BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ TONYA PIERSON, Claimant, vs. File No. 951206 O'BRYAN BROTHERS, A P P E A L Employer, D E C I S I O N and WAUSAU INSURANCE, Insurance Carrier, Defendants. _________________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed July 8, 1994 is affirmed and is adopted as the final agency action in this case. Defendants shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of January, 1994. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Robert W. Pratt Attorney at Law 6959 University Avenue Des Moines, Iowa 50311 Mr. E. J. Kelly Attorney At Law 2700 Grand Ave., Ste 111 Des Moines, Iowa 50312 5-1802; 5-1803; 1807 Filed January 20, 1995 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ TONYA PIERSON, Claimant, vs. File No. 951206 O'BRYAN BROTHERS, A P P E A L Employer, D E C I S I O N and WAUSAU INSURANCE, Insurance Carrier, Defendants. _________________________________________________________________ 5-1802 Claimant was awarded healing period benefits from the time she was taken off work by the treating physician until a later orthopedic surgeon determined that he had exhausted conservative treatment measures, surgery was not indicated and claimant had minimal, if any, permanent impairment. 5-1803; 1807 Impairment ratings for the shoulder were (1) minimal, if any, (2) five percent, (3) five percent and (4) seven percent. Claimant, age 29 at the time of injury, with a high school education, was foreclosed from repetitive work, overhead work, and restricted to light work at tabletop level. She was working full-time managing her parents video store and also going to college full-time with a GPA of 3.48. Her actual earning loss calculated out at 22 percent by one method and 30 percent by another method. Although employer's physician approved two jobs for her, employer nevertheless refused to offer claimant these jobs, or any employment. Employer offered no rehabilitation to mitigate their industrial disability. Although claimant's impairment ratings were not substantial, nevertheless, her industrial disability was substantial. Claimant was awarded 30 percent industrial disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ TONYA PIERSON, Claimant, vs. File No. 951206 O'BRYAN BROTHERS, A R B I T R A T I O N Employer, D E C I S I O N and WAUSAU INSURANCE, Insurance Carrier, Defendants. ___________________________________________________________ INTRODUCTION This is a proceeding in arbitration filed by Tonya Pierson, claimant, against O'Bryan Brothers, employer, and Wausau Insurance, insurance carrier, defendants for benefits as the result of an injury which occurred on April 30, 1990. A hearing was held in Des Moines, Iowa on November 10, 1993, and the case was fully submitted at the close of the hearing. Claimant was represented by Robert W. Pratt. Defendants were represented by E. J. Kelly. The record consists of the testimony of Tonya Pierson, claimant, claimant's exhibits 1 through 55, minus exhibits 6, 7 & 8, which were withdrawn at the time of the hearing (Transcript pages 105-121), and defendants' exhibits 1 through 4 (Tran. pp. 8 & 25). The deputy ordered a transcript of the hearing (Tran. pp. 103 & 104). Both attorneys submitted excellent post-hearing briefs (Tran. pp. 104 & 105). PRELIMINARY MATTER Claimant contends that she sustained permanent disability to her right shoulder and to her right wrist. Although the right wrist symptoms first appeared in May of 1989 and the right shoulder symptoms first appeared in May of 1990, the parties stipulated and have submitted this case as one injury which occurred on April 30, 1990. One of the major areas of dispute is whether the injury to the right wrist was the cause of carpal tunnel syndrome and the resulting permanent disability due to carpal tunnel syndrome of the right wrist. The original notice and petition which was filed on January 15, 1992, alleges only an injury to both shoulders, neck and back from cumulative action of repeated shoulder movements while verifying pin tickets. The petition was not amended prior to the hearing or at the time of hearing on Page 2 November 10, 1993, to mention an injury to the right wrist. However, technical rules of pleading are not followed in workers' compensation proceedings. Defendants stipulated that claimant did sustain an injury on the hearing report which occurred on April 30, 1990. This stipulation extends to both the injury to the right shoulder and the right wrist because both parties obtained evidence during the discovery process about the right wrist, submitted that evidence at the hearing and requested a determination of whether the right wrist injury was the cause of permanent disability due to carpal tunnel syndrome of the right wrist. The evidence supports the fact that claimant did sustain an injury to her right wrist which was described as right wrist pain which arose out of and in the course of employment with employer. However, the only issue to be decided in this case with respect to the right wrist is whether the injury was the cause of carpal tunnel syndrome and any resulting permanent disability or medical treatment from carpal tunnel syndrome. STIPULATIONS The parties stipulated to the following matters. That claimant sustained an injury on April 30, 1990, which arose out of and in the course of employment with employer. That the proper rate of compensation in the event of an award is $175.94 per week. ISSUES The parties submitted the following issues for determination at the time of the hearing. Whether the injury was the cause of either temporary or permanent disability. Whether claimant is entitled to either temporary or permanent disability benefits, and if so, the nature and extent of benefits to which she is entitled, to include whether claimant is entitled to scheduled member benefits for an injury to a scheduled member, or whether claimant is entitled to industrial disability benefits for an injury to the body as a whole. Whether claimant is entitled to the payment of medical benefits for the evaluation and treatment of Douglas S. Reagan, M.D., in the amount of $295 (Exhibit 54, page 89). Whether claimant is entitled to a second independent medical examination from Martin S. Rosenfeld, D.O., in the amount of $790, under the facts of this case (Ex. 55, p. 90). Page 3 CAUSAL CONNECTION/ENTITLEMENT temporary and permanent disability It is determined that the injury to claimant's right wrist was not the cause of either temporary or permanent disability. It is further determined that the injury to the right wrist was not the cause of carpal tunnel syndrome and that claimant is not entitled to permanent disability benefits or medical treatment caused by the carpal tunnel syndrome. It is determined that the injury to the right shoulder was the cause of both temporary and permanent disability to the right shoulder and that claimant is entitled to both temporary and permanent disability benefits for the injury to the right shoulder. It is determined that claimant is entitled to healing period benefits from May 18, 1990, when claimant was taken off work by Carl E. Rouse, M.D., until March 13, 1991, when Joshua D. Kimelman, D.O., determined that claimant had sustained maximum medical improvement and gave his conclusions on the amount of permanent impairment. It is determined that claimant has sustained a 30 percent industrial disability to the body as a whole and that claimant is entitled to 150 weeks of permanent partial disability benefits. Claimant, born October 15, 1961, was 28 years old at the time of the injury and 32 years old at the time of the hearing (Tran. p. 26). Claimant graduated from high school in 1980 at age 18 with average grades (Tran. p. 27). Subsequent to that she took some computer classes at Southwestern Area Community College (Tran. p. 87). During the last year of high school she worked part-time as a secretary and performed the duties of typing, filing and answering the telephone (Tran. p. 28). Claimant has worked part-time in a shoe store as a salesperson (Tran. p. 31). She has worked part-time in a general merchandise store as a stock clerk and checker (Tran. p. 31). She worked about two years in a grocery supermarket as a stock clerk and checker (Tran. p. 32; Ex. 1, p. 2). Claimant started to work for employer as a sewer on March 27, 1984 (Tran. pp. 30 & 33; Ex. 1, p. 1). Her personal health was good at that time and she had no problems with her wrists, hands or shoulders. She did not take a preemployment physical examination but did answer an extensive medical questionnaire. The information on the application for employment shows that claimant was in excellent health when she was hired by employer (Tran. pp. 33 & 34; Ex. 1, p. 3). Claimant testified that she was a sewer for three years. She described this work as follows. A. You have a tub beside you with bundles of whatever you're sewing tied up. You pick the Page 4 bundles up, put it on your lap. You take out one garment. You sew it, push it through when you're done, and put it to the other side of you (Tran. pp. 33 & 34). Approximately three years later in 1987, claimant became a verifier for shipping orders in the shipping department. She described the verifier job as follows. A. I'm next in line after the pickers. The pickers pick the garments for the order and push them around on a trolley, and then when they come to me, I have to verify they got the right thing you have to have. You undo the bundles. You have the order in one hand, and you have to check every ticket on every single garment. It's all above your head. The trolley's up above your head (indicating), and you have to check and make sure everything's correct and tie it back up and push the trolley on. Q. Are you reaching above your head a lot? A. Constantly the whole eight-hour day. Q. Do you do that with both shoulders or just the right? A. Both Q. And do you also use your wrist or hand? A. Yes. Q. Frequently? A. Yes. Q. When you flip through the -- A. You have to (indicating). Q. And you're demonstrating what you are telling us there? A. You have to count them when you're done, count how many is on the trolley. Q. With your right hand, you have your hand above your head level? Am I correct? You have to say yes. A. Yes. Q. How often do you do that activity? A. Eight hours a day, constant. There's trolleys just backed up all the time. Q. What are on the trolleys? Page 5 A. The garments -- Q. I'm sorry. A. -- hanging on hangers. Q. What are the garments? What are they manufacturing? A. Lady's lingerie and nightwear. Some of it's really heavy. Some of it's really light. (Tran. pp. 35-37). Claimant testified that she began to have trouble with her right wrist in May of 1989 and that she saw Carl E. Rouse, M.D., at that time. She related that he gave her a brace to wear, but it separated her fingers, and she needed her fingers together in order to do her job of grasping pin tickets on garments and being able to count. Claimant related that the doctor then instructed her to use her whole arm instead of just her wrist (Tran. pp. 39 & 40). The office notes of Dr. Rouse verify claimant's testimony above. In addition they show that on May 19, 1989, while working at O'Bryan's over a period of time the right wrist and arm got numb. The chief complaint was the right wrist. Dr. Rouse noted that claimant had a job where she was required to bend her wrist. Thus, Dr. Rouse provided causal connection of the employment to right wrist pain. There was no obvious abnormality on x-ray. The x-ray Page 6 showed no fracture, dislocation or foreign body and it was interpreted as essentially negative (Ex. 2, p. 7). Dr. Rouse found some swelling of the ulnar styloid, but grip strength and reflexes were essentially the same bilaterally. He diagnosed tendinitis. Claimant lost no time from work but rather continued to work shifting the effort to her arm and shoulder rather than to her right wrist. (Ex. 5, p. 12). Approximately a year later, on May 3, 1990, claimant saw Dr. Rouse again, but this time the complaints were in her shoulders, right worse than left. The doctor reported that she used her shoulders more in her work after the wrist pain in May of 1989. Dr. Rouse diagnosed overuse syndrome secondary to activity at work (Ex. 2, p. 8). Thus, again Dr. Rouse provides causal connection between the employment and the right shoulder pain. On May 16, 1990, Dr. Rouse took claimant off work effective May 18, 1990, because of right shoulder pain (Ex. 3, p. 10). He prescribed Tollectin. An x-ray of the right shoulder on June 11, 1990, was normal (Ex. 4, p. 11). The doctor prescribed two weeks of physical therapy of phonophoresis with hydrocortisone cream (Exs. 10-14). When this failed to give relief Dr. Rouse referred claimant to Joshua D. Kimelman, D.O., an orthopedic surgeon (Tran. pp. 42-42; Ex. 1, p. 8; Ex. 4, p. 11). The parties stipulated that claimant's workers' compensation payments started on May 18, 1990 (Tran. p. 44). An examination of the physical therapy notes for the dates May 24, 1990, May 29, 1990, May 30, 1990, May 31, 1990, June 1, 1990, June 4, 1990, June 5, 1990, June 6, 1990, June 8, 1990, June 11, 1990, June 13, 1990, June 15, 1990, June 18, 1990 and June 28, 1990 are helpful. The physical therapist reported that claimant encountered pain in her hand and wrist after she substituted shoulder rotation for wrist ulnar/radial deviation (Ex. 11, p. 25). However, the treatment on all of the foregoing dates was for the right shoulder. None of it was for the right wrist or right hand (Exs. 10, 11, and 12, pp. 24-30). On the contrary, on the first visit the therapist noted, "Patient denies any tingling, numbness, pain paresthesia in the right upper extremity at this time." (Ex. 11, p. 25). Thus, there was no evidence of right hand or right wrist pain during this period of physical therapy. Claimant saw Dr. Kimelman on June 20, 1990 (Tran. p. 45; Ex. 15, p. 34). He too recorded that to avoid tingling and numbness in the wrist and hand that she started rotating her shoulder. He said that claimant pointed to the anterior acromium as the area of her pain. She denied any pain radiating into the arm, neck pain, tingling, numbness, etc. (Ex. 15, p. 34). A single anterior/posterior x-ray of the shoulder was within normal limits. Dr. Kimelman diagnosed, "impingement syndrome, right shoulder." (Ex. 15, p. 34). On July 25, 1990, claimant reported tingling and numbness in the ulnar three digits of the right hand in addition to shoulder pain. On July 31, 1990, an EMG/NCV Page 7 study ordered by Dr. Kimelman disclosed nerve root conduction velocity of the right median and the right ulnar nerves was normal and the electromyographic study was normal (Tran. pp. 47 & 48; Ex. 9, pp. 20-23). On September 21, 1990, Dr. Kimelman reported clunking and crepitation of the right shoulder with impingement testing but no mention is made of right hand or wrist pain. An MRI of the right shoulder on October 18, 1990, showed inflammatory changes but no tear (Tran. p. 49). A cortisone injection of the subacromial bursa gave good immediate relief but not lasting relief. No mention is made of the right hand or wrist (Ex. 17, p. 36; Tran. p. 50). On November 14, 1990, Dr. Kimelman notified the insurance carrier, "I feel she should avoid repetitive overhead use of her right upper extremity. She is able to work at table top level (Ex. 18, p. 37; Tran. p. 50). Claimant was recalled to work on November 20, 1990 and assigned to the task of inspector of garments. This job clearly violated the restrictions just imposed by Dr. Kimelman. Claimant described this job of garment inspector as follows. A. There's a big bin beside you with garments that are already fully sewn, and you pick them up out of that, you lay them on the table, and you inspect them for flaws in the material, for flaws in sewing. Then you put them on the hangers, and hang them up above you, and when you get a bundle then done, which is twenty-four garments, you have to take those twenty-four and put them up higher (indicating) on to a rail there that leads them through the steam tunnel. Q. Is that overhead activity? A. Yes. Q. Is it repetitive activity? A. Yes. Q. Was it heavier work than you were doing? A. Yes, because before I didn't have to lift the garment. Q. Were you able to do that job? A. No. Q. What problems did you have doing that job? A. It hurt my shoulder. Q. Did you tell someone at work? A. Yes. Page 8 Q. Who did you tell? A. Marilyn Boswell. Q. And what did she do after you told her that? A. She told me not to try it anymore. ... Q. Did you come back to work the next day? A. No. Q. Why not? A. They didn't have any other job for me. Q. Did they tell you not to come back? A. Yes. Q. Have you been contacted by anyone from O'Bryan Brothers since November 1990 to return to work? A. No. (Tran. pp. 52-54) Claimant returned to Dr. Kimelman on November 29, 1990, for follow-up of impingement of the right shoulder but no mention is made of the right wrist. He said the cortisone injection was ineffective. He restricted claimant to "light duty work with no overhead lifting." (Ex. 19, p. 38; Tran. p. 56). On January 25, 1991, claimant reported continued pain to her right shoulder with limited motion. Dr. Kimelman commented, It was thought that there would be a light duty job for her with no overhead lifting, however, that never panned out and she has not returned to work. ... She's failed to respond to conservative treatment including rest, exercise, physical therapy, cortisone injection and I believe the next step would be impingement release if symptoms warrant. She reports that she may have an opportunity to perform a different type of work and she's not sure if her symptoms bother her enough for an operation. RECOMMEND that she consider her alternatives. Get back to me and we'll see her back again in one month. She could resume light duty with no overhead lifting if available to her (Ex. 20, p. 39). Page 9 Claimant testified that Dr. Kimelman said that she should find something different to do (Tran. p. 56). She testified that she had a list of places that she had tried, "lots of places" where she had looked for work (Tran. p. 57). The list was not introduced into evidence, however. Dr. Kimelman reported to the insurance company on March 13, 1991, that claimant was suffering from impingement syndrome to her shoulder. No mention is made of any problem to her wrist. The doctor said that claimant failed to respond to conservative treatment. He said that she had very minimal, if any, permanency associated with this injury. He added that if she were to have an impingement release the impairment would be approximately 5 percent depending upon her recovery, range of motion, strength, stability, etc. (Ex. 21, p. 40). This letter by Dr. Kimelman on March 13, 1991, is determined by this deputy to be a statement by Dr. Kimelman that claimant had obtained maximum medical improvement in his opinion on this date. Prior to that time improvement through surgery, had been a consideration, but was ruled out as of March 13, 1994. Dr. Kimelman wrote a final letter to defendants' Page 10 counsel on September 28, 1993, which will be discussed later in this decision. On February 20, 1991, claimant was examined and evaluated by Scott B. Neff, D.O., an orthopedic surgeon (Ex. 22, p. 41). No reason for the switch to Dr. Neff was given when Dr. Kimelman was already treating claimant as the authorized physician. He said that claimant's right shoulder was abnormal. The impingement maneuver was markedly positive, with several limitations in range of motion. Dr. Neff determined that claimant had a Type III or hooked acromion with a large inferior spur which predisposed claimant to impingement syndrome and subacromial bursitis. The doctor said that he could see on x-ray that the greater tubberosity of the humerus was impinging on the lateral aspect of the acromion. Dr. Neff proposed three alternatives: (1) seek employment elsewhere, (2) create or modify a job for her, or (3) perform a subacromial decompression with release of the coracoacromial ligament and acromioplasty (Tran. p. 61). On March 22, 1991, Dr. Neff reviewed a video of the garment inspector job and said that he believed that claimant could perform it. However, this is the job that claimant tried on November 20, 1991 and she was unable to do it (Tran. pp. 62-64). It is the conclusion of this deputy that both employer and employee agreed on November 20, 1991, that claimant was unable to perform the garment inspector job. Dr. Neff said that claimant could possibly perform the verifier job with certain job modifications in her work station (Ex. 23, p. 44). However, these modifications were not made by employer. On April 1, 1991, Dr. Neff clarified that claimant had impingement syndrome and a large acromial spur and that repetitious activity in the elevated position would give her persistent problems. He further stated that "she does not have any permanent impairment." (Ex. 24, p. 45; Tran. p. 64). This contradicts his opinion on March 22, 1991, that she could perform the verifier job because it is both over head and repetitive. Likewise, his opinion that she cannot perform repetitive, overhead work is totally inconsistent with his opinion that claimant has no permanent impairment. Dr. Neff changed his opinion on April 17, 1991, when he found (1) tenderness over the anterior of the right acromion, (2) coracoid tenderness and (3) positive impingement maneuver. He found a reduced range of motion of the shoulder and stated, "Based on her range of motion loss, this patient has sustained a 5 percent impairment of her right upper extremity as a result of this circumstance." (Ex. 25, p. 46; Tran. pp. 64 & 65). Dr. Neff gave no explanation for his sudden change of opinion in the 17 days between April 1, 1991, (when he said there was no permanent impairment) and April 17, 1991, (when he said that claimant had a 5 percent permanent impairment). Dr. Neff recommended to the insurance carrier that they Page 11 find work that claimant could perform. He said that surgery would be reserved for symptoms which are uncontrollable and unacceptable after work alteration (Ex. 25, pp. 46 & 47). There is no evidence that defendants did in fact, or even attempt to, provide any modified work to claimant after this recommendation by Dr. Neff. On October 31, 1991, Dr. Neff wrote to the insurance carrier stating that claimant's impairment was to the arm and not to the body as a whole based upon a recent supreme court decision which the doctor did not cite (Ex. 26, p. 48). Whether an injury is to the arm or to the body as a whole for workers' compensation purposes is a determination that is properly within the province of the industrial commissioner. Doctors follow a medical model in making this determination, whereas, the industrial commissioner follows the law. For medical purposes the upper extremity which Dr. Neff rated includes the shoulder. Gray's Anatomy, page 134, defines the upper extremity as follows: "The bones of the upper extremity consist of those of the shoulder girdle, of the arm, the forearm, and the hand." Thus, in medical terms the upper extremity extends from the tips of the fingers through the shoulder girdle. This terminology of the upper extremity is further verified by the Guides to the Evaluation of Permanent Impairment, 4th Edition, published by the American Medical Association, on pages 3/17 and 3/18 at figures 1 and 2, where it shows the upper extremity to be the entire arm and the shoulder girdle. The Guides further state, "The hand and upper extremity section considers evaluation of the thumb, finger, wrist, elbow, and shoulder regions." Guides, Section 3.1 The hand and Upper Extremity. This is why physicians rate arm injuries in terms of the upper extremity. Likewise, they also rate shoulder injuries in terms of the upper extremity. Therefore, an upper extremity rating by a physician requires a closer analysis for workers' compensation purposes. The Iowa Workers' Compensation Law does not have a benefit entitlement for a disability, loss or loss of use to the upper extremity. The words upper extremity are not used anywhere in the workers' compensation law or more particularly in Iowa Code section 85.34(2), Permanent Partial Disabilities. For workers' compensation purposes the arm is a scheduled member with a limitation of 250 weeks of benefits. Iowa Code section 85.34(2)(m). In all other cases of permanent partial disability, other than the scheduled members listed in paragraphs a through t, the compensation is based upon a percentage of 500 weeks. Iowa Code section 85.34(2)(u). The dividing line between the arm and the body as a whole for workers' compensation purposes is the Page 12 gleno-humeral joint, which is a a ball and socket joint, with the ball being head of the humerus of the arm and the socket being the gleno-cavity of the scapula, which is on the body side of the shoulder joint. Everything distal to the gleno-humeral joint is the arm. Everything proximal to the gleno-humeral joint belongs to the body as a whole. This clarification of this issue was recently affirmed, pronounced and promulgated by the industrial commissioner in the case of Haffner v. Electrical Systems, File No. 955542 (Appeal Decn., Feb. 25, 1994). In this case the parts of the body which are affected, injured and disabled are primarily parts of the body as a whole according to the notes of Dr. Kimelman, Dr. Neff and the physical therapist. The first office visit of Dr. Kimelman states that claimant pointed to the anterior acromion as the area of pain. He said she denied radiating pain to the arm, neck pain, tingling, numbness etc. (Ex. 15, p. 34). The acromion is part of the body as a whole. It is not a part of the arm. Dr. Kimelman gave claimant a cortisone injection in the subacromial bursa. The subacromial bursa is a part of the body as a whole. It is not a part of the arm. Dr. Kimelman consistently referred to the injury as a shoulder injury (Ex. 15, p. 21). In Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161, (1949) defendants contended that a shoulder injury was an injury to the arm. The supreme court disagreed, citing Dailey v. Pooley Lumber Company, 233 Iowa 758, 763, 765, 10 N.W.2d 569, 573 (1943) and stated that defendants' assumption that an injury to a shoulder is a scheduled member injury is unwarranted. The court said that the arm section of the Code does not apply to the shoulder, nor is the shoulder designated as a scheduled member in any other section of the Code. Alm, at page 1177. Dailey v. Pooley held at page 765 that where the injury is to a scheduled member, and also to other parts of the body not included in the schedule, then the resultant permanent disability, if established, is compensable as an injury to the body as a whole. Similarly, the supreme court stated, in Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986), "We conclude that Iowa Code section 85.34(2)(o) in defining a leg, does not include a hip joint." Thus, it would appear to this deputy that the Supreme Court of the state of Iowa has concluded that shoulder injuries and hip injuries are injuries to the body as a whole as a matter of law in the absence of compelling evidence to the contrary. The court further stated in the Lauhoff case, "The AMA Guide relied on is of doubtful authority in this case, in any event, because it includes the hip as part of the 'lower extremity' a term which is not found in our statutory schedule." (Lauhoff pp. 839 & 840). Dr. Neff found that claimant had a Type III or hooked Page 13 acromion with a large acromial spur which predisposed her to impingement syndrome and subacramial bursitis. On x-ray he could see the greater tubersity of the humerus impinging on the lateral aspect of acromion. Thus, by Dr. Neff's own description of the injury and disability it affects and involves parts of the body as a whole, to wit, the acromion and the subacromial bursa. Further confirmation that this is an injury to the body as a whole is found in the physical therapy notes for the several physical therapy treatments between May 24, 1990 and June 28, 1990, where the therapist refers to the anterior portion of the shoulder, the posterior portion of the shoulder, the pectoral muscle on the right, the insertion of the levator scapula, the tendon to the infraspinatous muscle, the teres minor muscle, the acromio-clavicular joint and the coracoid process, which are all parts of the body as a whole because they are found on the body side of the gleno-humeral joint (Ex. 11 & 12, pp. 25-30). The greater tuberosity and lesser tuberosity of the humerus, which are parts of the arm, are mentioned in the physical therapist's notes, but they are mentioned not because they are injured, but rather because they caused aggravation and pain when they came in contact with the acromion which is the body part that suffered the injury, impairment and disability. Gray's Anatomy, at page 144, further defines the arm as follows: "The arm is that portion of the upper extremity which is situated between the shoulder and the elbow. Its skeleton consists of a single bone, the humerus. Gray's Anatomy, at page 150, defines the forearm as follows: "The forearm is that portion of the upper extremity which is situated between the elbow and the wrist. Its skeleton is composed of two bones, the ulna and the radius." Thus, for workers' compensation purposes the arm is constituted by the skeletal bones of the humerus, ulna and radius. None of these bones or surrounding tissue was determined to be injured by either Dr. Kimelman or Dr. Neff. The parts these doctors found to be injured and disabled were parts of the body as a whole. The shoulder, and more particularly the acromion, scapula, coracoid process and subacromial bursa are not a part of the arm, because they are proximal to the gleno-humeral joint and are considered to be parts of the body as a whole for which benefits are awarded under Iowa Code section 85.34(2)(u). The parts of the arm in the shoulder joint were not determined to be injured or disabled. The major arm part is the head of the humerus which consists of the greater tuberosity, the lesser tuberosity and the bicipital groove. The injury, the impairment, the loss, the loss of use, the Page 14 permanent disability all occurred to parts of the body as a whole. Thus, even if parts of the arm were considered to be injured, which they were not, claimant would still be determined to have sustained an injury to the body as a whole because the injury and disability extended beyond the scheduled member to the body as a whole under the rule in the Dailey case. Moreover, Dr. Neff based his permanent impairment rating on a loss of motion in the shoulder. The industrial commissioner determined some time ago that a loss of range of motion in the shoulder was sufficient to cause an injury to be considered an injury to the body as a whole. Fullerton v. Caterpiller Tractor Co., IV Iowa Industrial Commissioner Report 135 (App. Dec. 1984). On December 30, 1991, Dr. Neff reviewed two more job descriptions and videos for two jobs with employer, (1) the "spaghetti operator" and (2) the "machine label maker", and determined, "There is no medical reason from an orthopedic surgical standpoint why this patient cannot do either of these jobs." (Ex. 27, p. 49). Claimant testified that she did not receive a call from employer offering her either one of these two jobs or any other job at any time after November 20, 1990 (Tran. pp. 54 & 68). The Iowa Supreme Court has stated that an employer's refusal to provide any work for an injured employee is a factor of disability irrespective and independent of functional impairment. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 192 (Iowa 1980). Thus, even though claimant's permanent impairment rating is not large, nevertheless, her industrial disability is greatly increased by the fact that employer considers claimant to be unemployable. It is highly inconsistent for an employer to argue that the injured employee is only slightly disabled and at the same time have no work that she can do even when the authorized treating physician has determined that there are two jobs that she can do at employer's place of business. 2 Larson, Workman's Compensation Law, section 57.61(b) at pages 10-398 and 10-403; Killinger v. Mark Wells Distributing Co., File Nos. 775851 and 808991, arbitration decision filed October 27, 1989 ( Appealed 11-15-89, Settled 12-21-89). On September 27, 1991, Jerome G. Bashara, M.D., performed an independent medical examination after reviewing the medical evidence in this case. He noted that the EMG of July 31, 1990, was interpreted as normal. At the time of Dr. Bashara's examination claimant only had "occasional numbness and tingling in the right hand." (Ex. 41, p. 69). Dr. Bashara found tenderness over the rotator cuff and subacromial bursa, which are parts of the body as a whole, and not the arm. She had crepitation and impingement of the shoulder and moderate restriction of motion. Dr. Bashara noted the subacromial spur on Dr. Rouse's x-rays of June 11, 1990 and Dr. Neff's x-ray of February 20, 1991. He said that the MRI of October 10, 1990, showed abnormal signals throughout the rotator cuff and glenoid labrum. Page 15 Dr. Bashara diagnosed rotator cuff tendinitis, subacromial bursitis, and impingement syndrome of the right shoulder, all of which are indicative of an injury to the body as a whole. He recommended restriction of no repetitive use of the right shoulder and no lifting overhead of 10 pounds on a repetitive basis. He determined that claimant had sustained a 7 percent permanent impairment of her right upper extremity related to her shoulder (Ex. 41, pp. 68-70). Claimant returned to Dr. Neff on March 30, 1992, almost two years after the original injury of April 30, 1990, complaining of numbness and tingling in her right hand and that it gets cold while simply walking in the evening (Tran. p. 70). Dr. Neff referred claimant to William Koenig, M.D., a physical medicine and rehabilitation physician for evaluation of fibrositis, fibromyalgia, an EMG and a possible bone scan (Ex. 28, p. 50). Dr. Koenig saw claimant on April 23, 1992 and identified her primary complaint in the shoulder in the area of the acromion and the pectoral area. She also complained of paresthesias of the hand when exposed to cold, walking or driving a car. Tinel sign was negative at the elbow and wrist. He diagnosed fibrositis syndrome and possible carpal tunnel syndrome (Ex. 42, p. 71). The results of Dr. Koenig's EMG study were "EMG study is normal. No evidence seen for nerve root compression, right, et. al. IMPRESSION: mild right carpal tunnel syndrome." Ex. 44, p. 74). It would appear that claimant's carpal tunnel syndrome was indeed very mild if there was no nerve root compression. The earlier EMG in July of 1990, which was found to be normal, did not find any nerve root compression either. Dr. Koenig refused to comment on causation. He stated, "As secondary or tertiary consultants it is not our policy to agree or disagree e our referred sources re causality. The only time we do so (make opinion) is when we are primary treating source." (Ex. 48, p. 79). Dr. Koenig referred claimant to Douglas S. Reagan, M.D., for possible surgery when Dr. Neff refused (without explanation) to continue to see her (Tran. pp. 73-75 & 127; Ex. 42, p. 71; Ex. 47, p. 78). Dr. Reagan saw claimant on August 20, 1992 for both shoulder and hand complaints. His x-rays were unremarkable. He diagnosed, (1) possible subacromial bursitis, (2) carpal tunnel syndrome, (3) possible thoracic outlet syndrome and (4) myofascial pain syndrome versus fibromyalgia as noted by Dr. Koenig. Several options were discussed and claimant wanted to proceed with carpal tunnel surgery (Ex. 49, pp. 80-82; Ex. 50, p. 83). On January 25, 1993, Dr. Reagan opined that the carpal tunnel syndrome was not caused by claimant's work for employer, but it was aggravated by it. Dr. Reagan based his opinion in part on the fact that claimant had continuous Page 16 discomfort since the onset of symptoms in April of 1989, however, the medical evidence summarized above does not reflect any serious continuing complaints about her right hand or wrist while treating with either Dr. Kimelman or Dr. Neff or during her independent medical examination with Dr. Bashara. Dr. Reagan explained, "... the literature would suggest that anywhere between 8% and 40% of carpal tunnel syndromes are not associated with a positive EMG." (Ex. 51, p. 84). Dr. Reagan's report also suggests that a finding for carpal tunnel syndrome on EMG may develop later after the onset of the clinical symptoms (Ex. 51, p. 84). He estimated that claimant had a small amount of impairment in the right hand in the range of 1 percent to 2 percent based on discomfort in the hand (Ex. 51, p. 84). On August 24, 1993, claimant was examined by Martin S. Rosenfeld, D.O., an orthopedic surgeon, for a second independent medical examination. He stated that her hand was worse than her shoulder at that time. He said she was dropping things and being awakened at night. Dr. Rosenfeld found Tinel, Phalen and carpal compression all present on the right, and also found a positive impingement present in the right shoulder. Dr. Rosenfeld's impression was (1) repetitive use injury of the right upper extremity with residual carpal tunnel syndrome and (2) right shoulder impingement syndrome. He recommended surgery to both areas. Without the surgery at the time of his examination he assessed that claimant had a 5 percent impairment to the right upper extremity as a result of her impingement syndrome and another 5 percent impairment to the right upper extremity as a result of her carpal tunnel syndrome (Ex. 25, pp. 86 & 87). Dr. Kimelman reported again on September 28, 1993, that claimant initially told him that the substituted use of her shoulder, instead of her wrist, was successful because the tingling and numbness in her hand was not a presenting complaint. She had a negative Phalen's test. Subsequently, she complained of some numbness in the ulnar three digits but that an EMG showed no evidence of nerve entrapment in July of 1990. Dr. Kimelman opined, "I do not feel that carpal tunnel syndrome arising in 1992 could result from on the job activity occurring in April, 1990." (Ex. A-2, p. 3). Dr. Kimelman said that he had reviewed the reports of both Dr. Neff and Dr. Reagan and that he was in agreement with Dr. Neff's reports. Dr. Kimelman added, "I agree in review of Dr. Bashara's notes that he did not find evidence of carpal tunnel syndrome when he evaluated Ms. Pierson." (Ex. A-2, p. 4). On September 29, 1993, Dr. Neff stated, "If, however, repetitious activity associated with a specific work place or job stops, then that activity can no longer continue to contribute to the development eventually of carpal tunnel syndrome." (Ex. A-3, p. 7). With respect to the shoulder impingement syndrome Dr. Neff stated, "It is my opinion that impingement syndrome or Page 17 subacromial bursitis can be directly related to the repetitious activity and use of the arm at and above the shoulder height or repetitious push-pull, back-and-forth activity." (Ex. A-3, p. 8). Thus, Dr. Neff states that the carpal tunnel syndrome disability was not caused by this injury but agrees that impingement syndrome disability was caused by this injury because the proven facts are that claimant did perform repetitive work with her arms above shoulder height for several years. Claimant admitted that she did some sewing and performed some craft work at home in 1990 and that it made her hand and arm complaints worse (Tran. pp. 93 & 95). She testified that sometimes she sewed at home three days a week and sold some of the items (Tran. pp. 91-94). She is no longer able to do these jobs for more than 20 to 30 minutes at a time (Tran. pp. 92 & 93). Claimant further related that the repetitive activities at work were constant whereas the sewing and craft activities at home were simply leisure activities (Tran. p. 102). From the foregoing evidence it is determined that the injury was the cause of permanent disability to claimant's right shoulder, but that it was not the cause of the carpal tunnel syndrome disability which manifested itself two years later after the initial injury date in this case and three years after claimant first complained of right wrist pain on May 19, 1989 (Ex. 5, p. 12). Even though claimant contends that she was having wrist and shoulder problems when she saw Dr. Kimelman she admitted that he did not treat her wrist (Tran. pp. 58 & 59). Claimant also indicated that Dr. Neff treated her right hand and wrist but this contention is not borne out by Dr. Neff's record (Tran. pp. 65 &68). Dr. Neff stated that when he treated her that her primary complaints were to her shoulder (Ex. 38, p. 63). The opinion of Dr. Kimelman and Dr. Neff that the injury did not cause carpal tunnel disability is preferred over the testimony of Dr. Reagan and Dr. Rosenfeld. Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985). Dr. Koenig did not make a specific statement as to whether the employment injury was the cause of any permanent carpal tunnel disability (Exs. 42-47, pp. 71-79). In fact, Dr. Koenig declined to give any opinion on causation (Ex. 48, p. 79). Claimant received physical therapy treatments a second time at the direction of Dr. Koenig on May 7, 1992, May 8, 1992, May 11, 1992, May 13, 1992, May 14, 1992 and May 18, 1992. It is noted that all of it was directed to her shoulder and none of it was directed to her right hand or wrist (Ex. 13 & 14, pp. 31-33). Again, the notes of the physical therapist demonstrate that the parts of the body affected by the injury which needed treatment were parts of the body on the proximal side Page 18 of the gleno-humeral joint such as the infraspinitous muscle, levator scapula, supraspinatous, trapezius, scapula, neck, and paraspinal muscles (Exs. 13 & 14, pp. 31-33). It is determined that claimant is entitled to temporary disability benefits for a period of healing which began on May 18, 1990, when Dr. Rouse took claimant off work for this injury (Ex. 3, p. 10; Tran. p. 88). Claimant's attorney stated on the record that the parties agreed that workers' compensation benefits were begun on May 18, 1990 (Tran. p. 44). The healing period benefits should terminate on March 13, 1991, when Dr. Kimelman indicated that he had exhausted his efforts at conservative treatment and indicated that claimant had minimal if any permanency and restricted claimant from overhead work (Ex. 21, p. 40). This latter date selected by the deputy coordinates closely with the date of the impairment rating of Dr. Neff of 5 percent of the right upper extremity on April 17, 1991. However, the date of March 13, 1991 comes first. Iowa Code section 85.34(1). The healing period from March 18, 1990 until March 13, 1991 constitutes a period of 42.714 weeks. Dr. Neff's statement that maximum medical improvement occurred four months after the date of her injury of April 3, 1990 [sic] is unrealistic. If that was the case he should have said that she had reached maximum medical improvement as of August 3, 1990, when he first saw claimant on February 20, 1991, but he did not do so (Ex. 30, p. 53). Dr. Kimelman had been the treating physician during the bulk of the period of disability and he should be the best judge of when claimant attained maximum medical improvement (Ex. 21, p. 40). It is determined that claimant has sustained a 30 percent industrial disability to the body as a whole caused by the right shoulder impingement syndrome. Claimant's permanent impairment ratings are not large. Dr. Kimelman said it was minimal, if any. Dr. Neff allowed 5 percent. Dr. Bashara assessed 7 percent. Dr. Rosenfeld said it was 5 percent for the shoulder. Nevertheless, claimant's loss of earning capacity is substantial. Dr. Kimelman, the treating physician, imposed several severe restrictions (Ex. 18, p. 37; Ex. 19, p. 38; Ex. 20, p. 39). She is foreclosed from overhead work and is restricted to work at tabletop level. She is foreclosed from repetitive work. She is not to perform any overhead lifting. She is restricted to light duty work (Ex. 18, p. 37; Ex. 19, p. 38; Ex. 20, p. 39). Dr. Neff said claimant should not engage in any heavy manual labor activities (Ex. 30, p. 53). Dr. Bashara said she should perform no lifting overhead of ten pounds on a repetitive basis (Ex. 41, pp. 68-70). Thus, claimant is foreclosed from her former employment with this employer of six years. Michael v. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218, 220 (App. Dec. January 30, 1979); Rohrberg v. Griffin Pipe Products Co., I Iowa Industrial Commissioner Report 282 (1984). Claimant is also either foreclosed or limited on her Page 19 previous employments of secretarial work, stock clerk work, and check-out cashier. Claimant is foreclosed from most production line types of work which are some of the most common jobs in the competitive labor market. Claimant's disability must be quite substantial because Dr. Neff reviewed two job descriptions and two videos for employer and said that claimant could do either one of these two jobs. However, she was not offered either one of them, or any other employment with employer, who employs approximately 125 people. This is strong evidence of claimant's significant unemployability. Claimant testified that she cannot sleep on her right shoulder (Tran. p. 78). She related that her shoulder aches all of the time and that it makes clunking noises if she tries to use it (Tran. p. 79). Performing household duties make her symptoms worse (Tran. p. 91). Claimant testified that she looked for work at a number of places after she reached maximum medical improvement on March 13, 1991 and before she began to work for her parents managing a video store on March 13, 1992 (Tran. pp. 69 & 79). She testified that she had a list of places where she had attempted to find employment but no lists were introduced into evidence. She related that she read the newspaper and checked for employment in Leon, Osceola and Lorimor. Claimant's motivation between March of 1991 and March of 1992 may have been affected by the fact that she received workers' compensation benefits until July 12, 1991 (Tran. p. 7). In addition, claimant is married and her husband works at two jobs, one is a salaried job and the other is a self-employment job (Tran. pp. 28 & 29). Claimant also had three small grade school children at home during this period of time (Tran. p. 29). Claimant testified that she might have drawn some unemployment compensation but she could not recall for sure (Tran. p. 97). Claimant was earning $6.45 per hour for employer at the time of her injury. She was earning $5.00 per hour at the time of the hearing managing the video store (Tran. p. 38). This is an actual 22 percent loss plus fringe benefits of sick leave, medical insurance, paid vacation, and profit sharing which should rightfully be taken into consideration (Tran. p. 38). Claimant's current job has no fringe benefits. Claimant testified that it was normal to receive a raise of 25 cents per hour or more each year and that if she had remained with employer that she would currently being receiving a wage of $7.20 per hour (Tran. pp. 82-84 & 99). If this is correct, then claimant's actual loss of earnings would be 30 percent plus the value of the fringe benefits above (Tran. pp. 17 & 18). Defendants opted to offer claimant no vocational rehabilitation to mitigate her industrial disability loss although Dr. Kimelman stated that claimant should find different employment. Dr. Neff enjoined employer to find a job which claimant could perform, but employer refused to do Page 20 so. Claimant has initiated her own personal rehabilitation program by enrolling in Graceland College at the end of the Summer of 1992 as a full-time student. Her plan is to receive a bachelor of arts degree in sociology and to get into human services (Tran. pp. 80, 81 and 102). She has a grade point average of 3.48. Claimant related that she borrowed money for school (Tran. p. 82) and that she also has two grants (Tran. p. 87). Claimant also works full-time managing a video store. Claimant is suitable for retraining based upon her high school education with average grades, the computer courses she took after high school and her current grade point average of 3.48 considering the fact that she also is working full-time. Conrad v. Marquette School, Inc., IV Iowa Industrial Commissioner Report 74, 89 (1984). Claimant's age of 28 at the time of injury and 32 at the time of hearing indicate that retraining is suitable and that she should pursue new lines of endeavor in order to mitigate her industrial disability. At the same time college training is expensive and tends to increase her industrial disability. Based upon the foregoing factors 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. SECTION 85.27 MEDICAL BENEFITS It is determined that defendants are liable for the bill of Douglas M. Reagan, M.D., in the amount of $295. Dr. Neff was an authorized physician. He referred claimant to Dr. Koenig. Dr. Koenig referred claimant back to Dr. Neff for surgical evaluation and Dr. Neff refused to see claimant. Dr. Koenig then referred claimant to Dr. Reagan. It is a well known principle of workers' compensation law that when a treating physician refers an injured employee to another physician the second physician becomes the agent of the authorized treating physician. Limoges v. Meier Auto Salvage, I Iowa Industrial Commissioner Report 207 (1981); Kittrell v. Allen Memorial Hospital, Thirty-fourth Biennial Report of the Industrial Commissioner 164 (1969). In this case Dr. Neff referred claimant to Dr. Koenig and Dr. Koenig referred claimant to Dr. Reagan. Claimant simply followed the instructions of the authorized treating physicians provided to her by the employer and insurance carrier. Defendants therefore should be liable for the medical expenses which they caused to be generated by Dr. Reagan in the amount of $295. Dr. Reagan was not claimant's choice of physician. She was referred there by authorized treating physicians which the employer paid and thus acknowledged that they were authorized treating physicians. Coble v. Metromedia, Inc., Thirty-fourth Page 21 Biennial Report of the Industrial Commissioner 71 (1979); Munden v. Iowa Steel and Wire, Thirty-third Biennial Report of the Iowa Industrial Commissioner 99 (1977). Therefore, it is determined that defendants are liable for the bill of Dr. Reagan in the amount of $295. Claimant testified that she wanted and was entitled to carpal tunnel surgery from Dr. Reagan for her continuing disability in her right hand and wrist (Tran. p. 18, 78, & 122). Even though Dr. Reagan is determined to be an authorized physician and entitled to be paid by defendants it is nevertheless determined that the right carpal tunnel syndrome disability was not caused by this injury. Therefore, claimant is not entitled to carpal tunnel surgery at the expense of the employer and insurance carrier. Claimant further acknowledged on the record at the time of the hearing that her health insurance carrier had turned her down for surgery because the carpal tunnel was an on-the-job injury (Tran. p. 98). Now that it has been determined that the carpal tunnel syndrome disability was not caused by her employment, then claimant should be entitled to coverage by the health insurance carrier (Tran. pp. 21-25). SECTION 85.39 MEDICAL EXPENSE It is determined that defendants do not owe for the second independent medical examination performed by Dr. Rosenfeld in the amount of $790. First of all, Iowa Code section 85.39 only authorizes one independent medical examination. Secondly, it has been determined in this decision that the employer and insurance carrier are not liable for the carpal tunnel syndrome disability. Therefore, defendants should not be liable for an independent medical examination for a disability for which they are not liable. CONCLUSIONS OF LAW Wherefore, based upon the foregoing and following principles of law, these conclusions of law are made: That the injury of April 30, 1990, was the cause of right shoulder permanent disability. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945). That the injury of April 30, 1990, was not the cause of right hand or wrist permanent disability. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945). That claimant is entitled to healing period benefits from May 18, 1990 to March 13, 1991. Iowa Code section 85.34(1). Page 22 That claimant has sustained a permanent disability to the right shoulder which is an injury to the body as a whole. Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 (1949); Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986); Haffner v. Electrical Systems, File No. 955542 (Appeal Decn., Feb. 25, 1994). That claimant has sustained a 30 percent industrial disability to the body as a whole and is entitled to 150 weeks of workers' compensation permanent partial disability benefits. Iowa Code section 85.34(2)(u). That claimant is entitled to recover the medical expenses of Dr. Reagan in the amount of $295. That claimant is not entitled to a second independent medical examination from Dr. Rosenfeld in the amount of $790. ORDER THEREFORE IT IS ORDERED: That defendants pay to claimant forty-two point seven one four (42.714) weeks of healing period benefits at the stipulated rate of one hundred seventy-five and 94/100 dollars ($175.94) per week in the total amount of seven thousand five hundred fifteen and 10/100 dollars ($7,515.10) commencing on March 18, 1990. That defendants pay to claimant one hundred fifty (150) weeks of permanent partial disability benefits at the stipulated rate of one hundred seventy-five and 94/100 dollars ($175.94) per week in the total amount of twenty-six thousand three hundred ninety-one dollars ($26,391.00) commencing on March 13, 1991. That defendants are entitled to a credit for sixty (60) weeks of workers' compensation benefits paid to claimant prior to hearing at the rate of one hundred seventy-five and 94/100 dollars ($175.94) per week in the total amount of ten thousand five hundred fifty-six and 40/100 dollars ($10,556.40). 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 medical services two hundred ninety-five dollars ($295.00) for the services of Dr. Reagan. That the costs of this action, including the cost of the attendance of the court reporter at hearing and the cost of 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 Page 23 requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of July, 1994. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Robert W. Pratt Attorney at Law 6959 University Ave. Des Moines, IA 50311-1540 Mr. E. J. Kelly Attorney at Law 2700 Grand Ave. Suite 111 Des Moines, IA 50312 2901, 2906, 5-1802, 5-1803, 1803.1, 1807, 2501, 2505, 2700, 2502 Filed July 8, 1994 Walter R. McManus, Jr. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ TONYA PIERSON, Claimant, vs. File No. 951206 O'BRYAN BROTHERS, A R B I T R A T I O N Employer, D E C I S I O N and WAUSAU INSURANCE, Insurance Carrier, Defendants. ___________________________________________________________ 2901, 2906 The petition alleged a right shoulder injury. In the course of treatment and discovery a diagnosis of right carpal tunnel syndrome developed about two years after the stipulated injury date. The deputy proceeded on the basis that the stipulated injury date applied to both the right shoulder injury and the right wrist injury because technical rules of pleading are not followed by the industrial commissioner and because both parties had secured all of the evidence they wanted about the right wrist and submitted it into evidence. The major issue to be decided was whether the right wrist injury was the cause of right carpal tunnel syndrome and any resulting permanent disability, or medical treatment, resulting from the right carpal tunnel syndrome. 1108, 1108.50, 1401, 1402.40 It was determined that the injury was the cause of permanent disability to the right shoulder. It was determined that the injury was the cause of right wrist pain, but that it was not the cause of the carpal tunnel syndrome, or any permanent disability resulting from the carpal tunnel syndrome. 5-1802 Claimant was awarded healing period benefits from the time she was taken off work by the treating physician until a later orthopedic surgeon determined that he had exhausted conservative treatment measures, surgery was not indicated Page 2 and claimant had minimal, if any, permanent impairment. 1803.1 It was determined that a shoulder injury is an injury to the body as a whole and not a scheduled member injury. This was established as a matter of law by Alm, Dailey, and Lauhoff. Furthermore, the industrial commissioner just recently gave his most current precedential determination of this issue in Haffner. Other cites are given from Gray's Anatomy and the Guides to the Evaluation of Permanent Impairment. 5-1803, 1807 Impairment ratings for the shoulder were (1) minimal, if any, (2) 5 percent, (3) 5 percent and (4) 7 percent. Claimant, age 29 at the time of injury, with a high school education, was foreclosed from repetitive work, overhead work, and restricted to light work at tabletop level. She was working full-time managing her parents video store and also going to college full-time with a GPA of 3.48. Her actual earnings loss calculated out at 22 percent by one method and 30 percent by another method. Although employer's physician approved two jobs for her, employer nevertheless refused to offer claimant these jobs, or any employment. Employer offered no rehabilitation to mitigate their industrial disability. Although claimant's impairment ratings were not substantial, nevertheless, her industrial disability was substantial. Claimant was awarded 30 percent industrial disability. 2501, 2505, 2700 A treating orthopedic surgeon referred claimant to a rehabilitation physician for an evaluation. The rehabilitation physician referred claimant back to the orthopedic surgeon for surgical evaluation. The orthopedic surgeon refused to see or treat claimant. Whereupon, the rehabilitation physician referred claimant to a different orthopedic surgeon for surgical evaluation and he recommended surgery. Defendants refused to pay the second orthopedic surgeon. Defendants were ordered to pay his charges. A referral physician is considered to be the agent of the referring physician and is entitled to be paid by defendants. Precedents cited in the decision. Claimant never asked to see the second orthopedic surgeon. She simply followed the instructions of authorized physicians. She should not be liable for his charges. Defendant should be liable for his charges. It was further determined that since it was determined that the carpal tunnel syndrome was not caused by this injury, that claimant was not entitled to carpal tunnel surgery, or further medical treatment for the carpal tunnel syndrome. Claimant testified that her group health insurer refused to pay because the carpal tunnel was a workers' compensation injury. This decision should establish for the group health insurer that it was not a workers' compensation injury. Page 3 2502 It was determined that claimant was not entitled to a second independent medical examination after the carpal tunnel syndrome was diagnosed some two years after the stipulated injury date and three years after claimant was treated for right wrist pain without any intervening treatment for it. First, the statute (Iowa Code section 85.39) only authorizes one independent medical examination. Second, since claimant failed to prove that the carpal tunnel syndrome or the disability resulting from it was caused by this injury, then defendants should likewise not be liable for an independent medical examination for a condition for which they were not liable. Page 1 before the iowa industrial commissioner ____________________________________________________________ : FRED BLOM, JR., : : Claimant, : : vs. : : File No. 951305 AG DIMENSIONS CORP. a/k/a : GOLDEN HILL PORK, : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : AETNA CASUALTY & SURETY : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration upon the petition of claimant, Fred Blom, Jr., against his employer, Ag Dimensions Corp. a/k/a Golden Hill Pork, and its insurance carrier, Aetna Casualty & Surety Company, defendants. The case was heard on November 21, 1991, in Council Bluffs, Iowa. The hearing was set for 11:00 a.m. on the aforementioned date. Claimant was sent a copy of the hearing assignment order by certified mail. The signed and returned certified mail receipt was filed with the office of the industrial commissioner on May 6, 1991. The receipt bore the signature of "Carol Blom." The date of delivery of the hearing assignment order was listed as May 3, 1991. At the hearing, claimant did not appear, nor did anyone appear on claimant's behalf. Tom Plaza, attorney, appeared on behalf of the defendants. No evidence was presented on behalf of any party. findings of fact and conclusions of law The party who would suffer loss if an issue were not estab lished has the burden of proving that issue by a preponderance of the evidence. Iowa R. of App. P. 14(f). The claimant has the burden of proving by a preponderance of the evidence that the alleged injury actually occurred and that it arose out of and in the course of employment. 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 circum stances of the injury. Sheerin v. Holin Co., 380 N.W.2d 415, 417 (Iowa 1986); McClure v. Union, et al., Counties, 188 N.W.2d 283, 287 (Iowa 1971). Page 2 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, 354 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296, 297 (Iowa 1974). In the case at hand, claimant failed to appear. No one appeared for claimant. Claimant did not present any evidence. Consequently, he failed to meet his burden of proof. Claimant takes nothing from these proceedings. order THEREFORE, IT IS ORDERED: Claimant takes nothing from these proceedings. Costs are taxed to claimant pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of November, 1991. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Fred Blom, Jr. Box 654 Sherburn MN 56171 REGULAR & CERTIFIED MAIL Mr. Thomas M. Plaza Attorney at Law 701 Pierce St STE 200 P O Box 3086 Sioux City IA 51102 5-1400 Filed November 26, 1991 MICHELLE A. McGOVERN before the iowa industrial commissioner ____________________________________________________________ : FRED BLOM, JR., : : Claimant, : : vs. : : File No. 951305 AG DIMENSIONS CORP. a/k/a : GOLDEN HILL PORK, : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : AETNA CASUALTY & SURETY : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1400 Claimant failed to appear at the hearing. No evidence was presented. Claimant did not meet his burden of proof. Page 1 before the iowa industrial commissioner ____________________________________________________________ : CATHY M. KRUSE, : : Claimant, : : vs. : : File Nos. 874897 & 951310 ARMOUR FOOD COMPANY, : : A R B I T R A T I O N Self-Insured, : Employer, : D E C I S I O N : and : : HARTFORD INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a consolidated hearing before the Iowa Industrial Commissioner filed by Cathy Kruse. Claimant filed a petition for arbitration in file number 874897 against Armour Food Company identified as employer and Hartford Insurance Company identified as insurer, alleging an injury on January 13, 1988. Claimant also filed a claim, file number 951310, against self-insured Armour Food Company for an alleged injury on May 4, 1990. Both claims were brought to recover benefits under the Iowa Workers' Compensation Act. This matter came on for hearing before the undersigned deputy industrial commissioner on November 15, 1991, in Mason City, Iowa. The record was considered fully submitted at the close of the hearing. The record in this case consists of testimony from Cathy M. Kruse and Gary Schmidt and claimant's exhibits 1 through 27 and 29 through 30 and defendants' exhibit L. Issues Pursuant to the prehearing report and order and statement of the parties at the hearing, the following issues have been submitted for resolution: 1. Whether claimant's injury is limited to her right upper extremity or extends into the body as a whole; 2. The extent of entitlement to weekly compensation for permanent disability, if defendants are liable for the injury; 3. The commencement date of permanent partial disability benefits, in the event such benefits are awarded; and 4. Whether claimant is entitled to payment of medical Page 2 benefits and mileage expenses for an independent medical examination under Iowa Code section 85.39. 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 September 23, 1958. She was married on July 26, 1975, and became widowed on June 30, 1979. She has one child. Claimant lives on a 120 acre farm which she owns and manages. She attended high school through the tenth grade and received a GED certificate in 1976. After high school, she took some college courses at Hamilton Business College and North Iowa Community College. She completed three years of college and plans to obtain her bachelor's degree sometime in the future. In June 1991, she invested $1000 in NIS Financial Services program and after passing the required tests, she obtained her license to sell mutual funds and other types of financial services and insurance. She is self-employed and works out of her home. Claimant started working at Armour Food on July 12, 1984. She initially started working part-time in the sausage packing department. Occasionally she worked full time and was laid off during slow periods. On January 14, 1988, claimant developed severe pain in her right wrist with some swelling. She saw K.B. Washburn, M.D., the company physician. On January 18, 1988, she was seen by T.C. Mead, M.D. He diagnosed a very acute de Quervain's syndrome. She was given a limited return to work release on February 4, 1988, but was put on plant wide layoff. Dr. Washburn prescribed a work hardening program which claimant performed at home. She returned to work in June 1988 and was taken off work on July 11, 1988, with exacerbation of her symptoms. Dr. Mead recommended surgery, but wanted a second opinion. He sent claimant to Arnold E. Delbridge, M.D., whose practice is limited to orthopedic and hand surgery (exhibit 1). Dr. Delbridge saw claimant on July 27, 1988, and he noted a very positive de Quervain's sign. He also noted other signs of upper extremity overuse including tennis elbow and some shoulder bursitis. He recommended surgical intervention (ex. 3). On August 5, 1988, claimant underwent a tenosynovectomy with release of the de Quervain's contracture (ex. 4). Dr. Mead released claimant to return to work in October 1988. She returned to the dry sausage department performing regular duties and working long hours. When reevaluated by Dr. Mead in November-December 1988, she complained of shoulder and neck pain. Because of persistent complaints, Dr. Washburn took claimant off work on January 3, 1989, and ordered EMG and nerve conduction studies (ex. 1, pp. 9-10). Page 3 Nerve conduction studies of claimant's right upper extremity were performed on January 4, 1989. There was no evidence of any acute nerve involvement and no evidence of carpal tunnel syndrome. Dr. Washburn commented that, "The patient is still sensitive wherever I touch her. I believe there is a great deal of psychogenic overlay in this patient." (ex. 5). Claimant continued to be seen at the Park Clinic in Mason City, Iowa, by Dr. Washburn and other staff members. On April 21, 1989, she was reevaluated by Dr. Delbridge. He indicated that x-rays showed no abnormalities. He recommended physical therapy (ex. 3). On May 3, 1989, claimant began a series of chiropractic treatments because of acute cervical pain. Her last treatment was on June 7, 1989, at which time it was noted that she, "Has had very little pain or discomfort." (ex. 6). Claimant returned to work on May 25, 1989, for four hours a day. On June 30, 1989, Dr. Washburn took her off work again due to "all kinds of aches and pains in her back and shoulder, arm, etc." (ex. 1, p. 16). Employer sent claimant to Samuel R. Hunt, M.D., who released her for light duty on July 31, 1989 (ex. 8). Dr. Hunt referred claimant to the Mason City Clinic where she was examined by R.L. Emerson, M.D., on August 9, 1989. Claimant's complaints were referable to neck and back symptoms. X-rays of the lumbosacral spine were normal. Neck x-rays were not taken. Clinical examination revealed normal and full cervical spine motion. Straight leg raising in the sitting and supine positions was negative. Dr. Emerson recommended anti-inflammatory medication (ex. 9). On August 11, 1989, claimant was evaluated at the Mason City Clinic by Thomas F. DeBartolo, M.D. After conducting a physical examination, Dr. DeBartolo concluded that claimant has some localized discomfort along the radiosensory nerve on the right side. He arranged for an occupational therapy program for desensitization over the area of the previous surgical release (ex. 10). Meanwhile, Dr. Washburn discharged her from his services on November 7, 1989 (ex. 1, p. 17). On November 30, 1989, claimant was reevaluated by Dr. Hunt. He noted that she was having no right wrist discomfort and full range of motion with no tenderness at this time. Her strength was intact and she felt capable of returning to work. She was advised against returning to the same type of repetitive hand and wrist activity which caused her initial symptoms (ex. 11). Claimant returned to work on December 18, 1989. She was placed in the dry sausage department where she did significant lifting, pulling and clipping. She started having problems with her arms, neck and shoulders. On April 3, 1990, claimant was evaluated by James K. Coddington, M.D. At this time, she presented with complaints of right elbow pain as a result of making boxes and peeling pepperoni. Diagnosis of lateral epicondylitis Page 4 was made and she was put on light duty for one week. On April 10, 1990, she presented to Dr. Coddington with complaints of neck and right elbow pain. He diagnosed neck strain and lateral epicondylitis. On April 18, 1990, she presented with similar complaints. On examination, she had fairly normal range of motion of the neck and good range of motion of the elbow. He indicated that neck strain may be more neck pain due to fatigue from not sleeping. Cervical spine films taken on April 10, 1990, failed to reveal any evidence of fracture, dislocation or other bone injury. Claimant was referred by her attorney to Dr. DeBartolo for a permanent impairment rating and assessment. He reported in pertinent part as follows: ...The patient clearly had a work-related deQuervain's [sic] and clearly has had an acute worsening of her right upper extremity function after that surgery. There is no specific diagnosis that I believe can be made concerning her right upper extremity soreness, muscle tenderness, fatigability, etc. other than pain dysfunction syndrome. ... ...Your client has finally come to the realization that she is indeed not going to be able to perform repetitive hand and wrist activities and that her hope for the best possible resolution of this problem lies with her obtaining vocational retraining and into a line of work that is more satifactory [sic] in terms of her physical capabilities. (exhibit 12) Dr. DeBartolo noted that, "[M]y rating would be 20% loss of the function of her right upper extremity secondary to the development of pain dysfunction syndrome secondary to surgery for a work-related deQuervain's [sic] release." (ex. 10, p. 9). Claimant saw Dr. Emerson on May 15, 1990, for complaints of diffuse right lateral elbow pain. On examination, she was neurologically intact. She had palpable tenderness over the lateral epicondyle of the right elbow. X-rays taken of the right elbow were negative. She was injected with a cortisone solution. She was reevaluated on May 22, 1990, and reported no improvement in her condition with the injection. Dr. Emerson was unable to determine the etiology of her right upper extremity symptoms (ex. 9, pp. 3-6). On July 2, 1990, Dr. Emerson and Dr. Coddington indicated that they concurred with Dr. DeBartolo's 20 percent right upper extremity rating (exs. 17-19). On September 7, 1990, Dr. Emerson wrote to the insurance claims examiner that, "I feel that Ms. Cathy Kruse's signs and symptoms are indicative of approximately 20% impairment to Page 5 the upper extremity. I do not think that she had a re-injured her shoulder in March of 1990, I think it is just a continuation of the previous-type of symptoms." (ex. 20). Being dissatisfied with these assessments, claimant's attorney referred her to James E. Crouse, M.D., for an independent medical examination pursuant to Iowa Code section 85.39. Dr. Crouse saw claimant on October 22, 1990. After reviewing the claimant's medical history and noting her complaints, including neck pain, right shoulder pain, pain in the right elbow, right wrist pain, loss of strength in the right arm and wrist, stiffness and swelling in the right wrist and fingers, and intolerance to any pulling and cold weather, Dr. Crouse conducted an examination. On examination, Dr. Crouse noted as follows: ...She is able to move around well. Examination shows soreness in the back of the neck and into the right trapezius muscle area. No atrophy is noted in this area. She has good shoulder motion in both shoulders but discomfort with right shoulder motion...She has good motion of her neck but discomfort particularly with flexion which occurs down over the spinous processes of C-7 and T-1. ...She has full motion of her shoulder, her elbow and her wrist.... (exhibit 21) X-rays of the cervical spine, wrist and elbow were reviewed and were negative. Dr. Crouse indicated that the examination was rather unremarkable except for the discomfort and hyper-sensitivity. He felt that her primary disabling problem is her secondary pain involving her entire upper extremity including the neck and shoulder. He agreed with a 20 percent permanent impairment rating involving the upper extremities, but related it to a 12 percent impairment of the body as a whole since the upper extremities included the shoulder and neck (ex. 21). On March 13, 1991, Dr. DeBartolo reported that, "I believe that Mrs. Kruse's upper extremity problems began as a result of her employment at Armour Foods doing repetitive hand and wrist activities." (ex. 22). This activity resulted in tendonitis that became localized to her first extensor compartment in a condition referred to as de Quervain's disease. As a result of the tendonitis, medical and surgical treatment, she has a 20 percent permanent partial impairment to her right upper extremity. It was his opinion that she has not sustained any permanent injury to her right shoulder or neck (ex. 22). Claimant testified that she was taken off work on May 4, 1990. She stated she attempted to return to work in October 1990, but was told by personnel that that company had no job for her. In November 1991, as per the union contract, she was terminated from Armour Food. conclusions of law Page 6 The primary issue to be determined in this case is whether claimant's disability is to the arm, a scheduled member, or to the body as a whole. A scheduled member loss is compensated pursuant to the schedule set forth in Iowa Code section 85.34, which is presumed to include compensation for the reduced capacity to labor and earned income. Schell v. Central Engineering Company, 232 Iowa 421 4 N.W.2d 399 (1942). An injury to the body as a whole is compensated industrially; that is, to the extent to which the injury reduces claimant's earning capacity. Second Injury Fund v. Hodgins, 461 N.W.2d 454 (Iowa 1990). An injury to a scheduled member which, because of after-effects (or compensatory change), creates impairment to the body as a whole entitled claimant to industrial disability. Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). Daily v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). If a claimant contends she has industrial disability she has the burden of proving her injury results in an ailment extending beyond the scheduled loss. Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964). Claimant bears the burden of proof to show that her injury extends beyond the scheduled member into the body as a whole. At the hearing and in the medical evidence, claimant reported frequent instances where she experienced pain in her shoulders and neck. However, physicians who have treated and/or examined claimant gave permanency ratings confined to the upper extremity. Claimant's complaints of pain are not substantiated by the clinical and laboratory findings in the record and therefore, cannot substitute for an impairment. Waller v. Chamberlain Mfg., II Iowa Industrial Commissioner Report 419, 425 (1981). Claimant has failed to carry her burden to show that her injury extends to the body as a whole. The only evidence supporting this contention is claimant's own testimony and statements made by Dr. Crouse on October 22, 1990. Claimant saw Dr. Crouse on one occasion and for the purpose of an independent medical examination. He relied on claimant's statements of subjective complaints to support his conclusions that her injury extended into the body as a whole. There is substantial evidence in the record that the pain described by claimant is the result of functional overlay rather than her work injury. In addition, there is no showing that claimant's right elbow, neck and shoulder pain, even if caused by her work injury, has resulted in permanent disability. X-rays taken of claimant's right elbow in May 1990 were negative. Dr. DeBartolo emphatically stated that claimant has not sustained any permanent injury to her right shoulder or neck. The best evidence in this case is that claimant sustained a 20 percent impairment to her right upper extremity as a result of a work injury with employer. Upper Page 7 extremity is not a scheduled under Iowa Code section 85.34. The AMA Guides to the Evaluation of Permanent Impairment, however, do speak of upper extremity impairments. For all practical purposes, and particularly for the purpose of this decision, the arm is coextensive with the upper extremity. Loss of an arm is compensable during 250 weeks under Iowa Code section 85.34(2)(m). Twenty percent of 250 weeks is 50 weeks. Defendants have previously paid claimant weekly compensation for the periods January 14, 1988 through February 3, 1988; July 11, 1988 through October 23, 1988; January 2, 1989 through May 24, 1989; June 30, 1989 through December 18, 1989; and May 5, 1990 through September 24, 1990; as well as 20 percent permanent partial disability benefits for loss of use of the right upper extremity. Claimant is not entitled to any additional workers' compensation benefits in file numbers 874897 and 951310. The question that remains is whether claimant is entitled to payment for an independent medical examination under Iowa Code section 85.39. This code section provides that if an evaluation of permanent disability has been made by a physician retained by the employer and the employee believes this evaluation to be too low, then the employee is entitled to an examination by a physician of the employee's own choice and the reasonable and necessary transportation expenses incurred for the examination. An application for an independent medical examination under Iowa Code section 85.39 need not precede the examination if the claimant is satisfied to wait until the hearing to be reimbursed provided that this is designated as a hearing issue on the hearing assignment order. Pirozek v. Swift Independent Packing, file number 803955 (1986). Dr. DeBartolo indicated a 20 percent impairment rating to the right upper extremity on May 9, 1990. Dr. Coddington and Dr. Emerson concurred with this rating on July 2, 1990. Dr. Crouse's evaluation was performed on October 22, 1990, which was subsequent to the aforementioned evaluations. Defendant employer does not dispute the reasonableness of the medical expenses incurred in the independent medical examination conducted by Dr. Crouse. Accordingly, pursuant to Iowa Code section 85.39, defendant employer is liable for payment of Dr. Crouse's examination and claimant's reasonable necessary transportation expenses incurred for the examination. order THEREFORE IT IS ORDERED: Defendant employer shall pay claimant for expenses incurred in obtaining an independent medical examination pursuant to Iowa Code section 85.39. Claimant takes nothing further in file numbers 874897 and 951310. Page 8 Signed and filed this ____ day of December, 1991. ______________________________ JEAN M. INGRASSIA DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Robert S. Kinsey, III Attorney at Law 214 N Adams PO Box 679 Mason City, IA 50301 Mr. Marvin Duckworth Attorney at Law 2700 Grand Ave., STE 111 Des Moines, IA 50312 Page 1 51803.1 52502 Filed December 3, 1991 Jean M. Ingrassia before the iowa industrial commissioner ____________________________________________________________ : CATHY M. KRUSE, : : Claimant, : : vs. : : File Nos. 874897 & 951310 ARMOUR FOOD COMPANY, : : A R B I T R A T I O N Self-Insured, : Employer, : D E C I S I O N : and : : HARTFORD INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 51803.1 Claimant was found to have a work-related injury diagnosed as de Quervain's syndrome. She underwent tenosynovectomy with release of the de Quervain's contracture. Initially, her complaints were confined to her right hand and wrist. Subsequently, she alleged numerous aches and pains extending from her arm into her shoulder and into her neck. Physicians who treated and examined her over a two-year period gave her a 20 percent permanent impairment rating to the right upper extremity. Five months later, an independent medical examiner stated that based on claimant's subjective complaints of pain, her loss of use extended into the body as a whole. The only evidence supporting this contention was claimant's own testimony. This testimony was out of proportion to the clinical and laboratory findings in the record and none of her treating physicians found that her injury extended to the body as a whole. Claimant appeared to have a significant degree of functional overlay. It was found that claimant failed to carry her burden to show that her injury extended to the body as a whole. 52502 Claimant was found entitled to the costs, including transportation, of an independent medical examination under Iowa Code section 85.39. Page 1 before the iowa industrial commissioner ____________________________________________________________ : LARRY J. SIMOENS, : : File No. 951312 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N QUAKER OATS COMPANY, : : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Larry J. Simoens, claimant, against Quaker Oats Company, employer (hereinafter referred to as Quaker), a self-insured defen dant, for workers' compensation benefits as a result of an alleged injury on December 10, 1988. On October 28, 1991, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of con tested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. The oral testimony and written exhibits received during the hearing are set forth in the hearing transcript. According to the prehearing report, the parties have stipulated to the following matters: 1. An employee-employer relationship existed between claimant and Quaker at the time of the alleged injury. 2. Claimant is seeking temporary total disability or healing period benefits for three days namely May 9, 1989, May 10, 1989 and March 7, 1991. Defendant agrees that claimant was not working during these periods of time. issues The parties submitted the following issues for determi nation in this proceeding: I. Whether claimant received an injury arising out of and in the course of employment; II. The extent of claimant's entitlement to disabil ity benefits; III. The extent of claimant's entitlement to medical benefits; and, IV. The extent, if any, of claimant's entitlement to Page 2 penalty benefits. findings of fact Having heard the testimony and considered all the evi dence, the deputy industrial commissioner finds as follows: Claimant has worked for Quaker in various jobs since 1973 and continues to do so at the present time. He testi fied at hearing that he plans on working at Quaker until he retires. At the time of the alleged injury, claimant was assigned to the job of car strapper which, in part, required claimant to open and close heavy doors on railroad boxcars. Claimant's permanent work assignment is that of a warehouse attendant which primarily involves driving a forklift truck. In this job, he must also place pallets into a palletizer. Claimant is occasionally bumped out of this position at times when the work at the plant is slow at which time he then is assigned to the job of chute attendant which requires claimant to stack boxes of materials onto pallets. On or about December 10, 1988, claimant injured his low back while attempting to pull shut a railroad car door. Claimant said that he experienced the onset of immediate low back pain at the belt line level of his back. Claimant was then sent for treatment by Quaker to Mercy Hospital. Physicians at the hospital diagnosed low back strain and prescribed rest, cold packs and medication to relax claimant's back muscles and relieve pain. Claimant was released to return to work following this injury on December 12, 1988. Claimant testified that he was injured on a Friday and returned to work on the following Monday. Claimant said that his back was sore when he returned to work but he used a forklift truck to close the railroad cars for a period of time. He stated that the pain lasted for a couple of weeks and was "not much of a problem" until he was assigned to a chute attendant job. This job requires repet itive lifting and stacking of 18 to 24 pound boxes from a waist high conveyor to pallets on the floor. Claimant said that after he was assigned to this work he missed a couple of days in May 1989 and again in March 1990 as a result of the onset of additional symptoms from the job. Claimant has since bid into his current classification of warehouse attendant in order to receive more money and obtain easier work. Claimant's current classification pays 40 to 60 cents per hour more than the chute attendant job. Claimant states, however, that he is occasionally bumped out of his current classification and assigned back to the chute atten dant job. At the time of hearing he had been performing the chute attendant job for the last three weeks. Page 3 With reference to past injuries, claimant has three prior car accidents between 1963 and 1983 none of which involved an injury to his low back. Two of these injuries involved the development of neck problems. In 1987 claimant suffered a work injury to his hands when they were caught in rollers at work. Claimant suffered mild permanent partial impairment from these hand injuries but there has been no permanent work restrictions imposed as a result of the injury. Claimant suffered two prior incidents of low back pain according to the medical records of Mercy Care North, a family practice clinic. In March 1988, claimant injured his low back after operating a chain saw at home. The diagnosis was back sprain and claimant was off work for approximately five days. Claimant testified that he could not recall this incident of back pain. In May 1989, claimant experienced another incident of back pain and sought medical treatment but did not report any specific injury to his physicians. Due to the lack of supportive medical opinion, claimant failed to show that he suffered permanent partial impairment from the injury of December 10, 1988. Claimant's treating physicians for the injury did not render an opinion in this matter. Claimant was evaluated by John R. Walker, M.D., an orthopedic surgeon in July 1990. According to Dr. Walker, claimant has a two percent permanent partial impairment as a result of his low back condition. Dr. Walker further opined that his findings in the low back region were the result of injuries claimant suffered while working at Quaker Oats. However, despite an extensive description of claimant's medical history in his report, no mention is made by Dr. Walker of claimant's prior back problems in March 1988 or in May 1989. At hearing, claimant explained that he did not mention any of these problems to Dr. Walker because he did not recall them. It is assumed that claimant is truthful on this point. However, the fact remains that Dr. Walker issued his causal connection opinions in this matter based upon an incorrect history. Therefore, his views could not be given much weight in this proceeding. On the other hand, claimant was evaluated by another orthopedic surgeon, W. J. Robb, M.D., in November 1990. Dr. Robb, according to his reports, was aware of claimant's full past history with reference to his back problems. Dr. Robb opines that claimant only suffered a temporary aggravation sprain of his back in December 1988. He states that claimant suffers from degenerative disc disease and degener ative arthritis of the low back which will cause recurrent episodes of back pain with repetitive bending and lifting activity. As Dr. Robb has a more complete history and there is no evidence to suggest that Dr. Robb's qualifications are any less than those of Dr. Walker, greater weight must be given to the views of Dr. Robb in this proceeding. Page 4 Although claimant failed to show a causal connection between his current back problems and the work injury of December 1988 at Quaker, it should be noted that even if claimant had established such a causal connection, claimant failed to provide any evidence of loss of earning capacity as a result of his back condition at the present time. Claimant continues to perform his work at Quaker without loss of pay or benefits. In fact he is at the present time making more money than he did at the time of the injury. Furthermore, claimant failed to show that his absence from work in May 1989 and in March 1991 was due to the work injury of December 10, 1988. Given the views of Dr. Robb, recurrent back problems from claimant's work activity is due to claimant's non-work related degenerative disc disease and would be expected. Consequently, each occurrence of pain probably constitutes a separate aggravation work injury. These incidents of back pain would be unrelated to the aggravation of injury that he experienced in December 1988, the subject of this litigation. Claimant has shown that the expenses of Dr. Walker are causally connected to the work injury. However, Dr. Walker's services were that of an evaluation and not for treatment of the back condition. Dr. Walker did not recom mend any course of treatment to improve claimant's back con dition. Obviously, the report was prepared at the request of an attorney for litigation purposes. conclusions of law I. Claimant has the burden of proving by a prepon derance of the evidence that claimant received an injury which arose out of and in the course of employment. The words "out of" refer to the cause or source of the injury. The words "in the course of" refer to the time and place and circumstances of the injury. See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited therein. In the case sub judice, the evidence is almost uncon troverted that claimant suffered a work injury. However, the fighting issue is whether such a work injury was causally connected to compensable disability. II. The claimant has the burden of proving by a pre ponderance of the evidence that the work injury is a cause of the claimed disability. A disability may be either tem porary or permanent. In the case of a claim for temporary disability, the claimant must establish that the work injury was a cause of absence from work and lost earnings during a period of recovery from the injury. Generally, a claim of permanent disability invokes an initial determination of whether the work injury was a cause of permanent physical Page 5 impairment or permanent limitation in work activity. However, in some instances, such as a job transfer caused by a work injury, permanent disability benefits can be awarded without a showing of a causal connection to a physical change of condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). The question of causal connection is essentially within the domain of expert medical opinion. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion of experts need not be couched in definite, pos itive or unequivocal language and the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). The weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding cir cumstances. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Furthermore, if the available expert testimony is insufficient alone to support a finding of causal connec tion, such testimony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. Asse Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish compensabil ity, the injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith, 290 N.W.2d 348, 354. In the case of a preexisting condi tion, an employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). In the case sub judice, claimant failed to show a causal connection between the work injury and permanent impairment or permanent disability. It was found that claimant suffered a temporary aggravation of a preexisting condition which resulted in two days of absence from work in December 1988. However, to be compensable under Iowa Code section 85.32, a work injury must result in an absence from work for more than three days. Claimant was absent from work at other times in 1989 and 1991 as a result of back problems but this was due to separate temporary aggravation work injuries at the time. Claimant failed to show that the underlying cause for the recurrent symptoms was anything other than degenerative disc disease which is unrelated to the work injury in this case. III. Pursuant to Iowa Code section 85.27, claimant is entitled to payment of reasonable medical expenses incurred for treatment of a work injury. However, evaluations from a physician for the purposes of litigation are not reim bursable under this code section. If claimant desired a reimbursement of his expenses for Dr. Walker, he should have raised the issue under Iowa Code section 85.39. This was Page 6 not done in this case. IV. Claimant raised an issue of unreasonable denial of benefits under the fourth unnumbered paragraph of Iowa Code section 86.13. However, it is the holding in this decision that claimant is not entitled to disability bene fits, therefore, the penalty issue is moot. order 1. Claimant's petition for workers' compensation bene fits is denied and this petition is dismissed. 2. Claimant shall pay the costs of this action pur suant to rule 343 IAC 4.33. Signed and filed this ____ day of December, 1991. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert R. Rush Attorney at Law 526 2nd Ave SE P O Box 2457 Cedar Rapids IA 52406 Mr. James M. Peters Attorney at Law 1200 MNB Bldg Cedar Rapids IA 52401 5-1803 Filed December 12, 1991 LARRY P. WALSHIRE before the iowa industrial commissioner ____________________________________________________________ : LARRY J. SIMOENS, : : File No. 951312 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N QUAKER OATS COMPANY, : : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 5-1803 Claim denied. Failure to show work injury caused compensable disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER TRACY RENDALL, File No. 951316 Claimant, A P P E A L IBP, 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 October 29, 1991 is affirmed and is adopted as the final agency action in this case. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this 25th day of August, 1992. BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. David D. Drake Attorney at Law West Towers Office 1200 35th Street STE 500 West Des Moines, Iowa 50265 Ms. Marie L. Welsh Attorney at Law P O Box 515 Dept #41 Dakota City, Nebraska 68731 9998 Filed August 25, 1992 BYRON K. ORTON BEFORE THE IOWA INDUSTRIAL COMMISSIONER TRACY KENDALL, File No. 951316 Claimant, A P P E A L vs. D E C I S I O N IBP, INC., Employer, Self-Insured, Defendant. 9998 Summary affirmance of deputy's decision filed. Page 1 before the iowa industrial commissioner ____________________________________________________________ : TRACY KENDALL, : : Claimant, : : vs. : : File No. 951316 IBP, INC., : : A R B I T R A T I O N Employer, : Self-Insured, : D E C I S I O N Defendant. : : ___________________________________________________________ STATEMENT OF THE CASE This case came on for hearing on September 24, 1991, in Des Moines, Iowa. This is a proceeding in arbitration wherein claimant seeks compensation for permanent partial disability benefits as a result of an alleged injury occurring on September 24, 1989. The record in the proceeding consists of the testimony of claimant, Connie Coker, Cheryl Knezevich, and Don Webster; joint exhibits 1, pages 1-21 and pages 36-57, joint exhibits 2, 3, 5 through 9; and claimant's exhibit 1A, pages 22-35. issues The issues for resolution are: 1. Whether claimant's alleged September 24, 1989 injury arose out of and in the course of his employment; 2. Whether claimant's alleged disability is causally connected to his alleged September 24, 1989 injury; 3. The nature and extent of claimant's permanent disability and entitlement to disability benefits; 4. The rate for any benefits that would be awarded; 5. Claimant's entitlement to 85.27 medical benefits, the issue being causal connection, reasonableness and necessity; and 6. Whether claimant gave proper notice under Iowa Code section 85.23. Page 2 findings of fact The undersigned deputy, having heard the testimony and considered all the evidence, finds that: Claimant is a 31-year-old high school graduate who is currently enrolled in the Des Moines Community College in an accounting and business law course. He hopes to be a high tech medical equipment repairer, repairing hospital equipment and electric scanner machines, etc. Claimant has no other educational skills and indicated his four weeks of military airborne schooling is not useable in a civilian job. Claimant was in the service in April 1983 to April 1987 and March 1988 to April 1989, all totaling six years, three months. Claimant described the rigorous military training and the nature of his job while in the service. Claimant described his service injuries, namely: Right knee hurt May 10, 1988, playing basketball as part of his service training. This prevented claimant from doing his squad duties which involved rigorous work; claimant injured his back in 1984 and was in Walter Reed Hospital eventually in September 1986. He had no treatment for his back after this and no restrictions; claimant hurt his right knee again in January 1989 when another soldier hit him from behind causing claimant to hit his knee on the concrete. An arthroscopy of the right knee was performed and claimant was discharged in April 1989 because of this injury. Claimant was unable to run without a brace support. Claimant was given service compensation for his right knee injury. Claimant said he received an honorable discharge which was based on his medical. Claimant described his work history prior to beginning work for defendant employer in August 1989. This work mainly involved working at auto parts stores, making deliveries, lifting up to 50 pounds and receiving a little more than minimum wage. Claimant began working for defendant employer in August 1989 as a laundry production worker washing uniforms. After one and one-half months, he was promoted in the middle of 1989 to supervisor of nine people and was paid $18,500 per year annual salary beginning with this new position. Prior to this promotion, claimant was making about $6.10 per hour. This supervisor job was referred to as a showcase supervisor and entailed receiving work orders, scheduling hours and time off, determining maintenance work within the plant, etc. Claimant said that on September 24, 1989, while doing maintenance work and pulling hoses in place, he was going down the stairs and his right foot slipped and his right knee popped. He did not fall as he caught himself on the rail. Claimant said he couldn't move his knee. This date (a Sunday) was a nonproduction day at defendant employer's plant. Claimant helped another person, Don Webster, during Page 3 August and September 1989 because of the extra work that needed to be done at IBP. This extra work was done on weekends, when the plant was in a nonproduction status. Claimant related he reported his injury 15 to 20 minutes after it happened to a Mike Watkins. He said he later told Pam, the nurse, and she said to go to the VA Hospital. Claimant emphasized he could not report his injury to the nurse on this September 24, 1989, as the nurse was not there on a nonproduction day. Claimant acknowledged this was the same knee he had trouble with in the service but this current problem was different and it hurt more. Claimant sought medical care at the VA Hospital on September 26, 1989, and was unable to do his regular duties at IBP. Claimant said he began wearing a brace and couldn't do the climbing of the ladders and on the rafters. Claimant had his right knee reconstructed November 29, 1989, and the parties agree claimant was off work through October 3, 1990. Also, there is no disagreement that claimant received a salary continuation under defendant employer's benefit plan from October 17, 1989 through January 17, 1990. This was a benefit to which salaried employees were entitled. Claimant missed no work prior to September 24, 1989. He was released to work in February 1990, as a supervisor, but said he ended up doing labor-type work and was unable to do it. Claimant was then released on October 3, 1990, by the VA doctors. In November 1990, claimant had screws removed from his right knee which were placed there during his November 1989 surgery. Claimant had follow-up surgery (arthroscopy) on June 18, 1991, which was to shape the patella. Claimant said tat he noticed low back pain in February 1990, which was different than his 1985 mid-back problems that occurred when he was in the service. Claimant described his current problems which he has had since his September 24, 1989 alleged injury. Claimant contends he cannot stand over one hour, his right knee throbs, hard surfaces affect the knee, sitting more than 15 to 20 minutes causes his knee to hurt, he cannot kneel on his right knee, cannot carry over 50 pounds, has problems sleeping, and his walking is limited. He indicated he can now walk only two or three miles versus 10 to 20 miles prior to his alleged injury. Claimant indicated the weather also affects his knee and he has stopped playing golf and basketball, except he did indicate he has golfed the last part of 1990 and twice in 1991. Claimant said he could run with a brace on his right leg prior to September 24, 1989, but he cannot now. Claimant said he worked at another employer in October 1990 until January 1991, as a mailer and then as a machine mechanic until April 1991, at which time he quit over a dispute. Claimant is now in school through the V.A. vocational rehabilitation department and has his full Page 4 tuition paid and also has received assistance allowance. Claimant acknowledged he received from the armed services a 50 percent disability payment as a result of his right knee injury in the service due to a 75 percent tear of the anterior cruciate ligament of his right knee. This would appear to be a result of his January 1989 military injury but the records are confusing. He originally injured his right knee in May 1988 while in the service and this January 1989 incident obviously affected claimant's already injured right knee (Joint Exhibit 1, page 37). Claimant related the compensation he received as a result of his military injury. He also set out this information in joint exhibit 6, page 14, the answer to interrogatory number 16. On cross-examination, claimant was questioned as to whether he truthfully disclosed all his medical history. Claimant admitted he did not disclose his attempted suicide in 1983, which he claims was due to his service-connected knee injury and family problems Claimant was extensively questioned as to his work day of September 24, 1989 (a Sunday), and his contention that he was working with Don Webster. Claimant admitted that time and attendance reports had to be filled out for the days the employee worked. Claimant was shown these records which indicted on September 24, 1989, that Webster was not working that day. The corporate personnel earnings for the week of Monday through Sunday, September 24, 1989, showed Webster was not at work that day. Claimant disagreed with a VA record that indicates claimant's knee had been giving out once a month prior to September 24, 1989, and that he told the VA it was not work connected (Jt. Ex. 1, p. 3). Claimant also denied he told the plant manager not to worry about his knee as it was not work connected. Claimant said he did not discuss with Lonnie Jepsen whether his September 24, 1989 alleged injury was work related or not. Claimant did not know if he reported his injury to Cheryl Foutch, the workers' compensation coordinator. He emphasized he told his supervisor and Lonnie Jepsen. Claimant acknowledged he wore a right leg brace prior to working for IBP but insists it was not like his current brace. Claimant indicated that since he was on a service- connected right knee disability, if his leg gets worse it is re-evaluated and the VA Administration does not care what the cause of the worsening condition is as long as it is not intentionally caused by the claimant. Claimant indicated the VA Administration pays the additional amount and the rating is not affected by the nature of the additional cause of the right knee being affected. The disability increases regardless of the cause. Claimant indicated he received more military benefits from the VA in June 1991, after his surgery. Page 5 Connie Coker, a nurse at IBP, testified it is her responsibility to take care of the physical therapy records and documents and the employees' visits to the medical dispensary area and to process the workers' reports about an occupational injury. She knows claimant and his job as a supervisor. She related claimant never reported his own injury but had reported as a responsibility of a supervisor, other employees' injuries. She recalled on September 27, 1989, claimant spoke to her and said he had a service- connected injury and did not report that he injured himself on the job (Jt. Ex. 1, p. 55). She acknowledged she sat through the entire hearing and heard claimant say he told Mike Watkins of his injury. Ms. Coker said Watkins never reported any injury of claimant to her. She said Watkins is a conscientious person and has reported injuries of employees in the past. She indicated she has no evidence of claimant's injury from Watkins. Ms. Coker recalled claimant's returning from VA Hospital with a doctor's note and claimant never said it was work related. In fact, she emphasized that she asked claimant and he denied any work injury. It is obvious this note from the doctor was not in the evidence and no one knew where it was, but Ms. Coker emphasized there was a note and it existed somewhere at one time. She said she met with claimant before he went to the VA Hospital and she is not the one who suggested claimant go there. Claimant said he was going to go there. She emphasized that if the claimant said he had received a work injury, she would have noted it on the records. Cheryl Knezevich testified she is currently director of nursing at a care center in Stratford, Iowa. She worked full-time at IBP June 1989 through February 1990, and then part-time through 1990. At IBP, she was staff nurse and gave physicals, hearing tests and treated injuries. She knows claimant and emphasized claimant never told her of his work injury. She acknowledged her initials on October 13, 1989, that claimant was wearing a knee brace-immobilizer, but claimant never told her it was because of a work injury. She acknowledged she never noticed any pre-September 24, 1989 knee problem with claimant. Don Webster testified he began working for defendant employer in August 1989, and knows claimant by working with him in certain jobs with defendant employer. He also worked with claimant's brother. He testified he worked with claimant on the extra hours crew on Saturday and Sunday and knew claimant wanted extra hours. Defendant employer just opened up the plant and needed extra workers to get certain jobs done when the plant was not in its weekly operation. Claimant was his supervisor on this extra hour crew. They were referred to as showcase employees. Webster said he was with claimant when he was hurt slipping on the steps while walking through the hose area. He said after the slip, claimant could hardly walk. After this incident, he never directly worked with claimant again but two days later noticed claimant on crutches. Page 6 Webster could not recall any date but in relation to the time the plant opened for business, he placed the claimant's slip at work around the latter part of September 1989. Webster was shown a work record indicating he wasn't working on September 24, 1989, but he said he was paid. He does not have the date written down. He couldn't recall who else was present that day working and also in the supervisory position. Cheryl Foutch testified by way of deposition (Jt. Ex. 9(1)), on September 6, 1991. She worked for defendant employer from April 1989 to April 1991, as to being the workers' compensation coordinator. She dealt with work injuries of the employees. She knows claimant through the work place of IBP. She said claimant was a salaried supervisor. She indicated claimant never told her of a work injury. She said claimant brought a note to the employer prior to his beginning work indicating a restriction of no jumping at any time (Jt. Ex. 9(1), p. 6). Claimant said this restriction was service connected. Ms. Foutch said she first knew of claimant's injury only when she was served with a petition. She explained claimant never related to her that he had incurred a work injury. She acknowledged she never had any real contact with claimant after September 24, 1989, except she had to run him off the premises several times after he had come back to the premises. She said any information claimant gave her that his knee was injured was that it was service connected prior to September 24, 1989. Lonnie Jepsen testified by way of deposition on September 10, 1991 (Jt. Ex. 9(2)) that he has been employed with IBP since October 1984 involving IBP's Madison, Perry and Storm Lake plants. He was at the Perry plant on May 1, 1989 through October 15, 1989. He was personnel director most of the time of his employment with IBP. He related his duties. He was acquainted with claimant. He was familiar with claimant's promotion from an hourly laundry worker to a showcase supervisor, which is a salaried management position. Jepsen related the 90 day leave of absence with full pay given to management personnel. Claimant had to request the leave which he did as he planned to undergo knee surgery (Jt. Ex. 9(2), p. 9). Jepsen understood claimant was having surgery for a lingering military injury. Jepsen was never told by anyone that this injury of claimant was the result of a knee injury at work. He related a conversation with claimant in January 1990, at which time Jepsen also had an injury. He emphasized to the claimant at that time that if claimant had a work injury, he must let him know as he would not be entitled to sick leave if he had a workers' compensation injury. Jepsen said claimant said then he didn't think his knee injury was work related and he was going to seek payment of his medical benefits through G.I. benefits. Jepsen said claimant never indicated he had ever slipped at work but in the January 1990 conversation with Page 7 claimant, he indicated he had fallen. This was when he told claimant that if the injury was work related, he must know. Claimant indicated then that it was not work related (Jt. Ex. 9(2), p. 16). Jepsen indicated he did not notice any physical problems claimant had prior to September 24, 1989, and that claimant appeared to be able to do his job. Joint exhibit 1, page 3, dated September 26, 1989, indicates claimant had a knee injury in 1988 and had arthroscopy on August of 1988 and January of 1989. Claimant's right knee goes out of place once a month. The record indicates claimant's knee gave way two days ago. Although the record (handwriting) isn't very clear, it appears claimant had a 75 percent deficiency in his knee prior to September 24, 1989 (Jt. Ex. 1, p. 4). Joint exhibit 1, page 11, refers to claimant's May 1988 knee injury; his accident in January 1989, when he fell again; and his November 1989 Iowa City surgery, for repair and reconstruction of the ischial ligament. The undersigned notes nothing about a September 1989 injury. This seems to be in accordance with claimant's alleged comments to defendant employer's personnel that he had surgery because of the military injury and not because of any work-related injury. The undersigned notes that in looking at the VA Administration records, it was not until December 18, 1990, for the first time, that claimant referred to a work injury (Jt. Ex. 9(1), p. 17). Claimant filed his petition on August 28, 1990. Joint exhibit 1, pages 45 and 46, the Iowa Methodist Low Back Institute notes, do not reflect any work injury contention in claimant's history. It refers to a low back pain beginning after his November 8, 1989 right knee surgery. Joint exhibit 5, page 11, shows that as of September 6, 1989, claimant was a salaried employee with a salary of $18,500 per year, or $355.77 per week. Prior to this date it appears to indicate claimant was paid $6.10 per hour. Although the records are not that clear, it appears claimant began working at this hourly rate at the time he was hired, which also appears to be on or around August 3, 1989. There was approximately five weeks claimant got paid at the $6.10 per hour, which amounted to $240 gross per week based on a 40 hour week and there was two weeks claimant was paid at the $355.77 gross salary wage ($18,500 divided by 52 weeks). Claimant alleges he incurred an injury that arose out of and in the course of his employment. There is a question as to whether claimant was even working on September 24, 1889, and more particularly, as to whether one or more of his fellow workers were also at work that day. Taking everything as a whole, the undersigned believes claimant was working on a Sunday and that Sunday was September 24, 1989. As to whether claimant incurred an injury that arose out of and in the course of his employment, the undersigned believes that there was an incident at work on that day in which claimant's leg went out and that he happened to be at work at that time. The undersigned also believes that Page 8 claimant's preexisting knee condition resulting from a military injury was such that it made claimant's knee susceptible to going out and that this is, in fact, what happened. It appears from the record that claimant had been having knee problems and that his leg went out approximately once a month. The undersigned does not believe that the work itself had anything to do with the knee going out other than the fact that claimant was walking on stairs. The undersigned does not find that an injury actually occurred but that because of claimant's military preexisting knee injuries claimant's knee was in such a condition that it was susceptible of going out at any time and when it would go out would not be predictable. The undersigned finds that there is no material or substantial work aggravation of his preexisting military injury. The mere fact that claimant's knee went out at his place of employment does not mean that he incurred an injury that arose out of and in the course of his employment. The undersigned finds that this injury actually resulted from claimant's preexisting knee problems that were service connected and that it was that injury, in fact, which substantially and materially caused claimant to incur a worsening of his knee condition. Claimant did not incur a work injury that arose out of and in the course of his employment. It appears claimant desires to have his cake and eat it both in that he does not give a history until December 1990 as to incurring a work injury. He goes to the VA Administration for his military injury and receives substantial monetary benefits all based on the fact that he had a military injury which required additional surgery and became worse over a period of time. Key personnel with defendant employer knew nothing of claimant's claim of a work injury until claimant filed his workers' compensation petition in August 1990. It appears claimant is trying to collect from two sources for the same injury, and taking two different positions depending on the source from which he is attempting to collect. The resolution of this issue actually disposes of this case but the undersigned will touch upon some additional issues. Claimant has failed to sustain his burden to show that his claimed disability is causally connected to any work injury. The greater weight of evidence supports the fact that claimant incurred a military service connected injury and that this injury has gotten worse, requiring additional surgeries, but that claimant had a knee condition that would cause the knee to give out. There is no medical testimony that causally connects claimant's condition to a work- related injury on September 24, 1989. As to notice, the undersigned finds that defendant had notice of a medical complaint even though it would appear that any notice they had was as to a service connected preexisting injury. The undersigned does not feel that an employee must know the particulars and the legal and medical Page 9 status of an injury in order to have the employer's notice to be in compliance with 85.23, Iowa Code. Evidence shows defendant employer did know of medical problems with claimant on or around September 27, 1989. As to the issue of rate, in light of this decision, the undersigned will not go into any detail other than to indicate that claimant was a salaried employee on the date of his injury and normally would come under section 85.36(5), except that since claimant had been employed less than 13 calendar weeks (approximately seven full weeks) immediately preceding the injury, any rate would be based on 85.36(7). Any rate would be based on taking the respective weeks in which claimant was getting an hourly pay and the weeks claimant was getting an annual weekly salary and adding those weeks together and dividing them by the number of weeks involved to reach a rate. The undersigned finds that 85.36(6) alone would not be the basis for figuring any rate as contended by the defendants. Claimant is not entitled to any 85.27 medical benefits in light of the fact that the undersigned has found that claimant did not incur an injury that arose out of and in the course of his employment. If, in fact, there had been that finding and causal connection found, then claimant would have been entitled to 85.27 medical benefits based on the premise that defendant had denied liability and therefore claimant was entitled to seek medical benefits. conclusions of law Claimant has the burden of proving by a preponderance of the evidence that claimant received an injury on September 24, 1989 which arose out of and in the course of his 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). 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 (1955). 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 (1955). The claimant has the burden of proving by a preponderance of the evidence that the injury of September 24, 1989 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Page 10 Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The Iowa Supreme Court cites, apparently with approval, the C.J.S. statement that the aggravation should be material if it is to be compensable. Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's Compensation sec. 555(17)a. Iowa Code section 85.36(7), provides: In the case of an employee who has been in the employee of the employer less than thirteen calendar weeks immediately preceding the injury, the employee's weekly earnings shall be computed under subsection 6, taking the earnings, not including overtime or premium pay, for such purpose to be the amount the employee would have earned had the employee been so employed by the employer the full thirteen calendar weeks immedi ately preceding the injury and had worked, when work was available to other employees in a similar occupation. It is further found that: Claimant did not incur an injury that arose out of and in the course of his employment on September 24, 1989. Claimant did not show that his disability was causally connected to an injury that arose out of and in the course of his employment. Claimant had a preexisting knee condition that was an active condition at the time of claimant's alleged injury on September 24, 1989, and that this prior military-connected injury was the material and substantial cause of claimant receiving a worsening of his knee condition on or around September 24, 1989, resulting in additional surgeries. Any compensation that would have been payable had liability been found would have been payable under the provisions of Iowa Code 85.36(7). Claimant is not entitled to have his medical bills paid under the provisions of 85.27 because of the prior findings herein. If it had not been for claimant failing to prove that he incurred an injury that arose out of and in the course of his employment and that there was causal connection between his alleged disability and said injury, then said medical benefits would have been payable by defendant because defendant had denied liability. Claimant gave the employer sufficient notice of an alleged injury even though said matter of notice would indicate that any injury that may have occurred was a nonwork injury. Defendant at least had knowledge of a circumstance allegedly occurring so as to sufficiently comply with 85.23 of the Iowa Code. Page 11 order THEREFORE, it is ordered: That claimant takes nothing from these proceedings. That each of the parties shall pay their own costs of this action, pursuant to rule 343 IAC 45.33. Signed and filed this ____ day of October, 1991. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr David D Drake Attorney at Law West Towers Office 1200 35th St Ste 500 West Des Moines IA 50265 Ms Marie Welsh Attorney at Law Dept #42 P O Box 515 Dakota City NE 68731 5-1100; 5-1108; 2800 Filed October 29, 1991 Bernard J. O'Malley before the iowa industrial commissioner ____________________________________________________________ : TRACY KENDALL, : : Claimant, : : vs. : : File No. 951316 IBP, INC., : : A R B I T R A T I O N Employer, : Self-Insured, : D E C I S I O N Defendant. : : ___________________________________________________________ 5-1100; 5-1108 Found claimant did not incur an injury that arose out of and in the course of his employment and that there was no causal connection of his alleged disability and his alleged work injury. 2800 Found claimant did give sufficient notice of an incident at work which was concluded to be a nonwork injury. Claimant's incident at work was substantially and materially caused by a military service-connected injury which was causing claimant's right knee to give out monthly prior to his alleged work injury in which his knee gave out.