BEFORE THE IOWA INDUSTRIAL COMMISSIONER JERI L. DAHL, Claimant, vs. File No. 954639 JOHN MORRELL & CO., 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 Claimant, Jeri L. Dahl, has filed a petition in arbitration and seeks workers' compensation benefits from John Morrell & Co., defendant employer, and Home Insurance Company, defendant insurance carrier, on account of an injury arising out of and in the course of her employment on June 6, 1990. The hearing was held before the undersigned on January 10, 1995 at Sioux City, Iowa. The evidence in this case consists of the testimony of claimant, Charles Newton, Sharon Johnson; claimant's exhibit A, pages 1 through 181, except page 144, claimant's exhibit B, pages 5, 6, 10-18, 20, 24-27, 29, 30, 40-44, 144, and defendants' exhibits 2, 4, 7-9, 13-15, 18, 19, 22, 26, 31A, 33, 34, 41-45 and 47-62. Claimant and defendants each filed a post hearing brief on February 21, 1995. The case was considered fully submitted at the close of the hearing. PROCEDURAL MATTERS On February 21, 1995, claimant filed a motion to allow additional exhibits into the record. Defendants filed a resistance on February 24, 1995. On February 21, 1995, defendants filed a motion to substitute a complete copy of exhibit A, page 9. No resistance was filed by claimant. Rule 343 IAC 4.31 provides: "No evidence shall be taken after the hearing." Based on the above cited rule, the motion by claimant to allow additional exhibits to be entered into the record and the motion by defendants to substitute a complete copy of exhibit A, page 9, are denied. ISSUES The Parties presented to the following issues for resolution: 1. Whether claimant's injury resulted in any permanent disability and, if so, whether that disability is causally connected to her work injury of June 6, 1990; 2. Whether claimant is entitled to any additional healing period benefits or temporary total disability benefits; 3. Whether claimant is entitled to permanent partial disability benefits, and if so, the nature and extent of those benefits and the appropriate commencement date for benefits; 4. Whether claimant is entitled to payment of certain medical expenses; 5. Whether claimant's injury was willful under Iowa Code section 85.16; 6. Whether a portion of claimant's disability is due to a preexisting condition that resulted from a previous injury; and, 7. Specific taxation of costs. FINDINGS OF FACT The undersigned deputy industrial commissioner, having reviewed all of the evidence received, finds the following facts: Claimant was 42 years old, married and the mother of six children, four of whom were minors on the day of the hearing. Claimant was not a credible witness on her own behalf. She graduated from high school in 1972 and went to work for IBP, inc. the same year. She worked for IBP, inc. until approximately 1984 or 1985. (Transcript, page 14) While working for IBP, inc. she sustained a work-related injury to her right hand in September of 1984. Claimant was specifically asked by defendants, through an interrogatory, if she had ever sustained a work- related injury before or made a claim for workers' compensation before this injury. She stated under oath that she had not. (Defendant's exhibit 61, page 3) Claimant's answer was clearly less than complete, at best, as is evidenced by her previous workers' compensation claim with IBP, Inc. Claimant's previous claim went to hearing in Nebraska and then was resolved after hearing by payment to claimant of over $15,000 dollars. It is not believable that claimant forgot her previous claim. It was previously determined that claimant had sustained a 5 percent permanent partial disability impairment to each hand. (Def. Ex. 43, p. 3, 4) Her work for defendant employer required her to stack boxes after they came out of a machine. This work required that she use her hands, wrists, and arms in a repetitive manner. She also worked wrapping loins which required repetitive use of her hands and wrists. On March 19, 1990, claimant suffered a work- related injury to her shoulder, that is not the subject of this case, when she was pulling on a pallet that was stuck. (Def. Ex. 59) Restrictions that were placed on her left arm were lifted by May 29, 1990. (Cl. Ex. A, p. 41, 43) On June 6, 1990, claimant reported swelling and pain in both wrists. (Cl. Ex. A, p. 52) She was examined by Gerald McGowan, M.D., on June 12, 1990 as a follow-up to her shoulder complaint. He noted that claimant had little bursa or ganglions on her wrist which did not impress him too much. He recommended no treatment. (Cl. Ex. A, p. 47) On July 3, 1990, claimant complained of pain in both wrists. She had swelling along the tendon of both wrists on the volar side, which he did not think was anything. He recommended no treatment. (Cl. Ex. A, p. 49) On July 3, 1990 Dr. McGowan recommended that for the next two weeks claimant reduce repetitive wrist motion and lift no more than 10 pounds occasionally. (Cl. Ex. A, p. 50, 51) Claimant asked to be referred to an orthopedic surgeon. She was first seen by A. Pechacek, M.D., on July 9, 1990. He suspected ganglion cysts were the source of her pain and irritation. He recommended limited use of her wrists and if that failed he recommended surgical removal of the swollen tissue, which he thought was probably a ganglion cyst. (Cl. Ex. A, p. 56) X-rays of claimant's wrists done on July 9, 1990 were normal. (Def. Ex. 8) Dr. Pechacek took claimant off work beginning July 9, 1990. (Cl. Ex. A, p. 59, 60) Dr. Pechacek performed surgery on claimant's left wrist on August 1, 1990. Instead of a ganglion cyst, he found hypertrophic muscle tissue. The tissue was removed, decompressing the ulnar nerve. Neither the ulnar nerve nor the artery appeared to have sustained any permanent damage. (Cl. Ex. A, p. 63, 64) Claimant remained off work. (Cl. Ex. A, p. 73- 80) On October 11, 1990, Dr. Pechacek noted that her range of motion was normal. She had no atrophy in her hand. Her thumb and finger motions were normal. She was encouraged to move and use her wrist, hand and fingers. She was still unable to return to work in a packing house doing manual work activities. A recheck visit in four to six weeks was planned. (Cl. Ex. A, p. 81) Dr. Pechacek never examined or treated claimant again because she moved to Arlington, South Dakota in November of 1990. (Trans. p. 66) Arlington is 148 miles away from Sioux City, where the John Morrell plant is located. It would take claimant two hours to drive one way to Sioux City. (Trans. p. 64) It is clear that claimant never intended to return to work for defendant employer after she moved to Arlington, South Dakota. When she was asked whether she would commute to Sioux City she indicated that if she had returned to work she would have been transferred to defendant employer's Sioux Falls plant. (Trans. p. 82) Claimant never asked for a transfer to the Sioux Falls plant. After claimant moved to South Dakota defendants authorized treatment by John Ramsay, M.D. He first evaluated claimant on November 21, 1990 where she exhibited a positive Tinel's test. (Cl. Ex. A, p. 95) Nerve conduction studies done on December 3, 1990 were normal for each median, ulnar and radial nerves. (Def. Ex. 13) On December 10, 1990, claimant informed Dr. Ramsay that she was pregnant with her sixth child. Conservative treatment, including minimal medications and lots of range of motion and functional activity for the hand, was prescribed, but not the hard and persistent work which was required for any type of gainful employment. (Cl. Ex. A, p. 95) Claimant remained off work. Her sixth child was born on April 22, 1991. Claimant indicated to the GAB representative that she and her husband were going to move back to the Sioux City area so an appointment with John Kuhnlein was scheduled on May 16, 1991 to evaluate her current status. Claimant did not show up for the appointment. (Def. Ex. 14) Another appointment was scheduled for June 6, 1991. Claimant reported symptoms of numbness in all five fingers of her left hand with continued pain at the incision site in her left wrist. The pain was better with rest and worse with activity. Her pain was somewhat improved since the surgery. She told Dr. Kuhnlein that Dr. Ramsay wanted to perform ulnar nerve decompression at both elbows. That statement is not supported by Dr. Ramsay's notes. Nowhere does he mention that claimant needed ulnar decompression especially in light of her normal nerve conduction studies of December 1990. (Cl. Ex. A, p. 100) When Dr. Kuhnlein asked her about the scar on her right wrist, claimant forgot that she had carpal tunnel surgery in 1984. (Cl Ex. A, p. 100) Tinel's, Finkelstein's and Allen's tests were negative. Phalen's test produced some numbness in the second through fifth digits in both hands. Dr. Kuhnlein's impression was pain of unknown etiology. Her pain has continued unabated in the approximate nine to ten months since surgery despite the fact that she was completely off work. (Cl. Ex. A, p. 100) Dr. Kuhnlein did not perform tests or provide any treatment to claimant because she did not relocate to Sioux City. When the GAB representative found out in September of 1991 that claimant planned to continue living in South Dakota he asked Dr. Ramsay to again examine and treat claimant if treatment was necessary. Dr. Ramsay refused further treatment of claimant, because he believed claimant had forged his signature on off work slips in order to obtain group disability benefits from Enterprise Financial Group. Claimant filed for group disability benefits and submitted forms dated January 3, 1991, February 2, 1991, March 3, 1991, April 1, 1991, May 2, 1991 and June 2, 1991 which indicated that Dr. Ramsay had continued to provide treatment to claimant on a monthly basis through May 3, 1991. (Def. Ex. 18, pp. 1, 3, 5, 7, 9, 11; Cl. Ex. A, p. 86, 87, 90, 91, 92, 94) Enterprise, which had paid group disability benefits to the claimant for the period July 3, 1990 through May 2, 1991 based on the claim forms submitted to them by claimant, asked Dr. Ramsay to review the forms. Caroline Hsing, claims analyst for Enterprise, notified claimant by letter on June 10, 1991 that she had "contacted Dr. Ramsay's office and spoke to Ms. Eris Lenz who handles all the insurance paperwork. She requested that we [Enterprise] fax her all physician's statements completed from December 1990 through the present for verification of completion. She then contacted our office adviseing [sic] that the forms were not completed by Dr. Ramsay nor anyone in the office." (Def. Ex. 45) Dr. Ramsay specifically certified that each of the physician's statements from January 3, 1991 through June 2, 1991 were not completed by himself or by anyone authorized by him to complete them. (Def. Ex. 18, p. 2, 4, 6, 8, 10, 12) Contrary to claimant's assertion, it is clear that Dr. Ramsay believes that claimant, or someone acting on her behalf, forged his signature. The evidence supports his conclusion and the undersigned also believes that claimant or someone acting on her behalf forged the off work slips. On September 25, 1991 Dr. Ramsay wrote to GAB and stated: Jeri Dahl was a 37-year-old white female when I first saw her in November of 1990 after her move to the Brookings area and she was evaluated concerning her complaints of pain and numbness in her left wrist and also with complaints in her right wrist. Subsequent o that evaluation the patient provided other history about her pregnancy and aggressive therapy was halted until her delivery. My last contact with her was on December 10, 1990. Over the first four to six months of 1991 we began to get form letters from Workmen's Compensation Insurance about her availability for work and upon further investigation it was determined that my signature on these forms authorizing release from work were forged. At that point in time I contacted the patient and related to her that I no longer felt comfortable and confident in our doctor/patient relationship and I suggested that she continue her follow up with another physician. I am still of this opinion and therefore can not honor your request for further evaluation and treatment on this patient. If she needs assistance in facilitating referral to another physician, I will be more than happy to help in any way that I can. (Def. Ex. 19) When GAB learned that claimant had falsified work releases her temporary total disability benefits were terminated effective November 1, 1991. (Def. Ex. 47) GAB refused to recommence payment of disability benefits unless Dr. Ramsay would reverse his statement regarding the forgery of his signature. (Cl. Ex. A, p. 113) Dr. Ramsay would not reverse his statement. (Cl. Ex. A, p. 113) On October 11, 1991, claimant filled out and sent to the industrial commissioner's office, what is labeled "Petition To Change Primary Physicians" (Cl. Ex. A, p. 108) The undersigned is unclear why claimant did not comply with Iowa Code section 85.27 and the rules set out at 343 IAC 4.48 et. seq. if she desired alternate medical care. In any event, claimant's exhibit A, page 108, does not act to authorize claimant to secure treatment from unauthorized physicians, nor is it a proper petition for alternate medical care. Claimant was informed that she could seek an independent medical examination pursuant to Iowa Code section 85.39, in order to establish a basis for resumption of her temporary total disability benefits. (Cl. Ex. A, p. 113, Def. Ex. 48) Claimant never petitioned for an 85.39 independent medical examination. The medical administrator at the Brooking Clinic where Dr. Ramsay practiced was willing to provide a referral to another physician, if necessary. (Cl. Ex. A, p. 113) On September 18, 1991, Amiel N. Redfish, a physicians assistant, wrote that claimant had subjective complaints of pain in the hands, but seemed to have good hand functions. (Cl. Ex. A, p. 107) He declined to provide treatment. (Cl. Ex. A, p. 107) Claimant then visited, R. M. Bommersbach, D.C., an unauthorized chiropractor on October 10, 1991. Based on his first partial examination, Dr. Bommersbach reported that claimant complained of pain in her left shoulder and wrist as well as her right wrist which he thought might possibly be caused from repetitive work at defendant employer. Based on a partial examination he determined the claimant to be totally disabled because of wrist and shoulder disabilities (Cl. Ex. A, p. 109, 110) On October 10, 1991, he diagnosed claimant with cervical subluxation, thoracic outlet syndrome and tenosynovitis based on a partial examination and absolutely no objective test findings. (Cl. Ex. A, p. 112) On January 21, 1992, Dr. Bommersbach wrote, "I'm sure there is some type of work that this lady can do." He also stated that he was getting mixed signals from the claimant concerning her case. (Cl. Ex. A, p. 123) In December of 1991 Dr. Ramsay referred and transferred claimant's records to Peter K. Rodman, M.D. (Cl. Ex. A, p. 114) Dr. Rodman took claimant off work in December 1991. (Cl. Ex. A, p. 122) By March 17, 1992, Dr. Rodman, had determined that her examination was normal and claimant should phase back into work. All of the medical workups to that point had been essentially normal. He also felt that questions as far time off work in the past would be best handled by Dr. Ramsay and on March 17, 1992, he felt the patient could work. (Cl. Ex. A, p. 124) Dr. Rodman refused to offer an opinion as to whether claimant's alleged disability was related to her work for defendant employer. On April 13, 1992, Dr. Bommersbach wrote that claimant could have a 25 to 30 percent disability of the whole man, which sounded fair to him, but he did not give her a disability evaluation so by his own admission this is an arbitrary figure. Claimant was told by Dr. Bommersbach that his opinion was speculative and arbitrary. (Cl. Ex. A, p. 128) When asked to rate claimant's impairment, Dr. Bommersbach wrote to claimant and asked her: Before we examine you we need to have you write a long narrative concerning the history and treatment you have received including the names and addresses and approximate dates of other types of treatment rendered to you. This history should include date of injury (or when you first began having problems), doctor's names and addresses that you have seen and what they have done as far as treatment or examinations. I need to know the types of symptoms you initially started having, what types of symptoms you continue to have and the severity of these symptoms. I also need to know how this injury has affected your life, things you used to do that you can no longer do and a note on how you are trying to cope with this disorder such as limiting what you do. I would also like a percentage or a number amount that you feel that you are disabled. Does this affect your life 10%, 20%, 50%? I need to know whatever you feel you are disabled because of this disability. (emphasis added) (Def. Ex. 26) Dr. Bommersbach did not review claimant's medical records before he invited her to write her own disability rating. There is no evidence that Dr. Bommersbach used the criteria set out in the AMA Guides To The Evaluation of Permanent Impairment as adopted by 343 IAC 2.4 of the rules. Dr. Bommersbach's opinion regarding the extent of the claimant's permanent impairment are pure speculation and will be disregarded. Dr. Bommersbach never did submit a written evaluation, he just told claimant, according to her, as she relayed to the insurance company, that she had a 15 percent whole man disability. (Trans. p. 148) On June 7, 1992, claimant filed for unemployment insurance admitting that she had been released to return to work. (Cl. Ex. 62) On June 9, 1992, claimant was examined by Ronald O. Wyatt, M.D., an orthopedic surgeon. She had a very positive Phalen's test on both the right and left hand and a positive Tinel's test as well. (Cl. Ex. A, p. 138) Previous Tinel's tests a year earlier were negative. Dr. Wyatt referred her for EMG testing. Dr. Wyatt gave claimant an off work slip on June 9, 1992. (Cl. Ex. A, p. 139) Only two days prior to this claimant had filed for unemployment indicating she was ready, willing and able to work. EMG testing done on June 26, 1992 was normal for the median nerve and showed some rennervation for the left ulnar nerve. The tester indicated that some of the results could be from "decreased volitional effort." (Cl. Ex. A, p. 140, 142) Dr. Wyatt offered the opinion on June 18, 1992 that claimant could return to work and on June 30, 1992 authored a return to work slip indicating he suggested no repetitive work with her wrists. (Cl. Ex. A, p. 141) Claimant was released from his care. On a referral from her attorney claimant was seen by M. E. Rhoades, M.D., for an examination on August 24, 1992. Claimant complained of numbness in both arms and in her left shoulder. (Cl. Ex. A, p. 173) X-rays of the left shoulder in both internal and external rotation were within normal limits. (Def. Ex. 31a) Dr. Rhoades thought that claimant had subacromial bursitis and rotator cuff degeneration which were not related to her complaints of hand and arm pain and numbness. (Ex. A, p. 174) Claimant was referred to James W. Wiggs, M.D., a neurologist, for evaluation. (Cl. Ex. A, p. 174) Yet another set of nerve conduction studies were normal, revealing only a "very modest" slowing which the doctor attributed to the length of claimant's hands. (Cl. Ex. A, p. 148) In Dr. Wiggs' physical and neurological examination he noted that claimant had Tinel's signs at the wrong location and that the claimant was "not trying - stuttering give away" and that claimant had no difficulty with zippers and snaps. (Cl. Ex. A, p. 149) Dr. Wiggs determined that the neurological examination had been "contaminated by apparently functional generalization of deficit and exaggeration." (Cl. Ex. A, p. 147) Dr. Rhoades wrote to claimant's attorney and told him that claimant was not a candidate for any further surgery, nor did she have any objective evidence of median or ulnar nerve compression at the wrist or elbow. Based on her history he recommended she avoid repetitive motion activities. (Cl. Ex. A, p. 155) On March 10, 1993, claimant again visited Dr. Rhoades who determined she had full range of motion in her shoulders. Complaints of numbness in her hand did not follow any particular dermatonal distribution. Previous nerve conduction studies by Dr. Wiggs on September 4, 1992 did not show any evidence of nerve compression at the hands or wrist. (Cl. Ex. A, p. 166) Claimant was evaluated by Dr. Rhoades again on October 16, 1993. She had a popping and catching sensation in her left shoulder, but had full range of motion. (Cl. Ex. A, p. 175- 176) An MRI of the left shoulder revealed a small partial tear at the anterior aspect of the supraspinatus tendon of the left shoulder and mild compression of the supraspinatus muscle at the acromiclavicular joint. He felt the finding represented degenerative changes and was not a surgical problem. (Cl. Ex. A, p. 179) Dr. Rhoades wrote that he was unable to relate her current symptoms to her employment at John Morrell, Inc. He felt that there was no evidence of permanent impairment. He did suggest that she not be employed in repetitive motion activity. (Cl. Ex. A, p. 178, 179) Yet another set of nerve conduction studies performed on the claimant on December 13, 1993 were normal. There was no evidence of peripheral neuropathy or localized peripheral nerve entrapment in either of the claimant's arms. (Ex. A, p. 33) Claimant was evaluated by L.T. Donovan, D.O., on March 16, 1994. Dr. Donovan had a complete set of the claimant's medical records through October 30, 1993. (Def. Ex. 34) Dr. Donovan spent over five hours reviewing her medical records and dictating the extensive and comprehensive history set out in defendants' exhibit 34. His examination of claimant took one hour and fifteen minutes. (Def. Ex. 34, p. 14) Claimant demonstrated for Dr. Donovan her ability to work at shoulder level without any complaints of pain. (Def. Ex. 34, p. 2) Although he determined claimant had a left shoulder impingement syndrome, it was not related to her employment for defendant employer. Based on the AMA Guides to the Evaluation of Permanent Impairment, Fourth Edition, Chapter 3, he determined that claimant had no permanent impairment. (Def. Ex. 34, p. 13) Absolutely no restrictions have been placed on claimant's activities that relate to any complaint of shoulder or body as a whole problems. Claimant, in her brief, admits that her shoulder injury occurred on March 27, 1990, not on June 6, 1990, which is the subject of this petition. "A separate date of injury shall be alleged and a separate original notice and petition shall be filed on account of each injury, gradual injury . . . alleged by an employee." Rule 343 IAC 4.6 The date of injury alleged in this petition and stipulated to by defendant is June 6, 1990. Claimant seeks payment of medical bills set out in claimant's exhibit B. Most of the medical bills for which she seeks payment are for treatment from unauthorized providers. A number of the bills make it unclear what treatment was provided to claimant. ANALYSIS AND CONCLUSIONS OF LAW The first issue to be determined is whether claimant's injury has resulted in any permanent disability, and if so, whether that disability is causally connected to her work injury of June 6, 1990. 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 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 does not argue in her brief that any doctor has determined that she has any permanent impairment as a result of her work injury of June 6, 1990. Instead, she argues that she is entitled to temporary total and or temporary partial disability benefits until she is able to return to work for defendant employer. In essence, claimant is arguing that she is permanently and totally disabled. The evidence presented does not come close to establishing that claimant is permanently and totally disabled. Claimant has failed to prove by a preponderance of the evidence that she has sustained any permanent impairment. The only medical provider that could arguably be said to have attributed permanent impairment to claimant is Dr. Bommersbach. As set out in the findings of fact his opinions are singularly unpersuasive. He invited claimant to provide her own impairment rating based on what she thought she should have. His opinion, where set out, is in his own words, speculative. He did not have an accurate history, nor had he reviewed all of the medical records. Claimant points out that workers compensation laws should be liberally construed. While it is true that the law should be liberally construed, facts are not. Claimant has no objective findings to indicate she has any permanent impairment. Numerous nerve conduction studies and EMG's are normal. Claimant's work restrictions are based solely on her subjective complaints of pain to medical providers. Because they are unsupported by objective medical evidence of permanent impairment, claimant's work restrictions cannot be used to establish permanent impairment. Dr. Donovan's evaluation is the most persuasive. He performed extensive document review of claimant's medical records. He spent over an hour with the claimant during the examination and his report reveals a particular attention to detail. Dr. Donovan's determination that claimant has no permanent impairment is accepted. As Dr. Donovan pointed out there is no objective evidence of any impairment of the claimant's left shoulder or body as a whole. Claimant's examination with Dr. Donovan is particularly revealing in that claimant had no trouble working at shoulder level in front of him. Based on the totality of the medical evidence, particularly on Dr. Donovan's report, claimant has failed to prove her injury resulted in any permanent impairment, thus the question of causal connection is moot as is the question of entitlement to permanent partial disability benefits. The next issue to be determined is claimant's entitlement to temporary total disability benefits. Iowa Code section 85.33 provides: [The] employer shall pay to an employee for injury producing temporary total disability weekly compensation benefits . . . until the employee has returned to work or is medically capable of returning to employment substantially similar to the employment in which the employee was engaged at the time of injury, whichever occurs first. 2. "Temporary partial disability" or "temporarily, partially disabled" means the condition of an employee for whom it is medically indicted that the employee is not capable of returning to employment substantially similar to the employment in which the employee was engaged at the time of injury, but is able to perform other work consistent with the employee's disability. Temporary total disability does not necessarily contemplate that all residuals from an injury be completely healed and returned to normal. It is only when the evidence shows that because of the effects of the injury gainful employment cannot be pursued. McDonald v. Wilson Foods Corp., Thirty-fourth Biennial Rep., Iowa Industrial Comm'r 197, 199 (App. 1979). Claimant was paid temporary total disability benefits for the period June 7, 1990 through November 1, 1991. Claimant's condition has not changed since she last saw Dr. Pechacek on October 11, 1990 when he released her to return to work so long as she did not engage in repetitive or continuous activities. Defendants argue that claimant's temporary total disability benefits should cease on that date. It is clear that claimant's condition has not changed since that time. It is also clear that claimant never intended to return to work for defendant after she and her family moved 148 miles away in November of 1990. Claimant's work restrictions, based as they are on her subjective complaints alone, do not amount to disability. Although claimant may never be able to return to defendant employer, that is due in large measure to her own choice. The evidence does not establish that she is unsuited for any employment. Claimant has been released to work, albeit with restrictions, since October 11, 1990. She has made virtually no effort to find other work, even after she and her family moved 148 miles away. Claimant's actions speak much more loudly than her words, it is clear that claimant doesn't want to return to work. By her own admission no doctor since she saw Dr. Pechacek has helped ial Report of the Industrial Commissioner 78 (Review-reopen 1975). Claimant also seeks to recover medical expenses incurred in her treatment. Those expenses are set forth on the medical expense exhibit which is unnumbered. Those expenses total $2,522.37. As indicated by the parties at the commencement of the hearing a general award of medical expenses is all that is required and the parties would themselves conduct the actual computations. It is therefore determined that the defendants in this case are responsible for payment of claimant's medical expenses as set for in the medical exhibit. With regard to the weekly compensation and medical expenses defendants are entitled to credit under section 85.38(2) for all amounts paid by group plans and for all wages paid in accordance with rule 343 IAC 8.4. Claimant also seeks to recover costs in the amount of $1,417.88. When evaluating the statement it is determined that the costs which claimant is entitled to recover are as follows: Dr. Richard Neiman evaluation $150.00 Division of Industrial Services filing fee 65.00 Krista Secman, C.S.R, deposition 111.80 Krista Irish, C.S.R., deposition 235.20 Iowa Medical Clinic, Dr. Brooks witness fee 150.00 TOTAL $712.00 ORDER IT IS THEREFORE ORDERED that defendants pay Sherry Pumphrey weekly compensation for permanent total disability at the stipulated rate of two hundred forty-six and 82/100 dollars ($246.82) per week payable commencing May 4, 1992. The amount thereof is that past due and owing shall be paid to claimant in a lump sum together with interest pursuant to section 85.30 after defendants are given credit pursuant to section 85.38(2) and rule 343 IAC 8.4. It is further ordered that defendants pay claimant's medical expenses as set forth in the medical expense exhibit pursuant to section 85.27. Defendants are entitled to credit under section 85.38(2). It is further ordered that the costs of this action are assessed against defendants in the amount of seven hundred twelve dollars ($712). Defendants shall file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this __________ day of May, 1995. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Thomas Wertz Attorney at Law 4089 21st Ave SW STE 114 Cedar Rapids, Iowa 52404 Mr. Harry Dahl, Jr. Attorney at Law 974 - 73rd St, STE 16 Des Moines, Iowa 50312 5-1402.40; 5-1801; 5-2500; Filed May 10, 1995 Teresa K. Hillary BEFORE THE IOWA INDUSTRIAL COMMISSIONER JERI L. DAHL, Claimant, vs. File No. 954639 JOHN MORRELL & CO., 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. ------------------------------------------------------------------- 5-1402.40; 5-1801; 5-2500 Claimant failed to prove by a preponderance of the evidence that her injury resulted in permanent disability. Claimant awarded only temporary total disability benefits. 5-2909 Filed December 28, 1993 PATRICIA J. LANTZ BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JAMES W. CARSON, Claimant, File Nos. 954876 1033988 vs. D E C I S I O N PHYSICAL DISTRIBUTION/ MIDWEST DRIVERS, O N Employer, E X P E D I T E D and H E A R I N G THE TRAVELERS INSURANCE COMPANY, Insurance Carrier, Defendants. ___________________________________________________________ 5-2909 Defendant ordered to reimburse claimant $750.00 for costs of an indepemdent medical examination. Fee found to be reasonable. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JAMES W. CARSON, Claimant, File Nos. 954876 1033988 vs. D E C I S I O N PHYSICAL DISTRIBUTION/ MIDWEST DRIVERS, O N Employer, E X P E D I T E D and H E A R I N G THE TRAVELERS INSURANCE COMPANY, Insurance Carrier, Defendants. ___________________________________________________________ STATEMENT OF THE CASE An expedited hearing was held on December 21, 1993. The record consists of testimony from the claimant; claimant's exhibits 1 and 2; and, defendants' exhibits A-H. FINDINGS OF FACTS On March 30, 1993, claimant filed two petitions in arbitration. One petition alleges an injury date of July 6, 1990, with the injury affecting the back, neck and shoulders. The second petition alleges an injury date of October 2, 1992, with the injury affecting the back, neck and shoulders. Defendants deny liability on the alleged injury of July 6, 1990, but admit liability for the second injury of October 2, 1992. On October 15, 1993, claimant filed an original notice and petition for an independent medical examination (IME) to be conducted by Martin Rosenfeld, D.O., and underwent said examination on November 15, 1993. The examination cost $750.00. Claimant paid Dr. Rosenfeld, and seeks reimbursement. While defendants deny that claimant sustained an injury on July 6, 1990, which arose out of and in the course of his employment, they admit that he sustained a work-related injury on October 2, 1992. Defendants' are willing to pay for an IME, but advance that Dr. Rosenfeld's fee is unreasonable. Defendants submit IME fees from several local physicians and a claims adjuster's opinion pertaining to fees charged in Des Moines. The fees ranged from $150.00 to $500.00. Claimant relies on a recent appeal decision to support his argument that $750.00 is a reasonable fee for the services Page 2 performed by Dr. Rosenfeld. Wright vs. Firestone, et al, File number 1023144, (App. Decn. April 29, 1993). In Wright, the commissioner affirmed a deputy's prior decision which held that Dr. Rosenfeld's fee of $600.00 for an independent medical evaluation for an upper extremity was reasonable. In Wright, the defendants had submitted another physician's opinion that a reasonable charge would total $350.00 to $400.00. ANALYSIS AND CONCLUSIONS OF LAW Iowa Code section 85.39 provides in pertinent part: If an evaluation of permanent disability has been made by a physician retained by the employer and the employee believes this evaluation to be too low, the employee shall, upon application to the commissioner and upon delivery of a copy of the application to the employer and its insurance carrier, be reimbursed by the employer the reasonable fee for a subsequent examination by a physician of the employee's own choice, and reasonably necessary transportation expenses incurred for the examination. The physician chosen by the employee has the right to confer with and obtain from the employer-retained physician sufficient history of the injury to make a proper examination. Section 85.39 permits an employee to be reimbursed for subsequent examination by a physician of the employee's choice where an employer-retained physician has previously evaluated "permanent disability" and the employee believes that the initial evaluation is too low. The section also permits reimbursement for reasonably necessary transportation expenses incurred and for any wage loss occasioned by the employee's attending the subsequent examination. Defendants are responsible only for reasonable fees associated with claimant's independent medical examination. Claimant has the burden of proving the reasonableness of the expenses incurred for the examination. See Schintgen v. Economy Fire & Casualty Co., File No. 855298 (App. April 26, 1991). Defendants' liability for claimant's injury must be established before defendants are obligated to reimburse claimant for independent medical examination. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). It is not necessary for claimant to obtain prior approval of defendants or that claimant file an application with the industrial commissioner's office prior to seeing a medical examiner. Vaughn v. Iowa Power, Inc., File No. 925283 (Arbitration Decision, August 5, 1992). Nor is it necessary for claimant to apply for reimbursement for an independent medical examination by a physician who is retained by claimant prior to the examination or prior to the hearing. Pirozek v. Swift Independent Packing and Second Injury Fund of Iowa, File Nos. 753643, 753642, 724893 (Appeal Decision 1987). Rule 343 IAC 4.44(10)"d" provides: "The amount charged for services, supplies and devices provided as part of a course Page 3 of treatment selected by a treating physician or practitioner is an expression of the provider's opinion that the amount charged is reasonable and raises an inference that the charge made is reasonable." Payment of medical fees can constitute evidence of their reasonableness and, in the absence of contrary evidence, is sufficient to carry claimant's burden of proving that a medical fee is reasonable. Schneider v. Prairie Contractors, Inc., Appeal Decision, April 20, 1992 (#869747). Because claimant has paid the bill and because of the inference of reasonableness in rule 343 IAC 4.44(10)"d", supra, claimant has made a prima facie showing that the fee for Dr. Rosenfeld's independent medical examination. The defendants have not submitted sufficient evidence to overcome claimant's prima facie showing. Although several providers indicated what they would charge, no one indicated that Dr. Rosenfeld's fee was unreasonable. As a result, it is found that Dr. Rosenfeld's fee for an independent medical examination is reasonable. ORDER THEREFORE, it is ordered: That claimant's petition for the independent medical examination is granted and defendants shall reimburse claimant seven hundred fifty dollars ($750) for the reasonable expenses of Dr. Rosenfeld. That defendants shall pay the costs of this proceeding. Signed and filed this ____ day of December, 1993 ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Robert W Pratt Attorney at Law 6959 University Avenue Des Moines Iowa 50311-1540 Mr John E Swanson Attorney at Law 8th Flr Fleming Building 218 Sixth Avenue Des Moines Iowa 50309 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ BARRY L. WILLIS, : : File Nos. 955043 Claimant, : 968111 : 1025734 vs. : 1025735 : WOODWARD STATE HOSPITAL : SCHOOL, A R B I T R A T I O N : Employer, : D E C I S I O N : and : : STARTE OF IOWA, : : Insurance Carrier, : Defendants. : ------------------------------------------------------------ STATEMENT OF THE CASE This is a proceeding in arbitration brought by claimant, Barry Willis, against his former employer, Woodward State Hospital School, and its insurance carrier, the State of Iowa. Claimant has filed four petitions, and alleges injury dates of July 10, 1990, November 15, 1990, July 29, 1992 and September 8, 1992. All petitions allege injuries to his back and legs, and all petitions were filed on the same date, October 23, 1992. All cases were heard before the undersigned deputy industrial commissioner on February 18, 1994 at Des Moines, Iowa. The record consists of testimony from the claimant, Jerry Gunderson (maintenance repair worker for the State of Iowa), Sandra Streeter (workers' compensation coordinator for the Woodward State Hospital-School), Charles Schneider (plant operations manager and claimant's former supervisor); joint exhibits A-J; and, claimant's exhibits 1-24. PRELIMINARY MATTERS A review of the files in this case reveals that first reports of injury have not been submitted for file number 1025735 and 1025734. The defendants are ordered to file the first reports as soon as possible. ISSUES For file number 955043 and file number 968111, the parties have submitted the following issue to be resolved: Page 2 1. Whether claimant is entitled to permanent partial disability benefits due to injuries he sustained on July 3, 1990 and November 15, 1990. For file number 1025734 and file number 1025735, the parties submit the following issues for resolution: 1. Whether claimant sustained injuries on July 29, 1992 and September 8, 1992 which arose out of and in the course of his employment; 2. Whether claimant is entitled to temporary total, healing period or permanent partial disability benefits; 3. Whether claimant is entitled to medical benefits pursuant to Iowa Code section 85.27; 4. Whether defendants are entitled to credits pursuant to Iowa Code section 85.38(2) for payment of disability income totalling $15,359.72. According to claimant's attorney's handwritten note on the hearing report, claimant contends "if given worker (sic) compensation, when applied would have also received $50.00 per month LTD. Therefore, LTD credit be reduced $50.00 for each month received." FINDINGS OF FACT The undersigned deputy, having reviewed all of the evidence received, finds the following facts: Direct examination of the claimant was very disjointed, and failed to expose some relevant and basic information. As a result, the recitation of the facts of this case have been glued together to the best of the undersigned's ability. Additionally, the evidence is duplicative (even triplicated in many instances), poorly organized (actually unorganized) and some of the documents are poorly photocopied and/or illegible. The direct examination did not solicit claimant's age or marital status (however, in an effort to at least ascertain claimant's age, the undersigned reviewed a first report of injury, filed July 19, 1990, which states that claimant was 32 years of age; therefore, claimant is currently probably 35 or 36 years of age). Claimant is a high school graduate (year unknown) and served in the United States Air Force for four years. While in the Air Force, he received training in waste water and water treatment. Claimant began working as a water disposal plant operator for the State of Iowa in February of 1985. It is unknown whether claimant had ever held gainful employment prior to his employment with the state. It is also unknown whether claimant has tried to secure other employment since September 8, 1992, the last day he worked for the state. In the past, claimant has had on-the-job injuries which resulted in back problems. Most of the incidents were memorialized in a daily log book kept by claimant. Page 3 (Claimant's Exhibit 3) In June of 1990, claimant was at home building a fence, felt muscle spasms in his back, and sought medical treatment. On July 3, 1990, he was at work lifting chemicals, walked up some stairs, and stated that his back "went out." He reported the injury to his supervisor and went home. He was sent to Camilla Frederick, M.D. While Dr. Frederick's notes are scattered throughout the claimant's evidence, a report, dated October 18, 1993, indicates that Dr. Frederick treated claimant from July 12, 1990 through January of 1991 for a lumbar disk syndrome. She made the following diagnosis and comments regarding claimant's condition: [D]isk herniation at L2 L3 level resulting in a moderate compression of the thecal sac at L2 L3. Disk bulges at L4 L5 and L5 S1, slightly more prominent to the left of the mid line. Significance of which was questionable. He actually had multiple episodes where he got into trouble with his low back, both work related and non work related including 7-3-90 when he was at work walking up a flight of spiral stair case and had increasing low back pain, then again in 11-90 when he was just at work, lifted 80 lb bag when he start having muscle spasm. He also had at least one non work related aggravation to the low back when he was at home and went to look over his engine to see if there were any problems, which caused him to have muscle spasms in the low back, that was 12-27-90. He was treated conservatively by Dr. Carlson because of a loss of reflex, but he continued to be treated successfully just with conservative management and was returned back to work at his full duty for which he had to lift at least 60 lbs on 1-24-91. At that time I would have expected him to have been recovered from that problem, although because of his continued episodes, did not place him at MMI because I had no way to predict what would happen in the future with the low back. It hadn't been stable enough in the 7-90 and 1-91 to make a prediction about MMI. At the final time of my treatment, the diagnosis was unchanged from that previously dictated. The healing period had not been completed. I certainly think the injuries of 7-3 and 11-15-90 aggravated and contributed to his back condition. To my knowledge, he had not had a previous MRI, so I do not know if he had any preexisting conditions. He did report on his initial visit that he had hurt himself at home working on fence, but then it got aggravated on 7-3-90 while he was working. I would certainly not say that the injuries of 7-3-90 and 11-15-90 were the sole cause of low back problems for Mr. Willis, but that they did Page 4 contribute to his symptomatology. I would state that the initial injury was at home and occurred one month prior to his treatment for the work related aggravation. At the time of my last visit, he really had full range of motion and according to the AMA Guidelines 3rd Edition revised, I would give him a rating of 7% of the body as a whole at the time I left him. Again, remembering that I did not feel he was at MMI, I cannot predict if he is at MMI now. (Cl Ex. 11A) Claimant contends that Dr. Frederick's initial release to return to work included a lifting restriction of not more than 25 pounds, but due to the state's requirements that he be able to lift 50 pounds, claimant returned to Dr. Frederick and requested a 60 pound lifting restriction. This is confirmed in the medical documentation. (Cl. Exs. 10 and 11) On November 15, 1990, claimant was performing his normal job duties of lifting bags filled with chemicals. He felt spasms in his back, and had to go home. He was off of work for several weeks, and returned to Dr. Frederick for treatment. She eventually referred him to Thomas Carlstrom, M.D., who advised claimant to continue bed rest, and undergo physical therapy. Dr. Carlstrom reviewed the MRI scan and diagnosed a herniated disc at the L2-3 level, and a congenitally small spinal canal, as well as other small disc defects at other levels (Cl. Ex. 5) In December of 1990, Dr. Frederick wrote to the state and advised them of claimant's condition. While the undersigned believes her letter to be a bit confusing, apparently Dr. Frederick was of the opinion that claimant could return to work with a 50 pound lifting restriction. However, she did not believe he had reached maximum medical improvement. (Cl. Ex. 11) Claimant returned to work, but was place on probation due to his lifting restrictions. He was given a five-gallon bucket and a knife which allowed him to cut open the chemical bags, fill the bucket and transport the bucket to the treatment facility. Apparently, this is how claimant performed the job for almost two years, until his next alleged injury date, July of 1992. On July 29, 1992, claimant was again lifting chemicals, and felt pain and stiffness in his back. He went home, but did not immediately tell his supervisors that he had hurt himself, because he was concerned about job security. He was off of work until August 21, 1992, and visited his family physician, who referred him to William Boulden, M.D. Dr. Boulden ordered another MRI, which showed degenerative disc disease from L2-3 through L5-S1, as well as a herniation at L2-3, L3-4 and a protrusion at L4-5. (Cl. Ex. 14) Dr. Boulden recommended surgery and physical therapy. Claimant attended physical therapy sessions on seven occasions from September through November of 1992. He was released with instructions to continue his exercise program aggressively. In January of 1993, Dr. Boulden restricted claimant's activities to no standing and walking more than 30 to 45 Page 5 minutes, ability to change position, and no bending, twisting or lifting. (Cl. Exs. 8, 14 and 19). Claimant sought treatment from William Durbin from July through August of 1990 and August of 1992. The notes in 1990 indicate a work injury; the 1992 notes do not. (Cl. Exs. 6 and 21) Claimant also sought treatment from John Groelushen, D.C., during August of 1992 and at various times in 1990. Again, Dr. Groelushen's notes indicate claimant was suffering from back pain and spasms, but there is no opinion that the problems were work-related. (Cl. Exs. 1 and 4) Apparently, in December of 1992, claimant underwent an evaluation performed by a doctor (signature is illegible) for the purpose of accessing social security disability benefits. While the report indicates claimant has a 20 lifting limitation, and can only climb, balance, stoop, kneel, crouch or crawl on an occasional basis, there is nothing in the report to suggest that his condition is work-related. (Cl. Ex.. 16) In March of 1993, claimant underwent an evaluation at the Health and Rehabilitation Center. According to the history provided by claimant, his back problems started in August of 1990 while he was at work. While the results of the test are barely readable, apparently claimant was within the normal range of motion on most of the tests undertaken. (Cl. Ex.. 17) In July of 1993, claimant underwent a functional capacities evaluation, administered by Michael LaVelle, a physical therapist with the West Des Moines Sports Medicine and Physical Therapy Center. Again, while the report confirms claimant's back condition and limitations, there is no indication that either stems from work-related injuries. (Cl. Exs. 9 and 13) In August of 1993, claimant received an evaluation from the Iowa State Vocational Rehabilitation Services. The report indicates claimant was too disabled to continue with an evaluation, and it was recommended he be awarded social security disability. Some of the accompanying documents within this exhibit are illegible and/or poorly photocopied. (Cl. Ex. 14) In November of 1993, claimant received yet another evaluation, this one at the University of Iowa Spine Diagnostic and Treatment Center. Apparently, claimant was unwilling to undertake any treatment offered at the University. (Cl. Ex.. 20) Claimant has had several incidents while at home which aggravated his back condition, including leaning over to look under the hood of a car, and building a fence. Jerry Gunderson, a maintenance repair worker and co-worker of claimant's, testified that he wrote a statement in October of 1992. The statement, which is not notarized, Page 6 states the following information: Barry told me he was leaving at (I think) noon. He said that his back was hurting. He said that he had hurted [sic] it unloading chlorine bottles about 3 weeks before. He also said he [was] working on his truck on the weekend and his hip pop [sic]. Sept. 8 not working that day. (Cl. Ex. 23). Sandra Street testified on behalf of the defendants. She stated that claimant did not report any injuries which occurred in 1992. She did state that in August of 1992, claimant missed time from work because his back "went out" while working at home. Charles Schneider also testified on behalf of the defendants. He was claimant's direct supervisor, and was aware of claimant's ongoing back problems. He was aware of the 1990 injuries and the resulting work restrictions, but offered that claimant did not report the 1992 injuries, and that claimant did not fill out any accident reports. Claimant confirmed that he did not fill out any accident reports, but explained that he believed there would be retaliation if he did, based on the treatment he received from the employer due to the 1990 injuries. Whether this is true is irrelevant; claimant was aware of the procedures used to report work injuries. ANALYSIS AND CONCLUSIONS OF LAW With respect to file number 955043 and file number 968111, the sole issue to be addressed is whether claimant sustained a permanent injury which would allow him to recover permanent partial disability benefits. 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). Page 7 While a claimant is not entitled to compensation for the results of a preexisting injury or disease, its mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956). If the claimant had a preexisting condition or disability that is 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). This has been an extremely difficult case to analyze. Given the facts and the extent of the medical treatment involved, better organization and presentation of the case was warranted. In fact, it was demanded. Weeding through the evidence presented, and trying to determine when and where claimant was treated, and trying desperately to find opinions that were necessary to prove claimant's case, was not unlike trying to unscramble an omelet. Dr. Frederick was the only physician involved in the case during claimant's treatment for the injuries in 1990. Her report, dated October 18, 1993, indicates that his work activities aggravated and contributed to his back condition. In her report, she also related that claimant initially injured himself at home while working on a fence. She was unable to state that the injuries in 1990 were the sole cause of claimant's low back problems. In fact, she stated that the initial injury occurred at home. During her final examination, claimant had full range of motion, but she assessed his condition as 7 percent impairment to the body as a whole. Dr. Frederick's opinion is devoid of any apportionment which would assess the percentage of impairment to the initial injury at home, and the aggravations in July and November of 1990. Her own report indicates claimant initial problems began after he hurt himself at home. After the aggravations on the job, claimant was able to return to his regular job duties, although a lifting restriction was imposed after the 1990 injury. Likewise, the employer accommodated claimant's restrictions by providing an alternative way to complete his assigned tasks. In reviewing the evidence as a whole, it is determined that claimant has shown, by a preponderance of the evidence, that he sustained a permanent injury. As he has sustained injuries to the body as a whole, an evaluation of his industrial disability is warranted, but will be deferred until the other issues in the case are resolved. With respect to file number 1025735 and file number 1025734, the first issue to address is whether claimant sustained injuries on July 29, 1992 and September 8, 1992 which arose out of and in the course of his employment. The claimant has the burden of proving by a preponderance of the evidence that the alleged injury Page 8 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). After reviewing the record, it is determined that claimant did not prove by a preponderance that he sustained work-related injuries in 1992. In addition to the medical records, which make no mention of any specific incidents, Mr. Gunderson's statement is enlightening. He stated that claimant left work because his back was hurting, not that he had hurt it. In fact, although the statement refers to an incident with chlorine bottles, the incident supposedly happened three weeks prior to July 29, 1992. This is inconsistent with claimant's testimony, and his pleadings. Likewise, Mr. Gunderson stated that claimant hurt his back while working on a truck. As a result, claimant takes nothing for file number 1025735 and file number 1025735. Claimant's industrial disability due to the 1990 injuries will now be discussed. Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, expe rience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disabil ity. This is so as impairment and disability are not syn onymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the 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 Page 9 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). Claimant is currently in his mid-30s and in the prime years of his earning potential. Claimant has some serious back problems, although his determination to conquer them and gain some type of employment is very questionable. This is addressed particularly in the reports from the University of Iowa. Likewise, claimant has continually stated that the only job he wants is his job as a waste water treatment plant operator. This may be unrealistic, particularly in light of the demands of the job. While the undersigned realizes this is a difficult concept to accept, claimant may have to explore other career opportunities. Claimant appeared to be of at least average intelligence. Retraining seems like a good option, and it is unfortunate that no vocational rehabilitation was successfully undertaken. Claimant was able to return to his job after the injuries. The employer accommodated his restrictions. Dr. Frederick indicated that he had sustained a 7 percent impairment, although her report intimates that some of the impairment was due to an injury claimant sustained while he was working at home. After considering all of the factors enumerated above, it is determined that claimant has sustained a 20 percent industrial disability. Finally, the parties stipulated that claimant's award should commence on January 24, 1991 for the 1990 injuries. However, claimant's workers' compensation rate is different for the two injury dates in 1990. Given absolutely no guidance from either party as to what rate should prevail, the undersigned finds that after the initial injury, the MRI reports indicated claimant had a herniated disc. It was also after the initial injury that claimant returned to work Page 10 with lifting restrictions. The November 1990 injury appears to be only a minor aggravations which did not worsen claimant's condition. As a result, the lower rate of $266.34 shall prevail. Iowa Code section 85.38 states, in relevant part: 2. Credit for benefits paid under group plants. In the event the disabled employee shall receive any benefits, including medical, surgical or hospital benefits, under any group plan covering nonoccupational disabilities contributed to wholly or partially by the employer, which benefits should not have been paid or payable if any rights of recovery existed under this chapter, chapter 85A or chapter 85B, then such amounts so paid to said employee from any such group plan shall be credited to or against any compensation payments, including medical, surgical or hospital, made or to be made under this chapter, chapter 85A or chapter 85B. Such amounts so credited shall be deducted from the payments made under these chapters. Any nonoccupational plan shall be reimbursed in the amount so deducted. This section shall not apply to payments made under any group plan which would have been payable even though there was an injury under this chapter or an occupational disease under chapter 85A or an occupational hearing loss under chapter 85B. Any employer receiving such credit shall keep such employee safe and harmless from any and all claims or liabilities that may be made against them by reason of having received such payments only to the extent of such credit. Likewise, the undersigned was provided with no documentation supporting claimant's argument that any credit against his long-term disability payments should be reduced by $50. Additionally, the undersigned was unable to determine if the disability payments were made pursuant to policies described in the aforementioned code section. It appears that credit under Iowa Code section 85.38 is warranted. ORDER THEREFORE, it is ordered for file number 955043 and file number 968111: That defendants shall pay claimant one hundred (100) weeks of permanent partial disability benefits commencing January 24, 1991 at the rate of two hundred sixty-six and 34/100 dollars ($266.34) per week. That accrued benefits shall be paid in a lump sum, and credit shall be given against the award for permanent partial disability benefits previously paid. Page 11 That defendants shall pay interest on the award pursuant to Iowa Code section 85.20. That defendants shall pay the costs of this action. That there shall be a credit against the award pursuant to Iowa Code section 85.38(2). That defendants shall file a claim activity report as required by the agency. FURTHERMORE, it is ordered: TThat claimant take nothing for file number 1025735 and file number 1025734. That each party shall pay the costs of pursuing of defending these files. Signed and filed this ____ day of March, 1994. ______________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Michael E Hansen Attorney at Law 2706 Grand Ave Des Moines IA 50312 Mr Ronald G Cable Attorney at Law 414 E Grand Ave Des Moines IA 50309 Ms. Joanne Moeller Assistant Attorney General Tort Claims Division Hoover State Office Bldg Des Moines IA 50319 5-1803 Filed March 28, 1994 Patricia J. Lantz BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ BARRY L. WILLIS, : File Nos. 955043 Claimant, : 968111 : 1025734 vs. : 1025735 : WOODWARD STATE HOSPITAL : SCHOOL, A R B I T R A T I O N : Employer, : D E C I S I O N : and : : STARTE OF IOWA, : : Insurance Carrier, : Defendants. : ------------------------------------------------------------ 5-1803 Claimant awarded 10% industrial disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ BARRY L. WILLIS, : : File Nos. 955043 Claimant, : 968111 : 1025734 vs. : 1025735 : WOODWARD STATE HOSPITAL : SCHOOL, : C O R R E C T E D : Employer, : O R D E R : and : : STARTE OF IOWA, : : Insurance Carrier, : Defendants. : ------------------------------------------------------------ Upon reconsideration, urged by claimant, the order concerning file numbers 955043 and 968111 is corrected as follows: ORDER THEREFORE, it is ordered for file number 955043 and file number 968111: That defendants shall pay claimant one hundred (100) weeks of permanent partial disability benefits commencing January 24, 1991 at the rate of two hundred sixty-six and 34/100 dollars ($266.34) per week. That accrued benefits shall be paid in a lump sum, and credit shall be given against the award for permanent partial disability benefits previously paid. That defendants shall pay interest on the award pursuant to Iowa Code section 85.20. That defendants shall pay the costs of this action. That defendants shall file a claim activity report as required by the agency. FURTHERMORE, it is ordered: That claimant take nothing for file number 1025735 and file number 1025734. That each party shall pay the costs of pursuing of defending these files. That portion of the decision which discusses credits under Iowa Code section 85.38(2) is stricken. In all other respects, the decision remains the same. Page 2 Signed and filed this ____ day of April, 1994. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Michael E Hansen Attorney at Law 2706 Grand Ave Des Moines IA 50312 Mr Ronald G Cable Attorney at Law 414 E Grand Ave Des Moines IA 50309 Ms. Joanne Moeller Assistant Attorney General Tort Claims Division Hoover State Office Bldg Des Moines IA 50319 Page 1 before the iowa industrial commissioner ____________________________________________________________ : JAMES L MCKERNAN, : : Claimant, : : vs. : : File No. 955069 MORNINGSIDE COLLEGE, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by James L. McKernan against his former employer Morningside College based upon an injury that occurred on March 29, 1990. The employer admits that McKernan injured his leg on that date, but denies liability for any other injury, in particular, the respiratory ailment which McKernan asserts as having resulted from anesthesia used when performing surgery upon his leg. The duration of the hearing period is disputed. The nature and extent of permanent disability is disputed. Defendants seek credit under section 85.38(2) for group disability income benefits which have been paid in the amount of $9,061.86. Defendants also seek credit under section 85.38(2) for the medical expenses paid by the workers' compensation carrier in the amount of $7,722.11 (see paragraph nine of the prehearing report). The rate of compensation was stipulated at hearing to be $216.62 per week. That rate is correct under the evidence which is in the record. Defendants have paid 49 3/7 weeks of compensation at the correct rate prior to hearing. The case was heard at Sioux City, Iowa, on September 23, 1992. The record consists of testimony from James McKernan and Alice Joann McKernan. The record also contains joint exhibits 1 through 37, claimant's exhibits 1, 3, 5, 6, 8, and 14; and defendants' exhibits 1 and 2. findings of fact Having considered all the evidence received, together with the appearance and demeanor of the witnesses, the following findings of fact are made: James L. McKernan is a 56-year-old married man who injured his left knee on March 29, 1990, while working in a ditch for his employer, Morningside College. He continued Page 2 to work through the end of the work day but on March 30, 1990, sought medical care. He was referred to Orthopedic Surgeon Duane K. Nelson, M.D. A trial of conservative care was attempted unsuccessfully (exhibit 12, page 1). Eventually, on April 23, 1990, Dr. Nelson performed arthroscopic surgery in which he removed a torn portion of the claimant's lateral meniscus (ex. 12, p. 3). Approximately three days following the surgery claimant began developing respiratory complaints and consulted his family physician Steven F. Gordon, M.D. (ex. 6). Pulmonary function studies were normal except for one portion of the test. Claimant was provided with a Ventolin inhaler. Notes of May 10, 1990, indicated that the Ventolin worked well but that claimant still had wheezing. Claimant was referred to a pulmonary specialist, Craig W. Bainbridge, M.D. Pulmonary function studies were considered to be normal overall, but the claimant's FEF capacity was slightly decreased (exs. 18 & 22). A ventilation profusion lung scan was entirely negative and showed no change from a scan which had been conducted on October 20, 1989 (exs. 19 & 20). It should be noted that the record contains pulmonary function studies in exhibit 22 at page 3 which appear to be dated September 4, 1986. Those are actually the studies from April 27, 1990. The results are identical to those shown in exhibit 6 for the studies conducted on April 27, 1990. It should be noted that with use of a bronchodilator the FEF capacity improved to nearly normal (ex. 22, p. 2). Dr. Bainbridge was unable to develop a clear diagnosis but he suspected that the claimant had some asthma. Claimant's reported symptoms did not improve with Prednisone or bronchodilators. On September 27, 1990, Dr. Bainbridge released the claimant from his care (ex. 24). Dr. Bainbridge has subsequently reported that claimant is totally and permanently disabled due to very severe obstructive airways disease (ex. 25). Dr. Bainbridge does not at any point attribute the disease to any particular causative factor. Claimant was evaluated by Vito A. Angelillio, M.D., on August 22, 1990. Pulmonary function studies showed no obstructive dysfunction. Other studies were within normal limits. An attempted treadmill test was unreliable because claimant hyperventilated before starting the test and continued to hyperventilate until the test was discontinued. A methacholine challenge test was attempted but the results were deemed unreliable due to claimant giving inconsistent efforts. The test appeared to be positive for showing an asthmatic component but the doctor's report indicates that the positive result could be due to claimant voluntarily closing his glottis. The fact that the test results did not improve after application of a bronchodilator is an indicator that asthma might not be a component. Dr. Angelillio concluded that the claimant's condition included a considerable functional component because no form of recognized medical treatment had been successful, his breath Page 3 sounds were clear, he had never been observed to be wheezing by any physician. A psychological examination was recommended. It is noted that defendants, who had arranged the examination, have not complied with the recommendation for a psychological examination (ex. 28). Claimant was also evaluated by Pulmonologist Louis W. Burgher, M.D. Dr. Burgher reported that test results were unreliable due to claimant giving suboptimal effort, but that they were sufficient to conclude that claimant's degree of obstruction was not severe. He stated that claimant had a mild obstruction with restrictions which were due to claimant's obesity. Chest x-rays showed some pleural scarring in the left base but were considered to be normal. Dr. Burgher felt that claimant had mild asthma. He also expressed the opinion that the surgical procedure to which claimant attributes his respiratory condition is not related to the onset of the asthma (exs. 30-32). James Saulsburg, M.D., examined the records of claimant's surgery and other associated hospital records and reported that they show no sign of lung irritation or damage. He expressed the opinion that anesthesia did not cause or aggravate any lung problem in James McKernan (ex. 29). The hospital records concerning claimant's surgical procedure do not show any abnormality or complication other than that claimant reacted with anxiety to epideral anesthetic being used and that general endotracheal anesthetic was then induced (exs. 12, 15 & 16). Claimant's medical history is remarkable for a diagnosis of multiple pulmonary emboli in 1975 (ex. 1, pp. 1-3). It is remarkable for a history of chest pain in 1989 (exs. 7-10). Defendants' exhibit 2 shows that in 1986 claimant was seen at the Mayo Clinic. He was diagnosed with migraine equivalent with a strong functional overlay, exogenous obesity, hyperlipidemia and questionable depression. An MMPI was conducted. It was interpreted as showing claimant to have a propensity for, "...Fixed notions as to organic basis for complaints. These complaints, which probably fit no organic pattern, are likely to be presented in a histrionic manner. Lacks insight and is unlikely to accept a psychological explanation of symptoms....Much functional pain, fatigue and weakness likely....." (def ex. 2, p. 26). Claimant's expressed complaints as related at hearing by himself and his wife are very consistent with the interpretation of the MMPI test which was conducted in 1986. James McKernan claims to be severely disabled by a pulmonary condition. None of the pulmonologists have objectively identified what that condition that might be. The opinion from Dr. Bainbridge which finds claimant totally disabled due to severe obstructive airways disease is rejected as it is not corroborated by any other physician. While he may very well have mild asthma, such would not necessarily have any serious impact upon his employability. Mild asthma might very well have preexisted his recent knee Page 4 injury. His job was one which appears to have, for the most part, permitted him to work at his own pace. It does not appear to have involved extended periods of very strenuous exertion. The record does not contain evidence from a single medical practitioner which attributes any particular respiratory ailment to the anesthesia which was provided as part of claimant's knee surgery. There is simply no evidence whatsoever in the record of this case which find this claimant to have any significant actual respiratory disease, condition or impairment. There is absolutely no evidence which attributes any respiratory problem to his employment or the surgery which repaired his knee injury. Claimant's subjective complaints of respiratory problems have not been corroborated by the medical practitioners. In fact, all the objective tests have produced normal or near normal results. It is therefore found that it is extremely unlikely that claimant has any respiratory impairment, other than perhaps mild asthma. It is further unlikely that any respiratory impairment which he might have is in any way, either directly or as an aggravation, a result of his knee injury, the surgical procedure or the anesthesia used during the surgery. Claimant's knee surgery was performed on April 23, 1990. Dr. Nelson's notes of May 1, 1990, indicate that his preoperative pain was resolved, but that there was still quite a bit of swelling. At that time he demonstrated 100 degrees of flexion of his knee. On May 15 the notes indicate that there was still some pain with twisting maneuvers but that he was still improving. He demonstrated 130 degrees of flexion of the knee. Notes dated June 12, 1990, indicate that he was gradually getting better. He was continued on physical therapy and was still off work. Exhibit 23 shows that on June 21 he demonstrated 125 degrees of flexion to the physical therapist and that on June 28 full range of flexion was observed. When Dr. Nelson saw claimant on July 26, 1990, he demonstrated 130 degrees of flexion and full extension. When seen on September 27, 1990, however, claimant only demonstrated 90 degrees of flexion. There is no explanation in the record of this case for why claimant's flexion would have decreased so significantly (ex. 11). It was on September 27, 1990, that Dr. Nelson reported that claimant had not improved and that he expected no further improvement. He stated that the condition was permanent and could possibly develop progressive osteoarthritis in the future. He rated claimant's permanent impairment at 10 percent of the leg for loss of meniscus function and 21 percent for loss of flexion. Using the third edition of the AMA Guides, the combined impairment amounted to 29 percent (ex. 11, p. 3). In a report dated May 14, 1991, Dr. Nelson noted that posttraumatic arthritic changes had developed (ex. 11, p. 4). Claimant's knee was evaluated by Orthopedic Surgeon Michael J. Morrison, M.D., on December 20, 1990. He found Page 5 that claimant had some quad muscle weakness and atrophy but a full range of motion of the knee. He felt that claimant would not need any work restrictions. Dr. Morrison rated claimant as having a 5 percent impairment of his knee due to the partial meniscectomy. Dr. Nelson based his impairment rating on the AMA Guides. It is not known what Dr. Morrison relied upon. The AMA Guides do not provide an impairment rating for a "knee." The Guides do rate impairment in terms of the lower extremity, the terminology used by Dr. Nelson. Reference to those AMA Guides shows that impairment for a partial meniscectomy can range from zero to 10 percent of the extremity (table 40). Using 90 degrees of motion does provide a 21 percent impairment based upon lost motion, but 130 degrees of flexion provides only a 7 percent impairment rating for lost motion. While claimant's symptoms regarding his leg are almost certainly effected by a functional overlay, it is found that the correct measurement of flexion is 130 degrees. It appears at several places in the record. The fact of arthritis as noted by Dr. Nelson warrants a finding of some impairment. When the fact of the partial meniscectomy, the development of arthritis and the loss of some motion are all considered, it is determined that claimant has a 15 percent permanent partial impairment of his left leg as a result of the March 29, 1990 injury. This finding is based somewhat upon the AMA Guides, but it is not based strictly upon them. It considers both impairment ratings in the record as well as the Guides themselves. The record does not show any expenses of medical treatment for the claimant's left leg to be unpaid. The record shows that UNUM Life Insurance Company of America has paid claimant $9,061.86 in long-term disability benefits (ex. 33). The record does not contain a copy of the policy itself. The record submitted does not show that the plan covers only nonoccupational disabilities or that the benefits would not be payable if rights of recovery existed under the workers' compensation laws. McKernan was uncooperative during the discovery process of this case. He failed to execute patient's waivers. He failed to make complete disclosure in his answers to interrogatories. 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 Page 6 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). It is recognized that injuries which result from medical treatment are proximately caused by the original injury itself. Humphreus v. State, 334 N.W.2d 757 (Iowa 1983); Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960); Cross v Hermanson Bros., 235 Iowa 739, 741, 16 N.W.2d 616, 617 (1944). It is admitted by defendants that the claimant injured his knee and that he has some disability affecting his left leg. Their admission is well supported by evidence in the record. If a claimant contends he has industrial disability he has the burden of proving his injury results in an ailment extending beyond the scheduled loss. Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964). Defendants deny any relationship between the knee injury and any lung condition which afflicts the claimant. Their denial is well supported by the evidence. The record in this case fails to show any significant lung condition. The mild asthma condition does not appear to be disabling. The record further fails to contain any substantiation for the claimant's claim that whatever lung condition he might have was caused or aggravated in any manner by the knee injury, either directly or indirectly. It is therefore concluded that the only injury in this case is the injury to the claimant's left knee and that the only resulting permanent disability is a 15 percent permanent partial disability of the left leg. Claimant's healing period entitlement under section 85.34(1) commences on March 30, 1990, the first day he missed work on account of the knee injury. It terminates on September 27, 1990, the date at which Dr. Nelson concluded that no further improvement would be forthcoming. Page 7 While hindsight shows that improvement had in fact ceased prior to September 27, 1990, the legal test concludes the healing period at the time the physician determines that further improvement is not expected. The entitlement to healing period is therefore 26 weeks of benefits. Under section 85.34(2)(o) claimant is entitled to recover 15 percent of 220 weeks of permanent partial disability for his left leg. This computes to 33 weeks. Claimant's total entitlement to weekly benefits is therefore 59 weeks. As indicated in the prehearing report he was paid 49 3/7 weeks. The balance of 9 4/7 weeks is unpaid and is subject to interest. Weekly compensation benefits are due and payable weekly commencing on the eleventh day after the injury under Iowa Code section 85.30. Compensation for permanent partial disability is due and payable commencing at the end of the healing period under Iowa Code section 85.34(2). If any type of weekly compensation is not paid at the time it comes due, it accrues interest pursuant to Iowa Code section 85.30. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986); Farmers Elevator Co., Kingsley v. Manning, 286 N.W.2d 174 (Iowa 1979). The record indicates that defendants have paid all expenses of the knee injury and a considerable amount in medical expenses attributable to the lung condition. They clearly were not liable for those amounts. Credit is allowed when one form of weekly compensation benefits are over paid and the over payment is applied to satisfy any under payment of any other type of weekly compensation benefits. Over payment of medical expenses under section 85.27 cannot be credited, however, to other medical expenses or to unpaid weekly benefits. Mysch v. Robert Shirley, d/b/a Shirley Agriculture Service, Thirty-fourth Biennial Report of the Industrial Commissioner 234 (1979); Anderson v. Woodward State Hospital-School, 2-1 State of Iowa Industrial Commissioner Decisions (App. Dec. 1985); Comingore v. Shenandoah Artifical Ice, Power, Heat and Light Co., 208 Iowa 430, 226 N.W. 124 (Iowa 1929). Whether the medical expenses for the knee were paid by the group carrier or the compensation is moot as to the claimant as he is not entitled to a refund. Caylor v. Employers Mutual Co., 337 N.W.2d 890, 894 (Iowa App. 1983). The only possible source of a credit in this case would appear to be the group disability income payments made by UNUM Life Insurance Company. It is noted that there is no credit for the amount by which any plan which continues wages exceeds the amount of the weekly workers' compensation benefit. Rule 343 IAC 8.4; Beeler v Union Electric Co., III Iowa Industrial Commissioner Report 22 (App. Dec. 1983). Code section 85.38(1) states: The compensation herein provided shall be the measure of liability which the employer has assumed for injuries or death that may occur to employees in the employer's employment subject to the provisions of this chapter, and it shall not be in anywise reduced by contribution from employees or donations from any source. (emphasis added). Section 85.38(2) states, "In the Page 8 event that disabled employee shall receive any benefits...under any group plan covering nonoccupational disabilities contributed to wholly or partially by the employer, which benefits should not have been paid or payable if any rights of recovery existed under this chapter..., then such amounts so paid to said employee from any such group plan shall be credited to or against any compensation payments,...." It is thus clear that there are three elements to entitlement to a credit under section 85.38(2), namely: (1) the benefits must be received under a group plan, (2) contributions to the cost of that plan must have been made by the employer, and (3) the benefits would not be payable if a right of recovery existed under the workers' compensation law. Hebensperger v. Motorola Communications and Electronics, Inc., II Iowa Industrial Commissioner Report, 187, 189 (App. Dec. 1981). The party who would suffer loss if an issue were not established has the burden of proving that issue by a preponderance of the evidence. Iowa R. of App. P. 14(f). The burden of proof rests upon the employer in order to show that it is entitled to a claimed credit. The "credit" defense to the claim is similar to the recognized defenses of accord and satisfaction or payment. Both of those defenses place the burden of proof on the defendant. Electra Ad Sign, Inc. v. Cedar Rapids Truck Center, 316 N.W.2d 876 (Iowa 1982); Glenn v. Keedy, 80 N.W.2d 59, 248 Iowa 216 (1957). In this case, the employer has failed to prove the extent, if any, to which benefits under the disability income plan would not have been payable if it had been known that the claimant's disability resulted from an injury which was compensable under chapter 85 of the Code. The entitlement to a credit was identified as a disputed issue in paragraph nine of the prehearing report, the document in which the parties identify the issues in the case. The issue was fully litigated. It is extremely difficult, if not impossible, to establish the third element of credit entitlement without introducing the insurance policy which controls the disability income plan. Exhibit 35 seems to indicate that the employer contributed to the cost of the disability plan, but the record is devoid of any competent showing that the plan applies only to nonoccupational disabilities. The claim for credit must, therefore, be denied. Defendants seeks imposition of sanctions based upon the claimant's lack of cooperation and failure to comply with the rules governing discovery procedures. In the end, defendants prevailed and obtained the records from the Mayo Clinic. It is particularly noted that even without the claimant's responses to interrogatories being complete, defendants had other reasons for knowing that the Mayo Clinic had records concerning the claimant. Had they made a prompt, timely effort to obtain those records, there would not have been the crisis which arose shortly prior to Page 9 hearing when the Mayo Clinic refused to accept the form of waiver which claimant had signed. In any event, imposition of discovery sanctions is discretionary. Sanctions may be denied even though grounds for imposition exist. Miller v. Boner, 37 N.W.2d 523 (Iowa 1983). This is one of those cases in which sanctions will be denied even though grounds for imposition exist. There is no showing that the final outcome of this case has been prejudiced in any manner by the claimant's conduct. Even if the records from the Mayo Clinic had not been received and introduced into evidence, the outcome of the case would be no different than it is. The claimed lung impairment is not corroborated by objective medical evidence and there is no evidence whatsoever of any connection between the knee injury and any lung condition. order IT IS THEREFORE ORDERED that defendants pay James L. McKernan twenty-six (26) weeks of compensation for healing period at the stipulated rate of two hundred sixteen and 62/100 dollars ($216.62) per week payable commencing March 30, 1990. It is further ordered that defendants pay James L. McKernan thirty-three (33) weeks of compensation for permanent partial disability, representing a fifteen (15) percent permanent partial disability of his left leg, payable at the stipulated rate of two hundred sixteen and 62/100 dollars ($216.62) per week commencing September 28, 1990. It is further ordered that defendants receive credit for the forty-nine and three-sevenths (49 3/7) weeks of weekly compensation benefits previously paid. The remaining unpaid amount is past due and owing and shall be paid to claimant in a lump sum together with interest pursuant to section 85.30 computed from the date each unpaid weekly payment came due until the date of actual payment. It is further ordered that claimant's claim for any additional medical benefits is denied. It is further ordered that defendants' request for a credit under section 85.38(2) is denied. It is further ordered that defendants' request for sanctions based upon claimant's failure to comply with the rules governing discovery is denied. It is further ordered that the costs of this action are assessed against defendants pursuant to rule 343 IAC 4.33. It is further ordered that defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of February, 1993. Page 10 ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. I. John Rossi Attorney at Law 697 18th St Des Moines, Iowa 50314 Mr. M. James Daley Attorney at Law 1109 Badgerow Bldg PO Box 1828 Sioux City, Iowa 51102 Page 1 51108.50 51402.40 51402.30 51803.1 1403.30 1701 1803 1402.40 2906 Filed February 22, 1993 Michael G. Trier before the iowa industrial commissioner ____________________________________________________________ : JAMES L MCKERNAN, : : Claimant, : : vs. : : File No. 955069 MORNINGSIDE COLLEGE, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 51108.50 51402.40 51402.30 51803.1 Claimant failed to prove that he had a disabling lung condition or that it resulted from his compensable knee injury or anesthesia used when the surgery for the knee was performed. 1403.30 1701 Credit under section 85.38(2) held to be an affirmative defense with the burden of proof being placed on employer. Where disability income policy was not placed into evidence it was held that defendants had failed to prove that the plan covered only nonoccupational disabilities and that benefits would not have been payable if a right of recovery existed under the workers' compensation laws. 1803 1402.40 AMA Guides relied upon to fix extent of ppd. 2906 Claimant had failed to make complete responses to discovery requests. Sanctions were nevertheless denied where employer prevailed on the merits of the case and the information which the claimant sought to conceal was nevertheless eventually discovered and had no bearing on the ultimate outcome of the case in any event.