BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ DENNIS CROATT, Claimant, vs. File No. 938446 WELLS BLUE BUNNY QUALITY FOODS, A P P E A L Employer, D E C I S I O N and ATLANTIC MUTUAL INSURANCE CO., Insurance Carrier, Defendants. _________________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. ISSUES The issue on appeal is whether a settlement between claimant and an alleged third-party tort-feasor should be approved. FINDINGS OF FACT On December 27, 1989 Dennis Croatt (hereinafter claimant) sustained an injury to his right arm while employed by Wells Blue Bunny Quality Foods (hereinafter employer). Claimant was attempting to lubricate an ice cream freezer when the machine was activated and his arm became entangled in a flywheel of the machine. The machine was used by the employer in its production process. The machine was manufactured by Crepaco, Inc., (hereinafter Crepaco). Claimant suffered severe damage to his arm that resulted in an amputation between the elbow and the wrist. Claimant and his wife brought an action against Crepaco in federal district court on the theory of product liability. In a letter dated April 21, 1993 claimant's counsel expressed a willingness to release all claims against Crepaco in consideration for payment of the sum of $1,150,000. That letter also outlined the basis for arriving at the amount of the consideration as follows: Past medical expenses--$67,266; future medical expenses and prosthesis replacement--$32,943; past lost wages--$8,000; and past and future economic loss--$298,028. The remainder (calculated here to be $743,763) was unspecified amounts for claimant's past and future pain; claimant's future permanent loss of bodily function; and claimant's wife's loss of consortium. (Defendants' Exhibit 9) Numerous depositions were taken in the third-party action against Crepaco. (Cl. Ex. 1 and Def. Ex. 1) On September 27, 1993 a settlement conference was arranged by the federal court. At the conclusion of the settlement conference counsel for claimant and his wife and counsel for Crepaco proposed a settlement in the amount of $225,000 with $75,000 being paid to claimant and $150,000 being paid to claimant's wife. Counsel for employer's workers' compensation insurer objected to the settlement. The employer's workers' compensation insurer had filed a lien in the tort action by claimant and his wife against Crepaco. As of January 10, 1994 the employer's workers' compensation insurer had paid claimant $65,185.23 weekly benefits; $14,451.01 vocational rehabilitation; and medical $72,724.91. Excluding any additional medical bills the total workers' compensation anticipated to be paid was $186,171.91. (Def. Ex. 13) In an affidavit the counsel for Crepaco described in detail background information used to formulate his opinion that a jury could very well determine that claimant's fault exceeded 50 percent of the total fault contributing to the accident. (Cl. Ex. 1, p. 6) It was also this counsel's professional opinion that Crepaco had a higher risk of being held liable for substantial damages for claimant's wife's loss of consortium claim if the case were to go to trial. (Cl. Ex. 1, p. 10) There is ample evidence in the record to find that claimant's negligence may have contributed to his injury. (Cl. Ex. 1) There is evidence to find that a jury could find that claimant's fault exceeded 50 percent of the total fault contributing to the accident. (Cl. Ex. 1) It is safe to assume that a prudent individual would not ordinarily place his arm inside a machine which could be activated either automatically or from a remote location without taking steps available to prevent an unexpected activation of the machine. If claimant's percentage of fault was greater than the combined percentage of fault attributed to the defendants in his third-party action, he would be barred from a recovery by Iowa Code section 668.3(1). Any damages allowed claimant would be diminished in proportion to the amount of fault attributable to the claimant. See Iowa Code section 668.3(1). Claimant's spouse's claim of loss of consortium would not be barred nor reduced by the fault of claimant. See Nichols v. Schweitzer, 472 N.W.2d 266 (Iowa 1991) and Fuller v. Buhrow, 292 N.W.2d 672 (Iowa 1980). CONCLUSIONS OF LAW Iowa Code section 85.22(3) provides: Before a settlement shall become effective between an employee or an employer and such third party who is liable for the injury, it must be with the written consent of the employee, in case the settlement is between the employer or insurer and such third person; and the consent of the employer or insurer, in case the settlement is between the employee and such third party; or on refusal of consent, in either case, then upon the written approval of the industrial commissioner. The supreme court has interpreted Iowa Code section 85.22. In Mata v. Clarion Farmers Elevator Corp., 380 N.W.2d 425 (Iowa 1986) the court noted the legislative plan for the reimbursement of employers/insurers set forth in section 85.22. We said in Liberty Mutual Insurance Co. v. Winter, section 85.22 "constitute[s] a comprehensive system for allocating the proceeds of a third-party judgment or settlement between the worker and his employer or insurer who has paid workers' compensation." Liberty Mut. Ins. Co. v. Winter, 385 N.W.2d at 531. The plain purpose of section 85.22 is to "prevent double recovery by the injured workercompensation in a law action as well as workers' compensation for the same injury." Id. at 532. The legislature expressly entrusted to the industrial commissioner the responsibility to protect the rights of employers, insurers, and employees from unfair and inadequate settlements of claims. Iowa Code 85.22(3). Shirley v. Pothast, 508 N.W.2d 712, 717 (Iowa 1993) The issue to be resolved is whether the settlement between claimant and Crepaco, as a third-party tort-feasor should be approved. The rights of the employer and its workers' compensation insurance carrier must be protected. Settlement of the tort claim must be fair and adequate. The amount of $75,000 for settlement of claimant's claim is fair. There was a possibility that claimant might have taken nothing from the tort claim. Claimant's fault may have exceeded the fault attributed to the defendants. If a jury so found, claimant would be barred from any recovery. There was also a possibility that claimant would be found at fault and his award of damages would be diminished in proportion to his fault. Claimant's counsel made a demand for settlement of $1,150,000 for all damages and five months later at a settlement conference a settlement in the amount of $75,000 for claimant's damages was reached. Under the facts of this case a settlement amount of $75,000 was fair. It must also be decided if the $75,000 settlement amount was adequate. The tort action settlement allowed $75,000 for claimant and $150,000 for claimant's wife's loss of consortium claim. As discussed above there was a possibility that because of the operation of Iowa Code section 668.3, claimant might take nothing or his claim might be reduced. Claimant's wife's claim for loss of consortium would not be reduced by claimant's fault. The amount of the settlement demand made in April 1993 attributed approximately $750,000 to claimant's past and future pain; claimant's future permanent loss of bodily functions and claimant's wife's loss of consortium. Claimant's wife's damages for loss of consortium would ultimately be determined by the trier of fact if this matter proceeded to trial. A portion of the $750,000 related to the claim for loss of consortium. The settlement allowing claimant $75,000 and claimant's wife $150,000 for loss of consortium is a reasonable allocation given the amount initially demanded and the relative possibility of recovery. Also there was the possibility that there might be no award or a diminished award for claimant's claims for a portion of the $750,000. Furthermore, claimant's wife's compensation for her loss of consortium would not constitute double recovery by claimant. It should be noted that the amount of settlement of claimant's wife's loss of consortium claim is examined only for the purpose of determining whether the employer's workers' compensation insurer's rights are adequately protected in the settlement of claimant's tort claims. The $75,000 amount to be paid to the claimant will not totally reimburse the workers' compensation insurer for the amount it may be obligated to pay to claimant (estimated to be approximately $186,000). The amount of the settlement does prevent claimant from having a double recovery to the extent of the settlement. While the workers' compensation insurer's total liability may not be reimbursed fully in this settlement, this is a situation where the workers' compensation insurer's rights are fairly and adequately protected by the amount of this settlement. The settlement under the facts of this case is fair and adequate. The settlement adequately protects the employer's workers' compensation insurer's rights. The settlement between claimant and Crepaco should be approved. WHEREFORE, the decision of the deputy is affirmed. ORDER THEREFORE, it is ordered: That the settlement between Crepaco and claimant concerning claimant's December 27, 1989 work injury for the sum of seventy-five thousand and 00/100 dollars ($75,000) with its conditions is hereby approved. That defendants shall pay the costs of this matter including the transcription of the hearing. Signed and filed this ____ day of January, 1995. _______________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Daryl L. Hecht Attorney at Law P.O. Box 27 Sioux City, Iowa 51102 Mr. James W. Redmond Mr. Daniel Shuck Attorneys at Law P.O. Box 3086 Sioux City, Iowa 51102 Mr. N. Richard Willia Attorney at Law P.O. Box 1768 Sioux City, Iowa 51102 3400 Filed January 25, 1995 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ DENNIS CROATT, Claimant, vs. File No. 938446 WELLS BLUE BUNNY QUALITY FOODS, A P P E A L Employer, D E C I S I O N and ATLANTIC MUTUAL INSURANCE CO., Insurance Carrier, Defendants. _________________________________________________________________ 3400 A settlement between claimant and an alleged third party tort feasor was approved. The amount of the settlement ($75,000) was fair and adequate. There was a possibility under the facts of this case that claimant's comparative fault would have reduced or barred any recovery by claimant. Claimant's wife's loss of consortium claim was also to be settled (for $150,000). The loss of consortium claim settlement was examined but only for the purpose of determining whether the employer's workers' compensation insurer's rights were adequately protected. Those rights were adequately protected and claimant's settlement was approved. 5-1803 Filed March 31, 1994 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DENNIS CROATT, : : Claimant, : : File No. 938446 vs. : : E X P E D I T E D WELLS BLUE BUNNY QUALITY FOODS, : : H E A R I N G Employer, : : D E C I S I O N and : : ATLANTIC MUTUAL INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803 Non-precedential, extent of disability case. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : DENNIS CROATT, : : Claimant, : : File No. 938446 vs. : : E X P E D I T E D WELLS BLUE BUNNY QUALITY FOODS, : : H E A R I N G Employer, : : D E C I S I O N and : : ATLANTIC MUTUAL INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is an expedited proceeding under Industrial Commissioner rule 343 IAC 4.44 brought by Dennis Croatt, claimant, against Wells Blue Bunny Quality Foods, employer, hereinafter referred to as Wells, and Atlantic Mutual Insurance Company, insurance carrier, defendants, pursuant to Iowa Code section 85.22(3) for the industrial commissioner's approval of a settlement against a third party, Crepaco. On January 26, 1994 a hearing was held on claimant's petition. The matter was not concluded at that time and additional time was granted to the parties. The parties then agreed to submit the balance of the evidence by means of video tape and this was approved. The matter is now considered fully submitted. The parties have submitted a hearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. The oral testimony and written exhibits received during the hearing are set forth in the hearing transcript. The evidence consists of the transcript of the hearing on January 26, 1994; claimant's exhibits 1-10; and defendants' exhibits 1-15. ISSUE The only issue submitted by the parties is whether or not the settlement between claimant and Crepaco is reasonable and not for the purpose of defeating a lien by Wells arising from workers' compensation benefits paid to claimant for an injury on December 27, 1989. FINDINGS OF FACT Having heard the testimony and considered all of the Page 2 evidence, the deputy industrial commissioner finds as follows: A credibility finding is necessary to this decision as defendants placed claimant's wife's credibility and those of the attorney for Crepaco at issue during the hearing as to the true intent behind the settlement. From their demeanor while testifying, Crepaco's attorney and claimant's wife are found credible. The problem in this case arises from the fact that not only claimant's claim is being settled with Crepaco but as a part of a total settlement package, claimant's wife's claim against Crepaco for loss of consortium is also being settled. The settlement, as proposed, is the sum of $75,000 cash for claimant and the sum of $150,000 cash for claimant's spouse. On its face, the disparity of settlement amounts between claimant and his wife appears unusual as claimant, a maintenance man at Wells, was severely injured. The injury of December 27, 1989 occurred when claimant's right arm became entangled in a flywheel located on an ice cream freezer at Wells while he was attempting to serve the freezer. Claimant suffered devastating damage and eventually his arm was amputated between the elbow and wrist. Claimant and his wife then instituted their claims against Crepaco, the manufacturer of the freezer. However, as explained by Crepaco's attorney, whose views on this matter are uncontroverted, the larger amount to claimant's wife was due to Iowa's law on comparative or contributory negligence. Claimant was subject to this law which states that his claim for damages against Crepaco for negligence could be defeated if he was more than 50 percent negligent in the accident. On the other hand, claimant's wife's claim for loss of consortium was not subject to this comparative or contributory negligence limitation. There was ample evidence available that the proper procedure on the day of injury was to interrupt all power to the motors before servicing the freezer. Power could be interrupted by means of several devices located near the location where claimant had to service the freezer. There was a knife switch located only a few steps away. There was an emergency shut off only a few steps away and yet another device to stop power to the motors. Claimant chose instead to rely upon production schedules to indicate when the machine would be used and subject to turn on. Apparently the freezers in the plant are controlled by technicians located on the floor above and on-board computers. Defendants offered evidence that supervisors and fellow employees at times did not use the power cut-off switches and that warning signs were not in place. Also, that Crepaco's training of operators did not cover power interruption procedures. Defendants pointed out that use of micro switches that would automatically shut off power whenever protective hoods were removed for service was a cheap and easy solution to reduce the hazard and use of such Page 3 switches was routine with other freezer makers. However, the fact remains, as admitted by fellow employees, that the best and safest precaution was to interrupt the power. Defendants failed to show that there was no risk that claimant could not be found more than 50% at fault. Certainly, Crepaco's attorney admitted to some liability exposure and this is the reason for the $75,000 offer. Given the problems with Iowa's comparative fault approach, such an offer was not unreasonable. Finally, defendants failed to show that the $150,000 settlement for claimant's spouse is unreasonably high. Admittedly, it is conditional upon approval of claimant's settlement. However, she was not subject to the comparative fault defense. Ample evidence was available to show that she suffered a great deal from this incident. The trauma to her loved one was very troublesome for her. The time and energy she consumed during the recovery process was extremely demanding. She was compelled to not only maintain her own job but care for claimant's serious injury as well. She also suffered mental depression and extreme stress over the incident itself as well as from the loss of claimant's assistance at home and in the operation of their farm. Admittedly, claimant has expanded his operations since the injury but this is due to the availability of help from his three sons. The proposed settlement of this consortium claim is found reasonable. Consequently, the settlement offer of $75,000 to claimant conditioned upon a settlement of the spouse's consortium claim for $150,000 is reasonable and not for the purpose of defeating Well's lien and it should be approved. CONCLUSIONS OF LAW Under Iowa Code section 85.22(3), if the employer refuses to consent to a third party settlement between the claimant and a third party, this agency may approve the settlement in the exercise of our discretion. From the above findings, it is held that the settlement, as proposed, is not unreasonable and not for the purpose of defeating the lien of Wells. Therefore, it will be approved. ORDER 1. The settlement between Crepaco and claimant concerning claimant's injury at Wells on December 27, 1989 for the sum of seventy-five thousand and no/l00 dollars ($75,000.00) with its conditions including the settlement of the claim of his wife for one hundred fifty thousand and no/l00 dollars ($150,000.00) is hereby approved. 2. Defendants shall pay the costs of this action pursuant to rule 343 IAC 4.33.. Signed and filed this ____ day of March, 1994. Page 4 ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Daryl L. Hecht Attorney at Law 614 Pierce Street P O Box 27 Sioux City, Iowa 51102 Mr. James W. Redmond Mr. Daniel Shuck Attorneys at Law 701 Pierce Street, STE 200 P O Box 3086 Sioux City, Iowa 51102 Mr. N. Richard Willia Attorney at Law 501 Pierce Street STE 400 P O Box 1768 Sioux City, Iowa 51102 Page 1 before the iowa industrial commissioner ____________________________________________________________ : TERRANCE J. MACINERNEY, : : Claimant, : : vs. : : File No. 938491 TRI-TEK INDUSTRIAL, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : FIDELITY & CASUALTY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration upon the petition of claimant, Terrance J. MacInerney, against his employer, Tri-Tek Industrial, and its insurance carrier, Fidelity & Casualty Insurance Company. The case was heard on January 9, 1992, in Dubuque, Iowa at the Dubuque County courthouse. The record con sists of the testimony of claimant. The record also consists of the testimony of Joe MacInerney, father of claimant; Jim Nichols, friend; David Selle, former supervisor of claimant; Jeffrey Rowling, former foreman; Colin Kelly, former employee of defendant-employer; and Mary Katherine Birds, owner of defendant-employer. The record also consists of claimant's exhibits 1, 2 and 3 and defendants' exhibits A-Q. issues The issues to be determined are: 1) Whether claimant sus tained an injury which arose out of and in the course of his employment; 2) whether there is a causal relationship between the alleged injury and the disability; 3) whether claimant is enti tled to temporary disability/healing period benefits or permanent partial disability benefits; and 4) whether claimant is entitled to medical benefits pursuant to section 85.27 of the Iowa Code. findings of fact The deputy, having heard the testimony and considered all the evidence, finds: Claimant is 36 years old. He is married but separated from his wife. Claimant is the father of an eight-year-old son. Claimant commenced his employment with defendant-employer in 1989. He was hired to paint and sandblast at $8.00 per hour. Defendant-employer is engaged in painting and sandblasting. The company sandblasts and paints parts for John Deere tractors. Page 2 It also provides painting and sandblasting services in the con struction industry. The company also contracts to paint water towers. Claimant dropped out of the eleventh grade in high school. As of the date of the hearing, claimant had not obtained a GED. He had no other training. Claimant had held a number of jobs prior to his employment with defendant-employer. Many of the positions were in the con struction industry. Claimant worked as a manual laborer, a roofer and a well digger. On November 17, 1989, Ms. Bird telephoned and asked claimant to come into the shop that morning and to sandblast parts. However, claimant did not arrive until noon on that day. A co-employee, Colin Kelly, assisted claimant in unloading John Deere parts from a truck. Then Mr. Kelly left claimant to work on the project alone. Claimant operated a high pressure hose. He also dumped 100 pound bags of sand into a hopper which was about five feet high. The job necessitated personal protective equipment. Claimant wore a hood and a charcoal filtered mask. The hood was fitted with glass. Claimant was also required to stand in a booth in order to complete his tasks. Claimant testified the job was a two person job but he worked alone for about an hour before he began experiencing pains in his chest and back. He testified that he then fell to his knees in cramps while he was sweating profusely. Claimant testi fied he went to the back of the building and sat. After several minutes, he stated he went to the office where he sought help. Ms. Bird testified to some different facts. She testified the job was for one person and that claimant started the machine's compressor and after only a few minutes she heard the compressor shut down. She also testified she saw claimant walk to his car and sit in it for 15 to 20 minutes. Then she stated claimant came into the office, sat in a chair and requested medical assistance. Dennis Bird then transported claimant to a local chiroprac tor who referred claimant to the hospital emergency room where an electrocardiogram showed evidence of an acute anterior myocardial infarction. (Defendants' exhibit A, page 2) Claimant was treated by J. S. Chapman, M.D. He referred claimant to the University of Iowa Hospitals and Clinics. At the University of Iowa, Richard E. Kerber, M.D., a cardi ologist, treated claimant. Dr. Kerber diagnosed claimant's con dition as: 1) anterior wall myocardial infarction on November 17, 1989, 2) mistral stenosis, mild. (Ex. 1, p. 6) Claimant was discharged from the hospital on November 28, 1989. He returned to the university of Iowa for follow up treat ment. In his letter of March 8, 1990, Dr. Kerber opined the fol lowing relative to claimant's condition and restrictions: In addition, Mr. MacInerney has an abnormality of one Page 3 of the heart valves, presumably resulting from an ear lier attack of rheumatic fever and producing a condi tion known as mitral stenosis, a narrowing of the mitral valve. The contribution of this problem to his heart attack is uncertain, but mitral stenosis is not generally believed to be related to stress. Thus, in sum it is fair to say that Mr. MacInerney's heart attack may have been precipitated in part by his strenuous physical labor, but it is not generally held that such physical labor is a cause of the underlying heart disease which ultimately produced the heart attack. In any case, Mr. MacInerney has been advised strongly not to continue performing such strenuous physical labor because of the concern that further heart attacks or heart damage may be helpful.... (Ex. 1, p. 3) In December of 1989, the family physician, Dr. Chapman, advised claimant to participate in vocational rehabilitation. Dr. Chapman wrote in his office note for December 29, 1989 that: RECOMMENDATIONS: Patient instructed to contact Vocational Rehab for vocational training to equip him to do something less strenuous than his present line of work. (Defendants' Ex. C, p. 21) Claimant did not participate in vocational rehabilitation. He remained home for six to seven months. Approximately one year after his heart attack, claimant obtained employment at a local discount store where he was required to stock shelves and drive a fork lift truck. Claimant held the job for 11 months. He earned $4.25 per hour but he testified he terminated his position because of the lifting involved, and because he was refused a raise in pay. At the time of the hearing, claimant was collecting scrap metal. He was also performing odd jobs and gardening at a funeral home in exchange for rent. His duties at the home included staining, stripping, gardening and shoveling sidewalks. conclusions of law There is no dispute that claimant sustained a heart attack while he was working at defendant-employer's establishment, and while claimant was sandblasting John Deere parts. At the time of the heart attack, claimant was performing his assigned duties. The crucial question here is whether claimant's condition is causally related to claimant's work duties. In a workers' compensation case, causal connection must be established. The claimant has the burden of proving by a prepon derance 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 Page 4 possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296, 297 (Iowa 1974). The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circum stances. 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). In a case where a heart attack is at issue, claimant must establish the requisite causal connection between the heart attack and the work activity. Iowa claimants with preexisting circulatory or heart conditions are permitted, upon proper medi cal proof, to recover workers' compensation benefits where the employment contributes something substantial to increase the risk of injury or death. The employment contribution must take the form of an exertion greater than nonemployment life. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). The comparison, however, is not with the employee's usual exertion in employment, but with exertions of normal nonemployment life of this or any other person. Id. These exertions may be physical or emotional. Swalwell v. William Knudson & Son, Inc., II Iowa Industrial Commissioner Report 385 (Appeal Decision 1982). The Sondag rule is favored by Professor Larson in his treatise on workers' com pensation. See 1A Larson Workmen's [sic] Compensation Law, sec tion 38.83 at 7-172. According to Professor Larson, the causa tion test is a two-part analysis. First, medical causation must be established. That is, medical experts must causally relate the alleged stress, whether emotional or physical, to the heart injury. Second, legal causation must be established. That is, the fact finder must determine whether the medically-related stress is more than the stress of everyday nonemployment life. With respect to the case at hand, claimant has not demon strated that his employment has contributed substantially to increase the risk of injury. He has not established medical cau sation. First of all, claimant had several risk factors for heart disease which were unrelated to his work environment. Claimant had a family history of heart disease. His father had suffered a heart attack. Claimant's maternal uncle had a heart attack. Claimant was a heavy smoker for 12 years or more. There was evidence that claimant had smoked two packs of cigarettes per day. Thirdly, claimant had a history of alcohol abuse. He was hospitalized shortly before the heart attack for substance abuse. Claimant suspended his treatment. Next, claimant had been under severe emotional distress because of a broken relationship with his significant other. Claimant had made several futile efforts to reconcile with her but the woman had resisted his efforts. Claimant had expressed his unhappiness with the broken relation ship to co-employees. There was evidence in the medical records that claimant had attempted suicide by taking over the counter sleep medication. The suicide attempt was several weeks prior to Page 5 the heart attack. Claimant testified under cross-examination that he had been depressed because of the loss of a job, having no money, and because of the death of his mother one year prior. The medical evidence does not support a causal connection between the heart attack and claimant's work environment. Richard Kerber, M.D., opined in his deposition that: Q. Can you quantify the causal relationship for me, a fifty-one percent or sixty percent? Can you quan tify that if you have the ability? A. That's very difficult because I think either condi tion alone, that is he was fine with presumably no preexisting heart disease that wasn't causing his symptoms, so it can't be that alone. The job itself if he didn't have an existing heart problem wouldn't cause symptoms. If you push me I would perhaps say it's a 50/50 deal, but that's a very rough judgment. And it's sort of a subjective judgment rather than objective and I don't think any physician in the world could give you a more exact balance of the contribution than what I have just said. (Joint Ex. 3, p. 14, lines 7-20) Dr. Kerber, the treating physician, did not opine that claimant's employment contributed substantially to increase the risk of injury. His opinion was also given less weight by the undersigned because he did not have all of the facts available to him. Until the deposition, Dr. Kerber had no knowledge of claimant's substance abuse, nor was the cardiologist aware that claimant had attempted suicide because of severe emotional dis tress. The medical opinions of the other two evaluating physicians do not support a causal connection between the heart attack and claimant's employment. James E. Davia, M.D., opined that: A. My opinion is that the physical exertion was not causally related to the myocardial infarction. I believe that myocardial infarction could have occurred when he was sleeping or when he was sitting in a chair reading a newspaper or walking his dog, if he had one, or any sedentary type of activity, or lying down taking a nap, or any mild type of activ ity, and the fact that it occurred during physical exertion was a coincidence and not causally related. (Ex. P, p. 24, l. 18 through p. 25, l. 2) Then there is the opinion of Paul From, M.D., an internist. In his deposition he opined that: Well, I think that there's -- that the myocardial infarction he sustained on that day in November of '89 is due more to the risk factors that he had, rather than to his work. I would relate it as, say, 75 per cent due to risk factors and 25 percent due to the Page 6 work. (Ex. Q, p. 32, ll. 20-25) Part one of the test has not been met. Claimant has not established medical causation. The undersigned is not required to address part two of the test. Finally, claimant was viewed as less than credible. His rendition of the events on November 17, 1989, was not substantiated by other witnesses. Claimant denied he was a heavy smoker and drinker. Other witnesses refuted his testimony. Claimant stated his job was a two person job, other witnesses said, the job was for only one person. The undersigned has determined that claimant was less credible than other witnesses. order THEREFORE, IT IS ORDERED: Claimant takes nothing from these proceedings. Costs are taxed to defendants pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of April, 1992. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Darin S. Harmon Attorney at Law 100 West 12th Street Box 703 Dubuque, Iowa 52001 Ms. Dorothy L. Kelley Attorney at Law 500 Liberty Building Des Moines, Iowa 50309 1108.10 Filed April 30, 1992 MICHELLE A. McGOVERN before the iowa industrial commissioner ____________________________________________________________ : TERRANCE J. MACINERNEY, : : Claimant, : : vs. : : File No. 938491 TRI-TEK INDUSTRIAL, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : FIDELITY & CASUALTY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1108.10 Benefits were not awarded to claimant who sustained a heart attack on November 17, 1989, while he was engaged in sandblasting. Claimant could not establish the requisite causal connection. Medical testimony did not support claimant's position. At best, claimant's work condition only contributed 50 percent to the work injury. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ ROBERT WILSON, Claimant, vs. File No. 938502 FIRESTONE TIRE AND RUBBER, A R B I T R A T I O N Employer, D E C I S I O N and CIGNA, Insurance Carrier, and SECOND INJURY FUND OF IOWA, Defendants. ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Robert Wilson, claimant, against Firestone Tire and Rubber, employer, and Cigna, insurance carrier, and Second Injury Fund of Iowa, defendants, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained on July 31, 1989. This matter came on for hearing before the undersigned deputy industrial commissioner on October 12, 1993, in Des Moines, Iowa. The record was considered fully submitted at the close of the hearing. The claimant was present and testified. Also present and testifying was Mike Ables. The documentary evidence consists of claimant's exhibits 1 through 55, employer's exhibits B and C and Second Injury Fund exhibits AA, CC through FF. ISSUES Pursuant to the hearing report and order approving same dated October 12, 1993, the parties have presented the following issues for resolution: .Whether claimant's disability, which is a scheduled member disability, is to his hand or arm; and .Whether claimant is entitled to Second Injury Fund benefits as provided in Iowa Code section 85.64. FINDINGS OF FACT The undersigned has carefully considered all the testimony given at the hearing, arguments made, evidence contained in the exhibits herein, and makes the following findings: Claimant was born on June 14, 1944, and graduated from high Page 2 school in 1962. He commenced working for Firestone on December 19, 1965. He worked two months in the mill room and one month in the warehouse loading trucks. He then worked as a utility man in the passenger curing department for approximately five years. Subsequently he was assigned to heavy duty curing for one year, returned to the warehouse loading trucks and driving a fork lift, worked as a janitor for two years and in heavy duty final inspection for approximately eight years. While in heavy duty final inspection he incurred an injury to his right lower extremity. Since 1982 he has worked in the banbury department doing most of the jobs at one time or another. He currently is a pigment storage attendant. The pertinent medical evidence of record reveals that claimant sustained a work-related injury to his right lower extremity in 1979. He underwent surgical repair of a torn Achilles tendon by Donald W. Blair, M.D. He experienced complications from surgery and resistant healing. Eventually, he underwent a skin flap and his condition healed. On July 14, 1980, Dr. Blair gave him a permanent functional impairment rating of 25 percent to the right lower extremity (exhibit 55, page 84). On July 31, 1989, claimant caught his right wrist between a fork lift and an elevator control column. An abrasion to the anterior right wrist was noted. Claimant complained of right wrist pain and numbness to the fingers. He was transferred to Iowa Methodist Medical Center (ex. 3). Claimant was treated in the emergency room at Iowa Methodist Medical Center and a splint was applied to his right wrist. He was discharged the same day (exs. 13-15). On August 31, 1989, claimant was referred by James Blessman, M.D., company physician, for nerve conduction studies at Iowa Methodist Medical Center, to determine the etiology of his right hand pain, weakness and numbness. The results were consistent with an injury to the right median nerve at the level of the distal forearm or wrist (ex. 16). Dr. Blessman then referred claimant to Douglas R. Koontz, M.D. Dr. Koontz reported to Dr. Blessman on September 19, 1989, that claimant appears to have some type of median nerve injury which is persistent with primarily numbness and weakness, although not much pain. He recommended some physical therapy for hand strengthening and range of motion and Motrin (ex. 24). Dr. Koontz saw claimant on October 20, 1989, for a follow-up evaluation. He noted that claimant's occupational therapy treatments had helped him significantly. Although claimant was not having any pain now, he continued to complain of significant numbness. On examination, he had a 50 percent hypesthesia to touch of the thumb, index and middle finger on the right with hyperpathia to pinprick of the index and middle finger on that side. He also had a remarkedly positive Tinel's over the right wrist and a positive Phalen's as well. Dynamometer testing of grip strength showed the left to be 180 and the right to be 220 which was Page 3 improved over the previous visit (ex. 17-18, 25). An occupational therapy progress note dated November 15, 1989, states that claimant's range of motion for the right hand was within normal limits except for thumb MP flexion and extension. It also notes that his right upper extremity strength has improved but his fine motor skills remain decreased due to poor thumb opposition and sensory loss (ex. 19). Claimant saw Dr. Koontz on November 20, 1989. He presented with persistent numbness in the median nerve distribution. A repeat EMG was ordered (ex. 26). EMG and nerve conduction studies were performed on November 24, 1989. The results revealed right median nerve injury at the wrist (exs. 20-22). Based on these findings, Dr. Koontz recommended surgical decompression of the median nerve at the wrist (ex. 27). This was performed in early December 1989 (ex. 28). On December 18, 1989, Dr. Koontz released claimant to light duty (ex. 28). Claimant testified that light duty activity consisted of operating a fork lift. Claimant was released by Dr. Koontz for full duty with no restrictions as of March 5, 1990. Dr. Koontz stated, "I think that he will be able to tolerate his usual job although I don't think that he will ever be able to do a type of work such as tirebuilding that would potentially make all of this worse once again...." (ex. 30). Claimant testified that on March 5, 1990, he returned to his regular job as a pigment storage attendant which requires lifting 50-pound bags and cutting them open with a knife. Upon releasing claimant to return to regular duty, Dr. Koontz determined that due to persistent weakness, numbness and pain to the right upper extremity, claimant has a 28 percent permanent partial disability (ex. 30). Being dissatisfied with this determination, defendants requested a second opinion from Arnis B. Grundberg, M.D., on August 14, 1990. Dr. Grundberg's reported impression was right carpal tunnel syndrome, post-operative state with residuals. Using the AMA Guides to the Evaluation of Permanent Impairment, 3d ed., and utilizing tables 10, 11 and 14, he offered a 12 percent impairment rating to the right hand (ex. 33). Dr. Grundberg's deposition was taken on February 16, 1993. Dr. Grundberg testified that he is a board certified orthopedic and hand surgeon. He stated he examined claimant at the request of Dr. Blessman on August 14, 1990. At the time of his examination, he found no loss of motion but did find decreased sensation in the thumb, index and long fingers. On examination, he found claimant's numbness or nerve involvement to be mild. He found no problem above the wrist. The impairment rating of 12 percent to the right hand was based on mild decreased sensation and mild weakness which reflects the nerve involvement previously described. Dr. Grundberg stated that he reviewed claimant's medical records (deposition ex. B) and in particular, Dr. Koontz' report of March 2, 1990, and found nothing in those records that would change his opinion (ex. 34). Page 4 In response to cross-examination by claimant's attorney, Dr. Grundberg explained that the median nerve is deep in the wrist and extends into the hand and supplies the feeling to the thumb, index, long and part of the ring finger. He stated that the nerve extends past the area of the wrist and goes down to the elbow. He indicated that when claimant presented to him his complaints were primarily of numbness and not pain. Nevertheless, claimant's complaints of pain played a part in his rendering a 12 percent impairment rating (ex. 34). On April 2, 1993, Dr. Koontz discussed Dr. Grundberg's finding in a letter to claimant's attorney. He stated then when he gave claimant the 28 percent impairment rating he felt that claimant's hand injury affected his entire arm. However, it was obvious that claimant's condition had improved by the time he saw Dr. Grundberg and his rating reflects that improvement (ex. 31). CONCLUSIONS OF LAW The first issue to be determined is whether claimant's impairment is to his hand or arm. Pursuant to Iowa Code section 85.34(2)(l) and (m), compensation for the loss of a hand or arm is 190 weeks and 250 weeks, respectively. On March 2, 1990, Dr. Koontz examined claimant and noted that he had a negative Tinel's in the wrist but continued to have some soreness in the base of the thumb when he grips anything and some tenderness or pain over the scar. Also noted was good range of motion in the wrist, thumb and fingers. Dr. Koontz reported, "I think that he has suffered a permanent injury to the median nerve because of the injury and this is confirmed by what I saw intra-operatively with flattening and tethering of the median nerve with gliosis secondary to pressure and scar tissue formation." Dr. Grundberg examined claimant on August 14, 1990. He noted that claimant crushed his right wrist at the level just proximal to the carpal tunnel and underwent decompression of the carpal tunnel. On examination he found no loss of motion but did find decreased sensation in the thumb, index and long fingers. He found no problem above the wrist only mild numbness and weakness. At the hearing, claimant testified that he experiences pain in his right forearm. Dr. Grundberg noted that claimant had no significant complaints of pain when he saw him. Dr. Koontz released claimant to return to regular work duties with no restrictions. Claimant testified that his job as a pigment storage attendant requires lifting and cutting open 50-pound bags. He has performed this job since March 5, 1990, without medical restriction or accommodation by employer. It is the task of physicians to determine impairment ratings. Impairment ratings are important criteria in the evaluation of scheduled member injuries. Rule 343 IAC 2.4 provides that impairment ratings made pursuant to the Guides to the Evaluation of Permanent Impairment can have the effect of prima facie evidence of permanent impairment. All Page 5 impairment ratings are weighed in the determination of scheduled member permanent disability. Although the industrial commissioner is obligated to give consideration to all of the impairment ratings he is not obligated, restricted or limited to making a scheduled member award in the same amount as one of the impairment ratings. The task of the industrial commissioner is to determine "loss" Iowa Code section 85.34(2)(s). The term "loss" as used in the Code has been determined to also mean "loss of use" Moses v. National Union Coal Mining Co., 194 Iowa 819, 194 N.W. 746 (1921). The purpose of determining loss of use is because the industrial commissioner is charged with the ultimate responsibility of determining permanent disability. "Compensation for permanent disabilities ... shall be payable to an employee as provided in this section." Iowa Code section 85.34 (first unnumbered paragraph). The award of the industrial commissioner should be upheld on appeal if it is supported by substantial evidence. As pointed out by Guides to the Evaluation of Permanent Impairment, Chapter 1, Concepts of Impairment Evaluation, paragraph 1.1 "As used in the Guides, "impairment" means an alteration of an individual's health status that is assessed by medical means, "disability," which is assessed by nonmedical means, is an alteration of an individual's capacity to meet personal, social, or occupational demands or statutory or regulatory requirements." Thus, doctors determine impairment, the industrial commissioner determines loss or loss of use and permanent disability taking into consideration the impairment ratings of the physicians. The impairment rating with the greatest weight in this case is the determination made by Dr. Grundberg. Dr. Grundberg is a board certified orthopedic surgeon with over 20 years of experience and a subspecialty in hand surgery. There is no curriculum vitae for Dr. Koontz. All we know is that he is an neurosurgeon A doctor's experience, expertise and board certification may accord his testimony greater weight. 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). Thus, the long experience, expertise and board certification of Dr. Grundberg is preferred over Dr. Koontz. Likewise, it should be added that his evaluation seems to be the most realistic and comports best with all of the other evidence in the case. Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985). In the determination of either loss or loss of use and permanent disability the industrial commissioner can consider any evidence so long as earning capacity is not considered Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). Likewise, the industrial commissioner may take into consideration the agency's experience, technical competence and specialized knowledge in the evaluation of the evidence. Page 6 Iowa Administrative Procedure Act 17A.14(5). The industrial commissioner may consider loss of grip strength in the determination of loss of use and permanent disability. Likewise, the industrial commissioner may consider the fact that claimant was placed on a permanent light duty work status by her physician who bears some responsibility for the success or failure of her treatment. Both of these facts relate to claimant's physical loss of use and physical permanent disability of her hands and arms. These factors are not considered as industrial disability factors bearing on claimant's loss of earning capacity. Soukup, 222 Iowa 272, 268 N.W. 598 (1936). Wherefore, based upon the foregoing evidence, particularly the absence of physical restrictions and claimant's ability to perform the same job he was performing at the time of his injury, it is determined that claimant has sustained a 12 percent permanent impairment to his right hand and is entitled to 22.8 weeks of permanent partial disability benefits pursuant to Iowa Code section 85.34(2)(l). The next issue to be determined is whether claimant is entitled to Second Injury Fund benefits. Section 85.64 governs Second Injury Fund liability. Before liability of the Fund is triggered, three requirements must be met. First, the employee must have lost or lost the use of a hand, arm, foot, leg or eye. Second, the employee must sustain a loss or loss of use of another specified member or organ through a compensable injury. Third, permanent disability must exist as to both the initial injury and the second injury. The Second Injury Fund Act exists to encourage the hiring of handicapped persons by making a current employer responsible only for the amount of disability related to an injury occurring while that employer employed the handicapped individual as if the individual had had no preexisting disability. See Anderson v. Second Injury Fund, 262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers' Compensation-Law and Practice, section 17-1. The Fund is responsible for the industrial disability present after the second injury that exceeds the disability attributable to the first and second injuries. Section 85.64. Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467 (Iowa 1990); Second Injury Fund v. Neelans, 436 N.W.2d 335 (Iowa 1989); Second Injury Fund v. Mich. Coal Co., 274 N.W.2d 300 (Iowa 1970). The record clearly establishes that claimant sustained a first injury to his right leg on July 14, 1980. In a settlement agreement claimant received 55 weeks (220 x 25 percent) of permanent partial disability benefits. Claimant sustained a second injury to his right hand on July 31, 1989, arising out of and in the course of employment with employer. He received a 12 percent permanent partial disability rating and is entitled to receive 22.8 weeks (190 Page 7 x 12 percent) of permanent partial disability benefits from employer. Thus, it is apparent that claimant has sustained permanent disability to two specified scheduled members as set out in Iowa Code section 85.64 and Second Injury Fund benefits are therefore triggered. An assessment of industrial disability is therefore appropriate in this case. Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, expe rience and inability to engage in employment for which the employee is fitted. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. Impairment and disability are not synonymous. The degree of industrial disability can be much different than the degree of impairment because industrial disability references to loss of earning capacity and impairment references to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of the healing period; the work experience of the employee prior to the injury and after the injury and the potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. Likewise, an employer's refusal to give any sort of work to an impaired employee may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience as well as general and specialized knowledge to make the finding with regard to degree of industrial disability. See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial Page 8 Commissioner Decisions 529 (App. March 26, 1985); Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 654 (App. February 28, 1985). Compensation for permanent partial disability shall begin at the termination of the healing period. Compensation shall be paid in relation to 500 weeks as the disability bears to the body as a whole. Section 85.34. Claimant is 49 years old and a high school graduate. Claimant has worked for employer since 1965. Since 1982 or so, he has worked in the banbury department doing most of the jobs at one time or another. At the time of his injury in July 1989 he was a pigment storage attendant. In December 1989 he went on light duty driving a fork lift. In March 1990 he returned to his regular duty as a pigment storage attendant with no physical restrictions imposed by his treating surgeon. In 1989 claimant earned $30,679.46. In 1992 he earned $43,197.33. Claimant's only restriction is that he cannot be a tire builder. However, claimant, in his 24 years with employer, has never worked nor applied for a job as a tire builder. Claimant's injury has not precluded him from performing his usual and customary job as a pigment storage attendant with employer. Claimant's limitations are self-imposed. He stated he cannot bid on the master banbury or master utility job in his department. However, no doctor who has treated or examined claimant has indicated that he is incapable of performing these jobs. After carefully considering the total evidence in this case, the undersigned concludes that claimant is 10 percent industrially disabled. This is equivalent to 50 weeks. The Second Injury Fund's liability is reduced by the combined losses of claimant's right leg (25 percent of 220 weeks or 55 weeks) and claimant's right hand (12 percent of 190 weeks or 22.8 weeks). The total reduction is 77.8 weeks. This is in excess of the Second Injury Fund's liability. Therefore, the Second Injury Fund of Iowa has no liability for payment of permanent partial disability benefits in this case. ORDER THEREFORE IT IS ORDERED: That defendant employer pay to claimant twenty-two point eight (22.8) weeks of permanent partial disability benefits at the rate of three hundred sixty-two and 11/100 dollars ($362.11) commencing January 1, 1990. That defendant employer receive credit for any benefits previously paid. That all accrued benefits be paid in lump sum. That defendant employer pay interest pursuant to Iowa Code section 85.30. That defendant pay all costs pursuant to rule 343 IAC 4.33. That defendant employer file claim activity reports as required by the agency pursuant to rule 343 IAC 3.1(2). Signed and filed this ____ day of October, 1993. Page 9 ______________________________ JEAN M. INGRASSIA DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Robert Pratt Attorney at Law 6959 University Ave. Des Moines, Iowa 50311-1540 Mr. Marvin Duckworth Attorney at Law 2700 Grand Ave STE 111 Des Moines, Iowa 50312 Mr. James Christenson Assistant Attorney General Hoover State Office Bldg Des Moines, Iowa 50319 51803 53202 Filed October 20, 1993 Jean M. Ingrassia BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ ROBERT WILSON, Claimant, vs. File No. 938502 FIRESTONE TIRE AND RUBBER, A R B I T R A T I O N Employer, D E C I S I O N and CIGNA, Insurance Carrier, and SECOND INJURY FUND OF IOWA, Defendants. ___________________________________________________________ 51803 The parties disputed whether claimant's impairment was to his hand or arm. Based on the medical evidence and expert opinion, it was determined that claimant's second injury was to his right hand. The opinion of a board certified orthopedic and hand surgeon was accepted over the opinion of the neurosurgeon who performed surgery. Claimant found entitled to 22.8 weeks (190 x 12 percent) of permanent partial disability benefits. 53202 Claimant's combined scheduled member disability of 77.8 weeks is in excess of Second Injury Fund liability of 50 weeks, therefore, the Second Injury Fund has no liability for payment of permanent partial disability benefits in this case. 2700 Filed September 14, 1994 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ RONALD I. SEIBERT, SR., Claimant, File No. 938579 vs. A L T E R N A T E DEPT. OF GENERAL SERVICES, M E D I C A L Employer, C A R E and D E C I S I O N STATE OF IOWA, Insurance Carrier, Defendants. ___________________________________________________________ 2700 - ALTERNATE CARE Alternate care ordered to change to one of the two requested physicians as a breakdown in the patient/physician relationship has occurred and claimant was not been doctor jumping and had the same physician since 1990. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _____________________________________________________________ : RONALD I. SEIBERT, SR., : : Claimant, : : File No. 938579 vs. : : A L T E R N A T E DEPT. OF GENERAL SERVICES, : : M E D I C A L Employer, : : C A R E and : : D E C I S I O N STATE OF IOWA, : : Insurance Carrier, : Defendant. : _____________________________________________________________ STATEMENT OF THE CASE This is a proceeding before the Iowa Industrial Commissioner upon a petition for alternate medical care filed pursuant to Iowa Code section 85.27 on August 29, 1994 by claimant, Ronald Seibert, against his employer, State of Iowa, defendant. The petition invokes summary procedures set forth in rule 343 IAC 4.48. This matter was consolidated with hearing on September 13, 1994 on all other disputed issues in the principal litigation pending before this agency upon an unresisted motion of claimant. As emphasized by the parties at this hearing, the consolidation waived the parties' right to timely hearing within 14 days of the petition as required by statute. However, this matter has been given expeditious treatment by the undersigned. Pursuant to order of the industrial commissioner dated August 30, 1994, this deputy commissioner has been delegated the authority to issue a final agency decision in this matter. At hearing, defendant admitted liability for this injury. Pursuant to Division of Industrial Services rule 343-4.48(9), both parties filed written evidence prior to this hearing which was received into evidence. Page 2 FINDINGS OF FACT Having reviewed the entire record, this deputy industrial commissioner makes the following findings: On or about October 20, 1989, claimant suffered an injury which arose out of and in the course of his employment with the State of Iowa. The injury involved a re-injury of claimant's old back which has been previously surgically treated in the 1980's. Claimant underwent a second surgery in January 1990. Since that time claimant has continued to suffer continuing symptoms of low back pain and pain and dysesthesia in both feet. A series of epidural steroid injections has failed to alleviate these symptoms. All physicians involved in this case suggest that a continuation of symptoms will necessitate yet another surgery. The problem which brings this agency into the matter now is that claimant has lost confidence in his treating orthopaedic surgeon, Robert Hayne, M.D., who has treated claimant since the 1990 surgery. Claimant claims that Dr. Hayne has provided inconsistent opinions of his condition. Regardless of claimant's assertions, there is little question that the physician/patient relationship has deteriorated to a point that continuation of the relationship is no longer advisable. This breakdown was recognized by the defendant as it has authorized a change of care but only to one of Dr. Hayne's two partners. Claimant does not feel comfortable with a partner of a physician he distrusts. Claimant suggests either Keith Riggins, M.D., or William Boulden, M.D. Without casting any aspersion upon the quality of the care given by Dr. Hayne, who in this experience of this agency is a well qualified surgeon, or upon the quality of the care offered by the State of Iowa, it is found that continued care by Dr. Hayne would be unwise and not reasonably suited to treat the injury. In the specialized expertise of this agency, trust between a patient and surgeon is essential to medical care, especially when dealing with decisions as to surgical options. Claimant certainly has not been jumping around seeking new physicians. He has had the same physician since the work injury without objection until now. Dr. Hayne's office notes interpreting the diagnostic imaging tests are somewhat confusing as to whether or not there is a herniated disc and despite continued aggressive therapy, claimant continues to experience increasingly severe symptoms. Claimant has reason to be dissatisfied. In the experience of this agency either Dr. Boulden or Dr. Riggins are well qualified. A request to be treated by either of these individuals is reasonable. Page 3 CONCLUSIONS OF LAW This is a proceeding brought under Iowa Code section 85.27 as amended by House File 2250 of the 74th General Assembly of the State of Iowa. This Code section provides in part that the employer is obligated to furnish reasonable medical services and supplies to treat an injured worker and the employer has the right to chose the care. However, the treatment must be provided promptly and the treatment must be reasonably suited to treat the injury without undue inconvenience to the employee. If the employee is dissatisfied with the care offered by the employer, Iowa code section 85.27 provides that the employee must communicate the basis of such dissatisfaction to the employer and if the injured worker and the employer cannot agree on alternate care, the industrial commissioner may allow and order such other care. As claimant is seeking relief in this case, claimant bears the burden of proof to show by a preponderance of the evidence that the offered medical treatment is not reasonably suited to treat the injury without undue inconvenience to the employee. See Lawyer and Higgs, Iowa Workers' Compensation -- Law & Practice, (2nd Ed), 15-2 pages 159-161 and cases cited therein. Alternate care includes alternate physicians when there is a breakdown in a physician/patient relationship. Sumalee Neueone v. John Morrell & Co., Arb. Dec. (Walshire), File No. 1022976, January 27, 1984; Williams v. High Rise Const., Arb. Dec. (McGovern), File No. 1025415, February 24, 1993; Wallech v. F.D.L., Arb. Dec. (Trier), File No. 1020245, September 3, 1992 (upheld by Dubuque County District Court on June 21, 1993). In the case before us, claimant carried his burden and it was found as a matter of fact that the offered care was not reasonably suited to treat the injury. It was also found that claimant's request to be treated by either Dr. Boulden or Dr. Riggins is reasonable. Therefore, defendants will be order to offer a change of care to either Dr. Boulden or Dr. Riggins. ORDER 1. Defendant is ordered to immediately provide at their expense continued medical care of this injury by either William Boulden, M.D., or Keith Riggins, M.D. 2. Defendant shall pay the costs of this alternate care proceeding pursuant to Division of Industrial Services rule 343 IAC 4.33. Signed and filed this ____ day of September, 1994. Page 4 ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert W. Pratt Attorney at Law 6959 University Ave Des Moines IA 50311-1540 Ms. Shirley A. Steffe Assistant Attorney General Tort Claims Division Hoover State Office Bldg Des Moines IA 50319 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : RONALD I. SEIBERT, SR., : : File No. 938579 Claimant, : : M O D I F I C A T I O N vs. : : O F A L T E R N A T E DEPT. OF GENERAL SERVICES, : : M E D I C A L Employer, : : C A R E and : : D E C I S I O N STATE OF IOWA, : : Insurance Carrier, : Defendant. : ____________________________________________________________ Defendant moves for an order nunc pro tunc asking that Dan McGuire, M.D., be added in lieu of Dr. Riggins in the order allowing alternate care. Claimant does not resist. The information concerning Dr. Riggins' current unavailability is outside the record. However, after reviewing the testimony of claimant pointed out by the defendant, the request to add Dr. McQuire given claimant's testimony is reasonable and appropriate. IT IS THEREFORE ORDERED that the decision of September 14, 1994 is amended and that defendant may chose alternate care by Dan McQuire, M.D. Signed and filed this ____ day of September, 1994. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert W. Pratt Attorney at Law 6959 University Ave Des Moines IA 50311-1540 Ms. Shirley A. Steffe Assistant Attorney General Tort Claims Division Hoover State Office Bldg Des Moines IA 50319 Page 1 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ VICKY SKUBAL, Claimant, vs. File No. 938964 SHELLER-GLOBE, UTA, A R B I T R A T I O N Employer, Self-Insured, D E C I S I O N and SECOND INJURY FUND OF IOWA, Defendants. ___________________________________________________________ STATEMENT OF THE CASE Claimant, Vicky Skubal, seeks benefits under the Iowa Workers' Compensation Act upon her petition in arbitration against self-insured employer, Sheller-Globe, and the Second Injury Fund of Iowa. She alleges a cumulative injury to the wrists and shoulders on January 3, 1990. With respect to her Second Injury Fund claim, she alleges a prior injury that actually postdates the claim under consideration. This matter was scheduled for hearing in Cedar Rapids, Iowa on April 8, 1993. Claimant, who is participating pro se, did not appear. Sheller-Globe participated by Attorney Harry Dahl, and the Second Injury Fund participated by Attorney Stephen Moline. Both Mr. Dahl and Mr. Moline traveled from Des Moines for the hearing. A bailiff of the Linn County District Court gave this deputy a telephone message to the effect that claimant (no phone number given) had called one hour prior to the scheduled hearing, to explain that she had injured her foot and ankle and could not appear. Shortly after the time scheduled for hearing, claimant telephoned and requested continuance. Ms. Skubal advised that she had sprained her ankle the day before, had spent the entire day of hearing seeking medical treatment in Iowa City (only 28 miles from Cedar Rapids according to the official Iowa State Transportation Map) and was unable to appear. The administrative file shows that claimant has been extremely dilatory in her conduct of this litigation. Indeed, she has twice been required to file proof of her intent to pursue this action and has twice been specifically warned that further dilatory conduct would not be tolerated by the agency. While a legitimate health emergency may prove compelling grounds for continuance, it is noted that Page 2 claimant made no effort to contact this deputy (or the agency in general) until only one hour before scheduled hearing. Had she called earlier in the day, attorneys Dahl and Moline could have been saved the expense and inconvenience of traveling from Des Moines to Cedar Rapids (114 miles by the same map) if a continuance had been granted. It was further shown that claimant did not participate in preparing a hearing report as she was ordered to do, has failed to make discovery in good faith, and has generally been noncooperative. Under these circumstances, claimant's motion for continuance was denied. FINDINGS OF FACT Neither defendant elected to present evidence. conclusions of law The party who would suffer loss if an issue were not established has the burden of proving that issue by a preponderance of the evidence. Iowa R. of App. P. 14(f). The claimant has the burden of proving by a preponderance of the evidence that the alleged injury actually occurred and that it arose out of and in the course of 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). As there is no evidence in the record in support of her claim, claimant has failed to meet her burden of proof. Accordingly, defendants must prevail. ORDER THEREFORE IT IS ORDERED: Claimant takes nothing. Costs are assessed to claimant. Signed and filed this ____ day of April, 1993. ______________________________ DAVID R. RASEY DEPUTY INDUSTRIAL COMMISSIONER Page 3 Copies to: Ms. Vicky Skubal Certified Mail Box 14 Atalissa, IA 52720 Mr. Harry W. Dahl Attorney at Law 974 73rd Street, #16 Des Moines, IA 50312 Mr. Stephen Moline Assistant Attorney General Tort Claims Division Hoover State Office Bldg. Des Moines, IA 50319 1402.20, 2906 Filed April 14, 1993 David R. Rasey BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ VICKY SKUBAL, Claimant, vs. File No. 938964 SHELLER-GLOBE, UTA, A R B I T R A T I O N Employer, Self-Insured D E C I S I O N and SECOND INJURY FUND OF IOWA, Defendants. ___________________________________________________________ 1402.20, 2906 Pro se claimant failed to appear for hearing. Shortly after the scheduled commencement time, she telephoned to explain that she had sprained her ankle the day before and had spent the entire day of hearing seeking medical attention. The administrative file was replete with evidence of her dilatory conduct; indeed, another deputy had in two separate orders warned her that further dilatory conduct would not be tolerated. Claimant failed to make discovery and failed to honor requirements of the hearing assignment order. Obviously, medical emergency can be cause for continuance, but, a timely call might have saved both defense attorneys from unnecessary travel. Under these circumstances, the request for continuance was denied. No evidence was presented. Claimant failed to prove that she had sustained injury arising out of and in the course of employment. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ LAWRENCE E. YANCEY, JR., Claimant, File No. 939032 vs. A P P E A L UNIVERSAL GYM EQUIPMENT, D E C I S I O N Employer, Defendant. ____________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed July 6, 1992 is affirmed and is adopted as the final agency action in this case. That claimant and defendant shall share equally the costs of the appeal including transcription of the hearing. Defendant shall pay all other costs. Signed and filed this ____ day of November, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Robert R. Rush Attorney at Law P.O. Box 2457 Cedar Rapids, Iowa 52406-2457 Mr. Matthew J. Brandes Attorney at Law 1200 MNB Bldg. Cedar Rapids, Iowa 52401 9998 Filed November 10, 1992 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ LAWRENCE E. YANCEY, JR., Claimant, File No. 939032 vs. A P P E A L UNIVERSAL GYM EQUIPMENT, D E C I S I O N Employer, Defendant. ____________________________________________________________ 9998 Summary affirmance of deputy's decision filed July 6, 1992. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ LAWRENCE E. YANCEY, JR., : : Claimant, : File No. 939032 : vs. : A R B I T R A T I O N : UNIVERSAL GYM EQUIPMENT, : D E C I S I O N : Employer, : Defendant. : ____________________________________________________________ STATEMENT OF THE CASE Claimant Lawrence E. Yancey, Jr., seeks benefits under the Iowa Workers' Compensation Act upon his petition in arbitration against defendant employer Universal Gym Equipment ("Universal") based upon a stipulated work injury to the back on January 9, 1990. This cause came on for hearing in Cedar Rapids, Iowa, on April 2, 1992. Testimony was received from claimant, Shawn Weirather, Joan Bouchareb, Terrance Fratella and Christine Yancey. Joint exhibits 1 through 7, defendant's exhibits 1 and 2 and claimant's exhibits 1 through 3 were received into evidence. Objections to claimant's exhibits 4 and 5 were taken under advisement; the objections are hereby overruled and those exhibits are received. ISSUES The parties have stipulated that claimant sustained an injury arising out of and in the course of his employment on January 9, 1990, that the injury caused temporary disability through October 1, 1990, to the rate of compensation ($261.46 per week), that entitlement to medical benefits is no longer in dispute and that certain benefits were voluntarily paid prior to hearing. Issues presented for resolution include: 1. Whether the work injury caused permanent disability; and, 2. The extent of permanent disability, if any. Page 2 FINDINGS OF FACT The undersigned deputy industrial commissioner finds: Lawrence Yancey, 44 years of age at hearing, is a 1966 high school graduate. He was an average student then, but is now doing quite well in community college course work he is currently taking to develop a new career in the electronics field. Mr. Yancey has employment history in construction and factory work, automotive mechanics and mechanical maintenance. He accepted work with a predecessor employer, Nissen Company, in 1974. At some point, Universal Gym Equipment became his employer at the same facility, apparently through a change in ownership. Claimant performed a number of jobs at the manufacturing facility, but mostly worked in the shipping department. He was so employed on the date of injury, October 19, 1990. Mr. Yancey was terminated in early 1991 because Universal had no work available within his medical restrictions. Claimant has a history of back problems dating back to 1974. He suffered a work injury to the back in 1980 (while employed by Nissen Company) which resulted in a surgical procedure on October 1 of that year. Claimant underwent laminectomy and removal of a disc fragment necessitated by a right-sided herniation at L4-5. Remarkably, claimant was returned to work with no restrictions whatsoever following this surgery. Nissen's insurer issued a check intended to compensate for permanent partial disability, but in a remarkable gesture consonant with good faith and a high degree of credibility, claimant returned the check uncashed. However, Mr. Yancey agreed in his testimony that his back has never been the same since this procedure, and that while he feels "great" on some days, he feels 90 years old on others. The treating surgeon, David Naden, M.D., assigned an impairment rating of 10-15 percent. Claimant reported another back injury with Nissen on December 12, 1986. He was seen on February 5, 1987, by a Dr. Roberts of Iowa Medical Clinic, P.C., (where he had been treating for years). Dr. Roberts noted in his chart that claimant was a likely candidate for a repeat disc herniation if he did not care for his back properly. Chart notes further state: He was instructed to minimize his lifting, twisting and reaching and to continue a regular exercise program. It is best for his back if he does not perform repetitive lifting of greater than 50#. I believe he can perform all activities required except for heavy lifting. (Joint exhibit 1b, page 4) While claimant recalled Dr. Roberts telling him he should look for a new line of work to prevent future damage, Page 3 he denied being told of the 50-pound repetitive lifting restriction. Dr. Roberts' chart notes can, of course, be seen as somewhat ambiguous as to precisely what claimant was told. However, it is also noteworthy that claimant has shown a poor memory as to subsequent medical restrictions. In an intake interview with the Iowa Division of Vocational Rehabilitation on October 1, 1990, (joint exhibit 4, page 4), claimant mentioned his temporary lifting restriction of 65 pounds four times per hour and a four-hour per day work limit, but "couldn't remember the rest of them." Thus, it is unclear whether claimant was never informed of the repetitive lifting restriction, whether he misunderstood, forgot, or whether he simply chose to ignore Dr. Roberts. In any event, he continued to work for Nissen, and subsequently Universal, in contravention of that restriction. His job in the shipping department requires frequent lifting up to 65 pounds and occasional lifting and handling of weights up to 150 pounds, sometimes in situations making it difficult to employ proper lifting techniques. The subject work injury occurred while claimant was opening the door to a truck and suddenly developed a sharp pain in the lower back. The pain worsened during the day and he found it hard to get out of bed the following morning. The following day, claimant presented to the emergency room of St. Lukes Hospital with back pain "the worse [sic] he has had for a long period of time." Claimant had reduced range of motion but no complaints of sciatica, or radiating pain to the leg. Radiating pain had been a feature of the 1980 injury. X-rays showed degenerative changes with mild disc space narrowing at L5-S1 and minimal narrowing at L3-4 and L4-5 with some hypertrophic spurring at L4. Claimant underwent computerized tomography on January 13 which was read as showing minimal disc bulge centrally at L3-4 with hypertrophic osteophytosis, central and slightly asymmetric right disc bulge at L4-5 with hypertrophic facet joint disease and a minimal bulge without evidence of herniation at L5-S1. J. L. Banks, M.D., the company doctor, diagnosed acute lumbar muscle strain. He referred claimant to physical therapy and later, for consultation, to the Spine Diagnostic and Treatment Center of the University of Iowa Hospitals and Clinics. X-ray examination in March 1990 showed minimal degenerative changes in the lumbar spine and led to an impression of mechanical low back pain. Magnetic resonance imaging on April 11 led to an impression of apparent central/right paracentral L3-4 disc fragment which may be partially calcified and associated with moderate to severe central stenosis, along with degenerative changes at L4-5. In view of this, a discogram was performed at three levels (L3-4, L4-5 and L5-S1) on April 23, resulting in a clinical diagnosis of multi-level degenerative disease of the lumbar spine with right leg pain and L3-4 disc bulge. James N. Weinstein, D.O., reconstructive spinal surgeon Page 4 and medical director of the center, noted on May 11 that the hospital MRI and discograms showed what may be a significant surgical lesion at L3-4 which would require a minimum two-level discectomy. On May 18, Dr. Weinstein's notes reflect that he recommended conservative rather than operative treatment, in which claimant concurred. If surgery was to be undertaken, Dr. Weinstein recommended partial discectomy of the small herniated fragment at L3-4 and possible unilateral fusion. He suggested an impairment rating of "12% based on previous surgery and current herniation make that 14-15%." The meaning of this is unclear to this reader, but an increase in impairment seems to be intended. However, on June 7, Dr. Weinstein wrote that surgery was not a treatment option at that time because claimant was ambiguous in his decision making. Impairment rating was estimated at 10 percent of the body as a whole. Meanwhile, claimant underwent rehabilitation at the Spine Diagnostic and Treatment Center. He proved highly motivated and did well. On September 6, Dr. Weinstein recommended medical restrictions of an impermanent nature. Functional capacity assessment was undertaken on September 11, 1990, and claimant was released to return to work on October 1, 1990, with these restrictions: (1) starting at four hours per day, adding one hour per week; (2) nonrepetitive squat lifting of 50 pounds, partial squat lifting of 65 pounds, arm lifting of 65 pounds; (3) repetitive lifting limits of 25, 35 and 35 pounds, respectively; and (4) ability to change position from sitting to standing to walking at intervals of 45 minutes to 1 hour. However, claimant was not permitted to return to work because Universal Gym Equipment had no positions available for him within those restrictions. Claimant was finally discharged "in light of the company's inability to match Mr. Yancey's functional capacity with positions at the plant for which he may be eligible" on March 22, 1991. Claimant underwent another functional capacity evaluation on February 26, 1991. Dr. Weinstein imposed a 65-pound lifting limit (not more than four times per hour) and a repetitive lifting limit of approximately 33 pounds. Defendant has since offered vocational rehabilitation services and claimant has sought similar services from the Iowa Division of Vocational Rehabilitation. He has not been interested in full-time work because, as previously noted, he is taking courses in electronics/communications in pursuit of an associate of arts degree. Claimant's skills in mathematics require some brushing up and he is taking extra courses in that area now. While going to school, claimant has accepted part-time work with an enterprise known as Friberger Waste Services. He typically works zero to 20 hours per week, having worked only two 40-hour weeks. He started with raking and brush chipping (which requires substantial lifting) and has transferred to truck maintenance, where he is now employed. Page 5 Ever motivated, Mr. Yancey believes he is physically capable of performing work beyond those restrictions imposed by Dr. Weinstein. Claimant was also seen on December 18, 1986, by Kim B. Brandt, M.D., of Mt. Vernon Family Medical Center. Dr. Brandt felt claimant had suffered muscle strain which aggravated his preexisting laminectomy and degenerative arthritic changes, but expected the problem to totally resolve. On November 24, 1987, Dr. Brandt wrote that claimant had proven tolerance of 100 pounds lifting and should be able to handle any kind of nonrepetitive job that allowed him to lift no more than that weight without help. However, he recommended that claimant not have a job that held him in a fixed position for the entire work shift, particularly with repeated flexion of the spine. In chart notes of November 16, 1990, relative a rehabilitation physical, Dr. Brandt recommended a functional limitation of no more than 100 pounds lifting, no prolonged flexion, no standing more than an hour and recommended against heavy machine maintenance work, sledgehammer or air hammer use. Page 6 CONCLUSIONS OF LAW The parties have stipulated that claimant sustained an injury arising out of and in the course of employment and have agreed to the extent of entitlement to temporary total disability or healing period benefits. Causation and extent of permanency are at issue. The record makes clear that claimant had preexisting industrial disability with respect to his lower back. Even though he was not given medical restrictions following his surgery in 1980, the treating surgeon believed him to have a measurable impairment. At least as of 1987, while claimant was still working for Nissen Company, a lifting restriction was imposed by Dr. Roberts, even though claimant continued to work in disregard of that restriction. The true "causation" question is this: Has claimant's industrial disability increased by reason of this work injury? Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, expe rience and inability to engage in employment for which the employee is fitted. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. Impairment and disability are not synonymous. The degree of industrial disability can be much different than the degree of impairment because industrial disability references to loss of earning capacity and impairment references to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of the healing period; the work experience of the employee prior to the injury and after the injury and the potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. Likewise, an employer's refusal to give any sort of work to an impaired employee may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. Page 7 There are no weighting guidelines that indicate how each of the factors are to be considered. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience as well as general and specialized knowledge to make the finding with regard to degree of industrial disability. See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 529 (App. March 26, 1985); Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 654 (App. February 28, 1985). Compensation for permanent partial disability shall begin at the termination of the healing period. Compensation shall be paid in relation to 500 weeks as the disability bears to the body as a whole. Section 85.34. This case presents an unusual twist in that, prior to the work injury, claimant was in effect earning wages in excess of his earning capacity. He did this by continuing to work a job in contravention of Dr. Roberts' weight restriction. While claimant testified he was not informed of this restriction, it is more likely that he has simply forgotten it. Note also that Dr. Brandt imposed a weight restriction in 1987, although it was substantially higher than the one imposed by Dr. Roberts. It seems certain that, had Universal Gym Equipment been aware of Dr. Roberts' restriction, claimant would not have been working in January 1990. After all, claimant was discharged following an injury which Universal admits is work related, whereas Universal would not be liable (on this record) for the results of an injury suffered while claimant was working for Nissen Company. Claimant's impairment is essentially the same now as it was before the subject injury. His medical restrictions are nearly the same, but not entirely. Whereas before, claimant had a 50-pound restriction (note that Dr. Brandt's recommendation of a 100-pound restriction did not change as a result of the subject work injury), he now has a 65-pound nonrepetitive limit and a 33-pound repetitive limit. There are two additional factors of significance. One is that, although radiographic studies have been somewhat contradictory and inconclusive, it appears that claimant has developed (or had "lit up" and aggravated) degenerative changes and a probable surgical lesion at L3-4. At least as significant is the fact that he has lost his job because the preexisting medical restriction imposed by Dr. Roberts has itself been "lit up," by way of becoming known to claimant and Universal. This has resulted in a dramatic loss of actual earnings. While a claimant is not entitled to compensation for the results of a preexisting injury or disease, its mere Page 8 existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956). If the claimant had a preexisting condition or disability that is materially aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961). Thus, it can be seen that claimant's status has changed as a direct result of this work injury. His symptoms have increased, restrictions are slightly more onerous than those in effect (if unknown or unremembered) prior to the injury, and he has lost his job. Considering then all these factors and the record otherwise in general, it is held that Lawrence Yancey has, as a result of this injury, sustained a permanent industrial disability, above and beyond his previous industrial disability, equivalent to 20 percent of the body as a whole, or 100 weeks. Iowa Code section 85.34(2)(u). ORDER THEREFORE, IT IS ORDERED: Defendant shall pay unto claimant thirty-seven point seven one four (37.714) weeks of healing period benefits at the stipulated rate of two hundred sixty-one and 46/100 dollars ($261.46) per week commencing January 10, 1990. Defendant shall pay unto claimant one hundred (100) weeks of permanent partial disability benefits at the stipulated rate of two hundred sixty-one and 46/100 dollars ($261.46) per week commencing October 1, 1990. Defendant shall have credit for all benefits voluntarily paid prior to hearing. All accrued benefits shall be paid in a lump sum together with statutory interest pursuant to Iowa Code section 85.30. Costs are assessed to defendant pursuant to rule 343 IAC 4.33. Defendant shall file claim activity reports as requested by the agency pursuant to rule 343 IAC 3.1. Signed and filed this ______ day of ____________, 1992. ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Page 9 Mr. Robert R. Rush Attorney at Law 526 Second Avenue SE P.O. Box 2457 Cedar Rapids, Iowa 52406-2457 Mr. Matthew J. Brandes Attorney at Law 1200 MNB Building Cedar Rapids, Iowa 52401 5-1803 Filed July 6, 1992 DAVID RASEY BEFORE THE IOWA INDUSTRIAL COMMISISONER ____________________________________________________________ LAWRENCE E. YANCEY, JR., Claimant, File No. 939032 vs. A R B I T R A T I O N UNIVERSAL GYM EQUIPMENT, D E C I S I O N Employer, Defendant. ____________________________________________________________ 5-1803 Permanent partial disability awarded. BEFORE THE IOWA INDUSTRIAL COMMISSIONER KAREN HARTMAN, Claimant, File No. 939108 CLARKE COUNTY HOMEMAKERS SERVICES, A P P E A L Employer, D E C I S I O N and BITUMINOUS INSURANCE COS., 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 January 2, 1992 is affirmed and is adopted as the final agency action in this case. That claimant and defendants shall share equally the costs of the appeal including transcription of the hearing. Signed and filed this 21st day of August, 1992. BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Steven C. Jayne Attorney at Law 5835 Grand Ave., Ste 201 Des Moines, Iowa 50312 Mr. William D. Scherle Attorney at Law 8th Floor Fleming Bldg. Des Moines, Iowa 50309 9998 Filed August 21, 1992 BYRON K. ORTON BEFORE THE IOWA INDUSTRIAL COMMISSIONER KAREN HARTMAN, Claimant, vs. File No. 939108 CLARKE COUNTY HOMEMAKERS SERVICES, A P P E A L Employer, D E C I S I O N and BITUMINOUS INSURANCE COS., Insurance Carrier, Defendants. 9998 Summary affirmance of deputy's decision filed January 2, 1992. Page 1 before the iowa industrial commissioner ____________________________________________________________ : MARY ANN HURLEY, : : Claimant, : : vs. : : File No. 939110 VISKASE CORPORATION, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CNA INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Mary Ann Hurley against her employer, Viskase Corporation, and its insurance carrier, CNA Insurance Companies, based upon an alleged injury of July 10, 1989. Mary Ann seeks compensation for healing period, permanent partial disability, payment of medical expenses, and transportation expenses. The primary issue is determination of whether Mary Ann's bilateral epicondylitis is an injury that was proximately caused by her employment. The case was heard at Ottumwa, Iowa, on July 14, 1992. The record in the proceeding consists of testimony from Mary Ann Hurley, Elizabeth White and Thomas Marks. The record also contains joint exhibits 1 through 16. findings of fact Mary Ann Hurley is a 47-year-old married woman who lives at Exline, Iowa, on a farm with her husband and adult son. She has been employed by Viskase Corporation for approximately 25 years. The farming operation consists primarily of cattle. No crops are grown except for approximately 50 acres of hay. Mary Ann does not engage in baling hay. She does, on occasion, check the cattle. This involves looking at them in order to be certain that none are missing and they appear to be healthy. On occasion, when the adult son is not home, she will dump a bucket of feed into a bunk for the cattle. She estimated that this event occurs approximately once per week. It would be expected that more than one bucket of feed would be involved at the times when this activity is performed. In her work at Viskase Corporation Mary Ann held the job of expediter. She performed a variety of actual Page 2 functions, including folding cartons, putting cartons on racks, packing cartons with bags, carrying cartons filled with bags, lifting and stacking cartons, and operating banding machines. The cartons filled with bags can weigh up to 80 pounds. Operating the automatic bander involves merely pushing buttons. Operating the manual bander involves pushing a filled carton through the bander machine as well as pushing buttons. During the late spring or earlier summer of 1989, Mary Ann began developing pain and discomfort in her elbows at the end of the work day. According to Mary Ann she had gone to the plant nurse with her complaints, was told to take Advil but that nothing else was done. She subsequently bumped her elbow. Following that event, her elbow pain worsened and she was then sent to a doctor. Elizabeth White, the plant nurse, testified at hearing that the plant keeps records of employee medical problems but those records were not provided to claimant's attorney. It is noted that those records are not in evidence in this case. White stated that in the records there were entries dealing with claimant's arms in June or July 1989. White also testified at hearing that there may have been an entry on April 10, 1991, when claimant made complaint of elbow pain. White stated that she would not necessarily make a written entry if she were simply giving over-the-counter medication such as aspirin to the employee. On July 10, 1989, Mary Ann was seen by D. B. Fraser, M.D., for her elbow complaints. A diagnosis of lateral epicondylitis, also known as tennis elbow, was made. The treatment note states, "Apparently she is actively engaged in farming on the side as well as her work as an expediter and apparently has to lift some fairly heavy boxes." (exhibit 3, page 51). Mary Ann went through a fairly extensive course of conservative treatment but did not recover. She was referred to Jack W. Brindley, M.D., by one of the plant physicians, apparently Larry Heikes, M.D. Dr. Brindley provided additional conservative care. Claimant's symptoms improved although it appears that they did not completely resolve. She was then released to return to work. Initially, she was given a 25-pound lifting restriction (exhibit 3, page 43). No work of that nature was made available to her. She then returned to work at full duty. According to the stipulation found at paragraph four of the prehearing report she was off work from July 11, 1989 through January 11, 1990. Claimant continued to work, but her symptoms recurred. She again was taken off work commencing June 14, 1990, and remained off work through November 19, 1990, under the care of Orthopedic Surgeon Sinesio Misol, M.D. Since the earlier conservative treatment had not been successful at permanently resolving Mary Ann's complaints, Dr. Misol recommended surgery. On June 14, 1990, left lateral epicondyle release surgery was performed. Similar surgery was performed on the right elbow September 9, 1990. After Page 3 an essentially unremarkable course of recovery, Mary Ann returned to work on November 20, 1990. Mary Ann has remained employed by Viskase Corporation. She has been performing her job without any particular complaint or substantial problems. The surgery seems to have been successful. Dr. Misol provided an impairment rating of 5 percent of each upper extremity as a result of the condition and surgery (ex. 1, pp. 2, 18, 19, 28). He had provided a 10 percent impairment rating of the left, but 50 percent of that was felt by him to be attributable to degenerative arthritis which he felt was related to a fracture of the left arm which had occurred approximately 20 years ago. The principal physicians in this case have been Sinesio Misol, M.D.; Jack W. Brindley, M.D., an Ottumwa, Iowa, orthopedic surgeon; and the physicians at the Centerville Medical Clinic, namely J.B. McConville, M.D., L. G. Heikes, M.D. and D. B. Fraser, M.D. In a report dated November 27, 1989, Dr. Brindley indicated that the claimant's condition was work related (ex. 2, p. 31). Dr. Misol has indicated that in his opinion the condition was related to her work at Viskase Corporation (ex. 1, pp. 2, 16, 17, 19). Dr. Fraser, in an early report to the employer dated July 10, 1989, used a form with spaces for marking "yes" or "no" regarding whether the condition was work related. The word "unknown" appears to be written on that form (ex. 3, p. 57). In a subsequent report dated January 31, 1992, Dr. Heikes seems to indicate that the function of banding is not particularly strenuous and does not involve extensive arm movements of the type which would be likely to cause tennis elbow (ex. 3, pp. 47-48). Dr. Heikes makes a quite extensive discussion of the banding procedure but very little about the lifting, stacking and moving of boxes. He reports that the boxes weigh from 17 up to 80 pounds (ex. 3, p. 48). In his final analysis, Dr. Heikes agrees that Mary Ann suffered bilateral epicondylitis and that it occurred during the time when she was working in the banding area. He further indicates that he has no knowledge of her having earlier complaints of the problem. He noted in paragraph four of his summary that she initially seemed to make a full recovery and was returned to full duties on January 11, 1990. In paragraph six he notes that her recovery with conservative therapy occurred while she was off work and that fact indicates that work was probably aggravating the lateral epicondylitis, but that it is not clear whether the work actually caused the problem. He speaks of her farming operation as possibly prolonging her recovery if she carried them on while she was off work. He states that she, "apparently" was involved in farming operations during the time that she had problems with her lateral epicondylitis. Finally, Dr. Heikes recognizes that she has made a full recovery with a possible slight permanent impairment as indicated by Dr. Misol (ex. 3, p. 49). Thomas Marks testified at hearing that Viskase Page 4 Corporation does not have a problem with repetitive trauma activity injuries. He stated that the jobs claimant has held do not involve repetitive activity. Marks indicated that Dr. Misol's understanding of claimant's activities at work are incorrect as to the functions actually involved in manual banding. He acknowledged that claimant had to unload boxes by hand and that making cartons is done by hand. It is found that the assessment of this case made by Dr. Misol is correct in all regards even though he has an apparent misunderstanding of the functions involved in the banding operation. His opinion regarding causation is corroborated by Dr. Brindley. It is not expressly refuted by any of the physicians from the Centerville Medical Clinic. The professional status of Doctors Misol and Brindley when addressing an orthopedic problem such as lateral epicondylitis is a factor to be considered when assigning weight to conflicting opinions. Undue emphasis has been placed on the banding function. Pushing buttons was not claimant's only duty. In this case, it is found that Doctors Brindley and Misol are correct. The evidence in this case regarding claimant's farming operations, other than that from her own testimony, is replete with speculation and conjecture. Simply observing cattle or riding on a four-wheeler would not be the type of activity which Dr. Misol had indicated would be likely to produce lateral epicondylitis. While it is certainly possible that activities such as baling hay or carrying a substantial number of buckets of feed for a substantial period of time could bring about the condition, there is no evidence in the record of this case that any of the claimant's farming activities were of sufficient strenuousness or frequency to bring about the condition. Dr. Misol has assigned an impairment rating of 5 percent of each upper extremity. The condition is located in the claimant's elbows. The elbows are a part of the arm and are not a part of the shoulder joint. They are located distal to the shoulder. The disability is located in and limited to the claimant's arms. Dr. Brindley did not make a determination of impairment when he was treating the claimant and has not done so subsequently. None of the physicians from the Centerville Medical Clinic have disputed the ratings made by Dr. Misol. Dr. Misol's ratings are therefore found to be correct. As shown in the prehearing report and statements made by counsel at the commencement of the hearing, the only issues regarding the medical expenses and mileage were liability and causation. Since all of the treatment which claimant obtained as shown by the records in this case was for her bilateral epicondylitis, it is found that all of the medical bills and mileage shown in exhibits 6 and 7 were incurred in obtaining treatment for the lateral epicondylitis condition and not for any other purpose. conclusions of law The party who would suffer loss if an issue were not Page 5 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 alleged injury actually occurred and that it arose out of and in the course of employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of" refer to the cause or source of the injury. The words "in the course of" refer to the time, place and circumstances of the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 1971). 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.ylitis which had its onset during the spring or early summer of 1989 resulted from use of her arms which occurred as part of the duties of her employment with Viskase Corporation. It is noted that she was working long hours and performing a variety of functions, not just banding. It is further noted that the record in this case does not provide any substantive evidence that she engaged in any other type of activity which had the potential for developing the condition. Both orthopedic surgeons involved in the case have related the condition to her employment. It is therefore concluded that Mary Ann Hurley's bilateral epicondylitis is the result of a cumulative trauma injury which arose out of and in the course of her employment. It may have been to some extent an aggravation of some preexisting condition, weakness or propensity to develop the condition, but there is no indication in the record that anything which might have preexisted was in any manner significant or independently disabling. Section 85.34(1) provides that healing period benefits are payable to an injured worker who has suffered permanent partial disability until (1) the worker has returned to work; (2) the worker is medically capable of returning to substantially similar employment; or (3) the worker has achieved maximum medical recovery. The healing period can be considered the period during which there is a reasonable expectation of improvement of the disabling condition. See Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa Ct. App. 1981). Healing period benefits can be interrupted or intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986). The right of an employee to receive compensation for injuries sustained is statutory. The statute conferring this right can also fix the amount of compensation payable for different specific injuries. The employee is not entitled to compensation except as the statute provides. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). Compensation for permanent partial disability begins at Page 7 termination of the healing period. Section 85.34(2). Permanent partial disabilities are classified as either scheduled or unscheduled. A specific scheduled disability is evaluated by the functional method; the industrial method is used to evaluate an unscheduled disability. Simbro v. Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v. Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960). Benefits for permanent partial disability of two members caused by a single accident is a scheduled benefit under section 85.34(2)(s); the degree of disability must be computed on a functional basis with a maximum benefit entitlement of 500 weeks. Simbro, 332 N.W.2d 886. The right of an employee to receive compensation for injuries sustained is statutory. The statute conferring this right can also fix the amount of compensation payable for different specific injuries. The employee is not entitled to compensation except as the statute provides. Soukup, 222 Iowa 272, 268 N.W. 598. It was stipulated by the parties in the prehearing report that if liability was established, the healing period entitlement runs from July 11, 1989 through January 11, 1990 and again from June 14, 1990 through November 19, 1990. The first is 26 3/7 weeks in duration while the second is 22 5/7 weeks in duration. The intervening time between the two healing periods is 21 6/7 weeks. An impairment of 5 percent of each upper extremity is equivalent to a 3 percent impairment of the whole person for each upper extremity (table 3, American Medical Association Guides to the Evaluation of Permanent Impairment, 3d revised ed. page 16). When applied using the combined values chart, the result is a 6 percent impairment of the whole person. In a case such as this, functional impairment under the Guides is normally equal to the degree of disability under section 85.34(2)(s). This case presents no compelling reason to vary from the norm. Mary Ann Hurley is therefore entitled to recover 30 weeks of compensation for permanent partial disability. The employer shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies for all conditions compensable under the workers' compensation law. The employer shall also allow reasonable and necessary transportation expenses incurred for those services. The employer has the right to choose the provider of care, except where the employer has denied liability for the injury. Section 85.27. Holbert v. Townsend Engineering Co., Thirty-second Biennial Report of the Industrial Commissioner 78 (Review-reopen 1975). Since the only issue in this case was whether the claimant's condition constituted an injury for which the employer was liable, the employer is held liable for the claimant's medical expenses as shown in exhibit 6 and also for her transportation expenses as shown in exhibit 7. The Page 8 transportation amounts to 3360 miles which at $.21 per mile computes to $705.60. Claimant's entitlement to recovery for medical expenses under section 85.27 is as follows: MEDICAL BILLS PAID BY MARY ANN HURLEY Iowa Orthopaedic Center $ 944.00 Mercy Hospital Medical Center 475.01 Drugs 127.20 Jack W. Brindley, M.D. 102.00 Medical Center Anesthesiologists 203.70 St. Joseph Mercy Hospital 219.97 mileage 705.60 TOTAL $2,777.48 To the extent that any of the foregoing bills are unpaid, defendants may make payment directly to the provider or to Mary Ann Hurley. Of those bills which have been previously paid, defendants shall reimburse the claimant. The mileage expense shall be paid directly to the claimant. Weekly compensation benefits are due and payable weekly commencing on the eleventh day after the injury under Iowa Code section 85.30. Compensation for permanent partial disability is due and payable commencing at the end of the healing period under Iowa Code section 85.34(2). If any type of weekly compensation is not paid at the time it comes due, it accrues interest pursuant to Iowa Code section 85.30. Teel, 394 N.W.2d 405; Farmers Elevator Co., Kingsley v. Manning, 286 N.W.2d 174 (Iowa 1979). The stipulated weekly rate of compensation is adjusted to $248.52 in order to be consistent with the 1989 benefit schedule. order IT IS THEREFORE ORDERED that defendants pay Mary Hurley forty-nine and one-sevenths (49 1/7) weeks of compensation for healing period at the stipulated rate of two hundred forty-eight and 52/100 dollars ($248.52) per week with twenty-six and three-sevenths (26/37) weeks thereof payable commencing July 11, 1989, and with the remaining twenty-two and five-sevenths (22 5/7) weeks thereof payable commencing June 14, 1990. It is further ordered that defendants pay Mary Ann Hurley thirty (30) weeks of compensation for permanent partial disability at the stipulated rate of two hundred forty-eight and 52/100 dollars ($248.52) per week payable commencing November 20, 1990, as stipulated in the prehearing report. Defendants are entitled to credit against the foregoing awards of weekly benefits in the amount of fourteen thousand eight hundred and 97/100 dollars ($14,800.97). The remaining balance thereof is past due and owing and shall be paid to Mary Ann Hurley in a lump sum together with interest pursuant to the provisions of section 85.30 computed from Page 9 the date each weekly payment came due up to the date of actual payment. It is further ordered that defendants pay the following medical expenses: Iowa Orthopaedic Center - $944, Mercy Hospital Medical Center - $475.01, Drugs - $127.20, Jack W. Brindley, M.D. - $102, Medical Center Anesthesiologists - $203.70, St. Joseph Mercy Hospital - $219.97, Mary Ann Hurley, mileage - $705.60, Total expenses - $2,777.48. It is further ordered that the costs of this action are assessed against defendants pursuant to rule 343 IAC 4.33. It is further ordered that defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1 Signed and filed this ____ day of December, 1992. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Mark Hedberg Attorney at Law 840 Fifth Ave Des Moines, Iowa 50309 Ms. Dorothy L. Kelley Attorney at Law 500 Liberty Bldg Des Moines, Iowa 50309 Page 1 51402.30 51803 51808 52209 Filed December 21, 1992 Michael G. Trier before the iowa industrial commissioner ____________________________________________________________ : MARY ANN HURLEY, : : Claimant, : : vs. : : File No. 939110 VISKASE CORPORATION, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CNA INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 51402.30 51803 51808 52209 Claimant proved by overwhelming preponderance of the evidence that she sustained bilateral tennis elbow as a result of her employment duties. Claimant awarded 6 percent permanent partial disability pursuant to section 85.34(2)(s).