BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ EARL STONE, Claimant, vs. File No. 938101 STONE CONTRACTING & LUMBER, A P P E A L Employer, D E C I S I O N and ALLIED MUTUAL INSURANCE, Insurance Carrier, Defendants. ___________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed February 7, 1994 is affirmed and is adopted as the final agency action in this case. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of May, 1994. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Colin J. McCullough Attorney at Law 701 West Main Street PO Box 428 Sac City, Iowa 50583 Ms. Judith Ann Higgs Attorney at Law 701 Pierce Street STE 200 PO Box 3086 Sioux City, Iowa 51102 5-1100; 5-1803 Filed May 13, 1994 BYRON K. ORTON BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ EARL STONE, Claimant, vs. File No. 938101 STONE CONTRACTING & LUMBER, A P P E A L Employer, D E C I S I O N and ALLIED MUTUAL INSURANCE, Insurance Carrier, Defendants. ___________________________________________________________ 5-1100; 5-1803 Claimant failed to show by a preponderance of the evidence that his injury was a substantial factor in causing additional permanent disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ EARL STONE, : : Claimant, : : vs. : : File No. 938101 STONE CONTRACTING & LUMBER, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : ALLIED MUTUAL INSURANCE, : : Insurance Carrier, : Defendants. : ------------------------------------------------------------ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Earl Stone, claimant, against Stone Contracting and Lumber, employer, and Allied Mutual Insurance, insurance carrier, defendants, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained on November 24, 1989. This matter came on for hearing before the undersigned deputy industrial commissioner on February 1, 1994, 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 Jacqueline Stone, Gerry Phillips, Reggie Ringgenberg, and Duane Fort. The documentary evidence identified in the record consists of joint exhibits 1 through 18 and defendants' exhibits A through F. ISSUES Pursuant to the hearing report and order approving same dated February 1, 1994 the parties have presented the following issues for resolution: . Whether claimant's injury is causally connected to the disability on which he now bases his claim; . Whether claimant is entitled to permanent disability as a result of his injury and, if so, the extent thereof; and . The appropriate rate of compensation. FINDINGS OF FACT The undersigned has carefully considered all the testimony given at the hearing, arguments made, evidence Page 2 contained in the exhibits herein, and makes the following findings: Claimant was born on April 13, 1944, and completed the twelfth grade of school. He completed nine weeks of bricklayer school in 1966 and owns a construction company where he works as a bricklayer. In 1986, he opened a lumber yard which dissolved in February 1990. Claimant alleges a work injury on November 24, 1989. Although claimant was unable to recall the specifics of the event, and the record reveals conflicting statements as to the incident, defendants have admitted liability and have paid claimant healing period benefits and 10 percent permanent partial disability benefits at the rate of $252.53 per week. The documentary evidence identified in the record reveals that claimant was treated by Steven E. Burns, D.C., for complaints of lower lumbar spine and right leg pain beginning in November 1987. Claimant also presented with left sided sciatica. (exhibit 1, page 1). On November 16, 1989, claimant saw Dr. Burns with complaints of tenderness in his back. (ex. 1, p. 2). Claimant apparently was referred by his family physician, Rodney H. Miller, M.D., to Quentin J. Durward, M.D., a neurosurgeon, for evaluation. Dr. Durward saw claimant on December 6, 1989. Claimant presented to Dr. Durward with complaints of severe low back and left leg radiating pain. Dr. Durward ordered an MRI scan. The results indicated a herniated sequestrated left L5/S1 disc. (exs. 3 & 7). Dr. Durward recommended an L5/S1 diskectomy. He admitted claimant to Marian Health Center on December 8, 1989, and performed a left L5/S1 microsurgical diskectomy. Claimant was discharged on December 11, 1989, and noted to be doing extremely well. He was instructed not to bend, lift or sit for the next month. (ex. 8). Thorir S. Ragnarsson, M.D., saw claimant on January 8, 1990. He noted that claimant was doing extremely well with complete relief of his radicular pain and numbness and very little back discomfort. His back examination was described as benign. Straight leg raising was completely negative and he was prescribed another four- to six-week period of rest. (ex. 14). A follow-up examination with Dr. Ragnarsson occurred on February 8, 1990. At this time, it was noted that claimant was completely free of leg pain and had only occasional back stiffness and discomfort but no weakness or numbness. Range of motion was normal and straight leg raising negative. A neurological examination was normal. Claimant was released to part-time work in two weeks and gradual full-time work. (ex. 15). Claimant returned to Dr. Durward on March 8, 1990. He reported that claimant had done extremely well with complete resolution of his preoperative pain and symptoms and had no residual complaints. He was advised that working as a Page 3 bricklayer would slightly increase the risk of having future back problems. He was also advised against heavy lifting. At this time, Dr. Durward gave him a 10 percent impairment rating due to his ruptured disc. (ex. 4). Claimant testified that he returned to his prior work in February 1990. He performed all of the usual and customary duties associated with his business without incident until October 4, 1991, when he presented to Dr. Miller with complaints of back pain and shooting pains down his left leg. At this time, he was put on a burst of prednisone. On October 25, 1991, he reported no improvement in his condition and Dr. Miller decided to contact Dr. Durward for assessment. (ex. 10, p. 3). Claimant presented to Dr. Durward on November 7, 1991. Claimant indicated he had a progressive return of pain in his buttocks and left leg, particularly after bending, lifting and twisting, 35- to 40-pound blocks. An MRI scan was obtained and revealed typical epidural fibrosis on the left at L5/S1 but no evidence of recurrent disc herniation. Dr. Durward felt that claimant's pain was inflammatory in origin and derived from the heavy twisting, and bending type of work that he performed. He recommended a consultation with Leonel Herrera, M.D., for an epidural steroid injection. He also felt that a 25-pound lifting restriction and no bending would be appropriate. (ex. 5). Claimant presented to Dr. Herrera on April 20, 1992, with complaints of low back pain radiating into the left leg of six months duration. Claimant reported that he had an epidural flood in February 1992 without improvement in his condition. On examination, claimant had a normal stance and gait. Straight leg raising was negative in both the sitting and supine position. A neurological examination revealed normal strength, absent reflex on the left Achilles and a decreased patellar tendon at 1/4. Sensation and cranial nerves 2 through 12 were intact. Dr. Herrera's impression was left sacroiliac strain - chronic. He recommended an SI joint injection under fluoroscopy followed by a monitored rehabilitation program. (ex. 16, p. 2). On September 1, 1992, claimant returned to Dr. Miller with complaints of back and left leg pain. Claimant manifested a concern that his time to apply for increased disability from workers' compensation ran out in December. On examination he had good range of motion of the low back and negative straight leg raising. Dr. Miller diagnosed fibrosis causing some nerve root compression. A return visit on September 18, 1992, resulted in an assessment of a 1 percent impairment of the lower extremity. (ex. 10, p. 4). Claimant testified that he continues to work as a contractor/bricklayer and has not sought any medical treatment since his last visit with Dr. Miller in October 1992. On November 18, 1993, Dr. Miller reviewed claimant's record and history and noted that an MRI in November 1991 revealed epidural fibrosis around the S1 nerve root with no evidence of herniated nucleus pulposis. He stated that Page 4 claimant has had no recurrent injury but a recurrence of pain due to scarring in the operative area. (ex. 12). CONCLUSIONS OF LAW The first issue to be determined is whether there is a causal connection between claimant's November 24, 1988 injury and the disability on which he now bases his claim for additional permanent partial disability benefits. 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). A personal injury contemplated by the workers' compensation law means an injury, the impairment of health or a disease resulting from an injury which comes about, not through the natural building up and tearing down of the human body, but because of trauma. The injury must be something which acts extraneously to the natural processes of nature and thereby impairs the health, interrupts or otherwise destroys or damages a part or all of the body. Although many injuries have a traumatic onset, there is no requirement for a special incident or an unusual occurrence. Injuries which result from cumulative trauma are compensable. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 1219, 38 N.W.2d 158 (1949); Almquist v. Shenandoah Nurseries, Inc., 218 Iowa 724, 254 N.W. 35 (1934). An occupational disease covered by chapter 85A is specifically excluded from the definition of personal injury. Iowa Code section 85.61(5); Iowa Code section 85A.8. Preponderance of the evidence means greater weight of evidence; that is, the evidence of superior influence or Page 5 efficacy. Bauer v. Reavell, 219 Iowa 1212, 216 N.W. 39 (1935). A party's burden as to proof is not discharged by creating an equipoise. Volk v. International Harvester Co., 252 Iowa 298, 106 N.W.2d 649 (1960). A factor is substantial when reasonable persons considering that factor would regard it as a cause, that is, as being in some pertinent part responsible for the result produced. See, Pedersen v. Kuhr, 201 N.W.2d 711 (Iowa 1972). A factor is substantial when it is material in producing a result. A factor may be substantial without being either exclusively or even predominantly the determinant of the result, however. See Jones v. City of Des Moines, 355 N.W.2d 49 (Iowa 1984); Montgomery Properties v. Economy Forms, 305 N.W.2d 470 (Iowa 1981). Additionally consider the following: We are cognizant of the fact that the compensation law is for the benefit of workers and is to be liberally administered to that end. But it must be administered by the application of logical and consistent rules or formulas notwithstanding its benevolent purpose. It cannot be made to depend on the whim or sympathetic sentiment of the current administrator or presiding judge. We apprehend every member of this court is sympathetic to claimant in the instant case. But the compensation statute is not a charity. It is a humanitarian law to be administered, not by sympathy, but by logical rules, evolved from the determination of many cases under literally countless factual variations. Compensation is to be paid by the employer (or [the] insurer) as a matter of contract, not as a gratuity. It is payable only when the facts show the injury is within the contract--that it 'arose out of and in the course of the contracted employment.' Bulman v. Sanitary Farm Dairies, 247 Iowa 488, 494, 495, 73 N.W.2d (1955). Claimant has not met his burden of proof as to causation. In December 1989, claimant was found to have a classic left L5-S1 disc rupture. On December 8, 1989, Dr. Durward performed a left L5-S1 microsurgical diskectomy. Dr. Durward predicted a 95 percent chance of a good result. Apparently, his prediction was accurate. On March 8, 1990, Dr. Durward noted that claimant had done extremely well with complete resolution of his preoperative pain and symptoms with no residual complaints in his back while at work. He was warned that returning to his job as a bricklayer would increase the risk of future back problems. (ex. 4). Claimant returned to his job as a contractor/bricklayer and worked without incident until October 4, 1991, when he presented to Dr. Miller with back pain and radiation into Page 6 the left leg. An examination by Dr. Durward on October 7, 1991, elicits an opinion that claimant's pain is actually inflammatory in origin and a result of the heavy twisting, bending type work that he performs. (ex. 5). This language suggests that claimant has incurred a new injury unrelated to the 1989 injury. It is evident that claimant's heavy work activity subsequent to successful surgery materially aggravated his underlying condition. Although Dr. Miller felt that claimant's recurrent pain was due to scarring in the operative area, his opinion is not shared by Dr. Durward. Dr. Miller is neither a neurosurgeon or a neurologist. In fact, he referred claimant to Dr. Durward in November 1991 and, it is presumed, as in the past, that he deferred to Dr. Durward's expert opinion regarding claimant's condition. A treating physician's testimony is not entitled to greater weight as a matter of law than that of a physician who later examines claimant in anticipation of litigation. Weight to be given testimony of physician is a fact issue to be decided by the industrial commissioner in light of the record the parties develop. In this regard, both parties may develop facts as to the physician's employment in connection with litigation; the physician's examination at a later date and not when the injuries were fresh; his arrangement as to compensation; the extent and nature of the physician's examination; the physician's education, experience, training, and practice; and all other factors which bear upon the weight and value of the physician's testimony. Both parties may bring all this information to the attention of the fact finder as either supporting or weakening the physician's testimony and opinion. All factors go to the value of the physician's testimony as a matter of fact not as a matter of law. Rockwell Graphic Systems, Inc. v. Prince, 366 N.W.2d 176, 192 (Iowa 1985). In conclusion, the greater weight of the evidence does not support claimant's claim that his November 24, 1989 injury is a proximate cause of the disability on which he now bases his claim. This determination is dispositive of the entire case and further analysis is unnecessary. Page 7 ORDER THEREFORE, IT IS ORDERED: Claimant shall take nothing from these proceedings. The parties shall pay their own costs pursuant to rule 343 IAC 4.33. Signed and filed this ________ day of February, 1994. ______________________________ JEAN M. INGRASSIA DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Colin J. McCullough Attorney at Law 701 W Main St PO Box 428 Sac City, Iowa 50583 Ms. Judith Ann Higgs Attorney at Law 701 Pierce St, STE 200 PO Box 3086 Sioux City, Iowa 51102 51100 51803 Filed February 7, 1994 Jean M. Ingrassia BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ EARL STONE, Claimant, vs. File No. 938101 STONE CONTRACTING & LUMBER, A R B I T R A T I O N Employer, D E C I S I O N and ALLIED MUTUAL INSURANCE, Insurance Carrier, Defendants. ------------------------------------------------------------ 51100 51803 Claimant failed to show by a preponderance of the evidence that his injury was a substantial factor in causing additional permanent disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : CARL CASON, : : Claimant, : : vs. : : File No. 938202 SIGNAL DELIVERY SERVICE, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : ALLSTATE INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ INTRODUCTION This is a proceeding in arbitration brought by Carl Cason, claimant, against Signal Delivery Service, employer, and All State Insurance, insurance carrier, for benefits as the result of an injury which occurred on October 25, 1989. A previous hearing was held on June 13, 1991, and in the decision of Deputy Industrial Commissioner Jean M. Ingrassia filed June 20, 1991, it was determined that claimant sustained an injury on October 25, 1989, which arose out of and in the course of employment with employer, that the injury was the cause of temporary disability, that claimant was entitled to a running award of healing period benefits, that claimant was entitled to medical benefits, and that defendants failed to prove that claimant failed to give proper notice as required by Iowa Code section 85.23. This hearing was held on July 16, 1992, and the case was fully submitted at the close of the hearing. Claimant was represented by Jacob J. Peters. Defendants were represented by E.J. Kelly. Defendants' attorney presented a brief description of disputes at the time of the hearing. The record consists of the testimony of Carl Cason, claimant; Jack Reynolds, vocational rehabilitation consultant; and joint exhibits 1 through 30. Both attorneys submitted excellent posthearing briefs. OFFICIAL NOTICE At the request of defendants' counsel official notice is taken of the exhibits, transcript and decision of the previous hearing held on June 13, 1991. [Iowa Administrative Procedure Act 17A.14(4)]. PRELIMINARY MATTER At the hearing, the parties agreed that the injury was the cause of temporary disability, that claimant was entitled to Page 2 temporary disability benefits pursuant to the running award, until May 21, 1992, and that the commencement date for permanent disability benefits, if any were awarded, was May 21, 1992. The rate was agreed to be $505.28 per week. The parties agreed that if it is determined that claimant is entitled to medical benefits that the specific benefits to which claimant is entitled and the amount of medical benefits can be worked out between the parties. ISSUES The parties submitted the following issues for determination at the time of the hearing on July 16, 1992. Whether the injury was the cause of permanent disability. Whether claimant is entitled to permanent disability benefits. Whether claimant sustained an injury to a scheduled member or to the body as a whole. Whether claimant is entitled to medical benefits. Whether claimant is entitled to penalty benefits pursuant to Iowa Code section 86.13(4). FINDINGS OF FACT causal connection-permanent disability It is determined that the injury of October 25, 1989, was the cause of permanent disability to claimant's left hand and his right shoulder. With respect to causal connection of the left hand injury, on November 20, 1989, G. Keith Kennard, M.D., the company physician referred claimant to Lanny W. Harris, M.D., an orthopedic surgeon, for determination of whether claimant's left hand complaints were caused by the injury of October 25, 1989, or whether it was something unrelated to his employment (exhibit 7, deposition ex. 5). Dr. Harris first saw claimant on December 18, 1989, for persistent pain in the palmar aspect of the hand over the flexor tendon in line with the long finger. He also found a dorsal mass which claimant asserted was not there before the injury. The doctor said an x-ray of November 20, 1989, showed the bone was unusually mature to have occurred since the date of injury of October 25, 1989, but he felt that a great deal of claimant's impairment was secondary to the injury of October 25, 1989 (ex. 7, dep. ex. 1). A flexor tendon sheath release and excision of the mass was performed on February 13, 1990 (ex. 7, dep. ex. 1, page 2; ex. 7, pp. 3-14). Dr. Harris testified that claimant received a 5 percent permanent impairment to his left hand which was caused by the injury of October 25, 1989 (ex. 7, pp. 22-23). Claimant was seen by J. Michael Smith, M.D., on June 9, 1990, for an evaluation. Dr. Smith concluded that the crush Page 3 injury of the left hand and especially the left middle finger caused flexor tenosynovitis and a subsequent surgical release. Proceeding on this history, he determined that claimant had sustained a permanent impairment (ex. 1, pp. 16-17). On May 29, 1991, Dr. Smith proceeded on the crush injury to the left hand as a cause of his left hand problems (ex. 1, p. 22). On May 12, 1992, Dr. Smith examined claimant for the third time and determined that claimant had sustained 14.5 percent permanent impairment to the left hand (ex. 12, p. 6). With respect to causal connection of the right shoulder injury, Dr. Harris did not believe it was caused by the injury to the left hand of October 25, 1989 (ex. 7, p. 24). Dr. Harris, however, admitted that he was retained to examine and treat the hand and that his specialty is hand surgery (ex. 7, pp. 28-29). Dr. Smith, on June 9, 1990, recorded that claimant reported to him that because of the casting, immobilization and disability of claimant's left hand and forearm, he performed more activities with his right arm and shoulder and felt that it had affected his right shoulder which was becoming progressively worse (ex. 1, p. 15). Dr. Smith said he developed severe pain and restrictive capsulitis, probably as a result of a bursitis in the right shoulder (ex. 1, p. 17). On May 29, 1991, Dr. Smith reported that at the time of the crush injury to his left hand he attempted to transfer the weight from his left side to his right side which caused pain in his right shoulder, but that claimant was assured on several occasions that it was very temporary and that there would be no problem with the shoulder itself (ex. 1, p. 20). Dr. Smith added, "As a result of the repetitive weight bearing on his right upper extremity, he developed a restrictive capsulitis." (ex. 1, p. 22). In his final report on May 12, 1992, Dr. Smith said that the right shoulder is rated at between 10 percent and 15 percent permanent impairment of the body as a whole (ex. 12, p. 6). Dale E. Darnell, M.D., gave a second deposition (after the first hearing and before the second hearing) on May 27, 1992, in which he verified that he was a board certified orthopedic surgeon who performed (1) an arthroscopy on February 11, 1991, of the right shoulder and (2) a second arthroscopy which was followed immediately by an open surgery of the right shoulder on October 11, 1991 (ex. 25, pp. 3-18). During the second open shoulder surgery, he determined that claimant had sustained a severe full thickness rotator cuff tear (ex. 25, pp. 19-20). The operative report of Dr. Darnell on October 11, 1991, states that claimant sustained a work-related injury to his right shoulder. Dr. Darnell testified that claimant's on-the-job injuries were the cause of his disability because he did not have any history that claimant had any problem with his shoulder prior to this injury (ex. 25, p. 24). Dr. Darnell further testified that these on-the-job injuries were the cause of claimant's medical bills for the care which he received from him (ex. 25, p. 33). Thus, Dr. Darnell testified that these on-the-job injuries were the cause of claimant's time off work and for the medical bills for his care. Dr. Darnell further testified that he did not believe that the injury of October 25, 1989, as an isolated incident, caused Page 4 his right shoulder to hurt, but that the cumulative trauma after the left hand surgery was the cause of his right shoulder problems (ex. 25, pp. 41-42). The doctor agreed that the noninjured extremity was going to do more than the injured extremity (ex. 25, p. 51). Dr. Darnell explained: ...I don't think the problem in his shoulder came as a direct result of the refrigerator accident he had. I think it came because of what we talked about before, the repetitive use of his arm over a long period of time, several months, as a matter of fact which lead [sic] to all of this trouble. It's just a never-ending [sic], continuing, downhill process. Q. Based on reasonable medical certainty, is it your opinion that Mr. Cason's shoulder injuries are work-related [sic]? A. Well, as I said before, I don't think he hurt his right shoulder directly. I think they are indirectly related to his accident, with the need for him to continue his job in an appropriate manner because of his left upper extremity injury. I guess the answer to your question is yes. (exhibit 25, pages 53-54) Dr. Darnell's opinion prior to the second hearing is consistent with his testimony prior to the first hearing when he testified by deposition on June 12, 1991, as follows: Q. Do you have an opinion based on reasonable medical certainty as to the cause of the anterior impingement syndrome and the partial rotator cuff tear of the right shoulder? A. Yes. Q. What is that opinion? A. I think that it's an overuse phenomenon as a result of his original injury, whenever that was, back sometime in 1989, from having to use his shoulder in a different manner, in a more stressful manner, if you will. And that's a well-recognized--well, I'm looking for the right word-- a well-recognized mechanism of injury, if you will, a mechanism of cause of this kind of problem. (Exhibit 5, page 20) Dr. Darnell was the treating orthopedic surgeon for the right shoulder. Dr. Smith, an evaluating physician, concurs with Dr. Darnell. The opinions of Dr. Darnell and Dr. Smith, that the injury of October 25, 1989, caused the right shoulder impingement which required the rotator cuff surgery is preferred over the opinion of Dr. Harris who is a hand surgeon and was retained specifically for the purpose of treating claimant's left hand. Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985). Page 5 When assessing the qualification of expert witnesses the opinion of a shoulder surgeon is preferred over the opinion of a hand surgeon when a determination is to be made about the causal connection of the injury to a shoulder disability. Reiland v. Palco, Inc., Thirty-second Biennial Report of the Industrial Commissioner 56 (1975); Dickey v. ITT Continental Baking Co., Thirty-fourth Biennial Report of the Industrial Commissioner 89 (1979); Lemon v. Georgia Pacific Corp., I Iowa Industrial Commissioner Report 204, 205 (App. Dec. 1981); Clement v. Southland Corp, I Iowa Industrial Commissioner Report 56, 58 (1981). The primary issue in this case is whether the injury of October 25, 1989, was the cause of both the left hand and right shoulder problems. The fighting issue is the right shoulder. Claimant has sustained the burden of proof that this injury was the cause of both problems (the left hand and the right shoulder) by at least three different methods. First, the treating orthopedic surgeon, Dr. Darnell, and an evaluator, Dr. Smith, testified there was a causal connection between the injury and permanent disability. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945). Claimant denied and there is no medical evidence or other evidence of any left hand or right shoulder problems prior to this injury. Defendants have not suggested save prove any other cause for either the left hand or right shoulder injury. Second, the right shoulder injury, which is the center of the dispute, is determined to be the cause of permanent disability because the Supreme Court of Iowa has decided that where an accident occurs to an employee in the usual course of employment, the employer is liable for all consequences that naturally and proximately flow from that accident as sequelae of the original injury. The court explained that if an employee suffers a compensable injury and thereafter suffers further disability which is the proximate result of the original injury, then such further disability is compensable. Likewise, as happened in this case, where an employee suffers a compensable injury and thereafter returns to work and as a result thereof, the first injury is aggravated and accelerated so that he is greater disabled than before, then the entire disability may be compensated. Lawyer and Higgs, Iowa Workers' Compensation--Law and Practice, (2d ed.) section 4-4 "Sequelae of Injuries", page 26; Oldham v. Scofield and Welch, 222 Iowa 764, 767, 266 N.W. 480, 482 (Iowa 1936). Third, even if the shoulder was a result of a cumulative injury, which was combined with the left hand injury, or even if it was a separate and distinct injury, a deputy is entitled to determine the nature of claimant's injury and entitlement to compensation from the evidence presented, regardless of the particular theories pled. Defendants' contention that claimant did not plead a cumulative injury is without merit. Shank v. Mercy Hospital Medical Center, file number 719627 (App. Dec. 1989); Johnson v. George A. Hormel & Co., file numbers 782796 & 792733 (App. Dec. 1988); McCoy v. Donaldson Company, Inc., file numbers 782670 & 805200 (App. Dec. 1989); DeHeer v. Clarklift of Page 6 Des Moines, file number 804325 (App. Dec. 1989). Deputies determine all issues raised by the evidence within the issues designated on the hearing assignment order. Morrison v. City of Ames, file number 843176 (1991). Wherefore, it is determined that the injury of October 25, 1989, was the cause of permanent disability to both claimant's left hand and right shoulder. scheduled member-body as a whole When disability is found in the hip or shoulder, a body as a whole situation exists. Lawyer and Higgs, Iowa Workers' Compensation--Law and Practice, (2d ed.) section 13-4, p. 124. Shoulder injuries have long been determined to be injuries to the body as a whole. Nazarenus v. Oscar Mayer & Co., II Iowa Industrial Commissioner Report 281 (1982); Godwin v. Hicklin GM Power, II Iowa Industrial Commissioner Report 170 (1981); Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 (1949). Rotator cuff injuries are considered to be injuries to the body as a whole. Tarr v. John Deere Waterloo Works, file number 951330 (1992); Payton v. Sheller-Globe Corp., file number 895808 (1991); Thomkins v. John Morrell, file number 946532 (1991); Teneyck v. Farmland Foods, IV Iowa Industrial Commissioner Report, 365 (App. Dec. 1984). Former Industrial Commissioner Robert C. Landess determined that a loss of range of motion was sufficient to cause an injury to the shoulder to be an injury to the body as a whole. Fullerton v. Caterpillar Tractor Co., IV Iowa Industrial Commissioner Report 135 (App. Dec. 1984). In this case, both Dr. Smith and Dr. Darnell found that claimant had a significant loss of motion in his right shoulder, more specifically, in flexion and abduction. Claimant's greatest impairment and disability is his limited ability to reach out with his arm (abduct) or to elevate his arm in front of him (flex). These are functions of the entire shoulder, both sides of the glenohumeral joint, and not just the arm alone. Merritt v. Quaker Oats, file number 705825 (1988) (aff'd Nov. 9, 1989); Brant v. Iowa Power and Light Co., file number 492024 (1987). The mere fact that a doctor rates an injury in terms of the upper or lower extremity does not mean that the impairment or disability is restricted to a schedule. Pullen v. Brown and Lambrecht Earthmoving, Inc., II Iowa Ind. Comm'r Rpt. 308 (App. Dec. 1982); Franzen v. Mid-Valley, Inc., Vol 1., No. 4, State of Iowa Indust'l Comm'r Decisions, 834 (1985). It is typical for physicians to rate both shoulder and hip injuries with reference to the upper and lower extremity. The shoulder is considered to be an element of the right upper extremity. Guides to the Evaluation of Permanent Impairment, 3rd ed. (revised), section 3.1g - shoulder, page 34. The hip is considered to be an element of the lower extremity. Guides, chapter 3 (revised), section 3.2d - hip joint, page 67); Meissner v. Mercy Hospital, file number 966555 (1992). From the point of view of the parts of the body involved, the shoulder surgery involved the acromion and clavicle which are Page 7 parts of the body which are clearly on the body side of the glenohumeral joint which is the dividing line between the arm and the body in the shoulder. Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). An injury is a producing cause, the disability however, is the result which is to be compensated. Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). In this case, whether you look to the body parts affected by the injury or whether you look to where the disability is located, in either event, (1) body parts are affected and (2)the disability, derangement and loss of bodily function is in the shoulder as distinguished from the arm. Therefore, it is determined that claimant has sustained an injury to the body as a whole and that he has not sustained an injury to a scheduled member, to wit, the right arm. The Supreme Court of Iowa in Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986) noted that most other jurisdictions had resolved hip and shoulder injuries as whole body injuries and cited a long list of cases and then commented that the workers' compensation statutes should be interpreted to benefit workers and their dependents. In view of the present state of the law it would be a very rare case where a hip or shoulder injury would be an injury to the scheduled member. Wherefore, it is determined that the injury to the left hand is an injury to a scheduled member and the injury to the right shoulder is an injury to the body as a whole. entitlement-permanent disability Dr. Harris determined that claimant had sustained a 5 percent permanent impairment of the left hand (ex. 1, pp. 25, 29; ex. 7, pp. 22-23; ex. 7, dep. ex. 1, p. 3). Dr. Harris imposed no permanent restrictions on claimant due to the left hand injury (ex. 7, p. 23; ex. 7, dep. ex. 1, pp. 4, 15; ex. 1, p. 25). Dr. Smith determined that claimant had sustained a 14.5 percent permanent impairment of the left hand (ex. 1, p. 17; ex. 12, p. 6). Dr. Smith imposed no restrictions on account of the left hand, but stated that claimant still complains that the grip in his left hand is very weak (ex. 12, p. 5). On June 9, 1990, Dr. Smith determined that claimant had sustained a 5.5 percent permanent impairment to the body as a whole for the injury to the right shoulder (ex. 1, p. 17). On May 12, 1992, Dr. Smith raised this evaluation and stated that the right shoulder is rated at between 10 and 15 percent permanent impairment to the body as a whole (ex. 12, p. 6). The second rating was after the second arthroscopy and open shoulder surgery which was performed on October 11, 1991. Dr. Smith added that claimant had lost about 90 degrees of total range of motion and there was still weakness in the deltoid (ex. 12, p. 6). After the second arthroscopy and open shoulder surgery on October 11, 1991, Dr. Darnell commented on January 9, 1992, that claimant still had a lot of pain and catching in his right shoulder. On February 3, 1992, Dr. Darnell said that claimant Page 8 could not abduct much past 80 degrees. He also stated that claimant had not had a terribly satisfying surgical result so far (ex. 30, p. 3). On April 20, 1992, Dr. Darnell recorded that claimant felt like he was much worse and was very discouraged because of weakness and inability to lift his right arm (ex. 12, p. 1). On May 21, 1992, claimant could only abduct with difficulty to 100 degrees and flex to 105 degrees. Dr. Darnell recorded that he himself was not terribly pleased with the surgical result. He released claimant to return to work without restrictions because if restrictions were applied he felt that the employer would not allow him to return to his preinjury job. He rated the permanent impairment in the upper extremity at 15 percent and converted it to 9 percent of the body as a whole. He concluded by stating that Mr. Cason had been very cooperative in terms of his rehabilitation efforts and had done everything he had been asked to do, but that the result was not terribly satisfactory (ex. 30, p. 1). Dr. Smith noted that the right shoulder revealed a 9 centimeter anterior shoulder scar and four healed portals -- one anterior, one medial and two posterior -- and keloids had formed at all scar sites (ex. 12, p. 6). In his deposition, Dr. Darnell confirmed that after the first arthroscopy and prior to the major surgery in October 1991 claimant had a subjective feeling of catching in his right shoulder which was common after a shoulder surgery (ex. 25, p. 22). Dr. Darnell testified that he did not believe that claimant could perform the job which he was performing at the time of his injury (ex. 25, p. 23). The doctor said normal abduction is 180 degrees and claimant's performance of 100 degrees demonstrated a 45 percent loss of abduction of the shoulder. His 105 degrees of flexion out of a possible 180 degrees resulted in a 42 percent loss of flexion of the right shoulder (ex. 25, pp. 34-35). At the hearing, claimant demonstrated that he could only abduct his right arm to about his navel and he could only flex it to approximately to his chest. Thus, claimant has lost a significant amount of flexion and abduction in his right shoulder. Dr. Darnell added that claimant had also sustained some weakness in his abductor muscle. He estimated it was possibly 15, 20 or 25 percent of the abductor muscle strength (ex. 25, p. 26). With respect to restrictions, Dr. Darnell testified that claimant would have a very difficult time performing any occupation which requires work with his hand in an overhead position and that claimant is also foreclosed from repetitive overhead work. Furthermore, he did not feel that claimant had enough power in his shoulder to lift anything of significant weight to a shelf overhead (ex. 25, pp. 27-28). The doctor thought claimant would be able to drive a car, but had reservations about whether he could drive an 18-wheel truck with or without power steering (ex. 25, pp. 28-29). He said claimant could push and pull with his arm close to his body, but could not do it with his arm away from his body (ex. 25, p. 29). Claimant's job duties were explained to the doctor in a long hypothetical question and the doctor stated that he did not Page 9 believe that claimant could perform those duties (ex. 25, pp. 31-32). Thus, Dr. Darnell testified twice that in his opinion claimant was foreclosed from his previous employment as a line-haul truck driver. Michael v. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218, 220 (App. Dec. January 30, 1979); Rohrberg v. Griffin Pipe Products Co., I Iowa Industrial Commissioner Report 282 (1984). Dr. Darnell added that claimant could do fairly heavy work one time, but he could not do heavy work on a repetitive basis, nor could he do repetitive work which was light for an eight-hour day. Dr. Darnell explained that his rating of 15 percent to the right upper extremity which converted to 9 percent of the body as a whole was based upon claimant's loss of motion and weakness in the abductor musculature of his right arm. He did not take into account any subjective complaints, such as pain or suffering or any socioeconomic factors such as, claimant's age, work experience, education, or difficulty that he might have finding work (ex. 25, p. 47). He said his rating was based upon the AMA Guides. Dr. Darnell stated that if he were to include pain in his rating, that he would rate claimant at no less than 12 percent and no more than 15 percent of the body as a whole (ex. 25, pp. 55-56). In conclusion, it can be seen that claimant has two significant physical injuries. His left hand has sustained a 5 to 14.5 percent permanent impairment. His right shoulder has sustained a 9 to 15 percent permanent impairment to the body as a whole. Claimant is a 14-year employee of employer. He started to work on June 21, 1977, and his employment continued until June 25, 1991. Thus, claimant is a career employee of employer with a good work record as a driver of a Freightliner delivering Sears products to satellite country stores in small towns in the midwest. Claimant stated he worked 15 hours a day sometimes and earned $870 per week. He was paid by the hour and by the mile. In a statement to a claim representative claimant related that he made $980 to $1000 per week and had earned as much as $1300 per week (ex. 4, p. 3). Claimant estimated that his average weekly wage for the 13 full weeks prior to the injury amounted to $910.96 per week (ex. 6, p. 2). A detailed accounting for his earnings for the period from October 22, 1988 through October 1, 1991, show that he earned $43,797.74. If this total is divided by the 50 weeks which he worked, the average pay for that year was $875.95 per week. Thus, it is easy to say that at age 38, in 1989, claimant was certainly near or approaching his peak earnings capacity in his adult working life. Thus, his industrial disability is significantly increased. Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report of the Industrial Commissioner 34 (Appeal Decision 1979); Walton v. B & H Tank Corp., II Iowa Industrial Commissioner Report 426 (1981); McCoy v. Donaldson Company, Inc., file numbers 782670 & 805200 (App. Dec. 1989). Claimant has completed high school and one year of college. He is intelligent and capable of additional academic or on-the-job training. Claimant testified that when he was in college for one year he received B and C grades. Conrad v. Marquette School, Inc., IV Iowa Industrial Commissioner Report 74, 89 (1984). Page 10 First, however, prior to any retraining program claimant wants to see if he can return to over-the-road truck driving and then if he can't he may pursue retraining. Prior to this employer he drove truck for two years for another company. Prior to that he was a cashier and manager for two years and prior to that he was a security guard for three years (ex. 6, p. 11). A vocational consultant reported that claimant has functioned as a mail handler, salesman, theater manager, shop owner, and truck driver (ex. 27, p. 1). It was arranged between claimant, employer and Jack Reynolds, who is a vocational rehabilitation specialist who was hired by defendants to find work for claimant, that claimant would return to work for employer performing accommodated or modified work within his abilities even though Dr. Darnell did not formally issue a printed set of restrictions. This did not work out however, because employer lost its contract with Sears and was forced to close its doors. Approximately 130 drivers and all of the employer's personnel lost their jobs. Employer wrote a letter of recommendation to whom it may concern which claimant could present to future prospective employers. Claimant showed motivation by following up on the job leads supplied to him by Reynolds and estimated that he made 18 applications for employment. All but one of these applications inquired about whether he had previously sustained a work injury. The only one who did not ask this question, administered a preemployment physical examination. Claimant hoped he had passed it. Claimant testified that he planned to go to work on the Monday following this hearing on Thursday for Convoy. Claimant further hoped that he would be able to perform this work and was optimistic because the new company loads the truck and hires lumpers to unload the trucks. The prospective employer had indicated they might purchase claimant his own truck with a sleeper on the truck. Claimant had expectations of earning $600 a week with the new employer and from that he would have to deduct his own meals and lodging. If claimant's gross pay is reduced from approximately $900 per week to $600 per week, this constitutes a 33 1/3 percent actual loss of earnings provided he is able to actually obtain this job, perform it and keep it. It is speculative at this time to say that claimant will, in fact, obtain this employment, be able to perform it and keep the job for a protracted period of time. Whether the job works out is speculative future employment and awards should not be based upon speculative situations. Stewart v. Crouse Cartage, file number 738644 (App. Dec. 1987); Umphress v. Armstrong Rubber Co., file number 723184 (App. Dec. 1987); Sweet v. Carney Bridge and Demolition, Inc., file number 875653 (App. Dec. 1991). If claimant is unable to obtain an maintain this prospective employment, his actual earnings loss as a security guard or cashier, mail handler or theater manager, could easily exceed a 50 percent loss of actual earnings. If claimant were fortunate enough to find entry level employment at $7.50 per hour, this would amount to $300 per week and his actual loss of earnings would amount to 66 2/3 percent of his former earnings. At the time of the hearing, claimant was unemployed Page 11 and had been for over a year. Claimant has displayed admirable motivation. Dr. Darnell said he had done everything that he was requested to do. Reynolds said that claimant had been very compliant, followed advice and seriously followed up on all the leads which he supplied claimant. Claimant has few if any transferable skills other then truck driving. Dr. Darnell, his treating orthopedic surgeon for his shoulder, did not believe he would be able to perform the work as an over-the-road truck driver. With respect to his left hand, claimant testified that his small finger, left ring finger and left thumb worked okay, but that his left index and long finger functioned badly. He said he still had pain in his right shoulder but it was not as bad as it was. He was anxious to try to drive again. Reynolds testified that his job is to assist injured and disabled persons by assessment, counseling and placement. He has two masters degrees, one in general counseling and another in job placement. He has the designation of C.R.C., since 1987, which is a certified rehabilitation counselor. He is a member of The National Association Of Rehabilitation Professionals. He contacted claimant on April 6, 1992, with instructions from the insurance carrier to find claimant a job, preferably with employer, but if not then with someone else. Reynolds testified that it was all set up for claimant to return to work with employer on May 7, 1992, with accommodated job duties where necessary, but basically claimant would be performing the same job for the same pay. Employer, claimant and Reynolds were all in agreement and then employer lost the Sears contract and the company dissolved. Reynolds hoped that claimant was employable in trucking because he has the skills, experience, motivation, and good attitude. Some trucking jobs however might need accommodation. He estimated that $640 was a reasonable expectation that claimant might be able to earn in trucking. Reynolds' understanding of claimant's limitations were that he could not use his right shoulder to lift his right arm overhead and that he could not perform repetitive tasks with his right arm. Reynolds thought that claimant was restricted from heavy work but that he could perform work in the sedentary, light and medium range. Being foreclosed from heavy work and inability to lift his right arm above shoulder level is a substantial industrial disability loss for an over-the-road truck driver. Reynolds testified that he was not requested to assess claimant's employability, his access to the employment market or his actual loss of earnings. He was only asked to place claimant in suitable employment. Injured workers are harder to place and do suffer some loss of access to the employment market. Reynolds said he had not been asked to prepare any statistics and had none to offer. He was complimentary of claimant and hoped the prospective employment on Monday would work out but whether it did or not remained to be seen. Claimant was examined by Donald R. Vogenthaler, Rh.D., and Richard L. Gibson, Ph.D. A report of May 28, 1992, says that Page 12 claimant was interviewed on May 18, 1992, to determine his "loss of capacity to perform work and earn money, if any, as a result of a shoulder and hand injury sustained in an accident that occurred in October of 1989." (ex. 27, p. 1). They said that standardized tests revealed that claimant was below average in terms of word recognition and arithmetic achievement. Their assessment included socioeconomic factors such as age, education, previous work experience, as well as their standardized test results. These consultants concluded that claimant was restricted to work of a sedentary to light nature requiring below average manual and finger dexterity. Based on their calculations, they concluded that claimant has a loss of capacity to perform work in a range of between 74 percent to 84 percent. What was described as loss of capacity to perform work appears to this deputy to be loss of access to the labor market. In fact, they called it that in their report. Vogenthaler and Gibson concluded that claimant also sustained a loss of expected earnings in a range of between 80 percent and 90 percent. They also concluded that claimant sustained a loss of work-life expectancy in the range of between 50 percent and 60 percent (ex. 27, pp. 1-2; ex. 24). Defendants assert that the fact that the plant closed is an economic factor which should not increase claimant's industrial disability citing Webb v. Lovejoy Construction Co., II Iowa Industrial Commissioner Reports, 430 (App. Dec. 1981) (Dist. Ct. aff'd & Supreme Ct. dismissed). However, it is the determination of this deputy that this case does not apply because the earning capacity of the entire work force was not decreased because this one, single employer closed up its operation and was forced to discharge 135 truck drivers and some other personnel. The closing of this employer's operation would not affect the earning capacity of the entire work force in the area of Kansas City, Missouri, and Kansas City, Kansas. Furthermore, it has been determined that a plant closing is a factor which can be used to increase industrial disability. Mejorado v. Caterpillar Tractor, file number 438551 (App. Dec. 1990); Oscar Mayer v. Tasler, 483 N.W.2d 824 (Iowa 1992). Moreover, as claimant's counsel pointed out, claimant is not on an equal par in the competitive labor market with the other 135 employee's who got laid off because of his injury and the restrictions which it has imposed upon him. Most of the other workers may be bodied, whereas claimant is seriously impaired. Wherefore, based upon () based upon a permanent impairment rating of between 5 percent and 14.5 percent of the left hand; () based upon a permanent impairment rating of between 9 percent and 15 percent to the body as a whole due to the right shoulder injury; () based upon the fact that claimant's treating orthopedic surgeon testified that claimant was foreclosed from performing the work of an over-the-road truck driver that he had performed before the injury; () based upon the fact that claimant can only abduct his right arm to 100 degrees and flex his right arm to 105 degrees, which amounts to a 45 percent and 42 percent loss respectively of range of motion in these two planes; () based upon the fact that claimant has a loss of grip strength in the index and middle finger on the left hand; () based upon the fact that claimant has a loss of abductor musculature which causes permanent weakness in his right arm and shoulder; () based Page 13 upon the fact that claimant is foreclosed from performing overhead work or repetitive work with his right hand, arm and shoulder; () based upon the fact that claimant has sustained anywhere between a 33 1/3 percent and a 66 2/3 percent loss of actual earnings depending on his success in obtaining and maintaining employment as an over-the-road truck driver in spite of the professional opinion of his treating orthopedic surgeon; () based on claimant's cooperation with the doctors and his strong motivation that he has exhibited to return to work; () based upon the fact that claimant has very few, if any, transferable skills; () taking into consideration and giving some weight to the exaggerated losses described by Vogenthaler and Gibson (exs. 24 & 27), tempered with agency expertise in loss of earning capacity, access to the employment market, employability and projected actual earning losses; () considering claimant's high school education, one year of college with B and C grades, and the work he has demonstrated during his entire adult working lifetime; () based upon all of the facts introduced into evidence in this case; and () based upon all the factors used to determine industrial disability, Christensen v. Hagen, Inc., vol. I, no. 3, State of Iowa Industrial Commissioner Decisions 529 (App. Dec. March 26, 1985); Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 State of Iowa Industrial Commissioner Decisions 654, 658 (App. Dec. February 28, 1985); it is determined that claimant has sustained a 45 percent industrial disability to the body as a whole. Speer v. Super Valu Stores, Inc., file number 792171 (App. Dec. 1988) which can be found at page 548 of Decisions of the Industrial Commissioner, July 1, 1988 through June 30, 1989, published by the Iowa Association of Workers' Compensation Lawyers, Inc. medical benefits Dr. Darnell identified several medical bills and verified that the bills for his treatment were caused by this injury (ex. 25, pp. 32-33). Deputy Ingrassia awarded medical expenses also in the first hearing. It is determined that claimant is entitled to medical benefits for all of his medical treatment for both his left hand and his right shoulder. The parties agreed that they could determine between themselves what bills and the amounts that should be paid. penalty benefits With respect to the right shoulder it is determined that claimant is not entitled to penalty benefits because defendants disputed injury and causal connection with respect to the right shoulder injury. Generally, penalty benefits are not awarded where there is a legitimate dispute on either causation or the extent of impairment. Juste v. HyGrade Food Products Corp., IV Iowa Industrial Commissioner Reports, 190 (App. Dec. 1984). Likewise, 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. Linn Photo Page 14 Co., file number 916737 (App. Dec. 1992); Place v. Giest Construction Co., file numbers 931185, 891539 (1992); Shelton v. McDonald's Hamburgers, file number 976855 (1992); Boyd v. Western Home, file number 890207 (App. Dec. 1991). 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). Defendants were justified in questioning whether the right shoulder injury was caused by the accident that occurred on October 25, 1989, when claimant smashed his left hand against a trailer when he lost the balance of a 250 to 300-pound refrigerator. Claimant asserted that he reported right shoulder problems to his supervisor and the terminal supervisor as well as Dr. Kennard and Dr. Harris. The two supervisors denied any recollection that claimant complained of his right shoulder. Dr. Kennard's records did not show any complaints of his right shoulder, but claimant testified that he did mention his right shoulder and that he was told it would subside in time. Dr. Harris does not have an early record of the right shoulder in December 1989 when he first saw claimant, but does report the right shoulder complaints on April 17, 1990. Dr. Harris told the employer that he did not believe the right shoulder complaints were caused by the injury of October 25, 1989. Defendants, therefore, were justified for not paying benefits on account of the right shoulder complaints. With respect to the right shoulder it cannot be said that they delayed the commencement of benefits without reasonable or probable cause or excuse. Iowa Code section 86.13(4). This is not a situation where defendants obtained an opinion to support their denial just immediately prior to hearing. West v. O'Bryan Bros., Inc., file number 894094 (1991). The fairly debatable standard announced in the tort case of Dolan v. Aid Insurance Co, 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 (1990); Collins v. Hawkeye Moving and Storage, file number 873651 (1990). With respect to the left hand, claimant is entitled to penalty benefits because defendants delayed and failed to commence and pay claimant permanent partial disability for the injury to his left hand without reasonable or probable cause or excuse. Iowa Code section 86.13(4). Dr. Kennard, the company physician, sent claimant to Dr. Harris to determine whether the left hand injury was due to the accident which claimant reported had occurred on October 25, 1989. Dr. Harris determined that even though a portion of the injury appeared to be preexisting it appeared that a great deal of his impairment at that time was secondary to the injury (ex. 1, p. 28). On May 25, 1990, Dr. Harris stated, "It's my impression he's reached maximum improvement in the function of his left hand and has a residual impairment of 5% of his left Page 15 hand." (ex. 1, p. 25). Therefore, based upon their own expert, selected by the company physician, it is determined that the injury of October 25, 1989, was the cause of claimant's hand impairment and that claimant was entitled to payment for 5 percent impairment to the left hand back on May 25, 1990. If defendants were controlling the medical, they should not have been denying the injury. Defendants did not dispute an injury to the left hand at the first hearing. Therefore, it is determined that defendants did delay the commencement of permanent partial disability benefits for the injury to the left hand without reasonable or probable cause of excuse. Iowa Code section 86.13(4). Where the employer fails to pay permanent partial disability in accordance with the rating of his 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 (1989). The allowance for a hand is 190 weeks. Iowa Code section 85.34(2)(l). Five percent of 190 weeks equals 9.5 weeks. Fifty percent of the stipulated rate of $505.28 is $252.64. The 50 percent penalty benefits of $252.64 times 9.5 weeks which are the minimum amounts of permanent partial disability benefits that employer should have paid to claimant amounts to $2,400.08. This penalty is certainly not harsh when it is considered that Dr. Smith determined that claimant had sustained a 14.5 percent permanent impairment to the left hand just four months later on June 9, 1990 (ex. 1, p. 17). Defendants contend that since claimant did not designate penalty benefits as a hearing issue at the time of the first hearing, that claimant is now precluded from asserting penalty benefits at this second hearing. This is not correct. First, penalty benefits are being determined for permanent disability benefits. Permanent disability benefits were not an issue at the first hearing. Second, as noted earlier, deputies determine all issues designated as hearing issues which are supported by the evidence. Penalty benefits were designated a hearing issue. The evidence support that they should be paid. Defendants offered absolutely no reason for not paying permanent disability benefits which were determined by their own medical expert as 5 percent to the left hand. Claimant asserts that he is entitled to penalty benefits on the running award of temporary benefits awarded by Deputy Ingrassia at the first hearing. Claimant filed a motion for sanctions after the first hearing because defendants refused to pay the running award. The industrial commissioner joined the motion for sanctions with this second hearing. Defendants appealed the running award but the commissioner refused to rule on the appeal because it was an interlocutory matter because it was the result of a bifurcated proceeding which did not finally dispose of the case. Claimant brought an action in the district court for a Page 16 judgement on the running award, but the action was dismissed because the running award was not a final disposition of the case as required by Iowa Code section 86.42. It is determined that claimant is not entitled to penalty benefits based upon defendants' failure to pay the running award. The award was interlocutory. It did not finally dispose of the case. Defendants are not obligated to pay an award until it is finally adjudicated that they are obligated to pay it. As pointed out by defendants in their posthearing brief, if defendants were to pay the award, and then win on appeal, there would be no way they could recover the benefits paid. It is generally understood that defendants are not obligated to pay an award until it is finally determined that they are obligated to pay the award. CONCLUSIONS OF LAW Wherefore, based upon the foregoing and following principles of law, these conclusions of law are made: That the injury of October 25, 1989, was the cause of permanent disability to claimant's left hand to his right shoulder. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). That the injury to the left hand was a scheduled member injury and that the injury to the right shoulder was an injury to the body as a whole. That claimant sustained a 45 percent overall industrial disability to the body as a whole and is entitled to an award of 225 weeks of permanent partial disability benefits. Iowa Code section 85.34(2)(l) and (u). That the injury of October 25, 1989, was the cause of all of claimant's medical expenses for the left hand and the right shoulder and that claimant is entitled to be reimbursed for all of these expenses which total several thousand dollars, but the parties agreed at the hearing that they could work out the amount of benefits to be paid. That claimant is not entitled to penalty benefits for delay in the commencement of either healing period of permanent partial disability benefits with respect to the right shoulder, but that defendants are liable for penalty benefits for failure to timely pay permanent partial disability benefits for the left hand. Iowa Code section 86.13(4). ORDER THEREFORE, IT IS ORDERED: That defendants pay to claimant two hundred twenty-five (225) weeks of permanent partial disability benefits at the stipulated rate of five hundred five and 28/100 dollars ($505.28) per week in the total amount of one hundred thirteen thousand six hundred eighty-eight dollars ($113,688) commencing on May 21, 1992, as stipulated to by the parties. Page 17 That defendants pay to claimant two thousand four hundred and 08/100 dollars ($2,400.08) in penalty benefits. That all accrued weekly benefits and penalty benefits are to be paid in a lump sum. That interest will accrue on normal weekly benefits from when due pursuant to Iowa Code section 85.30. That interest on penalty benefits will accrue from the date of this decision. That defendants pay to claimant or the provider of medical supplies and services several thousand dollars in medical expenses for the left hand and the right shoulder and that the parties agreed that they could work out the payment of medical benefits without a specific award in this decision. That the costs of this action are charged to defendants pursuant to Iowa Code section 86.40 and rule 343 IAC 4.33. That defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of August, 1992. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Jacob J. Peters Attorney at Law 233 Pearl St PO Box 1078 Council Bluffs, IA 51502 Mr. E.J. Kelly Attorney at Law 2700 Grand Ave. STE 111 Des Moines, Iowa 50312 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : CARL CASON, : : Claimant, : : vs. : : File No. 938202 SIGNAL DELIVERY SERVICE, INC.,: : A R B I T R A T I O N Employer, : : D E C I S I O N and : : ALLSTATE INSURANCE, : : Insurance Carrier, : Defendants. : ____________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration filed by Carl Cason, claimant, against Signal Delivery Service, Inc., identified as employer, and Allstate Insurance Company, identified as insurance carrier, to recover benefits under the Iowa Workers' Compensation Act as the result of an injury sustained on October 25, 1989. This matter came on for hearing before the undersigned deputy industrial commissioner on June 13, 1991. The record was considered fully submitted at the time of the hearing. The record consists of joint exhibits 1 through 11; claimant's testimony and testimony from J. Michael Smith, M.D., Martin Walker and Ronald Bingaman. ISSUES Pursuant to the prehearing report and order submitted and approved on June 13, 1991, the following issues are presented for resolution: 1. Whether claimant sustained an injury to his right shoulder on October 25, 1989 which arose out of and in the course of his employment with employer; 2. Whether the alleged injury is a cause of temporary disability during a period of recovery; 3. The extent of entitlement to weekly compensation for temporary total disability or healing period, if defendants are liable for the injury; and, 4. Whether claimant is entitled to medical benefits under Iowa Code section 85.27. Defendants identified lack of notice under Iowa Code section 85.23 as a defense to this action. Page 2 FINDINGS OF FACT The undersigned has carefully considered all the testimony given at the hearing, the arguments made, the evidence identified in the exhibits herein, and makes the following findings: On October 25, 1989, while in the employ of Signal Delivery Service, claimant, a line haul driver, was unloading a boxed refrigerator when he lost his grip on the load, smashed his left hand on the side of the trailer and pulled his right shoulder muscle. He was treated by the company doctor, Lanny Harris, M.D. After failure of conservative therapy, Dr. Harris performed an excision of the dorsal exostosis and release of A-1 pulley of the left long finger (exhibit 1, page 60). Defendants stipulate that claimant sustained an injury to his left hand on October 25, 1989 and have paid for all medical treatment relative to that injury. Claimant alleges that he also sustained an injury to his right shoulder on October 25, 1989 which subsequently required treatment, including surgery. Defendants argue that claimant gave no notice at any time to the employer regarding a right shoulder injury and, if he sustained one, it was the result of some cause other than the specific incident on October 25, 1989. Claimant testified that, on October 25, 1989, after crushing his hand and pulling his right shoulder, he called his supervisor, Ron Bingaman, and told him to prepare an injury report. The next day, upon his return to Kansas City, he signed the report found at page 12 of exhibit 2. He testified that he read the report and signed it. He admitted that his right shoulder was of minimal concern to him at the time because he was more concerned with the severe pain and swelling in his left hand. Nevertheless, he returned to his usual duties until the pain became so severe that he went to see the company physician, G. Keith Kennard, M.D., who took him off work on November 20, 1989 (exhibit 1, pages 77-88). Dr. Kennard referred him to Dr. Harris who saw claimant on December 18, 1989. Claimant testified that he informed Dr. Harris that he had right shoulder pain as a result of his work injury, but Dr. Harris, being a hand surgeon, treated only his left hand and told him that his right shoulder pain would eventually subside. Dr. Harris released claimant to return to work on April 28, 1990. Claimant testified that, during the course of his treatment with Dr. Harris, he had continuing popping noise in his right shoulder and extreme discomfort. He informed Dr. Harris that he was not ready to return to work so soon after surgery. Claimant reported for work on May 1, 1990 despite stiffness in his left hand and right shoulder. On May 27, 1990, claimant visited with Dr. Harris with these complaints and was referred for a CT scan and arthrogram of the right shoulder. However, the tests were not approved by the insurance company. Page 3 Progress notes from Dr. Harris dated April 13, 1990 indicate that claimant presented with complaints of pain and catching in the right shoulder. A physical examination revealed a marked degree of subacromial crepitus and mild tenderness. X-rays were taken of the right shoulder and showed some mild degenerative changes at the AC joint. He was given a prescription for Butazolidin to alleviate his shoulder symptoms (exhibit 1, page 26). A return visit to Dr. Harris on May 25, 1990 revealed crepitus in the subacromial and pain on motion of the right shoulder. Dr. Harris stated in his notes: In regard to the right shoulder, I don't think this is a work-related phenomenon but represents a subacromial bursitis or tendonitis. There may be a rotator cuff lesion of a degenerative nature. He will need an arthro/CT scan but I have informed the patient that this will probably not be covered under his industrial claim and he is aware of this. (Exhibit 1, page 25) The insurance company did not approve further testing and claimant conferred with an attorney who referred him to J. Michael Smith, M.D., a specialist in occupational medicine. Dr. Smith testified at the hearing in this matter. He evaluated claimant on June 7, 1990 and May 24, 1991. It was Dr. Smith's medical opinion that claimant's right shoulder problems are related to his injury of October 25, 1989 and are a result of an overuse syndrome in compensating for his left hand limitations. Claimant saw Dale E. Darnell, M.D., on September 20, 1990 for complaints referable to right shoulder pain. He recommended a CAT scan and arthrogram. These tests were within normal limits and physical therapy was continued. His shoulder pain persisted and a right shoulder arthroscopy was performed on February 11, 1991. It showed a partial rotator cuff tear with significant synovitis and degenerative anterior superior labral defect. Arthroscopic surgery was then performed. He was started on a rehab program afterwards. On May 7, 1991, Dr. Darnell reported that an x-ray showed what appears to be a spike of bone either on the under surface of the acromion or the clavicle which may or may not be the source of his difficulty (exhibit 1, page 3). Dr. Harris testified in a deposition dated June 3, 1991. Dr. Harris testified in pertinent part as follows: Q. (By Mr. McKay) In your experience as an orthopedic surgeon, I imagine you believe that certain activities promote traumatic degeneration of joints such as possibly running causing degeneration of the knees, and other activities, weight lifting, causing degeneration of the shoulders and possibly the low back. Would you further be of the opinion that lifting objects Page 4 such as refrigerators and riding lawn mowers may also cause traumatic degeneration of shoulder joints? A. It may, yes. Q. In your practice have you had patients that have had surgery on one side and then through the recuperation and recovery process developed symptoms on the non-operated side because the non-operated side was doing extra work to compensate? A. Yes. (Dr. Harris deposition, page 58, lines 8 through 25) Martin Walker, terminal supervisor with employer, also testified at the hearing. He testified that between October 25, 1989 and May 1990, he had no notice of claimant's right shoulder injury. It was not until June 1990 that the company was aware that claimant was attributing his right shoulder injury to the injury he sustained on October 25, 1989. Ronald Bingaman, claimant's supervisor at the time of the injury, also testified at the hearing. He stated that he completed the injury form on October 25, 1989 and that Mr. Cason reviewed the form the next day and signed it. He testified that he had no notice in October or any other time that claimant hurt his right shoulder. Dr. Darnell testified in a deposition on June 12, 1991. He stated in pertinent part as follows: Q. Do you have an opinion based on reasonable medical certainty as to the cause of the anterior impingement syndrome and the partial rotator cuff tear of the right shoulder? A. Yes. Q. What is that opinion? A. I think that it's an overuse phenomenon as a result of his original injury, whenever that was, back sometime in 1989, from having to use his shoulder in a different manner, in a more stressful manner, if you will. And that's a well-recognized--well, I'm looking for the right word--a well-recognized mechanism of injury, if you will, a mechanism of cause of this kind of problem. (Dr. Darnell deposition, page 20, lines 8 through 21) CONCLUSIONS OF LAW Claimant has the burden of proving by a preponderance of the evidence that he received an injury to his right shoulder on October 25, 1989 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). An employee is entitled to compensation for any and all Page 5 personal injuries which arise out of and in the course of the employment. Section 85.3(1). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. School Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe v. DeSoto Consol. School Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union, et al., Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. School Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The claimant has the burden of proving by a preponderance of the evidence that the injury of October 25, 1989 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist 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). After carefully considering the total evidence in this case, the undersigned is persuaded that the claimant injured his right shoulder on October 25, 1989 while in the course of his employment with employer. At the time of his injury, claimant was performing his duties as a line haul driver. While fulfilling those duties, he crushed his left hand and hurt his right shoulder. Prior to this traumatic incident, claimant was asymptomatic. While, at the time of the injury, his left hand symptomatology was more severe than his right shoulder, this does not negate the reality of the shoulder injury. Although claimant was not initially treated for right shoulder problems, he was subsequently diagnosed by Dr. Darnell, a highly qualified orthopaedic surgeon, as having Page 6 anterior impingement syndrome and partial tear of the rotator cuff. On February 11, 1991, after failure of conservative therapy, Dr. Darnell did an arthroscopy with debridement of the rotator cuff and decompression of the subacromial space (exhibit 1, pages 1-13). Claimant's uncontroverted expert medical opinion causally relates his right shoulder impairment to his work-related injury on October 25, 1989. Accordingly, claimant has demonstrated by a preponderance of the evidence that he received a right shoulder injury on October 25, 1989 which arose out of and in the course of his employment. Defendants have raised the issue of lack of notice of the work injury within 90 days from the date of the occurrence of the injury under Iowa Code section 85.23. Lack of such notice is an affirmative defense. DeLong v. Highway Comm'n, 229 Iowa 700, 295 N.W. 91 (1940). In Reddick v. Grand Union Tea Co., 230 Iowa 108, 296 N.W. 800 (1941), the Iowa Supreme Court ruled that once claimant sustains the burden of showing that an injury arose out of and in the course of employment, claimant prevails unless defendants can prove by a preponderance of the evidence an affirmative defense. Although an employer may have actual knowledge of an injury, the actual knowledge requirement under section 85.23 is not satisfied unless the employer has information putting him on notice that the injury may be work related. Robinson v. Dep't of Transp., 296 N.W.2d 809 (Iowa 1980). Iowa Code section 85.23 provides as follows: Unless the employer or the employer's representative shall have actual knowledge of the occurrence of an injury received within ninety days from the date of the occurrence of the injury, or unless the employee or someone on the employee's behalf or a dependent or someone on the dependent's behalf shall give notice thereof to the employer within ninety days from the date of the occurrence of the injury, no compensation shall be allowed. Defendants have failed to prove, by a preponderance of the evidence, that claimant failed to give notice "of the occurrence of an injury" within 90 days of the October 25, 1989 incident. Testimony received at the hearing clearly reveals that the employer was aware of a work-related injury on October 25, 1989. Defendants contend that because claimant did not specifically report a right shoulder injury, he is precluded from asserting a compensable workers' compensation claim for that injury. However, section 85.23 requires only that the employer have actual knowledge of the occurrence of an injury which may be work related. Iowa Code section 85.24 sets out an example of proper formal notice. Claimant must notify employer only that a "personal injury" was sustained which is work related. Claimant complied with the notice requirement when he Page 7 reported the incident on October 25, 1989. There is no requirement that claimant cite with specificity the nature and extent of his injury or what part of the body was injured. The purpose of such notice is to give the employer an opportunity to investigate the injury. An employer has "actual knowledge of the occurrence of an injury when he or his representative has information that the employee suffered an injury and that the injury might be work related. Robinson v. Dep't of Transp., 296 N.W.2d 809, 811 (Iowa 1980). In Jacques v. Farmer's Lumber & Supply Co., 242 Iowa 548, 47 N.W.2d 236 (1951), the supreme court held that the ninety-day limit for notice does not commence running until the employee, acting reasonably, should know his injury is "both serious and work-connected." When the worker finds out many months later that the "minor" injury has become disabling and is actually a torn rotator cuff or disc, the notice provision should not, and does not, bar an otherwise legitimate claim for benefits so long as the worker reasonably failed to recognize the seriousness of the injury. Mefferd v. Ed Miller & Sons, Inc., Thirty-third Biennial Report of the Industrial Commissioner 191 (App. Decn. 1977). Employer directed claimant's course of treatment and focused such treatment on the more obvious left hand injury. Claimant was referred to a hand specialist who, according to claimant, was aware of his right shoulder problems, but was not authorized to provide treatment. Claimant also testified that he notified his supervisor that he wrenched his shoulder at the same time he hurt his left hand. Claimant had no way of knowing at the time of the incident that his right shoulder problems would evolve into a more serious condition. As it is, claimant worked with a useless left hand until Dr. Kennard took him off work on November 20, 1989. For at least one month between October 25, 1989 and November 20, 1989, claimant performed his usual heavy duties and had to overcompensate for his left hand deficiencies by overusing his right extremity. After hand surgery on February 13, 1990, claimant was released by Dr. Harris to return to his prior work on May 1, 1990. He testified that his hand was completely stiff and again overcompensated for its inefficiency by putting more stress on his right extremity. It was not until claimant obtained legal counsel and a referral to an orthopaedic surgeon that his right shoulder problems were investigated. Claimant's testimony regarding the circumstances and the reporting of his injury are found credible and entitled to significant weight and consideration. Accordingly, the undersigned concludes that defendants received proper notice of claimant's work-related injury and their affirmative defense fails. Defendants dispute that claimant's right shoulder injury is a cause of temporary disability. Claimant testified that, despite his protestations, Dr. Harris released him to return to work on May 5, 1990. By June 25, 1990, claimant was no longer able to continue Page 8 performing the heavy duties required in his job. His shoulder condition had become increasingly worse due to excessive overuse. He underwent surgery on February 11, 1991 and has not yet been released to return to work by Dr. Darnell. On May 20, 1991, Dr. Darnell reported that, "His most recent office visit (May 7, 1991) showed no change in his condition. An outlet view of his shoulder showed what appeared to be an osteophyte on the undersurface of his clavicle that was not noted on his pre-operative films." (Exhibit 1, page 7). Claimant testified that he does not have full use of his right upper extremity and demonstrated a limited range of motion at the hearing. It is evident that, at the present time, claimant is temporarily disabled due to his right shoulder impairment. Therefore, he is entitled to a running award of healing period benefits commencing June 26, 1990. Claimant is also entitled to payment of all medical expenses incurred for treatment of his shoulder injury, including a prescribed Airdyne cycle purchased on March 26, 1991. ORDER THEREFORE, IT IS ORDERED: That defendants pay claimant a running award of healing period benefits commencing June 26, 1990 at the stipulated rate of five hundred five and 28/100 dollars ($505.28) per week. That defendants pay claimant all medical bills incurred for treatment of his right shoulder injury. That defendants pay accrued amounts in a lump sum. That defendants pay interest pursuant to Iowa Code section 85.30. That defendants pay all costs pursuant to rule 343 IAC 4.33. That defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. That this matter is returned to docket for scheduling for prehearing and hearing on the bifurcated issues of permanency and causation to permanency. Signed and filed this ______ day of ____________, 1991. ______________________________ JEAN M. INGRASSIA DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Jacob J. Peters Page 9 Attorney at Law 233 Pearl Street P.O. Box 1078 Council Bluffs, Iowa 51502 Mr. E. J. Kelly Attorney at Law Suite 111, Terrace Center 2700 Grand Avenue Des Moines, Iowa 50312 51401 51402.20 2207 2209 1803.10 1803 51402.60 52500 52700 4000.2 Filed August 5, 1992 Walter R. McManus, Jr. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : CARL CASON, : : Claimant, : : vs. : : File No. 938202 SIGNAL DELIVERY SERVICE, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : ALLSTATE INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 51401 51402.20 2207 2209 It was determined that the injury was the cause of permanent disability to both the left hand and the right shoulder. The treating orthopedic surgeon and one evaluating orthopedic surgeon stated that after the injury to the left hand claimant shifted his work effort to the right upper extremity and over time, he sustained a cumulative injury to the right shoulder caused by the left hand injury. These two physicians were preferred over defendants' hand surgeon for causal connection of the shoulder injury. Causal connection was based on (1) simply because the doctors said so; (2) the sequalae theory; and (3) the cumulative injury theory and application of the Shank Doctrine that deputies determine all issues designated on the hearing assignment order supported by the evidence introduced at hearing. Cites. 1803.1 1803 The left hand injury was determined to be a scheduled member injury but the shoulder injury was determined to be an injury to the body as a whole and 45 percent industrial disability was awarded for all combined disability. Permanent disability factors are summarized. Several cites on whether scheduled member or body as a whole. The fact employer closed the business was not an economic Page 2 factor under Webb. It did not affect the economy of the entire area. It was an industrial disability factor pursuant to Mejorado and Tasler. 51402.60 52500 52700 Medical benefits awarded for both the left hand and the right shoulder. 4000.2 No penalty benefits were awarded for the right shoulder injury. It was a legitimate dispute under the old penalty cases and fairly debatable under the new penalty cases. Cites. No penalty benefits were awarded because defendants refused to pay a running award of temporary disability benefits awarded in a bifurcated proceeding. The running award was appealed and held to be interlocutory because it did not dispose of the entire case. It was determined that defendants are not obligated to pay until their liability is finally adjudicated. Claimant applied for a judgment on the running award in district court but it was dismissed because the running award was not a final disposition of the case as required by Iowa Code section 86.42. Claimant was awarded penalty benefits for the permanent impairment to the left hand which was assessed by their own choice of hand surgeon who said it was caused by this injury and assessed a 5 percent permanent impairment. Defendants never paid claimant and offered no reason for not doing so. A 50 percent penalty benefits was assessed. 5-1402.30; 5-1402.50; 5-1403.30; 5-1802 Filed June 20, 1991 JEAN M. INGRASSIA BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ CARL CASON, Claimant, vs. File No. 938202 SIGNAL DELIVERY SERVICE, INC., A R B I T R A T I O N Employer, D E C I S I O N and ALLSTATE INSURANCE, Insurance Carrier, Defendants. ____________________________________________________________ 5-1402.30; 5-1402.50; 5-1403.30; 5-1802 The parties stipulate that claimant sustained an injury to his left hand in the course of employment and defendants have paid benefits and all medical for treatment. Claimant claims an injury to his right shoulder at the same time he injured his left hand and requests running healing period benefits and medical bills for treatment, including surgery. Medical evidence supports claimant's claim. Uncontroverted expert opinion causally connects right shoulder impairment to work-related injury. Defendants raise 85.23 notice defense. Defendants failed to prove by a preponderance of the evidence that claimant failed to give notice "of the occurrence of an injury" within 90 days of the incident. Employer was aware of a work-related injury on the day of the incident, therefore their defense fails. Page 1 before the iowa industrial commissioner ____________________________________________________________ : WALTER BANKSTON, : : Claimant, : : vs. : : File No. 938370 UNITED TECHNOLOGIES CORP. : (formerly known as : SHELLER GLOBE) : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CIGNA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This case came on for hearing on June 20, 1991, at Burlington, Iowa. This is a proceeding in arbitration wherein claimant seeks compensation for permanent partial disability benefits as a result of an alleged injury occurring on May 1, 1990. The record in the proceeding consists of the testimony of the claimant and joint exhibits 1 through 12. issues The issues for resolution are: 1. Whether claimant's alleged disability is causally connected to a May 1, 1990 work injury; and, 2. The nature and extent of claimant's disability and entitlement to disability benefits. findings of fact The undersigned deputy having heard the testimony and considered all the evidence, finds that: Claimant is a 50-year-old high school graduate who has basically worked manual labor jobs his entire work life. Claimant has worked for defendant employer or his predecessor for seven years as of June 27, 1991. Defendant employer makes automotive parts. Claimant began working for defendant employer on June 27, 1984, in the rubber department. This department makes the rubber that goes around windows of vehicles, weatherstripping, etc. Claimant began noticing a rash on his arms and hands in 1987 and then again in 1990. He described the rash on his Page 2 arms and hands as if his skin had been burned in an oven. Claimant is a black man and these rash areas are darker than his normal skin. Claimant showed the undersigned the areas of both arms where he contends the condition still exists. Claimant contends the rash condition is caused by the rubber or chemicals contained therein. Claimant said defendant employer pulled him away from the rubber department and it cleared up a lot, especially his hands which he said were swollen and his palms were a darker black color. He said the hand problem went away when he stopped working with rubber, but some effects on his arms have never gone away. Claimant now works in the padding area but does not make as much money. He indicated the hourly difference is one to five hours. He could not explain the wide hourly difference but it appears the incentive program may have made a difference. Through further questioning by his attorney, it appears generally he is making $1 per hour less than when he was working in the rubber department. Claimant said he is fine now but still uses medication. On cross-examination, claimant again went over his prior work history, 15 years of which he worked for DeLuxe Printing at $8 per hour. He said with more training, he probably could return to that type work. Claimant has not looked for other work. He said his last visit to Robert R. Kemp, M.D., was in January 1990 but joint exhibit 12 indicates it was April 17, 1990. Claimant indicated he has missed work due to his rashes. His hands were stiff and cracked and he would then leave work. He did not say when he missed work but said the last time he missed, he was in the rubber department. There is no evidence indicating any actual days lost at work regarding an injury that is involved herein. Dr. Kemp testified through his deposition on June 17, 1991, that he first saw claimant on April 4, 1987 because of a rash on claimant's hands and arms up to his elbows. He described it as eczema, like a scaling and thickening of the skin, irritation, probably some redness and some general swelling of the arms. He said he thought it was contact dermatitis (Jt. Ex. 12, p. 4). Dr. Kemp gave claimant steroids or cortisone injections and lubricating ointments. He indicated that around September 8, 1987, he referred claimant to a dermatologist, Margaret Kopchick, M.D., who said claimant's condition was contact dermatitis, probably related to rubber products. He said claimant improved and he didn't see claimant from the end of October to February 13, 1990, when claimant returned with the same problem (Jt. Ex. 12, p. 9). He said the rash was active again on claimant's forearms and he continued again with the ointments. On April 17, 1990, claimant returned again and his forearms were worse and claimant related he had been working around ovens. The doctor told him he should not do this. He has not seen claimant since this April 17, 1990 appointment. The doctor said there was no testing done and it did not Page 3 appear claimant was becoming more sensitive to other materials beyond where he started out originally. He indicated Dr. Kopchick did not see need for further testing. He did not know if claimant was taking medication. Dr. Kemp stated claimant's condition would most likely continue as long as he was around the same type product. The doctor did not take claimant off work but on August 10, 1987, suggested a transfer to a different job or another department. He understood that was a position change and claimant has less of a problem (Jt. Ex. 12, p. 9). Margaret A. Kopchick, M.D., wrote a letter on September 15, 1987 (Jt. Ex. 7), indicating at that time claimant's contact dermatitis was resolving itself and prescribed ointment. She said it was not uncommon for the activators in rubber products to still be existing on new rubber products and to cause contact dermatitis. Claimant's records show that it was suggested to claimant to change departments and avoid rubber materials (Jt. Ex. 10, pp. 11-12). When claimant transferred to the new department, which appears to have occurred in August 1987, he was told he could continue working at this new job (Jt. Ex. 10, pp. 13-14; Jt. Ex. 11, p. 15). Claimant contends he has a body as a whole disability. The evidence is clear that claimant's contact with rubber or the chemicals in the rubber causes a rash-allergen reaction to claimant. It is further obvious that claimant's removal from this allergen seems to resolve the problem. Claimant showed the undersigned his current rash or skin problem. Claimant has not seen a doctor since April 17, 1990. There is no further medical since that date. The dermatologist did not seem to think testing was necessary. Defendant employer is not obligated to keep claimant in a department if he has allergy reactions. Claimant's removal from the allergen appears to have solved the problem. There is no current medical indicating claimant's current complaint is connected to his work. Claimant desires to continue working for defendant employer. If claimant feels his allergy is the result of an allergen at work, he could seek other employment or possibly another department within his current employer's place of business. Claimant's condition is not a permanent condition but only an allergic reaction and his removal from the allergen solves his problem. There is no evidence that claimant missed any work nor was he temporary totally disabled. His condition appears transitory depending on his contact with an allergen, in this case, rubber materials or chemicals therein. The undersigned did not see claimant's condition in 1987 up to the stipulated date of injury of May 1, 1990. The claimant's skin looks more like a blotch than a rash. There is no evidence of a permanent impairment. There are no restrictions. Claimant is making $1 per hour less in his current job. If claimant goes back to his former job in the rubber department, he obviously will have worse problems Page 4 including swollen hands, which condition he currently does not have. Claimant's loss of income is due to his body makeup and disposition to reaction to certain allergens that others don't necessarily react to. By removing himself from these allergens, he is okay. The undersigned finds claimant had a temporary allergic reaction to rubber while working at defendant employer, but this injury to which the parties stipulated arose out of and in the course of claimant's employment on May 1, 1990, did not result in claimant incurring any healing period, temporary total disability or permanent partial disability. Claimant has failed in carrying his burden of proof to show any causal connection of his May 1, 1990 exposure injury to any temporary total disability or permanent disability or healing period. It is therefore found that claimant takes nothing further from these proceedings. conclusions of law The claimant has the burden of proving by a preponderance of the evidence that the injury of May 1, 1990, is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). An injury is the producing cause; the disability, however, is the result, and it is the result which is compensated. Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). Page 5 It is further concluded: Claimant failed to carry his burden of proof to show claimant's current alleged condition is causally connected to his May 1, 1990 work injury, the exposure to rubber or chemical makeup. Claimant is entitled to no healing period, temporary total disability or permanent partial disability benefits. Claimant has no permanent impairment or compensable permanent injury, industrial disability, or any scheduled injury to which he is entitled to disability benefits. Claimant has been paid all his medical benefits as stipulated by the parties. order THEREFORE, it is ordered: That claimant takes nothing further from these proceedings. That defendants shall pay the costs of this action, pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of July, 1991. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr James P Hoffman Attorney at Law Middle Road Keokuk IA 52632 Mr Harry W Dahl Sr Attorney at Law 974 73rd St Ste 16 Des Moines IA 50312 5-1108; 5-1803 Filed July 3, 1991 Bernard J. O'Malley before the iowa industrial commissioner ____________________________________________________________ : WALTER BANKSTON, : : Claimant, : : vs. : : File No. 938370 UNITED TECHNOLOGIES CORP. : (formerly known as : SHELLER GLOBE) : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CIGNA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1108 Found no causal connection to claimant's alleged disability and his work injury. 5-1803 Found claimant did not have any permanent disability.