BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : BEVERLY BEIREIS, : : Claimant, : : vs. : : File Nos. 913904 DUBUQUE STAMPING CO., : 949486 : Employer, : A R B I T R A T I O N : and : D E C I S I O N : AMERICAN MANUFACTURERS MUTUAL,: : Insurance Carrier, : Defendants. : ___________________________________________________________ INTRODUCTION This is a proceeding in arbitration brought by Beverly Beireis, claimant, against Dubuque Stamping Company, employer, and American Manufacturers Mutual Insurance Company, insurance carrier, for benefits as the result of two injuries. The first injury occurred to claimant's middle finger and ring finger of the left hand on March 29, 1989 (file number 913904). The second injury occurred to claimant's right shoulder, neck and back on May 8, 1990 (file number 949486). A hearing was held in Dubuque, Iowa, on August 12, 1992, and the case was fully submitted at the close of the hearing. Claimant was represented by James P. Hoffman. Defendants were represented by Vicki L. Seeck. The record consists of the testimony of Beverly Beireis, claimant; Angella J. Mesch, claimant's daughter; Robert E. Plourde, manager of employee relations; and joint exhibits 1 through 15. Defendants' counsel presented a brief description of disputes for each injury at the time of the injury. ISSUES The parties submitted the following issues for determination at the time of the hearing: With respect to the injury to the left ring and long finger, which occurred on March 29, 1989, the parties submitted the following issues for determination: Whether the injury was the cause of permanent disability; Whether claimant is entitled to permanent disability benefits. With respect to the injury to the right shoulder, neck and back, which occurred on May 8, 1990, the parties Page 2 submitted the following issues for determination: Whether the injury was the cause of permanent disability; Whether claimant is entitled to permanent disability benefits, and if so, the extent of benefits to which she is entitled; Whether claimant is entitled to medical expenses, more specifically, the chiropractic fees of Todd C. Spurling, D.C., and if so, a designation of the fees to which he is entitled. fingers injury-march 29, 1989-file number 913904 FINDINGS OF FACT causal connection-entitlement-scheduled members It is determined that the injury to claimant's left long finger and left ring finger on March 29, 1989, was not the cause of permanent disability and, therefore, claimant is not entitled to permanent disability benefits for these two digits. Claimant testified that she smashed the left long finger and left ring finger while blanking rocker arms out of steel. Claimant testified that she was taken to Finley Hospital and was off work for about one and one-half months. She was paid workers' compensation for her time off work and her medical expenses were paid by employer. A surgeon's first report of injury states that claimant fractured the tufts of both the left middle finger and left ring finger and suffered subungual hematomas under both fingernails which were drained with a vasectomy cautery devise. She was treated with ice, elevation and pain medications and referred to David S. Field, M.D. X-ray diagnosis disclosed a fracture of the tufts of both fingers (exhibit 8, page 77). Dr. Field reported on April 4, 1989, that claimant received a distal tuft fracture of the middle and ring fingers of the left hand and that no permanent disability was anticipated (ex. 8, p. 73). Claimant testified that when it came time to be evaluated for this injury, the treating physician, Dr. Field, had left town and the evaluation was performed by another doctor, Scott Schemmel, M.D. Dr. Schemmel reported on March 14, 1991, that he evaluated claimant for a compression type injury to the left hand long and ring fingers. He said the patient reports occasional discomfort out over the tip in the left hand ring finger. She said her fingernail felt strange like it was not there, the finger gets colder than the other fingers and she feels like the distal joint is smaller. An x-ray of the fourth finger on March 14, 1991, by Dr. Page 3 Schemmel showed that the PIP and DIP joints were well maintained without evidence of posttraumatic degenerative arthritis. The MP joint also appeared to be normal. He said no residual fracture or adjoining incongruities were identified (ex. 11, p. 90). His final evaluation was as follows: On physical examination this patient's left finger shows no obvious deformity. There is no hypertrophy or atrophy over any extent of the finger. The DIP, PIP and MP joint range of motions to this finger are full and equal to that of the contralateral side. There is no instability of the DIP joint in stressing and radial and ulnar directions. There is no swelling of the joint. The nail itself appears to be totally normal. It is not discolored, cracked or abnormal in shape or with any tendency towards ingrowth. The joint is not tender to direct palpation. Composite motion is excellent and into the palm. AP and lateral x-rays were repeated today. They show no degenerative changes to be present at the DIP joint is either plane. I informed the patient that on the basis of the AMA guide to the evaluation of disability that she did not have any impairment of this finger.... (exhibit 11, pp. 91-92) Dr. Schemmel's evaluation and statement of no impairment is not controverted, contradicted, rebutted, or refuted by any other physician. Claimant testified that the tips of the long finger and ring finger on her left hand are numb and tingle. She can cut herself and not know it. These two fingers become cold and she frequently makes a fist with her left hand in order to keep these fingers warm. Claimant did acknowledge that she could move and bend them normally. Claimant is credible. There is no evidence, however, that these sensory feelings are permanent. Furthermore, claimant did not testify that they impair the use of her left hand or the use of these two fingers. Wherefore, it is determined that the injury to claimant's left long finger and left ring finger was not the cause of any permanent impairment or disability and that claimant is not entitled to permanent disability benefits for the injury to these two fingers. right shoulder, neck and back injury-May 8, 1990-file number 949486 It is determined that the injury to claimant's right shoulder, neck and back which occurred on May 8, 1990, was the cause of permanent impairment and disability in the amount of 5 percent to the body as a whole and that claimant Page 4 is entitled to 25 weeks of permanent partial disability benefits. Claimant testified that she fell from an elevated area while raking rocker arms and struck her right shoulder (ex. 1, p. 3; ex. 4, p. 18; ex. 6, p. 32; ex. 10, p. 79; ex. 12, p. 93). Employer sent claimant to see Thomas J. Hughes, M.D., an occupational medicine doctor. He found trapezius tenderness and inability to abduct or rotate her right arm. X-rays were unremarkable. He prescribed ice, massage, a sling, medications, and took claimant off work (ex. 10, pp. 79-80). He saw claimant 25 times between May 8, 1990 and December 27, 1990, when he determined that claimant had made a full and complete recovery except for some deep seated aching in the right trapezius muscle which he felt would essentially resolve over time and which did not cause any decrement in her performance (ex. 10, p.79; 289). Even though claimant did not have surgery, she, nevertheless, had a long and difficult course of recovery as demonstrated by (1) Dr. Hughes' office notes and records (ex. 7, pp. 34-48; ex. 10, pp. 79-89), (2) Dr. Hughes' letters to the insurance carrier (ex. 7, pp. 66-71), and (3) the reports of the rehabilitation specialist employed by employer (ex. 4, pp. 17-29). In subsequent reports, Dr. Hughes reported claimant's diagnosis variously as right shoulder strain, rotator cuff injury right shoulder, acute tendonitis of the rotator cuff of the right shoulder, rotator cuff syndrome of the right shoulder, anterior impingement syndrome of the right shoulder, right acromia, clavicula pain and left scapula pain, rotator cuff and acromia clavicular strain, myofascial pain syndrome, and chronic cervical myofascial pain (ex. 7, pp. 49-65). Dr. Hughes very comprehensibly, yet succinctly, summarized the lengthy and difficult period of treatment in his final letter dated June 29, 1992 (ex. 12, pp. 93-94). After her initial visit, claimant was further treated with physical therapy, anti-inflammatory agents, muscle relaxants, and local injection of anesthetic and steroid. Dr. Hughes stated, "A considerable amount of difficulty was encountered in the management of this patient, and her continuing complaint of pain." (ex. 12, p. 93). An MRI of the cervical spine was unremarkable. Dr. Hughes performed an arthrogram on June 28, 1990, which turned out to be normal. In September 1990 he prescribed a TENS unit. She was released to part-time work and finally on September 27, 1990, she was released to unrestricted work. Because of the lack of progress with conventional modalities, Dr. Hughes approved chiropractic treatments at claimant's request. On December 27, 1990, claimant had a full range of motion of her right shoulder and neck and he closed his file on that date (ex. 11, p. 92; ex. 12, p. 93). At the time of his evaluation on June 26, 1992, Dr. Hughes stated that claimant continues to sit on the examining table with extremely poor posture with sagging shoulders, overjutting chin and she continued to complain of Page 5 pain in the area of the right trapezius. His measurements of claimant's range of motion in her neck and right shoulder were all normal or very much approximating normal and these measurements, in his opinion, would not constitute any evidence of permanent impairment based upon range of motion criteria. He said her poor posture made a major contribution to her symptomology. He found no sensory or strength deficit. He found no neurological impairment. He stated that his findings disagreed with the evaluation findings of claimant's chiropractic evaluator (ex. 12, p. 94). Dr. Hughes concluded his final report by stating: Based on the preceding information, I would rate this individual as having 0% impairment, and no evidence of any residual difficulties, save the symptomatic complaint of pain. Pain is not normally a ratable deficit unless there are other associated findings. Furthermore, when a patient is reported to be accomplishing her job in a very satisfactory manner, in terms of both attendance and productivity, I cannot find any basis for awarding a Permanent Partial Impairment Rating on this patient's history of injury on 5-8-90. (exhibit 12, page 94) The chiropractor that treated claimant was Todd C. Spurling, D.C. His only report unfortunately was obliterated by a 3x5 piece of paper placed between his report and the copy machine right in the middle of the sheet (ex. 6, pp. 32-33). At the hearing, claimant testified that she still has pain in the vicinity of her right shoulder, neck and trapezius. She demonstrated that she gets some relief from placing her warm hand on the painful area. She testified that she also gets relief from rubbing it with her hand. Claimant related that she can only sleep on her right side for about five to ten minutes. The pain in increased if claimant attempts to vacuum, mow grass or lift heavy furniture. Claimant testified that she was unable to perform the job of utility B operator which she was performing at the time of the accident due to discomfort when she raises her right arm. She was able to perform it for a short time, but voluntarily transferred to a floor inspector job for over one year. This job gave her headaches and she then transferred into her current job which she described as a tumbler operator. Robert E. Plourde, manager of employee relations, testified that these were all voluntary transfers which claimant requested and was granted because she was qualified and had the seniority to be awarded the bid. Claimant related that this job is easier for her to perform because it involves the use of her whole body rather than her right upper extremity and that a hoist does most of the work. Claimant granted that she did have to raise her right upper extremity to turn on valves and to reach for the hoist. Claimant contended that she made less money now because Page 6 the utility B operator job paid (1) base pay (2) cost of living increases, and (3) incentive pay. Claimant submitted no figures to prove the amount of her actual wage loss. Defendants' figures of claimant's income for the years 1990, 1991 and 1992, did not establish a wage gain for the reason that claimant was off work a portion of the time in 1990 and the year 1992 was not yet completed. Plourde testified that claimant's job is classified as a labor tumbler. He further agreed that claimant was an excellent piece worker and one of the top operators. He further agreed that claimant is a fast worker and signs up for overtime work at every opportunity. Plourde said it was hard for her to slow down. He was not aware of any difficulty she had with any of her prior jobs. Plourde estimated that even though claimant received top incentives in the utility B operator job, nevertheless, she had not received any reduction in pay because the base pay for tumbler operator was greater than that of a utility B operator. Plourde related that claimant operates a fork lift with levers that are approximately chest high. Angella J. Mesch, claimant's daughter, age 13, testified that since the injury, her mother was unable to hang up washing, wash the car, mow the lawn, clean the house, or run the vacuum. She testified that these duties were now performed by herself, her brothers and her step-father. Claimant was examined by Rick C. Courtney, D.C., a chiropractor, on April 27, 1992. He performed an extensive examination and wrote a lengthy and detailed report of his evaluation. He reported that claimant had difficulty reaching above her shoulders, lifting above her shoulders, moderate to heavy lifting, driving a car, lifting her arm with a twist with weight in her right hand, looking up too long, repetitive lifting with reaching of her right hand and arm. She also complained of right shoulder pain, right shoulder blade pain and spasms, headaches, and neck pain with stiffness. His x-ray findings confirmed a decreased range of motion on flexion and extension of her cervical spine. Shoulder x-rays were negative. Claimant's cervical x-rays also showed kyphosis and her thoracic x-rays showed a mild S-shaped scoliosis. Spinus percussion and muscular percussion in the cervical and thoracic area elicited pain. Several of his orthopedic tests to the cervical, shoulder and right upper extremity area were positive. He found some diminished deep tendon reflex reaction of the right biceps. Her right shoulder had some loss of sensation. He found some limited range of motion in the cervical and shoulder areas accompanied by pain. Dr. Courtney diagnosed (1) rotator cuff injury, right; (2) calcific tendonitis; (3) greater auricular headache; and (4) chronic cervical/shoulder-right complex grade II strain. Page 7 Adding and combining his measurements, Dr. Courtney determined that claimant has sustained a 15 percent permanent impairment to the body as a whole based on the AMA Guides to the Evaluation of Permanent Impairment, 3d ed. (ex. 1, pp. 1-7). Claimant fell and received a severe shoulder injury. She had a long and difficult period of recovery which employed several modalities of treatment and still complains of chronic pain in her right shoulder, neck and back. She testified it hurts but she does her job anyway. Dr. Hughes did not think claimant's pain and slight loss of cervical and shoulder range of motion were ratable. Dr. Courtney thought that they were. Dr. Hughes' impairment rating of zero, is probably too low. Dr. Courtney's impairment rating of 15 percent is probably too high. Quite frequently, agency decisions determine that persistent pain which does not respond to several modalities of treatment and extends beyond a year or more warrants a permanent impairment rating of 5 percent. Moreover, the Guides to the Evaluation of Permanent Impairment, 3d ed (revised), section 3.3b, "Impairments Due to Specific Disorders of the Spine," at table 53, section II, "Intervertebral Disc and other Soft Tissue Lesions," subparagraph B, at pages 80 and 81, shows that soft tissue lesions which are unoperated with medically documented injury and a minimum of six months medically documented pain and rigidity with or without muscle spasm, associated with none to minimal degenerative changes on structural tests warrants an impairment rating of 4 percent in the cervical area. At age 38 claimant is approaching her peak years of earnings in her employment life and this tends to increase her industrial disability. Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report of the Industrial Commissioner 34 (Appeal Decision 1979); Walton v. B & H Tank Corp., II Iowa Industrial Commissioner Report 426 (1981); McCoy v. Donaldson Company, Inc., file numbers 782670 & 805200 (App. Dec. 1989). Claimant has a high school education with no additional education or training of any kind and her employment experience has been limited to factory work for this one employer for 20 years. Thus, claimant does not have a diverse employment background. She has few, if any, transferable skills. She would not appear to be a good candidate for academic retraining. Conrad v. Marquette School, Inc., IV Iowa Industrial Commissioner Report 74, 89 (1984). Claimant was able to return to her former employer and perform her former job at that same pay. When it caused her difficulty, she was able to transfer to the floor inspector job and perform the labor tumbler job because of her 20 years of seniority with employer. Plourde said the main factor in obtaining a job transfer was seniority. Plourde also testified that claimant was one of the top employees of employer. Thus, claimant has been able to accommodate her Page 8 right shoulder difficulties because of her 20 years of seniority and the high regard this employer had for her abilities. These job advantages with employer would not transfer to other employers if she had to start over with a new employer with no seniority and an unknown performance record. Hartwig v. Bishop Implement Company, IV Iowa Industrial Commissioner Report, 159 (app. dec. 1984). Claimant would not find the same facility of movement to accommodate her right shoulder pain with a new employer. Todd v. Department of General Services, Buildings and Grounds, IV Industrial Commissioner Report 373 (1983). At that same time, claimant's industrial disability is reduced for the reason that the injury did not require surgery. Neither physician, Dr. Hughes or Dr. Courtney, imposed and permanent restrictions on claimant's ability to be fully employed. However, under the heading of "Prognosis" Dr. Courtney stated that due to the nature of her condition and his findings at the time of his examination, her prognosis is considered poor to fair (ex. 1, p. 6). Claimant further testified that the numbness in her ring finger and middle finger on the left hand do not impair her ability to perform her tasks for employer. In conclusion, when (1) the impairment ratings of the two physicians of 0 percent and 15 percent are weighed together and (2) considered with claimant's credible complaints of right shoulder, neck and back complaints and (3) agency expertise is applied based upon the ratings of physicians in numerous similar cases and (4) the application of the AMA Guides is considered with their normal application in numerous similar cases and (5) claimant's age, education, retrainability and inability to transfer her seniority to other employers, it is determined that claimant has sustained a 5 percent industrial disability to the body as a whole and is entitled to 25 weeks of permanent partial disability benefits. Wherefore, it is determined that the injury to the right shoulder, neck and back, which occurred on May 8, 1990, was the cause of permanent impairment; that claimant has sustained an industrial disability of 5 percent to the body as a whole; and that claimant is entitled to 25 weeks of permanent partial disability benefits. MEDICAL BENEFITS The dispute is whether claimant is entitled to payments for the chiropractic treatments of Todd C. Spurling, D.C., for the period from November 26, 1990 and thereafter. The parties agreed that Dr. Spurling's itemized statement was not correct, because it failed to show a credit for over $900 in payments made by the insurance carrier to Dr. Spurling. In addition, the deputy notices that apparently a page of itemized expenses are missing. At the bottom of page one, the last entry is January 16, 1991, and the current balance due was $355. At the beginning of page two, the first entry is March 15, 1991, and shows a current balance of $615. Thus it would appear that the charges for the dates between January 16, 1991 and March 15, 1991, which Page 9 added $260 to his bill, appears to be missing. The parties requested merely an adjudication of defendants' liability for dates of treatment and they further agreed that they could work out the correct charges and credits between themselves. The insurance carrier submitted Dr. Spurling's bill for a peer review analysis to an organization named Encompass, Creative Health Care Solutions. On October 29, 1991, the director of private review stated that the case had been submitted to their chiropractic reviewer who determined that Dr. Spurling's charges appeared to be reasonable. However, in view of the recorded diagnosis, the length of time from initial injury to physician's treatment, and lack of neurologic or substantive findings on examination, it was the opinion of their examiner that four months of care from November of 1990 to February 1991, inclusive, should be considered as necessary (ex. 15, pp. 104-105). For the same reasons, it is determined by this deputy that the same amount of chiropractic care is determined to be reasonable medical care within the context of Iowa Code section 85.27. Wherefore, it is determined that claimant is entitled to recover the charges of Dr. Spurling from the time of the initial examination on November 26, 1990 through February 1991. The precise amount of these charges cannot be determined because that page is missing from the itemized statement. Furthermore, the parties agreed that they could work out the charges and credits between themselves. CONCLUSIONS OF LAW Wherefore, based upon the foregoing and following principles of law, these conclusions of law are made: With respect to the injury to the left ring and long finger which occurred on March 29, 1989, it is determined that the injury was not the cause of permanent disability and that claimant is not entitled to permanent disability benefits. 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); Iowa Code section 85.34(2)(c)(d). Page 10 With respect to the right shoulder, neck and back injury which occurred on May 8, 1990, it is determined that the injury was the cause of permanent impairment and disability. Bodish, 257 Iowa 516, 133 N.W.2d 867; Lindahl, 236 Iowa 296 18 N.W.2d 607. It is further determined that claimant has sustained a 5 percent industrial disability to the body as a whole and is entitled to 25 weeks of permanent partial disability benefits. Iowa Code section 85.34(2)(u). With respect to the right shoulder, neck and back injury, it is determined that claimant is entitled to be paid for the services of Dr. Spurling from November 26, 1990 through the month of February 1991. Iowa Code section 85.27. ORDER THEREFORE, IT IS ORDERED: That defendants pay to claimant twenty-five (25) weeks of permanent partial disability benefits based upon a five (5) percent industrial disability to the body as a whole at the stipulated rate of three hundred forty-four and 55/100 dollars ($344.55) per week in the total amount of eight thousand six hundred thirteen and 75/100 dollars ($8,613.75) commencing on September 27, 1990, as stipulated to by the parties. That these benefits are to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That defendants pay to claimant or the provider of services, Dr. Spurling, his charges for the period between November 26, 1990 to the end of February 1991, in an amount to be agreed to by the parties with defendants being given credit for an amount to be agreed to between the parties. That the costs of this action, including the cost of the attendance of the court reporter at hearing, are charged to defendants pursuant to Iowa Code section 86.40 and rule 343 IAC 4.33. That defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of September, 1992. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Page òòò 11 Mr. James Hoffman Attorney at Law Middle Road PO Box 1087 Keokuk, IA 52632-1087 Ms. Vicki Seeck Attorney at Law 600 Union Arcade Bldg 111 E 3rd Davenport, IA 52801 51803 52501 52700 Filed September 1, 1992 Walter R. McManus, Jr. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : BEVERLY BEIREIS, : : Claimant, : : vs. : : File Nos. 913904 DUBUQUE STAMPING CO., : 949486 : Employer, : A R B I T R A T I O N : and : D E C I S I O N : AMERICAN MANUFACTURERS MUTUAL,: : Insurance Carrier, : Defendants. : ___________________________________________________________ 51803 Injury to fingers was not the cause of any permanent disability and no benefits were awarded. Defendants' evaluator said 0 percent of impairment. Claimant submitted no opposing evidence. Injury to shoulder, neck and back was the cause of 5 percent industrial disability and claimant was awarded 25 weeks of permanent disability benefits. Defendants' evaluator said 0 percent impairment. Claimant's chiropractic evaluator said 15 percent impairment. Claimant has persistent pain and slight loss of range of motion. Claimant was age 38, had a high school education, was not too retrainable, and had few, if any, transferable skills. Claimant's seniority allowed her to change jobs within the plant to accommodate her own residuals from the injury. 52501 52700 Claimant awarded medical benefits based on the determination of a peer review evaluation ordered by defendants. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ LUELLA D. MUELLER, Claimant, File No. 949601 vs. A P P E A L WINNEBAGO INDUSTRIES, INC., D E C I S I O N Employer, Self-Insured, Defendant. _________________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed December 3, 1991 is affirmed and is adopted as the final agency action in this case with the following additional analysis: The deputy industrial commissioner, if not expressly, at least implicitly found that the claimant was not a credible witness. For the same reasons reviewed and discussed by the deputy, the industrial commissioner finds the claimant was not a credible witness. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of October, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Robert S. Kinsey, III Attorney at Law P.O. Box 679 Mason City, Iowa 50401 Mr. R. Jeffrey Lewis Attorney at Law 2600 Ruan Center Des Moines, Iowa 50309 9999 Filed October 30, 1992 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ LUELLA D. MUELLER, Claimant, File No. 949601 vs. A P P E A L WINNEBAGO INDUSTRIES, INC., D E C I S I O N Employer, Self-Insured, Defendant. ____________________________________________________________ 9999 Summary affirmance of deputy's decision filed December 3, 1991, with short additional analysis. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : LUELLA D. MUELLER, : : Claimant, : File No. 949601 : vs. : : A R B I T R A T I O N WINNEBAGO INDUSTRIES, INC., : : D E C I S I O N Employer, : Self-Insured, : Defendant. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Luella D. Mueller, claimant, against Winnebago Industries, self-insured employer, to recover benefits under the Iowa Workers' Compensation Act as a result of an alleged injury sustained on March 1, 1990. This matter came on for hearing before the undersigned deputy industrial commissioner on November 14, 1991, in Mason City, Iowa. The record was considered fully submitted at the close of the hearing. The record in this case consists of joint exhibits 1 through 11, claimant's exhibits 12 through 15 and 17, and defendant's exhibits I and II. The record also consists of claimant's testimony and testimony from her husband, Richard Mueller; Daniel Olson; Mark Stanton; and Boyd Eser. ISSUES Pursuant to the prehearing report and order dated November 14, 1991, the parties have identified the following issues for resolution: 1. Whether claimant sustained an injury on March 1, 1990, which arose out of and in the course of employment with employer; 2. Whether the alleged injury is a cause of temporary and permanent disability; 3. The extent of entitlement to weekly compensation for temporary total disability or healing period benefits and the time off work for which claimant seeks such benefits; 4. The extent of entitlement to weekly compensation for permanent disability and the commencement date for such disability; 5. Whether claimant is entitled to medical benefits under Iowa Code section 85.27 and whether the expenses for such benefits are causally connected to her alleged work injury; 6. Whether defendant is entitled to a credit under Iowa Page 2 Code section 85.38 for medical expenses paid by Iowa Benefits under claimant's husband's insurance policy; 7. Whether claimant is entitled to interest, mileage and costs; and 8. Whether claimant is entitled to penalty benefits under Iowa Code section 86.13(4). FINDINGS OF FACT The undersigned has carefully considered all of the testimony given at the hearing, arguments made, evidence contained in the exhibits herein, and makes the following findings: Claimant was born on July 26, 1956, and completed the twelfth grade of school in 1975. She received certification as a geriatric aide after completing course studies at North Iowa Community College and worked for a short time in a nursing home. In 1975 she was hired by Winnebago Industries as a window screener. She worked in this capacity until October 1979. She did some babysitting after leaving Winnebago and while raising her two daughters. In October 1987 she returned to Winnebago Industries, part-time, on the 5 p.m. to midnight shift. She was assigned to the Cycle-Sat Building cleaning executive offices. Her duties included dusting, washing sinks, vacuuming, and general housekeeping. In February 1990 she was transferred from Cycle-Sat into the main plant and cleaned offices in five different buildings. This job involved primarily vacuuming. She continued her babysitting service during the day while working evenings at Winnebago. In 1990 claimant earned $2,898.20 from her home child care activities. Claimant testified that she continues to operate this service, but has reduced the hours and number of children cared for. Claimant testified that she experiences muscle spasms, headaches, and arm and shoulder pain. She attributes her symptoms to her work activities, particularly vacuuming, and transporting of a cannister vacuum from the first to the second floor while cleaning offices in the main building. Claimant testified that on the second day of her new job she noticed pain and aching in both arms and muscle spasms in her neck. By March 2, 1990, she felt intense pain and sought medical treatment. She was taken off work on March 2, 1990, and has not returned to Winnebago. Claimant testified to a limited residual functional capacity including a minimal ability to perform household, recreational and daily activities due to headaches, muscle spasms, shoulder, neck and bilateral arm pain. The pertinent medical evidence of record indicates that claimant has been seen on a regular basis at Park Clinic Forest City Office by Jim McGuire, physician's assistant, since January 1986 for an annual physical examination. In January and February 1986 she was also seen at the Konen Chiropractic Clinic with various aches and pains, including Page 3 neck, low back, shoulder pain and headaches (exhibits 1 and 2). On March 2, 1990, claimant presented to Mr. McGuire with complaints of neck and right arm pain. She was taken off work that day until a more thorough examination could be conducted (ex. 4, page 1). She was examined by Mr. McGuire on March 5, 1990, and he diagnosed cervical strain and spasm. She was started on conservative therapy. A reevaluation on March 12, 1990, showed no improvement in her condition and a referral was made to A.J. Wolbrink, M.D. (ex. 2). Dr. Wolbrink saw claimant on March 13, 1990, at the Park Clinic in Mason City, Iowa. After conducting a physical examination and reviewing x-ray results, his impression was, "Muscular neck pain, aggravated now by her work, but secondary to her thoracic kyphosis and compensatory cervical lordosis." He recommended continuing with physical therapy, Tylenol for pain and imipramine at night (ex. 3). Claimant saw Mr. McGuire on March 26 and April 2, 1990. He noted "improving and resolving neck strain." Mr. McGuire felt that claimant could return to limited duty on April 2, 1990, but felt she must avoid lifting over ten pounds, repeated bending, extension motion with her arms and vacuuming (ex. 2, p. 4 and ex. 4, p. 6). Claimant presented her work release and restrictions to employer, but jobs were not available within her restrictions. Claimant saw Mr. McGuire on April 16 and April 30, 1990. She presented with tightness in her neck muscles and difficulty bending or turning her head. She was instructed to continue with medication and physical therapy. On May 8, 1990, claimant saw B.H. Carlson, M.D. His impression was cervical strain. Claimant was instructed to continue on the same regimen as prescribed by Mr. McGuire. On May 12, 1990, claimant called Dr. Carlson after being contacted by employer regarding a day job mopping floors. He recommended that she give it a try. However, she felt that this job would not work out well for her because it interfered with her daycare service and she was also concerned that mopping and dumping a pail of water would be too much for her neck to tolerate (ex. 2, p. 5). On June 6, 1990, claimant saw K.B. Washburn, M.D. Claimant related that while she has been unable to return to work, she has been doing housework such as dishes, making beds, picking up around the house, doing some laundry and cooking. Dr. Washburn agreed with Dr. Wolbrink's assessment that claimant had a preexisting condition, namely, thoracic kyphosis with resultant cervical lordosis, aggravated by work activity. He recommended an MRI of the cervical spine. This was performed on June 8, 1990, and revealed a, "Small central disc herniation C5-6 and slight central disc protrusion, C4-5." (ex. 5). Page 4 Claimant continued to have headaches and occasional pain into her arms. Therefore, Dr. Washburn felt that a neurological evaluation should be performed and he referred her to David W. Beck, M.D. (ex. 3, p. 2). Dr. Beck saw claimant on June 20, 1990, for evaluation. On examination, she had full range of motion of her neck, but pain on motion. She had no motor loss and her reflexes were symmetric and intact. Cervical spine x-rays taken on June 6, 1990, revealed no abnormalities. Dr. Beck indicated that, in his opinion, claimant's neck spasms and headaches are the result of the small disc protrusion at C5-6. He recommended a home traction unit for reduction of the disc bulge and relief of her symptoms. Claimant saw Dr. Beck for follow-up examination on July 11, 1990. She reported improvement in muscle spasms but, continued headaches. He prescribed Midrin along with imipramine (ex. 6, p. 2). Claimant continued to see Dr. Washburn and on January 15, 1991, showed no improvement in her symptoms (ex. 3, p. 4). She saw Dr. Beck on January 28, 1991, and he reported, "She is better than when I last saw her in July. She knows what things aggravate her and tries to avoid them." He recommended that she avoid repetitive movement of the arms and neck (ex. 8). On February 14, 1991, claimant saw Dr. Washburn for a final evaluation. At this time, he felt that she was not eligible for a work hardening program because of the possibility of rupturing the disc in her neck. In an eight-hour work day, he imposed restrictions including sitting for two hours at one time before getting up and moving around; standing and walking for one hour at a time; lifting and carrying up to two pounds up to one-third of the day; pushing and pulling a wheeled cart with 25 pounds in it up to one third of the day; occasional bending and stooping; reaching above shoulder level with about two pounds weight; no strong pinching, grasping, squeezing or repetitive motions with her arms; and no driving more than 20 to 30 miles at one time. Based on these restrictions, limitations of motion and underlying disc disease, Dr. Washburn indicated that claimant has 5 percent impairment to the body as a whole (ex. 3, p. 4 and ex. 9). On February 27, 1990, Dr. Beck reported to claimant's attorney as follows: It is my opinion that the work activities at Winnebago Industries as a cleaning person aggravated the condition for which I evaluated her. She does have a history of neck pain on and off prior to this, and she states in the record that it is similar to the pain she has had on and off for the past four years. However, this is worse. Therefore, I think she aggravated a Page 5 pre-existing condition. (claimant's exhibit 10) Dr. Beck indicated that in view of claimant's normal neurological findings with neck pain, the extent of her impairment is about 3 percent (ex. 10). On March 26, 1991, claimant presented to Richard W. Haas, D.C., with complaints of pain and stiffness in her neck, arm pain, tingling sensations in her feet, and headaches. At this time, Dr. Haas initiated chiropractic treatment which continued through May 1991 and which, according to claimant, provided no relief or improvement in her condition. CONCLUSIONS OF LAW Claimant has the burden of proving by a preponderance of the evidence that she received an injury on March 1, 1990, which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe, 246 Iowa 402, 68 N.W.2d 63. The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63. "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 128. The supreme court of Iowa in Almquist v. Shenandoah Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) discussed the definition of personal injury in workers' compensation cases as follows: While a personal injury does not include an Page 6 occupational disease under the Workmen's Compensation Act, yet an injury to the health may be a personal injury. [Citations omitted.] Likewise a personal injury includes a disease resulting from an injury....The result of changes in the human body incident to the general processes of nature do not amount to a personal injury. This must follow, even though such natural change may come about because the life has been devoted to labor and hard work. Such result of those natural changes does not constitute a personal injury even though the same brings about impairment of health or the total or partial incapacity of the functions of the human body. .... A personal injury, contemplated by the Workmen's Compensation Law, obviously means an injury to the body, the impairment of health, or a disease, not excluded by the act, which comes about, not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee. [Citations omitted.] The injury to the human body here contemplated must be something, whether an accident or not, that acts extraneously to the natural processes of nature, and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. On February 19, 1990, claimant commenced her new job cleaning offices in the main Winnebago plant. She testified that this job involved only vacuuming and was not as diversified as the job she had in Cycle-Sat. She vacuumed offices in five different buildings during the five and one-half hours she worked. She stated that she used both a regular commercial upright-type vacuum as well as a round canister-type vacuum. She alleged that on the first night of her new job, she had to carry a canister vacuum up one flight of stairs because there was no vacuum available on the second floor. The second night at work, she experienced pain and aching in her arms, muscle spasms and headaches. Eight days later she informed her supervisor, Daniel Olson, that she needed to see a doctor because she was in so much pain. In her deposition she stated that she told her supervisor that her arms were hurting and she had muscle spasms, but did not tell him that she had to carry the canister vacuum up stairs (ex. 15, p. 91). Claimant has the burden of proof to show by a preponderance of the evidence that she received an injury which arose out of and in the course of her employment with employer. Arising out of implies some causal relation between the employment and the injury. Volk v. International Harvester Co., 252 Iowa 298,106 N.W.2d 649 (1960). Page 7 Claimant has not met her burden of proof. She testified that she worked alone in the building at night and no one witnessed the event which allegedly led to her neck injury. Claimant's supervisor, Daniel Olson, testified that she complained to him about her new job the very first day she was moved to the main plant. She felt that it was a dirty place to work and she resented the change in duties. She mentioned to him that she was getting a doctor's statement in order to go on medical leave, but would be applying for other jobs while on leave. He stated that in his experience, employees do not regularly carry canister vacuums up stairs. Occasionally, vacuums are carried down stairs. Mr. Olson testified that he noticed a change in claimant's attitude after she was moved to the main building. She began coming late to work and constantly complained about the working conditions. He also stated that the job in the main plant was lighter work than that in Cycle-Sat. Mr. Olson stated that claimant never told him that she needed to see a doctor because she was having severe pain in her arms, hands, neck, and shoulders. However, she did tell him that her husband was going to check with personnel as to whether quitting her job without giving two weeks notice would effect her chances of returning. Boyd Eser testified that he called claimant at home during the first week she had changed jobs because he was told that she was upset about the move. During the course of the conversation, she complained about the dirty atmosphere of the main plant and threatened to quit. She indicated that she was being treated unfairly. At the time of this conversation, she never mentioned any physical complaints. In rebuttal testimony claimant denied all of the allegations made by Mr. Olson and Mr. Eser. Her husband also denied that he inquired about the effect of her quitting without notice on her chances of being rehired by the company. Claimant's credibility is an issue in this case. Claimant has presented no corroborating evidence supporting a work-related injury with employer. The record does show that claimant had a preexisting medical condition of thoracic kyphosis with resultant cervical lordosis resulting in muscle aching. Dr. Beck attributed claimant's neck spasms and headaches to a small disc protrusion found at C5-6. Dr. Beck further opined that claimant's work activities at Winnebago Industries aggravated this condition. However, Dr. Beck and all of the other physicians who treated and examined claimant, only knew what she told them. She did not disclose her continuing child care activities. Their opinions as to causal connection are not relevant if claimant cannot demonstrate that she sustained a work-related injury which aggravated a preexisting condition. Claimant's complaints coincidentally surfaced at the same time that she was transferred from one job to another. There is no evidence in the record which supports claimant's description of the injury. Page 8 It is clear that claimant engaged in other activities, outside of work, which could have aggravated her condition. Specifically, claimant operated a day care service in her home. She provided eight hours of care to infants between the ages of one and four. She performed activities such as lifting, turning, feeding, and all other activities associated with routine child care (ex. 15, p. 14). It is just as conceivable that claimant could have aggravated her preexisting condition by performing the physical activities required of an active child care worker. She has engaged in this business since 1979 and only recently reduced her hours from eight to six per day. Claimant's complaints appear to be far out of proportion to the clinical and laboratory findings in the record. When examined by Dr. Beck on June 20, 1990, she had full range of motion of her neck, but pain on motion. X-rays of the cervical spine showed no abnormalities. An MRI scan showed a small disc protrusion at C5-6. Dr. Washburn gave her significant restrictions only because she subjectively complained that everything she does aggravates her pain. Dr. Beck indicated that she is normal neurologically, but has subjective complaints of pain. Therefore, he gave her a rating of only 3 percent. After carefully considering the total evidence in this case, the undersigned concludes that claimant has not met her burden of proving by a preponderance of the evidence that she sustained an injury on March 1, 1990, which arose out of and in the course of her employment with employer. There is no direct chain of causation apparent between claimant's alleged work incident and her current disability. This issue is dispositive of the entire case and further analysis is unnecessary. ORDER THEREFORE, IT IS ORDERED: That claimant take nothing from this proceeding. The parties shall pay their own costs in this action. Signed and filed this ____ day of December, 1991. ______________________________ JEAN M. INGRASSIA DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Robert S. Kinsey, III Attorney at Law Page 9 214 N. Adams PO Box 679 Mason City, IA 50401 Mr. R. Jeffrey Lewis Attorney at Law 2600 Ruan Ctr Des Moines, IA 50309 51402.30 Filed December 3, 1991 Jean M. Ingrassia BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : LUELLA D. MUELLER, : : Claimant, : File No. 949601 : vs. : : A R B I T R A T I O N WINNEBAGO INDUSTRIES, INC., : : D E C I S I O N Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 51402.30 Claimant failed to prove by a preponderance of the evidence that she sustained an injury on March 1, 1990, which arose out of and in the course of her employment with employer. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : SANDRA PERRY, : : File No. 949644 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N MERCY HOSPITAL MEDICAL CNTR., : : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by the claimant, Sandra Perry, against her self-insured employer, Mercy Hospital Medical Center, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained on April 11, 1990. This matter came on for hearing before the undersigned deputy industrial commissioner at Des Moines, Iowa on July 30, 1992. A first report of injury has been filed. The record con sists of the testimony of claimant; of Robert Perry; of Grace C. Johnson; and of Tamara Singleton; as well as joint exhibits 1 through 21. ISSUES Pursuant to the hearing assignment order, the prehearing report and the oral stipulation of the parties, the parties have stipulated to the following: 1. That claimant's gross weekly wage was $252.40 and that claimant was married and entitled to two exemptions at the time of her injury resulting in a weekly compensation rate of $168.11. 2. That claimant did receive an injury arising out of and in the course of her employment on April 11, 1990. 3. That a causal relationship exists between claimant's injury and temporary total disability with claimant entitled to temporary total disability benefits from April 27, 1990 through May 15, 1990 and from October 25, 1990 through February 10, 1991. 4. That the commencement date for any permanent partial disability benefits due claimant is February 11, 1991. Page 2 Issues remaining to be decided are: 1. Whether a causal relationship exits between claimant's injury and claimed permanent disability; and, 2. The extent of any permanent disability entitlement. FINDINGS OF FACT The deputy, having heard the testimony and considered the evidence, finds: Claimant is a 47-year-old married lady who has worked in non-skilled clerical and food service industries jobs. Her primary work history has been in child care, however. Claimant has a two year degree as a child development specialist from Des Moines Area Community College and has also accumulated a number of continuing education credits in that area. Claimant began full time work at the Mercy Hospital Child Development Center in April 1989 working in the 18 month to 2-year-old room. She cared for six 2-year-olds. She engaged in all activities required to care for toddlers, including lifting and carrying them, diaper ing, fixing meals, storytelling and reading and engaging them in small and large motor activities. Claimant was injured on April 11, 1990 in the course of her employment when she attempted to catch a child who had fallen from a chair behind her. The child fell over claimant's left shoulder; claimant fell to her right, twisting her back. Claimant felt pain in her back, in both hips and down the poste rior aspect of her left leg. David D. Berg, M.D., of Iowa Occupational Medicine, examined claimant on the injury date. He found claimant extremely tender over the L4-5 and L5-S1 disc spaces and soft tissues bilaterally. Straight leg raising was positive on the left at 30 degrees and on the right at 45 degrees. No neuro-motor or vascular deficits were noted; DTR's were positive 2/4 bilaterally. Dr. Berg prescribed Motrin and took claimant off work. Claimant returned to light duty work in May 1990 serving as a receptionist for the Child Development Center. When in pain, claimant answered the phone in the Center's lounge while lying on the floor. Claimant subsequently returned to her regular job in fall. She voluntarily switched to working with 18-month-olds in a head teacher's job with better hours. Claimant was then using a TENS unit; she reported she turned it up after several hours of work. Claimant went off work again in October 1990. James L. Blessman, M.D., recommended claimant undergo pain center treatment. Claimant entered the Mercy Pain Center for four weeks in January - February 1991. Claimant was released for light duty on February 11, 1991 with a 20 pound, floor to waist lifting restriction. Subsequent to that work release claimant returned to work in a light duty capacity in Mercy's radiology department. Claimant secured written medical reports to X-ray folder jackets. Claimant reported that as a result of her pain she began to use personal leave rather than stay in her light duty job. On March 14, 1991, claimant was terminated for failure to call in on Page 3 three consecutive dates. Claimant indicated that her termination resulted from a miscommunication with Tamara Singleton, R.N., of Mercy Employee Health Services in that claimant had indicated to Ms. Singleton that claimant would be absent Thursday through Friday meaning from Thursday, March 7, 1991 through Friday of the following week. Nurse Singleton recorded that claimant would be absent on Thursday, March 7, 1991 and Friday, March 8, 1991. Claimant subsequently grieved her termination. Her grievance was denied at the first level. She did not further pursue the grievance. It is found that defendant employer did not act improperly in terminating claimant and did not terminate claimant on account of her work injury. Claimant is not now working. Claimant reported to Donna J. Bahls, M.D., on April 23, 1991 that claimant is not interested in seeking full time work since her husband is retired and does not want her to work full time. Claimant also then reported that she has no financial need to work and so testified at time of hear ing. It is expressly found that claimant is significantly lack ing in motivation to work. Claimant continues to report severe pain. Claimant uses a massaging vibrator for pain; claimant uses a TENS unit for the pain; claimant uses heat and ice for pain. Claimant also does water exercises two to three times per week in Osceola. Claimant no longer vacuums, sweeps, or does general housecleaning. Claimant does not drive for greater than 20 miles. Claimant reported that on her worse days she stays in bed, takes pain medication and uses a heating pad and a special pillow. On moderate days she naps; on good days she has discomfort only but is not pain free. Claimant has had a CT scan of the lumbosacral spine, MRI of the lumbosacral spine and an EMG of the left lower extremity. All three tests were within normal limits. Dana Simon, M.D., on December 7, 1990, indicated that claimant had clinical evidence of left L5 radiculopathy if not Sl radiculopathy although there was no testing evidence for such. Dr. Simon administered an epidermal steroid injection. Claimant indicated some relief from such in that she was able to ride in the car for approximately an hour after such. William R. Boulden, M.D., an orthopedic surgeon, first saw claimant on May 15, 1990. His impression was of mechanical back pain with referred left leg pain. He opined that claimant's signs and symptoms were not consistent with a herniated disc. Dr. Boulden and Thomas W. Bower, LPT, subsequently examined claimant in July 1991. On July 22, 1991, Mr. Bower and Dr. Boulden opined that there were no objective reasons for claimant's ongoing complaints. They characterized claimant as pain fixated and opined she had no permanent partial impairment as a result of her work injury. In his deposition of April 20, 1992, Dr. Boulden opined that claimant's complaints of thoracic back pain in October 1990 did not relate to the April 1990 injury and low back complaints since claimant had no complaints of tho racic back pain until approximately two months after she was initially seen. Dr. Boulden further opined that claimant's left arm complaints of April 1991 were not related to the April 1990 injury for similar reasons. Dr. Boulden stated nothing was Page 4 "surgically wrong" with claimant's back and that she did not need further medical treatment. He opined that claimant reached maxi mum medical improvement in July 1990. On December 12, 1990, a neurologist to whom Dr. Berg had referred claimant, S. Randy Wilson, M.D., opined that a direct relationship existed between claimant's chronic lumbosacral strain and her employment injury. Dr. Wilson declined to give an opinion as to permanent partial impairment. Grace C. Johnson, licensed physical therapist, initially evaluated claimant on October 31, 1990. On evaluation, claimant under Waddell's test showed positive signs for symptom magnifica tion illness. Ronald C. Evans, D.C., evaluated claimant on April 13, 1992. Dr. Evans indicated that claimant's work injury had produced moderate to severe left lumbosacral spinal sprain and that claimant then presented with chronic lumbosacral myofascitis. He noted that some sciatica was present although specific nerve root involvement could not be identified. Claimant scored six on the Borg pain scale index. Dr. Evans felt that score indicated either severe pathology or symptom magnification behavior. Claimant had a score of three on the Waddell symptom magnifica tion test. Given such, Dr. Evans concluded that symptom magnifi cation existed. Dr. Evans reported that great discrepancies existed between claimant's tested and observed spinal function. He indicated that claimant's range of motion losses did not equate with any factor other than muscular pain and "patient fear." Some lost tone in the left leg was noted but not true atrophy. The left hip had mild signs of capsulitis but the joint itself functioned well. Dr. Evans assigned claimant a permanent partial impairment rating of five percent of the body as a whole under the AMA Guides for lumbosacral myofascitis. Dr. Evans characterized such as "global soft tissue rating for the low back." Dr. Evans opined: There is no medical reason to believe the patient is likely to suffer injury, harm, or further medical impairment by engaging is [sic] usual activities of daily living or other activities necessary to meet per sonal, social or occupational demands. There is no medical reason to believe other restric tions or accommodations are necessary to help the patient carry out usual activities or meet personal, social and occupational demands. (Exhibit 17, page 7) Dr. Boulden's opinion that claimant has no permanent partial impairment related to her April 11, 1990 work injury is accepted over Dr. Evans' opinion and assignment of a five percent perma nent partial impairment rating. Dr. Boulden is a board certified orthopedic surgeon who participated in claimant's treatment sub sequent to her work injury. Dr. Evans is a chiropractic physi cian who saw claimant for evaluation only. Given such, Dr. Boulden's opinion is entitled to greater weight than is Dr. Evans' opinion. Furthermore, Dr. Boulden's opinion that claimant has no permanent partial impairment causally related to her work Page 5 injury is more consistent with Dr. Evans' overall findings that claimant engages in symptom magnification and with Dr. Evans' belief that claimant is not likely to suffer injury, harm or med ical impairment by engaging in her usual activities of daily living or other activities necessary to meet personal, social or occupational demands and his belief that claimant needs no fur ther restrictions or accommodations to engage in usual activities of daily living or meet routine life demands. S. Randy Winston, M.D., in December 1990, opined that causal relationship existed between claimant's diagnosis of chronic lum bosacral strain and her employment. That statement is not suffi cient to carry claimant's burden of establishing a causal rela tionship between her work injury and claimed permanent disabil ity, however. The record does not demonstrate that Dr. Winston had the benefit of having reviewed claimant's full history and treatment including the information regarding symptom magnifica tion presented in the record as a whole. For that reason, his opinion is entitled to lesser weight. Claimant is expressly found to be an individual who engages in symptom magnification. It is expressly found that claimant has few objective findings to support her continuing complaints of pain. It is further expressly found that the record does not reflect that claimant's work injury either aggravated or lit up her propensity for symptom magnification such that claimant should be entitled to any recovery on account of a causal rela tionship between the work injury and her propensity for symptom magnification. Medical evidence on this causation issue was not presented. It appears that claimant's work injury, at best, pro vided claimant a stage for displaying her symptom magnification behavior. Recovery is not committed where employment merely pro vides a stage for a nervous injury. Newman v. John Deere Ottumwa Works of Deere & Co., 372 N.W.2d 199 (1985). It is expressly found that claimant has not established the requisite causal connection between her April 11, 1990 work injury and claimed permanent partial disability. In that the requisite causal connection does not exist, no permanent partial disability entitlement exists. CONCLUSIONS OF LAW The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disabil ity on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circum stances. The expert opinion may be accepted or rejected, in Page 6 whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, its mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956). If the claimant had a preexisting condition or disability that is mate rially aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961). A treating physician's testimony is not entitled to greater weight as a matter of law than that of a physician who later examines claimant in anticipation of litigation. Weight to be given testimony of physician is a fact issue to be decided by the industrial commissioner in light of the record the parties develop. In this regard, both parties may develop facts as to the physician's employment in connection with litigation, if so; the physician's examination at a later date and not when the injuries were fresh; his arrangement as to compensation; the extent and nature of the physician's examination; the physician's education, experience, training, and practice; and all other fac tors which bear upon the weight and value of the physician's tes timony. Both parties may bring all this information to the attention of the fact finder as either supporting or weakening the physician's testimony and opinion. All factors go to the value of the physician's testimony as a matter of fact not as a matter of law. Rockwell Graphic Systems, Inc. v. Prince, 366 N.W.2d 176, 192 (Iowa 1985). As is noted in the above findings of fact, claimant has vir tually no objective findings to substantiate her claim of an ongoing permanent disability on account of her April 11, 1990 work injury. Claimant's continuing subjective complaints and her tendency to symptom magnify are insufficient to establish the existence of a medical condition significant enough to be consid ered a permanent disability as contemplated in the workers' com pensation law. Claimant has not established a causal relation ship between her injury and her claimed permanent disability. In that permanent disability must exist prior to an award of permanent partial disability benefits, claimant has likewise not established any entitlement to an award of permanent partial dis ability benefits. ORDER THEREFORE, IT IS ORDERED: Claimant take nothing from this proceeding. Claimant pay costs of this proceeding pursuant to rule 343 IAC 4.33. Page 7 Signed and filed this ______ day of ____________, 1992. ______________________________ HELENJEAN M. WALLESER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Barry Moranville Attorney at Law West Bank Building STE 212 1601 22nd Street West Des Moines, Iowa 50265 Mr. Stephen W. Spencer Attorney at Law 218 6th Ave STE 300 P O Box 9130 Des Moines, Iowa 50306 1108; 1108.20 Filed August 19, 1992 HELENJEAN M. WALLESER BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : SANDRA PERRY, : : File No. 949644 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N MERCY HOSPITAL MEDICAL CNTR., : : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 1108; 1108.20 No causal connection found between claimant's minor work injury and her continuing complaints. Evidence established claimant was a symptom magnifier whose complaints were inconsistent with objective findings. Work injury did not lite up claimant's propensity for symptom magnification but merely provided a stage for displaying it under Newman v. John Deere Ottumwa Works of Deere & Co., 372 N.W.2d 199 (Iowa 1985). BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ JAMES PAYTON, : : Claimant, : : vs. : : File No. 949693 FARNER-BOCKEN COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : ROYAL INSURANCE, : : Insurance Carrier, : Defendants. : ------------------------------------------------------------ STATEMENT OF THE CASE This is a proceeding in arbitration brought by James Payton against his former employer based upon an admitted injury of December 7, 1989. The primary disputed issue is claimant's claim for permanency benefits. He contends that he is permanently, totally disabled and relies upon the odd-lot doctrine. Claimant also seeks to recover the medical expenses shown in exhibits 9, 10, 11, and 12. The case was heard at Cedar Rapids, Iowa, on May 16, 1994. The record consists of joint exhibits 1 through 12; defendants' exhibits A through D and testimony from James Payton, Clyde Satterly and Charles Perrin. FINDINGS OF FACT Having considered all the evidence received, together with the appearance and demeanor of the witnesses, the following findings of fact are made: James Payton fell while at work on December 7, 1989. He initially sought chiropractic care and then received care from Alan C. Robb, M.D., a family practitioner. (exhibit 3). Claimant continued to be symptomatic. He was evaluated by John Walker, M.D. Dr. Walker found claimant to be very tender but the neurological examination was normal. The diagnosis was a sprain of the left and right sacroiliac joints and of L3 through S1. Treatment in the nature of chiropractic adjustments and other physical therapy was recommended together with a low back support. (ex. 5). According to claimant he saw Dr. Walker four or five times but did not recover. Starting in July 1990 claimant began treating with James B. Worrell, M.D., a neurologist. Dr. Worrell also Page 2 found claimant to be very tender in the lumbosacral area but to have a normal neurologic examination. He diagnosed severe lumbar strain syndrome. X-rays showed only minimal degenerative changes. (ex. 6, pages 1-2). On April 10, 1991, Dr. Worrell noted that claimant reported his pain to be in the range of 1 to 4 on a scale of 10. Claimant had been extensively tested and studied at the University of Iowa Hospital Spine Center but nothing had produced significant improvement. An MRI was conducted on August 31, 1990 which showed no significant findings. An EMG was also interpreted as normal. (defendants' ex. D3, pp. 15-16; def. ex. D5, p. 43). A functional capacity evaluation conducted at the University of Iowa on June 20, 1990, showed claimant to be capable of performing nonrepetitive lifting in the range of 20 pounds and lifts using only his arms in the range of 30 pounds. (def. ex. D5, p. 40). Dr. Worrell reported that claimant could return to work with restrictions of lifting in the range of 20 to 25 pounds, nonrepetitively. (ex. 6, p. 3). By November 6, 1991, Dr. Worrell reported that claimant has myofascial syndrome related to the December 1989 injury. He indicated that treatment had been totally unsuccessful, that claimant did not have a herniated disc. He assigned a permanent impairment rating of 6 percent of the body as a whole. (ex. 6, p. 8; def. ex. D2, p. 13). Claimant was sent to therapy at the Bettendorf physical therapy center in 1991. He produced inconsistent results which were interpreted as indicating symptom magnification. (def. ex. D1). In 1992 claimant was seen by Saturino Ortega, M.D., and diagnosed with a depressive disorder. Dr. Ortega attributed the depressive problem to the injury, back pain, ineffective treatment, inability to work, and financial problems. (ex. 2, pp. 1-4). The diagnosis of depression was confirmed by Kenneth J. Herrmann, M.D. (ex. 8, pp. 11-12). Claimant was treated successfully with chemotherapy and psychotherapy. His medication was discontinued. In July 1993 Dr. Ortega reported that there was no evidence of depression in that claimant had been doing quite well without being on any anti-depressant. (def. ex. D7). Since the injury claimant was off work for a substantial period of time. There were efforts to return him to work which ultimately proved unsuccessful. About the only function which claimant desired to perform was placing tax stamps on cigarettes. Claimant ceased going to work when he was assigned to refurbish a rest room. Claimant did not attempt to perform any part of the project. This case presents a situation in which there are minimal objective findings of significant physical injury yet there are subjective symptoms which seem to be out of proportion to the objective medical findings. The only objective medical finding which has been found is minimal degenerative changes. (ex. 6, pp. 1-2). Bakkiam Subbiah, M.D., who evaluated claimant in November 1991 felt that Page 3 claimant had mechanical lower back pain that was most likely secondary to osteoarthritic changes in the lower back. He recommended that claimant resume work and over a period of six to eight weeks he should be back into his normal work routine. (def. ex. D4, pp. 19-24). Simply stated, there is no objective basis in the record of this case which indicates any substantial physical disability associated with the condition of claimant's back. The undersigned does not doubt, however, that claimant experiences pain in the range of 1 to 4 on a scale of 10 with regard to his back. It is likely that he has constant pain regardless of whether or not he is particularly active. Claimant also developed a depressive disorder as a result of the injury and its consequences. Fortunately for claimant the disorder was promptly and effectively treated. There is no indication that the depression continues or that it has produced any permanent disability. The evidence in the record is to the contrary. It is therefore found that the injury of December 7, 1989 produced a myofascial syndrome in claimant's low back which causes him pain and that the condition is not likely to resolve. It also produced a depressive disorder which was not permanent. Claimant remains capable of being gainfully employed within the restrictions recommended by Dr. Worrell and other health care providers. He is not capable of performing repetitive activity with his back and needs to be able to change position approximately every 30 minutes. Exhibit 11 contains a number of prescriptions. It is found that those prescribed by Drs. Ortega and Worrell were for treatment of this injury. Those prescribed by Dr. Robb were not incurred in providing treatment for this injury. The charges in exhibit 9 are found to have been incurred in treating the psychological injury and depression. It is noted that in joint exhibit 12 the diagnosis made by Dr. Robb included depression. It appears that it was this diagnosis which led claimant into the course of care which cured his depression. Accordingly, it is found that the charges in exhibit 12 were produced as a result of the injury. Claimant testified at hearing that the pain center treatment which had been provided for this injury recommended that he obtain dumbbells to use for exercise. No corroboration of that testimony appears in the record of the case. It cannot be determined whether the dumbbells were for his general fitness and well-being or whether they were for treatment of the back injury itself. CONCLUSIONS OF LAW At the time of hearing it was indicated that the entitlement to healing period benefits was not in dispute. The dispute deals with the permanency claim and medical expenses. The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A Page 4 cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Industrial disability or loss of earning capacity is a concept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment of physical capacity creates an inference of lessened earning capacity. The basic element to be determined, however, is the reduction in value of the general earning capacity of the person, rather than the loss of wages or earnings in a specific occupation. Post-injury earnings create a presumption of earning capacity. The earnings are not synonymous with earning capacity and the presumption may be rebutted by evidence showing the earnings to be an unreliable indicator. Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218 (1979); 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. 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. If the employer fails to produce such evidence and if the trier of Page 5 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. It was stipulated that claimant fell on December 7, 1989. Thereafter he went into an extended course of medical care and absences from work, none of which seemed to improve the condition of his back. His subjective symptoms have not been corroborated by objective medical findings, even though extensive and appropriate diagnostic testing has been performed. The only diagnosis which has been made is of a myofascial syndrome or a strain. Nevertheless, the condition has proved to be permanent. The activity restrictions which have been imposed are based upon functional capacity evaluations. There are a number of indications in the record that the claimant has not been particularly frank and sincere about his efforts to resume work. The activity restrictions which have been imposed would not prohibit him from being gainfully employed. Claimant receives social security disability. It is noted that the disability award occurred at a time when the depression was ongoing. Claimant is not now handicapped by depression. When claimant's age, education, work background, and physical restrictions are considered, together with the fact of his failure to make a substantial bona fide effort to find employment, it is determined that he has a 20 percent permanent partial disability. This entitles him to recover 100 weeks of compensation benefits under the provisions of section 85.34(2)(u). This case fails to make a prima facie showing of total disability and it is not one in which the odd-lot doctrine is applicable. 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 is entitled to recover the expenses shown in exhibits 9 and 12. Defendants are also responsible for $261.77 of the charges shown in exhibit 11. Defendants are also responsible for claimant's mileage in the amount of $48.30. Since claimant has prevailed in this proceeding he is Page 6 entitled to recover the costs as set forth in his motion. These include the filing fee of $65, the fee for a report from Dr. Worrell in the amount of $80 and the deposition transcript for the claimant's deposition in the amount of $90.60. There is no provision for recovery of medical records, however. The amount of costs to be recovered is therefore $235.60. ORDER IT IS THEREFORE ORDERED that defendants pay James Payton one hundred (100) weeks of compensation for permanent partial disability at the stipulated rate of one hundred ninety-four and 05/100 dollars ($194.05) per week payable commencing September 4, 1991. The entire amount thereof is past due and shall be paid to claimant in a lump sum together with interest after credit is given for all permanent partial disability benefits which have been previously paid. It is further ordered that defendants pay claimant the sum of one thousand five hundred ninety-seven and 07/100 dollars ($1,597.07) pursuant to the provisions of section 85.27 for his medical expenses and mileage. It is further ordered that defendants pay to claimant the sum of two hundred thirty-five and 60/100 dollars ($235.60) as and for the costs of this proceeding pursuant to rule 343 IAC 4.33. It is further ordered that defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this __________ day of September, 1994. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Thomas Currie Attorney at Law 4040 First Ave N.E. PO Box 998 Cedar Rapids, Iowa 52406-0998 Mr. Richard Book Attorney at Law 500 Liberty Bldg Des Moines, Iowa 50309-2421 1108.20 1803 2204 2501 Filed September 20, 1994 Michael G. Trier BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ JAMES PAYTON, Claimant, vs. File No. 949693 FARNER-BOCKEN COMPANY, A R B I T R A T I O N Employer, D E C I S I O N and ROYAL INSURANCE, Insurance Carrier, Defendants. ------------------------------------------------------------ 1108.20 1803 2204 2501 Claimant fell and developed a painful back condition but no objective evidence of serious injury was found despite extensive testing. Claimant later developed a depression which was found to have been proximately caused by the injury. Claimant made less than exemplary efforts to resume employment. The depressive condition was effectively treated and resolved without any evidence of permanency. Claimant awarded 20 percent permanent partial disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER FRED BEBOUT, Claimant, vs. File Nos. 949915/1053466 HY-VEE FOOD STORES, INC., A R B I T R A T I O N Employer, D E C I S I O N and EMC INSURANCE COMPANIES, Insurance Carrier, and SECOND INJURY FUND OF IOWA Defendants. STATEMENT OF THE CASE These cases came on for hearing on June 13, 1995 at Des Moines, Iowa. These are proceedings in arbitration wherein claimant seeks compensation for permanent partial disability as a result of alleged injuries occurring on May 1, 1987, November 1, 1989, May 17, 1990 and July 20, 1990. Claimant had filed the two petitions referred to by the file numbers above, representing injuries of May 1, 1987 and May 17, 1990. When the hearing report was presented and signed by both parties it had the four respective dates set out therein. Normally, in a situation of this kind, one would have four files and usually multiple filing fees unless all of the cases involving the same claimant and defendant are filed at the same time. The record in the proceeding consists of the testimony of the claimant and Allen Dix, joint exhibits 1 through 4 and defendants' exhibit A. ISSUES The issues for resolution are: 1. Whether an injury arose out of and in the course of claimant's employment on the respective injury dates; 2. Whether there is any causal connection as to claimant's alleged disability and the respective alleged injury dates; 3. The commencement date at which benefits would begin. The additional issues as to file no. 1053466 are: 1. Whether claimant filed his action timely in accordance with Iowa Administrative Code 85.26 (statute of limitations); 2. Whether claimant gave timely notice of his injury in accordance with Iowa Administrative Code 85.23 (notice statute). FINDINGS OF FACT The undersigned deputy, having heard the testimony and considered all the evidence finds that: Claimant is a 60 year old high school graduate who has had no further education. He last worked for the defendant employer May 17, 1990 and was with the defendant corporation for almost 29 years, the last 20 years being continuous, until he last worked. Claimant also testified through his deposition on March 6, 1995. (Joint Exhibit 4) Claimant described the nature of his work which the majority of claimant's time with the defendant employer involved working as a meat cutter and then a seafood service meat manager, the latter position claimant holding from sometime in 1986 until March 1989. In April 1988 claimant had a heart attack, after which time he returned to work around August 4, 1988 to light duty. Around October 2, 1988 until November 26, 1988 he was on full duty, continuing as seafood service meat manager. Claimant then was off from November 26, 1988 through March 6, 1989 for anxiety. Claimant testified that around March 7, 1989 to December 13, 1989, after he had returned to work, his job was basically stocking the meat department with luncheon meat, cheeses and stocking shelves in the department. Claimant said that when he first returned to work in March 1989, he tried to cut meat but couldn't. Following claimant's approximately nine months back to work, that ended December 13, 1989, claimant was then again off work December 14, 1989 through April 5, 1990 because of lung problems. April 6, 1990 to May 17, 1990 claimant had returned to work servicing the counter and stocking luncheon meat, cheeses, etc. May 17, 1990 was claimant's last day of work and he has not worked since that time to the present, nor has he looked for any work from that time to the present, either with the defendant employer or with any other employer. Claimant then had surgery on May 17, 1990 on his left hand and arm. On July 20, 1990 he had surgery on his right hand and arm. These two surgery dates are also reflected in the claimant's alleged two injury dates. Claimant described the nature of his jobs and what they entailed as far as the use of his hands, the tools used and the requirement of holding meat with pressure, cutting with pressure, cutting and slicing meat and sawing meat bones with a saw. He also described how his profession has changed as far as the nature of the meat he had to cut. When claimant first began working he had to carry a quarter of a carcass from the cooler to the table and cut it up into the respective pieces. Now, and since approximately 1986, the meat is brought in as boxed beef and there are various parts of the carcass already carved up into the respective categories like ribs, loins, etc. He indicated the amount of weight he would have to lift or carry was substantially reduced when they went to boxed beef versus having to cut up a quarter of beef. Claimant also had to handle fish with the weight being anything from around 3/4 of a pound to a 20 pound salmon. He described how he had to handle and cut the fish. In many instances, the fish was delivered in whole for the claimant to cut and fillet. Claimant testified as to how he was exposed to chemicals when they had to cut the meat wrapping with a hot wire during approximately 15 years of the time he was with the defendant employer. He said they later had a ceramic cutting mechanism that cut the wrapping and did not let off as much fumes and at that time, they also used a different meat wrapping cellophane. Claimant also described how he would be going in and out of the cooler and the varying temperatures to which he would be exposed while cutting meat or working in the meat department. Claimant then testified as to the respective alleged injuries. The first alleged injury being May 1, 1987, in which he indicated he had started noticing problems grasping cold things, his hand would go into a claw and he would have pain in it. He said it gradually got worse to the extent that he couldn't saw or grab a knife. He next described the November 1, 1989 alleged injury in which he is contending his asthma was either caused or was substantially aggravated by his work conditions, particularly the fumes from cutting of the meat wrapping and/or the exposure to the cold in the meat department. Claimant then testified as to his May 17, 1990 alleged injury to his left hand and arm, at which time he did not return to work, and then his subsequent similar surgery on July 20, 1990 to his right hand and arm. Claimant contended that prior to his surgery, and as one of his reasons for quitting work on May 17, 1990, was that he was unable to cut meat and that he was unable to handle, grasp or stock the luncheon meat, etc. He also said that he was having breathing problems. Claimant testified that he had a major heart attack April 1, 1988, after which time he had an angiopalsty surgery, which was the balloon procedure. Claimant returned to light duty work after that attack on August 4, 1988. He had lifting restrictions and breathing problems. Claimant later contended that the breathing problems were later involving his lungs, and not his heart. He seemed to indicate he felt his lifting restrictions eventually were not as a result of his heart problems. The undersigned might note, in looking at the records, that the medical evidence does not seem to support claimant's contention. Claimant indicated that sometime in the first part of 1991, when he was still having problems with his hands and arms, was unable to grip or pinch, or have control of his hands, that he had a discussion with the defendant employer as to attempting to get back to work. The end result was that claimant resigned and his employment terminated July 11, 1991. (Jt. Ex. 2) There was considerable testimony surrounding this joint exhibit, as to the fact that it states thereon that claimant voluntarily retired due to a heart condition. It appears that, other than the signature of the claimant, he did not fill this form out, nor did Mr. Dix, who also signed the form. It appeared possibly, that Thomas Noll, who witnessed the parties' signature, was the one who filled it out. It appeared that claimant is disavowing the fact that he was retiring due to his heart condition and, pursuant to questions, wanted to lead the undersigned to believe that this was filled out possibly after he had signed it in blank. Of course, there is no evidence to this fact, and if there were any question, Mr. Noll could have been called as a witness by the claimant. The document otherwise, speaks for itself, and there would be no reason for the defendants to call Mr. Noll. Claimant seemed to indicate that he signed it without reading. Assuming that is true, which assumption the undersigned is not making, it is such a simple document with so few words that it is hard for the undersigned to believe that claimant didn't know what he was doing. Obviously, when one has litigation, hindsight is always better than foresight, but the undersigned believes what was written at the time, in 1991, is the best evidence and the best capturing of the facts and what was in the claimant's mind. It is obvious at that time that claimant was not thinking of litigation. Claimant contended at the time he resigned he was not having any having any heart problems, but his hands and lungs were giving him problems. Claimant related the various medicines he is taking for his asthma and/or heart problem. Since claimant was manager of the meat department, he received his full salary from the time of his heart attack in April 1988 up to March 6, 1989. As indicated earlier, during part of that time he had returned to light duty and then full duty as seafood service meat manager. When he then returned March 7, 1989 he was not the manager of the seafood meat department. Claimant could not recall, when testifying, as to the reason he was off work December 14, 1989 through April 5, 1990. Claimant acknowledged that prior to April 1989 he did not see anyone for any lung problems. Claimant also acknowledged that after his heart attack he was given a restriction by the doctor not to lift anything over 15 pounds. He doesn't remember if that restriction was ever lifted. The undersigned might note there is nothing in the medical records that would indicate that that restriction was lifted or should be lifted. Claimant's breathing, hacking and coughing started after his heart attack. Claimant was asked concerning certain jobs that he thought he could do at Hy-Vee. He was asked concerning the video department and as a greeter. Claimant seemed to indicate that Hy-Vee didn't have a greeter before he left. Mr. Dix, who is the manager of the store, indicated that they have had a greeter since 1986 at the store at which claimant last worked. Claimant commented that he didn't think he could possibly do that job, as he couldn't lift a child. As to the video department, he didn't think he could handle it because of his asthma. These responses seem unbelievable to the undersigned. It is obvious claimant has no intent to work, or find work and doesn't want to work. Claimant is on Social Security and this, likewise, gives him no incentive to try to work or find work. He was referred to joint exhibit 3, page 5, in which Delwin E. Quenzer, M.D. indicated on February 13, 1991 that claimant was able to do a light duty job if such employment was available. It is obvious claimant never tried. Claimant was also asked concerning that joint exhibit 3, page 5, the February 13, 1991 letter of Dr. Quenzer, in which he indicated that the primary reason for claimant's disability is his cardiac status at present. Claimant indicated he didn't believe this. It would seem from the claimant's testimony that he, in fact, did not tell the defendant employer that he felt his asthma was work connected. Mr. Dix, the Hy-Vee manager, first knew claimant was contending that was when he had notice of claimant's petition, which was filed February 15, 1994. Allen Dix testified that he has worked for Hy-Vee for 25 years and has been claimant's supervisor since February 1985 until claimant left his employment May 17, 1990. He was asked several questions concerning claimant's medical condition as he understood it, his job at Hy-Vee and the nature of claimant's job. He basically agreed with claimant's description of his duties and job. He referred to joint exhibit 3, page 6, and indicated claimant could not do his meat cutting job with those restrictions, ten pounds being the problem, but he indicated claimant would have no problem stocking luncheon meat, cheeses, etc. He indicated that other stocking of shelves (things other than the meat department) could be a problem due to the ten pound limit. He indicated claimant could work in the video department which pays about 40 to 50 percent less money than claimant would make as a meat cutter. Mr. Dix indicated they have always had a greeter at the new store, the first one being hired in December 1986. He said claimant would be good for that job because he gets along well with customers. Currently, they have an 80 year old doing this job 24 hours a week. The pay would be similar to what one would make in the video department. There were considerable questions concerning an alleged conversation Mr. Dix had with the claimant and whether it was in 1990 or 1991. Mr. Dix did not believe he had a conversation in 1991 with claimant, mainly for the reason that claimant hadn't worked since May 17, 1990. He indicated he did have a conversation with claimant which he believes was in 1990, before claimant quit, concerning various jobs up front that claimant could do. Mr. Dix acknowledged that claimant filed a civil rights action against him because of alleged demotion following claimant's heart attack. He indicated he and claimant did not have a good communication rapport. The civil rights action came as a result of claimant not being put in charge as the manager of the seafood service meat department upon his return in March 1989. Mr. Dix said that the employer won the civil rights action. Mr. Dix said that when he had originally asked claimant to take the seafood service meat manager job, he felt claimant was a good salesman and worked well with the customers. He said these same qualities would be good for claimant's work in the video department or as a greeter. He said the video or greeter jobs would comply with claimant's restrictions referred to in joint exhibit 3, page 6, said restriction pursuant to a February 6, 1991 report. Mr. Dix said that claimant's demotion from the seafood department had to do with the protection of the department and not claimant's physical condition. He said that when claimant retired in July 1991 claimant did not say he was retiring because of his hand, arm problem or asthma. He emphasized that he never knew of claimant's asthma as it was connected to any work until he was notified when the petition was filed, said petition being filed February 15, 1994. Mr. Dix acknowledged that he had a discussion with claimant in July 1991 as to claimant resigning. He said claimant called him or came in and said he was going to go on Social Security and was quitting work. He said he had the paperwork done by their company and that a Tom Noll was there, as he would be the one looking up claimant's records. He was referred to joint exhibit 2 and indicated that other than his signature that was not his handwriting and presumed it was Tom Noll's. When asked whether the claimant has worked since July 1991 he said that claimant does cleanup work at the park at Red Rock Lake. He said he saw claimant there one time and he was emptying trash. The undersigned might note that he noticed claimant's demeanor when Mr. Dix said this. Joint exhibit 3, page 1 is a June 6, 1991 letter of Delwin E. Quenzer, M.D., an orthopedic surgeon, who opined that claimant had a total of 37 percent impairment of the right upper extremity plus a 9 percent impairment of the left hand, said impairment determined by his use of the AMA Guides to the Evaluation of Permanent Impairment, Third Edition. Page 2 of said exhibit, which is an April 22, 1991 report of Dr. Reagan, shows that he suspected at that time that claimant has probably reached maximum improvement. This impairment by Dr. Douglas S. Reagan was pursuant to Dr. Quenzer having referred claimant to his partner. On February 13, 1991, Dr. Quenzer, in his report (Jt. Ex. 3, p. 5) indicated that he preferred not to issue a final rating on claimant' permanent partial impairment at that time, but he also had indicated that claimant's healing period regarding the carpal tunnel and cubital tunnel releases has been concluded. It is these two letters, joint exhibit 3, pages 2 and 5, that has caused the dispute between the parties as to the extent of claimant's healing period. The parties agreed that any period began May 17, 1990. Claimant contends it extended through April 22, 1991 as per the page 2 letter and defendants contend that it extended only through February 13, 1991, as reflected on page 5 of said exhibit. The undersigned finds that any healing period was from February 17, 1990 through April 22, 1991. It is obvious to the undersigned that on February 13, 1991 Dr. Quenzer was not only reluctant to issue any permanent impairment, but subsequent thereto, referred claimant to his partner for another opinion. In this same February 13, 1991 letter, Dr. Quenzer indicated that claimant was still in a therapy program for problems relating to his right forearm. Taking the letter as a whole and considering the ultimate letter of Dr. Reagan, the undersigned does not believe claimant's healing period, in fact, ended on February 13, but, in fact, claimant reached maximum improvement on April 22, 1991, which would amount to 48.714 weeks of healing period instead of 39 weeks. Joint exhibit 3, page 6 is the patient status report in which the doctor sets out certain restrictions, one of which is a ten pound lifting restriction, that claimant may lift 25 pounds occasionally. Joint exhibit 3, page 9 is the status report dated August 14, 1990, in which Dr. Quenzer diagnoses a bilateral carpal/cubital tunnel, which he indicated was work related. He set out in the limitations that claimant must follow. He further commented that he hoped that claimant could start at least light duty in another month. As the evidence and testimony reflects, claimant never did work after May 17, 1990. Page 11 of joint exhibit 3 is Dr. Quenzer's letter in which he opined that claimant's carpal/cubital tunnel problems are substantially caused or significantly exacerbated by the nature of claimant's work. On pages 10 and 12 of said exhibit it is obvious claimant was having cardiac problems and had a history of repeated myocardial infarctions. Page 21 of joint exhibit 3 shows the final diagnosis on claimant's admission on August 1, 1990 at the Iowa Methodist Medical Center was a coronary artery disease and chronic obstructive asthma. Pages 31 through 35 of joint exhibit 3 are exhibits concerning claimant's May 17, 1990 left carpal and cubital tunnel surgery. Joint exhibit 3, pages 26 through 30 are exhibits concerning claimant's July 20, 1990 right carpal tunnel and cubital tunnel release. Pages 38 through 40 is a report of Dr. Greg A. Hicklin, a pulmonoligist, dated May 16, 1995. In the report he notes a different history claimant gave Mayo Clinic and him concerning the extent of claimant's smoking history. In summary, the doctor said he did not feel claimant's work environment caused claimant's asthma, but that he felt historically, his work environment caused him to cough and wheeze when exposed to cold air and fumes. In May 1993, page 41 of joint exhibit 3, the doctor made a similar conclusion, opining that claimant's occupation did not cause his asthma, but again indicated exposure to cold air and fumes from the cellophane meat wrappings were associated with the exacerbation of claimant's asthma and felt it reasonable for claimant to avoid exposure to these situations that causes exacerbation of his asthma. Pages 36 through 37 is the Mayo Clinic report of February 14, 1991. Dr. Hicklin, in his report, also showed elevated left ventricular and diastolic pressure and noted that when claimant was seen in June by a cardiologist, the cardiologist felt that claimant had a left ventricular dysfunction. (Jt. Ex. 3, p. 38) Dr. John Glazier, in June 1992, was highly suspicious that claimant had left ventricular dysfunction which was the cause of claimant's shortness of breath. (Jt. Ex. 3, p. 45) Page 64 of joint exhibit 3 indicates that claimant has had a history of anxiety depression in addition to his other problems. The rest of joint exhibit 3, to page 81 contains considerable information in 1989 and 1990 concerning claimant's treatment with the doctors and reports dealing with his lung disease or asthma. It has notations concerning his cardiology problems, anxiety, etc. Dr. Jay Yans, of the Mid-Iowa Heart Institute, on June 19, 1990 issued a report at that time indicating that claimant had clinical evidence compatible with systolic as well diastolic dysfunction of the ventricle. The rest of joint exhibit 3 involving claimant's medical treatment and history does not change, add to or detract from the conclusion that is being rendered herein. There is no necessity of going into any more detail concerning it. The undersigned finds that claimant suffered a simultaneous bilateral carpal tunnel and cubital tunnel upper extremity injury on May 17, 1990. Claimant had his left carpal and cubital tunnel surgery on May 17, 1990 and then less than approximately two months later had the same surgery on his right. Claimant is arguing that the same symptoms began showing on claimant's left in May 1987, and symptoms on the right a substantial time later. There was no impairment, restrictions or permanency existing until a substantial time later, which culminated due to the cumulative injury as far as claimant's left on May 17, 1990, when he had surgery and as to the right on July 20, 1990, when he had surgery. The undersigned does not believe that the date of injury was when claimant first experienced some pain, as claimant contends. Claimant's contention, of course, would cause him to be able to claim, as he is, that he has had two separate injuries and therefore, brings in the Second Injury Fund. The undersigned believes and finds that the two left and right carpal tunnel and cubital conditions accumulated over a period of time and that they were simultaneous. This conclusion is drawn from the fact that the two surgeries were approximately two months apart. The undersigned finds that the evidence is clear that because of the nature of claimant's work and his long history at this work, that this simultaneous bilateral upper extremity injury was caused by his work and arose out of his work. In light of the above conclusion, the undersigned finds that the Second Injury Fund is not responsible to pay claimant any benefits, as the conditions for involvement of the Second Injury Fund do not exist. We do not have a first and second injury. In file no. 1053466, claimant adds another factor, contending that claimant's asthma, respiratory disease or breathing problems arose out of and in the course of claimant's employment and caused claimant to become totally disabled, or at least substantially disabled. The undersigned finds that the much greater weight of medical evidence shows that claimant has had a long history of medical problems, has had heart problems and has asthma. There is no medical evidence that causally connects claimant's asthmatic or lung condition with his work. There is no evidence that claimant's heart condition that is adding to his breathing condition was caused by his work. The only evidence is that the change in temperatures and cold to which claimant was subjected during his employment aggravated his breathing or asthma condition. It is likewise obvious that once removed, claimant would not suffer from such conditions in relation to his work. Claimant has had considerable problems since he left work May 17, 1990, thereby, he is not being exposed to any conditions at work. Claimant has failed to carry his burden to show that the claimant's problems that currently exist concerning his breathing, asthma or lung problem was caused by his work. Dr. Hicklin opined that he did not feel that claimant's work environment caused claimant's asthma. (Jt. Ex. 3, p. 40) There is testimony and evidence that claimant has a restriction as to lifting connected with his carpal tunnel surgeries. There is also evidence that claimant had restrictions as to lifting connected with his heart condition. One could conclude that the reason for claimant quitting his employment and for sure not seeking any other work or rehabilitation since May 17, 1990, has as much, if not more, to do with his heart condition as it has to do with any other condition claimant has involving his upper extremities. Claimant had a massive heart attack in 1988 and had a balloon procedure later on. The record is full of references to claimant's heart history and condition. The undersigned believes that one could conclude, without hesitation, that claimant's obtaining of Social Security disability is a result of his heart, cardiac, pulmonary, breathing and asthmatic conditions. There is no evidence that that was caused by claimant's work. Claimant seemed to make a big point of the fact that he has not been offered a job or asked to come back to work for the defendant employer. Claimant was the one who quit and then eventually asked for retirement. If he were motivated or wanted to work, he has as much, if not more responsibility to go seek employment either with the defendant employer or some other potential employer. The undersigned therefore, finds that claimant does not have body as a whole injury as to any asthmatic or lung condition. Claimant's lawyer indicated that his action for claimant's lung condition was encompassed within file no. 1053466. This is further substantiated by claimant's recasting of his amendment to his petitions pursuant to a deputy industrial commissioner's ruling. This file no. encompasses basically the same claims that are in file no. 949915, except that the allegation concerning claimant's asthma has been added in addition thereto in file no. 1053466. The undersigned therefore, finds that claimant is entitled to no recovery under file no. 1053466 and that those parts of said file that deal with claimant's upper extremities will be disposed of under file no. 949915. The undersigned finds that claimant has a 37 percent permanent impairment of his right upper extremity and a 9 percent permanent impairment of his left hand as found by Dr. Delwin E. Quenzer on joint exhibit 3, page 1. Converting these to body as a whole and using the combined charts, the undersigned finds that as a result of claimant's simultaneous bilateral carpal and cubital tunnel injuries, he has 26 percent body as a whole injury, which entitles claimant to 130 weeks of permanent partial disability benefits payable at a rate of $314.90 per week. As to the dispute concerning healing period, the undersigned finds that claimant's healing period is May 17, 1990 through April 22, 1991, as the undersigned believes that Dr. Quenzer's February 13, 1991 letter still left doubts in the doctor's mind as to claimant actually reaching maximum recovery. The record shows that Dr. Quenzer then referred claimant to his partner, Dr. Reagan, who then opined that he felt claimant reached maximum improvement on April 22, 1991. (Jt. Ex. 3, p. 2) Therefore, the undersigned finds that claimant is entitled to 48.71 weeks of healing period, which the undersigned finds arose out of and in the course of claimant's May 17, 1990 work injury, which resulted from claimant's simultaneous bilateral carpal tunnel-cubital tunnel injuries. As indicated earlier, the Second Injury Fund does not owe any benefits to the claimant. CONCLUSIONS OF LAW The claimant has the burden of proving by a preponderance of the evidence that the alleged injury actually occurred and that it arose out of and in the course of employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of" refer to the cause or source of the injury. The words "in the course of" refer to the time, place and circumstances of the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 1971). The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). When the disability develops gradually over a period of time, the "cumulative injury rule" applies. For time limitation purposes, the compensable injury is held to occur when because of pain or physical disability, the claimant can no longer work. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). Section 85.64 governs Second Injury Fund liability. Before liability of the Fund is triggered, three requirements must be met. First, the employee must have lost or lost the use of a hand, arm, foot, leg or eye. Second, the employee must sustain a loss or loss of use of another specified member or organ through a compensable injury. Third, permanent disability must exist as to both the initial injury and the second injury. The Second Injury Fund Act exists to encourage the hiring of handicapped persons by making a current employer responsible only for the amount of disability related to an injury occurring while that employer employed the handicapped individual as if the individual had had no preexisting disability. See Anderson v. Second Injury Fund, 262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers' Compensation-Law and Practice, section 17-1. The Fund is responsible for the industrial disability present after the second injury that exceeds the disability attributable to the first and second injuries. Section 85.64. Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467 (Iowa 1990); Second Injury Fund v. Neelans, 436 N.W.2d 335 (Iowa 1989); Second Injury Fund v. Mich. Coal Co., 274 N.W.2d 300 (Iowa 1970). Benefits for permanent partial disability of two members caused by a single accident is a scheduled benefit under section 85.34(2)(s); the degree of disability must be computed on a functional basis with a maximum benefit entitlement of 500 weeks. Simbro v. Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983). Section 85.34(1) provides that healing period benefits are payable to an injured worker who has suffered permanent partial disability until (1) the worker has returned to work; (2) the worker is medically capable of returning to substantially similar employment; or (3) the worker has achieved maximum medical recovery. The healing period can be considered the period during which there is a reasonable expectation of improvement of the disabling condition. See Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa Ct. App. 1981). Healing period benefits can be interrupted or intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986). It is further concluded that claimant incurred simultaneous bilateral upper extremity injury on May 17, 1990, causing claimant to incur a 37 percent permanent impairment to his left upper extremity and a 9 percent permanent impairment to his right hand, resulting in claimant, under 85.34(2)(s), to incur a 26 percent permanent impairment, resulting in claimant being entitled to 130 weeks of permanent partial disability benefits at the rate of $314.90 per week. That claimant is entitled to healing period beginning May 17, 1990 through April 22, 1991 amounting to 48.714 weeks at the weekly rate of $314.90 per week. That claimant's asthmatic or lung disease or condition or any disability resulting therefrom, did not arise out of and it was not caused by claimant's work. Claimant did not incur an injury or permanent disability that arose out of and in the course of his employment on May 1, 1987, November 1, 1989, nor July 20, 1990. That defendants' affirmative defenses as to file no. 1053466, concerning timely notice under 85.23 and statute of limitations under 85.26 of the Iowa Administrative Code are moot in light of the decision herein. That Second Injury Fund is not responsible to pay claimant any benefits, as there was no first and second injury. ORDER THEREFORE IT IS ORDERED: As to file no. 1053466: Claimant takes nothing from this proceeding. As to file no. 949915: The defendant corporation and insurance carrier shall pay unto claimant healing period benefits at the rate of three hundred fourteen and 90/100 dollars ($314.90) for the period of May 17, 1990 through April 22, 1991, encompassing forty-eight point seven one four (48.714) weeks. That defendant corporation and insurance carrier shall pay unto claimant one hundred thirty (130) weeks of permanent partial disability benefits at the rate of three hundred fourteen and 90/100 dollars ($314.90) beginning April 23, 1991. That defendant corporation and insurance carrier shall pay the accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. The parties stipulated that the defendant corporation and insurance carrier paid claimant 39 weeks of temporary total disability or healing period and one hundred forty point six (140.6) weeks of permanent partial disability benefits at two hundred ninety-six and 21/100 dollars ($209.21) per week. That defendant corporation and insurance carrier shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendant corporation, defendant insurance carrier and claimant are each responsible for payment of one-half (1/2) the costs of these actions, pursuant to rule 343 IAC 4.33. That defendant corporation and insurance carrier shall file an activity report upon payment of this award as required by this agency, pursuant to rule 343 IAC 3.1. The Second Injury Fund is not responsible for payment of any benefits to the claimant herein, and is not responsible for payment of any costs. Signed and filed this _____ day of June, 1995. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Steven C. Jayne Attorney at Law 5835 Grand Avenue STE 201 Des Moines, Iowa 50312 E. J. Giovannetti Attorney at Law 2700 Grand Avenue STE 111 Des Moines, Iowa 50312 Mr. Charles S. Lavorato Assistant Attorney General Hoover State Office Bldg Des Moines, Iowa 50319 5-1100; 5-1108; 5-1808; 5-1802 Filed June 27, 1995 BERNARD J. O'MALLEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER ________________________________________________________________ FRED BEBOUT, Claimant, vs. File Nos. 949915/1053466 HY-VEE FOOD STORES, INC., A R B I T R A T I O N Employer, D E C I S I O N and EMC INSURANCE COMPANIES, Insurance Carrier, and SECOND INJURY FUND OF IOWA Defendants. ________________________________________________________________ 5-1100; 5-1108; 5-1808; 5-1802 Found claimant incurred a bilateral simultaneous upper extremity work injury on May 17, 1990 resulting in a 26 percent impairment to claimant's body as a whole under 85.34(2)(s) in file no. 949915. 5-1100; 5-1108 Found claimant's asthma or lung problems did not arise out of and in the course of claimant's employment. Claimant took nothing as to file no. 1053466. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ BETTIE M. SUDBROCK, Claimant, vs. File No. 949929 DEPARTMENT OF PUBLIC HEALTH, 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. ___________________________________________________________ INTRODUCTION This is a proceeding in arbitration brought by Bettie M. Sudbrock, claimant, against the Department of Public Health, employer, and the State of Iowa, insurance carrier, defendants, for benefits as the result of an injury which occurred on December 28, 1989. A hearing was held in Des Moines, Iowa, on October 11, 1993, and the case was fully submitted at the close of the hearing. Claimant was represented by Channing Dutton. Defendants were represented by Greg Knoploh. The record consists of the testimony of Bettie M. Sudbrock, claimant, Patricia A. Burgett, co-employee, Rosa E. Ervin, benefits supervisor, Iowa Public Employees Retirement System, David J. Fries, division director of planning and administration of the Public Health Department, William J. Snyder, assistant to the director of the Department of Personnel, and joint exhibits 1 through 16. The deputy ordered a transcript of the hearing. ISSUE The sole issue for determination is the amount of claimant's entitlement to permanent disability benefits, if any. FINDINGS OF FACT entitlement to permanent disability benefits It is determined that claimant has sustained a 30 percent industrial disability and is entitled to 150 weeks of permanent partial disability benefits. Claimant, born January 10, 1928, was 61 years old at the time of the injury. She was 63 years old at the time of her retirement from employer's service. She was 65 years old at the time of the hearing. Claimant's industrial disability is reduced because she was nearing the end of her productive working lifetime at the time of the injury. Page 2 Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report of the Industrial Commissioner 34 (Appeal Decision 1979); Walton v. B & H Tank Corp., II Iowa Industrial Commissioner Report 426 (1981); McCoy v. Donaldson Company, Inc., file numbers 752670 & 805300 (App. Decn. April 28, 1989). At the same time, claimant credibly testified that it was her intention to work beyond age 65 before this injury occurred. Claimant's testimony is credible because she has established and exceptional life long work ethic. Claimant started to work at age 16 when she was still a high school student. She continued to work until she was 20 years of age, when she was married and quit working outside of her home in order to stay home to rear seven children. Claimant returned to the employment market at age 35 when her youngest children were in high school. After that she worked continuously until her premature retirement at age 63 on September 11, 1991 (Ex. 4, p. 81). The medical records of both Delwin E. Quenzer, M.D., claimant's operating orthopedic surgeon, and Camilla J. Frederick, M.D., claimant's other treating physician, clearly show that claimant actually urged both of these physicians to return her to work even before the physicians were ready to do so (Exhibit 1, pages 1-19). This is further confirmed by the answers to interrogatories submitted by defendants in which Mona Rocha and Norma Hildebrand confirmed that claimant had a very good work attendance record and did not want to miss any work. They confirmed that she returned to work even before the doctors had released her to return to work. The answer to Interrogatory No. 11, further reads as follows, "She said that Bettie's injuries apparently did not prevent her from doing her job, as Bettie continued to do her job entirely on her own and did so until she retired." (Ex. 3, p. 69). Claimant's State of Iowa, Confidential Performance Reviews/Evaluations, from May 4, 1984 through October 27, 1990, show that claimant performed competently, meeting all standards or requirements for her job (Ex. 12, pp. 111-126). In addition, there are two letters of commendation in claimant's file dated September 14, 1989 and May 16, 1991 (Ex. 12, pp. 109 & 110). It is also true, as defendant points out, that claimant had a number of health problems such as degenerative arthritis in her knees, (Ex. 4, p. 85) controlled hypertension, controlled diabetes and obesity (Ex. 1, p. 64), however, none of these conditions had diminished claimant's motivation or physical ability to perform her job (Transcript, p. 73). Thus, claimant's testimony that at the time of this injury, and even subsequent to it, that she planned to work beyond age 65 is credible, persuasive, and convincing. Therefore, claimant has demonstrated that she fully intended to work beyond the sometimes normal retirement age of 65. Therefore, claimant's industrial disability should not be substantially reduced for the reason that she was nearing the sometimes normal retirement Page 3 age of 65. Swan v. Industrial Engineering Equipment Co., IV Iowa Industrial Report 353 (1984) Claimant's industrial disability is not increased because of a lack of education for the reason that (1) she graduated from North High School in Des Moines in June of 1945; (2) she received a certificate from the Des Moines Area Community College for taking a medical technology course from September to December of 1981; (3) she received another certificate from the same school for completing a course in advanced typing from September of 1982 through December of 1982; and (4) while working for the State of Iowa she attended numerous classes furnished by employer (Ex. 4, pp. 81 & 82). Thus, claimant is equipped educationally to find new employment in the competitive employment market. She is suitable for retraining if it were offered or if she chose to do so. Conrad v. Marquette School, Inc., IV Iowa Industrial Commissioner Report 74, 89 (1984). It cannot be stated that claimant's industrial disability is increased because of her physical inability to perform the job that she was performing at the time of the injury, because she did return to work in October of 1990 and performed the same job at the same pay, working the same hours. She was able to perform these duties of an Accounting Technician II until the time she was forced (1) either to be laid off or (2) to retire in September of 1991. Claimant elected early retirement rather than being laid off with the unknown and unlikely possibility of being recalled based on the circumstances at that time ( Tran. pp. 57, 58, 66; Ex. 6, p. 103; Ex. 7, p. 104; Ex. 8, p. 104; Ex. 9, p. 106; & Ex. 10, p. 107). David J. Fries, claimant's supervisor, corroborated that this was a time of uncertainty and unrest in state government (Tran. pp. 81 & 84). The fact that claimant could and did perform the regular duties of her job as an Accounting Technician II does not mean that she did not sustain either a permanent physical impairment or a permanent disability or an industrial disability. Nor is the fact that claimant continued to receive salary increases after she returned to work prove that she did not in fact sustain a permanent impairment, a permanent disability, or an industrial disability (Ex. 11, p. 108). The authors of Iowa Workers' Compensation text book relate, "Another common misconception is that if an employee is earning more money post-injury than earned before the injury, there is no industrial disability. However, economic factors change. Occasionally, someone who has a rather low paying job requiring substantial physical effort will find less physically strenuous work after injury which pays a higher salary. Such a person may still have a loss of earning capacity though actual earnings are greater. The operative phrase is loss of earning capacity, not loss of actual earnings." Lawyer and Higgs, Iowa Workers' Compensation--Law and Practice, (Second Edition) section Page 4 13-5, page 131. Likewise, consideration must be given to an injured employee who works hard to compensate and overcome an existing permanent impairment and permanent disability in order to perform well in spite of significant handicaps. Even though claimant did not complain about her physical limitations because she feared that she might be fired, she nevertheless testified that performing her jobs caused a number of physical problems (Tran. p. 45). Mainly she had trouble elevating her right arm and gripping things with her right hand (Tran. p. 46). Claimant testified that Dr. Quenzer imposed first a 5-pound and later a 10-pound lifting restriction on her (Tran. p. 47). Claimant testified that she was able to arrange her work, which consisted of a variety of duties, in a way that she could get them all performed (Tran. pp. 34, 46, & 63). Furthermore, there is medical evidence that claimant was in fact significantly physically disabled by this injury which occurred on December 28, 1989, when she slipped on the ice, fell and suffered a severe tear of the rotator cuff in her right shoulder. When conservative treatment failed, Dr. Frederick ordered an MRI and an arthrogram (Ex. 1, pp. 17-19). The MRI performed on April 30, 1990, was suggestive of a partial disruption of the rotator cuff complex (Ex. 1, p. 61). The arthrogram performed on May 3, 1990, confirmed either a complete or near complete tear of the rotator cuff (Ex. 1, p. 62). On May 31, 1990, Dr. Quenzer diagnosed a rotator cuff avulsion, right, with severe impingement. He performed (1) an acromioplasty, (2) a division of the coracoacromial ligament and (3) a repair of the avulsed rotator cuff, large tear (Ex. 1, p. 63). The records of both Dr. Frederick and Dr. Quenzer verify that claimant never really did fully recover from the surgery. She experienced continuing tenderness, pain, limitation of motion and severe weakness (Ex. 1, pp. 2-19). Eventually, on April 10, 1991, Dr. Quenzer conceded that claimant had a "poor result from" the "rotator cuff repair" (Ex. 1, p. 3). On April 30, 1991, Dr. Quenzer determined that claimant had sustained a 15 percent permanent impairment to the whole person (Ex. 1, p. 1). However the full seriousness of the injury is better illustrated by quoting the basic facts which led to the conclusion that claimant had a 25 percent impairment of the right upper extremity which converted to a 15 percent impairment of the body as a whole. There is not one, but several, limitation and disability factors that combine to manifest the real seriousness of this injury. Dr. Quenzer evaluated the right shoulder as follows: Based upon a loss of active ROM of the right shoulder, a 10% impairment of the right upper extremity has occurred. She has a 60% impairment of suprascapular nerve motor function, X 15% potential = 9% right upper extremity impairment. She has a 50% impairment of supraspinatous sensory function because of continued pain, and 50% X 5% = Page 5 2.5%. She has a 10% impairment of axillary nerve motor function X 35% possible = 3.5%. These total to a 25% impairment of the right upper extremity (Ex. 1, p. 1). Thus, the permanent disability in claimant's right shoulder consists of not just one but several components (1) range of motion, (2) suprascapular and axillary nerve motor function, (3) supraspinatous sensory function and (4) pain. Furthermore, it can be seen that even though claimant did not make any verbal complaints at work to her superiors or co-employees that nevertheless, she was working under a rather severe physical handicap due to the medically established permanent physical impairment of her right shoulder. Even though claimant was able to perform the duties of an accounting technician II, she was nevertheless disabled when compared to the condition that existed in her shoulder prior to this injury. Claimant's ability to perform the job of accounting technician II, that she was familiar with, and a job where she could organize and perform her work within her limited capabilities, would not necessarily translate to other employments, other jobs within the State of Iowa system, nor would it necessarily transfer to the competitive labor market as a whole (Tran. pp. 34, 46, & 63). Hartwig v. Bishop Implement Company, IV Iowa Industrial Commissioner Report, 159 (App. Decn. June 24, 1984); Todd v. Department of General Services, Buildings and Grounds, IV Industrial Commissioner Report 373 (Iowa 1983). Therefore, the fact that claimant quietly performed her job pursuant to her own commendable work ethic, in spite of her pain and physical limitations, does not equate to the fact that claimant did not suffer from a permanent impairment, a permanent disability and substantial industrial disability. Moreover, industrial disability is not predicated solely upon physical disability. An increase of industrial disability may occur without a change of physical condition. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980). On August 9, 1991, claimant received a letter from the director of the Department of Public Health, which stated that effective with the close of business on September 12, 1991, that she would be laid off from her position as an Accounting Technician II unless she elected otherwise. She was authorized to exercise a bump into the position of Accounting Clerk I (Ex. 6, p. 103). Claimant discussed this possibility with Patricia Burgett, a co-employee who occupied that position at that time. Claimant testified that Burgett told her what the job entailed, specifically very heavy lifting, and claimant determined that she was unable to perform that job. Burgett testified at the hearing that this job required her to pick up, lift and carry 40, 50, 60, 70 and 100 pounds weights. Fries corroborated the testimony of Burgett (Tran. Page 6 p. 83). Claimant testified, and credibly so, that she was not able to perform this job. Claimant then investigated early retirement and opted to receive early retirement which allowed her to obtain approximately $1,800 in unused sick pay, rather than to opt for a layoff with the remote possibility of recall for the reason that there were rumors of more layoffs, and no optimistic rumors of recalls at that time in state government (Tran. p. 66). Rosa E. Ervin, benefits supervisor of the Iowa Public Employees Retirement system verified that claimant would receive a substantial cash payment for her unused sick pay if she retired but that she would not receive it if she were laid off (Tran. pp. 19-23). For these reasons, and for the reason that retirement provided claimant with a regular income, whereas layoff did not provide a regular income beyond unemployment compensation, it cannot be said that claimant's choice, when faced with this dilemma between two mutually unfavorable options, was unreasonable. David J. Fries, division director of Plans and Administration for the Department of Public Health, who was claimant's supervisor, testified that claimant was a good employee and that this layoff had no connection with claimant's injury (Tran. pp. 75-79). However, it is not a matter of who is to blame or who might be at fault for the layoff, industrial disability is based upon the fact that claimant sustained a work injury and thereafter sustained both a physical and nonphysical (economic) loss of earning capacity which resulted in a significant amount of industrial disability. It is determined that the physical limitations of the work injury prevented claimant from bumping the accounting clerk I and was the primary reason for the fact that claimant was forced to retire as the most reasonable choice between retirement or layoff at that time. The fact that claimant could not perform the accounting clerk I job was sequelae of the work injury that occurred on December 28, 1989. Oldham v. Scofield and Welch, 222 Iowa 764, 767, 266 N.W. 480, 482 (Iowa 1936). Oldham determined that "where an accident occurs to an employee in the usual course of his employment, the employer is liable for all of the consequences that naturally and proximately flow from the accident." Lawyer and Higgs, Iowa Workers' Compensation--Law and Practice (Second Edition) section 4-4, page 26. Thus, the injury of December 28, 1989, was the cause of both a physical and nonphysical (economic) loss of earning capacity. Hall v. Lehigh Portland Cement Co., II-1 Iowa Industrial Commissioner Report 160 (Appeal Decn. 1985). William J. Snyder, assistant to the director of personnel, testified that two other accounting technician II persons who were laid off were recalled a short time later. However, Snyder agreed that claimant would not have been expected to know that early recalls were either a Page 7 possibility or a probability at the time she was forced to decide whether to retire or be laid off (Tran. pp. 85-90). Snyder testified, "The layoff notice when it is sent out, typically there is little knowledge about when or if that person will be recalled." (Tran. p. 90). If claimant had been able to continue in the job of Accounting Technician II position she would still be earning $868 every two weeks ($434 per week). Actually claimant would probably be earning much more. These are 1990 figures (Ex. 1, p. 108). Claimant also lost a certain amount of employee benefits when she was forced to retire. By comparison her retirement check is $212 per month. This severe loss of actual earnings should however be tempered and balanced by the fact that claimant is receiving approximately $700 in social security retirement benefits. Thus, claimant's retirement income is only about one-half of what she earned as a full-time employee. However, claimant did not seriously search for any employment after she was forced to make the decision between early retirement and layoff with right of recall (Tran. p. 58). Furthermore, even though claimant had planned to work beyond age 65 it must still be considered that claimant was approaching a retirement age which is a factor which reduces industrial disability. Lidgett v. Dubuque Packing Co., I-4 Industrial Commissioner 476 (1985). Even though claimant had planned to work beyond age 65, the fact that claimant was age 63, and the fact that claimant appears to have voluntarily accepted early retirement to avoid layoff does nevertheless tend to reduce industrial disability. At the same time, her forced early retirement reduced her future earnings that she would have earned between September of 1991 and whenever she would have retired, which in turn reduced her potential, eventual retirement benefits. This too is a loss of earning capacity and an economic loss due to this injury. Claimant testified that her physical condition has become worse over time. At first she was unable to pick up a gallon of milk and soon it became difficult to pick up a cup of coffee (Ex. 4, p. 92). With respect to claimant's work ethic, she previously drove approximately 50 miles round trip in order to perform the State of Iowa job and her other Des Moines jobs, however, she testified that driving a car with the right hand and arm since the injury had become increasingly more difficult. The seriousness of the injury is further illustrated by the fact that claimant's healing period lasted 22 weeks which is approximately five months, before it was cut short by her voluntary early return to work (Tran. p. 4). Claimant testified there are a number of things that she can no longer do in performing her household tasks and her own personal care (Tran. pp. 43, 60-63; Ex. 6, p. 95). On July 3, 1990, Dr. Quenzer described claimant's injury as a massive rotator cuff avulsion on the right (Ex. 1, p. 5). On April 10, 1991, he said "the rotator cuff tear Page 8 was quite large" (Ex. 1, p. 3). Dr. Quenzer also verified that even though claimant was working full-time ten and one-half months after the surgery, on April 10, 1991, that she still had pain with activities of daily living, tenderness over the scar, limited range of motion, pain, and found it difficult to staple or remove staples (Ex. 1, p. 3). Claimant started to work for employer on May 7, 1983 and retired effective September 11, 1991. Thus, she worked for employer for a period of approximately eight and one-half years (Ex. 5, p. 71 & 72). Wherefore, considering (1) that claimant experienced a witnessed very severe specific traumatic injury to her right dominant shoulder, (2) the seriousness of the injury which caused a massive tear of claimant's right rotator cuff, (3) that claimant sustained a 15 percent permanent impairment to the body as a whole which is described in its many disabling components in the body of the decision from which she never fully recovered completely, (4) the fact that claimant was forced to leave her employment either through layoff or retirement because she established she was unable to perform the duties of the position of accounting clerk I because of the heavy weights involved, (5) the fact that claimant suffered a loss of both earning capacity and actual earnings for the period from September 11, 1991, when she retired until the time she would have at least been age 65 on January 10, 1993, a period of over one year, (6) considering that claimant is foreclosed from a number of jobs in the competitive employment market because of a serious loss of function in her right shoulder, (7) based on claimant's age, (8) based on claimant's education, (9) based on claimant's work ethic and motivation, and (10) based on all of the factors used to determine industrial disability, Christensen v. Hagen, Inc., vol. I, no. 3, State of Iowa Industrial Commissioner Decisions 529 (App. Dec. March 26, 1985); Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 State of Iowa Industrial Commissioner Decisions 654, 658 (App. Dec. February 28, 1985) and applying agency expertise [Iowa Administrative Procedure Act 17A.14(5)], it is determined that claimant has sustained a 30 percent industrial disability to the body as a whole and is entitled to 150 weeks of permanent partial disability benefits. CONCLUSIONS OF LAW Wherefore, based upon the foregoing and following principles of law, these conclusions of law are made: That the injury of December 28, 1989 to claimant's right shoulder was the cause of permanent physical disability. Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). That the injury of December 28, 1989, was the cause of claimant being forced to choose between layoff and retirement because due to the physical injury she was unable to bump into the accounting clerk I job and she therefor Page 9 suffered an additional loss of earning capacity traceable to this injury based upon economic factors. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Blacksmith v. All American, Inc., 290 N.W.2d 348 (Iowa 1980). That claimant has sustained a 30 percent industrial disability to the body as a whole and is entitled to 150 weeks of permanent partial disability benefits. Iowa Code section 85.34(2)(u). ORDER THEREFORE, IT IS ORDERED: That defendants pay to claimant one hundred fifty (150) weeks of permanent partial disability benefits at the rate of two hundred fifty-two and 48/100 dollars per week ($252.48) as stipulated to by the parties in the total amount of thirty-seven thousand eight hundred seventy-two dollars ($37,872) commencing on May 1, 1991, as stipulated to by the parties. That defendants are entitled to a credit for seventy-five (75) weeks of permanent partial disability benefits paid to claimant prior to hearing at the rate of two hundred fifty-two and 48/100 dollars ($252.48) in the total amount of eighteen thousand nine hundred thirty-six dollars ($18,936) as stipulated to by the parties. That these benefits are to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That the costs of this action, including the cost of the attendance of the court reporter at hearing and the transcript of hearing, are charged to defendants pursuant to 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 pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of October, 1993. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Channing L. Dutton Attorney at Law Suite 500 1200 35th Street West Des Moines, IA 50265 Page 10 Mr. Greg Knoploh Assistant Attorney General Tort Claims Division Hoover State Office Bldg. Des Moines, IA 50319 1803 Filed October 29, 1993 Walter R. McManus BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ BETTIE M. SUDBROCK, Claimant, vs. File No. 949929 DEPARTMENT OF PUBLIC HEALTH, 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. ___________________________________________________________ 1803 Claimant was awarded 30 percent industrial disability. Claimant fell and suffered a large tear of her rotator cuff which never did heal completely. The surgeon assessed a 15 percent permanent impairment. Claimant also suffered an economic loss due to this injury. When State of Iowa layoffs came in 1991, claimant was unable to bump the person below her because of her physical condition due to this injury. Thus, claimant was forced to choose between layoff and early retirement. She chose early retirement. This was determined to be a reasonable decision. The fact that claimant was forced to choose between layoff and early retirement because of the residuals of this injury prohibited her from bumping into the next available job and this was determined to be an economic loss of earning capacity. McSpadden. Blacksmith. Claimant was age 61 at the time of the injury and age 63 at the time of her retirement. It was determined that claimant's age reduced her industrial disability even though she had planned to work beyond age 65 but that it should not reduce it substantially. Claimant proved an extremely admirable work ethic all of her life until and after this injury.