Page 1 before the iowa industrial commissioner ____________________________________________________________ : JOY B DECKER, : : Claimant, : : vs. : : File No. 929412 AALFS MANUFACTURING, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : AETNA CASUALTY & SURETY CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Joy Decker against her former employer, Aalfs Manufacturing, and its insurance carrier based upon an injury of September 13, 1989. It was stipulated that Decker sustained injury which arose out of and in the course of employment, that the injury produced temporary disability and that the correct weekly rate of compensation is $138.94. The issues in the case are whether the injury produced any permanent disability, when the healing period ended and whether the injury is one which should be compensated industrially or under the schedule if permanency resulted. The record in the proceeding consists of testimony from Joy Decker, Paula Harris, Dianna Heins, and David Decker. The record also contains claimant's exhibits 1 through 16 and defendants' exhibits A through F. findings of fact Having considered all the evidence received, together with the appearance and demeanor of the witnesses, the following findings of fact are made: Joy Decker was employed at Aalfs Manufacturing from 1978 through 1990. She performed repetitive work operating sewing machines involved in the manufacture of blue jeans. During 1989 her arms began hurting. On September 13, 1989, after reporting her symptoms to her supervisor, Joy was referred to the company physician who in turn referred her to orthopedic surgeon Rick Wilkerson. Dr. Wilkerson's initial diagnosis was that she probably had bilateral cubital and carpal tunnel syndromes. Over the next several months Joy participated in a course of conservative treatment which included wearing braces or splints, prescription medication, time off work and restricted work Page 2 activities (exhibit 4). On November 27, 1989, she was evaluated by Leonel H. Herrera, M.D., neurologist, who was of the impression that she had bilateral ulnar nerve compression at the elbows (ex. 14). Joy's complaints included not only her hands and arms, but also her shoulder and neck. She received physical therapy for her neck and shoulder (ex. 13). On February 13, 1990, Dr. Wilkerson indicated that her symptoms were worse on her left elbow than on her right. He released her to return to work and cautioned her that if her symptoms recurred she should return for further care. On March 15, 1990, Joy returned to Dr. Wilkerson. Her symptoms had recurred. At this time Dr. Wilkerson diagnosed her as having bilateral cubital and carpal tunnel syndromes. Since it did not resolve with conservative treatment he indicated that surgery was the only remaining recourse. Dr. Wilkerson provided permanent impairment ratings of 50 percent of her right hand and 15 percent of her left hand if surgery was not performed. Though claimant's condition involves compression of the ulnar nerve at her elbows, Dr. Wilkerson did not provide an impairment rating for her arms, only for her hands. At that point there was uncertainty regarding what the course of future care or treatment would be. Joy saw Dr. Wilkerson on April 4, 1990. At that time it was reported that she was permanently impaired and that she should be released from performing further work at Aalfs. It was reported that she had achieved as much medical improvement as possible unless surgery was performed. The impairment rating previously made was confirmed on April 4, 1990 and again on June 20, 1990 (ex. 4). It was on April 4, 1990, that the decision was apparently made that there would be no further attempts to enable Joy to resume work at Aalfs Manufacturing. It is found that on April 4, 1990, it was medically indicated that further significant improvement from the injury was not anticipated. Joy has been evaluated by a number of physicians. Rex J. Jones, D.C., on March 26, 1990, rated her as having a 7.5 percent impairment of each upper extremity, apparently based on pain. Dr. Jones attributes the pain to the ulnar nerve (ex. 11). Joy was also evaluated by Jay Michael Donohue, M.D. Dr. Donohue reported on May 15, 1990, that she had reached maximum medical improvement and that consideration could be given to decompression surgery of the left ulnar nerve at her elbow. He rated her at that time as having a 5 percent impairment of her left upper extremity, but no impairment of the right upper extremity (ex. 5). Dr. Donohue also evaluated claimant on subsequent occasions. On May 28, 1991, he confirmed that she had reached maximum medical improvement and reported that her subjective complaints far outweighed the objective findings. On October 31, 1990, he had diagnosed bilateral upper extremity dysfunction, but again felt that she had reached maximum medical improvement Page 3 and at that time he rated her as having no permanent impairment. He also stated that the natural history of her overuse syndrome condition is gradual improvement. On September 19, 1990, he had reported that she would not be able to return to production line activity (ex. 3). Joy has also been evaluated by Joel T. Cotton, M.D. Dr. Cotton found no evidence of residual physical or neurological injury. He found that there was no indication for any physical restrictions or limitations. He agreed that she had reached maximum medical benefit. He reported that she had not suffered any permanent impairment and that there was no evidence of an overuse syndrome (ex. B). The opinions of the physicians in this regard vary widely. The evaluation from Dr. Cotton is the most recent but it also was performed at a time when Joy was far removed from the type of repetitive activities which caused her problems. It is not remarkable that there would be no evidence of an overuse syndrome since she had refrained from the injurious activity for a considerable amount of time before seeing Dr. Cotton. His opinions are rejected. The ratings from Dr. Wilkerson, the primary treating physician, seem quite high in comparison to those commonly seen in other cases of individuals having similar symptoms, complaints and diagnostic tests. The earlier rating from Dr. Donohue is somewhat consistent with those seen in other cases as are the ratings from Dr. Jones. It is irreconcilable to report that a person has suffered no impairment, but cannot resume repetitive activity such as production line work. If there were no impairment, there would be no reason for an activity restriction. While a condition might not fit within the criteria of a guide for rating impairments, the pratical fact of the matter is that loss of ability to perform a function establishes the existance of an impairment of function and a partial disability. It is clear that in this case the cubital tunnel at the elbow is involved. The impairment is therefore not limited to the hands. The normal characteristics of overuse syndrome conditions is that they resolve considerably when the offending activity is discontinued. They recur if the offending activity is resumed. It is, nevertheless, difficult to arrive at a determination of the degree of disability when dealing with an overuse syndrome condition. In this case it is found, based upon the evidence in the record of this case and based upon agency experience from other cases with similar circumstances, that Joy Decker has a 5 percent permanent impairment of each arm as a result of the overuse syndrome, also known as a cumulative trauma injury, which she sustained while employed at Aalfs Manufacturing. conclusions of law The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence Page 4 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). Claimant's problem with her continuing residual symptoms affecting her arms is a continuation of the problem that was originally caused by her work injury. There has been no break in the chain of causation. The permanent disability which currently afflicts her was proximately caused by the original work injury. Section 85.34(1) provides that healing period benefits are payable to an injured worker who has suffered permanent partial disability until (1) the worker has returned to work; (2) the worker is medically capable of returning to substantially similar employment; or (3) the worker has achieved maximum medical recovery. The healing period can be considered the period during which there is a reasonable expectation of improvement of the disabling condition. See Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa Ct. App. 1981). Healing period benefits can be interrupted or intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986). It is determined that Joy's healing period ended on April 4, 1990, in accordance with the determination made by Dr. Wilkerson. Compensation for permanent partial disability begins at termination of the healing period. Her entitlement to permanent partial disability compensation therefore commences on April 5, 1990. 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). Compensation for permanent partial disability begins at termination of the healing period. Section 85.34(2). Permanent partial disabilities are classified as either scheduled or unscheduled. A specific scheduled disability is evaluated by the functional method; the industrial method is used to evaluate an unscheduled disability. 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). 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 Page 5 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 agency rule such as 343 IAC 2.4 should not be construed, beyond its own terms, in a manner which makes it the exclusive means of measuring scheduled disabilities. The terminology in those guides differs from the statute. Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986). The role of the guide adopted by the agency rule is limited to the extent that it is consistent with the statute. 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. Joy has had complaints involving her shoulder and neck. There has been no medically demonstrated disability, impairment, physiological abnormality or derangement other than the carpal tunnel and cubital tunnel conditions which have been diagnosed. Her injury is therefore a scheduled injury. It does not extend into the body as a whole. It is noted that impairment of the upper extremity may be impairment of the shoulder which extends into the body as a whole or impairment of the arm which is limited to the scheduled member. In this case all of the permanent physical injury, anatomical damage and impairment is located in the arm. The disability is therefore a scheduled disability. Benefits for permanent partial disability of two members caused by a single accident is a scheduled benefit under section 85.34(2)(s); the degree of disability must be computed on a functional basis with a maximum benefit entitlement of 500 weeks. Simbro v. Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983). It has been found that Joy has a 5 percent permanent impairment of each arm. Under the AMA Guides made pertinent to this case by rule 343 IAC 2.4, each 5 percent impairment of the upper extremity converts to a 3 percent impairment of the whole person. When combined under the combined values chart, these amount to a 6 percent funcitonal impairment of the whole person. Under the provisions of Code section 85.34(2)(s) claimant is therefore entitled to recover 30 weeks of compensation for permanent partial disability. order IT IS THEREFORE ORDERED that Joy Decker's healing period under section 85.34(1) ended on April 4, 1990. It is further ordered that defendants pay Joy Decker thirty (30) weeks of compensation for permanent partial disability at the stipulated rate of one hundred Page 6 thirty-eight and 94/100 dollars ($138.94) per week commencing April 5, 1990. It is further ordered that defendants receive credit for all permanent partial disability compensation which has been previously paid. Any unpaid past due amounts shall be paid to Decker in a lump sum together with interest pursuant to section 85.30. Signed and filed this ____ day of February, 1993. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. E.W. Wilcke Attorney at Law 1510 Hill Ave PO Box 455 Spirit Lake, Iowa 51360 Ms. Judith Ann Higgs Attorney at Law 701 Pierce St, STE 200 PO Box 3086 Sioux City, Iowa 51102 1808 1402.40 1803.10 Filed February 26, 1993 Michael G. Trier BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JOY B DECKER, Claimant, vs. File No. 929412 AALFS MANUFACTURING, A R B I T R A T I O N Employer, D E C I S I O N and AETNA CASUALTY & SURETY CO., Insurance Carrier, Defendants. ___________________________________________________________ 1808 1402.40 Where physicians had widely varying opinions as to percentage of impairment, the claimant's credibility was relied upon to find a 5 percent impairment of each arm as a result of overuse syndrome. A recent examination by an employer-chosen physician which found no impairment and no evidence of overuse syndrome was discounted because the claimant had not engaged in repetitive activity for approximately two years prior to the time of the recent examination. Claimant had not undergone surgery. Her carpal tunnel and cubital tunnel syndromes were relatively mild. 1803.1 Carpal tunnel and cubital tunnel were scheduled injuries and did not extend into the body even though claimant had complaints of discomfort in her shoulder and neck. No pathology in the shoulder or neck areas had been identified. Page 1 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ ABBY D. WARD, Claimant, File Nos. 929589/979230 979231/979232 vs. A P P E A L IBP, INC., D E C I S I O N Employer, Self-Insured, Defendant. ____________________________________________________________ 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 November 19, 1992 is affirmed and is adopted as the final agency action in this case with the following additional analysis: Claimant suffered a cumulative injury. Although claimant eventually left work, she was not compelled to leave work due to her work injury. Under Oscar Mayer Foods v. Tasler, 483 N.W.2d 824 (Iowa 1992), the Iowa Supreme Court held that for purposes of computing benefits it is appropriate to fix the date of injury as of the time at which the disability manifests itself. The Commissioner is entitled to a substantial amount of latitude in making a determination regarding the date of manifestation since this is an inherently fact-based determination. In this case, claimant's injury manifested itself when the condition became severe enough to prompt claimant to seek medical treatment. That occurred on May 3, 1988. Claimant's petition for benefits was not filed until April 18, 1991. Under Iowa Code section 85.26(1), claimant's petition was not timely filed. Even if claimant's action had been timely brought, claimant has failed to carry her burden of proof to show that she has suffered a permanent condition as a result of her work injury. THEREFORE, it is ordered: Claimant shall take nothing further from these proceedings. Claimant shall pay the costs of the appeal, including the preparation of the appeal transcript. Signed and filed this ____ day of March, 1993. Page 2 ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Steve Hamilton Attorney at Law P.O. Box 188 Storm Lake, Iowa 50588 Mr. John M. Comer Attorney at Law P.O. Box 515, Dept. 41 Dakota City, NE 68731 5-1800; 2400 Filed March 31, 1993 Byron K. Orton MAM BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ ABBY D. WARD, Claimant, File Nos. 929589/979230 979231/979232 vs. A P P E A L IBP, INC., D E C I S I O N Employer, Self-Insured, Defendant. ____________________________________________________________ 5-1800 Claimant was unable to prove that he had sustained any permanent partial disabilities because of repetitive motions in the work place. Claimant had no objective evidence to support his claim for benefits. 2400 The industrial commissioner held that for purposes of determining an injury date, the injury was held to have manifested itself on the date claimant's condition became severe enough to prompt claimant to seek medical attention. The rationale of Oscar Mayer Foods v. Tasler was followed. As a consequence, claimant did not timely file her petitions pursuant to Iowa Code section 85.26. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : ABBY D. WARD, : : File Nos. 929589/979230 Claimant, : 979231/979232 : vs. : A R B I T R A T I O N : IBP, INC., : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ STATEMENT OF THE CASE These are proceedings in arbitration upon the petitions of claimant, Abby Ward, against his self-insured employer, IBP, Inc. The petitions were filed on April 18, 1991. The cases were consolidated and they were heard on September 1, 1992 in Storm Lake, Iowa at the Buena Vista County Courthouse. The record consists of joint exhibits A-C and E-J. The record also consists of the testimony of claimant, Abby Dean Ward. At the commencement of the hearing procedures claimant, through his attorney, made a motion to dismiss file number 929589 which had an alleged injury date of September 19, 1989. The undersigned deputy orally granted the motion to dismiss. ISSUES The issues to be determined are: For file number 979230, April 15, 1988: 1) Whether claimant is entitled to any permanent partial disability benefits from a work-related injury on April 15, 1988; and, 2) Whether claimant has filed his original notice and petition in a timely fashion. For file number 979231, February 11, 1991: 1) Whether claimant is entitled to any permanent partial disability benefits from a work-related injury on February 11, 1991; and, 2) Whether claimant has filed his original notice and petition in a timely fashion. For file number 979232, January 22, 1991: 1) Whether claimant is entitled to any permanent Page 2 partial disability benefits from a work-related injury on January 22, 1991; and, 2) Whether claimant has filed his original notice and petition in a timely fashion. FINDINGS OF FACT The deputy, having heard the testimony and considered all the evidence, finds: Claimant is 30 years old. He dropped out of high school in 1980 after he completed the eleventh grade. Claimant described his class rank as being in the middle of the class. After he left high school, claimant commenced his working career in order to assist his family. He began working in the construction industry where he built and erected grain bins, installed fiberglass insulation, erected steel, and generally engaged in strenuous labor. For his efforts, claimant was compensated at the rate of $4 to $6.50 per hour. On August 21, 1987, claimant commenced his employment with defendant. He started at $6.00 per hour and was assigned to boning loins. His duties included pulling ribs, using a straight knife to remove bones, and working at a fast pace. By the end of the 1987 calendar year, claimant was earning $6.25 per hour. In 1988, claimant began experiencing difficulties with his right wrist, forearm and elbow. On May 3, 1988, claimant sought medical treatment from Brian W. Nelson, M.D., at Iowa Lakes Orthopedics. Dr. Nelson diagnosed claimant's condition as: "Possible carpal tunnel syndrome as yet unresponsive to conservative care. Patient showed several non-organic signs of pathology today." (Exhibit C-1) An EMG was conducted with negative results. Later Dr. Nelson modified his diagnosis to "a mild over-use syndrome." (Ex. C-2). He placed claimant on light duty and ordered physical therapy. Claimant missed no work. As of July 12, 1988, Dr. Nelson opined: ASSESSMENT: Overuse syndrome. Patient has responded nicely to conservative care. He still has just a mild touch of lateral epicondylitis which should give him no permanent problems. PLAN: 1) Return to full duties with no restriction. 2) There will be no permanent impairment. 3) Patient is advised to continue wearing his tennis elbow splint and to ice down the elbow at the end of work. 4) I will follow this patient up on a PRN basis. (Ex. C-4). Page 3 Claimant continued with conservative treatment. On February 6, 1989, claimant returned to the Iowa Lakes Orthopedics Clinic for bilateral arm pain. David M. Lingren, M.D., diagnosed claimant's condition as: ASSESSMENT: 1) Bilateral flexor tendonitis involving the hand and wrist. At this time, I feel we should start anew with treatment of this tendonitis with appropriate relief of his boxing job and anti-inflammatory measures. (Ex. C-8). Claimant remained on light duty. In January of 1990, claimant was examined by J. Michael Donohue, M.D. The orthopedic surgeon opined: EVALUATION: Of the upper extremities reveals what appears to be an extensor tendon sheath cyst over the long finger extensor tendon at the level of the wrist. It is minimally tender. Wrist range of motion is otherwise full. Examination of the right forearm reveals enlargement of what more than likely is another flexor tendon sheath cyst that measures 6 cm. x 3 cm. in the volar surface of the forearm. Examination of the back today reveals good range of motion but tenderness over the right posterior superior iliac spine and pelvic brim. The patient has also developed some hamstring tightness especially on the right side. ASSESSMENT: 1) Tendonitis with flexor tendon sheath cyst formation of left wrist extensor tendons and right forearm. 2) Mild flare-up of low back injury. PLAN: With respect to his upper extremity problems, the patient currently has permanent restriction to avoid repetitive use of the upper extremities. I believe no other intervention is indicated at this time other than further observation. I also recommended icing of the swollen areas at the end of a work shift if they remain symptomatic. (Ex. C-34). Dr. Donohue opined that: EVALUATION: of the upper extremities reveals persistence in the mid-forearm flexor tendon ganglion although this is not tender. Elbow and wrist range of motion are full. Evaluation of the left upper extremity reveals resolution of the previous dorsal ganglion over the wrist. CMS is intact. ASSESSMENT: 1) Status post low back injury--I Page 4 believe the patient has reached maximal medical improvement and has not sustained any permanent impairment from this injury. 2) Status post overuse syndrome right upper extremities--improving with strengthening activities and at this time, I do not anticipate the patient to require any further treatment and we will plan on discharging him from clinic. Based on findings today, I do not feel he has sustained any permanent impairment with respect to his right upper extremity symptoms and left dorsal wrist ganglion which again has resolved. I related to the patient that should his situation change at any time in the future, I will be happy to re-evaluate him them [sic]. Otherwise, follow-up will be on a prn basis. (Ex. C-37). Dr. Donohue imposed restrictions on claimant's activities. The physician restricted claimant from repetitive gripping, pushing, or pulling with the right upper extremity while claimant went through rehabilitation. (Ex. C-39) Later Dr. Donohue modified the restrictions to: activities as tolerated by claimant. The modified restrictions were based upon claimant's functional capacity evaluation on April 8, 1992 and upon claimant's subjective complaints. After his functional capacity evaluation, Randy Presler, P.T., opined that: C. Isometric Strength Testing - Abby was not retested on isometric strength testing. His values were ABOVE the 80th percentile in all 4 standardized lifting positions (arm lift, leg lift, back lift, and high far lift). Abby has EXCELLENT static strength capabilities. D. Aerobic Fitness Testing - Abby was re-evaluated on the bicycle ergometry test. His aerobic capacity was tested at 44 ml/kg/min. This places him in the AVERAGE category and is an improvement from his testing on May 6th. Abby has the ability to sit, stand, and walk intermittently throughout the course of an 8 hour day. He demonstrates the ability to perform in the HEAVY physical demand level of work which is characterized by lifting 100 pounds occasionally and 50 pounds of less frequently. We will plan to discontinue Abby from our Work Hardening Program as he is improved in all values and is now able to tolerate work in the heavy physical demand level. I do not know if he will be returning to work at IBP at this time. (Ex. C-47). Page 5 Claimant was medically disqualified from pulling ribs and from repetitive motion. Claimant was then transferred to operating the Cry-O-Vac Machine. He operated the machine from April 24, 1989 until claimant voluntarily terminated his employment on March 12, 1991. While claimant had been placed on light duty, he missed no work because of his work injuries until he terminated his employment. At the time of his separation, claimant was earning $8.22 per hour. After his voluntary termination, claimant sought an independent medical examination from A. J. Wolbrink, M.D., an orthopedic surgeon. Dr. Wolbrink examined claimant on April 1, 1992. The physician authored a report of the same date in which he opined that: On examination I found Mr. Ward to be 69 inches tall and weigh 208 pounds. Has tenderness with some mild muscle spasm in the right trapezius. He has normal range of motion of the cervical spine except for slight limitation of motion to the right. Neurologic exam was normal throughout the upper extremities with normal reflexes and no focal muscular weakness. He has had mild diffuse weakness in the right upper extremity. The right shoulder had no apparent tenderness. There was crepitation in the rotator cuff. He had normal range of motion throughout all directions in the right shoulder. Impingement sign was not truely positive. He did have some discomfort with abduction impingement testing. The right elbow had a normal range of motion. There was some tenderness in the medial epicondyle and along the ulnar nerve in the notch at the elbow. He was a bit diffusely tender along the flexor tendons of the right forearm. Has normal range of motion of the right wrist, hand, and fingers. Tinel's sign seems to be positive. Phalen's test caused mild symptoms after about one minute. There was a little weakness of intrinsic muscles in the right hand. The left arm had normal motion throughout the shoulder, elbow, wrist, and hand. Grip strength measure 51, 36, and 42 kg. in the right hand and 57, 56, and 46 kg. with serial mea surements in the left hand. Mr. Ward had normal range of motion of the lumbar spine being able to forward bend to toe touch but he did have some reported pain as he rose from the full flexion position. He still had at least 30o of extension and 30o of side bending and full rotation throughout the thoracolumbar spine. Neurologic is normal with symmetrical reflexes and strength through the lower extremities. X-rays were taken of the cervical spine, right shoulder and lumbosacral spine. These may show a little degenerative change within the acromioclavicular joint of the right shoulder but otherwise are essentially normal. The radiologist report is included for your information. Page 6 In my opinion Mr. Ward has occupational cervical brachial disorder or tendonitis which involves the cervical spine, shoulder, and forearm on the right. He also had a strain of the lumbar spine and is having some mechanical type back problems more recently. In my opinion Mr. Ward has a permanent impairment of twelve percent of the right upper extremity due to his occupational cervical brachial disorder. This involves most of the upper extremity and trapezius to the cervical spine and therefore, it is translated to seven percent permanent impairment of the whole person. He does have some occasional problems with the lumbar spine but at present has no permanent impairment. It would be my opinion that the impairment of the upper extremity from the occupational cervical brachial disorder is a result of the repetitive trauma of his work as a significant cause of the factor. At the present time I do not know of a treatment that would provide significant improvement in his condition. Physical therapy modalities and periodic use of nonsteroidal anti-inflammatory medication would provide some relief. It may be worth while to do an EMG to determine more objectively the involvement of the ulnar nerve at the elbow or carpal tunnel syndrome as part of this disorder. If that would show significant involvement, surgical carpal tunnel release might be considered. (Ex. E-2 & 3). At the time of the hearing, claimant was employed by Camblin Plumbing and Heating at $8.00 per hour. His duties included soldering copper tubing, installing new pipes, and installing underground sewers. CONCLUSIONS OF LAW The first issue before the undersigned is whether claimant has timely filed his three petitions. The petitions were all filed on April 18, 1991. Section 85.26 of the Iowa Code provides in relevant portion: 1. An original proceeding for benefits under this chapter or chapter 85A, 85B, or 86, shall not be maintained in any contested case unless the proceeding is commenced within two years from the date of the occurrence of the injury for which benefits are claimed or, if weekly compensation benefits are paid under section 86.13, within three years from the date of the last payment of weekly compensation benefits. An original proceeding for benefits must be commenced Page 7 within two years from the date of the occurrence of the injury for which benefits are claimed or within three years from the date of the last payment of weekly compensation benefits if weekly compensation benefits have been paid under section 86.13. Section 85.26(1). A proceeding in review-reopening must be commenced within three years from the date of the last payment of weekly benefits under either an award for payments or an agreement for settlement. Section 85.26(2). The "discovery rule" may extend the time for filing a claim where weekly benefits have not yet been paid. The rule does not extend the time for filing a claim where benefits have been paid. Orr v. Lewis Cent. School Dist., 298 N.W.2d 256 (Iowa 1980). Under the rule, the time during which a proceeding may be commenced does not begin to run until the claimant, as a reasonable person, should recognize the nature, seriousness and probable compensable character of the condition. The reasonableness of claimant's conduct is to be judged in light of the claimant's education and intelligence. Claimant must know enough about the condition to realize that it is both serious and work connected. Orr, 298 N.W.2d at 261; Robinson v. Dep't of Transp., 296 N.W.2d 809 (Iowa 1980). Failure to timely commence an action under the limitations statute is an affirmative defense which defendants must prove by a preponderance of the evidence. DeLong v. Highway Comm'n, 229 Iowa 700, 295 N.W. 91 (1940). Recently, the Iowa Supreme Court addressed the "statute of limitations" in the workers' compensation arena. In the case of Oscar Mayer Foods v. Tasler, 483 N.W.2d 824 (Iowa 1992), the Iowa Supreme Court held: The date of injury is an important ls are province of administrative tribunal, not the court's.). We thus reject an interpretation of the term "manifestation" that will always require an employee suffering from a repetitive-trauma injury to fix, as the date of accident, the time at which the employee first became aware of the physical condition, presumably through medical consultation, since by their very nature, repetitive-trauma injuries often will take years to develop to the point where they will constitute a compensable workers' compensation injury. See Oscar Mayer & Co. v. Industrial Comm'n, 531 N.E.2d 174, 176 (Ill. App. Ct. 1988). Instead, the Commissioner is entitled to consider a multitude of factors such as absence from work because of inability to perform, the point at which medical care is received, or others, none of which is necessarily dispositive. Thus, for purposes of the cumulative injury rule, the Commissioner's determination regarding the date on which the injury manifests itself, so long as supported by substantial evidence as is required by Iowa Code section 17A.19(8)(f), will not be disturbed on appeal. Our review of the record leads us to conclude that there is substantial support for the Commissioner's determination that the various traumas Tasler sustained in the course of her five and a half years with Oscar Mayer combined to manifest themselves as a single compensable injury on February 3, 1989. Accordingly, the date of injury established by the Commissioner was proper. As in Tasler, supra, there is substantial evidence in the record to determine that the various traumas which claimant sustained during the duration of his employment were combined to manifest themselves as a single compensable injury on April 24, 1989. That date was the date on which claimant, due to medical disqualification, was transferred from pulling ribs to operating the Cry-O-Vac machine. Claimant was no longer physically capable of performing the job as a rib puller. Claimant, as a consequence, has complied with section 85.26. The second issue before the undersigned deals with the nature and extent of any permanent partial disability benefits. The parties have stipulated that claimant had sustained a work injury. The physicians at Iowa Lakes Orthopedics Clinic treated claimant. They examined and treated him on numerous occasions. Their exams revealed few objective findings. Most of claimant's complaints were subjective in nature. The functional capacity evaluation demonstrated that claimant had movements within the normal range. The testing physical therapist opined that claimant was capable of performing in the "heavy physical demand Page 9 level of work." Claimant had "full active range of motion of both shoulders." (Ex. C) He was advised to engage in activities as tolerated. Any possible restrictions were based on subjective complaints only. The opinions of treating medical practitioners were given much weight. It is acknowledged that Dr. Wolbrink rated claimant as having a 12 percent functional impairment of the right upper extremity. However, the opinion of Dr. Wolbrink is not accorded as much weight as are the opinions of the orthopedic surgeons at the Great Lakes Orthopedics Clinic. The treating physicians, including Dr. Donohue, had ample opportunities to examine and treat claimant. Dr. Wolbrink, on the other hand, was retained only to provide an evaluation for purposes of litigation. He examined claimant on one occasion. That occasion occurred more than one year after claimant had voluntarily terminated his employment with defendant-employer. The opinion of Dr. Wolbrink is not given much weight. Consequently, it is the determination of the undersigned that claimant has not sustained any permanent disability as a result of his work injury/injuries on April 24, 1989. Claimant takes nothing further from files numbered 979230, 979231 and 979232. ORDER THEREFORE, IT IS ORDERED: Claimant takes nothing further from these proceedings. Each party shall pay the party's costs pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of November, 1992. ________________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Steve Hamilton Attorney at Law 606 Ontario Street P O Box 188 Storm Lake, Iowa 50588 Mr. John M. Comer Attorney at Law P O Box 515 Dept #41 Dakota City, Nebraska 68731 5-1800; 2400 Filed November 19, 1992 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ ABBY D. WARD, Claimant, File Nos. 929589/979230 979231/979232 vs. A R B I T R A T I O N IBP, INC., D E C I S I O N Employer, Self-Insured, Defendant. ___________________________________________________________ 5-1800 Claimant was unable to prove that he had sustained any permanent partial disabilities because of repetitive motions in the work place. Claimant had no objective evidence to support his claim for benefits. 2400 The deputy industrial commissioner held that for purposes of determining an injury date, the injury was held to have manifested itself on the date claimant was medically disqualified from boning ribs and was transferred to operating a Cry-O-Vac machine. The rationale of Oscar Mayer Foods v. Tasler was followed. As a consequence, claimant timely filed his petitions pursuant to section 85.26. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ : TIMOTHY ALLEN CORLEY, : : Claimant, : : vs. : : File No. 929739 DEALERS WAREHOUSE COMPANY, : : A P P E A L Employer, : : D E C I S I O N and : : KEMPER INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : _________________________________________________________________ This matter has been remanded to the industrial commissioner from the district court. In an arbitration decision filed July 15, 1991 claimant was awarded temporary total disability benefits and reasonable and necessary medical benefits. At that time the issue of entitlement to permanent disability had been bifurcated. The employer and its insurance carrier (hereinafter defendants) filed a notice of appeal. It was ruled that the attempted appeal was interlocutory and defendants sought judicial review of that ruling. The district court in its decision on July 22, 1992 overruled the agency's ruling dismissing the appeal as interlocutory and remanded to the industrial commissioner for a determination on the merits of defendants' appeal. Subsequent to the remand by the district court a hearing was held and an arbitration decision filed on the bifurcated issue of entitlement to permanent disability benefits. In an arbitration decision filed December 30, 1993, claimant was awarded fifty weeks of permanent partial disability commencing June 1, 1991. That decision indicated that healing period would end May 31, 1991. That decision has not been appealed. Because the arbitration decision filed December 30, 1993 specified claimant's entitlement to permanent disability benefits and has become final, it is unclear whether a remand decision is appropriate. However, because the district court has directed that the merits of defendants' appeal be considered, this decision will resolve the district court's directive. The record, including the transcript of the hearing before the deputy on April 15, 1991 and all exhibits admitted into the record at that hearing, has been reviewed de novo on remand. The decision of the deputy filed July 15, 1991 is affirmed and is Page 2 adopted as the remand decision in this case with the following additional comments: In a subsequent hearing and proposed decision which has now become final it was determined that claimant had sustained a permanent disability. Therefore, the characterization of weekly indemnity benefits in this matter should ultimately be that those weekly benefits are healing period benefits. However, at the time of the hearing and the proposed decision which is the subject of this remand decision the award of weekly indemnity benefits was characterized as temporary total disability benefits. As determined in the subsequent proceeding the temporary weekly indemnity benefits should terminate on May 31, 1991 when claimant returned to work. Defendants shall pay the costs of this matter including transcription of the hearing and shall reimburse claimant for the filing fee if previously paid by claimant. Signed and filed this ____ day of August, 1994. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Delbert C. Binford Attorney at Law 1200 Hub Tower 699 Walnut St. Des Moines, Iowa 50309 Mr. Paul C. Thune Attorney at Law P.O. Box 9130 Des Moines, Iowa 50306-9130 5-1801 Filed August 22, 1994 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ : TIMOTHY ALLEN CORLEY, : : Claimant, : : vs. : : File No. 929739 DEALERS WAREHOUSE COMPANY, : : A P P E A L Employer, : : D E C I S I O N and : : KEMPER INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : _________________________________________________________________ 5-1801 Claimant sustained his burden of proof that his injury arose out of and in the course of his employment. Claimant was awarded temporary total disability benefits. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ TIMOTHY ALLEN CORLEY, Claimant, vs. File No. 929739 DEALERS WAREHOUSE COMPANY, A R B I T R A T I O N Employer, D E C I S I O N and AMERICAN MANUFACTURERS MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. ___________________________________________________________ INTRODUCTION This is a proceeding in arbitration filed by Timothy Allen Corley, claimant, against Dealers Warehouse Company, employer, and American Manufacturers Mutual Insurance Company, insurance carrier, defendants for benefits as the result of an injury that occurred on September 12, 1989. A hearing was held in Des Moines, Iowa, on May 6, 1993, and the case was fully submitted at the time of the hearing. Claimant was represented by Delbert C. Binford. Defendants were represented by Joe M. Barron. The record consists of the testimony of Timothy A. Corley, Claimant. Claimant's exhibits received into evidence for this hearing are exhibit K, pages 71 to 80; exhibit L, pages 87 and 88; exhibit M, pages 89 to 112; exhibit N, pages 113 and 114; exhibit O, page 115; exhibit P, page 116; exhibit Q, page 117 to 154; exhibit R, pages 155 to 158; exhibit T, the district court proceedings in the industrial commissioner's file; exhibit U, pages 1 to 19 (Transcript pages 9 to 18). Claimant's proposed exhibit S, was excluded because it was not timely served and in the opinion of the deputy constituted unfair surprise (Tran. pp. 10-14). Defendants' exhibits received into evidence are as follows: exhibit 1, 2, 4, and 5; exhibit D, pages 9 to 25; exhibit E, pages 32 and 33; exhibit G, page 39; exhibit H, pages 40, 45, and 48 to 50; exhibit I, pages 51 and 52; exhibit J, pages 53 and 54; and the testimony of Gerold Young, Gary Balch, Timothy Kuhn, and Lloyd Ramey, which appears in the transcript of the first hearing on pages 77 through 154 (Tran. pp. 6 to 9). The deputy ordered a transcript of the hearing. PRELIMINARY MATTER A previous hearing took place on April 15, 1991. A Page 2 deputy industrial commissioner filed a decision on July 15, 1991, which determined (1) that claimant sustained an injury on September 12, 1989, which arose out of and in the course of employment with employer, (2) that the injury was the cause of temporary disability, (3) that claimant was entitled to a running award of temporary disability benefits and (4) that claimant was entitled to medical benefits. Official Notice is taken of the prior decision of July 15, 1991 and the transcript of that hearing (Tran. p. 8). Iowa Administrative Procedure Act Rule 17A.14(4). ISSUES The parties submitted the following issues to be determined as a result of this second hearing. Whether the injury was the cause of permanent disability; Whether claimant is entitled to permanent disability benefits, and if so, the extent of benefits to which he is entitled; and Whether claimant is entitled to penalty benefits. In the event of an award of permanent disability benefits it will be necessary to determine the commencement date of benefits because the prior deputy made a running award of temporary disability benefits, and in order to determine the commencement date of permanent disability benefits, it will be necessary to determine when the temporary disability benefits ended. FINDINGS OF FACT causal connection/entitlement/permanent disability It is determined that the injury of September 12, 1989 (1) was the cause of permanent disability, (2) that claimant has sustained a 10 percent industrial disability to the body as a whole, and (3) that claimant is entitled to 50 weeks of permanent partial disability benefits. Claimant was injured while loading downspout onto a fork lift with another employee. Claimant testified, "... in the process of putting the box onto the forks and the fork lift, I felt a sharp pain in the lower back." (Tran. p. 37). Claimant was initially seen by Roger H. Brown, D.C., on September 14, 1989 (Ex. B, p. 2). Dr. Brown diagnosed a lumbosacral sprain/strain (Ex. B, p. 7A). Claimant also saw Dr. Brown again shortly before this hearing on March 18, 1993, for back symptoms that recurred on March 15, 1993, when he felt a pop in his back while getting out of bed. In a report dated May 3, 1993, Dr. Brown found that claimant suffered from "... acute lumbar facet syndrome complicated by degenerative disc disease and Page 3 a lumbosacral transitional vertebra." (Ex. L, p. 88). Dr. Brown added that exacerbations could occur on the slightest provocation. Dr. Brown provides causal connection to permanent disability from this injury of September 12, 1989, with the following words: "The previous injury is significant because the tissues that were injured heal with a scar tissue that is brittle and inelastic, thus is much more susceptible to re-injury." (Ex. L, p. 88). Thus, Dr. Brown concluded that the injury was the cause of a permanent susceptibility or predisposition to re-injury in the future. A susceptibility or predisposition to re-injury or future injury is determined to be a permanent disability. However, Dr. Brown did not provide a permanent functional or physical impairment rating for this injury. Claimant went to see Robert Foley, M.D., on October 11, 1989. Dr. Foley's x-rays were normal. He also reported that claimant refused to receive physical therapy treatments. Dr. Foley referred claimant to William R. Boulden, M.D., an orthopedic surgeon. Dr. Foley did not indicate that there would be any permanent impairment or disability, however, Dr. Foley only saw claimant in the early phases of treatment (Ex. C, p. 8). Claimant saw Dr. Boulden on October 19, 1989. The doctor diagnosed myofascial pain with tightness. He recommended stabilization exercises and work hardening (Ex. D, p. 9). The work hardening was terminated prematurely by the physical therapist on December 21, 1989, for the reason that claimant failed to fully cooperate with his own rehabilitation. Dr. Boulden then placed claimant in a light duty work classification. He said that claimant could not perform his former job because claimant had exerted submaximal effort and exhibited a lack of motivation throughout the work hardening program. Therefore he was not physically reconditioned to perform his former job. Dr. Boulden said that he could not in good conscience send claimant back to his old job because of claimant's lack of physical rehabilitation which was due to claimant's lack of motivation and submaximal effort to become rehabilitated (Ex. D, pp. 12 & 13). Thomas W. Bower, P.T., recommended that the physical therapy be terminated on December 22, 1989, because (1) claimant's perceived pain complaints were inconsistent with most orthopedic problems and (2) because claimant made no progress or improvement during the entire course of the program because of his poor motivation and submaximal effort (Ex. D, pp. 13-15), based on the physical capacity examination that Mr. Bower conducted on November 17, 1989 (Ex. H, pp. 40, 41-44). Dr. Boulden determined that claimant "... would have improved better than he did, if he would have worked harder at the program," based on most other cases (Ex. D, p. 23). Although the restrictions of Dr. Boulden at the time of Page 4 the previous hearing would justify an award of running temporary disability benefits at that time, subsequent evidence at the second hearing shows (1) that they were not intended to be permanent, (2) that they were not renewed after a subsequent extensive physical capacity examination and (3) that claimant performed work after the first hearing and prior to the second hearing that demonstrated that these restrictions are no longer necessary. These restrictions were only intended to last until claimant regained physical rehabilitation. There was no permanent impairment rating at the time of the first hearing. Therefore, the first deputy could not use maximum medical improvement as a standard to terminate temporary disability. Iowa Code section 85.34(1). Claimant was temporarily totally disabled at that time and had not returned to work and from the evidence available at that time, it could not be said that he could return to substantially similar employment. Iowa Code section 85.33(1). At the time of this hearing the fact that claimant was foreclosed from his former employment was not proven to be caused by a lack of proper medical treatment on the part of defendants, but rather it was because of claimant's own lack of motivation and his own submaximal effort to achieve rehabilitation. Claimant should not be allowed to parlay his industrial disability into a greater award because of his own failure to cooperate with the medical treatment that was offered to achieve the purpose of the fullest rehabilitation possible. Claimant should not be allowed to purposely obstruct his own recovery and obstruct a determination of what his recovery might have been had he exerted a reasonable effort, and at the same time profit from an award of increased industrial disability based on claimant's obstruction of his recovery and the obstruction of the ability of an independent observer to determine what it might have been if claimant had exerted a reasonable effort (Ex. H, p. 48). Dr. Boulden and Mr. Bower reviewed a video of claimant carrying large garbage containers down a slope, bending over at the waist and picking something up, getting in and out of a vehicle without significant difficulty, running up two stairs at a time and extending his leg in the air to step over a barrier. They found these activities inconsistent with claimant's pain complaints but they were unable to change his employment classification from sedentary because they were unable to measure or quantify what they viewed in the video (Ex. D, pp. 16 & 17). Dr. Boulden and Mr. Bower did find, "There is no question, that all aspects of this case have shown some questionable credibility of this individual." (Ex. D, p. 17; Ex. 4). Exhibit 4 is a video taken on various dates --- January 14, 1990, January 15, 1990, January 31, 1990 and February 12, 1990. It shows the activities of claimant as described by Dr. Boulden and Physical Therapist Bower. Exhibit 5 is another video taken on May 7, 1990 and May 8, 1990, showing Page 5 claimant carrying a child approximately two years old. To a layman it would not appear that claimant's ability to lift, carry, run or jump was significantly impaired. Dr. Boulden ordered an MRI of the lumbar spine on March 13, 1990. This film indicated degenerative disc disease at the level of L4-5, with no evidence of protrusion or herniation. Disc space height was well maintained. The thecal sac maintained normal morphalogy. There was no evidence of formaminal stenosis. Lumbar alignment was within normal alignment. The remaining discs demonstrated no disc degeneration or herniation (Ex. D, pp. 32 & 33). On April 18, 1990, Dr. Boulden, as the primary treating physician, (Tran. pp. 21 & 38) supplies causal connection between claimant's work and the injury as well as the injury and claimant's disability in the following statements. "We feel that Mr. Corley's low back condition is related to the injury which, according to his history, occurred starting [September] 12, 1989. ... In conclusion, I feel that Mr. Corley's disc problems have been exacerbated by his work-related injury and in fact, may have been caused by it." (Ex. D, pp. 18 & 19). Claimant did not see Dr. Boulden between June 12, 1990 and August 22, 1991. However, during that period of time he wrote to defendants' counsel in which he stated that he recommended surgery in the event that claimant's pain progressed to the point that he could no longer tolerate it and if claimant was willing to assume the risks of surgery (Ex. D, pp. 26, 28-30). On August 22, 1991, Dr. Boulden noted that claimant had returned to work and that he recommended against surgery unless claimant's symptoms would dictate it (Ex. N, p. 114.5). Claimant was examined by Daniel J. McGuire, M.D., an orthopedic surgeon, who reported on November 28, 1990. Dr. McGuire was critical of claimant's work record, his education, his educational effort, and claimant's cooperation with the medical treatment that had been previously offered in this case. Dr. McGuire characterized claimant as "belligerent" (Ex. I, p. 51). Dr. McGuire stated, "He refused to bring his diagnostic studies to the office today, on the advice of his lawyer. Again, another example of his incredible belligerence in trying to help take care of himself. It is obvious that this patient has no desire to help us take care of him." (Ex. I, p. 51). Dr. McGuire did not say that claimant's complaints were or were not caused by the injury of September 12, 1989, but rather he concluded, "IMPRESSION: Low back pain, etiology unknown." (Ex. I, p. 52). Dr. McGuire found claimant's denial of prior back problems inconsistent with his medical records. The doctor did not believe surgery was indicated for this injury. He added, Page 6 "Also with his litigious history, I am sure he would find problems with his surgeon and proceed from there. I apologize that I am so brutely (sic) honest, but we have to be realistic about this gentleman. He has shown no real significant work history for a 24-year-old gentleman. He has no educational skills to be able to proceed in a different field. He has shown no effort at trying to help himself and improve his life style. ... I have no desire to assume the care of this gentleman. I have been asked to render an opinion. I think it would be a waste of my time to assume the care of this patient since he has demonstrated no previous history of desire to get better (Ex. I, p. 52). Dr. McGuire did not give a professional medical opinion as to whether claimant had or had not sustained a physical or functional impairment based upon the Guides to Evaluation of Permanent Impairment published by the American Medical Association, the Orthopedic Surgeons Guide, or any other rating criteria. However, the disability evaluation of Dr. McGuire is as follows: "DISABILITY: Zero (0). From my standpoint he can return to a light duty job and with progressive conditioning, hopefully be able to return to his normal duty." (Ex. I, p. 52). Thus, not only the treating orthopedic surgeon, Dr. Boulden, but also an evaluating orthopedic surgeon for defendants, Dr. McGuire, were hopeful and had expectations that claimant could resume normal work if he cooperated with his medical rehabilitation program. However, both Dr. Boulden and Dr. McGuire were unable to state that claimant could or could not resume his normal duties because claimant obstructed a determination on this point by refusing to seriously cooperate with the rehabilitation that was offered. Because of this it is impossible to determine whether he is in fact foreclosed from his former employment or not. Schofield v. Iowa Beef Processors, Inc., II Iowa Industrial Commissioner Report 334, (Appeal Decn. 1984). Thus, claimant has deprived himself of the necessary proof that he is foreclosed from his former employment or employments. Michael v. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218, 220 (App. Dec. January 30, 1979); Rohrberg v. Griffin Pipe Products Co., I Iowa Industrial Commissioner Report 282 (Appeal Decn. 1984). On November 23, 1992, claimant was again examined by Physical Therapist Bower. Mr. Bower concluded his report as follows: "Dr. Boulden has concluded that the injuries that occurred at work were indeed certainly the primary causative factor in this patient's overall complaints. Therefore, with that conclusion, we feel this patient has sustained an overall 5% impairment to the body as a whole." (Ex. N, pp. 113 & 114). This letter which is addressed to defendants' attorney is signed by both Thomas W. Bower, P.T., and Page 7 William R. Boulden, M.D.. Thus, both the physical therapist chosen by defendants and the treating orthopedic surgeon selected by defendants clearly establish that the injury of September 12, 1989, was the cause of a 5 percent impairment to the body as a whole (Ex. N, pp. 113 & 114). Claimant was evaluated still another time by Physical Therapist Bower on February 3, 1993, who conducted an extensive and intensive functional capacity examination on that date (Ex. M, pp. 93-113). Physical Therapist Bower repeated his earlier statements concerning causation and impairment but he indicated that in view of the fact that claimant had degenerative disc disease that a 5 percent impairment rating was generous. Mr. Bower stated, "... An impairment rating was rendered on the 23rd of November of 1992, giving Mr. Corley a 5% impairment to the body as a whole. Even today, I feel this was likely somewhat generous inasmuch as the degenerative changes noted through MRI undoubtedly were preexisting and were nothing more than aggravated by the incidents occurring in September." (Ex. M, p. 89). Mr. Bower continued to find that claimant's perceived complaints of pain did not correlate with common clinical tests and measurements for legitimate pain. He gives several detailed examples from his testing (Ex. M, pp. 90-92). Mr. Bower concluded, "It, therefore, is the conclusion that there is indeed some symptom exaggeration appearing to exist with this patient." (Ex. M, p. 90). In summary, then, Dr. Brown found that some permanent impairment caused by this injury by way of increased susceptibility and predisposition to re-injury. Dr. Boulden and Physical Therapist Bower found that there was a 5 percent permanent impairment to the body as a whole based upon an aggravation of claimant's previously existing degenerative disc condition at L4-5. Dr. McGuire was unable to determine the etiology of claimant's complaints of pain and failed to give a permanent impairment rating of any kind based upon the factors use in the AMA Guides or any other criteria for permanent impairment ratings. Dr. McGuire did say that in his opinion claimant had zero (0) disability. Thus, the opinions of Dr. Brown and Dr. Boulden and Physical Therapist Bower are preferred over the absence of an opinion on causal connection and permanent functional or physical impairment on the part of Dr. McGuire. Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985). Dr. McGuire's opinion of zero disability is interpreted to mean that he also believed that claimant also had no physical or functional impairment. Other evidence of industrial disability is considered as follows. Claimant was 22 years old at the time of the injury and 26 years old at the time of this hearing. Claimant's young age tends to reduce his industrial disability for the reason that claimant had not yet reached the peak of his lifetime earning capacity and he has several years in which to Page 8 develop other career avenues which would enhance his earning capacity. Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report of the Industrial Commissioner 34 (Appeal Decision 1979); Walton v. B & H Tank Corp., II Iowa Industrial Commissioner Report 426 (1981); McCoy v. Donaldson Company, Inc., file numbers 782670 & 805200 (App. Decn. April 28, 1989). Claimant dropped out of high school in the second or junior year and had not as yet obtained a GED (Tran. p. 40). The absence of an education tends to increase a person's industrial disability, however, at his young age claimant is capable of obtaining a GED as well as other academic and on-the-job training. Conrad v. Marquette School, Inc., IV Iowa Industrial Commissioner Report 74, 89 (1984). Claimant's past employments include (1) assistant manager for fast food restaurants, (2) roofing laborer and (3) installer of chain link fences and gates (Tran. p. 41). Therefore, claimant has demonstrated his ability to learn both management and laboring skills. It was not demonstrated by any of the medical evidence or nonmedical evidence that claimant was actually foreclosed from performing any of these past employments. Therefore, it was not demonstrated that claimant is foreclosed from returning to any of these former employments and earning the current rate which they are paying at this time. Michael v. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218, 220 (App. Decn. January 30, 1979); Rohrberg v. Griffin Pipe Products Co., I Iowa Industrial Commissioner Report 282 (1984). Claimant testified that he was earning $6.75 per hour with employer at the time of this injury and at the time of the hearing he was earning $6 per hour as a furniture repairman stripping, sanding, regluing and refinishing furniture (Tran. p. 34). This constitutes an 11 percent actual loss of earnings. Likewise, claimant's income tax returns for the first nine and one-half months in 1989 (the year of the injury) (Ex. P, pp. 139-147) show that he earned less in 1992 (Ex. P, pp. 120-126), when the fact that claimant did not work in the last two and one-half months of 1989 is taken into account. This is also demonstrated by the projection of income prepared by claimant's attorney (Ex. O, pp. 115 & 116). At the same time, claimant's loss of actual earnings, which creates a presumption of loss of earnings capacity, must be offset by the fact that claimant did not cooperate with his physical rehabilitation and did not make a maximal effort to be physically rehabilitated. This forced claimant's physician, Dr. Boulden, in conscience, to restrict claimant to light duty work. Thus, it is not possible to accurately assess how much of claimant's loss of actual earnings and loss of possible earning capacity is attributable to his own failure to cooperate with the medical care that was offered and how much is attributable to this injury. Claimant's failure to cooperate with the medical care offered and the rehabilitation program reduces his industrial disability. Page 9 Claimant testified that his search for other or better employment was not successful (Tran. pp. 40 & 42). However, it must be considered that claimant only applied for work at three different prospective employers which in turn limited his ability to find employment. Claimant's physical abilities do not appear to be severely limited. Claimant testified that he has been able to play basketball and football of a casual nature with relatives and friends (Tran. p. 42). He also performs isometric exercises (Tran. p. 43). Based on claimant's testimony he is performing work in the medium and heavy category even though at one time he was restricted by Dr. Boulden to light duty work. In his current employment as a furniture repairman claimant strips, sands, reglues and refinishes furniture (Tran. p. 34). Most of his work is at waist level. He has performed this work for approximately two years from May of 1991 to May of 1993 (Tran. p. 34). At one point he testified that he lifts 20 pounds from floor to waist and about 40 pounds from waist to chest (Tran. p. 35). He also stated that sometimes he is required to lift as much as 75 to 100 pounds with the help of another person (Tran. p. 50). He said that once in a great while he lifts over 50 pounds if it is needed (Tran. p. 51). Light duty work is 20 pounds or less. Medium work is between approximately 20 pounds and 50 pounds. Heavy work is lifting more than 50 pounds. Thus, it appears that claimant has at least on occasion, performed both medium and heavy lifting in his current job which exceeds his claimed weight restriction of only 20 pounds. At the same time, claimant testified at the hearing that during the functional capacity examination of Physical Therapist Bower it caused him immediate problems with his low back, buttocks and legs, on the right more than the left, when he was required to lift the boxes used in this examination (Tran. pp. 44 & 45). Bower's reports indicate that when claimant got to a certain point he simply quit trying. By comparison, claimant's job at the time of the injury for employer involved operating a forklift (tow motor) and manually lifting between 50 and 95 pounds at times (Tran. pp. 47 & 48). Thus, it would appear that the lifting requirements of claimant's job for employer, and claimant's job with his current employer, are not widely different. Claimant acknowledged that on one of his applications for employment which is dated October 20, 1992, there is a statement just above his signature which instructed him to describe any position or types of positions for which he should not be considered, or job duties which he could not perform because of physical, mental or medical disability. Claimant acknowledged that he wrote "none" in response to this entry (Tran. p. 55). Claimant explained that the job he was applying for was a delivery driver position Page 10 delivering bearing parts and he assumed that it would not include heavy work (Tran. p. 62). Claimant testified that he was not taking medications at the time of the hearing (Tran. p. 47). He further testified that Dr. Boulden's physician's assistant recommended isometric exercises and Dr. Brown recommended lying down (Tran. pp. 48 & 49). Claimant further testified that his pain has continued but that he is not contemplating surgery (Tran. pp. 46 & 47). The restrictions imposed by Dr. Boulden on December 4, 1990 of no repetitive bending, twisting and lifting with his back and no prolonged sitting and standing are considered to be temporary restrictions, pending the full or complete physical rehabilitation of claimant, which are no longer in affect at the time of the hearing on May 6, 1993. There is no indication that they were permanent restrictions. They were not mentioned by Mr. Bower in claimant's final physical capacity examination. Furthermore, neither (1) claimant's job for employer or (2) his current employer, required bending, twisting, or lifting that could be described as repetitive in nature. According to claimant's testimony these functions were only occasional. Nor is there any evidence that claimant has performed any prolonged standing or sitting in either his employment for this employer or his current employment. The medical records introduced by defendants show that claimant was involved in an automobile accident on May 28, 1986 and another automobile accident on November 28, 1987. Claimant acknowledged this was true (Tran. pp. 56 & 57). Claimant explained that he had not missed any work from employer prior to this injury due to back problems and that at the time of the injury he was able to perform all the functions required by his job for employer (Tran. p. 63). He denied having any back problems immediately prior to or at the time of this injury (Tran. p. 63). He denied and there is no evidence that he was seeking medical treatment for any back problems at the time of this injury (Tran. p. 64; Defts' exhibits 1 & 2). However, these same medical records show that claimant did receive extensive treatment with a local orthopedic surgeon and also with the department of neurology at The University of Iowa Hospitals and Clinics (Clmt's Exs. 1 & 2). Lloyd Ramey, Timothy Kuhn, and Gary Balch testified that they had witnessed claimant perform strenuous work of substantial lifting without any difficulty on one or more occasions. Wherefore, taking into consideration (1) that claimant's injury was not a severely traumatic injury but rather was described as a sharp pain in his back while loading downspout, (2) that the physical therapist and doctor who determined that claimant had a permanent impairment of 5 percent added that this determination was generous, (3) the fact that claimant was basically treated Page 11 with conservative measures of medication, recommended physical therapy, and work hardening and no surgery was required, but that this injury has caused a susceptibility to future injury, (4) that claimant's plain x-rays were normal, (5) that claimant's MRI disclosed a preexisting degenerative disc disease at L4-5 which contributed to claimant's disability in this case, (6) that claimant is not permanently restricted from any particular kind of work at this time and can perform his work with his current employer, (7) considering that claimant's restriction by Dr. Boulden to light duty work was caused by his own failure to cooperate with the medical rehabilitation that was offered and make a sincere, reasonable effort to fully accomplish everything that the program offered, (8) considering that claimant is physically active in his personal life and his current employment and that he is taking no medications and not seeking any continued medical treatment, (9) considering that claimant has not made an extensive effort to find different or better employment, (10) based on claimant's age of 22 at the time of the injury and 26 at the time of the hearing, (11) claimant's education of only 11 years in high school and no GED, (12) considering claimant's past employments and his adaptability to perform various jobs of either a physical or managerial level, (13) considering that claimant has sustained an 11 percent actual loss of earnings, (14) considering all the evidence introduced in this case, (15) considering all of the factors to determine industrial disability, Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 State of Iowa Industrial Commissioner Decisions 654, 658 (App. Decn. February 28, 1985); Christensen v. Hagen, Inc., vol. I, no. 3, State of Iowa Industrial Commissioner Decisions 529 (App. Decn. March 26, 1985); and applying agency expertise [Iowa Administrative Procedure Act 17A.14(i) it is determined that claimant has sustained a 10 percent industrial disability to the body as a whole which was caused by the injury of September 12, 1989 and that claimant is entitled to 50 weeks of permanent partial disability benefits. termination of temporary disability-commencement of permanent disability The previous deputy determined that claimant was entitled to a running award of temporary disability benefits commencing on January 4, 1990. These temporary disability benefits can now be characterized as healing period benefits for the reason that it has been determined that claimant has sustained a permanent injury. Iowa Code section 85.34(1). Permanent disability begins at the end of healing period. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986). Iowa Code section 85.34(1). After the previous hearing which took place on April 15, 1991, claimant testified that he returned to work on June 1, 1991, with the current employer on a full-time basis (Tran. pp. 44 & 45). Thus, it is determined that healing period should end when claimant returned to work which was Page 12 employment substantially similar to the employment in which the employee was engaged at the time of the injury. Iowa Code section 85.34(1). Thus, healing period should terminate on May 31, 1991 and permanent partial disability benefits should commence on June 1, 1991. PENALTY BENEFITS It is determined that claimant is not entitled to penalty benefits. Where there is a legitimate dispute on either causation or the extent of entitlement defendants are not liable for penalty benefits. Juste v. HyGrade Food Products Corp., IV Iowa Industrial Commissioner Reports, 190 (App. Dec. 1984). In this case it was fairly debatable whether the injury caused any impairment and if so how much. Dr. Boulden and Physical Therapist Bower questioned whether claimant was permanently disabled by finding that his pain complaints were not consistent with normal medical knowledge and experience and that claimant had not exhibited a reasonable effort to rehabilitate himself. Dr. McGuire was very critical of claimant on various points and concluded that he had no disability from this injury. Dolan v. Aid Insurance Company, 431 N.W.2d 790 (Iowa 1989); Dodd v. Oscar Meyer Foods Corp., file number 724378 (1989); Collins v. Hawkeye Moving & Storage, file number 873651 (Appealed and settled). Likewise, even though claimant denied he was having any problems with his low back on account of the two automobile accidents, defense counsel showed that this testimony was inconsistent with prior testimony of claimant (Tran. pp. 60-65). Claimant's counsel admitted there were inconsistencies in his testimony (Tran. p. 65). CONCLUSIONS OF LAW Wherefore, based upon the foregoing and following principles of law, these conclusions of law are made. That claimant sustained the burden of proof by a preponderance of the evidence that the injury of September 12, 1989 was the cause of permanent disability. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945). That claimant has sustained the burden of proof by a preponderance of the evidence that he sustained a 10 percent industrial disability to the body as a whole and is entitled to 50 weeks of permanent partial disability benefits. Iowa Code section 85.34(2)(u). That claimant sustained the burden of proof by preponderance of the evidence that his healing period ended on May 31, 1991 and that his permanent partial disability benefits should commence on June 1, 1991. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986). Page 13 That claimant failed to sustain the burden of proof by a preponderance of the evidence that defendants delayed and failed to commence permanent partial disability benefits without reasonable or probable cause or excuse. Iowa Code section 86.13. ORDER THEREFORE, IT IS ORDERED: That defendants pay to claimant fifty (50) weeks of permanent partial disability benefits at the stipulated rate of one hundred eighty-eight and 61/100 dollars ($188.61) per week in the total amount of nine thousand four hundred and thirty and 05/100 dollars ($9,430.05) commencing on June 1, 1991. That the previous award of the previous deputy of healing period benefits for the period from January 4, 1990 through May 31, 1991 would consume the credit for the twenty-one (21) and three-sevenths (3/7) weeks of workers' compensation benefits paid to claimant prior to hearing and cannot be used as a credit against this award. That these benefits are to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That the costs of this action, including the cost of the attendance of the court reporter at hearing and the cost of the transcript, are charged to defendants pursuant to rule 343 IAC 4.33 and Iowa Code sections 86.19(1) and 86.40. That defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of December, 1993. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Delbert C. Binford Attorney at Law 1200 Hub Tower 699 Walnut Street Des Moines, IA 50309 Mr. Joseph M. Barron Mr. Paul C. Thune Attorneys at Law Des Moines Bldg., Suite 700 405 Sixth Ave. Page 14 P.O. Box 9130 Des Moines, IA 50306-9130 51401, 51402.40, 51803, 1802 4000.2 Filed December 30, 1993 Walter R. McManus BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ TIMOTHY ALLEN CORLEY, Claimant, vs. File No. 929739 DEALERS WAREHOUSE COMPANY, A R B I T R A T I O N Employer, D E C I S I O N and AMERICAN MANUFACTURERS MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. ___________________________________________________________ 51401, 51402.40 The injury was found to be the cause of permanent disability on the basis of the statement of two treating physicians. Their testimony was preferred over another defendant's evaluator who simply said etiology unknown. 51803 It was determined that claimant sustained a 10 percent industrial disability. Impairment rating was 5 percent. Loss of actual earnings was 11 percent. Claimant failed to cooperate with work hardening. The doctor then restricted him to light duty because in good conscience he could not return him to his old job without being rehabilitated for it. It was determined that claimant by his failure to make a good faith effort at rehabilitation, and because his pain symptoms did not follow normally accepted medical experience, made it impossible to accurately judge how disabled he was actually. Therefore, it could not be determined that he was foreclosed from his old employment and he could not receive increased industrial disability for this factor. Additionally, in his new job claimant was performing medium and heavy work when he chose to do so. 1892 A running award for temporary disability benefits from a prior hearing was terminated and permanent partial Page 2 benefits were determined to begin when claimant took a full-time job in substantially similar employment approximately a month after his first hearing. 4000.2 No penalty benefits. Both the primary treating physician, and a defendant's evaluating physician, were very critical of claimant's motivation to cooperate with medical treatment. It was determined that it was fairly debatable whether claimant had sustained a permanent injury. Furthermore, the only impairment rating came very late in the course of events in this case. Likewise, claimant had been injured in two previous motor vehicle accidents that involved litigation and defendants had legitimately questioned their liability for permanency caused by this injury. 5-1801 Filed July 15, 1991 PATRICIA J. LANTZ before the iowa industrial commissioner ____________________________________________________________ : TIMOTHY ALLEN CORLEY, : : Claimant, : : vs. : : File No. 929739 DEALERS WAREHOUSE COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : KEMPER INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1801 Claimant sustained his burden of proof that his injury arose out of and in the course of his employment. Claimant was awarded temporary total disability benefits. Page 1 before the iowa industrial commissioner ____________________________________________________________ : MILDRED L. TUTTLE, : : Claimant, : : vs. : : File No. 929743 UNISYS CORPORATION, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : RELIANCE INSURANCE COMPANY, : : Insurance Carrier, : : and : : SECOND INJURY FUND OF IOWA, : : Defendants. ___________________________________________________________ STATEMENT OF THE CASE This case came on for hearing on March 11, 1991, at Mason City, Iowa. This is a proceeding in arbitration wherein claimant seeks compensation for permanent partial disability benefits from the Second Injury Fund Of Iowa as a result of an alleged cumulative injury of October 3, 1989. The claimant settled with defendant employer orally approximately 24 working hours earlier. The record in the proceeding consists of the testimony of claimant and Mary Eason; joint exhibits 1 through 21, 24, 25 and 26 (all these numbered exhibits initially were marked as claimant's ex hibits but the parties greed they should be joint); and defendants' exhibits A, B and C. issues The issues for resolution are: 1. Whether claimant's October 3, 1989 injury arose out of and in the course of her employment; 2. Whether claimant's alleged disability is causally connected to her October 3, 1989 injury; 3. The extent of claimant's disability and entitlement to disability benefits; 4. Whether claimant incurred an 85A occupational disease; and, 5. Who is to pay the costs, particularly as to Dr. Beck's $250 fee and whether it is reasonable and, also, Dr. Page 2 DeBartolo's $100 bill. findings of fact The undersigned deputy having heard the testimony and considered all the evidence, finds that: Claimant is a 45-year-old high school graduate who attended AIB for nine months after high school graduation. Her course at AIB involved use of business machines, but not computers. Claimant described her work history prior to beginning work with defendant corporation in August 1984. These prior jobs involved, but were not necessarily limited to, work as a clerk, secretary and receptionist. Claimant described her jobs with defendant employer as repetitive work involving putting lugs on cables and wires, prepping wire and then working with computer chips, doing labeling, etc. Claimant testified she lost no substantial amount of work prior to October 3, 1989. She said the pain in her hands was so bad she could not do her job and took off work on October 3, 1989. She indicated she first noticed her pain in September 1989 but didn't really notice it that much until she could no longer work and her right upper extremity, elbow and wrist became so bad she couldn't put parts in the machine. She said that on July 26, 1989, she slipped at work and fell onto a cart striking the left side of her back. She was off work approximately one week from this incident. Claimant said she had no upper left extremity problems prior to October 3, 1989, but did indicate she had complaints on the left. Claimant said it was the pain in her right upper extremity for which she went to the doctor who took her off work. This doctor, Kenneth B. Washburn, M.D., referred her to a hand specialist, Thomas DeBartolo, M.D., who referred her to the University of Iowa Hospitals and Clinics. Claimant contends she told the doctor and the University Hospitals and Clinics of her right and left arm problems. She said the Iowa City doctor told her she was only there for her right arm. Claimant related she has had other medical problems due to having polio as a five-year-old child. This polio affected her neck and the entire right side of her body. She said she had no effects of polio on her left side. Claimant later said the polio may have affected her left upper extremity also. Claimant's testimony was confusing in this area. Claimant is left handed. Claimant related those problems due to her polio on her right side. She had to have surgeries on her left lower extremity to let her right side catch up. Claimant indicated she went to a chiropractor when her neck would pop out so he could put it in place again. She said she never had a work problem as to her neck. She related the polio affected her work as to sitting, standing and using her arms. Page 3 Claimant was not called back to work in April 1990 or released by Dr. DeBartolo and claimant contends she has not been released to go back to work. Dr. Washburn is the only doctor who returned claimant to work April 5, 1990. Claimant related her job search. She filled out one job application but did not get the job. Claimant made application for social security benefits in March 1990 before she made her job search. In November 1990, social security determined her disabled under the Social Security Law (Joint Exhibit 21). She has made no job searches since November 1990. She contends her repetitive work at defendant employer's caused her right upper extremity pain and that prior to October 3, 1989, her polio condition only caused her to get tired. She emphasized that the new problem she was having was hanging on to things. Her hands would go to sleep on her. Prior to the summer of 1989, she had no problem gripping items and her employer never complained. Claimant said she had neck surgery in November 1990. She said this lessened pain on the right side but not the left. She indicated before her neck surgery, she never had pain in her left upper extremity. Claimant said she went to vocational rehabilitation to see if she could go back to school. She testified she was told rehabilitation would not do anything if a person is on SSI. She was never evaluated nor did she follow up since she was receiving social security benefits. Claimant has no intention of going to school. She now gives the impression she can do very little, including writing, vacuuming, doing laundry, washing dishes, etc. Claimant has no future educational or employment plans and has not worked since April 1, 1990. Claimant related a July 26, 1989 injury that affected her left hip, arm and neck. At the hearing on March 11, 1991, the claimant without objection from the Second Injury Fund asked the undersigned to dismiss file No. 925511, which involved the July 26, 1989 injury. The oral motion to dismiss was sustained. Claimant was extensively questioned as to her answers to interrogatory Nos. 5 and 6 (Defendants' Exhibit A, pp. 3-5,6 and her deposition testimony) as to why there is no mention of any permanent injury to her left upper extremity. Claimant had no credible response. Claimant again emphasized she had polio as a child that affected her right lower and upper extremities and affected her entire right side, and that she has right side hemiporesis. Claimant seems to indicate that the effects of her polio caused her to have problems sitting or standing and that her right leg turns out. When asked about Dr. Washburn's diagnosis on March 28, 1990, referring to pain only in her right arm, she said that is all he checked. She contends she mentioned the left arm but then said she only went to him for her right arm and that was her main problem. Page 4 Claimant acknowledged she saw her petition before her attorney filed it and that nothing was mentioned regarding her left side or left upper extremity. Claimant disagreed with Dr. DeBartolo's analysis of her medical problems when he said she has functional overlay. Claimant admitted that when she was released to return to work in April 1990, she knew defendant employer had a layoff policy and that there was no job at that time due to the layoff. She said she was ready to go back to work at that time. Claimant acknowledged that she has done sewing and has made quilts and rugs that hang on the wall since her injury but contends she has done very little. She couldn't recall how much or how little. Claimant said she did not make rugs after 1989 because she couldn't hang on to them. Claimant seems very uncomfortable with the questioning and her answers in this respect. She downplays this area of questioning. Then, when asked if she testified in her deposition in September 1990 that the last time she made something was in the summer of 1990, she changed her testimony and said she does very little--5 to 10 minutes at a time. The undersigned noticed claimant blushing at this time. As this line of questioning continued, claimant admitted that this type of sewing requires repetitive work but claimant said her daughter finished the rugs. Claimant's attention was called to the fact that she mentioned nothing in her deposition about the daughter helping or finishing the rugs. On further cross-examination, claimant indicated she experienced no noticeable neck problems until one month after leaving her employment but that she went to vocational rehabilitation before leaving defendant employer. She then indicated she had been demoted and incurred a decrease in pay. She contends her pain came before the demotion. The undersigned questions claimant's credibility. Mary Eason, supervisor of health and medical services for defendant employer, testified she talked to claimant regarding claimant's employment. She talked to claimant as to her work injury and first report regarding claimant's low back problems in July 1989, which resulted in claimant being off work one week. She said claimant later in the fall of 1990 came to her regarding pain in her right elbow and then right hip and right upper extremity. She emphasized claimant said nothing about a left upper extremity problem but later, on cross-examination, she was asked about her notation on September 28, 1989 as to claimant's lower left arm. She retracted her earlier comment but then later upon further questioning said she believed her report as to the left was in error because Dr. Washburn, to whom she sent the claimant, only checked the claimant's right upper extremity and if there was a left upper extremity complaint, the doctor would have examined it. Two videos were introduced into evidence and were shown. Ms. Eason testified that they were accurate Page 5 depictions of claimant's job. Claimant was recalled on rebuttal as to the videos (Def. Exs. B and C). She insisted they do not represent what her job was like. The notes of Kenneth B. Washburn, M.D., dated September 5, 1989 and ending June 15, 1990 (Jt. Ex. 3), basically refer to claimant's right arm and cervical spine and polio problem. On April 5, 1990, he made a disability determination report as follows: [T]his lady has status post-polio with moderately severe to severe atrophy and weakness of muscle groups, as mentioned above. She also has some residual tendinitis in the right upper extremity. This would result in 12 percent disability of the upper extremity due to mild decreased range of motion and changes from tendinitis. She has some limitation of motion of the right hip secondary to chronic muscle imbalance and probably wear and tear in the low back/rt. hip area resulting in 12 percent disability of the right hip. This would result in 12 percent disability of the whole man due to lower extremity problems. In addition, she has 2 percent disability of the whole man due to neck/cervical disc disease and 5 percent disability of the whole man due to limitation of motion of the back due to problems as mentioned above. In addition, I feel she has 10 percent disability of the whole man due to her old polio with marked weakness in some of the aforementioned muscle groups. This would result in 26 percent disability of the whole man due to the aforementioned problems. (Cl. Ex. 3, p. 5) The doctor's history indicated claimant's polio primarily affected her right side but somewhat affected her left side also (Jt. Ex. 3, p. 4). On June 15, 1990, Dr. Washburn's note emphasized his disability termination report referred to above had little to do with her disability at work and was not a determination of her work-related disability, her total disability (Jt. Ex. 3, p. 6). The University of Iowa's January 24, 1990 report (Jt. Ex. 6) indicates post-polio syndrome (muscles become weaker faster with polio victims) cannot be excluded nor can cervical root tension be excluded (Jt. Ex. 6, p. 2). A report dated February 5, 1990, indicates claimant's upper right extremity weakness and tenderness is of unclear etiology, but it also refers to claimant's moderate to severe focal degenerative spondylolysis of the midcervical spine from C3-4 down to C6-7 associated with mild kyphosis. It found a normal right elbow. There is no mention as to Page 6 anything on the left side (Jt. Ex. 7). In the December 7, 1989 notes of the Mason City Clinic by Dr. DeBartolo, post-polio syndrome and functional overlay were mentioned and he thought carpal tunnel was not involved (Jt. Ex. 10, p. 2). He suggested supportive psychotherapy. The etiology was again questioned but in the doctor's notes of March 13, 1990, which referred to the fact that the neurologic evaluation of the University of Iowa had been complete, he wrote: I went through all this material with Mrs. Tuttle, lots of concern on her part because it would appear that this developmental and not work related, and I most certainly would agree with that, that I think these are problems that have been slowly increasing, and given the polio and the changes in her neck and affecting her peripheral nerve function, that these are just symptoms that have slowly increased and worsened to where she is no longer able to tolerate the repetitive tasks necessary for employment. (Jt. Ex. 10) Dr. DeBartolo, an orthopedic surgeon, in his report of February 2, 1990 (Jt. Ex. 13), leaves the undersigned to conclude that claimant is disabled primarily because of residue from her prior polio. He was concerned with post-polio syndrome and that a majority of her symptoms relate back to claimant's suffering from polio as a child. He indicated that the claimant's work activities caused her to develop a sense of pain and discomfort in her already weakened right upper extremity. The undersigned saw nothing in the medical report indicating claimant made rugs or quilts or other sewing items. The doctor additionally opined claimant's July 1989 fall had no effect whatsoever on her preexisting cervical condition and has had no effect on the arm symptoms that she is experiencing. He felt claimant's problems are based primarily on claimant having suffered polio as a child. On April 23, 1990, Kenneth B. Washburn, M.D., wrote: I certainly believe that this lady's primary problem is residual of old poliomyelitis and and [sic] this has affected her right side, including her right upper extremity. I believe that she got and continues to have a mild chronic right tennis elbow as result of her having a weak arm.... ...I do not feel that her basic underlying problem, that is the polio, has been significantly affected by her work but the other way around - that her work has been affected by her previous existing problem, that is the polio. I do believe that this lady would have had some problems in her right arm, such as the tennis elbow or painful muscles, whether or not she had worked. Page 7 (Jt. Ex. 14) Claimant was sent to John R. Walker, M.D., by claimant's attorney. Dr. Walker issued a report on June 13, 1990, which is set out on Joint Exhibit 15. A cervical myelogram on September 12, 1990, indicated vertebral body and cord/sac distortion from C3-5 possibly related to childhood polio. A radiological report on September 13, 1990 shows normal examination of claimant's left hip (Jt. Ex. 16, p. 12). Vincent C. Traynelis, M.D., from the University of Iowa, issued an October 4, 1990 report (Jt. Ex. 17). Basically, he found no causal connection or work injuries that are causing claimant's problems. It appears to the undersigned that claimant is continuing to search for doctors hoping to find one or more to counter the prior reports of doctors who have basically related claimant's problems to her polio and nonwork causes. On October 31, 1990, David W. Beck, M.D., a neurologist, examined claimant obviously at the referral of claimant's attorney to determine claimant's disability (Jt. Ex. 18). He finds some of claimant's problems not work related and finds claimant has bilateral carpal tunnel syndrome which he said is work related due to repetitious work with her hands. This appears to be the first time a bilateral carpal tunnel situation has been mentioned. On November 12, 1990, Dr. Traynelis wrote another report (Jt. Ex. 19). He said claimant was developing carpal tunnel but claimant did not mention the symptoms in her first contact with him. He feels her symptoms are unlikely to be related to her work activity. He mentioned her leisure-type hobbies, such as handicrafts could promote carpal tunnel. He said that any carpal tunnel claimant might have has not caused any disability for claimant prior to late August or early September 1990, at which point she developed symptoms. The battle herein involves the claimant and the Second Injury Fund. The employer disposed of its contest with the claimant by a settlement shortly before this case came on for hearing. Claimant has had obvious physical problems since she was five years old. The overwhelming weight of medical evidence shows claimant's right side has been substantially affected by her polio and that any October 3, 1989 injury or July 26, 1989 fall did not substantially or materially lighten up or aggravate her preexisting polio, post-polio or hemiparesis condition. A greater weight of evidence shows claimant's polio and its effect on claimant's right side went into claimant's body as a whole. Defendants contend that since there is evidence that claimant's right side and upper right extremity (polio) went into her body as a whole that this automatically eliminates the Second Injury Fund from Page 8 liability because the first and second injuries must be scheduled member permanent injuries before the Second Injury Fund is involved. As to this argument, the undersigned finds that, even though the body as a whole injury (polio) is involved, within that injury claimant lost some use of her right upper extremity. Therefore, on this argument of the Second Injury Fund alone, claimant would prevail as having a permanent loss of use of a right upper extremity scheduled member. Where is claimant's second injury? Claimant's petition indicates that claimant's second injury on October 3, 1989 was her right lower extremity. Claimant's polio (first injury) affected claimant's entire right side. Iowa Code section 85.64 provides that there must be a loss of use of another such member. Since both of claimant's upper and lower right extremities were permanently injured due to polio, it is only logical that there must be another loss of use of a different scheduled member to be able to implicate the Second Injury Fund in this litigation. For the most part, there is no mention of complaint or referral to a left upper extremity injury until Dr. Walker was contacted by claimant's attorney to do an evaluation of claimant's condition in June 1990. Claimant did not previously complain of any left upper extremity problem, at least to any extent. Claimant contends that she mentioned her left upper extremities problem to the doctors but it wasn't written down. The undersigned finds this as one of several areas of claimant's testimony that he does not find credible. Claimant had several surgeries on her left lower extremity resulting from her polio problem on the right and the need to operate on the left to help the deficiency caused by the polio on claimant's right side. The undersigned believes claimant saw a deficiency in her case, particularly as to the Second Injury Fund, and that is why late in the game there is an introduction of left upper extremity complaints. The medical records show, and claimant testified as such, that polio also affected her left side but not as much. Claimant also complained of cervical spine and back problems. The greater weight of medical testimony shows that there is no proximate causal connection to claimant's upper or lower left or right extremities or cervical problems due to any October 3, 1989 cumulative or progressive injury or any July 26, 1989 fall at work. Claimant's medical histories are completely devoid of any reference to claimant's hobby work, such as making rugs, quilts and other types of sewing which would involve repetitive hand and arm movement that could cause claimant's current problem bilaterally or substantially aggravate her post-polio condition. In her testimony, claimant downplayed her role and contends her daughter finished her sewing work. The undersigned does not believe claimant is credible in this area either. She obviously has nothing to do except socialize with friends, etc., as she testified she cannot do any work. Only one doctor referred to claimant's handicraft Page 9 activities and hobbies around the home which could promote carpal tunnel syndrome and that if she has developed this, it was at a time after August 1, 1990 (Dr. Traynelis' report of November 12, 1990, Jt. Ex. 19). It appears this is the only doctor who knew of her handicraft activities. The undersigned accepts as more reliable the medical report of those who have treated claimant over the entire or greater period of time beginning at or as close to claimant's alleged injury of October 3, 1988, as possible, and also even going back to July 26, 1989. It appears claimant's polio and post-polio condition was affecting her work and not the reverse, as stated by Dr. Washburn (Jt. Ex. 14). It appears claimant was familiar with defendant employer's layoff policy and this April 1990 layoff seems to be the most convenient time to start her disability run and conclude her inability to do any work. She has no motivation and her November 30, 1990 decision resulted from her March 19, 1990 social security disability application. This application and the ultimate decision obviously affected the claimant's motivation and desire to try to work. Social security criteria are different than the industrial disability criteria in several respects. The undersigned made numerous notations at the time of the hearing as to questions of claimant's credibility in her answers and demeanor. Claimant's answers to interrogatories only refer to her right side and nothing as to the left upper extremity. The undersigned believes it is unnecessary to go into any more detail nor anymore convincing in order to substantiate the undersigned's finding that claimant has not incurred an injury that arose out of and in the course of claimant's employment which affected her right upper extremity as plead nor to her left upper extremity as not plead. It appears claimant first introduced the left upper extremity allegations in her filings when the claimant attempted to place this in the prehearing report to which defendant Second Injury Fund objected properly and timely. The undersigned further finds claimant's complaints of impairment or claimed disability is not causally connected to an October 3, 1989 cumulative or progressive injury nor to any July 26, 1989 fall. Claimant has failed to carry her burden of proof on the issues of arising out of and in the course of employment and causal connection. The above findings make all other issues moot. Even if the undersigned had found in favor of the claimant on all the other issues, the undersigned would not have found that claimant had an occupational disease. Claimant takes nothing from these proceedings as regards to the Second Injury Fund. conclusions of law Page 10 Claimant has the burden of proving by a preponderance of the evidence that she received an injury on October 3, 1989 which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The claimant has the burden of proving by a preponderance of the evidence that the injury of October 3, 1989 is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 N.W.2d 128. Before the second injury fund is triggered three requirements must be met. First, the employee must have lost or lost the use of a hand, foot, leg or eye. Second, the employee must sustain another loss or loss of use of another member or organ through a compensable injury. Third, permanent disability must exist as to both the initial injury and second injury. See Allen v. The Second Injury Fund, State of Iowa, Thirty-Fourth Biennial Report, Iowa Industrial Commissioner 15 (1980); Ross v. Service Master-Story Co., Inc., Thirty-Fourth Biennial Rep., Iowa Indus. Comm'r 273 (1979). The fund is responsible for the difference between total disability and disability for which the employer at the time of the second injury is responsible. Section 85.64. Second Injury Fund v. Mich. Coal Company, 274 N.W.2d 300 (Iowa 1970), Second Injury Fund v. John Deere Component Works, Iowa Supreme Court Case No. 88-399, filed February 22, 1989. It is further concluded that: Claimant's alleged October 3, 1989 cumulative or progressive injury did not arise out of and in the course of her employment. Page 11 Claimant's disability and any disability or impairment from which she currently complains is not the result of nor caused by any October 3, 1989 cumulative or progressive injury. Claimant failed to prove by the greater weight of evidence that she incurred a work injury which has resulted in the loss of or use of another such member other than the one or ones in which claimant alleges was her first injury. Claimant's polio and post-polio condition was the cause of claimant's current impairments and any disability and that it was claimant's post-polio condition that affected claimant's work and not a situation in which claimant's work materially, substantially, lighted up or aggravated claimant's polio or any preexisting condition that claimant had. order THEREFORE, it is ordered: That claimant takes nothing in these proceedings from the Second Injury Fund. That defendants shall pay the costs of this action, pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of April, 1991. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Robert S Kinsey Attorney at Law 214 N Adams P O Box 679 Mason City IA 50401 Mr Stephen W Spencer Attorney at Law 218 6th Ave Ste 300 P O Box 9130 Des Moines IA 50306 5-1108 Filed April 11, 1991 Bernard J. O'Malley before the iowa industrial commissioner ____________________________________________________________ : MILDRED L. TUTTLE, : : Claimant, : : vs. : : File No. 929743 UNISYS CORPORATION, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : RELIANCE INSURANCE COMPANY, : : Insurance Carrier, : : and : : SECOND INJURY FUND OF IOWA, : : Defendants. ___________________________________________________________ 5-1108 Claimant took nothing from Second Injury Fund. Claimant had polio as a child and greater weight of medical testimony showed her problems are causally connected to her post-polio condition. Claimant was not a credible witness. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ MARY BOYCE, : : Claimant, : File No. 929761 : vs. : A R B I T R A T I O N : CITY OF DES MOINES, : D E C I S I O N : Self-Insured, : Employer, : : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : ------------------------------------------------------------ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Mary Boyce against her former employer City of Des Moines, Iowa and Second Injury Fund of Iowa based upon an admitted injury of June 25, 1989. The only issue to be determined is claimant's entitlement to benefits from the Second Injury Fund of Iowa. The record in this proceeding consists of testimony from Mary Boyce and Marsha Gracey. The record also contains joint exhibits 1 through 37 and Second Injury Fund exhibits AA through JJ. The case was heard at Des Moines, Iowa, on December 8, 1993. At the commencement of the hearing, it was indicated that there was a claim against the City of Des Moines, Iowa, for an additional 3 percent permanent partial disability of the claimant's right arm. It was stipulated that the 3 percent was based upon an apportionment which was agreed by the parties to be correct. The only issue was the issue of law regarding whether or not Bearce v. FMC Corporation, 465 N.W.2d 531 (Iowa 1991) requires that the claimant's preexisting disability in her right hand be disabling from an industrial disability standpoint in order to apportion the preexisting disability. The claim against the City of Des Moines was dismissed by the undersigned on the basis that the requirement of showing preexisting industrial disability is pertinent only when the case involves a claim for industrial disability. In a case where the claim is for scheduled disability, apportionment is performed based upon preexisting scheduled disability. Simpson v. Burlington Basket Co., file number 921025 (App. Dec. March 19, 1993). Accordingly, of the 21 percent permanent partial disability Page 2 affecting the claimant's right arm, 3 percent preexisted the injury which is the subject of this litigation and 18 percent was caused by the injury which is the subject of this litigation. The liability of the City of Des Moines is for an 18 percent disability of the arm and it has been satisfied. After ruling on the record, counsel for the City of Des Moines left the hearing and the case proceeded to hearing against the Second Injury Fund of Iowa. FINDINGS OF FACT Mary Boyce is a 55-year-old woman who is a 1956 high school graduate, attended the American Institute of Business in Des Moines and who took some college level courses in 1961 and 1962 while in the state of Texas. Mary commenced work for the City of Des Moines Police Department in 1976. She last worked in April 1990. Her actual date of termination was in 1992. Prior to working for the police department Mary had worked as a receptionist and switchboard operator. She performed typing, filing, bookkeeping, secretarial and clerical duties. She performed bookkeeping and computer keyboarding. Over her years with the police department Mary held two positions. For approximately nine years she was a LENCIR control typist/operator. She received radio calls from officers and ran computer checks on the criminal history of individuals as requested by the officers. In 1985 she became a police information typist. She prepared paper work for bonds, stolen property and other paper work associated with arrested people and property. Mary has a long history of arthritis affecting her hands and wrists. (exhibit 14; ex. AA, page 4). The record indicates that she has had a number of injuries from various sources over the years. Her arthritis was such that in 1987 she underwent a surgical procedure on her left hand and wrist that was similar to the more recent procedure performed on her right hand and wrist on November 14, 1989. (exs. 5 & 23). Mary has been found to be totally disabled for purposes of social security disability. (ex. CC). She had entered the Iowa Vocational Rehabilitation Program but was unable to complete the evaluation. (exs. 29-31). Claimant was evaluated by Peter Wirtz, M.D., on or about November 3, 1993. He found her to have a 19 percent permanent partial impairment of each upper extremity. Dr. Wirtz went on to opine that the June 25, 1989 injury was a strain that was only a temporary aggravation of her preexisting degenerative condition. He stated that the aggravation would have resolved with conservative care and that it was not the cause for the surgery which was performed. (ex. 20). Martin S. Rosenfeld, D.O., has rated claimant as having an 18 percent impairment of her right upper extremity and a 22 percent impairment of the left upper extremity. (ex. 22). Page 3 Dr. Reagan rated her as having a 21 percent impairment of her right hand. (ex. 4, p. 35). He stated that 18 percent of that impairment is related to the injury which is the subject of this case. (ex. 10). Dr. Reagan also stated, "The underlying cause of Ms. Boyce's problems is her arthritis but she may have gone on forever without much problem had she not injured her wrist at work." His recommended activity restrictions are found at exhibit 9. They basically state that she should avoid lifting more than five pounds with her hands. He recommended that she avoid repetitive duty. He stated that she may need to use splints and to work at her own pace. Dr. Reagan is the primary treating physician in this case. It is found that his care was reasonable and that his assessment of the case is likewise accurate and correct. He is strongly corroborated by Drs. Rosenfeld and Wirtz with regard to the extent of impairment. His opinion of causation is found to be correct rather than that of Dr. Wirtz. It is noted that claimant had a considerable trial of conservative care with Kirk Green, D.O., before her care went to Dr. Reagan and that she had additional conservative care from Dr. Reagan before surgery was performed. Accordingly, Dr. Wirtz's assessment that the injury was only a temporary aggravation which would have resolved with conservative care is clearly incorrect and is rejected. Undoubtedly, Dr. Reagan is correct in that the underlying cause of this claimant's problem is her arthritis. His statement found at exhibit 7, however, is found to be correct. One certainly might suspect that in view of the care and surgery which had previously been performed upon claimant's left hand and wrist that her right hand and wrist might well have eventually required similar care and surgery. That is certainly possible, however, no physician has stated that the care, surgery and impairment that presently exist were not contributed to in a significant degree by the June 25, 1989 injury. It is therefore found that the June 25, 1989 injury was an aggravation of the preexisting arthritic condition. It produced an 18 percent permanent partial disability of claimant's right upper extremity. It is noted that the operative report, exhibit 5, clearly shows that the surgery was performed upon parts of claimant's arm. The affected part of her body is not just the hand or wrist. From the evidence it is well established that claimant had a preexisting impairment in her left hand or arm prior to the injury that occurred on June 25, 1989. That impairment was rated by Dr. Wirtz at 19 percent of the upper extremity and by Dr. Rosenfeld at 22 percent of the upper extremity. It is found that Mary Boyce had a preexisting 20 percent permanent partial impairment of her left upper extremity prior to June 25, 1989. It is also found that the impairment or disability is not limited to her hand but that it extended into her arm as evidenced by the fact that the surgical procedure which had been performed in 1987 involved cubital tunnel release surgery at the elbow and surgery upon Page 4 the radius bone of the left arm. The wrist joint was fused. It is clear that the disability was not limited to the hand and, in fact, extends into the arm. The testimony from Marsha Gracey is accepted as being correct. It is essentially uncontroverted. With the restrictions recommended by Dr. Reagan claimant is foreclosed from competitive employment. No one has suggested any particular job that she could obtain and perform in order to be gainfully employed. She has been awarded social security benefits. Claimant's condition is clearly permanent as there is no expectation of recovery or improvement. Page 5 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). A personal injury contemplated by the workers' compensation law means an injury, the impairment of health or a disease resulting from an injury which comes about, not through the natural building up and tearing down of the human body, but because of trauma. The injury must be something which acts extraneously to the natural processes of nature and thereby impairs the health, interrupts or otherwise destroys or damages a part or all of the body. Although many injuries have a traumatic onset, there is no requirement for a special incident or an unusual occurrence. Injuries which result from cumulative trauma are compensable. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 1219, 38 N.W.2d 158 (1949); Almquist v. Shenandoah Nurseries, Inc., 218 Iowa 724, 254 N.W. 35 (1934). An occupational disease covered by chapter 85A is specifically excluded from the definition of personal injury. Iowa Code section 85.61(5); Iowa Code section 85A.8. Aggravation of a preexisting condition is one manner of sustaining a compensable injury. While a claimant is not Page 6 entitled to compensation for the results of a preexisting injury or disease, its mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956). If the claimant had a preexisting condition or disability that is materially aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961). 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 the employer responsible only for the amount of disability resulting from an injury that would have occurred if the handicapped individual had no preexisting disability. See Anderson v. Second Injury Fund, 262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers' Compensation-Law and Practice, section 17-1. The Fund is responsible for the industrial disability present after the second injury that exceeds the disability attributable separately 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). 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. Total disability does not mean a state of absolute helplessness. Permanent total disability occurs where the Page 7 injury wholly disables the employee from performing work that the employee's experience, training, education, intelligence and physical capacities would otherwise permit the employee to perform. See McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Diederich v. Tri-City Ry. Co., 219 Iowa 587, 258 N.W. 899 (1935). A finding that claimant could perform some work despite claimant's physical and educational limitations does not foreclose a finding of permanent total disability. See Chamberlin v. Ralston Purina, File No. 661698 (App. October 29, 1987); Eastman v. Westway Trading Corp., II Iowa Industrial Commissioner Report 134 (App. 1982). From the outset it is apparent that Mary Boyce is totally disabled within the meaning of the workers' compensation law. [section 85.34(3)]. Claimant is therefore entitled to recover weekly compensation for permanent total disability pursuant to section 85.34(3). That compensation is payable at the end of the time that payments were paid by the employer. It was stipulated by the parties that the commencement date for permanent partial disability benefits is October 5, 1990. That stipulated date is construed to be the time at which the employer was to commence paying permanent partial disability compensation. Claimant's 18 percent permanent partial disability of the right arm entitles her to 45 weeks of benefits under the provisions of section 85.34(2)(m). Accordingly, the employer's liability for payments ended on August 15, 1991. At that point it then becomes necessary to deduct the compensable value of the previous loss, in this case, the 20 percent impairment of the left arm. Under section 85.34(2)(m) that amounts to 50 weeks of benefits. Since this case awards permanent total disability, the only practical way to accomplish the deduction is to impose a waiting period of 50 weeks before the Second Injury Fund is required to commence payments. Shank v. Mercy Hospital Medical Center, file number 719627 (App. Dec. August 28, 1989); Hickson v. W.A. Klinger Co., Inc. and Second Injury Fund, I Iowa Industrial Commissioner Report 41 (1980); Asay v. Industrial Engineering Equipment Co. and Second Injury Fund, Thirty-third Biennial Report of the Industrial Commissioner 224 (1977). (There is an argument that where permanent total disability results, the waiting period should not be imposed since it leaves the individual without benefits at the time when they are disabled from earning.) 2 Larson Workmen's Compensation Law, 59.34. Fifty weeks from August 16, 1991, is July 30, 1992. The Second Injury Fund of Iowa is therefore liable to commence weekly compensation at the rate of $225.83 per week effective July 30, 1992. ORDER IT IS THEREFORE ORDERED that the Second Injury Fund of Iowa pay Mary Boyce weekly compensation at the rate of two hundred twenty-five and 83/100 dollars ($225.83) per week payable commencing July 31, 1992. The past due accrued amount thereof shall be paid to claimant in a lump sum. The Page 8 Second Injury Fund of Iowa shall continue to pay Mary Boyce weekly compensation for permanent total disability pursuant to Iowa Code section 85.34(3) for so long as she remains totally disabled. Signed and filed this __________ day of February, 1994. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Max Schott Attorney at Law 6959 University Ave Des Moines, Iowa 50311-1540 Mr. Bruce E. Bergman Ms. Mary Hellweg Attorneys at Law 400 E 1st St Des Moines, Iowa 50309-1891 Mr. James Christenson Mr. Greg Knoploh Assistant Attorneys General Hoover State Office Bldg Des Moines, Iowa 50319 2206 1804 3202 Filed February 28, 1994 Michael G. Trier BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ MARY BOYCE, Claimant, File No. 929761 vs. A R B I T R A T I O N CITY OF DES MOINES, D E C I S I O N Self-Insured, Employer, and SECOND INJURY FUND OF IOWA, Defendants. ------------------------------------------------------------ 2206 1804 3202 Claim against Second Injury Fund. Claimant awarded permanent total disability. The injury was an aggravation of a preexisting arthritic condition affecting both of claimant's arms. Page 1 before the iowa industrial commissioner ____________________________________________________________ : KENNETH J. BERG, : : Claimant, : : vs. : : File No. 929782 UNITED PARCEL SERVICE, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Kenneth J. Berg, claimant, against United Parcel Service, employer, hereinafter referred to as UPS, and Liberty Mutual Insurance Company, insurance carrier, defendants, for workers' compen sation benefits as a result of an alleged injury on Septem ber 22, 1989. On October 6, 1992, 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 that an employee-employer relationship existed between claimant and defendant-employer at the time of the alleged injury. ISSUES The parties submitted the following issues for determi nation in this proceeding: I. Whether claimant received an injury arising out of and in the course of employment; II. The extent of claimant's entitlement to disabil ity benefits; and, III. The extent of claimant's entitlement to medical Page 2 benefits. FINDINGS OF FACT Having heard the testimony and considered all of the evidence, the deputy industrial commissioner finds as follows: Claimant, age 37, worked for UPS from July 1986 until the date of the alleged injury herein. At UPS, claimant was a fleet mechanic in the maintenance and repair of approxi mately 30 vehicles. Claimant testified that he routinely lifted heavy objects at work at times over 100 pounds. Claimant testified that he injured his low back while moving a portable dock on September 22, 1989. He said he felt terrific pain and was compelled to end work and go home. He said that he had similar pain the week before at work after falling on a wheel well but that the pain on the 22nd was much worse. Claimant was subsequently treated by Thomas Gartin, M.D., and was later referred to a neurosur geon, Thomas Carlstrom, M.D. Dr. Carlstrom diagnosed a her niated disc and imposed work restrictions against heavy and repetitive lifting or any heavy physical labor. Claimant was subsequently treated by an orthopedic surgeon, William Boulden, M.D., and Thomas Bower, LPT. Claimant is unable to return to UPS due to work activity restrictions against heavy work imposed by these physicians. Initially, Dr. Carlstrom related claimant's low back problems to the work incident on September 22, 1989. Dr. Boulden likewise related the problems he treated to the claimed work injury. In a subsequent medical examination, Martin Rosenfeld, D.O., another orthopedic surgeon, causally related claimant's low back condition to his work. However, neither Dr. Carlstrom, Dr. Boulden nor Dr. Rosenfeld was told by claimant about a history of chiropractic care to the low back for three years prior to September 22, 1989. The records of Richard Elbert, D.C., indicate that claimant had complained of low back, hip and leg pain and numbness prob lems since July 1987. Only a few days before the claimed injury, claimant received chiropractic care for back spasms. At that time he related complaints of hip and leg pain beginning with an injury on a ladder at home in July 1989. The only mention of a work injury to Dr. Elbert by claimant was in January 1990 when he told Dr. Elbert of falling on the wheel well at work on the 18th of September, 1989. Dr. Elbert stated that he recalled this report of injury, which he admits is inconsistent with his written reports. Dr. Elbert also reports a complaint of injury at work in September 1989 while lifting a tire at work. Given the testimony of Dr. Elbert in his deposition, Drs. Carlstrom and Rosenfeld retreated from their causal connection opinions. Dr. Carlstrom opines that the hernia tion he found occurred prior to September 22, 1989. Dr. Rosenfeld agrees with Dr. Carlstrom but testified at hearing Page 3 that the event on the 22nd was a significant contributing factor in the herniation process or in other words the "straw that broke the camel's back." Dr. Carlstrom said that whether or not the 22nd event accelerated or lighted up claimant's herniation depends upon claimant's credibility and the significance of symptoms he suffered at the time in question. A work injury on September 22, 1989 as alleged could not be found by the undersigned deputy commissioner. Claimant's testimony is not credible. He testified at hear ing that he had no significant low back problems prior to September 22, 1989 despite clear evidence from Dr. Elbert of numerous complaints of low back stiffness and pain between July 1987 and September 22, 1989. If the work events on the 18th or 22nd were so significant why did claimant fail to report them to Dr. Elbert. Dr. Elbert's unusual recollec tion of a report of injury on September 18, 1989 is not credible and in any event there was never a report of injury for September 22, 1989. Claimant certainly felt compelled on September 1, 1989 to report a injury at home earlier that summer. Also, there is no satisfactory explanation why Dr. Carlstrom, Dr. Boulden and Dr. Rosenfeld were not given a complete history of chiropractic care before September 22, 1989. As the undersigned is not convinced that anything happen on September 22, 1989, the theories advanced by claimant involving a claim of cumulative trauma with other prior work injuries and/or aggravation of a prior condition is no help to claimant. No physician in this case supports such a cumulative trauma theory. Even if the event happen as alleged on September 22, 1989, it is clearly a separate and distinct injury from the prior alleged injuries on September 18, 1989 and in September 1989. Page 4 CONCLUSIONS OF LAW Claimant has the burden of proving by a preponderance of the evidence that claimant received an injury arising 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 generally, 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. A work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. U.S. Gypsum, 252 Iowa 613, 620, 106 N.W. 2d 591 (1961), and cases cited therein. It is not necessary that claimant prove his disability results from a sudden unexpected traumatic event. It is sufficient to show that the disability developed gradually or progressively from work activity over a period of time. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). In the case sub judice, claimant simply failed to show by credible evidence that he indeed suffered a work injury at the time in question. Claimant's story was too conflict ing and there was serious concern about claimant's failure to give a complete history to his treating physicians. ORDER 1. Claimant's petition is dismissed with prejudice. 2. Claimant shall pay the costs of this action pur suant to rule 343 IAC 4.33, including reimbursement to claimant for any filing fee paid in this matter. Signed and filed this ____ day of December, 1992. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Page 5 Copies To: Mr. Max Schott Attorney at Law 6959 University Avenue Des Moines, Iowa 50311 Mr. Joseph S. Cortese, II Attorney at Law 500 Liberty Building Des Moines, Iowa 50309 5-1803 Filed December 23, 1992 LARRY P. WALSHIRE before the iowa industrial commissioner ____________________________________________________________ : KENNETH J. BERG, : : Claimant, : : vs. : : File No. 929782 UNITED PARCEL SERVICE, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE CO.,: : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803 Non-precedential, extent of disability case. before the iowa industrial commissioner ____________________________________________________________ : KENNETH J. BERG, : : File No. 929782 Claimant, : : R U L I N G O N vs. : : R E H E A R I N G UNITED PARCEL SERVICE, : : A N D O R D E R Employer, : : N U N C P R O and : : T U N C LIBERTY MUTUAL INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ Claimant brings to the attention of the undersigned a typographical error. Therefore, paragraph 2 of the Order portion of the decision is amended by inserting a period after the administrative rule citation of rule 343 IAC 4.33 and striking the entire clause beginning with the word "including." Signed and filed this ____ day of January, 1993. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Max Schott Attorney at Law 6959 University Avenue Des Moines, Iowa 50311 Mr. Joseph S. Cortese, II Attorney at Law 500 Liberty Building Des Moines, Iowa 50309 BEFORE THE IOWA INDUSTRIAL COMMISSIONER SHELLY R. FLANDERS, Claimant, File No. 929926 vs. A R B I T R A T I O N IBP, INC., D E C I S I O N Employer, Self-Insured, Defendant. STATEMENT OF THE CASE Shelly Flanders, widow of William Flanders, has filed a petition in arbitration seeking death benefits, dependency benefits and equitable apportionment benefits as a result of William Flanders' work-related death on September 25, 1989 while he was employed by self-insured defendant IBP, Inc. The hearing was held before the undersigned on March 30, 1995 at Storm Lake, Iowa. The evidence in this case consists of the testimony of Shelly L. Flanders; claimant's exhibits 1 through 6, 8 through 11, 13 through 15, 17, 18, 20, 23, 24 and defendant's exhibits A through E. The case was considered fully submitted at the close of the hearing. Claimant and defendant each filed a post-hearing brief on June 19, 1995. ISSUES The parties presented the following issues for resolution: 1. Whether Shelly Flanders is a conclusively presumed dependent and entitled to equitable apportionment of weekly compensation benefits payable due to the death of William Flanders; 2. Whether Shelly Flanders is entitled to the marital exemption in computing the weekly workers compensation benefit rate; and, 3. Whether Shelly Flanders' action is barred by the statute of limitations; FINDINGS OF FACT The undersigned having reviewed and considered all of the evidence makes the following findings of fact: William R. Flanders was electrocuted in an accident arising out of and in the course of his employment with IBP, Inc. on September 25, 1989. At the time of his death William was still legally married to Shelly. No dissolution decree or order of annulment had been entered to dissolve their marriage. Shelly Flanders has not remarried since William's death. Shelly L. Flanders was born on May 10, 1965. She met William when she was 14 years old and William was 16 in 1979. In 1981 Shelly became pregnant with the first of their children and gave birth to Brandy Lee Flanders on August 14, 1981. At the time of Brandy's birth Shelly was 16 years old and she and William sought to get married but were unable to because Shelly's parents would not consent to the marriage. Shelly and William began living together in October of 1981, even though her parents would not consent to them getting married. On November 22, 1982, Shelly gave birth to William Joseph Flanders, hers and William's second child, when she was 17 years old. Her parents still would not consent to her and William getting married, but they continued to live together. Shortly after Shelly turned 18 she and William were married at the Salvation Army in Woodbury County on October 8, 1983. (Claimant's exhibit 15) In 1984 William voluntarily checked himself into the Gordon Chemical Dependency Center seeking treatment for alcohol abuse. (Defendant's exhibit A, page 20) His treatment lasted 30 days and when he was discharged he began odd jobs in an attempt to support himself and his family. In 1984 William was charged with drunk driving and his drivers license was suspended for 30 days. (Def. Ex. A, p. 38, 39) In 1985 William again voluntarily checked himself into the Gordon Chemical Dependency Center seeking treatment for alcohol abuse. (Def. Ex. A, p. 34) In March of 1985 Shelly sought a protection order from William alleging that William physically abused her. (Jt. Ex. 17) The protective order was granted in March of 1985 and Shelly and William lived apart for one or two months until Shelly moved back in with William in April or May of 1985. (Cl. Ex. 18) After she moved back in Shelly contends things went smoothly until William started drinking again. In August of 1985 William was involuntarily committed by his parents to the Marion Health Center for treatment of alcohol dependency. (Cl. Ex. 23) During the entire course of the marriage William continued to abuse alcohol and was physically abusive to Shelly. Shelly related that William would beat her and kick her as well as verbally abuse and threaten her. (Transcript, page 30) The physical abuse occurred on a daily basis. (Tr. p. 33) A form of William's emotional abuse included keeping Shelly in the house away from friends and family. She was not allowed to go to the grocery store without him along. (Tr. p. 33) William was a chronic alcoholic who repeatedly and regularly physically abused Shelly. William and Shelly continued to live together with their children until October of 1986. In 1986 Shelly left William after he went joy-riding with their three year old son along in the vehicle while he was drinking alcohol. At that time William was also giving alcohol to his three year old son to drink. The two were involved in a car accident, but neither William nor his son were hurt. That incident was the straw that broke the camel's back for Shelly and she left William. (Tr. p. 32) In order to escape from William, Shelly had to wait until he left the house to go to his mother's, then she took the children and left. (Tr. p. 33) William remained in contact with Shelly and continued to visit the children. Shelly and William talked several times about reconciling. Shelly never went back to him because he never quit drinking. (Tr. p. 36) On June 8, 1988, William filed a petition for dissolution of his and Shelly's marriage. (Cl. Ex. 20) Shelly does not consider her separation from William in any way her fault. (Tr. p. 38) Apparently, William was convicted of operating a motor vehicle while intoxicated in 1988. (Def. Ex. A, p. 56) During her deposition, Shelly related that when she and William were living together William would drink and become violent on a weekly basis. After she left him in 1986, Shelly never experienced another violent episode with William. (Def. Ex. A, p. 57, 58) On July 8, 1989, William had a son, Tyler Robert Flanders, with a woman named Shawna Nissan. Shawna and William were never married. William's gross earnings were $300.30 dollars per week. Pursuant to the proper rate book, with four exemptions, William's correct weekly workers' compensation benefit rate is $199.97 if he was unmarried at the time of his death and $204.54 if he was married at the time of his death. After William's death, payments in the amount of one- third of $199.97 to each child were commenced and continue to the date of the hearing. (Cl. Ex. 11, p. 1-14) By order of the district court dated December 13, 1989, Shelly Flanders was made the legal guardian of Brandy Lee Flanders and William Joseph Flanders. (Cl. Ex. 10, p. 1) Shelly Flanders has waived her right to any back payment she may be owed for her share of the workers' compensation weekly benefits from the date of William's death to date of this decision. (Cl. Ex. 13) ANALYSIS AND 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. App. P. 14(f). The first issue that must be determined is whether Shelly Flanders is conclusively presumed dependent and thus entitled to equitable apportionment of weekly compensation benefits payable due to William R. Flanders' death. Iowa Code section 85.31 provides in relevant part: 1. When death results from the injury, the employer shall pay the dependents who were wholly dependent on the earnings of the employee for support at the time of the injury, during their lifetime, compensation upon the basis of eighty percent per week of the employee's average weekly spendable earnings, commencing from the date of death as follows: a. To the surviving spouse for life or until remarriage . . . . Defendant asserts that Shelly must qualify for compensation benefits under Iowa Code section 85.31 and must show that she was actually "wholly dependent on the earnings of [William] for support at the time of the injury . . ." Defendants misinterpret the purpose of section 85.31. Section 85.31 does not set up the test for determining who a dependent is, it merely provides for the amount and duration of payments to dependents as they are defined in sections 85.42 and 85.44. Two sections of Chapter 85 define dependents for the purposes of equitable apportionment of compensation benefits; sections 85.42 and 85.44. Section 85.42 defines when a spouse shall be conclusively presumed to be "wholly dependent." Iowa Code section 85.42 (1995) provides in relevant part: The following shall be conclusively presumed to be wholly dependent upon the deceased employee: a. When it is shown that at the time of the injury the surviving spouse had willfully deserted deceased without fault of the deceased, then such survivor shall not be considered as dependent in any degree. (Emphasis added.) b. When the surviving spouse was not married to the deceased at the time of the injury. Iowa Code section 85.42 means that a surviving spouse, in this case, Shelly, need not show actual dependence to qualify for an equitable portion of the compensation payments unless she falls within one of the two exceptions. The question then is: Does Shelly fall within one of the two exceptions disqualifying her from being conclusively presumed dependent on William and thus entitled to a share of the compensation benefits. It is clear that Shelly and William were legally married, no order of dissolution of the marriage had been entered by any court at the time of William's death nor had any court entered an order annulling their marriage. Shelly is not disqualified under subsection b. Shelly and William were legally married at the time of William's death. The question then becomes whether Shelly is disqualified by 85.42(a) because she willfully deserted William without fault on William's part. The facts establish that Shelly left William because he was an alcoholic who became violent and physically abusive to her when he drank and, on at least one occasion, endangered the life of his child by drinking and driving while his son was in the car with him. For whatever reason, William was unable to quit drinking and never ceased physically abusing Shelly during the entire course of their marriage until she left him. The facts clearly establish that Shelly left William, in at least some part, due to the alcohol abuse and physical abuse William constantly perpetuated. William's alcohol abuse and physical abuse of Shelly amounts to fault on his part for Shelly's leaving him, or if you will, her desertion of him. Since William's conduct amounted to fault on his own part, Shelly is not disqualified from receiving compensation benefits by 85.42(a). Iowa Code section 85.43 (1995) provides in relevant part: If the deceased employee leaves a surviving spouse qualified under the provisions of section 85.42, the full compensation shall be paid to the surviving spouse, as provided in section 85.31; provided that where a deceased employee leave a surviving spouse and a dependent child or children the industrial commissioner may make an order of record for an equitable apportionment of the compensation payments. William is survived by three minor children and a spouse. The weekly compensation benefits have, to this point, been divided between the three children with each child taking a one-third share of the weekly benefits. Shelly has waived her right to recover any past amounts that were due to her. Her rights to any amount of weekly benefits begin from the date of this order. It appears to the undersigned that the fairest way to divide the benefits among the survivors of William is to apportion to each individual an equal share. Thus, Shelly Flanders, Brandy Flanders, William Joseph Flanders and Tyler Flanders are each entitled to 25 percent or one-quarter share of the weekly compensation benefits of William Robert Flanders. The next issue that must be determined is whether Shelly Flanders is entitled to the marital exemption in computing the weekly workers' compensation rate. It was stipulated by the parties that claimant's average gross weekly earnings were $300.30. It has already been determined that at the time of his death William was married to Shelly Flanders. Shelly Flanders is entitled to the marital exemption in calculating the weekly workers' compensation benefit rate. The 1989 rate book provides that for an employee with four exemptions who is married, the proper weekly rate of compensation benefits is $204.54. The survivors of William R. Flanders are each entitled to $51.135 dollars per week. It is noted that up to this time defendant has paid the three minor children at the rate of $199.97 per week. Defendant should have been paying the minors at the rate of $204.54 dollars per week. Defendants are ordered to pay the three minor children back pay they have been shorted because of defendant's payment of the incorrect rate. This has no effect on Shelly Flanders waiver of back pay because the back pay is due to the minor children, not to her. The final issue to be determined is whether Shelly's action is barred by the statute of limitations. Defendant has previously filed a motion for summary judgment alleging that Shelly's claim for a share of the weekly benefits is barred by the statute of limitations, Iowa Code section 85.26(1). That motion was denied by another deputy industrial commissioner. Claimant here contends that the undersigned does not have the authority to rule on an issue that has previously been ruled on in a motion for summary judgment. Claimant contends that the ruling on the motion for summary judgment has become what counsel termed the "law of the case," and cannot be revisited. Claimant's contentions are erroneous. Issues raised in motions for summary judgment may also be raised before the finder of fact at an arbitration hearing. Different standards of proof are applied at each juncture and evidence that may be insufficient to prevail on a motion for summary judgment may be sufficient for a party to prevail in an arbitration hearing. Iowa Code section 85.26(1) (1995) provides in relevant part: 1. An original proceeding for benefits under this chapter . . . shall not be maintained in any contested case unless the proceeding is commenced within two years from the date of the occurrence of the injury for which benefits are claimed or, if weekly compensation benefits are paid under section 86.13, within three years from the date of the last payment of weekly compensation benefits. Defendant contends that Shelly cannot rely on the three year statute because benefits have not been paid to her and because the three year statute of limitations references 86.13 is thus applicable only to the actual worker or employee. A review of the definitions of the terms used in the statute makes clear that defendant's contentions are without merit. Iowa Code section 86.13 provides that if an employer pays weekly compensation benefits to an employee, the employer shall file with the industrial commissioner a notice of the commencement of the payments. Failure to file the notice of commencement of benefits toll the running of the statute of limitation in section 85.26. Employees are broadly defined in Iowa Code section 85.61(12) to include "[a]ny reference to a worker or employee who has been injured shall, when such worker or employee is dead, include the worker's or employee's dependents as herein defined or the worker's or employee's legal representatives; and where the worker or employee is a minor . . . it shall include the minor's . . . guardian, next friend, or trustee." Not only has it been determined that Shelly Flanders is the dependent of William Flanders, she is also the guardian of Brandy Flanders and William Joseph Flanders and as such is included in the definition of "employee" as it is used in section 86.13. Weekly benefits have been paid and are still being paid pursuant to section 86.13. Since Shelly qualifies as an employee under section 86.13 and hence under section 85.26, defendant cannot argue that her claim is barred because they have refused to pay surviving spouse benefits. Since defendant continues to pay benefits pursuant to Iowa Code section 86.13, the three year time period has not yet begun to run. It is further noted that workers' compensation laws are to be, within reason, liberally construed. Barton vs. Nevada Poultry Co. , 253 Iowa 285, 110 N.W.2d 660 (1961). To interpret the statute as defendants invite would constitute and impermissibly illiberal construction. Thus, it is determined that Shelly Flanders claim is not barred by the statute of limitations. ORDER THEREFORE, it is ordered: That defendant pay weekly compensation benefits in the amount of one-quarter (25%) of two hundred four and 54/100 dollars ($204.54) to each of the following persons until the conditions of Iowa Code section 85.31(1)(b) are met in the case of Brandy Flanders, William Joseph Flanders and Tyler Robert Flanders, and until the conditions of section 85.31(1)(a) are met in the case of Shelly L. Flanders. That defendant pay accrued weekly compensation benefits to Brandy Flanders, William Joseph Flanders and Tyler Robert Flanders due to their previous payments at the wrong rate as set out in the body of the decision. That defendant pay interest on the award as set out in Iowa Code section 85.30. That defendant pay the costs of this action pursuant to 343 IAC 4.33. That defendant pay accrued benefits in a lump sum. That defendant be given credit for benefits previously paid. That defendant file claim activity reports as requested by the agency. Signed and filed this ____ day of June, 1995. ________________________________ TERESA K. HILLARY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Dennis McElwain Attorney at Law 732-640 Badgerow Bldg P O Box 1194 Sioux City IA 51102 Mr Paul T Kirchner Attorney at Law P O Box 515 Dept 41 Dakota City NE 68731 1203, 1900, 2400, 3002 Filed June 28, 1995 Teresa K. Hillary BEFORE THE IOWA INDUSTRIAL COMMISSIONER SHELLY R. FLANDERS, Claimant, File No. 929926 vs. A R B I T R A T I O N IBP, INC., D E C I S I O N Employer, Self-Insured, Defendant. 1203, 1900, 2400, 3002 Claimant, Shelly Flanders, determined to be the surviving spouse of decedent William R. Flanders, notwithstanding the fact that divorce proceedings were under way and she had deserted the decedent three years prior to his untimely death by electrocution while working for IBP, inc. Her desertion was held to be due to the "fault of the deceased" pursuant to 85.42. Deceased was a chronic alcoholic who regularly and repeatedly physically abused claimant and endangered the life of their children by driving while intoxicated. Deceased had on one occasion given beer to his three year old son to drink then taken the child and gone joy-riding ending up in a car accident. Claimant and decedent held to have been legally married at the time of his death because no order of dissolution or annulment had been entered by any court. Claimant entitled to the marital exemption in calculating the weekly workers' compensation benefits rate. Defendant's statute of limitation argument was without merit in light of the broad definition of employee found at 85.61(12). Claimant awarded 25 percent share of the benefits and 25 percent to each of the three minor children. Page 1 before the iowa industrial commissioner ____________________________________________________________ : CHARLES L. HASKELL, : : Claimant, : : vs. : : File No. 929978 LENNOX INDUSTRIES, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL CASUALTY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Charles Haskell as a result of mental injuries which occurred on September 8, 1989. Defendants denied compensability for the injury and paid no benefits. The case was heard and fully submitted at Des Moines, Iowa, on June 3, 1991. The record in the proceeding consists of joint exhibits 1 through 7 and testimony from claimant. issues The issues presented for determination are as follows: 1. Arising out of and in the course of employment; 2. Casual connection to temporary total disability; and 3. Entitlement to Iowa Code section 85.27 benefits. findings of fact Having considered all the evidence received the following findings of fact are made: Claimant, Charles Haskell, started working for defendant, Lennox Industries, on July 20, 1970, and has been so employed to date of hearing. Claimant has brought a claim against defendants alleging that the stress he experienced during labor negotiations in 1989 caused a temporary mental disorder that resulted in lost time and medical expenses. Claimant testified that he is a member of the union Page 2 which represents employees of the employer's Marshalltown production facility. Claimant, in 1989, worked as a production worker. In 1989, claimant was neither a union steward nor a labor contract negotiator. Claimant testified that his employer and the union have a long history of bitter labor disputes which often result in a strike. Claimant stated that a new contract is negotiated every three years to become effective July 1 of that year. The last three contracts were negotiated in 1980, 1983 and 1986. On July 1, 1989, the last contract had expired and up to that date no new agreement had been achieved. The union decided to forego a strike due to the risk of permanent replacement workers being hired by employer. A new contract was finally negotiated in October 1989. Claimant testified that he incurred a severe amount of stress as a result of employer's bad faith bargaining. Claimant believed that during the prior three years, the workers had made good faith efforts to accomplish company goals. He felt that the employer had breached their agreement to bargain in good faith at the 1989 contract negotiations. Claimant also stated that the management was exerting an undue amount of stress upon the employees in July and August 1989 in an effort to intimidate the workers into striking. Claimant alleged that several workers were unjustly disciplined during the period in question. On September 8, 1989, claimant became so emotionally distraught that he sought medical treatment for his depression. He was taken off work on September 8, 1989, and received counseling and medication. On September 25, 1989, he attempted to return to work, but failed due to the effects of his medication. He finally returned to work on October 4, 1989. Claimant stated that he has had no symptoms subsequent to his return to work on October 4, 1989, and has worked continuously for employer since that date. The first issue to be resolved concerns whether claimant sustained an injury arising out of and in the course of employment on September 8, 1989. More specifically, the question is whether claimant's nontraumatic mental health injury is compensable. In Iowa, for a mental injury to be compensable, it must result from a situation of greater dimensions than the day-to-day mental stresses and tensions which all employees must experience. Page 3 In the case at hand, claimant sustained anxiety and depression as a result of his knowledge of labor negotiations and undue pressure in the work place exerted by management. It is found that the stress of the labor negotiations was common to all employees, not just the claimant. It is also found that the intimidation of workers by management was also common to all of claimant's coworkers. No showing has been made which indicates that claimant experienced a situation of greater dimensions during the period in question than did his coworkers. It is claimant's burden of proving by a preponderance of the evidence that an injury arose out of and in the course of employment. Claimant has failed in his burden and shall take nothing from this proceeding. The remaining issues are moot as this issue is dispositive of the entire case. conclusions of law Claimant has the burden of proving by a preponderance of the evidence that he received an injury on September 8, 1989. which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). In order for a nontraumatically caused mental injury to be compensable, it must have resulted from a situation of greater dimensions than the day-to-day mental stress tensions which all employees must experience. Schreckengast v. Hammermills, Inc., 369 N.W.2d 306 (Iowa 1985); Swiss Colony v. Department of Industry, L. & H. R., 72 Wis. 2d 46, 240 N.W.2d 128 (1976). Having found that claimant's day-to-day stresses were of no greater dimensions than what was experienced by all employees, it follows that claimant has failed to prove that he sustained a mental injury on September 8, 1989, by a preponderance of the evidence. order IT IS THEREFORE, ORDERED: That claimant's petition is dismissed. That claimant take nothing from this proceeding. That the parties shall pay their own respective costs pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of June, 1991. ______________________________ MARLON D. MORMANN DEPUTY INDUSTRIAL COMMISSIONER Copies to: Page òòò 4 Mr. Theodore Hoglan Attorney at Law 34 S. 1st Ave Marshalltown, Iowa 50158 Mr. D. Brian Scieszinski Attorney at Law 1100 Des Moines Bldg. Des Moines, Iowa 50309-2464 Page 1 52204 Filed June , 1991 Marlon D. Mormann before the iowa industrial commissioner ____________________________________________________________ : CHARLES L. HASKELL, : : Claimant, : : vs. : : File No. 929978 LENNOX INDUSTRIES, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL CASUALTY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 52204 Claimant alleged mental-mental injury as a result of stress caused by employer's bad faith labor negotiations. Claimant's case failed in that the stress caused by the labor negotiations was common to all employees.