Page 1 before the iowa industrial commissioner ____________________________________________________________ : JOHN F. BLANCHARD, : : Claimant, : : vs. : : File No. 931382 OMAHA COLD STORAGE, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ This is a proceeding in arbitration brought by John F. Blanchard, (claimant), commenced with the filing of a petition on February 20, 1990 against Omaha Cold Storage (OCS), employer, and Liberty Mutual Insurance Company (Liberty) (collectively defendants) for worker's compensation benefits as a result of an alleged injury to claimant's back occurring on June 23, 1989. On October 31, 1990, the matter came on for hearing at the Webster County Courthouse in Fort Dodge, Iowa. The parties appeared as follows: the claimant in person and by his counsel Monty L. Fisher of Fort Dodge, Iowa and OCS and Liberty by their counsel Stephen G. Kersten of Fort Dodge, Iowa. The record in this proceeding consisted of the following: 1. The live testimony of the claimant; Kelly Blanchard; Ray Cox and Dale Cox. 2. Claimant's exhibits 1-13 and defendants' exhibits A-H. At the close of all evidence, the case was deemed fully submitted. stipulations The parties stipulated to the following matters at the time of the hearing: That an employer/employee relationship existed between claimant and employer at the time of the alleged injury. That the type of permanent disability, if the injury is found to be a cause of permanent disability, is industrial disability to the body as a whole. That the rate of compensation, in the event of an award, is $258.36 per week. Claimant is married and has one child. He is entitled to three exemptions. The fees charged for medical services are fair and reasonable and the expenses were incurred for reasonable and Page 2 necessary medical treatment. That defendants make no claim for employee nonoccupational group health plan benefits paid prior to hearing. The parties have stipulated to the costs. That there are no bifurcated claims. The parties agreed to have the undersigned take judicial notice of the transcript of a worker's compensation proceeding involving the claimant and DeckeróTrucking held on April 4, 1990. issues 1. Whether the claimant sustained an injury on June 23, 1989 that arose out of and in the course of his employment. 2. Entitlement to temporary disability benefits, healing period benefits or permanent disability benefits. 3. Entitlement to medical benefits under Iowa Code section 85.27 (1989) including whether the medical expenses are causally connected to the work injury, whether the expenses of treatment are causally connected to the medical condition upon which claimant is now basing his claim and whether the medical expenses were authorized by the employer. findings of fact After considering all of the evidence and the arguments of counsel, the undersigned makes the following findings of fact and conclusions of law. 1. The undersigned finds that the claimant is not credible. There were simply too many discrepancies between the claimant's testimony at the trial of this matter with prior testimony given on a related claim and the documentary evidence offered into evidence here. Additionally, claimant was effectively impeached at the time of the trial on this matter. Finally, and most importantly, there are serious omissions from the histories and employment record given by claimant, whether inadvertent or not, that support this conclusion. 2. Claimant was 28 years old at the time of this hearing. He is married and has one dependant. 3. Claimant's educational history is limited. Claimant finished either 8th or 9th grade. The testimony from April 4, 1990 and October 31, 1990 is inconsistent on this point. The undersigned concludes that claimant did not finish high school and has not obtained a GED certificate. 4. Claimant's work history involves jobs as a construction worker, a truck driver, and currently, a small business owner. 5. In 1985, while employed with Giese Construction Company, claimant was lifting a heavy concrete form and suffered an injury to his lower back. Claimant was treated by Samir R. Wahby, M.D., and was found to have a five percent (5%) permanent impairment to his lower back. Claimant filed a claim for workers compensation benefits and was awarded ten percent industrial disability. See, Blanchard v. Giese Construction Co., File No. 811621 (Iowa Ind. Comm'r Dec. 23, 1987). 6. After claimant's injury, he decided to leave Page 3 construction work and pursue truck driving full time. Claimant's 1986 tax return reflects this change. In 1987, claimant began to drive for Decker Trucking (Decker). 7. On October 4 or 5, 1987, claimant was assigned by Decker to drive a load of wallboard to Chicago. Claimant went to get his load and was required to dolly down the trailer because it was too high for his fifth wheel. When claimant began to crank the trailer down, he felt a sharp pain in his back (Decker injury). He decided to make the run to Chicago anyway. By the time claimant reached Morris, Illinois, he could go no further. He had severe pain in his back. He was taken by ambulance to a hospital in Morris and examined by physicians there. 8. Cesario Cumba, M.D., examined claimant upon his admission to the Morris hospital after the Decker injury. Dr. Cumba ordered a CT scan and consulted with an orthopedic surgeon. The CT scan showed at the L4-5 level a prominent protrusion of the discs in the midline and to the left which would be most consistent with a herniated nucleus pulposus at this site resulting from the Decker injury. Additionally, at the L5-S1 level there was a slight prominence of the intervertebral disc in the midline and toward the right, which although nonspecific favored a bulging disc. 9. Dr. Cumba recommended surgery to repair the herniated disc at L4-5 resulting from the Decker injury. Claimant decided to return to Ft. Dodge for the procedure and to consult with his own doctor. 10. Claimant was admitted to Trinity Regional Medical Center on October 7, 1987 under the care of Dr. Wahby for treatment of the Decker injury.. Claimant was placed in traction and his films from the hospital in Morris were reviewed. The radiologist in Ft. Dodge concluded there was a disc protrusion at L4-5, evidencing a disc herniation on the left and centrally. After the initial examination and admission to Trinity, Dr. Wahby planned to do a lumbar myelogram and a possible lumbar laminectomy to repair the damage from the Decker injury. 11. Claimant improved however and the myelogram study was not done. Claimant was discharged on October 10, 1987 and was released to return to work at Decker on October 23, 1987. Dr. Wahby opined in letters dated May 5, 1986 and June 19, 1987 that claimant would have a five percent functional impairment from the Decker injury. William R. Boulden, M.D., corroborated this conclusion in his deposition of January 9, 1990.. This functional impairment rating is adopted as the correct rating for the Decker injury, even though Dr. Wahby apparently changed his mind in January of 1989 when he reported to Liberty that claimant had no permanent functional impairment arising from the Decker injury. 12. Claimant returned to work with Decker and continued in that employment until February of 1988. At that point, claimant voluntarily terminated his position with Decker. Page 4 13. On February 17, 1988, Claimant began working for Smithway Motor Express, another Fort Dodge trucking company. Claimant voluntarily left this employment on March 29, 1988. 14. Sometime thereafter, claimant began to drive for Crouse Cartage (Crouse). Sometime before May 13, 1988, while on a run to Kansas City, claimant experienced a severe sharp pain in his back (Crouse injury). On May 13, 1988, he was examined by Dr. Wahby. Dr. Wahby noted considerable tenderness in the lower lumbar region and set up an appointment with Dr. Hayne in Des Moines for a second opinion regarding the Crouse injury. There is no evidence in the record that claimant ever kept this appointment with Dr. Hayne. 15. Claimant's testimony regarding the length of time he was incapacitated from this injury is inconsistent with the documentary evidence. Based upon claimant's sworn statement to the Department of Human Services dated August 10, 1988, the undersigned finds that claimant was incapacitated until at least August 10, 1988 as a result of the Crouse injury. During this time period, claimant was not working and he was not able to drive a truck. 16. Sometime after August 10, 1988, claimant worked for Bill Meek shagging trucks in the Fort Dodge area. That job ended sometime in the fall. Claimant applied for a position with OCS on November 10, 1988. On November 16, 1988 claimant was hired by OCS as an over the road truck driver, driving a route in the five state area basing out of Fort Dodge. 17. Claimant continued to have pain in his lower back and in his legs. On March 2, 1989, claimant indicated to an unnamed physician at the McFarland Clinic in Ames, that at times he was unable to lift his legs. In the history given by claimant he reports that he had not had any pain in his back until, "one year ago" and the pain is not getting any better. However, claimant did not mention the Crouse injury. Instead, he described the Decker injury. 18. On or about June 23, 1989, while on a trip for OCS from Albert Lea Minnesota to St. Joseph Missouri, something happened to claimant's back.(OCS injury) By the time claimant reached St. Joseph his movement was limited and he was in pain. Claimant returned to Fort Dodge and delivered his paperwork to the office manager at OCS, Dale Cox. 19. When claimant delivered his paperwork, Ms. Cox noticed that claimant's back was crooked and that one shoulder was lower than the other. Ms. Cox asked claimant what was wrong and was advised by claimant that his back had flared up again as a result of the Decker injury. 20. The next day, Ray Cox, the manager at OCS in Fort Dodge, and Dale Cox visited claimant at his home. Claimant was lying on the floor, in pain when they arrived. The Coxes recommended that claimant seek medical attention. On June 26, 1989, claimant traveled to the McFarland Clinic in Ames for an examination. Claimant complained of pain and requested surgery for his back. He was referred to Dr. Grant. Claimant then waited about two more weeks before he Page 5 saw another physician. Claimant saw Dr. Johnson who recommended that he be admitted to Lutheran Hospital in Des Moines for a CT scan. Claimant was admitted to Lutheran on July 17, 1989. The CT scan showed a disc protrusion at L4-5 and L5-S1. Claimant was then seen by Dr. Boulden who recommended surgical decompression. A bilateral diskectomy at L4-5 with a fat graft and a diskectomy at L5-S1 on the right with a fat graft were successfully performed. Claimant was discharged on July 24, 1989. 21. In the Lutheran admission history given to Dr. Johnson, claimant indicated that his back had caused him difficulty for about a year. Claimant told Dr. Johnson that he was unloading some heavy weight and experienced pain in his low back that increased in severity to the point that he was seen by Dr. Wahby in Fort Dodge. This part of the history comports with the date of the Crouse injury. But claimant described the diagnosis and treatment that he received for the Decker injury. Claimant failed to indicate that the Crouse injury had incapacitated claimant for at least three months (May 13, 1988 to August 10, 1988). 22. After recovering from the surgery and participating in a physical therapy program, Dr. Boulden concluded that claimant had reached his maximum medical healing on October 12, 1989. Claimant was restricted to lifting 40 to 50 pounds on a repetitive basis and 50 to 75 pounds on an occasional basis. In correspondence dated October 12, 1989 between claimant's attorney and Dr. Boulden, Dr. Boulden indicated that claimant would not be released to drive a truck. Dr. Boulden did release claimant to work within these functional limits, however. 23. When claimant's therapy was concluded, he went back to OCS and advised his employer that his doctors had released him to drive again. On October 16, 1989, Claimant took one load to St. Joseph, Missouri. Upon his return, claimant's back was sore. OCS would not permit claimant to drive again until he had a written release. When the release was not forthcoming, claimant resigned his position with OCS. 24. On October 12, 1989, Dr. Boulden also gave claimant a 15 percent permanent functional impairment rating. In January of 1990, Dr. Boulden explained how he reached this rating and how he apportioned the rating between claimant's injuries and claimant's various employers. Dr. Boulden indicated that based on the history given by claimant and from his review of medical records from the 1987 Decker injury, he believed that claimant's ability to continuously drive with periods of on and off spells of back pain compelled him to conclude that two thirds of the functional impairment was attributable to the last employer, OCS.(1) (1) In Dr. Boulden's deposition he repeatedly referred to the fact that the claimant continued to drive for the entire 20 month period before his last incident with OCS. See, Boulden Deposition January 9, 1990, p. 8 , lines 4-14; p. 9, lines 16-25, p. 10, lines 1-4; p. 10, lines 14-25, p. 11 lines 1-18; p. 12 lines 2-24; p. 13 lines 1-14; p. 20, lines 16-25, p. 21 lines 1; p. 25 lines 1-25, p. 26 lines 1-3. Page 6 25. Dr. Boulden based his opinion of apportionment for the permanent functional impairment on incomplete information. Dr. Boulden based his opinion on the incorrect assumption that claimant had continuously worked with on and off symptoms until 1989, when in fact, claimant had been injured and incapacitated for at least three months. Without this information, Dr. Boulden's assignment of liability for the second injury is accorded no weight. 26. As a result of his surgery claimant incurred the following medical expenses: Central Iowa Orthopaedics $5,125.00 Central Iowa Pathologists $170.00 DM Anesthesiologists $528.00 Manual Therapy Center $87.50 Lutheran Hospital $4,897.72 TOTAL: $10,808.22 27. Claimant is now engaged in the salvage business. He recovers scrapmetal and sells it. He also performs demolition work. He nets approximately $1,000 to $1,100 per month. He generally employs two employees and owns some heavy equipment. analysis and conclusions of law 1. Whether the claimant sustained an injury on June 23, 1989 that arose out of and in the course of his employment. Iowa Code section 85.31 (1989) provides that an employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. 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 v. Union County, 188 N.W.2d 283, 287 (Iowa 1971); Musselman v. Central Telephone Co., 154 N.W.2d 128, 130 (1967). The words "arising out of" have been interpreted to refer to the cause and origin of the injury. McClure, 188 N.W.2d at 287; 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. The facts are uncontroverted that claimant sustained an injury on the trip to St. Joseph on either June 22 or June 23, 1989. Claimant, even though his back was sore, was not incapacitated when he left OCS to make this run. Something happened on the way to St. Joseph that triggered the later back problem. As a result, claimant sustained an injury on June 23, 1989 that arose out of claimant's employment. Defendants have urged that claimant's preexisting back condition was the cause of the injury on June 23, 1989 rather than any specific event that occurred while claimant worked for OCS. There is no requirement that there be a specific traumatic event to make an employer liable for an injury occurring to an employee while engaged in the Page 7 employer's pursuits. It is enough if there is some hurt or damage that occurs during the course of employment that makes the employer liable. Almquist v. Shenandoah Nurseries, 254 N.W. 35, 38 (Iowa 1934) In Almquist, the Supreme Court discussed the definition of personal injury in worker's compensation cases. See, Almquist, 254 N.W. at 38. It found: While a personal injury does not include an occupational disease under the Workmen's Compensation Act, yet an injury to the health may be a personal injury. [Citations omitted.] Likewise a personal injury includes a disease resulting from an injury....The result of changes in the human body incident to the general processes of nature do not amount to a personal injury. This must follow, even though such natural change may come about because the life has been devoted to labor and hard work. Such result of those natural changes does not constitute a personal injury even though the same brings about impairment of health or the total or partial incapacity of the functions of the human body. .... A personal injury, contemplated by the Workmen's Compensation Law, obviously means an injury to the body, the impairment of health, or a disease, not excluded by the 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. [Citations omitted.] The injury to the human body here contemplated 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. Consistent with this result, the Supreme Court has also held that while a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere Page 8 existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 76 N.W.2d 756, 760-61 (Iowa 1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 115 N.W.2d 812, 815 (Iowa 1962). Moreover, the employer takes an employee subject to any active or dormant health impairments. Ziegler v. United States Gypsum Co.,. 106 N.W.2d 591, 595 (1960), and cases cited therein. Consequently, the defendants' argument in this regard has no support and must fail. 2. Temporary disability--healing period--permanent disability. Even though claimant has established that he suffered an injury in the course of his employment, he has the burden of proving by a preponderance of the evidence that the injury of June 23,1989, is causally related to a temporary or permanent 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 Page 9 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. Claimant has sustained his burden of proof on the issue of entitlement to temporary total disability benefits for the period between June 23, 1989 and October 12, 1989. However, claimant has failed to sustain his burden of proof on the issue of permanency. Claimant's case for permanency against these defendants rises or falls on the opinion of Dr. Boulden and his conclusion that the last employer is responsible for two-thirds of the functional impairment rating. Dr. Boulden's conclusion was based on incomplete information concerning all of claimant's injuries. The omission of the Crouse injury invalidates Dr. Boulden's conclusion since it is based on the erroneous assumption that claimant continuously drove trucks between October 1987 and June 1989 without serious incident or periods of incapacity. Claimant in fact had a significant period of incapacity that was Page 10 triggered by the Crouse injury that prevented him from driving trucks. Claimant has no other credible proof linking the incident in June of 1989 to his functional impairment. Because Dr. Boulden used a faulty premise to reach his conclusion, claimant has failed in his proof and has not shown by a preponderance of the evidence that the injury sustained on June 23, 1989 is the cause of the disability upon which he now bases his claim. Pursuant to Iowa Code sections 85.32 and 85.33 (1989, temporary total disability of more than 14 days is payable in effect from the injury until the employee has returned to work or is medically capable of returning to substantially similar employment, whichever first occurs. Dr. Boulden indicated that claimant had reached maximum medical benefit on October 12, 1989, which would be appropriate in determining his healing period under Iowa Code section 85.34 (1989) if permanency benefits were awarded. However, maximum medical improvement, one of the tests for ending a healing period, is not a test for determining the end of temporary total disability. Claimant returned to work (at another job) on approximately October 12, 1989. There is no clear evidence indicating the precise date that claimant began to work again. He indicated that it was shortly after he had been released by Dr. Boulden that he became self employed. Claimant did establish that his inability to work from June 23, 1989 through October 12, 1989, was causally related to the flare-up of back symptoms and subsequent Page 11 surgery. Temporary total disability benefits shall be awarded pursuant to the parties' stipulation. 3. Entitlement to medical expenses Additionally, Claimant has the burden of demonstrating that medical expenses were related to the injury in order to have the expenses reimbursed or paid. Auxier v. Woodward State Hospital, 266 N.W. 2d 139, 144 (1978). Claimant has shown by a clear preponderance of the evidence that he was injured while working for OCS. Iowa Code section 85.27 (1989) requires the employer to pay the reasonable cost of the claimant's medical expenses attributable to the injury. In this instance, OCS is responsible for the medical expenses incurred by claimant during the period between June 23, 1989 and October 12, 1989 and enumerated in paragraph 26 above. Under Iowa Code section 85.27 (1989) an employer has the responsibility to provide an injured worker with reasonable medical care and has the right to select the care the worker will receive. In order for the employer to be held responsible for claimant's medical expenses, claimant must show that the treatment sought was either of an emergency nature or was authorized. Templeton v. Little Giant Crane & Shovel, 1 State of Iowa Industrial Commissioner Decisions No. 3, 702, 704 (Iowa Ind. Comm'r Appeal 1985). An employee may engage medical services if the employer has expressly or impliedly conveyed to the employee the impression that the employee has authorization to proceed in this fashion. 2 Larson's Workmen's Compensation Section 61.12(g) (1990). It Page 12 is clear from the evidence given at trial that OCS authorized the medical treatment for the claimant. Both Ray and Dale Cox advised the claimant to go see a doctor in connection with his back. The claimant could reasonably rely on this advice from his employer that he had its authority to seek medical treatment for his back. order THEREFORE, it is ordered: 1. Omaha Cold Storage and Liberty Mutual Insurance Company shall pay to claimant temporary total disability commencing on June 23, 1989 and ending on October 12, 1989, at the stipulated rate of two hundred fifty-eight and 36/100 dollars ($258.36). As these benefits have accrued, they shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. 2. Omaha Cold Storage and Liberty Mutual shall pay the following medical providers: Central Iowa Orthopaedics $5,125.00 Central Iowa Pathologists $170.00 DM Anesthesiologists $528.00 Manual Therapy Center $87.50 Lutheran Hospital $4,897.72 TOTAL: $10,808.22 3. The costs of this action shall be assessed to Omaha Cold Storage and Liberty Mutual pursuant to rule 343 IAC 4.33. 4. Omaha Cold Storage and Liberty Mutual shall file claim activity reports as required by rule 343 IAC 3.1. Page 13 Signed and filed this ____ day of February, 1991. ________________________________ ELIZABETH A. NELSON DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Monty L Fisher Attorney at Law Snell Building Ste 200 PO Box 1560 Fort Dodge Iowa 50501 Mr Stephen G Kersten Attorney at Law Seventh Floor Snell Bldg PO Box 957 Fort Dodge Iowa 50501-0957 Page 1 5-1402; 5-1801; 2503 1402.60 Filed February 26, 1991 ELIZABETH A. NELSON before the iowa industrial commissioner ____________________________________________________________ : JOHN F. BLANCHARD, : : Claimant, : : vs. : : File No. 931382 OMAHA COLD STORAGE, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1402 Inconsistencies in claimant's testimony from this hearing and prior hearing, coupled with inaccurate histories given to several treating physicians, including the primary treating physician led to the conclusion that claimant was not credible and failed to meet his burden of proof. Claimant was able to show that he was injured while in defendant's employ, but he was unable to show that he suffered any permanency. 5-1801 Claimant was awarded temporary total disability benefits from the injury date to the date he was able to return to another job. The evidence indicated that the day claimant was able to work again was the day his primary treating physician indicated he reached maximum medical improvement. 1402.60, 2503, Claimant was entitled to medical benefits for the injury suffered while working for defendant. The employer impliedly conveyed its authorization for medical services to claimant when its local managers visited claimant a day after the injury and advised him that he ought to go see a doctor about his back. Claimant could reasonably rely on this advice from his employer that he had its authority to seek medical treatment for his back. Page 1 before the iowa industrial commissioner ____________________________________________________________ : LARRY J. SHANON, : : Claimant, : File No. 931388 : vs. : A R B I T R A T I O N : BILL WEITL TRUCKING, : D E C I S I O N : Employer, : Defendant. : ___________________________________________________________ This is a proceeding in arbitration brought by Larry J. Shanon (claimant) commenced with the filing of a petition on February 9, 1990 against Bill Weitl Trucking (Trucking), employer as a result of an alleged injury to claimant's abdomen resulting in a left inguinal hernia occurring on December 20, 1989. On February 13, 1991 the matter came on for hearing in Fort Dodge Iowa. The parties appeared as follows: the claimant in person and by his counsel Warren L. Bush of Wall Lake, Iowa and Trucking by its counsel Darwin Bunger of Carroll, Iowa. The record in this proceeding consisted of the following: 1. The live testimony of the claimant, Bill Weitl, Shona Weitl, Rhonda Weitl. 2. Claimant's exhibits 1-8 3. Defendants' exhibits A-E, with Exhibit B consisting of photographs identified as B1 through B10. At the close of all evidence, the case was deemed to be fully submitted. stipulations The parties stipulated to the following matters at the time of the hearing: An employer-employee relationship existed between claimant and employer at the time of the alleged injury. The alleged injury did not cause a permanent disability. The time off work is stipulated to be from December 20, 1989 to March 12, 1990. Claimant is not entitled to any permanent disability benefits. The rate of compensation, in the event of an award, is $197.20 per week. Claimant is married and has two children. He is entitled to four exemptions. The fees charged for medical services are fair and reasonable and the expenses were incurred for reasonable and necessary medical treatment. Defendants are not offering and contrary evidence. Page 2 The causal connection of the expenses to treatment for a medical condition upon which claimant is now basing his claim is admitted but that the causal connection of this condition to a work injury remains an issue to be decided in these proceedings. That defendants make no claim for employee nonoccupational group health plan benefits paid prior to hearing. That there are no bifurcated claims Issues The issues for resolution are as follows: 1. Whether claimant sustained an injury on December 20, 1989 which arose out of and in the course of his employment. 2. Whether a causal relationship exists between claimant's claimed injuries and the claimed entitlement to temporary total disability benefits he is seeking. 3. Whether claimant is entitled to medical benefits, including a determination of causal connection to the work injury and the causal connection of this condition to a work injury. FINDINGS OF FACT After considering all of the evidence and the arguments of counsel, the undersigned makes the following findings of fact and conclusions of law. 1. Claimant began working for Trucking in October of 1989 as a truck driver. Trucking is an independent over the road trucking company headquartered in Manning, Iowa. The business is owned by Bill and Shona Weitl. Trucking does not have workers compensation insurance coverage. In 1989, as part of Trucking's regular business, its drivers were driving trailers full of bones from the Beef America Plant in Norfolk Nebraska to the Boyer Valley Dog Food Plant in Denison Iowa twice a day. 2. The bone run consisted of driving two empty trailers to the Beef America plant in Norfolk and picking up loaded Page 3 trailers for delivery to Boyer Valley. Once the trailers were unloaded, the driver returned with empty trailers to the Norfolk Nebraska plant, picked up two more trailers, hauled the bones to Denison, dropped the trailers in Denison and then drove the tractor to Manning at the end of the day. When the trailers are dropped in Denison they generally remain hooked together, though sometimes the trailers are separated. 3. The bone run trailers are connected by a 1 ton unit called a converter. The converter is on wheels. Each time trailers are delivered or picked up, the trailers are separated and the converter is moved so that the next set of trailers can be attached to the tractor. The converter is necessary whether the trailers are full or empty. 4. When a driver arrives at the Norfolk plant to pick up the first load of the day, the driver first pulls the trailers over scales located at the Coop near the plant. Once the empty trailers have been weighed, the driver pulls the trailers over railroad tracks and turns into a driveway that is adjacent to a fenced yard. The driver drops the back trailer near the road and then drives through the service gate with a single trailer. He turns around and backs the converter gear as close to the loaded trailer as possible. After the converter gear is dropped off, the driver takes the other trailer back through the service gate and drops the front trailer. The driver takes the same route back through the service gate and picks up the first loaded trailer. Then the converter gear is either pushed or attached to a shag truck and situated so that the converter is in front of the second trailer. The driver then backs up to the converter. He gets out of the tractor to line up the converter so it will hook onto the front trailer. Once the converter unit is connected to the front trailer, the driver backs the converter and the front trailer into the back trailer. Once the unit is attached the driver is ready to leave with the load. The driver must stop at the guardhouse as he leaves. The trailers are not sealed and no notation is made that the trailers were checked before leaving the plant area. Once the truck is outside the plant, the driver goes back to the Coop scale and the trailers are weighed. Then the load is driven to Denison. Generally, this procedure takes about 45 minutes to an hour to complete. (Ex. E, p. 7, ll. 9-16) 5. Once the load of bones arrives at the Boyer Valley plant in Denison, the load is weighed again. After weighing the trailers, the trailers are pulled around so that the back trailer can be dropped off first and the converter unhooked. The converter is then pushed to the empty trailer and the front trailer is dropped off. The the driver must hook up to the first empty trailer, connect the converter and then back under the second trailer. At the end of the day, the last load is dropped off and the driver is supposed to hook up the empty trailers so the rig is ready to go to Norfolk the next day. The tractor is then driven to Manning. Page 4 6. On December 19, 1989, Bill Weitl drove the bone run to Norfolk. Weitl dropped off trailers B2 and B3 on the morning of December 19, 1989. Trailers B2 and B3 do not have tarps. Weitl picked up trailers B6 and B5. B6 has a tarp rolled up on it that had been rolled up since September of 1989. B5 did not have a tarp. Weitl picked up trailers B2 and B3 at Norfolk on the afternoon of December 19. Trailers B6 and B5 were the trailers that were driven empty to Norfolk on December 20, 1989 by claimant. 7. Prior to his injury, claimant had no prior history involving a hernia on the left side. When he started to work for Trucking, he was in fairly good condition as he had been working construction recently. At the time claimant was hired, claimant was not examined by Dr. Myer or given any type of physical in accordance with Interstate Commerce Commission or Iowa Department of Transportation regulations. Bill Weitl falsified the cab card by signing Dr. Myer's name to the card so that claimant could begin driving immediately for Trucking at the end of October 1989. 8. The reports regarding what happened to claimant, if anything, on December 20, 1989 differ markedly. Claimant, his wife Rhonda and their longtime friend Mo Hinkleman all indicated that claimant and Mo traveled to Norfolk on December 20 to pick up the first load of bones for the day. Mo walked over to claimant's house on the morning of December 20 to ride with claimant to Manning to pick up the tractor. Claimant and Mo arrived at the plant in Norfolk at about 10:30 a.m., dropped the trailers and picked up the loaded trailers. Claimant's log indicates that he left the plant that day at 10:45 a.m. The weather was cold. Norfolk had had some snow that had turned to slush. The slush covered the ground at the plant. (Ex. C, p.3 ll. 18-22; Ex. D, p.5, ll. 1-5). While claimant was maneuvering the converter into place he says that he felt a pop in his abdomen and felt pain (Ex. 3, p.7). He could not push the converter into place and Mo, who had been tarping both trailers, checking the taillights and other equipment on the trailers, had to complete the job. (Ex. 7, p.15, ll. 11-16). Claimant then backed up the tractor, the first trailer, and the converter under the second trailer, hooked up the second trailer and left Beef America. Claimant testified that he did not stop at the guard shack on the way out of the plant. The injury occurred about noon. (Ex. 7, p. 16 ll. 19-23). After claimant and Hinkleman left the Norfolk plant, they stopped at the truckstop in Norfolk. Claimant went into the bathroom and examined himself and discovered a lump in his abdomen. He pushed the lump back in. (Ex. 7, p. 18, ll. 8-9; Ex. 3, p.3). Thereafter, claimant called Shona Weitl to report the injury. Claimant and Mo then drove back to Denison dropped off the trailers and returned the tractor to Manning. When claimant arrived home, he told his wife about the injury and he sought medical assistance. Eventually, claimant's hernia was repaired and Title XIX paid the medical bill for the surgery and hospitalization. Page 5 9. Three disinterested witnesses all testified that claimant had arrived alone at the plant at Norfolk on Wednesday December 20, 1989 (Ex. C, p.7, ll. 18-25, p.8, ll. 1-12; Ex. D, p.6, ll. 6-15; Ex. E, p.14, ll. 20-25, p. 15, ll. 1-4). They all reported that claimant arrived midmoring and because of the slush, snow and ice on the ground when he tried to move the converter into place, he could not get his footing (Ex. C, p. 5 ll. 21-25, p.6, ll. 1-3; Ex. D, p.5, ll. 18-25, p.6, ll. 1-3; Ex. E, p.8, ll. 12-21, p.9 ll. 20-25, p.10, l. 1). After he tried to move the converter, they all reported that the shag driver assisted claimant by hooking up the converter to the shag truck and moving it into place for him (Ex. C, p.6, ll. 7-25, p.10, l. 1; Ex. D, p.6, ll. 1-5; Ex. E, p. 8, ll. 12-25, p.9, ll. 1-1-25, p.10, l. 1). Two of these witnesses reported that claimant did not push the converter at all. One indicated that he had pushed the converter for about 30 seconds. Claimant then hooked up the converter to the back trailer and drove out of the plant. On his way out of the plant, claimant stopped at the guard shack and went in. (Ex. E, p. 10, ll. 14-20; Ex. D, p. 6, ll. 16-25, p. 7, ll. 1-3; Ex. C, p.11, ll. 13-19). Claimant made a telephone call to a toll free number (Ex. E, p. 10, ll. 14-25; p.11, ll. 1). Claimant traveled back to Denison and dropped off the trailers at Boyer Valley. The trailers that claimant dropped off were trailers B6 and B5. Only one of these trailers had a tarp. When Weitl went to pick up the trailers on December 21. 1989, one of the trailers had not been unloaded. Claimant subsequently contacted Shona Weitl to report a possible hernia. He also indicated that he would not be able to complete the second run for the day. Finally, he said that he was not alone but that Mo was not with him that day. Claimant made the same report to Bill Weitl later that night around 6:00 p.m. or 7:00 p.m. Claimant told Bill Weital that he had driven by himself to Norfolk on December 20, 1989 because Mo had something else to do. 10. As a result of claimant's surgery, claimant incurred various medical expenses and costs. These are as follows: Crawford County Clinic $558.00 Crawford County Memorial Hospital $1,494.50 Medical Records and Letter TanCreti $30.00 TOTAL: $2,082.50 CONCLUSIONS OF LAW 1. Whether claimant sustained an injury on December 20, 1989 which arose out of and in the course of his employment. Iowa Code Section 85.31 (1989) provides that an employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Claimant has the burden of proving by a preponderance of the evidence that he received an injury on December 20, 1989, which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904, 908 (Iowa 1976); Musselman v. Central Telephone Co., Page 6 154 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. Claimant has urged that his version of the facts in this dispute support a finding that he was injured at work on December 20, 1989 when he and Mo Hinkleman traveled to Norfolk Nebraska to pick up a load of bones from the Beef America plant. Defendant urges that claimant could not have suffered a hernia on December 20, 1989 while in Norfolk because he did not move the converter into place, a shag truck did. On the crucial question of credibility, neither the claimant or the defendant are very believable. However, the evidence given by the disinterested witnesses in this case is compelling. The greater weight of their evidence supports the defendant's version of the events of December 20, 1989 and claimant has failed to sustain his burden of proof that he in fact suffered an injury that arose out of and in the course of his employment. The inconsistencies in claimant's version of the events of December 20, 1989 begin when he and Mo Hinkleman describe what they were doing on this day. None of the three witnesses saw Hinkleman in the tractor or around the trailers the day of the alleged injury. Hinkleman said he was tarping the trailers at the time of claimant's injury. There was no tarp on one of the trailers and the other trailer's tarp had not been unrolled since September. Hinkleman said that they arrived between 10 and 11 in the morning. Claimant indicated that he was at the Norfolk plant for only 15 minutes, 10:30 a.m. until 10:45 a.m. Claimant did not ask for help in moving the converter. Yet three disinterested witnesses saw the shag driver assist claimant with the converter that day. The shag driver himself reported that he was watching claimant slip and slide all over the yard as he tried to move the converter. The shag driver moved the converter that day. Claimant merely hooked up the lines and drove the trailers away. Claimant said he did not stop at the guard shack on December 20, 1989. However, these same witnesses saw claimant go into the guard shack. The guard indicated that claimant made a toll free call to someone. These inconsistencies when coupled with the testimony of the defendant's witnesses demonstrate that there is insufficient evidence in this record to demonstrate that claimant was injured on December 20, 1989. Claimant did not suffer an injury on December 20, 1989 that arose out of and in the course of his employment. As a result, claimant will take nothing from these proceedings. 2. Whether a causal relationship exists between claimant's claimed injuries and the claimed entitlement to temporary total disability benefits he is seeking. Page 7 The claimant has failed to show that his hernia was caused by a work related injury thus rendering this issue moot. 3. Whether claimant is entitled to medical benefits, including a determination of causal connection to the work injury and the causal connection of this condition to a work injury. The claimant has the burden of demonstrating that the medical services obtained were related to a work injury in order to have the expenses reimbursed or paid. Auxier v. Woodward State Hospital, 266 N.W.2d 139, 144 (Iowa 1978). In this instance, claimant has failed to show that the injury was caused by a work related incident. Consequently, defendant is not liable for claimant's medical bills. The medical report and letter identified by claimant is a cost of this dispute. See Rule 343 IAC 4.33 (The reasonable costs of obtaining no more than two doctors' or practioners' reports is compensable as a cost.) Order THEREFORE, it is ordered: 1. Claimant shall take nothing from this proceeding. 2. The costs of this action shall be assessed to claimant pursuant to rule 343 IAC 4.33. Page 8 Signed and filed this ____ day of June, 1991. ________________________________ ELIZABETH A. NELSON DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Warren L Bush Attorney at Law 151 Boyer Wall Lake Iowa 51466 Mr Darwin Bunger Attorney at Law 729 N Adams Carroll Iowa 51401 5-1801 Filed June 14, 1991 ELIZABETH A. NELSON before the iowa industrial commissioner ____________________________________________________________ : LARRY J. SHANON, : : Claimant, : File No. 931388 : vs. : A R B I T R A T I O N : BILL WEITL TRUCKING, : D E C I S I O N : Employer, : Defendant. : ___________________________________________________________ 5-1801 Claimant failed to prove that he suffered a work-related injury. Claimant's version of the day's events and the mechanics of the injury were inconsistent with the testimony by three disinterested witnesses. No award. Page 1 before the iowa industrial commissioner ____________________________________________________________ : NANCY JO BARKER, : : Claimant, : : vs. : File No. 931397 : EXCEL, INC., : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : CNA INSURANCE COMPANIES, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case Claimant Nancy Jo Barker seeks benefits under the Iowa Workers' Compensation Act upon her petition in arbitration against defendant employer Excel Corporation and defendant insurance carrier CNA Insurance Companies. She asserts a work injury attributable to that employment on October 3, 1988. This cause came on for hearing in Ottumwa, Iowa, on December 17, 1991. The record consists of joint exhibits 1 through 20 and the testimony of claimant, Craig Barker, Mary Brooks and Bob Bastron. issues The parties have stipulated that an employment relationship existed between claimant and Excel Corporation at the time of the alleged injury, to the rate of compensation, that medical benefits are no longer in dispute and that certain benefits were voluntarily paid prior to hearing. Issues presented for resolution include: 1. Whether claimant sustained an injury arising out of and in the course of her employment on October 3, 1988; 2. Whether there exists a causal relationship between that injury and temporary and/or permanent disability; and, 3. The nature and extent of disability. findings of fact Page 2 The undersigned deputy industrial commissioner finds: Nancy Jo Barker is about 31 years of age. She quit school to marry following the tenth grade, but attained her General Equivalency Diploma in 1986. Since high school, she has attended a six-week truck driving school and obtained a degree or certification in computer programming in 1990. She has not yet found employment in that field. Claimant was employed as a cleaning lady for approximately seven months in 1978, except for that brief stint, being a homemaker from 1976 to 1983. She worked as a team truck driver with her husband from 1981 until January 1985 or January 1986, not on a full-time basis, but when extra income was needed. She earned approximately $5,000 in 1983, $4,700 in 1984 and $2,500 in 1985. She worked a temporary seasonal job sorting seed corn for a few weeks and then briefly as a cashier. In May 1988, claimant began work as a ham bagger for Excel, Inc., a meat packing business. The work involved a great deal of repetitive motion with the upper extremities, manipulating whole and half hams. Defective hams had to be lifted to a separate conveyor belt approximately head high to claimant. Prior to accepting work at Excel, claimant had no history of upper extremity injury or problems. Beginning about September 1988, she began developing wrist pain which slowly worsened and extended to the hands and arms. Both upper extremities were affected, worse on the right side. Claimant is left-hand dominant. During the week before October 3, numbness and more severe pain developed. Claimant believed her hands were swollen, weakened and subject to diminished range of motion. Following complaints to the medical department (and some recalcitrance on its part), Ms. Barker was eventually referred to Winn Gregory, M.D., on November 3, 1988. Dr. Gregory took claimant off work upon a diagnosis of bilateral brachial plexitis. Chart notes reflect complaints of pain, swelling and numbness in both arms. Claimant was released to light-duty work on November 14, 1988, and was paid the same wage while on light-duty work in the maintenance department (doing inventory). In the five weeks including those of November 26, 1988, through January 21, 1989, claimant averaged 30.57 hours. During the 13 weeks prior to October 27, 1988 (upon which the parties apparently based their stipulation as to rate), she averaged 31.43 hours. Personnel records indicate time may have been lost on eight days subsequent to her return, although some lost time may have been due to headaches not related to the subject injury. The record does not reflect what hours claimant worked between the week of January 21 and her resignation, nor does it permit calculation of how many hours she "lost" during those eight days. Claimant routinely did not work a regular eight-hour shift; rather, she worked until the day's Page 3 work was done. She did not work any 40-hour weeks during the 13 weeks prior to October 27. Dr. Gregory referred claimant to James B. Worrell, M.D., where she was first seen on November 17, 1988. Dr. Worrell is a board-certified neurologist who testified by deposition on August 28, 1991. He concluded that claimant suffered from both a myofascial pain syndrome and thoracic outlet syndrome. Myofascial refers to the fascia, or tissue covering muscles, while thoracic outlet syndrome was described by Dr. Worrell as referring to pain and numbness caused by a tight muscular compartment at the neck area and over the first rib and clavicle such that a person who repetitively uses the arms in front of the body or over the head will tend to develop an impingement or pressure on the nerve rootlets and blood vessels to the arm. Generally speaking, claimant did not show much in the way of objective signs to account for symptomatology. However, Dr. Worrell thought it significant that he found tenderness in the muscles along the axilla and along the base of the skull and shoulders and one thoracic outlet test was positive: While listening to the artery running near the clavicle and then maneuvering the arm, the pulse is "shut off" as the artery is kinked. It is believed the test described by Dr. Worrell is sometimes referred to as Adson's maneuver. Dr. Worrell indicated that diagnosis of thoracic outlet syndrome frequently does not involve a great deal of hard objective evidence, since basically soft tissues are involved. He relied in part on claimant's history, particularly job activities, which he found consistent with complaints. He stated to a reasonable degree of medical certainty that claimant had developed thoracic outlet syndrome caused by her work. X-rays indicate claimant has a small "extra" cervical rib, furnishing an underlying anatomy consistent with development of thoracic outlet syndrome. However, the doctor emphasized that it was repetitive use and mechanical strains that actually caused the problem to develop. Based in part on American Medical Association guidelines, Dr. Worrell found claimant had sustained a six percent impairment to the body as a whole. Recommended restrictions limited continuous use of the arms, repetitive push/pull movements of more than 5 pounds, lifting more than 10 pounds above the head, lifting more than 20-25 pounds from the floor and repetitive stooping and bending. In particular, Dr. Worrell recommended against any type of factory line work, beautician work, or stenography or computer terminal work involving constantly working with the arms out in front, even in the sitting position. Even though claimant used her hands repetitively away from work (in particular, her computer classes as discussed infra), the doctor deemed factory work a much greater factor in Page 4 development of symptoms. Claimant continued having symptoms beyond the time he might normally expect for recovery (6-12 months), but continued complaints of that duration are not unheard of, particularly in the case of an individual performing activities which would tend to aggravate or exacerbate symptoms, such as computer work. Claimant was seen for evaluation by Marc E. Hines, M.D. Dr. Hines reported on October 9, 1991, that claimant's symptoms were "quite typical" of a thoracic outlet syndrome, and that there also appeared to be a myofascial component. Dr. Hines agreed with Dr. Worrell as to the existence of objective evidence of neurological dysfunction and agreed with the proposed medical restrictions of that physician. Impairment was rated at 11 percent of the whole person. Claimant was also seen for evaluation on December 18, 1990, by Alfredo D. Socarras, M.D. Dr. Socarras, a neurologist, testified by deposition on October 3, 1991. He has apparently not attained board certification. Dr. Socarras concluded that Ms. Barker did not suffer from thoracic outlet syndrome based upon a lack of objective signs. He did not find a positive Adson's maneuver, and in any event does not consider that test significant. Dr. Socarras did, however, diagnose overuse syndrome which he tied to repetitive manual activity, in particular work at Excel. He found no functional impairment from a "neurological standpoint." It is unclear, but probable that he also intended no impairment rating with respect to overuse syndrome. Dr. Worrell's opinion is found more persuasive than that of Dr. Socarras. Dr. Worrell is the treating physician and has had repeated opportunities to examine claimant over a period of time. His opinion is corroborated by that of Dr. Hines. In addition, Dr. Worrell is board certified. In cases of conflict, the opinion of a board-certified physician is commonly preferred. Dickey v. ITT Continental Baking Co., Thirty-fourth Biennial Report of the Industrial Commissioner 89 (1979); Richland v. Palco, Inc., Thirty-second Biennial Report of the Industrial Commissioner 56 (1975). Since leaving Excel, claimant attained a degree or certification as a computer programmer. Her reasons for quitting Excel included both upper extremity symptomatology and the wish to attend school. She had long intended to leave Excel when school was completed, and was approximately half way through the course of instruction when she quit. Hand pain had started to subside by that time. Since then, claimant has been employed as a convenience store clerk on a part-time basis. She has not been successful in obtaining work as a computer programmer, no doubt in part due to rather mediocre grades. Page 5 Ms. Barker testified that she now feels foreclosed from truck driving, nursing home work and various other activities, such as hauling wood, feeding animals, washing windows and the like. conclusions of law The parties dispute whether claimant sustained an injury arising out of and in the course of employment. The words "arising out of" refer to the course or source of the injury. McClure v. Union County, 188 N.W.2d 283 (Iowa 1971). This requirement is satisfied by showing a causal relationship between the employment and the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986). Drs. Worrell and Hines find that claimant suffers thoracic outlet syndrome and myofascial pain syndrome causally connected to repetitive work at Excel, Inc. Even Dr. Socarras, who finds no permanent impairment, attributes symptoms to an overuse syndrome which he relates to repetitive work at Excel. Claimant has established by a preponderance of the evidence that she sustained an injury arising out of and in the course of employment consisting of symptomatic thoracic outlet syndrome and myofascial pain syndrome. Affected are the upper extremities and the body as a whole, including the neck and shoulder region. Although claimant has mentioned one particular incident when a ham fell, onset of this disorder has largely been insidious. In cases of cumulative injury, the date of injury has been held to be that occasion when, due to pain or physical inability, claimant is no longer able to work. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). In this case, that occurred on November 3, 1988, when Dr. Gregory took claimant off work. Under Iowa Code section 85.34(1), healing period is compensable beginning on the date of injury and continuing until the employee has returned to work, it is medically indicated that significant improvement from the injury is not anticipated, or until the employee is medically capable of returning to substantially similar employment, whichever first occurs. Claimant returned to work on November 15, 1988. Her healing period extends from November 3 through November 14, or 12 days, or 1.714 weeks. Claimant also alleges entitlement to temporary partial disability. There were apparently some few hours lost between November 15, 1988, and February 3, 1989, when claimant quit work, but the state of the record does not permit calculation of that entitlement. As noted, claimant worked essentially the same number of average hours during the five weeks including January 21, 1989 (later records not being available), as was the case in the 13 weeks prior to October 27, 1988. Claimant has failed to meet her burden of Page 6 proof in establishing entitlement to additional temporary partial disability benefits. What then is claimant's entitlement to permanent disability? Based on the diagnosis of thoracic outlet syndrome on the part of Drs. Worrell and Hines and symptomatology in the body as a whole (neck), it is held that claimant has sustained an injury to the body as a whole which must be compensated industrially. 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 Page 7 are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial dis ability. See Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 654 (App. February 28, 1985); Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 529 (App. March 26, 1985). In essence, industrial disability measures the loss of earning capacity. Second Injury Fund v. Hodgins, 461 N.W.2d 454 (Iowa 1990). As noted, a number of factors are to be considered. One of those factors mitigating industrial disability is that claimant voluntarily quit her job at the same rate of pay as before the work injury. Thus, absent evidence that claimant could not have remained so employed, her actual earnings have been diminished only by her voluntary act. Still, it is clear that, given the medical restrictions imposed by Dr. Worrell and concurred in by Dr. Hines, claimant is now foreclosed from much of the work in which she has previous experience. It appears that she would be able to continue work as a cashier or in some of the jobs presumably still available at Excel. Restrictions against repetitive use of the hands in front of the body or overhead would probably foreclose employment as a long-distance truck driver or as a seed corn sorter. Lifting restrictions probably foreclose employment as a cleaning lady. On the other hand, claimant obviously has the capacity to be a computer programmer, even though she has not yet secured employment in that field. Defendants are not entitled to take "credit" for her subsequent educational attainments, since they did contribute to the cost involved. Nonetheless, it is undeniably the case that claimant had the innate ability to obtain that training, as she has since proven. Considering then these factors in particular and the record otherwise in general, it is held that Nancy Jo Barker has sustained a permanent industrial disability equivalent to 20 percent of the body as a whole, or 100 weeks. order THEREFORE, IT IS ORDERED: Defendants shall pay unto claimant one point seven one four (1.714) weeks of healing period benefits at the stipulated rate of one hundred thirty-two and 23/100 dollars ($132.23) per week payable commencing November 3, 1988. Defendants shall pay unto claimant one hundred (100) weeks of permanent partial disability at the stipulated rate of one hundred thirty-two and 23/100 dollars ($132.23) per Page 8 week payable commencing November 15, 1988. Defendants shall have credit for all benefits voluntarily paid prior to hearing. All accrued benefits shall be paid in a lump sum together with statutory interest pursuant to Iowa Code section 85.30. Costs are assessed to defendants pursuant to rule 343 IAC 4.33. Defendants shall file claim activity reports as requested by the agency pursuant to rule 343 IAC 3.1. Signed and filed this ______ day of ____________, 1992. ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Vern M. Ball Attorney at Law 207 South Washington Street P.O. Box 129 Bloomfield, Iowa 52537 Ms. Dorothy L. Kelley Ms. Kathleen A. Davoren Attorneys at Law 500 Liberty Building Des Moines, Iowa 50309 5-1803 Filed March 5, 1992 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : NANCY JO BARKER, : : Claimant, : : vs. : File No. 931397 : EXCEL, INC., : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : CNA INSURANCE COMPANIES, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 5-1803 Industrial disability awarded. Page 1 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : MIRELLA S. GOBEN, : : Claimant, : : vs. : : File No. 931398 AMERICAN NATIONAL INSURANCE, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : HARTFORD INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ INTRODUCTION This is a proceeding in arbitration brought by Mirella S. Goben, claimant, against American National Insurance Company, employer, and Hartford Insurance Company, insurance carrier, for benefits as the result of an alleged injury which occurred on March 16, 1988. A hearing was held in Des Moines, Iowa, on May 26, 1992, and the case was fully submitted at the close of the hearing. Claimant was represented by Alan M. Wilson. Defendants were represented by Robert C. Landess. The record consists of the testimony of Mirella S. Goben, claimant; Anna Carita (Blacksmith) Aquiniga, defendants' witness; Nizam Wadi, district manager; and joint exhibits 1 through 12 and 15 through 19. Exhibit 13 was withdrawn by the parties and is not a part of the record. Exhibit 14, a deposition of claimant, was excluded by the deputy on his own initiative for the reason that claimant was available at the hearing to testify on both direct and cross examination and because the deposition could be used to refresh memory or impeach claimant if necessary. Exhibit 14 remains with the record but was not considered in the determination of the issues in this case. Defendants presented a brief description of disputes at the time of the hearing. Both parties submitted excellent posthearing briefs. STIPULATIONS The parties stipulated that claimant made no claim for entitlement to permanent partial disability benefits. The issue of rate, which was shown as a disputed hearing issue on the hearing assignment order, was withdrawn by the parties at the time of the hearing and the rate of compensation was stipulated to at that time. ISSUES Page 2 The parties submitted the following issues for determination at the time of hearing: Whether claimant sustained an injury on March 16, 1988, which arose out of and in the course of employment with employer; Whether the injury was the cause of temporary disability; Whether claimant is entitled to temporary disability benefits, and if so, the extent of benefits to which she is entitled; Whether claimant is entitled to medical benefits; Whether claimant gave proper notice pursuant to Iowa Code section 85.23 was asserted as an affirmative defense by defendants; and Whether defendants were entitled to a credit for nonoccupational group health plan benefits paid to claimant prior to hearing pursuant to Iowa Code section 85.38(2). FINDINGS OF FACT NOTICE It is determined that defendant employer did not have actual knowledge of a work-related injury and that the employee or someone on her behalf did not give notice of a work-related injury within 90 days of the date of the occurrence, and therefore, no compensation shall be allowed. Iowa Code section 85.23. Claimant, a licensed life and health insurance agent, started to work for employer in July 1986 as a debit agent. The employment contract required her to use her own personal vehicle in this job of selling, servicing and collecting premiums on life and health insurance policies. On March 16, 1988, at approximately 4:30 p.m., claimant's vehicle was struck in the right rear by another vehicle which was driven by Anna Carita (Blacksmith) Aquiniga. Neither party was injured and there was no substantial damage to either vehicle so the parties exchanged names and data and continued on about their business. Claimant testified that on the following day, March 17, 1988, she could not turn her head, and therefore, she saw her personal family physician, Eugene C. Honeywell, D.O. Claimant further testified that she called Harlan Donaldson, her district manager and reported that she was in an automobile accident while working and that she was staying home. Claimant related that Donaldson wrote to the home office and reported the accident. On March 18, 1988, Donaldson wrote to the home office Page 3 in Galveston, Texas, that claimant was absent from work on Thursday, March 17, 1988. He said she was involved in an auto accident and suffered a slight back injury. He then added, however, she has returned to work today (exhibit 12, page 40). Donaldson's letter said nothing about the accident being work related. The home office replied on March 31, 1988, that they had received his correspondence and they were approving sick leave for claimant from the regular two weeks of sick leave that comprise the maximum amount of sick leave with pay for any one calendar year (ex. 12, p. 39). Claimant testified that she told Donaldson that she was collecting a premium at the time of the accident or that he at least knew that this was what she was doing at the time of the accident. Claimant continued to see Dr. Honeywell who ordered x-rays, prescribed medications, a cervical collar, a TENS unit, and various physical therapy modalities. Claimant submitted the bills for this treatment to her automobile insurance carrier for little over a year until the maximum limit of $5000 was consumed. Then in the last part of May and the first part of June 1989, she began submitting these bills to employer's nonoccupational group health plan insurer. Just a few days prior to that, on May 23, 1989, an interoffice memorandum from the group claims department to the accounting department shows that they had received a claim for benefits indicating that it was for an accidental injury on March 16, 1988, that was work related (ex. 12, p. 279). These two events apparently occurred when the automobile medical insurance expired and claimant made a group health plan claim dated May 15, 1989, on a claim form which indicated she was in an accident at 4:30 p.m. on March 16, 1988, and that the accident was due to the injured persons occupation (ex. 12, p. 281). Claimant wrote a memo to the group claims department on May 15, 1989, requesting credit against her deductible and reimbursement accordingly for 1988 and 1989 (ex. 12, p. 278). Claimant wrote another memorandum to the company on May 30, 1989, which was received by them on June 1, 1989, in which she stated, "I, Mirella S. Goben, at this time am not filing a workmans [sic] comp. claim." (ex.12, pp. 28 & 277). Thus, it was not until May 15, 1989, that it can be documented that she reported that the accident of March 16, 1988, was due to the injured person's occupation (ex. 12, p. 281). It was not until May 30 that the terminology "workers' compensation" appears on the record and claimant wrote at that time that she was not filing a workers' compensation claim (ex. 12, pp. 28 & 277). Apparently Donaldson was not notified and did not have actual knowledge on March 18, 1989, that (1) claimant had sustained a work-related injury or (2) that she was injured while engaged in her employment or (3) that a workers' compensation claim might be involved because he makes no Page 4 mention of it in his letter when he notified the company that claimant lost one day from work because of a slight back injury from an automobile accident (ex. 12, p. 40). No motivation was submitted for why Donaldson would attempt to conceal a work-related injury, nor was it suggested that he attempted to conceal a work-related injury. An employer's actual knowledge of an occurrence of injury must include some information that the injury is work connected in order to satisfy the alternative notice of claim requirement in a workers' compensation case. Robinson v. Department of Transportation, 296 N.W.2d 809 (Iowa 1980). Claimant had another 88 days after March 18, 1988, after she returned to work to specify that she had a work-related injury, but there is no evidence that she did so until over a year later in May of 1989. The purpose of Iowa Code section 85.23 is to alert the employer to the possibility of a claim so an investigation of the facts can be made while the information is fresh. In view of this purpose, it is reasonable to believe that the actual knowledge alternative must include information that the injury might be work connected. Robinson, 296 N.W.2d 809, 811. Even though Donaldson knew that claimant used her car in her employment, he also knew that she used her car for all of the other driving that she might do of a personal nature. Furthermore, the reasonable conduct of a person who has reported a work-related injury to their employer is to submit the medical bills to the employer for payment as a workers' compensation claim. Claimant, however, did not approach the company for payment of her bills until her automobile insurance coverage ran out and she wanted more bills paid. Claimant did not allege that she was entitled to the discovery rule. She did not assert that she did not know the nature, seriousness or the compensable character of the injury. Jacques v. Farmers' Lumber and Supply Co., 242 Iowa 548, 47 N.W.2d 236 (1951). Claimant asserted that her managers did not properly instruct her on how to process a workers' compensation claim. However, if the managers did not know she had a claim, it would not be possible to instruct her. The evidence from three managers, such as it is, gives no indication that any of them were ever aware of the fact that she was involved in a work-related accident. Ignorance of one's legal remedy is not a proper application of the discovery rule. Koopmans v. Iowa Electric Light and Power Co., File No. 694831 (App. Dec. 1987). Defendants did not produce any evidence from Donaldson to support the burden of proof of their affirmative defense that Donaldson did not have knowledge that claimant was in a work-related automobile accident. Defendants did not rebut the testimony of claimant that she reported a work-related Page 5 injury to Donaldson. By the same token, claimant did not produce any evidence from Donaldson to explain why, if she did in fact report a work-related injury to Donaldson, he did not report a work-related injury to the company. Failure to give timely notice is an affirmative defense which defendants must prove by a preponderance of the evidence. DeLong v. Highway Commissioner, 229 Iowa 700, 295 N.W. 91 (1940); Reddick v. Grand Union Tea Co., 230 Iowa 108, 296 N.W. 800 (1941); Mefferd v. Ed Miller & Sons, Inc., Thirty-third Biennial Report of the Industrial Commissioner 191 (Appeal Decision 1977). A preponderance of the evidence is "evidence that is more convinving than opposing evidence." Iowa Civil Jury Instructions 100.3. Looking at the evidence in the overall, it is determined that defendants have sustained the burden of proof by a preponderance of the evidence that they did not have actual knowledge of an injury arising out of and in the course of employment and that claimant did not give notice of such a possible injury until May 15, 1989, which is one year and two months after the date of injury. Furthermore, when claimant requested coverage from Nizam Wadi, a later manager, Wadi wrote to the home office that he had talked to his predecessor manager, John Bishop, district manager from July 1988 to March 1989, and Bishop told him that claimant had not reported a work-related claim to him and he had no knowledge of a work-related injury that claimant was involved in (ex. 2, p. 1). It is true that claimant was off work on February 13, 1989, for a sore throat, horse voice and a stiff neck (ex. 12, p. 26), but there is no evidence that would put employer on notice that the stiff neck arose out of and in the course of the employment. It is also true that Dr. Honeywell began submitting claims to the employer's group health department in October of 1989 and December of 1989 on a standard form claim form which checked blocks that indicated that the condition was related to the patient's employment and an automobile accident (ex. 12, pp. 182 & 189). These forms further specified that it was a workers' compensation claim. However, this was a year and one-half after the injury date and would not satisfy the 90-day notice requirement. Wherefore, it is determined that claimant did not give notice and defendant employer did not have actual notice of a work-related injury which arose out of and in the course of employment with employer within 90 days of the occurrence of the injury, and therefore, no compensation shall be allowed. Iowa Code section 85.23. Wherefore, in view of the above finding, all other factual issues in this case are determined to be moot. CONCLUSION OF LAW Wherefore, based upon the foregoing and following principles of law, this conclusion of law is made: Page 6 That defendants sustained the burden of proof by a preponderance of the evidence that claimant failed to give notice of injury as required by Iowa Code section 85.23, and that employer did not have actual knowledge of a work-related injury, and therefore, no compensation shall be allowed. Wherefore, all other legal issues in the case are now moot. ORDER Therefore, it is ordered: That no amounts are owed by defendants to claimant on account of the alleged injury of March 16, 1988; That the costs of this action, including the cost of the attendance of the court reporter at hearing, are charged to claimant pursuant to rule 343 IAC 4.33 and Iowa Code section 86.40. Signed and filed this ____ day of June, 1992. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Alan M. Wilson Attorney at Law 107 W. Jackson Corydon, Iowa 50060 Mr. Robert C. Landess Attorney at Law 2700 Grand Ave. STE 111 Des Moines, Iowa 50312 Page 1 51401 1403.30 2401 2801 2802 2803 52902 529069 Filed June 10, 1992 Walter R. McManus, Jr. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : MIRELLA S. GOBEN, : : Claimant, : : vs. : : File No. 931398 AMERICAN NATIONAL INSURANCE, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : HARTFORD INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 51401 1403.30 2401 2801 2802 2803 52902 529069 Claimant failed to give notice as required by Iowa Code section 85.23 and defendants did not have actual notice of a work-related injury. Claimant was involved in an automobile accident. She used her car in her employment as a debit life and health insurance agent and she also used it as her only personal vehicle. Claimant contended that she told her district manager that she was collecting a premium outside of her normal territory from a client that had moved or that he knew that she was working at the time of the accident. The manager only reported an automobile accident that caused a back injury and that claimant was back to work two days later. He made no mention that the injury was work related. Two subsequent managers claimed to have no knowledge of a work-related injury. Claimant presented her medical bills to her own automobile insurance carrier for a year until the $5000 of medical coverage was consumed. One year and two months after the accident she then filed a claim against the employer's group health plan. She asserted the injury was work related but that she was not presenting a workers' compensation claim. It was determined that she did not give proper notice of claim and that employer did not have actual knowledge of a work-related injury. Claimant did not assert the discovery rule. Claimant Page 2 contended her managers were deficient in not properly instructing her on how to file a workers' compensation claim. The weight of the evidence is that none of three managers was aware of a work-related injury. Also, ignorance of the law is not a proper application of the discovery rule. 1100; 1102; 1104; 1110; 5-1402.40; 5-1801; 2500 Filed December 22, 1994 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ MIRELLA S. GOBEN, Claimant, vs. File No. 931398 AMERICAN NATIONAL INSURANCE, R E M A N D Employer, D E C I S I O N and HARTFORD INSURANCE, Insurance Carrier, Defendants. _________________________________________________________________ 1100; 1102; 1104; 1110 Claimant's job involved collecting past due insurance premiums from defendant employer's insureds. She sometimes visited the insureds to collect payment. Claimant was involved in an automobile accident in the general area where a past due insured was reported to be residing. The route to collect the past due premium and to claimant's home was the same. Claimant's auto accident was found to arise out of and in the course of her employment. 5-1402.20; 5-1801 Claimant only missed one day of work because of the work accident. Claimant was not entitled to temporary disability benefits. 2500 The medical treatment for claimant's work injury was only temporary. Claimant received the same medical treatment for neck problems before, immediately after and for a continued period of time after the work injury. Claimant did not prove that medical treatment for the continued period of time after the work injury was necessary because of the work injury. This treatment was for a prior automobile accident. The employer was liable for medical benefits for a temporary period of time after the work injury. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ ROBERT WILLIAM RUPP, Claimant, File No. 931806 vs. A P P E A L GEORGIA-PACIFIC CORPORATION, D E C I S I O N Employer, Self-Insured, Defendant. ____________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed June 16, 1992 is affirmed and is adopted as the final agency action in this case. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of November, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Francis J. Lange Mr. Paul J. Kaufman Attorneys at Law P.O. Box 1181 Dubuque, Iowa 52004 Mr. Brendan T. Quann Attorney at Law 200 CyCare Building Dubuque, Iowa 52001 9998 Filed November 9, 1992 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ ROBERT WILLIAM RUPP, Claimant, File No. 931806 vs. A P P E A L GEORGIA-PACIFIC CORPORATION, D E C I S I O N Employer, Self-Insured, Defendant. ____________________________________________________________ 9998 Summary affirmance of deputy's decision filed June 16, 1992. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : ROBERT WILLIAM RUPP, : : Claimant, : File No. 931806 : vs. : A R B I T R A T I O N : GEORGIA-PACIFIC CORPORATION, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Robert Rupp, claimant, against his former employer, Georgia-Pacific Corporation. Mr. Rupp seeks workers' compensation benefits due to an injury which arose out of and in the course of his employment on July 10, 1989. The record in this case consists of testimony from the claimant, Tom Becker, LPT, Connie Rupp, Luke Faber, M.D., and Ruth Wittenberg; claimant's exhibits A-M; and, defendant's exhibits 1-11. The case was heard on May 19, 1992 at Dubuque, Iowa. ISSUES The parties submitted the following issues for resolution: 1. Whether claimant's injury is the cause of a permanent disability; 2. Whether claimant is entitled to additional temporary total or healing period benefits; 3. If claimant is entitled to permanent partial disability benefits, the nature and extent of the same; 4. Whether claimant is entitled to medical benefits under Iowa Code section 85.27; and, 5. Whether the medical expenses incurred by claimant were authorized by the defendant. Page 2 FINDINGS OF FACT The undersigned deputy, having reviewed all of the evidence received, finds the following facts: Claimant, Robert Rupp, was 29 years old at the time of the hearing. He is approximately 6 feet 3 inches tall, and weighs 290 pounds. Claimant completed the tenth grade in high school, finished one semester of his junior year, and has since obtained a GED. During high school, claimant worked for Sam Lange Construction, a firm specializing in residential construction. Claimant's job duties included pouring cement, applying plaster, painting, and roofing. In 1989, claimant began to work for the defendant, Georgia-Pacific. Initially, claimant was hired as a scrapper, which required claimant to provide the finish for various pieces ready to be glued. After approximately two months, claimant was promoted to the position of jogger aerator. In this position, claimant operated a machine which removed the dust from between sheets of printed paper. Claimant was required to change pallets holding the paper. These pallets weighed between 10 pounds to 100 pounds. On July 10, 1989, claimant sustained an injury when he stepped backwards off of a platform and fell against an I-beam. Claimant hurt the lower part of his back and testified that he felt pain throughout his low back and legs. Several co-workers came to assist claimant, and he was treated at the plant by Luke Faber, M.D. Claimant testified that Dr. Faber's examination hurt more than helped his condition, and labeled the doctor a "quack." Nonetheless, on July 10, 1989, claimant was admitted to the Finley Hospital and was treated by D. S. Fields, M.D., who reviewed the results of a CT scan and lumbar x-rays. His evaluation noted that claimant's injuries were compatible with ligamentous and muscular injuries to the peri-interspinous ligaments of the lumbar spine and lumbar perispinous muscles on the left side. The CAT scan showed a "slight bulging of the L5-S1 and L4-5 but no evidence of herniation." (Claimant exhibit A, Page 3; Defendant Exhibit 1, Page 3). It was recommended that claimant undergo an MMPI evaluation, the results of which showed that claimant had features of a manic disorder. Barbara Woodward, a psychologist, examined claimant and recommended Lithium therapy. She referred claimant to John Viner, M.D., who administered the Lithium. (Cl. Ex. F, pp. 1-10). Claimant undertook physical therapy throughout July and August, and was released to return to work without restriction on August 28, 1989. (Cl. Ex. B, pp. 2-4). Although claimant testified that he tried to cooperate during physical therapy, the records indicate that his Page 3 efforts were less than satisfactory, and he failed to complete the evaluation to be performed by Melvin Harvey, LPT. (Cl. Ex. 6, pp. 1-2). Once released to return to work, claimant placed a telephone call to Ruth Wittenberg and asked when he could return to work. Ms. Wittenberg told claimant to come down to the plant, and when claimant arrived, he was fired due to providing false information on his application for employment. Claimant placed the blame for the false information on Ms. Wittenberg, and testified that when he filled out the application form he spoke with her about certain questions and was told to answer them in the manner in which he did. Ms. Wittenberg also testified at the hearing and denied these allegations. After claimant was fired, he secured employment in September of 1989 with Farmstead Foods. He worked as a lard scrapper and ran a Whizzard knife. After several months, claimant left this position and eventually secured a job with Liqui Green in March of 1990. Claimant described this position as a seasonal job, and his job duties include spraying fertilizers and insecticides. In October of 1991, claimant sought treatment for low back pain from Thomas Hughes, M.D. Dr. Hughes' examination noted that claimant was in no obvious or acute distress, and straight leg raising tests were negative. He did find two areas of pain at the L5-S1 and L4-5 areas. Cortisone injections were administered, and claimant was to return to Dr. Hughes in three weeks. (Cl Ex. B, p. 9). On his next visit, claimant complained of pain in the upper back and was assessed as having a muscle spasm, etiology unknown. Claimant was given Naprosyn and was to return on an as need basis. (Cl. Ex. B, p. 9). From October of 1991 through March of 1992, claimant periodically sought treatment from Dr. Hughes and a physical therapist, Tom Becker. Although claimant voiced many subjective complaints, the record is devoid of significant objective findings, and even Dr. Hughes expressed his frustration with claimant's complaints. His notes, dated February 25, 1992, provide the following information: Patient returns for follow up on his low back pain. As I've indicated previously, I think this patient is very suggestful and a bit hysterical.... .... Low back pain with left sciatica. I feel absolutely coerced that I must do something to appease this individual for further evaluation. To that effect, we'll go ahead and get current x-rays and obtain an MRI. If that is negative, hopefully, we can close the door on this, at least for the time being. If there is Page 4 anything positive, I would suspician [sic] it would be a free fragment and that would certainly fit with the comings and goings of his symptoms. (Cl. Ex. B, pp. 17-18). The MRI results were within normal limits, and it was recommended that claimant return on an as needed basis. (Cl. Ex. B, p. 18). analysis and conclusions of law The first issue to be addressed is whether claimant received a permanent disability from his injury on July 10, 1989. 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). The claimant has the burden of proving by a preponderance of the evidence that the injury of July 10, 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 v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Furthermore, if the available expert testimony is insufficient alone to support a finding of causal connection, such testimony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish compensability, the injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980). Although claimant argues that he has a permanent Page 5 disability due to continued pain and lifting restrictions of 25-30 pounds, his testimony is not supported by the records placed into evidence. Although claimant was off of work for a period of time, Dr. Faber did not feel claimant had any work restrictions and never made an evaluation addressing any permanent disability claimant may have sustained due to the work related injury. Likewise, Dr. Woodward who diagnosed claimant as having a manic disorder, did not form an opinion as to whether claimant's mental condition was due to the injury sustained at work. Additionally, although Mr. Becker testified at the hearing and concluded that claimant had a permanent disability, he did not begin to treat claimant until more than two years after the accident, and his opinions are disregarded due to the length of time between the accident and his treatment. Finally, Dr. Hughes did not form an opinion as to whether claimant sustained a permanent disability, and in fact provided claimant with continued treatment reluctantly. As a result, claimant has failed to prove by a preponderance of the evidence that he sustained a permanent disability due his work related injury of July 10, 1989. The medical evidence released relevant to claimant's July 10, 1989 injury shows that he was off of work from July 10, 1989 through August 27, 1989. Claimant is awarded temporary total disability benefits for this time period. Claimant has failed to prove by a preponderance of the evidence that he is entitled to additional temporary total or healing period benefits. The next issue to be addressed is whether claimant is entitled to medical benefits. Iowa Code section 85.27 provides, in relevant part: The employer, for all injuries compensable under this chapter or chapter 85A, shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies therefor and shall allow reasonably necessary transportation expenses incurred for such services.... .... For purposes of this section, the employer is obliged to furnish reasonable services and supplies to treat an injured employee, and has the right to choose the care. Claimant seeks payment of medical bills incurred during 1991 when he was treated by Thomas Hughes, M.D., and subsequent physical therapy sessions, yet fails to provide the necessary evidence to prove that the medical treatment Page 6 received was causally connected to the work injury of July 10, 1989, or that the medical treatment was authorized by defendant. Claimant held several manual labor positions subsequent to his medical treatment in 1991, and without credible expert opinion that provides the causal relationship between the work injury and the medical treatment, it is impossible to conclude that the treatment rendered was for work injuries sustained on July 10, 1989. And, claimant sought the treatment without contacting the defendant for authorization of the same. Claimant's Exhibit K provides the undersigned with a list of medications for which claimant seeks monetary reimbursement. Among these medications are Tylenol Children Chewable (claimant was 29 years of age at the time of the hearing), various brands of aspirin, other prescription drugs prescribed for claimant's mother, and medications prescribed by unauthorized physicians. The only cost awarded to claimant is Barbara Woodward's initial consulting examination and report. Subsequent therapy for claimant's manic disorder is clearly not causally related to the work injury. As a result, claimant is responsible for payment of medical bills incurred after his full release to return to work on August 28, 1989. ORDER THEREFORE, it is ordered: That defendant shall pay claimant temporary total disability benefits from July 10, 1989 through August 27, 1989 at the rate of two hundred twenty-seven and 36/100 dollars ($227.36) per week. That defendant shall pay medical costs incurred by claimant from July 10, 1989 through August 27, 1989. That defendant shall pay accrued weekly benefits in a lump sum. That defendant shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendant are awarded credit for benefits previously paid. That each party shall pay their respective costs of this action, pursuant to rule 343 IAC 4.33. 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 June, 1992. Page 7 ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Francis J Lange Mr Paul J Kaufman Attorneys at Law 750 CyCare Plaza PO Box 1181 Dubuque Iowa 52004 Mr Brendan T Quann Attorney at Law 200 CyCare Building Dubuque Iowa 52001 5-1801 Filed June 16, 1992 PATRICIA J. LANTZ BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ ROBERT WILLIAM RUPP, Claimant, File No. 931806 vs. A R B I T R A T I O N GEORGIA-PACIFIC CORPORATION, D E C I S I O N Employer, Self-Insured, Defendant. ___________________________________________________________ 5-1801 Claimant failed to prove that he sustained a permanent disability. The case lacked a credible claimant, and was entirely devoid of any medical evidence to prove a permaent disability. Claimant awarded seven weeks of temporary total disability.