Page 1 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ LINDA K. DAILEY, Claimant, vs. File No. 947123 L'EGGS PRODUCTS, INC., A R B I T R A T I O N Employer, D E C I S I O N and THE TRAVELERS INSURANCE CO, Insurance Carrier, Defendants. ___________________________________________________________ INTRODUCTION This is a proceeding in arbitration brought by Linda K. Dailey, claimant, against L'Eggs products, Inc., employer, and Travelers Insurance Co., insurance carrier, defendants, for benefits as a result of an alleged injury which occurred on November 13, 1989. A hearing was held in Des Moines, Iowa, on September 1, 1992 and the case was fully submitted at the close of the hearing. Claimant was represented by John L. Riccolo. Defendants were represented by Scott E. McLeod. The record consists of the testimony of Linda K. Dailey, claimant, Tari Dailey, claimant's husband, Ken Huber, district sales manager, Chris Strouth, area manager, claimant's exhibits 1 through 30 (with the exception of 19 and 29 which were excluded because they were not timely served), and defendants' exhibits A through M (with the exception of C, E, and F, which are the depositions of claimant, claimant's husband, and Huber because these persons were available in the courtroom to testify at the time of the hearing). Claimant's deposition was admitted into evidence, however, as defendants' exhibit A-5 because it is also deposition exhibit 12 to the deposition testimony of John S. Fox, M.D., whose testimony was admitted as defendants' exhibit A. For simplicity, claimant's deposition will be cited and referred to as claimant's deposition the first time it is mentioned and thereafter it will be cited as Cl. Dep. Defendants' exhibit I, a shipper, corrugated cardboard box, and defendants' exhibit J, a tote, which is a smaller corrugated cardboard box, were placed in the custody of defendants until the expiration of all appellate periods (Transcript page 60). The deputy ordered a transcript of the hearing. Both attorneys submitted outstanding Page 2 post-hearing briefs. ISSUES The parties submitted the following issues for determination at the time of the hearing. Whether claimant sustained an injury on November 13, 1989, which arose out of and in the course of employment with employer. Whether the injury was the cause of either temporary or permanent disability. Whether claimant is entitled to either temporary or permanent disability benefits and if so, the extent of benefits to which she is entitled. Whether claimant is entitled to medical benefits. FINDINGS OF FACT INJURY It is determined that claimant did not sustain an injury arising out of her employment. The words "out of" refer to the cause or source of the injury. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The alleged injury did occur in the course of claimant's employment because the event, which is alleged to be an injury, occurred at a time and place while claimant was performing work for her employer. "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). However, to be compensable claimant has the burden of proving by preponderance of the evidence that she received an injury on November 13, 1989, arising out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Iowa Code section 85.3(1). The reasons that the alleged injury did not arise out of claimant's employment are because (1) the aneurysms and headaches which claimant experienced were an idiopathic health condition entirely personal to claimant, (2) claimant's work activities were not a substantial factor which aggravated her preexisting condition, (3) the causation opinion of claimant's medical expert, who was also the treating physician, was based upon an erroneous understanding of the facts which transpired at the time claimant experienced her acute onset of headaches on November 13, 1989 and (4) the causation opinion of claimant's medical expert was controverted by the opinion of defendants' medical expert. Page 3 Claimant, born January 9, 1947, was 42 years old at the time of the alleged injury and 45 years old at the time of the hearing. Claimant started to work for employer as a sales representative in 1974. She continued to work for employer for approximately 15 years until this incident which occurred on November 13, 1989. Her job duties included taking orders, delivering and maintaining displays of L'Eggs products in various grocery stores, discount stores and drug stores in various towns in east central Iowa (Tran., pp. 61-68; Daily Deposition p. 4). Employer furnished claimant with a large Ford Econoline van with company lettering on the van. Claimant testified that she delivered products to the retail stores in corrugated cardboard boxes which were called shippers and totes (Tran., pp. 68-73). A shipper is a larger cardboard box and a tote is a smaller cardboard box. Excellent photographs of the loaded van, shippers and totes were introduced into evidence (Exhibits 27a-27j; Exhibit D, Items 1-5). A tote contains replacement panty hose for replenishing the regular displays. A shipper is a display box which is setup to exhibit promotional items (Cl. Dep., pp. 7-10). Chris Strouth, employer's area manager, testified from company documents that three shippers and three totes were delivered to McNally's Super Valu on November 13, 1989 (Tran., pp. 203 & 204; Ex. D-1). Strouth testified that the shippers delivered that day weighed respectively 10 pounds, 18 pounds and 19 pounds (Tran., p. 205; Ex. K, pp. 1, 2, & 4). She testified that totes contain various products and usually weigh between six pounds and nine pounds (Tran., p. 205). Exhibit I, a shipper box and exhibit J, a tote box were viewed by the deputy. Randy Smith, the manager of McNally's Super Valu, testified that he estimated that a shipper would not weigh more than 20 pounds and that a tote would weigh approximately five to ten pounds (Ex. D, pp. 13, 14, & 16; Dep. Ex. 2, pp. 1-5). Smith estimated that claimant delivered a couple of shippers and two or three totes on November 13, 1989 (Ex. D, p. 15). Claimant agreed that shippers weighed less than 20 pounds and totes weighed less than that. She demonstrated at the hearing that she could pick up a tote with one hand without difficultly. She agreed and demonstrated at the time of her deposition on April 29, 1992, that she that could easily lift a shipper (Tran., pp. 103-105, Cl. Dep. pp. 60-62). At the time of her deposition, claimant testified that she normally unloaded the van with a cart unless it was only one or two items. If it was simply a tote or a shipper she would pick that up and carry it in by herself (Dep. Ex., pp. 13 & 14). Claimant further acknowledged that she was physically able to lift a shipper and that she did it regularly throughout her job as a sales representative (Cl. Dep., pp. 16 & 17). Claimant also testified that even though she did use a cart to move these boxes, if it was only one or two shippers, she could lift them and take one Page 4 in one hand and one in the other hand and move them from the back room to the display in the store rather than use a cart (Cl. Dep., pp. 27 & 28). Also at her deposition claimant demonstrated that she could lift a tote and testified that she could pick up five of them at time and place them on a cart. She repeated that if there were only one or two boxes she would carry those into the store by hand. She agreed that she could do this easily and that it was not any strain on her (Cl. Dep., pp. 64 & 65). Claimant acknowledged that she had two episodes of headaches prior to the one which occurred on November 13, 1989. In July of 1988 she experienced a very severe headache which began while she was sitting on the bathroom stool after work at the Oak Tree Motel in Newton, Iowa after working all day (Tran., pp. 105, 106, 123 & 124). At that time claimant saw Robert B. Devermann, M.D., her family physician, on July 12, 1988. The doctor recorded headaches of uncertain etiology. He said there were several possibilities. He indicated that it was most likely a vascular migraine type of headache but that other possibilities would include subarachnoid hemorrhage or spinal meningitis. He ordered a CT scan and if it was negative he thought she should probably have a spinal tap (Ex. A-6, p. 2). Claimant was hospitalized from July 12, 1988 to July 15, 1988 (Ex. A-6, pp. 4-6). The noncontrast CT scan performed by W. J. Friesen, M.D., on July 12, 1988, showed no intracranial masses and no hemorrhage. The impression was a normal noncontrast CT head scan (Ex. A-6, p. 8). Dr. Devermann recommended a spinal tap to determine whether claimant had spinal meningitis. Claimant refused to have a spinal tap (Ex. A-6, pp. 4 & 6). Later evidence revealed that a spinal tap also would have confirmed the presence of a subarachnoid hemorrhage. Dr. Devermann concluded "it was my impression that this most likely represented a viral meningitis, although definitive diagnosis rests on a lumbar puncture which the patient refused repeatedly." (Ex. A-6, p. 4) Dr. Devermann's notes for July 18, 1988, show that a head MRI was scheduled at St. Lukes hospital on July 22, 1988 at 11:00 a.m. Dr. Devermann's notes for July 19, 1988, indicate that this appointment would be cancelled if her headaches were doing better. Dr. Devermann's notes for July 22, 1988, show that claimant's headache was gradually getting better and that she missed the MRI appointment at St. Lukes Hospital that morning (Ex. A-6, p. 2). An earlier note of Dr. Devermann in 1986 reflects that claimant requested a prescription for Darvocet for headaches she gets around the time of her period (Ex. A-6, p. 1). Claimant testified that at the time of the second episode in August of 1989 she consulted Joan Ryder Benz, M.D., for headaches that were not relieved by Advil. Claimant indicated that Dr. Benz told her these were tension headaches for which the doctor prescribed a different medication (Tran., pp. 106, 133, & 143). Dr. Benz's office note of August 18, 1989, showed that claimant had headaches Page 5 three times with nausea and hives for which the doctor prescribed Midrin, Benadryl, Flicon cream and Naprosyn (Cl. Ex. 3, p. 8; Def. Ex. A-6, p. 22). In performing her job for employer claimant typically made deliveries out of town on Monday and Tuesday and stayed overnight on Monday. It was her practice to load the van at the warehouse on Sunday. Claimant testified that on Sunday, November 12, 1989, at about 8:00 a.m., she went to the warehouse in Cedar Rapids and spent about one hour loading the van. She physically lifted the shippers and totes without the use of a cart (Cl. Dep., pp. 7, 12, & 23-25). The shippers went into the side door of the van and the totes went into the back door of the van. On Monday, November 23, 1989, claimant left home at approximately 7:30 a.m., made deliveries in Tama, Iowa at about 8:30 a.m. and made additional deliveries later that day at a number of stores in Marshalltown (Cl. Dep., pp. 29 & 30). When claimant arrived at McNally's in Grinnell she went in the store and brought out two carts (Tran., p. 73). Claimant testified that she then got in the side door of the van to get the shippers out, bent over at a 90 degree angle and in five seconds she experienced a severe headache (Trans., p. 75). Claimant clarified that she had not picked up a shipper and she had not slid a shipper but simply bent over to slide a shipper when the headache occurred (Tran., pp. 101 & 102). Claimant related, "Everything turned white, and the headache just came on." She added that it was "Pretty bad. Awful. I felt like I was going to pass out." (Tran., p. 75). At another point claimant related "I recall turning white, and I felt real dizzy and faint. And a headache came on suddenly, and that was it." (Tran., p. 118). Claimant agreed that the bending over was no more than she would normally do in nonemployment life. Claimant did not lose consciousness but put the shippers and totes on the grocery carts and took them into the store and told the manager that she would have to unload them later because she was going to her motel and go to bed because of a headache. Claimant testified that she called her husband, Tari Dailey and her supervisor Ken Huber, that evening from the motel. Claimant admitted that she did not report to either her husband or Huber that the headache was caused by unloading the van (Tran., pp. 108 & 169; Cl. Dep. pp. 38 & 39). Claimant testified that she told Huber she thought she had the flu (Tran., p. 108). On Tuesday, November 14, 1989, claimant was able to work with Huber making calls, part of the day, and she was able to drive the van back to Cedar Rapids (Tran., pp. 111 & 112; Cl. Dep., p. 40). Upon arriving home she met Dr. Benz, who was her next door neighbor, in the driveway, and the doctor sent claimant to St. Lukes Hospital emergency room. Claimant did not report to Dr. Benz that the headache occurred while she was unloading the van or doing any other work activity (Tran., pp. 79, 80 & 112; Cl. Dep., p. 41). Page 6 At the emergency room claimant saw L. D. Helvey, M.D., (Tran., pp. 79-81). Dr. Helvey noted elevated blood pressure, administered medications and made this impression "probable tension headache, cannot rule out a typical migraine at this time. No evidence of meningitis or subarachnoid bleed, no CT scan or LP needed at this time." (Ex. 1, p. 2). Dr. Helvey recorded that this 42-year-old patient had a diffuse headache. His notes do not reflect that it occurred while unloading a van or performing any other work activity. The following day, Wednesday, November 15, 1989, claimant still suffered from severe headache and Dr. Benz referred claimant to J. R. LaMorgese, M.D., a neurosurgeon (Tran., pp. 81 & 113; Ex. 2, pp. 2 & 20). Dr. LaMorgese admitted claimant to St. Luke's Hospital from November 15, 1989 to November 20, 1989. A CT scan performed by W. J. Friesen, M.D., on Wednesday, November 15, 1989, disclosed a rounded density and raised a possibility of an aneurysm at the base of the tip of the basilar artery. Dr. Friesen said that the scan demonstrated no evidence of acute intracranial hemorrhage (Ex. 2, p. 47). An angiogram performed by Craig E. Clark, M.D., on the same day November 13, 1989, disclosed (1) a large basilar tip aneurysm, (2) a small left anterior cerebral artery aneurysm and (3) a right middle cerebral artery aneurysm (Ex. 2, pp. 45 & 46). The angiogram disclosed no evidence of blood or hemorrhage (Ex. 2, pp. 45 & 46). Even though the CT scan and the angiogram did not disclose any blood or hemorrhage, nevertheless, apparently based upon clinical factors, Dr. LaMorgese diagnosed subarachnoid hemorrhage, secondary to basilar tip artery aneurysm, aymptomatic right middle cerebral artery aneurysm and anterior communicating artery aneurysm (Ex. 2, pp. 2 & 20). There is no evidence in the records of Dr. LaMorgese that claimant gave a history that the headaches occurred at work or that they were caused by any work-related activity. Dr. LaMorgese referred claimant to the Mayo Clinic for surgery because claimant had three aneurysms rather than just one (Tran., p. 82). Claimant was hospitalized at the Mayo Clinic from November 20, 1989 to December 19, 1989, (Ex. 5, p. 6) where Thoralf M. Sundt, M.D., a neurosurgeon, performed a right craniotomy to repair all three aneurysms on November 22, 1989 (Ex. 5, pp. 8, 12, 38 & 52). A head CT scan on December 4, 1989, showed no evidence of hemorrhage or infarction (Ex. 5, p. 39). Claimant was admitted to the Mayo rehabilitation unit on December 6, 1989 (Ex. 5, pp. 38 & 39). On December 19, 1989, she was discharged to the rehabilitation center at St. Luke's Hospital in Cedar Rapids still severely debilitated (Tran. p. 91; Ex. 5, pp. 2, 38-42 & 69-72). She was discharged from there on January 19, 1990 and was still required to use a wheelchair or a walker (Tran., pp. 91 & 147). B. R. Nichols, M.D., stated that claimant had significant neurologic disability of third nerve palsies and incoordination on the right as well as impulsivity, diminished memory and depression. Page 7 Most of these conditions persisted throughout all of her rehabilitation (Ex. 5, pp. 2-5; Ex. 5, pp. 34-53, 135, 136, 139-141, 143-145, 150-152, 156-176, and 182-185). Claimant continued with extensive out patient physical therapy from January 23, 1990 to March 22, 1990 (Ex. 7). She also required extensive home service care from Mary Russell Home Care Services until March 2, 1990 (Tran., p. 148, Ex. 8). Since then claimant has been hospitalized a number of times for suicidal threats, overdose of medications, medication imbalance, severe depression, affective organic syndrome, suspected but unconfirmed heart problems, hypertension, hyperopia, obesity and bleeding ulcers. Claimant has been seen, treated and evaluated by a number of psychiatrists and psychologists for difficult family relationships with her husband, mother, step-daughter and daughter. Claimant has shown improvement over time (Exs. 9-13, 16-21). Claimant applied for social security disability benefits in January of 1990 (Ex. 14, pp. 47 & 48) and began receiving benefits in May of 1990 (Tran., p. 161). Claimant was receiving these benefits at the time of the hearing (Tran., p. 105). Claimant has participated in the brain injury program at Traumatic Brain Injury Systems (T.B.I) at Reinbeck, Iowa for seven months (Tran., pp. 92, 93 & 173) and she also has been treated at the Kansas Institute for one month (Tran., pp. 97 & 176). Claimant's husband testified that she has been more stabilized since she returned home from the Kansas Institute but that there was still room for improvement (Tran., pp. 179 & 180). Total medical expenses submitted amount to $195,768.50 (Cl. Ex. 26). Claimant's husband acknowledged that when his wife called him from Grinnell that she did not associate her headaches with her work or any work activity at that time (Tran., pp. 169 & 170). Huber testified that when claimant called him from Grinnell that she did not say that she was performing any work activity for employer when the headaches occurred such as unloading the van at McNally's (Tran., p. 185). Huber further stated that he talked to claimant and claimant's husband when she was in the hospital in Cedar Rapids and neither one mentioned that they were claiming that claimant sustained the headache as a result of any work activity that she was performing for employer (Tran., pp. 185-188). Dr. Sundt, an outstanding board certified neurosurgeon, with over 30 years of experience in the speciality of vascular surgery testified by deposition on June 27, 1991 (Exs. 28 & B, p. 7). He said he first saw claimant on November 21, 1989. The history he received from the neurology department was that claimant sustained a sudden onset of headache while lifting a heavy box from a van (Exs. 28 & B, p. 7). Dr. Sundt testified that claimant's symptoms at that time were typical of a bleed which he further described as an intracranial hemorrhage (Exs. 28 & B, p. 7). He further Page 8 testified that the bleed occurred because an aneurysm ruptured (Exs. 28 & B, p. 8). Dr. Sundt correlated the hemorrhage with the lifting that claimant was performing at the time of the bleed (Exs. 28 & B, pp. 8-11). He stated that in looking for a cause and effect relationship, that a large percentage of the time ruptured aneurysms are associated with (1) lifting, (2) acute onset with bowel strain at the stool and (3) acute onset during sexual intercourse because these activities increase blood pressure (Exs. 28 & B, p. 21). However, the doctor also granted that most bleeds occur without a known precipitating factor (Exs. 28 & B, p. 23). The doctor clarified that the lifting did not cause the aneurysm but he felt that the lifting precipitated the hemorrhage because of the frequency of the correlation between the relative strain of the lifting and the event of the hemorrhage based on his past experience (Exs. 28 & B, pp. 9-11, 27 & 28). He declined to say that this was his opinion based upon a reasonable degree of medical certainty but would only say it was his opinion, even though it was explained to him that medical certainty did not mean absolute certainty but just more probable than not (Exs. B & 28, p. 11). The history presented to Dr. Sundt by the neurology department states that claimant experienced a sudden severe headache on November 13, 1989, when lifting a heavy box from a van (Ex. 5, p. 14). This is an erroneous history. Neither the deposition testimony of claimant nor the hearing testimony of claimant confirm that she was doing any lifting, save heavy lifting when she experienced the headache. Her testimony was that she bent over at ninety degrees to slide a shipper in the van when she experienced the headache. The question of causal connection is essentially within the domain of expert testimony Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, the expert opinion may be accepted or rejected in whole or in part by the trier of fact Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974). Furthermore, the weight or probative value of the opinion may be destroyed by the fact that it is based upon an erroneous premise. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Thus the opinion of Dr. Sundt was based upon erroneous facts. Also taken into consideration is the fact that Dr. Sundt acknowledged that most bleeds occur without any known precipitating factor (Exs. 28 & B, p. 23). The testimony of Dr. Sundt does add weight to the determination of the deputy that this headache incident, which occurred on November 13, 1989, was attributable to an idiopathic condition and was attributable to claimant's state of health on that date which had existed for quite some time. Claimant requested Darvocet because of the severity of her headaches associated with her menstrual cycle as early as 1986. Dr. Sundt testified that he Page 9 believed that claimant had a major bleed in July of 1988 because the aneurysm existed at that time (Exs. 28 & B, pp. 12, 18 & 19). Dr. Sundt examined the CT scan taken by Dr. Friesen at that time (July 12, 1988) for Dr. Devermann and identified the basilar aneurysm in the center of the picture (Exs. 28 & B, pp. 34 & 35). He further believed that if claimant had consented to a lumbar puncture that the aneurysm could have been treated more effectively at that time (Exs. 28 & B, pp. 16 & 17). Dr. Sundt further believed that the headaches for which claimant consulted Dr. Benz on August 18, 1989 (approximately three months before this alleged injury) were probably a little signal bleed, a warning bleed, or a sentinel bleed. He said these are little hemorrhages that typically occur a week or ten days before a major bleed (Exs. 28 & B, p. 20). Other factors that would indicate that claimant's subarachnoid hemorrhage was an idiopathic condition entirely personal to claimant's state of health is based upon the fact that Dr. Sundt testified that the aneurysm was approximately 10 or 12 millimeters in size on July 12, 1988, and that it was 17 millimeters at the time of the surgery on November 22, 1989 (Exs. 28 & B, p. 35). Further evidence that the aneurysm might have been somewhat advanced is Dr. Sundt's speculation that claimant's basilar aneurysm had expanded and was impacting or projecting into the hypothalamus and caused a change in her eating habits and metabolism and was causing her obesity and overweight (Exs. 28 & B, pp. 38 & 39). Additional evidence that claimant's subarachnoid hemorrhage was related to an idiopathic condition is the fact that women have thinner blood vessels than men (Exs. 28 & B, p. 39) and that Dr. Sundt opined that it was inevitable that the aneurysm would rupture after it became 10 millimeters in size (Exs. 28 & B, p. 40), notwithstanding the fact he believed that the strain of lifting on November 13, 1989, precipitated the bleed at that time (Exs. B & 28, p. 40). However, there is no evidence from claimant that she was lifting or performing heavy lifting at the time of the headache. On the contrary, claimant testified that she simply bent over, and without sliding the box or lifting it, she experienced the severe headache. Wherefore, (1) based upon the fact that it was established by objective evidence that claimant had a basilar aneurysm on July 12, 1988, which was already at least 10 millimeters in size, (2) based upon the fact that she experienced additional headaches not relieved by over the counter medications on August 18, 1989, which Dr. Sundt believed were warning or sentinel bleeds which precede a major bleed, (3) based upon the fact that the aneurysm had increased from 10-12 millimeters to 17 millimeters in size at the time of the surgery on November 22, 1989, (4) based upon claimant's female gender her arteries were thinner and more predisposed to an aneurysm than persons of the male Page 10 gender, (5) based upon the speculation that claimant's aneurysm had possibly expanded to the point where it had been affecting the hypothalamus and contributed to her obesity as ai the injury Lawyer & Higgs, Iowa Workers Compensation -- Law & Practice (2nd (Ed.), Section 5-1 page 36; Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Like claimant in this case Musselman had a preexisting vascular disease. Somewhat like claimant Musselman's work required him to lift containers weighing up to approximately 40 pounds, however, at the time of the alleged injury he was leaning against a wall for balance while putting an overshoe on the left foot with his right hand, gave it a jerk and then noticed a sharp knife like pain on the left side of his lower back. The supreme court stated in Musselman: This court has previously held, if a claimant had a preexisting condition or disability, aggravated, accelerated, worsened or "lighted up" by an injury which arose out of and in the course of employment resulting in a disability found to exist, he would be accordingly entitled to compensation. See Nicks v. Davenport Produce Co., 254 Iowa 130, Page 12 134, 135, 115 N.W.2d 812, and citations. However, a disease which under any rational work is likely to progress so as to finally disable an employee does not become a "personal injury" under our Workmen's Compensation Act merely because it reaches a point of disablement while work for an employer is being pursued. It is only when there is a direct causal connection between exertion of the employment and the injury that a compensation award can be made. The question is whether the diseased condition was the cause, or whether the employment was a proximate contributing cause. Littell v. Lagomarcino Grupe Co., 235 Iowa 523, 529, 17 N.W.2d 120, and citations. The Mussleman court determined that the commissioner was justified in denying benefits for the reason that claimant did not sustain the burden of proof by preponderance of the evidence that the facts of this case (putting on an overshoe) were the proximate cause of claimant's injury or disability. Likewise, in this Dailey case it is evident that diseased condition (aneurysms) rather than the employment was the proximate cause of the headache and possible rupture of the aneurysm. The meaning of proximate cause was clarified in the case of Blacksmith v. All American Inc., 290 N.W.2d page 348, 354 (Iowa 1980). Blacksmith also had a vascular deficiency known as thrombophlebitis. The court stated a cause is proximate if it is a substantial factor in bringing about the result. See Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296, 297 (Iowa 1974). Probably the most common citation of authority that the injury must arise out of the employment is the case of McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976). McDowell is a case involving the aggravation of a preexisting aneurysm which ruptured resulting in the death of claimant. The ultimate outcome of the McDowell case cannot be determined from the supreme court decision but it would appear the work activity was a substantial factor in causing the injury. McDowell, a volunteer fireman, was called to an emergency flooding situation, operated an end loader, operated a dump truck, and assisted workers in filling sandbags alternating holding the bags or shoveling sand into the bags for approximately 20 minutes in a hurried manner under the stress of the natural disaster of flooding. This clearly appears to this deputy to be work activity which would be a substantial factor in causing the rupture of the aneurysm. In Auxier v. Woodward State Hospital School, 266 N.W.2d 139 (Iowa 1978) claimant had a preexisting broken leg from which she was recuperating when a patient tripped her and she fell and reinjured her right ankle. The work activity was determined to be a substantial factor in bringing about the reinjury of claimant's right ankle. Page 13 In Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974) a claimant with a preexisting heart condition had his case remanded to the industrial commissioner for a finding of whether his act of continuing to work after heart attack symptoms begin aggravated his preexisting heart condition. The conclusion of the court was that a claimant with preexisting angina pectoris, who was recalled from vacation on hot and sultry day to hurriedly unload crated washing machines weighing 300 to 400 pounds from a boxcar and haul them to his employer's store for approximately one hour had shown that his work activity was a substantial factor in bringing about claimant's myocardial infraction. In Barz v. Oler, 257 Iowa page 508, 133 N.W.2d 704 (1965) claimant ruptured an aneurysm in the lower portion of the abdominal aorta with massive hemorrhage. Barz was a plumber making an emergency repair on a pressure tank in a well pit. Barz had lifted 15 or 20 buckets of water out of the pit worked in a very awkward position and was required to push on an 18 inch wrench with all of his strength. Claimant suddenly became ill and died of a ruptured aneurysm in the ambulance en route to the hospital. Thus, the court determined in effect that the work activity was a substantial factor in bringing about and hastening claimant's death. In reviewing these landmark, traditional workers' compensation cases to determine what is or what is not a substantial factor in aggravating a preexisting condition, the facts of this case are the most analogous to the facts in the case of Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Olson sustained an injury to his back when he simply stooped over to test a battery and experienced a terrific pain across his back and down into his testicle that caused permanent incapacity. Claimant Dailey in this case simply bent over to slide a box. Olson stooped over to test a battery. A distinguishing feature of the Olson case is that claimant had already sustained several back injuries that had arisen out of and in the course of his employment, had made 15 trips to Mayo Clinic in the 20 years preceding this injury and had already received two lumbar fusions prior to this injury. Claimant in this case had no previous work-related headaches which arose out of and in the course of her employment with employer. Thus, when Olson's stooping action was combined with his long and extensive history of work-related back problems apparently it was concluded that the work activity was a substantial factor in aggravating his preexisting condition. In Hemker v. Drobney, 253 Iowa 421 112, N.W.2d 672 (1962) Drobney, with his employer, removed a mattress and box springs from a home and delivered a new mattress and box springs, which required quite a struggle in a warm house. Drobney struck his foot against some object and dropped his end of the load subsequently became ill and died. This would appear to be a substantial factor sufficient to constitute a proximate cause. Page 14 In Yeager v. Firestone Tire and Rubber Co., 253 Iowa 369, 373-74, 112 N.W.2d 299, 301 (1961) claimant fell, struck his head and suffered a blackout in 1956. In 1958 he fell again when a heavy tire fell on top of him from a mold which caused a goose egg on the back of his head. The facts of the second fall were considered to be a substantial factor in the aggravation of his preexisting head injury. Claimant was not able to receive compensation for the result of the preexisting injury but he was entitled to compensation for the disability found to exist from the second injury. The Yeager case stands for the proposition that the aggravation of a preexisting must be a material aggravation. Whether that is a different test than a substantial factor is not known. It believed that material aggravation is just another way of saying substantial factor. The court found there was "substantial evidence" of disability caused by the second fall. In Ziegler v. United States Gypsum, 252 Iowa 613, 106 N.W.2d 591 (1960) the supreme court applied a slightly different legal standard than the substantial factor test in order to find causation from the aggravation of a preexisting condition. The court said that if the preexisting active or dormant health impairments are more than slightly aggravated then the resultant condition is considered a personal injury. More than slightly aggravated sounds like a lesser standard than whether it is a substantial factor. In any event, the facts of the case would appear to pass the substantial factor test also. Ziegler was seriously injured in May of 1956, in a switching accident, which pinned him between the end of a railroad car and the side of a trackmobile. About a year later he was returned to work light duty. The light duty consisted of pushing and pulling a 30 pound rake and using a wheelbarrow to dump 50 pounds loads of stucco into a bin. The court upheld the commissioner because there was sufficient competent evidence that there was direct causal connection between the exertion of the employment and the injury upon which the award was made. A substantial factor appears to be present in the Ziegler case. In Guyon v. Swift and Company, 229 Iowa 625 (1940) the court determined that strenuous employment exertion was a substantial factor in aggravating Guyon's preexisting coronary artery disease. Guyon, age 60, who weighed over 200 pounds was a stationary engineer. A conveyor broke and over 100 employees were unable to work until the trouble was remedied. Guyon was ordered to get it going. He walked up a ramp, then up a series of stairs, climbed a vertical ladder over 13 feet high to the balcony then went along the runway of the balcony to the motor which failed to operate the conveyor. Claimant followed this course two or three times. His face became red. He became excited and nervous because he was having difficulty in locating the trouble. Twenty minutes later he suffered a coronary occlusion and died two hours later because a small piece of the calcified Page 15 wall (plaque) had broken off and became lodged in his arterial passageway causing a complete obstruction or occlusion of the artery and causing his death. The court concluded that strenuous employment exertion was a substantial factor in aggravating his preexisting coronary artery disease. In West v. Phillips, 227 Iowa 612 (1939) claimant, West, a baker, who had a preexisting diseased heart and arteries died as a result of heat exhaustion and heat stroke from the intense heat in the bake shop. The court found that natural heat intensified by artificial heat was a substantial factor in causing his death. The court found that the excessive heat was the proximate cause of the aggravation of claimant's preexisting heart condition and hastened his death. In the famous case of Almquist v. Shenandoah Nurseries Inc., 218 Iowa 724, 254 N.W. 35 (1934) the court found that Almquist's work of manually pulling up and shaking out barberry bushes from clumps of dirt weighing anywhere from a few pounds to 250 pounds was a substantial factor and proximate cause of his death because it caused a perforation in a preexisting ulcer. The court confirmed that an accident, special incident or unusual occurrence is not required in order to establish a personal injury in Iowa. The court held the physical strain of his ordinary work ruptured his stomach at the point of a preexisting old perforated ulcer. The heavy work was the substantial factor which aggravated claimant's preexisting ulcer weakened stomach. In this Dailey case we do not have an accident, special incident or unusual occurrence, which are not required for an injury, but neither do we have the exertion of heavy work operating on claimant's preexisting aneurysm(s). In Hanson v. Dickinson, 188 Iowa 728 (1920), claimant's hammer slipped off the chisel and struck Hanson's left leg. This was determined to be the proximate cause of gonorrhoeal arthritis because it lighted up claimant's hidden and dormant gonorrhoeal condition. The striking of his leg with the hammer was a substantial factor in aggravating the preexisting condition. In Lindahl v. L. O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945), claimant Lindahl, age 42, was a warehouse worker with preexisting arteriosclerosis. He loaded seven cartons of syrup which weighed 42 and one-half pounds onto a cart which is something he had done numerous times in the past. A short time later he became ill and was taken to the hospital where it was determined that he suffered a stroke of apoplexy which resulted in a permanent paralysis to his left side. At no time did Lindahl state he hurt himself or injured himself or what was causing him to feel as he did. He did not claim that he had strained, or over exerted himself, or that he had done any heavy lifting, or that he had slipped, fell or that anything out of the ordinary had occurred. The industrial commissioner resolved a conflict Page 16 of the expert medical testimony in favor of the employer. The supreme court refused to disturb the finding of the commissioner. Thus, the Lindahl case did not find that claimant's loading and stacking of seven boxes of syrup which weighed 42 and one-half pounds, which was a normal exercise in his employment, was a substantial factor in aggravating his preexisting arteriosclerosis, which was a progressive disease, which was caused by his high blood pressure or hypertension, and which could cause a stroke at anytime with or without exertion. It is noted that in this case claimant Dailey who was also performing her regular duties, did not testify that she hurt or injured herself, or that she strained, or over exerted herself, or that she had done any heavy lifting, slipped, fell or anything out of the ordinary had occurred. Claimant Dailey testified that she merely bent over and suffered a severe headache. Claimant herself admitted that she did not think this was a work injury until quite sometime after it occurred (Cl. Dep., pp. 44 & 45). The fact that claimant did not know that she had aneurysms, or that leaning over may or may not have caused a subarachnoid hemorrhage, is not conclusive as to whether bending over to slide the shipper aggravated her preexisting condition. Nevertheless, the fact that claimant could not identify any stress or strain at the time the headache occurred is strong evidence that leaning over to slide the shipper box was not a substantial factor in causing the headache to occur, irrespective of whether or not the leaning over precipitated a subarachnoid hemorrhage of the basilar aneurysm. When leaning over preparatory to, or in anticipation of, sliding a box is compared to the classic and traditional workers' compensation cases over the years, which have demonstrated when either the commissioner or the supreme court has determined that a substantial factor was a proximate cause of the subsequent injury, it clearly shows that claimant did not prove that her leaning over at the time of her headache was a substantial factor in causing this injury. In the other cases, claimant usually performed heavy lifting or some form of strenuous exertion, sometimes in emergency situations, or experienced severe trauma at the time of the injury. Claimant Dailey's case is readily distinguishable from those other cases. John L. Fox, M.D., a board certified neurosurgeon with approximately 30 years of experience and with very significant scholastic and practice credits to his name did not examine claimant but examined several pertinent documents pertaining to claimant's history which are in evidence in this case and testified for defendants by deposition on July 27, 1992. He said that claimant had preexisting aneurysms which were undiagnosed prior to November 13, 1989. He examined the CT scan of July 12, 1988 and testified that it strongly suggested a basilar aneurysm but did not confirm it. He examined the CT scan of November 15, 1989 and said it showed the same thing as the earlier Page 17 scan, which was a suggestion of a probable basilar tip aneurysm. Dr. Fox testified that neither CT scan showed any evidence of bleeding (Ex. A, pp. 2-9). Dr. Fox examined the angiogram performed on November 15, 1989 and testified that it demonstrated a large basilar artery tip aneurysm, an interior communicating artery aneurysm and a middle cerebral aneurysm. He said that the angiogram did not show any vasospasms which tended to confirm his diagnosis of no bleeding or hemorrhage (Ex. A, pp. 9-13). Dr. Fox further testified that he examined the records of Mayo Clinic and Dr. Sundt's operative report as well as the CT scans and angiogram and there is no evidence or mention of a bleed or hemorrhage (Ex. A, p. 16). Dr. Fox gave his professional medical opinion that the work activities of claimant on November 13, 1989 had no causal relationship with the alleged rupture or bleed of the preexisting aneurysm(s). Nor did claimant's job activities substantially or materially aggravate or accelerate the alleged rupture of the aneurysm(s) (Ex. A, pp. 17 & 18). He stated his opinion was that the aneurysm surgery was the natural progression for a medical condition that preexisted November 13, 1989 (Ex. A, pp. 18 & 19). Dr. Fox further testified that claimant's job activities would have no greater impact on her preexisting aneurysms than nonemployment life activities such as straining at a stool, engaging in sexual intercourse, lifting a child of 20 pounds or taking out garbage weighing 20 pounds (Ex. A, pp. 19 & 20). Doctor Fox further opined that the surgery performed by Dr. Sundt would have been the same even if there was no bleed involved. Dr. Fox further opined that claimant's job activities did not cause any permanent impairment or disability because there was insufficient bleed to cause the resulting conditions (Ex. A, pp. 20 & 21). Irrespective of whether she had a bleed or not he would have recommended the same surgical procedure (Ex. A, p. 22). Dr. Fox further opined that the emotional problems that claimant had suffered after the surgery were not caused by her work activities because he would have to assume she had a subarachnoid hemorrhage that led to the surgery and he did not see any evidence of a subarachnoid hemorrhage prior to the surgery (Ex. A, pp. 27 & 28). Dr. Fox found no neurological defects noted in the records based on the mere existence of the aneurysms themselves (Ex. A, pp. 28-31). He did not think lifting 10 or 20 pounds that you were used to doing would raise your blood pressure and precipitate a hemorrhage. The doctor repeated that there was no demonstration of a hemorrhage. He agreed that a spinal tap would confirm or rule out a hemorrhage but that was not done either in Cedar Rapids in 1988 or 1989 or at the Mayo Clinic in 1989. A spinal tap would show blood in the spinal fluid if it were done within 24 hours. After that it might be a discoloration of the Page 18 fluid called xanthochromia. If this was a major hemorrhage there would still be some xanthochromia and some red blood cells when claimant arrived at the Mayo Clinic (Ex. A, pp. 35 & 36). Dr. Fox agreed with Dr. Sundt that the fact no blood is seen in a CT scan does not rule out the fact that there might not have been a rupture of an aneurysm (Ex. A, p. 36). Dr. Fox agreed that vasospasms would not show up on the angiogram before the third or fourth day after hemorrhage and therefore he would not expect to see vasospasms on the angiogram performed on November 15, 1989, for a headache which occurred on November 13, 1989 because they would not have occurred at that point in time (Ex. A, pp. 38 & 39). From the foregoing evidence, it can be seen that Dr. Sundt's opinion that claimant sustained a subarachnoid hemorrhage is controverted by Dr. Fox. Likewise Dr. Sundt's opinion that claimant's lifting of a box or heavy box would cause a subarachnoid hemorrhage is controverted by Dr. Fox. The fact that claimant sustained any impairment or disability as a result of these aneurysms is controverted by Dr. Fox. Wherefore, it is determined that claimant did not sustain an injury arising out of her employment because she did not demonstrate that the headaches which occurred on November 13, 1989 (1) were anything other than an idiopathic condition of aneurysms which had no relationship to her employment or work activities, (2) because claimant did not demonstrate that any work activity was a substantial factor in bringing about or hastening the treatment of her condition of preexisting aneurysm(s), (3) because Dr. Sundt's opinion that lifting or heavy lifting at work caused a subarachnoid hemorrhage is based upon the erroneous information that claimant was lifting at the time that the headaches occurred and (4) because Dr. Sundt's opinion about causal connection between the employment and the injury was controverted by Dr. Fox. Therefore, a review of the evidence compels a determination that claimant did not sustain an injury arising out of her employment with employer. CONCLUSIONS OF LAW Wherefore, based upon the foregoing and following principles of law these conclusions of law are made: That claimant did not sustain the burden of proof that she sustained an injury arising out of her employment. Iowa Code section 85.3(1). McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). In view of the foregoing finding all the other issues in the case are rendered moot. ORDER Page 19 THEREFORE IT IS ORDERED: That no amounts are owed by defendants to claimant. That the costs of this action are charged to claimant pursuant to rule 343 IAC 4.33 and Iowa Code section 86.40 except that the cost of the attendance of the court reporter at hearing and the cost of the transcript of the evidence at hearing is charged to defendants pursuant to Iowa Code section 86.19(1). That defendants file any claim activity reports requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of April, 1993. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. John L. Riccolo Attorney at Law Suite 1140 - The Center 425 Second Street, S.E. Cedar Rapids, IA 52401 Page 20 Mr. Scott E. McLeod Attorney at Law 526 Second Ave. S.E. P.O. Box 2457 Cedar Rapids, IA 52406-2457 Page 1 1100, 1108.50, 1108.20, 1401, 1402.20, 1402.30, 1402.40, 1402.60, 2204, 2206, 2902 Filed April 9, 1993 Walter R. McManus, Jr. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ LINDA K. DAILEY, Claimant, vs. File No. 947123 L'EGGS PRODUCTS, INC., A R B I T R A T I O N Employer, D E C I S I O N and THE TRAVELERS INSURANCE CO, Insurance Carrier, Defendants. ___________________________________________________________ 1100, 1108.50, 1108.20, 1401, 1402.20, 1402.30, 1402.40, 1402.60, 2204, 2206, 2902 Claimant leaned over in her employer's van to slide a box and sustained an excruciating headache. She was diagnosed as having three aneurysms. Surgery was performed at Mayo Clinic. Claimant continued to have severe physical and emotional problems after the surgery in spite of about $200,000 worth of treatment. It was determined that claimant's alleged injury did not arise out of her employment because it was an idiopathic condition peculiar and personal to her own health condition that predated the alleged injury. Cites to Larson, Work Comp and Supreme Court Cases. It was determined that claimant's work and more specifically leaning over to slide the box was not a substantial factor in bringing about the alleged injury and therefore was not a proximate cause of the aggravation of her preexisting condition. Cites to several traditional supreme court cases used in the blurbs and summaries of those decisions are used to illustrate what a substantial factor is and to show why none occurred in this case. It was determined that the opinion of the treating surgeon favorable to claimant was not acceptable because it was based on an erroneous understanding of the facts. It was determined that claimant's medical expert, the treating surgeon, was controverted by defendants' medical expert who was also a highly qualified neurosurgeon. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : PATRICIA M MARLENEE, : : Claimant, : : vs. : : File No. 947156 STEWART'S, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CRUM AND FORSTER, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Patricia Marlenee against her former employer Stewart's, Inc. wherein she seeks permanent partial disability compensation. The case was heard at Council Bluffs, Iowa, on January 5, 1994. The evidence consists of testimony from Patricia Marlenee, Anthony M. Romano, M.D. and Gail Leonhart. The record also contains joint exhibits A, claimant's exhibits 1 through 7 and defendants' exhibits A, B and C. FINDINGS OF FACT Patricia Marlenee is a 44-year-old woman who throughout most of her adult life has worked as a cosmetologist or cosmetology instructor. The work placed her in beauty salons where she was exposed to airborne inhalants such as hairspray and the fumes from permanent solutions, tints and other hair care chemicals. Claimant had reactions and problems with those substances when she was attending cosmetology school and has continued to have problems subsequently. Over the years she has been diagnosed with conditions such as sinusitis and rhinitis on a number of occasions. As time has passed, the frequency with which she has sought medical care for her condition has increased. According to Anthony M. Romano, M.D., claimant's family physician for approximately the past 20 years, claimant has underlying sensitivity to the substances used at beauty salons. She has underlying sinusitis, conditions which are basically the same as basil motor rhinitis. Claimant has probably had the disease or disease condition for years and that the disease is aggravated by the exposures from the beauty salon workplace. He stated that the exposures cause a temporary aggravation and have not produced any permanent physical impairment. He found that there was a definite Page 2 causal relationship between the exposure and the aggravations but no relationship between the exposure and the underlying disease condition. When asked to provide an assessment of claimant's disability on the basis of her age, work experience, qualifications, and other matters which are commonly considered when assessing industrial disability, he assessed no part to any physical disability. In accordance with his statement that she would feel better if she did not work where she was exposed to those chemicals and his advise that she should avoid such exposure. Dr. Romano stated that claimant's underlying problem will not improve but that she will feel better if she avoids exposure to the irritants. Dr. Romano felt that claimant's problem was clear-cut and he found no need to send her to an allergist. Claimant was sent to an allergist, Stanley L. Davis, M.D., in late 1990. Dr. Davis concluded that claimant did not have allergies in the classical sense, as shown by skin antibody testing. He found that she had a significant vasomotor rhinitis which was similar to allergy but which was triggered by nonspecific irritants rather than organic antigens. Dr. Davis did not consider claimant to be disabled because of her job as a beautician. (defendants' exhibit A). Claimant was evaluated by Paul From, M.D., who concluded that it did not appear to him that claimant would be more sensitive to agents to which she would be exposed at work than she would in normal life because of her extensive list of sensitivities. (def. ex. B, page 5). Use of records from claimant's brother detracts greatly from the probative value of Dr. From's report. The record of this case fails to contain any expert medical opinion which finds that any disability which currently afflicts Patricia Marlenee resulted in any significant part from her exposure to chemicals in her workplace. To the contrary, claimant appears to be sensitive to a number or irritants, many of which are not found in the workplace. There is some indication in the record that her degree of sensitivity may have increased over the years but there is nothing in the record which shows that any such increased sensitivity resulted in any significant part from exposures at the workplace rather than from exposures of everyday life to other irritants or from some naturally occurring change in her body. In short, while the evidence in this case shows that the exposures from claimant's workplace aggravated her underlying condition, the evidence fails to show that it is probable that those exposures caused any permanent change in claimant's underlying condition or any permanent disability of any type or nature. CONCLUSIONS OF LAW 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 Page 3 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). Aggravation of a preexisting condition is one manner of sustaining a compensable injury. 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). Iowa workers' compensation law distinguishes occupational diseases from work injuries. An occupational disease is a disease which arises out of and in the course of the employee's employment. The disease must have a direct causal connection with the employment and must follow as a natural incident from injurious exposure occasioned by the nature of the employment. While the disease need not be foreseeable or expected, after its contraction, it must appear to have had its origin in a risk connected with the employment and to have resulted from that risk. A disease which follows from a hazard to which an employee has or would have been equally exposed outside of the occupation is not a compensable occupational disease. The claimant need meet only two basic requirements to prove causation of an occupational disease. First, the disease must be causally related to the exposure to the harmful conditions in the field of employment. Second, the harmful conditions must be more prevalent in the employment than in everyday life or other occupations. Section 85A.8; McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). Where an employee is injuriously exposed to hazardous conditions producing occupational disease while employed by several successive employers, the employer where the employee was last injuriously exposed is liable for all of Page 4 the disability. Doerfer Div. of CCA v. Nicol, 359 N.W.2d 428 (Iowa 1984). To be compensable, an aggravation of an occupational disease must be more than a temporary aggravation curable by removal from the exposure. McNeil v. Grove Feed Mill, II Iowa Industrial Commissioner Report 261 (App. 1981). In this case claimant seeks a recovery under chapter 85 and, alternatively, under chapter 85A. Since section 85.61(4) provides that, by definition, injury excludes any condition which is an occupational disease, it is necessary to first consider this case as an occupational disease claim. Claimant's underlying diseases of rhinitis and sinusitis have not been shown to have been causally related to exposures in her workplace. The evidence clearly shows that exposures in the workplace aggravate her underlying condition and cause it to become symptomatic. The exposures are not shown, however, to have caused its onset. On the second test, there is some reason to believe, though no definite evidence, that the exposure to hairsprays and hair care chemicals is more prevalent in a beauty salon then in everyday life or occupations. Anyone who has walked into a beauty salon should realize that that is probably the case. There is, however, no evidence in the record of this case that there is any peculiar relationship between exposure to hairspray chemicals and contraction of the disease which afflicts claimant. In view of the lack of that peculiar relationship and the lack of a causal relationship between the exposure and the condition itself, this case does not provide any recovery to the claimant under chapter 85A of the Code because the condition has not been shown to be an occupational disease. When viewed as an injury, it is clear that claimant has had a number of temporary injuries whenever the exposure aggravated her underlying condition and caused it to be sufficiently symptomatic to be disabling. At the commencement of the hearing it was expressly stated that no claim was being made for any temporary total disability or healing period. The only claim made was for permanent disability. The physicians are all in agreement in that there is no evidence that the exposures have produced any permanent disability. There is no showing in the record that the exposures have produced any permanent change in the claimant's health or body. Simply stated, she is sensitive to the hair care chemicals as well as numerous other chemicals and irritants. When she is exposed to any of those irritants her symptoms become pronounced. When the exposure ends, the symptoms subside. The fact that medical care is sometimes necessary to cause the symptoms to resolve does not change the character of the aggravation from temporary into permanent. It is therefore concluded that Patricia Marlenee has failed to prove that she is entitled to any recovery for permanent partial disability under chapter 85 of the Code. Page 5 ORDER IT IS THEREFORE ORDERED that claimant take nothing from this proceeding. It is further ordered that each party is responsible for their own costs incurred in participating in this action. Signed and filed this ____ day of January, 1994. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Drew H. Kouris Attorney at Law 501 S Main #2C Council Bluffs, Iowa 51503 Mr. Harry Dahl Attorney at Law 974 - 73rd St, STE 16 Des Moines, Iowa 50312 1108.30 1108.40 1402.30 1402.40 2203 2205 2206 Filed January 14, 1994 Michael G. Trier BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ PATRICIA M MARLENEE, Claimant, vs. File No. 947156 STEWART'S, INC., A R B I T R A T I O N Employer, D E C I S I O N and CRUM AND FORSTER, Insurance Carrier, Defendants. ___________________________________________________________ 1108.30 1108.40 1402.30 1402.40 2203 2205 2206 Claimant had underlying sinusitis and rhinitis and sensitivity to a number of nonspecific irritants. Her work as a cosmetologist may have caused a number of recurrent aggravations which required medical care. All the medical evidence indicated that those were simply temporary aggravations. Claimant held entitled to no recovery for permanent disability. Claimant's case analyzed as occupational disease. In view of the lack of showing of the required causal connection and lack of the peculiar relationship between the exposure and the condition that the condition claimant is afflicted with it is not an occupational disease. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : ALMA SLAUTER, : : Claimant, : : vs. : : File No. 947359 GREEN THUMB, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : HOME INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration upon the petition of claimant, Alma Slauter, against her former employer, Green Thumb, Inc., and its insurance carrier, Home Insurance Company, defendants. The case was heard on July 15, 1993 at the office of the Industrial Commissioner in Des Moines, Iowa. The record consists of the testimony of claimant. The record also consists of the testimony of claimant's spouse, John Slauter; the Lamoni Public Librarian, Barb Huston; and the testimony of a rehabilitation counselor, retained by defendants, Patricia Conway. Additionally, the record is comprised of claimant's exhibits 1 and 2, and defendants' exhibits A through J. ISSUES The issues to be determined are: 1) whether there is a causal relationship between the work injury and any permanent disability; 2) whether claimant is entitled to any healing period or to any permanent partial disability benefits; 3) whether claimant is entitled to reimbursement for certain expenses incurred as a result of an independent medical examination pursuant to section 85.39 of the Iowa Code, as amended; and 4) whether claimant served timely notice pursuant to section 85.23 of the Iowa Code, as amended. FINDINGS OF FACT Claimant is 66 years old. She is married with three adult children. Claimant completed the ninth grade. She terminated her formal education after the ninth grade because of poor health. At the time of her termination, claimant was in the tenth grade. Claimant never attempted to obtain her GED. Page 2 For most of her life claimant has worked long and hard hours. She is a typical example of the Iowa farm wife who is expected to run the home, raise the children and assist on the family farm. In 1958 claimant took on the added responsibility of working outside of the home. She commenced employment with Graceland College in the food service division. There she progressed to the positions of head cook and production manager of the food service. Her employment involved strenuous physical labor. She was required to lift heavy kettles and pans in preparation of the upcoming meal. Claimant testified she served about one thousand people per meal. Her duties included managing the production of food, managing the amounts to serve and managing the necessary personnel who handled the tasks. Claimant terminated her position at the college in 1975. At the time of her termination, claimant was paid the paltry sum of $2.55 per hour. Claimant next owned and operated her own fabric store, Sue's Golden Thimble. She maintained the shop from 1976 through 1982. She sold fabrics, ready to wear clothing and jewelry. Her duties reflected those of every other shopkeeper. She stocked shelves, performed bookkeeping, waited on customers, hired and fired personnel and ordered goods. Claimant sold the store in 1982. Claimant returned to the family farm where she assisted her husband in the daily operation of the business. Her duties included operating farm machinery, plowing, disking, feeding cattle and mending fences. She remained employed on the farm for two years. Next claimant and her husband purchased a grocery store in Blythedale, Missouri. The every day operation of the business was primarily the responsibility of claimant. She had three part-time employees to assist her. However, most of the employment responsibilities fell upon claimant's shoulders. After one year claimant sold the business. The work, claimant testified, "was too hard, and not feasible." On November 17, 1986, claimant commenced employment with Green Thumb, Inc., a non-profit organization which was initiated by the National Farmers Union. The organization was established as a vehicle for retraining senior citizens, especially farmers, who had been displaced from the farm. Only certain individuals qualify as employees. The employees are paid the minimum wage and they generally work part-time hours. They are placed with non-profit entities. Applicants are eligible if they meet certain financial criteria. Claimant qualified for employment with defendant. She started her position on the day after her sixtieth birthday. Claimant was hired to work 20 hours per week. She received on-the-job training. Her first assignment was at the Central DeCatur School System. She was employed as an Page 3 elementary school library clerk. She processed books, typed book cards, mended books, did occasional typing, shelved books and assisted students with checking out books from the school library. Claimant testified she enjoyed the position. She worked Monday through Thursday for five hours per day. Claimant worked at the school for one year and one summer. After her tour of duty at the school, claimant was transferred to the Department of Employment Services, Division of Job Service in Lamoni, Iowa. She was required to file, type, and administer tests to customers. Claimant worked at the office from September of 1987 through December of 1987. The office was closed for financial reasons and claimant was transferred to the Lamoni City Library. Claimant commenced her duties at the Lamoni Public Library on December 8, 1987. She was assigned the position of part-time Library Clerk. Again, she was compensated at the then minimum wage rate. She worked four days per week and five hours per day. Claimant reported to the head librarian or else to her assistant. Claimant's duties were similar to the ones she had at the elementary school. Claimant checked books back into the library, shelved books, mended books, assisted customers, provided information, checked books out of the library, collected fines, prepared new books for shelving and performed other tasks as assigned. Claimant remained employed through Green Thumb, Inc., until April 3, 1990. Since that time, claimant has only been employed by Decatur County as an election official on two separate occasions. She has not looked for any other employment. While claimant was working at the city library, she began to experience difficulties with her upper extremities. She testified that she encountered gradual pain in her wrists and hands. She also experienced pain in the regions of her elbows. Claimant provided verbal notice of the difficulties to both the then head librarian, Laura Williams, and to the assistant librarian, Paula Sandelson. Claimant also provided verbal notice to her supervisor at Green Thumb, Inc., Ernestine Judkins. Paula Sandelson, the assistant librarian referred claimant to Charles Manuel, D.C. He treated claimant on several occasions. Because his notes were nearly impossible to read, this deputy was unable to determine the diagnosis he had rendered. Claimant sought chiropractic care for her upper extremities from C. E. Tindel, D.C. Dr. Tindel engaged in cervical manipulation. (Cl. Ex., p. 12) He treated claimant for "headaches, pain in neck, shoulders & hands." (Cl. Ex., p. 13) Claimant experienced little relief from the chiropractic manipulation. Since claimant received little relief from the Page 4 chiropractic treatment, the supervisor sent claimant to the Patel Medical Clinic in Mt. Ayr, Iowa. In his report of November 20, 1990, Bhalchandra R. Patel, M.D., opined: Mrs. Slauter has been seen by us at Patel Medical Clinic in April 1990. She presented with pain in both hands and our impression was that she had bilateral carpal tunnel syndrome. And therefore, she was sent to Neurologist, Dr. Joseph Doro. Please find enclosed letter of Dr. Doro's consultation. Dr. Doro's assessment was of bilateral ulnar nerve entrapment at elbow. And electrophysiologically, Dr. Doro couldn't demonstrate evidence of bilateral carpal tunnel syndrome, though there was strong clinical possibility of bilateral carpal tunnel syndrome. We had discussed these findings with Mrs. Slauter and had suggested that she have release of ulnar nerves first, and if there are no improvements, then bilateral carpal tunnel release. But, the patient had said that she had more pain over wrists and she wanted to have carpal tunnel release first. This was discussed in June 1990, and we had decided to give a trial with anti-inflammatory medications for reasonable time. Her symptoms did not improve with conservative management, and as her symptoms were worse on right side, we decided to operate on right side first. Surgery was performed on September 11, 1990. There is definite relationship between her work leading to carpal tunnel syndrome, which was evident clinically. Normal recuperation time after surgery is 4 to 6 weeks. And after surgery Mrs. Slauter developed other symptoms like pain in legs, dyspnea and chest pain, which is not related to her surgery. She has been sent to Cardiologist, and Cardiologist so far has not found any substantial cardiac problem. As Mrs. Slauter continues to have above symptoms, I have advised her to see Rheumatologist. She has an appointment to see Dr. Finan on December 4, 1990. At this point in time, I do not think Mrs. Slauter has any permanent impairment as a result of injury. In my opinion, her present symptoms are not related to carpal tunnel syndrome. (Cl. Ex., pp. 20 & 21) Dr. Patel performed the right carpal tunnel surgery in September of 1990. Subsequent to the surgery, claimant experienced difficulties with both her upper and her lower extremities. Her surgeon referred claimant to the Mercy Arthritis Center in Des Moines. Michael J. Finan, M.D., conducted an examination of claimant in December of 1990. Among other findings, Dr. Finan opined the following relative to claimant's wrists: Neck had fair range of motion. Both shoulders had good, comfortable range of motion. No synovitis of the elbows or wrists. There is a well-healed scar over the volar aspect of the right wrist from prior carpal tunnel surgery. No evidence of infection. Both wrists had good range of motion. There was minimal degenerative changes in the DIP Page 5 joints. The other small joints of the hands were normal. No active synovitis.... Pinprick exam was normal, including both hands. Both toes were downgoing. With the Phalen's maneuver, she complained of a little numbness in both thumbs. Tinel's was negative on the right and equivocal on the left. ... 3. Bilateral hand pain. It is not clear that this is entirely explained by carpal tunnel syndrome or even possible ulnar nerve entrapment syndrome. 4. Positive rheumatoid factor.... ... 3. Because of her complaints of upper extremity symptoms, one might want to proceed with repeat EMG/NCV's and even have the situation reviewed by a neurosurgeon or orthopaedic surgeon to see if he feels her symptoms are secondary to nerve entrapment syndrome. I do not find inflammatory arthritis as an explanation for her hand pain. (Cl. Ex., p. 57-59) Joseph M. Doro, D.O., conducted an EMG with respect to claimant's problems with the upper extremities. In his report of April 26, 1990, Dr. Doro opined: Essentially, she does have slowing across the elbow of both ulnar velocities, which would be consistent with an ulnar neuropathy at that point. She does have some evidence of minor chronic denervation int [sic] he ulnar innervated muscles of the hand. Clinically, the description I get of her pain is one of both ulnar involvement, and also what sounds like median involvement, with carpal tunnel, however, I was not able to demonstrate, electrophysiologically, evidence of a carpal tunnel, although clinically that still is a strong consideration. (Cl. Ex., p. 25) As aforementioned, claimant had a right carpal tunnel release. Because claimant did not believe that she had achieved a good result, she refused to have any more surgeries on her upper extremities. Nevertheless, claimant experienced continued pain in both of her upper extremities. Martin S. Rosenfeld, D.O., performed an independent medical examination of claimant in October of 1991. He authored a report dated October 22, 1991. In his report he Page 6 opined: At this time she has negative Tinel and Phalen signs over the carpal tunnels bilaterally. She does have tingling when pressing on the ulnar nerves at the elbows bilaterally. She does have positive Grind tests bilaterally. X-rays of both hands are taken showing moderate to moderately severe basal thumb arthritis bilaterally. Impression: 1) Bilateral basal thumb arthritis. 2) Bilateral ulnar nerve entrapment neuropathy. Page 7 3) Status post-right carpal tunnel release. Patient denies any symptoms prior to starting the job as a librarian and I would feel that her symptoms are most probably due to cumulative effect from over use of her elbows, wrists, and thumbs. I would feel that the basal thumb arthritis probably was present but was aggravated by the working conditions. My recommendations of treatment at this time would include bilateral ulnar nerve transpositions at the elbow and probably injections to the basal thumb joints with some Cortisone to see if this will not get rid of her pain. At the present time I do, indeed, feel that the patient has a permanent physical impairment to each upper extremity. I believe that the basal thumb arthritis and aggravation of same would cause a five ( 5%) percent impairment to each upper extremity and that the persistent ulnar neuropathy would cause a ten (10%) percent impairment to each upper extremity. I feel that this means that she has fifteen (15%) percent impairment to the right upper extremity and fifteen (15%) percent to the left upper extremity. I would feel that corrective surgery on the ulnar nerves and treatment to the basal thumb joints should diminish this impairment if it were to be carried out. (Cl. Ex., p. 69-70) In April of 1992 Tom Bower, LPT, conducted a functional capacity evaluation. He summarized his findings in his report of April 29, 1992. He determined that: SUMMARY This patient, in my opinion, is perceiving herself as being unable to do virtually anything. We find inconsistencies in all the grip measurements that have been taken today, using the various pieces of equipment. The 0 grip strength display with the Preston hand dynamometer in all positions of spread, is generally considered to be one of the criteria used in identifying symptom magnifiers. I feel very strongly that in fact is occurring. Heart rates certainly do not appear to be proportionate to the pain levels described by this patient. I am somewhat concerned, based on the tingling that the patient is experiencing in her little and ring fingers, specifically the ulnar distribution, that we could have some ulnar nerve involvement either proximal or distally. Since no EMG studies have been done following the surgery, it might be Page 8 wise to repeat those studies, not only to assess the ulnar nerve, but to assess the status of the median nerve to see if there is any residual changes that have occurred from the surgery. I am not quite certain as to what to make of the Roo's maneuver today since these clinical findings are certainly not totally consistent with thoracic outlet, but may well be mildly suggestive of that diagnosis. I find it extremely unusual the patient is able to lift 20 pounds from a floor to waist position when she is unable to generate any grip on the hand dynamometer or certainly minimal grip on the BTE work simulator. All these findings appear to be completely inconsistent from test to test. I believe that there is a high propensity for symptom magnification being present here, and certainly exclusion of that can be made perhaps in repeating the EMG studies to rule out any old or new pathology. (Cl. Ex., p. 75-76) Several days later, Jack E. Reynolds, M.S., C.R.C., a vocational expert retained by claimant prepared a vocational assessment. He drafted a report dated May 4, 1992. His opinions were summarized as follows: Alma Dean Slauter A (sic) 65 year old Librarian for Green Thumb, Inc., suffered a work related injury resulting from the repetitive nature of her work. Ms. Slauter began noticing pain in both hands on December 1, 1989. This pain progressed until she left work on April 13, 1990, when she could no longer perform her job requirements. Ms. Slauter underwent right Carpal Tunnel surgery on September 9, 1990, however, her condition has not improved. Both Dr. Doro and Dr. Rosenfeld have diagnosed her condition as Bilateral Ulnar Nerve Entrapment. Ms Slauter continues to have pain and weakness in both hands. She is unable to sustain any gripping activity or more than an occasional use of her hand without experiencing considerable pain. She is precluded from such activities as sewing, quilting, painting, canning, opening jars, vacuuming or using a keyboard. Ms. Slauter had hoped to keep working until she was 70 years of age. She has not attempted to find work because she is unable to sustain any use of her hands without having severe pain. Ms. Slauter is unable to do her old job as a Librarian due to the job requirements of handling Page 9 books, reshelving books, rebinding books, and using a keyboard. She could not perform any of her previous work due to these jobs requiring more than an occasional use of her hands with such activities as handling pots and pans, supplies, fabric, groceries, and operating cash registers. While much of Ms. Slauter's past work was in supervision, these jobs were primarily hands-on supervisory responsibilities requiring her to participate in caring (sic) out physical activities. With Ms. Slauter's inability to sustain activity with her hands, considering her age, education and work experiences; she is not capable of performing any of her past work or transfer skills to other jobs in a competitive job market. These factors would also severely limit any capacity for retraining. Thus Ms. Slauter presents a poor candidate for either successful job placement or retraining. She could be considered totally disabled from a vocational rehabilitation standpoint. (Cl. Ex., p. 79-80) In June of 1992, claimant was evaluated by Dr. Doro. In his report of June 10, 1992, Dr. Doro wrote: The patient continues to have difficulties with pain and it is mainly in her hands. It is in a diffuse fashion surrounding the whole areas, although, occasionally the small and ring finger will be more affected that other fingers, and other times there is no difference between the two sides and they are both equally symptomatic. She feels that the pain is worse whenever she does any type of activity. At night, it bothers her considerably and will prevent her from sleeping. In speaking with her about further evaluation and treatment, as you know, she is quite reluctant to undergo anything further. She did not want to have another EMG done today. She was quite insistent upon that. She also is not in favor of having further surgery in view of the problems that she had after the original one. On her examination at this time, her general neurologic examination is normal. Concentrating on her arms and hands, she has diffuse weakness of the distal muscles of her hands. This is both the ulnar, median and radial distribution. The weakness that she has seems to be more of a break away type of weakness secondary to pain which is generated whenever she tries to Page 10 do anything with her hands as opposed to true loss of muscle power. For example, I was able to increase her grip by having her try to overcome the pain, even just for a few seconds. Sensation shows areas of hypesthesia. There were also areas of almost dysesthesia in the hands as well. The muscle stretch reflexes are equal and symmetric. There were no pathologic reflexes. There were food finger flexor reflexes bilaterally. Phalen's maneuver does reproduce the patient's symptoms. She is also diffusely tender to percussion over the wrists, both anteriorly and posteriorly. In watching her use her hands spontaneously, she did have difficulty with performing fine finger movements. In reviewing the patient's history and her exam, I would concur with Dr. Rosenfeld's feeling of 15 percent physical impairment rating due to the patient's difficulties with her ulnar neuropathies as well as her prior surgery and her present symptoms. I did raise with her the question of having further evaluation and potential treatment, however, she is quite frustrated by everything that she has gone through and does not want to proceed with more of an evaluation or treatment at this time. (Cl. Ex., p. 29-30) Defendants referred claimant to Excel Work Performance Center for a second functional capacity evaluation. The evaluation took place on February 24, 1993. Randy Pressler, P.T., conducted the evaluation. He opined that his test results were invalid because, in his opinion, claimant did not exert maximus effort. The evaluator opined that claimant was functioning in the sedentary physical demand level. (Cl. Ex., p. 117) Defendants also retained the services of Patricia Conway of Rehabilitation Professionals, Inc., to evaluate claimant for possible employment. She was not retained to engage in job placement. Ms. Conway testified that claimant had transferable skills. She also testified that claimant, per the functional capacity evaluation was capable of engaging in sedentary type jobs, and that claimant could carry up to 12 pounds. Ms Conway testified that claimant had transferable skills and that she could engage in the following fields of employment: customer service work, telephone solicitation, so long as claimant uses a headset, library clerk, restaurant hostess, and cashier, in a Page 11 convenience store provided that claimant did not exceed her lifting restrictions. The expert testified that claimant had told her she was moving to Missouri, and that she did not want to find employment until she had moved out of state. Ms. Conway also testified there were part-time positions available to claimant at the minimum wage rate up to $5.50 per hour. Ms. Conway opined that claimant could still perform the duties of a library clerk provided claimant limited the number of books she would carry at one time. As of April 27, 1990, claimant was notified that she no longer qualified for a position with defendant-employer. The basis for the termination was not due to claimant's physical condition. Rather, she earned more income than what the federal government would allow an individual to earn in order to qualify for the program. 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. App. Procedure 14(f). The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 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). Page 12 Page 13 Apportionment of disability between a preexisting condition and an injury is proper only when some ascertainable portion of the ultimate industrial disability existed independently before an employment-related aggravation of disability occurred. Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991); Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984). Hence, where employment is maintained and earnings are not reduced on account of a preexisting condition, that condition may not have produced any apportionable loss of earning capacity. Bearce, 465 N.W.2d at 531. Likewise, to be apportionable, the preexisting disability must not be the result of another injury with the same employer for which compensation was not paid. Tussing v. George A. Hormel & Co., 461 N.W.2d 450 (Iowa 1990). The burden of showing that disability is attributable to a preexisting condition is placed upon the defendant. Where evidence to establish a proper apportionment is absent, the defendant is responsible for the entire disability that exists. Bearce, 465 N.W.2d at 536-37; Sumner, 353 N.W.2d at 410-11. The first issue to address is the issue of notice pursuant to section 85.23 of the Iowa Code, as amended. The relevant portion of the section provides that: Unless the employer or the employer's representative shall have actual knowledge of the occurrence of an injury received within ninety days from the date of the occurrence of the injury, or unless the employee or someone on the employee's behalf or a dependent or someone on the dependent's behalf shall give notice thereof to the employer within ninety days from the date of the occurrence of the injury, no compensation shall be allowed. Failure to give notice is an affirmative defense which the employer must prove by a preponderance of the evidence. DeLong v. Highway Commission, 229 Iowa 700, 295 N.W. 91 (1940). Mefferd v. Ed Miller & Sons, Inc., Thirty-third Biennial Report of the Industrial Commissioner 191 (Appeal Decision 1977). The time period contemplated in Iowa Code section 85.23 does not begin to run until the claimant has knowledge of the nature of his disability. Jacques v. Farmers Lbr. & Sup. Co., 242 Iowa 548, 47 N.W.2d 236, 239 (1951). An employer's actual knowledge of occurrence of injury must include some information that the injury is work-connected in order to satisfy the alternative notice of claim requirement. Robinson v. Department of Transp., 296 N.W.2d 809,812 (Iowa 1980). The interpretation in Robinson was confirmed in Doerfer Division of CCA v. Nichol, 359 N.W.2d 4218, 435 (Iowa 1984). A claimant's duty to give notice of injury arises when the claimant should recognize the nature, seriousness and probable compensable character of his injury or disease. The reasonableness of claimant's conduct is to be judged in light of his education and intelligence. Claimant must know Page 14 enough about the injury or disease to realize that it is booth serious and work connected, but positive medical information is unnecessary if he has information from any source which puts him on notice of its probable compensability. Robinson, supra. The purpose of the 90 day notice or actual knowledge requirement is to give the employer an opportunity to timely investigate the facts of the injury. Knipe v. Skelgas Co., 229 Iowa 740, 748, 294 N.W. 880, 994 (1940); Hobbs v. Sioux City, 368 N.W.2d 176 (Iowa 1985). Koopsman v. Iowa Electric Light and Power Company, (Appeal Decision dated, December 30, 1981). The word "compensable" in the workers' compensation notice context is not used to connote legal knowledge that a claim is within the workers' compensation act. Rather, "compensable" means that the disability or injury was work related. Quaker Oats Co. v. Miller, 370 So. 2d 1363, 1366 (Miss. 1979). Unless a statute that imposes a period of limitations expressly authorizes exceptions for extenuating circumstances, it must be applied uniformly even though the result may seem harsh. Burgess v. Great Plains Bag Corporation, 409 N.W.2d 676, 679 (Iowa 1987). A mistake of law is no more an excuse in connection with a late compensation claim than anywhere else, unless expressly made so by statute. 3 Larson, Workmen's Compensation Law, Section 78.47 at 15-334. In the instant case, defendants assert the affirmative defense of lack of notice under section 85.23 of the Iowa Code, as amended. Defendants bear the burden of proving there was not proper notice. Claimant testified that she tendered verbal notice to the librarian at the Lamoni City Library as well as to the assistant librarian, Paula Sandelson. Moreover, claimant testified it was Ms. Sandelson who initially referred claimant to Dr. Mandel for claimant's hand pain. The progress notes of Dr. Mandel, indicate claimant first visited his office on December 1, 1989. Claimant also testified that in December of 1989, she showed her hand condition to Ernestine Judkins, Green Thumb supervisor, and that Ms. Judkins replied, "You just can't do the work." No one refuted claimant's testimony regarding the notice issue. Her testimony was uncontroverted. It is the determination of the undersigned that claimant supplied the requisite notice to her employer, as required by section 85.23. Claimant alleges that she has sustained a permanent disability as a result of her simultaneous cumulative injury to her upper extremities. The medical opinions substantiate this allegation. Dr. Patel opines the condition is work related. Dr. Doro opines that claimant has sustained a permanent disability and he has provided claimant with an impairment rating. Likewise, the evaluating physician, Dr. Rosenfeld has also opined that claimant's condition is causally connected to her work Page 15 injury and that her condition is a permanent one . Claimant has established the requisite causal connection. Claimant has a permanent disability. The next issue to address is the issue dealing with the nature and extent of claimant's permanent disability. 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). Bilateral carpal tunnel syndrome which results from one gradual injury process and which constitutes the loss of two members from one accident is evaluated on a functional basis under Iowa Code section 85.34(2)(s). Himschoot v. Montezuma Mfg., File numbers 6722778 and 738235 (App. Dec. April 15, 1988), (affirmed and appealed to Court of Appeals, February 22, 1990). In the case of Johnson v. George A. Hormel & Co., (Appeal Dec. June 21, 1988), the industrial commissioner held that claimant's bilateral carpal tunnel syndrome was found to be the loss of two scheduled members as the result of a single gradual injury process, and the disability was compensated under section 85.34(2)(s). Section 85.34(2)(s) as well as the Simbro case, supra, are discussed at length in Lawyer and Higgs Iowa Workers' Compensation 2d Section 13-4 at p. 124. The authors write: Special mention needs to be made of the cases arising under Iowa Code section 85.34(2)(s), the provision covering loss of both arms, hands, feet, legs, or eyes or any two thereof in a single accident. Simbro v. DeLong's Sportswear makes it clear that impairment in such cases must be computed as functional impairment rather than as industrial disability. Simbro's impairment was three percent of each upper extremity. Although testimony of industrial disability was presented, the commissioner awarded the combined value of a three percent loss to each extremity or four percent of the 500 weeks scheduled benefit. The supreme court approved the commissioner's award based on functional impairment. However, an employee who is permanently and totally disabled by a single accident under subsection (s) may be entitled to permanent total disability benefits. (footnote omitted) In Simbro, supra, the Iowa Supreme Court specifically discusses the 1974 amendment to section 85.34(2)(s). The Court concludes at page 889: We conclude that the amendment to paragraph (s) clearly makes the paragraph a scheduled disability subject to functional evaluation. The plain and unambiguous language in the amendment of paragraph Page 16 (s) which sets out a definite schedule of benefits shows a clear intent by the legislature to make the loss of two members a scheduled loss. We assume that at the time the legislature amended paragraph (s) it was familiar with the existing case law that evaluated scheduled disability on a functional basis. See Peffers v. City of Des Moines, 299 N.W.2d 675, 678 (Iowa 1980). Thus, if it had wished us to apply a different method of evaluation to paragraph (s) losses than we apply to other scheduled losses, it would have so indicated. Later in the decision, at page 889, the Court concludes: In conclusion we agree with the ruling of the commissioner that a partial loss under paragraph (s) must be determined by evidence of the functional loss rather than the industrial loss... The instant case clearly deals with the same situation as is found in the Simbro case. Claimant has not sustained a permanent and total disability. Her injury is to be evaluated by the functional method for determining the nature and extent of her permanent disability. Section 85.34(2)(s) is the appropriate section to use in figuring the weekly benefits. Dr. Rosenfeld opines that claimant has a fifteen percent impairment to each upper extremity. He writes that claimant's condition is related to her work situation and that her pre-existing arthritis is aggravated by her employment duties. Dr. Doro concurs with his opinion. Dr. Patel opines there is no impairment. When the fifteen percent impairment rating to each upper extremity is converted to the whole body rating, the figure equals 9 percent to the whole body. In order to calculate the number of weeks of benefits to which claimant is entitled, the Combined Values Chart on page 246 of The AMA Guides to the Evaluation of Permanent Impairment 3d edition must be consulted. According to The Guides, the combined values of 9 percent is 17 percent. Using section 85.34(2)(s), the weeks are calculated as: 500 weeks x 17% =85 weeks . Claimant is therefore entitled to 85 weeks of permanent partial disability benefits at the stipulated weekly benefit rate of $63.82 per week. The next issue to address is the issue of healing period benefits. Section 85.34(1) provides that healing period benefits are payable to an injured worker who has suffered a 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. Page 17 McCord, 394 N.W.2d 405 (Iowa 1986). Healing period may be ended at the time a physician states the condition has remained unchanged and he provides an impairment rating. Hungate v. Lear Sigler, Vol. II-1 State of Iowa Industrial Commissioner Decisions 196 (Appeal Decision 1985). Generally, healing period benefits accrue from the date of the injury. Compensation payments are to be made beginning on the eleventh day after injury. Interest is to be paid on benefits which are due but not paid. Iowa Code section 85.30. Teel, Supra. With respect to the present case, claimant is entitled to healing period benefits. Claimant has failed to establish whether she is owed healing period benefits prior to April 3, 1990. However, since April 3, 1990, claimant has been unable to work because of the conditions of both of her upper extremities. She remained in the healing period through October 22, 1991. On October 22, 1991, Dr. Rosenfeld conducted his examination of claimant and he provided an impairment rating to claimant. Claimant is entitled to benefits for ________ weeks at the stipulated rate of $63.82 per week. The final issue to address is whether the $640.00 cost of Dr. Rosenfeld's independent medical examination is reasonable. Iowa Code section 85.39 provides in pertinent 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, upon application to the commissioner and upon delivery of a copy of the application to the employer and its insurance carrier, be reimbursed by the employer the reasonable fee for a subsequent examination by a physician of the employee's own choice, and reasonably necessary transportation expenses incurred for the examination. The physician chosen by the employee has the right to confer with and obtain from the employer-retained physician sufficient history of the injury to make a proper examination. Section 85.39 permits an employee to be reimbursed for a subsequent examination by a physician of the employee's choice where an employer-retained physician has previously evaluated "permanent disability" and the employee believes that the initial evaluation is too low. The section also permits reimbursement for reasonably necessary transportation expenses incurred and for any wage loss occasioned by the employee's attending the subsequent examination. Defendants are only responsible for reasonable fees associated with claimant's independent medical examination. Page 18 Claimant has the burden of proof with respect to the issue of the reasonableness of a fee. See Schintgen v. Economy Fire and Casualty Co., File No. 855298 (Appeal Decision, April 26, 1991). An inference of reasonableness can be created when a claimant pays a medical bill. Schneider v. Prairie Contractors, Inc., (Appeal Decision, 1992). It is not necessary for claimant to obtain prior approval of defendants or that claimant file an application for approval from the industrial commissioner's office prior to visiting with the medical examiner. Vaughn v. Iowa Power, Inc., File No. 925283 (Arbitration Decision, August 5, 1992). Nor is it necessary for claimant to apply for reimbursement for an independent medical examination by a physician who is retained by claimant prior to the examination or prior to a hearing. Pirozek v. Swift Independent Packing and Second Injury Fund of Iowa, File Nos. 753643, 753642, 724893 (Appeal Decision 1987). Recently, the Iowa Industrial Commissioner addressed the reasonableness of the charge for an independent medical examination. See Wright v. Bridgestone/Firestone, File No. 1023144 (Appeal Decision April 29, 1993). In Wright, supra, defendants challenged the charges of Dr. Rosenfeld for making an independent medical examination. In that situation, Dr. Rosenfeld charged $600.00 as his fee. This deputy wrote the following: Claimant has met his burden of proof. Dr. Rosenfeld's fee of $600.00 is reasonable. Claimant has paid the bill. The fee does not appear outrageous or excessive. The sensibilities of this deputy are not shocked. On appeal, the industrial commissioner affirmed the deputy's decision. The defendants failed to overcome claimant's prima facie case of reasonableness and they were held liable for $600 for an independent medical examination of an upper extremity. In the instant case, the facts are quite similar to the facts in the Wright case. Defendants are disputing the reasonableness of an independent medical examination which was performed by Dr. Rosenfeld. The medical examination was for conditions of the upper extremities. The fee in this case is $640.00. Defendants have paid $400.00 of the charges. Defendants have not paid $240.00 for x-rays of the hands. Claimant is requesting reimbursement for the $240.00. She testified the x-rays were new ones and they were not duplicate tests. Defendants provided no testimony to the contrary. It is the determination of the undersigned that claimant has made a prima facie case with respect to the reasonableness of the medical bill for the independent medical examination. Defendants have failed to overcome claimant's prima facie case of reasonableness. Defendants are liable for the $640.00 fee. The $240.00 balance is to be reimbursed to claimant. Page 19 ORDER THEREFORE, it is ordered that: Defendants shall pay unto claimant eighty-five (85) weeks of permanent partial disability benefits at the stipulated rate of sixty-three and 82/l00 dollars ($63.82) per week and commencing on October 23, 1991. Defendants shall pay unto claimant _____ weeks of healing period benefits from April 3, 1990 through October 22, 1991 at the stipulated rate of sixty-three and 82/l00 dollars ($63.82) per week. Defendants shall reimburse claimant for two hundred forty and no/l00 dollars ($240.00) in reasonable expenses incurred for an independent medical examination. Defendants shall take credit for all benefits previously paid to claimant. Accrued benefits are to be paid in a lump sum together with statutory interest at the rate of ten percent (10%) per year. Costs are taxed to defendants pursuant to rule 343 IAC 4.33. Defendants shall file a claim activity report as requested by this division and pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of September, 1993. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert W. Pratt Attorney at Law 6959 University Avenue Des Moines, Iowa 50311-1540 Ms. Dorothy L. Kelley Attorney at Law 500 Liberty Building Des Moines, Iowa 50309 1803; 1803.1; 2505; 2601 Filed September 14, 1993 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ ALMA SLAUTER, Claimant, vs. File No. 947359 GREEN THUMB, INC., A R B I T R A T I O N Employer, D E C I S I O N and HOME INSURANCE COMPANY, Insurance Carrier, Defendants. ___________________________________________________________ 1803; 1803.1 Claimant sustained simultaneous bilateral injuries to her upper extremities. The benefits owed were calculated on a functional basis using section 85.34(2)(s). The line of cases in Simbro was followed. 2505; 2601 Claimant had an independent medical examination. Dr. Rosenfeld performed the examination and he charged $640.00 as his fee. Defendants paid $400.00 of the fee but they disputed the balance. Claimant paid the balance and requested reimbursement for the $240.00. Claimant made a prima facie showing of reasonableness of the fee. Defendants failed to overcome claimant's prima facie case of reasonableness. Defendants were held liable for the balance and they were ordered to reimburse claimant for the sum. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JASON A. MEHMEN, Claimant, File Nos. 947408/970240 vs. A P P E A L DAYCO PRODUCTS, INC., D E C I S I O N Employer, Self-Insured, Defendant. ____________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. ISSUES The issue on appeal is: The extent of claimant's industrial disability resulting from his April 16, 1990 or his December 11, 1990 injury. FINDINGS OF FACT The findings of fact contained in the proposed agency decision filed June 28, 1993 are adopted as set forth below. Segments designated by asterisks (*****) indicate portions of the language from the proposed agency decision that have been intentionally deleted and do not form a part of this final agency decision. Segments designated by brackets ([ ]) indicate language that is in addition to the language of the proposed agency decision. [Claimant was born on September 8, 1968.] Claimant worked for Dayco from January 1989 until February 1991. Claimant started operating a deburring machine and later moved to CNC lathe operation. All of this work required heavy manual labor at times. Claimant quit in February 1991 as he felt that he could no longer perform this work and started attending a vocational school in aviation mechanics. Although he is not currently attending school, he is planning on returning to complete his certification as an aviation mechanic. Claimant has been working Page 2 summers as a carpenter performing normal carpentry duties including heavy labor and heavy lifting from time to time. The injury on April 16, 1990 occurred while lifting a barrel of metal chips. Claimant felt a pop and the onset of pain in the right shoulder. When conservative initial treatment from Raul Ruiz, M.D., failed to alleviate symptoms of pain and numbness, claimant received surgery from Scott Neff, D.O., an orthopedic surgeon, in July 1990 upon a diagnosis of impingement syndrome, subsacromial bursitis, subclavicular spurring and rotator cuff tendonitis. [On July 5, 1990 Dr. Neff performed excision of coracoacromial ligament with subacromial bursectomy, anterior and inferior acromioplasty, exploration of rotator cuff, and Mumford excision of the distal clavicle. (Ex. 15, page 16)] Claimant returned to work on November 18, 1990 performing his lathe job with temporary restrictions on lifting at or above shoulder level. Claimant reinjured the right shoulder in December 1990 when he was tightening a part on a lathe. Although his pain increased briefly for a while after this injury, he returned to the same condition as before the December 1990 injury within a week or two. ***** [On November 12, 1990 Dr. Neff wrote that he did not believe claimant had any significant impairment in the right upper extremity. At that time Dr. Neff recommended a restriction from repetitious work at and above shoulder height for a period of one month following resumption of work. (Ex. 19, page 21) On January 25, 1991 Dr. Neff recommended a restriction of not more than twenty pounds at or above shoulder height for a period of time. (Ex. 21, p. 23) On February 4, 1991 Dr. Neff wrote that claimant had done very well and "based on essentially almost normal motion, he will have a 5 percent impairment to his upper extremity." (Ex. 22, p. 24) On August 3, 1992 claimant was evaluated by Martin S. Rosenfeld, D.O. On that same date Dr. Rosenfeld wrote: On examination he has essentially full motion of the shoulder. He does have some perceptible abductor power weakness at the right shoulder vs. the left. He does have a small defect where the distal clavicle was excised as expected. No films are available at this time, but due to his satisfactory result, I feel that he has a five (5%) percent permanent physical impairment to the right upper extremity as a result of his injury. This could be construed to be five (5%) percent to the body as a whole since the surgery was carried out medial to the distal end of the clavicle. ... He is working without restrictions and I doubt that there would be any reason to put restrictions on him. (Ex. 24, page 26)] ***** Claimant stated that he could not continue in his machinist work at Dayco because of his shoulder problems but Page 3 he should be able to perform the aircraft maintenance work. He was able to perform heavy work as a carpenter during summer work but he stated that he did experience pain in doing so. ***** [Claimant was earning approximately $9.00 per hour at the time of his December 1990 injury. (Tr., p. 43) Claimant's subsequent earnings are approximately $5.50 per hour during the summers when he was not attending school. (Tr., p. 39)] CONCLUSIONS OF LAW The issue to be resolved is the extent of claimant's industrial disability. Claimant has had two injuries, one on April 16, 1990 and one on December 11, 1090. The injury on April 16, 1990 did not resolve after conservative treatment and eventually required surgery. It is clear from the opinions of both Dr. Neff and Dr. Rosenfeld that claimant's permanent disability resulted from claimant's April 16, 1990 injury and resulting surgery. Claimant was able to return to work shortly after his December 11, 1990 injury and has not had medical treatment for the December 11, 1990 injury. The December 11, 1990 injury was a temporary aggravation of his shoulder condition. Claimant's permanent disability is a result of his April 16, 1990 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, experience 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 Page 4 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 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. Iowa Code section 85.34. Claimant was 21 years old at the time of his April 19, 1990 injury. That injury has resulted in a five percent impairment of the right upper extremity. Claimant had surgery as a result of the injury. That surgery has proved to be successful. Claimant has no permanent work restrictions. He has nearly normal range of motion in his shoulder. Claimant has shown an aptitude and ability for retraining as evidenced by his post-high school study and aircraft maintenance training school. Claimant's past employment primarily consists of heavy manual labor in manufacturing. Claimant has had a loss of earnings but his subsequent employment has been limited to summer jobs while attending school. When all relevant factors are considered claimant has suffered a ten percent loss of earnings capacity (industrial disability) as a result of the April 19, 1990 work injury. WHEREFORE, the decision of the deputy is affirmed and modified. ORDER THEREFORE, it is ordered: That defendant is to pay unto claimant fifty (50) weeks of permanent partial disability benefits at the rate of one hundred sixty-eight and 97/100 dollars ($168.97) per week from November 18, 1990. That defendant shall pay accrued weekly benefits in a lump sum. Page 5 That defendant is to be given credit for benefits previously paid. That defendant shall pay interest on unpaid weekly benefits awarded herein as set forth in Iowa Code section 85.30. That defendant shall pay the costs of this matter including transcription of the hearing and shall reimburse claimant for the filing fee if previously paid by claimant. That defendant shall file claim activity reports as required by this agency pursuant to rule 343 IAC 3.1(2). Signed and filed this ____ day of December, 1993. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Page 6 Copies To: Mr. Robert W. Pratt Attorney at Law 6959 University Avenue Des Moines, Iowa 50311 Mr. Stephen W. Spencer Mr. Timothy W. Wegman Attorneys at Law P.O. Box 9130 Des Moines, Iowa 50306-9130 5-1803 Filed December 20, 1993 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JASON A. MEHMEN, Claimant, File Nos. 947408/970240 vs. A P P E A L DAYCO PRODUCTS, INC., D E C I S I O N Employer, Self-Insured, Defendant. ____________________________________________________________ 5-1803 Claimant was 21 years old at time of injury. As a result of the injury claimant had surgery and a five percent impairment of the upper extremity. Claimant had no work restrictions. Claimant had shown an ability for post high school education. Claimant had an industrial disability of ten percent. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : JASON A. MEHMEN, : : File Nos. 947408 Claimant, : 970240 : vs. : A R B I T R A T I O N : DAYCO PRODUCTS, INC., : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ____________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Jason A. Mehmen, claimant, against Dayco Products, Inc., employer, hereinafter referred to as Dayco, a self-insured defendant, for workers' compensation benefits as a result of alleged injuries on April 16, 1990 and December 11, 1990. On May 4, 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 were 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 received the injuries alleged in the petitions herein both of which arose out of and in the course of employment with Dayco. 2. Claimant is not seeking additional temporary total or healing period benefits. 3. At the time of both injuries herein, claimant was single and entitled to one exemption. 4. Medical benefits are not in dispute. ISSUE The only issue submitted by the parties for determination in this proceeding is the extent of claimant's entitlement to permanent disability benefits. Page 2 FINDINGS OF FACT Having heard the testimony and considered all of the evidence, the deputy industrial commissioner finds as follows: A credibility finding is unnecessary to this decision as defendant did not place claimant's credibility at issue during the hearing. Claimant worked for Dayco from January 1989 until February, 1991. Claimant started operating a deburring machine and later moved to CNC lathe operation. All of this work required heavy manual labor at times. Claimant quit in February 1991 as he felt that he could no longer perform this work and started attending a vocational school in aviation mechanics. Although he is not currently attending school, he is planning on returning to complete his certification as an aviation mechanic. Claimant has been working summers as a carpenter performing normal carpentry duties including heavy labor and heavy lifting from time to time. The injury on April 16, 1990 occurred while lifting a barrel of metal chips. Claimant felt a pop and the onset of pain in the right shoulder. When conservative initial treatment from Raul Ruiz, M.D., failed to alleviate symptoms of pain and numbness, claimant received surgery from Scott Neff, D.O., an orthopedic surgeon, in July 1990 upon a diagnosis of impingement syndrome, subsacromial bursitis, subclavicular spurring and rotator cuff tendonitis. Claimant returned to work on November 18, 1990 performing his lathe job with temporary restrictions on lifting at or above shoulder level. Claimant reinjured the right shoulder in December 1990 when he was tightening a part on a lathe. Although his pain increased briefly for a while after this injury, he returned to the same condition as before the December 1990 injury within a week or two. Claimant previously injured his right shoulder in October 1989 at Dayco while tightening a jaw on his CNA lathe. Claimant received treatment for this condition and was off work for a week. He had intermittent pain in the shoulder after that time. However, according to claimant, the pain became worse and chronic only after the April 1990 injury. The work injury of April 16, 1990 is found to be a cause of a 5 percent permanent impairment to the body as a whole. The injury of December 1990 did not add to this impairment. Any apportionment based upon the prior to subsequent injury would be improper as all injuries occurred during employment at Dayco. Claimant has no formal work Page 3 restrictions at present and is able to perform limited heavy work. However, claimant stated that he could not continue in his machinist work at Dayco because of his shoulder problems but he should be able to perform the aircraft maintenance work. He was able to perform heavy work as a carpenter during summer work but he stated that he did experience pain in doing so. Due to the work injury, claimant cannot return to repetitive heavy factory work. However, claimant is young at age 24. If he completes aircraft training school he could earn substantial similar wages to the wages he received at Dayco. However, he had not as yet completed this training. Claimant has a high school education and three semesters at Elsworth Community College studying conservation. Claimant's past employment primarily consists of heavy manual labor in manufacturing. From examination of all of the factors of industrial disability, it is found that the work injury of April 16, 1990 was a cause of a 20 percent loss of earning capacity. The subsequent injury was not a cause of permanent disability. From exhibit 25, it is found that claimant's gross weekly earnings during the 13 representative weeks prior to the injury of April 16, 1990 was $273.41. CONCLUSIONS OF LAW As the claimant has shown that the work injury of April 16, 1990 was a cause of 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 Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A physical impairment or restriction on work activity may or may not result in such a loss of earning capacity. 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 Page 4 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. (Appeal Decision, Feb. 28, 1985). In the case sub judice, it was found that claimant suffered a 20 percent loss of his earning capacity as a result of the work injury. Such a finding entitles claimant to 100 weeks of permanent partial disability benefits as a matter of law under Iowa Code section 85.34(2)(u) which is 20 percent of 500 weeks, the maximum allowable number of weeks for an injury to the body as a whole in that subsection. Apportionment of disability between a preexisting condition or injury and the injury at bar is proper only in those situations where a prior injury or illness "unrelated to employment" independently produces some ascertainable portion of the ultimate disability. Tussing v George A Hormel & Co., 461 N.W.2d 450 (Iowa 1990), Varied Enterprises, Inc. v Sumner, 353 N.W.2d 407 (Iowa 1984). Prior existing impairment does not mandate a finding of loss of earning capacity when there has been no lost earnings or employment. See Bearce v FMC Corp, 465 N.W.2d 531 (Iowa 1991). The parties dispute as to rate of compensation centers around the calculation of her gross wages. As claimant's hours varied greatly from week to week, the previous 13 weeks must be utilized to calculate the rate. However, this agency has consistently held that in weeks which contain absences due to illness, vacation or other causes are not representative weeks and should be excluded from the calculation. Lewis v Aalf's Mfg. Co. I Iowa Indus. Comm'r Rep. 206 (Appeal Dec. 1980). In this case, it was found claimant's gross weekly earnings were $273.41 at the time of the injury producing permanent disability. Given the stipulation as to marital status and exemptions, claimant's rate of weekly compensation according to the industrial commissioner published rate booklet for an injury during FY 90 is $168.97. ORDER 1. Defendant shall pay to claimant one hundred (100) weeks of permanent partial disability benefits at a rate of one hundred sixty-eight and 97/100 dollars ($168.9)7 per week from November 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 Page 5 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 June, 1993. ______________________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Robert W Pratt Attorney at Law 6959 University Ave Des Moines IA 50311-1540 Mr Stephen W Spencer Mr Timothy W Wegman Attorneys at Law 405 6th Ave Ste 700 P O Box 9130 Des Moines IA 50306-9130 5-1803 Filed June 28, 1993 Larry P. Walshire BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : JASON A. MEHMEN, : : File Nos. 947408 Claimant, : 970240 : vs. : A R B I T R A T I O N : DAYCO PRODUCTS, INC., : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ____________________________________________________________ 5-1803 Non-precedential, extent of disability case. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : SHAWN T. WORTON, : : Claimant, : : vs. : : File No. 947422 RON BUYSEE DODGE, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : WEST BEND MUTUAL, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Shawn T. Worton, against his former employer, Ron Buysee Dodge, and its insurance carrier, based upon an injury that occurred on April 16, 1990, when Worton slipped and fell at his place of employment. The primary issue in this case is determination of whether that injury proximately caused Shawn's continuing back problems, particularly those which commenced on or about October 1, 1990. Shawn seeks to recover weekly compensation for healing period, permanent partial disability, payment of medical expenses and costs. The case was heard and fully submitted at Davenport, Iowa, on March 25, 1992. The evidence consists of testimony from Shawn Worton and David Cozad. The record also contains exhibits 1 through 25 and 27 through 33. FINDINGS OF FACT Having considered all of the evidence received, together with the appearance and demeanor of the witnesses, the following findings of fact are made: Shawn Worton is a 28 year old married man with two children who had traditionally worked in the auto body repair field. While employed at Ron Buysee Dodge on April 16, 1990, he slipped on a wet floor and fell, landing primarily on his right buttock and injuring his low back and neck. Shawn sought treatment from J. Albert DeBlois, M.D. Claimant was treated conservatively, remained off work approximately two days and resumed his employment without any particular medically imposed activity restrictions. Shawn's symptoms improved notably following the injury. He was able to perform his work without any difficulty being apparent to David Cozad, one of Shawn's supervisors. In August of 1990, Shawn's back was bothering him and Page 2 he sought treatment from Mary Jo Delsman, D.C. He was treated on August 18 and 25, 1990. Shawn returned to Dr. Delsman on October 1, 1990, with acute low back pain, demonstrating antalgic posture. Shawn reported that he had bent over on September 30 and felt a pop in his back. The notes also indicate that Shawn reported to Dr. Delsman that his back had not been completely right since he fell at work on April 16, 1990 (Exhibit 14). Shawn was taken off work by Dr. Delsman (Ex. 9) and engaged in a course of treatment from Dr. Delsman running through January 31, 1991 (Ex. 6). Dr. Delsman reported that the condition for which she treated Shawn was due to the fall of April 16, 1990, an injury from which he did not completely heal (Ex. 14). On October 18, 1990, Shawn returned to Dr. DeBlois who found his condition to be similar to that which had existed in April. Dr. DeBlois expressed the opinion that the back problem was directly related to the April 16, 1990 work injury (Ex. 19). On October 10, 1990, Shawn was examined by neurologist Michael H. Laws, M.D. Dr. Laws formed the impression that Shawn had a lumbar radiculopathy at the L5 level of his spine and recommended treatment in the nature of therapy and medication (Exs. 22 and 23). A CT scan showed an osteophyte at the L5 level on the right side of Shawn's spine which provided an approximate 50 percent stenosis of the neural foramina (Ex. 23; Ex. 28, pp. 3, 47 and 90). A myelogram was also conducted which showed a bulging disc of doubtful significance and which also again showed the osteophyte which the radiologist concluded might be the cause of a right L5 radiculopathy (Ex. 28, pp. 25 and 89). The report goes on to indicate that the osteophyte is probably related to degenerative changes of claimant's facet joints. An EMG test was conducted which was interpreted as being normal (Ex. 28, pp. 48 and 49). Despite the normal EMG report Dr. Laws continued to feel that claimant had a radiculopathy (Ex. 27, p. 9). Dr. Laws was also of the opinion that the October incident was related to the fall which Shawn had experienced earlier in the month of April 1990 (Ex. 27, pp. 14 and 15). Shawn was referred to neurosurgeon Richard A. Roski, M.D. Dr. Roski explained in his deposition that a normal EMG test does not absolutely rule out the existence of a radiculopathy (Ex. 31, pp. 8 and 9). Dr. Roski also explained that the October incident evoked most of claimant's symptoms and could exacerbate any type of underlying back problem (Ex. 31, pp. 12 and 13). Dr. Roski was unable to state whether or not claimant's degenerative condition which had been observed by the diagnostic tests had preexisted the April 1990 fall or whether it might have developed since that April 1990 fall (Ex. 31, p. 11). Shawn was also evaluated by John S. Koch, M.D., a Cedar Rapids orthopedic surgeon. Dr. Koch in his report stated: "I do not feel the injury of April, 1990 was the basis for Page 3 this as the immediate following difficulty course of activity was not consistent with any significant injury having occurred in April." The various physicians have provided a number of different impairment ratings. Dr. Roski has recommended activity restrictions which in general consist of avoiding repetitive bending, awkward positions or lifting more than 20 pounds. The only physiology abnormality shown by any of the diagnostic tests which could provide an anatomical basis for Shawn's complaints is the osteophyte on the right side at the L5 level of his spine. The only suggested origin or cause of that osteophyte is found in a radiology report where it is suggested that it is probably related to degenerative changes of the facet joints (Ex. 28, pp. 25 and 89). Dr. Roski agreed that the osteophyte was probably related to degenerative changes of the facet joints (Ex. 31, p. 9). Dr. Roski indicated in his deposition that if claimant's symptoms were the same in April as they were in October, then the October incident was an exacerbation or reinjury of the same problem (Ex. 30, p. 15). It is clear from the evidence and the course of Shawn's symptoms that the October incident had a much greater immediate impact on him than did the April incident. The October symptoms were much more severe. Shawn denied having any notable prior back problems and he appeared to be a credible witness, as did David Cozad. The record provides nothing to contradict Shawn's denial of back problems prior to April 16, 1990. The greater weight of the evidence in this case is that Shawn Worton has a degenerative condition in his spine which has produced an osteophyte which encroaches the neural foramina. The evidence suggests that the radiculopathy which Dr. Laws has diagnosed and which has not been disproven by diagnostic tests is a result of the degenerative condition. There is nothing in the record of the case which suggests a cause for that degenerative condition. If Shawn had the degenerative condition prior to April 16, 1990, it is something which would be quite susceptible to being aggravate or exacerbated by a fall. It is a condition which would likewise be susceptible to exacerbation or aggravation by an activity such as bending forward or any other activity which might place stress on his low back. Any such aggravation could be either temporary or permanent. There is no expert opinion testimony in the record of this case which relates the degenerative condition, or any part of it, to the April 16, 1990 fall. It is found that Shawn's symptoms did not completely resolve over the summer of 1990 but that he did experience a great degree of recovery from the symptoms which were initially present after he fell on April 16, 1990. It is also found that the residual symptoms during the summer of Page 4 1990 were not sufficiently severe to prevent him from performing his work in his customary fashion or to be observed or noticed by a casual observer such as David Cozad. Those symptoms were not disabling and did not prevent Shawn from performing his normal work in his customary manner. The record in this case certainly shows it to be possible that the fall of April 16, 1990 produced some permanent change in claimant's spine. The evidence, however, does not reach the level of showing that possibility to be a probability. It is equally possible that the April incident was merely one of a series of three incidents which aggravated an underlying degenerative condition. The first two, namely, April and August, provided reasonably prompt recovery while the third, September 30 or October 1, provided continuing symptoms. It was the third which led Shawn to seek aggressive medical care. The evidence which is present in the record of this case, does not establish that the April 16, 1990 fall was probably a substantial factor in producing the disability which afflicted Shawn Worton commencing September 30 or October 1, 1990, or of producing any residual permanent impairment, permanent limitations on his physical abilities, permanent disability or temporary disability beyond the initial two days he was off work. CONCLUSIONS OF LAW 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). 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 foril 16, 1990 fall in some way caused the disability which followed the incident of September 30, 1990. From the record which has been made in this case, it is just as likely that each of those events was an independent and separate aggravation of a preexisting degenerative condition as it is that the April 16, 1990 incident was a substantial factor in producing the subsequent incident. It is therefore concluded that Shawn Worton has failed to carry the burden the law imposes upon him of proving that the April 16, 1990 fall was more likely than not a substantial factor in producing the disability which has afflicted him since October 1, 1990. Claimant is therefore not entitled to any recovery in this case. ORDER IT IS THEREFORE ORDERED: That claimant take nothing from this proceeding. IT IS FURTHER ORDERED: That each party pay the costs incurred by it in participating in this proceeding. Signed and filed this ____ day of August, 1992. ________________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr John T Bribriesco Attorney at Law Page 6 2828 18th St Ste 4A Bettendorf IA 52722 Ms Vicki L Seeck Attorney at Law 600 Union Arcade Bldg Davenport IA 52801 5-1402.30 Filed August 31, 1992 Michael G. Trier BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ SHAWN T. WORTON, Claimant, vs. File No. 947822 RON BUYSEE DODGE, A R B I T R A T I O N Employer, D E C I S I O N and WEST BEND MUTUAL, Insurance Carrier, Defendants. ___________________________________________________________ 5-1402.30 Claimant's claim was denied where there was an admitted injury that occurred in April of 1990, but the onset of disability did not occur until October of 1990. The record indicated a very substantial recovery from the first injury. The second injury or onset of disability occurred following activities which did not occur at the employer's work place. Diagnostic medical testing showed an osteophyte which encroached the neural foramina and was likely responsible for his radiculopathy complaints. No medical evidence attributed that osteophyte to any injury. It was rather attributed to degeneration. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ________________________________________________________________ MARY UNDERWOOD, Claimant, File No. 947518 vs. A R B I T R A T I O N FARMLAND FOODS, D E C I S I O N Employer, Self-Insured, Defendant. ________________________________________________________________ STATEMENT OF THE CASE Claimant, Mary Underwood, has filed a petition in arbitration and seeks workers' compensation benefits from Farmland Foods, Inc., defendant self-insured employer, for an injury of March 13, 1990. The hearing was held before the undersigned on January 12, 1995 at Sioux City, Iowa. The evidence in this case consists of the testimony of claimant; Nancy Wiese, company nurse for defendant employer; Mike Mann, supervisor for defendant employer; joint exhibits 1 through 45; Claimant's exhibits 46 through 48; and defendant's exhibits A through R. The case was considered fully submitted at the close of the hearing. Defendant filed a brief at the hearing. Claimant filed a post-hearing brief on February 21, 1995. ISSUES The parties presented the following issues for resolution: 1. Whether claimant's injury of March 13, 1990 resulted in any permanent disability and, if so, whether her disability is causally connected to her work injury; 2. Whether claimant is entitled to permanent partial disability benefits; and, 3. Whether claimant is entitled to reimbursement for an independent medical examination pursuant to Iowa Code section 85.39. FINDINGS OF FACT The undersigned deputy industrial commissioner, having reviewed all of the evidence received, finds the following facts: Claimant, Mary Underwood, was 39 years old on the date of the hearing, married and the mother of two children, one of whom was still living at home on the date of the hearing. She obtained a high school diploma in 1973 and thereafter attended business school for one year. Claimant's past work history includes work as a nurse's aid, for two different nursing homes, work in the U.S. Army as a rec specialist and work as a file clerk and in a grocery store. (Joint Exhibit 1, page 2) She has worked for defendant employer continuously since April of 1981. For nine years claimant performed the job of "reel pack operator." As a reel pack operator claimant was required to place boneless hams into an automatic stuffing machine. She would first fold the hams in half then put them into the stuffing chamber and push the start cycle button. Ham to be processed in the machine came down a chute toward claimant. The ham wasn't always close enough for her to reach it so she used a rake to pull the ham pieces close enough to her so she could easily grab them. Claimant estimated that she used a rake up to 30 percent of the time she spent working on the machine. Use of the rake required claimant to bend her elbows as the meat was pulled closer to her. Occasionally, larger pieces of ham had to be cut up so they would fit in the machine. Before beginning work for defendant employer claimant had no disability of either arm. (Jt. Ex. 1, p. 3) In 1981 claimant's left index finger was amputated in a work-related accident. Claimant is left handed. (Jt. Ex. 33) In January of 1989 Claimant underwent carpal tunnel release on the right. (Jt. Ex. 9) In April of 1989 claimant underwent carpal tunnel release on the left. (Jt. Ex. 10) She settled her claim for benefits with regard her carpal tunnel problems and specifically reserved for this hearing the issue of her ulnar nerve complaints. (Claimant's Exhibits 46 and 47) Defendant stipulated that claimant sustained an injury that arose out of and in the course of her employment on March 13, 1990. On March 13, 1990, claimant saw Mary Franklin-Paulus, M.D., and voiced complaints of intermittent tingling, pain and numbness both hands up to her elbows as well as pressure sensation in the fingertips. Dr. Franklin-Paulus' impression was tingling hands. (Jt. Ex. 13, p. 3) Nerve conduction studies showed mild carpal tunnel syndrome on the right in the sensory fiber only. The EMG was normal. (Jt. Ex. 14) Dr. Franklin-Paulus referred claimant to Thomas P. Ferlic, M.D. On April 4, 1990 claimant saw Dr. Ferlic and complained of aching in both hands that was different from her pre-carpal tunnel surgery symptoms. He noted that she performed repetitive flexion of her elbows as part of her job. She had tenderness over the ulnar grooves bilaterally. She had point tenderness over the ulnar nerve as it entered the two heads of the flexor carpi ulnaris. Dr. Ferlic suspected ulnar nerve symptoms from repetitive flexion. He prescribed use of splints at night and the use of nonsterodial anti- inflammatories. (Jt. Ex. 24, p. 1, 2) Claimant was placed on light duty work with the restriction that she do no repetitive bending or flexion of her elbows. (Jt. Ex. 17) On a follow-up visit of April 18, 1990, Dr. Ferlic noted that she continued to have tenderness over the two head of the flexor carpi ulnaris. His impression was ulnar nerve neuritis bilaterally. Claimant was continued on nonsterodial anti-inflammatories and taken off work for two weeks. (Jt. Ex. 24, p. 2; Jt. Ex. 18) On May 2, 1990, Dr. Ferlic noted that claimant was tender in both ulnar grooves. He continued Ansaid and allowed claimant to return to light duty work. He also noted that he would speak to the employer about a job which did not involve repetitive flexion of claimant's elbows. (Jt. Ex. 24, p. 2; Jt. Ex. 19) On May 23, 1990, Dr. Ferlic thought claimant's ulnar neuritis was resolving. She was kept on light duty for another month. (Jt. Ex. 24, p. 3) On July 12, 1990, Dr. Ferlic continued claimant on light duty and noted that she had continued tenderness over the ulnar nerve. A tennis elbow band relieved symptoms of medial epicondylitis but she indicated the tingling had grown stronger. (Jt. Ex. 24, p. 3) On August 8, 1990, claimant returned to Dr. Ferlic and requested that she be allowed to return to work at her regular job and at her regular hours. Claimant continued to sporadically experience symptoms. When she returned to work claimant attempted to avoid repetitive flexion of her elbows. (Jt. Ex. 24, p.3) Claimant credibly testified that she wanted to return to regular duty work because light duty work left her in limbo. She explained that defendant employer does not have specific light duty jobs. If there was an open job that no one else was doing, claimant was placed in that job as a light duty job. The plant nurse did not have any input into work assignments. She was allowed to return to work without restriction. On August 27, 1990, claimant was able to bid into a different job packing carton on the HRI line. (Jt. Ex. 7) This job, which she still held on the day of the hearing, does not require that she perform the extensive elbow flexion required in the reel pack job. Claimant bid into this job because it was the first one that came up that did not require the extensive repetitive elbow flexions. Mike Mann, an assistant supervisor, testified that he sees claimant on a daily basis and that she is a good worker. He has never had any trouble getting her to do her work. He also agreed that her current job is less repetitive than the previous work she did on the reel pack line. He also agreed with claimant's testimony when she explained how the bidding process worked. The bidding process was the only way that claimant could move into a less repetitive job. Claimant returned to Dr. Ferlic on May 8, 1991 and was still experiencing tingling in her fingers and problems with ulnar nerve numbness. There was still some tenderness at her elbows in the cubital groove. Dr. Ferlic recommended holding off on ulnar nerve surgery. (Jt. Ex. 24, p. 4) On May 13, 1991, Dr. Ferlic assigned claimant a 5 percent impairment rating for her carpal tunnel release. He specifically stated that his "rating does not include her ulnar nerve symptomatology which she currently has and [which] has not reached its maximum medical improvement." (Jt. Ex. 25) On April 24, 1992, Pat Luse, D.C., evaluated claimant and determined that claimant had reached maximum medical improvement and that she had (per the AMA Guides to The evaluation of Permanent Impairment, Third Edition) a 10 percent impairment rating for each upper extremity due to mild entrapment of both the right and left ulnar nerves at the elbow. (Jt. Ex. 32, p. 5) He also determined that claimant would be subject to recurrent problems in the area of both upper extremities depending upon the environmental activities she performed. In his opinion claimant would be restricted from repetitive motion work with either upper extremity. (Jt. Ex. 32, p. 6) Dr. Luse also determined that sometime in the future claimant may require surgery for both ulnar nerves. (Jt. Ex. 32, p. 8) Repeat nerve conduction studies and an EMG performed in August of 1992 revealed that there was no EMG evidence for an ulnar neuropathy. (Jt. Ex. 27, p. 2) John C. Goldner, M.D., examined claimant and reviewed her medical records for the purpose of an evaluation and on August 20, 1992 opined that claimant did not have compression of her ulnar nerves and therefore did not have ulnar neuritis. However, he did conclude that she had pain in the elbow and in the ulnar nerve distribution and it was his opinion that the pain was related to tendinitis and the repetitive use of her arms. (Jt. Ex. 28, p. 2, 3) He further concluded that claimant did not have any impairment so long as she did not have to be involved in work that required active repetitive trauma over a long period of time. (Jt. Ex. 28, p. 3) The very fact that Dr. Goldner determined that claimant would have no impairment if she limited her activity, is evidence of impairment. Without limiting her normal behavior claimant would suffer from permanent impairment. Dr. Goldner's opinion supports the conclusion that claimant has suffered permanent disability because she must limit her activities in order to avoid symptom flare-up. In his letter of December 21, 1994, Dr. Goldner again confirms that his diagnosis of tendinitis will have a decreased symptomatology if activity, or trauma, is decreased or ended. This is evidence of permanent disability when claimant must refrain from engaging in conduct in order to avoid symptom flare-up. (Jt. Ex. 29) Dr. Goldner confirmed in December of 1994 that claimant had 0 percent impairment rating, the same rating he had determined in his report of August 1992. On December 2, 1994, Frederick R. Entwistle, M.D., performed an independent medical examination of claimant. He determined that the fact that there is not a block, as noted on the nerve conduction studies, does not mean that the ulnar nerves have not been irritated and inflamed. The nerves clinically appeared to be irritated as Dr. Ferlic and Dr. Luse pointed out. Use of the elbows and forearms exacerbated claimant's problems. On examination, the claimant did have symptoms and findings consistent with bilateral ulnar neuritis. He determined that the claimant had permanent impairment bilateral impairment. Per the AMA Guides to Evaluation of Permanent Impairment, Fourth Edition, he determined that claimant had a 10 percent impairment to each upper extremity as a result of her bilateral ulnar neuritis. He also determined that her repetitive production work for defendant employer from the time she began through March 1990 caused her ulnar problems. Claimant is going to have to be careful with repetitiveuse of her forearms, wrists and elbows in the future. (Jt. Ex. 30, p. 5) Again, the fact that claimant will have to limit her activity in the future to control symptom flare-up indicates that she suffers from permanent disability. Dr. Entwistle's fee for performing the independent medical examination was $500.00 and has been paid by claimant. (Jt. Ex. 48, p. 2) Claimant traveled 312 total miles to undergo the independent medical examination. (Jt. Ex. 48, p. 1) ANALYSIS AND CONCLUSIONS OF LAW The first issue to be determined is whether claimant's work injury of March 13, 1990 resulted in any permanent disability and if so, whether the disability is causally connected to her work injury. 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). Both Drs. Luse and Entwistle clearly have determined that claimant has permanent impairment and that claimant's permanent impairment is as a result of not only her work injury but also a result of her work for defendant employer. Additional persuasive evidence of permanent impairment is found in the report of Dr. Goldner. While Dr. Goldner has determined that claimant has no permanent impairment, he has also determined that to avoid future symptoms or problems claimant should limit or avoid repetitive work. Dr. Goldner's determination that claimant should change her work activity indicates that she has suffered permanent impairment. To avoid ongoing repetitive use of her elbows claimant has switched to a job that requires less use of her elbows. It is determined that claimant has suffered permanent disability and that her permanent disability is causally connected to her work injury of March 13, 1990 and to her work for defendant employer.The next issue to be addressed is claimant's entitlement to permanent partial disability benefits. 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). It is determined that Dr. Entwistle's evaluation of claimant's actual loss of use of her upper extremities is the most reliable. Dr. Entwistle is more qualified by training and experience. His report is also the most recent which is indicative of claimant's situation at the time of the hearing. It is determined based on Dr. Entwistle's report that claimant has sustained a 10 percent loss of use, due to ulnar neuritis, of both her left and her right arm. Each 10 percent loss of the arm converts to 6 percent of the whole person based on Table 3 of the AMA Guides to the Evaluation of Permanent Impairment, Fourth Edition. Per the Combined Values Chart of the Guides, page 322, claimant's impairment to the body as a whole is 12 percent. Thus, claimant is entitled to 60 weeks of permanent partial disability. The final issue to be determined is whether claimant is entitled to reimbursement for an independent medical examination. Iowa Code section 85.39 permits an employee to be reimbursed for subsequent examination by a physician of the employee's choice where an employer-retained physician has previously evaluated "permanent disability" and the employee believes that the initial evaluation is too low. The section also permits reimbursement for reasonably necessary transportation expenses incurred and for any wage loss occasioned by the employee's attending the subsequent examination. Defendants are responsible only for reasonable fees associated with claimant's independent medical examination. Claimant has the burden of proving the reasonableness of the expenses incurred for the examination. See Schintgen v. Economy Fire & Casualty Co., File No. 855298 (App. April 26, 1991). Defendants' liability for claimant's injury must be established before defendants are obligated to reimburse claimant for independent medical examination. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). In August of 1992 Dr. Goldner, an employer retained physician, evaluated claimant and determined that she had no permanent impairment. Clearly, claimant believed that Dr. Goldner's evaluation was too low, thus, she sought an independent medical examination by Dr. Entwistle. The examination by Dr. Luse was done for another file. Claimant is not limited to one independent medical examination per employer. The other file was a different injury with a different injury date. Claimant is entitled to reimbursement for $500.00 for Dr. Entwistle's independent medical examination as well reimbursement for her mileage expense to attend the examination. ORDER THEREFORE, it is ordered: That defendant shall pay claimant sixty (60) weeks of permanent partial disability at the rate of two hundred sixty_six and 62/100 dollars ($266.62) per week commencing on April 28, 1992. That defendant shall pay accrued benefits in a lump sum and shall receive credit for benefits previously paid as set out on the hearing report. That defendant shall reimburse claimant five hundred dollars ($500.00) for the cost of the independent medical examination performed by Dr. Entwistle, plus the mileage expenses. That defendant shall pay interest on the award, as governed by Iowa Code section 85.30. That defendant shall pay the costs of this action. That defendant shall file claim activity reports as requested by the agency. Signed and filed this ____ day of April, 1995. _______________________________ TERESA K. HILLARY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Dennis M. McElwain Mr Harry H. Smith Attorneys at Law 632-640 Badgerow Bldg P O Box 1194 Sioux City IA 51102 Ms Judith Ann Higgs Attorney at Law 701 Pierce St Ste 200 P O Box 3086 Sioux City IA 51102-3086 5-1800; 5-1402.40 Filed April 20, 1995 Teresa K. Hillary BEFORE THE IOWA INDUSTRIAL COMMISSIONER ________________________________________________________________ MARY UNDERWOOD, Claimant, File No. 947518 vs. A R B I T R A T I O N FARMLAND FOODS, D E C I S I O N Employer, Self-Insured, Defendant. ________________________________________________________________ 5-1808; 5-1402.40 Claimant was determined to have permanent disability based on the statement of treating and evaluating physicians, particularly because employer evaluating physician wanted claimant to limit her future activity. Claimant determined to have 10 percent loss of use of each arm and awarded 12 percent body as a whole, or 60 weeks of permanent partial disability. Claimant was allowed reimbursement for an IME, even though she had a previous IME on a different file for different injury. The law does not restrict each claimant to only one IME per employer.