BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ ROXANNE BENEFIEL, Claimant, vs. File No. 948482 PRINCIPAL MUTUAL LIFE INSURANCE COMPANY, A P P E A L Employer, D E C I S I O N and WAUSAU INSURANCE COMPANIES, Insurance Carrier, Defendants. _________________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed August 15, 1994 is affirmed and is adopted as the final agency action in this case. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of November, 1994. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Channing L. Dutton Attorney at Law West Towers Office Complex 1200 35th Street, Suite 500 West Des Moines, Iowa 50266 Mr. Marvin E. Duckworth Attorney at Law 2700 Grand Ave., Ste 111 Des Moines, Iowa 50312 2901, 2902, 2906, 3700, 1401, 1402.40, 1803, 2206, 2209 Filed November 30, 1994 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ ROXANNE BENEFIEL, Claimant, vs. File No. 948482 PRINCIPAL MUTUAL LIFE INSURANCE COMPANY, A P P E A L Employer, D E C I S I O N and WAUSAU INSURANCE COMPANIES, Insurance Carrier, Defendants. _________________________________________________________________ 2901, 2902, 2906, 3700 The deputy excluded the deposition of claimant from evidence on his own initiative for the reason that claimant was present in the courtroom to testify on the points relevant and material to the remaining issues at the time of hearing. The deposition could be used to refresh memory or to impeach the credibility of the witness. 1401, 1402.40, 1803, 2206, 2209 It was determined that the injury, bilateral carpal tunnel and bilateral cubital tunnel was not the cause of permanent impairment, even though claimant had right and left carpal tunnel surgery and right cubital tunnel surgery. Claimant did not prove that the injury was the cause of thoracic outlet syndrome, chronic pain syndrome, myofascial pain syndrome, reflex sympathy dystrophy, or Raynaud's disease. Claimant's shoulder, neck and back complaints preceded this injury. The recurrence of these symptoms did not recur until claimant was off work and had performed no duties for employer for over six months. Likewise, it was determined that this was not an aggravation of a preexisting condition. The one doctor who called it a thoracic outlet syndrome at one time vacillated back and forth and ended up saying it was either thoracic outlet syndrome or chronic pain syndrome, but he could not determine which one. His opinion was contrary to three specialists that he had referred claimant to for an opinion on thoracic outlet syndrome one of which was the final recognized TOS specialist. The only impairment evaluator for the carpal tunnel and cubital tunnel said there was no permanent impairment. Claimant did not have an independent medical examination to controvert or rebut this opinion. The determination of no causal connection to permanent disability made moot a determination of whether the injury was to the hands, arms, or the body as a whole and claimant's entitlement to permanent disability benefits. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ ROXANNE BENEFIEL, Claimant, vs. File No. 948482 PRINCIPAL MUTUAL LIFE INSURANCE COMPANY, A R B I T R A T I O N Employer, D E C I S I O N and WAUSAU INSURANCE COMPANIES, Insurance Carrier, Defendants. ___________________________________________________________ INTRODUCTION This is a proceeding in arbitration filed by Roxanne Benefiel, claimant, against Principal Mutual Life Insurance Company, employer, and Wausau Insurance Companies, insurance carrier, defendants, for benefits as the result of an injury which occurred on February 7, 1990. A hearing was held in Des Moines, Iowa, on November 22, 1993, and the case was fully submitted at the close of the hearing. Claimant was represented by Channing L. Dutton. Defendants were represented by Marvin E. Duckworth and Tina Eick. The record consists of the testimony of Roxanne Benefiel, claimant, Marsha Ray, manager, and Doug Hanselman, vocational rehabilitation specialist, exhibit 1 minus pages 72 and 73 (Transcript page 219), exhibit 2 minus pages 110, 111, 112 (Tran. p. 225) and 114 and 115 (Tran. p. 227), exhibit 3 minus pages 120, 121, 122 (Tran. p. 229), 126, 127 (Tran. p. 230), 133, 134 (Tran. p. 231) and pages 138 through 146 (Tran. p. 232), Exhibit 4, minus page 155 (Tran. p. 233) and page 167 (Tran. p. 235), Exhibit 5, 7 and 8 (Tran. p. 240). Exhibit 6, a deposition of claimant, was excluded by the deputy for the reason that claimant was present to testify at the hearing and the deposition could be used to refresh memory or to impeach the credibility of the witness. The deputy ordered a transcript of the hearing. Defendants' attorney filed an excellent post-hearing brief. Claimant's attorney did not file a brief (Tran. pp. 211 & 212). STIPULATIONS It was stipulated that claimant sustained an injury on February 7, 1990, that arose out of and in the course of Page 2 employment with employer; that the injury was the cause of temporary disability; that claimant was entitled to and was paid temporary disability benefits for the period from April 17, 1990 through July 14, 1991 (Tran. pp. 50 & 51); that the medical expenses have all been paid; and that the rate of compensation in the event of an award is $165.18 per week. ISSUES The parties submitted the following issues for determination at the time of the hearing: Whether the injury was the cause of permanent disability. Whether claimant is entitled to permanent disability benefits, and if so, the nature and extent of benefits to which she is entitled, to include whether claimant is entitled to scheduled member benefits for an injury to a scheduled member (hand or arm) or whether claimant is entitled to industrial disability benefits for an injury to the body as a whole (shoulders, neck, back or head). FINDINGS OF FACT causal connection-permanent disability It is determined that the injury was not the cause of permanent disability and that claimant is not entitled to permanent disability benefits. In the past claimant worked for Happy Chef as a waitress, cook and hostess from January of 1980 to June of 1983. She worked for the Hotel Fort Des Moines as a waitress, cashier and bartender from October of 1983 to July of 1985. Claimant worked for Hawkeye Security Insurance Company from July of 1985 until March of 1988 handling mail, filing and micro-fisching (Ex. 3, p. 125; Ex. 4, p. 148; Tran. pp. 31-35). Claimant started to work for employer on April 25, 1988 in the commercial real estate department as a receptionist (Tran. pp. 36 & 110). There were about 225 people on the floor in that department at that time. There were six receptionists, including claimant. Claimant explained that a receptionist answered the overflow telephone calls to the underwriters and other persons on the floor. She described that this work consisted of writing down urgent messages, putting other messages on the CRT screen, preparing labels for overnight mail and stamping documents. Claimant related that there were other special projects such as putting together brochures for 801 Grand (Tran. pp. 36-44, 128 & 129). Marsha Ray, claimant's manager, testified that a receptionist answered approximately 100 to 120 calls per day (Tran. pp. 128-130 & 170). Claimant testified that by February of 1990 she had begun to experience problems in her arms, shoulders, neck Page 3 and back (Tran. pp. 44 & 45). Claimant further explained that the injury date of February 7, 1990 represented the date that employer transferred claimant to the rehabilitation department to perform lighter duties to accommodate her injury symptoms (Tran. p. 48; Ex. 4, pp. 162-166). Claimant related that as early as November of 1989 she started to experience tingling and numbness in her hands and it advanced into her neck, back and shoulders (Tran. pp. 44, 45 & 111). Claimant testified that she reported this problem to the company nurse and the nurse sent claimant to see Arnis B. Grundberg, M.D., an orthopedic surgeon, in January of 1990 (Tran. p. 46). Dr. Grundberg saw claimant on January 30, 1990. He diagnosed bilateral carpal tunnel syndrome, post operative state, with recurrence of symptoms caused by the work that she was doing for employer (Ex. 1, p. 1; Tran. pp. 51 & 52). Previously, Sinesio Misol, M.D., another orthopedic surgeon, had treated claimant for carpal tunnel syndrome in 1985 and 1987. On May 15, 1987, Dr. Misol performed both a right and a left carpal tunnel release (Ex. 1, pp. 10-18, 23 & 24; Tran. pp. 52 & 119). On March 16, 1990, Dr. Grundberg said that an EMG established a bilateral carpal tunnel and a bilateral cubital tunnel syndrome but he declined to perform surgery if claimant was not willing to change jobs (Ex. 1, p. 5; Tran. p. 52). Claimant only received injections from Dr. Grundberg (Ex. 1, pp. 1-5). On March 22, 1990, Dr. Grundberg noted that claimant was going to return to Dr. Misol for a second opinion (Ex. 1, p. 4). Claimant testified that she requested to go back to Dr. Misol (Tran. p. 52). During the course of his treatment of claimant at this time, Dr. Grundberg does not make any mention or notation whatsoever of any problems or complaints in claimant's shoulders, neck or back (Ex. 1, pp. 1-6). Claimant then saw Dr. Misol again on April 4, 1990 for numbness, tingling and pain involving both upper extremities. He recorded that she does not sleep well at night, is nervous and was thinking about requesting full disability. Dr. Misol diagnosed (1) recurrence, probably secondary to scar of bilateral carpal tunnel surgery performed three years ago, (2) mild ulnar cubital tunnel, (3) past history of suicide attempt, and (4) possible remaining psychological problems maybe even induced by anorexia nervosa (Ex. 1, p. 8). Dr. Misol noted that he advised claimant that any additional surgery would not be for the purpose of returning her to work but only to relieve her symptoms and to enable her to perform the duties of a homemaker (Ex. 1, p. 9). Dr. Misol performed another left carpal tunnel release on June 7, 1990 (Ex. 1, pp. 9 & 104; Tran. p. 51). Dr. Misol had planned to perform a right carpal tunnel and a right cubital Page 4 tunnel surgery but claimant's care was switched by the insurance carrier to Scott B. Neff, D.O., another orthopedic surgeon for another opinion (Tran. p. 53). During the course of his treatment of claimant at this time Dr. Misol makes no mention of any problems with claimant's shoulders, neck or back (Ex. 1, pp. 6-9, 20-22). Dr. Neff reported on April 23, 1990, May 16, 1990, June 11, 1990. On October 29, 1990, Dr. Neff stated that he felt that claimant had a positive Roo's sign and he recommended that claimant see C. David Smith, M.D., a board certified general surgeon, to rule out thoracic outlet syndrome prior to performing any more surgeries on the right upper extremity for carpal tunnel or cubital tunnel (Ex. 1, pp. 15-29; Tran. pp. 55 & 56). On January 16, 1991, Dr. Neff reported that Dr. Smith did not feel that claimant had a thoracic outlet syndrome (Ex. 1, p. 30). Dr. Neff then performed a right carpal tunnel revision and a right cubital tunnel release on February 14, 1991 (Ex. 1, p. 32; Tran. p. 54). The right upper extremity was healing well on February 22, 1991 (Ex. 1, p. 33). Dr. Neff proposed to perform a left carpal tunnel revision on March 29, 1991, but the surgery was cancelled because the anesthesiologist learned that claimant had a family history of malignant hyperthermia (Ex. 1, pp. 34 & 35). The anesthesiologist refused to administer a general anesthesia under outpatient surgical conditions. Mercy Hospital rules prohibited administering a general anesthesia to a patient with malignant hyperthermia under any conditions. Claimant refused a block, which is a regional anesthesia (Ex. 1, p. 36). Thus, the third left carpal tunnel surgery was never performed. On April 26, 1991, Dr. Neff reported that claimant had a poor result from the right carpal tunnel and the right cubital tunnel surgery and therefore he recommended against the planned revision of the left carpal tunnel (Ex. 1, p. 37; Tran. pp. 55 & 56). Dr. Neff said that the Roo's maneuver on that date was equivocal. During the entire period of time that claimant was treated by Dr. Neff he did not treat claimant for shoulder, neck or back pain (Ex. 1, pp. 25-42A). He did mention one time, in his letter of October 29, 1990, that claimant did complain of numbness, aching and tingling in the left hand that extended into her shoulder and neck (Ex. 1, p. 28). No other mention of shoulder, neck or back pain appears in his office notes. At the time of the history and physical on March 29, 1991, (the date of the cancelled left carpal tunnel revision surgery) Dr. Neff mentioned a limited range of motion of the right shoulder and that a Roo's maneuver for TOS was suspicious (Ex. 1, p. 58). At the time of the history and physical examination on February 14, 1991, (the date of the right carpal and cubital tunnel surgeries) Dr. Page 5 Neff made the same comment (Ex. 1, p. 41). Other than these few isolated passing comments, there was no mention of an injury to the shoulder, neck or back in Dr. Neff's records. More importantly, there was no treatment for claimant's shoulder, neck or back in Dr. Neff's office notes. Dr. Neff referred claimant to Dr. Smith to see if she had thoracic outlet syndrome and Dr. Smith said that she did not have it. Claimant was taken off work on April 18, 1990 by Dr. Misol (Ex. 1, p. 19; Tran. p. 50) even though she was paid temporary disability benefits from April 17, 1990. Claimant performed no work of any kind for employer after April 17, 1990 until July 15, 1991. Therefore, it is difficult to attribute one remark about shoulder and neck pain on October 29, 1990 to this injury which occurred on February 7, 1990. It is equally as difficult to attribute any shoulder, neck or back symptoms to claimant's employment for this employer when she had not performed any work of any kind for employer for over six months on October 29, 1990, and when Dr. Neff had not provided any specific treatment of any kind for shoulder, neck or back complaints during the course of his treatment. Moreover, after the initial bilateral carpal tunnel surgeries of Dr. Misol back on May 15, 1987, his notes show that claimant had a recurrence of her hand falling asleep on November 3, 1987 (Ex. 1, p. 12). However, claimant testified that she was "100 percent fine." after the first surgeries by Dr. Misol (Tran. p. 118). On January 8, 1988, claimant reported to Joshua Kimelman, an associate of Dr. Misol, that she had back pain without any specific history of injury or trauma. It just came on and had gotten worse. It increased with activity. Claimant also reported to Dr. Kimelman that she had radiating pain into the left arm and shoulder with weakness of the left wrist status post bilateral carpal tunnel release by Dr. Misol. Thus, claimant did have continued problems from her hands and wrists and there is documented evidence of shoulder and neck pain on January 8, 1988 (Ex. 1, p. 11). Claimant did not start to work for employer until April 25, 1988. On January 8, 1988, when claimant first mentioned head, neck and shoulder she was employed by Hawkeye Security (Ex. 4, p. 148). Dr. Kimelman said she denied depression or other problems but he found some transverse scars on her wrists secondary to a suicide attempt previously. He also mentioned that she had had a hysterectomy secondary to recurrent infections status post being raped. He noted that claimant was 5 foot 4 inches tall and weighed 100 pounds. With respect to thoracic problems, Dr. Kimelman noted on January 8, 1988, that claimant had a right rib prominence Page 6 probably indicative of mild right thoracic curve (Ex. 1, p. 11). Thus, there are early indications of both left arm and shoulder pain as well as a thoracic abnormality prior to claimant's employment by employer. Dr. Kimelman diagnosed chronic back pain, etiology unknown. He took an x-ray of the left wrist because of continued complaint of pain and this was within normal limits (Ex. 1, p. 10). On February 19, 1988, Dr. Kimelman reported that claimant continued to have back pain but that her most pressing problem was headache, neck ache and tingling and numbness and going to sleep of both hands. He said this has been a continued problem since her prior carpal tunnel releases. Claimant was still working for Hawkeye Security at this time. He referred claimant to see Michael J. Stein, D.O., a neurologist. Dr. Stein saw claimant on February 25, 1988. Dr. Stein reported that claimant told him that she has had headaches which last from 24 to 48 hours since she was a child. These are frequently associated with photophobia, phonophobia, nausea and vomiting and that she has to lie down when the headaches occur. Dr. Stein said she had a family history of headaches, which she thought were the migraine type. At the time of this examination by Dr. Stein they had persisted for approximately three or four months. She also complained of carpal tunnel symptoms which had persisted since her surgeries by Dr. Misol in 1987. He noted that the surgery did not relieve her symptoms. Dr. Stein said claimant also complained of low back pain over the last several months without definite radiation. Dr. Stein noted that claimant had received several surgeries (1) bilateral carpal tunnel surgery, (2) hysterectomy, (3) gall bladder surgery, (4) plastic surgery on her nose in 1978 and (5) three laparoseopies. Dr. Stein noted that claimant had a loss of facial expression and appeared to be depressed. He did not see any muscle wasting over her extremities nor the shoulders and neck. Dr. Stein concluded with this clinical impression: This young lady has, I feel, a migraine cephalgia along with occipital neuralgia. I can't help but wonder whether there is some sort of a tension stress component here although she denies it presently to me (Ex. 1, p. 101). An EMG was attempted on March 28, 1988 and Dr. Stein recorded that the EMG needle portion had to be stopped because claimant could not tolerate it. Median nerve conductions were normal. Her headaches still persisted (Ex. 1, p. 102). At another point in her testimony, claimant's testimony on whether Dr. Misol's 1987 bilateral carpal tunnel surgeries relieved her symptoms was equivocal. First she said she did not remember if the symptoms were relieved or not. Then she stated that she went back to work and had no problems. Then she stated yes, it did relieve the symptoms (Tran. p. 122). Page 7 Thus, it can be seen from the foregoing evidence that claimant has suffered from headaches, neck pain and back pain for a long time prior to February 7, 1990, which began prior to the date of her employment for employer on April 25, 1988, with many of her complaints, dating back to childhood. Therefore, it is determined that the injury of February 7, 1990, was not the cause of claimant's shoulder, neck and back complaints first voiced in the medical records on October 29, 1990 to Dr. Neff, some six months after she had not performed any work for employer. Claimant made no mention of shoulder, neck or back complaints to Dr. Grundberg or Dr. Misol of any kind. She did not mention anything to Dr. Neff until eight months after the injury date and six months after she had been taken off work. Even then, Dr. Neff made no specific diagnosis and performed no specific treatment for the shoulder or neck pain. He only mentions it as a passing remark in his notes. These first complaints of shoulder, neck and back pain in October of 1990 are too remote in time to be causally connected with this injury of February 7, 1990, with symptoms that first appeared in November of 1989. Nor can it be said they were aggravated by her employment for employer. The medical evidence demonstrates that shoulder, neck and back pains have been a common complaint of claimant for many years preceding this injury. Dr. Smith first saw claimant on December 11, 1990 at the request of Dr. Neff (Ex. 1, pp. 71, 74 & 57). Dr. Smith did not believe that claimant had thoracic outlet syndrome at that time and he recommended that Dr. Neff go ahead with the right carpal tunnel surgeries. At the same time he acknowledged that Dr. Grundberg had found that there was a high likelihood of recurrence even if claimant had the surgeries. Dr. Smith's letter of December 11, 1990, to the insurance carrier contains a serious error. He stated that, "In December and January of last year she developed pain in both arms, hands, shoulders, and neck which has been progressive." (Ex. 1, p. 57). This history totally conflicts with the actual records of Dr. Grundberg, Dr. Misol and Dr. Neff summarized above that show that claimant did not develop pain in her neck and shoulders in December of 1989 and January of 1990, save that the pain was progressive. On May 24, 1991, Dr. Smith wrote that, "Her findings again are not classic for thoracic outlet syndrome, and therefore I believe it would be in her best interest to seek an alternate explanation." (Ex. 1, pp. 55 & 56). However, he recommended plain films and an MRI of her neck. On June 14, 1991, Dr. Smith stated that the cervical spine film was unremarkable and the MRI showed no gross abnormalities. He said that claimant had no benefit from the scalene injection on her prior visit and it was not Page 8 repeated. Dr. Smith remarked that claimant had many findings consistent with thoracic outlet syndrome, however, he said she would not benefit from an operation for thoracic outlet syndrome. He said that he planned to treat her nonoperatively like a thoracic outlet syndrome which was bilateral. He said that claimant could return to work with restrictions of 20 pounds lifting, no repetitive work and no work with her arms elevated up high (Ex. 1, p. 54). On July 10, 1991, he changed his restrictions to 15 pounds lifting, no repetitive work and that her right arm was to be kept (immobilized) at her side. He said these are permanent restrictions (Ex. 1, p. 52). On a return to work slip also dated July 10, 1991, he said the lifting restriction was 10 pounds (Ex. 1, p. 60). It should be noted that these restrictions were because of shoulder, neck and back pain and not due to the bilateral carpal and cubital tunnel. When claimant returned to work on July 15, 1991, the receptionist job had added the duties of microfilming, faxing, filing and picking up express mail (Tran. pp. 73-77, 112 & 113). A few of the jobs, such as mail handling, inspection reports and stamping had been eliminated (Tran. p. 113). The work was within the restrictions imposed by Dr. Smith and claimant's pay had been increased both during her absence and again when she had returned to work (Tran. p. 113). Employer made accommodations in her work station to attempt to make her comfortable (Tran. p. 78). Nevertheless, claimant testified that she was miserable, she was in a lot of pain, and she could not concentrate (Tran. pp. 79 & 80). She said there was a lot of mistakes in her work (Tran. pp. 80 & 82. On August 7, 1991, Dr. Smith gave claimant another scalene injection which made her worse. Dr. Smith appeared to be puzzled. On August 7, 1991, he wrote, Mrs. Benefiel's symptoms, history, and physical exam all appear to be consistent with thoracic outlet syndrome on the right side. I am concerned about an exaggerated response to pain and the failure of the scalene block to improve her symptoms. This is not a typical finding. She may have the diagnosis; however, she may be malingering or she may have an alternate diagnosis. Since her symptoms have worsened, I recommended she avoid work for two to four weeks (Ex. 1, p. 51). On September 9, 1991, Dr. Smith ordered that claimant only work half-time but that she could work without her shoulder immobilizer (Ex. 1, p. 62). On September 20, 1991, claimant was terminated for making too many mistakes in her work (Tran. pp. 82, 83, 86 & 114). The testimony of Marsha Ray, manager, and the personnel records establish that claimant did commit more than the allowed number of significant mistakes (Ex. 4, pp. 168-174). Likewise, the personnel records, as well as the Page 9 testimony of Ray and Doug Hanselman, the vocational rehabilitation specialist, demonstrate that defendants did make a sincere attempt to accommodate claimant's physical problems (Ex. 4, pp. 156-167). Other evidence shows that claimant was less than a model employee due to a number of work interruptions due to family problem in her life at this time. Claimant was examined by Thomas W. Bower, L.P.T., on May 1, 1991 for an evaluation in terms of permanent impairment. Repeat conduction studies were performed on both the left and right upper extremities. Mr. Bower stated, "... Nerve conduction studies of the left and right upper extremities demonstrate normal findings for all the nerves tested, both in the left and right upper extremities. Therefore, we find no persistent demyelinating changes that are occurring." (Ex. 1, p. 106M). Mr. Bower concluded, "Therefore, in conclusion, I find that the patient has sustained no impairment on the basis of the median and ulnar nerve problems at the present time." (Ex. 1, p. 106N). This latest finding revoked an earlier determination of Mr. Bower that claimant had sustained a 2 percent impairment of the left hand due to left median palmar latency (Ex. 1, p. 106Q). Mr. Bower explained in his deposition given on October 21, 1993, that it was not unusual to repeat a study and find normal results after a period of time had gone by (Ex. 7, p. 7). Mr. Bower testified that he did not place any restrictions on claimant's future work activity (Ex. 7, p. 9). Mr. Bower added that typically a person with thoracic outlet is going to experience tingling paresthesia in their hands when they are above shoulder height. However, he noticed that claimant was experiencing these symptoms with her hands down at her side (Ex. 7, p. 8 & 14). There is no evidence that claimant requested or obtained an independent medical examination that would controvert, contradict, rebut or refute Mr. Bower's evaluation of no permanent impairment. Claimant found employment on October 8, 1991, with Burger King and performed several repetitive jobs with her hands and arms. Claimant admitted that her employment with Burger King required the repetitive use of her hands and arms (Tran. pp. 86-93, 105 & 106). The Burger King work also involved lifting anywhere from a few pounds to 50 pounds (Tran. pp. 106-109). Her primary employment for Burger King was preparing food for breakfasts and lunches (Tran. pp. 109 & 110). Claimant worked for Burger King for approximately two years. On August 23, 1993, claimant began working for DZ Manufacturing performing repetitive work with her hands and arms. This was production assembly line type of work packaging and labeling bug shields and contours with mandatory overtime (Tran. pp. 94-97 & 102). Claimant admitted that this job requires repetitive use of her hands, Page 10 wrists and shoulders and that she is able to concentrate on the job (Tran. p. 103). Claimant had lost no time from work since beginning this employment and was just a few days away from completing her first 90 days at which time she would be eligible for employee benefits. Claimant was not receiving medical treatment at the time of the hearing (Tran. p. 114). Claimant voiced several complaints of pain and disability at the time of the hearing but most of them both predated and postdated this injury of February 7, 1990. They are chronic in nature. It cannot be said that these apparently chronic conditions were aggravated by this injury for the reason that the shoulder, neck and head complaints did not recur until about one-half a year or more after claimant discontinued hand and arm work with employer when she was off work from April 17, 1990 to July 15, 1991 (Tran. pp. 98-124). It is determined that claimant did not establish that this injury of February 7, 1990 was the cause of thoracic outlet syndrome nor was it the cause of myofascial pain syndrome nor was it the cause of a chronic pain syndrome. At the request of Dr. Smith, claimant was examined by Todd C. Troll, M.D., a physical medicine and rehabilitation doctor, on September 16, 1991 (Ex. 1, p. 70). His impression was chronic bilateral upper extremity and neck pain. He found that her neck pain was diffuse and her upper extremities were sensitive to any touch. Dr. Troll concluded, "I feel the patient has chronic pain syndrome. I do not think that she has thoracic outlet syndrome." (Ex. 1, p. 86). Dr. Troll did not attribute this chronic pain syndrome to this injury. Nor did Dr. Troll find any physical basis for it (Ex. 1, pp. 85 & 87). Claimant was also examined by Dana Simon, M.D., at the Mercy Hospital Nerve Block Center. Dr. Simon did not believe that claimant had thoracic outlet syndrome because claimant did not respond to scalene injections and the MRI of the cervical spine was unremarkable. Dr. Simon related that claimant had a history of intolerance for aspirin and Tylenol because her stomach was denuded. A prior gastroscopy was recommended by her personal physician. He said claimant previously weighed 35 pounds but was up to 107.7 pounds but looks rather gaunt, if not thin (Ex. 1, p. 92). Dr. Simon said that claimant was suffering from a constitutional problem that he more specifically defined as a chronic pain syndrome. He testified that claimant was out of a job, but other evidence indicates that claimant was working at Burger King at this time. Dr. Simon did not say that any of claimant's problems were caused by the injury of February 7, 1990. Nor did he say that they were caused by the carpal tunnel syndrome of February 7, 1990. Dr. Simon said claimant had constitutional problems rather than specific problems in her neck and shoulders. He recommended extensive physical therapy. He said there was no derangement in either her Page 11 muscles or bones that would prevent her from performing extensive physical therapy such as water therapy or hydro therapy. He recommended against injections because they could aggravate her problem. Furthermore, he found no active trigger points that could be injected. Claimant returned to see Dr. Simon on December 30, 1991 and he stated, "Once again, I do not find anything significant in terms of reflex sympathetic dystrophy or myofascial pain in the past exam. ... It is not felt, generally speaking, that she has thoracic outlet syndrome as I mentioned above." (Ex. 1, pp. 91-95). Thus, Dr. Simon did not causally relate any of claimant's problems to the injury of February 7, 1990, or to the carpal tunnel syndrome that was stipulated to have occurred on that date. Dr. Smith sent claimant to see Lawrence J. Rettenmaier, M.D., a rheumatologist. Dr. Rettenmaier saw claimant on April 7, 1992, November 10, 1992 and wrote a letter on September 14, 1993. On April 7, 1992, Dr. Rettenmaier said that claimant had a full range of motion of the cervical spine and shoulders, albeit some discomfort. He did not find rheumatism, arthritis or thoracic outlet syndrome. Rather he recommended a chronic pain management program which would not heal her, but would help her to live with the pain. He did not believe that she had reflex sympathetic dystrophy or Raynaud's disease. Dr. Rettenmaier commented that it was work-related but he did not say what work caused it. Claimant was working for Burger King at the time of his examination and had been working there for approximately six months prior to his examination. She had also worked for Happy Chef, Hotel Fort Des Moines and Hawkeye Security in the recent past. On his April 7, 1992 report he said her current symptom complex began sometime around April of 1988. However, this date precedes this injury of February 7, 1990 by a period of two years. When claimant saw Dr. Rettenmaier on November 10, 1992, he found she had no significant change in her symptoms. He corrected his previous report by stating that her condition became more constant and developed around 1990 rather than April of 1988. He noted that claimant had a full range of motion of the cervical spine and her shoulders. His impression was complex of diffuse upper extremity pain and dysesthesias (Ex. 1, p. 77). Dr. Rettenmaier said, "... my current diagnosis would includes [sic] possible thoracic outlet bilateral, as well as elements of chronic pain syndrome." (Ex. 1, p. 78). Dr. Rettenmaier said that the diagnosis of thoracic outlet syndrome was a very controversial one. Again, he said it was related to repetitive activities at work but he did not say what work he was referring to. Claimant was still performing the repetitive hand and arm work at Burger King at the time of his evaluation and had been employed there for over a year at this time. He thought that thoracic outlet syndrome surgery would be risky and unpredictable and that it might not be in her best interest. Page 12 He said that he has not been doing impairment ratings but referred them to a physiatrist (Ex. 1, pp. 76-79). On April 7, 1992, Dr. Rettenmaier stated, "I certainly do not consider myself experienced or an expert in thoracic outlet." (Ex. 1, p. 82). On September 14, 1993, Dr. Rettenmaier wrote to claimant's attorney that he did not believe that claimant had a classic thoracic outlet but there was an element of chronic pain and he would diagnosis that. He stated that he was not seeing claimant in 1987 and 1988 and that he could not make an accurate assessment of whether this condition was similar in origin to her condition at that time or not (Ex. 1, p. 75). On March 18, 1992, Dr. Smith changed his diagnosis to thoracic outlet syndrome. This was after he had been seeing her for over a year and this diagnosis was contrary to Dr. Troll, Dr. Simon and Dr. Rettenmaier that he referred her to. On April 15, 1992, he noted that claimant had what appeared to be a histrionic personality and that surgical intervention for thoracic outlet syndrome might not be in her best interest at that time. He further noted that claimant failed to respond to the scalene block and that she did not want thoracic outlet surgery. Later on June 15, 1992 and July 29, 1992, Dr. Smith said claimant did get relief from scalene injections. On January 16, 1992, he told Job Service of Iowa that claimant had bilateral thoracic outlet syndrome from January of 1990 until January of 1992 (Ex. 1, p. 61). On May 20, 1992, Dr. Smith said claimant had an overlap of thoracic outlet syndrome and chronic pain syndrome. He said that the onset of pain began when she was working for employer and therefore he believed that her complaints were work-related. This is a repeat of his earlier erroneous history. The medical records show that claimant had shoulder, neck and back symptoms along with her upper extremities complaints as far back as 1988 with Dr. Kimelman. A causal connection opinion based upon erroneous facts is not a reliable statement of causal connection. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945). On June 17, 1992, Dr. Smith continued to think that claimant's symptoms were consistent with thoracic outlet syndrome. However, he recommended against surgery because of her attitude and a certain amount of anger (Ex. 1, pp. 45 & 46). On December 30, 1992, Dr. Smith said that for medicolegal reasons his malpractice carrier requested, as of October of 1992, that he discontinue this high risk surgery. Therefore, he asked that claimant be evaluated by Douglas W. Massop, M.D., a vascular surgeon (Ex. 8, p. 9 & 29). Page 13 Claimant saw Dr. Massop on January 8, 1993, for evaluation of thoracic outlet syndrome. He gave a very definitive report to Dr. Smith in which he stated, As you know, she represents a challenging history. The diffuse numbness is somewhat nondescript. It appears to involve mainly the shoulder girdle area. She has no objective or subjective evidence of weakness. On further exam, I find no evidence of objective compression of the thoracic outlet. That is to say, Adson's maneuvers and Roos' maneuvers are normal, and there is no obliteration of the radial pulse on either side. After discussion with you and finding out that the MRI of her cervical spine, the EMG's, and plain films are all normal, I am somewhat reluctant to attempt an operative procedure on this young lady. I am somewhat uncertain as to what her diagnosis at this time is. However, I do not feel that she suffers from significant thoracic outlet syndrome, and therefore, should not be operated on (Ex. 1, p. 106). Dr. Massop was equally as unequivocal in an office note dated January 28, 1993, 1/28/93: I called Roxanne today at work and discussed findings of results obtained from Dr. C. David Smith. I feel that she would not benefit from a thoracic outlet type procedure. Her symptoms are quite vague, and the numbness that she experiences is not particularly classic for thoracic compression. Adson's maneuver demonstrates no obliteration of the pulse. There is some tingling associated with provocative maneuvers. However, no specific findings are present. Her EMG was entirely normal. F-wave studies, I am told, are normal. I have asked her to follow up with Dr. Smith if further questions arise. DWM (Ex. 106T). On February 1, 1993, Dr. Smith wrote to claimant as follows, I received a letter from Doctor Massop dated January 8 after your visit with him. It did not surprise me to learn that he was unwilling to operate on you and that he did not feel you had thoracic outlet syndrome. I have told you in the past that your diagnosis fits criteria minimally. The criteria I use I don't believe he employs (Ex. 1, p. 43). Dr. Smith gave a deposition on November 12, 1993, just a few days prior to hearing (Ex. 8, p. 5). At that time he said that claimant had either thoracic outlet syndrome or Page 14 chronic pain syndrome but he could not determine which one (Ex. 8, p. 5). He said that thoracic outlet syndrome typically would follow an automobile accident and that since claimant did not have an automobile accident he wondered if it was not myofascial pain syndrome or chronic pain syndrome (Ex. 8, p. 6). Dr. Smith agreed with defense counsel that he did not document any loss of range of motion in claimant's neck until September of 1991 (Ex. 8, p. 16). He further admitted that claimant's symptoms did not meet the clinical criteria for thoracic outlet syndrome (Ex. 8, p. 17). He admitted that he did not detect any thoracic outlet syndrome complaints until June of 1991 (Ex. 8, pp. 21-23). Dr. Smith further admitted that in August of 1991 he said that claimant may have thoracic outlet syndrome, or she may be malingering, or she may have an alternate diagnosis (Ex. 8, p. 23). Dr. Smith said the condition appeared to be related to employment with employer (Ex. 8, p. 6). However, he admitted he had no idea of what she was doing at the time the symptoms began at her place of employment. Dr. Smith said he first considered myofascial pain syndrome in February of 1992 (Ex. 8, p. 24). However, he admitted that he did not know what activities claimant was involved in at that time. Dr. Smith admitted that he did not hold himself out as an expert in myofascial pain syndrome or chronic pain syndrome (Ex. 8, p. 28). Thus, in the final analysis it can be seen that Dr. Smith went from (1) a determination that claimant did not have thoracic outlet syndrome, to (2) a determination that claimant did have thoracic outlet syndrome, to (3) a determination that claimant had either thoracic outlet syndrome or chronic pain syndrome, but he did not know which one. Several doctors said that claimant did not have thoracic outlet syndrome. Dr. Smith still was not sure at the time of his deposition ten days prior to hearing. Wherefore, based on the foregoing evidence, it is further determined that the injury of February 7, 1990 was not the cause of thoracic outlet syndrome. None of the many physicians could definitively state that claimant had thoracic outlet syndrome. Furthermore, none of the physicians could state that her shoulder, neck and back complaints were caused by her employment for this employer on February 7, 1990, or any other date during her employment for this employer. It is further determined that the injury of February 7, 1990 was not the cause of myofascial pain syndrome or chronic pain syndrome. Claimant suffered from chronic shoulder, neck and back complaints and headaches both prior to and subsequent to this injury. None of the physicians stated that the injury of February 7, 1990, while working for this employer, was the cause of the chronic pain syndrome or myofascial syndrome. Page 15 Furthermore, based on the foregoing evidence, it is determined that the injury of February 7, 1990, which caused bilateral carpal tunnel syndrome and bilateral cubital syndrome was not the cause of permanent disability. Mr. Bower determined that claimant did not sustain any permanent impairment from her carpal tunnel and cubital tunnel surgeries. Mr. Bower's impairment rating is supported by the fact that claimant has performed repetitive work with her hands and arms since October of 1991 for Burger King and now for DZ Manufacturing. Therefore, in conclusion it is determined as a matter of fact that the injury of February 7, 1990 was not the cause of any permanent disability and therefore claimant is not entitled to any permanent disability benefits. 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 by a preponderance of the evidence that the injury of February 7, 1990 was the cause of permanent disability. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945). That claimant did not sustain the burden of proof by a preponderance of the evidence that the injury of February 7, 1990 was the cause of either thoracic outlet syndrome, chronic pain syndrome or myofascial pain syndrome. Bodish, 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl, 236 Iowa 296 18 N.W.2d 607 (1945). Based on the foregoing two conclusions of law the issue of whether claimant is entitled to any permanent disability benefits is moot. ORDER THEREFORE, IT IS ORDERED: That no money is owed by defendants to claimant. That both parties are to bear their own costs of this action, except that defendants are to pay for the attendance of the court reporter at hearing and the transcript of hearing. Rule 343 IAC 4.33 and Iowa Code sections 86.19(1) and 86.40. That defendants file claim activity reports as requested by this agency. Signed and filed this ____ day of August, 1994. Page 16 ----------------------------- WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Channing L. Dutton Attorney at Law 1200 35th Street, Suite 500 West Des Moines, IA 50266 Mr. Marvin E. Duckworth Ms. Tina M. Eick Attorneys at Law 2700 Grand Ave., Suite 111 Des Moines, IA 50312 2901, 2902, 2906, 3700, 1401, 1402.40, 1803, 2206, 2209, Filed August 15, 1994 Walter R. McManus, Jr. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ ROXANNE BENEFIEL, Claimant, vs. File No. 948482 PRINCIPAL MUTUAL LIFE INSURANCE COMPANY, A R B I T R A T I O N Employer, D E C I S I O N and WAUSAU INSURANCE COMPANIES, Insurance Carrier, Defendants. ___________________________________________________________ 2901, 2902, 2906, 3700 The deputy excluded the deposition of claimant from evidence on his own initiative for the reason that claimant was present in the courtroom to testify on the points relevant and material to the remaining issues at the time of hearing. The deposition could be used to refresh memory or to impeach the credibility of the witness. 1401, 1402.40, 1803, 2206, 2209 It was determined that the injury, bilateral carpal tunnel and bilateral cubital tunnel was not the cause of permanent impairment, even though claimant had right and left carpal tunnel surgery and right cubital tunnel surgery. Claimant did not prove that the injury was the cause of thoracic outlet syndrome, chronic pain syndrome, myofascial pain syndrome, reflex sympathy dystrophy, or Raynaud's disease. Claimant's shoulder, neck and back complaints preceded this injury. The recurrence of these symptoms did not recur until claimant was off work and had performed no duties for employer for over six months. Likewise, it was determined that this was not an aggravation of a preexisting condition. The one doctor who called it a thoracic outlet syndrome at one time vacillated back and forth and ended up saying it was either thoracic outlet syndrome or chronic pain syndrome, but he could not determine which one. His opinion was contrary to three specialists that he had referred Page 2 claimant to for an opinion on thoracic outlet syndrome one of which was the final recognized TOS specialist. The only impairment evaluator for the carpal tunnel and cubital tunnel said there was no permanent impairment. Claimant did not have an independent medical examination to controvert or rebut this opinion. The determination of no causal connection to permanent disability made moot a determination of whether the injury was to the hands, arms, or the body as a whole and claimant's entitlement to permanent disability benefits. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : LINDA SANDERSON, : : Claimant, : File Nos. 948568 : 1013377 vs. : : UNITED TECHNOLOGIES : A R B I T R A T I O N AUTOMOTIVES, : : D E C I S I O N Employer, : : and : : PACIFIC EMPLOYERS INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE These are proceedings in arbitration upon the petition of claimant, Linda Sanderson, against her employer, United Technologies, and its insurance carrier, Pacific Employers Insurance, defendants. On June 2, 1993, a hearing assignment order was filed which set these matters for a primary hearing date on January 10, 1994 at noon, at the Des Moines County Courthouse in Burlington, Iowa. At the aforesaid time and place, the undersigned deputy industrial commissioner appeared. Also present were William Bauer, attorney for claimant, and Harry Dahl, attorney for defendants, and a representative of defendant-employer. Claimant did not appear. Attorney Bauer made a professional statement on the record with respect to the efforts he had made to contact his client. He stated that: 1. Claimant's last known address was listed as 210 Dallas Road, Carthage, Illinois 62321, but that to the best of his knowledge, claimant had no telephone. 2. Attorney Bauer listed the following dates as dates when he had tried to reach claimant by letter: January 6, 1994 December 27, 1993 December 10, 1993 December 3, 1993 October 18, 1993 September 14, 1993 3. Attorney Bauer indicated the last time he had communicated with claimant was in September or October of 1993. Page 2 No witnesses testified for either party. Claimant's attorney offered claimant's exhibits 1-5. Defendants' attorney offered exhibits A-D. All of the above exhibits were admitted as part of the official record. ISSUES The issues to be determined are: For file numbered 948568: (knee claim) 1. Whether there is a causal relationship between the work injury on April 30, 1990 and any permanent disability; and, 2. Whether claimant is entitled to any permanent partial disability benefits. For file numbered 1013377: (right upper extremity) 1. Whether claimant sustained an injury which arose out of and in the course of her employment; 2. Whether there is a causal relationship between the alleged injury and any temporary or permanent disability; and, 3. Whether claimant is entitled to any healing period or permanent partial disability benefits. FINDINGS OF FACTS The undersigned deputy finds: Claimant was employed by defendant employer when she sustained a work-related injury on April 30, 1990. Claimant fell on the parking lot adjacent to her place of employment. She received medical treatment from Robert Kemp, M.D. Dr. Kemp's records for the date of the work injury revealed: This patient was seen because of a fall in the parking lot at work in which she fell and injured her right knee by direct contusion and also apparently some problems with slight twisting. However on examination her ligaments are intact. She has a contusion just interior to the patella and x-rays are negative. So this appears to be primarily a contusive affair. The patient will be treated with ice packs, 4 inch Ace bandages, crutches, rest. I will see her in 2 days. She will have to be off work, completely, and followed up accordingly. FINAL DIAGNOSIS: contusion of the right knee. (Exhibit 1-1). Dr. Kemp ordered x-rays. The x-rays were negative. Dr. Kemp continued with follow-up care. Physical therapy Page 3 was prescribed but eventually claimant was discharged from the physical therapy department. In June of 1990, claimant sought a consultation from Keith W. Riggins, M.D., an orthopedic surgeon. In his report of June 7, 1990, Dr. Riggins opined: Linda Sanderson is interviewed and evaluated on June 7, 1990. She reports a fall occurring on April 30, 1990 in the course of her employment, at which time she struck the anterior aspect of the knee against a hard surface. She has noted persistent discomfort in the anterior and posterior aspects of the knee, particularly associated with prolonged standing. No true episodes of locking or giving way are related. Examination of the right knee demonstrates range of motion to be full and complete. No effusion is present. No clinical laxity is apparent. Tenderness is apparent over the patellar articular surface and anterior retinacular structures. Previous x-ray examinations are reviewed and are within normal limits. MRI of the knee is reviewed and demonstrated grade 1 changes within the substance of the meniscus which are not felt to be of clinical significance. Diagnosis: Traumatic patellar chondromalacia, code 717.7. Recommendation: The patient is counseled regarding the nature of that condition. She may continue to work but should abstain from prolonged, standing, walking, kneeling or squatting. She is provided a prescription for Feldene, 20 mgs. daily, and counseled regarding its use and is to return for re-examination in ten days. If no improvement is noted on Feldene, MRI with trans-axial cuts through the patella to evaluate for possible sub-condylar fracture patella will be obtained. (Exhibit 2-1). Later Dr. Riggins opined in his report of July 2, 1990: Recommendation: I am unable to definitively identify a pathologic condition responsible for Mrs. Sanderson's discomfort, and must therefore, presume that it is persistent tendonitis secondary to contusion. It is recommended she not engage in activities which require squatting or kneeling on a permanent basis. No return visits are required. (Exhibit 2-4). Page 4 In August of 1990, Dr. Riggins authored a final report regarding claimant's condition. He opined: As of Ms. Sanderson's last visit to the office on July 2, 1990 I was unable to identify the presence of a rateable condition within her right lower extremity. It is recommended that if she remains symptomatic at this time, she be returned for re-examination. (Exhibit 2-5). On September 4, 1990, claimant sought treatment from Werner F. Schoenherr, M.D. Claimant complained of symptoms which were consistent with symptoms of a right carpal tunnel syndrome. (Exhibit 3-2) Dr. Schoenherr referred claimant to Walid Hafez, M.D., a neurologist. However, claimant did not keep an appointment she had with him. The evidence indicates that claimant sustained an injury to her left wrist on April 2, 1990. Throughout the course of the month, claimant received medical treatment from Dennis Coventon, D.O. Dr. Coventon diagnosed claimant's condition as "Sprain L wrist pulled muscles". The physician also indicated the injury was not related to claimant's employment. (Exhibit B-3) In her answers to interrogatories, which claimant completed on April 5, 1993, she answered under oath the following in reply to interrogatory number 13: ANSWER: On August 8, 1990, I injured my right arm while working for United Technologies Automotive through repetitive use. The Industrial Commissioner's claim number is 1013377 and is currently pending. See the answers to interrogatories produced in that file for further answer. (Exhibit C) In separate answers to interrogatories which claimant also completed on April 5, 1993, claimant wrote in reply to interrogatory number 17 that: ANSWER: There were no witnesses because my injury is a cumulative injury. However, two other women who worked the same job as I did suffered from carpal tunnel also. The name of these women are Marilyn Davis of Keokuk, and Carol Simpson of Keokuk, Iowa. (Exhibit D) On April 30, 1991, claimant completed a form, entitled, Statement of Claim, Group Accident & Sickness. On the face of the application form, claimant indicated that she had sustained a non-occupational injury. According to claimant's form, she "had flu became dizzy fell against sink Page 5 on wrist." Claimant indicated the non-work injury occurred on April 30, 1991. Claimant's attorney, in anticipation of a hearing on these matters, then referred claimant to Robert P. Randolph, M.D. Dr. Randolph examined claimant on June 5, 1991. His office notes for that date indicated in relevant portion: The third orthopaedic problem has resulted in the pt being off work for the past 6 weeks. She fell onto her right hand and was thought at one point apparently, to have had a fx of one of the carpal bones, presumeably [sic] the navicular or scaphoid bone. A bone scan was performed and apparently, according to the pt's hx, no pathologic findings were noted. It was for this injury that the pt has been off work, but she apparently prior to that had been working in some capacity throughout the course of her problem with the right knee. In fact, dating back essentially to her original injury. The pt is 180#, 5'2" tall and again, her pain and crepitance is localized to the right knee, but more appropriately localized to the lateral ligamentus complex and iliotibial band above the joint line, not specifically pointing in the direction of significant internal derangement. E: Pt's right lower extremity exam included exam of the knee where she found to have a slightly increased Q angle and somewhat increased mobility with passive medial and lateral subluxation of the patella, but no patellofemoral compression tenderness. She had mild tenderness to joint line laterally and superiorly along the iliotibial tract, not specifically at G____ tubricle. Knee ROM wsa [sic] from full extension to 125o of flexion. She had no medial joint line tenderness. There was no crepitance, locking and stable knee ligaments were noted with various and valgus stress testing in extension and 30o of flexion as well as with anterior drawer and Lachiman test. .... Given the fact that the pt's diagnostic studies including radiographs, MRI and ED studies and bone scan were all not presented for review, it would [be] inappropriate to make a final determination as to my assessment to the pt's etiology for her right knee pain. In all likelihood, the pt's symptomatic right wrist is secondary to carpal tunnel syndrome, however, much improved and certainly on the basis of her clinical presentation at this time, not warranting additional tx including surgical release of the volar carpal ligament. In my view, based on purely the hx and exam Page 6 findings today, the pt's right knee pain is not clearly intra-articular, but rather more strongly suggestive of a tendinitis in the lateral capsular structures, secondary restraints including iliotibial band. She did not have any presenting signs or symptoms that would be strongly suggestive of a torn meniscus or ligamentus damage to the knee. The pt, by way of further hx, suggested that she may have had some degenerative change noted radiographically, and certainly may be some pathologic findings with respect to the articular cartilage and meniscal structures within the knee that might warrant surgical intervention, specifically arthroscopic surgery. Arthroscopic surgery was discussed, but not specifically as a therapeutic procedure, but given the pt's lengthy saga of pain, arthoscopic surgery certainly would add a dimention [sic] of additional diagnostic information and might be warranted on that basis. (Exhibit 4-1, 4-2) Later Dr. Randolph wrote to claimant's attorney the following report, dated, August 29, 1991: It would appear that since her knee symptoms are related to an isolated traumatic episode that occurred on 040290, that this could legitimately be considered work related. That injury, by history, having occurred at the work place. In so far as she has developed carpal tunnel syndrome and her work situation involves repetitive use of the extremities, there may be a strong connection between work activities and the development of peripheral nerve entrapment neuropathies in the upper extremity as well . On that basis, this problem, too, could be considered work related. (Exhibit 4-3) The record reveals that claimant was terminated from her position with defendant on June 30, 1993 and after claimant failed to report to work. (Exhibit A) Claimant had sought subsequent employment but whether she had obtained employment of any kind is unknown to this deputy. 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. P. 14(f). The claimant has the burden of proving by a preponderance of the evidence that the alleged injury actually occurred and that it arose out of and in the course of employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of" refer to the cause or source of the injury. The words "in the course Page 7 of" refer to the time, place and circumstance of the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 1971). The claimant also 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, 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 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). A personal injury contemplated by the workers' compensation law means an injury, the impairment of health or a disease resulting from an injury which comes about, not through the natural building up and tearing down of the human body, but because of trauma. The injury must be something which acts extraneously to the natural processes of nature and thereby impairs the health, interrupts or otherwise destroys or damages a part or all of the body. Although many injuries have a traumatic onset, there is no requirement for a special incident or an unusual occurrence. Injuries which result from cumulative trauma are compensable. McKeever Custom Cabinets v. Smith, 379 N.W. 2d 368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 1219, 38 N.W.2d 158 (1949); Almquist v. Shenandoah Nurseries, Inc., 218 Iowa 724, 254 N.W. 35 (1934). With respect to the alleged right upper extremity condition, claimant has failed to meet the requisite burden of proof which is required of every claimant who alleges she has sustained a work-related injury. Claimant is required to prove that her injury arose out of and in the course of her employment. Claimant has failed to appear and to testify on her own behalf. There is not sufficient evidence to support the allegations found in her original notice and petition. The evidence is conflicting whether the injury was work related. Claimant has failed to present sufficient evidence to support allegations of a compensable work injury. Claimant takes nothing from these proceeding with respect to file number 1013377. Besides her right upper extremity claim, claimant has alleged that she has sustained a work-related injury to her Page 8 right lower extremity. The parties have stipulated that claimant did sustain a work-related injury to her right knee when she slipped on the parking lot. The parties have also stipulated that claimant has sustained a temporary disability as a result of her work injury. Previous to the date of the hearing, defendants have paid claimant 4.286 weeks of weekly benefits at the stipulated rate of $270.02 per week. Again, claimant has failed to appear and to testify on her own behalf. Claimant has failed to present sufficient evidence to support the allegations in her original notice and petition that her work injury has resulted in a permanent condition and that she is entitled to any permanent partial disability benefits. The medical evidence does not support any permanent condition. The radiographs are in the normal range. The range of motion of the right knee is in the normal range. Dr. Riggins has opined that he is unable to identify the presence of a ratable condition. Dr. Randolph's findings are minimal, at best. He has diagnosed claimant as having a strong suggestion of tendonitis. Claimant's condition does not appear to be permanent in nature. Claimant takes nothing further from these proceedings. ORDER With respect to file numbered 1013377, claimant takes nothing from the procedures. With respect to file numbered 948568, claimant takes nothing further from these proceedings. Costs are taxed to defendant pursuant to rule 343 IAC 4.33. Defendant shall file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of January, 1994. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. William Bauer Attorney at Law 100 Valley Street P.O. Box 517 Burlington, Iowa 52601 Harry W. Dahl Attorney at Law 974 73rd Street Suite 16 Des Moines, Iowa 50314 1400; 1402 Filed January 21, 1994 Michelle E. McGovern BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ LINDA SANDERSON, Claimant, File Nos. 948568 1013377 vs. UNITED TECHNOLOGIES A R B I T R A T I O N AUTOMOTIVES, D E C I S I O N Employer, and PACIFIC EMPLOYERS INSURANCE, Insurance Carrier, Defendants. ___________________________________________________________ 1400, 1402 Claimant failed to appear at the consolidated hearing of her claims. Claimant's attorney appeared and made a professional statement regarding the attempts he had made to contact his client. A representative of defendant was present at the hearing as well as defendants' attorney. Various exhibits were offered and admitted. With respect to file number 1013377, claimant did not produce sufficient evidence in support of her allegations of a compensable work injury. Claimant failed to meet her burden of proof. With respect to file number 948568, the parties stipulated that claimant had sustained a work related injury to her right lower extremity. The parties also stipulated that the injury caused a temporary disability. It was disputed whether claimant had sustained a permanent condition. The medical evidence was insufficient to support a conclusion that the condition was permanent in nature. Because claimant failed to appear ar her hearing, she did not provide any testimony in support of her allegations of a compensable work injury and which was permanent in nature. Page 1 before the iowa industrial commissioner ____________________________________________________________ : DEBORAH L. KNOLL, : : Claimant, : : vs. : : File No. 948815 CHEROKEE MENTAL HEALTH : INSTITUTE, : A R B I T R A T I O N Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Deborah L. Knoll, claimant, against Cherokee Mental Health Institute, employer and State of Iowa, insurance carrier, to recover benefits under the Iowa Workers' Compensation Act as the result of an injury sustained on April 21, 1990. This matter came on for hearing before the undersigned deputy industrial commissioner on February 4, 1992, in Storm Lake, Iowa. The record was considered fully submitted at the close of the hearing. The record in this case consists of testimony of claimant, Philip Knoll, Billy McKay, and Bonita Rupp; claimant's exhibits 1 through 5 and defendants' exhibits A through H. issues Pursuant to the prehearing report and order dated February 4, 1992, the parties stipulate that an employer-employee relationship between claimant and employer existed at the time of the alleged injury and that claimant sustained an injury on April 21, 1990, which arose out of and in the course of her employment with employer. The parties submit the following issues for resolution: . Whether the work injury is a cause of permanent disability; . The extent of entitlement to weekly compensation for temporary total or healing period benefits; . The extent of entitlement to weekly compensation for permanent disability benefits; . The extent of entitlement to medical benefits under Iowa Code section 85.27; and Page 2 . Defendants entitlement to credit under Iowa Code section 85.38(2). findings of fact The undersigned has carefully considered all the testimony given at the hearing, arguments made, evidence contained in the exhibits herein, and makes the following findings: Claimant was born on January 18, 1960, and completed the twelfth grade of school. Claimant's work activity has been primarily as a child development worker/resident treatment worker. She worked eight years at Woodward State Hospital School and transferred to Cherokee Mental Health Institute in late 1988. Claimant's duties at Cherokee prior to her injury in April 1990 included housekeeping, supervising adult male patients, delivering meals, supervising patients' daily activities and acting as a link between patients and their doctor. Her medical history prior to April 1990 includes a knee injury in 1986, which was rated at 10 percent permanent disability. Claimant's present injury occurred on April 21, 1990. While retrieving linens in the hospital clothing room, she caught her shoe on the corner of the cupboard and fell to the ground. She filled out an incident report indicating that she hurt her back. She worked the rest of her shift that day and the following week. On May 5, 1990, her back pain became so severe that she required treatment at Sioux Valley Memorial Hospital. She was taken for conservative treatment. She returned to work for one day on October 3, 1990. After exhausting her sick and vacation leave, she applied for medical leave of absence without pay. She received long-term disability payments from December 15, 1990 through April 30, 1991. On October 23, 1991, she was recalled by employer and returned to work as a resident treatment worker on the night shift. The pertinent medical evidence of record indicates that claimant was seen in the emergency room at Sioux Valley Memorial Hospital on April 29, 1990, for evaluation of back pain. She was given Motrin IM and discharged. She then made arrangements to see her treating physician, Steven J. Veit, for follow-up evaluation (exhibit 1, page 12). Dr. Veit admitted claimant to Sioux Valley Memorial Hospital on May 5, 1990, for treatment of midline low back pain. A lumbar CT scan was negative at L3-L4 and L4-L5, but showed vacuum degenerative disc with central herniation of disc material at L5-S1 just to the left of the midline putting pressure on the dural sac. She was treated conservatively with one week of pelvic traction. She was discharged on May 15, 1990 (ex. 1). Claimant was referred by employer/insurance carrier to Leonel H. Herrera, M.D., neurosurgeon, for evaluation on May 15, 1990. After reviewing the claimant's medical history and noting her complaints, Dr. Herrera performed a physical examination. He diagnosed lumbosacral and sacroiliac ligamentous sprain with no focal neurological deficits. It Page 3 was his impression that the centrally, mildly bulging disc was not producing her symptoms. He recommended time off work and an out-patient physical therapy program (ex. A, pp. 1-2). Claimant saw Dr. Herrera for follow-up examination on June 5, 1990. She reported that her back pain was much improved and no longer presented difficulty for her. Her chief complaint was pain in the left hip with radiation down the left leg into her foot. She was advised to start a rehabilitation program (ex. A, p. 3). After three physical therapy sessions, claimant reported to Dr. Herrera increased back pain. On examination, she had some tenderness at the lumbosacral junction with negative straight leg raising in the sitting and supine positions. She was advised to increase her participation in the rehabilitation program (ex. A, p. 4). Dr. Herrera last saw claimant on July 17, 1990. At this time, he recommended that she return to work starting on a light duty program with lifting no more than 10 pounds and no repetitive bending or stooping. He recommended increasing work hours from four to six and then eight hours, three times per week. He requested a re-evaluation after five days of eight hours work (ex. A, pp. 5 and 15). Claimant requested a second opinion and wanted Dr. Herrera to refer her to a physician in Spencer, Iowa. Instead, he referred her to a neurosurgeon in Sioux City, Iowa (ex. A, pp. 17-19). Claimant felt that she was unable to return to full duty as recommended by Dr. Herrera and was referred to K.J. Liudahl, M.D., for orthopedic consultation on August 8, 1990. On examination, he reported, in part, that she "Has variable inconsistent complaints of back pain and leg pain with internal, external rotation of her hip and negative Patrick's test, negative Bowstring test. Is neurological intact in both lower extremities." He indicated that he had nothing further to offer her and recommended that she continue under Dr. Herrera's care at Back Care, Inc. (ex. 1, p. 2). Claimant was evaluated by Ralph F. Reeder on August 21, 1990. After reviewing the claimant's medical history and noting her complaints (low back pain with bilateral leg pain, left side much worse than right), Dr. Reeder conducted a neurological examination. He also reviewed a myelogram which was taken on July 26, 1990. He recommended an epidural flood and continuance on nonsteroidal anti-inflammatory medication. He recommended six more weeks of total disability and a return to light duty on October 1, 1990. He recommended lifting no more than 10 pounds and restricted stooping, bending, crouching, twisting, pulling, pushing, prolonged sitting. After one month of these restrictions, he indicated that she may return to full duties with a permanent 50-pound weight restriction. He reported that "The prognosis for recovery is uncertain and this patient may in fact be at maximum medical improvement. Page 4 If she shows no improvement by the time of the aforementioned dates, I believe that patient will be left with a permanent partial disability of 5%...." (ex. B, pp. 2-3). Claimant returned to work on October 3, 1990, which was her regularly scheduled work day. She reported to the 6:30 a.m. shift and was placed on the adult men's open ward with light duty restrictions. Claimant testified that she did not return to work on October 4, 1990, because she felt that she could not do the work. She testified that Dr. Reeder sent her back to Dr. Veit and he took her off work. However, there is no supporting documentation either in Dr. Reeder's or Dr. Veit's notes indicating that she was referred by Dr. Reeder to Dr. Veit. Instead, a notation from Dr. Veit dated October 4, 1990, states that "Tried to work yesterday. Now has a lot of back pain into left leg. Had to do quite a bit of walking at work and now just has almost a constant pain down the left side of her body. In addition, still notices the funny intermittent bizarre feeling shooting down her left upper extremity." Dr. Veit made no mention of a referral from Dr. Reeder. Based on her subjective complaints, Dr. Veit took her off work for another month and continued conservative care (ex. 1, p. 14). After being taken off work by Dr. Veit, claimant presented to the Division of Vocational Rehabilitation Services in Cherokee, Iowa, on October 9, 1990, for evaluation. Claimant was approved for enrollment at Iowa Lakes Community Colleges Substance Abuse Counselor program in January 1991. Claimant testified that she has obtained 30 semester hours and expects to receive an associate degree in January 1993 (ex. D). Claimant was referred by Principal Insurance to Michael T. O'Neil, M.D., for evaluation on July 1, 1991, to determine whether she was still eligible for long-term disability benefits. Claimant presented with complaints of dull aching low back pain and left posterior buttock and lateral thigh pain. X-rays of the lumbosacral spine were obtained and revealed a severely narrowed L5-S1 intervertebral disc space. Dr. O'Neil believed that there was some functional overlay and malingering to claimant's complaints. He noted inconsistent straight leg raising tests and inconsistent pain with minimal forward flexion of the lumbar spine. There was no evidence of any objective neurological changes and minimal changes were noted on previous myelograms and CT scans. He felt that she could return to work in a more sedentary type of occupation. He indicated that she has reached maximum medical improvement and is entitled to a 5 percent permanent impairment of the body as a whole as a result of her back injury (ex. E). conclusions of law The parties do not dispute that claimant sustained a work-related injury to her back on April 21, 1990. The first issue to be determined is the extent of Page 5 claimant's entitlement to weekly compensation for temporary total disability or healing period benefits. Defendants contend that claimant's entitlement to temporary benefits ended sometime in 1990 when Dr. Reeder released her for light duty. Claimant contends that she is entitled to temporary benefits from April 21, 1990, through October 23, 1991, when she returned to work with employer. After carefully considering the total evidence in this case, the undersigned concludes that claimant has suffered a permanent disability. Therefore, she is entitled to healing period benefits under Iowa Code section 85.34(1). Healing period benefits may be characterized as that period during which there is a reasonable expectation of improvement of a disabling condition and ends when maximum medical improvement is reached. Armstrong Tire & Rubber Co. v. Kubli, Iowa App., 312 N.W.2d 60, 65 (1981). In discussing the concept of healing period as contemplated by Iowa Code section 85.34(1), the Kubli court observed that recuperation refers to that condition in which healing is complete and the extent of the disability can be determined. Kubli, 312 N.W.2d 65. The healing period generally terminates at the time the attending physician determines that the employee has recovered as far as possible from the effects of the injury. Kubli, 312 N.W.2d 65. When a permanent rating is given, it indicates that the physician does not expect the claimant to improve and this conclusion meets the criteria of Iowa Code section 85.34(1) and Thomas v. Wm. Knudson & Sons, Inc., 349 N.W.2d 124, 126 (Iowa Ct. App. 1984). In this instance, claimant's healing period ended on October 31, 1990, when she was released by Dr. Reeder for full-time work duty and given a permanent partial disability rating of 5 percent (ex. B, p. 3). The next issue to be determined is claimant's entitlement to permanent partial disability benefits. The causal connection of permanent partial disability to the April 21, 1990, injury was established by physicians who have treated and/or examined claimant for this injury and claimant's testimony that she had no back problems prior to the injury. Claimant has clearly demonstrated that she sustained an industrial disability as a result of her April 21, 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, expe rience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service 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 disabil ity. This is so as impairment and disability are not syn onymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the Page 6 first instance reference is to loss of earning capacity and in the latter 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 healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. 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. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. 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, general and specialized knowledge to make the finding with regard to degree of industrial dis ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, l985). Industrial disability was defined in Diederich, 219 Iowa 587, 593, 258 N.W. 899, 902 as loss of earning capacity and not a mere `functional disability' to be computed in terms of percentages of the total physical and mental ability of a normal person. The essence of an earning capacity inquiry then, is not how much has the claimant been functionally impaired, but whether that impairment, in combination with the claimant's age, education, work experience, pre and post-injury wages, motivation, and ability to get a job within her restrictions, if any restrictions have been imposed, have caused a loss of earning capacity. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251, 257 (1963); Diederich, 219 Iowa 587, 593, 258 N.W. 899, 902; Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 State of Iowa Industrial Commissioner Decisions 654, 658 (Appeal Decision February 28, 1985); Christensen v. Hagen, Inc., vol. I, no. 3, State of Iowa Industrial Commissioner Decisions 529 (Appeal Decision March 26, 1985). Page 7 There are no weighting guidelines that indicate how each of the factors are to be considered. There is no equation which can be applied and then calculated to determine the degree of industrial disability to the body as a whole. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience and general and specialized knowledge to make a finding with regard to the degree of industrial disability. See, Peterson, vol. 1, no. 3 State of Iowa Industrial Commissioner Decisions 654, 658; Christensen, vol. I, no. 3, State of Iowa Industrial Commissioner Decisions 535. In this instance, claimant is relatively young and her industrial disability is not as serious as it would be for an older employee. McCoy, file numbers 782670 & 805200. Claimant has been given a 5 percent functional impairment rating and a 50 pound lifting restriction by Dr. Reeder and limitations on sitting, standing, bending, stooping, and climbing. Claimant is still working at Cherokee Mental Health Institute and is earning more money than she was at the time of her injury. There is some hint in the medical evidence that claimant's complaints are out of proportion to the clinical and laboratory findings and may well be exaggerated. Claimant's limitations and restrictions appear to be based more on her subjective complaints of pain rather than objective medical evidence. Based upon the foregoing factors, all of the facts used to determine industrial disability, and employing agency expertise, it is determined that claimant sustained a 10 percent industrial disability and is entitled to 50 weeks of permanent partial disability benefits commencing on November 1, 1990. The final issue to be determined is whether claimant is entitled to certain medical expenses under Iowa Code section 85.27. The employer shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies for all conditions compensable under the workers' compensation law. The employer shall also allow reasonable and necessary transportation expenses incurred for those services. The employer has the right to choose the provider of care, except where the employer has denied liability for the injury. Section 85.27.; Holbert v. Townsend Engineering Co., Thirty-second Biennial Report of the Industrial Commissioner 78 (Review-reopen 1975). Claimant has the burden of proving that the fees charged for such services are reasonable. Anderson v. High Rise Constr. Specialists, Inc., File No. 850096 (App. 1990). Claimant is not entitled to reimbursement for medical bills unless claimant shows they were paid from claimant's funds. See Caylor v. Employers Mut. Casualty Co., 337 N.W.2d 890 (Iowa Ct. App. 1983). When a designated physician refers a patient to another Page 8 physician, that physician acts as the defendant employer's agent. Permission for the referral from defendants is not necessary. Kittrell v. Allen Memorial Hospital, Thirty-fourth Biennial Report of the Industrial Commissioner 164 (Arb. Decn. 1979) (aff'd by indus. comm'r). An employer's right to select the provider of medical treatment to an injured worker does not include the right to determine how an injured worker should be diagnosed, evaluated, treated or other matters of professional medical judgment. Assmann v. Blue Star Foods, Inc., File No. 866389 (Declaratory Ruling, May 18, 1988). Defendants argue that some of claimant's medical charges are not causally related to the April 1990 work injury and were not authorized by defendants. The employer's obligation to furnish medical treatment carries with it the privilege of selecting the care. In an emergency when an employer or the employer's agent cannot be contacted immediately, the employee may choose care at the employer's expense. An employee who experiences dissatisfaction with the provided care should communicate the basis of the unhappiness to the employer. This communication should be in writing. The employer has a duty to monitor the treatment being provided. If for any reason the employer is dissatisfied with the care given, it must provide an alternative and give notice preferably in writing that care by a particular practitioner is no longer authorized. Claimant has proven entitlement to reimbursement for some medical and mileage expenses related to the April 21, 1990, injury including one office visit to Dr. Veit for purposes of a second opinion, office visits and treatment by Dr. Herrera and office visit and treatment recommendations (an epidural flood and continuation of nonsteroidal anti-inflammatory medication and Voltaren) recommended by Dr. Reeder. Claimant has failed to prove entitlement to reimbursement for medical mileage and expenses incurred with Dr. Veit, (other than the one authorized visit) including all treatments and referrals made by Dr. Veit and medication prescribed by him. Claimant insisted that Dr. Reeder referred her back to Dr. Veit in October 1990, however, the evidence does not support claimant's contentions. Therefore, defendants are not obligated to pay medical bills and expenses for unauthorized treatment. Defendants seek a credit pursuant to Iowa Code section 85.38(2). That section provides a credit against an award for amounts paid under a nonoccupational group plan. Claimant was an employee of the state of Iowa. The State of Iowa's Employee's Long-term Disablity Plan has been held to constitute a nonoccupational group plan entitling defendants to credit under Iowa Code section 85.38(2). Lowe v. Iowa State Penitentiary, (file numbers 673326, 776977, 805718) Appeal Decision, December 16, 1988. Page 9 order THEREFORE, IT IS ORDERED: That defendants pay to claimant twenty-seven point seven one four (27.714) weeks of healing period benefits at the rate of two hundred fifty-six and 98/100 dollars ($256.98) per week from April 21, 1990, through October 31, 1990. That defendants pay to claimant fifty (50) weeks of permanent partial disability benefits at that rate of two hundred fifty-six and 98/100 dollars ($256.98) per week commencing November 1, 1990. That defendants pay for all medical and mileage expenses incurred for medical treatment and medication authorized by them. That defendants receive credit under Iowa Code section 85.38(2) for previous payments made under a nonoccupational group health plan. That defendants pay all of the costs pursuant to rule 343 IAC 4.33. That defendants receive credit for any benefits previously paid. That defendants pay accrued amounts in a lump sum. That defendants pay interest pursuant to Iowa Code section 85.30. That defendants file claim activity reports as required by this agency. Signed and filed this ____ day of February, 1992. ______________________________ JEAN M. INGRASSIA DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. George Wittgraf Attorney at Law 223 Pine St. PO Box 535 Cherokee, Iowa 51012 Mr. Greg Knoploh Assistant Attorney General Hoover State Office Bldg Des Moines, Iowa 50319 Page 10 Page 1 51802 51803 52500 Filed February 13, 1992 Jean M. Ingrassia before the iowa industrial commissioner ____________________________________________________________ : DEBORAH L. KNOLL, : : Claimant, : : vs. : : File No. 948815 CHEROKEE MENTAL HEALTH : INSTITUTE, : A R B I T R A T I O N Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 51802 In a dispute as to when healing period benefits ended, it was determined that pursuant to Armstrong Tire & Rubber Co. v. Kubli, Iowa App., 312 N.W.2d 60, 65 (1981), that claimant's healing period ended when she was given a permanent impairment rating and it was determined that she reached maximum medical improvement. 51803 Based on claimant's age, education, work experience, pre and post-injury wages, motivation, functional impairment and restrictions, it was determined that claimant sustained a 10 percent industrial disability. 52500 Defendants stipulated that claimant sustained an injury which arose out of and in the course of employment with employer. Pursuant to Iowa Code section 85.27, the employer is obliged to furnish reasonable services and supplies to treat an injured employee and has the right to choose the care. If the employee is dissatisfied with the care offered, she must follow the procedures set out in Iowa Code section 85.27 before procuring alternate care. Defendants agreed to pay all bills related to services authorized by them. There is no evidence that claimant's chosen treatment was authorized by defendants. Defendants are not obligated to pay medical bills for unauthorized treatment. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ DUANE ULRICK, Claimant, vs. File No. 949030 GARNER PRINTING, A P P E A L Employer, D E C I S I O N and EMPLOYERS MUTUAL, Insurance Carrier, and Defendants. _________________________________________________________________ The record has been reviewed de novo on appeal. The ruling of the deputy filed December 30, 1993 is affirmed and is adopted as the final agency action in this case. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of April, 1994. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Thomas P. Lenihan Attorney at Law 5836 Grand #104 Des Moines, Iowa 50312 Mr. James F. Christenson Assistant Attorney General Tort Claims Division Hoover State Office Bldg. Des Moines, Iowa 50319 5-3203; 5-3302 Filed April 29, 1994 BYRON K. ORTON BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DUANE ULRICK, Claimant, vs. File No. 949030 GARNER PRINTING, A P P E A L Employer, D E C I S I O N and EMPLOYERS MUTUAL, Insurance Carrier, and Defendants. ____________________________________________________________ 5-3203; 5-3302 On appeal it was determined that summary judgment should be granted. Claimant's alleged work injury had been settled in a compromise special case settlement. As a matter of law when claimant's alleged injury in this case was settled pursuant to Iowa Code section 85.35, claimant could not seek benefits from the second injury fund alleging this injury was a qualifying "second injury." BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : FORTUNATO TAMAYO, : : Claimant, : : vs. : : File No. 949353 BLUE STAR FOODS, : A R B I T R A T I O N Employer, : : D E C I S I O N and : : SEDGWICK JAMES OF : NEBRASKA, INC., : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a contested case proceeding upon a petition in arbitration filed by claimant Fortunato Tamayo against his former employer, Blue Star Foods, and insurance carrier Sedgwick James of Nebraska, Inc. Mr. Tamayo sustained a work injury while tugging on a heavy tub of ice on April 19, 1990. A hearing was accordingly scheduled and held in Council Bluffs, Iowa on February 21, 1994. The record consists of joint exhibits 1-12 and claimant's testimony. In addition, official notice was taken of a published case cited by claimant as persuasive authority: Tsuchiyama v. Kahului Trucking and Storage, Inc., 638 P.2d 1381 (Hawaii App. 1982). ISSUES The parties have stipulated to the following: 1. Claimant sustained injury arising out of and in the course of employment on April 19, 1990; 2. The injury caused both temporary and permanent disability; 3. Entitlement to healing period benefits (April 19 through August 26 and October 10 through October 14, 1990) is no longer disputed; 4. Permanent disability should be compensated industrially; 5. The correct rate of weekly compensation Page 2 is $229.18; 6. Entitlement to medical benefits is no longer in dispute; and, 7. Prior to hearing, defendants paid claimant 80 weeks of compensation at the stipulated rate, 19.286 weeks of which are attributable to healing period. The sole issue presented for resolution is the extent of claimant's industrial disability, as an odd-lot employee or otherwise. FINDINGS OF FACT The undersigned deputy industrial commissioner finds: Fortunato Tamayo, 67 years of age at hearing, left school in the second grade and is functionally illiterate. Although Mr. Tamayo speaks English as a second language, he has reasonable proficiency and can be readily understood. He cannot read or write in Spanish, his first language, and in English, can sign his name, but cannot write a bank check and recognizes street signs only by shape. Born in Texas in 1926, claimant engaged in farm labor until 1960, when he moved to Council Bluffs, Iowa. He thereupon accepted work with Blue Star Foods until retiring in 1993. Except for one year when he loaded trucks by hand, Mr. Tamayo was employed as a forklift driver through the date of injury. Claimant was injured while defrosting a large walk-in freezer. He knocked a quantity of ice from the freezer ceiling, placed it into a five foot by three foot tub, then injured himself when he slipped while attempting to move it. Radiographic evidence of a torn rotator cuff resulted in a surgical repair on May 11, 1990, by orthopedic surgeon Daniel J. Larose, M.D. The procedure was described as repair of the right rotator cuff, acromioplasty, section of the coracoacromial ligament bursectomy and resection of the distal 1 cm of the clavicle. Dr. Larose eventually rated impairment at 20 percent of the upper extremity or 12 percent of the whole person. He imposed permanent restrictions against lifting over 20 pounds and any lifting above shoulder level. Given those restrictions, Dr. Larose believed that claimant would "certainly" be able to work as a forklift operator and should be able to enjoy a comfortable retirement. Claimant also complains of back, neck and head pain. In particular, he complains of an inability to rotate his head while operating a forklift. According to Dr. Larose, this cervical pain is not related to the initial injury. Claimant was also seen by a neurosurgeon, Behrouz Rassekh, M.D. Dr. Rassekh would impose no restrictions due Page 3 to neck pain, but notes some limitation of neck motion secondary to degenerative changes in the cervical spine, described as cervical spondylosis. He estimates permanent impairment due to cervical problems as between 0-5 percent of the body as a whole. As to causation of neck pain, Dr. Rassekh wrote on October 18, 1990: "I do believe some of the symptoms of this patient is related to his rotator cuff injury rather than any cervical pathology." The writer does not understand what Dr. Rassekh means by this statement. On February 6, 1991, Dr. Rassekh wrote: "We still have no objective evidence of explanation for the neck pain other than mild degenerative changes." Claimant returned to work for Blue Star Foods in a light duty capacity in maintenance of the company cafeteria. This work involved cleaning tables and the like, and apparently honors the restrictions imposed by Dr. Larose. Neither did the job entail a loss of pay. Mr. Tamayo continued at this job for approximately one year, then requested re-assignment to forklift duties due to a personal conflict with a fellow employee. The record fails to disclose any medical reason why claimant could not have continued in this job. Claimant then continued in his regular forklift job until retiring at age 67. During this time, a management decision was made to require operation of unloaded forklifts inside the plant only in reverse, so as to avoid the possibility of spearing pedestrians with the fork prongs. Mr. Tamayo felt unable to operate his forklift in reverse due to difficulty rotating his head, but Blue Star accommodated him by limiting his duties to the loading dock, where the "reverse only" rule was not in effect. Claimant eventually retired at age 67 on May 11, 1993. He now lives on Social Security retirement benefits and a very modest pension from Blue Star Foods. Mr. Tamayo cites several forklift mishaps, including a collision with a pedestrian, as precipitating the decision to retire. Indeed, he specified in testimony that he retired due to fear that he might injure someone. Mr. Tamayo further blames consumption of substantial quantities of aspirin due to residual pain from the work injury (he says he could barely make it to his car after an 8-hour shift). This record, however, does not contain evidence that aspirin interferes with the ability to safely operate machinery. According to Gerald Menges, who testified by deposition on February 16, 1994, the collision with a pedestrian shortly before claimant's retirement occurred as he was coming through a curtained "blind spot" in a freezer. Menges testified: It was just a blind spot in the freezer. He was coming through the curtains, and she was getting ready to go through the other way, and you can't see through the curtains. They're all frosted up. Page 4 (Gerald Menges' Deposition, Page 11) 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. P. 14(f). In Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985), the Iowa court formally adopted the "odd-lot doctrine." Under that doctrine a worker becomes an odd-lot employee when an injury makes the worker incapable of obtaining employment in any well-known branch of the labor market. An odd-lot worker is thus totally disabled if the only services the worker can perform are "so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist." Guyton, 373 N.W.2d at 105. The burden of persuasion on the issue of industrial disability always remains with the worker. When a worker makes a prima facie case of total disability by producing substantial evidence that the worker is not employable in the competitive labor market, the burden to produce evidence of suitable employment shifts to the employer, however. If the employer fails to produce such evidence and if the trier of fact finds the worker does fall in the odd-lot category, the worker is entitled to a finding of total disability. Guyton, 373 N.W.2d at 106. Even under the odd-lot doctrine, the trier of fact is free to determine the weight and credibility of evidence in determining whether the worker's burden of persuasion has been carried, and only in an exceptional case would evidence be sufficiently strong as to compel a finding of total disability as a matter of law. Guyton, 373 N.W.2d at 106. Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, expe rience and inability to engage in employment for which the employee is fitted. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. Impairment and disability are not synonymous. The degree of industrial disability can be much different than the degree of impairment because industrial disability references to loss of earning capacity and impairment references to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the Page 5 situs of the injury, its severity and the length of the healing period; the work experience of the employee prior to the injury and after the injury and the potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. Likewise, an employer's refusal to give any sort of work to an impaired employee may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience as well as general and specialized knowledge to make the finding with regard to degree of industrial disability. See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 529 (App. March 26, 1985); Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 654 (App. February 28, 1985). Compensation for permanent partial disability shall begin at the termination of the healing period. Compensation shall be paid in relation to 500 weeks as the disability bears to the body as a whole. Section 85.34. Dr. Larose, the treating surgeon, has imposed medical restrictions against lifting in excess of 20 pounds or above shoulder level. He also specified that claimant should be able to work as a forklift operator so long as these restrictions were observed. He does not find cervical complaints related to this injury, while Dr. Rassekh's view on this question is unclear. Nonetheless, Dr. Rassekh has further specified that no physical restrictions were imposed by reason of back pain. Claimant was employed by Blue Star Foods for some 33 years before retiring at an age many consider a "normal" retirement age. There is little doubt that his attractiveness on the competitive labor market is reduced by reason of the rotator cuff repair and subsequent medical restrictions, but this factor is of less significance in the case of such a long-time employee, close to retirement age, who is able to return to his regular, long time job. The record shows no medical reason why claimant could not have continued working either in the company cafeteria or on the forklift, both at the same hourly wage he enjoyed Page 6 before the work injury. While claimant experienced some reduction in hours as a forklift driver, this was due to a company reorganization, not the work injury. Claimant is clearly not an odd-lot employee. His actual loss of earnings is little, if any. His decision to retire is not shown to be attributable to the work injury. There is no medical reason why Mr. Tamayo could not have continued operating the forklift, as he had done for so many previous years. His retirement, as noted, came at an age many people would consider entirely normal. Considering then these factors in particular and the record otherwise in general, it is held that claimant has sustained a permanent partial disability equivalent to ten percent of the body as a whole, or 50 weeks. As defendants have voluntarily paid compensation in excess of 50 weeks, claimant takes nothing further. ORDER THEREFORE, IT IS ORDERED: Claimant takes nothing further. Costs are assessed to defendants. Signed and filed this ____ day of May, 1994. ________________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Sheldon M Gallner Attorney at Law 803 Third Avenue PO Box 1588 Council Bluffs Iowa 51501 Mr James F Thomas Mr Ronald L Comes Attorneys at Law 1100 One Central Park Plaza 2222 S 15th Street Omaha Nebraska 68102 5-1803 Filed May 20, 1994 DAVID RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : FORTUNATO TAMAYO, : : Claimant, : : vs. : : File No. 949353 BLUE STAR FOODS, : A R B I T R A T I O N Employer, : D E C I S I O N and : : SEDGWICK JAMES OF : NEBRASKA, INC., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803 Industrial disability was less than benefits voluntarily paid. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ---------------------------------------------------------------- ALICE CHRISTINE VAN ROEKEL, : : File Nos. 955801 Claimant, : 991582 : 949436 vs. : : IOWA VETERANS HOME, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ---------------------------------------------------------------- This matter came on for hearing at 3 p.m. on the third day of February 1994 in accordance with the hearing assignment order issued August 3, 1993. Claimant did not appear and no one appeared on her behalf. No evidence was introduced. The party who would suffer loss if an issue were not established has the burden of proving that issue by a preponderance of the evidence. Iowa R. of App. P. 14(f). The claimant has the burden of proving by a preponderance of the evidence that the alleged injury actually occurred and that it arose out of and in the course of employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of" refer to the cause or source of the injury. The words "in the course of" refer to the time, place and circumstances of the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 1971). No evidence was introduced and the claimant failed to carry the burden of proving that she had any entitlement in any of the three claims. ORDER IT IS THEREFORE ORDERED that claimant take nothing from these proceedings. The costs of these actions are assessed against the claimant. Signed and filed this __________ day of February, 1994. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Page 2 Copies to: Ms. Christine Van Roekel Box 173 Marshalltown, Iowa 50158 CERTIFIED AND REGULAR MAIL Mr. James Christenson Assistant Attorney General Hoover State Office Bldg Des Moines, Iowa 50319 1402.20 1402.40 Filed February 9, 1994 Michael G. Trier BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ ALICE CHRISTINE VAN ROEKEL, : : File Nos. 955801 Claimant, : 991582 : 949436 vs. : : IOWA VETERANS HOME, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ------------------------------------------------------------ 1402.20 1402.40 Claimant failed to appear for hearing. Claimant failed to carry burden of proof.