Page 1 before the iowa industrial commissioner ____________________________________________________________ : DEBRA BELL, : : Claimant, : File No. 930694 : vs. : : A R B I T R A T I O N ARATEX SERVICES, : : D E C I S I O N Employer, : Self-Insured, : Defendant. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Debra Bell as a result of an alleged occupational disease or injury to the lungs which occurred on August 9, 1989. Defendant denied compensability for the injury and or disease and paid no weekly or medical benefits. The case was heard and fully submitted at Sioux City, Iowa, on April 24, 1991. The record in the proceeding consists of joint exhibits 1 through 8, claimant's exhibit 1 and testimony of claimant and Dave Dersheimer. issues The issues presented for determination are as follows: 1. Whether claimant sustained an injury or occupational disease on August 9, 1989, arising out of and in the course of employment; 2. Causal connection to temporary total disability or healing period and the extent of entitlement; 3. Causal connection to permanent disability and the extent of industrial disability; 4. Commencement date of payment of permanent disability; 5. Claimant's entitlement to Iowa Code section 85.27 medical benefits; and 6. Claimant's entitlement to Iowa Code section 86.13 penalty benefits. findings of fact Having considered all the evidence received the following findings of fact are made: Page 2 Defendant-employer Aratex Services, Inc., operates a commercial laundry business that cleans cloth items used by other industries. The product to be cleaned is often contaminated with various chemicals and organic agents. The cleaning process itself uses detergent and also creates a significant amount of dust and lint within the work environment that is not prevalent in everyday life or in other occupations. Claimant began work for employer on August 29, 1988, as a general laborer. Her duties changed each day depending on the employer's immediate need. The work performed for employer exposed claimant to various chemical, dust, lint and other contaminants found throughout the plant. Claimant was exposed to such contaminants during the majority of her workday. Claimant worked for employer for about four to five months before experiencing a layoff. During the first months of work claimant experienced coughing and respiratory symptoms. During the layoff claimant worked in the bakery at Econofoods. During that period claimant's respiratory symptoms resolved without the need for medical treatment. On May 15, 1989, claimant returned to work for employer. She continued to perform duties similar to what she had performed prior to the layoff. Upon her return she started to experience respiratory symptoms greater in intensity than during the prior period of employment with employer. She continued on with such employment until August 9, 1989, when she sought medical treatment for her continuing respiratory problems. Claimant was off work and under treatment for her respiratory ailment starting August 9, 1989 through September 10, 1989. She returned to work on September 11, 1989, and immediately began experiencing respiratory symptoms. During the following six days of work the symptoms continued to worsen. Claimant worked two and one-half hours on September 19, 1989, and again went off work so as to seek treatment for her worsening respiratory symptoms. Claimant was again off work for medical treatment of her respiratory symptoms beginning September 19, 1989 through October 1, 1989. She returned to work on October 2, 1989, in an attempt to perform her prior duties, notwithstanding, her doctor's recommendation that she seek other employment. Within a couple of days after October 2, 1989, claimant experienced the same respiratory symptoms as she had experienced before. October 6, 1989, was claimant's last day of work for employer. On October 7, 1989, she was hospitalized for the continued respiratory symptoms. Claimant applied for and received about six weeks of Page 3 unemployment benefits in December of 1989, but has been unable to locate other employment subsequent to leaving Aratex. Claimant has been assigned permanent work restrictions that prohibit her from working in smoke, fumes or other airborne contaminants. Claimant is limited to work in a clean air and controlled temperature work environment (joint exhibit 1, pages 1 and 17). David Dersheimer testified that he started work for employer in July 1989 as a production manager. He stated that no other incidents of respiratory illnesses have been experienced by coemployees at Aratex. He testified that subsequent to claimant's illness an environmental study was performed at Aratex which resulted in no recommendations. He also stated that claimant's absentee calendar (jt. ex. 7, p. 28) was prepared by a clerk who had no authority to decide if the respiratory problem was work related. The first issue to be decided in whether claimant sustained an injury or occupational disease arising out of and in the course of employment with Aratex. Since this matter involves an allegation of occupational asthma caused by airborne contaminants, the first analysis will involve occupational disease. Claimant has established that employer's work place exposes workers to a hazard of airborne contaminants such as dust, lint, detergent and various chemicals. Such contaminants are characteristic to the trade and are more prevalent to such employment than to everyday life. While in the environment, claimant was continuously exposed to the airborne contaminants. Thus, the hazard of exposure to the contaminants has been proven. Claimant must also establish that the disease is causally related to the exposure of the harmful conditions of the field of employment. In that regard, claimant testified that prior to her employment with Aratex she had never experienced similar respiratory problems. She also set forth a convincing scenario of continuing and immediate reoccurrence of symptoms each time she went back to work for employer. The medical records also indicate an occupationally induced asthmatic condition (jt. ex. 1, pp. 15-17; jt. ex. 2, p. 11 and jt. ex. 3, p. 4). Robert Stewart, M.D., a pulmonary disease specialist, opined that claimant's asthmatic condition was caused by her work for Aratex (jt. ex. 5, pp. 16 & 17). He noted the temporal relationship of the onset of symptoms to the work for employer in support of his opinion (jt. ex. 5, p. 16). Dr. Stewart's opinion on causation is found to be correct as he was a treating specialist who examined and treated claimant during the time period close to her actual employment with Aratex. Gregory A. Hicklin, M.D., is a doctor retained by employer to examine claimant for the benefit of litigation. Page 4 He stated that no causal connection exited between the work and the alleged asthma. Dr. Hicklin also opined that claimant had pneumonia as opposed to asthma. His opinions are rejected in that they are less credible than the testimony offered by Dr. Stewart. First, Hicklin only saw claimant on one occasion which was several months after she had last worked for employer. Also, he saw claimant when her symptoms had substantially abated. Finally, he was not retained to offer treatment, but instead he was hired specifically for the purpose of rendering an opinion on the work-related nature of the asthmatic condition. For the above stated reasons, Dr. Hicklin's opinions on causation are rejected. It is found that claimant sustained an occupational disease of her respiratory system arising out of and in the course of employment on August 9, 1989. It is noted that some tests do not prove that claimant's condition is, in fact, occupational asthma. This fact does not cause claimant's case to fail in that it is well established that she experienced asthma-like attacks each time she entered employer's work environment. It has also been proven that as a result of the condition, claimant continued to have persistent chronic asthma-like attacks after leaving work for employer. A specific diagnosis is unnecessary when it is obvious that a disabling condition resulted due to the occupational exposure. The next issue is whether the August 9, 1989, occupational disease is a cause of permanent disability. It is found that claimant has sustained her burden in proving permanent disability. The reasoning follows: It is true that Dr. Stewart was unwilling to assign an impairment rating to claimant's occupational respiratory condition due to the possibility of the condition resolving itself (jt. ex. 5, p. 35). However, the possibility of a future change in condition is far too speculative to accept as credible evidence. The permanent nature of claimant's condition is to be evaluated as it exists on the date of hearing. In this case, the evidence is clear that claimant continues to suffer from respiratory problems and continues under permanent work restrictions all as a result of the occupational disease (jt. ex. 5, p. 34 and jt. ex. 3, p. 11). The only logical conclusion is that claimant's condition resulted in permanent disability. Factors to be considered when assessing industrial disability include claimant's age, education, experience, work restrictions and motivation. In this case, claimant was age 29 on August 9, 1989, with a GED and experience consisting primarily of manual labor. Her work restrictions require her to work in a controlled temperature and clean air environment (jt. ex. 1, p. 11). Claimant did not demonstrate a high motivation to return to work as evidenced by her limited search for employment. However, as a result of the work restrictions Page 5 claimant is prohibited from performing most of the factory work for which she has previous training and experience. When competing against healthier and better educated workers, claimant is at a distinct disadvantage. Having considered all the evidence, it is found that claimant is 30 percent industrially disabled as a result of the August 9, 1989, industrial injury. The next issue concerns claimant's entitlement to healing period benefits. Claimant first went off work on August 9, 1989, and continued off through September 10, 1989. During this period claimant was clearly under the care of medical professionals for the treatment of her occupational disease. Claimant was again off work starting September 19, 1989 through October 1, 1989, for similar treatment. It is found that claimant has proven entitlement to healing period benefits during these periods as she was unable to work and under active medical treatment for her occupational disease. The final healing period started on October 7, 1989, when claimant was hospitalized for the respiratory condition. Claimant contends that the healing period continues on to the date of hearing. Claimant's argument is rejected as she applied for unemployment and sought work in December of 1989. It is noted that on November 17, 1989, claimant's breathing tests revealed considerable improvement (jt. ex. 1, p. 18). Subsequent to that examination, claimant did, in fact, apply for unemployment and conducted a search for new employment. It is found that on November 17, 1989, claimant's respiratory condition was at the point where significant improvement was no longer expected. Claimant has failed to prove entitlement to healing period beyond November 17, 1989. The final healing period begins October 7, 1989 and continues through November 17, 1989. It also follows that September 11, 1989, is the commencement date for payment of permanent partial disability as that date coincides with the termination of the first healing period. Permanent partial disability benefits are to be paid intermittently before and after the remaining healing periods. Having proven liability, it follows that claimant is entitled to Iowa Code section 85.27 medical benefits. Claimant has sustained her burden in proving the causal connection of the asthma treatment to the August 9, 1989, occupational disease. However, the asthma treatment surrounding the July 20, 1990, assault, is not causally connected to the August 9, 1989, occupational disease and employer is not responsible for those expenses. It is also obvious that employer is not responsible for medical care associated with claimant's recent pregnancy. Employer also alleged that the medical expenses were Page 6 not authorized. The authorization defense fails in that employer denied liability and, thereby, lost the right to guide the medical care. The final issue concerns claimant's alleged entitlement to Iowa Code section 86.13 penalty benefits. It is found that claimant has failed to prove entitlement to penalty benefits. Defendant's denial of compensability was made in good faith as demonstrated by Dr. HIcklin's testimony which refuted the causal connection (jt. ex. 4, p. 3 and jt. ex. 6). The respective attorneys are complimented for their very organized presentation of the evidence both live and by exhibit. conclusions of law Occupational diseases shall be only those diseases which arise out of and in the course of the employee's employment. Such diseases shall have a direct causal connection with the employment and must have followed as a natural incident thereto from injurious exposure occasioned by the nature of the employment. Such disease must be incidental to the character of the business, occupation or process in which the employee was employed and not independent of the employment. Such disease need not have been foreseen or expected but after its contraction it must appear to have had its origin in a risk connected with the employment and to have resulted from that source as an incident and rational consequence. A disease which follows from a hazard to which an employee has or would have been equally exposed outside of said occupation is not compensable as an occupational disease. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Frit Industries v. Langenwalter, 443 N.W.2d 88 (Iowa App. 1989). (Iowa Code section 85A.8) Claimant has the burden of proving by a preponderance of the evidence that she received an injury on August 9, 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). A treating physician's testimony is not entitled to greater weight as a matter of law than that of a physician who later examines claimant in anticipation of litigation. Weight to be given testimony of physician is a fact issue to be decided by the industrial commissioner in light of the record the parties develop. In this regard, both parties may develop facts as to the physician's employment in connection with litigation, if so; the physician's examination at a later date and not when the injuries were fresh; his arrangement as to compensation, the extent and Page 7 nature of the physician's examination; the physician's education, experience, training, and practice; and all other factors which bear upon the weight and value of the physician's testimony. Both parties may bring all this information to the attention of the factfinder as either supporting or weakening the physician's testimony and opinion. All factors go to the value of the physician's testimony and opinion. All factors go to the value of the physician's testimony as a matter of fact not as a matter of law. Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985). Claimant has proven by a preponderance of the evidence that on August 9, 1989, she sustained an occupational disease of her respiratory system arising out of and in the course of employment. Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, expe rience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disabil ity. This is so as impairment and disability are not syn onymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional Page 8 impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial dis ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, l985). Iowa Code section 85.34(2) provides that compensation for permanent partial disability shall begin at the termination of the healing period. Iowa Code section 85.34(2)(u) provides that compensation for a nonscheduled or body as a whole injury shall be paid in relation to 500 weeks and the disability bears to the body as a whole. Upon considering all the material factors it is found that the evidence in this case supports an award of 30 percent permanent partial disability which entitles the claimant to recover 150 weeks of benefits under Iowa Code section 85.34(2)(u), commencing September 11, 1989, and to be paid intermittently before and after the healing periods. Section 85.34(1), Code of Iowa, provides that healing period benefits are payable to an injured worker who has suffered permanent partial disability until (1) he has returned to work; (2) is medically capable of returning to substantially similar employment; or (3) has achieved maximum medical recovery. The industrial commissioner has recognized that healing period benefits can be interrupted or intermittent. Willis v. Lehigh Portland Cement Company, Vol. 2-1, State of Iowa Industrial Commissioner Decisions, 485 (1984). Claimant has established the causal connection and entitlement of the August 9, 1989, injury to intermittent healing periods beginning August 9, 1989 through September 10, 1989; September 19, 1989 through October 1, 1989; and October 7, 1989 through November 17, 1989. The employer, for all injuries compensable under chapter 85 or chapter 85A, shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies; therefore, and shall allow reasonable necessary transportation expenses incurred for such services. The employer has the right to choose the provider of care. Iowa Code section 85.27. "Claimant is not entitled to reimbursement for medical bills unless he shows that he paid them from his own funds." See Caylor v. Employers Mut. Cas. Co., 337 N.W.2d 890 (Iowa App. 1983). Claimant has proven entitlement to Iowa code section 85.27 benefits as outlined in the decision. Claimant is entitled to direct reimbursement only if she has paid the bills from her own funds. Page 9 If a delay in commencement or termination of benefits occurs without reasonable or probable cause or excuse, the industrial commissioner shall award benefits in addition to those benefits payable under this chapter, or chapters 85, 85A, or 85B, up to fifty percent of the amount of benefits that were unreasonably delayed or denied. Iowa Code section 86.13. Claimant has filed to prove by a preponderance of the evidence that employer's denial of liability was without reasonable or probable cause or excuse. order IT IS THEREFORE, ORDERED: Defendant is to pay claimant one hundred fifty (150) weeks of permanent partial disability at the rate of one hundred eighty-one and 70/100 dollars ($181.70), commencing September 11, 1989 and to be paid intermittently before and after the remaining healing periods. Defendant is to pay claimant intermittent healing period benefits at the rate of one hundred eighty-one and 70/100 dollars ($181.70), for the periods August 9, 1989 through September 10, 1989; September 19, 1989 through October 1, 1989; and October 7, 1989 through November 17, 1989. Defendant is to pay claimant's Iowa Code section 85.27 benefits as outlined in the opinion. It is further ordered that defendants shall receive credit for benefits previously paid. It is further ordered that all accrued benefits are to be paid in a lump sum. It is further ordered that interest will accrue pursuant to Iowa Code section 85.30. It is further ordered that the costs of this action are assessed against defendants pursuant to rule 343 IAC 4.33. It is further ordered that defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of May, 1991. ______________________________ MARLON D. MORMANN DEPUTY INDUSTRIAL COMMISSIONER Copies to: Page 10 Mr. Bryan J. Arneson Attorney at Law STE 340 Insurance Center 507 7th St. Sioux City, Iowa 51101 Mr. Stephen W. Spencer Attorney at Law 218 6th Ave STE 300 PO Box 9130 Des Moines, Iowa 50306 Page 1 51108.40 51802 51803 Filed May 8, 1991 Marlon D. Mormann before the iowa industrial commissioner ____________________________________________________________ : DEBRA BELL, : : Claimant, : File No. 930694 : vs. : : A R B I T R A T I O N ARATEX SERVICES, : : D E C I S I O N Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 51108.40 Claimant established that her asthma-like condition was caused by the work environment. 51802 Claimant's healing period ended when claimant's medical condition had stabilized and she began her search for new employment. 51803 Claimant was found to have permanent disability based upon the permanent work restrictions of working in cold temperature and clean air environment which restricted her from most of her past jobs. Claimant was a manual laborer, age 29, with a GED. Claimant awarded 30 percent industrial disability. 5-1806 Filed January 29, 1993 Byron K. Orton DRR before the iowa industrial commissioner ____________________________________________________________ _____ : LEILA BIX, : : Claimant, : : vs. : File Nos. 981358 : 930740 EXCEL CORPORATION, : : A P P E A L Employer, : : D E C I S I O N and : : CNA INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ _____ 5-1806 No apportionment ordered where evidence showed claimant's preexisting back condition was latent prior to her injury. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ SYLVIA DIANE CAMPBELL, : : Claimant, : : vs. : : File No. 930796 WESTVIEW CARE CENTER, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : ALLIED MUTUAL INSURANCE CO., : : Insurance Carrier, : Defendants. : ------------------------------------------------------------ STATEMENT OF THE CASE This is a contested case proceeding under Iowa Code chapter 17A. Claimant, Sylvia Diane Campbell, filed a petition in arbitration against her employer, Westview Care Center, Inc., and insurance carrier, Allied Mutual Insurance Co., on account of a stipulated work injury sustained September 28, 1989. Ms. Campbell now seeks further benefits under the Iowa Workers' Compensation Act. This case was heard and fully submitted in Des Moines, Iowa, on July 6, 1994. The record consists of claimant's exhibits 1 through 6, defendants' exhibits A through E, and claimant's testimony. ISSUES The parties have stipulated to the following: 1. Claimant sustained an injury arising out of and in the course of employment on September 28, 1989; 2. The injury caused temporary disability, the extent of which is no longer in dispute; 3. The commencement date for permanent disability benefits, if any, is October 15, 1989; 4. The correct rate of weekly compensation is $151.17; 5. The providers of disputed medical expenses would testify to the reasonableness of fees and treatment, and defendants offer no contrary evidence; 6. Disputed medical expenses are causally connected to the medical condition upon which this claim is based, Page 2 although causal connection to the work injury itself remains disputed; and, 7. Defendants voluntarily paid five days of compensation at the stipulated rate prior to hearing. Issues presented for resolution include: 1. Whether the injury caused permanent disability; 2. The nature and extent of permanent disability, if any; and, 3. Entitlement to medical benefits, including whether disputed expenses are causally connected to the work injury and whether the same were authorized by defendants. FINDINGS OF FACT The undersigned deputy industrial commissioner finds: Sylvia Campbell, 56 years of age at hearing, was employed as a certified nurse's aid at Westview Care Center, Inc., on September 28, 1989. On that date, she attempted to lift a heavy resident from a stool to a wheelchair, but while doing so, experienced a "pop" in the right shoulder, followed by immediate numbness in the right arm. Pain developed later. Claimant visited her regular family medical group (Family Practice of Indianola) on the same day. She complained of neck discomfort and tingling, numbness and pain in the right arm. Chart notes reflect that Ms. Campbell reported a pulling sensation in her neck while attempting to lift the patient. Claimant was taken off work and underwent EMG testing. This proved normal. On October 14, 1989, chart notes reflect that claimant was asymptomatic and desired to return to work. She was released to do so. Chart notes reflect that claimant visited Family Practice Associates on October 25, November 6, November 10, November 28, December 5, December 16, 1989, January 11, January 27, February 5, and on two additional occasions (illegible dates) prior to April 16, 1990. These visits related to various unrelated problems, and it must be specifically noted that chart notes do not reflect continued complaints of right arm, right shoulder or neck symptoms. On April 16, 1990, claimant experienced an exacerbation of symptoms when she "pulled neck out at work -- uncertain exactly what position neck in when injured." Possible disability resulting from this separate traumatic incident is not presented as an issue in this litigation. Claimant began seeing a doctor of osteopathy, D.E. Crane, D.O., in 1987. Apparently, from his chart notes, she Page 3 did not see Dr. Crane following the 1989 stipulated work injury. However, commencing April 17, 1990, she saw Dr. Crane on some 21 occasions in the next four months. This clearly indicates that upon symptoms (claimant, it will be recalled, was "asymptomatic" as of October 14, 1989) were substantially more bothersome following the April 1990 incident. On cross-examination, claimant described the 1990 incident as having happened recently while lifting another patient; she states the second incident "set it off again." None of claimant's treating physicians have expressed a view as to the existence or absence of causal nexus between the stipulated work injury and claimant's present condition; or to the nature of that condition, for that matter. Two evaluating physicians have: Keith W. Riggins, M.D., and Kyle S. Galles, M.D. Dr. Riggins, board certified in orthopedic and arthroscopic surgery, evaluated claimant on April 28, 1994. Noting that magnetic resonance imaging and x-rays had not been performed on the right shoulder, Dr. Riggins diagnosed rotator cuff tear/impingement syndrome, suspected but not proven. Studies were thereupon undertaken at the Mercy Hospital Department of Radiology. The radiologist, Vera Stewart, M.D., found mild degenerative changes in the acromioclavicular joint, small broad based osteophytes on the undersurface of the acromion, and incresed signal within the rotator cuff tendon without a frank tear, and some impingement of the musculotendinous junction of the AC joint. Dr. Stewart noted mild degenerative changes in the tendon, but that no complete rotator cuff tear was seen. Dr. Riggins subsequently expressed his opinions in a series of letters to claimant's counsel. On May 9, 1994, he opined that the 1989 work injury represented a significant aggravation of the preexisting condition in claimant's shoulder, and more than likely produced a rotator cuff tear. He felt claimant compromised in the ability to perform activiites that require extending the right upper extremity forward or overhead with even minor amounts of weight, and expressed the view that symptoms appearing subsequent to the September 28, 1989 episode "resulted in exacerbation of symptoms due to the presence of rotator cuff tear rather than any episodes of new injury." However, Dr. Riggins went on to state: "Please be aware that the opinions expressed above are contingent upon confirmation of the presence of diagnosis of rotator cuff tear of the right shoulder." As we have seen, Dr. Stewart found no tear in the rotator cuff on MRI testing. On June 8, 1994, Dr. Riggins noted that the study was consistent with the diagnosis of impingement syndrome, and stated further that the increased signal within the rotator cuff tendon is an appearance "frequently produced by partial rotator cuff tear, the presence of which can be confirmed by diagnostic arthroscopy." On June 13, Dr. Riggins confirmed his diagnosis of impingement syndrome, possible partial rotator cuff tear, right shoulder. Based on an asymetrical weakness of Page 4 elevation in the right upper extremity, Dr. Riggins rated impairment at 10 percent of the upper extremity, which he converted to 6 percent of the body as a whole. Dr. Galles saw claimant on June 1, 1994. Dr. Galles reviewed the MRI ("I am in agreement with the radiologist's interpretation that there is no apparent rotator cuff tear") and, although electrodiagnostic studies were negative, felt that clinically symptoms were most typical of an early mild carpal tunnel syndrome. He specified his belief that symptoms were not directly related to any lifting episode in September 1989. Dr. Riggins is the only physician to find a causal nexus between the 1989 work injury and claimant's current condition. He describes that condition as impingement syndrome and possible partial rotator cuff tear. In his May 9 letter, Dr. Riggins specified that his opinions on causation were contingent upon confirmation of the presence of rotator cuff tear in the right shoulder. The radiologist, Dr. Stewart, reported increased uptake but found no tear. Dr. Galles, who also read the study, also concluded that no apparent tear existed. Dr. Riggins believes that a rotator cuff tear is "possible," but also recommended diagnostic arthroscopy of the right shoulder to confirm the condition. The record does not show that this procedure has been performed. Given the contingent nature of Dr. Riggins' opinion versus the specific opinion of no such relationship expressed by Dr. Galles, and considering further that claimant worked some six months following the work injury before a separate traumatic incident exacerbated symptoms greatly, she fails to pursuade that a causal nexus exists between the September 1989 work injury and her current impairment. 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 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 Page 5 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 failed to prove that a causal nexus exists between her current condition and the stipulated work injury. Accordingly, defendants prevail as to the permanent disability issue. Similarly, although the disputed medical expenses are causally connected to the medical condition upon which the claim of injury is based, the record does not establish by claimant's burden or proof that a causal nexus exists between those expenses and the original injury. Page 6 ORDER THEREFORE, it is ordered: Claimant takes nothing further. Costs are assessed to defendants. Signed and filed this ____ day of October, 1994. ______________________________ DAVID R. RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Steven C Jayne Attorney at Law 5835 Grand Ave Ste 201 Des Moines IA 50312 Mr Cecil L Goettsch Attorney at Law 801 Grand Ave Ste 3700 Des Moines IA 50309 5-1402.40 Filed October 17, 1994 David R. Rasey BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ SYLVIA DIANE CAMPBELL, : : Claimant, : : vs. : : File No. 930796 WESTVIEW CARE CENTER, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : ALLIED MUTUAL INSURANCE CO., : : Insurance Carrier, : Defendants. : ------------------------------------------------------------ 5-1402.40 Claimant failed to prove causal nexus between a stipulated work injury and her present condition. before the iowa industrial commissioner ____________________________________________________________ _____ : MIKE TOMLINSON, : : Claimant, : : vs. : : File No. 930818 MANAGEMENT SERVICES PERSONNEL,: : A P P E A L Employer, : : D E C I S I O N and : : CITY INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ _____ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed May 20, 1991 is affirmed and is adopted as the final agency action in this case. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of March, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Philip F. Miller Attorney at Law 309 Court Ave., Ste 200 Des Moines, Iowa 50309 Mr. Timothy W. Wegman Attorney at Law P.O. Box 9130 Des Moines, Iowa 50306-9130 9998 Filed March 30, 1992 Byron K. Orton BJO before the iowa industrial commissioner ____________________________________________________________ _____ : MIKE TOMLINSON, : : Claimant, : : vs. : : File No. 930818 MANAGEMENT SERVICES PERSONNEL,: : A P P E A L Employer, : : D E C I S I O N and : : CITY INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ _____ 9998 Summary affirmance of deputy's decision filed May 20, 1991. Page 1 before the iowa industrial commissioner ____________________________________________________________ : MIKE TOMLINSON, : : Claimant, : : vs. : : File No. 930818 MANAGEMENT SERVICES PERSONNEL,: : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CITY INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATement of the case This case came on for hearing on April 22, 1991, in Des Moines, Iowa. This is a proceeding in arbitration wherein claimant seeks healing and permanent partial disability benefits as a result of an alleged injury that occurred on or about August 15, August 22, 1989. The record in the proceeding consists of the testimony of claimant, David Warnell, Pamela Stevens, Rick J. Wood, and Tony Harris; joint exhibits 1, pages 8 through 13, 2, 3, 4, 5, 6, 7, 8, 11, 12 and 13; claimant's exhibits A, B, C and D; and defendants' exhibits 10 (pages 1 through 9), and 14, pages 106 through 112. issues The issues for resolution are: 1. Whether claimant's injury arose out of and in the course of his employment; 2. Whether claimant's alleged injury is causally connected to any permanent disability alleged by the claimant; 3. Whether claimant is entitled to 85.27 medical benefits. At issue is the $130 paramedic bill, authorization and whether reasonable and necessary and causally connected; and 4. Claimant's entitlement to 86.13 penalty benefits. Page 2 findings of fact The undersigned deputy, having heard the testimony and considered all the evidence, finds that: Claimant is 26 years old and went through the 10th grade but has now received his GED. Claimant described his work history before beginning work for defendant employer in March 1989. This history basically involved painting, construction work, carpentry, Sheetrock, restaurant line cooking, and tree service work. (See Exhibit C for places where claimant worked and why he left.) Claimant said he was in a construction accident in 1984 and lost part of his right leg six inches below the knee and has a prosthesis device. He indicated he used his settlement to buy a boat dock and marina in 1985 to 1987 which he sold. He indicated it was not a financial success. Claimant began working for defendant employer in March 1989 and took a physical. He said he told defendant employer about his leg injury. He described his job which basically involved loading boxes of meat weighing 9 to 114 pounds onto trucks. He said he averaged 48 to 52 hours per week six days a week at $6.75 per hour. Claimant described a May 1989 work injury at defendant employer's wherein claimant was loading a truck with a conveyor belt. He indicated that, while proceeding to pull the conveyor back to step on the ramp, the truck that was being loaded pulled forward and claimant landed on the cement dock and incurred a pain in his lower back. Although claimant gave no specific date, the records herein indicate it was in May 1989. Claimant related an August 1989 incident in which he was loading a truck and stepped backward and his left foot slipped and caught in the space between the pallet boards at defendant employer's place of business. Claimant said he had pain in his right leg and later developed back pain. Claimant said he took a break and went back to work. He requested a slowdown but indicated defendant employer did not allow it as they were backed up and had to load the trucks before the computer went off. Claimant continued working until it was time to go home even though he said his back hurt. Claimant said he called defendant employer and was given a doctor's appointment but missed the first one. He then was given a second appointment. After approximately two days, claimant said that he was to return to work at a light duty job with restrictions. He said this job violated his restrictions as he had to lift. Claimant contends he told defendant employer through his supervisor, Mr. Thompson, who told him to keep working as he had no knowledge of claimant's restrictions and could do nothing about it. Claimant said the pain got so bad he told his employer and went home. Claimant gave no date. Claimant indicated he took a slip (Joint Exhibit 3, Page 3 page 8) to defendant employer and Mr. Wood terminated claimant. He said Mr. Wood indicated he had to put someone in claimant's place. Claimant wasn't sure of the exact termination date. He applied for unemployment benefits but was turned down on appeal. He indicated he did not show up. Claimant indicated Peter D. Wirtz, M.D., spent ten minutes with him on the first appointment and five to ten minutes on the second appointment and has never seen him again. He related Karen Kienker, M.D., spent one and one- half to two hours with him and put him through various motion tests. Claimant said Dr. Wirtz scheduled him for an MRI but never did one. The undersigned notes that an MRI was done shortly after Dr. Wirtz's second appointment and it is part of the record herein. Claimant said Dr. Kienker recommended a TENS unit and called the insurance adjustor in claimant's presence and the insurance company said no. Claimant indicated the insurance company wanted only a rating and that was all. Claimant said his back hurts constantly and he never re ceived any temporary total disability until he obtained a lawyer. He did not know when he received his first check. Claimant said he signed with job service in February 1990 and made twenty to thirty personal contacts. He also said he signed up with the state rehabilitation service. Claimant said defendants have not offered a pain center, physical therapy or TENS unit for him. Claimant said he was living with his girlfriend, Pamela Stevens, in August of 1989 and that she moved out in March of 1990 after ten months. He said she kept a diary of events but kept it from him. Claimant acknowledged that he also complained of penis contusions resulting from his August 1989 work injury and that on August 30, 1990, his main complaint involved his penis. Claimant agreed he was off work August 4 through 16, 1989 for personal reasons and did not request a leave of absence. He described his personal problems as a conflict between Pamela Stevens' brothers and himself. When Pamela Stevens moved in with claimant, she was still married to Mr. Stevens. Claimant said Pamela Stevens' ex-husband and brothers came over to beat him up on August 4, 1989. They held a knife on him and one of them hit him. Claimant was vague as to where he was hit but then said he had a swollen eye and cheek and a "busted" lip. Claimant indicated he then called his brothers and cousin from out of state and sought out the Stevens brothers and Pamela's ex-husband and took care of them. Claimant contends he was not involved in a fight or the subsequent fights that ensued. Claimant indicated he did to the Stevens brothers what they had done to him. He said "what is fair is fair." Claimant left the impression he was not physically involved in the fights but was there to see them take place. Page 4 Claimant indicated in his deposition that he was attacked in late June and early August 1989, and that the retaliation occurred shortly thereafter (Defendants' Exhibit 14, p. 106-112 of claimant's deposition of September 30, 1990). This exhibit indicates claimant took retaliation during his leave of absence for his beating by the Stevens brothers. Although the claimant's testimony is somewhat confusing, particularly as to chronological order, it appears undisputed that claimant took a leave of absence for personal reasons from August 4, 1989 to August 18, 1989. It is clear to the undersigned that claimant's reason for a leave of absence, which he related as personal problems, was basically to even things up with the Stevens brothers by calling his family from out of state to physically take care of them in a physical confrontation. Claimant's attention was called to Joint Exhibit 3, page 2, where his chief complaint to the doctor on September 11, 1989, is a penis injury. On January 23, 1990, his only complaint was pain in the penis area (Jt. Ex. E, p. 3). The undersigned notes in Joint Exhibit 3, page 1, that on August 30, 1989, the Marshalltown Medical Clinic notes reflect claimant said one week ago (August 23, 1990) he slipped with his left leg caught between two pallets and he didn't recall hitting anything but noticed a bruise on the middle and left shaft of his penis and that his main complaint was pain in the left lateral side of his penis. Claimant was asked again, on cross-examination, about his August 1989 vehicle accident. Claimant hesitated in his answer and said he wasn't sure of the date. His attention was called to his deposition (page 93) in which he said he was in a motorcycle accident when someone ran a stop sign and hurt him. He emphasized he wasn't thrown off the motorcycle but his attention was again called to his deposition (page 93) in which he said he was thrown off the bike. Claimant said that he misunderstood the questions and that he wasn't thrown off the bike. The undersigned notes that claimant's deposition, to which there has been references, was not an exhibit in this case. Claimant said he was terminated September 20, 1989, when he showed a doctor's slip to defendant employer. He is a union member but he did not talk to the steward about this. He said she wouldn't listen to him anyway from prior experiences. Claimant did not ask defendant employer to go back to work since his termination. Claimant was then asked about a March 1991 fight with his sister. He said he was involved in a fight with his sister and her boyfriend that occurred after his grandfather died on March 15, 1991. He contends they got into an argument and his sister assaulted his fiance who was pregnant with his child. He contends there was not a physical fight, but the undersigned notes claimant's demeanor while testifying at this point appears to belie claimant's contention. Joint Exhibit 10, pages 1-5, is a police report of the incident. Claimant denied any physical altercation. Page 5 Claimant was then asked about his fight and ultimate arrest for a February 1990 incident with Pamela Stevens. He explained the yelling and screaming and said Pamela then came into his bedroom when he was going to sleep and kicked him with her foot with a shoe thereon in his back and shoulders four or five times and left a foot imprint in his skin (Jt. Ex. 10, pp. 6-9). Pamela Stevens testified that she knows claimant and used to live with him beginning in May or June until sometime in February or March 1990. She was still married to another person when she moved in. She first met claimant in April 1989 when she started working for defendant employer. She and claimant worked the same shift. She said claimant's right leg, which has been partly amputated, was causing claimant problems and pain when putting on the prosthesis device. She said claimant told her he hurt himself loading a truck when his foot caught in the pallet. She acknowledged she kept a diary and wrote in it when claimant went to the doctor and when he was hurt. She later mentioned that she did not write the truth in her diary. Where the diary is now is unknown to the parties, allegedly. Ms. Stevens said she did not believe claimant was in pain after his August 1989 injury. She indicated he was normal that day just like when she met him. She saw no difference in claimant before or after the August 1989 injury. She said claimant did complain of back pain twice when going to the doctor and after the August injury. Ms. Stevens explained the physical confrontation and fight with claimant in January 1990, wherein she said claimant threw her around and against the wall and threatened other family members. She indicated the police took him from the house but he came back. They were both arrested after this incident (Jt. Ex. 10, pp. 6-9.) Ms. Stevens contends she left claimant because they never had a home and were living from motel to motel and her parents were going to take her child away. She is now living with her current boyfriend. She is currently receiving ADC and was fired from a waitress job in 1990 because of drinking on the job. She acknowledged she attended a lot of claimant's visits to the doctor and sat with claimant during the visits. She said claimant told the doctor his back injury interfered with their sex relationship. She acknowledged she talked to Rick Wood, defendant employer's personnel manager, twice on the telephone as to claimant's back injury. She admitted she is on bad terms with claimant due to his threats to her. She said the only contact with claimant since she left claimant in 1990 was when claimant came to her apartment and harassed her and wanted her to testify. She told him no and contends claimant said "she better not Page 6 screw up." She acknowledged that the doctor was told she and the claimant were having trouble with their sex life but it was not true. She thought this untruth would help the claimant. She said she did not know claimant had an accident involving his penis. She said it always worked fine when she was with him. Ms. Stevens acknowledged that she and claimant went to Illinois to visit and the fact that his parents were in a car accident was not the underlying reason for going. His parents were not hurt. David Warnell testified that he has operated a family tree service for fifteen years and claimant is his first cousin. He said his business is in Illinois, Wisconsin and Iowa, and he has a Marshalltown office. He has known claimant all his life and claimant worked for him in the summer of 1988 for two months in Wisconsin loading and stacking brush, fertilizing trees, cleaning out and filling trees and sealing cavities. He said this entailed a lot of lifting heavy branches, bending and picking up branches off the ground, the weight being 50 to 120 pounds. He said claimant was a good worker and had no back complaints or restrictions in 1988 and incurred no injuries while working for him. He indicated claimant was actually a subcontractor when working at his business. Mr. Warnell currently has 12 to 15 subs or employees working for him. He does not know where claimant went when claimant left but heard he went to work for Monfort. He indicated he has seen claimant on occasion since August 1989. He related claimant came to him in 1990 or 1991 and asked for work as he needed money and had no income. Claimant told him he injured his back and he saw claimant's restrictions. Warnell indicated he had nothing for claimant to do and could not afford to pay someone for doing nothing. He said he went with claimant to job service to see if there was a job for him. Warnell emphasized he would never hire anyone with restrictions claimant has (Jt. Ex. 6, p. 5). He acknowledged claimant had a part of his right leg missing and claimant's only prior restrictions when working for Warnell was that he would not let claimant climb the trees, otherwise, he could do any other work. He described an incident in November 1990 in which claimant started to kneel to talk to his sister who was sitting in a car and claimant fell down due to the pain and looked like he passed out. Claimant was taken to the hospital. Warnell wrote a memo concerning this incident close to the time it occurred. Claimant requested this. He said claimant was unable to engage in normal activities, baseball, wrestling, horseplay or helping in training Doberman dogs as he did prior to August 1989. He said he has observed a change in claimant's mental attitude since his August 1989 injury. Claimant is no longer cheerful and he can't get claimant involved in things. He understood claimant was a part owner in a boat dock marina in Missouri until he sold it but he didn't know Page 7 when. Warnell said he was aware of claimant's August 1989 ongoing feud with his girlfriend's ex-husband and her ex- husband's brother. He related he knew Pamela Stevens, now claimant's ex-girlfriend. Rick James Wood, defendant employer's resource personnel manager for the last twenty-six months, first met claimant when claimant was applying for a job with defendant employer in February 1989. Claimant's personnel file was then created (Jt. Ex. 11). He said claimant resigned on August 4, 1989, as he was having a lot of personal problems (Jt. Ex. 11, p. 30). He understood claimant was to return to work on August 18, 1989. He said claimant was hired back as he was strong as a bull and could do as well as anyone. He said his first knowledge of claimant's injury was on August 23, 1989, when claimant called him at 8:30 or 9:00 a.m. He set up a doctor's appointment for claimant on August 24, 1989, but claimant did not show. Another appointment was set up. He said claimant kept a second appointment and was given some restrictions. Claimant was placed on a light duty job. He said claimant's last day on the job was August 29, 1989, but Joint Exhibit 11, page 3, shows the date as August 30, 1989. Claimant told him he didn't think his restrictions were being followed. This exhibit is claimant's termination notice as claimant missed three days of work without calling in which is required under the company rules. Joint Exhibit 11, page 3 reflects claimant's termination from his job on September 19, 1989, signed by claimant and Rick Wood. He said claimant returned to defendant employer on September 19, 1989, requesting his job back but due to company policy he was not able to be hired. Claimant contends he was absent due to an auto accident in Missouri involving his mother. Defendant employer's rules as set out in Joint Exhibit 11, page 5, explained claimant's discharge. Joint Exhibit 11, page 5, is a handwritten statement explaining where he was, namely, that he went to Missouri as his mother was killed in an auto accident and she was being buried there. This is signed by the chief union steward. He said that between August 30, 1989 and September 19, 1989, claimant never brought any doctor notes to him. He indicated if claimant had excuses for being off work he would have received them. A memo written by Mr. Wood (Jt. Ex. 11, p. 6) reflects claimant told him he was in an auto accident on August 21, 1989. It then reflects claimant was injured at work on August 22, 1989. Mr. Wood acknowledged claimant was authorized to see a doctor on September 20, 1989, even though he was discharged on September 19, 1989. When asked why defendant employer did not keep claimant until the company found out what the doctor would say, Mr. Wood responded that he could not discriminate in favor of the claimant who had violated the work rules of not calling in on "no show" situations. Mr. Wood said if claimant had a work slip saying he is restricted from work altogether, claimant would probably still be employed today. Tony Harris, a resource employee of defendant employer Page 8 since February 1989, testified he knew claimant in 1989 and had two meetings with him in his office in late August 1989. At the first meeting in which the union steward was also present, Harris said claimant related he was on an emergency trip to Missouri as his parents were killed in an automobile accident. In another meeting in which claimant, the union steward and Mr. Wood were present, the question came up as to whether or not claimant was in Illinois or Missouri due to his inconsistent prior comments. Claimant did not answer. See memo by Mr. Harris on September 13, 1989 (Jt. Ex. 11, p. 7) On August 22, 1989 (Jt. Ex. 1, p. 8) reflects an emergency outpatient record in which claimant indicated he injured his back at work on August 15, 1989. A September 20, 1989 x-ray indicates some degenerative changes existing but not acute fracture or bony destruction (Jt. Ex. 1, p. 9). An emergency outpatient record of November 20, 1990, reflects claimant's complaint of an injured back in September 1989 (Jt. Ex. 1, p. 10). In the history, he indicates he was bending over a car and suffered a sudden severe pain in the area of his low back. There is nothing in the history of an August injury or the other various fights or beatings claimant incurred in August 1989 and thereafter. The Marshalltown Clinic records, on August 30, 1989 (Jt. Ex. 3), reflect claimant's chief complaint as a penis pain and claimant indicated an injury one week ago which would be August 23, 1989. It noted "peculiar etiology when there is no direct trauma." On September 11, 1989, his chief complaint was with his penis and testicle which he indicated he injured sometime before August 30. His girlfriend, Pamela Stevens, was present and told the doctor she never noticed the enlarged vein before (Jt. Ex. 3, p. 2). His penis complaint carried over into his doctor's appointment on January 23, 1990. Joint Exhibit 3, page 7, is claimant's August 29, 1989 request for medical leave for an August 22, 1989 injury to his back and privates. Joint Exhibit 4, page 1, Dr. Wirtz's report of October 26, 1989, reflects, in part, claimant's history of a June 1989 middle low back pain with intermittent pain and then an August 14, 1989 incident in which he was carrying a box at work and fell through a pallet and noted mid-back pain. Claimant also told the doctor that on August 15, 1989, his penis area became swollen. The doctor noted a muscular strain left side low back. An MRI was suggested. On December 8, 1989, the diagnosis was degenerative lumbar disc L4-5 and Dr. Wirtz noted muscular strain related to the back area from work- related conditions (Jt. Ex. 4, p. 3). On January 10, 1989, Dr. Wirtz said claimant's August 14, 1989 injury has resolved without residuals. The MRI showed degeneration and spurring (Jt. Ex. 4, p. 4). On March 29, 1991, Dr. Wirtz said claimant's degenerative disc preexisted his August 14, 1989 injury, his functional capacity is the same as it was Page 9 before August 14, 1989, that claimant reached maximum medical benefit on October 26, 1989, and claimant's October 14, 1989 injury has not caused any permanent functional impairment or restrictions (Jt. Ex. 4, p. 5). The undersigned notes there is no history of claimant's fights, assaults or beatings in the doctor's history. Nor is there any evidence of any other 1989 incidents. A March 13, 1989 Iowa Methodist Medical Center report refers to claimant's August 14, 1989 injury and a May 1989 injury. The history in this medical report indicates that in May 1990, he was standing on a ramp between a dock and a truck when someone pulled the truck forward and the ramp dropped out from under him. Claimant said he fell five and one-half or six feet landing on his low back. He also indicated another time he was turning while carrying a box and dropped to his knees because of the pain in his back. (Jt. Ex. 6, p. 2). There is nothing in claimant's history as to his fights, beatings or assaults. Joint Exhibit 11, page 30, is claimant's "termination notice" showing his last day of work as July 30, 1989, a termination date of August 4, 1989, and the reason as "personal problems." Joint Exhibit 11, page 31, is claimant's receipt of August 18, 1989, of an employee's handbook given to employees at the beginning of their hiring or, in claimant's case, rehiring. Joint Exhibit 11, page 49-50, reflects that on an unemployment appeal, claimant was found to have voluntarily quit defendant employer on September 19, 1989. Claimant, in his petition filed on August 2, 1990, alleges a back injury on or about August 14, 1989. The prehearing report refers to an injury on or about August 14 or August 22, 1989. This case deals with alleged traumatic injury. It is hard to believe that claimant does not know when he was specifically injured in a traumatic injury. Considering the record as a whole, the credibility of the claimant becomes a major concern in many instances in the record. Nowhere in claimant's medical history given to the doctor is there a mention of the assaults or beatings in which claimant was involved, one beginning on or around August 4, 1989 and shortly thereafter and, also, going into 1990 and 1991. Claimant obviously has a degenerative disc condition in addition to having part of his right leg amputated. Claimant contends in several of his doctor's visits that he was injured on August 14, 1989 at work (Cl. Ex. C, p. 40). It appears undisputed that claimant was not working beginning August 4, 1989 to August 18, 1989, and Joint Exhibit 11, page 30-31, indicate that at that period of time claimant's last day of work was July 30, 1989. Claimant was obviously off for personal problems. Claimant apparently needed this time to settle the score involving a beating he took from his live-in girlfriend's ex-husband and his brothers around the first part of August Page 10 1989. He seems to feel he settled the score. The evidence doesn't show when Pamela Stevens divorced her husband, but when she moved in with claimant in May or June 1989, she was still married. Claimant indicated he didn't participate in some of the fights, but apparently watched. The undersigned does not believe claimant. Likewise, claimant wasn't working when he contends, in most of his records and answers to interrogatories, that his work injury occurred on August 14, 1989. Claimant never mentioned to the doctor his fights and beatings of August 1989, the assaults by his girlfriend in 1990, his motorcycle incident, and the alleged work injury in May 1989 in which he fell at work five to six feet off a ramp. Claimant never mentioned the assault by his girlfriend in February 1990 even though he indicated she kicked him several times and left her foot imprint in his skin. Claimant is not credible. He also related, on cross- examination, his March 1991 fight with his sister. Claimant appears to have a very explosive temperament and apparently likes to fight. For a person with a leg amputation and wearing a prosthetic device, alleging permanent injury, and having a history of degenerative disc condition, it appears claimant wasn't hurt from a work injury versus injuries from his fighting or other nonwork incidents. It is no wonder claimant doesn't know when he allegedly was hurt at work. Medical records show one of his consistent chief complaints was the pain in his penis. His girlfriend, who accompanied claimant on many of his doctor visits, never noticed his problem until August 1989. Although there is no evidence of claimant getting kicked in the groin area during any fights, he obviously avoided any discussion of these incidents whenever he could. It would not be unusual for street fighters to get injured in the groin area as this is a vulnerable and successful area to get advantage in a street fight as there are no rules of fair play. Pamela Stevens talked of claimant tossing her around and against the wall in February 1990 and it would appear from her physical appearance that she would weigh as much, if not more, than the heaviest boxes which claimant contends he is unable to lift or throw around now because of the alleged August 1989 work injury. Although Pamela Stevens is not credible in many instances, it is a fact there was a fight between her and claimant as evidenced by the police report (Jt. Ex. 10). Claimant's former girlfriend testified for defendants. She obviously had no feelings for claimant other than she exhibited dislike. She admitted she lied to the doctor as to claimant's complaints at the time of their visits to claimant's doctor. She and claimant obviously have one thing in common, namely, they are not credible witnesses. Claimant has the burden of proof to show an injury arose out of and in the course of his employment and that there is a causal connection of claimant's condition and alleged disability to his work injury. There is no credible testimony based on a correct or full medical and injury history that causally connects claimant's medical condition to a work injury. There is no evidence of any permanent Page 11 injury. The undersigned finds that claimant has failed in his burden to show he incurred a work injury on August 14, 1989 through August 22, 1989, and that any alleged work injury has caused claimant a permanent impairment or permanent disability. The record has considerable evidence that the claimant has a preexisting degenerative disc condition and that the more logical cause for a material acceleration or acerbating of this condition would be his fights on or around the time of his alleged injury, namely, August 14, 1989. Claimant took off work at least between August 4, 1989 and August 18, 1989 for personal problems which, as indicated earlier, was for getting even with his ex-wife's brothers for a beating claimant incurred on or around August 4, 1989. The undersigned finds there is no further need to discuss the evidence or other issues. Any further discussion would be redundant and any discussion of other issues not specifically addressed herein are now moot in light of the above. Claimant takes nothing further from this proceeding. conclusions of law Claimant has the burden of proving by a preponderance of the evidence that he received an injury on or about August 14, 1989-August 22, 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). The claimant has the burden of proving by a preponderance of the evidence that the injury on or about August 14, 1989-August 22, 1989 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist 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. An employee is not entitled to recover for the results Page 12 of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 (1960). See also Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). The Iowa Supreme Court cites, apparently with approval, the C.J.S. statement that the aggravation should be material if it is to be compensable. Yeager, 253 Iowa 369, 112 N.W.2d 299; 100 C.J.S. Workmen's Compensation sec. 555(17)a. It is further concluded that: Claimant did not incur a work-related low back injury on or about August 14, 1989 or August 22, 1989. Claimant did not incur a temporary or permanent low back impairment or disability which was caused by any alleged August 14, 1989 or August 22, 1989 work-related injury. Claimant was involved in fights or assaults on or around August 4 1989 through August 18, 1989, in which he was assaulted with a knife at his throat and hit by two or three individuals, after which he called his relatives from out of state and retaliated with his own assault within several days thereafter. Claimant did not relate a true and accurate medical or injury history to his treating or examining doctors regarding the various other injuries or fights, assaults or beatings in which he was involved. Claimant was not working for defendant employer on August 4, 1989 to August 18, 1989, although he contends he was injured at work with defendant employer on August 14, 1989 (See claimant's petition and Claimant's Exhibit C, page 40). Claimant has a preexisting degenerative disc disease which was not materially acerbated or accelerated by any alleged August 14, 1989 or August 22, 1989 work injury. Claimant was involved in several incidents and the evidence shows that more than likely they caused claimant's alleged problems than any alleged August 14, 1989 or August 22, 1989 work injury. Claimant is not credible. Claimant has no work-related impairment or industrial disability. order THEREFORE, it is ordered: Page 13 That claimant takes nothing from these proceedings. That the parties shall each pay half the costs of this action, pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of May, 1991. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Philip F Miller Attorney at Law Saddlery Bldg Ste 200 309 Court Ave Des Moines IA 50309 Mr Stephen W Spencer Mr Fred Morrison Mr timothy W Wegman Attorneys at Law 218 6th Ave Ste 300 P O Box 9130 Des Moines IA 50306 5-1100; 5-1402.20; 5-1108 Filed May 20, 1991 Bernard J. O'Malley before the iowa industrial commissioner ____________________________________________________________ : MIKE TOMLINSON, : : Claimant, : : vs. : : File No. 930818 MANAGEMENT SERVICES PERSONNEL,: : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CITY INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1100; 5-1402.20 Found claimant failed to prove he incurred an injury which arose out of and in the course of his employment. 5-1108 Claimant was involved in several fights involving being beaten by his married live-in girlfriend's husband and brothers. Claimant retaliated with his brothers in a fight to get even with his assailants. Claimant physically fought with his girlfriend and his sister and her boyfriend. Found claimant's alleged injury or medical condition could have resulted from these fights. Claimant never told the doctors of his fights or other accidents. Found claimant not a credible witness. Claimant took nothing from these proceedings.