Page 1 before the iowa industrial commissioner ____________________________________________________________ : DONNA P. SPURBECK, : : Claimant, : : vs. : : File No. 954462 CITY BUILDERS & SUPPLY, INC., : : A R B I T R A T I O N Employer, : Defendant. : D E C I S I O N : ___________________________________________________________ INTRODUCTION This is a proceeding in arbitration brought by Donna P. Spurbeck, claimant, against City Builders & Supply, Inc., employer, for benefits as a result of an alleged injury which occurred on May 18, 1990. A hearing was held in Dubuque, Iowa, on August 13, 1992 and the case was fully submitted at the close of the hearing. Claimant was represented by Stephen D. Lombardi. Defendant was represented by Robert L. Rausch. The record consists of the testimony of Donna P. Spurbeck, claimant, Kelly Hanson Russell, secretary, Keith Harris, manager of the telemarketing room, Michael Roberson, defendant's witness, Brian Hunt, defendant's witness, James Way, former neighbor of claimant, Dennis Wildeboer, defendant's secretary-treasurer and general manager, and Bill Miller, former co-employee of claimant, claimant's exhibits 1, 2 and 3, and defendant's exhibits A through H. The deputy ordered defendant to maintain custody of defendant's exhibit I, a telephone headset, until the expiration of all the appellate periods at which time this exhibit was to be returned to claimant. Defendant requested and the deputy permitted defendant to file an offer of proof and these exhibits are marked J, K, L, M and N. They were not examined or considered in the determination of the issues in this case. They are found in the industrial commissioner's file in the exhibits as offers of proof. The deputy ordered a transcript of the hearing. issues The parties submitted the following issues for determination at the time of the hearing. Whether claimant sustained an injury on May 18, 1990, which arose out of and in the course of employment with employer. Whether the injury was the cause of either temporary or permanent disability. Whether claimant is entitled to temporary or permanent disability benefits, and if so, the extent of benefits to Page 2 which she is entitled. Whether claimant is entitled to medical benefits pursuant to Iowa Code section 85.27. Whether claimant is entitled to penalty benefits pursuant to Iowa Code section 86.13(4). findings of fact Claimant, age 31, was hired as a telemarketer for employer on April 27, 1990 (Transcript, Pages 14 & 20). She was employed by employer for a period of 33 days through May 29, 1990 (Tran., pp. 58 & 59). Her past employments include waitressing, busboy, hostess, dishwasher, cook, janitor and shipping and receiving clerk (Tran., p. 16). In April of 1990, approximately three weeks before beginning this employment with employer, claimant fell on some ice in the break room with her previous employer and injured her ankle, neck and back (Tran., pp. 18, 164 & 165). Keith Harris, manager of the telemarketing room, testified that approximately two or three days after claimant reported for work she complained that she had had a bad back for a long time. She wanted to use a headset and she wanted a different chair to accommodate her back pain. Claimant was permitted to bring her own headset from home (Exhibit I) and a new chair was purchased for her (Tran., pp. 133-142, 153 & 154). Harris also testified that claimant frequently worked in a standing position and would put one leg in the chair while talking on the telephone (Tran., pp. 137 & 142). He related that claimant complained about her back approximately a half a dozen times (Tran., p. 146). Claimant was also a skilled landscaper and it was agreed between claimant and employer that she would landscape the premises at the place of her employment (Tans., p. 20-22 & 60). Claimant was paid her regular telemarketer wages for this landscaping work (Tran., p. 26). Claimant testified that she kept a daily log or journal of her daily landscaping activities. These activities covered the period from Tuesday, May 15, 1990 through Friday, May 25, 1990 (Tran., pp. 22, 23, 26-28, 65-67 & 71). Claimant was instructed to complete the job no later than Friday, May 25, 1990, which was the last working day prior to the Memorial Day weekend. The Memorial Day weekend was Saturday, Sunday and Monday, May 26, May 27, and May 28, 1990. Claimant testified about what she did each day from her journal, log or notes as they were variously called. Referring to her notes, claimant testified that on Tuesday, May 15, 1990, she purchased materials (Tran., p. 22). On Wednesday, May 16, 1990, she purchased additional materials, dug up sod, worked the dirt breaking up the Page 3 clumps, laid the plastic and built up the border for the front of the building (Tran., p. 25). On Thursday, May 17, 1990, she purchased dirt and shoveled it out of the pickup truck into the flower bed and flower boxes that she had made (Tran., pp. 26-30). Claimant testified that she also leveled a hill of dirt that was approximately six to eight inches high, one foot wide and about 30 foot long on this same day (Tran., pp. 31 & 32). Claimant testified that on the evening of May 17, 1990, she left a full load of uncovered dirt in the parking lot. She said that it rained hard that night and the dirt in the back of the pickup truck became mud (Trans., p. 33). On Friday, May 18, 1990, claimant related that post holes were dug and she put in a split-rail fence because the ground was wet and easy to dig the post holes. Employer assigned a man to assist her on Friday, May 18, 1990. Claimant stated that he dug the holes and she put the posts into the ground. She assembled the split-rails into the posts and held them while the man put the dirt back in the post holes and packed it around the posts (Tans., pp. 33 & 34). Claimant further testified that she brought a wheelbarrow from home to use it to move the dirt from the post holes to the flower beds on May 18, 1990 (Tran., pp. 75 & 76). Claimant also testified that she used the wheelbarrow two or three times on May 16, May 17, and May 18, to level hills of dirt (Tran., pp. 77 & 86). She testified that she did not use the wheelbarrow on May 25, except to move it from the front to the side of the building (Tran., p. 77). On the afternoon of Friday, May 18, 1990, claimant testified that she shoveled the mud out of the pickup truck into the flower beds that she had prepared. She related that at break time her back was hurting. Claimant testified that she reported this to Bill Miller, another employee, Kelly Hanson Russell, the secretary, Keith Harris, the manager of the telemarketing room and Jerry Wildeboer, one of the owners and managers of the company (Tran., p. 35). Claimant testified that Jerry Wildeborer told her to lay off the digging for awhile and to plant flowers for the time being (Tran., p. 36). Claimant testified that she shoveled all of the mud out of the pickup truck. No one helped her. She said that she worked about 11 or 12 hours on Friday, May 18, 1990 (Tran., p. 37). Claimant related that on Monday, May 21, 1990, she was having a difficult time sitting and so she planted flowers that day and went home early (Trans., p. 38). On Tuesday, May 22, 1990, she said her back was still hurting and so she only purchased more flowers and planted some grass seed and worked a short day on that day (Tran., p. 38). On Wednesday, May 23, 1990, claimant said that (1) she Page 4 finished planting the flowers, (2) she picked up four bags of lava rock off of the plastic in the front of the building and put them in the wheelbarrow because Jerry did not want to use lava rock because it was too expensive, and (3) she picked up her tools and moved the wheelbarrow off to the side. Claimant also testified that on Wednesday, May 23, 1990, Jerry Wildeboer asked her to landscape the north side of the building even though he knew that her back was bothering her. Claimant stated that she also shopped for additional materials for the north side of the building on this day (Tran., p. 39). Claimant said that on Thursday, May 24, 1990, she purchased timber and dirt for the north side of the building. She related that she told Jerry Wildeboer that her back was really hurting and he told her to go home and take a day of rest (Tran., p. 39). Claimant testified that on Friday, May 25, 1990, (the last day of the landscaping project) that she was present but was in too much pain to work. This is her account of what happened that day. "Q. All right. Did you do any landscaping on the 25th of May? A. On the 25th when I went in I told Jerry that my back was hurting and that there was just no way I was going to be able to shovel this dirt, that my back was in too much pain and I was not going to be able to do it. He had three gentlemen sitting in the office there and he kind of jokingly told them that "Go on out there and help her." And a couple of guys kind of hesitated a little bit and he says, "Oh, come on, it isn't going to hurt you, go on out there and help her. She's been shoveling the dirt out there, she hurt her back. She's going to need to finish. I want you guys to go out and help her. See where she wants the shrubs planted, plant them where she tells you to plant them." We go out and I showed the guys how I wanted the timber nailed together and put for the flowers, the bedding, the box. They laid down the plastic and nailed the boards up and planted all the shrubbery and put in the lights and all I basically did was just stand there and watch them and tell them what I wanted to do. And they also -- I also drove to Benton's then and got some gravel like I had had in the front and they did shovel that into where I had the shrubs planted also. Q. So you didn't really do much physical labor that day? Page 5 A. No, I couldn't. I was in extreme pain (Tran., pp. 42 & 43). Claimant pinpointed the date of the injury as Friday, May 18, 1990, in these words: Q. I should ask you this: What do you think you were doing when you injured your back? A. When the pain first started I had been shoveling the mud. When my back first started hurting me it was the day before when I was shoveling the dirt, my back seemed more like a muscle hurt, like I strained, my muscle hurt. It was on the 18th when I was shoveling the mud that's when I got this first pain down in my lower back. Q. Can you think of any other incident that you were doing other than the work at City Builders that could have caused you injury that resulted in this back and disc problem? A. No, Sir, not unless it was moving the wheelbarrel the day that I had been cleaning up. The wheelbarrel was heavy but my back was already sore and I had already had pain before that so I couldn't blame it on the wheelbarrel. Q. Moving the wheelbarrel where? A. From the front of the building over to the side of the building. Q. That was at City Builders? A. Yes, sir (Tran., pp. 57 & 58). Claimant admitted that she did not seek medical attention for this injury on Friday, May 18, Saturday, May 19, or Sunday, May 20, 1990 (Tran., pp. 72 & 73). Claimant also granted that she did return to work on Monday, May 21, 1990 and worked the rest of the week through Friday, May 25, 1990. Claimant further acknowledged she did not seek medical treatment on Saturday, May 26, or Sunday, May 27, 1990 (Tran., pp. 80 & 81). Claimant testified that she returned to work on Tuesday, May 29, 1990, after the Labor Day weekend, however, she stated that she had to work laying on the floor in the telemarketing room because she was not able to work in a sitting position (Tran., pp. 45, 81 & 82). Claimant testified that she first sought medical treatment on Wednesday, May 30, 1990, when her back gave out on her at home in the morning while she was preparing to go to work. She was putting on her shoes, her back gave out and she fell to the floor (Tran., pp. 49, 72-82). Claimant testified that she called Kelly Hanson Page 6 Russell, the secretary, and asked about insurance numbers to use at the hospital. Claimant testified, "I asked her if I needed any insurance numbers or how did I -- what was I to tell the hospital what kind of insurance was it that they had." (Tran., p. 82). Russell testified that she began working as a secretary for employer in January of 1990 and she was still employed there in that position at the time of the hearing (Tran., p. 100). Russell testified that claimant called on the morning of May 30, 1990 to report that she had bent over to get her shoes, had fallen to the floor and her husband was on the way home to pick her up. Russell further testified that claimant called back a short time later and made the following statement to Russell: "A. She said that her husband had come home and could not get her off the floor and she had called the ambulance and they were on their way to get them. And she said, "When I get to the hospital, can I tell them I hurt my back at work?" (Tran., pp. 105, 106, 114 & 115). Russell testified that she relayed this question to Dennis Wildeboer who responded, "No, absolutely not." (Tran., p. 106). Claimant was asked to relate what happened when she called the employer on the morning of Wednesday May 30, 1992 and claimant testified as follows: "Q. Tell the Deputy what you asked Kelly Russell Hanson (sic). A. I asked her if I needed any insurance numbers or what I was supposed to do, did I just tell them it was a workman's comp. case when I got to the hospital or did they need some kind of a number for their insurance. And she said she would have to speak with Denny and she put me on hold. She came back and she says, "No, Denny says we have no workmen's comp. insurance and therefore he says just tell them that you did hurt your back at home and then your husband's insurance will cover it." So I hung the phone up and I called back just not even a minute later and I spoke with Denny. I spoke with Kelly, Kelly put Denny on the telephone and I spoke with Denny personally on the 30th, and I asked him, "Is it true that we do not have any workmen's comp. insurance?" And he says, " I never knew I had to have it." I said, "Well, how do I go about telling them when I get to the hospital, the ambulance is on the way." And he says "Just tell them you did it at home." I said, "I can't do that." He said, "That's how the insurance can pay for it. If you did it a home your husband's insurance will pay for it and then we can discuss what we'll do with Page 7 the rest after that." He specifically told me on the 30th that you knew you did not have workmen's comp. insurance." (Tran., pp. 238 & 239) Russell further testified that she did not recall that claimant requested the account numbers for the workers' compensation carrier (Tran., p. 125). Claimant further testified that when she talked to Jerry Wildeboer on May 30, 1990 that he told her to say that she hurt her back at home and then her husband's medical insurance carrier would pay the medical bills and whatever her husband's insurance would not cover that employer would pick up (Tran., p. 54). Claimant further testified that after she got out of the hospital she went to see Jerry and Dennis Wildeboer to see about getting her medical bills paid. Claimant testified that they told her to collect under her husband's insurance at work. Claimant said that she then told them that her husband's insurance representative had said that if the husband's carrier paid the bills, then it would be necessary for them to sue claimant's employer to collect the money from them. Claimant testified that at this point Jerry Wildeboer became very angry, very profane and shouted at her (Tran., pp. 239-243). Harris testified that he checked the Waterloo airport weather bureau and radio station KWWL and that they told him there was no rain on May 16 or May 17, 1990. The only rain was on Friday, May 18, 1990 between 9 p.m. and midnight and early Saturday morning May 19, 1990 (Tran., pp. 149-151 & 157). Defendant did not introduce any weather records into evidence in order to verify the accuracy of Harris's testimony on this point. Harris denied that claimant reported a back injury to him on May 18, 1990. Harris further testified that he saw claimant shovel dirt out of the back of the pickup truck on May 18, 1990 but that there was no mud (Tran., 157). Harris further testified that claimant's only back complaints were about her preexisting bad back (Tran., pp. 142 & 143). Harris testified that he never saw claimant working laying on the floor in the telemarketing room (Tran., p. 142). Harris testified that he never saw a wheelbarrow during the landscaping project (Tran., p. 139). Harris added that it was not necessary to use a wheelbarrow in this project (Tran., p. 158). Russell denied that claimant reported back pain to her on May 18, 1990. On the contrary, Russell testified that claimant told her May 25 that her back was bothering her (Tran., p. 130). Russell testified that she never saw claimant working while lying on the floor (Tran., p. 110). Russell also testified that she did not observe a wheelbarrow while claimant was landscaping for employer (Tran., pp. 103 & 112). She did hear claimant say on Monday, May 21, 1990, that claimant had worked with a wheelbarrow over the weekend at home. Russell said claimant Page 8 related that she declined help from her husband and made the statement that she could do anything that a man could do (Tran., p. 108). Russell said that this was the Monday after Friday, May 18, 1990 and it was before Friday, May 25, 1990 (Tran., p. 109). Brian Hunt testified that he and Clay Bowles worked with claimant for about two hours on the afternoon of Friday, May 25, 1990, unloading rock out of the pickup and digging holes for the shrubs on the north side of the building. Hunt testified that claimant made no complaints about her back to him and he did not see a wheelbarrow in the vicinity of the landscaping site (Tran., pp. 169-180). At one point Hunt said that claimant dug holes (Tran., p. 173) and at another point he said that he Bowles dug the holes (Tran., p. 175). Harris related that claimant requested to use the company pickup truck on the Memorial Day weekend because she wanted to do some landscaping at home that involved moving some heavy dirt (Tran., p. 140). The dates again, of the Memorial Day weekend were Saturday, Sunday and Monday, May 26, 27 and 28 (Tran., p. 148). Claimant testified that she borrowed the pickup truck so her husband could haul dirt to level some ground at home (Tran., p. 78). Claimant testified, "... I spent the whole weekend on the couch, I wasn't able to move." (Tran., p. 44 & 81). Claimant denied that she performed any work in her yard at home on the Memorial Day weekend of May 26, 27 and 28, 1990 (Tran., p. 44). Claimant asserted, "No, Sir, I was stuck on the couch." (Tran., p. 44 & 93). Claimant also denied that she had done any work in her yard at home between May 15, 1990 and May 25, 1990 (Tran., p. 44). James R. Way, a neighbor of claimant from across the street for about four years, testified that he recalled seeing claimant and her husband working in their yard on the Memorial Day weekend of May 26, 27 and 28, 1990. Way testified, "Well, she had, they had a truck over there and they were digging dirt out of the ditch and they were taking it over into a flower bed which is right in the middle by the garage. And they were shoveling dirt into the, she was shoveling dirt off of the truck into the flower bed." (Tran., p.183). Referring to exhibit C, a photograph of claimant's yard, Way testified "Yes, right in this flower bed here in front of -- there's a great big circle there where she planted a bunch of moss roses and that's the flower bed they were working on, both of them. * * * Mainly I think she was more or less putting it in the flower bed. Bob was down getting it in the ditch most of the time. I didn't see a lot of it, just a little. I didn't pay that much attention to it." (Tran., p. 184 & 185). This colloquy then transpired between the witness and Page 9 counsel: "A. But you did see her work? Q. Yeah. Q. When you saw her working, did you ever see her in the bed of the pickup? A. Yeah, she was standing up in there shoveling dirt off one time when I looked over there." (Trans, p. 185). Way testified that he had a telephone conversation with claimant on Tuesday morning, May 29, 1990. Way asserted, "Tuesday morning she called and talked to me. And she was trying to get me to apologize to her husband so we could be back to being good friends. And she had mentioned that she borrowed the truck where she works, City Builders, and she was doing her flower bed during the weekend and she had hurt her back when she done her flower bed. And that's what she had discussed on the phone, she had mentioned she had hurt her back." (Tran., p. 186). Way further testified that after her injury that he observed claimant and photographed claimant drag railroad Page 10 ties out of flood water up to her patio (Tran., p. 188); (Ex. G). Way identified exhibits E and F as photographs that he took of claimant shoveling a walk after her injury in a snow storm. He said he took the pictures because he heard that claimant had brought a lawsuit against her employer and she was out there working all of the time (Tran., pp. 189-192, 199 & 202). Way gave his opinion of claimant's credibility in the following words: "Do you have an opinion as to whether or not Donna Spurbeck is a truthful person? A. Very untruthful. Q. And, Mr. Way, what do you base that on? A. Just knowing them, very manipulating." (Tran., p. 193). Way denied that he and the Spurbecks were enemies. Way testified "I liked them, they were mad at me. *** I was never mad at them." (Tran., p. 195). On cross-examination, Way denied that he had anything to do with (1) starting their house on fire, (2) blowing up their mail box, (3) cutting the transmission lines on their car, (4) killing their dog, (5) breaking all the mirrors on their truck and their car, (6) sticking a knife in the tires of their car and (7) threatening to kidnap their daughters and sell them into prostitution. Way also denied he had any knowledge of who might have done these things (Tran., pp. 193-197). Way denied that he was present when his son stated "Next time I start your house on fire I'm going to make sure you're in it." (Tran., pp. 197 & 198). Way acknowledged that when Spurbecks moved from the neighborhood they had a police escort because there were several people in Way's yard drinking beer and yelling at them (Tran., p. 203). Way testified that several people in the neighborhood did not like them (Tran., p. 205). Way gave the names of several people who did not like claimant. Way said they were trouble makers down at the neighborhood bar (Tran., pp. 205 & 206). Claimant testified that James Way, his two sons, and their friends and another neighbor shot guns at them, destroyed their property and vandalized them (Tran., p. 229). She said that the fire marshall told her that the cause of the fire was unfounded and unsuspicious (Tran., p. 228). She alleged that the son of James Way stated that the next time he set their house on fire he was going to make sure they were in it (Tran., p. 228). Claimant alleged they blew up her mailbox (Tran., p. 227). She alleged that one or more of them threatened to steal her children and sell them in Florida for prostitutes (Tran., p. 229). Claimant alleged that they kicked her little dog and killed her big dog; it had been hit on the head with a blunt Page 11 object and died of drowning. It was found a few feet behind Jim Way's yard (Tran., pp. 229 & 230). Claimant described a physical altercation where Jim Way, Ronnie Way and Johnnie Way beat-up her husband and tried to drown him in the flood waters and Johnnie Way physically struck her and kicked her (Tran., pp. 230 & 231). Claimant said as a result of the fight she had to go to the hospital and when she returned she found that they had been vandalized. The dog was gone and the Ways and their friends were across the street calling the dog's name (Tran., p. 232 & 233). Claimant said she also noticed that the satellite dish was damaged, the mirrors and gas cap was missing off of the truck, the tires on the car had been slashed, the mirrors on the car had been broken and part of the fence was down behind the tool shed (Tran., p. 233). On another occasion transmission lines on their truck had been cut in several places (Tran., p. 233). Claimant alleged that one of the Ways shot a rabbit in their yard underneath the swing set where the children play (Tran., p. 234). Claimant denied that she was shoveling snow in the photographs (exhibits E & F) but rather, claimant testified that she was walking with a cane (Tran., pp. 236 & 237). Claimant denied that she moved railroad ties at the time of the flood (Tran., p. 237). Claimant denied that she had worked in the yard on Memorial Day weekend. She testified that she spent the weekend on the couch because she was not able to go to bed upstairs in her bedroom (Tran., p. 238). Claimant denied that she asked Russell if she could say she hurt her back at work (Tran., pp. 238 & 239). Dennis Wildeboer, testified that he is the secretary-treasurer and general manager of employer. He corroborated Russell's testimony that claimant called the company on Wednesday, May 30, 1990, talked to Russell and asked if she could say that she hurt her back at work and Wildeboer said no. Wildeboer had no information that claimant had ever hurt herself at work. He testified that he did not find out that the company did not have workers' compensation until later in June of 1990 (Tran., pp. 206-210). Wildeboer denied that he talked to claimant on the telephone on May 30, 1990 (Tran., p. 211). He contended claimant was not hurt at work and so evidently it must have happened at home (Tran., p. 212). He acknowledged that Jerry Wildeboer did get upset when she threatened to sue the company (Tran., pp. 213 & 214). Wildeboer said that he never saw claimant working while laying on the floor in the telemarketing room (Tran., p. 215). He acknowledged that employer owned no landscaping tools or wheelbarrow (Tran., pp. 208 & 217). Claimant testified several times that she provided the wheelbarrow and all of the landscaping tools (Tran., pp. 224 & 225). Bill Miller testified that he is a six-year employee of employer (Tran., p. 248). He said that claimant brought a Page 12 headset to work and was provided a different chair because of back problems (Tran., pp. 248 & 249). Miller did not recall claimant telling him that she hurt her back at work (Tran., p. 250). He contended that he drove by claimant's house on the Memorial Day weekend and saw her working in the yard scooping dirt with a shovel (Tran., p. 253). On rebuttal, claimant was asked if she worked in the yard on Memorial Day weekend and she replied, "No, sir, I swear to God I wasn't." (Tran., p. 256). The paramedics who transported claimant to the hospital on May 30, 1990, recorded "She said she sustained a work related injury approx 6 days ago. She states she was shoveling dirt." (Ex. 2-10). Six days prior to May 30, 1990, would have been either May 24 or May 25 depending upon whether you count May 30 as one of the days. In her testimony claimant said that on May 24, 1990, she purchased timber and dirt and Jerry Wildeboer told her to go home and take a day of rest on account of her back (Tran., p. 39). Claimant further testified that on May 25, 1990, she did not do much physical work because Wildeboer assigned three gentlemen to help her. She said they did the physical work and basically she just stood around and told them what to do (Tran., p. 43). A medical form completed in the hospital emergency department shows that the date of injury was May 24, 1990, which was a Thursday. The admitting notes record, "States shoveling dirt Thurs et felt pulling in lower back - Fri was pushing a wheelbarrel et noted [increased] discomfort - " (Ex., 2-14). The emergency room physician also recorded "Strained low back Thursday ..." (Ex., 2-14). This exhibit places the injury date on Thursday, May, 24 or Friday, May 25, 1990. An x-ray on May 31, 1990 reported that the alignment of her lumbar spine was normal, the vertebral body heights and disc spaces are intact, no degenerative change or spondylolysis was detected. The impression was a normal lumbar spine (Ex. 2, p. 2-15). James E. Crouse, M.D., recorded on the admission history and physical examination form dated May 30, 1990: "Two days ago, she was shoveling dirt and running a wheelbarrow when she felt a catch in her back." (Ex., p. 2-13). Two days prior to May 30, 1990, was either May 29 or May 28 depending on whether you count May 30 as one of the days. May 28 was Monday, Memorial Day and claimant did not work for employer on that day. May 29, was Monday and claimant worked as a telemarketer that day because the landscaping project was completed on Friday, May 25, 1990. Dr. Crouse repeated his statement that claimant's injury occurred two days prior to her hospitalization on May 30, 1990 on the discharge summary dated June 1, 1990 (Ex., 2-11). Thus, Dr. Crouse was under the impression that the injury occurred either on Monday, May 28, 1990 or Tuesday, May 29, 1990. Page 13 On July 19, 1990, Roswell M. Johnston, D.O., F.A.A.O.S., an associate of Dr. Crouse, wrote that this injury was consistent with heavy strain on the back such as shoveling dirt and that it was not something that would be caused by bending over (Ex., 2-54). On May 6, 1991, Dr. Crouse wrote "Donna Spurbeck sustained a lumbar disc herniation while working on May 25, 1990." (Ex., p. 2-56). There was no further explanation for his use of the date May 25, 1990. Dr. Crouse further said that he agreed with Dr. Johnston that this was related to a work injury (Ex., 2-56). By comparison, however, claimant testified that she did not perform any physical labor on May 25, 1990 but that the three gentlemen that were assigned to help her performed the physical labor on that date (Tran., p. 58). On May 13, 1992, Dr. Crouse wrote that the injury occurred while shoveling and running a wheelbarrow and that the landscaping work that she was doing was the cause of the injury Ex. 2-57). There is no indication whether Dr. Crouse knew that claimant was alleged to have performed landscaping work at home as well as at work at this time. All indications are that the only landscaping Dr. Crouse knew about was the landscaping that claimant performed at work. Claimant, however, testified that she injured her back on May 18, 1990, from shoveling mud at work on that date (Tran., p. 57). Thus, claimant's very definitive testimony for the date of the injury based on her journal, that she maintained at that time, is at odds with the all of medical records in this case. Claimant was hospitalized for conservative treatment on May 30, 1990. Subsequently she had a lumbar laminectomy on August 22, 1990. Subsequent to that claimant had a lumbar fusion on April 2, 1991. An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). Claimant has the burden of proving by a preponderance of the evidence that she received an injury on May 18, 1990 which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). 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). Claimant did not sustain the burden of proof by preponderance of the evidence that she sustained an injury to her back on May 18, 1990. Claimant's account of when the injury occurred, where the injury occurred and how the Page 14 injury occurred is controverted, contradicted, rebutted and refuted on so many points that it simply cannot be conscientiously determined that she sustained the burden of proof by preponderance of the evidence that the injury arose out of and in the course of her employment with employer on May 18, 1990. It is true that claimant's testimony could be influenced by the fact that she has a very serious back condition and that she is asserting a very large workers' compensation claim. The medical bills alone amount to $24,036.54 (Ex., 1-1). She had three hospitalizations and two major surgeries, lost time from work and is limited in what she can do at the present time. It is also true that the testimony of Dennis Wildeboer, Keith Harris, Kelly Hanson Russell and Bill Miller could be influenced by the fact that they were and still are currently employees of employer. It was asserted by claimant that an award in this case would wipe out the employer financially for the reason that they had no workers' compensation insurance at the time of the alleged injury. In that event these witnesses would lose their employment with employer. This assertion is quite reasonable, plausible and understandable. Jerry Wildeboer did not testify and was not present in the courtroom at the time of the hearing although several other spectators were present. Claimant's husband was present in the courtroom but did not testify. It could be stated that the testimony of James Way was influenced by (1) the many years he was a neighbor, (2) the many and numerous traumatic incidents and (3) the physical altercation that occurred between him and his sons and claimant and her husband. There was clear evidence of a great deal of animosity and hostility between the Ways and the Spurbecks. At the same time the burden is on claimant and most of her testimony was very definitely controverted and rebutted, even though there may be some question about the credibility of the witnesses that testified against her. In the final analysis, claimant clearly, definitively and unequivocably testified that the injury occurred on May 18, 1990. Her testimony was supported by the notes in her journal made at the time of the injury. The medical records indicate that the injury occurred on May 24, May 25, or May 28, May 29 of 1990. None of these dates given in the medical evidence support an injury on May 18, 1990. Therefore, it is determined as a matter of fact that claimant did not sustain an injury to her lumbar spine on May 18, 1990, which arose out of and in the course of her employment with employer based on the evidence of record in this case. conclusions of law Wherefore, based upon the foregoing and following Page 15 principles of law these conclusions of law are made. That claimant did not sustain the burden of proof by preponderance of the evidence that she sustained an injury to her lumbar spine on May 18, 1990, performing landscaping work for her employer which arose out of and in the course of her employment with employer. Section 85.3(1). McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). 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). In view of this finding, all other issues in the case become moot. order THEREFORE, IT IS ORDERED: That no amounts are owned by defendant to claimant for workers' compensation benefits. That each party is to pay their own respective costs, but that employer is to pay the cost of the attendance of the court reporter at hearing and for the transcript of the hearing. Iowa Code sections 86.19(1) and 86.40 and rule 343 IAC 4.33. That defendant return to claimant the headset placed in its custody at the hearing at the expiration of all appellate periods. Signed and filed this ____ day of January, 1993. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Stephen D. Lombardi Attorney at Law Suite 202, 10101 University Des Moines, IA 50325 Mr. Robert L. Rausch Attorney at Law P.O. Box 905 Waterloo, IA 50704 51106, 51401, 51402.20, 51402.30, 52902 Filed January 27, 1993 Walter M. McManus, Jr. before the iowa industrial commissioner ____________________________________________________________ : DONNA P. SPURBECK, : : Claimant, : : vs. : : File No. 954462 CITY BUILDERS & SUPPLY, INC., : : A R B I T R A T I O N Employer, : Defendant. : D E C I S I O N : ___________________________________________________________ 51106, 51401, 51402.20, 51402.30, 52902 Claimant failed to prove a work injury. Practically all of her evidence was controverted. There was reason to suspect the credibility of all witnesses. Claimant had a serious back problem that involved three hospitalizations, two major surgeries, much time lost from work and serious limitations on her ability to work which constituted a large and serious workers' compensation claim. Employer had no workers' compensation insurance and it was asserted that an award would wipe out employer financially and all of the witnesses who worked for employer would lose their jobs. claimant denied that she shoveled dirt at home on the Memorial Day weekend or that she hurt her back at home. A neighbor, with whom claimant and her husband had a great deal of bitter controversy, testified that claimant did shovel dirt on the Memorial Day weekend and that she told him that she hurt her back doing it. In the final analysis, claimant's testimony about the date of the injury was controverted by the medical records in the case. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : LEO C. POTTEBAUM, : : File No. 954480 Claimant, : : A P P E A L vs. : : D E C I S I O N JOHN DEERE DUBUQUE WORKS OF : DEERE & COMPANY, : : Employer, : Defendant. : ___________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed December 11, 1991 is affirmed and is adopted as the final agency action in this case, with the following additional analysis: The instant case can be distinguished from Furry v. John Deere Dubuque Works of Deere & Co., File No. 760430 (Appeal Decision November 12, 1986). In Furry, the audiograms showed a steady increase of binaural hearing loss from 1976 to 1984. Also, in that case there was an audiogram conducted by Dr. Harrison prior to Furry's retirement which indicated a binaural hearing loss of 29.04 percent. Furthermore, there was evidence that Furry consistently worked at noise levels of 82 and 85 dba. Also, none of Furry's audiograms were conducted after 1984. (All employees were required to wear hearing protective devices at all times after 1984.) The instant case can also be distinguished from the facts of John Deere Dubuque Works v. Meyers, 410 N.W.2d 255 (Iowa 1987). In Meyers there was evidence of noise exposure as high as 90-105 dba and later 78-89 dba. Also, in Meyers the court at 410 N.W.2d 255, 256 stated: "At Deere's referral, he was examined by an otolaryngologist on March 18, 1982, who diagnosed high-frequency sensorineural hearing loss related to noise exposure at work." (Emphasis added) In the instant case, the audiograms show hearing loss which apparently continued to increase after claimant's retirement and then decreased. There was no audiogram conducted by anyone other than the employer prior to claimant's retirement. Importantly, it was the medical opinion of Dr. McClenahan that noise in the employer's plant was not sufficient to have caused claimant's hearing loss. There is no contrary medical opinion. The only medical opinion on causal connection is that there was not a causal Page 2 connection. Evidence in this case cannot be reconciled with claimant's burden of proving entitlement to benefits. The audiogram conducted by the employer in 1988 approximately 2-3 months prior to claimant's retirement showed a hearing loss of 28.125 percent. In his final months of employment it appears claimant may have worked in a relatively low level of noise. (See Exhibit 7, Transcript pages 34-35, and the fact that hearing protection devices were used beginning in 1984). An audiogram also conducted by the employer in 1990 approximately two years after claimant's retirement showed a hearing loss of 45.5625 percent. The difference in the results of the two tests can be characterized as a significant increase. There is no adequate explanation for this increase. Claimant's work exposure and duration just noted (2-3 months) is, at best, a possible cause of the increase. It is not the responsibility of the industrial commissioner to rule out all possible causes of compensable injury other than employment. It is claimant's responsibility to prove that his work was the probable cause of his alleged disability. Claimant has failed to meet his burden of proof in this case. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of July, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Michael J. Coyle Attorney at Law 200 Security Building Dubuque, Iowa 52001 Mr. Leo A. McCarthy Attorney at Law 222 Fischer Building P O Box 239 Dubuque, Iowa 52004 1402.30; 2208 Filed July 13, 1992 BYRON K. ORTON BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : LEO C. POTTEBAUM, : : File No. 954480 Claimant, : : A P P E A L vs. : : D E C I S I O N JOHN DEERE DUBUQUE WORKS OF : DEERE & COMPANY, : : Employer, : Defendant. : ___________________________________________________________ 1402.30; 2208 Uncontroverted expert testimony was relied upon in finding that the claimant's hearing loss might possibly have been work related, but the evidence failed to show any such relationship to be probable. Worsening of hearing after retirement relied upon to corroborate expert opinion that hearing loss was not work related. The instant case was distinguished from the facts in Furry v. John Deere Dubuque Works, File No. 760430 (Appeal Decision November 12, 1986) and John Deere Dubuque Works v. Meyers, 410 N.W.2d 255 (Iowa 1987). Page 1 before the iowa industrial commissioner ____________________________________________________________ : LEO C. POTTEBAUM, : : Claimant, : File No. 954480 : vs. : A R B I T R A T I O N : JOHN DEERE DUBUQUE WORKS OF : D E C I S I O N DEERE & COMPANY, : : Employer, : Self-Insured, : Defendant. : ____________________________________________________________ statement of the case This is a proceeding in arbitration brought by Leo C. Pottebaum against his former employer, John Deere Dubuque Works of Deere & Company, seeking compensation for hearing loss under chapter 85B of The Code of Iowa. The primary issues to be determined are whether the claimant's hearing loss is an occupational hearing loss for which compensation is payable under chapter 85B and, in particular, whether the hearing loss was caused by or arose out of his employment. The case was heard at Dubuque, Iowa, on November 22, 1991. The evidence in the case consists of exhibits 1 through 16 and testimony from Mervin Lee McClenahan, M.D., Leo C. Pottebaum, Thomas Robson, Karl Rigdon, John D. Cook and Bernard M. Boland. findings of fact Having considered all the evidence received, together with the appearance and demeanor of the witnesses, the following findings of fact are made. Leo C. Pottebaum is a 59-year-old man who retired from the John Deere Dubuque Works on October 31, 1988, after 32 years of employment. During the first year of his employment with John Deere, he was a turret lathe operator. He next worked in the foundry on the clean-up crew for approximately a year. He then resumed work as a turret lathe operator for approximately one year. In 1960, he obtained employment in the tool room, which has been referred to as Department 31. He remained in Department 31 throughout the remainder of his career. There are basically two functions performed by employees in Department 31. One function is to perform fabrication, grinding and other machine work on metal in the tool room area itself. The other function is repairing and maintaining industrial machines throughout the John Deere Page 2 plant. The noise exposure experienced by an employee in Department 31 can vary according to the machines the employee operates, the machines which are operating in close proximity to the employee and the portion of the plant in which the employee is working. The claimant testified at length to having experienced a great deal of noise exposure in each of the positions he has held with John Deere. The employer's noise exposure testing data shows that individuals in Department 31, the department in which the claimant was employed, typically have noise exposures which have been measured in the range of the high-70's to the mid-80's in dBA. Some of the test results show some of the employees to have been exposed to noise in excess of 115 dBA for unstated periods of time during which the testing was conducted (exhibits 7 and 10; exhibit 12, interrogatory number 9). This claimant's individual noise exposure was never tested. Commencing in 1984, all employees in the John Deere plant were required to wear hearing protective devices at all times. When originally employed, Pottebaum was administered a preemployment physical which identified no hearing problems (exhibit 16). The claimant's hearing has been tested on four different occasions. The first test was conducted in 1975 and showed a 17.1875 percent binaural hearing loss (exhibit 3). The second test was conducted in October of 1988, only ten days prior to the claimant's retirement, and showed a 28.125 percent binaural hearing loss. The third test was conducted on August 15, 1990, nearly two years after the claimant had been removed from whatever noise exposure the John Deere plant had provided to him, and his hearing loss was shown to be 45.5625 percent. Approximately two weeks later, the fourth test was administered by the personnel at Dubuque Otolaryngology and showed a 36.25 percent binaural hearing loss. According to the plant physician, Mervin Lee McClenahan, M.D., the last hearing test is the most accurate (exhibit 11, page 3). The three previous tests were all conducted by John Deere's own personnel. Page 3 Otolaryngologist James W. White, M.D., has reported that claimant has a moderate sensorineural hearing loss which is compatible with noise-induced hearing difficulty (exhibit 6). That opinion was expressed based upon the examination and testing performed by his office on or about August 27, 1990. Dr. McClenahan agreed that the claimant's hearing loss is attributable to noise (exhibit 11, page 4). It is found that Drs. White and McClenahan are probably correct in their assessments that the hearing loss which afflicts Leo C. Pottebaum was probably induced by noise. Dr. White does not express any opinion with regard to the source of the noise which was likely to have caused the hearing problem. Dr. McClenahan stated that, in his opinion, based on the industrial hygiene reports of noise levels in the plant, the noise which Leo Pottebaum was subjected to in the John Deere plant was not sufficient to have caused his hearing loss (exhibit 11, pages 4 and 5). The record in this case suggests no source of continued or long-term high noise level exposure to which the hearing loss can be attributed other than the John Deere plant. While the record does show some other incidents of high noise level exposure, those incidents appear to be relatively infrequent in duration in comparison to the duration to which this claimant was exposed to noise in the John Deere plant. Those incidents likewise appear to have not necessarily produced a level of noise which would have been higher or more injurious to the claimant than the level which was present in the plant. It is particularly noted that the chain saw use does not appear to have begun until well after 1975 when this claimant's hearing loss was first identified. On the other hand, this claimant's hearing loss appears to have progressed and worsened markedly after he retired and was no longer exposed to whatever noise was present in the employer's plant. The fact of post-retirement worsening of the hearing loss is a very strong indication that the hearing loss was not necessarily caused by the employment. That fact strongly corroborates the opinion expressed by Dr. McClenahan. There is no evidence in the record of this case from any health care professional which attributes the hearing loss to the noise exposure at John Deere. The only expert opinion is that of Dr. McClenahan which states that it probably is not related to the employment at John Deere. Under the state of this record, it can be fairly stated that it is certainly possible that Leo C. Pottebaum has a hearing loss which is noise induced and that the hearing loss is Page 4 attributable to his employment at John Deere. The state of this record does not, however, show it to be probable that the hearing loss is attributable to noise exposure at the John Deere plant. The cause of claimant's hearing loss is probably noise. The source of that noise cannot, however, be identified. conclusions of law Claimant has the burden of proving by a preponderance of the evidence that he received an injury 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. 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. McClure v. Union County, 188 N.W.2d 283, 287 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The "arising out of" requirement is satisfied by showing a causal relationship between the employment and the injury. Sheerin v. Holin Co., 380 N.W.2d 415, 417 (Iowa 1986). The claimant has the burden of proving by a preponderance of the evidence that the injury 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 Hosp., 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 v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Page 5 Section 85B.8 provides for a delay of six months following removal from the noisy employment setting before filing a claim. The primary reason for that delay is in order to allow the hearing loss to be evaluated without the influence of fatigue. 1B Larson Workmen's Compensation Law, section 41.50 et seq. Typically, the hearing improves somewhat upon removal from the noisy environment. That portion of the hearing loss is generally attributed to fatigue from the immediate effects of recent noise. In this case, not only was there no improvement in the hearing following removal from the noisy environment, there was in fact a marked worsening. That marked worsening is highly inconsistent with noise at the John Deere plant being a substantial factor in producing the hearing loss. It greatly corroborates the opinion expressed by Dr. McClenahan which states that the employment at John Deere is probably not the cause of the hearing loss. There is no expert opinion evidence in this record which contradicts that from Dr. McClenahan. The claimant's burden of proof is a preponderance of the evidence or a probability. While the evidence in this case certainly shows a possibility that the hearing loss is work related, it fails to rise to the level of probability. It is therefore concluded that Leo C. Pottebaum has failed to prove, by a preponderance of the evidence, that his hearing loss, or any substantial part thereof, was proximately caused by his employment at the John Deere Dubuque Works. The claimant is therefore not entitled to receive any recovery in this proceeding. order IT IS THEREFORE ORDERED that claimant take nothing from this proceeding. IT IS FURTHER ORDERED that the costs of this action are assessed against the claimant pursuant to rule 343 IAC 4.33. Signed and filed this ______ day of ____________, 1991. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Page 6 Copies To: Mr. Michael J. Coyle Attorney at Law 200 Security Building Dubuque, Iowa 52001 Mr. Leo A. McCarthy Attorney at Law 222 Fischer Building P.O. Box 239 Dubuque, Iowa 52004-0239 1402.30; 2208 Filed December 11, 1991 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : LEO C. POTTEBAUM, : : Claimant, : File No. 954480 : vs. : A R B I T R A T I O N : JOHN DEERE DUBUQUE WORKS OF : D E C I S I O N DEERE & COMPANY, : : Employer, : Self-Insured, : Defendant. : ____________________________________________________________ 1402.30; 2208 Uncontroverted expert testimony was relied upon in finding that the claimant's hearing loss might possibly have been work related, but the evidence failed to show any such relationship to be probable. Worsening of hearing after retirement relied upon to corroborate expert opinion that hearing loss was not work related. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ DENNIS SCHLEGEL, Claimant, vs. File No. 954481 UNITED PARCEL SERVICE, A P P E A L Employer, D E C I S I O N and LIBERTY MUTUAL INS. CO., 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 October 14, 1992 is affirmed and is adopted as the final agency action in this case. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of March, 1993. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Nick J. Avgerinos Attorney at Law 135 South LaSalle St., #1527 Chicago, IL 60603 Mr. Greg A. Egbers Mr. Mark Woollums Attorney at Law 600 Union Arcade Bldg. 111 East Third St. Davenport, Iowa 52801-1596 5-1803 Filed March 29, 1993 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DENNIS SCHLEGEL, Claimant, vs. File No. 954481 UNITED PARCEL SERVICE, A P P E A L Employer, D E C I S I O N and LIBERTY MUTUAL INS. CO., Insurance Carrier, Defendants. ____________________________________________________________ 5-1803 Non-precedential, extent of disability case. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : DENNIS SCHLEGEL, : : Claimant, : : vs. : : File No. 954481 UNITED PARCEL SERVICE, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INS. CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Dennis M. Schlegel, claimant, against United Parcel Service, employer, hereinafter referred to as UPS, and Liberty Mutual, insurance carrier, defendants, for workers' compen sation benefits as a result of an alleged injury on November 11, 1988. On August 31, 1992 a hearing was held on claimant's petition and the matter was considered fully sub mitted 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. On November 11, 1988 claimant received an injury arising out of and in the course of employment with UPS. 2. Claimant is not seeking additional temporary total or healing period benefits beyond what has been paid in this proceeding. 3. If the injury is found to have caused permanent dis ability, the type of disability is an industrial disability to the body as a whole. 4. If permanent partial disability benefits are awarded, they shall begin as of May 19, 1992. Page 2 5. At the time of injury claimant's gross rate of weekly compensation was $629.60; he was married; and he was entitled to four exemptions. Therefore, claimant's weekly rate of compensation is $389.82 according to the Industrial Commissioner's published rate booklet for this injury. 6. It was stipulated that the providers of the requested medical expenses would testify as to their reason ableness and defendants are not offering contrary evidence. Also it was agreed that the medical expenses requested in the prehearing report are causally connected to the medical condition upon which the claim herein is based but that the issue of this condition to a work injury remains an issue to be decided herein. ISSUES The parties submitted the following issues for determi nation in this proceeding: I. The extent of claimant's entitlement to disability benefits. II. The extent of claimant's entitlement to medical benefits. FINDINGS OF FACT Having heard the testimony and considered all of the evidence, the deputy industrial commissioner finds as follows: A credibility finding is unnecessary to this decision. Defendant did not refute claimant's symptomatology. The fighting issue was the cause of these symptoms. Claimant, age 42, has worked for UPS since 1978 and continues to do so at the present time. Claimant started as a package car driver unloading semi trucks, loading cars and delivering the loads. In 1982, he moved to night washer cleaning package cars with a cleaning wand and brush attached to a hose. This required a considerable amount of overhead work using both arms as the vehicles were tall. In 1985, he moved to the day shift as a washer, cleaning semi tractors. This required more use of the arms and hands as the trucks needed to be hand washed. He was also assigned janitorial duties consisting of cleaning floors, offices and bathrooms; emptying trash receptacles; and, scrubbing and waxing floors. In addition, the UPS union contract provides for "work as directed." This provision allows management to assigned work to employees that is not usually assigned to their jobs. In the case of claimant, this was driving a semi tractor trailer truck because he was a licensed commer cial driver. Claimant received additional pay whenever he performed this special duty. Claimant continues as a day washer today. His current weekly earnings are more than at Page 3 the time of injury due to negotiated union pay increases. The injury of November 11, 1988 involved numbness of the hands and arms along with back & shoulder strain. Claimant filed two reports of injury for the same approxi mate time period. The first report involved back and shoul der strain after lifting at work on November 10, 1988. The second occurred on December 8, 1988 referring back to an injury of November 1, 1988. There is no specific instance of injury. Claimant explains that his arm and hand difficul ties began when he was assigned to special truck driving duty in November 1988 which required him to do heavy lifting of UPS packages weighing from 1-70 pounds. Initially claimant was treated for the hand and arm numbness by Jerome Hughes, M.D. Dr. Hughes felt that claimant's problems stemmed from epicondylitis (tennis elbow). After a couple of years of conservative treatment by Dr. Hughes and others, claimant continued to experience sore elbows and hand numbness but he continued to work at UPS. He then was referred to Douglas Schmid, M.D. Dr. Schmid felt claimant's problems may be due to thoracic outlet syndrome (TOS) and he referred claimant to the Uni versity of Iowa Hospitals and Clinics for evaluation. University doctors concluded that claimant's difficulties were not TOS but a herniated disc in the cervical portion of the back. Surgery to fuse this area of the back was per formed by University physicians. Claimant returned to his regular job in April 1991. Claimant states that the surgery corrected his hand numbness but that his elbows continued to hurt. Claimant's physicians state that he should mini mize bumpy rides, heavy lifting and frequent bending but they have not imposed formal work restrictions. There is little question that the herniated disc and fusion surgery is a cause of permanent impairment from 7-20 percent according to the physicians in this case. With ref erence to causation of this impairment, Christopher Loftus, M.D., professor of neurology at University Hospitals, states that claimant's condition treated by him was due to degener ative disc disease with a "long history of bilateral arm, elbow and lateral hand tingling and numbness." But upon inquiry he states that it is "likely" that claimant's heavy work "could" have caused or aggravated the disc problem sur gically corrected by University staff. Dr. Schmidt states that claimant's degenerative disc and tennis elbow "could be related to his work." A one time evaluator and neurosur geon who never actually examined claimant opines that claimant's work was not the cause of his cervical and degen erative disc problems. Dr. Hughes states that he has diffi culty relating claimant's symptoms to his work. Obviously, there is little medical opinion support in this record for this claim. Looking at the lay evidence, claimant does indeed have a long history of upper extremity problems. In 1980, claimant injured his right shoulder when a box fell on it Page 4 and was treated with a cortisone injection. In July 1986, claimant complained of left shoulder pain which was eventu ally teated with a surgical resection of the clavicle. In February 1988, six months before the claimed injury herein, claimant was treated for bilateral epicondylitis upon com plaints of numbness and aching in his arms and night pain. Given the above, the undersigned is unable to find that claimant's work activity in November 1988 was a cause of claimant's current permanent impairment. Although the absence of medical expert opinion alone would preclude a favorable finding, in this case the evidence of pre-existing similar problems necessitates reliance upon medical opinion which was clearly quite nebulous. As the degenerative disc disease condition precipitat ing the cervical disc surgery could not be found work-related, the medical treatment claimant received to treat the disc problems cannot be found work-related. CONCLUSIONS OF LAW I. 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 impairment or permanent limitation in work activity. How ever, 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 (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 to determine from the completeness of the premise given the expert or other surrounding circumstances. 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 non-expert testi mony to show causation and be sufficient to sustain an award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966) Such evidence does not, however, com Page 5 pel an award as a matter of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (1974) To establish compensabil ity, the injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith at 354. In the case of a preexisting condition, an employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggra vation 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 contends that he has suffered disability as a result of the work injury due to additional permanent impairment to the body as a whole. The evidence established that he suffered a permanent impair ment. However, the evidence failed to show the requisite causal connection between the work injury and the permanent impairment. II. Pursuant to Iowa Code section 85.27, claimant is entitled to payment of reasonable medical expenses incurred for treatment of a work injury. As the requested expenses involved treatment of a condition which could not be found work-related, claimant is not entitled to the expenses requested. However, claimant appeared credible at hearing and his claim was arguable and in good faith. He will be awarded costs. ORDER 1. Claimant's petition is dismissed. 2. Defendants shall pay the costs of this action pur suant to rule 343 IAC 4.33, including reimbursement to claimant for any filing fee paid in this matter. Signed and filed this ____ day of October, 1992. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Nick J. Avgerinos Attorney at Law La Salle Bank Building Suite 1527 135 South La Salle Street Page 6 Chicago, Illinois 60603 Mr. Greg A. Egbers Mr. Mark Woollums Attorneys at Law 600 Union Arcade Building 111 East Third Street Davenport, Iowa 52801-1596 5-1803 Filed October 14, 1992 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DENNIS SCHLEGEL, Claimant, vs. File No. 954481 UNITED PARCEL SERVICE, A R B I T R A T I O N Employer, D E C I S I O N and LIBERTY MUTUAL INS. CO., Insurance Carrier, Defendants. ___________________________________________________________ 5-1803 Non-precedential, extent of disability case. Page 1 before the iowa industrial commissioner ____________________________________________________________ : LARRY D. ANDRIES, : : Claimant, : : vs. : : File No. 954483 KASER CORPORATION, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : UNITED STATES FIDELITY AND : GUARANTY COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Larry Andries, claimant, against Kaser Corporation, employer (hereinafter referred to as Kaser), and United States Fidelity and Guaranty Company, insurance carrier, defen dants, for workers' compensation benefits as a result of an alleged injury on November 14, 1988. On January 17, 1992, 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 contained herein which were approved and accepted as a part of the record of this case at the time of hearing. The oral testimony and written exhibits received during the hearing are set forth in the hearing transcript. According to the prehearing report, the parties have stipulated to the following matters: 1. On November 14, 1988, claimant received an injury arising out of and in the course of employment with Kaser. 2. The injury is a cause of absences from work during recovery from the injury and some degree of permanent disability. 3. The parties only dispute with reference to healing period involves the time period from August 16, 1989 through January 22, 1990. 4. The type of permanent disability is an industrial disability to the body as a whole. 5. Claimant's rate of weekly compensation shall be Page 2 $227.47. 6. The medical bills submitted by claimant at the hearing are fair and reasonable and causally connected to the medical condition upon which the claim herein is based, but that the issue of their causal connection to any work injury remains an issue to be decided herein. ISSUES The parties submitted the following issues for determi nation in this proceeding: I. The extent of claimant's entitlement to disability benefits; and, II. The extent of claimant's entitlement to medical benefits. FINDINGS OF FACT Having heard the testimony and considered all of the evidence, the deputy industrial commissioner finds as follows: A credibility finding is necessary to this decision as defendants placed claimant's credibility at issue during cross-examination as to the nature and extent of the injury and disability. From his demeanor while testifying, claimant is credible. Kaser operates a rock quarry in southeast Iowa. Claimant worked for Kaser from 1984 until March 1990 as a truck driver at this quarry. Initially, he was assigned to the job of stockpile driver hauling crushed rock from the plant to the yard. Later on, he was given the job of pit truck driver. Claimant was performing this pit truck driver job when he was injured. Pit truck driving involves the hauling of "shot rock" or large pieces of rock (up to 6 feet in diameter) from the quarry to the crusher machine. Claimant states that there is a great deal of vibration while driving the pit truck especially during loading when large rocks are dropped into the truck bed. Occasionally, he was assigned to other work such as scooping rock which required heavy repetitive bending and lifting. Claimant's description of his job at Kaser is uncontroverted and found to be true. On or about November 14, 1988, claimant injured his low back when he attempted to throw a 20-30 pound rock from a road in the quarry. Claimant slipped and fell and experi enced the immediate onset of sharp low back pain radiating into his legs. Again, claimant's testimony is uncontro verted as to the nature of the injury. Claimant informed management at the quarry of his injury but continued working thinking the pain would subside. However, the next day, claimant could not get out of bed and felt "lightning bolts" in his leg along with continued sharp back pain. Claimant first sought care from a chiropractor, James Miller, D.C. He had been treated by Dr. Miller since a 1978 motorcycle Page 3 accident for arm and shoulder pain. Dr. Miller stated that claimant had aggravated a prior existing low back weakness. Claimant's low back problems continued despite Dr. Miller's adjustments. Although he continued to experience symptoms, claimant returned to work at the quarry on November 21, 1988 and worked until December 24, 1988, at which time he was laid off. Claimant and his fellow quarry employees were custom arily laid off over the winter months each year. As in prior years, claimant drew unemployment compensation bene fits over the winter months. According to claimant, he improved over this lay off period but continued to be treated for low back pain by Dr. Miller. Claimant returned to work at the quarry the next spring on March 16, 1989 and worked continuously over the next several weeks. At times he worked over nine hours a day. This work still involved the job pit truck driving. Claimant then experienced an increase in low back pain and returned to Dr. Miller for additional treatment on April 24, 1989. The next day claimant left work at the quarry and began treating with Robert Carleton, D.O. This medical treatment initially remained conservative with rest and medication. In May 1989, Dr. Carleton referred claimant to an orthopedic clinic in Iowa City due to continued low back and leg pain. Mark Mysnyk, M.D., from this clinic, opined in July 1989 that claimant's problems were most likely due to a herniated disc at L5-S1 spinal level of the low back. Dr. Mysnyk recommended that claimant undergo an epidural steroid injection for diagnostic and therapeutic benefits. At that time, claimant was seeing a vocational rehabilita tion counselor retained by defendants from InterCorp, Annette Tribble, RSW. Claimant stated that she advised him to question such treatment. Claimant also received some advice from family members to forego this treatment as unduly risky. Claimant then refused this treatment despite agreement to such a procedure by Dr. Carleton. Over the next several months, claimant continued to seek chiropractic care during flare-ups and Dr. Carleton continued his conservative care. On August 16, 1989, claimant was evaluated by another orthopedic surgeon, Keith Riggins, M.D. His diagnosis was two herniated discs in the lower spine stating that claimant was not a candidate for surgery. He agreed that claimant should undergo the steroid injection. However, Dr. Riggins opined a very dismal prog nosis stating that claimant should not return to manual labor which requires repetitive bending or lifting or seden tary work which would not allow claimant to move about. In September 1989, Dr. Riggins opined that claimant suffers from a 33 percent whole man impairment and that he did not consider claimant employable due to his inability to sit for more than brief periods of time or repetitively bend or lift. The doctor also opined that based upon claimant's history of the onset of pain, claimant's current low back symptoms are secondary to the November 14, 1988 injury at work. In November 1989, claimant was evaluated by the Spinal Page 4 Diagnostic and Treatment Center operated by the orthopedic department of the University of Iowa Hospitals and Clinics. Physicians at this clinic recommended that claimant attend its two week low back rehabilitation program, a rigorous program of evaluation, physical therapy, work hardening and vocational counseling. Claimant agreed and completed this program on January 19, 1990. At that time, the staff in this clinic found that claimant was a motivated person; that he is suffering from disc protrusions of the low back and back spasms; and, that his work restrictions consisted of no lifting over 35 pounds, no repetitive lifting over 18 pounds and sitting of only 30 minutes if a back rest is provided. The clinic recommended that he continue his home exercises and that the employer should provide occasional chiropractic care during flare-ups. The clinic did not recommend the epidural steroid injections. Finally, the clinic stated that claimant's symptoms are consistent with the November 14, 1988 injury at Kaser. With reference to claimant's ability to return to work, the clinic staff concurred with a plan that claimant start his own painting business but stated that he could return to work at the quarry but only to driving and not the operation of dozers. Claimant then returned to the quarry on February 22, 1990, but was told by the quarry manager that claimant had to have a full release to duty with no restrictions before he could return to work. Apparently after discussions with claimant's counselor at InterCorp, this decision on claimant's return to work was changed if claimant could work eight hours a day and if a new seat was provided for the pit truck. Claimant stated that this new seat was needed to correct a tilt in the seat rather than to reduce or elimi nate any vibrations. Claimant's testimony on this point was uncontroverted. However, a new seat was not readily avail able and had to be ordered. During his wait for a new pit truck seat, claimant returned on March 1, 1990, for a one month follow-up to the University of Iowa Spine Clinic. At that time, his restric tions were changed to no lifting over 30 pounds and no repetitive lifting over 15 pounds and specifically to "no exposure to vibration more than two hours per day." Claimant then had a telephone conversation with Kaser's man ager in Des Moines, Ernest Myers, on March 21, 1990, when claimant was informed that the new seat arrived and that he should now return to work. Myers testified in his deposi tion that claimant voluntarily resigned stating that he was going after other employment. Claimant's version at hearing differed. Claimant said that he discussed with Myers whether or not Kaser could accommodate for the restriction against vibrations and was told that such an accommodation was not possible. Whatever was said in this conversation, it is found that only pit truck driving was offered to claimant by Kaser and the performance of such a job is inconsistent with claimant's most recent activity restric tions imposed by the physicians at the spine clinic. Page 5 Claimant will probably never return to the type of truck driving work he performed at Kaser. About the same time he was released to return to Kaser, claimant began his own painting business. This business involves residential, commercial and industrial painting projects. Claimant must stay within his work restrictions in his business to avoid severe back pain flare-ups. Claimant intermittently hires a few persons on an ad hoc basis to help him in this operation. On one occasion he successfully bid on a major job in the state of California but sold his interests in the contract when he felt that he could not physically handle the job. With reference to the disputed healing period, claimant was not working and absent from his job at Kaser from August 16, 1989 through January 19, 1990, upon the advice of his physicians. It is found that claimant did not reach maximum healing until his completion of the spine clinic program on January 19, 1990. Certainly, Dr. Riggins gave an impairment rating earlier in September 1989, but physicians at the University of Iowa obviously felt that further physical therapy was warranted. This therapy proved to be of benefit to claimant as his condition improved to the point of being released to light duty type of work. Dr. Riggins had opined in August 1989, that claimant would not be able to return to work. The work injury of November 14, 1988, was a cause of a seven percent permanent impairment to the body as a whole. Also, claimant is unable to perform physical activities set forth by the spine clinic on March 1, 1990. The views of the spine clinic as the most recent evaluator after its therapy program is given the greater weight as to the extent of claimant's abilities. The causal connection between the November 1988 incident and claimant's current impairment is based upon the causal connection views of Dr. Riggins and those of the physicians at the spine clinic. The chiroprac tor, Dr. Miller, felt that claimant's problems were prior existing and unrelated to his work. His views cannot be given greater weight than those of specialists in the field of orthopedic surgery. The above findings are also based upon claimant's demeanor at hearing when he testified that he had no severe low back pain until the November 14, 1988 incident. Finally, due to resulting permanent impairment and pri marily the physician imposed work restrictions, the work injury of November 14, 1988, is a cause of a 75 percent loss of earning capacity. To date, claimant's earnings have fallen from over $18,000 to approximately $5,000 annually. Claimant's only employment history has been in manual labor occupations of farming and painting. He has had supervisory experience with a painting contractor but he still was required to perform physical work in conjunctions with such duties. Claimant is only able to work as a painter on a part-time basis. He is unable to return to the quarry work he was performing at the time of the injury. Kaser has not offered suitable employment to claimant within his work restrictions. Claimant is relatively young at age 34 but he Page 6 is a high school dropout with only a ninth grade education. He has had no opportunity to obtain his GED. Retraining at this stage in claimant's life appears unlikely and not fea sible without major financial assistance. Although he started his painting business, he has no experience in the operation of a business. The success of this venture is impossible to predict at this time. According to his testi mony at hearing, his earnings in 1991 are not significantly different than 1990. CONCLUSIONS OF LAW I. Claimant must establish by a preponderance of the evidence the extent of weekly benefits for permanent dis ability to which claimant is entitled. As the claimant has shown that the work injury was a cause a permanent physical impairment or limitation upon activity involving the body as a whole, the degree of permanent disability must be measured pursuant to Iowa Code section 85.34(2)(u). However, unlike scheduled member disabilities, the degree of disability under this provision is not measured solely by the extent of a functional impairment or loss of use of a body member. A disability to the body as a whole or an "industrial disabil ity" is a loss of earning capacity resulting from the work injury. Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A physical impairment or restric tion on work activity may or may not result in such a loss of earning capacity. Examination of several factors deter mines the extent to which a work injury and a resulting med ical condition caused an industrial disability. These factors include the employee's medical condition prior to the injury, immediately after the injury and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. See Peterson v. Truck Haven Cafe, Inc. (Appeal Decision, Feb. 28, 1985). In the case sub judice, it was found that claimant suf fered a 75 percent loss of his earning capacity as a result of the work injury. Such a finding entitles claimant to 375 weeks of permanent partial disability benefits as a matter of law under Iowa Code section 85.34(2)(u) which is 75 per cent of 500 weeks, the maximum allowable number of weeks for an injury to the body as a whole in that subsection. In this case, a determination of loss of earning capac ity was made based upon the current earnings of claimant from his painting business. Obviously, if this business proves more successful, this agency is available to review and reopening this award. Claimant's entitlement to permanent partial disability Page 7 also entitles him to weekly benefits for healing period under Iowa Code section 85.34 from the date of injury until claimant returns to work; until claimant is medically capa ble of returning to substantially similar work to the work he was performing at the time of injury; or, until it is indicated that significant improvement from the injury is not anticipated, whichever occurs first. As it was found that claimant was off work and did not reach maximum healing until January 19, 1990, healing period benefits will be awarded accordingly to claimant. II. Pursuant to Iowa Code section 85.27, claimant is entitled to payment of reasonable medical expenses incurred for treatment of a work injury. Claimant is entitled to an order of reimbursement if he has paid those expenses. Otherwise, claimant is entitled only to an order directing the responsible defendants to make such payments directly to the provider. See Krohn v. State, 420 N.W.2d 463 (Iowa 1988). As claimant's current back condition was found work related and compensable, the parties stipulation as to the causal connection of the requested medical expenses is applicable. Such expenses will be awarded accordingly. ORDER 1. Defendants shall pay to claimant three hundred seventy-five (375) weeks of permanent partial disability benefits at a rate of two hundred twenty-seven and 47/l00 dollars ($227.47) per week from January 20, 1990. 2. Defendants shall pay to claimant healing period benefits from August 16, 1989 through January 19, 1990, at the rate of two hundred twenty-seven and 47/l00 dollars ($227.47) per week. 3. Defendants shall pay the medical expenses listed in the prehearing report. Claimant shall be reimbursed for any of these expenses paid by him. Otherwise, defendants shall pay the provider directly along with any lawful late payment penalties imposed upon the account by the provider. 4. Defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for all benefits previously paid. 5. Defendants shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 6. Defendants shall pay the costs of this action pursuant to rule 343 IAC 4.33, including reimbursement to claimant for any filing fee paid in this matter. 7. Defendants shall file activity reports on the pay ment of this award as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of February, 1992. Page 8 ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Page 9 Copies To: Mr. William Bauer Attorney at Law 100 Valley St P O Box 517 Burlington IA 52601 Mr. Greg A. Egbers Attorney at Law 600 Union Arcade Bldg 111 E 3rd St Davenport IA 52801 5-1803 Filed February 12, 1992 LARRY P. WALSHIRE before the iowa industrial commissioner ____________________________________________________________ : LARRY D. ANDRIES, : : Claimant, : : vs. : : File No. 954483 KASER CORPORATION, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : UNITED STATES FIDELITY AND : GUARANTY COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803 Non-precedential, extent of disability case.