BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DEBRA MOON, File No. 946325 Claimant, A P P E A L vs. D E C I S I O N AT&T, Employer, Self-Insured, Defendant. ___________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed September 21, 1993 is affirmed and is adopted as the final agency action in this case. Defendants shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of May, 1994. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr Joseph A Nugent Attorney at Law 1237 73rd St Des Moines IA 50311 Mr Thomas J McCann Attorney at Law 405 Sixth St STE 700 Des Moines IA 50309 4000.2 Filed May 19, 1994 BYRON K. ORTON BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DEBRA MOON, File No. 946325 Claimant, A P P E A L vs. D E C I S I O N AT&T, Employer, Self-Insured, Defendant. ___________________________________________________________ 4000.2 Penalty benefits awarded for failure to have medical evidence to support a denial of a claim and for paying long-term disability benefits in lieu of workers' compensation benefits. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : DEBRA MOON, : : File No. 946325 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N AT & T, : : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Debra Moon, claimant, against AT & T, employer, hereinafter referred to as the phone company, a self-insured defendant, for workers' compensation benefits as a result of an alleged injury on September 18, 1989. On May 5, 1993, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a 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. According to the hearing report, the parties have stipulated to the following matters: 1. Claimant is seeking temporary total or healing period benefits from September 19, 1989 through the present time and defendant agrees that she was not working during this time. 2. If the injury is found to have caused permanent disability, the type of disability is an industrial disability to the body as a whole. 3. At the time of injury claimant's gross rate of weekly compensation was $470.50; she was married; and she was entitled to 3 exemptions. Therefore, claimant's weekly rate of compensation is $296.73 according to the Industrial Commissioner's published rate booklet for this injury. 4. It was stipulated that the providers of the requested medical expenses would testify as to their reasonableness and defendant is not offering contrary evidence. The medical bills submitted by claimant at the hearing are fair and reasonable and causally connected to the medical condition upon which the claim herein is based but their causal connection to any work injury remains an issue to be decided herein. Page 2 ISSUES The parties submitted the following issues for determination in this proceeding: I. Whether claimant received an injury arising out of and in the course of employment; II. The extent of claimant's entitlement to disability benefits; III. The extent of claimant's entitlement to medical benefits; IV. The extent of credit under Iowa Code section 85.38(2) to which defendant is entitled; and, V. The extent of claimant's entitlement to penalty benefits, if any. FINDINGS OF FACT Having heard the testimony and considered all of the evidence, the deputy industrial commissioner finds as follows: A credibility finding is necessary to this decision as defendant placed claimant's credibility at issue during cross-examination as to the nature and extent of the injury and disability. From her demeanor while testifying, claimant is found credible. Claimant worked for the phone company from 1979 until September 1989 as a telephone operator. During the last several years, she was a long distance operator. This position required her to repetitively use her hands and arms to enter and retrieve information on a TV monitor using a keyboard in front of her. According to video tapes of the console operation and claimant's testimony, this job required reaching at or above shoulder level. Claimant explained that the monitor was located above her shoulders and she would have to use her fingers to locate and mark information on the screen while she talked to customers. In the months before she left her employment, claimant began to experience numbness and tingling in her right hand. This condition worsened over time and she left her work in September 1989 due to her pain. Claimant was eventually diagnosed as suffering form carpal tunnel syndrome and a right ganglion cyst by her family physician October 1989. Claimant was referred to an orthopedic surgeon, Scott Neff, D.O., who performed a surgical release. Claimant initially improved but upon new complaints of numbness and tingling in the forearm a few months later, Dr. Neff referred claimant to Lawrence Rettenmaier, M.D., a specialist in rheumatology, who ruled out arthritis and diagnosed thoracic outlet syndrome, a condition in which tendons and nerves centered in one area in the chest area become inflamed. Dr. Rettenmaier has treated claimant since that time for these Page 3 conditions which has now developed into chronic pain syndrome rendering claimant totally disabled. Claimant has been unable to complete the physical therapy ordered by Dr. Rettenmaier because defendant refused to pay for such treatment. Dr. Rettenmaier opines that claimant's carpal tunnel, thoracic outlet and her chronic pain syndromes are work related due to claimant's repetitive hand movements in her job at the phone company. Dr. Neff agrees with the thoracic outlet syndrome diagnosis but states that only the carpal tunnel is work related because claimant did not lift or reach at or above her shoulders. Two other experts were hired by claimant and defendant. The one hired by claimant stated the injury was work related and the one hired by defendant disagreed. Both of these opinions by non-treating physicians were not given much weight. Defendant argues that Dr. Neff should be given greater weight because of his specialty. However, it was Dr. Neff who referred claimant to Dr. Rettenmaier. Also, this deputy commissioner believes claimant and finds that she did in fact lift or reach at or above shoulder level on a repetitive basis. Therefore, Dr. Neff's history is incorrect and the views of Dr. Rettenmaier are viewed as most credible. Therefore, it is found that claimant suffered a work injury on September 18, 1989, the time she left her employment and that the injury consists of the conditions diagnosed by Dr. Rettenmaier. Based again on Dr. Rettenmaier's views, it is found that claimant has not reached maximum healing because she has not received the physical therapy treatment he recommends. As claimant is expected to improve with treatment, no findings of permanency can be made at this juncture. As claimant is seeking penalty benefits, the reasonableness of defendant's conduct must be examined. The defense has consistently denied liability for any injury and has not paid any compensation benefits to date. However, defendant has a group medical and long-term disability plan which has paid claimant benefits although not as much as she would have received from workers' compensation. As there has never been any dispute or evidence to suggest that the carpal tunnel syndrome was anything other than a work injury, defendant's actions in denying the claimant and providing other benefits than workers' compensation is unreasonable. Also, although Dr. Neff stated in March 1990, when he ended treatment of claimant, that her thoracic outlet syndrome was not related to the ganglion cyst problem, he did not opine that the condition was not work related until his deposition for this litigation in March 1993. However, claimant's family physician and Dr. Rettenmaier both opined that the claimant's condition was work related during the time of their treatment. A denial of a claim without a supportive medical opinion when treating physicians opine that the condition is work related is unreasonable. The maximum penalty should be imposed for such conduct. The parties stipulated that defendant is entitled to credit for the long-term disability and the group health insurance benefits paid. The weekly stipulated rate of Page 4 compensation is $296.73. Claimant was paid $289.51 per week through September 24, 1990 according to defendant's exhibit 10 and $82.16 per week though May 31, 1993 from claimant's exhibit 13. Also from claimant's exhibit 13, it is found that from May 31, 1992 to the present, claimant received $85.08 per week which is the monthly benefit divided by 4.2 weeks. As the conditions for which the treatment expenses were incurred are found work related, the requested expenses in claimant's exhibit 4 are all found work related. CONCLUSIONS OF LAW I. Claimant has the burden of proving by a preponderance of the evidence that claimant received an injury arising out of and in the course of employment. The words "out of" refer to the cause or source of the injury. The words "in the course of" refer to the time and place and circumstances of the injury. See generally, Cedar Rapids, Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). An employer takes an employee subject to any active or dormant health impairments. A work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. U.S. Gypsum, 252 Iowa 613, 620, 106 N.W.2d 591 (1961), and cases cited therein. It is not necessary that claimant prove his disability results from a sudden unexpected traumatic event. It is sufficient to show that the disability developed gradually or progressively from work activity over a period of time. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). The McKeever Court also held that the date of injury in gradual injury cases is the time when pain prevents the employee from continuing to work. In McKeever the injury date coincided with the time claimant was finally compelled by pain to give up his job. In the case sub judice, the injury was cumulative and the date of injury found was when the claimant left work. II. Claimant is entitled to weekly benefits for temporary total disability benefits or healing period under Iowa Code section 85.33 and 34 from the date of injury until claimant returns to work; until claimant is medically capable of returning to substantially similar work to the work she was performing at the time of injury; or, until it is indicated that significant improvement from the injury is not anticipated, whichever occurs first. It was found that claimant has not reached maximum healing due to refusal of defendant to provide the treatment recommended by her treating physician. Claimant is entitled to a running award of temporary total benefits until she reaches maximum healing. III. Pursuant to Iowa Code section 85.27, claimant is entitled to payment of reasonable medical expenses incurred for treatment of a work injury. Claimant is entitled to an Page 5 order of reimbursement if she has paid those expenses. Otherwise, claimant is entitled only to an order directing the responsible defendants to make such payments directly to the provider. See Krohn v. State, 420 N.W.2d 463 (Iowa 1988). In the case at bar, the parties stipulated that all of the requested expenses were causally related to the conditions alleged to be work related herein. As these conditions have been found to be work related the expenses were found work related. Therefore, claimant is entitled to these expenses. IV. With reference to entitlement to credit under 85.38(2), Defendant is allowed to take whatever credit it believes is appropriate under Iowa code section 85.38(2) and if claimant believes that the credit taken is improper, the claimant may petition the agency for relief. Presswood v. Iowa Beef Processors, Case No. 735442 (Appeal Decision 1986). However, employer is entitled to a credit for long-term disability benefits paid, less any tax deductions from those payments. West v. O'Bryan Bros., File No. 8904094 (Appeal Dec., March 17, 1993). Knopp v. William Brown Co., (Appeal Dec., June 4, 1993). V. Claimant seeks additional weekly benefits under Iowa Code section 86.13, unnumbered last paragraph. That provision states that if a delay in commencement or termination of benefits occurs without reasonable or probable cause or excuse, the industrial commissioner shall award extra weekly benefits in an amount not to exceed 50 percent of the amount of benefits that were unreasonably delayed or denied. Defendants may deny or delay the payment of benefits only when the claim is fairly debatable. Seydel v. U of I Physical Plant, (Appeal Dec., November 1, 1989). When the claim is "fairly debatable, the insurer is entitled to debate it, whether the debate concerns a matter of fact or law." The Supreme Court recently has clarified the grounds necessary to impose a section 86.13 penalty. In the recent case of Boylan v. American Motorists Ins. Co., No. 250/91-1520, Iowa Supreme Court, filed September 23, 1992, the court stated as follows: We conclude that it is unlikely that the legislature intended the penalty provision in section 86.13 to be the sole remedy for all types of wrongful conduct by carriers with respect to administration of workers' compensation benefits. By its terms, it applies only to delay in commencement or termination of benefits. It contemplates negligent conduct rather than the willful or reckless acts that are required to establish a cause of action under Dolan. (emphasis added) Consequently, not only bad faith but also negligent conduct can invoke the penalty provisions of section 86.13. In reviewing the propriety of defendant's actions, Iowa Code Page 6 section 507B.4(9) lists uniform unfair settlement claims practices for insurance companies. This listing is useful as a statement of public policy to identify the types of claim settlement practices that should be viewed unreasonable. Failing to promptly and fully investigate a claim and to make claimant's institute litigation to secure benefits are two types of unfair claims practices in this listing. Therefore, Iowa Code section 86.13, as now interpreted by Boylan, creates an affirmative duty for workers' compensation insurance carriers and self-insureds to act reasonably once a claim is filed. Acting reasonably means to fully and fairly investigate a claim, not to stand back and deny a claim simply because they wish to deny a claim. Making claimant wait as long as possible for his money regardless of medical evidence and to force claimant into litigation to soften a claimant up for settlement is unreasonable conduct entitling claimant to penalty benefits. Hartl v. Quaker Oats Company, File No. 931120, (Appeal Decision, July 22, 1993). Failure to have a medical opinion to support a denial of a claim may also justify an award of penalty benefits when claimant's physician has opined in favor of claimant even if an opinion supportive of denial is later obtained. Turner v. Louis Rich Company, File No. 860345, Appeal Decision, June 5, 1991. Paying long-term disability benefits which are less than worker's compensation benefits in a case which was not fairly debatable is unreasonable and may justify an award of penalty benefits. Wheels v. AT & T, File No. 936967, (Appeal Decision, June 30, 1993). In the case sub judice, an award of penalty benefits is justified on several grounds. An inadequate investigation was made before denying liability. There was no evidence to support the denial of liability for carpal tunnel syndrome and only long-term disability benefits were paid to claimant. Due to length of the unreasonable conduct and the multiple nature of the violations, a maximum penalty of 50 percent is justified and will be imposed. A specific monetary amount of penalty for each week cannot be made as the penalty will be the difference between the compensation rate and amounts received as net wages, after payroll taxes. This must be computed by the parties and if this cannot be done within 20 days of the date of the filing of this decision, the claimant will have to move for a second hearing to determine the penalty amount. ORDER 1. Defendant shall pay to claimant temporary total disability or healing period benefits from September 18, 1989 to the present and such payments shall continue for an indefinite time into the future until the conditions are met for ending such benefits as set forth in Iowa Code section 85.33(1) or 85.34(1). 2. Defendant shall pay the medical expenses listed in claimant's exhibit 4. Claimant shall be reimbursed for any Page 7 of these expenses paid by him. Otherwise, defendants shall pay the provider directly along with any lawful late payment penalties imposed upon the account by the provider. 3. Defendant is ordered to provide whatever care and treatment, including all tests and procedures, deemed necessary by Lawrence Rettenmaier, M.D., who shall be designated as claimant's treating physician. 4. Defendant shall pay a penalty on each week of the entitlement to benefits to date consisting of 50 percent of the difference between the weekly rate of compensation and the net weekly amounts of long-term disability payments received after taxes. 5. Defendant shall pay accrued weekly and penalty benefits in a lump sum and shall receive credit against this award for all benefits previously paid. 6. Defendant shall receive credit for previous payments of benefits under a non-occupational group insurance plan, if applicable and appropriate under Iowa Code section 85.38(2), less any tax deductions from those payments. 7. Defendant shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 8. Defendant shall pay the costs of this action pursuant to rule 343 IAC 4.33, including reimbursement to claimant for any filing fee paid in this matter. 9. Defendant shall file activity reports on the payment of this award as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of September, 1993. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Joseph A. Nugent Attorney at Law 1239 73rd Street Des Moines, Iowa 50311 Mr. Thomas J. McCann Attorney at Law 405 Sixth Street STE 700 Des Moines, Iowa 50309 4000.2 Filed September 21, 1993 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DEBE MOON, File No. 946325 Claimant, A R B I T R A T I O N vs. D E C I S I O N AT&T, Employer, Self-Insured, Defendant. ___________________________________________________________ 4000.2 Penalty benefits awarded for failure to have medical evidence to support a denial of a claim and for paying long-term disability benefits in lieu of workers' compensation benefits. Page 1 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ RITA SIEVERDING, Claimant, vs. File No. 946365 JOHN MORRELL & CO., A P P E A L Employer, D E C I S I O N and NATIONAL UNION FIRE INSURANCE COMPANY, Insurance Carrier, Defendants. ____________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed December 31, 1991 is affirmed and is adopted as the final agency action in this case. Claimant attempts to raise for the first time on appeal the issue of whether discovery requirements were correct. Claimant did not raise the issue before the presiding deputy (see e.g., the prehearing report dated November 6, 1991) and the issue will not be considered on appeal. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of June, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Page 2 Copies To: Mr. Harry H. Smith Attorney at Law P.O. Box 1194 Sioux City, Iowa 51102 Mr. Thomas M. Plaza Attorney at Law P.O. Box 3086 Sioux City, Iowa 51102 9999 Filed June 30, 1992 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ RITA SIEVERDING, Claimant, vs. File No. 946365 JOHN MORRELL & CO., A P P E A L Employer, D E C I S I O N and NATIONAL UNION FIRE INSURANCE COMPANY, Insurance Carrier, Defendants. ____________________________________________________________ 9999 Summary affirmance of deputy's decision filed December 31, 1991, with short additional analysis. Page 1 before the iowa industrial commissioner ____________________________________________________________ : RITA SIEVERDING, : : Claimant, : : vs. : File No. 946365 : JOHN MORRELL & CO., : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : NATIONAL UNION FIRE INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in arbitration brought by the claimant, Rita Sieverding, against her employer, John Morrell & Company, and its insurance carrier, National Union Fire Insurance Company, to recover benefits under the Iowa Workers' Compensation Act as the result of an injury sustained on July 12, 1989. This matter came on for hearing before the undersigned deputy industrial commissioner at Sioux City, Iowa, on November 7, 1991. A first report of injury has been filed. The record consists of joint exhibits 1 through 48 and claimant's exhibit 49 as identified on appropriate exhibit lists as well as of the testimony of claimant and of Patrick Luse, D.C. issues Pursuant to the hearing assignment order, the prehearing report and the oral stipulations of the parties at hearing, the parties have stipulated that claimant did receive an injury which arose out of and in the course of her employment on July 12, 1989; that a causal relationship exists between such injury and temporary total or healing period disability; and, that claimant has appropriately received temporary total disability benefits from March 24, 1990, through October 14, 1990, and that claimant has appropriately received temporary partial disability benefits from October 15, 1990, through November 18, 1990. The parties have further stipulated that claimant was married and entitled to four exemptions at the time of her injury and had a gross weekly wage of $376.33, entitling her to a weekly rate of compensation of $247.90. Issues remaining to be decided are: Page 2 1. Whether a causal relationship exists between claimant's injury and claimed permanent partial disability; 2. The nature and extent of any benefit entitlement; 3. Whether claimant is entitled to payment of the costs of an examination under section 85.39; and, 4. Whether a penalty shall be imposed upon defendants for unreasonable denial or delay in commencement of benefits under section 86.13 unnumbered paragraph 4. findings of fact The deputy, having heard the testimony and considered the evidence, finds: Claimant was born on November 14, 1958. She has completed the ninth grade and has received a GED. She undertook a course in golf course management at Western Iowa Technical College, but worked in that field for only one month. Her work history is in either the packing industry or in unskilled essentially entry-level positions. Claimant began work at John Morrell in 1984. On July 12, 1989, claimant started to fall forward while walking on steps. She "flung" herself backwards in order to prevent a fall, and in the process jammed her left hip. Claimant reported initially having right leg pain and then having increasing pain on the left side. She has subsequently had complaints of right groin discomfort, left hip discomfort, headache and lumbar and cervical back pain. Claimant had previously had an automobile accident on March 23, 1981, after which she experienced neck and shoulder pain. Claimant characterized such as neck and back pain at hearing and reported that she had "no problems" after seeing the doctor a few times. Kevin J. Liudahl, M.D., referred claimant to Quentin J. Durward, M.D., who referred claimant to Leonel H. Herrera, M.D. Dr. Herrera released claimant to return to temporary partial work status and subsequently to full work status. Claimant reported that she remains restricted as to bending and squatting. The medical records do not reflect those restrictions, however. Claimant currently works scaling products, that is, weighing the product and labeling the product with its name and weight. Claimant's current wage equals her wage at injury. Claimant reports that co-workers help her with heavy lifting and that her supervisor has helped her as well. Claimant reports that she can no longer bowl, play volleyball, garden, or run. She reported that her daughter vacuums, makes the bed, and carries laundry. Claimant indicated she is unable to sit or stand for long periods. Claimant has made only one visit to the nursing station in 1991; that visit occurred after she lifted a basket of "tenders." Claimant generally stands at her current job, but does have a table available on which she can sit while the product is changed. Page 3 Kevin J. Liudahl, M.D., ordered an MRI of claimant's lumbar spine. James C. Beeler, M.D., interpreted an MRI of May 7, 1990, as showing bulging of the annulus fibrosis at L4-5 and minimal bulging at L5-S1. Dr. Beeler, on August 24, 1990, reported that the MRI showed a small focus of increased T2 signal intensity in the posterior midline annulus at the L4-5 level. He stated that recent literature had suggested that finding might represent an anterior annular tear, unassociated with herniation at that time. An EMG study was interpreted as positive for chronic left L4-5 radiculopathy. Quentin J. Durward, M.D., a neurosurgeon, examined claimant on May 21, 1990. Her neurological exam was normal. Claimant had marked tenderness over the left greater trochanter and posterior hip joint area in addition to the sciatic notch. She had limitation of straight leg raising at 70 degrees not relieved by flexing the knee. Knee and ankle reflexes were symmetric at 2+. Claimant flexed forward about 40 degrees and had poor curve reversal. There was some blunting of pin in the dorsum of the left foot. Power examination was normal. Dr. Durward again saw claimant on August 22, 1990. She then was markedly tender in the greater trochanter on the left side and had unrestricted leg raising but for lateral hip pain at 90 degrees on the left. She forward flexed to 80 degrees with excellent curve reversal. She extended well. Claimant had undergone physical therapy and epidural steroid injections between the May and August examinations. Dr. Durward advised a myelogram. Dr. Durward interpreted the myelogram as showing a very mild bulge at the L4-5 disc without significant nerve root compression. Myelogram of the neck was normal. The doctor opined that claimant had left trochanteric bursitis and chronic back and neck pain syndrome with radicular symptoms of indeterminate etiology. Dr. Durward referred claimant to Dr. Herrera, a neurologist, for isokinetic rehabilitation. On September 27, 1990, Dr. Herrera opined that claimant would not have permanent partial "disability." On December 18, 1990, Dr. Herrera reported that claimant's chronic L5 radiculopathy was improved and released claimant from his care to return on a PRN basis. Dr. Herrera recommended that claimant continue with a 15-pound lifting restriction for six weeks, then increase her lifting restriction to 25 pounds. Drs. Liudahl and Durward related claimant's back and hip pain to her work injury at John Morrell. Neither physician assigned any permanent partial impairment rating, however. The record does not reflect that either doctor was aware of claimant's earlier automobile accident. Joel T. Cotton, M.D., a neurologist examined claimant initially on November 20, 1990, and reviewed the record from previous "examiners," apparently records of previous physicians. He found claimant had normal strength in her arms and her legs as well as normal sensation in her hands Page 4 and feet. Straight leg raising was negative to 90 degrees bilaterally in the seated position. Movement of the right hip was unrestricted and accompanied by complaint. There was some inconsistent complaint of left hip pain with flexion and rotation. Lateral bending and extension of the low back were judged to be normal. Claimant had unrestricted movement of the neck unaccompanied by subjective complaints of pain. Claimant reported tenderness on palpation over the left hip laterally. Dr. Cotton could not substantiate neurological injury to claimant's neck, low back or cervical or lumbar nerve roots. He reported no neurological reason existed for claimant not to return to her previous, usual and customary activities without restriction. Dr. Cotton did not agree that claimant's nerve and muscle study, that is, her EMG and nerve conduction studies of May 7, 1990, were consistent with a subacute L5 radiculopathy. He opined that the negative myelogram confirmed the lack of any nerve root injury. He opined that any previous suspected "'chronic left L5 radiculopathy'" was no longer present and that neither claimant's current symptoms nor her neurological examination documented a residual injury affecting either the spine or lumbar nerve roots. Dr. Cotton is a board-certified neurologist. He is also board certified in electrodiagnostic medicine, specifically in EMG. Patrick Luse, D.C., initially examined claimant on April 23, 1991. Claimant subsequently has undergone chiropractic treatment with Dr. Luse. Dr. Luse's diagnosis was of chronic lumbar sprain with hypomobility and radiculitis; chronic left trochanteric bursitis; and, chronic cervical sprain. Dr. Luse opined that claimant did receive an injury as a result of her July 12, 1989, work incident. He rated claimant's permanent partial impairment as follows: IMPAIRMENT RATING: (Rating for permanent physical impairment Sensory impairment rating: L5 nerve 5 x 10% (grade) = 1% impairment to extremity Motor impairment rating: L5 nerve 37 x 5% (grade) = 2% impairment to extremity Range of Motion Evaluation: (Given in degrees) Dorsal-Lumbar Spine Flexion 75 degrees = 0% Extension 15 degrees = 3% Left lateral flexion 15 degrees = 2% Right lateral flexion 20 degrees = 1% Other Unoperated with medically documented injury and a minimum of six months medically documented pain, recurrent muscle spasms or rigidity associated with none-to-minimal degenerative changes on structural Page 5 tests for the lumbar spine = 5% impairment to the whole person. SUMMARY Total impairment to the whole person = 10%. Dr. Luse reported that his standard for muscle grades was the Manual of Orthopedic Surgery, American Orthopedic Association, and the standard for other values was the Guides to the Evaluation of Permanent Impairment, American Medical Association, Third Edition. Dr. Luse reported that he had had Jerry Newman, a physical therapist, review the report of the EMG of May 7, 1990. The doctor stated that Newman felt the EMG was definitely an "'abnormal EMG' and 'suggestive of a lesion' and consistent with subacute L5 radiculopathy." Dr. Luse appeared at hearing and testified as regards his evaluation and measurement methods and instruments. Dr. Luse stated that his permanent partial impairment rating did not include claimant's neck or hip complaints, but only complaints related to the lumbar spine. Claimant's balance with Dr. Luse for evaluation is $300. Dr. Cotton re-evaluated claimant on September 10, 1991. A repeat EMG was performed. Dr. Cotton interpreted that EMG as entirely normal showing no evidence of past or present nerve damage and showing nothing indicative of past or present L5 radiculopathy. Dr. Cotton disagreed with Dr. Luse's findings reporting that range of motion of claimant's spine as of that date was normal with unrestricted lateral flexion both towards the left and right; that flexion in the standing position was approximately 80 degrees and that straight leg raising again was performed in the seated position to 90 degrees easily. Evidence of impairment of lumbar or cervical range of motion was present. The doctor opined to a reasonable degree of medical probability that claimant had no permanent partial impairment as a result of limitation of motion in the cervical or dorsal lumbar spine. The doctor then stated: There is no evidence that this individual has any permanent partial impairment as the result of medically documented injury and a minimum of six months of pain for which she was given a five percent impairment to the whole person. That impairment according to Page 73, Table 49, of the Third Edition of the American Medical Association Guides to the Evaluation of Permanent Impairment is for "impairments due to specific disorders of the spine.["] There is no evidence whatsoever at the time of today's examination that this individual has any past or present injury to the area of the spine. This includes the intervertebral disks as well as the other soft tissues associated with the spine. There is no pain or tenderness over the lumbar or dorsal Page 6 spine, there is unrestricted movement of the lumbar spine, needle electrode examination (EMG) of the lumbar paraspinous muscles at the levels of L3 through S1 was normal, and she is not found to have any "muscle spasm or rigidity". It is therefore my opinion based upon a reasonable degree of medical probability that this individual has not suffered any permanent partial impairment or subsequent disability to her spine according to the Third Edition of the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition. (Joint exhibit 46, page 4). Dr. Cotton opined that claimant could perform all usual and customary activities without restrictions and did not require any additional appreciable medical attention for her complaints. conclusions of law Our first concern is whether claimant has shown a causal relationship between her injury and claimed permanent partial disability. 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). Drs. Liudahl and Durward related claimant's back and hip pain to her work injury. Neither of those physicians has rendered a permanency rating, or otherwise indicated that claimant's condition would result in permanent impairment, however. Dr. Herrera expressly opined that claimant's condition would not result in a permanent partial [impairment]. Dr. Cotton has indicated that claimant has no permanent impairment on account of her work condition. Dr. Luse has opined that claimant has a permanent partial impairment of 10 percent of the body as a whole, which he Page 7 attributes wholly to her lumbar spine condition. Dr. Cotton expressly disagrees with Dr. Luse and has interpreted both the initial EMG of May 7, 1990, and the subsequent EMG of September 10, 1991, as normal. Such is contrary to the opinions regarding the EMG on which Dr. Luse largely bases his impairment rating. Dr. Cotton is board certified in electrodiagnostic medicine, that is, the use of EMG. For that reason, we defer to Dr. Cotton's opinion in this regard. Hence, claimant has not preponderated in establishing a causal relationship between her alleged work injury and any permanent partial impairment and subsequent disability. As claimant has not preponderated on that issue, we need not reach the issue of any permanent benefit entitlement. We note that claimant continues to work for the employer and that claimant herself testified that the employer accommodates her. Given such, any loss of earning capacity, had such been appropriately awarded under the record presented, would have been minimal. As claimant has not prevailed in establishing causation to permanent partial disability and as the parties agree that defendants paid, apparently, timely, all temporary total disability and temporary partial disability to which claimant was entitled, claimant's request of an assessment of additional benefits under section 86.13, unnumbered paragraph 4, is no longer viable. Claimant also requests payment for Dr. Luse's examination under section 85.39. Section 85.39, unnumbered paragraph 2, provides, in relevant part: If an evaluation of permanent disability has been made by a physician retained by the employer and the employee believes this evaluation to be too low, the employee shall, . . . be reimbursed by the employer the reasonable fee for a subsequent examination by a physician of the employee's own choice, . . . Dr. Cotton evaluated claimant at defendants' request. Dr. Cotton opined that claimant had no permanency. An evaluation with subsequent opinion of no permanency equals a rating of permanency. See Coble v. Metromedia, Inc., Thirty-fourth Biennial Report of the Industrial Commissioner 71 (1979). Claimant therefore is entitled to payment for the cost of evaluation with Dr. Luse in the amount of $300. Page 8 order THEREFORE, IT IS ORDERED: Claimant take no further weekly compensation benefits from this proceeding. Defendants pay claimant costs of an independent evaluation with Patrick Luse, D.C., in the amount of three hundred and 00/100 dollars ($300.00). Defendants and claimant pay equally the costs of this proceeding pursuant to rule 343 IAC 4.33. Defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ______ day of ____________, 1991. ______________________________ HELENJEAN M. WALLESER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Harry H. Smith Attorney at Law P.O. Box 1194 Sioux City, Iowa 51102 Mr. Thomas M. Plaza Attorney at Law 200 Home Federal Building P.O. Box 3086 Sioux City, Iowa 51102 Page 1 1803; 2600; 2502 Filed December 31, 1991 HELENJEAN M. WALLESER before the iowa industrial commissioner ____________________________________________________________ : RITA SIEVERDING, : : Claimant, : : vs. : File No. 946365 : JOHN MORRELL & CO., : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : NATIONAL UNION FIRE INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 1803; 2600 Opinion of medical doctor board certified in neurology and electrodiagnostic medicine accepted over that of chiropractic physician. No permanent partial disability impairment. 2502 Prior evaluation with finding of no permanent partial disability impairment sufficient to entitle claimant to reimbursement for subsequent evaluation. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : LYLE SCHWERY, : : Claimant, : File No. 946402 : vs. : A R B I T R A T I O N : CITY OF DES MOINES, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Lyle Schwery, claimant, against the City of Des Moines, employer, hereinafter referred to as the City, a self-insured defendant, for workers' compensation benefits as a result of an alleged injury on January 27, 1990. On September 8, 1992, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of 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. According to the prehearing report, the parties have stipulated to the following matters: 1. On January 27, 1990, claimant received an injury arising out of and in the course of employment with the City. 2. Claimant is entitled to healing period benefits from January 28, 1990 through February 1, 1990, and from May 23, 1990 through July 17, 1990. 3. The injury was a cause of permanent industrial disability to the body as a whole. 4. Permanent partial disability benefits shall begin as of July 18, 1990. 5. At the time of injury claimant's gross rate of weekly compensation was $508.12; he was married; and, he was entitled to five exemptions. Therefore, claimant's weekly rate of compensation is $327.13 according to the Industrial Page 2 Commissioner's published rate booklet for this injury. 6. All requested medical benefits have been or will be paid by defendant. ISSUE The only issue submitted by the parties for determination in this proceeding is the extent of claimant's entitlement to permanent disability benefits. FINDINGS OF FACT Having heard the testimony and considered all of the evidence, the deputy industrial commissioner finds as follows: A credibility finding is necessary to this decision as defendant placed claimant's credibility at issue during cross examination as to the nature and extent of the injury and disability. From his demeanor while testifying, claimant is found credible. Claimant, age 42, has worked for the City since July 1983 and continues to do so at the present time. At the time of the work injury herein, he was a police radio dispatcher. This job required regular use of his arms and hands and some overhead reaching to operate equipment and grab reference materials and books located on shelves in the work area. On January 27, 1990, claimant injured his low back, right wrist, left knee, right ankle and right shoulder when he slipped on ice in the City's parking lot on his way to work. Claimant first sought medical treatment from his family doctor but was referred to the City's employee health clinic because the injury occurred at work. Dr. Straubinger (first name unknown) at this clinic treated claimant conservatively for a few weeks with physical therapy and medication. When this treatment did not improve claimant's condition, he referred claimant in February 1990 to an orthopedic surgeon, Marshall Flapan, M.D. Although claimant reported right shoulder problems in 1988, Dr. Straubinger attributed claimant's problems at that time as casually related to the January 27, 1990 fall at work. Upon a diagnosis of multiple sprains and contusions, Dr. Flapan continued drug therapy and returned claimant to unrestricted duty. However, claimant returned to Dr. Flapan a few weeks later with continued shoulder complaints when an MRI test indicated possible rotator cuff tearing in the right shoulder. Dr. Flapan then ordered an arthrogram which confirmed a rotator cuff tear. Surgery was performed in May 1990 to repair the rotator cuff and resect the Page 3 coracoacromial ligament. Claimant was again returned to work without restrictions except for using arms away form his body and over his head. Claimant returned to work but stated that he continued to have problems reaching and lifting phone books, log books and other resource material at his work station. He stated that he regularly stood up to change positions. During his employment with the City, claimant had been attending college. He graduated with a BA in psychology in May 1991 from Simpson College. His job search following graduation included the City. In March 1992, claimant accepted a position with the City as Homeless Assistance Coordinator. This is a higher paid position that police dispatcher and at the present time the annual salary range tops out at $37,000. Claimant stated that he accepted this position not only for increased pay but to use his education and to secure a less physical position. Claimant testified that he continues to experience physical problems in performing his new coordinator job. The job requires repetitive use of his hands on occasion such a using a keyboard and a lot of stair climbing. He stated that occasionally he assists in unloading truckloads of donations which is heavy work. Claimant's current supervisor testified that claimant is a very good employee and did not know until the day of hearing that he had a prior work injury. It is found that the work injury of January 27, 1990 is a cause of a 5-12 percent permanent impairment to the body as a whole. Dr. Flapan gave a rating of 5 percent and a one-time evaluator, Martin Rosenfeld, D.O., another orthopedic surgeon, rated claimant's impairment at 12 percent. Neither gave a rating to the left knee. Dr. Rosenfeld also opined that claimant left shoulder is impaired but there is no evidence to suggest that this was due to the fall. Also, as a result of the fall at work, claimant is unable to perform physical activities consisting of no lifting over 35 pounds, 20 pounds repetitively and no lifting or reaching above shoulder level. These restrictions are based upon a functional capability evaluation performed in July 1991 by Robert Jones, a trained evaluator at Mercy Hospital in Des Moines. Dr. Flapan disagrees with such restrictions but his views were rejected as illogical. It is unconvincing for Dr. Flapan to give claimant an impairment rating of 5 percent and still opine at the same time that claimant has no limitations on the use of his shoulder. Also, Mercy Hospital restrictions are less than those imposed by Dr. Rosenfeld who believes claimant should not lift over 10 pounds. However, objective capability measurement must give way to subjective opinion. Page 4 Both physicians causally relate the impairment to the work injury of January 27, 1990. It is found that claimant was able to return to his dispatching work after treatment albeit with occasional pain. Claimant is 41 years of age. Claimant has a college education. Claimant's prior employment involved bill collecting and air traffic control. Claimant has umpired baseball since 1989 but states that he does less of this today. Claimant is continuing his education in pursuit of a masters degree. His earnings since the work injury have increased due to obtaining the higher salaried job. Although he continues to experience some problems with his knee and shoulder, claimant is able to handle his new job. Heavy lifting is not required for his job according to his supervisors. However, his disability limits him from performing all physical aspects of his current job. From examination of all of the factors of industrial disability, it is found that the work injury of January 27, 1990 is a cause of a 5 percent loss of earning capacity. CONCLUSIONS OF LAW It was stipulated that the work injury was a cause a permanent physical impairment or limitation upon activity involving the body as a whole, the degree of permanent disability must be measured pursuant to Iowa Code section 85.34(2)(u). However, unlike scheduled member disabilities, the degree of disability under this provision is not measured solely by the extent of a functional impairment or loss of use of a body member. A disability to the body as a whole or an "industrial disability" is a loss of earning capacity resulting from the work injury. Diederich v. Tri-City R. Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A physical impairment or restriction on work activity may or may not result in such a loss of earning capacity. Examination of several factors determines the extent to which a work injury and a resulting medical condition caused an industrial disability. These factors include the employee's medical condition prior to the injury, immediately after the injury and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. See Peterson v. Truck Haven Cafe, Inc., vol. 1, Page 5 no. 3 State of Iowa Industrial Commissioner Decisions 654, 658 (App. Dec. February 28, 1985). A showing that claimant had no loss of actual earnings does not preclude a finding of industrial disability. See Michael v. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218, 220 (App. Dec. January 30, 1979). The supreme court in Bearce v. FMC Corp., 465 N.W. 2d 531 (Iowa 1991) only held that continued employment with no loss of earnings is significant evidence that should not be overlooked in measuring loss of earning capacity. In the case sub judice, it was found that claimant suffered a 5 percent loss of his earning capacity as a result of the work injury. Such a finding entitles claimant to 25 weeks of permanent partial disability benefits as a matter of law under Iowa Code section 85.34(2)(u) which is 5 percent of 500 weeks, the maximum allowable number of weeks for an injury to the body as a whole in that subsection. ORDER 1. Defendant shall pay to claimant twenty-five (25) weeks of permanent partial disability benefits at a rate of three hundred twenty-seven and 13/100 dollars ($327.13) per week from July 18, 1990. 2. Defendant shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for all benefits previously paid. 3. Defendant shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 4. Defendant shall pay the costs of this action pursuant to rule 343 IAC 4.33, including reimbursement to claimant for any filing fee paid in this matter. 5. Defendant shall file activity reports on the payment of this award as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of October, 1992. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Page 6 Copies To: Mr. Kevin Kirlin Attorney at Law 535 Insurance Exchange Bldg Des Moines, Iowa 50309 Mr. Bruce E. Bergman Attorney at Law 400 E. First St Des Moines, Iowa 50309 51803 Filed October 19, 1992 Larry P. Walshire BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ LYLE SCHWERY, Claimant, File No. 946402 vs. A R B I T R A T I O N CITY OF DES MOINES, D E C I S I O N Employer, Self-Insured, Defendants. ___________________________________________________________ 51803 Nonprecedential, extent of disability case. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ MERRILL C. BECK, : : Claimant, : File Nos. 1025702 : 1025703 vs. : 946526 : ARMSTRONG RUBBER & TIRE : CO., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : TRAVELERS INSURANCE : COMPANY and ALLIANZ : INSURANCE COMPANY, : and : : SECOND INJURY FUND OF IOWA, : : Insurance Carrier, : Defendants. : : ------------------------------------------------------------ STATEMENT OF THE CASE These cases came on for hearing on March 15, 1994, at Des Moines, Iowa. These are proceedings in arbitration wherein claimant seeks compensation for permanent partial disability benefits as a result of alleged injuries occurring on November 8, 1991 (file 1025702), December 6, 1991 (file no. 1025703), which also involves the Second Injury Fund, and, December 15, 1990 (file 946526). The record in the proceedings consist of the testimony of the claimant, Jack Salsbury, Joyce Kain; claimant's exhibits 1 and 2; and, defendants' exhibits 1 through 8 and 10 through 28. An objection by claimant to defendants' exhibit 9 was sustained and defendants made an offer or proof. ISSUES Regarding the November 8, 1991 alleged injury (1025702 and the December 6, 1991 alleged injury 1025703), the issues are as follows: 1. The extent of claimant's permanent disability and entitlement to disability benefits. The parties agreed these two cases involve simultaneous bilateral scheduled Page 2 member injuries and come under the provisions of 85.34(2)(s); and, 2. Whether claimant is entitled to Second Injury Fund benefits. Regarding the February 15, 1990 injury (946526), the issues are: 1. Whether an injury arose out of and in the course of claimant's employment on February 15, 1990; 2. Whether there is a causal connection between claimant's alleged disability and any temporary total disability, healing period or permanent partial disability benefits and his alleged February 15, 1990 injury; 3. The extent of claimant's permanent disability, if any, and entitlement to disability benefits. The parties agree that any permanent disability would be to claimant's right lower extremity (knee); 4. Whether claimant is entitled to 85.27 medical benefits, the issue being causal connection and involves only the amount of $114.04, which was the cost of safety shoes. FINDINGS OF FACT The undersigned deputy, having heard the testimony and considered all the evidence, finds that: Claimant is a 53-year-old high school graduate. He related his work history prior to beginning work for defendant employer on January 30, 1967, and he referred to page 81 of claimant's exhibit 1. The undersigned might note that the numbering of the exhibits is somewhat confusing in that the claimant offered into evidence exhibits 1 and 2, but in looking at the claimant's exhibits, they have exhibit 1 and then a page and like on page 81, it is exhibit 58, page 81. The undersigned is going to refer to claimant's exhibits as 1 and 2 and then the particular pages. He will not refer to the prefix that accompanies each page of the exhibit. Claimant stated he obtained his job at defendant employer as a machinist and that his prior work history helped him to be able to get his current job. He has also taken some adult education courses. Claimant stated the demands of his job as machinist from the time he began to the present. Claimant said he moved to a farm in 1970 which comprises of 40 acres, put in the crops himself and did the building repairs. He had no cattle. He indicated he stopped doing this in 1990. He indicated that his farming was at a loss from the income standpoint. Claimant's testimony is a little confusing in that he Page 3 talks about his February 15, 1990 injury in which he fell down the stairs when he was leaving for home after having attended class in connection with his employment. He then refers to seeing Dr. Misol on his own and relates to page 2 of exhibit 1 concerning a December 22, 1989 visit in which he was complaining of pain in his wrists with more trouble with the left. There is no reference to an 1989 visit with Dr. Misol but on page 2 it refers to a February 27, 1990 visit with a doctor and there is no comment made concerning his February 15, 1990 fall. The claimant testified that he had treatment for a prior knee problem and went to Dr. Misol for that also on October 8, 1984. Claimant indicated that from 1967 to early 1990, he had no surgery on his right or left knee. Claimant related the nature of his work and what the job encompassed as far as using his body. Claimant related that one week before February 15, 1990, he worked 52 hours and the week before that 48. He related the various hours he has worked during the weeks preceding the 15th. Claimant indicated the reason he puts in longer hours at times is that the maintenance people must work when the production crew is not using the equipment at the company. Claimant then stated that on February 9, 1990, he told the nurse of pain in his right hand and elbow which he related to work. He said he continued working his normal working hours. Claimant then related that while going to a class on behalf of defendant employer, he was leaving the plant and fell down the stairs hurting his right knee. He went to the doctor the next day. Page 86 of claimant's exhibit 1 is the medical records concerning that event. On March 12, 1990, claimant had arthroscopic surgery on his right knee and was off work for approximately five weeks. There is no dispute as to claimant's healing period. Claimant returned to work on April 19, 1990 and started doing the same work even though he was supposed to be on light duty. Claimant related the medical treatment he obtained from the various doctors treating him for both his upper and lower extremities. Claimant referred to claimant's exhibit 1, page 44, which is an August 14, 1991 letter by Scott B. Neff, D.O. The doctor set out certain work restrictions and the claimant was supposed to be re-evaluated in three months. At that time, the doctor opined claimant had a 10 percent impairment in reference to his right lower extremity as a result of claimant's injury and surgery. Claimant returned to work on June 26, 1991 as a machinist and the defendant employer complied with his restrictions and limited claimant's hours. Claimant contends he was limited to at least two less hours per week than what he usually worked and was no longer working 60 or 70 hour weeks. Claimant Page 4 contends he lost money because of being limited to eight hours per day and a 40 hour week. Claimant then testified that he had surgery on November 8, 1991 to help get relief from the problems he was having with his right upper extremity. He then had the same type of surgery on his left upper extremity on December 6, 1991. Claimant then referred to claimant's exhibit 1, page 52, in which Dr. Neff on January 5, 1992, wrote that claimant was able to return to work on January 13, 1992, and that he would have restrictions for approximately 30 days and the doctor set out those restrictions. Claimant said the employer accommodated him in his job as a machinist. On page 53 of claimant's exhibit 1, Dr. Neff, on February 10, 1992, reported that claimant should restrict himself to a normal 40 hour week and try to avoid severely prolonged overtime. He indicated claimant told him he had been working six to seven days per week, twelve hours per day, and the doctor thought that might be excessive. He also indicated that cushioned soled shoes would diminish the contact force the claimant needs and that Palmar-padded sobuthane gloves would help claimant's exposed vibration. He thought claimant was doing very well. Claimant referred to page 64 of said exhibit, which is a February 15, 1993 letter of Dr. Neff. In that letter, Dr. Neff refers to osteoarthritis in both of claimant's knees which was primary as also stated by Rheumatologist Theodore W. Rooney, D.O. Dr. Neff further indicated that that had not been caused, aggravated, accelerated or lighted up by his work injury. He did say the surgical procedure necessary on the right patellar tendon mechanism was the result of his work injury. Claimant was discharged by Dr. Neff, as reflected in defendants' exhibit 1, page 67, a March 10, 1993 letter, because of alleged abuse to Dr. Neff's office staff and claimant's refusal to pay the co-payment of his medical bills. Claimant contends he was not discourteous or abusive. On cross-examination, claimant was asked concerning his prior right knee problems and he denied he had right knee problems for many years before his fall. He didn't remember Dr. Flapan recommending arthroscopy surgery in 1984, nor does he remember Dr. Misol indicating he had a torn meniscus in December 1989, nor that the doctor recommended surgery at that time. Claimant denied that he had told Rodney E. Johnson, M.D., that Dr. Misol had recommended knee surgery. Claimant then was referred to claimant's exhibit 1, page 1, as to Dr. Johnson's January 16, 1990 note in which the claimant indicated discomfort in his right knee and told the doctor that Dr. Misol has evaluated this and recommended arthroscopy surgery. On examination, Dr. Johnson further indicated he thought claimant had a flap tear of the posterior horn of the medial meniscus and he was going to get a bone scan. On January 30, 1990, after a bone scan was done, the Page 5 doctor indicated that claimant has a posterior horn tear of the medial meniscus and he told the doctor he wished to have something done about it and has been given a release for surgery which will be arranged as an outpatient procedure. The undersigned might note that it is hard to believe the claimant does not remember this conversation with the doctor or the problems he was having with his knee since it happened that these conversations were just approximately 15 days before his alleged fall down the stairs on February 15, 1990. On the medical records, it would appear that claimant's knee was in such a condition that it needed surgery, claimant was having problems, and that any fall claimant had was the result of claimant's knee from a nonwork situation and that claimant's fall was the result of claimant's knee condition prior to February 15, 1990. Claimant was further asked concerning Dr. Rooney's letter of September 6, 1990, in which he indicated claimant has features of primary osteoarthritis of the knees and small joints in the hands. The undersigned is alarmed at claimant's memory or lack of memory. Claimant was very evasive with his answers, couldn't recall things that the undersigned believes he should be able to recall, and his lack of memory is very questionable. It would also appear to the undersigned that some of the doctors examining claimant did not know claimant's past history and the claimant did not tell them. Claimant finally acknowledged that he did have knee problems prior to his February 15, 1990 fall. Jack Salsbury has worked for defendant employer 35 years and has been the local union's benefits representative for the last ten years. He indicated claimant was making $14 plus per hour in 1989 and is now making $16 plus. It would appear to the undersigned from other testimony that claimant is now earning $16.37 per hour. Mr. Salsbury testified claimant is well respected, a good employee, and has good attendance. He indicated that the company has good fringe benefits including medical and vacation pay. He understood claimant's restrictions and the restricted hours. He said claimant had previously worked six to seven days per week and would earn a lot of overtime. He said the maintenance department works more hours than the rest of the plant so there is more overtime available. He said claimant is losing approximately eight hours per week which equal approximately $200 per week and of this amount, claimant would collect vacation. Joyce Kain testified she began working for defendant employer in 1972. She is the senior personnel benefits analyst for defendant employer and has held that position since 1979. She is in charge of hiring, discipline, workers' compensation, etc. She knows claimant and has reviewed his medical file and workers' compensation file. Ms. Kain testified that claimant claimed he injured his right knee on February 15, 1990, but he never informed them that he had a torn meniscus before that date. She said the defendant employer paid claimant's bill but would not have if they knew surgery had previously been prescribed before the February 15, 1990 fall. Page 6 She said claimant never worked six to seven days at 12 hours per day like he told Dr. Neff in February 1992. (Claimant's Exhibit 1, page 53) She said claimant's overtime dropped but so has everyone's. She indicated the plant went on a six and two-thirds operation and that when this started, it severely decreased overtime. She acknowledged that claimant's gross earnings in 1993 were $36,000, and in 1992 $34,000. She stated that claimant does not have a 40 hour per week restriction but does have a 20 pound lifting weight restriction. She said that claimant overstated his job as a machinist and it is not as hard as he described. She does not doubt that Dr. Neff said claimant should get shoes, but not to wear cowboy boots like he wears. Claimant's exhibit 1, page 12, is records referring to claimant's alleged February 15, 1990 right knee injury pursuant to a fall. It is obvious from page 13 of said report that Thomas Bower, LPT, did not know of any prior history of claimant's knee when he issued that report. In this report, he opined that claimant had a total of 15 percent impairment to his right lower extremity. He related 5 percent of this on the basis of claimant's meniscectomy surgery performed on March 12, 1990. There are a lot of other records, including other doctors who treated or evaluated or addressed claimant's knee problems. The undersigned does not feel the need to specifically refer to those or set those out herein. The undersigned believes that the medical evidence as a whole is clear that claimant had preexisting knee problems and that claimant had medical attention concerning his right knee approximately one month prior to his February 15, 1990 fall. The records indicate that claimant needed surgery on his knee and, in fact, it was being planned or claimant suggested he would like to have it done prior to his fall on February 15, 1990. The undersigned further finds that claimant's knee problems are materially and substantially the result of his preexisting knee condition and that it would appear from the record that claimant's fall was or was more likely to have been caused by claimant's preexisting knee condition in which it is apparent he had a torn meniscus and that claimant's fall was as a result of his preexisting knee condition and not because of a work injury. There appears to be no dispute that claimant fell after attending class on behalf of the employer. It would appear that claimant's knee gave out or likely gave out because of his preexisting knee condition. The evidence also shows that the surgery claimant ultimately had shortly after his fall would have been done and was recommended prior to February 15, 1990. The undersigned further finds that the claimant's credibility was questionable as to what he told or didn't tell the doctors who treated his knee. It would appear from the medical evidence that those who made a judgment concerning claimant's knee did so without the Page 7 benefit of knowing claimant's true medical history. Claimant acknowledged that he didn't volunteer any answers but he indicated whatever questions he was asked, he gave answers. It is hard for the undersigned to believe that claimant did not or could not recall certain things the doctors had told him concerning the condition of his knee prior to February 15, 1990. The undersigned therefore finds that as to the February 15, 1990 alleged injury, it did not arise out of and in the course of claimant's employment and that claimant's knee problems and impairment was not caused by any work injury and claimant takes nothing as to file number 946526. As to claimant's right and left upper extremity alleged work injuries, the parties have agreed that claimant incurred a simultanous bilateral upper extremity injury on November 8, 1991. Although the petitions in files 1025702 and 1025703 refer to two separate injury dates, November 8, 1991 and December 6, 1991, the parties agree that we have simultaneous bilateral upper extremity injuries under the provisions of 85.34(2)(s). The only real issues in this is the extent of claimant's permanent disability under that provision of the code and whether claimant is entitled to Second Injury Fund benefits. Claimant's exhibit 1, pages 46 and 49, is the November 8, 1991 and December 6, 1991 operative reports concerning claimant's right endoscopic carpal tunnel release and left endoscopic carpal tunnel release, respectively. Dr. Neff, who was the surgeon in both of the carpal tunnel release surgeries, opined that claimant had a 1 percent impairment to each hand as a result of his carpal tunnel syndrome and subsequent surgical decompression. (Cl. Ex. 1, p. 56, May 20, 1992 letter) Martin S. Rosenfeld, D.O., gave an impairment rating of 3 percent to the right upper extremity as a result of the right carpal tunnel syndrome release and a 4 percent impairment of the left hand because of the increased pain, tingling and problems. Medical evidence shows that claimant's work injury did cause an impairment to his left and right upper extremity. Dr. Neff is known by this agency to be very conservative in his impairment and Dr. Rosenfeld is known to be liberal. The weight restriction in the record had to do with claimant's knee or lower extremities as the July 10, 1991 letter of Dr. Neff (claimant's exhibit 1, page 43) indicated that claimant had a 20 pound weight limit at that time subsequent to his knee surgery by Dr. Neff. As to the 40 hour limitation, the undersigned believes that this isn't as such a medical restriction but a suggestion. In looking at claimant's exhibit 1, page 53, Dr. Neff made a comment that it would be wise for claimant to restrict himself to a normal 40 hour week and try to avoid severely prolonged overtime. The undersigned interprets that to mean that overtime is not prevented or restricted but prolonged overtime cannot be done. It is obvious the doctor made this comment based on the claimant telling him that he works six to seven days per week, twelve hours per day. The doctor thought that was excessive. The Page 8 undersigned believes that would be excessive in any and all situations. The record does not show claimant worked that many hours and, in fact, the undersigned notes reflect that claimant referred to several weeks prior to his February 15, 1990 fall in which he worked at most 56 some weeks and as low as 25 in other weeks and there were various figures in between in the 50s and in the 40s. Anyone subjecting themselves to that many days a week with that many hours is asking for trouble as far as physical stress on their body. There is no indication the employer made them or forced an individual to do it, but obviously claimant was willing because of the money involved. Once removed from this type of excessive overtime, which the undersigned does not believe claimant worked that many hours a day as he indicated, claimant will no longer either suffer injury or cause himself to be further aggravated. The undersigned finds that claimant has a permanent impairment of 2 percent to the left hand and 2 percent to the right hand as a result of his carpal tunnel syndrome surgeries. Converting these under the AMA Guides To The Evaluation of Permanent Impairment, 2 percent of the hand is 1 percent of the upper extremity and 1 percent of the upper extremity is 1 percent to the body as a whole and 1 percent body as a whole as to the left and right upper extremity results in a 2 percent body as a whole impairment. The undersigned therefore finds that as a result of claimant's November 8, 1991 simultaneous bilateral carpal tunnel syndrome, claimant incurred a 2 percent body as a whole injury that arose out of and in the course of claimant's employment. This would entitle claimant to 10 weeks of permanent partial disability benefits. Claimant contends that he had as high as 25 percent permanent partial impairment to his right lower extremity. He believes the medical evidence would indicate he had a 15 percent as a result of his first surgery, medial meniscus, and then an additional 10 percent when the Maquet procedure by Dr. Neff was done. The undersigned believes the greater weight of medical evidence shows that claimant had a 10 percent permanent impairment to his right lower extremity. The records show that when Dr. Neff opined a 10 percent, he did not have all the facts and claimant's prior medical history so he later decreased that 10 percent and opined that only 5 percent was attributable at the most to any work injury if there was a work injury. Dr. Rosenfeld agreed with Dr. Neff's original 10 percent. Since the undersigned found there is no work injury of February 15, 1990, it is immaterial as to any further argument between whether Dr. Rosenfeld would ultimately agree to a 5 percent of Dr. Neff's decision or not. As indicated earlier, the undersigned does not believe these doctors have the full medical picture or was claimant credible in disclosing his medical situation when he saw the doctors. For purposes of the Second Injury Fund, it is immaterial whether the first injury is a work injury or a nonwork injury or a congenital condition. The undersigned therefore finds that for the purposes of the Second Injury Fund, that claimant had a 10 percent permanent impairment of Page 9 his right lower extremity at the time of his November 8, 1991 simultaneous bilateral carpal tunnel injury. For the purpose of the latter injury, the Second Injury Fund is involved because there is two separate scheduled members involved at different times. The undersigned is not considering any alleged permanent impairment to claimant's left lower extremity. Dr. Rosenfeld is the only one who referred to that and gave an impairment and there is nothing further in the record to indicate that that can be substantiated or is involved in these proceedings herein. Claimant argues that claimant has a substantial loss of income as a result of his injuries and impairments and that the Second Injury Fund is responsible for payment of some benefits to the claimant. The claimant's major contention is that claimant feels he has lost all opportunities for overtime which under his calculation amounts to approximately $200 per week. The undersigned is disturbed by the wide variance of what claimant contends he is making and what the defendants' records show he is making. Claimant provided claimant's exhibit 2, which has been objected to and the objection is overruled, as that purported to show claimant's adjusted gross earnings from 1985 through 1992. It showed in 1992 adjusted gross income of $28,672. In looking at defendants' exhibit 25, page 72, that would show that claimant's actual adjusted gross as far as employment records is approximately $34,385.65. For 1993, it shows $36,174.75. The undersigned does not believe there should be that type of discrepancy between the parties' records. The undersigned believes that defendants' records do in fact show claimant's gross earnings. The undersigned can only determine that the defendants' figures may have had some deductions he took from them before arriving at those figures and that they do not reflect his actual gross income but may reflect an adjusted gross income or something else after deductions. There is no question that claimant is making more income now than he was at the time of his injury. He was making $14 plus per hour and is now making $16 plus per hour. Claimant contends he is losing overtime. There is testimony by the defendants' witness, Joyce Kain, that as far as she is concerned and the company is concerned, the claimant does not have a 40 hour per week restriction. The undersigned has previously addressed that and basically agrees with that. As indicated earlier, the 20 pound limit had to do with claimant's lower extremity injury or a preexisting condition and permanent impairment. Ms. Kain also indicated that overtime availability for people has dropped because of a new system installed by the company which severely decreased overtime. It is understandable to the undersigned that a company would not consistently, if it were true, have overtime six and seven times a week, 12 hours a day. As indicated earlier, there is no evidence this was the fact anyway. Forty hours per week is the normal work week and claimant Page 10 did work some overtime. Dr. Neff indicates that it would be wise if claimant removed himself from excessive overtime because of his overall situation. Once removed from this type of excessive overtime, it would prevent further impairment or injury to claimant's body. The undersigned finds it is wise for defendant employer to limit overtime, particularly as to individuals who may be more susceptible to injury or through past history, they incur additional injury because of a preexisting condition. The undersigned does not find that claimant has a loss of income as such. Loss of income and loss of earning capacity are not the same even though loss of income is one of the criteria used in determining industrial disability. The employer is accommodating the claimant and claimant appears to be doing very good in his job and there is no reason why he can't and is not able to continue. Claimant is 52 years of age. He has worked for Armstrong for 27 years. The undersigned believes if in fact claimant was relieved of his job that he would have difficulty doing work and finding employment taking into consideration his transferable skills, his age, his education, and the nature of his injuries or impairment. The undersigned is not going to speculate as a potential has not arisen and does not appear to be going to arise. If it does, claimant may have certain remedies under the law. The undersigned does believe that claimant does have a 10 percent loss of earning capacity taking into consideration all of the criteria that one is to take into consideration in determining industrial disability. The Fund is only responsible for the industrial disability present that exceeds the disability attributable to the first and second injuries. The undersigned found that claimant had a 10 percent permanent partial impairment to his right lower extremity which would amount to 22 weeks of permanent partial disability if there was liability. As indicated before, defendants were not responsible for any benefits as a result of his February 15, 1990 fall, but as further indicted it is immaterial as to whether there was a work injury involved or not. The undersigned found that claimant has a 2 percent body as a whole work-related injury as a result of his simultaneous bilateral carpal tunnel syndrome injury of November 8, 1991. This entitled claimant to 10 weeks of permanent partial disability benefits. Having found claimant incurred a 10 percent industrial disability, the Second Injury Fund is therefore responsible for 18 weeks of permanent partial disability benefits payable to the claimant (10 x 500 = 50 weeks - 22 weeks - 10 weeks = 18 weeks). Therefore, in summary, the undersigned finds that claimant did not incur a work injury on February 15, 1990. Page 11 Claimant incurred a 2 percent body as a whole injury as a result of his simultaneous bilateral carpal tunnel injury on November 8, 1991. The claimant has a 10 percent industrial disability as a result of his first and second injuries or impairments to separate scheduled members and, therefore, the Second Injury Fund is responsible to pay the claimant 18 weeks of permanent partial disability benefits. CONCLUSIONS OF LAW 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). Since claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of Page 12 earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience, motivation, loss of earnings, severity and situs of the injury, work restrictions, inability to engage in employment for which the employee is fitted and the employer's offer of work or failure to so offer. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). 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. While a claimant is not entitled to compensation for the results of a preexisting injury or disease, its mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956). If the claimant had a preexisting condition or disability that is materially aggravated, 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). 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). 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 v. Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983). Page 13 It is further concluded that: Regarding the February 15, 1990 injury (file 946256): Claimant did not incur an injury to his lower right extremity that arose out of and in the course of his employment. Claimant had a serious left knee injury and impairment that existed prior to claimant's February 15, 1990 fall and that it was this preexisting knee condition that was a material and substantial cause and reason for claimant to fall and was the substantial and material reason claimant incurred the medical and any additional impairment and surgeries to said right knee. The doctors did not have the complete and accurate medical history at certain times when various reports were made and that claimant failed to disclose his true medical situation. Defendants are not responsible for payment of the shoe bill in the amount of $114.04. Claimant was not a credible witness. Regarding the November 8, 1991 bilateral simultaneous carpal tunnel syndrome injuries, represented by files 1025702 and 1025703, it is concluded that claimant incurred a simultaneous bilateral carpal tunnel syndrome injury on November 8, 1991 which resulted in a left and right carpal tunnel surgery, causing claimant to incur a 2 percent impairment to both the left hand and right hand resulting in 2 percent permanent impairment to claimant's body as a whole. The defendants are obligated to pay claimant 10 weeks of permanent partial disability benefits at the rate of $375.64. Claimant has a 10 percent industrial disability as a result of his first and second injuries. In reference to these injuries, the Second Injury Fund is liable for a total of 18 weeks of permanent partial disability benefits payable to claimant at the rate of $375.64. ORDER THEREFORE, it is ordered: Regarding file 946526, alleged injury of February 15, 1990, claimant takes nothing from these proceedings. The parties divide equally the costs. Regarding files 1025702 and 1025703, the November 8, 1991 simultaneous bilateral injuries: Page 14 Defendant employer shall pay unto claimant ten (10) weeks of permanent partial disability benefits at the rate of three hundred seventy-five and 64/100 dollars ($375.64) beginning January 13, 1992. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. It has already been stipulated that defendant employer previously paid five (5) weeks of permanent partial disability benefits at the rate of two hundred ninety-eight and 10/100 dollars ($298.10). The Second Injury Fund shall pay claimant eighteen (18) weeks of permanent partial disability benefits at the rate of three hundred seventy-five and 64/100 dollars ($375.64) commencing at the end of the employer's liability. That defendant employer shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That the Second Injury Fund shall pay interest as provided by law, said interest beginning on the date of this decision. That the costs of this action shall be paid equally by defendant employer and Second Injury Fund. That defendants shall file an activity report upon payment of this award as required by this agency, pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of April, 1994. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Robert W Pratt Attorney at Law 6959 University Ave Des Moines IA 50311-1540 Mr Michael J Eason Attorney at Law 100 Court Ave Ste 600 Des Moines IA 50309-2231 Mr Jon Swanson Attorney at Law 8th Flr fleming Bldg 218 Sixth Ave Des Moines IA 50309 Mr James F Christenson Assistant Attorney General Page 15 Tort Claims Division Hoover State Office Bldg Des Moines IA 50319 5-1100; 5-1803; 5-1808; 5-3200 Filed April 8, 1994 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ MERRILL C. BECK, : : Claimant, : File Nos. 1025702 : 1025703 vs. : 946526 : ARMSTRONG RUBBER & TIRE : CO., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : TRAVELERS INSURANCE : COMPANY and ALLIANZ : INSURANCE COMPANY, : and : : SECOND INJURY FUND OF IOWA, : : Insurance Carrier, : Defendants. : : ------------------------------------------------------------ File No. 946526 5-1100 Found claimant did not incur an injury that arose out of and in the course of his employment. Found claimant's preexisting knee condition was the substantial cause of his fall and not a work injury. Claimant did not disclose his true medical history to the doctors. Claimant took nothing. File Nos. 1025703 and 1025702 5-1803; 5-1808 Found claimant incurred a bilateral simultaneous carpal tunnel injury on November 8, 1991, resulting in a left and right carpal tunnel surgery causing claimant to incur a 2% permanent partial impairment to claimant's body as a whole entitling claimant to 10 weeks of permanent partial disability from defendant employer. 5-3200 Claimant additionally awarded 18 weeks of benefits from the Second Injury Fund.