BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ LORI VAN WYHE, Claimant, File Nos. 952729 976964 vs. A R B I T R A T I O N TYSON FOODS, D E C I S I O N Employer, Self-Insured Defendant. ___________________________________________________________ STATEMENT OF THE CASE These consolidated cases are upon petitions in arbitration filed by claimant Lori Van Wyhe against her self-insured employer, Tyson Foods. Ms. Van Wyhe seeks benefits under the Iowa Workers' Compensation Act as the result of stipulated injuries to the right arm on December 17, 1990 (976964) and April 5, 1991 (952729). A contested case hearing was accordingly held in Sioux City, Iowa on May 20, 1993. The record consists of joint exhibits 1, 2, 8 through 11, 13 through 33 and 35 through 40 along with the testimony of claimant and Phillip Reinders. ISSUES The parties have stipulated that claimant sustained injury arising out of and in the course of employment on the two dates alleged. They agree that the injuries caused temporary disability and that claimant was off work on February 15, February 22 and March 22, 1991. Defendants deny liability, though. The parties have also agreed to the appropriate rates of compensation (12-17-90: $143.34) (4-05-91: $121.88). Entitlement to medical benefits is no longer in dispute. The parties agree that claimant was paid $56.22 in weekly benefits prior to hearing. Issues presented for resolution include: 1. The extent of entitlement to healing period/temporary total disability benefits; 2. Whether either injury caused permanent disability; 3. Entitlement to permanent partial disability benefits for scheduled member disability to the right arm. FINDINGS OF FACT The undersigned deputy industrial commissioner finds: Lori Van Wyhe, 29 years of age at hearing, was employed by Tyson Foods from December 18, 1989 through April 5, 1991. Page 2 Tyson Foods is a manufacturer of various food products, including hamburger patties and processed food products. Claimant worked numerous assembly line jobs in the cook room and IQF ("instant quick freeze") areas of the plant. Much of the work claimant did, including boxing meat, scooping product into containers and packing, required repetitive use of the upper extremities, although the particular motion involved would vary with the job. In early 1990, claimant was packing fajitas into bags when she felt a "popping" sensation in the left wrist followed by swelling and pain. Claimant compensated by trying to use her dominant right arm more, but soon developed an assortment of bilateral symptoms. On May 24, 1990, claimant underwent EMG testing interpreted by Dr. J. L. Case. Bilateral findings were normal. On December 17, 1990 (the injury date stipulated by the parties in number 976964), defendant's attendance records reflect that claimant "called in sick with the flu." On December 18, 1990, Mel Wallinga, M.D., imposed a restriction of a maximum two shifts per week to be worked on the IQF line due to tendonitis. As of February 20, 1991, Dr. Wallinga permitted claimant to work, but "as light of duty as possible." The record contains no indication of more recent treatment by Dr. Wallinga. Claimant was next treated by J. Michael Donohue, M.D.. On March 15, 1991, Dr. Donohue found minimal objective findings in support of his assessment of chronic tenosynovitis of the right forearm and elbow. He found prognosis to be poor, based largely on persistent symptoms despite prolonged treatment and activity modification versus minimal objective findings on evaluation. Claimant was to return to work, but avoid activities requiring repetitive flexion and extension of the wrist and elbow. Dr. Donohue's assessment on June 3, 1991 was of bilateral upper extremity dysfunction - subjective complaints outweigh the objective findings. As of December 3, 1991, his assessment was of persistent right forearm discomfort, while noting that tenderness was now localized over the extensor musculature. On each occasion, Dr. Donohue opined that based on objective findings, claimant had not sustained permanent injury. Claimant also received treatment from T. M. Zoellner, M.D.. Dr. Zoellner is an orthopedic specialist. His chart notes of July 13, 1992 show an impression of persistent lateral epicondylitis (more commonly known as "tennis elbow") and assigned an impairment rating of 2 percent of the upper extremity based on the American Medical Association Guides to the Evaluation of Permanent Impairment. Dr. Zoellner's examination showed tenderness Page 3 at the lateral epicondyle, 5 degrees to 130 degrees active range of motion and some tenderness on the dorsal wrist extension, more so with the elbow extended. Claimant has also been evaluated by two medical doctors and a chiropractor. John J. Dougherty, M.D., wrote on January 2, 1992 that he was not impressed with claimant's reported pain and that she did not have swelling. It was Dr. Dougherty's opinion that claimant had not sustained any permanent impairment. Joel T. Cotton, M.D., wrote on March 24, 1993 that the previous abnormal physical findings described by Dr. Zoellner were no longer present as of his evaluation of March 17, 1993. His examination of claimant's right elbow was normal and he opined that claimant had no permanent partial impairment or subsequent disability pursuant to the AMA Guides. Claimant was seen by Pat Luse, D.C., on March 13, 1992. While Dr. Luse felt that claimant had suffered an injury and would be subject to recurrent problems in the area of the right forearm, he did not impose any impairment rating under the AMA Guides since they "do not allow for rating tendonitis unless it is constructive tenosynovitis or causes subluxation." CONCLUSIONS OF LAW The parties have stipulated that claimant sustained injury on both dates alleged, even though December 17, 1990 apparently involved an attach of influenza. Defendants agree that claimant missed three separate days of work, but do not consider the time compensable because temporary total disability entitlement accrues only beginning the fourth day under Iowa Code section 85.32. If, however, the injury caused permanent disability, those three days would be compensable as healing period under Iowa Code section 85.34(1). The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circumstances. The expert opinion may be Page 4 accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Although claimant has subjective complaints of pain, objective signs of injury are scarce. Only Dr. Zoellner was able to rate impairment, and Dr. Cotton later found that the conditions Dr. Zoellner described were no longer present. Dr. Donohue, a primary treating physician, has repeatedly opined that claimant did not sustain permanent injury. Claimant has failed to establish by the weight of expert testimony that she has sustained permanent injury. Neither Dr. Donohue, Dr. Dougherty, Dr. Cotton or even Dr. Luse found permanent ratable impairment. Accordingly, defendants prevail on this issue. Because claimant did not miss in excess of three days of work, her temporary total disability is not compensable under section 85.32. ORDER THEREFORE, IT IS ORDERED: Claimant shall take nothing further under either contested case file. Costs are assessed to defendant. Signed and filed this ____ day of September, 1993. ______________________________ DAVID R. RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Harry Smith Attorney at Law 632-640 Badgerow Bldg. P.O. Box 1194 Sioux City, IA 51102 Mr. Thomas M. Plaza Attorney at Law 701 Pierce, Suite 200 Sioux City, IA 51102 5-1801.1, 5-1803 Filed September 27, 1993 David R. Rasey BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ LORI VAN WYHE, Claimant, File Nos. 952729 976964 vs. A R B I T R A T I O N TYSON FOODS, D E C I S I O N Employer, Self-Insured Defendant. ___________________________________________________________ 5-1801.1, 5-1803 Three days of temporary total disability were not compensable where record did not show permanency. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : SUZANNE MASON, : : Claimant, : : vs. : : File No. 952884 SIPCO, INC. d/b/a MONFORT, : INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : HOME INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by claimant, Suzanne Mason, against her employer, Sipco, Inc., d/b/a Monfort, Inc., and its insurance carrier, Home Insurance Company. Claimant sustained a work-related injury on May 31, 1990. The record in this case consists of testimony from the claimant, Sheryl Howell, John Fricke (the head room supervisor at Monfort), Robin Clark (the registered nurse employed by Monfort), Michael Slifer (claimant's supervisor); and, joint exhibits 1-41. The matter came on for hearing before the undersigned deputy industrial commissioner on October 18, 1993 at Des Moines, Iowa. ISSUES The parties submitted the following issues for resolution: 1. Whether claimant is entitled to temporary total or permanent partial disability benefits; 2. Claimant's workers' compensation rate; and 3.. Whether claimant is entitled to penalty benefits due to defendants' "failure to pay claimant any industrial disability." FINDINGS OF FACT The undersigned deputy industrial commissioner, having reviewed all of the evidence received, finds the following facts: Claimant, Suzanne Mason, was born on October 20, 1949. Page 2 At the time of the hearing, she was 43 years of age. Currently, claimant is single. She has a child from a previous marriage, Joshua, who was born on March 30, 1972. Claimant stated that although Joshua lived with her "off and on," he was living with her at the time of the injury, May 31, 1990. Apparently, in her deposition, claimant was unable to remember whether Joshua was living with her on the date of the injury. Joshua's girlfriend, Sheryl Howell, also testified at the hearing. She recalled that both she and Joshua were living with claimant at the time of the injury. Claimant graduated from high school in 1967. She attended Humboldt Institute in Minneapolis for nine months, and studied to become an airline secretary. She has never secured work in this area. Claimant also received training to become a resident treatment worker, a term she used to describe nurses' aide work. Her certificate is not current. Claimant's work history includes positions in the mail room and as a clerical person at Lennox Industries in Marshalltown, Iowa. She also worked for Marshalltown Trowel, sanding handles and polishing trowels. In July of 1976, claimant began working for the defendant employer. She has held a myriad of jobs with the company including, what claimant described as chitterlings, pulling pancreas, salt casings, pulling small guts and work on the cut floor, wrapping and packing butts. In 1978, claimant was diagnosed with bilateral carpal tunnel syndrome and underwent surgery to relieve her symptoms. She received excellent results from the surgeries, and she was released to return to work on the production floor without restrictions. At the time of her injury, claimant was working on the boneless butts line. Her job duties included using a straight knife to separate the bone from the butt of the meat. According to claimant, the job required repetitive use of both arms and standing on cement, but no heavy lifting. Claimant's dominant hand is her right hand. On May 31, 1990, claimant visited the company nurse with complaints of neck and shoulder pain. She was directed to the company physician, a Dr. Lund, who examined her and sent her back to work with restrictions of no lifting of more than ten pounds. He diagnosed possible cervical disc or strain, and suggested a CT scan if the pain persisted. (Joint Exhibits 1, 2 and 3). Claimant underwent an MRI in June of 1990, which confirmed a broad-based, left-sided herniated disk which was causing cord compression and central canal stenosis at the C5-6 level. Claimant was complaining of pain in the neck as well as pain and numbness in the right arm and fingers on the right hand. She was referred to Robert Jones, M.D. (Jt. Exs. 4, 5, 7, 8 and 22). Page 3 In August of 1990, Dr. Jones ordered a second MRI which showed a herniated disc at the C5-6 level on the left side. He imposed restrictions of no lifting of more than 20 pounds, and a limited amount of lifting, pushing and pulling, and felt claimant could return to her job. Dr. Jones did not recommend surgery at this time, but prescribed a course of physical therapy. (Jt. Exs. 9 and 10). Apparently, claimant did not feel relief, and returned to Dr. Jones in September of 1990. Although the notes are poorly copied and illegible, an examination revealed that claimant was experiencing loss of strength in the right biceps and continued pain in the neck and right arm. She underwent an anterior cervical diskectomy and fusion on September 11, 1990. (Jt. Exs. 11, 12 and 13). Approximately one month after the surgery, claimant returned to Dr. Jones for an evaluation. Her biceps strength was normal, and he predicted she could return to work in several months. (Jt. Ex. 14). While the progress notes from October through January are illegible, a follow-up letter from Dr. Jones to the adjusting company associated with this case indicates that claimant sustained a permanent impairment between seven and ten percent due to the surgery, and as of January 14, 1991, claimant was released to return to work. Later, Dr. Jones determined claimant's impairment was 8 percent. (Jt. Exs. 15, 16, 17 and 18). Evidently, claimant returned to work, but in September of 1991 returned to Dr. Jones with renewed complaints of discomfort in her neck and shoulders, with headaches "extending into the right upper arm." He suggested a change in jobs so that she would not be required to use her arms on a repetitive basis. (Jt. Ex. 19). Claimant was afforded several different positions with the defendant which allowed her to continue to work at the same rate of pay as before the injury. For a time, she worked in the supply room passing out gloves, knives and other supplies. She indicated that prior to the injury, she was allowed to work 14 to 15 hours of overtime per week whereas now, she could not. And, while her position in boneless butts had been classified as a seven bracket position, her current position is a three bracket position. Each bracket is worth $.05 per hour; although claimant is earning the same hourly wages she earned prior to the injury, this is due to a contractual wage increase. Due to the drop in brackets, she is actually earning $.10 per hour less. In September of 1992, Dr. Jones opined that claimant's cervical disc problem was caused by her job duties at Monfort. He suggested that she continue to perform clerical jobs. (Jt. Ex. 20). Claimant underwent an independent medical examination in November 1992. Martin Rosenfeld, M.D., an orthopaedic specialist, determined that claimant had decreases in neck motion, but agreed with Dr. Jones' assessment that claimant Page 4 had sustained an eight percent permanent impairment. (Jt. Ex. 25). Claimant underwent a functional capacities evaluation (FCE) on November 17, 1992. The results showed claimant was "capable of performing light-medium employment lifting and carrying up to 35 lbs. maximum infrequently and up to 20-22 lbs. maximum frequently at heights up to waist level and lifting up to 20 lbs. maximum infrequently and up to 13-15 lbs. maximum frequently at heights above approximately mid-chest level." (Jt. Ex. 39). She was to be allowed 10-15 minute breaks after working for two to two and one-half hours. (Id.). Other exhibits address claimant's complaints of low back pain, which began in September of 1991 (jt. exs. 33, 34, 35, 36, 37, and 38); a list of claim payments (jt. ex. 40); a claim activity report (jt. ex. 41); claimant's prior work experience (jt. ex. 32); and, a request for and a denial of industrial disability benefits (jt. ex. 31). Claimant has worked for the company for more than 17 years. The job bidding process is governed by seniority, and few workers, if any, have more seniority than claimant. She recently bid on a job called "fresh pack" in the box room. In this capacity, she would wrap boxes of fresh loins. Claimant believed she could perform all of the functions of this position. This is a three bracket job. John Fricke has worked for the defendant for eight years. He has been the head room supervisor for two and one-half years, and manages 42 employees, including claimant. In August of 1993, he supervised claimant while she worked on the jaw bone line, separating temple meat from the bone. He stated she was able to adequately perform the job, which involved using a straight knife to cut two pieces of meat, each weighing less than one pound. Mr. Fricke admitted that the position required constant use of the arms. He also explained that the company had completely eliminated the job at which claimant was working at the time of her injury. Robin Clark, the registered nurse for the defendant employer, testified that after claimant underwent the functional capacities evaluation, she was given four to five job options at the plant that fell within the restrictions delineated by the FCE report. Michael Slifer is a supervisor at the plant and has known claimant for 15 years. Although he did not remember the exact date, at some point during the time claimant was off of work, he saw her riding a horse. ANALYSIS AND CONCLUSIONS OF LAW The first issue to address is whether claimant has sustained a permanent disability, which would allow her to recover healing period benefits. The party who would suffer loss if an issue were not Page 5 established has the burden of proving that issue by a preponderance of the evidence. Iowa R. App. P. 14(f). The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Claimant's treating physician, Dr. Jones, indicated that she had sustained an eight percent permanent impairment due to the surgery to her cervical spine. He also imposed permanent restrictions of no repetitive use of her arms. No other physician rendered an opinion addressing her condition, although some additional restrictions were imposed via a functional capacities evaluation. The greater weight of the evidence supports a finding that claimant sustained a permanent impairment. She is entitled to healing period benefits for the time she was off of work, from June 15, 1990 through August 5, 1990 and from August 16, 1990 through December 12, 1990. The next issue to address is claimant's industrial disability. As claimant has sustained an injury to the body as a whole, an analysis of her industrial disability is warranted. Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, expe rience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disabil ity. This is so as impairment and disability are not syn Page 6 onymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial dis ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, l985). At the time of her hearing, claimant was 43 years old. Most of her work history has been with the defendant employer. Claimant has held a variety of jobs with Monfort, and currently earns more than $9.00 per hour. She sustained an injury to her neck, which prior to fusion surgery caused pain and discomfort not only in her neck but also in her right arm. At one point, she sustained a significant loss of strength in her right biceps, but according to the medical documentation, she has had an excellent result from the surgery, which alleviated most of her symptoms. While claimant's injury and treatment were somewhat severe, her healing period went smoothly and no complications were noted. The employer has accommodated claimant's restrictions, and has continued to employ claimant. Some injured workers Page 7 are not so lucky. Claimant has taken responsibility for her recovery and return to work as well, and her motivation to return to work is noted. Claimant's actual loss of earnings has been minimal. The job she currently holds is a lower classification than the job she held at the time of the injury. As a result, she earns $.10 less per hour now than at the time she was injured. After considering all of the factors enumerated above, including the eight percent permanent impairment rating; claimant's work restrictions; the employer's willingness to accommodate claimant's work restrictions; claimant's current earnings, and her earnings at the time of the injury; the severity of the injury and length of her healing period; and, claimant's training, it is found that claimant has sustained an eight percent industrial disability. Claimant has also asked for penalty benefits. Iowa Code section 86.13 (4) states, in relevant part: If a delay in commencement or termination of benefits occurs without reasonable or probable cause or excuse, the industrial commissioner shall award benefits in addition to those benefits payable under this chapter, or chapter 85, 85A, or 85B, up to fifty percent of the amount of benefits that were unreasonably delayed or denied. The standard used by the agency to determine whether claimant is entitled to penalty benefits is whether the claim is fairly debatable. In the case at bar, the claim was fairly debatable. Claimant returned to a job which she has been able to perform, and a good faith argument can be made addressing any loss of earning capacity she may have sustained. And, defendants did pay claimant 40 weeks of permanent partial disability benefits. Claimant is not awarded any penalty benefits. The final issue to address is claimant's workers' compensation rate. Both claimant and her son's girlfriend testified that claimant's son was living with her at the time of the injury. Defendants present no evidence to dispute this. Therefore, claimant has proved by a preponderance of the evidence that she is entitled to two exemptions, and her correct workers' compensation rate is $253.66 per week based on gross weekly earnings of $410.06 per week, two exemptions, and marital status (single). Page 8 ORDER THEREFORE, it is ordered: That defendants pay claimant healing period benefits from June 15, 1990 through August 5, 1990 and from August 16, 1990 through December 12, 1990 at the rate of two hundred fifty-three and 66/100 dollars ($253.66) per week; That defendants pay claimant permanent partial disability benefits for fifty (50) weeks commencing on December 13, 1990 at the rate of two hundred fifty-three and 66/100 dollars ($253.66) per week; That defendants shall pay accrued benefits in a lump sum; That defendants shall pay interest on the award as provided by Iowa code section 85.30; That defendants shall pay the costs of this action; That defendants shall file a claims activity report as required by the agency. Signed and filed this ____ day of November, 1993. Page 9 ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Fred L Morris Attorney at Law 405 Sixth Ave Ste 700 Des Moines IA 50309 Mr Max Schott Attorney at Law 6959 University Ave Des Moines IA 50311 5-1803 Filed November 3, 1993 Patricia J. Lantz BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : SUZANNE MASON, : : Claimant, : : vs. : : File No. 952884 SIPCO, INC. d/b/a MONFORT, : INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : HOME INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803 Claimant, 43 years of age, sustained a herniated disc at the C5-6 level. She underwent a fusion, and returned to work in four months. The company accommodated claimant's restrictions. She has a significant amount of seniority, and is able to bid on and likely secure most jobs at the plant. She received excellent results from the surgery, but sustained an 8 percent permanent functional impairment rating. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : SUZANNE MASON, : : File No. 952884 Claimant, : : vs. : N U N C : SIPCO, INC. d/b/a MONFORT, : P R O INC., : : T U N C Employer, : : O R D E R and : : HOME INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ The decision filed November 3, 1993 contains an error on page seven, in the seventh full paragraph. The following statement is correct: After considering all of the factors enumerated above, including the eight percent permanent impairment rating; claimant's work restrictions; the employer's willingness to accommodate claimant's work restrictions; claimant's current earnings, and her earnings at the time of the injury; the severity of the injury and length of her healing period; and, claimant's training, it is found that claimant has sustained a ten percent industrial disability. The remainder of the decision remains the same. Signed and filed this ____ day of November, 1993. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Fred L Morris Attorney at Law 405 Sixth Ave Ste 700 Des Moines IA 50309 Mr Max Schott Attorney at Law 6959 University Ave Des Moines IA 50311 Page 1 before the iowa industrial commissioner ____________________________________________________________ : DENNIS R. WITTE, : : Claimant, : File Nos. 966533 : 966534 vs. : 952950 : LENNOX INDUSTRIES, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This case came on for hearing on December 2, 1991, at Des Moines, Iowa. This is a proceeding in arbitration wherein claimant seeks compensation for permanent partial disability benefits as a result of alleged injuries occurring on February 17, 1989, July 27, 1989, and April 9, 1990. The record in the proceedings consist of the testimony of the claimant and Dennis Hart; joint exhibits 1 through 42; and defendants' exhibits A and B. ISSUES The issues for resolution are: As to the February 17, 1989 and July 27, 1989 injuries, the only issue is the extent of claimant's permanent disability, if any. As to the April 9, 1990 alleged injury, the issues are: 1. Whether claimant's injury arose out of and in the course of his employment; 2. Whether claimant's alleged disability is causally connected to his April 9, 1990 injury; 3. The nature and extent of claimant's disability and entitlement to disability benefits; and, 4. Claimant's entitlement to 86.13 penalty benefits. findings of fact The undersigned deputy, having heard the testimony and considered all the evidence, finds that: Claimant is a 28-year-old high school graduate who has Page 2 no other formal education. Claimant began working for defendant employer on February 6, 1984. He described his work prior to working for defendant employer, which basically involved working at a service station at which he also did mechanic work. Claimant had a pre-employment physical and back x-rays prior to working for defendant employer and said the x-rays and physical were negative. Claimant described his work at defendant employer's during the years he worked. He described his duties and the changes that occurred in various positions or jobs within his employment. On February 17, 1989, claimant was picking up a blower by hand to place in a heating unit when he felt a pain in his lower back which went down his leg to his knee, more on the right than the left. Claimant said he got better and he did his job but the back pain never completely went away. Claimant returned to work with no restrictions and no loss of time. Claimant said his symptoms increased on July 28, 1989, after he had been adjusting a heat exchanger in a heating unit by aligning some screws and while in a bent over position. He returned again to Ron K. Dunham, D.C., for treatments. Claimant said he obtained some but not total relief of his symptoms. The doctor made the same diagnosis as he did in February of 1989, namely, muscle sprain. Dr. Dunham did not take x-rays this time either. Claimant lost no time and returned to his same job with no restrictions. On April 1, 1990, claimant was transferred to the automatic punch press, which required changing 500 to 1800 pound dies on the press depending on the particular part to be made. Claimant said he used a hoist to put the dies in the roller but there is pushing and pulling required to get them in or out of the machine. Claimant related that around the second week in April, the pain occurred again. He could not relate a particular day or hour as he continued to work as usual. Over the Easter weekend (Easter Sunday was April 15, 1990), claimant's symptoms became worse and he went to the company nurse on April 18, 1990, to seek treatment. Claimant related the nurse gave him an option of filling out a workers' compensation form or going through his health insurance and going to his own doctor instead of the company doctor. Claimant indicated since he did not get complete relief from Dr. Dunham, who took no x-rays, he thought he would go to his doctor. Claimant went to Lloyd L. Cutler, D.C., on April 19, 1990, and received nineteen treatments in April, May and June of 1990. Claimant said he got temporary relief but one-half hour after treatment, the back pain returned. Joint exhibit 9, page 10, reflects the employee's first aid record indicating an office visit on April 18, 1990. These notes reflect that claimant indicated his pain started on the Easter weekend and that his back hurt two or three weeks before and the pain went away until that Easter weekend. At that time, claimant told the nurse that he did not know what he did to cause the pain but that it had just started hurting. Page 3 On June 15, 1990, the company nurse recommended claimant see his family doctor, David L. Thomas, Jr., M.D., who took x-rays. The x-rays were negative. Claimant then was given a CT scan which showed a ruptured disk at L5-S1. Dr. Thomas' notes on June 15, 1990, reflect that claimant denied a specifically known injury and that he was not sure exactly where he got hurt - whether at work or at home. Claimant could not remember any specific injury (Jt. Ex. 13, p. 15). It is this exhibit and the prior exhibit specifically that defendants rely heavily on to show claimant was not injured on April 9, 1990, and that if there was an injury on or around that time, it was not work related (Jt. Ex. 13, p. 15). Joint exhibit 15, page 17, is Dr. Thomas' report of July 30, 1990, indicating claimant's injury at work happened a year ago, which would have been in reference to the July 27, 1989 injury. Joint exhibit 29 shows claimant had an L5-S1 diskectomy on July 16, 1990. Joint exhibit 12 reflects an October 12, 1990 letter in which Dr. Cutler wrote to claimant's attorney indicating he was unable to ascertain the exact cause of his injury although he thought it related to his work routine. Joint exhibit 36 reflects a November 20, 1990 letter from Carl O. Lester, M.D., in which he gave claimant a 12 percent permanent impairment as a result of his L5-S1 laminectomy that he performed on claimant on July 16, 1990. Nothing in this letter indicates the cause of claimant's surgery or injury. Obviously, a follow-up letter to the doctor from claimant's attorney, Dr. Lester, on November 26, 1990, causally connects claimant's sequence of events that led up to his surgery and the surgery itself and subsequent office visits to claimant's original injury in which he lifted a furnace blower and felt a back pain. This would have to be referring to the February 17, 1989 injury (Jt. Ex. 37). The letter that claimant's attorney wrote to the doctor on November 20, 1990 is defendants' exhibit A, page 12. There is at least a page of the letter missing. The question arose as to whether Dr. Lester had all of the medical history of the claimant. Claimant pointed out in the letter that there were various attachments relating to claimant's history and that the doctor did in fact have adequate information. Since the defendants' exhibit is not complete as far as the total pages of the November 20, 1989 letter and claimant did not have this as an exhibit in its entirety, it is hard for the undersigned to determine the full or entire situation. Claimant has the burden of proof. The undersigned is concerned by the doctor's comment that the original injuries started the entire sequence of events. There has been no denial that two injuries occurred, February 1989 and July 1989, that arose out of claimant's employment, but it appears undisputed that the claimant returned back to work and at least as of April 1, 1990, there was no permanent impairment no restrictions nor any permanent disability. Claimant lost no work and continued to perform his job. Claimant testified that he never completely got over his pain and, other than his testi mony and subjective comments, there is no other real evidence that there is any residue from these other Page 4 injuries. At least, it is undisputed there was no permanency contended by the claimant until at least the April 9, 1990 incident allegedly occurred. In looking at joint exhibit 39, dated December 18, 1990, the doctor appears to be attempting to reaffirm his original position as to causally connecting claimant's injury to his current problems and resulting surgery, but he refers to what claimant told him and in reviewing his injury, he referred to the fact that claimant injured himself over a year ago and did not simply get over the original injury. As the undersigned indicated earlier, he thought the doctor originally was referring to an original injury of February 17, 1989, but it would appear now that he might be referring to an injury of July 1989, which would be approximately a year and a half ago and not February 1989, almost two years ago. Claimant testified that on the side he does work on automobiles, performing mechanical work for pay for various individuals. There is also evidence that he did some bowling. It would seem that claimant under the facts of this case could be more specific as to when in fact he occurred an injury or an aggravation of a prior injury, or a specific trauma itself, in April 1990. It would also seem that claimant could be more certain as to whether he incurred it at home or at work. It is obvious he was not sure. Defendants' exhibit A, page 10, indicates that the claimant was not sure of the nature of his injury or illness as he didn't mark whether it was at work or otherwise. Joint exhibit 13 shows the notes of June 15, 1990, which indicates claimant came in that day complaining of back problems beginning early in 1990. This is a difficult and a close call case. The claimant has the burden to prove an injury arose out of and in the course of his employment and, that there is causal connection to claimant's alleged disability and the alleged injury. The undersigned does not believe that the claimant's current problems are causally connected to either the February or July 1989 work injuries and that those two work injuries did not result in any permanent impairment or disability. The undersigned finds that the claimant has failed in his burden to prove that whatever is currently causing his problems surfaced sometime in the first fourteen days of April 1990, and that the undersigned does not know, just like the claimant does not know, whether they were work or nonwork related or what specifically brought about claimant's complaint. There is nothing with medical certainty from any chiropractor, who performed considerable services on the claimant, and the undersigned questions Dr. Lester's ability, based on the record presented herein, to causally connect claimant's current complaints to a February 1989 injury. Dr. Lester, who became involved around June of 1990, is relying heavily on the subjective history given to him by the claimant. The undersigned, therefore, finds that claimant has failed in his burden of proof and recovers nothing further from these proceedings and that due to the nature of this decision, claimant is not entitled to any 86.13 penalty benefits. Page 5 conclusions of law Claimant has the burden of proving by a preponderance of the evidence that he received an injury on April 9, 1990, 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 claimant has the burden of proving by a preponderance of the evidence that the injury of April 9, 1990, 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 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). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, 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 circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 N.W.2d 128. It is further concluded that: Claimant incurred an injury on February 17, 1989, that arose out of claimant's employment. As a result of said injury, claimant did not incur any permanent disability or impairment, restrictions, or loss of income. Claimant incurred an injury on July 27, 1989, that arose out of claimant's employment. As a result of said injury, claimant did not incur any permanent disability or impairment, loss of work, or loss of income. Claimant did not incur an injury on April 9, 1990, which arose out of and in the course of his employment. Claimant's alleged medical complaints, disability and surgery in 1990 were not caused by a work injury on April 9, 1990. Claimant is not entitled to any 86.13 penalty benefits. Claimant is not entitled to anything further in these proceedings, as defendants have paid all medical bills and have paid claimant all benefits to which he is entitled as Page 6 of the date of the hearing. ORDER THEREFORE, it is ordered: That claimant takes nothing further from these proceedings. That defendants pay the costs of these proceedings. Signed and filed this ____ day of December, 1991. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Max Schott Attorney at Law 6959 University Ave Des Moines IA 50311 Mr D Brian Scieszinski Attorney at Law 801 Grand Ave Ste 3700 Des Moines IA 50309 Page 1 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : MARY M WAKEFIELD, : : Claimant, : : vs. : : File No. 953015 VOGEL POPCORN COMPANY d/b/a : GOLDEN VALLEY MICROWAVE, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LUMBERMAN'S UNDERWRITING : ALLIANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Mary Wakefield seeking benefits based upon an alleged injury of April 24, 1990. She seeks compensation for healing period and permanent disability. She seeks to recover medical expenses. Her claim includes an allegation that she sustained a physical injury which in turn produced a psychological injury. The primary issues to be determined are whether the claimant sustained an injury which arose out of and in the course of employment. Both the occurrence of any physical injury as well as any physical injury having proximately caused any psychological injury are disputed. With regard to the medical expenses, there is an issue with regard to whether all of the treatment which has been provided, particularly that most recently provided, was reasonable. The case was heard at Council Bluffs, Iowa, on March 9, 1993. The evidence consists of testimony from Mary Wakefield, Brian Vannatta, Doug McMahon, and Lynn Ferguson. The record also contains jointly offered exhibits 1 through 20. FINDINGS OF FACT Mary Wakefield is a 38-year-old woman who has held a variety of employments in her life. She dropped out of school after completing the eighth grade and married at age 15. That marriage ended by the death of the husband in a tragic accident. Mary has experienced a remarkable number of tragedies during her lifetime. Mary has a history of substance abuse, depression, panic attacks, and agoraphobia. The record in this case Page 2 shows Mary to have been diagnosed with left shoulder tendonitis on October 4, 1988. She was treated with an injection and medication (exhibit 9j). She was off work for approximately one week in early February 1990 due to a low back strain. The records show that she sought treatment again on May 9, 1990, for a left shoulder problem which the doctor felt was probably work related. She was seen again on May 25, 1990, with back and left shoulder complaints (ex. 9j). Mary testified at hearing that in early February 1990, she had back complaints which came on following bowling on a Saturday night but then resolved. Mary attributes her current complaints to lifting and twisting at work with a particular incident having occurred on April 24, 1990. There were no witnesses who confirmed the occurrence of any incident on or about April 24, 1990. The incident was not reported until the following Sunday evening. The description of Mary's work was such that it is not the type of work which would be expected to produce serious or substantial injury. It does require repetitive activity and moderate exertion. Mary initially was treated by T.H. Largen, M.D., her family physician. On April 30, 1990, he reported that she would be off work due to a sacroiliac strain for a week and would then be expected to be on light duty for two weeks (ex. 9i). On May 25, 1990, however, he reported she could not resume regular duty and released her to perform light duty indefinitely (ex. 9h). On June 14, 1990, he again reported that she was not able to resume regular duty and would be on light duty indefinitely (ex. 9f). By September 25, 1990, Dr. Largen reported that claimant's response to treatment had been poor and that no further treatment was indicated except passage of time and medication. Nevertheless, he did not expect any long-term permanent impairment (ex. 9e). Mary attempted to resume work in mid-May, but did not provide her supervisor with her restricted release from her doctor (ex. 17). She apparently worked 10 hours on May 14, three hours on May 15, approximately six or seven hours on May 16, and five and one-half hours on May 17. She worked on May 21 but has not worked since (ex. 17). There is a dispute in the record regarding whether or not light duty was available. On May 30, 1990, Mary made a written request for a personal leave of absence (ex. 16). May has been extensively evaluated. MRI and CT scans have been conducted. None have shown any evidence of a substantial, recent, acute injury though conditions of long-standing origin such as disc degeneration at the L4-5 disc level, sacralization at the L5-S1 level and the mineralization at the T-12 level of Mary's spine have been identified (exs. 6a-e). Mary was evaluated by Michael J. Morrison, an orthopedic surgeon, on July 3, 1990. In his report he stated that she had reached maximum medical improvement, that no further treatment was necessary other Page 3 than muscle strengthening, flexibility exercises and over-the-counter medications. He saw no reason to restrict her activities and expected no long-term permanent impairment (ex. 8). When she was examined by orthopedic surgeon Thomas C. Bush, M.D., on September 4, 1990, he could find nothing wrong with her but did note that she made complaint of a lot of pain and suspected that there could be a psychological overlay (ex. 7). Mary has been evaluated and treated by orthopedic surgeon Timothy C. Fitzgibbons, M.D., since early 1991. He diagnosed her as having a chronic lumbosacral strain, upper back pain which was probably related to her lower back strain and with a possible thoracic strain. He also found her to have left shoulder impingement syndrome. In a report dated March 5, 1991, he stated that the most likely cause of her problems was repetitive activity at work. In a report dated September 20, 1991, he noted that she had not improved with therapy. He also stated that his opinion on causation was based upon her statements that she had not had prior problems (ex. 4). Dr. Fitzgibbons rated claimant as having a 7 percent permanent impairment to the body as a whole due to her back and shoulder problems. Mary was also evaluated by Peter M. Cimino, M.D. He diagnosed her as having chronic lumbar spondylosis. He stated that it was difficult to determine whether the symptoms which she related to him were truly due to a back injury (ex. 10). In early 1993 Mary was also evaluated by Jay J. Parsow, a physiatrist. Dr. Parsow found several conditions which he indicated were probably work related (ex. 3). Dr. Largen has concurred with the assessment made by Dr. Parsow (ex. 9). Mary has also been evaluated and treated for her psychological problems. Cathy Peters-Midland reported on October 22, 1991, that Mary is afflicted with situational depression which appears to be due to back and shoulder pain as well as financial stress from being unemployed and being denied workers' compensation benefits (ex. 2). Psychiatrist David G. Windsor, M.D, reported that Mary has at least a 10 percent permanent partial impairment on psychiatric grounds resulting from her injury while she was employed by Vogel Popcorn. He felt that her work had been somewhat beneficial to her in that being unable to work aggravated her psychiatric symptomatology (ex. 1). Mary was evaluated by Timothy Patterson, D.O. Dr. Patterson indicated that Mary experienced a great deal of anxiety regarding returning to work, that the circumstances of her original injury had become personalized and that, when combined with the problems she was having at home and with her children, interfered with her ability to return to work. He reported that she clearly wants to be pampered and needs to feel that her original injury was, in fact, Page 4 legitimate. He found it difficult to support the claim that she had suffered any psychological injury (ex. 11). Mary has had considerable problems with her two older children. Her son has been in prison. Her daughter has been hospitalized. At about the time of the alleged injury, Mary was preparing for her daughter to be released from a hospital setting in order to live with her. As previously noted, Mary's work was not the type of thing which would be expected to cause any substantial or significant injury. Like many types of work it appears to have the propensity to produce strains, aches and pains which normally resolve in a matter of a few days or perhaps weeks. There is nothing in the record of this case, other than Mary's own stated complaints, which indicates that whatever happened on or about April 24, 1990, produced any long-standing physical injury. Objective diagnostic tests have shown some abnormalities but all those abnormalities were not the types of things which would develop in a short period of time and likely preexisted. Mary is of slight physical build and if would not be unexpected for her to have difficulty performing moderately heavy physical labor. Nevertheless, the weights described in the record of this case do not appear to be anything which would be expected to cause her a problem. It is particularly noted that Mary testified to having problems subsequently when performing activities such as carrying plates of food when she attempted a part-time job. It is found that Mary did sustain some type of a strain injury, possibly to her back or possibly to her left shoulder, on or about April 24, 1990. Her first day of absence from work was April 30, 1990. It is further found that the injury had resolved by May 14, 1990, when she returned to work. She is therefore entitled to recover temporary total disability compensation running from May 3, 1990 through May 13, 1990, a span of 1 4/7 weeks, pursuant to section 85.33. In the hearing report the parties stipulated that her gross earnings were $155 per week and that she was single and entitled to four exemptions. The stipulated rate of $113.91 is found to be correct. The events of April 24, 1990, which Mary described have been found to be correct. Dr. Largen recommended that she be off work in order to allow her strain injury to resolve. From the record in this case, there is a considerable question with regard to whether or not the doctors treating the physical injury were aware of Mary's psychological history. It is interesting to note that Dr. Bush has noted the possibility of some type of psychological overlay (ex. 7). The evidence from Dr. Patterson seems to provide that best explanation of what has transpired in this case. Simply stated, Mary sustained a minor strain type of injury and then, due to her psychological condition, focused on what she perceived to be a significant injury, though it was Page 5 not, and she now believes herself to be physically disabled. Mary is disabled. The disability is from her psychological condition, not from any physical injury that occurred on or about April 24, 1990. The psychological disability does not have any substantial basis in the April 24, 1990 injury. That injury merely provided the setting in which the preexisting psychological condition manifested itself. The opinions of those physicians who have related substantial permanent physical disability to the April 24, 1990 injury, appear to have done so without understanding Mary's underlying psychological history. Their opinions are therefore given little weight. The opinions of Dr. Windsor appear to be based upon the assumption that Mary sustained a substantial physical injury. Accordingly, his opinion which relates her psychological disability to the work place injury is rejected as is the opinion of Cathy Peters-Midland regarding causation. As indicated by Dr. Cimino, there is a serious question with regard to whether or not the symptoms Mary experiences are due to any injury to her back. The greater likelihood is that they have their origin in her psychological makeup. As indicated by Dr. Patterson, what has transpired is most likely the manifestation of Mary's preexisting psychological condition. There is no good evidence showing that she sustained a psychological injury, even in the context of an aggravation of a preexisting condition, as a result of the April 24, 1990 incident. It is further found that Mary's psychological status is a factor in her continued physical complaints. It is particularly noted that the complaints have expanded since the time of the original injury and have not improved with any of the treatment which has been provided to her. There is a substantial possibility that Mary was anxious about her relationship with Brian Vannatta and also with anticipation of her daughter's arrival for the summer of 1990. Mary has demonstrated a practice of focusing on physical complaints and developing anxiety over her physical complaints. At hearing she expressed fear of her degenerative disc disease eventually causing death, yet the medical evidence in the case shows her degenerative condition to be mild. The undersigned is unaware of degenerative disc disease every causing death in anyone, though such an occurrence could very well be possible through some complication. It is found that Mary's work probably produced a minor, temporary physical injury as previously been determined in this decision. It is further found that the work and work injury did not play a substantial role in causing or aggravating any psychological condition or disability. The physical injury was minor. It did not produce any permanent disability. In view of those facts it is extremely unlikely that it could have produced any psychological injury. The greater likelihood is that Mary was developing anxiety which manifested itself over the weekend of April 29, 1990. It is most probable that the work place and work injury merely provided that setting in which the psychological condition manifested itself. It should be noted that the undersigned Page 6 has serious doubt concerning the actual occurrence of any physical injury, but the undersigned finds Mary to be honest with regard to her testimony describing the incidents of April 24, 1990. The events that transpired thereafter, however, were greatly influenced by her underlying psychological condition. CONCLUSIONS OF LAW The claimant has the burden of proving by a preponderance of the evidence that the alleged injury actually occurred and that it arose out of and in the course of employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of" refer to the cause or source of the injury. The words "in the course of" refer to the time, place and circumstances of the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 1971). The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). A personal injury contemplated by the workers' compensation law means an injury, the impairment of health or a disease resulting from an injury which comes about, not through the natural building up and tearing down of the human body, but because of trauma. The injury must be something which acts extraneously to the natural processes of nature and thereby impairs the health, interrupts or otherwise destroys or damages a part or all of the body. Although many injuries have a traumatic ll recognized that a traumatically induced psychological injury is compensable. Leffler v. Wilson & Co., 320 N.W.2d 634 (Iowa App. 1982); Dever v. Armstrong Rubber Co., 170 N.W.2d 455 (Iowa 1969). The same is true when the trauma aggravates a preexisting mental condition. Coughlin v. Quinn Wire and Iron Works, 164 N.W.2d 848 (Iowa 1969). When, however, the work place merely provides the setting in which the psychological condition manifests itself, the result is not compensable. Newman v. John Deere Ottumwa Works of Deere & Co., 372 N.W.2d 199 (1985). An imagined injury cannot, as a matter of law, form the basis of a compensable psychological injury. In this case, it is found that the physical injury did not produce a psychological injury, to the contrary, the claimant's preexisting mental status prevented her from recovering from what appears to have been a very minor temporary injury. It should be noted that an employer's policy of setting some specific time within which injuries are to be reported, has no effect upon the statutory right of the employee to receive compensation for an injury. Since employee's cannot contract to surrender their statutory rights, it is abundantly clear that an employer cannot, through a unilaterally imposed policy, deny an employee the rights provided by chapter 85 of the Code (section 85.18). The treatment which claimant received with Dr. Largen is found to have been reasonable. Defendants are therefore responsible for payment of his charges in the amount of $679. The other treatments are not shown to have been caused by any work place injury. Defendants are therefore not required to pay any of the other medical expenses which claimant seeks to recover. Claimant's entitlement to temporary total disability Page 8 compensation under section 85.32 and 85.33 is determined by April 30 being the first day of disability and May 13 being the last with a return to work on May 14. This is a span of two weeks. Since the compensation begins on the fourth day of disability, benefits are payable commencing May 3 and running through May 13, a span of 1 3/7 weeks. ORDER IT IS THEREFORE ORDERED that defendants pay Mary Wakefield one and three-sevenths (1 3/7) weeks of compensation for temporary total disability at the stipulated rate of one hundred thirteen and 91/100 dollars ($113.91) per week payable commencing May 3, 1990. The entire amount thereof is past due and owing and shall be paid in a lump sum together with interest pursuant to Iowa Code section 85.30. It is further ordered that defendants pay claimant's medical expenses from Medical Clinic, P.C., in the amount of six hundred seventy-nine dollars ($679). It is further ordered that the costs of this action are assessed against defendants pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of March, 1993. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Sheldon Gallner Attorney at Law 803 3rd Ave. PO Box 1588 Council Bluffs, Iowa 51502 Ms. Carol Knoepfler Mr. Kirk S. Blecha Attorneys at Law 1500 Woodmen Tower Omaha, Nebraska 68102 Page 1 51108.2; 51402.20; 51402.30; 52206; 51801 Filed March 30, 1993 Michael G. Trier BEFORE THE IOWA INDUSTRIAL COMMISSSIONER ____________________________________________________________ MARY M WAKEFIELD, Claimant, vs. File No. 953015 VOGEL POPCORN COMPANY d/b/a GOLDEN VALLEY MICROWAVE, A R B I T R A T I O N Employer, D E C I S I O N and LUMBERMAN'S UNDERWRITING ALLIANCE, Insurance Carrier, Defendants. ___________________________________________________________ 51108.2 51402.20 21402.30 52206 51801 Claimant sustained a minor strain type of injury. She also had a preexisting mental condition which manifested itself at about the time she was experiencing the work injury. There is a very substantial question about whether there had been any physical injury but that question was resolved in favor of the claimant. It was found that the mental condition prevented the claimant from recovering from her minor injury. She was awarded two weeks temporary total disability. Her claim for permanent disability was denied. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ EARL LOVE, : : Claimant, : : File Nos. 953048 vs. : 1003230 : 1054174 VIKING PUMP, : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ STATEMENT OF THE CASE This is a consolidated contested case proceeding upon petitions in arbitration filed by claimant Earl Love against his former employer, Viking Pump, and its insurance carrier, Liberty Mutual Insurance Company. This litigation has featured and continues to feature wildly eccentric procedure. In file number 953048, Mr. Love alleged a work injury to his right leg on June 4, 1990. In file number 1003230, he alleged an injury to the "body as a whole" on January 10, 1991. This petition was apparently based on a cumulative trauma theory of injury. These two files were consolidated and came on for hearing in Waterloo, Iowa on November 29, 1993. Paragraph one of the hearing assignment order required defendants to file a first report of injury prior to hearing or face a specific sanction: closing of the record to further evidence or activity. Defendants failed to file a first report in case number 1003230. As a result, that sanction was imposed. Claimant thereupon offered an amended petition which sought to allege an alternative injury date of October 18, 1988. This, of course, was totally improper. Under rule 343 IAC 4.6, a separate date of injury must be alleged and a separate original notice and petition filed on account of each claimed injury. It is proper to amend a petition to allege a different injury date, but not to allege multiple dates in the alternative. The amendment had actually been filed in the commissioner's office on November 18 (11 days before trial), Page 2 but the document had not been matched with the file. Notwithstanding the last minute nature of the amendment, defendants insisted they were not prejudiced and eagerly waived further notice. Not coincidentally, defendants produced a first report of injury relative the 1988 injury claimed, which involved a single traumatic incident. In the belief (later proved mistaken) that this first report had actually been filed, the hearing deputy rescinded the imposition of sanctions. It has since been discovered that the first report was never filed in the commissioner's office, but acceptance of the first report at hearing will be deemed compliance. This decision orders the Division of Industrial Services to establish a litigated file under number 1054174. The record consists of joint exhibits 1-16 and 18-21, along with the testimony of claimant, David Love, Gale Sells and Daniel Frommelt. The unnecessarily voluminous exhibits included multiple copies of numerous documents. Attorneys Robert Fulton and Kevin Rogers are referred to Iowa Code section 17A.14(1) and paragraph nine of the standard hearing assignment order for guidance in future litigation before this agency. ISSUES In file number 953048, the parties stipulated to the following: 1. Claimant sustained injury arising out of and in the course of employment on June 4, 1990; 2. The injury caused temporary disability, the extent of which is no longer in dispute; 3. The injury caused permanent disability equivalent to a seven percent loss of the right leg; 4. The proper rate of weekly compensation is $298.99; 5. Medical benefits are no longer in dispute; and, 6. Defendants are entitled to credit against an award of permanent disability totalling $4,604.45. The parties presented no issues for resolution under this file number, as claimant seeks no further benefits. However, as shall be seen, the parties stipulation as to the extent of permanent disability is rejected in this decision. In file number 1003230, the parties stipulated to the following: 1. An employment relationship existed at the time of the alleged injury; Page 3 2. Permanent disability, if any, should be compensated industrially; 3. The commencement date for permanent disability benefits is August 19, 1991; 4. Claimant had average gross weekly earnings of $482.00, was single and entitled to three exemptions on the date of injury; 5. Entitlement to medical benefits is no longer in dispute; and, 6. Defendants are entitled to credit for voluntary payment of benefits totalling $32,408.02. Issues presented for resolution include: 1. Whether claimant sustained injury arising out of and in the course of employment; 2. Whether the injury caused temporary or permanent disability; 3. The extent of permanent disability, if any; and, 4. Whether the claim is barred by failure to give timely notice under Iowa Code section 85.23. Based on the above foundational facts, the parties calculated the weekly compensation rate at $298.99. The rate tables published by the commissioner and in effect on the date of injury show that an individual so situated is entitled to a benefit rate of $299.00. That rate is hereby established as the correct rate. Because of the unique manner in which the 1988 (1054174) claim was presented, the parties did not prepare a hearing report outlining issues. This decision will consider the following issues: 1. Whether an employment relationship existed between claimant and Viking Pump on October 19, 1988; 2. Whether claimant sustained injury arising out of and in the course of employment; 3. Whether the injury caused permanent disability; and, 4. The nature and extent of permanent disability, if any. Page 4 It will be assumed that claimant was also single and entitled to three exemptions on October 19, 1988. The first report of injury accepted for filing reflects gross weekly wages of $447.60 (40 hours at a wage of $11.19). The rate tables in effect at that time show that the proper compensation rate is $279.28, which is hereby adopted as the correct rate. FINDINGS OF FACT The undersigned deputy industrial commissioner finds: Earl Love, 39 years of age at hearing, is a 1973 high school graduate. Even though Mr. Love was awarded a high school diploma, testing indicates that he is functionally illiterate. Mr. Love's intelligence falls into the borderline classification, between retarded and low normal. Except for a six-month welding course in approximately 1975 (a skill claimant has not used vocationally), he has no further academic or technical training. Claimant's work history consists of employment in several factories and a brief stint as a youth worker in a now-discontinued community program. He was employed by Viking Pump, a manufacturing facility, from August 21, 1978 through June 8, 1992, when he was discharged due to the employer's inability to offer work compatible with medical restrictions. At Viking, claimant operated a number of machines, including drills, grinders and milling machines. From 1984 through 1991, claimant operated a rotor, idler mill, a job that required substantial bending, twisting and reaching, along with manipulating parts weighing as much as 150 pounds. Claimant is a large man, over six feet tall and weighing in the vicinity of 300 pounds. As early as 1977 x-rays disclosed spondylolisthesis, or a 1/2 centimeter forward displacement of L5 on S1. Claimant also has a bad right knee, which has twice been the subject of arthroscopy surgery. The more recent procedure took place after the 1990 injury in file number 953048. The knee has suffered arthritis, cartilage damage and aseptic necrosis. The knee very likely will require a prosthetic replacement at some future time. As will be discussed below, medical restrictions imposed by claimant's treating orthopedic specialist relate both to claimant's back and right knee. Claimant was injured on October 19, 1988, when he slipped over a pallet and a piece of equipment fell on his leg. Claimant testified to an injury to the right leg, but the initial treating physician, Jay W. Keiser, M.D., reported injury to the left leg (although the "aching" went up into the left hip and also reportedly bothered the right leg). Dr. Keiser reported subjective tenderness over the sciatic nerve, particularly on the right side. Initial assessment was of musculoskeletal back pain. According to Page 5 the first report of injury, claimant did not lose time from work. Dr. Keiser then referred claimant to Dr. Delbridge, a board certified orthopedic surgeon who testified by deposition on January 27, 1993. Dr. Delbridge was the primary treating physician for this injury, and also claimant's subsequent right knee injury (953048). Dr. Delbridge first saw claimant for this problem on November 14, 1988, and charted complaints of pain in the back down into the left thigh and calf. Clinical diagnosis following x-ray studies was of low back pain with spondylosis at L4 and 5 and probable mild spondylolisthesis at L5-S1. Dr. Delbridge also ordered a magnetic resonance imaging study which disclosed a probable left-sided herniated disc at L5-S1. This study was consistent with claimant's report of a tingling sensation at the bottom of the left foot. Dr. Delbridge correctly notes that claimant is unlikely to have the medical sophistication to realize the consistency of this subjective complaint. Claimant was returned to work with general light duty restrictions, including a 20 pound lifting restriction and limitation to a 40-hour week. Mr. Love continued working with similar restrictions until injuring his right knee in 1990. This injury resulted in a second arthroscopic procedure at the hands of Dr. Delbridge and permanent impairment. Dr. Delbridge assigned a 20 percent impairment to the leg, seven percent of which was attributable to the 1990 injury, which aggravated a preexisting condition. In file number 1003230, claimant alleges a back injury on January 10, 1991. As it happens, he was seen by Dr. Delbridge on that date. The entire chart note follows: Earl was seen. He is getting by. He is working. He has a little catching in his knee, a little catching in his back, but is getting by. We will see him in about 2 months. The evidence does not show that claimant sustained a work injury on January 10, 1991. Dr. Delbridge eventually concluded that as a result of the combined knee and back injuries, claimant would be unable to return to Viking Pump in the foreseeable future. He rated impairment as the result of the back injury at 12 percent of the body as a whole. Absent significant preexisting problems, he attributed that entire impairment to the work injury of October 18, 1988. As to restrictions, Dr. Delbridge testified: A. Mr. Love, if he were to do some type of work at this point, would have to have fairly stringent restrictions. He would have to avoid repeated hard gripping because of his carpal tunnel. Now, that would not preclude picking up light objects or reaching for light objects or even bending his wrist to some extent. But Page 6 repeated hard gripping would likely get him into problems. So I would recommend that he not do repeated hard gripping. He has a great deal of difficulty standing up. There are days when he can't stand very well because of his back. And he also has trouble getting around because of his knee. I would recommend that he stand no more than half an hour at a time, and no more than two hours out of eight. And as far as sitting is concerned, he can sit for one hour, but he is limited by his back. And then he would have to get up and around a little bit. he can sit six hours out of eight. He can do only minimal walking. He can occasionally lift ten pounds, but his maximum lift is probably about 20. But he cannot repetitively lift and carry. And he can't carry because he can't walk very well because of his knee. And he can't lift a lot because of his back. He cannot squat at all because his knee just does not allow it. It would immediately swell, in all probability, if he did that. He can't lift anything from below knee level. If he did, he would probably get into trouble with his back. And he certainly is not a candidate for repetitive stooping, bending or twisting, as far as his back is concerned. (Delbridge Deposition, Pages 31 & 32) The June 1990 knee injury involved a torn lateral meniscus which Dr. Delbridge felt was probably related to the work injury, and an aggravation of preexisting conditions of chondromalacia, arthritis and aseptic necrosis. However, sequela of the knee injury are much more significant. The following uncontroverted testimony is of crucial significance: Q. Did his condition worsen then from March, '89 until early '91, in regard to his back? A. His back had some -- it came and went. But his back never really worsened a lot, except as related to his knee. And his knee worsened. Q. Right. A. And it caused him to limp. And he limped a good deal. And when he started limping and he had an abnormal gait, then that certainly aggravated his back. Q. Was it then more the knee problem than the back problem that eventually forced him to leave work? Page 7 A. Well, it was both, but the knee problem did play a significant role, because he -- because he limped. Q. We.., if the knee is causing the back problems, it seems to me that the knee would be the culprit here, if you will? A. Well, no. MR. FULTON: Just a minute, I am going to object to this as being argumentative. And the question has been asked and answered. A. It didn't really cause the back problem, because the back problem is his congenital problems, plus his herniated disc. But it did tend to aggravate his situation, because here's a man who's a great big guy, who is overweight, who has a bad knee, and some problems with his back, including a herniated disc. And now he is walking with an abnormal gait because his knee hurts. And, yes, it did bother him. (Delbridge Deposition, Pages 59-60) Because claimant has no neurological deficit, Dr. Delbridge does not recommend surgery. The knee will only get worse, to result probably in a future prosthetic replacement. Page 8 Two vocational experts involved in this case agree that without further training, there is little or any work that claimant can now perform in the competitive labor market. Claimant, both personally and through counsel, has requested that training be provided. At one point, training at the Hawkeye Institute of Technology was arranged, but funding was withdrawn by defendants, allegedly because the agency (by coincidence, this deputy) refused to order vocational rehabilitation benefits under Iowa Code section 85.70 where liability on the underlying claim remained disputed. CONCLUSIONS OF LAW The party who would suffer loss if an issue were not established has the burden of proving that issue by a preponderance of the evidence. Iowa R. App. P. 14(f). The claimant has the burden of proving by a preponderance of the evidence that the alleged injury actually occurred and that it arose out of and in the course of employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of" refer to the cause or source of the injury. The words "in the course of" refer to the time, place and circumstances of the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 1971). The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). I. January 10, 1991 (1003230) No injury occurred on January 10, 1991. Claimant fails to meet his burden of proof as to that alleged injury. II. October 19, 1988 (1054174) Page 9 Claimant's testimony and the contemporaneous medical records established that he sustained injury in a fall at work on October 19, 1988. Since claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience, motivation, loss of earnings, severity and situs of the injury, work restrictions, inability to engage in employment for which the employee is fitted and the employer's offer of work or failure to so offer. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). Compensation for permanent partial disability shall begin at the termination of the healing period. Compensation shall be paid in relation to 500 weeks as the disability bears to the body as a whole. Section 85.34. Following the 1988 back injury, claimant returned to light duty work with a 20 pound lifting restriction and a restriction against working overtime. The lifting restriction alone would have foreclosed claimant from many of the jobs he had previously performed, but did not result in permanent total disability because claimant continued to work in gainful and productive employment. Considering the factors set forth above, it is concluded that claimant sustained an industrial disability attributable to the 1988 back injury equivalent to 20 percent of the body as a whole, or 100 weeks. III. June 4, 1990 (953048) Although the parties stipulated only to a leg injury, Dr. Delbridge's testimony establishes that the injury to claimant's knee aggravated Mr. Love's preexisting back condition, resulting in much more onerous medical restrictions. The aggravation of claimant's back injury, as a sequela of the knee injury, extends that injury into the body as a whole. Therefore, the entire injury is to be compensated industrially. While a claimant is not entitled to compensation for the results of a preexisting injury or disease, its mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956). If the claimant had a preexisting Page 10 condition or disability that is materially aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961). Total disability does not mean a state of absolute helplessness. Permanent total disability occurs where the injury wholly disables the employee from performing work that the employee's experience, training, education, intelligence and physical capacities would otherwise permit the employee to perform. See McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Diederich v. Tri-City Ry. Co., 219 Iowa 587, 258 N.W. 899 (1935). A finding that claimant could perform some work despite claimant's physical and educational limitations does not foreclose a finding of permanent total disability, however. See Chamberlin v. Ralston Purina, File No. 661698 (App. October 29, 1987); Eastman v. Westway Trading Corp., II Iowa Industrial Commissioner Report 134 (App. 1982). In Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985), the Iowa court formally adopted the "odd-lot doctrine." Under that doctrine a worker becomes an odd-lot employee when an injury makes the worker incapable of obtaining employment in any well-known branch of the labor market. An odd-lot worker is thus totally disabled if the only services the worker can perform are "so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist." Guyton, 373 N.W.2d at 105. The burden of persuasion on the issue of industrial disability always remains with the worker. When a worker makes a prima facie case of total disability by producing substantial evidence that the worker is not employable in the competitive labor market, the burden to produce evidence of suitable employment shifts to the employer, however. If the employer fails to produce such evidence and if the trier of fact finds the worker does fall in the odd-lot category, the worker is entitled to a finding of total disability. Guyton, 373 N.W.2d at 106. Even under the odd-lot doctrine, the trier of fact is free to determine the weight and credibility of evidence in determining whether the worker's burden of persuasion has been carried, and only in an exceptional case would evidence be sufficiently strong as to compel a finding of total disability as a matter of law. Guyton, 373 N.W.2d at 106. Except for a brief period doing youth work, a position no longer available, claimant has worked his entire life in factory jobs. His severe restrictions appear to foreclose him from such work in the future. Illustrative is the inability of Viking Pump to offer claimant further work, even with the clear financial incentive this litigation provides. He is functionally illiterate. His intelligence does not suggest great potential for extensive retraining. Indeed, defendants have offered no retraining whatsoever. The mere fact that the agency cannot order 85.70 benefits Page 11 before liability is established does not suggest that defendants cannot provide rehabilitation on a voluntary basis, especially where industrial disability may potentially be reduced. As the result of claimant's injury of June 4, 1990, he is at this time an odd lot employee under a total industrial disability. Permanent total disability benefits shall be awarded effective August 19, 1991, as the parties have stipulated. Permanent total disability is not subject to apportionment. Permanent total disability does not necessarily encompass the concept of absolute perpetuity. If claimant at some future time redevelops earning capacity, review-reopening is available to defendants. ORDER THEREFORE, IT IS ORDERED: In case number 1003230: Claimant takes nothing. In case number 1054174: Defendants shall pay claimant one hundred (100) weeks of permanent partial disability benefits at the rate of two hundred seventy-nine and 28/100 dollars ($279.28) per week commencing October 19, 1988. All accrued benefits shall be paid in a lump sum together with statutory interest. Costs are assessed to defendants. In case number 953048: Defendants shall pay claimant permanent total disability benefits at the rate of two hundred ninety-eight and 99/100 dollars ($298.99) per week commencing August 19, 1991 and continuing during such time as claimant remains under a total industrial disability. Defendants shall have credit totalling thirty-two thousand four hundred eight and 02/100 dollars ($32,408.02). All accrued benefits shall be paid in a lump sum together with statutory interest. Costs are assessed to defendants. Signed and filed this ____ day of April, 1994. Page 12 ________________________________ DAVID R. RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Robert D Fulton Attorney at Law 6th Flr First National Bldg PO Box 2634 Waterloo Iowa 50704 Mr Kevin R Rogers Attorney at Law 528 W 4th Street PO Box 1200 Waterloo Iowa 50704 2901; 1803.1; 1804; 1806; 2206 Filed April 6, 1994 DAVID R. RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ EARL LOVE, : : Claimant, : : File Nos. 953048 vs. : 1003230 : 1054174 VIKING PUMP, : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE : COMANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 2901; 1803.1; 1804; 1806; 2206 Consolidated contested case included a claimed leg injury in 1990 and a back injury in 1991. Defendants failed to file a first report for the 1991 claim, so evidence and activity was cut off pursuant to the hearing assignment order. Claimant then sought to amend his petition to allege a 1988 back injury in the alternative. Defendants, who produced a first report for the 1988 injury eagerly waived notice and insisted that they were not prejudiced by the late amendment. Even though it is improper under current rules to allege multiple injury dates in the alternative, the hearing deputy rescinded the sanction against defendants and allowed litigation to proceed on all three claims. Later, it was discovered that the 1988 first report had never been filed, but acceptance of the first report at hearing was deemed compliance with paragraph one of the hearing assignment order. The agency was ordered to set up a third litigated file for the 1988 back injury. It was eventually determined that the 1988 injury caused 20 percent industrial disability. Although claimant sought no further relief at hearing in the 1990 leg injury claim, the parties stipulation was rejected. It was found that altered gait as a result of the leg injury aggravated claimant's Page 2 preexisting back condition as a sequela, thus extending the injury into the body as a whole. Claimant was determined to be totally disabled under the odd lot theory in the 1990 claim. No 1991 injury was found. The unnecessarily voluminous record contained numerous duplicate copies of documents. Counsel were referred to Iowa Code 17A.14(1) and paragraph nine of the standard hearing assignment order for guidance in further litigation.