Page 1 before the iowa industrial commissioner ____________________________________________________________ : DAVID CORBETT, : : Claimant, : : vs. : : File No. 936478 ROLSCREEN COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This case came on for hearing on February 15, 1993, at Des Moines, Iowa. This is a proceeding in arbitration wherein claimant seeks compensation for permanent partial disability benefits as a result of an alleged injury occurring on May 8, 1989. The record in the proceeding consists of the testimony of the claimant and Arlin Harvey, and joint exhibits 1 through 8. issues The issues for resolution are: 1. Whether there is a causal connection between claimant's alleged permanent disability and his May 8, 1989 injury; 2. The extent of claimant's permanent disability, if any, and entitlement to disability benefits; and, 3. An 85.27 medical issue involving causal connection and authorization. The medical bill in question is joint exhibit 2, a University of Iowa Hospital bill in the amount of $12,302.51, including mileage. FINDINGS OF FACT The undersigned deputy, having heard the testimony and considered all the evidence, finds that: Claimant is a 35-year-old high school graduate who upon finishing high school entered the army in July 1975. He served three years before beginning work for defendant employer in July of 1978. Claimant related his experience in the service. There were no skills learned there that were of any real benefit Page 2 in his post-service employment. While in high school, claimant cooked hamburgers and on occasion helped farmers by driving a tractor, baling hay, walking beans, etc. Claimant described the nature of his jobs and positions while working for defendant employer before he was termination on January 3, 1991. These jobs involved standing nine hours on his feet hand rolling in a gasket for windows which weighed from two to 40 or 50 pounds. He described what he would do in working on the windows. His jobs, at times, also involved loading trains and hauling products off the lines. He drove a fork lift truck which involved getting off and on. At times, this job required no lifting. Claimant indicated he switched to days and was working in the stockroom and unloading trailers which required more lifting and lifting anything the defendant produced. He indicated a fork lift would be used to lift pallets but otherwise he did the rest of the work by hand. Claimant continued to work at his job after his May 8, 1989 injury up through his date of termination in January of 1991. Claimant said that he had no problem operating the fork lift, getting on or off or doing the twisting and turning as required prior to his May 8, 1989 injury. Claimant testified that on May 8, 1989, while taking care of factory stock, he had to sort the parts that came in on skids. On this particular day, he indicated there were two or three people absent from work who would normally help in this process so he had to do it himself. He indicated he unloaded 20 to 30 skids which required bending and his low back began to hurt and kept getting tighter and tighter and that this pain went around his back. Claimant indicated he reported his problem to the employer who in turn sent him to a nurse who told him to take Advil. Claimant testified regarding the various doctors he saw and the treatment he received, including physical therapy. Claimant said that William R. Boulden, M.D., released him on January 31, 1990, and indicated there was nothing more he could do for him but did issue restrictions of no repetitive bending or twisting, but that claimant could drive a fork lift as long as he got off it every two hours. Claimant indicated he was driving a fork lift prior to seeing Dr. Boulden in September 1989 but that he was taken off driving the fork lift in October 1989 and never returned to that particular job. Claimant indicated he was taken off the fork lift because he couldn't change the fuel tank. He indicated this tank was changed sometimes once a day and would weigh more than his restrictions allowed. Claimant said his job after October 1989 involved cleaning floors, building crates and painting. He said these jobs violated his restrictions as he had to bend and stoop while painting and cleaning the floors. Claimant testified as to his termination date which has been referred to as both January 3 and January 4, 1991. Claimant indicated that he was notified on the fourth that he was no longer part of the employment team because of his attendance record. Claimant rationalized his understanding Page 3 of his attendance situation and why he missed and when he missed. Claimant also indicated that he was moved from a Class 5 to a Class 3 status which amounted to approximately $2 per hour pay decrease. Claimant indicated he then applied for unemployment benefits and received them. Claimant indicated that after he was off unemployment compensation for some time, he had gone for a three week vocational rehabilitation program in May or June 1992. Claimant developed a tremor in his hand and in January 1992 went to the University of Iowa Hospitals in Iowa City. Claimant indicated eventually he went through the spine clinic at the University of Iowa Hospitals in the neurology department in July and August 1992. He indicated this helped him to understand how to deal with his pain as he was having trouble dealing with it. Claimant indicated at this time he was having back problems on and off whereby he would be stiff two or three days and had a hard time doing anything. He described the nature of his treatment. He indicated it helped him understand how to deal with his pain. Claimant testified he is currently attending William Penn College and taking business and accounting, which is a four year course. He has completed one semester with a "C" average and is retaking a computer course. He indicated he has no trouble in school with his back as he is not sitting more than 15 minutes during class and he can move around the chair. Claimant indicated that it is his intent to finish school and get a degree. It appears he just began this four year course in 1992. Claimant indicated he cannot stand in one spot on concrete for more than twenty or thirty minutes at a time, on carpet in one spot about one hour at a time. He indicates that when sitting while driving, he must get out and walk around about every hour or hour and a half. He would have a hard time pushing an object forward where there is friction and indicates that his daughter pushes the grocery cart when he shops and does the vacuuming at home and his father does the lawn mowing. Claimant indicated he cannot carry more than 40 to 50 pounds two or three times per hour and cannot bend constantly. He has sleeping problems and get up every two or three hours because his back hurts. Claimant said today he cannot do the fork lift job for Rolscreen because riding on the fork lift is so bumpy. He also cannot do the sweeping all day or paint as he cannot bend over all day. Claimant emphasized that since he left defendants' employment in January of 1990, his condition has become worse. On cross-examination, claimant started to be asked some questions concerning his deposition testimony and claimant then testified that when he had a chance to look at the transcript of the deposition, he made statements that were Page 4 stupid or not true. Claimant claims that at the time of his deposition he was going through a low part of his life and was very mad and when he gets mad he doesn't tell the truth. He acknowledged that this workers' compensation situation was the first time he experienced the fact that he had a hard time not telling the truth at the time of his deposition. Claimant was referred to pages 79 and 80 of his deposition (Joint Exhibit 6). Claimant acknowledged that he had no intention at the time of making application for a job. Claimant indicated at his hearing that he was not making any applications for work and emphasized that he would not be able to work and go to school at the same time and take care of the two kids which are in his custody pursuant to a divorce. Claimant acknowledged that he lost no time from work between the time of his May 1989 injury and his termination on January 3, 1991, except when he had to go to physical therapy. Claimant was asked questions concerning personal problems he was having since May 8, 1989, involving his now ex-wife. Claimant acknowledged that there had been several garnishments on his wages as a result of his wife's mismanagement of money and having trouble covering her bills. Claimant said he sued for a divorce in 1986 and the wife was awarded child support and that the employer was withholding money weekly from his paycheck. Claimant also acknowledged that he actually got back with his wife in 1986 and yet claims his wife required him to make child support payments. He indicated he was still paying child support up to the time of his termination even though he got a divorce and has custody of the children. Claimant acknowledged that in 1989 he had problems with his wife (ex-wife) in both the spring and the fall and that his wife was arrested in July 1989 or l990 and was charged with writing bad checks. Claimant said he was required to make the checks good on some in which she signed his name. He acknowledged that his wife filed for a divorce and when they arrested his wife, the kids went with him and have been with him every since. Claimant said this caused stress and that is when he went to see B. G. Wiltfang, M.D. Claimant acknowledged that he saw no other doctor after his April 24, 1990 visit with Dr. Boulden until he was terminated on January 3, 1991. He also acknowledged that he had no further back treatment until April of 1992 at the University of Iowa Hospitals. He did indicate that in January of 1992, he went to the University of Iowa Hospitals because of hand tremors. He indicted that he related this to his back. There is no dispute that from April 24, 1990 to January of 1992, he did not see anyone for his back. He understood the company procedure as to going to the company nurse and getting a note to take to the doctor which in turn would be brought back to the company after the doctor made some notation thereon. He again acknowledged that between April 24, 1990 and his termination on January 3, 1991, he had no contact with any doctor as to his back problem. Page 5 Claimant was extensively questioned as to his attendance record and the reasons for his termination on January 3, 1991. Claimant was referred to his deposition and various exhibits connected therewith (Jt. Ex. 6, Dep. Exs. G,H,I). There is no dispute that these letters and warnings were given and it appears to the undersigned that there is no dispute of the reason for claimant's termination in that this was within the company policy and claimant understood the policy. The undersigned sees no reason to go into any further depth as to this issue. The claimant is not now contending he was terminated because of his workers' compensation claim. Due to the considerable amount of time devoted to this particular area, there appeared possibly an inference that claimant may have thought or defendants may have thought there was a claim or inference of unlawful discharge because of his workers' compensation matter. So there is no doubt in one's mind, the undersigned finds that the record is clear and overwhelming that the company did follow company policy and that claimant's termination was because of his record of absences and infractions contrary to company rules of which he was fully aware and that his discharge was not because of his workers' compensation claim. Claimant had a history going back to a considerable period of time prior to his work injury in which he had problems with attendance and complying with the company rules. Claimant acknowledged that when he had filed for unemployment benefits he saw two prospective employers per week in his small town of New Sharon until July 1991 when his employment compensation ran out. At this time, he also stopped looking for a job. This is also reflected in joint exhibit 3, pages 17 and 18. Claimant indicated that he had applied at Tama Packing Company in November 1991 (Jt. Ex. 6, p. 30 and 31). This incident is reflected on joint exhibit 3, pages 17 and 18. Claimant said that he was ready to take a physical examination but that he had cut his finger and therefore was not able to take it. He stated that he told the packing plant he had no back problems. Claimant indicated he never did go back to take the physical. Claimant was referred to joint exhibit 1, pages 26 and 28, in which he was evaluated on April 9, 1992. There were certain recommendations set out therein, which included that claimant should go on a suggested exercise program, lose weight through a diet and exercise program, and discontinue smoking. Claimant admitted that he hasn't stopped smoking but couldn't relate how much he smoked compared to the two packs a day at the time of the evaluation and that he didn't go on a diet or do any exercises. On that same date, additional notes of Dr. Ernest M. Found, Jr., from the same Spine Diagnostic and Treatment Center, at the University of Iowa, reflect that in January 1992, claimant developed an acute exacerbation of the back and left posterior thigh pain that has been persistent. The doctor's notes go on to indicate that upon physical examination, no acute distress was revealed and claimant's backward bending and side bending and rotation were within normal limits and there was Page 6 no evidence of instability with flexion or extension (Jt. Ex. 1, p. 32). Arlin Harvey, the personnel supervisor for defendant employer, which is now known as Pella Window Company, testified as to his capacity and duties with defendant employer. He went through in depth the company procedures for terminating employees. He referred to the various exhibits attached to defendants' deposition (Jt. Ex. 6, Dep. Exs. G,H,I). As indicated earlier, the undersigned sees no reason to go into detail over Mr. Harvey's testimony as the undersigned has found and the evidence fully shows that claimant was terminated for cause under the company procedures and it appears to the undersigned that notwithstanding the overwhelming evidence of the reason for termination, claimant is not now claiming that the termination was the result of his workers' compensation claim. It is obvious claimant had rights of appeal in all the instances and did not appeal and that there were several individuals involved as far as determinations being reached. Mr. Harvey also responded to the claimant's contention that he was treated differently as far as his warnings procedure versus two others that he named. Mr. Harvey adequately and sufficiently explained the instances of the other two and there was no discrimination. Joint exhibit 1, pages 6 through 8, is a report of Dr. Found, and orthopedic surgeon, and Ted Wernimont, M.S.W, a rehabilitation coordinator with the treatment center, department of orthopedic surgery, University of Iowa. This report mentions the results of claimant's evaluation and certain restrictions, one of which is that he was not to lift more than 40 pounds four times per hour. The doctor emphasized these were not permanent restrictions and should continue to increase with his adherence to a good home exercise program. It is obvious the doctor means the restrictions should decrease over time. The report emphasizes that claimant should continue with a good home exercise program on a regular basis and to continue using the coping skills learned in the program. From the claimant's testimony, it would appear that he did not pay much attention to the recommended follow-up in this program that he went through which was rather expensive. He indicated he has not been doing exercises, hasn't quit smoking, etc. Joint exhibit 1, pages 10 through 13, is a letter sent to Dr. Found that the undersigned reasonably believes sets out certain facts and asked Dr. Found to either agree or disagree with a couple of items or write his own narrative report. Dr. Found indicated that his medical examination of the claimant at the Spine Diagnostic and Treatment Center failed to reveal any objective evidence of an impairment which could be causally related to an alleged injury at work in May of 1989. He also indicated that based on the medical evidence available to him, he could not state to a Page 7 reasonable degree of medical certainty that claimant's need for the rehabilitation program was the result of an alleged injury occurring at work in May of 1989. Joint exhibit 1, page 31, is an April 9, 1992 evaluation report from Eugene F. Gauron, Ph.D., clinical psychologist, with the Spine Diagnostic and Treatment Center. It is of interest to note that his report indicates he cannot tell for sure to what extent claimant is taking initiative to make something happen but that claimant told him he has been applying for jobs without success. Mr. Gauron goes on to say that however there appears to be an air about him of waiting for someone else to do something beneficial for him. The undersigned believes that the evidence and testimony seems to contradict the apparent effort claimant seems to have told Mr. Gauron as to applying for jobs. Claimant testified that he applied only for two a week during the approximate six month period ending in July of 1991 while he was getting his unemployment compensation and that he had not applied for any jobs since that time except for one or two possibly at a packing company in November 1991. In all instances except for Tama Pack, he did not apply in writing but had just made a contact. At those times, it was clear claimant was inquiring to comply with the unemployment laws and made no effort to follow up or seek other jobs or even use a telephone to make contacts. The undersigned believes claimant left a false impression with the clinical psychologist, but it appears a psychologist saw "an air about him" waiting for someone else to do something beneficial for the claimant. It appears that this is the attitude reflected in claimant's conduct. Dr. Boulden's report of July 17, 1990, reflected in joint exhibit 1, page 34, indicates claimant has a disability based upon the degenerative changes of 5 percent and that he was suffering from degenerative disc disease of L5/S1. Dr. Boulden's report of October 26, 1989, approximately five and one-half months after claimant's work injury, gives the impression that claimant has a degenerative disc disease which was aggravated by a work-related injury and recommended that claimant could continue the fork lift job and make sure he gets up from sitting/standing positions frequently and there was to be no bending, lifting or twisting with his back (Jt. Ex. 1, p. 40). Joint exhibit 1, pages 57 through 63, are the employee health records of defendant employer. They reflect that the last company notation concerning claimant's seeing any doctor or requesting any medical attention was April 24, 1990. This confirms the other evidence in claimant's testimony that he didn't see any other doctors since that April 24, 1990 date up to the date he was terminated and, in fact, as claimant testified and as set out earlier, he had not seen another doctor until January of 1992. Joint exhibit 2 is the University of Iowa Hospitals medical bills summary amounting to $12,302.51 that is in Page 8 dispute. This bill includes $304.50 mileage expense. These services were rendered, it appears, beginning May 31, 1991 to August 31, 1992, as to the hospital, and the mileage expense begins January 3, 1992 to December 16, 1992. It is not clear to the undersigned why the mileage expense covers a period three plus months after the date of the medical services at the University of Iowa Hospitals. The testimony indicated that claimant first went in January 1992 to the hospital because of tremors in his hand. It appears in looking at the hospital bills that services were begun because of claimant's nerve condition. Claimant has had nerve trouble, it appears, over the years and joint exhibit 1, page 66, indicates that he has had nerve trouble up to that time, said exhibit being dated, it appears, sometime in 1980, at least between July 1978 and March 1981, if the exhibits are in a somewhat chronological order. Claimant is 35 years old. Claimant has not worked since he was terminated from his employment on January 3, 1991. The record indicates claimant had been living on unemployment benefits and when they terminated, it appears he also was using his retirement or similar benefits that he withdrew and has also been receiving ADC. Claimant lost no time from work as a result of his May 8, 1989 injury up until the time of his termination on January 3, 1991, with the exception possibly of time going to the therapist. Claimant had not seen a doctor since his April 24, 1990 appointment with Dr. Boulden until he was terminated on January 3, 1991, and he received no further back treatment basically until April 1992 at the University of Iowa Hospitals. He did go to the University of Iowa Hospitals in January of 1992 due to tremors in his hand which he relates to a nervous condition. Claimant contends his condition is worse now than it was at the time of his injury. When claimant filed for unemployment benefits shortly after he was terminated on January 3, 1991, he indicated that he was willing, ready and able to work and that he made two contacts for employment per week so as to comply with the unemployment law. It appeared in all of those cases the employer was not hiring (Jt. Ex. 3, pp. 17 and 18) and the record is undisputed that he made no additional effort to find employment after he made the two contacts. He indicated that he did not have the money or resources to drive to places or make long distance calls but it is undisputed he made no effort of any kind even locally, whether it be on the phone or personal contacts, beyond the two contacts. It is obvious to the undersigned that he wasn't very motivated to find work and was only making the two contacts to enable him to get unemployment compensation benefits. As soon as his unemployment ran out in July of 1991, claimant stopped looking for work entirely except it appears he did make contacts in the latter part of 1991 at one or possibly two packing companies. He was ready to take a physical but because of a cut finger, that was delayed. Page 9 He never followed up. It appears to the undersigned he wasn't very enthused about getting a job. Claimant has custody of his two kids he got from an apparent acrimonious divorce proceeding and he indicates that he could not afford child care for the two kids if he got a job. It appears to the undersigned that claimant is satisfied with staying home with the children which would save child care and collect ADC benefits and any other benefits that might be available to claimant without having to work. Claimant contends he has had this back problem ever since his injury but it appears to be no coincidence that as soon as he was terminated from work and off of unemployment benefits, his medical condition appeared to have worsened. Claimant has had a lot of personal problems over the years and this seems to have contributed to claimant's basic attitude. Claimant admitted that he was not telling the truth in his deposition and that he had a tendency to not tell the truth when he gets angry. He indicated that he was angry at the time he took his deposition and that that is the only time he has gotten angry whereby he was not telling the truth. Claimant was emphatic both in his deposition and his testimony that he was not looking for a job and did not intend to look for a job. Claimant is now enrolled in college and has completed one semester. He indicates he could not work now because he is going full time to school and has two kids he must care for. It appears he didn't begin school until 1992. There was no healing period or temporary total disability paid as claimant lost no time from work because of this injury. The undersigned is concerned with the fact that claimant was able to work and after his injury apparently got along alright other than he had attendance problems and problems with the rules of his employer. It appears claimant's termination was in accordance with the company rules and that claimant's own actions brought about his termination. His actions were not as a result of his injury but as a result of his inability to comply with the company rules, the main one being attendance. It seems like claimant has had this problem for years and has been on the verge of a possible discharge. It appears that the defendant company had tried to accommodate claimant through his employment. We have a claimant who missed no work and was able to work after his injury for approximately 20 months until his termination and then when he gets away from any work, lifting or strenuous work exercise, and receives all his unemployment benefits, he all of a sudden has alleged problems resulting from his May 8, 1989 injury. There is no Page 10 evidence of what claimant was doing to cause this and he strictly blames it on his May 1989 injury. Claimant has the burden or proof that he has a permanent injury which was caused by a May 8, 1989 work injury. Claimant through his own testimony raised a credibility problem. The undersigned believes that claimant lacks motivation and is in a mode since his discharge in January of 1989 whereby he is satisfied with and appears to continue to desire to receive benefits from whatever source there is without working. The claimant requests defendants to pay a medical bill represented by joint exhibit 2 in the amount of $12,302.51, including mileage. Defendants contend the same was not authorized nor causally connected. It is undisputed that claimant went to the University of Iowa Hospitals in January of 1992 because of hand tremors and a nervous situation. The record shows he has had a nervous condition dating back prior to his injury ultimately resulting in the January 1992 visit to the University of Iowa Hospitals. Claimant then started having treatment for his back. Claimant has not carried his burden to show a causal connection between the need for that medical treatment and an injury which occurred approximately three years earlier. The undersigned believes that on the facts of this case had claimant not had his other personal problems and his attendance problems and was able to comply with the rules of his employer, he would have still been employed. It does not make sense to the undersigned that claimant was not having any employment-ending medical problems before his termination and once removed from the work area that he contends causes his work injury or aggravation of the same, he now becomes worse when he is removed from the work. The undersigned therefore finds that claimant takes nothing from these proceedings and that he has failed to show that he has any permanent disability that is caused by his May 8, 1989 work injury. Claimant has also failed to show that the medical bills at the University of Iowa Hospitals, including mileage, of $12,302.51 is causally connected to a May 8, 1989 injury. Page 11 conclusions of law The claimant has the burden of proving by a preponderance of the evidence that the injury of May 8, 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). It is further concluded that claimant has failed to prove his alleged disability or medical condition is causally connected to a May 8, 1989 work injury. Claimant has failed to prove that his medical expense and mileage represented by exhibit 2 in the amount of $12,302.51 is causally connected to a May 8, 1989 work injury. order THEREFORE, it is ordered: That claimant takes nothing from these proceedings. That costs are assessed against the claimant. Signed and filed this ____ day of February, 1993. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Page 12 Copies to: Mr David D Drake Attorney at Law West Towers Office Complex 1200 35th St Ste 500 West Des Moines IA 50265 Mr Cecil L Goettsch Attorney at Law 801 Grand Ave Ste 3700 Des Moines IA 50309-2727 5-1402.40; 5-1402.60 Filed February 25, 1993 Bernard J. O'Malley before the iowa industrial commissioner ____________________________________________________________ : DAVID CORBETT, : : Claimant, : : vs. : : File No. 936478 ROLSCREEN COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1402.40 Found claimant failed to prove he incurred a work-related industrial disability. 5-1402.40 Claimant failed to prove his alleged permanent disability was caused by a work injury. 5-1402.60 Claimant failed to prove some of his medical expenses were causally connected to a work injury. before the iowa industrial commissioner ____________________________________________________________ _____ : JAMES A. BLAIR, : : Claimant, : : vs. : : File Nos. 936504/901455 FARMLAND FOODS, INC., : : A P P E A L Employer, : : D E C I S I O N and : : AETNA CASUALTY & SURETY CO., : : Insurance Carrier, : Defendants. : ____________________________________________________________ ____ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed August 9, 1991 is affirmed and is adopted as the final agency action in this case. Defendants shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of December, 1991. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Harry H. Smith Attorney at Law P.O. Box 1194 Sioux City, Iowa 51102 Mr. Thomas M. Plaza Attorney at Law P.O. Box 3086 Sioux City, Iowa 51102 9998 Filed December 17, 1991 BYRON K. ORTON JMI before the iowa industrial commissioner ____________________________________________________________ : JAMES A. BLAIR, : : Claimant, : : vs. : : File Nos. 936504/901455 FARMLAND FOODS, INC., : : A P P E A L Employer, : : D E C I S I O N and : : AETNA CASUALTY & SURETY CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 9998 Summary affirmance of deputy's decision filed August 9, 1991. 5-1802; 5-1803; 5-2209 Filed August 9, 1991 JEAN M. INGRASSIA before the iowa industrial commissioner ____________________________________________________________ : JAMES A. BLAIR, : : Claimant, : : vs. : : File Nos. 936504 & 901455 FARMLAND FOODS, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : AETNA CASUALTY AND SURETY CO.,: : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1802; 5-1803; 5-2209 All of the evidence, including claimant's testimony, support the conclusion that claimant's symptoms arose at the same time. Therefore, it was found that even though there are two claim files and two carpal tunnel surgeries, there was only one injury and not separate injuries in this case. The uncontroverted testimony of claimant verified that his job as a boner required the simultaneous use of both hands and wrists. This case is governed by Iowa Code section 85.34(2)(s) as an injury to both wrists caused by a single incident and is compensated on the basis of 500 weeks. Simbro v. DeLong's Sportswear, 332 N.W.2d 886 (Iowa 1983). The greater weight of the evidence was found to support the impairment rating given by Dr. Pat Luse rather than claimant's treating surgeon who last saw him on October 17, 1989. Dr. Luse gave a 10 percent impairment rating to each upper extremity. Using the AMA Guides, 10 percent of the right upper extremity converts to six percent of the body as a whole and 10 percent of the left upper extremity converts to six percent of the body as a whole. Placing these two values on the combined values chart on page 254 of the AMA Guides, produces a combined value of 12 percent of the body as a whole. Claimant was awarded 60 weeks of permanent partial disability benefits. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : LaVERNE K. HALEEN, : : File Nos. 936505 Claimant, : 936506 : vs. : A R B I T R A T I O N : OSCAR MAYER FOODS CORPORATION, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ____________________________________________________________ STATEMENT OF THE CASE This decision concerns two proceedings in arbitration brought by LaVerne K. Haleen against his former employer, Oscar Mayer Foods Corporation, based upon alleged injuries of January 23, 1989, and February 3, 1989. Claimant asserts that he injured his left shoulder, left wrist and right wrist as a result of cumulative trauma to which he was subjected over the years of his employment by Oscar Mayer. Claimant seeks compensation for healing period, permanent partial disability and reimbursement pursuant to section 85.39 of The Code for the expense of an independent medical examination in the amount of $250. Issues contained within the case include whether the conditions of which the claimant complains are injury as opposed to changes relating to normal aging and a lifetime of labor, and whether any permanent disability is scheduled rather than body as a whole. The case was heard at Des Moines, Iowa, on August 19, 1991. The record in the proceeding consists of testimony from LaVerne K. Haleen, joint exhibits 1 through 7 and claimant's exhibit A. FINDINGS OF FACT Having considered all the evidence received, together with the appearance and demeanor of the witness, the following findings of fact are made. LaVerne K. Haleen is a 60-year-old man born October 23, 1931. He lives on a farm near Boxholm, Iowa. LaVerne attended four years of school, but fell four credits short of obtaining a high school diploma. After leaving school, he worked in the construction industry for approximately a year and then joined the Navy. In 1954, after approximately three and one-half years of service, he was honorably discharged. LaVerne then commenced farming the 160-acre Page 2 family farm with the assistance of his wife, Mary Anne. During the first few years, LaVerne raised livestock, but thereafter it was strictly a crop operation. Since 1986, LaVerne's son-in-law has performed the farming operation. LaVerne's only physical contribution has been to drive a tractor occasionally. During the summers, LaVerne performed construction work. Two years were spent as a carpenter and approximately five years were spent performing masonry work. LaVerne commenced employment with Oscar Mayer Foods Corporation on January 15, 1968. At that time, he had no problems with his shoulders, arms or wrists and passed a preemployment physical examination. Over the years, LaVerne's principal job was boning picnics, although on occasion he performed other jobs such as boning blades. He worked at a rate of 51 or 53 picnics per hour. During approximately the last half of his 21 years of employment, a conveyor system moved the product. In the fall of 1988, LaVerne learned that the plant would be closing. A few months prior to the plant closing on February 3, 1989, LaVerne began experiencing discomfort in his shoulders and wrists. On January 23, 1989, he contacted the plant nurse and was seen by Steven Sohn, M.D., with complaints of persistent aching in his wrists and recent pain in his left shoulder (exhibit 1, page 1). LaVerne continued working at his regular job until the plant closed on February 3, 1989. Thereafter, he drew unemployment and unsuccessfully participated in the Oscar Mayer dislocated worker program. On September 20, 1989, he again sought treatment from Dr. Sohn. Dr. Sohn referred claimant to physical therapy at Dallas County Hospital. He participated in the program for approximately five weeks and showed marked improvement (exhibit 3). Claimant was seen by Peter D. Wirtz, M.D., a Des Moines orthopaedic surgeon, on November 2, 1989. After conducting diagnostic tests, Dr. Wirtz concluded that claimant had degenerative joint disease of both wrists, tendinitis of wrist structures, inflammation of the rotator cuff tendon and degeneration of the acromioclavicular joint in his left shoulder. Dr. Wirtz stated that the conditions are a natural degenerative process and are not related to any one specific incident of trauma (exhibit 3, page 11). He did not comment upon cumulative trauma as a possible cause. Dr. Wirtz felt that claimant had no permanent impairment as a result of these conditions (exhibit 3, page 10). The MRI scan showed fibrillary degeneration of the rotator cuff tendon. Ligaments of the acromioclavicular articulation were shown to impinge upon a portion of the supraspinatus musculotendinous junction (exhibit 4). LaVerne was also examined by orthopaedic surgeon Marvin Page 3 H. Dubansky, M.D., in July 1990. Dr. Dubansky diagnosed tendinitis of the rotator cuff of the left shoulder and tendinitis or tenosynovitis of both wrists. Dr. Dubansky also stated that the changes he found are not unusual for claimant's age and that a combination of aging and a lifetime of labor work were the cause of the claimant's symptoms (exhibit 5, pages 14-16). Dr. Dubansky reported in a subsequent letter that the changes he found are due to farming and the heavy work which LaVerne performed at Oscar Mayer. He rated LaVerne as having a 16 percent impairment of the left shoulder and a 3 percent impairment of each wrist (exhibit 5, page 17). Dr. Dubansky noted that LaVerne's right shoulder was also restricted but asymptomatic. Dr. Dubansky felt that claimant's work at Oscar Mayer was a contributing factor in aggravating and causing the condition, but it would not necessarily be the primary factor (exhibit 5, page 18). Claimant was evaluated by David T. Berg, D.O., in May 1991. Dr. Berg found LaVerne to have chronic tenosynovitis of his hands and wrists which was due to meat cutting. He stated that LaVerne possibly had carpal tunnel syndrome. Dr. Berg also stated that LaVerne had obvious impingement syndrome in his shoulder and left acromioclavicular joint degeneration of a type which was very consistent with the type of work LaVerne had performed. He found LaVerne's right shoulder to also be symptomatic and felt that it probably also had an impingement syndrome. Dr. Berg rated LaVerne as having a 15 percent impairment of his left shoulder, a 10 percent impairment of his right shoulder and a 5 percent impairment of each hand. Dr. Berg stated that the shoulder and bilateral wrist problems were a result of claimant's employment with Oscar Mayer and that the injuries are very typical for that kind of work. Dr. Berg felt that claimant should follow restrictions of not working above chest level and of avoiding repetitive gripping, pulling or pushing with his hands (exhibit 6). A report appears in the record from Karma J. Gibson, M.S., dated April 29, 1991. The stated goal of the report is to assess claimant's employability status and the availability of employment within his stated work restrictions. The report contains a detailed history, but does not address the issues defined in the stated goal. Since leaving Oscar Mayer, LaVerne was unemployed until March 1990 when he obtained a temporary job with the state nursery at Ames, Iowa. He harvested and graded tree seedlings and was paid $5.85 per hour. When the project was completed, he was laid off. The job lasted four weeks. LaVerne completed a course in small engine repair at the area community college and drew unemployment until starting at R & W Tire and Turf in April 1991. LaVerne Page 4 assembles, delivers, picks up and repairs lawn mowers. He expects to also work on snow blowers when the winter season approaches. LaVerne's work hours fluctuate due to the amount of work which is available. He earns $5.00 per hour, but has no fringe benefits. LaVerne complained of a constant ache in his shoulders which worsens with work. He described the left as being worse than the right. He stated that his wrists and arms ache. He is able to perform his present job, but works at his own pace. He complained of pain and aching, but has no plans to leave the job. He plans to continue working until age 62. LaVerne formerly water skied, but ceased the activity approximately three years ago due to his wrists and shoulders. He also has a heart problem and is diabetic. He has suffered from gall and kidney stones as well as an ulcer. He complained that his legs ache. After the plant closed, LaVerne applied for a number of jobs as shown on exhibit A. He stated at hearing that he felt that he was capable of performing all those jobs. Dr. Berg was chosen by the claimant for an independent examination. The charges were $250 which LaVerne has paid. The assessment of this case made by Dr. Dubansky is consistent with that made by Dr. Berg. They are found to be correct. Where the assessment from Dr. Wirtz is in conflict with that of Drs. Dubansky and Berg, Dr. Wirtz' assessment is rejected. Greater weight is given to the assessments made by Drs. Dubansky and Berg because they appear to reach a consensus with each other, whereas Dr. Wirtz stands alone in finding that there is no permanent impairment. The assessment from Dr. Wirtz which states that the claimant's problems are not related to any one specific incident or trauma does not address the issue of whether they have resulted from cumulative trauma or repetitive activity. CONCLUSIONS OF LAW The Supreme Court of Iowa in Almquist v. Shenandoah Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) discussed the definition of personal injury in workers' compensation cases as follows: 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 Page 5 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. According to Dr. Wirtz, LaVerne's condition is entirely the result of natural aging and a life devoted to labor and hard work. The distinction between those conditions which do not constitute a personal injury and those which constitute a cumulative trauma injury or occupational disease resulting from repeated pressure on the parts of the body affected is often difficult to ascertain. In theory, every impact or exertion which affects an individual is an incident of cumulative trauma which plays some part in any impairment of health which subsequently occurs. A personal injury, in order to be compensable, requires more than some exposure to a theoretically injurious trauma. It requires exposure to a real, identifiable trauma which produces a known or identifiable physical abnormality which produces disability, rather than merely symptoms or discomfort. In this case, LaVerne Haleen was exposed to repetitive trauma and he has conditions which are known to result from exposure to repetitive trauma. The facts in this case show LaVerne's wrist and shoulder conditions to be personal injury from cumulative trauma rather than mere aging or the noncompensable results of a life devoted to labor and hard work. Claimant has the burden of proving by a preponderance of the evidence that he received an injury which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The evidence from Dr. Berg appears to contain evidence which, if accepted, would make a prima facie showing of at least a part of this claimant's condition as being an Page 6 occupational disease. The one condition is tenosynovitis, a condition formerly listed as an occupational disease in chapter 85A. He also indicates that the condition is typical for the industry in which this claimant had worked. The shoulder condition could likewise be termed to be an occupational disease resulting from repeated pressure on the parts affected. Calahan v. Oscar Mayer, IV Iowa Industrial Commissioner Report 53, 55 (App. 1983); Johnson v. Franklin Mfg. Co., Thirty-fourth Biennial Report of the Industrial Commissioner 152, 154 (App. 1978). It is a theory which was not raised by any party. The evidence introduced in this case does not compel a finding of occupational disease. If it did, the issue of disablement under section 85A.4 would need to be addressed. There is a possibility that if treated as an occupational disease, the claim might be barred by section 85A.12. As previously indicated, the record in this case permits the conditions to be treated as cumulative injury rather than as occupational disease. The normal rule is that the date of injury is the day that disability from the condition prevents the individual from working. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). That situation did not arise in this case. LaVerne continued working until the plant closed. Thereafter, he was not exposed to the traumas presented by his work as a boner. It is therefore concluded that the date of injury in this case is February 3, 1989, the day the plant closed. There is but one cumulative trauma injury. The injury affects both of LaVerne's wrists and shoulders. While claimant had symptoms on January 23, 1989, those symptoms were not yet disabling. LaVerne seeks compensation for healing period. There is no evidence in the record of this case which shows him to have been disabled in the sense of being taken off work or directed to refrain from working by any physician. He underwent physical therapy for approximately five weeks, but the fact of undergoing physical therapy does not necessarily eliminate the individual from being able to engage in gainful employment. It is quite common to see cases where an individual undergoes therapy while maintaining regular work hours. It is therefore concluded that LaVerne Haleen is not entitled to recover any healing period compensation as a result of the February 3, 1989, injury. Drs. Dubansky and Berg have both rated LaVerne as having permanent impairment affecting his wrists and left shoulder. Dr. Berg has also found an impairment of the right shoulder, while Dr. Dubansky found a restricted range of motion of the right shoulder, but did not assign an impairment rating. Both of those physicians have indicated that LaVerne's work at Oscar Mayer was a substantial factor in bringing about the conditions which now affect his Page 7 shoulders and wrists. For a cause to be proximate, it need not be the only cause. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980). It is therefore concluded that the condition of LaVerne's shoulders and wrists is the result of a cumulative trauma injury which he sustained during the years of his employment with Oscar Mayer Foods Corporation. That cumulative trauma injury process produced the permanent impairment which has been found by Drs. Dubansky and Berg. The difference between their impairment ratings is not significant. The shoulder injury is an injury to the body as a whole since the abnormality and disability is not limited to his arm. Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986). If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term `disability' to mean `industrial disability' or loss of earning capacity and not a mere `functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element 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, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). Industrial disability or loss of earning capacity is a concept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment of physical capacity creates an inference of lessened earning capacity. The basic element to be determined, however, is the reduction in value of the general earning capacity of the person, rather than the loss of wages or earnings in a specific occupation. Post-injury earnings create a presumption of earning capacity. The earnings are not synonymous with earning capacity and the presumption may be rebutted by evidence showing the earnings to be an unreliable indicator. Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218 (1979); 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. A great deal of LaVerne's reduction in actual earnings is the fact that the good paying job with good fringe Page 8 benefits is no longer available since the plant closed. The fact that he is now working at $5.00 per hour is much more closely related to the results of the plant closing than it is to LaVerne's physical condition or disability. The only physician to impose activity restrictions is Dr. Berg and those restrictions are not particularly severe. This is an injury for which there was no loss of work time. There is reason to suspect that, if the plant had not closed, LaVerne might still be working there today and may have continued working until his eventual retirement. Whether or not he would have become actually disabled from performing his usual employment cannot be determined. Nevertheless, he does have significant physical impairment. He is at an age where he is approaching the age at which individuals typically retire. Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report of the Industrial Commissioner 34 (App. 1979). It is not practical for him to seek substantial retraining. His current employment seems very appropriate under the circumstances which exist. When all the pertinent factors of industrial disability are considered, it is determined that LaVerne Haleen has a ten percent permanent partial disability as a result of the cumulative trauma injury to his wrists and shoulders which he sustained over the years of his employment with Oscar Mayer Foods Corporation. Since there is no healing period, the permanent partial disability compensation is payable commencing with the day after the plant closed, namely February 4, 1989. Brincks v. Case Power & Equipment, File No. 843233 (App. April 18, 1990). He is entitled to recover 50 weeks of compensation pursuant to section 85.34(2)(u). LaVerne also seeks to recover $250 as the expenses of an independent medical examination pursuant to Code section 85.39. From the record made, it appears as though Dr. Sohn was the company physician and referred LaVerne to Dr. Wirtz. Dr. Wirtz made an evaluation of permanent impairment in which he concluded that there was none. From the record made, it is not clear whether Dr. Dubansky was a physician retained by the employer, but Dr. Wirtz certainly was. LaVerne is therefore entitled to an independent medical examination under the provisions of section 85.39. In the prehearing report, it is stipulated that the charges made by Dr. Berg are reasonable. The fact that claimant paid the charges is likewise evidence of their reasonableness. LaVerne is therefore entitled to recover the $250 fee charged by Dr. Berg for the independent medical examination. ORDER IT IS THEREFORE ORDERED that Oscar Mayer Foods Corporation pay LaVerne K. Haleen fifty (50) weeks of compensation for permanent partial disability at the stipulated rate of two hundred sixty-three and 30/100 Page 9 dollars ($263.30) per week payable commencing February 4, 1989. The entire amount thereof is past due and owing and shall be paid to the claimant in a lump sum together with interest pursuant to section 85.30 of The Code computed from the date each weekly payment came due until the date of its actual payment. This award is made under file number 936506. IT IS FURTHER ORDERED that Oscar Mayer Foods Corporation pay LaVerne K. Haleen two hundred fifty and 00/100 dollars ($250.00) as reimbursement for the expenses of a medical examination performed by Dr. Berg pursuant to section 85.39 of The Code. This award is made under file number 936506. IT IS FURTHER ORDERED that the costs of both proceedings are assessed against the employer pursuant to rule 343 IAC 4.33. IT IS FURTHER ORDERED that the employer file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ______ day of ____________, 1991. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert E. McKinney Attorney at Law 480 6th Street P.O. Box 209 Waukee, Iowa 50263 Mr. Harry W. Dahl III Attorney at Law 974 73rd Street Suite 16 Des Moines, Iowa 50312 1802; 1803; 2201; 2209 Filed November 7, 1991 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ LaVERNE K. HALEEN, File Nos. 936505 Claimant, 936506 vs. A R B I T R A T I O N OSCAR MAYER FOODS CORPORATION, D E C I S I O N Employer, Self-Insured, Defendant. ____________________________________________________________ 1802; 1803; 2201; 2209 Fifty-nine-year-old claimant had worked at the Oscar Mayer plant as a boner for over 20 years and remained so employed, without being disabled from working, up to the time the plant closed. Shortly before the closing, he began to express complaints affecting his shoulders and wrists. Subsequent evaluations found him to have medically-diagnosed conditions affecting the shoulders and wrists and permanent impairment ratings were assigned. The physicians related the conditions in part to the claimant's work. It was held that the conditions did constitute a compensable injury rather than noncompensable changes due to age or a life devoted to labor and hard work. The conditions were held to be cumulative trauma injuries though there was evidence in the record which made a prima facie showing that at least some part of the condition was an occupational disease. The evidence of occupational disease was not overwhelming and the theory was not supported by either party. The claim might have been barred by section 85A.12 if the condition had been treated as an occupational disease. There was further a question regarding whether disablement had occurred as defined in section 85A.4. Since the case was treated as one of cumulative trauma injury, the date of injury was held to be the last day of exposure to the injurious work, namely the day the plant closed. No healing period compensation was awarded and permanent partial disability was awarded commencing on the day following the date of the plant closure. Claimant awarded ten percent permanent partial disability. Page 1 before the iowa industrial commissioner ____________________________________________________________ : RANDALL L. LESS, : : File No. 936509 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N HAROLD BECKER, : : Employer, : Defendant. : ____________________________________________________________ statement of the case This is a proceeding in arbitration brought by the claimant, Randall L. Less, against his alleged employer, Harold Becker, to recover benefits under the Iowa Workers' Compensation Act as the result of an injury sustained on April 1, 1989. This matter came on for hearing before the undersigned deputy industrial commissioner at Cedar Rapids, Iowa on July 30, 1991. A first report of injury has not yet been filed. The record in this matter consists of joint exhibits numerously numbered 2 through 34 as identified on the submitted exhibit list. The record also consists of the testimony of claimant, of Harold John Becker, of Jim Becker and of Mark Allan Fiedler. issues Pursuant to the hearing assignment order, the prehearing report and the oral stipulations of the parties at hearing, the parties have stipulated that costs for medical charges were fair and reasonable for the condition treated and that treatment was reasonable and necessary treatment for the condition treated; that claimant was not off work on account of the alleged work incident; and, that claimant was a single individual entitled to one exemption who was not a student at the time of his injury. Issues remaining to be decided are whether claimant received an injury which arose out of and in the course of his employment; whether an employer-employee relationship existed between claimant and his alleged employer; whether a causal relationship exists between claimant's alleged injury and claimed disability; the nature and extent of any benefit entitlement; whether claimant is entitled to payment of certain medical costs pursuant to section 85.27; and, claimant's rate of weekly compensation, in the event of any award. findings of fact Page 2 The deputy, having heard the testimony and considered the evidence, finds: Claimant was 24 years old at time of hearing. Claimant had worked for Harold Becker at Becker's farming operation from approximately December 1, 1988 through May 1989. At claimant's pre-hiring interview, Mr. Becker had advised claimant that he would be paid 14 percent of the gross recovery on the milk check. No direct discussion of independent contractor status took place. Claimant had no understanding of what an independent contractor was at the time he agreed to work on Becker's farm. Harold Becker's understanding of independent contractor was "if I take a job and do it on my own." Becker left on an approximately six-week vacation shortly after claimant's hire and left claimant in charge of the farming operation. Apparently, the cows were wholly owned by Becker. Claimant had authority and did charge items to Harold Becker on Becker's accounts with various farm suppliers and veterinarians. Claimant also consulted a veterinarian on numerous occasions. Both Harold and Jim Becker testified that this was more often than Harold Becker would have called a veterinarian. It is found that such consultations did not represent an exercise of control over the work, but rather reflect the judgment calls of a less experienced, younger individual left to manage a dairy operation in the owner's absence. Likewise, claimant initiated feed testing through Triangle Agri Services Corporation. Harold Becker did not generally use Triangle Agri Services Corporation for feed analysis. Without further evidence in the record as to why claimant chose to use the feed testing service in Becker's absence and given that the charge for the feed testing service was to Harold Becker, claimant's ordering of the feed analysis does not evidence that claimant had a right to control the work at the Becker farm. Becker required that the daily milking take place at established intervals twice daily. Claimant could choose the milking times, provided that the times were consistent from day to day. Becker instructed claimant as to how the cows should be bedded down and chastised claimant when Becker perceived that bedding had not been properly done. Claimant's earnings were apparently paid from Swiss Valley Farms Company as an assignment on producer number 456-0, apparently Harold Becker's producer number. Neither federal nor state tax withholdings or FICA withholdings were made from claimant's checks. Claimant had worked on several other farming operations prior to beginning work on the Becker operation. Claimant testified that such withholdings had never been made on his farm earnings checks. Claimant brought a pressure sprayer unit with him to Page 3 the Becker farm and had it installed in the Becker barn. Claimant otherwise used Becker's tools on the Becker farming operation. It is expressly found that claimant and Harold Becker did not have the requisite meeting of minds required to form a mutual intent that claimant should function as an independent contractor and not as an employee. It is further found that Harold Becker retained the right to control claimant's work. It is further found that claimant was an employee of Harold Becker and not an independent contractor. Claimant had sustained an initial dislocation of his left shoulder in a domestic incident in 1983. In approximately December 1984, claimant underwent left anterior, "Putti Platt" shoulder repair. Claimant had had recurrent subluxations of the left shoulder from that point onward. Claimant had informed Becker of a problem with his shoulder at the time of his hiring. Claimant had not discussed his prior surgery or the subluxations, however. Claimant had several subluxations of the shoulder prior to April 1, 1989 while working at the Becker farm. On each of those occasions, either claimant alone or with another's assistance had been able to manually relocate the shoulder. On April 1, 1989, claimant was on a ladder fixing the chain on a manure spreader at Harold Becker's direction. Claimant fell off the ladder. His shoulder dislocated. Neither Jim Becker nor claimant could "pop" the shoulder in. Harold Becker took claimant to the emergency room. Claimant was released later that evening with his arm in a sling. He did the evening milking and continued to work at the Becker farm until the end of May 1989. Claimant then left the Becker farm as Harold Becker was retiring and Jim Becker, Harold's son, was taking over the farming operation. Claimant testified he left because he was tired of farming for someone else and wished an opportunity to farm for himself. The April 1, 1989 work incident was not a factor in claimant's leaving. Claimant sustained another shoulder dislocation in late May 1989 while moving a dresser at his home. On July 27, 1989, William A. Roberts, M.D., apparently a board-certified orthopaedic physician, performed a Bankart anterior capsulorrhaphy repair for recurrent left anterior glenohumeral dislocation. The doctor subsequently assigned claimant a seven percent permanent impairment rating based on restriction of range of motion of the left shoulder produced by the repair. In his deposition taken June 5, 1990, Dr. Roberts opined that claimant's functional condition was improved subsequent to surgery in that the shoulder was now stable, but that permanency was produced under the AMA guides because claimant post-surgery had a reduction of range of motion not present prior to surgery. Page 4 Dr. Roberts' uncontradicted opinion, which is accepted, was that claimant's recurrent dislocation of April 1, 1989 did not impact on his permanent impairment rating. The doctor stated the following as regards the relationship between claimant's April 1, 1989 incident and his ultimate surgery and decrease in range of motion and subsequent impairment: A. I don't believe the fall on the 1st of April, 1989 -- Q. That's the date. A. -- affected the function of his shoulder because he had dislocated prior to that. Q. Okay. A. So, in terms of it having an effect upon his impairment it didn't because it had been dislocating prior to that. Q. Okay. A. That's the primary message that I want to leave with you. Now, it could have been that Doctor McMenamin after his dislocation that he cared for him for could have said, "Randall, you need another shoulder repair." And he could have done surgery at that time, resulting in a decrease in range of motion and a subsequent impairment. So, utilizing the A.M.A. guidelines they don't deal with recurrent dislocation. All they deal with is limitation of range of motion. In fact, before I did his surgery he would have had no impairment because his range of motion was normal. (Dr. Roberts deposition, page 10, line 23 through page 11, line 18) Based on the doctor's uncontroverted opinion, it is expressly found that claimant's surgery of July 27, 1989 related to the overall instability of his shoulder subsequent to his initial injury in 1984 and initial surgery at the University of Iowa and did not relate to and was not substantially aggravated by the work incident of April 1, 1989. conclusions of law We first consider whether claimant was an employee of defendant Harold Becker on April 1, 1989. Section 85.61(1) provides in part: 2. "Worker" or "employee" means a person who has entered into employment of, or works under Page 5 contract of service, express or implied, or apprenticeship, for an employer. . . . It is claimant's duty to prove, by a preponderance of the evidence, that claimant or claimant's decedent was an employee within the meaning of the law. Where claimant establishes a prima facie case, defendants then have the burden of going forward with the evidence which rebuts claimant's case. The employer must establish, by a preponderance of the evidence, any pleaded affirmative defense or bar to compensation. Nelson v. Cities Serv. Oil Co., 259 Iowa 1209, 146 N.W.2d 261 (1967). Factors to be considered in determining whether an employer-employee relationship exists are: (1) the right of selection, or to employ at will, (2) responsibility for payment of wages by the employer, (3) the right to discharge or terminate the relationship, (4) the right to control the work, and (5) identity of the employer as the authority in charge of the work or for whose benefit it is performed. The overriding issue is the intention of the parties. Where both parties by agreement state they intend to form an independent contractor relationship, their stated intent is ignored if the agreement exists to avoid the workers' compensation laws, however. Likewise, the test of control is not the actual exercise of the power of control over the details and methods to be followed in the performance of the work, but the right to exercise such control. Also, the general belief or custom of the community that a particular kind of work is performed by employees can be considered in determining whether an employer-employee relationship exists. Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503 (Iowa 1981); McClure v. Union, et al., Counties, 188 N.W.2d 283 (Iowa 1971); Nelson v. Cities Serv. Oil Co., 259 Iowa 1209, 146 N.W.2d 261 (1966); Lembke v. Fritz, 223 Iowa 261, 272 N.W. 300 (1937); Funk v. Bekins Van Lines Co., I Iowa Industrial Commissioner Report 82 (Appeal Decision 1980). As stated above, the overriding issue is the intention of the parties. Both claimant and Mr. Becker agree that no discussion of claimant's status as anything other than employee ever took place. It is not so outside the ordinary course for an employee to be paid on a percentage basis that claimant could have gleaned from that fact that Becker was asking him to work as an independent contractor and not as an employee. Likewise, ownership of the dairy herd and ownership of all the tools and machines used on the dairy operation with the exception of claimant's own sprayer lay with Mr. Becker. Likewise, all charges were made on Mr. Becker's accounts. The limited exercise of control by claimant was within that which might well be expected to be exercised by a dairy herdsman left to run an operation in his employer's absence. It cannot be said to show clear intent to form an independent contractor arrangement, particularly in the face of such overriding evidence that that had never been a mutual intent of the parties and that actual control, both of how the work was performed and of Page 6 the property and means for performing the work, continued to lie with Mr. Becker. We reach the issue of whether claimant received an injury arising out of and in the course of his employment. The claimant has the burden of proving by a preponderance of the evidence that the alleged injury actually occurred and that it arose out of and in the course of employment. The words "arising out of" refer to the cause or source of the injury. The words "in the course of" refer to the time, place and circumstances of the injury. Sheerin v. Holin Co., 380 N.W.2d 415, 417 (Iowa 1986); McClure v. Union, et al., Counties, 188 N.W.2d 283, 287 (Iowa 1971). The credible evidence does establish that claimant did fall from a ladder in the course of his employment on April 1, 1989 and that that fall produced another recurrent dislocation of his left shoulder. It can fairly be said that claimant received an injury arising out of and in the course of his employment on that date. We consider the issue of causation, both as it relates to entitlement to medical benefits and as it relates to entitlement to weekly workers' compensation benefits. The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296, 297 (Iowa 1974). The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, its mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956). If the claimant had a preexisting condition or disability that is materially aggravated, Page 7 accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961). It is clear that claimant's recurrent dislocation of the left shoulder on April 1, 1989 and the inability of claimant or other individuals to manually relocate the shoulder at that time produced the need for claimant to seek emergency room medical treatment at that time and subsequent follow-up care on April 5, 1989. Defendant Becker then is liable for any costs related to the emergency room visit and for costs related to claimant's follow-up office visit and x-ray examination of his shoulder of April 5, 1989 with Iowa Musculoskeletal Center, P.C., under section 85.27. We note claimant is not entitled to payment of costs related to his May 24, 1989 emergency room visit or expenses with Cedar Rapids Radiologists, P.C., or costs with the John McDonald Hospital in Monticello of $74.00 dated May 25, 1989 in that those appear to relate to the subsequent dislocation when claimant was opening a dresser drawer at home. As claimant lost no work time on account of the April 1, 1989 incident, he is not entitled to either temporary total disability or healing period benefits for any period immediately subsequent to the April 1, 1989 incident through his voluntary leaving of employment with the Becker farming operation. The remaining questions are whether claimant is entitled to payment of medical costs related to his subsequent July 27, 1989 left shoulder surgery and follow-up treatment therefrom and whether a causal relationship exists between the original April 1, 1989 injury and such surgery such that claimant would be entitled to either temporary or permanent benefits, or both, on account of the injury. The facts found support a negative legal conclusion. Dr. Roberts' testimony suggests that the April 1, 1989 incident was only another of multiple recurrent dislocations of claimant's shoulder which dislocations had their origins in claimant's original injury of 1983 and the subsequent initial attempted shoulder repair. The facts do not support a finding that the April 1, 1989 incident materially aggravated claimant's prior shoulder condition such that surgery was necessary subsequent to the April 1 incident, but had not been necessary or desirable prior to the April 1 incident. Given such, claimant is not entitled to costs of medical care related to his July 27, 1989 surgery or other medical care related to his recurrent shoulder dislocations, but not directly related to his emergency room visit of April 1, 1989. Hence, all medical care costs of July 24, 1989 and subsequent thereto are payments for which the employer is not liable. Likewise, claimant is not entitled to either temporary total disability, healing period or Page 8 permanent weekly benefits as related to the July 27, 1989 surgery as that surgery did not have its origins in and cannot be said to be found directly traceable to the April 1, 1989 incident. It is therefore concluded that claimant has established a causal relationship between his April 1, 1989 injury and medical costs related to his April 1, 1989 emergency room visit. Claimant has not established a causal relationship between his April 1, 1989 injury and his subsequent July 27, 1989 surgery. Likewise, claimant has not established a causal relationship between his April 1, 1989 injury and any period of temporary disability related to the July 27, 1989 surgery. Claimant has not established a causal relationship between his April 1, 1989 injury and any permanent impairment or permanent disability related to his July 27, 1989 surgery. As claimant has not established a causal relationship between his April 1, 1989 injury and any period of temporary or permanent disability, it is not necessary to inquire into the extent of any temporary or permanent disability. As claimant has not established any entitlement to weekly disability benefits, it is not necessary to attempt to establish a rate of weekly compensation for claimant. order THEREFORE, IT IS ORDERED: Defendant Harold Becker pay claimant the costs of medical care as follows: Cedar Rapids Radiologists, P.C. $ 32.00 Iowa Musculoskeletal Center, P.C. 74.00 Mercy Medical Center 475.82 Defendant Harold Becker pay the costs of this action pursuant to rule 343 IAC 4.33. Defendant Harold Becker shall file a first report of injury for this claim within twenty (20) days of the signing and filing of this decision pursuant to rule 343 IAC 3.1. Defendant Harold Becker file claim activity reports as the agency requires pursuant to rule 343 IAC 3.1. Signed and filed this ______ day of ____________, 1991. ______________________________ HELENJEAN WALLESER DEPUTY INDUSTRIAL COMMISSIONER Page 9 Copies To: Mr. James L. Chipokas Attorney at Law Suite A, 860 2nd Avenue SE Cedar Rapids, Iowa 52403 Mr. James F. Pickens Attorney at Law Tenth Floor American Building P.O. Box 74170 Cedar Rapids, Iowa 52407-4170 1108.50; 2001; 2002 2200; 2206; 2500; 2700 Filed September 5, 1991 HELENJEAN WALLESER before the iowa industrial commissioner ____________________________________________________________ : RANDALL L. LESS, : : File No. 936509 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N HAROLD BECKER, : : Employer, : Defendant. : ____________________________________________________________ 2001; 2002 Claimant found an employee of farmer for whom claimant worked as a herdsman where no explicit discussion of independent contractor status had taken place and where farmer owned dairy herd, tools and equipment used and all charges were made to farmer's account. Farmer also instructed claimant re times of milking and methods of bedding cows to be used. Claimant's payment of percentage of milk check not sufficient to create independent contractor status. 1108.50; 2200; 2206; 2500; 2700 Claimant sustained a work injury when fall from ladder produced another recurrent dislocation of his left shoulder. Claimant entitled to payments for medical care related directly to that incident. Claimant not entitled to payment for subsequent shoulder surgery which related to long-term problem with multiple recurrent dislocations and not directly to work injury. No lost time or permanent disability related to work injury. Page 1 before the iowa industrial commissioner ____________________________________________________________ _____ : DOUGLAS S. GOODDING, : : Claimant, : : vs. : : File No. 936511 MIDLANDS BUSINESS EQUIPMENT, : : A P P E A L Employer, : : D E C I S I O N and : : AMERICAN FAMILY INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ _____ The record has been reviewed de novo on appeal. The ruling of the deputy filed November 19, 1991 is affirmed and is adopted as the final agency action in this case with the following additional analysis: Claimant, in his appeal brief raises the issue whether the defendant employer as a successor comporation should be liable for his injuries. That issue was not argued before the deputy when the motion for summary judgment was considered. That issue should not now be considered in this appeal. Even if the issue were to be considered, consideration of the issue would not result in a denial of defendants' motion for a summary judgment. Assuming for the sake of argument that the law relied upon by claimant, C. Mac Chambers Co. v. Iowa Tae Kwon Do Academy, 412 N.W.2d 593 (Iowa 1987) were applicable, claimant has presented no evidence to satisfy the tests for successor liability given in that case. Signed and filed this ____ day of February, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Page 2 Copies To: Mr. Thomas J. Reilly Attorney at Law 4900 University, Ste 200 Des Moines, Iowa 50311 Ms. Nancy C. Coon Attorney at Law P.O. Box 65630 West Des Moines, Iowa 50265 5-2000 Filed February 24, 1992 Byron K. Orton DRR before the iowa industrial commissioner ____________________________________________________________ _____ : DOUGLAS S. GOODDING, : : Claimant, : : vs. : : File No. 936511 MIDLANDS BUSINESS EQUIPMENT, : : A P P E A L Employer, : : D E C I S I O N and : : AMERICAN FAMILY INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ _____ 5-2000 Grant of defendant employer's motion for summary judgment affirmed on appeal where claimant was not employed by named employer on the date of the alleged injury. Claimant's attempt to argue cumulative injury and liability of successor corporation was rejected. Page 1 before the iowa industrial commissioner ____________________________________________________________ : CHARLES M. SCHROEDER, : : Claimant, : : vs. : : File No. 936517 DCS SANITATION MANAGEMENT, INC, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : AETNA CASUALTY AND SURETY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ This is a proceeding in arbitration filed by Charles M. Schroeder, claimant, against DCS Sanitation Management, employer and Aetna Casualty and Surety, insurance carrier, defendants for benefits as the result of an alleged injury which occurred on February 22, 1990. A hearing was held on August 26, 1992 at 8:00 a.m. at Sioux City, Iowa, which is the time and place previously set by the order of the industrial commissioner. Claimant was represented by Robert L. Brink. Defendants were represented by Judith A. Higgs. The record consists of the testimony of James Schiltz, claimant's friend, James Schroeder, claimant's father, Norman Pullen, claimant's friend and foreman, Charles Schroeder, claimant, joint exhibits I through X, claimant's exhibits 1 through 4 and defendants' exhibits 1 through 13. Both attorneys filed a brief description of disputes at the time of the hearing. Claimant's attorney filed a trial brief, defendants' attorney submitted a post-hearing brief. Claimant's attorney submitted a post-hearing supplemental brief. The deputy ordered a transcript of the hearing. issues The parties submitted the following issues for determination at the time of the hearing. Whether claimant sustained an injury on February 22, 1990, 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. Whether claimant is entitled to medical benefits. Defendants asserted the affirmative defense of whether intoxication was a substantial factor in causing the injury. Page 2 findings of fact injury It is determined that claimant sustained an injury on February 22, 1990, which arose out of and in the course of employment with employer. Claimant started to work for employer on February 22, 1990. He started to work at 4:00 p.m. and was injured at approximately 9:45 p.m. (Transcript page 70). Thus, claimant had worked five hours and 45 minutes (Tran., p. 71). Claimant was cleaning the line and walls on the kill floor with a steam hose (Trans., pp. 72-75; Defendants' Exhibit 8, p. 3; Ex. 9, p. 2). The room was hot and steamy and wet (Tran., p. 75). Claimant was not used to working in heat and steam. He could hardly breath and he got dizzy (Tran., p. 81). Claimant specifically testified that he passed out because it was hot in there and he could not breath (Tran., p. 116). Claimant testified that he passed out and fell and was burned on the right side of his body by the steam hose (Tran., pp. 75, 81, 83 and 108). A large portion of his right side received second degree burns from his arm pit down to his hip onto his back and into his abdomen (Tran., p. 84; Claimant's Ex. C-3A to C-3F; Defendants' Ex. 9, p. 6). It was reported that claimant sustained burns over eight to ten percent of his body. Sherry Namanny, who was working only a few feet away from claimant, testified that claimant told her that he was getting weak. She said he was sweating. However, she said that claimant told her that he wanted to finish out the night (Clmt's Ex. 4A, p. 8). Namanny told the supervisor, who talked to claimant, and claimant told him that he wanted to stay and work (Clmt's Ex. 4A, p. 11). Namanny testified that in her opinion the room temperature was 100 to 105 degrees and that the water temperature was 160 to 180 degrees (Clmt's Ex. 4A, pp. 7-12). Namanny testified that she noticed that claimant was running out of energy and advised him to sit down but he insisted on continuing to work and the next thing she knew he was down on the floor (Clmt's Ex. 4A, p. 10). Namanny thought that claimant passed out from the heat (Clmt's Ex. 4A, p. 13). Based on the foregoing evidence it is determined that claimant sustained an injury on February 22, 1990, which arose out of and in the course of his employment with employer. Page 3 intoxication-substantial factor It is determined that intoxication was a substantial factor in causing the injury. Claimant admitted to drinking with his father and a friend until about 2:00 a.m. on the morning of February 22, 1990. Prior to hearing claimant denied that he drank after 2:00 a.m. on February 22, 1990, but at the hearing he admitted that he drank possibly four beers sometime during the day on February 22, 1990, but he was not sure of exactly how much he drank and he was not sure of exactly when he drank it. Claimant denied that he drank after he arrived at work at 4:00 p.m. on February 22, 1990. Claimant's father, James Schroeder, did not observe his son drinking anything on February 22, 1990, after they got up late that morning. He testified that he drove claimant to work and that claimant was not intoxicated at that time (Tran., pp. 32-46). James Schiltz, claimant's friend, testified that he drank with claimant and his father until about 2:00 a.m. He did not observe claimant drinking anything on February 22, 1990, after they got up late that morning. Schiltz further testified that claimant was not intoxicated when he and claimant's father took him to work (Tran., pp. 14-32). Norman Pullen, who hired claimant, and who was also a friend of claimant, saw him in a group of people at work at approximately 4:00 p.m., when claimant reported to work on February 22, 1990. Pullen did not speak with claimant directly but did observe him in the group and he testified that claimant did not appear to be intoxicated to him (Tran., pp. 47-63). Namanny, who worked close to claimant for approximately five hours saw no signs of intoxication or alcohol use (Clmt's Ex., 4A, pp. 5-8). She indicated that she believed that claimant passed out because it was his first day on the job, the steam, the heat, the wet environment and the exertion of the job under those conditions. Thomas L. Bennett, M.D., a board certified pathologist in both general pathology and forensic pathology, who is admitted to practice in Iowa, Nebraska and North Carolina, and in addition to his practice of medicine is also the medical examiner for the state of Iowa, testified by deposition on July 21, 1992, that he did not examine claimant or the workplace but that he did examine a number of records introduced into evidence in this case. Dr. Bennett testified that he has also taught medicine and written a number of papers (Defs'. Ex. 6, pp. 2-8 and Deposition Ex. 14). Dr. Bennett examined the documents in this case and wrote a report on July 8, 1992 (Defs'. Ex. 5). Dr. Bennett wrote to defendants' counsel as follows: "The ambulance was reportedly notified at 9:48 p.m., arriving at the scene at 9:52 p.m. and arriving at the hospital at 10:16 p.m. The Page 4 Crawford County Memorial Hospital laboratory records from that evening note that a blood specimen was collected at 11:40 p.m., finding a blood alcohol content of 80.5 mg/dl. Thus, approximately two hours following the time of his injury, he had a blood alcohol content of 80 mg/dl. A healthy individual will metabolize alcohol at a rate between 18 and 25 mg/dl per hour, roughly equating to about 20 mg/dl per hour for practical purposes. Anything which would make him unhealthy would be immediately obvious, such as frank liver insufficiency or kidney insufficiency, neither of which this man has. Doing the proper calculations allows one to conclude that his blood alcohol content would have been approximately 120 mg/dl at the time his injury, well above the 100 mg/dl which has been set by our Iowa legislature as indicating that an individual is under the influence of alcohol for purposes of driving a motor vehicle." (Defs'. Ex. 5; Defs'. Ex. 7, p. 25). Dr. Bennett enumerated three other factors that might be considered to determine that claimant's blood alcohol level was even higher at the time he lost consciousness: (1) a person like claimant with a history of chronic alcoholic abuse will metabolize alcohol faster than an unexperienced drinker, (2) claimant lost additional body fluids because of the burn and (3) the resuscitative measures added nonalcoholic fluids to claimant's system after the injury and before the sample was taken (Defs'. Ex. 5, p. 2; Defs'. Ex. 7, pp. 20-26 & 32). Dr. Bennett's final conclusion was: "It is my opinion that Mr. Schroeder was clearly under the influence of alcohol at the time he received these injuries. If he had been on the job approximately five hours at the time he was injuried [sic], you may calculate back further that he was much higher at the time he came to work, unless he was drinking on the job. Alcohol is clearly a substantial factor in his injuries, contributing greatly to the circumstances which lead to his injuries." (Ex. 5, p. 2) Another specific indication that claimant's alcohol use made him more susceptible to heat and hot steam is supported by this dialogue. "Q. And for someone who was not used to that type of condition, could that cause them to pass out? A. Yes, sir, especially with alcohol on board (Ex. 7, p. 43). The key issue in this case is whether alcohol was a substantial factor in causing the injury. On this point Dr. Bennett further testified, Page 5 "Q. Doctor, you reach another conclusion. You say that alcohol is clearly a substantial factor in his injuries. Can you amplify on how alcohol was a substantial factor in causing the injury? A. Alcohol would be a substantial factor in his injury insofar as he was physically and mentally impaired by virtue of that level of alcohol in his system. He was therefore operating some equipment that has, granted, a risk to it because just the nature of cleaning while operating that equipment while he was impaired and that's not necessarily through a natural medical condition. This is one that is alcohol produced. In my opinion the loss of control of that equipment, the loss of consciousness that he evidently had experienced can directly be attributed to his alcohol consumption." (E. 7, pp. 37-38) Dr. Bennett testified in his deposition that claimant's blood alcohol level of .12 would certainly be sufficient to have the person markedly under the influence of alcohol and is consistent with being intoxicated (Ex. 7, p. 27). He added that .12 would make him significantly impaired and qualify as being intoxicated (Ex. 7, p. 28). He did not think that the alcohol claimant drank the night before with his father and friend would have a significant effect at the time of the injury (Ex. 7, p. 30). A strong specific indication that the alcohol in claimant's system was a substantial factor in causing the injury is Dr. Bennett's testimony to the effect that alcohol use disturbs the body's ability to cope with heat. This point, the relationship between alcohol use and heat, seems to be the critical determination in this case as to whether claimant's intoxication was a substantial cause of the injury. This colloquy transpired, "Q. Is -- does alcohol cause any increase in sensitivity to temperature? A. It can. Q. And how does that work? A. Alcohol will have the effects of dilating blood vessels, and by virtue of having dilated blood vessels he can lose heat more rapidly from his body, absorb heat from the environment more rapidly, a host of things, but it interferes with the body's internal abilities to maintain body temperature by virtue of interfering with blood vessel contractions. The blood vessels in our skin serve like a radiator to get rid of heat and absorb heat or whatever. They serve like a radiator effect, and if you interfere with that through the effects of alcohol, you've changed the body's ability to watch itself (Ex. 7, p. 31). Page 6 The expertise of Dr. Bennett based upon the objective evidence of a blood alcohol test two hours after the injury is preferred over the opinion testimony of claimant's father and friends. Dr. Bennett's testimony is based on the objective evidence of the blood alcohol test whereas the testimony of claimant's father and friends is based upon lay opinion. Furthermore, claimant testified that it has been his practice for quite sometime to drink approximately a 12 pack of beer a day and some wine. He further indicated that is the quantity of alcohol that he drank as a daily practice before this injury occurred and after this injury occurred. Therefore, if claimant regularly drank a 12 pack of beer a day plus some wine then claimant's appearance on the day of the injury would have been no different to his family and friends than it was on any other day. Claimant admitted that he can conceal the fact that he is intoxicated after drinking as many as six beers. Dr. Bennett testified that experienced drinkers with high blood alcohol have demonstrated in controlled tests that they have been able to fool trained highway patrol troopers (Ex. 7, p. 56, 57). Wherefore, it is determined that claimant's intoxication was a substantial factor in causing the injury which occurred on February 22, 1990. conclusions of law Wherefore, based upon the following principles of law, these conclusions of law are made: That claimant sustained an injury on February 22, 1990, which arose out of and in the course of employment with his employer. Iowa Code section 85.3(1); McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). That defendants have sustained the burden of proof by preponderance of the evidence that intoxication was a substantial factor in causing the injury of February 22, 1990. Iowa Code section 85.16(2). order THEREFORE IT IS ORDERED: That no amounts are owed by defendants to claimant. That the costs of this action are charged to claimant pursuant to Iowa Code sections 86.19(1) and 86.40 and rule 343 IAC 4.33, except that the cost of the attendance of the court reporter at hearing and the cost of the transcript are charged to defendants. That defendants file any claim activity reports that might be requested by this agency pursuant to rule 343 IAC 3.1. Page 7 Signed and filed this ____ day of February, 1993. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Robert L. Brink Attorney at Law 40 North Main, P.O. Box 308 Denison, IA 51442 Ms. Judith Ann Higgs Attorney at Law P.O. Box 3068 Sioux City, IA 51102 51106, 51108.50. 51401. 51402.20, 51402.30 1403.30, 1601, 2902 Filed February 17, 1993 Walter M. McManus, Jr. before the iowa industrial commissioner ____________________________________________________________ : CHARLES M. SCHROEDER, : : Claimant, : : vs. : : File No. 936517 DCS SANITATION MANAGEMENT, INC, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : AETNA CASUALTY AND SURETY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 51106, 51108.50, 51401, 51402.20, 51402.30 The testimony of claimant and a co-employee established that he sustained a burn injury to his right side from a steam hose after he passed out in the hot, steamy, and wet environment in which he was working his first day on the job performing a strenuous job that he was not accustomed to performing. 1403.30, 1601, 2902 Defendants proved the affirmative defense that claimant's intoxication was a substantial factor causing his injury. The testimony of Thomas L. Bennett, the state medical examiner, who is board certified in general pathology and forensic pathology, which was based on the objective evidence of a blood alcohol sample taken two hours after the injury, was preferred over the lay opinion evidence of claimant's father and friends who testified that claimant did not appear to be intoxicated to them. It was claimant's daily practice to drink a 12 pack of beer and some wine every day both before and after this injury and therefore his appearance on the date of the injury would have been no different than on any other day. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ REGINA HARRIS, Claimant, File No. 936529 vs. A P P E A L IBP, INC., D E C I S I O N Employer, Self-Insured, Defendant. ____________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed August 27, 1991 is affirmed and is adopted as the final agency action in this case. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of October, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Steve Hamilton Attorney at Law P.O. Box 188 Storm Lake, Iowa 50588 Mr. John M. Comer Attorney at Law Dept. 41 P.O. Box 515 Dakota City, NE 68731 9998 Filed October 28, 1992 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ REGINA HARRIS, Claimant, File No. 936529 vs. A P P E A L IBP, INC., D E C I S I O N Employer, Self-Insured, Defendant. ____________________________________________________________ 9998 Summary affirmance of deputy's decision filed August 27, 1991. Page 1 before the iowa industrial commissioner ____________________________________________________________ : REGINA HARRIS, : : File No. 936529 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N IBP, INC., : : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Regina Harris, claimant, against IBP Pork Division, self-insured employer, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained on October 10, 1989. This matter came on for hearing before the undersigned deputy industrial commissioner on August 14, 1991, in Storm Lake, Iowa. The record was considered fully submitted at the close of the hearing. The record in this case consists of exhibits 1 through 3 and 5 through 59; and claimant's testimony. issues Pursuant to the prehearing report and order dated August 14, 1991, the parties have presented the following issues for resolution: 1. The extent of entitlement to weekly compensation for permanent disability; and, 2. The type of permanent disability, if the injury is found to be a cause of permanent disability. findings of fact The undersigned has carefully considered all the testimony given at the hearing, the arguments made, the evidence contained in the exhibits, and makes the following findings: Claimant was born on August 11, 1954, and completed the twelfth grade of school. She worked at various times as a secretary, salesperson, assistant store manager, store manager, waitress, and owner/operator of a Waffle House Restaurant. On November 22, 1988, she started working at the IBP processing plant in Storm Lake, Iowa. She was assigned to the Chitts Department and pulled casings eight hours per day. By October 1989, she developed an onset of right shoulder pain. She had conservative therapy, without improvement, and on March 21, 1990, she underwent surgery. Page 2 This was followed by physical therapy and light duty at IBP. She voluntarily quit at IBP in January 1990 and moved to Hampton, Iowa where she was employed filming documents. In September 1990, she worked at a bar and grill in Cherokee, Iowa until quitting on July 3, 1991. She has not worked since July 1991. The pertinent medical evidence of record reveals that claimant presented to the IBP nurse with complaints of tenderness in the right biceps region. An appointment was made for her to see Bodo W. Treu, M.D., company doctor. She was seen by Dr. Treu at the Buena Vista Clinic on October 31, 1989. On examination, she was noted to have tenderness over the bicipital groove and biceps. She was given Motrin and Flexeril. She was referred for physical therapy treatments from November 20 through November 22, 1989. At the time of discharge, she complained of spasms in the biceps with active shoulder flexion but overall was doing better. On December 4, 1989, Dr. Treu took a right shoulder x-ray which was negative (Exhibits 41-50). Claimant's pain persisted and Dr. Treu referred her to Rick D. Wilkerson, D.O., orthopedic surgeon. She was initially evaluated on December 4, 1989. On examination, she was found to have full active range of motion of the right shoulder. She had negative impingement sign and no evidence of shoulder instability. She did have a markedly positive tender area on palpitating the long head bicep tendon. She was diagnosed with right shoulder bicep tendonitis (Ex. 51-1). Claimant's symptoms remained unchanged during two subsequent examinations by Dr. Wilkerson on December 26, 1989 and January 8, 1990. On March 5, 1990, Dr. Wilkerson decided that due to her unchanged symptoms, an arthroscopic evaluation would be helpful (Ex. 51-1). On March 21, 1990, claimant entered Spencer Municipal Hospital under the care of Dr. Wilkerson. The claimant underwent the following procedures: (1) diagnostic arthroscopy with arthroscopic labial tear resection; (2) arthroscopic decompressive bursectomy; and, (3) open Neer acromioplasty. The procedures revealed an extremely thicken enlarged subacromial bursa. This was excised allowing good visualization of the rotator cuff which was found to be normal (Ex. 17). Claimant saw Dr. Wilkerson for follow-up evaluation on March 28, 1990. He noted she was improving and having less pain. Her sutures were removed and her incision appeared well healed. She was noted to be neurovascularly intact (Ex. 51-3). Claimant was referred by Dr. Wilkerson for physical therapy exercise sessions in order to improve her right shoulder range of motion. Physical therapy notes dated March 23 through June 12, 1990, indicate improved range of motion (Exs. 21-22 and 30-32). Claimant had a follow-up evaluation with Dr. Wilkerson Page 3 on October 11, 1990. He reported on January 14, 1991, that "[a]t that time she was found to have occasional discomfort of the shoulder but was back to working with apparent little difficulty. On examination she did have some slight loss of motion." In his report, Dr. Wilkerson indicated that claimant had reached maximum medical improvement. He stated that "I would rate her out at five percent permanent physical impairment due to loss of motion and persistent discomfort of the right shoulder." (Ex. 8) On January 19, 1991, claimant's attorney wrote to Dr. Wilkerson. In response to questions contained in his letter, Dr. Wilkerson reported on June 23, 1991, that "[o]n her last visit here she had returned to pretty much normal activity, stating she only had occasional problems with the shoulder and, even then, it was much less than she had previously." At this time, and without examining claimant, and without explanation, Dr. Wilkerson gave claimant a permanent physical impairment rating of ten percent of the right upper extremity (Ex. 7). Claimant testified that after not seeing Dr. Wilkerson for more than ten months, she returned for a follow-up examination of her right shoulder on July 15, 1991. She related that she had been doing a lot of heavy lifting of cases of liquor and pop while working in a bar. Prior to that time, she had been doing well. Dr. Wilkerson reported that on examination she lacked about 10-20 degrees of full forward flexion and abduction. She had full external rotation and full internal rotation with negative impingement sign. Her surgical incision was well healed. X-rays were normal and the prominence of her acromion which was previously present was completely resolved. He stated that she should avoid any work requiring overhead lifting. He listed no other physical restrictions (Ex. 5). Defendants have previously paid to claimant 12.143 weeks of healing period benefits from March 21, 1990 through June 13, 1990, at the rate of $194.94 and 12.50 weeks of permanent partial disability benefits at the rate of $194.94 Page 4 conclusions of law The issue to be determined in this case is whether claimant is entitled to weekly compensation for permanent disability and, if so, the type of permanent disability. Claimant urges that she has suffered an injury that is not limited to her right arm but extends to her shoulder, neck and back. An injury to a scheduled member may, because of after effects or compensatory change, result in permanent impairment of the body as a whole. Such impairment may in turn be the basis for a rating of industrial disability. It is the anatomical situs of the permanent injury or impairment which determines whether the schedules in section 85.34(2)(a) - (t) are applied. Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986); Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Dailey v. Pooley Lumber Co., 10 N.W.2d 569 (Iowa 1943). Soukup v. Shores Co., 268 N.W. 598 (Iowa 1936). When there is an injury to the shoulder, an injury to the body as a whole may exist. Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 (1949). In Nazarenus v. Oscar Mayer & Co., II Iowa Industrial Commissioner Report 281 (App. Decn. 1982), a torn rotator cuff was found to cause disability to the body as a whole. An injury is the producing cause; the disability, however, is the result, and it is the result which is compensated. Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). Claimant relies on Speer v. Super Valu Stores, Inc., File No. 792171 (Appeal Decision December 20, 1988), to support her claim that a shoulder injury is an injury to the body as a whole and not to a scheduled member. However, Speer was diagnosed with a torn rotator cuff and tendonitis. It is well established in Iowa that a shoulder rotator cuff injury is an injury to the body as a whole. Section 85.34(2)(m) states: "The loss of two-thirds of that part of an arm between the shoulder joint and the elbow joint shall equal the loss of an arm..." In this case, only Dr. Wilkerson has expressed an opinion as to the degree of claimant's impairment. In his letter of January 14, 1991, Dr. Wilkerson based his opinion on evidence of loss of motion and persistent discomfort of the right shoulder. Based on this, Dr. Wilkerson was of the view that claimant had sustained a five percent permanent physical impairment which he did not convert to an impairment to the body as a whole. On June 23, 1991, Dr. Wilkerson, without explanation, gave claimant a permanent physical impairment rating of ten percent of the right upper extremity, which he did not convert to an impairment of the body as a whole. There is no medical evidence demonstrating that claimant's condition has an overall effect on the body as a whole. Because Dr. Wilkerson's opinion was based on a loss of function of the right upper extremity only, it is Page 5 found that claimant's injury does not extend into the body as a whole and should not be compensated industrially. Hike v. IBP, Inc. and Webster Construction Co., File Nos. 764571 & 776652 (Filed November 3, 1989). Claimant's testimony as to subjective symptoms beyond the upper extremity is not supported by the medical evidence. Claimant saw Dr. Wilkerson in October 1990 and thereafter secured a job as a part-time bartender. She did not see him again until July 1991, when she complained of recurrent shoulder pain. X-rays showed normal internal and external rotation and completely resolved acromion. Dr. Wilkerson attributed the aggravation of her symptomatology to heavy lifting of cases of liquor and pop. He again recommended no overhead lifting type work but imposed no other restrictions (Ex. 5). Claimant testified that she has not participated in physical therapy since June 1990, nor has she exercised her right upper extremity. After working as a bartender lifting heavy objects, scrubbing walls and doing other general activities, it is conceivable that these activities aggravated claimant's condition but such aggravation is not the subject of this claim. Although claimant testified that Dr. Wilkerson restricted her to a 15 pound weight limit, this is not evident in the medical record. She has been instructed to avoid work activity requiring overhead lifting but no weight lifting restrictions have been imposed (Ex. 5). After carefully considering the total evidence in this case, it is found that such evidence supports an award of five percent permanent partial disability which entitles claimant to recover 12.5 weeks of benefits under Iowa Code section 85.34(2)(m) as a result of the injury to her arm. Although Dr. Wilkerson gave two permanent impairment ratings, one in January and the other in June of 1991, he makes no explanation as to why he changed from five percent to ten percent since he did not examine claimant on either occasion. Accordingly, the greater weight of the evidence lies with the first impairment rating which was given six months postoperatively and at the time Dr. Wilkerson determined claimant reached maximum medical improvement. Page 6 order THEREFORE, IT IS ORDERED: That defendant pay to claimant twelve point five (12.5) weeks of permanent partial disability benefits at the rate of one hundred ninety-four and 94/l00 dollars ($194.94) per week commencing June 14, 1990. That defendant receive credit for any benefits previously paid. That defendant pay accrued amounts, if any, in a lump sum. That defendant pay interest pursuant to Iowa Code section 85.30. That defendant file claim activity reports as required by the agency. That defendant pay all other costs pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of August, 1991. ______________________________ JEAN M. INGRASSIA DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Steve Hamilton Attorney at Law 606 Ontario St P O Box 188 Storm Lake IA 50588 Ms. Marie L. Welsh Attorney at Law P O Box 515 Dept #41 Dakota City NE 68731 5-1803.1 Filed August 27, 1991 JEAN M. INGRASSIA before the iowa industrial commissioner ____________________________________________________________ : REGINA HARRIS, : : File No. 936529 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N IBP, INC., : : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 5-1803.1 Claimant relying on Speer v. Super Valu Stores, Inc., File No. 792171 (Appeal Decision December 20, 1988), argues that where there is an injury to the shoulder, an injury to the body as a whole exists and claimant is entitled to be compensated industrially. In the Speer case, medical evidence indicated that claimant suffered a rotator cuff tear and expert testimony stated that his injury extended beyond the joint to the body namely, to the rear of his shoulder into his back. When there is an injury to the shoulder, an injury to the body as a whole may exist. Alm v. Morris Barick Cattle Co., 38 N.W.2d 161 (1949). In this case, claimant developed sharp right shoulder pain while pulling casings. She was diagnosed as having bicep tendonitis. X-rays of the right shoulder were normal and her rotator cuff intact. An arthroscopy revealed extremely thicken enlarged subacromial bursa which was excised. Seven months later, claimant returned to normal activity and found to reach maximum medical improvement on January 14, 1991. A five percent impairment rating to the right upper extremity was given in January 19, 1991, without further examination. This was changed in June 1991, again without further examination, to 10 percent of the right upper extremity. Claimant's impairment was found to be a scheduled member impairment under Iowa Code section 85.34(2)(m) and she was awarded 5 percent permanency as was her treating surgeon's first assessment.