Page 1 before the iowa industrial commissioner ____________________________________________________________ : LARRY D. ANDERSON, : : Claimant, : : vs. : : File No. 931110 ARMOUR FOOD COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : HARTFORD INSURANCE COMPANY., : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration upon the petition of claimant, Larry D. Anderson, against his employer, Armour Food Company, and its insurance carrier, Hartford Insurance Company, defendants. The case was heard on January 17, 1991, in Mason City, Iowa at the Cerro Gordo County Courthouse. The record consists of the testimony of claimant and the testimony of John R. Cottrell, best friend of claimant. The record also consists of the testimony of Carl Brant. Additionally, the record consists of claimant's exhibits 1-11, 13-17, 20, 23-25, 26 and defendants' exhibits C, E, F, I, K and L. issue The sole issue to be determined is: the nature and extent of claimant's permanent disability. findings of fact The deputy, having heard the testimony and considered all the evidence, finds: Claimant was 28 years old at the time of his hearing. He is the father of one child. In December of 1983, claimant commenced employment with defendant-employer. He held positions as a belly press operator and bacon cash and line slicer. Claimant testified he began experiencing problems in the right upper extremity, the right shoulder and the right neck area. He testified he felt a burning sensation from his armpit through his fingers and that he felt shoulder strain. Claimant was first removed from work because of the Page 2 aforementioned complaints on December 10, 1987. The company doctor, Kenneth B. Washburn, M.D., initially treated claimant. Treatment was conservative. Claimant's condition did not improve and he was referred to Michael Crane, M.D., a board certified orthopedic surgeon. Dr. Crane diagnosed claimant as having a subluxing nerve of the right ulnar nerve. Dr. Crane performed three surgeries on the right upper extremity. Claimant continued to experience pain. Dr. Crane opined claimant had a type of sympathetic dystrophy. As of February 24, 1989, Dr. Crane rated claimant as having a 20 percent impairment to the right upper extremity. Claimant was referred by Dr. Crane to the Mercy Hospital Pain Clinic. There claimant was treated by James Blessman, M.D., and Dana Simon, M.D. Claimant received two stellate ganglion blocks. In his discharge summary, Dr. Blessman described claimant's physical findings. He wrote: Physical Findings: Subjective: Reports "feels like pressure in the armpit". [sic] He reported pain from above the rt. elbow to the finger. He felt tingling and numbness in rt. digits 4 & 5. Shooting pain was felt down the rt. medial forearm to the wrist. He states that his pain is decreased by rest and increased with lifting and repetitive rt. elbow flexion and extension. He sleeps with his rt. arm abducted and externally rotated. Objective: Larry wears an elbow pad on the rt. elbow. Light pressure on the rt. dorsoventral forearm elicits pain. He points to the medical elbow as the point of greatest pain. Page 3 Palpation: Tenderness is noted at: rt. occipital protuberance increased tingling at elbow. rt. cervical transverse processes. rt. trapezius, upper fibers. Extremities: He has pain along the right forearm in the area of the ulnar nerve and it is almost hypersensitive with pain going from the elbow down into the wrist. I looked for heavy metal exposure in this gentleman, also history of diabetes or thyroid disease. I did not find any. He did appear to drink a considerable amount of alcohol in the past. He reportedly stopped drinking completely January 1st. I did advise him that it appeared tome [sic] that he had neuropathy of the ulnar nerve and would recommend that he stay off of alcohol completely. Dr. Blessman also recommended in the same report: Other working limitations consisted with no repetitive grasping or flexion of the right elbow. It was felt that maximum improvement was reached on 2/10/89. Dr. Crane opined claimant had reached a plateau with respect to his condition as of February 24, 1989. The orthopedic surgeon restricted claimant from engaging in repetitive work with the right upper extremity. The physician also restricted claimant from working overhead for eight hours per day. Defendant-employer terminated claimant on June 1, 1989, because of claimant's permanent work restrictions. Claimant obtained subsequent employment at Decker Truck Lines as an over-the-road truck driver. He held that position for approximately eight months until he voluntarily terminated his position. Later claimant was employed as a pipe line laborer. conclusions of law The right of a worker to receive compensation for injuries sustained which arose out of and in the course of employment is statutory. The statute conferring this right can also fix the amount of compensation to be paid for different specific injuries, and the employee is not entitled to compensation except as provided by the statute. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). An injury to a scheduled member may, because of after effects (or compensatory change), result in permanent impairment of the body as a whole. Such impairment may in Page 4 turn form the basis for a rating of industrial disability. Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). Soukup, 222 Iowa 272, 268 N.W. 598 (1936). An injury to a scheduled member which, because of after-effects (or compensatory change), creates impairment to the body as a whole entitles claimant to industrial disability. Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). Daily, 233 Iowa 758, 10 N.W.2d 569 (1943). An injury is the producing cause; the disability, however, is the result, and it is the result which is compensated. Barton, 253 Iowa 285, 110 N.W.2d 660 (1961); Dailey, 233 Iowa 758, 10 N.W.2d 569 (1943). The mere fact that the rating pertains to a scheduled member does not mean the disability is restricted to a schedule. Pullen v. Brown & Lambrecht Earthmoving, Incorporated, II Iowa Industrial Commissioner Reports 308 (Appeal Decision 1982). If a claimant contends he has industrial disability he has the burden of proving his injury results in an ailment extending beyond the scheduled loss. Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964). If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term `disability' to mean `industrial disability' or loss of earning capacity and not a mere `functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Claimant has not proven by a preponderance of the evidence that he has an injury which results in an ailment extending beyond the scheduled loss to the right upper extremity. Claimant's complaints to Drs. Washburn and Crane primarily deal with complaints of the right arm, elbow, hand and fingers. Likewise, complaints made to Dr. Blessman center around the right arm and elbow. Claimant does not seek treatment for the neck and right shoulder throughout the course of his healing period. Medical records are devoid of testing for right shoulder or neck difficulties. There is no objective evidence of right shoulder or neck problems. Claimant is treated for a subluxing ulnar nerve. The affected area is the right arm, wrist and fingers. It is only when claimant seeks an independent medical exam from John R. Walker, M.D., that claimant expresses multi problems with the right shoulder, neck and with numb headaches. The complaints are first voiced nearly 18 months after claimant's original injury date. The only causal connection to the injury date is the report of Dr. Walker. Even then, Dr. Walker only "very possibly" relates the shoulder problem to claimant's work injury. Dr. Walker does not use a probable standard in establishing the requisite Page 5 causal connection. Therefore, in light of the above, it is the determination of the undersigned that claimant has only sustained an injury to the right upper extremity. Claimant has not proven he has sustained an injury beyond the loss to the scheduled member. Dr. Crane has rated claimant as having a 20 percent impairment to the right upper extremity. Dr. Walker has rated claimant as having a 32 percent impairment to the body as a whole. It is impossible to determine how much of that 32 percent impairment is allocated to the right upper extremity. Claimant is restricted from all repetitive activities with the right arm. He is unable to return to employment in the packing plant. In light of the foregoing, it is the determination of the undersigned that claimant has a 30 percent impairment to the right upper extremity. Under section 85.34(2)(m), claimant is entitled to 75 weeks of permanent partial disability benefits at the stipulated rate of $264.86 per week. order THEREFORE, IT IS ORDERED: Defendants are to pay seventy-five (75) weeks of permanent partial disability benefits commencing on February 27, 1989, at the stipulated rate of two hundred sixty-four and 86/l00 dollars ($264.86) per week. Interest shall be paid pursuant to section 85.30. Defendants are responsible for costs pursuant to rule 343 IAC 4.33. Defendants shall file a claim activity report as requested by this division pursuant to rule 343 IAC 3.l. Page 6 Signed and filed this ____ day of May, 1991. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert S. Kinsey, III Attorney at Law 214 N Adams P O Box 679 Mason City IA 50401 Mr. Marvin E. Duckworth Attorney at Law Terrace Center STE 111 2700 Grand Ave Des Moines IA 50312 5-1803 Filed May 24, 1991 MICHELLE A. McGOVERN before the iowa industrial commissioner ____________________________________________________________ : LARRY D. ANDERSON, : : Claimant, : : vs. : : File No. 931110 ARMOUR FOOD COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : HARTFORD INSURANCE COMPANY., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803 Claimant sustained a 30 percent permanent partial disability to his right upper extremity. Page 1 before the iowa industrial commissioner ____________________________________________________________ : LARRY D. ANDERSON, : File No. 931110 : Claimant, : DECISION ON : vs. : SECOND INJURY : SECOND INJURY FUND OF IOWA, : FUND BENEFITS : Defendants : ___________________________________________________________ statement of the case This is a proceeding brought by claimant, Larry D. Anderson, against the Second Injury Fund of Iowa, as the sole defendant. This matter came on for hearing on March 25, 1992, at Mason City, Iowa. The record in this case consists of the testimony of the claimant, and claimant's exhibits 1 through 23. issues The parties submit the following issues for resolution: 1. Whether claimant received an injury on December 10, 1987, which arose out of and in the course of his employment; and, 2. Whether claimant is entitled to additional permanent partial disability benefits from the Second Injury Fund of Iowa. findings of fact The undersigned deputy, having reviewed all the evidence received, finds the following facts: Claimant, Larry Anderson, was born on February 16, 1962. At the time of the hearing, he was 30 years of age, lived in Mason City, Iowa, and is a divorced father of one son. Claimant graduated from high school in June of 1980, and has received no further education. On a part-time basis during high school, and for approximately three years after graduating from high school, claimant held several jobs with department stores, restaurants, and construction work. Claimant earned between $3 and $5 per hour. His most notable employment after high school was working as a route salesperson with Pepsi Cola. During Page 2 three and one-half years with the company, claimant stated that he used repetitively his arms to pull off cases of pop from the truck. In December of 1983, claimant began to work for Armour Food Company. He worked in the bacon department as a slicer for five and one-half years. Claimant described his job as pressing bacon together onto cardboard sheets and sending the product down the assembly line. While pressing the bacon together, claimant stated that his arms endured pressure in an inward and downward manner. In July of 1986, claimant sustained an injury to his leg while walking upstairs to work. He slipped and hyperextended his right knee and required medical attention from a A. Wolbrink, M.D. Claimant underwent arthroscopic surgery and was off of work for six to eight weeks. He was able to return to work as a bacon slicer, and continued in that capacity until December of 1987. At that time, claimant stated that he noticed pain in his right arm and shoulder. He reported to his supervisor, Carl Brandt, and was taken to the nurse's office. He was sent to Kenneth B. Washburn, M.D., and referred to an orthopedic specialist, Michael W. Crane, M.D. Dr. Crane diagnosed claimant's problem as a subluxing nerve of the right ulnar nerve. Eventually, three surgeries were performed on claimant's right upper extremity, concentrated in the elbow area. The final surgery was performed on December 2, 1988, and in February of 1989, it was recommended that claimant attend a pain clinic. Dr. Crane was of the opinion that claimant had sustained a 20 percent permanent functional impairment to the right upper extremity, confined to the right arm. He recommended that claimant not partake in repetitious work, especially in the meat packing industry (Claimant's Exhibit 18, pages 3-9). Claimant received a second opinion from John Walker, M.D. Claimant was terminated from his job with Armour Foods shortly after he was released to return to work. During 1989, he worked for Decker Truck Lines as an over-the-road semi truck driver. Claimant left this employment after seven months due to right arm pain. Next, claimant worked for several pipeline companies installing gas lines. These positions provided claimant with short term work, and he earned between $10.81 to $14.57 per hour. In February of 1991, claimant began working for K-Brick Distributors. He works as a warehouseman and performs general maintenance duties. He earns $6.50 per hour and works 45 hours per week. An arbitration decision filed May 24, 1991, determined that claimant had sustained a 30 percent impairment to the right upper extremity. He was awarded 75 weeks of permanent partial disability benefits. Claimant filed a second petition on January 2, 1991, Page 3 which alleges that he was entitled to Second Injury Fund benefits. Claimant states that he sustained a 2 percent functional impairment of the right lower extremity, which was assigned to him after Dr. Crane examined him in November of 1990. However, Dr. Crane's notes are somewhat contradictory, as he states the following: I examined Larry Anderson on the 27th of November, 1990. Enclosed is my office note regarding that visit. As you can see, his knee really examines quite well. Other than some subjective complaints there is very little I could document. I do note that in his arthroscopy Dr. Wolbrink excised a plica medialis. This is a congenital problem that becomes symptomatic usually after some trauma. There is not a particular permanent partial disability assigned to that through the AMA guidebook. (Cl. Ex. 17) analysis and conclusions of law The first issue to be addressed is whether claimant sustained an injury on December 10, 1987, which arose out of and in the course of his employment. An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). Claimant has the burden of proving by a preponderance of the evidence that he received an injury on December 10, 1987, 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 injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe, 246 Iowa 402, 68 N.W.2d 63. The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63. An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283; Musselman, 261 Iowa 352, 154 N.W.2d 128. Page 4 Claimant's position in the bacon department of Armour Food Company required him to use his upper extremities on a repeated basis. On December 10, 1987, claimant was working during his normal shift, and was performing his required job duties in an appropriate manner. He was able to describe for the undersigned deputy his job duties, and she is convinced that he sustained a cumulative injury which required him to leave work in December of 1987. As a result, it is found that claimant has sustained his burden of proof and has shown by a preponderance of the evidence that he was injured during his employment in December of 1987. The next issue to be addressed is whether claimant is entitled to additional permanent partial disability benefits from the Second Injury Fund of Iowa. Before the Second Injury Fund is exposed to liability, three requirements must be met. First, the employee must have lost or lost the use of a hand, foot, leg or eye. Next, the employee must sustain another loss or loss of use of another member or organ through a compensable injury. Finally, permanent disability must exist as to both the initial injury and the second injury. See Allen v. Second Injury Fund, 34 Biennial Rep., Iowa Indus. Comm'r 15 (1980); Ross v. Servicemaster-Story Co., 34 Biennial Rep. Iowa Industrial 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 Co., 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. The prior impairment must be permanent in nature and must have hindered the claimant's ability to obtain or retain effective employment. Anderson v. Second Injury Fund, 262 N.W.2d 789 (Iowa 5979). Although Dr. Crane initially indicates that claimant sustained a 2 percent functional impairment of the right lower extremity, his final notation dated December 18, 1990, indicates that there are no objective findings with respect to any physical impairment of claimant's right knee. It has been noted by the agency that pain which is not substantiated by clinical findings is not a substitute for the impairment. See Waller v. Chamberlain, II Iowa Industrial Commissioner Report 419, 425 (1981). The record does not indicate any substantial, significant clinical findings which correlate with the objective pain expressed by claimant. Nothing in the evidence suggests that claimant has any medical restrictions that would show permanent loss of function. As a result, claimant has failed to prove by a preponderance of the evidence that he sustained a permanent loss or loss of use of the right lower extremity. order Page 5 THEREFORE, it is ordered: That claimant take nothing from these proceedings. That defendants shall pay the costs of this action, pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of April, 1992. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Robert S Kinsey III Attorney at Law 214 N Adams P O Box 679 Mason City IA 50401 Mr Charles S Lavorato Assistant Attorney General Tort Claims Hoover Building LOCAL 5-3200 Filed: April 29, 1992 Patricia J. Lantz before the iowa industrial commissioner ____________________________________________________________ : LARRY D. ANDERSON, : File No. 931110 : Claimant, : DECISION ON : vs. : SECOND INJURY : SECOND INJURY FUND OF IOWA, : FUND BENEFITS : Defendants : ___________________________________________________________ 5-3200 Claimant was previously awarded 75 weeks to compensate him for a permanent disability to his right upper extremity. Claimant filed a petition against the Second Injury Fund of Iowa, and alleged a prior permanent loss to the right lower extremity. Although the treating physician initially noted a 2% loss to the right lower extremity, the final report indicated that there were no objective findings to substantiate the impairment. Claimant took nothing from the proceedings. Page 1 before the iowa industrial commissioner ____________________________________________________________ : WARREN W. MILLER, : : Claimant, : : vs. : : File No. 931111 KOSSUTH FABRICATORS, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : IOWA MUTUAL INSURANCE COMPANY,: : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This case came on for hearing on January 16, 1991, in Des Moines, Iowa. This is a proceeding in arbitration wherein claimant seeks compensation for healing period benefits and permanent partial disability benefits and 86.13 penalty benefits as a result of an alleged injury occurring on October 24, 1989. The record in the proceedings consists of the testimony of the claimant, claimant's wife, Pamela Miller, Mark Dahl, Susan Parsons, Mike Gregg, and Brian Schiltz; claimant's exhibits 1 through 20; and defendants' exhibits A through J. issues The issues for resolution are: 1. Whether claimant's alleged injury of October 24, 1989 arose out of and in the course of claimant's employment; 2. Whether claimant's alleged impairment and disability is causally connected to his October 24, 1989 injury; 3. The nature and extent of claimant's disability and entitlement to disability benefits; 4. Whether claimant is entitled to 85.27 medical benefits with the issue being authorization and causal connection; 5. Whether claimant is entitled to 86.13 penalty benefits; and, 6. Whether claimant is entitled to mileage reimbursement and costs. Page 2 findings of fact The undersigned deputy having heard the testimony and considered all the evidence, finds that: Claimant personally testified at the hearing and also by way of deposition in November 1990. Claimant is a 36-year-old high school graduate. He started Mankato Technical College in September 1990 and anticipates finishing this two-year course in 1992 resulting in a sales and marketing degree. Claimant embarked on his further education after some doctors suggested he look into more formal education. It is obvious from the medical testimony and reports that it was questionable whether claimant could return to the work he was doing at the time of his alleged injury. Claimant hopes to be a manufacturing representative. It is undisputed that claimant has received no support or rehabilitation of any kind from defendant employer, except in December 1990 when defendants offered some help. Prior to December 1990, all rehabilitation efforts were solely by the claimant. Claimant described his work history prior to beginning work in October 1987 for defendant employer. This prior history is set out in claimant's Exhibit 20 and involves many various jobs, none lasting for any extended number of years. Claimant indicated all those jobs involved either bending, stretching, heavy lifting, a lot of walking, repetitive work, intense physical labor, or a combination of these. Claimant concluded that he cannot do any of those former jobs or similar work because of his current restrictions and physical condition which he contends resulted from his October 24, 1989 injury. Claimant went through the prior jobs and explained why he could not do that work today. Claimant was hired by defendant employer as a designer in October 1987. He had some design experience due to other prior jobs. After approximately one and one-half months, claimant was taken off this job and placed in the machine shop making food handling and stainless steel conveyor machines. This job involved many facets of work. Claimant indicated that this work was at times light, heavy and very repetitive. Prior to October 24, 1989, claimant raced his own stock cars in the summer of 1987, 1988 and 1989. He said his wife and a friend were his pit crew. Claimant related some accidents he had while racing but emphasized he never hurt his back or legs nor sought medical help as a result of any of these accidents. There is no medical evidence to dispute claimant's testimony in this area. Claimant said his general physical condition was good prior to June 1989, and in June 1989 he experienced a sharp pain in his right hip and upper leg at work. Claimant did not seek medical help for this and it only lasted two days. He said he told the company about it as he was limping a Page 3 little. He made no claim and continued to work and did not miss any work because of this incident. Other than this incident, claimant indicated he was in good health until his October 24, 1989 injury. In October 1989, claimant was moved to a larger, heavier job. Claimant testified that on October 24, 1989, he was cutting off 50 pound blocks of steel and later that afternoon felt a sharp pain in his lower back and into his leg as he was picking up the blocks of steel and reaching to place them into a machine. Claimant contends he told his supervisor but there is total disagreement by defendants on this point. This is immaterial in this decision as notice is not an issue. As to credibility, this will be addressed later as there are several areas in which the parties disagree and which are cited by the parties as credibility issues. Claimant related he left defendant employer's place of business at approximately 5:20 p.m. on October 24, 1989, and eventually went home, took a tub bath and went to bed due to his pain. Claimant indicated he could not walk to the bathroom because he hurt so bad. Claimant's wife and his friend and wife helped dress and take claimant to the Mankato Clinic the next morning. Claimant was eventually put into the hospital and surgery was performed on his back on October 30, 1989. Claimant said he was referred to the OFC Back Care Center, a rehabilitation facility, and went there for outpatient treatment on December 1, 1989 until the end of January 1990. He was going through various exercise treatments at this facility. Claimant indicated the reason he quit going was because he ran out of money and could not afford it. Defendants were paying nothing. Claimant indicated he is still doing home exercises. Any medical bills that have been paid were paid through claimant's health insurance policy with defendant employer. No workers' compensation benefits have been paid. Claimant testified he did not try to find work until Brian W. Nelson, M.D., gave claimant a 10 percent impairment rating on May 23, 1990 (Claimant's Exhibit 7), and established certain restrictions; namely, 20 pound lifting limit, avoid repetitive stooping and bending, and must frequently change positions where he doesn't sit or stand for excessive periods of time. Claimant indicated these are his current restrictions, also. Claimant's current complaints are: pain down his right leg, lower back, pain in his right foot, irritation from standing or sitting, inability to lift over 20 pounds without problems, and an inability to repetitively sit and stand for one hour or more without changing positions. He emphasized his October 1989 injury has prevented him from driving a stock car, doing sign painting or going to hockey and football games. Claimant acknowledged that it was recommended to him that his back care treatment be reviewed by the Sister Kenny Foundation. He would like this to be done but the lack of money to pay for it prevents him from Page 4 doing so. Claimant states he is unable to return to work at defendant employer with his present restrictions. This was reaffirmed by the testimony of Brian Schiltz, who worked with claimant and is the son of the owner of defendant employer. Claimant decided in September 1990 to go back to school. He indicated he has borrowed money to put with other grants to pay for his education. He indicated he intends to continue schooling but would consider returning to defendant employer if offered a job and if the job complimented his restrictions. Claimant said he is getting all A's in his school courses. Claimant feels he has more rehabilitation potential. Claimant acknowledged he has not contacted defendant employer for a job. Claimant was asked about the notation by a doctor of a fall on his coccyx in 1979 resulting in no fracture (Defendants' Exhibit F, page 1). Claimant emphasized he never had a fall. Claimant emphatically defended his actions in going to school and taking a sales and marketing course and intends to continue even though a belated December 1990 rehabilitation counselor's report disagreed with claimant's actions. Claimant's wife testified that claimant was in bed and hurting bad when she came home around 8:30 p.m. on October 24, 1989. Claimant told her he was hurt at work. At 6:55 a.m. the next morning, claimant's wife called Brian Schiltz, at defendant employer's, and told him her husband was hurt at work and that she was taking her husband to the doctor and the hospital. This is verified by claimant's Exhibit 16. She said Brian then indicated he didn't think claimant was injured at work. Claimant and her friends then put claimant into the car to take him to the doctor as claimant was unable to dress and help himself. Mrs. Miller contends that Brian Schiltz told her on October 25, 1989 that claimant could not come back to work if he isn't 100 percent. Brian Schiltz adamantly denied this statement. Taking all the testimony as a whole, and the attitude of defendant employer from the beginning, the undersigned believes Brian Schiltz, on behalf of defendant employer, did make that statement. Brian Schiltz later testified that with claimant's current restrictions, whether it be 20 pounds or 40 pounds maximum lifting, claimant would not be able to return to work and perform any jobs at defendant employer's. Mrs. Miller basically corroborated several areas of claimant's testimony and there is no necessity of setting that out further in this decision. Mark Dahl, claimant's friend, acknowledged that he was claimant's pit crewman, along with claimant's wife, when claimant raced the stock car. He indicated claimant was not injured in any racing accidents in 1989 and he was in the pit for every race. He knows of no physical problems claimant had up to October 20, 1989, a Friday, when he was with claimant at a stock car dinner. He then saw claimant Page 5 over the weekend after claimant had taken his truck to pick up a motor. He knew of no health problems claimant had at that time. He described claimant's current problems as he observed him and related what claimant can and cannot do since the October 1989 incident. Claimant's sister, Susan Parsons, knew of no physical problems claimant had prior to his October 24, 1989 injury. She lived in a different town and only saw her brother occasionally, approximately every one or two months. Ms. Parsons tried to explain or rationalize how claimant's records (Defendants' Exhibit F) could erroneously reflect claimant fell on his coccyx in 1979. Ms. Parsons indicated she fell on her coccyx and broke it in 1980 or 1981. She explained a prior records mix-up. It is unnecessary to relate anything more regarding this dispute as the undersigned finds that regardless of this reference in claimant's records and the dispute arising therefrom, there is no evidence of any condition claimant presently has that has resulted from anything that occurred in 1979, 1980 or 1981, and as will be later seen in this decision. Michael Gregg, a former worker with defendant employer who quit two weeks before the hearing, is currently a self-employed car salesman. He is also a friend of Brian Schiltz. Brian Schiltz, son of the owner of defendant employer, testified as to various similar alleged actions concerning claimant to which Mr. Gregg also testified. These similar items involved the alleged playing of tricks, the telling of unbelievable jokes, claimant's toilet habits, whether claimant left the place of employment on October 24, 1989, at 4:20 to 4:30 or at approximately 5:20 p.m., whether he reported or referred to any injury he received that day, or whether claimant was hurt, and what car or truck claimant was driving on the day of the alleged injury. It was an obvious attempt to hold claimant out as a liar or an untruthful individual. Both Gregg and Schiltz concluded claimant was a liar and that he was not hurt. Claimant also called these two defendant witnesses untruthful. The undersigned finds it unnecessary to set out in detail in this decision the parties' many areas of factual dispute. As will be seen hereafter, there will not be a resolution of who the undersigned believes is lying or is not credible as to several of the areas of the witnesses' testimony. Schiltz indicated claimant is still considered an employee at defendant employer and the employer is still paying for claimant's medical insurance. A deposition of Edwin Markey, M.D., (Defendants' Exhibit 12) was taken by telephone on December 17, 1990. He first examined claimant on October 25, 1989 in the emergency room. He related claimant's history. Although there was some indication claimant had prior back pains, the doctor indicated claimant said his problems resulted from heavy lifting of some steel on October 24, 1989, which brought Page 6 claimant in to see him, and that this is what developed into his leg pain. The doctor said claimant was incapacitated so he moved the claimant to the hospital for further evaluation. The doctor performed surgery on claimant on October 30, 1989. Dr. Markey discussed claimant's bulging disc at S-1 pressing on a nerve. He also noted some large boney spurs and disc calcification. He said the spurs and calcification were not caused by the October 24, 1989 injury and that the disc nerve compression was the number one problem. He performed a right L-5,S1 laminectomy, diskectomy and spur impaction on October 30, 1989 (Cl. Ex. 1, p. 10). The doctor testified claimant's herniation could have been there since the summer of 1989. The doctor made it clear that the disc herniation can occur at any time with little or major provocation. Even a sneeze or a cough can cause a herniation. The doctor emphasized he relies on what the patient tells him to help determine the cause. The doctor acknowledged a February 1990 letter in which he encouraged claimant to seek light work at that time as long as claimant didn't have to "drive a car too far, doesn't have to do repetitive bending or lifting, lifting more than 40 pounds...." (Cl. Ex. 12, p. 24) Dr. Markey acknowledged that he opined in a letter of May 23, 1990, that claimant had an 11 percent impairment and that claimant's episode at work on October 24, 1989 caused a condition for which he saw the claimant the following day and did surgery soon thereafter (Cl. Ex. 12, pp. 28 and 32). Dr. Markey was asked whether he felt claimant had any significant improvement after his report of February [January] 8, 1990, and he answered that claimant got worse (Cl. Ex. 12, p. 31). The doctor indicated disappointment in the lack of rehabilitation claimant had which the doctor thought was necessary. He said claimant was never able to accomplish the things he expected claimant would accomplish after surgery. This is why he recommended claimant should complete a back care rehabilitation program (Cl. Ex. 12, p. 39). Also, in a February 8, 1990 letter (Cl. Ex. 3) he understood claimant was unable to complete the back rehabilitation program because of lack of funds. He agreed with Dr. Nelson's restrictions on claimant; namely, permanent 20 pound lifting restriction, avoiding repetitive stooping and bending, changing positions frequently, and no sitting or standing for excessive periods of time. The doctor indicated claimant reached maximum recovery around October 30, 1990, one year after claimant's surgery. he did not change claimant's 11 percent impairment rating that he opined in May 1990, after he saw claimant for the last time on October 8, 1990. Dr. Markey thinks claimant's lifting limit could be 40 pounds rather than the 20 pound limit placed by Dr. Nelson of the OFC Back Care Center. The doctor was extensively questioned on direct, cross-examination, redirect, and recross-examination as to claimant's healing period. He consistently concluded that claimant reached maximum recovery one year after surgery, namely, October 30, 1990. Page 7 Brian W. Nelson, M.D., owner of the OFC Back Care Center, also made a recommendation and report of December 5, 1989, that claimant should receive back care rehabilitation. In April 1990, Dr. Nelson still writes his concern that claimant should undergo rehabilitation and further wrote that "From the facts that I know on this case it does appear that it is work related." (Cl. Ex. 4, p. 9) In his May 23, 1990 report, Dr. Markey expressed that claimant needs to complete his rehabilitation course and it is mandatory that he do so. He acknowledged that claimant is without funds. He opined maximum medical improvement will be obtained after completion of the back care center rehabilitation program and that claimant presently has an 11 percent impairment. He issued restrictions and set a final evaluation for October 1990 (Cl. Ex. 6, pp. 2 and 3). On the same date, Dr. Nelson opined claimant had a 10 percent impairment at that time and opined rehabilitation could improve claimant. He also gave claimant a permanent 20 pound weight restriction and claimant was to avoid repetitive stooping and bending and be able to change positions frequently as to sitting or standing for excessive periods of time (Cl. Ex. 7). On October 23, 1990, Dr. Nelson wrote a letter setting out what appears to be the last written restrictions set out for this claimant (Cl. Ex. 11). The undersigned finds that these are, in fact, the current restrictions that are applicable to claimant at this time; namely, that claimant has a 20 pound lifting restriction and should avoid repetitive stooping and bending. In an October 12, 1990 letter, Dr. Markey indicated claimant was still having difficulties and suggested claimant's case be reviewed by the Sister Kenny Institute for any future treatment, if indicated (Cl. Ex. 10). Defendants' Exhibit G is a report of a certified insurance rehabilitation specialist who obviously came into the picture in December 1990 after the trial of this case had been set. This report is of little or no value in this matter. This report appears to have been prepared solely for an exhibit or testimony purposes and the undersigned finds it is a "johnny come lately" exhibit. If defendants were interested in helping claimant, especially after the numerous medical comments of claimant needing rehabilitation, then they should have participated earlier in claimant's treatment and tried to get claimant back to work with them or at other employment. As referred to earlier, there has been considerable dispute in the testimony as to certain actions of the claimant and that claimant is not credible. Although the undersigned does not find claimant not credible, a person can be not credible and still be injured. Defendants' position is that claimant must have been injured in a 1979 fall or in 1989 stock car race incidents or possibly moving a motor that he purchased and had placed in claimant's truck approximately three days before his injury. Of course, all Page 8 of this is speculation as there is no medical evidence to support defendants' contention. Considering the sequence of events, the closeness in the periods of time to various events, including the alleged injury, the phone call by the wife to the employer, the taking of claimant to the doctor, the surgery that was performed, and the conclusions of the doctor based on the history as they know it and as told to him by claimant, the undersigned finds that claimant, in fact, injured his back on October 24, 1989 at work, which resulted in claimant having herniated disc surgery on October 30, 1989, which ultimately resulted in claimant having an 11 percent impairment to his body as a whole and ultimate restrictions. The undersigned further finds that claimant's October 24, 1989 injury did arise out of and in the course of his employment. Claimant contends his healing period began on October 24, 1989 to and including October 24, 1990. Defendants contend claimant's healing period at the most ended May 23, 1990, which was the date of Dr. Markey's 11 percent impairment rating. It is obvious from the May 23, 1990 letter of Dr. Markey that he did not consider claimant reaching maximum healing and that his impairment was based on what he thought was claimant's impairment at that time. It is obvious in Dr. Markey's and Dr. Nelson's reports that they felt claimant could improve and suggested a back rehabilitation program. Claimant was in that program a few weeks, but because of funds was unable to continue. He was improving while he was in the program. Dr. Markey is definitive in his testimony (Cl. Ex. 12, p. 55) whereby after extensive examination, he concludes that claimant reached maximum healing one year after his surgery which would be October 30, 1989. The undersigned therefore finds that claimant's healing period began on October 24, 1989 to and including October 30, 1990. Claimant is 36 years old and has not worked since October 24, 1989, the date of his injury. Claimant's healing period did not cease until October 30, 1990. Claimant started school again in September 1990 in a two year course. Defendants brought in at a late date a rehabilitation consultant who believes that this is not the proper choice for claimant. Unfortunately, defendants should have thought about helping claimant earlier rather than coming at this point and suggesting, after claimant has obtained certain financing and grants, that he should drop out of school and try to do something else. It is true that claimant has not made any real effort to try to find a job. Claimant cannot be faulted for this under the circumstances of this case. If claimant sought a job and was honest with the potential employer as to his medical, it would be hard to believe that any employer would hire claimant under those circumstances. Defendants have no position for claimant in their place of employment and it was affirmed by defendant employer at the hearing that there would be no job for claimant with his current permanent restrictions. Taking into consideration those criteria which are used Page 9 in determining the extent of industrial disability, namely, but not limited to, claimant's age, education, healing period, medical history prior to and after the injury, claimant's skills, employment history, nature of claimant's injury, the permanent restrictions and claimant's motivation, the undersigned finds that claimant has incurred a loss of earning capacity as a result of his work-related October 24, 1989 injury. The undersigned finds that claimant has a 25 percent industrial disability. Defendants raise an 85.27 medical benefits issue. This agency has consistently held that when defendants deny liability, and liability is found, they are responsible for claimant's medical expenses that were necessary and reasonable. The undersigned finds that claimant's medical expenses set out on claimant's Exhibit 14 are reasonable and necessary and were caused by claimant's work-related October 24, 1989 injury and that those bills should be paid. Defendants are given credit as stipulated by the parties for the $3,537.58 that was paid by the Employers Group Insurance as set out on said exhibit. The undersigned also finds that defendants are responsible for the mileage expenses set out on claimant's Exhibit 19 in the amount of $656.25. As to the costs in dispute, the undersigned finds that defendants are responsible for reimbursing the claimant for the $65 filing fee, as represented by claimant's Exhibit 18, but that defendants are not responsible for the other bills shown thereon which are considered by the undersigned as a cost of doing business for claimant as they refer to costs of getting certain copies of medical bills and the cost of the claimant's copy of Dr. Murphy's deposition. Defendants obviously had the cost of the original deposition and defendants, of course, have the cost of obtaining their own copies of certain exhibits. The claimant contends there should be 86.13 penalty benefits assessed against defendants. Taking all the circumstances into consideration, it would appear that early in the period after claimant's injury delaying commencement of benefits on the part of defendants may have by a narrow margin passed as reasonable. When the May 23, 1990 report of Dr. Markey and the report on the same date of Dr. Nelson came into existence, the undersigned believes that defendants then became at risk for liability under this section. This belief is supported by defendants making a last ditch effort to obtain their own rehabilitation consultant in December 1990 and issue a report one month before the trial. There seems to be no logic in bringing a rehabilitation expert in at that time other than as a "hired gun." There was nothing that really happened that would cause said expert to come in at that point in time versus coming into the picture at least by May or June 1990. The undersigned finds there was some delay in the commencement of benefits to the claimant without reasonable or probable cause or excuse. The undersigned, therefore, finds that defendants are responsible for an additional 5 weeks of penalty benefits payable to claimant. Page 10 The parties dispute the rate which should be paid for any benefits that are found to be owing in this matter. Claimant contends the rate should be $213.77 per week and defendants contend it should be $212.63 per week, a difference of $1.14 per week. Claimant's Exhibit 17 sets out the figures. The undersigned finds that the last 15 weeks set out on claimant's Exhibit 17 should be considered and that from those weeks the $264 for the period of July 30 to August 5, 1989 should be excluded as an unusual or short week and the $495 for the week of October 22 to October 28, 1989 should be excluded as having included an unusual lump sum amount. The remaining 13 weeks total divided by 13 amounts to a gross income of $332.15 per week. Claimant's rate of weekly benefits is found to $213.77 based on claimant's entitlement of two exemptions. conclusions of law Claimant has the burden of proving by a preponderance of the evidence that he received an injury on October 24, 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 of October 24, 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 (1967). If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term `disability' to mean `industrial disability' or loss of earning capacity and not a mere `functional disability' to be computed in the terms of percentages of the total Page 11 physical and mental ability of a normal man." Iowa Code section 85.34(1) provides that if an employee has suffered a personal injury causing permanent partial disability, the employer shall pay compensation for a healing period from the day of the injury until (1) the employee returns to work; or (2) it is medically indicated that significant improvement from the injury is not anticipated; or (3) until the employee is medically capable of returning to substantially similar 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 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 Page 12 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 86.13 provides, in part: 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 chapter 85, 85A, or 85B, up to fifty percent of the amount of benefits that were unreasonably delayed or denied. It is further concluded that: Claimant's injury of October 24, 1989 arose out of and in the course of his employment. Claimant's work-related October 24, 1989 injury caused claimant to incur a low back injury, an 11 percent permanent impairment to his body as a whole and a right L-5,S1 laminectomy, diskectomy. Claimant's October 24, 1989 work-related injury caused claimant to incur permanent restrictions of 20 pounds and the avoidance of repetitive stooping and bending. Claimant's October 24, 1989 work-related injury caused claimant to incur a healing period beginning on October 24, 1989 to and including October 30, 1990, which amounts to 53.143 weeks of healing period benefits at the rate of $213.77 per week. Defendants are to pay all claimant's medical expenses as set out in claimant's Exhibit 14, with a credit as set out therein. Defendants are responsible for payment of 86.13 penalty benefits to claimant involving 5 weeks ($1,068.85). order THEREFORE, it is ordered: That defendants shall pay unto claimant healing period benefits at the rate of two hundred thirteen and 77/100 dollars ($213.77) for the period beginning October 24, 1989 to and including October 30, 1990, which involves fifty-three point one four three (53.143) weeks. That defendants shall pay unto claimant one hundred twenty-five weeks of permanent partial disability benefits at the rate of two hundred thirteen and 77/100 dollars ($213.77) beginning October 31, 1990. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for Page 13 weekly benefits previously paid. Defendants have paid no previous weekly benefits but are to receive credit for three thousand five hundred thirty-seven and 58/100 dollars ($3,537.58) in medical expenses. That defendants shall pay all of claimant's medical expenses set out in claimant's Exhibit 14 and shall receive credit shown thereon. That defendants shall pay mileage in the amount of six hundred thirty-six and 25/100 dollars ($636.25), as shown on claimant's Exhibit 19. That defendants are responsible for the sixty-five dollar ($65.00) costs on claimant's Exhibit 18. The remaining costs of said exhibit are to be paid by claimant. That defendants are to pay five (5) weeks or one thousand sixty-eight and 85/100 ($1,068.85) for 86.13 penalty benefits to claimant. That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall pay the costs of these actions, pursuant to rule 343 IAC 4.33. That defendants shall file an activity report upon payment of these awards as required by this agency, pursuant to rule 343 IAC 3.1 Signed and filed this ____ day of February, 1991. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Robert S Kinsey III Attorney at Law 214 N Adams P O Box 679 Mason City IA 50401 Mr Paul R Doster Attorney at Law 215 W Call St Algona IA 50511 5-1100; 5-1108; 5-1802 5-1803; 5-2500; 4000.2 Filed February 6, 1991 Bernard J. O'Malley before the iowa industrial commissioner ____________________________________________________________ : WARREN W. MILLER, : : Claimant, : : vs. : : File No. 931111 KOSSUTH FABRICATORS, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : IOWA MUTUAL INSURANCE COMPANY,: : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1100 Found claimant's injury arose out of and in the course of his employment. 5-1108; 5-1802; 5-1803 Found claimant's work injury caused claimant to incur an 11% permanent partial impairment to his body as a whole and a need for right L5-S1 laminectomy diskectomy, all resulting in a 25% industrial disability and 53.143 weeks of healing period. 5-2500; 4000.2 Claimant awarded 5 weeks ($1.068.85) of 86.13 penalty benefits, mileage and medical. Page 1 before the iowa industrial commissioner ____________________________________________________________ : JEREMY PERGANDE, : : Claimant, : File No. 931117 : vs. : A R B I T R A T I O N : FDL FOODS, INC., : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ____________________________________________________________ statement of the case This is a proceeding in arbitration brought by Jeremy Pergande, claimant, against FDL Foods, Inc., self-insured employer, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained on September 28, 1989. This matter came on for hearing before the undersigned deputy industrial commissioner on June 5, 1991 in Dubuque, Iowa. The record was considered fully submitted at the close of the hearing. The record in this case consists of joint exhibits 1 and 2, claimant's exhibits A and B, and defendant's exhibit 1. issues Pursuant to the prehearing report and order dated June 5, 1991, the parties have stipulated that: 1. An employer-employee relationship existed between claimant and employer at the time of the alleged injury; 2. Claimant sustained an injury on September 28, 1989 which arose out of and in the course of employment with employer; 3. The alleged injury is a cause of temporary disability; 4. The extent of temporary disability is from September 28, 1989 through December 20, 1989; 5. The commencement date for permanent partial disability, in the event such benefits are awarded, is stipulated to be December 20, 1989; 6. Claimant's marital status at the time of his injury is single with one dependent; and, 7. Defendant paid claimant 11.857 weeks of compensation at the rate of $34.22 per week prior to the hearing. The issues remaining to be decided include: Page 2 1. Whether claimant's work injury is a cause of permanent disability and, if so, the extent of entitlement to weekly compensation; 2. The rate of weekly compensation; and, 3. Whether claimant is entitled to medical benefits under Iowa Code section 85.27. findings of fact The undersigned has carefully considered all the testimony given at the hearing, the arguments made, the evidence contained in the exhibits herein, and makes the following findings: Claimant testified that, on June 12, 1989, he started employment at FDL Foods gutting hogs. He stated that this was a part-time job. He worked the 3 p.m. to 7 p.m. shift. In this capacity, he gutted between 500-800 hogs per night. He testified that he was asymptomatic prior to joining the company. By early September 1989, he had pain, numbness and tingling in his left hand. He initially sought treatment through the company medical department and was prescribed conservative therapy by Dr. Faber, the company physician. Being dissatisfied with this treatment, claimant saw Dr. McDermott who referred him to David S. Field, M.D. Dr. Field referred him for carpal tunnel testing and, based on the results, performed a median nerve/carpal tunnel repair. Claimant was released to return to his regular work activity in December 1989. He returned to the hog kill operation pulling guts, but found he could not do the job and asked for easier work. Since no other work was available, he quit in December 1989. He was unemployed until May 1990 when he got a job with Keeler Paint Center where he paints and sandblasts. Tom Osterholz also testified at the hearing. Mr. Osterholz is director of safety, security and workers' compensation benefits at FDL Foods. He testified that there are no normal shifts in the hog kill operation. Although the starting time for employees is the same depending upon their shift, the length of the work day depends on the number of hogs to be killed that day. He stated that claimant's medical treatment and surgery were not authorized by the company. He stated that claimant notified Dr. Faber on October 6, 1989 that Dr. Field had prescribed surgery. He was advised that the company would not pay his medical bills because Dr. Field was not an authorized physician. Darlene Kaufman, registered nurse in the company medical department, also testified at the hearing. She stated that joint exhibit 1 is a copy of claimant's medical record which is kept by the medical department. She testified that, according to those records, claimant first presented to the department on August 30, 1989 with complaints of left hand, index, middle and ring finger pain and swelling. On August 31, 1989, claimant saw Dr. Faber who prescribed conservative therapy. According to company Page 3 medical records, claimant did not return for any of the recommended treatment. On October 2, 1989, claimant presented to the medical department and informed them that he had decided to treat with another physician. Ms. Kaufman stated that, if claimant had participated in conservative therapy and if such therapy was unsuccessful, EMG testing would have been ordered and referral to a specialist made. The evidence of record indicates that the claimant presented to the company medical department on August 30, 1989 with complaints of left hand, index, middle and ring finger pain and swelling. He had been working gutting hogs for the past two months. The next day, he saw the company physician, Dr. Faber, and the doctor diagnosed tendonitis and prescribed vitamins and Advil (exhibit 1, page 1). On September 28, 1989, claimant saw Dr. Field for an orthopaedic evaluation. Dr. Field reported that claimant's symptomatology was suggestive but not diagnostic of carpal tunnel syndrome. He recommended EMG and nerve conduction studies (exhibit 1, page 15). These were performed on October 11, 1989 and interpreted by Patrick R. Sterrett, M.D. His interpretation indicated that this study was abnormal as to the left median and sensory nerve with significant reduction in the recruitment of the thenar muscles of the left hand (exhibit 1, page 17). On October 27, 1989, claimant underwent decompression of the left carpal tunnel by Dr. Field at Mercy Health Center (exhibit 1, page 19). Sutures were removed on November 6, 1989 (exhibit 1, page 15). There is no indication from the medical records that claimant required follow-up care. Dr. Field did not assign a permanent impairment rating nor restrict claimant's activities subsequent to surgery (exhibit B). In this regard, claimant testified that he was released to return to full duty in December 1989 with no restrictions. He also testified that he lifts weights and has no residuals from his left hand surgery which interfere with his work activity in any way. conclusions of law Claimant bears the burden of proof. Claimant has failed to show, by a preponderance of the evidence, that he has suffered a left hand injury that has resulted in a permanent physical impairment. No physician who has treated and/or examined claimant has indicated that he has a permanent impairment due to left hand injury and subsequent surgery. Claimant's own testimony corroborates an absence of permanency or restrictions related to left carpal tunnel syndrome. Accordingly, claimant is not st type of medical benefits clause, the employer is required to furnish medical and hospital services in the first instance. . . . . . . . [I]t is generally held that the employee should ordinarily not incur medical expense without first giving the employer a reasonable opportunity to furnish such services, and if he does so, the employee will be liable for that expense himself. . . . . . . If the employer has sufficient knowledge of the injury to be aware that medical treatment is necessary, he has the affirmative and continuing duty to supply medical treatment that is prompt, in compliance with the statutory prescription on choice of doctors, and adequate; if the employer fails to do so, the claimant may make suitable independent arrangements at the employer's expense. It is usually held that, when the employee has furnished the employer with the facts of his injury, it is up to the employer to instruct the employee on what to do to obtain medical attention, and to inform him regarding the medical and surgical aid to be furnished. . . . The employer need not actually have refused medical services; it is enough that he has neglected to provide them. . . . Page 5 [T]he furnishing of medical services by the employer must be prompt; if there is undue delay, the employer may become liable for services engaged by the employee in the meantime. . . . Moreover, if the employee has once justifiably engaged a doctor on his own initiative, a belated attempt by the employer to offer a doctor chosen by the employer will not cut off the right of the employee to continue with the employee's doctor. . . . Defendant contends that claimant's medical treatment and subsequent surgery were unauthorized and, therefore, it is not responsible for the $2,203.43 in medical bills which were paid for, not by claimant, but by Medicaid under Title XIX (exhibit A). As previously noted, claimant initially presented to the medical department at FDL Foods on August 30, 1989 with complaints of left hand and finger pain. On August 31, 1989, he was evaluated by the company physician and a temporary diagnosis of tendonitis was made. He was also prescribed conservative therapy. Claimant's testimony that he participated in shock and whirlpool treatments for one week in September 1989 was refuted by Darlene Kaufman, the company nurse. Ms. Kaufman stated that, if claimant had in fact taken these treatments, they would have been recorded in claimant's medical file. There are no entries in claimant's medical record between August 31, 1989 and October 2, 1989. Thus, the documentary evidence does not support claimant's testimony. The record does indicate that claimant, on his own, sought a second opinion regarding his left hand pain. When he reported the results of the second opinion to the medical department on October 2, 1989, he was advised that, since he did not return to the medical department for treatment and chose to go to his own physician, he was responsible for payment of his own bills (exhibit 1, page 2). The evidence is clear that claimant incurred medical expenses without first giving the employer a reasonable opportunity to furnish such services and he failed to follow prescribed treatment. When claimant filed his original notice and petition, he alleged an injury date of August 30, 1989. In the Answer to claimant's petition, employer denied liability for an injury on August 30, 1989. At the prehearing conference held on January 2, 1991, defendant admitted compensability of an injury on September 28, 1989. This was reaffirmed in the prehearing report and order dated June 5, 1991. Under Iowa Code section 85.27, defendant is entitled to choose the medical care as long as it is offered promptly and is reasonably suited to treat the injury without undue inconvenience. Claimant did not give defendant an opportunity to choose such care. Claimant knowingly sought unauthorized medical benefits after unreasonably refusing the care offered by defendant. Therefore, defendant's defense of lack of authorization is valid and claimant is Page 6 not entitled to the medical benefits he now seeks for the unauthorized care and treatment obtained after August 31, 1989. The final issue to be determined in this case is the rate of compensation. Defendant has paid claimant 11.857 weeks of temporary total disability benefits at the rate of $34.22 per week. Defendant arrived at this figure by adding claimant's gross pay from June 23, 1989 through September 29, 1989 and dividing by 50 ($1,856.53 divided by 50 equals $37.13 per week average wage). Using the July 1, 1989 Guide to Iowa Workers' Compensation Claim Handling rate book, they arrived at a weekly compensation rate of $34.22. Defendant used, for the basis of their computation, Iowa Code section 85.36(10). This section states as follows: If an employee earns either no wages or less than the usual weekly earnings of the regular full-time adult laborer in the line of industry in which the employee is injured in that locality, the weekly earnings shall be one-fiftieth of the total earnings which the employee has earned from all employment during the twelve calendar months immediately preceding the injury. After carefully considering the total evidence in this case, the undersigned is persuaded that Iowa Code section 85.36(6) is applicable to this case. That section provides as follows: In the case of an employee who is paid on a daily, or hourly basis, or by the output of the employee, the weekly earnings shall be computed by dividing by thirteen the earnings, not including overtime or premium pay, of said employee earned in the employ of the employer in the last completed period of thirteen consecutive calendar weeks immediately preceding the injury. In this regard, Mr. Osterholz testified that all employees on claimant's part-time shift start at the same time every day, but the length of their work day depends upon the number of hogs to be killed that day. It is evident that claimant is paid depending upon the output of his work. His pay history for the weeks June 23, 1989 through September 22, 1989 indicates that his average weekly wage was $130.43. Using the July 1, 1989 Guide to Iowa Workers' Compensation Claim Handling rate book, claimant's rate of weekly compensation is $92.17. Since defendant paid claimant 11.857 weeks of compensation at the rate of $34.22 per week, claimant has been underpaid temporary total disability benefits and is entitled to the difference between what he was paid and what he should have been paid. Page 7 order THEREFORE, IT IS ORDERED: Claimant is entitled to eleven point eight five seven (11.857) weeks of temporary total disability benefits at the rate of ninety-two and 17/100 dollars ($92.17) per week. Defendant shall be given credit for all payments voluntarily made to claimant prior to the filing of this decision. Accrued weekly benefits shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. The costs of this action shall be assessed to defendant pursuant to rule 343 IAC 4.33. Because the filing fee was deferred in this matter, defendant shall forward sixty-five and 00/100 dollars ($65.00) to this office within ten (10) days of the filing of this decision. Defendant shall file a final report when this award is paid pursuant to rule 343 IAC 3.1. Signed and filed this ______ day of ____________, 1991. ______________________________ JEAN M. INGRASSIA DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. James H. Reynolds Attorney at Law 1045 Main Street Dubuque, Iowa 52001 Mr. James M. Heckmann Attorney at Law One CyCare Plaza Suite 216 Dubuque, Iowa 52001 5-1801; 5-2505; 5-3003 Filed June 19, 1991 JEAN M. INGRASSIA before the iowa industrial commissioner ____________________________________________________________ : JEREMY PERGANDE, : : Claimant, : File No. 931117 : vs. : A R B I T R A T I O N : FDL FOODS, INC., : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ____________________________________________________________ 5-1801 Claimant awarded temporary total disability benefits. Permanency not established. No restrictions or impairment rating after decompression of left carpal tunnel. 5-2505 Defendant refused to pay any medical expenses for treatment asserting lack of authorization under 85.27. Claimant refused to cooperate with recommended conservative care and obtained a second medical opinion, diagnostic testing and surgery without authorization from defendant. Employer admitted compensability of claimant's injury and offered medical care which claimant refused. Defendant not responsible for medical bills under 85.27. 5-3003 The parties disputed the rate of compensation. Defendant had paid 11.857 weeks of compensation at the rate of $34.22 per week. Computation pursuant to 85.36(10). Due to the nature of claimant's work as a part-time hog gutter, section 85.36(6) rather than 85.36(10) found applicable to this case. Claimant's rate of compensation found to be $92.17 per week rather than $34.22. Page 1 before the iowa industrial commissioner ____________________________________________________________ : LEE SCHWAB, : : Claimant, : : vs. : : File No. 931118 PIONEER HI-BRED INTERNATIONAL,: INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : HARTFORD INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This case came on for hearing on April 29, 1991, at Waterloo, Iowa. This is a proceeding in arbitration wherein claimant seeks compensation for permanent partial disability benefits as a result of an alleged injury or occupational disease occurring on June 2, 1989. The record in the proceeding consists of the testimony of claimant, Danny Stearns, Marvin Meyer, Bill Thompson and Joseph Ronald Donohue; joint exhibits A, B and C; and claimant's exhibits 1, 2, 5 through 12. Claimant offered into evidence claimant's exhibits 13 through 16 to which defendants objected. A ruling was reserved until this decision. Said exhibits are admitted into evidence and defendants' objections are overruled. 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 disability or occupational disease is causally connected to an alleged June 2, 1989 injury; 3. The nature and extent of claimant's disability and entitlement to benefits; 4. Whether claimant has an 85A occupational disease; and, 5. Whether claimant is entitled to 85.27 medical benefits as to items 1 through 4 set out in item 8 of the prehearing report and set out as exhibits 9, 10, 11 and 12. Page 2 findings of fact The undersigned deputy, having heard the testimony and considered all the evidence, finds that: Claimant is a 34-year-old high school graduate with no other formal post-high school education. Claimant described his work history prior to beginning work for defendant employer in 1976. This prior history mainly involved working in a laundry and painting a few houses. Beginning 1976, claimant first worked at defendant employer's Reinbeck, Iowa soybean plant. Claimant said he began developing breathing problems in 1984 about every other week. Claimant would buy an over-the-counter inhaler spray which would help him by spraying in his mouth. Claimant said there were no masks at first, but in 1982 to 1983 there were hard plastic masks available but no direction to use them. Claimant indicated he met Danny Stearns around this time and became friends. They boxed twice a week and went to boxing classes. Claimant said his breathing condition gradually became worse. In January 1986, claimant was then transferred to defendant employer's Renwick plant. Claimant said he has smoked since the eleventh grade and smoked one pack a day or less when he first worked for defendant employer. He contends he does not smoke now. He acknowledged that Steven Zorn, M.D., and Sherry Bulten, M.D., told him to stop smoking. He said no one at defendant employer's place of business told him not to smoke at the plant and there were no notices except in the warehouse. There was a break room for smoking. Claimant described or agreed with other witnesses' description of the plant operation and his duties. Claimant's job basically involved cleaning the bins with an air hose and repairing and maintenance at the plant. This type of work created a lot of dust. He described the heavy breathing attacks he would get from the dust in the air. This resulted in claimant wheezing, increased heartbeat, coughing up phlegm and black dirt, and needing to use his inhaler spray three to four times a week to open up his lungs. Claimant was asked many times about using a mask. It appears claimant's testimony as a whole is that he claimed he always used a mask but repeatedly emphasized there was not notice to use a mask but there was a hearing device notice posted near the cleaner room. Claimant said the number of times a day or week in which the grain bins need to be clean varied. Claimant indicated someone came to the plant to test the dust. He related that a discussion occurred after an examination by Dr. Zorn regarding claimant going to a different job involving no dust. Claimant indicated there was no different job available or offered. He said he would have taken a dust-free job, if offered. Claimant related that the use of a space-type helmet was discussed by defendant Page 3 employer's personnel department and an insurance company representative while claimant was still working at the plant. Claimant related that he picked a date of June 2, 1989 to quit defendant employer so as to coincide with the slowest grain production period and to give sufficient notice to defendant employer to fill his position. Claimant said he wasn't smoking much at this time. He said he quit entirely two months ago. Since leaving defendant employer, claimant has done exterior painting, landscaping, mowing, moving and hauling. Claimant then indicated he worked a short time at Luck Heating and Air Conditioning in February-March 1990, but could not do the work due to its effect on his breathing. He said every time he came in contact with the furnace dust, he reacted. Claimant said he made a list of 40 places he went to in his job hunt. Claimant said he has not returned to boxing or too much exertion because it is hard to breathe when he is doing it. Claimant acknowledged that Dr. Zorn, in 1990, told him to stop smoking. He contends he was only smoking one cigarette in two weeks at that time. He indicated at the time of his June 2, 1989 alleged injury that he was smoking five cigarettes a day. Claimant's attention was then called to his July 9, 1990 deposition in which claimant said he was smoking two packs or less a day. Claimant indicated that Dr. Zorn only gave him a breathing test as his examination. Claimant testified he had a job lined up to be a partner in a roofing operation when he quit in June 1989. Although claimant said the partnership business was not set up at the time, it is obvious to the undersigned that it was at a stage that claimant felt assured it was going to be a reality after he quit defendant employer. Claimant said the arrangement did not work out and the people involved did not pursue their plan. Claimant's first job after leaving defendant employer was for three months thereafter and involved painting houses, mowing, landscaping, laying rock and railroad ties, and digging up yards. Claimants said he had no problems doing this. Claimant indicated that later when doing certain jobs such as sweeping out his garage or going to the dump, he had problems if there was dust. Danny Stearns testified as to when he and claimant both worked full time at defendant employer's in the early 1980's. He said claimant was always working in the mill room. He described claimant's job in the mill room, which was keeping the beans running and getting the dirt out of the bins. They became friends while working there. Stearns' last day of work was in 1985 at the Waterloo plant. He said there was no notice at the plant to wear masks or special clothing. He said the company policy on smoking changed because of the cigarette butts lying around, but he Page 4 said no one from defendant employer said the employees should not smoke. He knew of no breathing problem claimant had while Mr. Stearns worked there. Stearns said defendant employer had 3M masks to wear when the employee cleaned out the bins and he observed claimant wearing a mask. He indicated the dust would penetrate two masks and that he would spit up the dye that was used on the beans. He knew claimant left the plant to go to the Renwick, Iowa plant but kept in contact with him. Stearns now works for Lucks Heating and Cooling which is his and his uncle's business. He offered claimant a job installing furnaces. He indicated claimant would be in the basement and the dirt would cause him to have heavy wheezing. Claimant had to spray medicine in his mouth. He indicated claimant would be told to go outside because of his problem. Stearns related that claimant could not be useful in his company and he was afraid of claimant's condition. Claimant worked there four weeks in March 1990. Stearns said he would employ claimant if claimant was able to do the work. The pay is $5.50 per hour up to $12.00 per hour. Stearns said he and claimant were real active boxers sparring one-half to three-quarters of an hour without trouble. He related claimant went six to eight rounds. He testified claimant cannot do this anymore. Marvin Meyer, a farmer, testified he started working for defendant employer part time in June 1985 as a welder at the Renwick plant. He said he met claimant in the fall of 1986 when claimant was transferred there. Meyer changed from welding to helping cleaning and processing beans with claimant as his foreman. He described the plant operation air system (Claimant's Exhibit 8). Meyer said there was dust in the air and when the beans were cleaned, it was very dusty. He said he had to change his clothes before getting into the truck due to the dirt and dust at the plant. He said there was no notice as to wearing masks that the company provided but there was a sign as to a need for a hearing device to be used. Meyer said he would use a mask only in cleaning out the bins. He said claimant was very faithful in wearing the masks. Meyer recalled one occasion when he sent the claimant home as claimant was gasping, choking and had a hard time breathing. Meyer said masks were available but he was not told to use a mask. Meyer indicated that someone came to defendant employer's plant to monitor the dust one day. Meyer said claimant used a mask more than he did. He acknowledged that the soybean conditioning began at the plant around the first week of December until around April 15 each year and claimant would do welding and maintenance for defendant employer the rest of the time in the off season. Claimant helped him put in the production equipment in the new building and tower. Meyer said he has not seen claimant since he left defendant employer in 1989. He related claimant told him he was leaving as claimant could not breathe and because of the dust. Meyer said he observed claimant having trouble breathing and chocking. Page 5 Bill Thompson, plant supervisor for defendant employer since July 1, 1982, testified he was acquainted with claimant who reported to him at times. He said he talked with claimant four or five times on a daily basis. He described claimant's main duties, including the cleaning. He said the cleaning varied. Sometimes it occurred only one time a week. He related claimant was a very good worker and his skills were in metal work. He testified claimant never came to him to complain about the dust levels at the plant and he saw claimant every day. He has had no contact with claimant since he left the plant. He indicated he never observed that claimant stopped work because of shortness of breath, including when he assisted the claimant in jobs that produce dust. He said he heard from the plant manager, Mr. Donohue, that claimant left the plant due to breathing problems. He noticed near the end of claimant's employment that claimant did not seem as dedicated to the job as when he began. Thompson was asked by defendant employer to find claimant a less dusty job prior to claimant announcing in late 1988 that he was leaving. Thompson stated that no job offer or effort to find claimant a job has occurred since June 2, 1989. Joseph Ronald Donohue, the plant manager since July 1986, knows claimant and described claimant's duties. He said claimant was defendant employer's best welder and repairman. He said defendant employer's plant has a central duct system. He described the dust suction process. He indicated masks are made available by the company to all employees but there is no policy that they must wear them. He was aware that claimant had breathing problems. He met claimant on November 4, 1988, as to leaving defendant employer in the spring because claimant said he had a hard time breathing. Mr. Donohue said that defendant employer tried to find claimant another position or another place for claimant to work before claimant had come to him on November 4, 1988. He said when claimant came to him, claimant was not asking for another position. He indicated he was surprised that claimant was leaving his employment. He said claimant also had cluster migraine headaches that became so bad he had to leave work for two days. Donohue said the company was looking at ways to prevent dust from getting to claimant. Until claimant gave notice of leaving, defendant employer was still looking into getting a helmet for claimant to try. Donohue said they offered this helmet to claimant who indicated he had already talked to the man and claimant thought it would be too cumbersome and was not willing to wear it. Thompson said that although the company was still working to get the helmet for the claimant when the company was notified by claimant that he was leaving June 2, 1989, the company then disregarded getting the helmet since claimant was leaving and the season and the need for it would be over. Donohue said the unit concept and type was offered to claimant within three weeks prior to the November 4, 1988 date. Donohue acknowledged that prior to November 4, 1988, claimant was having respiratory problems and Donohue had talked to the insurance company on August 8, 1988 as to claimant's problem, on which date he and the plant secretary issued a first report of injury. Page 6 Donohue first acknowledged that prior to claimant's leaving work on June 2, 1989, claimant never received the dust inhalation preventive device nor had claimant seen it but defendant employer was only trying to explain it to claimant as to what it would be like. Donohue admitted he knew the air sampling tests in February 1988 were going to be done (Cl. Ex. 7). Claimant's medical records on September 30, 1987 with Charles Wirtz, M.D., indicated claimant had a past medical history remarkable for asthma and a history of headaches. Claimant's physical examination on this date contains nothing as to a dust problem or complaint. It appeared claimant's basic complaint at the time of his exam was headache and he related a family history of migraine headaches (Cl. Ex. 1). Dr. Zorn's report of October 14, 1988, indicated that claimant's exposure to soybean dust does aggravate his symptoms. It indicates that there are other factors in claimant's environment that are unrelated to his employment that are aggravating his asthma. These include both his wife's cigarette smoking, family pets (dog hair), and other allergens such as house dust, weed mix, early tree mix and possibly feathers. The doctor indicated that claimant's history is that of reversible airway obstruction. However, the doctor believes that if claimant could completely discontinue his smoking, remove the dog from the home and work in an area free from heavy exposure to soybean dust, these symptoms would disappear. He also indicated that since asthmatics have exacerbations of bronchospasm on exposure to cold weather, this may be a consideration in the retraining process (Cl. Ex. 1; Jt. Ex. A) Dr. Zorn's August 23, 1990 report indicates: I believe that he could further decrease his episodes of bronchospasm by adding bronchodilator....It is also likely that if he is able to discontinue his cigarette smoking for a period of three to four months, we would see further improvement in pulmonary function testing. .... Mr. Lee Schwab's present symptoms of mild asthma at this time cannot be contributed to exposure to soybean dust for the following reasons: A) He has not been around soybeans since leaving Pioneering Hi-Bred in June of 1989. B) Soybean dust would not result in the persistence of his symptoms once out of the environment. C) Mr Schwab still has agents in his Page 7 environment that can exacerbate his asthmatic tendencies including cigarette smoke, house dust and weed mix. (Jt. Ex. A) Claimant contends his incapacitation from performing the employer's work or earning equal wages in other suitable employment is because of an occupational disease. It was of interest to the undersigned that claimant asked several witnesses whether smoking was or was not allowed and whether there were signs of "no smoking" posted. Claimant has been a smoker averaging one and one-half packs a day for several years. In his medical history and testimony, claimant indicated he allegedly decreased his smoking to two cigarettes per week in October 1987 and at the time of his alleged June 2, 1989 injury, he was smoking five cigarettes a day. His attention was called to his July 9, 1990 deposition in which he said he was smoking two packs or less a day. Claimant has obviously tried to impress upon the undersigned that smoking is not a factor in claimant's condition. It is immaterial whether signs are posted or not. Claimant is a mature adult and obviously the doctor tried to impress upon him not to smoke because of claimant's medical situation. There is no indication that the smoking by others at the plant was a cause of any of claimant's problems and that there was a break room for those who smoked. Unless the claimant smoked, he would not have to go into the break room and be subjected to the smoke. Dr. Zorn's October 14, 1988 report also indicates claimant's wife is a one pack per day smoker and claimant told the doctor that his wife smoked outside the home because cigarette smoke bothered him. It is common knowledge what the effects of smoking to the smoker and the effects to the inhaler, including a nonsmoker, can be. It is immaterial whether defendant posted "no smoking" signs. In his description of disputes (page 4), claimant attacks Dr. Zorn's report in that claimant refers to page 3 being an obvious redraft as it appears it has been typed on a different typewriter. The undersigned presumes the doctor's signature in his report refers to its entire content. Claimant seems to indirectly refer that the former "draft" was different and not as detrimental to claimant's case. This contention has no basis or credibility in this case. Dr. Zorn, a pulmonary heart specialist, wrote on October 14, 1988 (Jt. Ex. A), that claimant's history is that of a reversal airway obstruction. He also indicated that if claimant would discontinue certain things, that his symptoms would disappear. The doctor was very clear in his August 23, 1990 report (Jt. Ex. B) that there is no medical evidence which causally connects claimant's complaints, medical condition, alleged disability or occupational disease to his June 2, 1989 injury. Claimant has not excluded from his immediate environment certain agents such as smoke and the family pet. There is no evidence that Page 8 claimant's wife has stopped smoking and the evidence is not convincing that claimant has entirely given up cigarette smoking. There is no evidence that the dog is out of claimant's close environment. Obviously, claimant should be staying away from all agents that may cause or acerbate claimant's allergies or asthma condition. Some agents are literally impossible to eradicate. Claimant has left his employment with defendant employer in order to remove himself from an obvious agent. The evidence shows that this has been beneficial to claimant and he is improving. Dr. Zorn said claimant's condition is reversible and will gradually disappear. Defendant employer does not owe claimant a job in an environment that will activate claimant's allergies or asthma. Claimant can't insist upon working in an environment that can be harmful to him. It appears from the evidence that claimant did not make a genuine effort to work with defendant employer when they were trying to accommodate claimant and get him a filter unit. It appears others were not bothered by the environment as claimant was. It appears claimant did not like wearing the mask made available. Claimant must use some self-help. Claimant removed himself from the environment after giving several months notice. It was reasonable for defendant employer to give up trying to obtain a special helmet for claimant after claimant gave notice that he was going to quit. Claimant was desirous to go into business with someone else and this appears from the record to be a main motivating factor for the timing of claimant's leaving defendant employer. The business arrangement fell through. This has resulted in claimant having a difficult time finding work that doesn't affect his allergies or asthmatic condition. Claimant has failed to show by a preponderance of the evidence that working for defendant employer proximately caused permanent disability or a compensable occupational disease. Claimant has failed to carry his burden of proof. The undersigned finds that the greater weight of evidence does not show claimant actually became incapacitated while performing his duties at defendant employer or from equal wages in other suitable employment because of an occupational disease. It is further found that claimant does not have an occupational disease as defined by 85A.4 of the Iowa Code. There are other factors in claimant's environment unrelated to his employment that are aggravating claimant's asthma or allergies. Claimant has a tendency for asthma and claimant's present symptoms of mild asthma cannot be contributed at the present time to exposure to soybean dust but can be contributed to other agents in claimant's environment, including but not limited to cigarette smoking, house dust and weed mix. The parties' prehearing report has Item No. 2 marked as disputed and also stipulated as to whether claimant received an injury that arose out of and in the course of claimant's employment. Joint Exhibit 6, Request No. 1 and response Page 9 thereto, indicated an admission that a work injury was sustained, but denied claimant's present disability. In looking at the parties' disputes and contentions attached to the prehearing report, it appears that any admission of a work injury involved a temporary injury and that such temporary injury was not sufficient and lasting enough to result in any temporary total disability or healing period. The undersigned will proceed on the basis that the parties' dispute any compensable injury that arose out of and in the course of claimant's employment which would result in any payable healing period or temporary total disability or permanent partial disability benefits. The undersigned finds that claimant did not incur a compensable injury, including an occupational disease, that arose out of and in the course of claimant's employment. As to the issue of 85.27 medical benefits, items 1 through 4 set out in the prehearing report and referred to as Claimant's Exhibits 9, 10, 11 and 12, the undersigned finds that these four items are not causally connected to claimant's June 2, 1989 alleged injury for reasons previously set out. The undersigned finds there is no industrial disability or occupational disease as a result of a June 2, 1989 injury. CONCLUSIONS OF LAW Claimant has the burden of proving by a preponderance of the evidence that he received an injury on June 2, 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 of June 2, 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). Chapter 85A.4 of the Iowa Code provides: Disablement as that term is used in this chapter is the event or condition where an employee becomes actually incapacitated from performing the employee's work or from earning equal wages in other suitable employment because of an occupational disease as defined in this chapter in the last occupation in which such employee is injuriously exposed to the hazards of such disease. Chapter 85A.8 of the Iowa Code provides, in part: Page 10 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 nture 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. It is further concluded that: Claimant failed to carry his burden of proof to show that claimant's exposure to soybean dust was the proximate cause of claimant's alleged June 2, 1989 injury or alleged occupational disease, current allergies or mild asthmatic condition. Claimant quit defendant employer's on June 2, 1989, as claimant was going into a roofing partnership with another person or persons, which arrangement fell through. This anticipated business venture was a material reason for claimant leaving defendant employer before attempting to cooperate with the employer and finding and using a proper filtering apparatus for claimant's benefit. Claimant did not try to work with defendant employer in trying to obtain a filter unit to filter any dust that would or was affecting the claimant. Claimant had decided to leave his employment with defendant employer before the satisfactory filter apparatus could be obtained. Defendant employer was making a good faith effort to accommodate claimant in his particular allergies or asthmatic condition or tendencies. Claimant did not make a good faith effort to eliminate certain allergens in his environment in which he had direct or indirect control, namely, smoke, dog hair or animal(s) on his premises, which nonwork environmental agents along with other environmental agents were contributing factors to claimant's medical condition, allergies and asthmatic condition or tendencies. Claimant has an allergenic asthmatic condition that is effected by many environmental agents, such as dog hair, dust, weed mix, soybean dust and smoke. This condition is effected by the exposure of claimant to these agents. Claimant's condition and the extent is reversible upon claimant removing himself from as many of these agents as possible. Page 11 Claimant's current alleged symptoms of mild asthma cannot be contributed to exposure to soybean dust. Claimant failed in his burden of proof to show he has a permanent disability or occupational disease under 85A as a result of exposure to soybean dust while working for defendant employer versus exposure to many other nonwork environmental agents and allergens. order THEREFORE, it is ordered: That claimant takes nothing from these proceedings. That the costs shall be divided equally by the parties pursuant to 343 IAC 4.33. Signed and filed this ____ day of May, 1991. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr W H Gilliam Attorney at Law 722 Water St Waterloo IA 50703 Mr George H Capps Attorney at Law P O Box 971 Des Moines IA 50304 1402.20; 1402.30; 1402.40 2203; 1100; 1108; 1108.40 Filed May 22, 1991 Bernard J. O'Malley before the iowa industrial commissioner ____________________________________________________________ : LEE SCHWAB, : : Claimant, : : vs. : : File No. 931118 PIONEER HI-BRED INTERNATIONAL,: INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : HARTFORD INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1100; 1402.30; 1402.40; 1402.20 Found claimant failed to prove he incurred an occupational disease (85A) or an industrial disability which arose out of and in the course of his employment. 1108.40; 1108; 2203 Claimant failed to prove causation between alleged injury or occupational disease and his mild asthmatic or allergy conditions. A pulmonary heart specialist opined claimant's problems subsided when removed from the allergen, soybean dust and would further subside if he quit smoking, was not subjected to wife's smoking, removed animal(s) from his house, and avoided, if possible, environment nonwork-related allergens. Claimant's condition was found to be reversible.