Page 1 before the iowa industrial commissioner ____________________________________________________________ : ELIZABETH MCLAUGHLIN, : : File Nos. 918331 Claimant, : 931329 : 931328 vs. : : UNIVERSAL HOME HEALTH CARE, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : FIDELITY AND CASUALTY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Elizabeth McLaughlin, claimant, against Universal Home Health Care, employer and Fidelity and Casualty, insurance carrier, to recover benefits under the Iowa Workers' Compensation Act as the result of injuries sustained on May 9, 1989; September 28, 1989 and October 13, 1989. This matter came on for hearing before the undersigned deputy industrial commissioner on March 4, 1992, in Des Moines, Iowa. The record was considered fully submitted at the close of the hearing. The claimant was present and testified at the hearing. Also present and testifying were J. Michael Gaffney, P.H.D.; Jo Weeces; Carolyn Wright; and Twila Provenzano. Documentary evidence identified in the record consists of claimant's exhibits 1 through 25 and defendants' exhibits A through S. issues Pursuant to the prehearing report and order dated March 4, 1992, the parties have presented the following issues for resolution: In file number 918331: . Whether claimant's injury on May 9, 1989, is a cause of permanent disability; . The extent of entitlement to weekly compensation for temporary total or healing period benefits; . The extent of entitlement to weekly compensation for permanent disability benefits; . The type of permanent disability, if the injury is found to be a cause of permanent disability; and Page 2 . The extent of claimant's entitlement to medical benefits under Iowa Code section 85.27. In file number 931328: . Whether claimant sustained an injury on September 28, 1989, which arose out of and in the course of employment with employer: . Whether claimant's alleged injury is a cause of temporary and permanent disability; . The extent of entitlement to weekly compensation for temporary total disability or healing period benefits; . The extent of entitlement to weekly compensation for permanent disability benefits; . The type of permanent disability benefits, if the injury is found to be a cause of permanent disability; . Whether claimant is entitled to medical benefits under Iowa Code section 85.27 and whether such expenses were authorized by defendants; and . Defendants allege that claimant's claim is barred by the "coming and going rule." In file number 931329: . Whether an employer-employee relationship existed between claimant and employer at the time of claimant's alleged injury on October 13, 1989; . Whether claimant sustained an injury on October 13, 1989, which arose out of and in the course of employment with employer; . Whether the alleged injury is a cause of temporary and permanent disability; . The extent of entitlement to weekly compensation for temporary and permanent disability if any; and . 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 was born on October 26, 1947, and completed the twelfth grade of school. Her past work activities were as a bartender and a home health aide. Page 3 Due to numerous inconsistencies in the record, it is impossible to determine with accuracy the extent of claimant's education beyond high school and her vocational background other than work as a bartender and a home health aide. Claimant commenced working as a home health aide for Universal Home Health Care, Inc., on January 6, 1989. In this capacity she provided personal care, comfort measures and environmental services, under the direction of a registered nurse, to patients in their home. Initially, claimant was assigned to render nursing care to Christopher Provenzano, a severely handicapped child (exhibit A). During the course of her employment with employer, claimant was injured on May 9, 1989. At the time of the injury she was working in the home of Christopher Provenzano. On the day in question, she had accompanied Mrs. Provenzano to the grocery store. In the process of unloading pop bottles from the family van, one bottle exploded in her face. No one witnessed the accident. Mrs. Provenzano's parents took claimant to Monroe County Hospital emergency room at 8:20 p.m. on May 9, 1989. William R. Adler, O.D., removed two small fragments from her right upper eyelid. No scratches or abrasions were noted on the cornea. She was released at 8:30 p.m. (ex. 1). Because of persistent eye complaints, Dr. Adler referred claimant to Gregory L. Thorgaard, M.D., for examination on May 23, 1989. An initial interview indicated that claimant previously had worn contacts for photophobia and night blindness. Claimant's complaints were referable to intermittent pain in the right eye and right-sided temporaral visual field loss. This examination revealed no palpable orbital rim defects and no swelling of the eyelids. There was no evidence of any retinal or optic nerve damage in the right eye. Claimant was advised to stop the Scopolomine and to taper off her steroid drop which had been prescribed by Dr. Adler. A follow-up examination on June 20, 1989, was unremarkable and revealed no swelling around the right eye. A final examination on July 14, 1989, included a repeat Humphrey visual field test which showed dense right-sided temporal field loss. At this time, claimant denied any other complaints except for mild photophobia and indicated that her pain had completely resolved. On November 16, 1989, Dr. Thorgaard reported that there are no objective findings to support claimant's alleged right-sided visual field loss. He stated that at the time of her initial injury, she may have sustained some commotio retinae to the nasal retina of the right eye which could produce visual field loss; however, her initial objective examination was normal and has remained unremarkable. He reported that, "Her subjective visual field loss is much worse than I would expect based on her findings. There is no objective evidence of any eye damage at this time." (ex. E, pages 100-102; ex. 3). Page 4 On May 26, 1989, claimant returned to work with employer and assumed her duties as a home health care aide, without any medical or driving restrictions. On September 28, 1989, while driving from her home to the home of her patient, Frances L. Fincher, she was involved in a motor vehicle accident when a deer ran onto the highway causing her to lose control of her car. She was shaken but drove to her patient's home. She stayed until 8:40 a.m. and was taken by Mr. Fincher to Monroe County Hospital emergency room for examination. She presented with complaints of right shoulder, clavicle, scapular, and right rib pain. She required narcotic analgesics for control of pain and was admitted as an inpatient for physical therapy treatment. X-rays were taken of her right shoulder, clavicle, scapula, and anterior right upper ribs. Test results were within normal limits with no evidence of fractures. On October 2, 1989, Kenneth Britton, D.O., discharged her with the diagnosis of acute muscular and ligamentous strain of the right shoulder and right hip secondary to the motor vehicle accident and migraine cephalgia (ex. 5). Although hospitalized from September 28 through September 30, 1989, claimant submitted time slips and home health aide progress notes for treatment allegedly rendered to Frances Fincher during those days (ex. R). Claimant admitted at the hearing that she was hospitalized at the time but worked out a deal with the Fincher's to make up the hours later. She testified that this was a regular practice in the business. However, when claimant's supervisor, Twila Provenzano, received claimant's time and attendance slips, she reported the irregularity to her supervisor. She was told to terminate claimant's employment. Mrs. Provenzano testified that she contacted claimant on October 2, 1989, regarding this decision and requested claimant to sign termination papers. Claimant refused and was verbally terminated for falsification of records (ex. A, pp. 27-30). Claimant testified that on October 13, 1989, while on her way to Dr. Britton's office, she was involved in a motor vehicle accident. She stated that while driving, a piece of paper on the right hand side of the seat blew across her field of vision, frightening her, and causing her to go into the ditch. After composing herself, she drove to her appointment with Dr. Britton. She complained that she had aggravated her right shoulder and right hip and hurt her back. Dr. Britton testified in a deposition on April 16, 1991, that he could not recall whether claimant had a regularly scheduled appointment with him that day (claimant's ex. 7, p. 41). Dr. Britton admitted claimant to Monroe County Hospital on October 13, 1989, for conservative therapy. While hospitalized, x-rays were taken of claimant's lumbosacral spine, pelvis and hips. The right hip showed no evidence of any trauma or other pathology and the back and pelvis were normal. Because of claimant's apparent anxiety over the loss of her job and alleged loss of her vision, Dr. Britton referred her to Deb Anderson for psychological counseling. On October 20, 1989, Dr. Britton discharged her with the diagnosis of musculoskeletal pain of the right shoulder and right hip; adjustment disorder with anxious mood; and loss of peripheral vision (ex. 5). Page 5 Dr. Britton referred claimant for ongoing, outpatient physical therapy which occurred between October 27, 1989, and December 8, 1989. (ex. 10). Apparently, her right shoulder and right arm symptomatology did not improve with therapy and Dr. Britton referred her to Marc E. Hines, M.D., for EMG and nerve conduction studies on February 13, 1990. The results were consistent with a stretch injury although Dr. Hines thought that a C-7 radiculopathy may also explain some of her symptoms. Dr. Hines recommended an MRI scan. This was performed at Ottumwa Regional Health Center on February 13, 1990. J.J. Gleich, M.D., reported a negative cervical MRI examination (ex. H). On November 11, 1989, claimant was referred to J.M. Gaffney, Ph.D., clinical psychologist, for psychological assessment. Dr. Gaffney's initial diagnosis was, "adjustment disorder with mixed emotional features." She underwent four psychotherpay sessions, with improvement of her symptoms (ex. 9). Claimant was referred by defendants to Samuel L. Graham, Ph.D., psychologist, for a psychological assessment on July 6, 1990. After conducting a clinical interview and administering a battery of psychological tests, including the Minnesota Multiphasic Personality Inventory (MMPI), Dr. Graham reported as follows: The clinical scales are suggestive of an individual who has a marked tendency to develop physical symptoms in the context of stressful situations. Individuals with this profile typically have a history characterized by excessive and vague physical complaints, weakness, and pain. They tend to rely on denial and repression to defend against their own awareness of the psychological effects of stress and present themselves with a rather unsophisticated approach to their own physical complaints....They frequently rely on physical complaints in an attempt to manipulate the behavior of others. This pattern of behavior tends to be stable over a long period of time and is likely to be exacerbated by any environmental problems. High stress increases the likelihood that she will experience psychologically based physical symptoms. Individuals with this pattern appear to be at great risk of developing a pattern of invalidism. (exhibit I, page 121) Dr. Graham concluded that: ...Mrs. McLaughlin appears to be an individual whose premorbid personality is such that she was predisposed to respond to an injury in such a manner that she would attribute to it the responsibility for psychological discomfort. Her social history suggests that premorbidly, there Page 6 were significant psychological issues in her life. She appears to be suffering from a mild depressive disorder which is related, in part, to the stress of the current injury and her unemployment as well as multiple other factors. The Depression is not, in and of itself, disabling.... (exhibit I, pages 121-122) Claimant was admitted to the University of Iowa Psychiatric Hospital on July 7, 1991, from the emergency room in Oskaloosa, Iowa. She presented there with increasing depressive symptoms and frustration over her court case with Pepsi Cola. An initial mental status examination noted claimant to be alert and oriented with sad affect and depressed mood. She expressed suicidal ideation and was placed on suicide precautions. A psychiatric staff evaluation on January 10, 1991, noted that she did not appear to be depressed. A diagnosis of "Acute and chronic situational reaction with depressed and anxious mood," was made. During the course of her hospitalization, claimant was treated by Remi J. Cadoret, M.D., staff psychiatrist. By January 16, 1991, Dr. Cadoret felt claimant was ready to be discharged. Her psychiatric discharge diagnoses included: (1) adjustment disorder with depressed mood; and (2) Cluster B personality disorder traits (exs. L & 16). Upon her release from University of Iowa psychiatric facility, claimant presented to the Mahaska County Hospital Mental Health Center on January 21, 1991, and met with Leon Veldhuizen, M.S.W., clinical social worker. Future treatment sessions were set up, but claimant failed to appear for any of them. She was discharged from their service on April 17, 1991 (ex. P, pp. 188-191). Claimant was referred by Michael J. Versackas, M.D., ophthalmologist, to H.H. Stanley Thompson, M.D., director of the Neuro-ophthalmology Unit at the University of Iowa Medical Center for evaluation and second opinion on May 7, 1991. Dr. Versackas had examined claimant on August 15, 1990. Dr. Versackas reported to Dr. Thompson that he was unable to document specific, objective ocular damage which correlated with claimant's subjective field loss. After extensive visual testing, Dr. Thompson concluded that the findings were consistent with a purely functional loss of vision. On further testing, he postulated that her right eye injury may have left her with a very minor visual field defect without ophthalmoscopically visible retinal abnormality. He concluded that the injury was trivial and that she only has minor field loss in her right eye. Dr. Thompson felt that there was no need for her to patch her right eye or to attend "blind school." (ex. M, pp. 162-165). During the course of filing a civil suit and workers' compensation claim, claimant also applied for social security disability benefits. On September 5, 1991, an on-the-record determination was made by a federal administrative law judge that claimant has been "disabled" as defined in the Social Security Act, since September 28, 1989 (ex. 19). This decision is not binding on the Page 7 undersigned deputy industrial commissioner as it is based on social security law. Jo Weeces, counselor with Iowa Vocational Rehabilitation Services, testified at the hearing that many inconsistencies were contained in claimant's vocational records, however, her case was closed with the agency before a thorough investigation could be made. Ms. Weeces was aggressively cross-examined by defendants' counsel regarding statements made by claimant. She admitted that the agency did not attempt to verify the truth of claimant's representations. Therefore, any conclusion reached by Ms. Weeces and vocational rehabilitation personnel regarding claimant's employability, lacks foundation and credibility because it is based on an incomplete and inaccurate medical, vocational and educational history. Accordingly, it is not entitled to significant weight and consideration in this proceeding. On June 17, 1991, claimant was referred to Dr. Britton by her attorney for a permanent impairment evaluation. Dr. Britton proceeded to evaluate claimant's right upper and lower extremity, cervical spine and brain. Somehow, he arrived at a 70 percent impairment of the whole person (ex. 15). This assessment is based on claimant's exaggerated subjective complaints and an incomplete history, the opinion is not binding on the undersigned. On February 10, 1992, claimant's attorney referred her to Dr. Gaffney for an updated psychological assessment and repeat Minnesota Multiphasic Personality Inventory. At this time, Dr. Gaffney had claimant's January 1988 records from Iowa Lutheran Hospital where she was admitted on January 9, 1988, after a suicide attempt with a Librax overdose. She was released on January 10, 1988, with a diagnosis of dysthymic disorder with significant psychosocial stressors by Robert Smith, psychiatrist (ex. K). After reviewing claimant's past medical records and the MMPI results, Dr. Gaffney concluded that claimant's emotional condition had worsened since he last saw her in January 1990, and psychotherapy was recommended (exs. 9 & 25). Defendants then requested an updated psychological assessment from Dr. Graham. Dr. Graham opined that claimant has a documented long history of anxiety and somatic expression demonstrated by emotional volatility and anxiety when confronted with environmental stress. He stated that Ms. McLaughlin demonstrates, "...a characterological pattern of long standing and is not reflective of the emergence of a new psychological/psychiatric disorder subsequent to the incident where the pop bottle is reported to have exploded." He noted that psychological testing clearly revealed and was consistent with an individual at significant risk for marked pain magnification and exaggeration of somatic complaints (ex. I, p. 123). conclusions of law Page 8 I. Re: File number 918331: The issues to be determined in file number 918331 include: (1) whether claimant is entitled to any permanent disability benefits as a result of the incident on May 9, 1989, involving her right eye; and (2) whether there is a causal relationship between the complaints concerning claimant's right eye and the incident of May 9, 1989. Claimant also alleges that she has suffered mental problems as a result of her eye trauma and argues that she should be compensated industrially. When the result of an injury is loss to a scheduled member, the compensation payable is limited to that set forth in the appropriate subdivision of Iowa Code section 85.34(2). Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). A claimant may not recover benefits for industrial disability if the injury is to a scheduled member and not to the body as a whole even when psychological problems affect earning capacity. A claimant is compensated for any reduction in earning capacity through the schedule. The scheduled loss system created by the legislature is presumed to include compensation for reduced capacity to labor and to earn. Schell v. Central Engineering Company, 232 Iowa 421 4 N.W.2d 399 (1942); Pilcher v. Penick and Ford, file number 618597 (Appeal Decision October 21, 1987; Cannon v. Keokuk Steel Casting, file number 795331 (Appeal Decision January 17, 1988). Since claimant has suffered an injury, the next question to be resolved is whether the injury has caused a permanent disability. The claimant has the burden of proving by a preponderance of the evidence that the injury of May 9, 1989, is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 133 N.W.2d 867, 868 (Iowa 1965); Lindahl v. L. O. Boggs, 18 N.W.2d 607, 613-14 (Iowa 1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa 1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960). Expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 73 N.W.2d at 738. The opinion of the experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974). Moreover, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag, 220 N.W.2d at 907. Finally, 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 material circumstances. Bodish, 133 N.W.2d at 870; Musselman, 154 N.W.2d at 133. The supreme court has also observed that greater deference is ordinarily accorded expert testimony where the opinion necessarily rests on medical expertise. Sondag, 220 N.W.2d at 907. Page 9 Claimant alleges a significant loss of right-sided peripheral vision. On May 9, 1989, claimant had two small fragments removed from the eyelid of her right eye by Dr. Adler, an optometrist. Because of intermittent pain and alleged right-sided temporal visual field loss, Dr. Adler referred claimant to Dr. Thorgaard, an ophthalmologist. An examination on May 23, 1989, revealed no evidence of any retinal damage or optic nerve damage in the right eye. Dr. Thorgaard concluded that there were no objective findings to support claimant's visual field loss (exs. E & F). This assessment was also made by Dr. Versackas, an ophthalmologist, on August 15, 1990 (ex. 12). Dr. Thompson, a neuro-ophthalmologist, reported no objective evidence found on extensive testing performed on May 7, 1991, to verify claimant's alleged loss of peripheral vision (ex. M). Although Dr. Thorgaard gave claimant a permanent impairment rating, he stressed that this rating was based on her subjective complaints rather than objective findings. He concluded that her apparent visual field loss is functional and has no organic basis (ex. E). Claimant has not met her burden of proof. The veracity of claimant's testimony regarding the exent of visual loss is questionable. Ophthalmologists who have treated and/or examined claimant have consistently opined that there is no objective evidence to support her alleged right-sided visual field loss. Claimant was off work from May 9 through May 25, 1989. She returned to work on May 26, 1989, without any restrictions, including driving restrictions. Claimant has made no showing of the existence of a permanent eye impairment. Pain and dysfunction that is not substantiated by clinical findings is not a substitute for impairment. Waller v. Chamberlain Manufacturing, II Iowa Industrial Commissioner Report 419, 425 (1981); Godwin v. Hicklin GM Power, II Iowa Industrial Commissioner Report 170 (1981). Claimant is not entitled to any permanent partial disability benefits as a result of the incident on May 9, 1989, and, therefore, takes nothing further in claim number 918331. II. Re: File number 931328: In file number 931328, the issues to be determined include: (1) whether claimant's motor vehicle accident of September 28, 1989, arose out of and in the course of employment, and whether there is a causal relationship between the claim now being asserted and the incident of September 28, 1989; and (2) whether there is a causal relationship between the accident of September 28, 1989, and the incident of May 9, 1989. On September 28, 1989, at approximately 6 a.m. or 6:15 a.m., claimant was en route to her employment when a deer ran across the road and struck claimant's automobile. Claimant was wearing a seat belt, however, she claimed her right shoulder struck the steering wheel and her right forehead struck the windshield. She later complained of hip pain. She was able to drive to her scheduled assignment, and worked for a short period of time, until she later asked Page 10 to be taken to the emergency room. She was hospitalized by Dr. Britton, who diagnosed right shoulder and right hip muscular and ligament strain. Dr. Britton stated in the discharge summary that claimant may resume activities and return to work, as tolerated (ex. 5). Claimant was subsequently discharged from her employment on October 2, 1989, on the basis of patient complaints and for misrepresenting hours worked. Claimant alleges that the incident with the deer is directly related to the loss of vision in her right eye which, in turn, is related to the Pepsi bottle incident. She seeks temporary and permanent disability benefits. She also seeks medical benefits for injuries incurred as a result of this accident. Claimant has the burden of proving by a preponderance of the evidence that she received an injury on September 28, 1989, which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904, 908 (Iowa 1976); Musselman v. Central Telephone Co., 154 N.W.2d 128, 130 (Iowa 1967). The words "arising out of" have been interpreted to refer to the cause and origin of the injury. McClure v. Union County, 188 N.W.2d 283, 287 (Iowa 1971); Crowe v. DeSoto Consolidated School District, 68 N.W.2d 63, 65 (Iowa 1955). The words "in the course of" refer to the time, place and circumstances of the injury. McClure, 188 N.W.2d at 287; Crowe, 68 N.W.2d at 65. 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 the employee is doing work assigned by the employer or something incidental to it. Cedar Rapids Community School District v. Cady, 278 N.W.2d 298, 299 (Iowa 1979), McClure 188 N.W.2d at 287; Musselman, 154 N.W.2d at 130. The supreme court has defined a personal injury for the purposes of workers' compensation cases. Almquist v. Shenandoah Nurseries, 254 N.W. 35, 38 (Iowa 1934). In this case the court found that a personal injury, is an injury to the body, the impairment of health, or a disease, not excluded by the Workers' Compensation Act, which comes about, not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee. The injury to the human body must be something, whether an accident or not, that acts extraneously to the natural processes of nature, and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. Defendants argue that claimant is not entitled to compensation because the automobile accident occurred while claimant was on her way to work. Defendants argument is without merit. On May 17, 1989, the Supreme Court of Iowa in Medical Associates Clinic, P.C. v. First National Bank of Dubuque, 440 N.W.2d 374 (Iowa 1989) upheld the award of workers' Page 11 compensation benefits to a surgeon who was killed in an automobile accident on his way from home to work at the clinic. The court stated that the evidence demonstrated that decedent was required to bring his car to work for its use in furtherance of the clinic's practice and, therefore, his death in the automobile accident arose out of and in the course of his employment. The general rule is that, absent special circumstances, an employee is not entitled to compensation for injuries occurring off of the employer's premises on the way to and from work. Under a separate rule which acts as an exception to the "going and coming" rule, an employee's trip to and from work is considered within the course of employment if the employee is required, as a part of employment, to provide a vehicle for use during the working day. Ms. McLaughlin was required to bring her car to work. She had no work situs. Her work as a home health aide necessitated that she make trips from her home to several patients' homes. There is no doubt that Universal Home Health Care obtained a substantial benefit from Ms. McLaughlin's mobility. Therefore, claimant's injury in the September 28, 1989, automobile accident on the way to work arose out of and in the course of her employment with employer. Since claimant has suffered an injury, the next question to be resolved is whether the injury has caused a permanent disability. The claimant has the burden of proving by a preponderance of the evidence that the injury of September 28, 1989, is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 133 N.W.2d 867, 868 (Iowa 1965); Lindahl v. L. O. Boggs, 18 N.W.2d 607, 613-14 (Iowa 1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa 1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960). Expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 73 N.W.2d at 738. The opinion of the experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974). Moreover, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag, 220 N.W.2d at 907. Finally, 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 material circumstances. Bodish, 133 N.W.2d at 870; Musselman, 154 N.W.2d at 133. The supreme court has also observed that greater deference is ordinarily accorded expert testimony where the opinion necessarily rests on medical expertise. Sondag, 220 N.W.2d at 907. During the course of hospitalization from September 28, 1989 through October 2, 1989, claimant was treated for pain in her right shoulder and right hip. Manipulative treatment was performed to her shoulder on two occasions and good Page 12 improvement was noted. X-rays of the right shoulder, clavicle and scapula were all normal. X-rays of the anterior right upper ribs were normal with no fractures. Dr. Britton, at the time of discharge, imposed no limitations on claimant's ability to physically function. She was released to return to work, as tolerated. As it happens, claimant was fired, for good cause, on October 2, 1989, the day she was discharged from the hospital and did not have a job waiting for her. She has made no attempt to find work since being terminated by employer. Claimant has not met her burden of proof in this claim. Claimant is not credible. She had made too many inconsistent statements to physicians, counselors and during her testimony that make it impossible to support a recovery in this case. There is no objective evidence that she has any permanent disability to her right shoulder or right hip as a result of the automobile accident on September 28, 1989. Dr. Britton prescribed physical therapy based on claimant's subjective complaints of pain. Such complaints appear exaggerated and out of proportion to the clinical and laboratory findings in the record. As previously noted, pain that is not substantiated by clinical findings is not a substitute for impairment. Claimant has not carried her burden showing that her right shoulder or right hip condition is of a permanent nature. Claimant is entitled to temporary total disability benefits beginning on the fourth day of disability after the injury and ending when she was released to return to work at the time of discharge from the hospital. Since claimant was hospitalized on September 28, 1989, and discharged on October 2, 1989, she is entitled to temporary total disability benefits for two days commencing October 1, 1989 through October 2, 1989. Claimant is also entitled to payment of hospital expenses at Monroe County Hospital during the time she was treated for her work-related injury, September 28, 1989, through October 2, 1989, when she was released from the hospital. III. Re: File number 931329: The issues to be determined by the undersigned in file number 931329 include: (1) whether claimant's motor vehicle accident of October 13, 1989, arose out of or in the course of her employment with employer; (2) whether such accident was causally related to her previous automobile accident on September 28, 1989, or to the incident of May 9, 1989; and (3) whether claimant's current physical and mental complaints are causally related to her employment or the incidents arising out or in the course of her employment. Claimant acknowledges that she was not employed by employer at the time of the alleged automobile accident on October 13, 1989. Claimant contends that her current physical and mental complaints are a sequelae of her original eye injury. The Supreme Court of Iowa in Oldham v. Scofield and Welch, 222 Iowa 764, 767, 266 N.W. 480, 482 (Iowa 1936), Page 13 decided that, "where an accident occurs to an employee in the usual course of his employment, the employer is liable for all consequences that naturally and proximately flow from the accident." Claimant contends that her alleged automobile accident on October 13, 1989, is related to her right eye disability which resulted from a work-related injury on May 26, 1989. She states that this accident aggravated her right shoulder and hip condition incurred in the September 28, 1989, accident. Furthermore, she alleges an additional back condition as a result of this latest accident. As previously discussed, the objective medical evidence clearly establishes that claimant suffered no nasal retinal damage to her right eye as a result of the Pepsi Cola bottle explosion on May 9, 1989, to account for her alleged right temporal visual field loss. Furthermore, the record clearly establishes that claimant incurred no permanent disability as a result of the September 28, 1989, automobile accident. Therefore, any alleged disability as a result of the October 13, 1989, injury is not compensable. In Oldham, the Iowa Supreme Court stated as follows: The question of whether the disability sustained by the employee shall be attributed to the first accident or to the later accidents depends on whether or not the disability sustained was caused by a change in the original condition, or by a recurrence of the original injury, or by an independent and subsequent cause. If the employee suffers a compensable injury and thereafter suffers further disability which is the proximate result of the original injury, such further disability is compensable. Where an employer suffers a compensable injury and thereafter returns to work and, as a result thereof, his first injury is aggravated and accelerated so that he is greater disabled than before, the entire disability may be compensated for. [Oldham v. Scofield and Welch, 222 Iowa 764, 767, 266 N.W. 480, 482 (Iowa 1936)] Claimant contends that as a result of the October 13, 1989, accident, she aggravated her right shoulder and right hip and injured her lumbosacral spine. However, x-rays of the lumbosacral spine taken on October 17, 1989, were normal. X-rays of the pelvis and right hip taken on October 19, 1989, were also normal. An MRI scan of the cervical spine taken on February 18, 1990, was negative. A comprehensive neurological examination by Robert A. Hayne, M.D., on March 26, 1991, revealed no physical impairment as a result of either automobile accident. It was his opinion that claimant develops severe physical symptoms from stressful situations and recommended that she return to gainful employment in work other than that of a nurse's aide Page 14 (ex. O). On July 1, 1991, Dr. Britton provided a narrative summary of his medical evaluation of claimant's permanent impairment. He completed a medical limitations questionnaire for submission to the Social Security Administration in support of claimant's claim for disability (ex. 15). An independent residual physical functional capacity assessment made by Charles Ross, M.D., medical consultant for social security, refuted Dr. Britton's assessment stating that, "...the examining physician has limited her to lifting five pounds. However, I do not feel that this severe a restriction is justified on the basis of the objective medical findings." (ex. N, p. 168). In summary, the undersigned is unable to attach claimant's alleged present physical disability to either her May 9, 1989 or September 28, 1989, injury. Claimant has not met her burden of proof. The record is not clear that an accident even occurred on October 13, 1989. Dr. Britton relied on claimant's representations in this regard. In view of claimant's propensity to be less than truthful, her contentions in this regard lack weight and credibility. Permeating claimant's three claims, is her contention that she has developed psychological problems as a result of the physical trauma to her right eye on May 9, 1989, which intensified after each alleged automobile accident. The Iowa Supreme Court in Deaver v. Armstrong Rubber Co., 170 N.W.2d 455 (Iowa 1969), held that psychological impairments caused by work injuries are compensable. The court in Gosek v. Garmer and Stiles Company, 158 N.W.2d 731, 733 (Iowa 1968), noted that, "When there has been a compensable accident and claimant's injury related disability is increased or prolonged by a trauma connected neurosis or hysterical paralysis, all disability, including effects of any such nervous disorder, is compensable." Finally, the court in Newman v. John Deere Ottumwa Works, 372 N.W.2d 199 (Iowa 1985), determined that an imaginary physical trauma could not cause an emotional injury when the imagined trauma was a product of claimant's mental condition rather than his work. Defendants admit that claimant suffered a physical trauma on May 9, 1989, when a pop bottle exploded in her face. However, they deny, and the undersigned agrees, that no permanent physical impairment resulted from this trauma. Furthermore, they deny that claimant has a mental impairment as a consequence that naturally and proximately flowed from the accident. Claimant relies on Dr. Gaffney's opinion to establish a causal connection between the pop bottle event and claimant's alleged mental disability. Dr. Gaffney reported on January 10, 1990, that, "My diagnosis is adjustment disorder with mixed emotional features. In my opinion this disorder is related directly to her eye trauma and its sequelae." (ex. 9). Dr. Gaffney testified that he reached this opinion after four brief psychotherapy sessions between Page 15 November 1989 and January 1990. When claimant was evaluated by Dr. Graham on July 6, 1990, she reported that the lingering illness and death of her second husband were the major stressors in her life which led her to seek psychological help. She indicated that she no longer felt any need to see Dr. Gaffney for therapy (ex. I, p. 120). Both psychologists agree that the results of MMPI testing reveals claimant to be an individual with "a high level of somatic concerns which may also tend to preoccupy her." (ex. 25), and "at significant risk for marked pain magnification and exaggeration of somatic complaints." (ex. I, p. 123). Claimant denies the existence of a preexisting psychological condition. However, the records indicate that on September 15, 1980, claimant's mother wrote a letter to Dr. Pineda stating in pertinent part as follows: My family and I are very concerned over Elizabeth's illness. The problem goes back to her childhood. She has a very habit of stretching the truth. We never new when to believe her.... When Elizabeth was a very young teenager we took her took a psychiatrist for this problem. She has always been a problem, causing problems within the family and as you probably know Chuck is her third husband. I can see the problem in her children also. As a family doctor is there anything you can do?... (exhibit Q) Records from Iowa Lutheran Hospital dated January 9 through January 10, 1988, indicate that claimant was treated as a result of a suicide attempt with a Librax overdose. Her discharge diagnose included, "dysthymic disorder with significant psychosocial stressors versus major depressive disorder, probably reactive in nature, but cannot rule out involutional melancholia given patient's age." (ex. K). Dr. Gaffney admitted during the course of his testimony that he was not aware of claimant's prior psychiatric history when he causally connected her adjustment disorder to the eye trauma of May 9, 1989. In any event, this agency has held that while a psychologist has expertise in the area of the mind, he does not necessarily have expertise in the relationship between the mind and the body, such as would be possessed by a psychiatrist. Saunders v. Cherry Burrell Corp., II Iowa Industrial Commissioner Reports 333 (App. Dec. 1982). More recently, the Iowa Industrial Commissioner in an appeal decision filed on February 26, 1990, stated as follows: The proof of the causal connection between an injury and an alleged disability is dependent upon medical opinion. That medical opinion cannot only be the opinion of a psychologist. See Saunders v. Cherry Burrell Corp., II Iowa Industrial Commissioner Report 333 (Appeal Decision 1982) and Palmer v. Norwalk Community School District, II Page 16 Iowa Industrial Commissioner Report 302 (Appeal Decision 1981). A psychologist is not a physician. See Iowa Code section 135.1(5). If the issue of whether there was a causal connection between claimant's alleged injury and his alleged disability were to be decided in this case, claimant's claim would be denied because there is no opinion of causal connection given by a physician. Claimant has not met her borden of proof. The greater weight of the evidence does not support claimant's contention that her adjustment disorder is causally connected to her eye trauma and its sequelae. This being the case, claimant is not entitled to reimbursement for medical expenses incurred for treatment related to her mental impairment except for those authorized by defendants. order THEREFORE, IT IS ORDERED: In file number 918331: Claimant takes nothing further from these proceedings. In file number 931328: Defendants shall pay to claimant two days of temporary total disability benefits at the rate of one hundred twenty-four and 97/100 dollars ($124.97) per week for the period from October 1, 1989 through October 2, 1989. Claimant is entitled to payment of her hospital bill at Monroe County Hospital for treatment rendered from September 28, 1989 through October 2, 1989. In file number 931329: Claimant takes nothing further from these proceedings. Defendants shall pay all costs of these proceedings pursuant to rule 343 IAC 4.33. Defendants shall receive credit for any benefits previously paid. Defendants shall pay accrued amounts in a lump sum. Defendants shall pay interest pursuant to Iowa Code section 85.30. Defendants shall file claim activity reports as required by this agency. Signed and filed this ____ day of March, 1992. Page 17 ______________________________ JEAN M. INGRASSIA DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Scott Campbell Attorney at Law 315 S 2nd St Oskaloosa, Ia 52577 Mr. James Q. Blomgren Attorney at Law 110 N. Market PO Box 1066 Oskaloosa, Ia 52577 Ms. Dorothy L. Kelley Attorney at Law 500 Liberty Bldg. Des Moines, Ia 50309 Page 1 before the iowa industrial commissioner ____________________________________________________________ : JOSEPH EWART, : : File No. 931331 Claimant, : : vs. : A R B I T R A T I O N : KT LEASING, INC. and : D E C I S I O N DAVID KURK, INC., : : Employer, : Defendant. : : ___________________________________________________________ statement of the case This case came on for hearing on April 9, 1991, at Des Moines, Iowa. This is a proceeding in arbitration wherein claimant seeks permanent partial disability benefits as a result of a January 26, 1989 injury. The record in the proceedings consists of the testimony of claimant; and claimant's exhibits 1 through 34. ISSUES The issues for resolution are: 1. The extent of claimant's permanent disability and enti tlement to disability benefits; 2. Whether both defendants are jointly and severally liable or just KT Leasing, Inc. findings of fact The undersigned deputy having heard the testimony and con sidered all the evidence, finds that: Claimant is a 54-year-old who completed the eighth grade and has no further formal education. He indicated he received poor grades in school. Claimant has had basically two jobs in his work history. These jobs were either as a dispatcher at a trucking company or a truck driver driving a semi truck. On January 26, 1989, claimant was involved in an accident while driving his semi truck in the course of his employment. Claimant indicated that a car ran head on into him and this crash resulted in claimant incurring back pain, a fractured wrist, knee bruises, contusions to the head, and an ear injury. Claimant indicated that his left wrist and ear injuries are now cured and were only temporary in nature but that his back and left knee has still caused him permanent problems. Claimant made reference to his medical treatment and spinal surgery and indicated he reached maximum healing on August 28, 1990. Claimant said the doctor released him with certain restrictions, including a 25 pound lifting restriction. Claimant has not worked since his injury. Page 2 Claimant testified that if he followed all the restricitons that the doctor placed on him, he could not do any of his prior jobs, including the dispatcher job since he would have to sit all the time and couldn't take the necessary breaks. Claimant indicated that he couldn't pick up a newspaper and read all the words. Claimant looked for work and has been unable to obtain a job. He also stated he applied at job service and his former employer. Claimant did indicate that the former employer suggested they may have something for him if he wanted to travel 300 miles to seek the job. Claimant said that if he drives 50 miles, he must stop and walk around for ten minutes to limber up his leg. He said he has to do this approximately twice an hour. Claimant said this accident has affected him getting a pension. He indicated that if he went back to the union job and picked up six more years he would be eligible for a Teamsters pension but would be unable to obtain that now. Claimant indicated that when he was working for defendants most of his driving was out of and back into Iowa. He said he received the checks from KT Leasing, Inc., up to the time of the injury, but that when he was off work the checks he received which were like payroll checks at times came from KT Leasing, Inc., and/or David Kurk, Inc. He indicated that after taxes he has received a net of $14,400 since his injury from those two sources, for which he agreed would be a credit against any permanent disability benefits to which he is found to be entitled. Claimant said that David Kurk owns KT Leasing, Inc., and David Kurk, Inc. He related that these companies are operated together and that David Kurk's son is the dispatcher and that there is only one nunber to call while driving under KT Leasing, Inc. and the number is, in fact, listed as David Kurk, Inc. Claimant related that KT Leasing, Inc., gets its orders from David Kurk, Inc., even though claimant was driving under KT Leasing, Inc. Claimant emphasized that he works for KT Leasing and David Kurk, Inc., and was emphatic that he takes his orders from David Kurk, Inc., even though he was driving at the time of his injury for KT Leasing, Inc. Claimant said the truck is owned by David Kurk, Inc., but the payroll check came from KT Leasing, Inc. Claimant said he is now disabled and he does not believe he can ever find employment. Claimant testified he cannot ride very far, his low back hurts most of the time, his left leg and foot is numb, and he is in a lot of pain. Claimant said these problems did not exist prior to his January 26, 1989 injury. Due to prior orders, defendants were closed from presenting any evidence or performing any activity in this hearing and, therefore, there was no evidence of defendants by way of testimony or exhibits. Dennis L. Abernathie, M.D., an orthopedic specialist, testi fied on November 30, 1990, by way of his deposition. He first saw claimant on June 6, 1989, and related the history Page 3 taken at that time. Claimant indicated to him that he had had two previous back surgeries, most likely at the L5/S1 level two years prior to the time he saw claimant and that claimant indicated he had done fine ever since. He related he referred claimant to Keith W. Riggins, M.D., who had performed claimant's previous surgery. Dr. Riggins did not want to do surgery right away but, instead, performed an epidural steroid injection which helped claimant a little (Claimant's Exhibit 30, page 5). Claimant then saw Dr. N.Q. Crenshaw due to a recurring numbness and tingling in his left foot and left leg. Treatment with heat and ultrasound gave claimant no relief, so Dr. Abernathie then took over the care. Dr. Abernathie recommended conservative care for claimant involving a lumbosacral corset to immobilize the lumbar spine to try to take some pressure off the nerve. The doctor saw claimant on July 25, 1989, at which time the claimant had complaints of numbness, weakness and pain with his left leg, and that the numbness and weakness have been getting worse depending on claimant's activity. Claimant was admitted to the hospital to have a myelogram and a CT scan performed on October 3, 1989. These tests showed a postoperative change at L5/S1 with a moderately severe bony neural forminal stenosis on the left side at L5/S1 with moderate mony neural foraminal stenosis on the right side at L5/S1, also. There was also moderate bony neural foraminal stenosis bilaterally at L4/5 (Cl. Ex. 30, p. 7). On December 4, 1989, bilateral foraminotomies at L4/5 and L5/1 were performed. Because claimant was still having problems with his left leg and having some S1 hypoesthesia, the doctor recommended another CT scan as follow-up to the surgery. This CT scan was done on February 21, 1990, and in comparison to the October 4, 1989 CT scan, it showed a significant scar tissue around the nerves at L5/S1 but the stenosis was no longer present. The doctor felt that with contracture of the scar tissue, there was some contractions of the nerve root and that this was causing claimant's symptoms. By May 2, 1990, claimant had not shown a lot of progress so a physical therapist was brought into the picture. On July 16, 1990, claimant was not making any progress again even though he was doing the therapy and the doctor indicated claimant was doing everything they asked of him but claimant's left leg seemed to be a problem (Cl. Ex. 30, p. 10). The doctor felt another myelogram and CT scan should be done and these were done again on July 24, 1990, to see if there is any additional scarring of the nerve. These tests show that there was an encasement of the scar tissue of the left nerve root. Otherwise, there was no bulging discs nor bony narrowing. (Cl. Ex. 30, p. 11). The doctor felt that claimant had reached maximum recovery on August 28, 1990, which is the last day he saw claimant. The doctor felt that he had tried all the therapy that he could think of to improve claimant. Page 4 The doctor opined that claimant had a 25 percent impairment of the body as a whole and that because of the recurrent numbness that he was having in the left leg with use, the doctor did not feel safe that claimant could go back to truck driving over the road but certainly felt that he was otherwise employable. The doctor causally connected claimant's impairment rating to the accident of January 26, 1989. He indicated that there were some aggravation of claimant's preexisting conditions which had pretty much settled down. He emphasized he thought claimant had a new condition but it was compounded by the previous injury. The doctor acknowledged that prior to claimant's injury on January 26, 1989, claimant was symptom-free and the doctor opined that the symptoms claimant now has are related to the accident itself (Cl. Ex. 30, 13). The doctor recommended that claimant should have a job where he sits, stands and walks intermittently, where he doesn't have to reach above his shoulders or pick up below his knees and he should not have to do repetitive bending and twisting at the waist (Cl. Ex. 30, p. 13). The undersigned finds that these recommendations are, in fact, restrictions. There are several other medical records but the undersigned feels there is no necessity to setting out the particulars of any of these documents. Dr. Abernathie, in his deposition, has either referred to them or drawn conclusions based on his knowledge of these reports. Medical records do disclose that claimant worked hard at his physical therapy. This is further evidenced by comments on May 31, 1990 and June 7, 1990, regarding the Keokuk area hospital in which notations are: "Pt is [sic] been working hard, 3 times a week." "Pt. was working hard in Physical Therapy." (Cl. Ex. 26, pp. 68-69). Claimant had two previous surgeries to his back. The January 26, 1989 accident resulted in injuries to his back in the same or similar areas of which he had his previous surgeries, but claimant was having no symptoms nor were his previous surgeries having any effect on claimant's employment or ability to work. There is no medical evidence attributing claimant's impairments to his prior injuries and there is no evidence of any prorating of any impairment. Claimant is 54 years of age and has an eighth grade education. He has basically been in the trucking business all his life. Twenty-five of those years he drove a truck and the rest was as a truck dispatcher. Those are claimant's only transferable skills. The only further evidence of claimant's education is his statement that he got poor grades in school. There is nothing in the record that shows claimant hasn't been a good worker and it appears he was getting along well in his occupation and job until this accident occurred. Besides causing additional problems, claimant's January 26, 1989 injury substantially and materially aggravated and lighted up claimant's prior back problems from which he was suffering no symptlms on January 26, 1989 until he was involved in this work-related Page 5 accident. Claimant has restrictions to the extent that he should have a job where he sits, stands and walks intermittently and where he doesn't have to reach above his shoulders or pick up below his knees, and that claimant's job should not involve repetitive bending and twisting at the waist (Cl. Ex. 30, p. 13). The doctor did not think claimant was safe going back to truck driving over the road but certainly felt that he was employable. The employer has not taken claimant back to work and there is no evidence that they have made a sincere effort to do so. There is evidence that there may be a job if he travels 300 miles to another town but this is an unreasonable expectation under the circumstances. There is no evidence or exhibit that would indicate any sincere offer has been made by defendants. In fact, as mentioned earlier, defendants have not even performed the necessary requirements under the law and consequently they were sanctioned and barred from any activity or presenting any evidence in this case. This would seem to substantiate the attitude of the defendants. Considering claimant's age, education, physical, intellec tual and emotional status; his prior work history; prior injury; his present condition; the location; severity of his injury; his motivation; functional impairment; defendants' actions of not giving claimant work after an injury; and, claimant's inability to find other suitable work after making a bonafide effort under the circumstances, the undersigned finds claimant has a substantial industrial disability. The undersigned finds, facing the reality of the circumstances, that claimant is not employable as the doctor related that he should not go back to truck driving. If he could get a job as a truck dispatcher, the nature of that job would violate claimant's restrictions. In fact, claimant has no transferable skill for a job he would be able to perform. With his lack of education and his age, he is not retrainable. The undersigned, therefore, finds that claimant is permanently and totally disabled and his permanent total disability should begin from January 26, 1989, at the rate of $251.83. The remaining issue is whether defendants KT Leasing, Inc. and David Kurk, Inc., are jointly and severally liable or whether KT Leasing, Inc. is liable only. The evidence shows claimant was getting paid by or receiving orders at the time from both defendants. It appears that the companies were entertwined and one phone number was being used for both companies. The undersigned finds that the evidence shows both defendants are jointly and severally liable for the award herein. conclusions of law When an aggravation occurs in the performance of an em ployer's work and a causal connection is established, claimant may recover to the extent of the impairment. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 (1960). Page 6 The Iowa Supreme Court cites, apparently with approval, the C.J.S. statement that the aggravation should be material if it is to be compensable. Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's Compensation sec. 555(17)a. Our supreme court has stated many times that a claimant may recover for a work connected aggravation of a preexisting condition. Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). See also Auxier v. Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960). An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler, 252 Iowa 613, 620, 106 N.W.2d 591, and cases cited. 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." Functional impairment is an element which caused claimant to be permanently, totally disabled. Claimant incurred a work-related injury on January 26, 1989, which materially aggravated and lighted up a dormant preexisting back condition which resulted in claimant incurring impairment to his body as a whole and incurring restrictions which would prevent him from performing the types of jobs which he did his entire adult life. Claimant's January 26, 1989 work injury caused claimant to have restrictions which would limit him to a job where he can sit, stand and walk intermittently, where he doesn't have to reach above his shoulders or pick up below his knees, and where he should not have to do repetitive bending and twisting at the waist. Claimant was receiving wages and was employed in such a manner so as to be working for or in combination with defendants, namely, KT Leasing, Inc. and David Kurk, Inc. Both defendants, KT Leasing, Inc. and David Kurk, Inc., are responsible jointly and severally for the payment of claimant's benefits and medical herein. Defendants are responsible for payment of all of claimant's medical expenses incurred as a result of claimant's January 26, 1989 injury. These bills are represented by several exhibits herein. It would appear that claimant's exhibits 1 through 19, 21, and 22 through 34 are the medical bills. The undersigned cannot determine as to which ones may have been paid but defendants are responsible for all the claimant's medical bills and are to be given credit for any bills they have previously paid. order THEREFORE, it is ordered: That defendants shall pay claimant compensation for perma nent total disability at the rate of two hundred fifty-one and 83/100 dollars ($251.83) per week during the period of claimant's disability commencing with the date of injury, January 26, 1989. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. Claimant has previously been paid fourteen thousand four hundred dollars ($14,400) which would be allowed as a credit against weekly benefits herein. 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 this action, pursuant to rule 343 IAC 4.33. That defendants shall file a first report of injury. That defendants shall file an activity report upon payment of this award as required by this agency, pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of April, 1991. Page 8 ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr James P Hoffman Attorney at Law Middle Rd Box 1087 Keokuk IA 52632 Mr Joseph L Hammell Attorney at Law 110 E Main St Caledonia MN 55921 5-1804; 2003 Filed April 15, 1991 Bernard J. O'Malley before the iowa industrial commissioner ____________________________________________________________ : JOSEPH EWART, : : File No. 931331 Claimant, : : vs. : A R B I T R A T I O N : KT LEASING, INC. and : D E C I S I O N DAVID KURK, INC., : : Employer, : Defendant. : : ___________________________________________________________ 5-1804 Fifty-four-year-old claimant found to be permanently, totally disabled. Claimant completed eighth grade. Claimant was a truck driver or dispatcher most of his adult life. Claimant is no longer able to use any of his transferable skills due to workers' compensation injury and subsequent restrictions. Claimant can't find work. 2003 Defendant corporations found jointly and severally liable. Found claimant was paid and/or took orders from both defendant corporations. Defendant corporations were closed to any evidence or activity by prior order. 1108.40; 1801.1; 1802 1806; 2203; 2206 Filed December 13, 1991 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : MARY SHUEY, : : Claimant, : : File Nos. 816824 vs. : 854124 : 931336 FURNAS ELECTRIC COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE CO., : and NORTHBROOK PROPERTY & : CASUALTY, : : Insurance Carriers, : Defendants. : ____________________________________________________________ 1108.40; 2203 Claimant was held to be correct in asserting that her carpal tunnel syndrome was an occupational disease, but she was denied benefits since she was not disabled by that condition. She left work due to a back condition. The subsequent worsening of her condition was attributed to her diabetes rather than the employment. 1801.1; 1802; 1806; 2206 Claimant, a 48-year-old woman with a prior employment-related back injury from another employer, a severe back injury from an automobile accident and a minor back injury with this employer which, nevertheless, removed her from her employment, awarded 40 percent permanent partial disability. It was held that the preexisting back difficulties were sufficiently well documented and active in the sense of needing medical treatment and causing her to miss work that apportionment of disability was appropriate. Claimant found to lack motivation and was held not to be totally disabled. Page 1 before the iowa industrial commissioner ____________________________________________________________ : CONNIE WIEGARD, : : Claimant, : : vs. : File Nos. 931340 : 931339 EXCEL CORPORATION, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CNA INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a consolidated proceeding in arbitration brought by Connie J. Wiegard, claimant, against Excel Corporation, employer (hereinafter referred to as Excel), and CNA Insurance Companies, insurance carrier, defendants, for workers' compensation benefits as a result of alleged injuries on May 5, 1989 and August 14, 1989. On March 25, 1992, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. The oral testimony and written exhibits received during the hearing are set forth in the hearing transcript. According to the prehearing report, the parties have stipulated to the following matters: 1. An employee-employer relationship existed between claimant and Excel at the time of the alleged injuries 2. On August 14, 1989, claimant received an injury arising out of and in the course of employment with Excel. Excel disputes that first alleged injury. 3. It was agreed that the injury of August 14, 1989, was a cause of a healing period. Claimant has been paid healing period benefits and is only seeking additional heal ing period benefits in this proceeding from January 15, 1991 through January 28, 1991 and defendants agree that she was not working during this time. 4. If was further agreed that the injury of August 14, 1989, was a cause of permanent disability, the extent of Page 2 which is in dispute. 5. Claimant's weekly rate of compensation is $190.32 according to the Industrial Commissioner's published rate booklet for the August 14, 1989 injury. 6. It was stipulated that the providers of the requested medical expenses would testify as to their reason ableness and defendants are not offering contrary evidence. It was also agreed that they are causally connected to the medical conditions upon which the claims herein are based, but that the issue of their causal connection to any work injury remains an issue to be decided herein. ISSUES The parties submitted the following issues for determi nation in this proceeding: I. Whether claimant received an injury on May 5, 1989, arising out of and in the course of employment; II. The extent of claimant's entitlement to disability benefits; and, III. The extent of claimant's entitlement to medical benefits. FINDINGS OF FACT Having heard the testimony and considered all of the evidence, the deputy industrial commissioner finds as follows: A credibility finding is necessary to this decision as defendants placed claimant's credibility at issue during cross-examination as to the nature and extent of the injury and disability. From her demeanor while testifying, claimant is found credible. Claimant has worked for Excel, a meat packing firm, since 1987 and continues to do so at the present time. Initially, she was assigned to work with a Whizzard knife trimming neck bones. At the time of the first alleged injury in May 1989, she was operating a machine to remove bone from picnic hams and trimming waste with a straight knife. After the first injury, she bid for and received the job of CVP operator which is a machine to remove air from meat packages and replace it with some other type of gas. Currently she is performing a different job on the loin line. On or about May 5, 1989, claimant injured her neck when a picnic ham, weighing approximately 8-10 pounds, fell from a conveyor striking her in the head. Claimant's account was not seriously challenged by defendants. Claimant sought medical treatment subsequently for neck and arm pain. However, claimant had been having right arm and right wrist pain problems for approximately 18 months prior to this incident according to Excel employee health records. Page 3 Claimant was only off very briefly from work and she soon returned to light duty under the care of the company ortho pedic surgeon, Donald Berg, M.D. Claimant was returned to full duty by Dr. Berg on July 21, 1989. Approximately one month prior to the May 5, 1989 injury, claimant received chiropractic care for severe neck, mid-thoracic and low back pain, headaches, burning pain between shoulder blades and pain down legs. The last treat ment for low back pain was only one day before the May 5, 1989 incident. On or about August 14, 1989, as stipulated, claimant received another work injury. Claimant's smock became entangled in moving equipment and she was pulled with her arms towards the machine. A fellow employee eventually tore off the smock preventing further injury but claimant com plained at the time of bilateral shoulder pain, more serious on the left than right. Claimant received initial care from a local hospital emergency room but the care was immediately referred back to Dr. Berg. Dr. Berg and emergency physi cians suspected a left rotator cuff tear but diagnostic studies ruled out this possibility. Claimant was subse quently treated for shoulder strain and tendonitis and was then returned to light duty work at Excel. With continued symptoms, claimant sought and received a second opinion in November 1989 from another orthopedic surgeon, Delwin Quenzer, M.D., who is board certified. Dr. Quenzer con curred with the treatment to date but recommended injections directly into the shoulder and physical therapy. On December 7, 1989, claimant returned to Dr. Berg who released her to full duty with a note that her continued shoulder and arm symptoms were to be treated by anti-inflammatories and exercises. He apparently rejected the suggestions of Dr. Quenzer. Claimant continued to have problems and returned to Dr. Berg on March 9, 1989, with complaints of left shoulder, arm, neck and low back pain. Dr. Berg states that this was the first time he was told of any low back problems. Claimant disputes this stating she told him of problems three days after the August 14, 1989 incident at work. Apparently a dispute developed between claimant and Dr. Berg and he suggested to claimant and defendants that her treat ment be transferred to someone else. Treatment was then transferred back to Dr. Quenzer who on April 3, 1990, also noted a first complaint of neck and back pain. Upon a diag nosis of a work related left shoulder impingement, Dr. Quenzer continued claimant on light duty and attempted con servative therapy consisting of an injection into the shoul der and physical therapy as he had recommended before. He referred claimant to David Boarini, M.D., an neurosurgeon, for evaluation and treatment of the neck and low back prob lems. When the injection and physical therapy failed to alleviate claimant's shoulder and arm symptoms, on July 26, 1990, Dr. Quenzer surgically relieved the compression on the nerves in the shoulder caused by an inflamed tendon by removing bone and tissue in the clavicle area of the left shoulder. Claimant then underwent additional physical ther apy until December 1990. Page 4 Dr. Boarini's evaluation of claimant's neck and back was quite extensive and included the taking of a bone scan, cat scan and myelogram. Claimant became ill after the myel ogram and received additional treatment for its adverse reaction. She lost work as a result from January 15, 1991 through January 28, 1991. Dr. Boarini has no specific diag nosis and stated in June 1990 that if physical therapy did not help, he had nothing further to offer. While recovering from the left shoulder surgery, claimant began having left wrist and arm pain which was eventually diagnosed and treated as carpal tunnel syndrome and ulnar neuritis of the left elbow. Claimant had no such symptoms before August 14, 1989 and the July 1990 surgery. She had only extensive problems with her right wrist and arm in 1988 and 1989 as stated above. Dr. Quenzer had scheduled surgery to treat these wrist and elbow problems but this was cancelled as defendants refused to pay for such treatment. It is found that the work injury of August 14, 1989 was a cause of claimant's left shoulder and arm problems begin ning on August 14, 1989 and continuing at present which necessitated the treatment and surgery by Dr. Quenzer. However, defendants are not seriously disputing liability for the shoulder problems. Defendants dispute the causal connection of the claimant's neck, low back and left wrist and elbow complaints. Given the evidence, it is found that claimant's left wrist and elbow conditions diagnosed as carpal tunnel syn drome and ulnar neuritis and treated by Dr. Quenzer follow ing the July 1990 surgery is causally connected to the August 14, 1989 injury. This finding is based upon the uncontroverted opinions of Dr. Quenzer. He based his opin ion upon a reasonable degree of medical certainty that this was a complication from the surgery for the shoulder prob lems in July 1990. This establishes a clear causal chain between the injury, the shoulder, the treatment of the shoulder, and the wrist and the elbow problems. It could not be found that claimant's neck and low back problems are related to either the May 5, 1989 or August 14, 1989 injuries. This does not imply that these conditions are not work-related, only that claimant failed to show that they are causally connected to these two traumatic events. The only physician to causally relate the low back condition to the August 14, 1989 injury, was a one time evaluator, Brent Dixon, D.O. However, his opinion, as it appears in the record, appears to be based upon an incorrect history of a report of a twisting back injury on August 14, 1989. It also fails to note claimant's back problems in May and April 1989. Absent a better supportive medical opinion, it is not possible for the undersigned to find causal connection based upon evidence of prior neck and low back pain. The under signed could not base a causal connection solely upon claimant's subjective explanation at hearing that there was a difference between soreness before the May 5, 1989 injury and her pain subsequent to this injury. Page 5 It is found that the work injury of August 14, 1989, was a cause of a significant permanent impairment to the body as a whole. There is no dispute that the injury caused permanent impairment. The issue in dispute was whether it extended into the body as a whole. Dr. Quenzer was the only physician to opine as to the extent of permanent impairment. His deposition testimony was initially confusing. He stated that it is reasonable to conclude that the impairment was to the body as a whole as structures were involved above the humerus or arm bone. He opined that the total impairment was 8.5 percent of the upper extremity. As the upper extremity includes both the shoulder and arm, he then appeared to contradict himself by saying that the functional loss was limited to the arm. He then stated that the impairment could be either to the body as a whole or to the arm, either would be medically correct as such matters were legal not medical issues. However, looking closely at Quenzer's testimony, he bases his impairment rating to the extremity upon dysfunc tion and sensory loss of the superscapular nerve which innervates the rotator cuff muscles. Clearly, the situs of the impairment involves a loss of function to nerve and muscles of the shoulder above the arm or humerus bone. Also, the last physical therapy note in December 1990 noted a failure to bring claimant's shoulder to full range of motion. Furthermore, claimant's testimony established a loss of function to the left arm and shoulder. The above finding of shoulder impairment is based upon current available evidence. It is noted that claimant's carpal tunnel and ulnar nerve problems are not resolved and, according to Dr. Quenzer, she may experience additional per manent impairment to the hand or arm if treatment is not fully successful which would constitute a change of condi tion from the present warranting further review. From an industrial disability standpoint, claimant's loss of earning capacity appears very mild at this time. She continues to work at Excel. Currently she is earning approximately $1.50 more per hour than she earned at the time of the August 14, 1989 injury. This is largely due to accommodations made by her employer for her disability by providing light duty jobs when needed and to claimant's ability under the union contract to bid into higher paid, less physically demanding jobs at Excel. Although she has no formal work restrictions, the record is clear that heavy, repetitive use of her left arm and shoulder is no longer possible. It is unlikely she would be able to perform the Whizzard knife or trimming jobs she held in the past. Claimant's past work experience has involved lighter duty employment as a waitress, cash register clerk, department store section manager, sales clerk, and grocery store deli-worker. However, she is precluded from the heavy, repetitive production work that she performed prior to staring with Excel. Claimant is 43 years of age and has a high school edu cation. Claimant has considerable motivation to remain work ing and although she continues to suffer shoulder problems, Page 6 her current job appears suitable for her disability. Therefore, it is found that the work injury of August 14, 1989, was a cause of only a five percent loss of earning capacity at this time. Although the conditions evaluated by Dr. Boarini are not found work-related herein, his evaluations and charges to date are found causally related to the August 14, 1989 injury. He was referred by the authorized treating physi cian, Dr. Quenzer, for evaluation upon complaints of pain after the August 14, 1989 injury. Dr. Boarini then per formed various tests, one of which made claimant ill. These test results were provided to Dr. Quenzer and used by him to provide an overall picture of claimant's condition. The evaluation and diagnosis of a medical problem whether or not it is later found work-related is a part of any treatment program. Consequently, the time off work following the adverse reaction to the myelogram is also found a part of the healing period from the August 14, 1989 injury. Finally, it is found that further treatment of the left wrist and elbow is reasonable and necessary and that Dr. Quenzer is the most appropriate physician to provide that care given his past clinical experience with claimant and these conditions. CONCLUSIONS OF LAW I. Claimant has the burden of proving by a prepon derance of the evidence that claimant received an injury which arose out of and in the course of employment. The words "out of" refer to the cause or source of the injury. The words "in the course of" refer to the time and place and circumstances of the injury. See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited therein. In the case sub judice, claimant carried her burden and established a work injury on May 5, 1989. However, this injury was not found to have caused any disability at issue in this case. II. It was found that the permanent impairment extended beyond the arm and into in the shoulder, therefore, the injury is to the body as a whole. Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986); Blacksmith v. All-American, Inc., 290 N.W.2d 348 (1980); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943); Nazarenus v. Oscar Mayer & Co., II Iowa Indus. Comm'r Rep. 281 (Appeal December 1982); Godwin v. Hicklin, II Iowa Indus. Comm'r Rep. 170 (Appeal Decision 1981). When the injury is a cause of permanent impairment to Page 7 the body as a whole, the degree of permanent disability must be measured pursuant to Iowa Code section 85.34(2)(u). However, unlike scheduled member disabilities, the degree of disability under this provision is not measured solely by the extent of a functional impairment or loss of use of a body member. A disability to the body as a whole or an "industrial disability" is a loss of earning capacity resulting from the work injury. Diederich v. Tri-City R. Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A physical impairment or restriction on work activity may or may not result in such a loss of earning capacity. Examination of several factors determines the extent to which a work injury and a resulting medical condition caused an industrial disability. These factors 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 intellec tually, emotionally and physically; earnings prior and sub sequent to the injury; age; education; motivation; func tional 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 trans fer for reasons related to the injury is also relevant. See Peterson v. Truck Haven Cafe, Inc. (Appeal Decision, February 28, 1985). A showing that claimant had no loss of actual earnings does not preclude a finding of industrial disability. See Michael v. Harrison County, 34 Biennial Rep., Ia Indus. Comm'r 218, 220 (Appeal Decision 1979); Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991) only held that continued employ ment with no loss of earnings is significant evidence that should not be overlooked in measuring loss of earning capacity. In the case sub judice, it was found that claimant suf fered a mild five percent loss of her earning capacity as a result of the work injury. Such a finding entitles claimant to 25 weeks of permanent partial disability benefits as a matter of law under Iowa Code section 85.34(2)(u) which is five percent of 500 weeks, the maximum allowable number of weeks for an injury to the body as a whole in that subsec tion. It was also found that claimant was absent from work during recovery from the adverse reaction of the myelogram. Claimant is entitled to healing period benefits. Iowa Code section 85.34 provides healing period benefits from the date of injury until claimant returns to work; until claimant is medically capable of returning to substantially similar work to the work she was performing at the time of injury; or, until it is indicated that significant improvement from the injury is not anticipated, whichever occurs first. As claimant's last return to work following treatment for the August 14, 1989 injury occurred on January 29, 1991, perma nent partial disability benefits will begin at that time. III. Pursuant to Iowa Code section 85.27, claimant is Page 8 entitled to payment of reasonable medical expenses incurred for treatment of a work injury. Claimant is entitled to an order of reimbursement if she has paid those expenses. Otherwise, claimant is entitled only to an order directing the responsible defendants to make such payments directly to the provider. See Krohn v. State, 420 N.W.2d 463 (Iowa 1988). In the case at bar, all requested benefits were found causally connected to the August 14, 1989 injury. Given the parties' stipulation as to reasonableness, they will be awarded. Also, care of the carpal tunnel and ulnar neuritis con ditions by Dr. Quenzer will be ordered. ORDER 1. Defendants shall pay to claimant twenty-five (25) weeks of permanent partial disability benefits at a rate of one hundred ninety and 32/l00 dollars ($190.32) per week from January 29, 1991. 2. Defendants shall pay to claimant healing period benefits from January 15, 1991 through January 28, 1991, at the rate of one hundred ninety and 32/l00 dollars ($190.32) per week. 3. Defendants shall pay the medical expenses listed in the prehearing report. Claimant shall be reimbursed for any of these expenses paid by her. Otherwise, defendants shall pay the provider directly along with any lawful late payment penalties imposed upon the account by the provider. 4. Defendants shall provide care and treatment of claimant's left wrist and arm problems, including but not limited to the diagnosed conditions of carpal tunnel syn drome and ulnar neuritis of the elbow. Such care shall be provided as offered and directed by Dr. Quenzer. 5. Defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for all benefits previously paid. 6. Defendants shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 7. Defendants shall pay the costs of this action pur suant to rule 343 IAC 4.33, including reimbursement to claimant for any filing fee paid in this matter. 8. Defendants shall file activity reports on the pay ment of this award as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of April, 1992. Page 9 ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Steven J. Crowley Mr. William Bauer Attorneys at Law 100 Valley Street P O Box 517 Burlington, Iowa 52601 Ms. Dorothy L. Kelley Attorney at Law 500 Liberty Building Des Moines, Iowa 50309 5-1803 Filed April 23, 1992 LARRY P. WALSHIRE before the iowa industrial commissioner ____________________________________________________________ : CONNIE WIEGARD, : : Claimant, : : vs. : File Nos. 931340 : 931339 EXCEL CORPORATION, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CNA INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803 - Non-precedential, extent of disability case. 5-1803 Filed April 23, 1992 LARRY P. WALSHIRE before the iowa industrial commissioner ____________________________________________________________ : CONNIE WIEGARD, : : Claimant, : : vs. : File Nos. 931340 : 931339 EXCEL CORPORATION, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CNA INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803 - Non-precedential, extent of disability case.