BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ LARAE JEAN PEDERSEN, : : Claimant, : : vs. : : File Nos. 965283 & 1003241 HUMBOLDT COUNTY MEMORIAL : HOSPITAL, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : FARM BUREAU MUTUAL INS., : : Insurance Carrier, : Defendants. : ------------------------------------------------------------ STATEMENT OF THE CASE This decision concerns two proceedings in arbitration brought by LaRae Jean Pedersen on account of a binaural hearing loss which she has experienced as a result of a hepatitis vaccination that was administered to her as part of her employment duties as a nurse at Humboldt County Memorial Hospital. The parties have agreed that Larae has a 48 percent loss of hearing in both ears. Larae also contends that she has sustained a brain injury which removes this case from section 85.34(2)(r). The parties agree that the rate of compensation is to be computed under section 85.36(10). Defendants contend that the only earnings to be considered are the earnings from employment with Humboldt County Memorial Hospital. Larae contends that earnings from the family farm and other businesses should be included in determining the rate of compensation. Claimant also seeks a rehabilitation benefits pursuant to section 85.70, interest, a penalty pursuant to section 86.13 and costs of the action. The case was heard at Fort Dodge, Iowa, on February 4, 1994. The record consists of testimony from Robert A. Dotson, Carla Pedersen, John Pierce, Martin Zaugg, Ellen Schorzmann, Alan Pedersen, LaRae Pedersen, and Bill Faust. The record also contains claimant's exhibits A and B and defendants' exhibits I, II, III, and IV. FINDINGS OF FACT LaRae Pedersen is married to Alan Pedersen. Alan's family operates a somewhat complex, diversified family business which includes Alan, LaRae, Alan's brother, and other family members as well as Alan's parents. The Page 2 principle portion of the business is farming but other operations are also included. These include an automobile parts store, antique shop and rental properties. Alan and LaRae also have separate rental properties which are not part of the family business arrangement. Different members of the family have principle responsibility for different portions of the business operations. Alan Pedersen was principally engaged in farming while his brother, Gary, operated the auto parts store. Alan's father carried principle responsibility for maintaining equipment while Carla Pedersen, Alan's mother, acted as general manager of the entire operation. LaRae has performed a variety of functions including managing rental properties and general assistance to Alan and other family members. A considerable amount of the profits from the businesses were received by the various family members in kind or through having the business pay some of their living expenses. A formula existed for dividing some of the business profits through a somewhat complex formula. Robert A Dotson, an attorney who was involved in establishing the organization, testified at length regarding the operation of the family businesses. Dotson applied a formula developed and published by Iowa State University which provides a means of apportioning farm profits between return on investment and return to labor. A portion characterized as return to labor is intended to represent the value of the management and physical labor contributed by the farm operators to the operation. According to Dotson the figure of $26,000 per year was an appropriate amount to be allocated as the value of the management and labor provided by Alan and LaRae during each of calendar years 1989 and 1990. Dotson also noted rental income of $5,825 in 1989 and $6,937 in 1990 which again were to be divided between Alan and LaRae. According to Dotson his computations did not factor out any work which was performed by other family members and the calculations likewise contain no factor for distinguishing between profitable years and unprofitable years. The claimant's income tax returns are in evidence as part of exhibit B. Alan and LaRae's 1989 Federal Income Tax Return shows their adjusted gross income to have been slightly over $7000. (exhibit B, page 35). Of that amount, more than $4000 resulted from LaRae's employment at Humboldt County Memorial Hospital. Four thousand dollars was reported as wages which were paid to Alan by Gerald D. Pedersen. The return shows a business loss of $500, rental losses of nearly $11,000 and farm income of approximately $10,000. The 1990 income tax return shows LaRae's wages from Humboldt County Memorial Hospital in the amount of approximately $3000, a business loss of nearly $2000, rental losses exceeding $12,000, and farm income of approximately $1500. The adjusted gross income for 1990 is shown as a loss of nearly $9500. (ex. B, p. 64). According to testimony given at hearing, LaRae was covered by a workers' compensation insurance policy which Page 3 had been purchased for the Pedersen family business operations. The policy was not offered for evidence. No evidence regarding the way in which the premium for that policy was computed was offered. It is not known whether or not LaRae was specifically named on the policy or whether testimony of her being covered was accurate or an assumption of some sort. During the 12 calendar months preceeding LaRae's injury, her gross earnings from Humboldt County Memorial Hospital total $4,344.52. There is no evidence that she was employed by any other employer during the 12 calendar months preceeding September 6, 1990, the date of injury. The medical records in this case show that LaRae is afflicted by tinnitus as well as her hearing loss. There is evidence that she has balance and memory problems. There is no objective measurement in the record of the degree or extent of her tinnitus, headaches, balance or memory problems. It may be that those types of problems are not capable of objective measurement. According to LaRae's testimony, the medical records and the testimony of other witnesses, LaRae's tinnitus, headaches, balance and memory problems appear to be troublesome but are not independently disabling. The only reason given by LaRae for choosing not to return to work at Humboldt County Memorial Hospital was her hearing impediment. No physician in the record of this case has indicated that LaRae has any disability on account of her tinnitus, headaches, balance or memory problems. LaRae was paid weekly compensation benefits at the times and in the amounts noted on the attachment to the hearing report which was filed with the undersigned at the commencement of the hearing. With regard to the cause and onset of the hearing loss, it was stipulated at the time of hearing that the hepatitis vaccination was responsible. Claimant's hearing loss was first noted in April 1990 at which time the impression of F.E. Gonzales, M.D., was that it may very well represent a congenital hearing loss. No reference to immunizations appears. (ex. I, p. 1). In a report dated November 9, 1990, Bruce J. Gantz, M.D., a professor at the University of Iowa Hospitals and Clinics, issued a report stating that there are no known reports of hepatitis vaccination inducing sudden deafness. (ex. I, p. 2). Eventually, on November 6, 1991, Robert R. Updegraff, M.D., issued a report in which he stated, "...it is my considered conclusion, as best I am able to relate at this time, that Mrs. Pedersen's problem(s) are causally related to her hepatitis vaccinations." Later in that same report, Dr. Updegraff states: In one of our progress notes you may note that Dr. McCabe was wondering whether or not there might be a causal relationship with hepatitis vaccinations. We are all in quite agreement that this is a most unusual case. To my knowledge, Dr. McCabe has not seen a similar case and, I believe, Dr. Gantz mentioned such to Dr. Delucca. I have Page 4 not seen a similar case. After reflection and thorough discussions, and again visit with Dr. McCabe within the past month or so regarding all findings and histories--our considered opinion is there exists a reasonable causal relationship to the three hepatitis vaccinations (with Mrs. Pedersen's ear symptoms.) In that same report of November 6, 1991, Dr. Updegraff assigned claimant a rating of impairment consisting of 1.88 percent for the left ear, 33 percent for the right and a binaural impairment of 6.57 percent. (ex. A, p. 12). The stipulation of the parties shows that on November 18, 1991, checks were issued to claimant with one in the amount of $4,682.70 representing 58.286 weeks of healing period compensation. The second was issued in the amount of $803.40 representing 10 weeks of permanent partial disability compensation and a third was issued in the amount of $344.34 representing 4.286 weeks of compensation pursuant to an auxier notice. In the hearing report the parties stipulated that claimant's entitlement to healing period ran from September 17, 1990 through October 30, 1990, and that the entitlement to permanent partial disability benefits commences on November 1, 1991. It is noted that the date of October 31, 1991, is omitted. That day will be considered by the undersigned to be a day of healing period compensation entitlement. The healing period span of time is therefore 58 4/7 weeks. According to the stipulation attached to the hearing report 58 2/7 weeks of healing period benefits were paid, leaving a shortfall of 2/7 weeks. On that same date, 10 weeks of permanent partial disability compensation benefits were paid. The 6.75 percent rating provided by Dr. Updegraff provides an entitlement to 11.498 weeks of compensation under the provisions of section 85.34(2)(r). The shortfall is therefore 1.498 weeks of compensation for permanent partial disability based upon Dr. Updegraff's original rating. Defendants also paid 4.286 weeks pursuant to an auxier notice. Since the payment was made on November 18, 1991, and payments were due running through January 1992, there was no reason to pay an additional 30 days of benefits. In summary, the total amount owed by defendants to LaRae Pedersen on November 18, 1991, was 58 4/7 weeks of healing period compensation and 2 4/7 weeks of permanent partial disability compensation. The balance of the permanent partial disability entitlement had not yet accrued. This totals 61 1/7 weeks or $4,912.23. All of the payments paid were past due and owing. Sixty-one and one-sevenths weeks round to 61 weeks. According to the 10 percent interest table found at page 145 of the 1990-91 Guide to Iowa Worker's Compensation Claim Handling, the appropriate factor is 3.5192. When multiplied by $80.34 the result is $282.73 of accrued interest. The amount due and owing to LaRae Pedersen on November 18, 1991 was therefore $5,194.96. The payments paid total $5,830.44. The balance of $635.48 was therefore applied to unaccrued permanent Page 5 partial disability compensation. This amounts to 7.910 weeks. That amount of permanent partial disability pays the benefits due through January 13, 1992. The additional permanent partial disability established by the stipulation of the parties in this case was therefore due and payable, for purposes of computing interest, in weekly payments commencing on January 14, 1992. The parties stipulated at hearing that claimant's entitlement to compensation under section 85.34(2)(r) was 84 weeks of benefits. The payments paid on November 18, 1991, satisfied 10.196 weeks of permanent partial disability compensation leaving 73.804 weeks unpaid. For purposes of computing interest, the additional entitlement was payable commencing January 14, 1992. Those 73.804 weeks compute to a total value of $5,929.41. The next payments paid to claimant were paid on February 2, 1994, in the total amount of $6,619.41. Seventy-three point eight zero four weeks is equivalent to 73 6/7 weeks. That amount expires on June 13, 1993. From June 13, 1993 through February 2, 1994, is a span of 33 3/7 weeks. During the amount of time when permanent partial disability compensation benefits were due running from January 14, 1992 through June 13, 1993, interest accrued. The appropriate factor is 5.1942. When multiplied by the rate of $80.34 per week, the interest which accrued is $417.30. The sum of $5,929.41 was unpaid for a period of 33 3/7 weeks. This amounts to 234 days. Interest for one year on that amount is $592.94. The amount attributable to 234 days is $380.13. Accordingly, as of February 2, 1994, defendants owed LaRae Pedersen the sum of $5,929.41 in permanent partial disability compensation benefits and $797.43 in interest. This totals $6,726.84. Since their payment was $6,619.41, claimant was underpaid by the sum of $107.43. That amount continues to draw interest at the rate of 10 percent per annum computed from February 2, 1994, until the date it is actually paid. The per diem rate of interest accrual is $.03 per day. The amount of permanent partial disability compensation in this case has been established by stipulation. It should be noted that agency rule 343 IAC 2.4 provides that payments made in accordance with the Guides to the Evaluation of Permanent Impairment, shall be recognized by the industrial commissioner as a prima facie showing by the employer with section 85.34(2)(r) of the Iowa Workers' Compensation Act. It should be noted that those guides provide for a 25 decibel threshold or fence as is discussed by the physicians in this case when evaluating the extent of the claimant's hearing loss. Reasonable arguments can be made either way with regard to whether or not that 25 decibel fence should be applied. There is no need to determine the answer in this decision since the entitlement is established by stipulation. There is sufficient validity to support the application of the 25 decibel fence to make it quite reasonable for defendants to have relied upon the initial Page 6 evaluation made by Dr. Updegraff and to have continued to rely upon that rating despite the subsequent higher ratings. The issue over the manner of computing the entitlement is a fairly debatable issue of law and it would not have been unreasonable for defendants to have continued to assert that position as a litigated issue at the time of hearing in this case. The payments paid to claimant on November 18, 1991, would have been adequate to pay all accrued liability for healing period and permanent partial disability compensation, in accordance with Dr. Updegraff's initial rating, if interest were to have been excluded. When interest is included, the payment paid on November 18, 1991, was short by 1.302 weeks, an amount equal to $104.60. The laws and rules of the industrial commissioner with regard to interest and the simple math used in computing it are sufficiently clear and well established that there appears to be no reasonable basis for having underpaid the claim on November 18, 1991, based upon the facts which then exited, particularly when those facts are viewed in the light most favorable to the defendants. It was clearly unreasonable to have not paid the accrued interest at that time. The amount unreasonably denied on November 18, 1991, was $104.60. CONCLUSIONS OF LAW The right of an employee to receive compensation for injuries sustained is statutory. The statute conferring this right can also fix the amount of compensation payable for different specific injuries. The employee is not entitled to compensation except as the statute provides. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). Permanent partial disabilities are classified as either scheduled or unscheduled. Compensation for scheduled permanent partial disability is determined under Iowa Code section 85.34(2)(a) - (t) according to the functional loss of use of the member without considering the impact of the injury upon the individual's earnings or earning capacity. Simbro v. Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v. Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960); Moses v. Nat'l Union Coal Mining Co., 194 Iowa 819, 184 N.W. 746 (1921). An injury to a scheduled member may, because of after effects or compensatory change, result in permanent impairment of the body as a whole. Such impairment may in turn be the basis for a rating of industrial disability. It is the anatomical situs of the permanent injury or impairment which determines whether the schedules in section 85.34(2)(a) - (t) are applied. Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986); Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). In this case, the claimant has problems other than her loss of hearing. Those problems do not, however, appear to Page 7 be disabling. Her disability seems to be solely attributable to her loss of hearing. There is much authority for the proposition that tinnitus is not to be compensated as a scheduled disability. 1B Larson, Workmen's Compensation Law, 41.55; Dotolo v. FMC Corp., 375 N.W.2d 25 (Minn 1985); Hughes v. Pacific Northwest Bell, 61 Or. App. 566, 658 P2d 548 (1983). This would seem reasonable because tinnitus typically has little impact on hearing, though it is typically seen in association with a loss of hearing. It is particularly reasonable in the sense that audiograms which measure the extent the loss of hearing do not measure tinnitus. Nevertheless, this agency has held that tinnitus is to be compensated under the schedule. Cannon v. Keokuk Steel Casting, file number 795331 (App. Dec. Jan. 27, 1988). When there is an injury to a scheduled member which an individual wishes to have compensated beyond the schedule, it is necessary to introduce evidence which proves, by a preponderance of the evidence, that there is disability in some part of the body that is not within the schedule. Mere aches, pains, discomforts or other minor abnormalities are not sufficient. It is necessary that those abnormalities be of sufficient magnitude to be disabling. It is therefore concluded that in this case the evidence does not show claimant to have any disability other than her loss of hearing. The compensation for permanent partial disability is therefore to be computed pursuant to section 85.34(2)(r). A major issue in this case is the rate of compensation. 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 simple answer to this case would be to state that the case Winters v. John V. Te Slaa, I Industrial Commissioner Report 367 (App. Dec. 1981) controls. The essence of that decision is that when looking to section 85.36(10) the term "employment" does not include self-employment. It can quite reasonably be urged that self-employment is in fact employment. Any one who has been self-employed would tend to agree with that assertion. Another term which appears in section 85.36(10) is "earnings." Section 85.61 defines that terms "gross earnings" and "spendable weekly earnings" is clear that when looking at section 85.61 there is a requirement for payments and also a reference to deduction or withholding for taxes. This implies that the term "earnings" means taxable earnings of the type a person earns when employed by an employer. When claimant's income tax returns for 1989 and 1990 are reviewed, it becomes apparent that, if claimant's earnings from Humboldt County Memorial Hospital were to be excluded and her husband's earnings are shown on the W2 from Gerald V. Pedersen were excluded, that there would be no taxable earnings for 1989 or 1990. Accordingly, the earnings from self-employment which produces a net operating loss cannot constitute earnings to be used in computing the rate of compensation because there are no earnings. Page 8 There is evidence in the record of this case that claimant was covered for purposes of workers' compensation by the family business. The family business operation can best be described as some form of a partnership. According to the record it is not incorporated. In view of such claimant would be exempt from workers' compensation coverage under section 85.1. She is one of those individuals who, however, could be covered if she were to be specifically included in a policy pursuant to section 85.1(6). From the record made in this case it cannot be determined whether or not she was specifically included or to what extent. Section 85.36(11) provides a method for computing the weekly rate of compensation for individuals such as claimant if the compensation insurance coverage has been purchased. It is well known that the premium charged for workers' compensation insurance is based, largely, upon the earnings of the individuals covered by the insurance policy. Claimant chose to not offer the policy into evidence at the hearing. It is therefore not possible to determine whether or not she was covered by workers' compensation insurance or the rate of earnings used to compute the premium. The legal conclusion from a family member is not binding. Further, the method of computing the premium would be expected to have bearing upon the rate of compensation to be paid for any injury that occurred in the course of employment for the family business. It would do no violence to the workers' compensation system to include the earnings used to compute the premium for a policy issued in accordance with sections 85.1(6) and 85.36(11) since premiums are being collected commensurate with the benefits to be paid. It does violence, however, to the workers' compensation system to require benefits to be paid based upon earnings which were not in some manner subject to a workers' compensation premium. Accordingly, in this case, since claimant did not have any earnings except for those from Humboldt County Memorial Hospital and because there is no record showing a rate of earnings upon which premiums were paid pursuant to sections 85.1(6) and 85.36(11), the rate of compensation needs to be based solely upon claimant's earnings with Humboldt County Memorial Hospital. The earnings are shown at defendants' exhibit II. The rate of compensation is therefore $80.34 per week since those earnings average $86.89 per week and claimant is married with an entitlement to five exemptions. 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). Page 9 As indicated by claimant in her brief, the United States Rule is applicable. Christensen v. Snap-On Tools Corp., file number 936799 (App. Decn April 21, 1994). By virtue of the Guide to Iowa Worker's Compensation Claim Handling, published by the Division of Industrial Services the methods used for computing interest in accordance with that guide are correct and permissible. That is not to say that other methods might not be equally accurate or legally sufficient but it is clear that computations made in accordance with that guide are deemed correct. It should be noted that the differences that result when other methods of computing interest are used turn out to be quite minimal when compared to the interest computed in accordance with the guide. It should further be noted that the interest is simple interest. It is not to be compounded. Compounding occurs only at the time when payments are paid with the first portion of the payment being applied to accrued interest and the balance to the principal, namely the accrued entitlement to weekly compensation benefits. Any shortage leaves the accrued portion of weekly benefits unpaid and drawing interest which is to be satisfied at the next time any payments are paid. The undersigned has completed computations of entitlement and interest as set forth in the "Findings of Fact" portion of this decision. Accordingly, it is determined that when all payments are considered, together with interest, that as of February 2, 1994, the claimant was owed the sum of $107.43. That sum continues to accrue interest until the time that it is paid. The per diem amount is $.03 per day. Section 86.13 permits an award of up to 50 percent of the amount of benefits delayed or denied if a delay in commencement or termination of benefits occurs without reasonable or probable cause or excuse. The standard for evaluating the reasonableness of defendants' delay in commencement or termination is whether the claim is fairly debatable. Where a claim is shown to be fairly debatable, defendants do not act unreasonably in denying payment. See Stanley v. Wilson Foods Corp., File No. 753405 (App. August 23, 1990); Seydel v. Univ. of Iowa Physical Plant, File No. 818849 (App. November 1, 1989). It is principally a matter of semantics with regard to whether or not one applies a "fairly debatable" test. It is clear that the standard for a penalty under section 86.13 does not require any showing of bad faith, wanton or willful misconduct. Mere negligence is sufficient. Boylan v. American Motorist Ins. Co., 489 N.W.2d 742 (Iowa 1992). Since this matter deals with workers' compensation, the claim adjusting decisions are typically made by experienced workers' compensation adjusters and claim handlers. The standard to be applied is not that of a lay person or of someone who has a very limited knowledge of the workers' compensation laws and practices within this agency. It is determined that it was not unreasonable for defendants to rely upon the original impairment rating from Dr. Updegraff Page 10 when they made payments to claimant on November 18, 1991. It was, however, unreasonable for defendants to have underpaid the claim at that point in time. As previously indicated, the underpayment was in the amount of $104.60. It is appropriate to assess a penalty of $50 for that underpayment. The proper method of computing interest and of computing a scheduled disability entitlement is so simple that there is no reasonable justification for an experienced workers' compensation adjuster or claim handler to have miscalculated. With regard to the failure to pay a higher amount voluntarily until February 2, 1994, such was not unreasonable. There was a very substantial question of law, which as of this point in time remains unanswered, with regard to whether or not a 25 decibel fence should be employed when computing hearing loss for purposes of section 85.34(2)(r). Since that question of law exists and is considered by the undersigned to be a very bona fide, good faith question, the failure to pay the higher impairment ratings which did not apply a 25 decibel fence is not unreasonable. There is therefore no basis for imposition of a penalty. Once a stipulation regarding the extent of permanent disability was entered into, it became incumbent upon defendants to pay that amount promptly. Since it was established by stipulation it was within the realm of the parties to have negotiated with regard to whether or not interest would be applied. While interest has been held to apply in view of the lack of a stipulation to the contrary, it was not unreasonable under these circumstances for defendants to have failed to pay the full amount owed on February 2, 1994. In fact, the underpayment is only $107.43. That amount is nearly within the range of computational variations or methods. The underpayment on February 2, 1994, is not considered by the undersigned to be unreasonable and will not be used as a basis for imposing a penalty under section 86.13. Claimant also seeks to recover costs. She is clearly entitled to recover the filing fee of $65 and the fee for service of the original notice in the amount of $4.58. The charge of $3685 for a medical report is quite a bit larger than that customarily seen in this agency. The report is a combination of treatment, litigation preparation and consultation with both parties. Normally, the amount of an expert witness fee that can be assessed as costs is limited to $150 per day. (section 622.72). Dowell v. Wagler, file number 880145 (App. Dec. Nov. 26, 1991). The industrial commissioner has applied that same standard to the amount of charges for a report which can be assessed as part of the costs under the agency rules. Goodrich v. Schafbuch Farms Inc., file number 914987 (App. Dec. June 30, 1993). It is noted that assessment of costs, is, discretionary. (section 86.40). It is deemed appropriate in this case to assess the charges from Dr. Updegraff 50-50 between the parties. Of the $3685 charged by Dr. Updegraff, claimant shall pay Page 11 $1,842.50 and defendants shall pay $1,842.50. Claimant shall also be entitled to recover from defendants as costs the additional sum of $150. The payment for costs to be paid by defendants to claimant is therefore $219.58. It is concluded that all of the payments due in this case are due in file number 965283. File number 1003241 is a duplication. There is but one injury. ORDER IT IS THEREFORE ORDERED that defendants pay LaRae Jean Pedersen pay one hundred seven and 43/100 dollars ($107.43) for the balance of her unpaid permanent partial disability compensation. Defendants shall pay interest on that amount computed from February 2, 1994, at the rate of three cents ($.03) per day until such principal and interest is fully paid. It is further ordered that defendants pay LaRae Jean Pedersen fifty dollars ($50) as a penalty under the fourth unnumbered paragraph of section 86.13 based upon the failure to properly calculate, compute and pay weekly compensation for healing period and scheduled permanent partial disability and accrued interest on November 18, 1991. The fifty dollar ($50) penalty is payable the date of this decision and thereafter draws interest pursuant to section 85.30. It is further ordered that defendants pay to claimant the costs in the amount of two hundred nineteen and 58/100. It is further ordered that the fees of Dr. Updegraff in the amount of three thousand six hundred eighty five dollars ($3685) shall be divided equally between the parties with each to pay one thousand eight hundred forty-two and 50/100 dollars ($1,842.50). It is further ordered that file number 1003241 is dismissed as it is a duplication of the injury which has been found to be compensable in this case. All payments in this case are to be paid under file number 965283. It is further ordered that defendants file claim activity reports as requested by this agency. Signed and filed this __________ day of May, 1994. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Mark Soldat Attorney at Law 714 E State St Algona, Iowa 50511 Page 12 Mr. William D. Scherle Attorney at Law 8th Floor Fleming Bldg 218 6th Ave Des Moines, Iowa 50309 1108.30 1803.1 2208 3001 2907 3800 4000.2 Filed May 31, 1994 Michael G. Trier BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ LARAE JEAN PEDERSEN, Claimant, vs. File Nos. 965283 & 1003241 HUMBOLDT COUNTY MEMORIAL HOSPITAL, A R B I T R A T I O N Employer, D E C I S I O N and FARM BUREAU MUTUAL INS., Insurance Carrier, Defendants. ------------------------------------------------------------ 1108.30 1803.1 2208 Claimant experienced a bilateral loss of hearing as a result of an immunization which was administered to her as part of her employment. She also had complaints of tinnitus, slight loss of balance, memory loss and headaches which were not well corroborated medically. It was held that the injury was limited to the schedule under 85.34(2)(r). 3001 Claimant worked part-time and was self-employed in a family farming operation. The farming operation had shown a loss. It was held that there were no earnings from self-employment to be used in getting the rate of compensation above that which was provided by the earnings from the defendant employer. There was evidence that claimant was covered by a workers' compensation policy in the family farming operation but the policy was not introduced into evidence nor was information regarding the rate which would be applicable under section 85.36(11). It was held that the claimant has the burden of proving the rate to which she is entitled. It was held that it might be proper to include the earnings for which a premium was charged in accordance with sections 85.1(6) and 85.36(11) in cases such as this if the proper Page 2 evidence is in the record. 2907 Where a doctor charged in excess of $3000 for consulting with both claimant and defense counsel, those fees were held to be paid 50-50 by both parties with the claimant receiving an additional sum of $150 as costs from defendants. 3800 The Unites States Rule was held to be applicable. Payments are to be applied first to accrued interest and then to satisfy the weekly benefit entitlement which exists. The Guide to Iowa Workers' Compensation Claim Handling was held to be the preferred method for computing interest. 4000.2 Penalty applied when defendants failed to properly compute healing period, scheduled permanent partial disability and interest entitlement. It was a simple case with simple computations. There was no reason for the underpayment. Defendants held not required to pay an additional 30 days of benefits where permanent partial disability was paid in advance. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ TERI OSBORNE, Claimant, vs. File No. 965423 HY-VEE FOOD STORES, INC., A P P E A L Employer, D E C I S I O N and EMPLOYERS MUTUAL COMPANIES, Insurance Carrier, Defendants. ____________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed May 13, 1993 is affirmed and is adopted as the final agency action in this case. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of August, 1993. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Barry Moranville West Bank Bldg., Ste 212 1601 22nd St. West Des Moines, Iowa 50266 Mr. Jeff M. Margolin Attorney at Law 2700 Grand Ave., Ste 111 Des Moines, Iowa 50312 5-1803 Filed August 31, 1993 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ TERI OSBORNE, Claimant, vs. File No. 965423 HY-VEE FOOD STORES, INC., A P P E A L Employer, D E C I S I O N and EMPLOYERS MUTUAL COMPANIES, Insurance Carrier, Defendants. ____________________________________________________________ 5-1803 Based upon all the factors of industrial disability, including claimant's age (30 years), education (eleventh grade), work experience, functional impairment ratings (5-20 percent), current earnings as compared with earnings at the time of her injury, work restrictions, and claimant's injury, it is determined that she is seven percent industrially disabled. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ BALLARD STRONG, : : Claimant, : : vs. : : File No. 965952 WILBOS ENERGY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : NATIONAL UNION FIRE, : : Insurance Carrier, : Defendants. : ------------------------------------------------------------ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Ballard Strong against his former employer Wilbros Energy Services Company and its insurance carrier based upon an injury that occurred on October 8, 1990. The only issue is determination of the amount of permanent partial disability affecting Strong's foot. It is stipulated that the disability is a scheduled disability of the foot. The case is one in which the maximum weekly rate for permanent partial disability of $647 is applicable. The evidence consists of testimony from Ballard Strong and Patricia Heinen. The record also contains jointly offered exhibits I, II and III. The case was heard at Des Moines, Iowa, on January 11, 1994. FINDINGS OF FACT Ballard Strong injured his left foot on October 8, 1990, when the blade of a caterpillar tractor fell on it. He suffered a severe crush injury which included fractures of the third, fourth and fifth metatarsals in his left foot. (exhibit I, page 8). Strong was injured at Dubuque, Iowa, but lives at Ardell, Texas. His care was transferred to F. James Herbertson, M.D., an orthopedic surgeon near claimant's home. Eventually claimant's recuperation from the injury ended. He has residual complaints of pain and swelling in the foot. The condition is sufficiently severe that he is unable to wear normal footwear in the usual manner. He requires an insert in his shoe. The pain in the foot increases with walking. Claimant was observed to walk with a noticeable limp. He cannot wear footwear with a heel. He has to have footwear altered so he can wear it. Page 2 Ballard Strong appears to be an industrious person who has been gainfully employed on a regular basis both before and after the injury in this case. His appearance and demeanor was observed. His statements regarding his symptoms and problems which continue with his foot are found to be accurate. He has been offered surgery to treat neuromas which have developed in his foot. There is a possibility of blocking the nerves or rebreaking and realigning the bones in his foot. He is understandably reluctant to undergo those procedures. Dr. Herbertson has been claimant's principle treating physician since he left Iowa. In May 1991 Dr. Herbertson rated claimant as having a 35 percent permanent partial impairment of his left foot. (ex. I, pp. 23 & 25). Dr. Herbertson stated that the rating was based on the AMA Guides to the Evaluation of Permanent Impairment, 3rd ed. (ex. I, p. 26). According to the report claimant has a 10 percent impairment because of loss of motion of the metatarsophalangeal joints, a 10 percent disability due to numbness and loss of feeling in the toes and a 15 percent disability due to loss of the metatarsal arch. Equivalent impairments were 25 percent of the lower extremity or 10 percent of the whole person. The undersigned has examined the third edition of the Guides and has not found any particular place at which a disability rating is expressly assigned for loss of the metatarsal arch. The third edition of the Guides does not expressly address fractures of the metatarsals or loss of the normal arch of the foot. It is noted that ankylosis of the metatarsophalangeal joints of the third, fourth and fifth toes, the ones which were fractured, under table 31 found at page 57, can allow a 9 percent impairment of the foot. When looking at tables 26 through 29, there seems to be somewhat of a pattern of a joint being ankylosed at neutral position receiving an impairment that is roughly 50 percent of the impairment for amputation at the same joint. The closest comparable table the undersigned could find is table 43 at page 66 in which a midmetatarsal amputation of the foot renders a 50 percent impairment of the foot. Half of that would be 25 percent of the foot. It is noted that in this case, it is the metatarsals which were fractured. That is a location which is in the midfoot. It does not directly involve the toes as we typically know them. The toes extend distally from the metatarsophalangeal joints. Those joints are the distal end of the metatarsal bones. It is noted that the third edition of the Guides also allows impairment due to pain and numbness. (pp. 65-71). The third revised edition is essentially identical to the third in regard to measuring impairment of the foot. The fourth edition, however, which was printed in June 1993 does appear to expressly address the condition which exists in this case. It is found at page 86 in table 64. When the metatarsal fracture with plantar angulation and metatarsalgia is considered, the book would appear to Page 3 provide a 7 percent rating for the fifth and a 3 percent rating for each of the third and fourth. The total would amount to 13 percent. If added to the 9 percent rating which is available under all three editions for the loss of motion at the metatarsophalangeal joints, a rating in the range of 22 percent would seem appropriate. If additional impairment is added for the nerve injury portion of this injury (the neuromas), it is again quite reasonable to end up with an impairment rating in the range of 35 percent. Claimant was evaluated by Edward T. McCaffrey, D.P.M., for purposes of determining impairment. Dr. McCaffrey concurred with the rating from Dr. Herbertson but stated that Dr. Herbertson's rating was a bit conservative. It is found the Dr. McCaffrey is talking of an equivalent disability of the whole person when he states that claimant's disability is between 10 and 15 percent. That statement is made in the context of Dr. Herbertson's 10 percent permanent disability to the whole person equivalent rating. (ex. I, pp. 37-38). Claimant was evaluated by G. L. Becker, M.D. Dr. Becker concluded that claimant has a 10 percent disability of his left foot. Dr. Becker goes on to relate the equivalent impairments of 7 percent of the lower extremity and 3 percent of the total body. (ex. I, pp. 33-34). Claimant's records were reviewed by Thomas W. Bower, L.P.T. Bower indicated that claimant had at most a 6 percent impairment of the left foot. (ex. I, pp. 35-36). It is found that Ballard Strong has a 35 percent loss of use of his left foot as a result of the injury he sustained on October 8, 1990. This was a severe crush injury. Crush injuries often cause nerve, muscle and other soft tissue damage that is not adequately addressed in the Guides. This injury involved multiple fractures. Neuromas have developed. The disability in this case comes not so much from a loss of range of motion as it does from a loss of the ability to make use of the foot for the things for which individuals normally use a foot, namely, standing and walking. It is determined and concluded that the rating from Dr. Herbertson is a reasonable assessment of the extent of Ballard Strong's loss of use of his left foot. The ratings of 10 percent and 6 percent which appear in the record are totally unreasonable and inadequate. While the ratings may be supportable under the AMA Guides they do not provide a realistic good faith assessment of the loss of use of the claimant's left foot in this case. CONCLUSIONS OF LAW The right of an employee to receive compensation for injuries sustained is statutory. The statute conferring this right can also fix the amount of compensation payable for different specific injuries. The employee is not entitled to compensation except as the statute provides. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). Permanent partial disabilities are classified as either Page 4 scheduled or unscheduled. Compensation for scheduled permanent partial disability is determined under Iowa Code section 85.34(2)(a) - (t) according to the functional loss of use of the member without considering the impact of the injury upon the individual's earnings or earning capacity. Simbro v. Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v. Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960); Moses v. Nat'l Union Coal Mining Co., 194 Iowa 819, 184 N.W. 746 (1921). This agency has adopted rule 343 IAC 2.4 which makes the Guides to the Evaluation of Permanent Impairment, published by the American Medical Association, a guide for determining permanent partial disabilities under Iowa Code sections 85.34(2)(a) - (r). It goes on to state that payments made in accordance with the Guides are recognized as a prima facie showing of compliance by the employer or insurance carrier with the workers' compensation act but the rule does not purport to prevent other medical opinions or guides for establishing the degree of permanent impairment. It must be recognized at the outset that there is a difference between impairment and disability. Impairment is a medical term whereas disability is the statutory term found in the workers' compensation laws. All three editions of the Guides distinguish between impairment and disability. The Iowa Supreme Court has recognized that there are some critical differences between the medical terminology found in the Guides and the statutory language in the workers' compensation acts. Lauhoff Grain v. McIntosh, 395 N.W.2d 834, 839 (Iowa 1986). The Iowa Supreme Court has not adopted the Guides. It has held that in dealing with a scheduled loss the term loss means loss of use. Moses, 194 Iowa 819, 184 N.W. 746. It has been held permissible to consider any evidence bearing on the loss of use so long as earning capacity is not considered. Soukup, 222 Iowa 272, 268 N.W. 598. Despite the fact that an agency rule adopts the Guides, agency precedents consider it impermissible to rely upon the Guides in deciding a case unless a physician has stated that reliance was made upon the Guides. Shank v. Mercy Hospital Medical Center, file number 719627 (App. Dec. August 28, 1989). Likewise, it is appropriate to determine scheduled permanent partial disability without there being any impairment rating from a physician in the record. Shank v. Mercy Hospital Medical Center, file number 719627 (App. Dec. September 27, 1991). It is clear that the Guides are not intended to be controlling on the issue of scheduled permanent partial disability. They are only a guide. There is sometimes a tendency to place undue emphasis on the Guides. This probably results from the fact that medical practitioners commonly refer to them. It is important to remember, however, that it is the loss of use that is to be compensated, not an impairment rating. The impairment rating scheme in the Guides, while uniform, does not address every condition which can cause a person to lose Page 5 the ability to make use of a body member. The treatment of pain under the Guides is somewhat controversial. If severe pain results whenever a person stands on his foot a person can have a loss of use of the foot, regardless of what rating of impairment may or may not be authorized under the Guides. The Guides are necessarily arbitrary in order to be uniform. The 35 percent loss of use of the foot entitles Ballard Strong to recover 52 1/2 weeks of compensation for permanent partial disability payable at the rate of $647 per week commencing June 3, 1991. It has been stipulated that $3,212.27 have been paid by paying 4.764 weeks at the rate of $674.28. Defendants are entitled to a dollar-for-dollar credit for those payments. ORDER IT IS THEREFORE ORDERED that defendants pay Ballard Strong fifty-two point five (52.5) weeks of compensation for permanent partial disability at the rate of six hundred forty-seven dollars ($647) per week payable commencing June 3, 1991. It is further ordered that defendants receive credit against this award in the amount of three thousand two hundred twelve and 27/100 dollars ($3,212.27). Such shall be allocated to the weekly payments which first came due and payable. The remaining amount of the award is accrued and unpaid. It shall be paid to claimant in a lump sum together with interest computed pursuant to section 85.30. 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 March, 1994. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Arvid Oliver Attorney at Law 2635 Hubbell Ave Des Moines, Iowa 50317 Mr. William Scherle Attorney at Law 8th Floor Fleming Bldg 218 6th Ave Des Moines, Iowa 50309 1402.40 1803 1803.1 3700 Filed March 9, 1994 Michael G. Trier BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ BALLARD STRONG, Claimant, vs. File No. 965952 WILBOS ENERGY, A R B I T R A T I O N Employer, D E C I S I O N and NATIONAL UNION FIRE, Insurance Carrier, Defendants. ------------------------------------------------------------ 1402.40 1803 1803.1 3700 AMA Guides held to be an imperfect tool for measuring loss of use under scheduled injury sections. It was held to be uniform but necessarily arbitrary in order to provide uniformity. In a case where ratings were given ranging from 6 percent to 35, 35 percent permanent partial disability of the foot was awarded. The permanent partial disability was determined based upon claimant's loss of ability to use his foot for the things for which people customarily use their feet. 1100; 1108; 1805, 2600 Filed December 16, 1992 BYRON K. ORTON BJO before the iowa industrial commissioner ____________________________________________________________ : TERESA A. BREEDEN, Surviving : Spouse of DANIEL K. BREEDEN, : : Claimant, : : vs. : : File No. 966020 FIRESTONE TIRE AND RUBBER : COMPANY, : : A P P E A L Employer, : : D E C I S I O N and : : CIGNA INSURANCE COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1100 Found Mr. Breeden's (deceased) injury arose out of and in the course of his employment on October 1, 1990. 1108 Found Mr. Breeden's C-7 disc-nerve compression, caused by an October 1, 1990 work injury, as the primary reason for and cause of his October 31, 1990 surgery and cause of death on the operating table on October 31, 1990. Found that Mr. Breeden's C-3 benign tumor found as a result of an MRI done to further analyze his C-7 disc problem, was not the primary cause of his surgery or his death on the operating table on October 31, 1990. The doctor decided to do both operations on same day, one after the other. The C-7 was done first and the C-3 last. 2600 Found that a pathologist who never has treated disc problems, nor treated patients, nor perform surgery, nor talked to claimant or the neurologist, was not competent to challenge and override a neurosurgeon and second guess his opinion as to the cause of Mr. Breeden's symptoms, reason for surgery and ultimate cause of death under circumstance of the case. 1805 Found that although actual cause of death was not specifically known even after an autopsy was done, the fact that the work injury caused Mr. Breeden to have the surgery and claimant's unfortunate death results in the defendants being liable for the results of the surgery and Mr. Breeden's death. This action was brought by Teresa Breeden, surviving spouse of Daniel Breeden. Page 1 before the iowa industrial commissioner ____________________________________________________________ : TERESA A. BREEDEN, Surviving : Spouse of DANIEL K. BREEDEN, : : Claimant, : : vs. : : File No. 966020 FIRESTONE TIRE AND RUBBER : COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CIGNA INSURANCE COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This case came on for hearing on February 11, 1992, at Des Moines, Iowa. This is a proceeding in arbitration wherein claimant seeks compensation for decedent's alleged injury that occurred on or around September 30 or October 1, 1990, and in which claimant contends that this injury ultimately resulted in the death her husband, Daniel Breeden. The record in the proceeding consists of the testimony of Teresa Breeden, surviving spouse of Daniel Breeden; Steven Kinnard; Scott Erwood, M.D.; Robert Snyder; and James Allpress; claimant's exhibits A through T; and defendants' exhibits A, B, C, E, F, G and H. issues The issues for resolution are: 1. Whether decedent's alleged injury and ultimate death arose out of and in the course of his employment on or around September 30 or October 1, 1990; 2. Whether decedent's death is causally connected to an alleged injury that occurred on or around September 30 or October 1, 1990; and, 3. Claimant's entitlement, if any, to benefits under the Iowa Workers' Compensation Law. findings of fact The undersigned deputy, having heard the testimony and considered all the evidence, finds that: Page 2 Daniel Breeden, the alleged injured worker, died on October 31, 1990, and Teresa, his surviving spouse, is the claimant herein. She testified decedent was physically fit prior to September 30, 1990. She said he coached Little League and played softball. She acknowledged her husband cut wood the Saturday (September 29, 1990) before his alleged injury on Sunday-Monday, September 30 or October 1, 1990, during an outing with his two sons. She said her husband did not complain of an injury or a physical problem when he returned from this outing. She related Mr. Breeden would cut wood once a week in the fall of the year. She testified as to her husband's activity on Sunday (September 30, 1990) prior to going to work at 10:00 p.m. for the 11:00 p.m. Sunday to 7:00 a.m. Monday shift. She said Mr. Breeden did not complain of any problems before he left for work at 10:00 p.m. Mrs. Breeden related that when she returned home from her job at 1:00 p.m. on October 1, 1990, her husband was up and complained that his back and arm hurt. She said finding her husband up at that time of day was unusual because he normally would be sleeping because of his evening shift. Mrs. Breeden said her husband said something about holding a ring at work. That didn't mean so much to her at the time as she was not that familiar with the nature of his work. She emphasized her husband was not a complainer. Mrs. Breeden reviewed claimant's exhibit N and acknowledged that that was her husband's handwriting and it was basically the same information her husband had orally told her. Steven Kinnard testified that he works at Firestone and knew the decedent, Mr. Breeden. He was Mr. Breeden's supervisor as of September 1990. He said Mr. Breeden did not report an injury to him that last night, but did not come to work the next day. He said Mr. Breeden called the next day and said when he woke up he couldn't move his arm and at that time did not know what caused it. He said Mr. Breeden indicated he possibly slept on it wrong and didn't think it was serious. He said Mr. Breeden called one or two days later and told him the problem involved a disc and was work related. James Allpress, safety engineer for defendant employer, briefly testified. Roger Snyder testified he has worked for defendant employer for seven years, mostly as a tire builder and some as a temporary supervisor. He was a partner with Mr. Breeden in the tire room, working with a two-man tire machine, ZQE7. Mr. Breeden was the outside man and Mr. Snyder was the inside worker with this machine. He said Mr. Breeden would put the stock on the table and lift the rings to him to put into the tire drum. He said the rings at that time weighed around 50 pounds and the outside lock ring weighed about 58 pounds. There were 14 rings per drum. Mr. Snyder trained the decedent and approximately five tires would be built in an eight hour period. Mr. Snyder remembered Mr. Breeden telling him his arm was numb and he had trouble putting in the last ring that Page 3 shift of September 30-October 1, 1990. He said the employees were complaining about the weight of these rings and they are now using 40 pound rings. Mr. Snyder indicated that he also had complained to the employer about the weight of these rings and that he might have to go on light duty if they didn't do something about them and their weight. Mr. Snyder did not specifically see anything happen to the decedent on that particular shift. He said the decedent was not a complainer and he came to work and did his job. Scott Erwood, M.D., a neurologist, testified in person that he first saw Mr. Breeden on October 5, 1990, pursuant to a referral from Kenneth Andersen, M.D. Mr. Breeden was complaining of right upper extremity and right arm pain. He said the history taken from Mr. Breeden is consistent with a disc injury. An MRI was taken and the doctor said this showed a right C-7 radiculopathy (pinched nerve) and a disc problem. Also, it surprisingly showed a mass on the right side C-3, approximately 1 centimeter in size going into the spinal cord. He said Mr. Breeden's complaints were consistent with a disc herniation. He emphasized the MRI could not neurologically show the cause of Mr. Breeden's problem any better in order for him to analyze the situation. Dr. Erwood said the MRI surprised him in that it showed the C-3 tumor as they were not expecting that. He emphasized Mr. Breeden had no symptoms from this tumor and related those symptoms decedent would have if the tumor was causing problems. He said if an MRI had not been done, a C- 3 tumor would not have been discovered. Dr. Erwood said the C-7 problem has a different pattern and affects different parts of the body than a C-3 root problem. Dr. Erwood said that decedent's pain and symptoms were very inconsistent with a C-3 problem. Dr. Erwood said it was obvious the tumor had to come out but thought he would wait for two weeks to see if decedent's C-7 disc problems would get better and, if not, he would perform disc surgery on decedent. The doctor was extensively questioned as to whether he was treating Mr. Breeden for disc problem or tumor and whether surgery was mainly for the tumor and not the disc. The doctor was emphatic that he was treating decedent for a herniated disc. He did not give decedent pre-surgery tumor treatment. Dr. Erwood said he concluded that if he was going to do the C-7 surgery, he would do the C-3 tumor removal at the same time. He emphasized that this would then result in decedent having one operation, one recovery, one hospitalization and would get Mr. Breeden back to work sooner. It was obvious that doing both at the same time would prolong the surgery. Although Dr. Erwood said that a more lengthy surgery does not necessarily increase the risk, as he has done several operations that were very lengthy, it is obvious that the longer someone is on an operating table the greater the risk is that something could go wrong. Page 4 Dr. Erwood acknowledged that when he saw Mr. Breeden on October 22, Mr. Breeden's pain was better with the therapy and that Mr. Breeden had been off work and inactive, but Mr. Breeden still had a weakness of his right triceps which is a C-7 problem. He emphasized this weakness isn't a C-3 problem and physical therapy does nothing for a C-3 tumor. Mr. Breeden had his surgery on October 31, 1990. Dr. Erwood did the C-7 surgery first and explained the procedure. He related that if he were to do the C-7 surgery only, he would have proceeded from the front or the anterior side of the neck as it is easier and there would be less interference than from the rear or posterior side. He emphasized he could not do the C-3 tumor from the front but only from the rear. Dr. Erwood found no free disc material or freely herniated disc fragment but found a tight nerve which he freed by removing bone and the pressure was alleviated. He said his C-7 surgery supported his neurological exam and that you don't always find a herniated disc. After approximately one and one-half hours on the C-7 surgery, the doctor continued with his surgery on Mr. Breeden's C-3 tumor under a microscope. It was benign and the doctor again said it wasn't causing any of Mr. Breeden's problems. Dr. Erwood said that at the end of the surgery and after the tumor was removed and he was doing some final measures, Mr. Breeden's blood pressure became abnormal and after one plus hours of CPR, Mr. Breeden died on the operating table. The doctor said he didn't know what caused the death specifically (Cl. Ex. J, p. 42). Dr. Erwood acknowledged that he read the deposition of Alexander Ervanian, M.D., pathologist, and he doesn't believe a pathologist can competently judge a neurologist's work. He said it would be best if a neurologist would be the reviewer. He emphasized pathologists are not qualified to give neurological opinions. He indicated a pathologist never does disc surgery or tumor removal. He indicated a pathologist takes the tissue, blood sample, etc., and makes a judgement and analysis. Dr. Erwood strongly disagreed with the pathologist's statement that the main reason for Mr. Breeden's surgery was tumor removal. Dr. Erwood emphasized again the main reason was the C-7 herniated disc even though the tumor had to be removed. Dr. Erwood again expressed his opinion that it is not necessary to have a piece of disc material to have a herniated disc. He said Mr. Breeden's nerve was tight and compressed and if he didn't release it, Mr. Breeden would have had a permanent problem. Dr. Erwood disagreed with the comments of Dr. Ervanian that (1) Mr. Breeden's neck and finger problems were caused by C-3 not C-7, and (2) Mr. Breeden's death was not related to his injury. Dr. Erwood agreed that if an MRI shows a piece of disc Page 5 out of place, it is not conclusive. He said oftentimes what you see is not what you find. He said from the posterior vantage point, he could not see a herniated disc but that doesn't mean there wasn't one. The C-7 nerve root was amputated. Dr. Erwood indicated that when he used the word amputation, it is the same as a pinched nerve in Mr. Breeden's situation. There was testimony from Dr. Ervanian which seemed to indicate amputation would mean a nerve that was cut. It is obvious a nerve was not cut and it is obvious we are playing a game of semantics. We see this often in medical reports where several words are misinterpreted. It is obvious to the undersigned that the nerve was not amputated and that it was more a pinched or impingement situation. It is also obvious that possibly the doctor could have used a better choice of words. Dr. Erwood agreed that a herniated disc can be caused by rather minimal activity and often the patient has no idea of what he did to cause it. Dr. Erwood said the death certificate (Cl. Ex. J42) really indicated the cause of death was unknown. He said there may have been a coronary embolism (air-blood clot) but the autopsy showed no pulmonary embolism. Dr. Erwood did not know whether death would have occurred if surgery had ended earlier. Dr. Erwood, though appearing reluctant to so state because he hadn't give that much thought to it, did indicate that if there was a residual symptom from Mr. Breeden's C-7 nerve root surgery, Dr. Erwood would have most likely opined a 10 or 11 percent permanent impairment to Mr. Breeden's body as a whole. The doctor emphasized that as far as he was concerned, he was treating a work injury and combined two surgeries for a more efficient purpose and procedure. Alexander Ervanian, M.D., the medical director of laboratories and director of nuclear medicine at Iowa Methodist Hospital, testified through his deposition on January 13, 1992 (Def. Ex. E) and his deposition on December 23, 1991 (Cl. Ex. S). The doctor practices exclusively in pathology and nuclear medicine. He indicated his main work is assisting in diagnosis. He never sees the whole patient (Def. Ex. E, p. 7). He does not treat herniated discs. He also reads and interprets medical data as reflected in records of a doctor or hospital (Jt. Ex. E, p. 13). He has never treated a herniated disc, has never treated a tumor nor performed surgery in either of these types of instances (Def. Ex. E, pp. 27 and 28). He has never seen Mr. Breeden as a patient, never talked to Dr. Erwood about this case, and has never treated a work-related injury. Dr. Ervanian acknowledged he had all the hospital records of Mr. Breeden, particularly regarding his last hospitalization. Defendants' attorney proposed in a hypothetical question that attempted to substantially summarize the medical situation from October 1 to decedent's death (Def. Ex. E, p. 18-26). The doctor opined that the primary purpose of Mr. Breeden's surgery was to remove the cervical cord tumor (Def. Ex. E, p. 30). Dr. Ervanian said "that is what Dr. Erwood believed and operated for." (Def. Ex. E, p. Page 6 30) The undersigned is perplexed as to how Dr. Ervanian believed Dr. Erwood believed this when he said he never talked to him and it is completely contrary to Dr. Erwood's testimony and medical records. Dr. Ervanian said if there was a herniated disc, he would expect the operative report of October 31, 1990 to reflect fragments in the pathology report if there was a removal of a disc herniated at C-7 and 6 (Def. Ex. E, p. 34). Contrary to what Dr. Erwood, the neurologist, said, Dr. Ervanian said that symptoms of pain in the upper neck, back and shoulder are consistent with C-3 tumor (Def. Ex. E, p. 35). Dr. Ervanian could not opine a cause of Mr. Breeden's death on October 31, 1990 (Def. Ex. E, p. 36), but he did opine that Mr. Breeden's death was not related to work. There were objections to this doctor answering questions in this area as to his competency. The undersigned believes those objections based on this record are valid. This will be covered in more detail later. Dr. Ervanian first received information in this case in July 1991 (Jt. Ex. E, p. 40). Defendants' attorney is the only person Dr. Ervanian talked to prior to his first deposition. Dr. Ervanian was given claimant's exhibit A, a November 20, 1990 letter from Dr. Erwood to look at and he indicated he has never seen that letter before and that defendants' attorney never gave him a copy (Def. Ex. E, p. 44). Dr. Ervanian agreed Dr. Erwood is in a better position to state what the primary purpose was in performing Mr. Breeden's surgery (Def. Ex. E, p. 45). Dr. Ervanian was asked several questions on cross-examination as to certain body functions and their cause emanating from a C-3 or C-6,7 area. He was referred to his answer to the same or similar questions in his December 23, 1991 deposition (Cl. Ex. S). It is obvious to the undersigned that Dr. Ervanian's competency and expertise may be in pathology but is not in neurology. Upon questioning again, Dr. Ervanian believed if one has a herniated disc, surgery to correct the same will require removal of disc material, pulposus, or bone (Def. Ex. E, p. 67). The doctor did say that if the symptoms decedent was reporting were due to a herniated disc, then that would be the primary purpose of the surgery (Def. Ex. E, p. 69). It appears Dr. Ervanian is further supporting his prior conclusions because Mr. Breeden died at a point of time after the C-3 tumor surgery and that if the C-7 surgery was the last surgery on October 31, 1990, he would say that Mr. Breeden's major problems then resulted from that surgery (Jt. Ex. E, p. 72). It seems to the undersigned that not having treated patients and, in particular neurological problems, leaves Dr. Ervanian in a guessing or speculative posture. The undersigned questions how Dr. Ervanian can opine, as a pathologist, within reasonable medical certainty what effect a C-3 tumor was having on decedent so as to contradict a neurologist specializing in the area and who treated Mr. Page 7 Breeden and actually did the surgery. This is beyond the undersigned's imagination with the facts we have in this case at bar. It seems that defendants are also relying on why Dr. Erwood performed the October 31 surgery by seeing what stage of the surgery was done first and which one was done last. It seems the October 23, 1990 and October 8, 1990 letters have this information in reverse order (Cl. Ex. C). The undersigned does not believe this has any bearing on why Mr. Breeden primarily had his surgery. The record is clear enough to the undersigned without needing that to confuse the issue. The undersigned sees no importance as to Dr. Erwood putting in a particular paragraph in reference to one surgery first versus the other. His testimony seems clear on this point. The undersigned believes the October 8, 1990 letter, last large paragraph, sets out Dr. Erwood's real beliefs and judgment and primary reason for Mr. Breeden's hospitalization and surgery and that he didn't change his opinion subsequently contrary to what Dr. Ervanian is trying to guess or believe all with the benefit of hindsight and also having in mind the existing litigation posture and his client's position. Ronald Charles Evans, D.C., testified through his deposition (Def. Ex. C) on February 3, 1992, and stated that he frequently and commonly sees patients that complain of back, neck, leg and arm complaints and those who have work injuries in his chiropractic practice. He also indicated it is common to see these complaints from people who do not have any indication of trauma or injury. Dr. Evans first treated decedent on May 31, 1988, through a medical referral from Firestone Tire & Rubber Company, as Mr. Breeden was having low back complaints. He related some of the history Mr. Breeden gave him and described the treatment and release of the decedent on June 8, 1988. Mr. Breeden returned to Dr. Evans again on November 15, 1988, with a low back complaint. The doctor said Mr. Breeden indicated to the doctor that he slipped on some oil at Firestone but did not fall (Def. Ex. C, p. 14). The doctor described the treatment he prescribed for Mr. Breeden which included ultrasound to his low back, muscle stimulation and manipulation, etc. This treatment lasted through November 18, 1988. Dr. Evans saw Mr. Breeden again on April 15, 1990, for low back pain (Def. Ex. C, p. 16). He did not see Mr. Breeden after August 16, 1990, until October 2, 1990, at which time Mr. Breeden complained of right-sided neck, arm and shoulder problems. He described the history Mr. Breeden gave him and his notes indicate Mr. Breeden cut wood eight hours Sunday night and felt okay but felt worse by Monday noon. Mr. Breeden indicated to Dr. Evans that his back and arm were sore. He said Mr. Breeden related nothing as to anything happening at work. He said his findings supported a diagnosis of C5-6 nerve root compression right side (pinched nerve). He opined Mr. Breeden's condition resulted from him cutting wood at home (Def. Ex. C, p. 21). The doctor based this on the history Mr. Breeden gave him. Page 8 Dr. Evans described Mr. Breeden's acute severe condition regarding his neck and right arm and the diagnosis and plan of treatment he had for Mr. Breeden (Def. Ex. C, p. 26). Dr. Evans said his notes and treatment do not reflect Mr. Breeden relating his problem to work and he believed Mr. Breeden would have mentioned a work injury if he was injured at work. He said he specifically would have asked Mr. Breeden this question in his history taking, in other words, if Mr. Breeden had injured himself at work (Def. Ex. C, pp. 29-30). Dr. Evans believes Mr. Breeden would have told him if he had a work injury. Dr. Evans agreed that from Mr. Breeden's exam, he indicated to the doctor his pain first surfaced following his nap, Monday noon (Def. Ex. C, p. 33). It appears clear from Dr. Evans that Mr. Breeden's positive symptoms showed nerve compression at C5-6 and no signs or symptoms relating to C3. Dr. Evans seems to agree with Dr. Erwood as to the symptoms that come from C-3 versus the C-6 area (Deft. Ex. C, pp. 38-39). Although Dr. Evans testified that there can be delayed symptoms after an event or trauma, it is obvious the sequence of events happening, in other words, wood chopping - no symptoms and then working - some symptoms showing, would indicate that if an injury occurred at work on Sunday-Monday, that might be more likely the cause of Mr. Breeden's symptoms (Def. Ex. C, pp. 33-37). The doctor shows only the wood chopping notwithstanding that Mr. Breeden already saw a Dr. Anderson and indicated to him a work injury (Def. Ex. C, p. 36). The doctor indicated that with the knowledge of the work incident on September 30- October 1, 1990, a lifting and slipping incident and given the time lapse from chopping wood, Dr. Evans indicated he would alter his opinion and the work incident would the most proximate cause (Def. Ex. C, p. 45). He indicated that chopping wood would result in more of a muscular strain or tendon injury whereas a slip-lift injury is more associated with a ligament injury. In other words, a compression of the C6 nerve root (Def. Ex. C, pp. 44 and 46). Dr. Evans said that if later exams shows a tumor at C- 3, he would be surprised as that would show central nervous system signs like wasting away of muscles, inability to walk, drunken sort of gait, etc. (Def. Ex. C, p. 39). Dr. Evans indicated that when he saw Mr. Breeden on October 2, 1990, the nature of Mr. Breeden's nerve root compression was severe enough that he already believed his disc problems was not going to resolve itself without surgery (Def. Ex. C, p. 46). In fact, Dr. Evans was already thinking of referring Mr. Breeden to a neurosurgeon (Def. Ex. C, p. 36). It appears that notwithstanding what history Dr. Evans originally took, he realized he is only human and may not have taken down everything pertinent. He also indicated that patients are not perfect and memories are not always good and that he did not have a complete history, therefore, supplementation of his history with other doctor reports, Page 9 obviously affected any prior opinion he rendered (Def. Ex. C, p. 55). There was considerable back and forth questions of Dr. Evans by both parties' attorneys. It appears obvious to the undersigned that taking all the testimony as a whole, Dr. Evans finds Mr. Breeden's work injury was the primary cause of Mr. Breeden's C6-7 problem and not the wood chopping incident (Def. Ex. C, pp. 58-74). Dr. Evans opined the cause of death was from tumor surgery because it was the last part of the surgery and the longest of the surgeries. When given a hypothetical question which the undersigned believes more accurately sets out the competent and logical facts, Dr. Evans reverses his opinion or agrees then that the operation was due to a work- related injury (Cl. Ex. S, pp. 62-63). The undersigned is not going into detail or make additional specific reference, unless necessary, as to many of the exhibits and reports as the doctors' testimony in court or the depositions made reference to those documents and were referred to in the respective testimony or depositions. The undersigned would be remiss if he did not mention that there was a considerable amount of duplication and unnecessary exhibits in this case. At the time of the hearing, the undersigned asked the parties if there was duplication and after eliminating a duplicate medical deposition, the parties indicated that there was no other duplication with rare possible exceptions. The undersigned noted considerable duplication, such as the forensic pathology reports, certain doctor reports, several organ donation requests and MRI requests, etc. The undersigned has a hard time believing what importance organ donation re quests, the wage records and most of the decedent's personnel records had on this case since there are no issues which those addressed. Both parties still entered identical records into evidence through their exhibits in addition to the same party offering duplicate exhibits into the record. The undersigned believes that the greater weight of evidence indicates that decedent did, in fact, incur an injury that arose out of and in the course of his employment on or around October 1, 1990. Confusion as to whether it was September 30 or October 1 is strictly because decedent's shift covered parts of both days. It appears to the undersigned that the symptoms began to fully develop near the end of Mr. Breeden's work shift on October 1, 1990. Defendants seem to imply that it was the wood chopping that initially caused Mr. Breeden's problems. The record is clear to the undersigned and the greater weight of evidence indicates that there was no residual effect from the wood chopping and if there was, there was no effect or consequences to Mr. Breeden's working when he began his shift at around 11:00 p.m. Sunday, September 30, 1990. As Dr. Evans indicated on more than one occasion, the chopping of the wood would at most bring about from the facts as he Page 10 knew them, a muscle strain and not a ligament injury. It is obvious Dr. Evans felt that Mr. Breeden had, after knowing all the history and medical information, a ligament injury which would be caused by a sudden lifting or slipping incident. The undersigned finds that decedent did incur a work injury on October 1, 1990, while working at defendant employer and that this work injury arose out of and in the course of decedent's employment. There is considerable medical evidence as to the need for surgery that decedent had on October 31, 1990. Defendants contend that notwithstanding whether decedent incurred a work injury which injury they also denied, the surgery was not for a herniated disc but was to remove a tumor at C3. Mr. Breeden sought medical treatment immediately thereafter within a few days of October 1, 1990, for a herniated disc condition and this condition was verified by Dr. Erwood ordering an MRI. Dr. Evans also suspected a herniated disc problem and he was ready to work up a neurological referral report but instead Mr. Breeden went to his own neurologist, Dr. Erwood (Def. Ex. C. pp. 36-37). There is no dispute that the MRI was done because of Dr. Erwood suspecting a herniated disc and he emphasized Mr. Breeden's symptoms supported this suspicion. Dr. Erwood's suspicions were sustained but he also discovered a mass tumor at C-3. There is no evidence that the tumor was being treated before the discovery or up until the surgery on October 31, 1990. Defendants contend that the October 31, 1990 surgery was mainly to remove the tumor and the disc was secondary. As we know, hindsight or second guessing is always better and more accurate than facing the sometimes unknown that exists even today notwithstanding the marvels of sophisticated equipment and well trained medical specialists. This agency often sees medical specialists in the same specialty taking totally opposite positions with the same set of facts. Dr. Erwood, the neurologist, emphatically stated that Mr. Breeden's symptoms resulted from a disc problem and not a tumor problem even though he agrees once the tumor was found, it had to be removed. There is no other neurologist who disputes Dr. Erwood. It would seem logical that defendants would have hired a specialist in neurology if they wanted to challenge or second guess the treating neurologist and surgeon who had hands-on contact with the Mr. Breeden's condition. Defendants hired a pathologist, who they have hired several times in the past, to look at this case and judge the conduct of Dr. Erwood. It is apparent on the record that Dr. Ervanian had a long time relationship with defendants' attorney and its law firm as far as testifying in workers' compensation cases. With the facts of this case, the death certificate and autopsy basically leaving the specific cause of death unknown and subject to conjecture, it is not surprising that Page 11 Dr. Ervanian took an opposite position than Dr. Erwood. Claimant's attorney objected to the competency of the pathologist who judged the conduct of a neurologist. It is undisputed that Dr. Ervanian agreed a neurologist is better situated to make judgment as to decedent's situation than he is as a pathologist. Dr. Ervanian testified he has never treated a neurological problem, never has done any surgery and is no different than any pathologist. It is obvious that these things are out of his field. The undersigned believes that Dr. Ervanian, a pathologist, is not competent to judge Dr. Erwood, a neurologist and surgeon, even though both are doctors. This agency's experience has been that even within a specialty there are specialties. You can have a gastroentologist that only diagnoses but does not do the surgery. You can have an orthopedist who will do only the back and not knees, etc. You would not have an orthopedist judge an oncologist. It is obvious that Dr. Ervanian knew the direction that his client would like this case to go. Dr. Ervanian further admitted his lack of neurological expertise and this is exhibited in his answers to questions concerning C-3 symptoms and yet he is trying to contradict or disagree with a neurologist on a very key item. Dr. Ervanian admitted that Dr. Erwood is in a better position to determine this question (Cl. Ex. S, p. 19). The doctor again by his answers realizes that the question as to Mr. Breeden's surgery should be answered by a neurosurgeon (Cl. Ex. S, p. 55). Having one specialist in a different field trying to impeach or challenge a judgment of another specialist on the facts of this case would be similar if one would have a lawyer who works as a probate-nonlitigation specialist judge the conduct of another lawyer who is a personal injury litigation specialist. Dr. Erwood decided to do both of these surgeries on the same day. This seemed logical as he thought it would be best for Mr. Breeden's benefit so as to save Mr. Breeden from two separate surgeries, two anesthetics, two recovery periods, two loss times from work, etc. If Dr. Erwood had not done both of these surgeries the same day, he would most likely have been criticized. The undersigned believes that taking all the evidence as a whole, and considering the times certain judgment calls were made, that Mr. Breeden needed C-7 neck surgery and that this was the primary reason for decedent's surgery on October 31, 1990, and the undersigned so finds. It is immaterial which surgery took longer or which was first and which was last. This again was a judgment call and hindsight is always better than foresight. It is true that the longer one is under anesthetic or the more surgeries, the greater the risk but two separate surgeries and two separate anesthetics also carry risks. Anything can go wrong when surgery is performed. The fact that a disc fragment was not found is not per Page 12 se indicative that decedent did not have a disc problem as Dr. Erwood emphasized. It appears that he decompressed a nerve and that alone was worth surgery at C-7. It is also obvious that because Dr. Erwood decided that both surgeries would be done the same day, the necessity of going from the rear instead of the front made the C-7 more difficult. It would appear that if he was going to do these surgeries separately, he would do the C-7 from the front, but would have to do the C-3 from the posterior. It would not take much intelligence to realize the criticism Dr. Erwood would have if he planned these two separate surgeries going from the front on the one and the rear on the other. Again, the undersigned is surprised by the fact that if Dr. Erwood's judgement and procedures were going to be challenged, that it wouldn't be another neurological surgeon. The fact Dr. Ervanian is a long-time acquaintance and workers' compensation testifier for defendants' attorney helps explain a pathologist challenging a neurologist. The undersigned is not impressed and agrees with the claimant's contention that Dr. Ervanian is not competent on the key issues herein to challenge a neurologist. The undersigned finds that decedent's primary reason for surgery was because of the herniated disc which ultimately ended up a nerve compression and that the C-7 problem was the primary cause of Mr. Breeden having the surgery ultimately which resulted in Mr. Breeden dying during the operating procedures. The undersigned further finds that had it not been for decedent's work injury which involved his C-7 cervical area on October 31, 1990, decedent would not have had an MRI that was done to further clarify decedent's C-7 area problem and decedent would not have had surgery at all, particularly on October 31, 1990, and that had it not been for the MRI which was brought about by the October 31, 1990 work injury, a tumor would not have been discovered at C-3. The undersigned further finds that had the MRI not been done which was because of the October 31, 1990 injury there would not have been tumor surgery performed on October 31, 1990. The undersigned further finds that decedent's C-3 tumor was not symptomatic up to his October 31, 1990 surgery and that decedent's time off from work from October 1, 1990 through October 31, 1990, was the result of his work injury and C-7 disc compressed nerve problem. Therefore, the undersigned finds that the cause of dece dent's death on October 31, 1990, was because it ultimately resulted from decedent's work injury on October 1, 1990 and ultimate need for surgery to correct the work injury at C-7. Decedent's reason for entering the hospital was primarily for the events originating from decedent's October 1, 1990 work injury. conclusions of law An employee is entitled to compensation for any and all Page 13 personal injuries which arise out of and in the course of the employment. Section 85.3(1). The claimant has the burden of proving by a preponderance of the evidence that claimant's decedent's injury of October 1, 1990, is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Page 14 It is further concluded that: Decedent incurred a disc and nerve compression injury at C-7 on October 1, 1990, that arose out of and in the course of decedent's employment causing him to be hospitalized and have a C-7 surgery on October 31, 1990. Decedent's October 1, 1990 work injury which required hospitalization and surgery on October 31, 1990, ultimately resulted in his death on October 31, 1990. Decedent's C-3 tumor contributed to and complicated and increased decedent's risk on October 31, 1990, but was discovered sequelally to decedent's disc and compressed nerve injury on October 1, 1990, and that this C-3 tumor which was discovered as a result of an MRI performed because of decedent's October 1, 1990 C-7 injury was not in and of itself the cause of or the reason for decedent's October 31, 1990 surgery. Decedent's death was caused by the surgical process initiated primarily by his work injury on October 1, 1990. A pathologist is not competent to override and challenge the judgment and surgical procedure performed by a qualified competent neurologist surgeon. Claimant is entitled to the temporary total disability benefits from October 1, 1990 through October 31, 1990, at the weekly rate of $613.75. Teresa Breeding is the surviving spouse of the deceased, Daniel Breeden, and has not remarried. Daniel Breeden, the deceased, left three dependent children who were entirely dependent upon his earnings. order THEREFORE, it is ordered: That claimant is entitled to four point two (4.2) weeks of temporary total disability benefits at the rate of six hundred thirteen and 75/100 dollars ($613.75) for the period of October 1, 1990 through October 31, 1990. That defendants shall pay to Teresa Breeden, surviving spouse, six hundred thirteen and 75/100 dollars ($613.75) per week for the remainder of her life or until she remarries, provided that upon her remarriage two (2) years of benefits will be paid to her in a lump sum if there are no children entitled to benefits. That defendants shall pay to the dependent children of decedent Daniel Breeden if Teresa Breeden, the surviving spouse, remarries, six hundred thirteen and 75/100 dollars ($613.75) per week until the children reach the age of 18 provided that a child beyond 18 years of age shall receive benefits to the age of 25 if actually dependent, and the fact that a child is under 25 years of age and enrolled as a Page 15 full-time student in any accredited educational institution shall be a prima facie showing of actual dependency, all as provided under Iowa Code section 85.31. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. The parties stipulated that nine hundred eight and 57/100 dollars ($908.57) of sick pay was paid by defendants. That defendants shall pay four thousand dollars ($4,000) to the Second Injury Fund of Iowa, as provided by Iowa Code section 86.64. That defendants shall pay the burial expenses in the amount of one thousand dollars ($1,000), as provided in Iowa Code section 85.25. That defendants shall pay any medical and hospital bills incurred as a result of this injury and decedent's death. That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall pay the costs of this action, pursuant to rule 343 IAC 4.33. That defendants shall file an activity report upon payment of this award as required by this agency, pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of February, 1992. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Roger J Hudson Mr Steven H Shindler Attorneys at Law 1000 Equitable Bldg Des Moines IA 50309 Page 16 Mr Frank T Harrison Attorney at Law Terrace Ctr Ste 111 2700 Grand Ave Des Moines IA 50312 Mr Alan Anderson Attorney at Law P O Box 245 Polk City IA 50226 1100; 1108; 1805, 2600 Filed February 27, 1992 Bernard J. O'Malley before the iowa industrial commissioner ____________________________________________________________ : TERESA A. BREEDEN, Surviving : Spouse of DANIEL K. BREEDEN, : : Claimant, : : vs. : : File No. 966020 FIRESTONE TIRE AND RUBBER : COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CIGNA INSURANCE COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1100 Found Mr. Breeden's (deceased) injury arose out of and in the course of his employment on October 1, 1990. 1108 Found Mr. Breeden's C-7 disc-nerve compression, caused by an October 1, 1990 work injury, as the primary reason for and cause of his October 31, 1990 surgery and cause of death on the operating table on October 31, 1990. Found that Mr. Breeden's C-3 benign tumor found as a result of an MRI done to further analyze his C-7 disc problem, was not the primary cause of his surgery or his death on the operating table on October 31, 1990. The doctor decided to do both operations on same day, one after the other. The C-7 was done first and the C-3 last. 2600 Found that a pathologist who never has treated disc problems, nor treated patients, nor perform surgery, nor talked to claimant or the neurologist, was not competent to challenge and override a neurosurgeon and second guess his opinion as to the cause of Mr. Breeden's symptoms, reason for surgery and ultimate cause of death under circumstance of the case. 1805 Found that although actual cause of death was not specifically known even after an autopsy was done, the fact that the work injury caused Mr. Breeden to have the surgery and claimant's unfortunate death results in the defendants being liable for the results of the surgery and Mr. Breeden's death. This action was brought by Teresa Breeden, surviving spouse of Daniel Breeden. BEFORE THE IOWA INDUSTRIAL COMMISISONER ____________________________________________________________ : PHILLIP RAY, : : Claimant, : : vs. : : File No. 966038 CRANE VALVES, : 1016382 : Employer, : A R B I T R A T I O N : and : D E C I S I O N : CIGNA PROPERTY AND CASUALTY : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by claimant, Phillip Ray, against his former employer, Crane Valves and its insurance carrier, Pacific Employers Insurance. Mr. Ray seeks additional workers' compensation benefits as a result of work-related injuries he sustained on September 4, 1990 (agency file number 966038) and February 19, 1992 (agency file number 1016382). This matter came on for hearing on August 2, 1993 at Oskaloosa, Iowa. The record in the case consists of testimony from the claimant, Tresa Ray, claimant's wife, Phyllis Scheeler, a nurse employed by Crane Valve, and Brenda Perry, Human Resources Manager and Plant Comptroller for Crane Valve; claimant's exhibits 50 and 51; and, joint exhibits 1-7. The case was considered fully submitted at the close of the hearing. ISSUES For file number 966038, the parties submitted the following issues for resolution: 1. Whether claimant sustained a 10 percent loss of use of his hand or a 9 percent loss of use of his upper extremity due to the work injury of September 4, 1990; and, 2. Claimant's correct workers' compensation rate. The parties were able to agree that at the time of this injury, claimant was married and entitled to five exemptions. For file number 1016382, the parties submitted the following issues for resolution: 1. Whether claimant sustained a permanent disability due to the work-related injury of February 19, 1992; Page 2 2. Whether claimant is entitled to permanent partial disability benefits due to the injury of February 19, 1992; and, 3. Claimant's correct workers' compensation rate. The parties were able to agree that at the time of this injury, claimant was married and entitled to five exemptions. FINDINGS OF FACT The undersigned deputy, having reviewed all of the evidence received, finds the following facts: Claimant, Phillip Ray was born on October 19, 1955, and was 38 years of age at the time of the hearing. Mr. Ray began working as a grinder for the defendant employer in February of 1990. As a grinder, claimant's job duties included working with numerous air tools (chisels and sanders) to refine castings. These tools produced an extensive amount of vibrations. The employer provided gloves to claimant to help alleviate the vibrations. On September 4, 1990, claimant was called upon to help in a different department. He was to transfer molten metal from the induction oven to a ladle. While performing his duties, his left hand caught between the ladle and a platform, and claimant sustained a crush injury to the left hand (Joint Exhibit 4, page 1). He went to the company nurse, and was sent to the Washington County Hospital, Oskaloosa, Iowa. Due to the severity of the injury, claimant was referred to a specialist at the University of Iowa Hospitals and Clinics in Iowa City, Iowa. He was treated by William Blair, M.D., and Kent Pearson, M.D., and underwent surgery to repair a fractured left index finger (Jt Ex. 1, pages 1-9). Subsequent follow-up visits to Dr. Blair indicate that claimant was recovering well from the injury and surgery, and it was recommended that he begin physical therapy (Jt. Ex. 1, pp. 10-15). From October 8 through October 17, 1990, claimant underwent six therapy sessions at the University of Iowa, and the record reveals that he was compliant with all directions given to him (Jt. Ex. 1, pp. 16-22). Claimant was then referred to the physical therapy department at Washington County Hospital in Oskaloosa, Iowa, and met with Pam Hazell on October 23, 1990. Ms. Hazell noted swelling and severe sensitivity in the left index finger, and claimant continued both on-site therapy sessions as well as a home exercise program (Jt. Ex. 1, pp. 24-29). On November 26, 1990, claimant returned to Dr. Blair, whose physical examination revealed less swelling and limited range of motion in the left index finger. Dr. Blair recommended additional physical therapy sessions and continued use of a dynamic orthotic (Jt. Ex. 1, p. 31). While additional notes from Dr. Blair indicate that claimant had continued his therapy with Washington County Hospital, the undersigned was unable to locate any notes Page 3 from the physical therapist that chart claimant's progress after November 16, 1990. In any event, Dr. Blair's management of claimant's condition continued until February 11, 1991. At that time, he was released, and instructed to return to the clinic on an as-needed basis (Jt. Ex. 1, pp. 30-36). On February 28, 1991, Dr. Blair provided the claimant with discharge instructions, and recommended that he return to work on March 2, 1991, and perform only partial duty until March 9, 1991 (Jt. Ex. 1, p 38). Additionally, Dr. Blair provided the defendant insurance carrier with a report which delineated claimant's permanent functional impairment. Using the AMA Guides to the Evaluation of Permanent Impairment, he believed claimant had sustained a 50 percent impairment to the "right (sic) index finger. This is based upon his loss of active motion. This 50% impairment is equivalent to a 10% impairment of his left hand, which is equivalent to a 9% impairment of the left upper extremity. The loss of motion is permanent, and we anticipate no additional surgical treatment for this condition." (Jt. Ex. 1, pp. 37) Essentially the same report was provided to claimant's counsel on July 6, 1992 (Jt. Ex. 1, p. 46). During the next several months, claimant was assigned to several positions with the company, including lead man in the grinding room, which involved supervision and some grinding detail; a position as painter, which required him to use an electric gun to paint various parts; and, his prior job duties as a grinder. Once claimant returned to his regular, full-time position as a grinder, he began to experience pain and numbness in both hands. He complained to his supervisor, Mr. Roberts, and was sent to the company nurse. Ms. Scheeler has no recollection of this visit, but according to claimant, a report and medical record notations dated February 21, 1992, claimant was sent to Pe-Hsun Tung, M.D., due to his complaints of tingling and soreness in both arms (Jt. Ex. 2, p. 2). See also, an accident report dated February 19, 1992 (Jt. Ex. 4, pp. 1-2). After an examination which revealed positive Phalen's and Tinel's tests bilaterally, claimant was scheduled for an EMG, which indicated that claimant had a mild degree of carpal tunnel in both wrists (Jt. Ex. 2, pp. 1-3). Dr. Tung performed carpal tunnel release surgery on the right wrist on April 16, 1992 (Jt. Ex. 7, pp. 1-3) and on the left wrist on May 28, 1992. He provided follow-up care until August 20, 1992 when he released claimant to return to work, and rendered an opinion regarding any permanent impairment caused by claimant's condition and the surgeries (Jt. Ex. 2, pp. 4-10). Dr. Tung examined claimant, and using the AMA Guide to the Evaluation of Permanent Impairment, did not assign any permanent impairment (Jt. Ex. 2, p. 11). In August of 1992, claimant sought from Dr. Blair a second opinion addressing possible permanent impairment due to the carpal tunnel syndrome and releases. A physical Page 4 examination revealed that claimant had full active and passive range of motion of all digits except the left index finger. Tinel's and Phalen's tests were negative, as were hyperflexion tests. Dr. Blair, observing that claimant displayed some loss of grip strength, and presented with persistent symptoms such as fatigue, assigned a two percent impairment to the right hand and three percent impairment to the left hand. He converted both ratings to the upper extremities, which are equivalent to two percent and three percent to the right and left extremities, respectively (Jt. Ex. 1, pp. 49-50). Claimant's personnel file is also a portion of the evidence (Jt. Ex. 6). Finally, the parties submitted various figures in order to determine claimant's workers' compensation rate. Claimant argues that for the September 4, 1990 injury, his workers' compensation rate is $269.24 per week based on gross weekly earnings of $5,259.52 and the applicable exemptions. (Claimant's exhibit 50). Defendants argue that claimant's rate is $265.80 based on gross weekly earnings of $4,750.33 and the applicable exemptions. For the February 19, 1992 injury, claimant believes his rate is $260.45 per week based on gross weekly earnings of $5,034.29 and the applicable exemptions; defendants believe claimant's rate is $248.00 based on gross weekly earnings of $4,750.33. Defendants paid weekly benefits at $294.42 or $248.00 per week for this injury. Claimant testified that he worked overtime hours on occasion. Some of the hours were mandatory, and some of the hours worked were worked on a voluntary basis. The voluntary hours were offered to any employee who was able to perform the specific job duties needed. The employer periodically laid off employees, and claimant testified that he voluntarily quit his job in April of 1992, after being subjected to another in a series of lay-offs. Currently, claimant is self-employed as a truck driver. ANALYSIS AND CONCLUSIONS OF LAW AGENCY FILE NUMBER 966038 The first issue to be addressed is whether claimant has sustained a 10 percent impairment to his hand, or whether claimant sustained a 9 percent impairment to his left upper extremity. Iowa Code section 85.34(2) states, in pertinent part: Permanent partial disabilities. Compensation for permanent partial disability shall begin at the termination of the healing period provided in subsection 1 of this section....For all cases of Page 5 permanent partial disability compensation shall be paid as follows: .... b. For the loss of a first finger, commonly called the index finger, weekly compensation during thirty-five weeks. .... l. For the loss of a hand, weekly compensation during one hundred ninety weeks. m. The loss of two-thirds of that part of an arm between the shoulder joint and the elbow joint shall equal the loss of an arm and the compensation therefor shall be weekly compensation during two hundred fifty weeks. There is no evidence in the record which even remotely suggests that claimant has sustained a permanent impairment to his left upper extremity due to the crush injury he sustained on September 4, 1990. While it is noted that Dr. Blair provided ratings addressing the loss to the index finger, and then converted the rating to both the hand and upper extremity, his examinations and notes indicate that claimant has sustained a loss of range of motion of the left index finger. Claimant testified that the only residual problem he has due to the crush injury is an inability to fully bend his finger. There is no evidence that his impairment invades the hand or the upper extremity. As the agency has stated many times, it is the anatomical situs of the impairment which determines whether the schedules in section 85.34(2)(a)-(t) are used. There is no doubt that the schedules do apply, and that claimant permanent impairment is to the left index finger. As a result, it is found that claimant has sustained a 50 percent impairment to his left index finger. Using the schedule, claimant is entitled to 17.5 weeks of permanent partial disability benefits due to this injury. The next issue to address is claimant's rate. Iowa Code section 85.36 provides, in relevant part: The basis of compensation shall be the weekly earnings of the injured employee at the time of the injury. .... 6. In the case of an employee who is paid on a daily, or hourly basis, or by the output of the employee, the weekly earnings shall be computed by dividing by thirteen the earnings, not including overtime or premium pay, of said employee earned in the employ of the employer in the last completed period of thirteen consecutive calendar Page 6 weeks immediately preceding the injury. Rule 343 IAC 8.2 provides the following information: The word "overtime" as used in Iowa Code section 85.61 means amounts due in excess of the straight time rate for overtime hours worked. Such excess amounts shall not be considered in determining gross weekly wages within Iowa Code section 85.36. Overtime hours at the straight time rate are included in determining gross weekly earnings. Claimant's rate is easily determined. Defendants argue that overtime hours worked by claimant should not be included in his rate calculation because he volunteered to work the overtime hours. Claimant testified that some of the overtime hours were mandatory, and some were voluntary. The undersigned is unable to find any authority for defendants' argument. Whether the overtime hours worked were voluntary is irrelevant. Claimant was paid for the overtime hours worked, and as a result, they are calculated at straight time and are included in determining gross weekly earnings. Claimant's gross weekly earnings for the thirteen weeks prior to his injury were $5,259.52, divided by 13 equals $404.58. Pursuant to the July, 1990 Guide To Iowa Workers' Compensation Claim Handling, claimant's workers compensation rate is $269.24 for the September 4, 1990 injury date. AGENCY FILE NUMBER 1016382 The first issue to be addressed is whether claimant sustained a permanent disability due to the carpal tunnel symptoms caused by his work which manifested themselves on February 19, 1992. If it is determined that claimant has sustained any permanency due to this injury, the amount of permanent partial disability benefits to which he is entitled will be determined under Iowa Code section 85.34(2)(s). Dr. Tung was the treating physician with respect to the diagnosis and treatment of the carpal tunnel problems. Once he had completed his management of the case and released claimant to return to work, he did not detect any permanent impairment to either wrist. A second opinion, given by Dr. Blair, states that claimant has sustained minimal impairments of two percent to the right hand, and three percent to the left hand. A treating physician's testimony is not entitled to greater weight as a matter of law than that of a physician who later examines claimant in anticipation of litigation. Weight to be given testimony of physician is a fact issue to be decided by the industrial commissioner in light of the record the parties develop. In this regard, both parties may develop facts as to the physician's employment in Page 7 connection with litigation, if so; the physician's examination at a later date and not when the injuries were fresh; the arrangements as to compensation; the extent and nature of the physician's examination; the physician's education, experience, training, and practice; and all other factors which bear upon the weight and value of the physician's testimony may be considered. Both parties may bring all this information to the attention of the factfinder as either supporting or weakening the physician's testimony and opinion. All factors go the value of the physician's testimony as a matter of fact not as a matter of law. Rockwell Graphic Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985). A wrist injury generally is an injury to the hand, not the upper extremity. The hand extends to the distal end of the radius and ulna, including the carpus or wrist. Elam v. Midland Mfg., II Iowa Industrial Commissioner Report 141 (App. 1981). Claimant's own testimony is the most dependable factor in finding that he has not sustained any permanent impairment due to the carpal tunnel syndromes and subsequent surgeries. During the hearing, he maintained that he had received a very good result from the surgeries. His main concern was the residual pain and loss of range of motion in his left index finger. As a result, it is found that claimant has not sustained a permanent impairment to either hand due to the carpal tunnel surgeries. Claimant takes nothing for this cause of action. ORDER THEREFORE, IT IS ORDERED: That defendants shall pay claimant permanent partial disability benefits totaling seventeen point five (17.5) weeks at the rate of two hundred sixty-nine and 24/100 dollars ($269.24) per week commencing March 2, 1991. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. That defendants shall pay interest on benefits awarded herein as set forth in Iowa section 85.30. That defendants shall pay the costs of this action, pursuant to rule 343 IAC 4.33. That defendants shall file an activity report upon payment of this award as required by the agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of August, 1993. Page 8 ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Bruce L Walker Attorney at Law 321 Market St P O Box 2150 Iowa City IA 52244-2150 Mr Mark A Woollums Attorney at Law 600 Union Arcade Bldg 111 E Third St Davenport IA 52801-1596 5-1800 Filed August 13, 1993 Patricia J. Lantz BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : PHILLIP RAY, : : Claimant, : : vs. : : File No. 966038 CRANE VALVES, : 1016382 : Employer, : A R B I T R A T I O N : and : D E C I S I O N : CIGNA PROPERTY AND CASUALTY : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1800 Claimant awarded 17.5 weeks due to 50% loss of use of index finger.