BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ EUGENE WARNER, Claimant, vs. File No. 936537 SIVYER STEEL CORPORATION, A P P E A L Employer, D E C I S I O N and LIBERTY MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. _________________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed October 14, 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 September, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Peter M. Soble Attorney at Law 505 Plaza Office Bldg. Rock Island, IL 61201 Mr. Greg A. Egbers Attorney at Law 600 Union Arcade Bldg. 111 E. 3rd St. Davenport, Iowa 52801 9998 Filed September 30, 1992 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ EUGENE WARNER, Claimant, vs. File No. 936537 SIVYER STEEL CORPORATION, A P P E A L Employer, D E C I S I O N and LIBERTY MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. ____________________________________________________________ 9998 Summary affirmance of deputy's decision filed October 14, 1991. Page 1 before the iowa industrial commissioner ____________________________________________________________ : EUGENE WARNER, : : Claimant, : : vs. : : File No. 936537 SIVYER STEEL CORPORATION, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ introduction This is a proceeding in arbitration brought by Eugene Warner, claimant, against his employer, Sivyer Steel, and the insurance carrier, Liberty Mutual Insurance Company. The hearing was held on August 1, 1991 at Davenport, Iowa. The record in this case consists of the live testimony of the claimant; defendants' exhibits A-I and K; claimant's exhibits 1 and 2. Defendants lodged an objection against claimant's exhibits 3, 4 and 5, arguing that these exhibits were not served fifteen days prior to the hearing. This objection was sustained. Defendants attempted to offer exhibit J. Claimant objected, stating that the exhibit had not been served within the fifteen days prior to the hearing and, the information had been received after the date discovery was to be completed. This objection was sustained, and defendants made an offer of proof of exhibit J. As a result, claimant attempted to offer exhibit 6, defendants objected citing the fifteen day rule, and said objection was sustained. Claimant proceeded to make an offer of proof of claimant exhibit 6. Page 2 findings of fact The undersigned deputy, having reviewed all of the evidence received, finds the following facts: Claimant was born on February 21, 1937. At the time of the hearing, we was 54 years of age. Claimant is married, and has no dependant children living at home. Claimant has worked for defendant Sivyer Steel for 26 years, his last date of employment being September 23, 1988. At the time of the hearing, workers had been on strike at the plant for approximately two years. Claimant's duties while working for defendant included 11 years in the molding department, where he was in constant contact with silica sand. Claimant spent the last 15 years in the melting department. Prior to leaving the molding department, in approximately 1974, claimant had one episode of "spitting up blood", or hemoptysis. A labor strike started at the plant in September of 1988, and claimant stopped working for the defendant employer on September 23, 1988. He has not been recalled back to the plant. From September 23, 1988 through April 8, 1990, claimant did not seek medical treatment, yet stated that he suffered from shortness of breath, coughing spells and fatigue. On April 9, 1990, claimant stated that as he was driving home, he endured a coughing spell that caused him to "almost blackout." He sought treatment from Dr. Pritchard, and underwent a chest x-ray. (Defendant Exhibit F, page 1). Claimant stated that he went to see Dr. Pritchard to see if he was, "developing anything", yet also stated that he had had breathing problems while working in the molding department during his first 11 years with the company. (Transcript, pp. 36-37). Since the age of 16, claimant has smoked one pack of cigarettes per day. Dr. Pritchard was no longer taking new patients, and on April 14, 1990, claimant proceeded to David Nebbling, D.O., a general practitioner who specializes in osteopathic manipulative therapy. (Def. Ex. E, p. 19). Dr. Nebbling referred claimant to Akshay Mahadevia, M.D., a specialist in internal medicine and pulmonary medicine, who examined claimant on June 19, 1990. Claimant underwent a battery of pulmonary function tests "which revealed a moderate degree of airway obstruction with moderate hyperinflation and a decrease in the defusion capacity." A chest x-ray obtained from the Davenport Medical Center showed changes indicative of chronic obstructive pulmonary disease, which Dr. Mahadevia described as, "moderate." He also noted that claimant's history of exposure to silica explained the presence of the restrictive defect. (Def. Ex. D, pp. 1-3). In October of 1990, defendants sent claimant to Peter S. Jerome, M.D., a specialist in the field of pulmonary Page 3 medicine. Aware of claimant's employment history and smoking habits, he diagnosed claimant's condition as that of "moderately severe chronic obstructive pulmonary disease with components of emphysema and chronic bronchitis." (Def. Ex. C, pp. 1-3). Furthermore, Dr. Jerome opined: Noted increased interstitial markings in the mid and lower lung zones [are] mostly due to pulmonary siderosis which is a benign radiographic abnormality which comes as a consequence of inhalation of iron oxide containing fumes. This particular pulmonary entity is benign and does not lead to progressive fibrosis or decrement in lung function or ability. Siderosis is common amongst welders and furnace operators in a foundry setting. He does have about a 10 year history of silica exposure. The silica exposure that this patient had was not of the severity enough to cause a significant pulmonary silicosis which implies possible progressive pulmonary fibrosis. With the absence of any further silica exposures, it is unlikely that this patient would develop complications of pulmonary silicosis. (Def. Ex. C, pp. 3-4). Dr. Jerome recommended a serum antinuclear antibody tests to further explore the possible positive findings for silicosis, and a baseline cardiopulmonary stress test to determine claimant's functional impairment. The stress test was performed in March of 1991, and revealed a minimal amount of functional impairment. During the test, claimant did not demonstrate arterial oxygen desaturation with exercise, as would be seen with significant pulmonary silicosis or other significant pulmonary interstitial lung diseases. Dr. Jerome was of the opinion that claimant's health problems were not work-related, but instead were related to his tobacco abuse. (Def. Ex. C, p. 5). analysis and conclusions of law The first issue to be addressed is whether claimant received an injury which arose out of and in the course of his employment. Claimant alleged an injury date of September 23, 1988, which is the last date he worked for the employer. An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). Claimant has the burden of proving by a preponderance of the evidence that he received an injury on September 23, 1988 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Page 4 The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe, 246 Iowa 402, 68 N.W.2d 63. The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63. "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283; Musselman, 261 Iowa 352, 154 N.W.2d 128. Sivyer Steel manufacturers steel castings, and uses silica sand to make the molds. The silica sand is transported by conveyor belt within the plant. There is no question that workers at the Sivyer plant are exposed to silica sand and silica dust. Respirators are provided, and employees undergo chest x-rays every other year. Claimant suffers from two distinct diseases: chronic obstructive lung disease, and restrictive lung disease. Obstructive lung disease is the narrowing of air passages, and is associated with tobacco abuse. Restrictive lung disease is the inability of the lungs to expand, and can be caused by a history of silica exposure. A diagnosis of silicosis can be based on one of three factors: 1. Exposure to silica dust; 2. X-rays evidence of silica nodules in the lungs; and, 3. Pulmonary function tests. Drs. Jerome, Nebbling and Mahadevia have all concurred that claimant suffers from a degree of restrictive lung disease. Claimant was able to describe his position at the Sivyer plant, and stated that he was in contact with silica dust on daily basis. As a result, claimant has sustained an injury which arose out of and in the course of his employment. Defendants raise the affirmative defense of lack of timely notice of the injury. Iowa Code section 85.23 governs timely notice: Unless the employer or the employer's representative shall have actual knowledge of the occurrence of an injury received within ninety days from the date of the occurrence of the injury, or unless the employee or someone on the employee's behalf or a dependent or someone on the Page 5 dependent's behalf shall give notice thereof to the employer within ninety days from the date of the occurrence of the injury, no compensation shall be allowed. The ninety day time period for giving notice to the employer does not begin to run until the worker should know that his injury is "both serious and work connected." Robinson v. Department of Transportation, 296 N.W.2d 809, 812 (Iowa 1980). Recognizing the "seriousness" requirement of the notice of the injury provides the worker appropriate relief from the rigid ninety day rule in the case where a worker thinks the injury is minor and will heal in a few days, but later becomes compensable. The burden of proof rests with the employer to show that the employee failed to give sufficient notice of a possible injury. Although claimant had some breathing difficulties throughout his long-term employment with defendant, even he did not recognize the seriousness, or the possibility that the problems were work-related until April 1990. Chest x-rays performed at the plant every two years did not indicate a problem, and it was not until claimant sought help from Dr. Pritchard that he knew, or should have known, that his problem was serous and potentially work-related. The employer knew of claimant's allegations on or about April 26, 1990, well within the 90-day period. The next issue to be addressed is whether there is a causal relationship between claimant's injury and his disability. The claimant has the burden of proving by a preponderance of the evidence that the injury of September 23, 1988 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 Page 6 Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Furthermore, if the available expert testimony is insufficient alone to support a finding of causal connection, such testimony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish compensability, the injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980). Dr. Jerome is of the following opinion: He did not demonstrate arterial oxygen desaturation with exercise as would be seen with significant pulmonary silicosis or other significant pulmonary interstitial lung diseases. He also had a normal cardiac response to exercise. It is my feeling that the patient's health problems were not work related, but secondary to his past history of tobacco abuse. Chest x-ray obtained on 3/1/91 demonstrated hyperinflated lung fields without significant pulmonary infiltrates consistent with his chronic obstructive pulmonary disease. Laboratory data including: CBC, sedimentation rate and antinuclear antibody as enclosed were normal. (Jt. Ex. C, p. 5). Dr. Mahadevia was of the following opinion: Q. During the course of your professional practice, did you ever have occasion to see a man named Eugene Warner? A. Yes, I did. .... Q. Okay. And would you tell us what your findings were? A. When I saw him after reviewing his history and examining him, I thought that he had two problems. One was chronic obstructive lung disease. And, No. 2, history of silica exposure with restrictive lung disease. .... Q. Okay. Did you feel that the exposure to silica dust was a significant factor in his problems? A. It was one of the factors. Page 7 .... Q. Okay. Would you say without quantifying it any further that the restrictive lung disease, the silicosis is a significant factor in his problems? A. Not as significant as chronic obstructive lung disease. Q. Maybe not as significant, but would you say it is significant? A. Yes. Q. Okay. That's the word I'm after. (Cl. Ex. 2, pp. 5, 6, 7, 14) Dr. Nebbling made the following evaluation: Mr. Warner has Chronic Obstructive Pulmonary Disease with silicosis of the lung. I find this condition to be permanent. Page 8 I find Mr. Warner to have a 25% impairment of the whole man due to his respiratory disease. (Def. Ex. E., p. 3) Dr. Nebbling was also of the opinion that, "[d]ue to Mr. Warner's chronic obstructive lung disease, he will be unable to do prolonged physical labor for the rest of his life." (Jt. Ex. E, p. 12). First of all, Dr. Nebbling's opinion is disregarded, as he is a doctor of osteopathic medicine, with no particular speciality. In fact, due to the nature of claimant's injury or disease, Dr. Nebbling referred him to Dr. Mahadevia for treatment. Dr. Mahadevia provides interesting testimony to establish a causal connection between claimant's injury and his disability. His evaluation, dated June 19, 1990, concentrates on claimant's obstructive pulmonary disease, which is caused by cigarette smoking. His deposition testimony of June 26, 1991, also focuses on the extent of claimant's obstructive lung disease, yet he does attribute a significant portion of claimant's problems to the restrictive disease; however, Dr. Mahadevia expressly states that the restrictive process is not as significant as the obstructive process. Proximate cause between the injury and the disability is established when the injury is a substantial factor in bringing about the result. See, Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980). In the instant case, claimant has shown that he sustained a loss of his lung function from silicosis of between 10 percent to 20 percent. (Mahadevia Deposition, p. 9). Major findings were attributed to chronic obstructive lung disease. (Mahadevia Dep., p. 12). And, Dr. Mahadevia expressly stated that 90 percent of the etiology of claimant's symptoms are from tobacco abuse and resultant chronic obstructive lung disease, with 10 percent of his symptoms attributable to the restrictive lung disease. (Mahadevia Dep., p. 14). As a result, it is concluded that claimant has failed to show by a preponderance of the evidence that the restrictive lung disease, which is the direct result of exposure to silica, is a significant, substantial cause of his disability. order THEREFORE, it is ordered: That claimant take nothing from these proceedings. That each party will bear their respective costs of pursuing this action, as stipulated to at the hearing. Page 9 Page 10 Signed and filed this ____ day of October, 1991. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Peter M. Soble Attorney at Law 505 Plaza Office Bldg. Rock Island, IL 61201 Mr. Greg A. Egbers Attorney at Law 600 Union Arcade Bldg. 111 E. 3rd Street Davenport, Iowa 52801 5-1108 Filed October 14, 1991 PATRICIA J. LANTZ before the iowa industrial commissioner ____________________________________________________________ : EUGENE WARNER, : : Claimant, : : vs. : : File No. 936537 SIVYER STEEL CORPORATION, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1108 Claimant failed to prove that there was a causal relationship between his disability and a work-related injury. Claimant suffered from emphesema, and although he had been exposed to silica sand in the workplace, he had smoked for more than 35 years. The medical evidence supported a finding that claimant's health problems stemmed from obstructive lung disease (caused by smoking) rather than restrictive lung disease (caused by silicosis). Page 1 before the iowa industrial commissioner ____________________________________________________________ : CEDRIC BROWN, : : Claimant, : : vs. : File No. 936538 : CMC, : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : CIGNA, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case Claimant Cedric Brown filed a petition in arbitration seeking benefits under the Iowa Workers' Compensation Act as the result of an alleged work injury on October 15, 1987. Defendants are his employer, CMC, and its insurance carrier, Cigna. This cause came on for hearing in Burlington, Iowa, on August 27, 1991. By previous order entered September 5, 1990, the record was closed to further evidence or activity on the part of defendants, although proceedings were monitored by defendants. The record consists of claimant's testimony and exhibits 1 through 18, inclusive. Many exhibits consisted of multiple copies of the same documents. issues Because defendants' evidence and activity was cut off, the parties did not enter into a stipulation as to facts and issues. Issues presented for resolution include: 1. Whether an employment relationship existed between Cedric Brown and CMC on October 15, 1987; 2. Whether claimant sustained an injury on that date arising out of and in the course of that employment; 3. Whether the injury caused temporary or permanent disability and the nature and extent thereof; 4. The rate of compensation; and, 5. The extent of claimant's entitlement to medical benefits. Page 2 Claimant stipulated that defendants should be entitled to credit for all benefits voluntarily paid prior to hearing. findings of fact The undersigned deputy industrial commissioner finds: Cedric Brown, 28 years of age at hearing, is a high school graduate. His work history consists of manual labor jobs, particularly in janitorial work and landscaping. On October 15, 1987, claimant was employed by defendant CMC, "Correct Maintenance Corporation," as a water blaster. This work involved cleaning machinery, presumably on a contract basis, at a manufacturing concern located in Keokuk, Iowa. Claimant, single and with one dependant, had been so employed for approximately two months, earning a gross weekly wage of $217.00. Claimant's injury occurred when, while so engaged in his work, he fell through a roof skylight, fortunately saving himself from a more serious fall when he hit and managed to hang onto some protruding pipes variously described as 12-25 feet below the skylight. Claimant testified that he injured his head, back and right knee. Emergency room notes of the Keokuk Area Hospital where claimant was taken after being rescued from the pipe show that he was alert and oriented and presented by ambulance with a cervical collar in place, a splint on the right leg and a laceration over the left eye. Claimant denied loss of consciousness, back or neck pain. His main complaint was of pain in the left tibia with a laceration noticed. Claimant had a laceration of the right fourth finger, left scapula and a small scraped area on the right mid-trunk. A laceration on the back of the head was cleansed. Claimant was coherent and reported being hungry. Emergency room physician, Dr. Barrows, reported lacerations and abrasions, especially of the scalp, tibial contusion and minor closed head injury. Radiographic studies performed by R. L. Kimmel, M.D., showed unremarkable abdomen, normal left tibia and fibula and increased radiodensities over both occipital regions thought to represent foreign bodies on or within the superficial soft tissues of the scalp, but no evidence of skull fracture. Claimant was discharged to his supervisor. Claimant has since seen many physicians for treatment and evaluation and underwent an arthroscopic procedure to the left knee on January 18, 1988. He complains that, while he could do anything at all prior to the injury, he is now unable to perform manual labor, cannot lift in excess of 25 pounds, and cannot push, pull or stoop. He says that he cannot stand long on his knee, cannot bend his back and cannot concentrate due to severe headaches. Mr. Brown now receives Social Security disability and testified that he is still off work from the injury, having worked only approximately five hours a few months prior to hearing. However, this testimony is inconsistent with his Page 3 exhibit 15, a letter from Shirley Penz of Penz Sales & Service, who indicated that claimant worked from June until September 1990, and could not perform his duties because of constant complaints about his knees aching and headaches from stooping, bending and constant moving required on that job. The exhibit does not disclose the nature of that job. Claimant was seen in 1987 and though his surgery by various physicians at the Orthopaedic Centers in Gary, Indiana. Arthroscopy of the right knee with partial lateral meniscectomy was performed by V. Egwu, M.D., on January 18, 1988. By February 19, claimant was complaining of occasional discomfort, although his main pain had resolved significantly. He had full range of motion. By April 8, the charting physician ("NL") thought that claimant's knee was up to 90 percent of normal and he was doing well, but "mentally" needed some more time before returning to work. By May 27, 1988, claimant began complaining of pain in the left knee, which he had apparently bumped while washing his car. Claimant had full range of motion of the right knee and, at his request, "NL" rated impairment at four percent of the lower extremity. "NL" noted that, although Mr. Brown claimed that he twisted the left knee because of continued difficulty with the right, "[t]his is a new and current injury and I didn't know that it was related to his old injury." Chart notes of the Orthopaedic Centers do not reveal cervical or lumbar complaints. The record contains several pages of chart notes by Okechi N. Nwabara, M.D., of Chiola Medical Associates, P.C., including notes of October 29 and November 5, 1987. Dr. Nwabara's handwritten notes are mostly illegible, although it appears that claimant made complaint of headaches, left leg, finger and shoulder soreness. He was doing well by November 5 and released to return to work. Dr. Nwabara referred claimant to Mridula Prasad, M.D., a neurologist. Dr. Prasad reported seeing claimant on May 24, 1988 with complaints of pain behind the right ear and headaches. Claimant complained of mood and personality disturbance and difficulty concentrating. Impression was of post-concussion syndrome and hypertension (of which claimant had a preexisting history). Dr. Prasad caused a CT scan and EEG to be performed, but both were reported negative. Dr. Prasad thereupon referred claimant for a psychiatric evaluation. On September 19, 1988, Robert S. Martino, M.D., reported seeing claimant on a return visit the day before. Claimant had no effusion and a full range of motion, but complained of symptomatic pain over the right knee. Dr. Martino reported that claimant had been discharged from care with a permanent partial impairment of 20 percent of the leg. Claimant was seen by neurosurgeon M. Hytham Rifai, M.D., on November 16, 1988. He concluded that claimant was Page 4 neurologically stable except for his psychiatric problem and recommended no further evaluation. Dr. Rifai released claimant from care on December 12, 1988 following another office visit. He noted again that claimant's CT scan had shown no abnormality. Dr. Prasad reported that claimant had been seen again in March 1989 complaining of headaches and bad nerves, which he self-medicated with Tylenol #3 (a medication containing codeine) and alcohol. Dr. Prasad noted that claimant was continuing to show progression of symptomatology which was highly suggestive of depression. Progression of symptomatology in the absence of objective neurological dysfunction is highly suggestive of underlying psychiatric illness. Dr. Prasad concluded that claimant was still disabled, but from psychiatric illness rather than neurological disease. Claimant was seen in February 1989 by Mahim Vora, M.D., of the Gary Community Mental Health Center, Inc. Diagnosis was as follows: Page 5 Axis I: ICD-9-CM 309.0 Brief Depressive Reaction DSM-III-R (309.00) (Adjustment Disorder with Depressed Mood) ICD-9-CM 305.01 Alcohol Abuse, Continuous DSM-III-R (305.01) Moderate ICD-9-CM 305.20 Cannabis Abuse, Unspecified DSM-III-R (305.20) (Intoxication) Mild ICD-9-CM 305.62 Cocaine Abuse, Episodic DSM-III-R (305.62) Mild Axis II: ICD-9-CM 799.9 Other Unknown and Unspecified Cause DSM-III-R (799.90) (Diagnosis or condition Deferred) Axis III: High blood pressure Axis IV: Severity of Psychosocial Stressors: Industrial Accident, inability to work, loss of significant social relationships. 4-Severe Axis V: Current GAF: 50 Highest GAF Past Year: 45 (Exhibit 1, page 4) Treatment was discontinued per claimant's request on March 15, 1989. On March 29, 1989, claimant underwent another EEG read by C. Supapodok, M.D., as normal. Ending in June 1989, claimant saw clinical psychologist William H. Nimmer, Ph.D., for psychological review. Dr. Nimmer wrote on August 5, 1989, of his belief that claimant's work injuries indeed had some impact on his life, and that claimant had undergone a shift from feeling more potent and vital to a status of regarding himself as somewhat more dependent and entrapped with increased feelings of depression and some substance abuse. Prognosis at that point was fair. Dr. Nimmer diagnosed an adjustment disorder with mixed emotional features secondary to the injury present not only in mixed anxious and depressive symptomatology, but also in terms of substance abuse patterns which were then emerging. By October 20, 1989, Dr. Nimmer reported that claimant expressed concern about an upcoming court hearing related to a battery incident. Dr. Nimmer felt claimant had "real issues to address in terms of coming to grips with his personality trait patterns and substance abuse," and was recommended for in-patient treatment. Dr. Supapodok performed a neurological evaluation on September 22, 1989. Complaints included chronic occipital headaches on a daily basis, dizziness, and neck pain radiating to both shoulders, moreso on the right. Dr. Supapodok's impressions were of: 1. Chronic headache and dizziness, postcerebral concussion syndrome related to the work injury sustained on 10-15-87; 2. Chronic occipital headache, probably related to Page 6 chronic muscle spasms from the C6 cervical radiculopathy, believed related to the above injury (patient denied neck pain or headache prior to the accident); and, 3. Changes in personality, probably related to the head injury. Dr. Supapodok assessed disability as follows: 1. The patient has been taking a rather excessive amount of narcotic containing type of pain medication from the pain. He has become very depressed because of the loss of his job, physical disability to perform any regular job. He has not been employed since the injury. The depression apparently has [ ] excessive alcoholic consumption, which only helps to compound the problem further. The EMG study in the left arm and paracervical muscles today revealed an objective evidence of C6 cervical radiculopathy, mainly on the left side, and I believe that this was the cause of the chronic muscle spasm, muscle contraction, and chronic occipital headaches. Since the injury occurred almost two years ago, I believe that he has reached a plateau of healing, and the symptoms that remain with him now are going to be permanent. It is my opinion that the patient suffers from a total permanent partial disability of his neck in combination with chronic headaches of 5% of his total body function. (Exhibit 2, page 15) On December 28, 1990, Dr. Martino wrote that claimant's right knee injury was causally related to the subject work incident and that claimant had sustained a permanent partial impairment of 20 percent of that leg as a result. Claimant intermittently has seen Darrell M. Hay, M.D. Dr. Hay wrote on June 3, 1991, that when last seen, on that date, claimant complained of intermittent tingling in the arms and tightness between the shoulder blades along with headaches when he played basketball. Examination was essentially normal, with good range of motion of the neck and shoulders; strength and sensation was normal. Dr. Hay concurred with the opinion of Frederick Yuhas, neurologist, that claimant was capable of working and in fact should work. The record does not otherwise contain evidence as to Dr. Yuhas' findings and opinion. Dr. Yuhas also referred claimant to Percy N. Karanjia, M.D., for left arm numbness. Dr. Karanjia noted on June 14, 1991, that claimant had noticed sharp shooting pains as well as numbness in the hands and arms bilaterally, left greater than right, since the birth of his child on November 6, 1990. His impression was of: 1. Probably left C6 nerve root stretch injury or possibly stretch injury to the brachial plexus without Page 7 evidence of nerve root compression; 2. Myofascial pain syndrome associated with the 1987 injury; and, 3. Post-concussion syndrome associated with the 1987 injury. conclusions of law The claimant must prove by a preponderance of the evidence that his injury arose out of and in the course of his employment. Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). In the course of employment means that the claimant must prove his injury occurred at a place where he reasonably may be performing his duties. McClure v. Union, et al., Counties, 188 N.W.2d 283 (Iowa 1971). Arising out of suggests a causal relationship between the employment and the injury. Crowe v. DeSoto Consol. School Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). Claimant's testimony establishes that he was employed by defendant CMC on October 15, 1987. He suffered a fall through a skylight while performing regularly assigned work performed where he had been assigned. Claimant has met his burden of proof in establishing an employment relationship and that he sustained an injury arising out of and in the course of that employment. Under Iowa Code section 85.34(1), healing period is compensable beginning on the date of injury and continuing until the employee has returned to work, it is medically indicated that significant improvement from the injury is not anticipated, or until the employee is medically capable of returning to substantially similar employment, whichever first occurs. According to Shirley Penz, claimant worked from June (specific date unknown) until September 1990. While claimant recalls working only a few hours, the record also discloses a substantial history of alcohol and other substance abuse and mental disturbance. The statement by a former employer, obviously intended to assist him in this litigation, is more reliable as to the extent of his post-injury work history. Based on an evaluation of September 22, 1989, Dr. Supapodok concluded that claimant had reached a plateau of healing. While Dr. Prasad indicated in March 1989 that claimant was disabled from psychiatric illness rather than neurological disease, Dr. Supapodok indicated that depression due to the loss of job and physical disability was a causative factor with respect to claimant's mental condition. He concluded that chronic headache, dizziness, post-cerebral concussion syndrome and changes in personality were probably related to the work injury. Similarly, Dr. Nimmer wrote that the work injury indeed had some impact on claimant's life. It is held that claimant's healing period ended when significant improvement Page 8 from the injury was no longer anticipated pursuant to Dr. Supapodok's opinion based on the neurological evaluation of September 22, 1989. Accordingly, claimant is entitled to healing period benefits until that date, totalling 101 weeks, 2 days. Next, claimant's permanent disability must be considered. Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, expe rience and inability to engage in employment for which he is fitted. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disabil ity. This is so as impairment and disability are not syn onymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial dis ability. See Christensen v. Hagen, Inc., File No. 643434 Page 9 (App. March 26, 1985); Peterson v. Truck Haven Cafe, Inc., File No. 420539 (App. February 28, 1985). Claimant asserts that he is an odd-lot employee under the rule pronounced in Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985). A worker is an odd-lot employee when a work injury makes him incapable of work in any well-known branch of employment and when the only services he can perform are so limited in quality, dependability or quantity that a reasonably stable market for them does not exist. The only two physicians to express an opinion as to whether claimant was totally incapacitated are Dr. Hay and Dr. Yuhas, each of whom believed claimant capable of working and thought that he in fact should work. While claimant asserts that he is unable to work due to headaches, an inability to lift more than 25 pounds, or to push, pull or stoop, it should be noted that these restrictions are self-imposed. The record fails to disclose a single medically-imposed physical restriction. Claimant's injury is to the body as a whole in that some portion of claimant's psychological status is caused by the work injury (although, obviously, much should also be attributed to his long history of alcohol and substance abuse) and because his continuing headaches, mood and personality disturbance and cervical radiculopathy (which Dr. Supapodok relates to the work injury) affect the body as a whole, rather than scheduled members. It will be recalled that Dr. Martino assigned a 20 percent impairment rating to the right leg by reason of claimant's knee injury. Although the record does not contain medical restrictions that would directly diminish claimant's earning capacity (in essence, the definition of industrial disability), it would be unreasonable to assess industrial disability in this case as less than the scheduled member impairment (which is clearly causally related to the work injury). That is, the extension of an injury into the body as a whole--a more pervasive injury-- should not operate to diminish benefits to which claimant would otherwise be entitled by reason of the scheduled member impairment. Workers' compensation is for the benefit of the working (person) and, within reason, should be liberally construed in favor of the worker. Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503 (Iowa 1981). In conjunction with claimant's other problems, particularly his history of alcohol and substance abuse, it seems clear that this work injury has impaired his earning capacity. He suffers residual cervical pain, headaches and dizziness and has undergone a personality and mood disturbance. However, the lack of medically-imposed restrictions is of great significance, in that claimant may not reliably be trusted to prescribe his own medical restrictions. First, he is not a physician. Second, his self-interest is obvious. Based then on these factors in particular and the Page 10 record otherwise in general, it is held that claimant has sustained an industrial disability equivalent to 20 percent of the body as a whole, or 100 weeks. At the time of his injury, claimant earned a gross average weekly wage of $217.00, was single and entitled to two exemptions. A review of the Guide to Iowa Workers' Compensation Claim Handling effective July 1, 1987 shows that the appropriate compensation rate is $141.96. Medical billings of The Orthopaedic Centers (exhibit 12, page 78) for right knee arthroscopy total $1,790.00, of which $95.00 has been paid. The record does not disclose what party made this payment. In any event, this is clearly causally related to the work injury and compensable. Defendants shall pay medical providers directly, except to the extent paid personally by claimant. Medical billings of Neuro Center, P.C., include two office visits at $40.00 each and a neurological evaluation of $90.00. A copy fee of $25.00 is not a medical cost, although assessable as court costs. To the extent not already paid by defendants, that billing is compensable. Medical billings of the Family Medicine Center (exhibit 9, page 55) total $175.00, all for services rendered. Defendants shall pay that billing. Dr. Prasad's billing (exhibit 4, page 22) includes a charge of $100.00 subsequently paid by defendants. The December 31, 1990 charge to claimant's attorney appears to be for a report, not medical services under Iowa Code section 85.27. Charges of Neurological-Neurodiagnostic Associates (exhibit 3, page 21) shows no balance. However, a medical report was billed at $25.00 and is compensable as costs. The same is true of Associated Physicians of Fond du Lac, Ltd., (exhibit 18, page 110) and Orthopaedics, Inc. of Indiana (page 35). order THEREFORE, IT IS ORDERED: Defendants shall pay unto claimant one hundred one point two eight six (101.286) weeks of healing period benefits commencing October 15, 1987 at the weekly rate of one hundred forty-one and 96/100 dollars ($141.96), totalling fourteen thousand three hundred seventy-eight and 56/100 dollars ($14,378.56). Defendants shall pay unto claimant one hundred (100) weeks of permanent partial disability benefits commencing September 23, 1989 at the weekly rate of one hundred forty-one and 96/100 dollars ($141.96), totalling fourteen thousand one hundred ninety-six and 00/100 dollars ($14,196.00). All accrued weekly benefits shall be paid in a lump sum Page 11 together with statutory interest thereon pursuant to Iowa Code section 85.30. Defendants shall pay medical bills as set forth above. The costs of this action are assessed to defendants pursuant to rule 343 IAC 4.33. Defendants shall file claim activity reports as requested by the agency pursuant to rule 343 IAC 3.1. Signed and filed this ______ day of ____________, 1991. ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. James P. Hoffman Attorney at Law Middle Road P.O. Box 1087 Keokuk, Iowa 52632 Mr. Craig A. Levien Attorney at Law 600 Union Arcade Building 111 East Third Street Davenport, Iowa 52801 1803; 1803.1 Filed October 23, 1991 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : CEDRIC BROWN, : : Claimant, : : vs. : File No. 936538 : CMC, : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : CIGNA, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 1803; 1803.1 Industrial disability was assessed (cervical radiculopathy, depression, personality disturbance, headaches, etc.) even in the absence of medically-imposed restrictions. In same injury, a fall, claimant suffered a leg impairment of 20 percent. It was held to be an impermissibly illiberal construction of the workers' compensation law to find industrial disability less than a concurrent scheduled member impairment. Extension of an injury into the body as a whole -- a more pervasive injury -- should not operate to diminish the benefits to which claimant would otherwise be entitled. Page 1 before the iowa industrial commissioner ____________________________________________________________ : DON SANTEE, : : Claimant, : : vs. : : File No. 936549 MAYTAG 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 is a proceeding in arbitration brought by Don Santee, claimant, against Maytag Company, employer, and Employers' Mutual Companies, insurance carrier, as defendants. Claimant has alleged a work-related injury occurring on February 23, 1990. The matter came on for hearing before the undersigned deputy on February 25, 1992, at Des Moines, Iowa. The record in this case consists of the live testimony of Lorin Rickabaugh, Pete Owens, and Diana Rader; and, joint exhibits A through V. The claimant chose not to attend the hearing. issues In accordance with the prehearing report, the parties submit the following issues for resolution: 1. Whether claimant sustained an injury on February 23, 1990, which arose out of and in the course of his employment; 2. Whether there is a causal relationship between claimant's injury and his current disability; 3. Whether claimant is entitled to permanent partial disability benefits; and, 4. Whether claimant is entitled to medical benefits as provided for under Iowa Code section 85.27. It is noted that defendants raised the affirmative defense that claimant's medical expenses were not authorized. Page 2 findings of fact The undersigned deputy, having reviewed all the evidence received, finds the following facts: Claimant is 56 years of age, and graduated from high school in 1954. He began working as a machine operator for defendant employer in Hampton, Iowa, from 1959 until the plant closed in 1983. He was transferred to the Newton, Iowa, plant where he operated a press until he injured his back on July 26, 1985. After time off from work due to injury or layoff, claimant returned to work in April of 1986 and was placed in an inspector position in the Newton plant. This position required the claimant to inspect various machines by measuring certain parts to insure proper length and width. Parts inspected ranged from one inch to one foot in length. He inspected up to eighteen machines per day, and each machine contained four to eight parts which were required to be measured and inspected. The medical evidence reveals that claimant first reported symptoms and sought treatment for elbow complaints at the Maytag Company medical department on June 7, 1988 (Joint Exhibit G, page 13). He was referred to the company physician, Richard Moe, M.D. The Maytag medical department notes indicate that claimant next mentioned problems with his elbows in October of 1988. A diagnosis of left elbow epicondylitis was made. During the next six months, claimant sought treatment for a back condition, and was treated by several orthopedic surgeons and specialists. The next complaint regarding his elbows appears in the company medical notes dated June 6, 1989. Michael Makowsky, M.D., recorded that claimant stated he was assigned to light duty work and was unable to think of repetitive movements on the job which aggravated his symptoms (Jt. Ex. G, p. 21). Subsequently, claimant was given elbow braces, which he did not find beneficial. Claimant was not given any work restrictions specifically related to the elbows (Jt. Ex. G, p. 22; Jt. Ex. S, pp. 12- 15). In October of 1989, claimant was put on medical leave due to back problems. On October 6, 1989, claimant returned to Dr. Moe with pain in both elbows. On November 3, 1989, claimant returned to Dr. Moe for a re-evaluation of his back condition, and once again voiced continuing problems with his right elbow. After this visit, Dr. Moe visited the plant to observe claimant's position as an inspector, and based upon the visit was of the opinion that claimant's job duties would not result in epicondylar irritation (Jt. Ex. I, p. 6). In February of 1990, while claimant was receiving treatment from Mark Brodersen, M.D., for his back condition, he mentioned elbow pain. Dr. Brodersen prescribed phonophoresis treatment, although claimant did not receive Page 3 these treatments (Jt. Ex. H, p. 12); Jt. Ex. S, p. 21). In March of 1990, claimant did receive ultrasound treatments at the Marshalltown Medical and Surgical Center but chose to stop the treatments due to increased pain (Jt. Ex. J, p. 102; Jt. Ex. K, p. 1). In April of 1990, claimant returned to Dr. Brodersen who again recommended ultrasound treatment but was of the opinion that claimant's epicondylitis was not work related (Jt. Ex. H, p. 15). In May of 1990, claimant sought treatment from the Mayo Clinic of Rochester, Minnesota. Upon examination, claimant showed a full range of motion of both elbows and wrists. The physician noted tenderness at both the lateral epicondyle on the right side, and medial epicondyle tenderness at the left elbow. The physician recommended an EMG (which showed no evidence of median or radial nerve compression), and evaluation. The evaluation, dated August 13, 1990, stated that claimant had seen an improvement in his symptoms since he had stopped working four months ago (Jt. Ex. K, p. 8). The examination revealed tenderness at the right lateral epicondyle, and over the left medial epicondyle. Results from x-rays were normal, and claimant was placed in a splint and supplied with Feldene. It was recommended that claimant continue with normal activities within the limits of his pain, and if his condition worsened he was to consider cortisone injections. Claimant was given a 2 percent permanent partial impairment of the body for each elbow (Jt. Ex. K, p. 9-12). In June of 1991, claimant returned to his family physician, Michael F. Miriovsky, M.D., who provided claimant with his first cortisone injection (Jt. Ex. L, p. 2). In January of 1992, claimant received another injection from Jitu D. Kothari, M.D. In February of 1992, Dr. Moe summarized claimant's care and treatment with respect to his elbows, and concluded that claimant's condition was not work related (Jt. Ex. I, pp. 5- 6). analysis and conclusions of law The first issue to be addressed is whether claimant sustained an injury on February 23, 1990, which arose out of and in the course of his employment. An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). Claimant has the burden of proving by a preponderance of the evidence that he received an injury on February 23, 1990, which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Page 4 The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe, 246 Iowa 402, 68 N.W.2d 63. The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63. "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283; Musselman, 261 Iowa 352, 154 N.W.2d 128. Prior to February 20, 1990, claimant had held a position as inspector of various parts for approximately six years. According to Pete Owens, claimant's supervisor for the past six years, claimant never asked for relief from duties due to arm and/or elbow problems. Owens admitted that claimant voiced complaints to him of arm and elbow pain. Lorin Rickabaugh, another supervisor, indicated that he saw claimant wearing arm braces but did not have any conversations with claimant concerning the braces. Rickabaugh indicated that claimant's job required him to use his hands and arms constantly but that claimant was afforded some breaks while on the job. Claimant failed to appear for the hearing, and it is difficult to obtain a complete understanding of the job requirements. The evidence suggests that claimant was at the time and place required by his job assignment. Claimant held his position as inspector for approximately six years and apparently performed his job duties as required by the company. However, claimant has failed to prove by a preponderance of the evidence that his condition was caused by work activities. Most notably, Dr. Moe, once a company physician but who currently practices in Scottsdale, Arizona, visited the plant to observe claimant's assigned duties. Dr. Moe's opinion was that "this set of duties should not result in epichondylar irritation." (Jt. Ex. I, p. 6). Additionally, the evidence supports a finding that claimant left work due to his plans for retirement as opposed to an inability to complete his job duties due to arm and elbow pain and impairment. Page 5 As a result, claimant takes nothing from these proceedings. order THEREFORE, it is ordered: That claimant shall take nothing from these proceedings. That each party shall be assessed its own costs, pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of April, 1992. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr David Drake Attorney at Law West Towers Office Complex 1200 35th St Ste 500 West Des Moines IA 50265 Mr David L Jenkins Mr Cecil L Goettsch Attorneys at Law 801 Grand Ave Ste 3700 Des Moines IA 50309-2727 5-1100 Filed April 23, 1992 Patricia J. Lantz before the iowa industrial commissioner ____________________________________________________________ : DON SANTEE, : : Claimant, : : vs. : : File No. 936549 MAYTAG 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. : ___________________________________________________________ 5-1100 Claimant failed to appear for the hearing, and failed to establish by a preponderance of the evidence that his epicondylitis was caused by work activities. Page 1 before the iowa industrial commissioner ____________________________________________________________ : DONALD J. WARD, : : Claimant, : : vs. : : File No. 936555 SOUTHERN IOWA ECONOMIC : DEVELOPMENT ASSOCIATION and : A R B I T R A T I O N AREA XV MULTI-COUNTY HOUSING : AGENCY, : D E C I S I O N : Employers, : : and : : AETNA CASUALTY & SURETY : CO., and ALLIED MUTUAL : INSURANCE CO., : : Insurance Carriers, : Defendants. : ____________________________________________________________ statement of the case Claimant Donald J. Ward seeks benefits under the Iowa Workers' Compensation Act upon his petition in arbitration asserting a work injury on June 19, 1989. He asserts that Southern Iowa Economic Development Association (insured by Aetna Casualty & Surety Company) and/or Area XV Multi-County Housing Agency (insured by Allied Mutual Insurance Company) were employers, either jointly or in the alternative. Southern Iowa Economic Development Association (SIEDA) administered a "Workfare" Program in which Mr. Ward was allegedly participating at the time of his injury. Area XV Multi-County Housing Agency (Area XV) is claimant's landlord and provided the work site where claimant performed services under the Workfare Program. This cause came on for hearing in Ottumwa, Iowa, on December 16, 1991. Received into evidence were joint exhibits 1 through 36, claimant's exhibit 37 and defendants' exhibits A through U, inclusive. Claimant and his wife, Suzy Mae Ward, testified at hearing. Deposition testimony was received from claimant, Phyllis Runnels, Larry Shepard, Larry Harvey, Kenny Reynolds, Matthew A. Manning, D.O., and Donald D. Berg, M.D. issues Issues presented for resolution include: 1. Whether an employment relationship existed between claimant and either alleged employer at the time of the claimed injury; Page 2 2. Whether claimant sustained an injury on June 19, 1989, arising out of and in the course of employment; 3. Whether the alleged injury caused either temporary or permanent disability; 4. The extent of temporary and total disability; 5. The rate of compensation; and, 6. Whether either defendant is entitled to credit under Iowa Code section 85.38(2) for continuing welfare benefits paid to claimant's family. In its post-hearing brief, SIEDA conceded that it no longer posed as a defense that no employment relationship existed, thus resolving the first issue in claimant's favor with respect to that defendant. Even though claimant does not seek compensation for medical benefits, the parties request that the agency determine whether those medical costs set forth in exhibit 37 are causally related to the claimed injury, apparently for the purpose of determining certain subrogation rights. findings of fact The undersigned deputy industrial commissioner finds: Donald J. Ward, 37 years of age at hearing, completed the eighth grade but left school to "bum around" while in ninth grade. His only further education was a course of instruction in automotive mechanics completed in the Arizona State Prison during a period of incarceration in approximately 1976 to 1978. Mr. Ward has by history not been a productive citizen. He has worked intermittently as a maintenance worker, cotton picker, coal miner and flagman in road construction. The only steady job he has ever held was that of maintenance worker for the City of Weir, Kansas, in the year following his release from prison (on a burglary conviction). Holding that job was a condition of parole. From approximately 1978 to 1982, claimant concedes he had no steady work, but asserts that he did odd jobs and a little farming (none of which were disclosed in his answers to interrogatories). Occasionally, he helped his brother work on cars as a shade tree mechanic, perhaps earning $15 or $20. How claimant supported himself during this time is unclear. It seems not unreasonable to wonder whether all of his income was legitimately earned by sweat of brow. In any event, in 1982 claimant became eligible through marriage to share the Aid for Dependent Children (AFDC) grant in the name of his wife Suzy. The family has continued to claim benefits from that date to this, although Suzy is now working and only draws AFDC benefits in months in which her wages fail to equal benefit entitlement. From 1982 through 1989, Mr. Ward was required to make eight job Page 3 seeking contacts a month, but has only been able to obtain work briefly in hotel maintenance and road construction. Claimant also worked for five days in August 1989 as a car washer for an automobile dealership, but was discharged when the dealership learned he was ineligible to drive because of multiple drunken driving convictions. While those convictions do not directly pertain to credibility, neither are they indicia of good citizenship. Beginning in 1983, claimant was required by the Iowa Department of Human Services to participate in a "Workfare" Program as a condition of family eligibility for AFDC benefits. Under this program, certain able-bodied AFDC recipients ("unemployed fathers" and others with no preschool children at home) were required to work at assigned work sites to "work off" welfare benefits. Participants were paid no wage and were required to work as a benefit condition only when a willing job site was available. The amount of a family's AFDC grant bore no relationship to the hours worked, except that no participant could be required to work hours in excess of the monthly benefit amount divided by the minimum wage. Participants were required to continue making job search contacts at all times. The work site was required by contract to treat Workfare participants under the same conditions as regular employees and paid a nominal fee (approximately $.50 per hour) to SIEDA to help cover administrative expenses. SIEDA made extensive efforts (every job site in Van Buren County) to place claimant in a willing work site, but eventually concluded that he was unplaceable due to his poor reputation in the area. However, one work site provider was Area XV, an operator of low-rent housing projects, including a group of six duplexes in which the Ward family resided. Area XV agreed to accept claimant on the basis of a few hours per week to be spent mowing, cleaning and painting vacant units and some simple repair and carpentry work. Claimant did not work regular hours, but was assigned specific jobs upon the initiation of Kenny Reynolds, Area XV maintenance supervisor. Mr. Ward continued his Workfare Program participation through and beyond the alleged date of injury, June 19, 1989. Claimant's emotional condition in the months prior to June 19 were charted by family doctor Stephen Sparks, M.D., as "malaise" on January 21, 1989: Pt reports due to sleeping all the time, lacks motivation for anything except to win the lottery -- wants more money but doesn't want to go through the trouble of job hunting, . . . (Defendants' exhibit 1, page 14) At 9:20 p.m. (recorded "2120"), claimant presented to the emergency room of the Van Buren County Memorial Hospital with complaints of low back pain with some earlier radiation to the legs following a reported fall down stairs. Claimant was seen in the emergency room by Matthew Manning, D.O., a practitioner in internal medicine and family practice. Dr. Page 4 Manning noted tenderness over lower back muscles and spinous processes with diminished range of motion. Plain film x-rays of the lumbar spine were normal. Dr. Manning further noted that single leg raising was "equivocal" at 90 degrees. The doctor testified that by "equivocal," he meant that the potential of herniated disc with nerve root impingement was less significant at 90 degrees as opposed to, for example, 60 degrees, because 90 degrees is normal. A pain medication was prescribed and claimant was released. Mr. Ward did not seek further medical attention until September 1989, when he again saw Dr. Manning. Dr. Manning, incidentally, had seen him on several occasions in 1988. One of his nurses noted on June 25, 1988, that claimant telephoned with complaints of a backache, characterized as a "chronic problem," and requesting a narcotic pain killer (without success). Claimant now denies a history of chronic back complaints but concedes he was seen on May 3, 1988, by Dr. Sparks for complaints of low back pain. Dr. Sparks' chart notes indicate claimant had been seen in an unidentified emergency room Sunday (by a standard calendar, presumably May 1) and been treated with anti-inflammatories and heat. According to claimant, he suffered his fall after shampooing the carpet in apartment 3-B, the other half of his own duplex unit. He says that he was trying to maneuver his own shampooer down a flight of stairs when he fell at approximately 2:30 p.m. Suzy Ward, age 33, testified that she heard a loud noise while claimant was shampooing apartment 3-B, and that she immediately ran over and found claimant on the floor at the bottom of the stairs. She indicated that Mr. Ward was taken to the hospital almost immediately and alleges that the hospital records of admission time are incorrect. At the time of his deposition testimony on May 29, 1991, claimant testified as follows relative his assigned Workfare duties through the summer: Q. Did you continue to work through that summer, July and August, either doing work for Area XV or anyone else? A. Yes. Q. Did you have any problems in doing your work, physical problems? A. Oh, yeah. I mean, I can't -- I couldn't bend over like I did, but I did the work. (Donald Ward deposition, page 40, lines 8 through 15) However, in his trial testimony, claimant testified that Suzy actually did the work (and his daughter did the mowing) for the next three months. According to Suzy, he tried to do work during those months, but she helped. For example, when painting a wall, he would paint the lower part while she would paint the higher portion. However, claimant Page 5 testified to the contrary in his deposition: Q. Did you continue with painting and cleaning projects? A. I never painted again up there. After I had my injury, I never painted again. I know that. (Donald Ward deposition, page 71, lines 11 through 14) Claimant normally spoke to Kenny Reynolds by telephone almost every day, and in person perhaps once a week. Within a day or so of his fall, he so advised Reynolds, but neither man appeared to treat the incident as significant. Reynolds was never advised that Suzy and claimant's daughter were supposedly doing his work for him as symptoms allegedly increased gradually over the next months. It does not strike this observer as consistent with claimant's past history to hide a work-related disability out of a presumed zeal to perform Workfare duties for which he was not compensated (if he were unable to work, there would be no impact whatsoever on AFDC benefits). It was Reynolds' responsibility to initiate work assignments by directly ordering claimant to perform specific duties. Normal procedure, which claimant maintains was not followed in this instance, would be to specifically order claimant to shampoo the carpet in a vacant unit and deliver to him the Rug Doctor carpet machine owned by SIEDA and used for that purpose. Why claimant would have taken it upon himself in this one instance to shampoo a carpet with his own machine remains unclear. Reynolds was also responsible for recording claimant's reported hours, which he normally did immediately after being informed. Claimant did not report having worked any hours on Monday, June 19, and none were recorded. Claimant did report working 3.5 hours on June 20 and 2 hours on June 23. Reynolds recorded 5.5 hours in each of the next two weeks, 7 hours in each of the two weeks thereafter, 5 hours in the week ending August 5, 7 hours the next week, 4 hours the next week and 5 hours during the week ending September 2. During all this time, Reynolds was never advised that claimant's wife and daughter were "covering" for him. On August 14, 1989, claimant made a job search contact at Bloomfield Ford Mercury and was hired to start the following day. A question on the preemployment questionnaire inquiring whether he had any physical or mental impairments which would interfere with his ability to perform the job, was answered in the negative. Similarly, it is inconsistent with claimant's past history of motivation to disguise physical impairment out of driving ambition to work. As previously noted, claimant was terminated on August 22 when Bloomfield Ford discovered that he would be unable to obtain an operator's license. In his deposition testimony, claimant indicated that work at the car dealership basically did not exacerbate symptoms, although Page 6 he still had trouble bending. He did not believe his condition was worse at the time he was discharged. However, Suzy testified that during only five days of employment, she had to pick him up at noon on two days because of back pain. The discrepancy remains unexplained. After claimant's job with Bloomfield Ford Mercury ended, there came a dramatic change in his condition: A. September 11 is when I went to the hospital. It happened a couple of days before that, but I just thought -- I didn't know what it was. It got to the point of the pain, so then I went to the hospital. (Donald Ward deposition, page 39, lines 20 through 24) Claimant was seen again by Dr. Manning at Van Buren County Memorial Hospital on September 11 with complaints of severe low back pain and right leg pain. Straight leg raising was now positive at 30 degrees on the right and contralateral (raising one leg causes pain in the other) on the left at 60 degrees. A CT scan was ordered and showed a herniated disc at L4-5. Since then, claimant's two treating physicians have been Dr. Manning and Donald D. Berg, M.D. Dr. Berg is a board-certified orthopaedic surgeon. Both physicians have continued to recommend surgery for relief of symptoms, but have been refused due to claimant's anxiety about undergoing back surgery. Surgery was in fact twice scheduled and twice cancelled, once at very nearly the literal last minute. As a result, claimant remains under rather extensive medical restrictions. Both physicians causally relate claimant's disability to the fall on June 19. Both opinions assume symptoms commencing on that date with gradual or intermittent worsening for three months prior to the September hospitalization. This history is not supported by the evidence, though. It is noted that there exists a direct conflict between the testimony of claimant and that of Kenny Reynolds. Claimant testified: Q. How would you report the amount of time that you -- A. Kenny -- Q. -- spent on a job? A. Kenny would call me and I would tell him. Q. Would you tell him specifically the day that your worked? A. He would call -- Before I did anything up there at the apartments -- I got the approval from Kenny before I done anything, other than mowing. Cause you just mowed every other week, so I mowed. Page 7 But anything else I would get the prior approval -- I would get approval from him before I would do it. Q. Let's say Kenny called you one night and said mow tomorrow. A. I would go mow. Q. And after you mowed, would you talk to Kenny and say it took me three hours to mow or would you tell him I mowed from nine to noon? A. He would just write down what he thought it would take me to do it. Q. Did you ever report back your actual hours worked? A. No. He would -- Kenny took care of it. I never had nothing to do with my hours. (Donald Ward deposition, page 69, line 6 through page 70, line 6) Reynolds, on the other hand, reported: Q. It's my understanding that Mr. Ward would call back to you on a set day, either a Friday or a Monday, to report the hours that he worked in a week? A. Yes. Q. Did you take any steps to confirm the number of hours that he was reporting to you? A. No. That would have been almost impossible to do. Q. And I understand that you were required to fill in a time sheet or time card in regard to the hours worked by Mr. Ward? A. Yes. Q. Did you do that as you and Mr. Ward talked on the phone each week? A. Well, I don't know that I did it while he was on the phone. I -- he would just tell me how many hours that he worked on a given day or days and I'd record that on the time sheet. Q. Shortly thereafter? A. Oh, yes. Q. Or the same day? Page 8 A. Oh, yeah, I had to right away or I'd probably forgot about it. Q. You relied on Mr. Ward for both the days worked and the hours worked? A. Yes, I did. (Kenny Reynolds deposition, page 14, line 15 through page 15, line 15) This point is significant because time records show that claimant did not work on June 19, when he was supposedly injured at work, and that he did work many hours in the next three months when he (now) claims he could not work. Mr. Reynolds is not interested in this litigation. His version is much more believable than is claimant's. Another aspect of claimant's quoted testimony is revealing. That is the requirement of prior approval for anything other than weekly mowing. Although inconsistent with the assertion that claimant fell after shampooing a carpet with his own machine, the testimony in this instance is consistent with that of Reynolds: Q. Would you take me through step by step the procedure that you would use with Donald Ward if you were going to request him to shampoo carpet, including your telephone calls and the transportation of equipment? A. I'm not sure I understand what you want me to Page 9 do here. You want me to---- Q. Let's assume that you have an apartment that needs cleaning in Keosauqua while Donald Ward was working down there. A. Yes. Q. As I understand, the first thing that would happen is you would give Donald a call---- A. I see. Q. --and say I have to have such and such an apartment shampooed. A. Uh-huh. Q. Take me from there on the procedure. A. I would probably tell him that we'll deliver the Rug Doctor at a certain time on a certain day and it was to be used on this apartment, let me know when you're done. Q. Area XV Housing owns all the equipment that's necessary to do a carpet cleaning job? A. Yes. Q. And that's the equipment that is used in the practice of Area XV to clean carpets? A. Yes. (Kenny Reynolds deposition, page 44, line 4 through page 45, line 4) For all these reasons, the finder of fact is unpersuaded that Donald Ward was engaged in work activities on behalf of SIEDA or Area XV on June 19, 1989. Neither is he persuaded that the minor incident of this date caused the herniation diagnosed three months later and after an unspecified "acute exacerbation" as later reported to the University of Iowa Hospitals and Clinics. conclusions of law Claimant has the burden of proving by a preponderance of the evidence that he received an injury on June 19, 1989, which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). He also has the burden of proving by a preponderance of the evidence that the injury of June 19, 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 Page 10 (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 Hosp., 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. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). This burden of proof has not been met. For claimant to recover, he must establish that the incident for which he sought emergency room care on June 19 arose out of and in the course of employment, and that the incident itself bears a causal nexus to the disc herniation at L4-5 diagnosed by CT scan some three months later. The injury occurred in claimant's duplex with claimant and his wife the only witnesses. Claimant, a convicted burglar, lacks credibility. Suzy's testimony is consistent with his on this point, at least, but it is noted that she is also interested in the litigation as claimant's spouse. Other testimony is inconsistent with claimant's version of events. There are many surrounding facts that cast suspicion on claimant's assertions. He normally did not initiate any work assignments, but responded to orders from Kenny Reynolds. Had he done so in the present instance, standard procedure called for Reynolds to arrange delivery of the carpet machine owned by Area XV (which operated a number of geographically scattered rental units). The hospital record of admission is accepted over Suzy Ward's testimony that it was wrongly recorded. The time itself, 9:20 p.m., is significant in that claimant might well not be expected to be on the job that late in the evening. Reynolds did not record that claimant worked any hours on June 19. However, he recorded hours on the next day and many others, even though claimant now says his wife and daughter covered for him by performing duties. Given the totality of the record, it is hard to believe that claimant would never complain to Reynolds of a disability so serious that this subterfuge was required. The family could even have done better financially had Reynolds known that the daughter was doing the mowing, since after the disc herniation was diagnosed in September she was paid directly for doing the same work. In August, claimant applied for a job with no indication that he had a physical impairment and worked five days, apparently without trouble (according to his testimony, but Page 11 not according to Suzy's). An acute exacerbation of unknown origin sent claimant back to the hospital in September, where an undoubted disc herniation was discovered. Straight leg raising was now clearly positive, as opposed to "equivocal" at a normal 90 degrees on June 19. Claimant's case fairly smacks of an effort to convert a personal misfortune into a lifetime source of income. He claims that he is permanently and totally disabled. He asserts that his rate of compensation should be calculated under Iowa Code section 85.36(4) as "an employee who is paid on a monthly pay period basis." He further asserts that the entire family AFDC benefit, a $25.00 monthly transportation expense allowance and even the value of Title 19 health care constitute a monthly salary, thus yielding a weekly compensation rate very probably greater than he has ever earned through employment. This assertion must be quickly relegated to the "Creative Moonshot - Failed" subdivision of legal argument. Rather, rate would necessarily be calculated under section 85.36(10) as an employee who "earns either no wages or . . ." As such, his rate would be one-fiftieth of the total earnings "earned from all employment" during the twelve calendar months immediately preceding the injury. Claimant had no earnings from either SIEDA or Area XV; he was literally paid no wages. Based on W-2 statements of record, claimant's total earnings from employment during the twelve months prior to his injury were $102.38 from Alfonso Construction Company, Inc., as a flagman. A W-2 from Bloomfield Ford Mercury reflects wages earned after the alleged injury. A W-2 from Pioneer Hybrid International, Inc., reflects wages actually earned by claimant's daughter but recorded in his name because of her juvenile status. "Weekly earnings" of $2.05 ($102.38 divided by 50) yield an actual rate of $1.85 per week. Although it is not necessary to decide the proper rate where liability is not proven, this theory serves as an example of overreaching consistent with the cause in general. Given this resolution, all other issues are rendered moot. Page 12 order THEREFORE, IT IS ORDERED: Claimant shall take nothing from this proceeding. Costs are assessed to claimant pursuant to rule 343 IAC 4.33. Signed and filed this ______ day of ____________, 1992. ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Dennis W. Emanuel Attorney at Law 112 North Court P.O. Box 601 Ottumwa, Iowa 52501 Mr. E. J. Kelly Ms. M. Anne McAtee Attorneys at Law Suite 111, Terrace Center 2700 Grand Avenue Des Moines, Iowa 50312 Mr. Timothy C. Hogan Attorney at Law 4th Floor, Equitable Building Des Moines, Iowa 50309 5-1402.30 Filed March 26, 1992 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : DONALD J. WARD, : : Claimant, : : vs. : : File No. 936555 SOUTHERN IOWA ECONOMIC : DEVELOPMENT ASSOCIATION and : A R B I T R A T I O N AREA XV MULTI-COUNTY HOUSING : AGENCY, : D E C I S I O N : Employers, : : and : : AETNA CASUALTY & SURETY : CO., and ALLIED MUTUAL : INSURANCE CO., : : Insurance Carriers, : Defendants. : ____________________________________________________________ 5-1402.30 Claimant failed to prove he suffered an injury arising out of and in the course of employment.