file number 984828 defendant employer and insurance carrier pay claimant one hundred (100) weeks of compensation for permanent partial disability at the stipulated rate of three hundred forty-five and 72/100 dollars ($345.72) per week payable commencing December 12, 1991. Defendants are entitled to credit for seventy-seven point five (77.5) weeks of benefits which have been previously paid. The remainder is past due and owing and shall be paid in a lump sum together with interest pursuant to section 85.30. It is further ordered that claimant take nothing from the Second Injury Fund of Iowa. It is further ordered that the costs of this action are assessed against defendants pursuant to rule 343 IAC 4.33. It is further ordered that defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this __________ day of March, 1995. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Paul McAndrew Jr Attorney at Law 122 S Linn Iowa City, IA 52240 Ms Jane Lorentzen 2700 Grand Ave STE 111 Des Moines, Ia 50312 Ms. Shirley Steffe Assistant Attorney General Hoover State Office Bldg Des Moines, IA 50319 1803 1803.1 3202 3001 1701 1402.60 2502 2503 Filed March 22, 1995 Michael G. Trier BEFORE THE IOWA INDUSTRIAL COMMISSIONER ________________________________________________________________ RONALD C LATTA, Claimant, vs. File No. 929256 & 984828 LATTA AND SONS, INC., A R B I T R A T I O N Employer, D E C I S I O N and ALLIED GROUP, Insurance Carrier, and SECOND INJURY FUND OF IOWA, Defendants. ________________________________________________________________ 1803 1803.1 Sixty-year-old claimant engaged in the well drilling industry sustained two injuries. The first was found to extend into the body and was compensated industrially with an award of 40 percent permanent partial disability. Proximity to retirement age is a factor at industrial disability. If he had not been an owner of the business it likely would have eliminated him from the industry. The first injury did cause a loss of use of his right arm. The second injury caused a very substantial loss of use of the left arm and was held to be a scheduled injury. Claimant awarded 40 percent permanent partial disability of the left arm. 3202 Though the case qualified for benefits from the Second Injury Fund none were awarded as the degree of industrial disability that resulted from the second injury was no more than the amount of the scheduled injury benefit for the left arm. 3001 The employer paid wages during the week following the week in which they were earned. It was held that under section 85.36(6) the weeks to be used are the weeks of earnings, not the weeks during which the wages were actually paid. 1701 Employer and insurance carrier denied credit for amounts paid to claimant as a supplement to his workers' compensation benefits during his healing period and also for wages paid after the injury that were due to work performed prior to the injury. Further, the business was a family owned business and that fact was relied upon to support claimant's contention that the wages were not paid in lieu of compensation but were rather paid in addition to compensation benefits. 1402.60 2502 2503 Where the examining physician for the claimant, under section 85.39, performed additional x-rays and EMG, claimant was not allowed to recover the costs of those additional tests since the record showed no necessity for repeating those tests which had previously been conducted. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ FRANKLIN K. DeTOYE, Claimant, vs. File No. 929259 CITY OF MADRID, A P P E A L Employer, D E C I S I O N and EMPLOYERS MUTUAL COMPANIES, Insurance Carrier, Defendants. _________________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed February 15, 1995 is affirmed and is adopted as the final agency action in this case. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of June, 1995. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Michael H. Irvine Attorney at Law P.O. Box 2819 Cedar Rapids, Iowa 52406-2819 Mr. E. J. Giovannetti Attorney at Law 2700 Grand Ave., Ste 111 Des Moines, Iowa 50312 5-1108 Filed June 21, 1995 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ FRANKLIN K. DeTOYE, Claimant, vs. File No. 929259 CITY OF MADRID, A P P E A L Employer, D E C I S I O N and EMPLOYERS MUTUAL COMPANIES, Insurance Carrier, Defendants. _________________________________________________________________ 5-1108 Claimant failed to prove causal nexus between minor motor vehicle accident and subsequent development of many symptoms. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ________________________________________________________________ FRANKLIN DeTOYE, Claimant, vs. File No. 929259 CITY OF MADRID, ARBITRATION Employer, DECISION and EMPLOYERS MUTUAL COMPANIES, Insurance Carrier, Defendants. ________________________________________________________________ STATEMENT OF THE CASE This is a contested case proceeding under Iowa Code chapter 17A. Claimant, Franklin K. DeToye, filed a petition in arbitration against his former employer, City of Madrid, and its insurance carrier, Employers Mutual Companies. Mr. DeToye claims that he sustained a brain injury in the course of his duties as a police officer on September 19, 1989. This case was heard and fully submitted in Des Moines, Iowa on August 9, 1994. The record consists of joint exhibits 1 through 39 and 41 through 68 along with defendants' exhibits A and B. Objections to joint exhibit 40 were taken under advisement and are at this time overruled. Exhibit 40 is received. In addition, testimony was received at hearing from claimant, Carol DeToye, John Brunner, Gary Munson and Daniel Brown. ISSUES The parties have stipulated to the following: 1. An employment relationship existed between claimant and City of Madrid at the time of the alleged injury; 2. Permanent disability, if any, should be compensated by the industrial method; 3. The correct rate of weekly compensation is $299.94; 4. With respect to disputed medical expenses, the cost is fair and reasonable and providers would testify as to the reasonableness of treatment in the absence of contrary evidence; also, expenses are causally connected to the medical condition upon which the claim of injury is based; 5. Defendants voluntarily paid $55,180.96 in weekly benefits prior to hearing. Issues presented for resolution include: 1. Whether claimant sustained injury arising out of and in the course of employment; 2. Whether the injury caused either temporary or permanent disability; 3. The extent of temporary total disability or healing period entitlement; 4. The extent and commencement date of permanent disability; 5. Whether disputed medical expenses are causally connected to the claimed work injury. Defendants also attempted to assert a defense of authorization to disputed medical expenses at hearing. The defense was ruled invalid because defendants have denied liability on the claim, thus forfeiting the right to control the course of medical treatment. FINDINGS OF FACT The undersigned deputy industrial commissioner finds: Franklin K. DeToye, 36 years of age at hearing, was employed as the chief of police in Madrid, Iowa on September 19, 1989. Madrid is a typical small town located in central Iowa. On the evening of September 19, Mr. DeToye was engaged in surveillance with one of his officers, John Brunner, who drove a squad car, with claimant as passenger. A suspect vehicle drove by at a high rate of speed, triggering a chase. During the chase, the patrol car swerved off the road into a ditch, jostling the occupants. Brunner complained of a sore arm for a few days afterwards, while claimant asserts that his life has been devastated by the incident. Mr. DeToye claims to suffer persistent seizures and pseudo-seizures, debilitating headaches and severe diminution of his intellectual capacity, including basic intelligence and the ability to concentrate. The evidence also shows that Mr. DeToye has experienced significant changes in his personality in that he is now withdrawn and grumpy, whereas he was previously alert, active and gregarious. The voluminous record in this case presents a welter of conflicting evidence both as to the surrounding facts of the accident itself, and as to the physical and psychological ramifications thereafter; especially, whether a causal link exists between the incident and the changes of which Mr. DeToye complains. This decision concludes that claimant has failed to meet his burden of proof in establishing that causal link. Claimant himself has little if any independent memory of the events of September 19. Indeed, the very pattern of his amnesia is itself most unusual in medical terms. Accordingly, the events surrounding this incident are generally described by other witnesses and various police records. However, Mr. DeToye has spoken much of his current condition, especially as contrasted to his previous condition. Although claimant's demeanor at hearing impressed the finder of fact at the time as being credible, other evidence now convinces otherwise. In addition to this litigation, claimant commenced a products liability action based on equipment in the patrol car which allegedly contributed to his injuries. In a deposition taken in that litigation on March 1, 1991, Mr. DeToye provided a wealth of detailed recollection concerning the incidents of and around September 19. He now claims that during that deposition, he merely reconstructed events from what he had subsequently learned. Nonetheless, it remains obvious that his deposition testimony was in many respects false. Claimant's willingness to give false testimony in his own behalf in that litigation casts serious and substantial doubt upon his truthfulness in this litigation. Little weight can be given to his testimony. According to John Brunner, the patrol car slid sideways into a shallow ditch on a winding gravel road at approximate 50 to 60 miles per hour and came to an abrupt stop. Brunner was thrown against the driver's side door and claimant ended up with his head in Brunner's lap. Later, perhaps by 15 to 45 minutes, Brunner says that Mr. DeToye stated he had "blacked out" just for a "split second." However, no other complaints were made and Brunner noticed no other symptoms at this time. At some time shortly after midnight, Brunner reports Mr. DeToye complaining of headache and nausea. This testimony is of some significance because symptoms of a closed head injury typically appear almost immediately, rather than hours later. On cross examination, Brunner conceded that the first time he had ever mentioned the midnight complaints may have been during his deposition in February 1994, some four and one half years later. Generally speaking, Mr. Brunner exhibited some confusion as to the sequence and timing of events on September 19, so his report of midnight complaints is questionable. Gary Munson, a Boone County deputy sheriff, was dispatched to provide assistance at 9:34 p.m. and met Officers DeToye and Brunner shortly after the unsuccessful termination of the chase. Munson noticed clumps of grass on the front end of the patrol car and briefly talked to the two men. He was not advised of any injury. As was common practice, claimant stayed at Officer Brunner's home when they went off duty around midnight. However, at some time between midnight and 2:43 a.m., claimant left the Brunner residence (also shared by the third member of the force, John Hillary) and ended in up in a confrontation with his brother and a suspected drug criminal to which Officer Brunner was eventually dispatched to give assistance at 2:43 a.m. Upon arrival at a local supermarket parking lot, Brunner recalled finding claimant and his brother Phil engaged in an argument in front of an adjoining bowling alley. Phil was disorderly and claimant was upset that Phil had been in association with the drug suspect, Frank Lawson. Lawson, incidentally, was at the same time attempting to enlist the aid of the Boone County Sheriff's Office in support of his complaint that he had been "beaten up by Madrid cop." Deputy Sheriff Daniel Brown (who, coincidentally, had once been discharged by claimant from a part-time position with the Madrid force) was sent to investigate. Brown's contemporaneous report notes Lawson complaining that he had been struck in the chest with a closed fist by claimant, supposedly for no reason whatsoever. Noting that Lawson had a "tendency to over-react," Brown concluded that no assault had been committed. However, he also took written statements from three witnesses, including Lawson. Shari Argetsinger and Kristin Kruse reported what they had been told by Lawson and Marc Argetsinger: that claimant had shoved and hit Lawson and offered to "forget" his status as a law officer in an apparent effort to provoke a fist fight. Laswon's statement details that he and Phil DeToye had gone to look for Marc Argetsinger, who had left the group. Claimant apparently drove by at this time (the earlier surveillance resulting in the chase had itself been directed at Lawson) and quickly confronted his brother over his choice of companions. Lawson goes on to complain that as he attempted to leave, claimant began to shove him around and offered to "forget all about he was a police officer." Lawson took off running back to his house to call the Boone County Sheriff for aid, concluding: As I was runing away he was jerking his brother around the bolling aley parking lot. The record does not contain evidence demonstrating that the physical confrontation between claimant and his brother went beyond "jerking around." A contemporaneous rumor floated around town to the effect that Phil had actually hit claimant in the head with a baseball bat, but there is absolutely no evidence that this ever took place. However, the mere fact that such a rumor got started tends to support the notion that there was some nature of physical confrontation between the two men. In any event, it is clear that claimant was at the very least extremely upset over the incident . Officer Brunner took Phil and claimant to the home they shared with claimant's wife, Carol DeToye. While there, claimant first began showing significant symptoms, including severe vomiting, watering eyes and complaints of headache. Brunner recalls leaving claimant with his wife and returning home, only to find Frank DeToye on his couch the next morning (according to Carol DeToye, Frank left to go home with Brunner). Carol DeToye described claimant as out of control and looking odd as well with watery eyes, slurred speech, a flushed face and imbalance. As he left with Brunner, Frank fell to his knees by the squad car to vomit. The next morning, Brunner found claimant feeling weak and complaining of nausea and headache. Carol DeToye reports the same complaints, adding that claimant looked lost and confused. She also claims to have seen drops of blood on claimant's pillow and on the right side of his head and ear. By all accounts, claimant's condition deteriorated during the day. Carol reported confusion, slurred speech, loss of balance, vomiting and complaints of headache. Officer Brunner returned later, and claimant was taken to the Boone County Hospital at 2:35 p.m. The admitting report notes that claimant stated he was not unconscious when he "rolled a car" the night before, but had severe headache, nausea and dizziness likened to drunkenness. The records do not show that any sign of physical injury was discovered, much less the "goose egg" claimant testified to in his products liability litigation. After a consultation with a neurosurgeon, S. Randy Winston, M.D., claimant was transferred by ambulance to Mercy Hospital in Des Moines. Officer Brunner reported the incident to the City of Madrid on September 20. City administrator/clerk Keith Kudej testified by deposition on February 21, 1994, that Brunner had actually been unsure whether claimant had been injured during the chase or in a "tackle basketball" accident in which claimant fell and hit his head in the days shortly before, probably September 16. Brunner was described as "curious as to how Frank could have sustained that injury because they really didn't crash." (Joint Exhibit 44, page 23) A former deputy city clerk, Catherine Petersen, testified (by deposition on February 21, 1994) to what Brunner told her about the basketball game: A. He was concerned about Frank because Frank was not feeling well, and John Brunner was feeling very guilty because he had been involved in that same game, and he thought maybe he had been the one that had hurt him. Q. You say he didn't feel well. What is your understanding of when he didn't feel well? Would it have been before September 19, 1989? A. It would have been before the 19th, yes. It had been going on since he had hurt his head at that party. Q. And John Brunner told you that? A. Yes. Q. What did John tell you occurred at the party? A. That they were playing tackle basketball and they both went down and they both hit their heads on the cement but Frank hit his head harder. (Jt. Ex. 45, pp. 8-9) Ms. Petersen also reported that Carol DeToye spoke to her of the basketball incident at about the same time: Q. What did Carol DeToye tell you about the basketball game? A. Not a lot about the game. She told me that he had fallen; and since then he had had real bad headaches, could not remember a lot and had been acting strange. (Jt. Ex. 45, p. 10) Kudej and Petersen are disinterested witnesses, especially Catherine Petersen, who is no longer employed by the City of Madrid. Substantial weight is given to the testimony of each. The patrol car itself was subsequently examined by Keith Kudej and John Brunner twice, the second time with an insurance representative. No obvious evidence of injury was found (although claimant testified in his products liability litigation to having left hair in the offending vehicle) and Brunner was unsuccessful in his attempts to reach with his head to a metal bolt or bracket thought to have been struck. Claimant, incidentally, has a remarkable medical history including being knocked unconscious on six prior occasions in sporting, motor vehicle and parachute accidents. He also was complaining of severe or persistent headaches at least as early as 1986. During claimant's hospitalization at Mercy (he was released on October 3), he was twice scanned by computerized tomography. The first CAT scan, according to Dr. Winston (deposition of April 22, 1994) was questionable as to whether any variant actually existed, but may have suggested some swelling on the right side of the brain; a slight asymmetry. Incidentally, a right-sided brain injury is not consistent with the right-sided extremity weakness claimant was reporting at the time. A subsequent CAT scan was normal, leading Dr. Winston to conclude that the first scan had shown physical damage, which then quickly resolved. By the time claimant was released from the hospital, he showed no physical manifestations of injury and complained only of continued headaches. Dr. Winston felt claimant had sustained a cerebral contusion which he attributed to the vehicle accident, although the doctor was not aware that symptoms had actually begun following the basketball accident several days before. He characterized the severity of the injury as moderate and would not have anticipated residual problems, although residuals were possible. He also considered development of symptoms several hours after the initial injury to be "inconsistent," but nonetheless possible, as brain swelling may not have occurred instantly. It was only at his deposition that Dr. Winston learned for the first time that symptoms had not appeared immediately. Dr. Winston also opined that proof of injury to brain fibers could best be found in behavioral testing. After his release from the hospital, claimant returned to work briefly, but developed startling new symptomotology beginning December 13, 1989: seizure activity. Mr. DeToye now regularly develops grand mal type seizure symptoms involving apparent loss of voluntary muscle control, urination and defecation, shaking, falling and biting the inside of the mouth. Claimant has been hospitalized on numerous occasions for these symptoms, and has even undergone these events while hooked to electroencephalograph machines on multiple occasions. However, those EEG's have demonstrated conclusively that claimant suffers from "pseudo-seizures," that is, seizure-like activity which is not associated with abnormal electrical activity in the brain. The expert opinion in the record establishes that pseudo-seizures may either be caused by conversion reactions, a form of psychological disturbance, or may be pure fakery. They are, in any event, not caused by abnormal physical function, although they can in many cases be associated with true seizures. That is, the diagnosis of pseudo-seizures does not necessarily exclude the possibility of epileptic seizures. Nonetheless, in this case, there is no evidence that claimant has ever experienced a true epileptic seizure as opposed to the pseudo-seizures which have been diagnosed on multiple occasions. Mr. DeToye's constellation of symptoms have been treated and evaluated by a large number of highly qualified physicians. Not surprisingly, those physicians exhibit a wide diversity of opinion. David L. Friedgood, D.O., a board certified neurologist, first saw claimant at Dr. Winston's referral on March 24, 1990, during a hospitalization for seizures. Under Dr. Friedgood's care, claimant was hooked to an EEG machine when he experienced three separate seizure events: EEG tracings were normal, leading Dr. Friedgood to diagnose pseudo-seizures with near absolute certainty. Dr. Friedgood's final diagnosis, issued in a letter dated March 17, 1994, was of post-concussion syndrome, a condition which is not observable by radiographic means such as MRI or CT scans. Based on the history given by Mr. DeToye (which included the car chase, but not the tackle basketball incident), Dr. Friedgood causally related claimant's condition to the claimed work injury of September 1989. Referring to claimant as "one of a kind" in his deposition of May 25, 1994, Dr. Friedgood noted that claimant has no objectively observable physical residuals from the accident and deferred causation questions as to claimant's psychiatric disturbance to psychiatric experts. Dr. Friedgood pointed out a number of unusual factors in claimant's case, including in particular the fact that symptoms first arose only several hours after the chase (again, Dr. Friedgood was not aware that claimant suffered symptoms following the basketball incident several days before) and noted how unusual it is that the gross nature of claimant's symptoms could have been caused by physical damage not detectable by MRI or CAT scan. Dr. Friedgood would have expected to see a large scale injury to the brain in order to cause such "tremendous symptoms" as he complained of. Claimant was also seen in 1990 and 1991 by Ashby T. Harris, M.D., in the state of Texas. Dr. Harris concluded as of July 18, 1991, that claimant had suffered no permanent neurological deficit as a result of the accident, other than a tendency towards seizures. However, Dr. Harris' report of October 18, 1990 discloses that he received a seriously defective history: He believed that claimant had been knocked unconscious for about three to five minutes, then came around, then came around, then became unconscious again following the accident. Also, Dr. Harris was apparently unaware of the basketball incident several days before. Daniel B. Johnson, M.D., also a board certified neurologist, testified by deposition on June 14, 1994. Dr. Johnson treated claimant from February 1992 to February 1993, mostly with respect to seizure activity. Dr. Johnson diagnosed a conversion disorder as causative of pseudo-seizures, but apparently was not impressed that claimant suffers a post-concussion syndrome. As to the nature of conversion disorders, Dr. Johnson commented that the motivation "is deeply psychological and not based upon current events, necessarily." Dr. Johnson did not believe that claimant was intentionally faking his seizure activity. John R. McKee, M.D., also a board certified neurologist, testified by deposition on May 25, 1994. Dr. McKee treated claimant during a hospitalization for seizure activity in December 1993. Dr. McKee's discharge diagnosis was of pseudo-seizures and chronic daily headaches. He noted that headaches are common, and believes it usually is unknown what might cause them; they are frequently spontaneous in nature. Dr. McKee did not causally connect either post-concussion syndrome or pseudo-seizures to the September 19, 1989 incident under review. He pointed out that the causal relationship between trauma and post-concussion syndrome is clearer, the more severe the trauma is. Pseudo-seizures are, again, either a conversion reaction or malingering. Dr. McKee believes that the cause of pseudo-seizures is rarely, if ever known, and in particular, they do not ordinarily occur following a trauma. Indeed, he specified that this is the first case he was aware of in which a conversion reaction was claimed to occur following an accident. Onset is typically spontaneous in nature. Jim Delperdang, M.D., is a board certified fellow in emergency medicine who testified by deposition on June 30, 1994. Dr. Delperdang, who has extensive experience with seizures due to his specialty, treated claimant for seizure activity in February 1994. Dr. Delperdang noted a number of actions inconsistent with true seizure activity, especially when claimant was being intubated before being given a powerful paralytic drug that would also paralyze the muscles necessary for respiration. Claimant pulled the tube from his throat, a voluntary muscle action though apparently in the midst of a seizure. Dr. Delperdang accordingly concluded that the seizure events were voluntarily controlled. After learning that claimant had previously been diagnosed with pseudo-seizures, Dr. Delperdang acted as follows: A. I decided that we would stop aggressive seizure control and then I extubated the patient, and at that point we just basically monitored his vital signs. Q. Did you advise Mr. DeToye at that time as to what your action was to be? A. I went up to him, and in spite of the fact that he didn't seem to be responsive, I told him that he would not receive any further medications. Q. And what happened, Doctor? A. We had no more shaking spells. Q. Is that a voluntary or involuntary act at that point? A. Well, either very coincidentally or voluntary control. Q. Do you have an opinion in that regard? A. No. Although Dr. Delperdang refused to express an opinion, it seems fair to infer that he considered this coincidence highly suspicious. Claimant has also been the object of several psychological work-ups. John D. Bayless, Ph.D., a neuropsychologist, testified (by deposition on June 6, 1994) that claimant suffers an organic affective personality disorder (post-injury behavioral changes) and concluded that claimant had significant impairment to memory, attention and concentration. Dr. Bayless causally tied his diagnoses to the 1989 car chase. Claimant was also evaluated at the University of Iowa Hospitals and Clinics on December 15, 1993. Robert D. Jones, Ph.D., another neuropsychologist, testified by deposition on March 11, 1994. Dr. Jones concluded that there was little evidence in this case of post-traumatic head injury syndrome or post-concussive syndrome. Although claimant's performances on numerous neuropsychological tests failed to meet expectations, Dr. Jones found the severe nature of deficiencies as inconsistent with other areas of preserved cognitive functioning that he would also expect to be impaired, other diagnostic tests which have been normal or inconsistently abnormal, the developmental course of claimant's impairments and the reported severity of the trauma. At the behest of Dr. Friedgood, claimant was evaluated by neuropsychologist Michael D. Oliveri, Ph.D., in May 1990. Dr. Oliveri concluded: Results are suspect and indicate an atypical pattern of cognitive dysfunction, including deficits in general intellect (including abilities often unaffected by brain injury), verbal fluency, verbal learning and memory, delayed visual memory, tactile perception, right-left confusion, and reasoning abilities. Personality testing suggests neurotic and somatization features found within the context of long-standing personality problems. Comparison with available 12/89 results indicate dramatic changes, with new deficits appreciated in right-left discrimination, finger agnosia (bilateral), verbal fluency, and immediate serial digit recall. Such changes would suggest rather significant newly acquired multifocal cerebral dysfunction (left anterior frontal, medial temporal, basal forebrain, and parietal) in the interim period. These findings are significantly inconsistent with his known neurological status. In addition, his qualitative performance on this examination was significant for resistance. Taken together, such findings are suggestive of dissimulation. Dr. Oliveri believed that secondary gain issues might be contributing factors and suggested that if claimant's motives changed and secondary gain issues could be resolved, a neuropsychological re-evaluation could be valid; at present, he did not recommend further examination. CONCLUSIONS OF LAW The claimant has the burden of proving by a preponderance of the evidence that the alleged injury actually occurred and that it arose out of and in the course of employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of" refer to the cause or source of the injury. The words "in the course of" refer to the time, place and circumstances of the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 1971). The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Although there is certainly evidence going both directions, it is concluded that claimant has failed to meet his burden of proof in establishing injury arising out of and in the course of employment in the sense of any causal link between the squad car going off the road and claimant's current condition. It is noted that the squad car impact was relatively minor (at least, in terms of any sustained loss of consciousness) and that symptoms either developed several hours afterwards, or more likely, developed several days before when claimant fell playing tackle basketball. In addition, claimant was clearly involved in some nature of altercation with his brother a few hours later, and the psychological distress resulting from that incident was obviously incomparably greater than psychological distress resulting from going off the road. The development of obvious symptoms are also much closer in point of time to this incident. Claimant's seizure disorder is caused by a conversion reaction. Despite Dr. Delperdang's suspicions, this decision does not find that claimant is faking his seizure activity. However, the expert opinion persuades that conversion disorders are not typically associated with physical trauma, and develop either spontaneously or, if in response to a purely psychological trauma, in this case would be more clearly associated with the confrontation between claimant and his brother. Not only are there causal problems connecting the car chase to any claimed diminution in claimant's mental capacities (intelligence, concentration, etc.), but Dr. Oliveri has pointed out the many inconsistencies, along with Dr. Jones from the University of Iowa. Taking all these factors into account, it is concluded that claimant has failed to meet his burden of proof. Accordingly, defendants prevail on all disputed issues. ORDER THEREFORE IT IS ORDERED: Claimant takes nothing further. Costs are assessed to claimant. Signed and filed this ____ day of February, 1995. ________________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Michael H. Irvine Attorney at Law 417 First Avenue SE PO Box 2819 Cedar Rapids, Iowa 52406-2819 E. J. Giovannetti Attorney at Law 2700 Grand Avenue Des Moines, Iowa 50312 5-1108 Filed February 1995 DAVID RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER ________________________________________________________________ FRANKLIN DeTOYE, Claimant, vs. File No. 929259 CITY OF MADRID, ARBITRATION Employer, DECISION and EMPLOYERS MUTUAL COMPANIES, Insurance Carrier, Defendants. ________________________________________________________________ 5-1108 Claimant failed to prove causal nexus between minor motor vehicle accident and subsequent development of many symptoms.