Page 1 before the iowa industrial commissioner ____________________________________________________________ : BARBARA JENSEN, : : Claimant, : : vs. : : File No. 936563 THE NISSEN COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : AETNA CASUALTY & SURETY CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Barbara Jensen, claimant, against The Nissen Company, employer (hereinafter referred to as Nissen), and Aetna Casualty & Surety Company, insurance carrier, defendants, for workers' compensation benefits as a result of an alleged injury on July 5, 1988. On March 20, 1991, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of con tested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. The oral testimony and written exhibits received during the hearing are set forth in the hearing transcript. According to the prehearing report, the parties have stipulated to the following matters: 1. On July 5, 1988, claimant received an injury which arose out of and in the course of her employment with Nissen. 2. Claimant is not seeking additional temporary total disability or healing period benefits beyond that which has already been voluntarily paid by defendants. It was agreed that claimant has not work in any capacity since her retire ment from Nissen on April 20, 1990. 3. If the injury is found to have caused permanent disability, the type of disability is an industrial disabil ity to the body as a whole. 4. Claimant's rate of weekly compensation is $209.62. 5. With reference to the requested medical benefits, Page 2 it was agreed at hearing that the providers would testify that the bills and treatment were fair and reasonable and defendants are not offering contrary evidence. issues The parties submitted the following issues for determi nation in this proceeding: I. The extent of claimant's entitlement to weekly disability benefits; and, II. The extent of claimant's entitlement to medical benefits. findings of fact Having heard the testimony and considered all the evi dence, the deputy industrial commissioner finds as follows: Claimant worked for Nissen for 17 years prior to her retirement at age 62 on April 20, 1990. This was an early retirement and she will not receive benefits until age 65. During her Nissen employment, claimant was assigned to the slicing room working with hams. At the time of her injury, claimant was assigned to push and pull racks of meat from the cooler and take meat off the racks and place them onto slicing tables. Claimant was also assigned to folding pre formed cardboard into boxes. On or about July 5, 1988, claimant injured her low back after slipping and falling onto her hip and back. Claimant received immediate treatment for low back and buttocks pain from the company doctor, Subhash Sahai, M.D., a family prac tice physician. Claimant returned to work on July 8, 1988. Despite a return to work, claimant continued to have symp toms of chronic low back pain and claimant was referred to an orthopedic surgeon, Mark Brodersen, M.D. It was Dr. Brodersen's view that claimant had aggravated a preexisting condition of spondylolisthesis hereinafter referred to as "spondy." Dr. Brodersen placed claimant on physical therapy and recommended that she not continue work which required heavy lifting or repetitive bending or twisting. In his deposition testimony, Dr. Sahai testified that claimant reached maximum healing from the July 5, 1988, aggravation fall on November 1, 1988, as he received no further back complaints from claimant until a year later in December of 1989. In December of 1989, Dr. Sahai referred claimant to a neurosurgeon, Thomas Carlstrom, M.D. Dr. Carlstrom diag nosed that claimant's symptoms of low back pain were also secondary to spondy but they were precipitated by the fall of July 5, 1988. This view by Dr. Carlstrom is based upon a history that the spondy was asymptomatic until the fall of July 5, 1988. Claimant has also been diagnosed by Dr. Sahai and the specialists in this case as suffering from degenera tive disease of the spine as well as spinal stenosis. It is found that the injury of July 5, 1988, only tem porarily aggravated the preexisting condition of spondy. Claimant failed to show that this injury worsened or accel Page 3 erative the progressive degenerative nature of this disease process. The exact views of Dr. Brodersen are unknown as to whether the aggravation he diagnosed was temporary or perma nent. Although Dr. Carlstrom is a specialist, Dr. Sahai's views as to permanency and the relationship of the December 1989 symptoms to the July 5, 1988 injury was given greater weight because the history given to Dr. Carlstrom was incor rect. Claimant's pain was not precipitated by the injury of July 5, 1988, because claimant had on-going low back pain since a fall injury in 1986. She sought treatment from Dr. Sahai in 1986 after this injury and it was at this time that the condition of spondy was first diagnosed. Claimant admitted at hearing that Dr. Sahai told her in 1986 that she would be getting progressively worse due to her back condi tion. Claimant stated at hearing that the back pain never "went away" after the 1986 injury. Although claimant said that she had some back pain prior to 1986, the pain was not "that bad until 1986." Claimant further testified at hear ing that she could not differentiate the severity of her back pain between the 1986 injury, another thigh and back injury which occurred in October of 1987 and the injury in this case. According to claimant the pain was "off and on" after each injury. Claimant failed to show by a preponder ance of the evidence which of these injuries caused her problems. If anything, the evidence points to the 1986 injury as the most significant precipitating cause, not the 1988 injury. As stated above, Dr. Sahai did not view claimant's problems after November 1988 as causally connected to the fall of July 1988 and this was based upon claimant's lack of back complaints between November 1988 and December of 1989. There is some evidence of hip problems treated by Robert Gitchell, M.D., and a chiropractor in 1989. However, Dr. Gitchell felt that the hip soreness was due to gait problems caused by the knee contusions she suffered in October 1989. The views of the chiropractor are unknown. No physician has causally connected the October 1989 injury to the July 1988 injury. Although it is found that claimant's symptoms in December 1989, were not due to the July 1988 injury, the treatment by Dr. Carlstrom, Iowa Methodist Hospital and Radiology P.C., as set forth in exhibit 6 in 1990, is causally connected to the injury. The referrals for this treatment were from Dr. Sahai. Although Dr. Sahai felt that the symptoms were prob ably not causally connected to the injury, this was his attempt to review the matter again. Dr. Sahai's actions were a logical and reasonable course of treatment for the original injury. Claimant should not be responsible for these further efforts by her physicians to confirm or reject the original hypothesis and diagnosis. Due to the stipula tions of the parties as to what the providers would testify as to the reasonableness of the treatment, it is found that the treatment by all the providers set forth in exhibit 6 is reasonable. conclusions of law I. The claimant has the burden of proving by a pre ponderance of the evidence that the work injury is a cause Page 4 of the claimed disability. A disability may be either tem porary or permanent. In the case of a claim for temporary disability, the claimant must establish that the work injury was a cause of absence from work and lost earnings during a period of recovery from the injury. Generally, a claim of permanent disability invokes an initial determination of whether the work injury was a cause of permanent physical impairment or permanent limitation in work activity. However, in some instances, such as a job transfer caused by a work injury, permanent disability benefits can be awarded without a showing of a causal connection to a physical change of condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). The question of causal connection is essentially within the domain of expert medical opinion. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion of experts need not be couched in definite, pos itive or unequivocal language and the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). 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 cir cumstances. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Furthermore, if the available expert testimony is insufficient alone to support a finding of causal connec tion, such testimony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. Asse 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 compensabil ity, the injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith, 290 N.W.2d 348, 354. In the case of a preexisting condi tion, an employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). In the case sub judice, claimant clearly demonstrated she has a very serious and disabling back condition. She failed, however, to show that it was due to the injury of July 5, 1988, the only injury at issue in this case. II. Pursuant to Iowa Code section 85.27, claimant is entitled to payment of reasonable medical expenses incurred for treatment of a work injury. However, claimant is enti tled to an order of reimbursement only if claimant has paid those expenses. Otherwise, claimant is entitled to only an order directing the responsible defendants to make such pay ments. See Krohn v. State, 420 N.W.2d 463 (Iowa 1988). In the case at bar, all of the requested expenses were found causally connected to the injury and will be awarded. Page 5 order 1. Claimant's claim for additional weekly disability benefits is denied. 2. Defendants shall pay the medical expenses listed in exhibit 6. Claimant shall be reimbursed for any of these expenses paid by her. Otherwise, defendants shall pay the provider or reimburse the group carrier directly along with any lawful late payment penalties imposed upon the account by any provider. 3. Defendants shall pay the cost of this action pur suant to rule 343 IAC 4.33, including reimbursement to claimant for any filing fee paid in this matter. Signed and filed this ____ day of May, 1991. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Tito Trevino Attorney at Law 801 Carver Bldg P O Box 1680 Ft Dodge IA 50501 Mr. Timothy C. Hogan Attorney at Law 4th Floor Equitable Bldg Des Moines IA 50309 5-1108 Filed May 15, 1991 LARRY P. WALSHIRE before the iowa industrial commissioner ____________________________________________________________ : BARBARA JENSEN, : : Claimant, : : vs. : : File No. 936563 THE NISSEN COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : AETNA CASUALTY & SURETY CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1108 - Medical causation - nonprecedential Page 1 before the iowa industrial commissioner ____________________________________________________________ : GORDON HENDRICKSON, : : Claimant, : : vs. : : File No. 936566 SUPER VALU STORES, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INS. CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Gordon Hendrickson, claimant, against Super Valu Stores, Inc., employer (hereinafter referred to as Super Valu), and Liberty Mutual Insurance Company, insurance carrier, defen dants, for workers' compensation benefits as a result of an alleged injury on May 30, 1989. On July 8, 1991, a hearing was held on claimant's petition and the matter was consid ered fully submitted at the close of this hearing. The parties have submitted a prehearing report of con tested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. The oral testimony and written exhibits received during the hearing are set forth in the hearing transcript. According to the prehearing report, the parties have stipulated to the following matters: 1. An employee-employer relationship existed between claimant and Super Valu at the time of the alleged injury. 2. If the alleged injury is found to have caused per manent disability, the type of disability is an industrial disability to the body as a whole. 3. Claimant's rate of weekly compensation in the event of an award of weekly benefits from this proceeding shall be $307.90. 4. The medical bills submitted by claimant at hearing were fair and reasonable and causally connected to the medi cal condition upon which the claim is based but that the issue of their causal connection to a work injury remains an issue to be decided herein. Page 2 issues The parties submitted the following issues for determi nation in this proceeding: I. Whether claimant received an injury arising out of and in the course of employment; II. The extent of claimant's entitlement to disabil ity benefits; and, III. The extent of claimant's entitlement to medical benefits. findings of fact Having heard the testimony and considered all the evi dence, the deputy industrial commissioner finds as follows: A credibility finding is necessary to this decision as defendants place claimant's credibility at issue during cross-examination as to his prior health history, the events leading up to the work injury, the extent of injury and the extent of disability. From his demeanor while testifying, claimant is found credible. Claimant worked for Super Valu from 1980 until his heart attack on May 30, 1989, which is the claimed work injury in this case. Claimant was a truck driver. His duties included not only the driving of an 18 wheel semi tractor trailer truck but also the unloading of groceries at delivery locations and the loading of "dunnage." Dunnage is a termed used at Super Valu to represent cargo that is to be returned to the Des Moines warehouse from a remote location. Dunnage usually consists of empty wooden pallets and large, usually empty, insulated metal boxes called igloos. Drivers normally drop these items off at a central point after deliveries. Unloading of the groceries commonly involves the use of roller chutes in which the driver places the boxes and/or sacks of grocery items onto the chute and it rolls to the dock area where store employees handle the items for placement into the store. Claimant estimated that an average grocery box weighed approximately 35 pounds. The loading of dunnage normally involves the use of a hand pal let jack to push or pull stacks of pallets and individual igloos weighing 500 to 600 pounds each onto a truck trailer. After placement in the trailer, additional pallets commonly are placed onto existing stacks to fill the truck to the roof. There was a dispute in the record as to which work was harder, the unloading of groceries or the loading of dun nage. This did not appear to be an important issue as both duties were physically stressful and sufficiently physically stressful in an amount greater than nonemployment life. Also, both duties were a part of claimant's usual and cus tomary duties. Claimant earned approximately $26,000 annu ally in his job at the time of the alleged injury. This was the most that claimant had earned in his working life according to the evidence. Claimant has been unemployed Page 3 since the day of the heart attack. Prior to May 30, 1989, claimant's health was good and he had no ascertainable functional impairments or disabili ties. Claimant's credible testimony established that he was not limited physically in his loading or unloading of Super Valu trucks and was generally faster than persons assisting him. However, in retrospect, claimant's physicians all agreed that prior to May 30, 1989 claimant had moderate to severe coronary artery disease and possessed significant high risk factors for a heart attack stemming from his lifestyle, long-term heavy smoking, high blood cholesterol and family history of heart problems. According to the med ical experts in this case, claimant's experience was the same as for most men with coronary artery disease. The dis ease did not manifest itself until the onset of a heart attack or myocardial infarction. On May 30, 1989, claimant suffered an injury which arose out of and in the course of his employment. At that time claimant suffered a heart attack or what has been diag nosed as an acute anterior wall myocardial infarction or death of a portion of his heart muscle. This occurred as a result of blockage of blood supply to already narrowed coro nary arteries due to prior existing coronary artery disease. The events on the day of the heart attack, as set forth in claimant's brief, were not in serious dispute. Claimant's testimony on these matters is largely uncontro verted. On May 30, 1989, claimant began driving his truck beginning at the Super Valu warehouse in Des Moines, Iowa at approximately 1:00 a.m. After claimant delivered over 35,000 pounds of groceries to two Illinois locations on the morning of May 30, 1989, he was also assigned that day to pick up a load of dunnage located at East Moline, Illinois on his return trip. While eating a fried chicken takeout lunch that he obtained at his last delivery point, he drove his truck to the dunnage point. Claimant stated that he had difficulty loading the dunnage that afternoon because the steel ramp he customarily used was broken. The floor of the trailers used by Super Valu were normally higher than the dunnage dock. Consequently, claimant had greater difficulty than normal in pulling and pushing the pallets and igloos up the ramp and into the trailer due to his use of a different steel ramp. Also, claimant stated that he felt unusually hot. The day was indeed hot and humid and claimant was loading the truck during the early afternoon hours. Claimant stated that he turned on the refrigeration unit in the trailer during the loading process to help him cool down. It is found that claimant's physical activity while loading the dunnage was greater than normal due to the ramp problems and the heat. Claimant's testimony in these mat ters is credible and uncontroverted. Approximately half way through the loading process, claimant began to notice chest pain. However, he did not stop working. He explained that he felt that the pain was only indigestion. He continued loading the truck but the pain grew worse. Claimant still felt that the pain would subside and continued working. After he completed the load Page 4 ing process, he attempted to close the trailer doors but could not do so because of his chest pain. He likewise had difficulty getting back into the cab of his truck due to this chest pain. Claimant, at the time, formed a new opin ion that he had a chicken bone from his lunch lodged in his throat. He continued to believe that the pain would eventu ally subside and he drove his truck a short distance away from the dock to rest. The pain then became even worse and he drove his truck back to the dock and sought help. A per son at the dock area then transported claimant to a nearby hospital. Although claimant still felt that he only had a chicken bone problem, the treating internist at the hospital, John Oppenheimer, M.D., diagnosed an acute myocardial infarction and treated claimant accordingly. It is found that claimant spent approximately one hour in loading the truck and had continued stressful physical work approximately 30 minutes after the onset of chest pain. At the time of the hearing, claimant had no specific recollection of time frames other than the fact that he believes the chest pain began about half way through the loading process. At the time he was admitted to the hospital, claimant reported to physicians that the pain began approximately 30 minutes earlier. It is also found that claimant completed the loading of his truck. This was verified by another Super Valu employee who testi fied at hearing. This employee found the truck fully loaded when he picked the truck up the day following the heart attack. It is found that claimant's unusual stressful work at the time of the initial onset of chest pain was a signifi cant contributing factor in precipitating claimant's heart attack and myocardial infarction. It is further found that this activity was more stressful than what a person would experience in nonemployment life. Dr. Oppenheimer testified in his deposition that there was a high likelihood that the work claimant performed that day may have precipitated the heart attack. Craig Stevens, M.D., testified on page 51 of his deposition that the causal connection was only a possi bility unless claimant was having an unusually stressful day in some way. As it is found that claimant did have an unusually stressful day, a causal connection finding would be consistent with the views of Dr. Stevens. Although another internist retained by defendants, Paul From, M.D., opined that claimant's heart attack was unrelated to his work, he was unaware until the time of the deposition that claimant's pain began while he was doing unusual stressful work. Also, Dr. From has stated that if claimant had been performing unusual tasks on that day that this may change his opinion. Apart from the finding that claimant's work was a sig nificant causative factor in the initial myocardial infarc tion, the finding of a work injury herein is also based upon claimant's decision to continue his physically stressful work for approximately 30 minutes after the onset of chest pain. This continuation of work significantly worsened and permanently aggravated the heart attack. Both treating physicians, Dr. Oppenheimer and Dr. Stevens, opined that it Page 5 was likely that had claimant stopped loading his truck, rested and sought immediate medical treatment, the extent of the heart damage would be less. Defense counsel, during the deposition, made an admirable effort to dissuade Dr. Stevens from this opinion. Dr. Stevens, in his testimony, did indeed waffle a bit on the issue. However, on the whole record, the undersigned does not believe that Dr. Stevens ever backed off from his view expressed on page 55 of the deposition that continuing to work most likely did increase the muscle damage. In his deposition, Dr. From refused to opine that the continuation of work worsened claimant's condition. He based this opinion on his conclusion that claimant's overall heart damage was not serious. In arriving at this conclusion, he stated that the treating physicians did not give an impairment rating and had rejected corrective surgery because it was unnecessary. Dr. From is incorrect. Dr. Stevens gave a very high permanent impairment rating. Furthermore, claimant's treating physicians rejected the surgery option, not because it was unnecessary, but because it would do no good given the location of the blockage and the location of already dead heart muscle. After a few days of treatment in Moline, Illinois, claimant was released to return home for further treatment by a cardiologist, Craig Stevens, M.D. Dr. Stevens treated Page 6 claimant until claimant's last office call on February 28, 1990. This treatment consisted of medication and rest. Claimant has not returned to work in any capacity since May 30, 1989. Current treatment of claimant consists of recom mended rehabilitation activities, medication for ongoing angina pain, and medication and rest to deal with fatigue and shortness of breath. As a result of the injury of May 30, 1989, claimant was totally disabled from any work between May 30, 1989 and February 28, 1990, at which time he reached maximum healing. Dr. Stevens did not give a permanency rating until July 1990, but he last saw claimant on February 28, 1990. This appears to be the most logical date to end the healing period. As a result of the work injury of May 30, 1989, claimant has a 50-75 percent permanent partial impairment to the body as a whole. Also, claimant's primary treating physician, Dr. Stevens, has permanently restricted claimant from activity consisting of no long-term running; walking only at a slow pace of a mile or two; climbing only one or two flights of stairs; no high performance aerobic activity; no lifting over 50 pounds; and, no working over eight hours continuously. One physician believes that claimant might have chronic obstructive bronchitis which affects his breathing but Dr. Stevens opined that separating out the impairment caused by the existence of such a possible lung disease would not significantly lower his impairment rating due to the heart attack. This opinion is uncontroverted. Dr. Stevens felt that this possible lung disease by itself would not be significantly disabling. Claimant testified that he is more disabled than indi cated by the deposition testimony of Dr. Stevens. He states that he can only be active for a few hours a day and can only walk a few blocks at a time. He complains of extreme fatigue and breathlessness. However, the undersigned must rely upon the treating physician's views to assess claimant's physical condition. Possibly claimant is decon ditioned and in need of extensive physical therapy in a reg ular supervised cardiac exercise program. To date, defen dants have not provided such needed care. As a result of the work injury of May 30, 1989, claimant has suffered a 70 percent loss of earning capacity. Claimant has not shown by the evidence that he is totally unemployable or that suitable employment is wholly not available to him. Claimant's physicians do not restrict him from all work. Dr. Stevens only restricts claimant to sedentary work. However, claimant is 52 years of age and has only a tenth grade education. His most significant prior employment has been in strenuous work that he no longer can perform such as truck delivery, construction and factory work. Claimant's ability to secure suitable seden tary work appears quite limited. On the other hand, claimant has had experience in real estate and car sales. He also has worked for over two years as a private investi Page 7 gator. Neither of these jobs would require strenuous manual labor but placement would have to be quite selective. Little evidence has been provided to show the actual avail ability of employment to claimant. Claimant has made no attempt to look for suitable work. However, claimant has not been assisted in any manner by defendants in securing suitable work. Super Valu has not offered claimant a return to work in any capacity and has not offered vocational reha bilitation counseling. This is clear evidence of a profound disability. Defendants argue for an apportionment of disability arising from the claimed lung disease. However, it could not be found from the evidence presented that claimant does indeed suffer from a lung disease independent of his cardiac problems. Two pulmonary specialists have examined claimant, D. L. Burrows, M.D., and Steven Zorn, M.D. Dr. Zorn formed an "impression" not a diagnosis that claimant suffers from chronic obstructive bronchitis which could be a cause, in part, of his breathing problems. On the other hand, Dr. Burrows noted in his report that claimant had no significant breathing problems before the heart attack and attributes all of the breathing problems to the myocardial infarction rather than any separate or independent lung disease. At any rate, whether or not claimant has such a lung disease, Dr. Stevens, in his functional loss rating, attributes lit tle of the loss of functioning to the lung disease and it would not significantly change his impairment rating. As will be explained in the conclusions of law section of this decision, no apportionment can be made unless the disease causes significant disability. All of the requested medical expenses set forth in the prehearing report are causally connected to the May 30, 1989 work injury. The treatment and the expenses resulting from the diagnosis and experimental treatment of the possible lung disease is causally connected to the heart attack as a part of the usual diagnostic testing in the treatment of a heart condition and claimant's breathlessness. Again, there was no finding that claimant actually suffers from breathing problems independent of the heart condition. conclusions of law I. Claimant has the burden of proving by a prepon derance of the evidence that claimant received an injury which arose out of and in the course of employment. The words "out of" refer to the cause or source of the injury. The words "in the course of" refer to the time and place and circumstances of the injury. See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited therein. Page 8 In work injuries involving the heart, Iowa claimants with preexisting circulatory or heart conditions are permit ted, upon proper medical proof, to recover workers' compen sation benefits only when the employment contributes some thing substantial to increase the risk of injury or death. The employment contribution must take the form of an exer tion greater than nonemployment life. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). The comparison, how ever, is not with the employee's usual exertion in his employment, but with exertions of normal nonemployment life of this or any other person. Id. These exertions may be physical or emotional. Swalwell v. William Knudson and Son, Inc., II Iowa Industrial Commissioner Report 385 (Appeal Decision 1982). The Sondag rule is favored by Professor Larson in his treatise on workers' compensation. See IA Larson, Workmen's Compensation Law, section 38.83 at 7-172. According to Professor Larson, the causative test is a two part analysis. First, there is a medical causation test in which the medical experts must be relied upon to causally relate the alleged stress to the heart injury. Second, there is a legal causation test to determine if the medi cally related stress is more than the stress of everyday nonemployment life. In the case sub judice, claimant satisfied tests under Sondag and the two tier tests of Professor Larson. It was found that claimant's physical exertion at the time of the heart attack was greater than nonemployment life. However, claimant does not have to rely solely upon unusual stress to prevail in this case. According to the evidence, claimant continued working after the onset of symptoms worsening his heart damage and it is likely that had he stopped and sought treatment he would have had less damage. Such a finding invokes liability under the theory approved by the Iowa Supreme Court in Varied Enterprises v. Sumner, 353 N.W.2d 407 (Iowa 1984). As pointed out in Varied Enterprises, claimant did not have to be aware that he was risking seri ous injury or death when he chose to ignore the chest pains. Also, as pointed out in Varied Enterprises, apportionment of liability due to preexisting risk factors such as coronary artery disease is improper if there is no ascertainable dis ability existing prior to the heart attack. With further reference to the issue of apportionment, the Iowa Supreme Court has most recently rejected any type of apportionment from an award based upon a condition which does not manifest itself into a disability. Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991). II. Claimant must establish by a preponderance of the evidence the extent of weekly benefits for permanent dis ability to which claimant is entitled. As the claimant has shown that the work injury was a cause of a permanent physi cal impairment or limitation upon activity involving the body as a whole, the degree of permanent disability must be measured pursuant to Iowa Code section 85.34(2)(u). How ever, unlike scheduled member disabilities, the degree of Page 9 disability under this provision is not measured solely by the extent of a functional impairment or loss of use of a body member. A disability to the body as a whole or an "industrial disability" is a loss of earning capacity resulting from the work injury. Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A physical impairment or restriction on work activity may or may not result in such a loss of earning capacity. The extent to which a work injury and a resulting medical condi tion has resulted in an industrial disability is determined from examination of several factors. These factors include the employee's medical condition prior to the injury, imme diately 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. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, l985). In the case sub judice, it was found that claimant suf fered a 70 percent loss of earning capacity as a result of the work injury. Based upon such a finding, claimant is entitled as a matter of law to 350 weeks of permanent par tial disability benefits under Iowa Code section 85.34(2)(u) which is 70 percent of 500 weeks, the maximum allowable for an injury to the body as a whole in that subsection. As claimant has established entitlement to permanent partial disability, claimant may be entitled to weekly bene fits for healing period under Iowa Code section 85.34 from the date of injury until claimant returns to work; until claimant is medically capable of returning to substantially similar work to the work he was performing at the time of the injury; or, until it is indicated that significant improvement from the injury is not anticipated, whichever occurs first. It was found in this case that claimant reached maximum healing on February 28, 1990, the date of his last appointment with Dr. Stevens. Healing period bene fits will be awarded accordingly. III. Pursuant to Iowa Code section 85.27, claimant is entitled to payment of reasonable medical expenses incurred for treatment of a work injury. However, claimant is enti tled to an order of reimbursement only if claimant has paid those expenses. Otherwise, claimant is entitled to only an order directing the responsible defendants to make such pay ments. See Krohn v. State, 420 N.W.2d 463 (Iowa 1988). In the case at bar, the parties stipulated that the requested expenses were causally connected to the heart con dition. With reference to the alleged lung condition, Page 10 treatment and diagnosis, it was found that the expenses are still causally connected to the work injury as they consti tuted the usual extensive diagnosis and testing and experi mental treatment for the potential lung disease as a part of the treatment program for breathlessness following a heart attack. No separate lung disease could be found from the evidence. Claimant is entitled to the costs of this action as set forth in the prehearing report. order 1. Defendants shall pay to claimant three hundred fifty (350) weeks of permanent partial disability benefits at the rate of three hundred seven and 90/l00 dollars ($307.90) per week from March 1, 1990. 2. Defendants shall pay to claimant healing period benefits from May 30, 1989 through February 28, 1990, at the rate of three hundred seven and 90/l00 dollars ($307.90) per week. 3. Defendants shall pay the medical expenses listed in the prehearing report totaling twelve thousand eight hundred thirty-seven and 24/l00 dollars ($12,837.24). Claimant shall be reimbursed for any of these expenses paid by him. Otherwise, defendants shall pay the provider directly along with any lawful late payment penalties imposed upon the account by the provider. 4. Defendants shall pay the accrued weekly benefits in a lump sum. 5. Defendants shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 6. Defendants shall pay the costs of this action as set forth in the prehearing report in the amount of eight hundred fifty-four and 70/l00 dollars ($854.70) pursuant to rule 343 IAC 4.33. 7. Defendants shall file activity reports on payment of this award as requested by this agency pursuant to rule 343 IAC 3.l. Signed and filed this ____ day of July, 1991. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Page 11 Copies To: Mr. R. Ronald Pogge Attorney at Law Terrace Center STE 111 2700 Grand Ave Des Moines IA 50312 Mr. Richard G. Book Attorney at Law 500 Liberty Bldg Des Moines IA 50309 5-1108.10 Filed July 25, 1991 LARRY P. WALSHIRE before the iowa industrial commissioner ____________________________________________________________ : GORDON HENDRICKSON, : : Claimant, : : vs. : : File No. 936566 SUPER VALU STORES, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INS. CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1108.10 Heart attack case, 70 percent industrial disability awarded from a nonfatal heart attack occurring while claimant was performing strenuous work loading a truck. Page 1 before the iowa industrial commissioner ____________________________________________________________ : CARL LUX, : : Claimant, : File No. 936575 : vs. : A R B I T R A T I O N : FDL FOODS, INC., : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ____________________________________________________________ statement of the case Claimant Carl Lux filed a petition in arbitration against defendant self-insured employer FDL Foods, Inc., upon allegations of a work injury to the back on August 12, 1989. He seeks benefits under the Iowa Workers' Compensation Act as a result. This cause came on for hearing in Dubuque, Iowa, on October 16, 1991. The record consists of claimant's testimony, claimant's exhibits 1 through 35 and defendant's exhibit A. issues The parties have stipulated that an employment relationship existed between claimant and FDL Foods, Inc., on August 12, 1989, to the appropriate rate of compensation and that defendant is entitled to certain credits under Iowa Code section 85.38(2). Issues presented for resolution include: 1. Whether claimant sustained an injury arising out of and in the course of his employment on August 12, 1989; 2. Whether there exists a causal relationship between the claimed injury and temporary or permanent disability; 3. The extent of temporary and permanent disability, if any; and, 4. The extent of claimant's entitlement to medical benefits. Defendant asserted an authorization defense to Mr. Lux's claim for medical benefits. This defense was ruled out of order at hearing because defendant cannot simultaneously deny liability on the claim and control the course of treatment. Barnhart v. MAQ, Inc., I Iowa Page 2 Industrial Commissioner Report 16 (1981). findings of fact The undersigned deputy industrial commissioner finds: Carl Lux, 34 years of age at hearing, is a high school graduate. After working some years following high school in a metal shop and as a machinist and welder for a large manufacturing concern, he worked for approximately four years with defendant, a meat packing business. For some months prior to the asserted injury date, claimant suffered free floating back pain that eventually migrated to and remained centered in the lumbar spine. On August 12, 1989, a Saturday, claimant engaged in a job that involved substantial twisting and handling of pork loins weighing perhaps something under 25 pounds each. While working at this job, claimant noticed a sensation of tightening in his back, which he described as a relatively common occurrence. He did not notice any pain. Claimant finished his shift at 5:00 p.m., still not suffering back pain. He then had dinner with his parents, still without pain. Next, he went fishing with a friend. After some 10 or 15 minutes, he began developing pain and increased tightness in the lower back. This was at approximately 8:00 p.m. Claimant continued fishing until approximately 8:30, after which he went to his friend's house, where he remained until driving home at approximately 11:00 p.m., by which time he found himself in much more severe discomfort. Claimant was eventually found to have sustained a moderately large herniated disc at L5-S1 on the left and underwent surgery described as laminectomy and discectomy on October 23, 1989. Fortunately, the surgery was successful and claimant eventually returned to the same job. However, he complains that he can no longer engage in certain activities and, although not assigned specific medical restrictions, feels there are some jobs at FDL Foods which he cannot do, and has not attempted to bid into as a result. Surgery was performed by Anthony Piasecki, M.D., a board-certified orthopaedic surgeon. Dr. Piasecki testified by deposition on October 5, 1990. On direct examination, Dr. Piasecki testified: Q. Do you have an opinion within a reasonable degree of medical probability as to whether or not this condition of impairment is consistent with being causally connected to the medical history that he gave to you as to being hurt on the job? A. Yes. Page 3 Q. What is that opinion? A. I think that his herniated disk in this matter could occur with lifting such as he does at his work. (Dr. Piasecki deposition, page 10, lines 7 through 16) On cross-examination, Dr. Piasecki indicated that sometimes pain can start off small and gradually become more severe as the reaction in injured tissues increases, and that this may occur with an injured back. He testified that, if claimant first started noticing pain at approximately 8:00, becoming progressively severe until 11:00, the doctor would suspect the injury occurred sometime at or shortly before 8:00. Further, he testified: Q. Bear with me here for a moment if you would while I look something up. Doctor, let me, let me give you a hypothetical set of facts and then I want to ask you your opinion based on that hypothetical set of facts. Assume the following for me, if you would. That Mr. Lux finished working at FDL on the date in which he claims he injured his back, approximately 5 or 5:30 in the evening, was not feeling any pain in his back, went home, had dinner and was not feeling any pain in his back. Loaded a 16 quart cooler with his bait and tackle into the back of his pickup truck and drove to Maquoketa, Iowa, to go fishing with a friend there. That he was fishing on, in the Maquoketa River and that approximately 8 o'clock he started noticing back pain that kept getting worse and worse such that by 11 o'clock he couldn't sit any more and he had to stand up and move around to relieve the pain. A. Uh-huh. Q. Now, based on that set of facts, do you have an opinion, based on a reasonable degree of medical probability, whether or not Mr. Lux injured his back sometime after he left FDL that day? A. Well, I think if he had absolutely no pain, then the chances are his pain developing later could have been from something else. Q. In any case, it would -- would that set of facts, if true, cast some doubt in your mind as to Page 4 whether he might have actually hurt himself at FDL? A. While it would cast some doubt, if he had a history as he related to me that he was doing the heavy lifting and twisting and felt that he did have the discomfort, some consideration would certainly have to be given to his work that he was doing, but I still couldn't rule out whether or not he injured it after work, no. Q. I take it there are all kinds of things that he could have done both at work and outside of work that might have caused this herniation? A. Yes. (Dr. Piasecki deposition, page 20, line 6 through page 21, line 22) conclusions of law There is no question in this record but that claimant sustained a herniated disc which eventually required surgery. Claimant developed tightness in his back, not an uncommon occurrence, before leaving work at 5:00 p.m., but first developed pain while fishing some three hours later. It is claimant's burden to establish an injury arising out of and in the course of employment. Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of" refer to the course or source of the injury. McClure v. Union County, 188 N.W.2d 283 (Iowa 1971). This requirement is satisfied by showing a causal relationship between the employment and the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986). 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). In this case, the expert testimony in essence is that claimant's herniated disc possibly occurred while he was at work and "could" occur with lifting such as claimant did at Page 5 work. On cross-examination, Dr. Piasecki indicated that the herniation likely occurred when pain developed, approximately 8:00 p.m. This was three hours after claimant left work. A fair reading of this record, and in particular the opinions of Dr. Piasecki, leaves this observer unconvinced that claimant has met his burden of proof in establishing either that his herniated disc occurred while at work, or was caused thereby. Claimant has not established an injury arising out of and in the course of employment. Therefore, the question must be resolved in favor of defendant. Other issues are thereby rendered moot. order THEREFORE, IT IS ORDERED: Claimant shall take nothing from this proceeding. Page 6 The costs of this action are assessed to defendant pursuant to rule 343 IAC 4.33. 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. James M. Heckmann Attorney at Law One CyCare Plaza Suite 216 Dubuque, Iowa 52001 1108.50; 1402.30 Filed October 24, 1991 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : CARL LUX, : : Claimant, : File No. 936575 : vs. : A R B I T R A T I O N : FDL FOODS, INC., : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ____________________________________________________________ 1108.50; 1402.30 Claimant developed tightness in his back--as he often did--while at work, but no pain. Pain developed three hours later while he was fishing. Medical opinion showed it was possible that disc herniation occurred at work, but not that it was probable. It was held that claimant failed to meet his burden of proof on the issue. before the iowa industrial commissioner ____________________________________________________________ _____ : MICHAEL PEERY, : : Claimant, : File No. 936578 : vs. : A P P E A L : TRUCKERS EXPRESS, INC., : D E C I S I O N : Employer, : Defendant. : ____________________________________________________________ _____ The record has been reviewed de novo on appeal. The ruling on motion for summary judgment filed October 15, 1990 is affirmed and is adopted as the final agency action in this case. Claimant shall pay the costs of this action. Signed and filed this ____ day of September, 1991. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Dennis L. Hanssen Attorney at Law 2700 Grand Ave., Ste 111 Des Moines, Iowa 50312 Mr. Thomas Henderson Mr. Kent T. Kelsey Attorneys at Law 1300 First Interstate Bank Bldg. Des Moines, Iowa 50309 9998 Filed September 9, 1991 Byron K. Orton DRR before the iowa industrial commissioner ____________________________________________________________ _____ : MICHAEL PEERY, : : Claimant, : File No. 936578 : vs. : A P P E A L : TRUCKERS EXPRESS, INC., : D E C I S I O N : Employer, : Defendant. : ____________________________________________________________ _____ 9998 Summary affirmance of deputy's ruling filed October 15, 1990. 5-1803; 5-1806; 5-3102 Filed February 25, 1992 ELIZABETH A. NELSON before the iowa industrial commissioner ____________________________________________________________ : MICHAEL A. TREANOR, : : Claimant, : : vs. : : File No. 926687 CURRIES MANUFACTURING : COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : WAUSAU INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803 Claimant, a 39 year old laborer with a 20 percent impairment to his neck and lifting restrictions of no more than 50 pounds. Claimant has attempted to find work and has been unable to locate anything. Claimant's employer did not reemploy claimant after he was released to return to work. Claimant was awarded a 45 percent industrial disability award. 5-1806 Even though claimant had prior injury to his back, no apportionment was made following Denekas v. Aalfs Manufacturing Co., File Nos. 794353 and 823077, Slip op. (Iowa Ind. Comm'r App. December 31, 1991) because the second injury was to claimant's shoulder and neck rather than claimant's back. 5-3102 Claimant did not make a showing that he was enrolled in a vocational rehabilitation program at the time of the hearing. Consequently, benefits were denied. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ CHRISTA K. CHRISTENSEN, Claimant, File No. 936799 vs. A P P E A L SNAP-ON TOOLS CORPORATION, D E C I S I O N Employer, Self-Insured, Defendant. _________________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed July 14, 1993 is affirmed and is adopted as the final agency action in this case with the following additional analysis: Defendant concedes on appeal that claimant's November 16, 1989 injury includes both the crush injury to the right forearm as well as right lateral epicondylitis. Claimant's entitlement to medical benefits extends to both conditions. Claimant's argument on appeal that she is entitled to penalty on unpaid interest, and claimant's appeal argument that this agency should calculate interest due on each payment of benefits, ahve both been addressed in Weishaar v. Snap-On Tools, 506 N.W.2d 786 (Iowa App. 1993). Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of April, 1994. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Mark S. Soldat Attorney at Law 714 E. State St. Algona, Iowa 50511 Mr. Paul C. Thune Attorney at Law P.O. Box 9130 Des Moines, Iowa 50306 5-1802, 5-1803, 4000.2, 3800 Filed April 21, 1994 BYRON K. ORTON BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ CHRISTA K. CHRISTENSEN, Claimant, File No. 936799 vs. A P P E A L SNAP-ON TOOLS CORPORATION, D E C I S I O N Employer, Self-Insured, Defendant. ____________________________________________________________ 5-1802 Claimant is entitled to healing period benefits from December 4 through December 8, 1989 and for April 18 and April 24, 1990 (1.3 hours on each of these two dates). 1803 Two independent medical examiners gave claimant a 10 percent impairment rating to the arm. Lay testimony was presented in an attempt to show that claimant's loss of use of her right arm exceeded the physician's assessment. This was rejected and the doctors' ratings were accepted as more consistent with evidence presented. 4000.2 Awarding a penalty is not appropriate when there is a legitimate issue on causal connection even if benefits are subsequently awarded. Peterman v. American Freight System, File Number 747931; Austin v. Nealy Mfg., File Number 848293 (1988); Cook v. Iowa Meat Processing, File Numbers 724392, 727578 (1985). 3800 In Farmer's Elevator Co., Kingsley v. Manning, 286 N.W.2d 174 (Iowa 1979), at 180 the Iowa Supreme Court Said: Section 85.30 expresses legislative intent that interest on unpaid compensation be computed from the date each payment comes due, starting with the eleventh day after the injury ... Interest is therefore payable on such installment from that due date, and similarly with the following weekly payments. Interest is computed according to the longstanding rule that partial payments are applied first to accrued interest and the remainder to reduce the permanent partial disability award. McNeal v. Iowa Department of Transportation, Order Nunc Pro Tunc, May 31, 1990. Also see Clausen v. Carmar Farms, Ltd., Vol. 1, No. 3 State of Iowa Industrial Commissioner Decisions 540 (1985). The parties are directed to calculate interest on any weekly benefits not paid when due based on Iowa Code section 85.30 and the above cited authority. If a dispute exists between the parties on how the interest should be calculated, the parties can then bring the question before this agency for resolution. Meyers v. Holiday Express Corporation, File Nos. 881251, 913213 & 913214 (Appeal Decn., March 24, 1992). BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ CHRISTA K. CHRISTENSEN, Claimant, vs. File No. 936799 SNAP-ON TOOLS CORPORATION, A R B I T R A T I O N Employer, Self-Insured D E C I S I O N Defendant. ___________________________________________________________ This is a proceeding in arbitration brought by Christa K. Christensen, claimant, against Snap-On Tools Corporation, self-insured employer, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained on November 16, 1989. This matter came on for hearing before the undersigned deputy industrial commissioner on June 18, 1993, in Fort Dodge, Iowa. The record was considered fully submitted at the close of the hearing. The claimant was present and testified. Also present and testifying were Dorothy Krug, Marissa Montag, Mary Prentice, Al Christensen, Shirley Hoveland and Lee Gunderson. The documentary evidence identified in the record consists of claimant's exhibits A - D. ISSUES Pursuant to the prehearing report and order dated June 18, 1993, the parties have presented the following issues for resolution: 1. Whether claimant is entitled to additional healing period benefits with interest; 2. Whether claimant is entitled to permanent partial disability benefits and, if so, the extent thereof; 3. The commencement date for permanent partial disability benefits, if any are awarded; 4. Whether claimant is entitled to penalty benefits pursuant to Iowa Code section 85.13; and 5. Claimant's entitlement to interest on compensation benefits pursuant to Iowa Code section 85.30. Page 2 FINDINGS OF FACT The undersigned has carefully considered all the testimony given at the hearing, arguments made, evidence contained in the exhibits herein, and makes the following findings: Claimant was born on December 25, 1952 and is a high school graduate. Claimant commenced working for employer on June 19, 1989. She was laid off in October 1990. The pertinent medical evidence of record reveals that claimant presented to Kenton K. Moss, M.D., company physician, on August 14, 1989, with complaints of pain in her right forearm extending from the elbow to the wrist which she felt that resulted from her job performance. Dr. Moss diagnosed lateral epicondylitis and prescribed a wrist splint (Ex. A., p. 6-8). Claimant reported to the company nurse on November 16, 1989, after injuring her right arm in the performance of her job. On November 21, 1989, she saw Dr. Moss. His examination revealed a large area of ecchymosis over the right forearm. Heat was applied and aspirin given for discomfort. Dr. Moss felt that claimant was able to resume her regular duties (Ex. A, pp. 9-11). Claimant's right arm symptoms improved during a four-day layoff over Thanksgiving. However, when she resumed work on the stripping line she experienced increased swelling and discomfort. She reported to Dr. Moss on December 9, 1989. On examination he observed some fluctuance of the right forearm with ecchymosis and tenderness. He recommended one week of left handed work and commencement of physical therapy. On December 8, 1989, she reported an improvement in her symptoms but still had some ecchymosis and swelling (Ex. A, pp. 14-22). On April 18, 1990, claimant saw Bert Bottjen, M.D., with complaints of chronic right forearm pain. On examination, she was noted to have excellent and complete range of motion and no tenderness over the epicondyles. Dr. Bottjen returned claimant to full duty. X-rays were taken of her right forearm on April 19, 1990. They revealed minimal periosteal elevation of the distal radius with remaining normal findings (Ex. A, pp. 25-27). On April 24, 1990, claimant saw Robert E. McCoy, M.D., for evaluation. After reviewing the claimant's medical history and noting her complaints, Dr. McCoy conducted a physical examination. He saw some indication of lateral epicondylitis and some residual soreness from her crushing injury. He found no significant motor weakness or dysfunction and felt that her discomfort would gradually subside. He saw no evidence of any problem requiring active medical treatment (Ex. A, p. 28). On September 5, 1990, claimant presented to the nurse's station at work with complaints of right arm pain. The nurse measured her arm and it did not appear swollen. An Page 3 appointment was made with Dr. McCoy (Ex. A, pp. 30-34). Claimant saw Dr. McCoy on September 11, 1990. She presented with complaints of pain in her forearm from the elbow to the wrist. On examination, she demonstrated pain in the right lateral epicondylar area. Dr. McCoy administered a steroid injection and some Tylenol #3 for pain. He recommended avoidance of repetitious use of the right upper extremity (Ex. A, pp. 35-39). On September 18, 1990, claimant met with Shirley Hoveland, personnel director, regarding job placement within the company. Claimant related that she was not having any trouble right now working in press brakes (Ex. A, p. 40). The record indicates that on October 15, 1990, claimant was placed on layoff status at Snap-On Tools due to a decrease in production requirements (Ex. B, p. 34). On December 14, 1990, claimant saw Kenneth B. Washburn, M.D., for evaluation. On examination, deep tendon reflexes were equal and active in the upper extremity with no evidence of muscular wasting or decreased muscular strength. EMG and nerve conductive studies were performed and revealed no evidence of any nerve lesion in the right upper extremity. He concluded that claimant suffered from a chronic right tennis elbow. He reassured claimant that her problems were relatively mild (Ex. A, pp. 43-44). Claimant testified that she was unemployed between October 15, 1990 and April of 1991. In April 1991, she commenced working for Express Services as a cleanup person at a K-Mart construction site in Algona, Iowa. This job lasted until October 1991. In May 1991, claimant obtained the services of an attorney. On August 14, 1991, her attorney arranged for an independent medical examination with Thomas F. DeBartolo, Jr., M.D.. After reviewing the claimant's medical history and noting her complaints, Dr. DeBartolo conducted a physical examination. He felt that claimant had a crushing injury to the right proximal forearm with evidence of persistent soft tissue injury. He indicted that claimant needs a functional capacity test to determine strength and endurance (Ex. A, pp. 46-48). Claimant underwent a functional capacity evaluation at St. Joseph Mercy Hospital Upper Extremity Clinic in Mason City, Iowa on September 16, 1991. Based upon the results of the evaluation, it was recommended that she avoid jobs which require highly forceful and repetitive wrist and hand work. Specifically, she should avoid forceful and repetitive supination and wrist extension on the right. Her lifting ability was assessed in the 30-40 lb. range occasionally, 15-20 lbs. frequently and 7-10 lbs. continuously (Ex. A, pp. 49-53). On November 7, 1991, Dr. DeBartolo reported that claimant sustained a 10 percent loss of her upper extremity secondary to a crushing injury (3 percent secondary to the Page 4 sensory nerve involvement, 2 percent loss of dorsiflextion of the wrist and 5 percent due to the loss of supinatory strength) (Ex. A, p. 54). Claimant was then referred by defendant to L. T. Donovan, D.O., for evaluation on January 3, 1992. After reviewing claimant's medical history and noting her complaints (right forearm pain and weakness), Dr. Donovan conducted a comprehensive examination. Dr. Donovan's impression included: 1) right lateral epicondylitis; 2) crush injury to the right forearm with residual soft tissue indentation; and 3) hyper-reflexia (Ex. A, p. 60). Based upon the aforementioned factors, and utilizing the AMA Guidelines, Dr. Donovan gave claimant a 10 percent upper extremity impairment rating (Ex. A, pp. 55-61). CONCLUSIONS OF LAW The parties have stipulated that claimant sustained a right arm injury on November 16, 1989. The parties have also stipulated that claimant is entitled to unpaid healing period benefits from December 4 through December 8, 1989 and April 18, 1990 and April 24, 1990 (1.3 hours on each of these dates). The parties stipulate that claimant's rate of compensation is $297.66 (she was married and had five children on November 16, 1989). The parties also stipulate that claimant's disability is a scheduled member disability to the arm. They agree that claimant has sustained permanent disability but disagree as to the commencement date and extent of disability. Therefore, the first issue to be determined is the commencement date for permanent partial disability benefits. Section 85.34(1) provides that healing period benefits are payable to an injured worker who has suffered permanent partial disability until (1) the worker has returned to work; (2) the worker is medically capable of returning to substantially similar employment; or (3) the worker has achieved maximum medical recovery. The healing period can be considered the period during which there is a reasonable expectation of improvement of the disabling condition. See Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa Ct. App. 1981). Healing period benefits can be interrupted or intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986). The evidence in the record indicates that claimant returned to work on Sunday December 10, 1989 (Ex. A, p. 17). Iowa Code section 85.34 contemplates the ending of healing period with the occurrence of any one of three events. One event which signifies the end of healing period is a return to work. Since claimant returned to work on December 10, 1989, her entitlement to healing period benefits ended December 9, 1989 and the commencement date for permanent partial disability benefits is December 10, 1989. The next issue to be determined is the extent of Page 5 claimant's permanent disability. The right of an employee to receive compensation for injuries sustained is statutory. The statute conferring this right can also fix the amount of compensation payable for different specific injuries. The employee is not entitled to compensation except as the statute provides. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). As stipulated, claimant's injury is to a scheduled member. Compensation for permanent partial disability begins at termination of the healing period. Section 85.34(2). Permanent partial disabilities are classified as either scheduled or unscheduled. A specific scheduled disability is evaluated by the functional method; the industrial method is used to evaluate an unscheduled disability. Simbro v. Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v. Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960). Claimant has received permanent impairment ratings from Dr. DeBartolo and Dr. Donovan. Both doctors performed independent medical examinations and neither doctor has treated nor followed claimant for her injury. Dr. Moss, her treating physician, gave her no rating and on November 21, 1989, stated that she was capable of resuming regular duties. On April 18, 1990, Dr. Bottjen stated that claimant had excellent range of motion in her right extremity and was capable of performing full duty. On April 24, 1990, Dr. McCoy reported that claimant's discomfort and residual soreness from her crushing injury would eventually subside. He released her to normal duties without restrictions. Claimant and four lay witnesses testified that she has a 50 percent loss of use of her right arm. Their testimony was based on their observance of claimant's activities. Evidence considered in assessing the loss of use of a particular scheduled member may entail more than a medical rating pursuant to standardized guides for evaluating permanent impairment. A claimant's testimony and demonstration of difficulties incurred in using the injured member and medical evidence regarding general loss of use may be considered in determining the actual loss of use compensable. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936); Langrehr v. Warren Packaging Corp., Thirty-fourth Biennial Report of the Industrial Commissioner, 179 (January 22, 1980). Consideration is not given to what effect the scheduled loss has on claimant's earning capacity. The scheduled loss system created by the legislature is presumed to include compensation for reduced capacity to labor and to earn. Schell v. Central Engineering Company, 232 Iowa 421 4 N.W.2d 399 (1942). See Roberts v. Pizza Hut of Washington, Inc., II Iowa Industrial Commissioner Report, 317, 320 (1982); Sheflett v. Clearfield Veterinary Clinic, II Iowa Industrial Commissioner Report, 334, 347 (1982); and Webster v. John Deere Component Works, II Iowa Industrial Commissioner Reports, 435, 450 (1982). Division of Industrial Services Rule 343-2.4(85) Page 6 provides in pertinent part as follows: The Guides to the Evaluation of Permanent Impairment published by the American Medical Association are adopted as a guide for determining permanent partial disabilities under Iowa Code section 85.34(2) "a" - "r". The extent of loss or percentage of permanent impairment may be determined by use of this guide and payment of weekly compensation for permanent partial scheduled injuries made accordingly ... Nothing in this rule shall be construed to prevent the presentations of other medical opinion or guides for the purpose of establishing that the degree of permanent impairment to which the claimant would be entitled would be more or less than the entitlement indicated in the AMA guide. Chapter 17A. 14(5) of the Iowa Administrative Procedure Act states: " The agency's experience, technical competence, and specialized knowledge may be utilized in the evaluation of the evidence." Claimant's testimony and the lay testimony presented to show that claimant's loss of use of her right arm exceeds the assessment made by Dr. DeBartolo and Dr. Donovan is rejected and the physicians' rating is accepted as more consistent with the documentary evidence presented. Myers v. Holiday Express Corporation, File Nos. 881251, 913213 and 913214, Appeal Decn. filed March 24, 1992. In this regard, it is noted that claimant testified that she has been employed at Winnebago Industries since February 10, 1992, assembling doors and running a screw gun. She stated that she uses her arms and hands on a repetitive basis during an eight hour work day. She operates under no particular work restrictions. Claimant's attempt to enhance her disability is contraindicated by her work activity. Her assertations regarding significant loss of use of her right arm appear out of proportion to the clinical and laboratory findings in the record. Accordingly, the undersigned concludes that claimant has not demonstrated an entitlement to more than 10 percent permanent partial disability benefits to her right arm. This entitles her to 25 weeks of permanent partial disability benefits (10 x 250). The next issue to be determined is whether claimant is entitled to penalty benefits under Iowa Code section 86.13. This section provides in pertinent part that: If a delay in commencement or termination of benefits occurs without reasonable or probable cause or excuse, the industrial commissioner shall award benefits in addition to those benefits payable under this chapter, or chapters 85, 85A, or 85B, up to fifty percent of the amount of benefits that were unreasonably delayed or denied. Claimant alleges that unreasonable delays occurred in processing weekly claims and that defendant's failure to pay voluntary benefits to the extent she believes appropriate Page 7 was unreasonable. In determining entitlement to penalty benefits, the appropriate standard is whether defendant's unreasonably withheld or terminated benefits. Curtis v. Swift Independent Packing, IV Iowa Industrial Commissioner Report 88, 93 (1984). Awarding a penalty is not appropriate when there is a legitimate issue on causal connection even if benefits are subsequently awarded. Peterman v. American Freight System, File Number 747931 (App. Dec. 1988); Austin v. Nealy Mfg., File Number 848293 (1988); Cook v. Iowa Meat Processing, File Numbers 724392, 727578 (1985). Likewise, and in more recent times it has been determined that penalty benefits are not due where defendants assert a claim that is fairly debatable. Seydel v. University of Iowa Physical Plant, File Number 818849 (App. Dec. 1989); Stanley v. Wilson Foods, File Number 753405 (App. Dec. 1990); Heidt v. Lynn Photo Company, File Number 916737 (App. Dec. 1992); Place v. Giest Construction Company, File Numbers 931185, 891539 (1992); Shelton v. McDonalds Hamburgers, File Number 976855 (1992); Lloyd v. Western Home, File Number 890207 (App. Dec. 1991). The fairly debatable standard which was announced in the tort case of Dolan v. Aid Insurance Company, 431 N.W.2d 790 (Iowa 1989) appears to have been adopted for workers' compensation cases in Dodd v. Oscar Mayer Foods Corp., File Number 724378 (1989); Throgmartin v. Precision Pulley Inc., File Number 885869 (On Appeal) (1990); Collins v. Hawkeye Moving & Storage, File Number 873651 (1990). Where the employer failed to pay permanent partial disability in accordance with the rating of its own chosen physician (the lowest rating in the record), the failure to pay was determined to be unreasonable and a 50 percent penalty was assessed. Stanley v. Wilson Foods Corp., File Number 753405 (1990). Regarding healing period benefits, on January 23, 1990, Snap-On did pay for one day of temporary disability compensation (Cl. Ex. B, p. 8). Yet, after discovering in September, 1990, that section 85.34(1), rather than section 85.32, Code of Iowa, was applicable, it never paid for the preceding days of healing period now stipulated (id., prehearing report, p. 2). It did not pay this compensation, plus the interest "added' to it, (section 85.30, Code of Iowa), despite demands by claimant on November 13 and December 12, 1991, and January 17, 1992, that it do so (Cl. Ex. C, pp. 4, 6 & 9). It also never has explained why it did not pay the compensation to which it now stipulates. Therefore, claimant is entitled to 50 percent penalty benefits on unpaid healing period benefits from December 4 through December 8, 1989 and for 1.3 hours of unpaid benefits on April 18 and April 24, 1990. The medical evidence reveals that claimant saw Dr. McCoy on September 11, 1990. At that time, he injected the Page 8 site of the lateral epicondyles with a steroid and gave her a return-to-work slip suggesting that she use only her left hand at work for the next week. He stated that her work capabilities will depend on the outcome of the injection. He stated: However, in general she would do well to avoid activities in which she is doing lifting with her right hand in a position of pronation and in which she is forcefully or repetitiously supinating the right forearm. It is hoped that with the further passage of time she will make further improvement permitting the elimination of the restrictions mentioned above. (Ex. A, p. 39). On September 18, 1990, Shirley Hoveland met with claimant regarding Dr. McCoy's restrictions and claimant's work in press brakes. Ms. Hoveland noted: ... Christa said that she's not having any trouble right now. She said she was under the impression that her arm will get better and this won't likely be a permanent condition. She says the motion like "pulling clothes up out of the washer" is what bothers her the most. ... We discussed that there's actually more rotation in packing than in brakes, but Christa felt brakes was better for her. She said the only "bad" job was when she might have to use a suction cup to pickup large pieces, but apparently she hasn't had to do that a lot. (Ex. A, pp. 40-41) After being laid off on October 15, 1990, claimant sought evaluation from Dr. Washburn. EMG and nerve conduction studies were conducted and he found no evidence of any nerve lesion in the right upper extremity and felt that her problem was primarily a chronic right tennis elbow. He reassured her that these problems were relatively mild (Ex. A, pp. 44-44). Claimant obtained the services of an attorney in May 1991. She was referred to Dr. DeBartolo for evaluation. Dr. DeBartolo issued a permanent impairment rating which was sent to defendant at the same time she filed her claim for workers' compensation benefits. A letter dated November 13, 1991, from claimant's attorney, requests that defendant pay to claimant the functional impairment rating made by Dr. DeBartolo (Ex. C, p. 4). Defendant testified that payment of the 10 percent of the functional impairment rating in the amount of $8,575.83 was made to claimant on February 14, 1992 (Ex. C, pp. 10-11). Based on the total evidence in this case, the undersigned finds that awarding a penalty in this case is not appropriate because, at least prior to DeBartolo's Page 9 evaluation on November 7, 1991, there was a legitimate issue as to permanency. Claimant's treating physician had previously released her to return to work and made no permanency assessment. Once defendant became aware of Dr. DeBartolo's assessment and a request was made for payment of permanency, payment was made within one or two months of the request. The length of time involved does not warrant imposition of a penalty on late payment of permanent disability benefits. Curtis v. Swift Independent Packing, IV Iowa Industrial Commissioner Report 88, 93 (1984). The final issue to be addressed is claimant's entitlement to interest pursuant to Iowa Code section 85.30. In Farmer's Elevator Co., KIngsley v. Manning, 286 N.W.2d 174 (Iowa 1979), at 180 the Iowa Supreme Court Said: Section 85.30 expresses legislative intent that interest on unpaid compensation be computed from the date each payment comes due, starting with the eleventh day after the injury ... Interest is therefore payable on such installment from that due date, and similarly with the following weekly payments. Interest is computed according to the longstanding rule that partial payments are applied first to accrued interest and the remainder to reduce the permanent partial disability award. McNeal v. Iowa Department of Transportation, Order Nunc Pro Tunc, May 31, 1990. Also see Clausen v. Carmar Farms, Ltd., Vol. 1, No. 3 State of Iowa Industrial Commissioner Decisions 540 (1985). The parties are directed to calculate interest on any weekly benefits not paid when due based on Iowa Code section 85.30 and the above cited authority. If a dispute exists between the parties on how the interest should be calculated, the parties can then bring the question before this agency for resolution. Meyers v. Holiday Express Corporation, File Nos. 881251, 913213 & 913214 (Appeal Decn., March 24, 1992). Page 10 ORDER THEREFORE, IT IS ORDERED: That defendant pay to claimant healing period benefits from December 4 through December 8, 1989 and April 18, 1990 and April 24, 1990 (one point three (1.3) hours on each of these two dates) at the rate of two hundred ninety-seven and 66/100 dollars ($297.66) per week. That defendant pay to claimant twenty-five (25) weeks of permanent partial disability benefits at the rate of two hundred ninety-seven and 66/100 dollars ($297.66) per week commencing December 10, 1989. Claimant is entitled to 50 percent (50%) penalty benefits on unpaid healing period benefits from December 4, 1989 through December 8, 1989 and April 18, 1990 and April 24, 1990, one point three (1.3) hours on each of these two dates). That defendant receive credit for any benefits previously paid. That defendant pay accrued amounts in a lump sum. That defendant pay interest pursuant to Iowa Code section 85.30. That defendant pay costs pursuant to rule 343 IAC 4.33. That defendant file claim activity reports as required by the agency pursuant to rule 343 IAC 3.1(2). Signed and filed this ____ day of July, 1993. ______________________________ JEAN M. INGRASSIA DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Mark S. Soldat Attorney at Law 714 East State Street Algona, IA 50511 Mr. Paul C. Thune Attorney at Law 405 6th Ave., Ste 700 Des Moines, IA 50309 5-1802, 5-1803, 4000.2, 3800 Filed July 14, 1993 Jean M. Ingrassia BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ CHRISTA K. CHRISTENSEN, Claimant, vs. File No. 936799 SNAP-ON TOOLS CORPORATION, A R B I T R A T I O N Employer, Self-Insured D E C I S I O N Defendant. ___________________________________________________________ 5-1802 Claimant is entitled to healing period benefits from December 4 through December 8, 1989 and for April 18 and April 24, 1990 (1.3 hours on each of these two dates). 1803 Two independent medical examiners gave claimant a 10 percent impairment rating to the arm. Lay testimony was presented in an attempt to show that claimant's loss of use of her right arm exceeded the physician's assessment. This was rejected and the doctors' ratings were accepted as more consistent with evidence presented. 4000.2 Awarding a penalty is not appropriate when there is a legitimate issue on causal connection even if benefits are subsequently awarded. Peterman v. American Freight System, File Number 747931; Austin v. Nealy Mfg., File Number 848293 (1988); Cook v. Iowa Meat Processing, File Numbers 724392, 727578 (1985). 3800 In Farmer's Elevator Co., Kingsley v. Manning, 286 N.W.2d 174 (Iowa 1979), at 180 the Iowa Supreme Court Said: Section 85.30 expresses legislative intent that interest on unpaid compensation be computed from the date each payment comes due, starting with the eleventh day after the injury ... Interest is therefore payable on such installment from that due date, and similarly with the following weekly payments. Interest is computed according to the longstanding rule that partial payments are applied first to accrued interest Page 2 and the remainder to reduce the permanent partial disability award. McNeal v. Iowa Department of Transportation, Order Nunc Pro Tunc, May 31, 1990. Also see Clausen v. Carmar Farms, Ltd., Vol. 1, No. 3 State of Iowa Industrial Commissioner Decisions 540 (1985). The parties are directed to calculate interest on any weekly benefits not paid when due based on Iowa Code section 85.30 and the above cited authority. If a dispute exists between the parties on how the interest should be calculated, the parties can then bring the question before this agency for resolution. Meyers v. Holiday Express Corporation, File Nos. 881251, 913213 & 913214 (Appeal Decn., March 24, 1992). Page 1 before the iowa industrial commissioner ____________________________________________________________ : PHILLIP HALVERSON, : : Claimant, : : vs. : : File No. 936910 NPI SECURITY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CIGNA INSURANCE, : fs : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Phillip Halverson against his former employer NPI Security and its insurance carrier Cigna Insurance Companies based upon a stipulated injury of November 5, 1989. Claimant seeks additional compensation for permanent partial disability. The primary issues in the case are whether any of the disability which currently afflicts the claimant was proximately caused by the November 5, 1989 injury and the extent of permanent disability caused by that injury. The case was heard at Des Moines, Iowa, on May 29, 1992. The record consists of testimony from Phillip Halverson, Leona Martin, Jerry McFall, Judith Daley, Mark Kirchner, and Leigh Ann Dillei. The record also contains jointly offered exhibits 1 through 73. findings of fact Having considered all of the evidence presented, including the appearance and demeanor of the witnesses, it is found that Phillip Halverson has failed to establish that he is a credible witness. The incident that occurred on November 5, 1989, as described by Halverson, is not the type of event which would normally be expected to produce a serious injury. He drove a car off the road. It likely became airborne from hitting a driveway and bounced to a stop. The car was not damanged. Halverson was treated and released at the emergency room, despite the fact that he had been brought there by ambulance on a backboard. He was prescribed medication but did not fill the prescription. Three days later, when seen for a follow-up examination, he was prescribed physical therapy Page 2 but did not follow through with the physical therapy. The fact that he did not follow through is strong evidence that he was feeling better and felt that he did not need any treatment. After apparently recovering from the November 5, 1989 incident, Halverson went to his employer and requested that he not be assigned a job which involved driving. His reasons for not wanting to drive were somewhat unclear. When told by his employer, Mark Kirchner, that fewer hours of work would be available, Halverson elected to resign altogether rather than work reduced hours. He apparently had been working 50 or 60 hours per week prior to the injury and felt he could not earn enough if only working in the range of 40 hours per week. There is no explanation in the record regarding how he expected to support himself and his young daughter if he were not working at all. On November 30, 1989, Halverson returned to the Mercy Hospital Emergency Department with complaints of increased back pain. The history notes that he reported that he was injured on November 5, 1989, received relief in two weeks and did not go to physical therapy because his back felt better. He reported that the back pain came on while he was walking for approximately 30 minutes on Thanksgiving while hunting. It is noted that the straight leg raising test was negative, sensation and muscle strength normal and no neurological deficit was identified. A lumbar strain was diagnosed and claimant was referred to an orthopedic surgeon (exhibit 7). Claimant was seen by Kirk Green, D.O. More physical therapy was prescribed. On January 25, 1990, a CT scan showed disc protrusion at the L5-S1 level of claimant's spine (ex. 13). In the report dated March 23, 1990, Kirk Green, D.O. reported to Halverson's attorney that it was his opinion that Halverson's discomfort was consistent with the injuries he sustained in the vehicle accident on November 5, 1989, and that exacerbation of discomfort from simple activities was common in a person with a low back strain (ex. 21). Halverson's care was next transferred to Kevin F. Smith, M.D. Dr. Smith also diagnosed a low back strain (ex. 22). Conservative treatment was not successful and on June 20, 1990, an MRI test was conducted which showed a large, broad based, central L5-S1 herniated disc with compression of the thecal sac and displacement of the S1 nerve roots. A smaller herniated disc was seen at the L4-5 level (ex. 30). During the month of July 1990, Halverson was hospitalized for depression and was also involved in an automobile accident which occurred while he was intoxicated (ex. 31). On or about August 26, 1990, Halverson sought medical treatment stating that he had experienced a major increase in his back pain while bowling (ex. 32). After further diagnostic tests were conducted, Halverson underwent L5-S1 hemilaminectomy and disc excision surgery (ex. 33). Through the assistance of the vocational rehabilitation Page 3 division, Halverson has enrolled at the Des Moines Area Community College. He typically carried a class load of two classes. He worked at the campus day-care center. During 1991 he obtained employment as the manager of an apartment building. He received free rent and some actual pay for his services. This occurred at the same time as he was receiving his regular workers' compensation benefits. Halverson embezzled rent money he collected from some of the tenants. Again, it is difficult to understand how Halverson could have been short of money when he was receiving his workers' compensation benefits, receiving earnings for being the manager and paying no rent for housing. At hearing claimant stated that his back condition is as bad as it has ever been. He indicated that immediately following recuperation from the surgery a great deal of the prior pain had been eliminated, but it later returned. A few weeks prior to the hearing, Halverson reported experiencing the onset of severe pain while standing in the cafeteria line at the Des Moines Area Community College. Recent diagnostic tests have not shown a clear recurrence of his herniated disc problem. His treating physicians have declined to recommend further surgery. Halverson has been evaluated by orthopedic surgeon Daniel McGuire, M.D. Dr. McGuire is of the opinion that whatever happened on November 5, 1989, did not cause the herniated disc for which surgery was performed of any of the disability which currently afflicts Halverson (ex. 73, pages 12-18, 107-109). It is found that the assessment made by Dr. McGuire is correct in this case. His opinions are the only ones which are well discussed and well explained in the record. It is recognized that the terminology "consistent with" from a treating physician is equivalent to the "professional opinion" of an examining physician for purposes of burden of proof. The difference in choice of wording is of no significance whatsoever. What is significant, however, is that Dr. McGuire has had the advantage of reviewing the entire case through hindsight. Further, all the physicians who saw claimant prior to the time he was seen by McGuire relied upon claimant's stated complaints and symptoms as though they were true. Such is not necessarily the situation. It is therefore found that Phillip Halverson has failed to introduce evidence in this case which shows it to be more likely than not that his L5-S1 herniated disc and any residual permanent disability resulted in any substantial part from the events which occurred on November 5, 1989, while he was working as a patrolman for NPI Security. It is found that the only injury Halverson sustained on November 5, 1989, was a lumbosacral strain which resolved no later than November 23, the day prior to Thanksgiving in 1989. Page 4 conclusions of law The party who would suffer loss if an issue were not established has the burden of proving that issue by a preponderance of the evidence. Iowa R. of App. P. 14(f). 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 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (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). The trauma which has been described in this case is not the type of thing which would be expected to cause a serious injury. While it is certainly possible that nearly any type of trauma can cause a serious injury, the likelihood that what was described as having occurred on November 5, 1989 caused a serious injury is relatively small. The further likelihood that a person with a substantial injury would decline medically recommended noninvasive treatment, such as physical therapy, is again relatively small. In order to grant an award in this case, it would be necessary to rely upon Halverson's testimony, including his recitation of events that have occurred, his denial of intervening traumas, his description of his symptoms and other subjective matters which are not capable of independent corroboration. Halverson's credibility has not been established in this case. To the contrary, there are a number of indicators that he lacks credibility. The evidence in this case is sufficient to prove, by a preponderance of the evidence, that the stipulated injury was a lumbosacral strain or sprain of some type. The evidence is not sufficiently strong to show, by a preponderance of the evidence, that the original injury continued beyond November 23, 1989, that it produced a herniated lumbar disc, that it produced the medical necessity for the surgery which was performed, or that it produced any of the residual disability which currently afflicts Phillip Halverson. It is therefore concluded that claimant has proven an Page 5 entitlement to 2 5/7 weeks of compensation for temporary total disability payable commencing November 5, 1989. As shown in the prehearing report, he has been paid far in excess of that amount through voluntary payments. He is therefore not entitled to any additional recovery. order IT IS THEREFORE ORDERED that claimant take nothing from this proceeding. It is further ordered that the costs of this proceeding are assessed against the claimant. It is further ordered that defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of December, 1992. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Robert Pratt Mr. Max Schott Attorney at Law 6959 University Ave Des Moines, Iowa 50311 Mr. Charles Cutler Ms. Coreen Bezdicek Attorneys at Law 729 Insurance Exchange Bldg Des Moines, Iowa 50309 Page 1 51402.30 Filed December 9, 1992 Michael G. Trier before the iowa industrial commissioner ____________________________________________________________ : PHILLIP HALVERSON, : : Claimant, : : vs. : : File No. 936910 NPI SECURITY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CIGNA INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 51402.30 Claimant was shown to have a definite lack of credibility. It was held that his injury was limited to a short period of temporary total disability. Page 1 before the iowa industrial commissioner ____________________________________________________________ : MARK W. CLARK, : : Claimant, : : vs. : : File No. 936973 MEDIA PRINTING, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : AETNA CASUALTY & SURETY : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in arbitration brought by Mark W. Clark against Media Printing, his former employer, based upon an alleged injury of February 27, 1990. Clark seeks compensation for temporary total disability and payment of medical expenses. The primary issues to be determined are whether Clark sustained an injury which arose out of and in the course of his employment and determination of his entitlement to compensation for temporary total disability (no permanent disability was claimed). The rate of compensation is also an issue with regard to the marital status and number of exemptions. It was stipulated that he earned $170 per week. With regard to the claim for medical expenses, the only issue is the employer's liability. findings of fact Having considered all the evidence received, together with the appearance and demeanor of the witnesses, the following findings of fact are made. Mark W. Clark is a 34-year-old man who resides at Council Bluffs, Iowa with Michelle Meyer and her three children. Mark sometimes refers to his relationship with Michelle as a common law marriage. At other times, he represents himself as being single. Mark has two children of his own who reside with his father and for whom he pays child support. Mark and Michelle began living together approximately three years ago. They have lived and functioned as a family since that time, except for a short separation. Michelle was married to her former husband until July of 1990 when her divorce became final. Mark began working for Media Printing in late January 1990. He was hired by Bill Malek who is also known as Mr. Page 2 Assad. Mark's job was to perform a variety of functions including operating machines, warehouse work and truck driving. During the approximately four weeks that Mark worked for Media Printing, he performed all of those functions. According to Mark, he began having discomfort and other symptoms in his hands after approximately one week of work. There is no evidence, however, that he ever complained of any problems with his hands until February 27, 1990. On Saturday, February 24, 1990, Mark was assigned to work approximately a half day feeding a folding machine. Mark's level of production was considerably below the rate commonly experienced for persons operating the machine. It appears as though the low productivity was due to Mark's feeding the machine improperly with the result being frequent jams. On the following Monday, Malek terminated claimant's employment due to his substandard performance on the folding machine and also due to Mark having been quite slow when making deliveries to the post office. After Mark pleaded for his job, Malek agreed to let him try some more. According to Malek, Mark's performance remained poor, but Mark characterized it as having quadrupled in comparison to the previous Saturday. According to Mark, he was exhausted when he went home from work on Monday evening. He stated that his hands hurt so badly that he could hardly eat dinner and needed help going to bed. Mark stated that, on the following morning, he got up with no grasp in his hands and decided to go to a doctor. He stated that he was unable to drive so Michelle drove him to the doctor. According to Mark, the doctor told him that he had carpal tunnel syndrome which was caused by repetitive type of work. He was prescribed Feldene and wrist splints and was given a release to return to work. When Mark reported to his employer, his employment was terminated. Lack of productivity was given as the reason for his termination. When released to resume work, he had a restriction against repetitive hand grasping, pushing, pulling or lifting in excess of 20 pounds (claimant's exhibit 6). The doctor claimant consulted was Scott D. Blair, M.D. In his first report dated June 27, 1990, Dr. Blair reports seeing claimant on February 27, 1990 and making an initial diagnosis of bilateral carpal tunnel syndrome. The report states that the syndrome is a direct result of overused muscle groups which swell and compress the median nerve. It further states it is usually seen with jobs requiring repetitive motion. Mark was released to resume light work for three weeks (claimant's exhibit 1). A subsequent report dated August 10, 1990 relates that claimant was again seen on July 11, 1990 at which time it appeared as though his carpal tunnel syndrome had nearly resolved (claimant's exhibit 2). Dr. Blair charged $26 for each of the two office calls (claimant's exhibits 3 and 4). On the health insurance claim form dated March 13, 1990, it is indicated that the condition was not related to claimant's employment Page 3 (claimant's exhibit 4). Such claims are generally denied by the insurance carrier if it is indicated to be work related. At the time the form was prepared, the employer had denied the workers' compensation claim. In Dr. Blair's other reports, he states that claimant's condition is one which generally arises from repetitive tasks which claimant did at the book company where he was employed (claimant's exhibits 1 and 7). Mark was subsequently examined by Joel T. Cotton, M.D., on August 31, 1990. At the time of the examination, Mark did not exhibit any symptoms of carpal tunnel syndrome. Dr. Cotton found no permanent disability and also felt that Mark had reached maximum medical benefit. Dr. Cotton also states that it is his opinion that claimant's brief period of employment could not have caused bilateral carpal tunnel syndrome (defendants' exhibits A and B). It is found that Mark Clark did temporarily injure his hands as a result of the work that he performed at Media Printing on February 27, 1990. It cannot be determined whether the injury was fatigue, muscle strain, carpal tunnel syndrome or some other type of overuse ailment. It was, nevertheless, temporary and had resolved by the time the claimant saw Dr. Blair on July 11, 1990. As indicated in exhibit 1, claimant's light duty restriction was for three weeks. Three weeks is therefore determined to be the period of temporary disability. There is no medical evidence which corroborates the existence of any disability beyond that initial three-week period. The credibility of Mark Clark and Michelle Meyer is not sufficiently strong to establish the existence of disability beyond those initial three weeks without supporting medical corroboration. Page 4 conclusions of law Claimant has the burden of proving by a preponderance of the evidence that he received an injury on February 27, 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. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Claimant's testimony as corroborated by the findings of Dr. Blair in exhibit 1 is sufficient to establish by a preponderance of the evidence that Mark Clark did sustain injury arising out of and in the course of his employment on February 27, 1990 as he alleged. There was no claim that the injury was permanent. In fact, it was specifically stated that claimant made no claim for permanent disability. The evidence in the case does not support any claim for permanent disability. Claimant's only entitlement is therefore temporary total disability compensation pursuant to section 85.33(1). Since the medical restriction was for only three weeks and was not renewed, it is determined that on March 20, 1990 Clark was medically capable of returning to employment substantially similar to that in which he was engaged at the time of injury. The entitlement to temporary total disability therefore runs from February 27, 1990 through March 19, 1990. February 26, 1990 was the last day of work before the onset of disability. The rate of compensation is an issue in this case only from the standpoint of determining claimant's marital status and exemptions. If Mark and Michelle are to be treated as being married, it must be established through common law. The elements of a common law marriage are well settled in this state, namely (1) a mutual present intent and agreement to be married; (2) continuous cohabitation; and, (3) public declaration that the parties are husband and wife. In re Marriage of Winegard, 278 N.W.2d 505, 510 (Iowa 1979). The burden of proof lies on the party asserting the existence of a common law marriage by a preponderance of the evidence. In re Marriage of Grother, 242 N.W.2d 1 (Iowa 1976). Mere proof of cohabitation is not sufficient. In re Malli's Estate, 260 Iowa 252, 149 N.W.2d 155 (1967). Where two persons expressly agree to be married and continuously cohabit, but do not make public declaration of the marital relationship, there is no common law marriage. In re Dallman's Estate, 228 N.W.2d 187 (Iowa 1975). A contract between the parties which implies that they will marry each other at some point in the future does not establish a common law marriage. State v. Grimes, 215 Iowa 1278, 247 N.W. 664 (Iowa 1933). Where cohabitation is illicit in the beginning, namely where one party is married to another person, affirmative proof is required of a subsequent present intention to change that relationship into the legitimate relationship of husband and wife in order to establish a common law marriage. In re Fisher's Estate, 176 N.W.2d 801 (Iowa 1970); In re Marriage of Grother, 242 Page 5 N.W.2d 1 (Iowa 1976). Only a lawful marriage entitles the parties to the protections, rights and privileges of spouses. Laws v. Griep, 332 N.W.2d 339 (Iowa 1983). While claimant indicated that he filed an income tax return as being married, the year of that filing was not introduced into the evidence. If it was a filing made subsequent to the injury, it is not particularly convincing of a public holding out of being husband and wife. While Mark related that he referred to the relationship when talking to other people as being "married," that statement is not corroborated by other evidence in the record. It is contradicted by his actions in the statement given to the insurance investigator and his income tax withholding declaration. In any event, it appears as though Michelle was still legally married to her former husband until her divorce became final in July 1990. She could not have been Mark's common law wife in February 1990. It is concluded that claimant has failed to prove by a preponderance of the evidence that a common law marriage existed between himself and Michelle Meyer. One may have been created subsequent to the injury, at or about the time of filing his 1990 income tax return in early 1991, but such would not relate back to the date of injury in February 1990. Since the exemptions used in computing the workers' compensation rate are based upon the entitlement to claim the individuals as dependents for income tax purposes, Mark is not entitled to claim an exemption for Michelle or her children since they were not related to him by blood or marriage at the time of injury. Mark is therefore determined to have been single with two exemptions for his children as well as an exemption for himself. Biggs v. Donner, II Iowa Industrial Commissioner Report 34, 38 (App. Decn. 1982). Under the 1989 benefit booklet, a single employee entitled to three exemptions who has gross weekly wages of $170 is entitled to weekly compensation at the rate of $120.30. Mark seeks payment of his medical expenses with Dr. Blair. It is concluded that he is entitled to recover them in the total amount of $52. Page 6 order IT IS THEREFORE ORDERED that defendants pay Mark W. Clark three (3) weeks of compensation for temporary total disability at the rate of one hundred twenty and 30/100 dollars ($120.30) per week payable commencing February 27, 1990. The entire amount thereof is past due and owing and shall be paid to claimant in a lump sum together with interest pursuant to section 85.30 computed from the date each weekly payment came due until the date of actual payment. IT IS FURTHER ORDERED that defendants pay claimant's expenses with Dr. Blair in the amount of fifty-two and 00/100 dollars ($52.00). IT IS FURTHER ORDERED that the costs of this action are assessed against defendants pursuant to rule 343 IAC 4.33. IT IS FURTHER ORDERED that defendants 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. F. J. Kraschel Ms. Susan M. Conroy Attorneys at Law 403 Metropolitan Federal Bank Council Bluffs, Iowa 51503 Ms. Judith Ann Higgs Attorney at Law 200 Home Federal Building P.O. Box 3086 Sioux City, Iowa 51102 5-1402.20; 5-1402.30 1801; 3002 Filed August 9, 1991 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : MARK W. CLARK, : : Claimant, : : vs. : : File No. 936973 MEDIA PRINTING, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : AETNA CASUALTY & SURETY : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 5-1402.20; 5-1402.30; 3002 Claimant's claimed common law marriage was rejected. He was not entitled to be treated as married or to claim exemptions for the woman with whom he lived or her children in the absence of the existence of a lawful marriage at the time of injury. 1801 In a case with minimal medical evidence, the award of temporary total disability was limited to the time that the doctor indicated claimant should follow activity restrictions, even though the next medical appointment was approximately three months later and it was at that time that the doctor indicated that the complaints had resolved.