BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ ROBERT W. JOHNSON, Claimant, vs. File No. 969091 FIRESTONE TIRE & RUBBER, A P P E A L Employer, D E C I S I O N and CIGNA, 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 March 22, 1993 is affirmed and is adopted as the final agency action in this case with the following additional analysis: The parties seek to distinguish this case from Prewitt v. Firestone Tire and Rubber Company, Appeal Decision, August 12, 1992. Prewitt does not contain a new holding of law. Prewitt applied longstanding authority for the proposition that the compensation for an injury to a shoulder is determined by the situs of the impairment resulting from that injury. If the impairment extends beyond the arm to the body, the compensation will be in the form of industrial disability. If the impairment from the injury is confined to the arm, the compensation will be according to the schedule. The particular facts of Prewitt resulted in compensation for the arm rather than the body as a whole because the facts in Prewitt failed to show the impairment extended beyond the arm. Although apparently much misunderstood, Prewitt did not set forth new law. Where two cases involve the same principle of law, but differ factually and result in different conclusions because of those differences in facts, it is not necessary to distinguish the one case from the other. In this case, the same legal principle applies that controlled in Prewitt and Lauhoff Grain Co. v. McIntosh, 395 N.W.2d 834 (Iowa 1986). That is, the situs of the impairment controls the compensation. Although Lauhoff may be summarized by some as standing for the principle that "injuries to the shoulder Page 2 are injuries to the body as a whole," such is an oversimplification and misleading. Prewitt is consistent with Lauhoff and many other precedents of this agency in stating that, in shoulder injuries, the situs of the impairment controls the method of compensation. The fact that applying this principle to the facts of Prewitt led to an infrequently seen result does not indicate that Prewitt has made new law; on the contrary, Prewitt has reaffirmed longstanding law. Under the facts of this case, the medical evidence clearly indicates that the impairment from claimant's shoulder injury did extend beyond the arm into the body as a whole. Claimant is to be compensated industrially. Defendants 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. Robert W. Pratt Attorney at Law 6959 University Avenue Des Moines, Iowa 50311 Mr. Marvin E. Duckworth Attorney at Law 2700 Grand Ave., Ste 111 Des Moines, Iowa 50312 1803; 1803.1 Filed August 23, 1993 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ ROBERT W. JOHNSON, Claimant, vs. File No. 969091 FIRESTONE TIRE & RUBBER, A P P E A L Employer, D E C I S I O N and CIGNA, Insurance Carrier, Defendants. _________________________________________________________________ 1803.1 Left shoulder injury was compensated industrially where claimant's doctor testified that the injury was to the shoulder as opposed to an injury to the fingers, the hand, the wrist, or the elbow. The treating physician testified that the injury involved the three muscles at the front of the shoulder. The treating orthopedic surgeon restricted claimant from any overhead work and from working above the shoulder level. This case was distinguished from Prewitt v. Firestone Tire and Rubber Company, (Appeal Decision, August 12, 1992). 1803 Claimant was awarded a 50 percent industrial disability as a result of an injury to the left shoulder. Claimant returned to work at the plant where he had sustained his work injury. However, claimant was unable to return to his former position as a tire builder. Three physicians restricted claimant from tire building. Claimant was accommodated but his new position paid approximately $15.00 per hour as opposed to the former position where he would have earned $25.71 per hour. Claimant was restricted from engaging in overhead work and from working above shoulder level. Certain weight restrictions were also imposed. The restrictions were severe, although claimant's position within the plant was secure. Claimant had no hope of ever earning the same rate of pay as he had earned prior to the left shoulder injury. Page 1 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : ROBERT W. JOHNSON, : : Claimant, : : vs. : : File No. 969091 FIRESTONE TIRE & RUBBER, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CIGNA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration upon the petition of claimant, Robert W. Johnson, against his employer, Firestone Tire and Rubber Company, and its insurance carrier, CIGNA Insurance Company, defendants. The case was heard on March 9, 1993 at the office of the industrial commissioner in Des Moines, Iowa. The record consists of the testimony of claimant. The record is also comprised of the testimony of Mike Ables, Benefits Representative for Local 310 of the United Rubber Workers. Finally, the record is comprised of claimant's exhibits 1-59 and defendants' exhibits A-N. ISSUES The sole issue for determination is the nature and extent of any permanent partial disability benefits. FINDINGS OF FACT The deputy, having heard the testimony and considered all the evidence, finds: Claimant is 50 years old, although he appears much younger than his stated years. He is married and lives on a small family farm in Osceola, Iowa. He has a high school diploma which he had earned in 1961 from Valley High School in West Des Moines, Iowa. Claimant commenced his employment with defendant-employer in August of 1965. However, because of a layoff, his adjusted starting date is listed as November 13, 1965. Other than during periods for strikes and layoffs, claimant has been continuously employed by defendant-employer. For most of his employment, claimant has been a tire builder. His duties have included servicing tire builders, supervising tire builders, instructing new tire builders, and serving as a quality coordinator. He has Page 2 been an excellent employee with an outstanding work record. Claimant has sustained several work injuries during his tenure with defendant-employer. In 1982 claimant sustained a work injury to his right shoulder. After the work injury, claimant was able to resume his regular duties as a tire builder. He performed all of his assigned tasks without complications. Claimant sustained other work injuries but none of the injuries prevented claimant from returning to his duties as a tire builder. On March 27, 1989, claimant sustained another work-related injury. He was attempting to remove some rubber material from a tray. He was working over his head with his left arm. He felt his left arm jerk back and over his head. He experienced pain in his left shoulder area. Claimant did not seek medical attention on the date of the injury but he did report the injury. However, he sought medical attention on the following day. For a period of time claimant was treated conservatively. In May of 1989 claimant was authorized to seek treatment from an orthopedic specialist, Marvin H. Dubansky, M.D. Initially, Dr. Dubansky treated claimant in a conservative fashion. Eventually, Dr. Dubansky diagnosed claimant as having an impingement syndrome of the left shoulder (Exhibit E, page 6). Dr. Dubansky performed an impingement release on September 1, 1989. In his deposition, Dr. Dubansky described the surgical procedure as: Q. What was the nature of that surgery? A. An impingement release. Basically it was a Neer acromioplasty, which one thins down the underside of the acromion, and a resection of the coracoacromial ligament (Ex. E, p. 6, lines 21-25) Claimant remained in a healing period subsequent to the date of the surgery. His employer was able to return claimant to a light duty position where he was able to drive a fork lift truck. Dr. Dubansky advised claimant to work so long as he was able to keep his elbows to his side (Ex. E, p. 7). Claimant's progress was monitored by the treating orthopedic surgeons, Dr. Dubansky and his associate Dr. Kenney (first name unknown), as well as by the plant physician, James Blessman, M.D. Gradually, the physicians modified claimant's restrictions. Nevertheless, Dr. Dubansky refused to release claimant to tire building. The physician opined that claimant was not medically capable of returning to that position because the nature of the work involved reaching up and out with the left arm. Dr. Dubansky permanently restricted claimant from engaging in over head work and from working above the shoulder. The physician advised claimant to take as much stress off of his shoulder as possible. Page 3 Dr. Dubansky opined the following in his report of July 30, 1991: Pursuant to our conversation of July 25, 1991 and my review of your chart, I feel that tirebuilding, [sic] probably because of the nature of the job, would have an excellent chance of causing recurrence of your symp toms. However, I feel that jobs not requiring repeti tive lifting above your head should probably not cause resurgence of your problem. If you are only occasion ally required to lift above your head, I do not feel that something of this nature, say 5 to 6 times an hour should be a source of difficulty. As far as weight limitations, the only thing I know to satisfy this would be a Functional Capacity Evaluation. (Ex. 58) Dr. Dubansky rated claimant as having a permanent functional impairment using the AMA Guides to the Evaluation of Permanent Impairment, Third Edition. Dr. Dubansky opined that claimant had a six percent impairment to the left upper extremity which equated to a four percent impairment to the body as a whole. The plant physician, Dr. Blessman, also refused to return claimant to work as a tire builder (Ex. 72). Claimant continued to argue with the plant physician regarding a return to work as a tire builder. Dr. Blessman authorized a functional capacity evaluation through Thomas Bower, LPT. The plant doctor also authorized another opinion from another orthopedic specialist. As a result, defendants approved an independent medical examination from Jerome Bashara, M.D. Dr. Bashara examined claimant on one occasion, March 8, 1991. In his report, Dr. Bashara opined that: DIAGNOSIS: 1) Impingement syndrome, left shoulder, postoperative status related to an injury at work, March of 1989. I would give the patient a 9% permanent partial physi cal impairment of the left upper extremity which should be converted to a 5% permanent partial physical impair ment of his body as a whole as the surgery did involve the patient's scapula and, therefore, went into the body as a whole and beyond the humeral head. (Ex. 83) The functional capacity evaluation was performed by Tom Bower, LPT on October 14, 1991. Based upon his findings, Mr. Bower restricted claimant as follows: POSITION MAXIMUM LIFT FREQUENT LIFT REPETITIVE Floor to Waist 60 lbs. 52 lbs. 42 lbs. Chest Height 40 lbs. 35 lbs. 17 lbs. Page 4 Overhead 40 lbs. 35 lbs. 17 lbs. Carry 60 lbs. 52 lbs. 42 lbs. Push/Pull 190 lbs. (Ex. 105) During his hearing, claimant testified that as of May 16, 1991, he was permanently transferred from the tire builder posi tion. His rate of pay dropped from $23.50 per hour as a tire builder to $12.01 per hour as a jeep driver. In March of 1992, claimant was transferred from the jeep driver position, which he did not enjoy, to the position of tire processor inspector. He was compensated at the rate of $14.86 per hour. At the time of the hearing, claimant was earning $15.23 per hour. Claimant tes tified that if he had remained a tire builder, he would have been earning in excess of $25.00 per hour. Claimant also testified that the first year in which the reduced wages were reflected was calendar year 1992. During the hearing, claimant also testified to retirement eligibility. He testified he would be eligible for retirement after 30 years of employment. His earliest date for retirement was given as 1995. Claimant had no immediate plans to retire at the time of the hearing. Mike Ables testified to some of the benefits which an employee of defendant-employer could earn. He testified that the average hourly earnings in the tire room equated to $25.71 per hour but there was no way for the witness to predict what claimant would have earned if he had not been injured and thus medically removed from the tire building position. Mr. Ables also testified that after 30 years, an employee could retire from defendant-employer and still receive the full pension. CONCLUSIONS OF LAW The party who would suffer loss if an issue were not estab lished has the burden of proving that issue by a preponderance of the evidence. Iowa R. App. P. 14(f). 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 differ ent specific injuries. The employee is not entitled to compensa tion except as the statute provides. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). Compensation for permanent partial disability begins at ter mination of the healing period. Section 85.34(2). Permanent partial disabilities are classified as either scheduled or un scheduled. A specific scheduled disability is evaluated by the functional method; the industrial method is used to evaluate an unscheduled disability. 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 Page 5 (1960). 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, 222 Iowa 272, 268 N.W. 598 (1936). When disability is found in the shoulder, a body as a whole situation may exist. Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 (1949). In Nazarenus v. Oscar Mayer & Co., II Iowa Indus. Comm'r Rep. 281 (Appeal December 1982); a torn rotator cuff was found to cause disability to the body as a whole. Claimant alleges that he has sustained an injury to the body as a whole and that he is entitled to industrial disability bene fits. Defendants are of the view that claimant's shoulder injury has caused disability only to the upper extremity and should be compensated as a scheduled loss. Formerly, this division compen sated shoulder injuries industrially on the basis that such injuries involved disability to the body as a whole. Streeter v. Iowa Meat Processing Company, (Appeal Decision, March 31, 1989). A more recent appeal decision emphasized that it is the situs of disability that is determinative. In Prewitt v. Firestone Tire and Rubber Company, (Appeal Decision, August 12, 1992), the industrial commissioner held that where the treating surgeon testified that claimant had full range of motion and full strength of the shoulder following an injury and surgery, then claimant had sustained an injury to the arm rather than to the shoulder. In the case at hand, claimant's injury is an injury to the body as a whole. Claimant's injury can be distinguished from the injury in the Prewitt case. In the present situation, Dr. Dubansky testified in his deposition that: Q. Doctor, as a layperson, when you orthopedic physicians, trained as you are, talk about the rotator cuff, so I and perhaps the Commissioner may better understand, what is the rotator cuff? A. It's composed basically of three muscles which take their origin on the scapula, which is the shoulder thing. It passes and inserts into the head of the humerus, into the greater and lesser--the greater and lesser trochanters of the humerus. And when that muscle contracts, it shortens, and because of the configuration of the head of the humerus and glenoid, and because of the deltoid, the arm elevates. Q. Is it fair for me to conclude from that that it's the series of muscles that help the arm fit into Page 6 the body at what is referred to as the shoulder area? A. Well, it depends on what you call body. Q. Okay. A. The medical definition would be those are the muscles that run the shoulder. Now, whether you call it body or whether you call it shoulder or upper extremity, I don't know. Q. Your notes, Doctor, of 5-31-89 reflect the history of the anterior rotator cuff area. And, again, as a layperson, when you say the "anterior rotator cuff area," where are you talking about, Doctor? A. Front of the shoulder. Q. Okay. A. That's where it inserts and that's where he was tender. Q. And on June 8, '89, you say that he was tender in the rotator cuff area, and so you did an injection into the left rotator cuff area. Where is the injec tion, Doctor, that you performed? A. In front. It's into the ligament, actually, the coracoacromial ligament and bursa, subacromial bursa area. Q. Doctor, if we have an imaginary line between the humerus and clavicle, what side would the injection fall on that you made on the 8th of June? A. Line between the what? Q. Clavicle and humerus. Are you injecting on the side-- A. You're injecting beneath the clavicle and toward the midline--actually into the humerus, where the muscle attaches. ... Q. Doctor, what is the technical difference between a rotator cuff tear and an impingement syndrome? A. Impingement syndrome merely means things are tight. Like if that door were half as wide and I tried to walk through it, I would be impinged. A rotator cuff tear is where the muscle that I previously described is actually torn. There's a loss of continu ity between the muscle and insertion into the head of the humerus. Q. Doctor, when you did the surgery on September 1, Page 7 '89, did you actually remove part of the person's acromial--of the acromion? A. Yes. The under surface of the acromion. That's the Neer acromioplasty. Q. When you say you resected something, what do you do? A. I remove the ligament that goes from the tip of the acromion to the tip of the coracoid. Q. Doctor, if you would look at your note of 62190, just if you'd read it to yourself, and I want to ask you a question about it, if I may. A. Yes. Q. So I can have this right, the "D" is you as opposed to another? A. Yes. Q. Based upon this note, when do you think that Mr. Johnson reqained the ability to, or when did he reach maximum medical recuperation from the effects of the injury of March 27? Page 8 A. Well, at that time I just said for sometime. I'm not sure what that means. Q. When you tell us there's some atrophy of the deltoid muscle, Doctor, again as a layperson, what does that mean? A. The deltoid is the muscle that you see that sort of rounds out the shoulder, that you can actually visu alize, and it seemed a little smaller than his other side, so that--he hadn't been using it as much. So atrophy means it's smaller, the muscle has gone down in size. Q. Would that be related to the injury and surgery? A. Yes. (Ex. E, p. 13, l. 8 through p. 15, l. 7; and p. 17, l. 3 through p. 18, l. 21) Claimant's injury extends into the front of the shoulder. The three muscles which operate the shoulder are involved. Addi tionally, Dr. Dubansky has opined that claimant has a functional impairment to the shoulder rather than to the fingers, the hand, the wrist, or the elbow. (Ex. E, p. 20, l. 21 through p. 21, l. 7). Claimant has sustained an injury to the body as a whole. Claimant's injury is to be compensated industrially. Since claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percent ages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience, motivation, loss of earnings, severity and situs of the injury, work restrictions, inability to engage in employment for which the employee is fitted and the employer's offer of work or failure to so offer. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). Compensation for permanent partial disability shall begin at the termination of the healing period. Compensation shall be paid in relation to 500 weeks as the disability bears to the body as a whole. Section 85.34. While it is acknowledged that claimant has sustained prior work injuries, including an injury to his right shoulder in 1982, his prior injuries have no effect upon any industrial disability. Page 9 Prior to the work injury in question, claimant was able to per form all duties which were assigned to him. He was able to work as a tire builder which paid wages in excess of $23.00 through $25.00 per hour. Subsequent to the injury involving the left shoulder, claimant has been unable to perform his duties as a tire builder. He has made repeated efforts to find a physician who will return claimant to his former position. As of March of 1992, claimant's diminution in earning capacity is reflected in his positions with defendant-employer. He is incapable of returning to tire build ing. He has some employment opportunities available to him within the plant. However, the positions pay considerably less than does the position of tire building. Claimant is prohibited from engaging in overhead work or from working above his shoul ders. There are some lifting restrictions which are imposed upon claimant. The restrictions are severe. The available positions pay in the range of $12.00 to $15.25 per hour. Claimant has a very slim chance of earning in the $25.00 per hour range again. Claimant's job is secure. There is little likelihood of termina tion. He has a seniority date which places him at 200 out of 1240. He can retire, if he so chooses, after 30 years. In light of all of the above, as well as in light of the record in general and given this deputy's observation of claimant, it is held that claimant has sustained an industrial disability equivalent to 50 percent of the body as a whole or 250 weeks. Claimant is entitled to weekly benefits at the stipulated rate of $629.86 per week. Per the parties' stipulation, the ben efits shall commence on December 14, 1989. ORDER THEREFORE, it is ordered: Defendants shall pay unto claimant two hundred fifty weeks (250) of permanent partial disability benefits at the stipulated rate of six hundred twenty-nine and 86/l00 dollars ($629.86) per week commencing on December 14, 1989. Defendants shall take credit for all benefits voluntarily paid prior to hearing. All accrued benefits shall be paid in a lump sum together with statutory interest pursuant to Iowa Code section 85.30. Costs are assessed to defendants pursuant to rule 343 IAC 4.33. Defendants shall file a claim activity report as requested by this division and pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of March, 1993. Page 10 ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert W. Pratt Attorney at Law 6959 University Avenue Des Moines, Iowa 50311 Mr. Marvin E. Duckworth Attorney at Law Terrace Center STE 111 2700 Grand Avenue Des Moines, Iowa 50312 1803; 1803.1 Filed March 19, 1993 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ ROBERT W. JOHNSON, Claimant, vs. File No. 969091 FIRESTONE TIRE & RUBBER, A R B I T R A T I O N Employer, D E C I S I O N and CIGNA, Insurance Carrier, Defendants. ___________________________________________________________ 1803.1 Left shoulder injury was compensated industrially where claimant's doctor testified that the injury was to the shoulder as opposed to an injury to the fingers, the hand, the wrist, or the elbow. The treating physician testified that the injury involved the three muscles at the front of the shoulder. The treating orthopedic surgeon restricted claimant from any overhead work and from working above the shoulder level. This case was distinguished from Prewitt v. Firestone Tire and Rubber Company, (Appeal Decision, August 12, 1992). 1803 Claimant was awarded a 50% industrial disability as a result of an injury to the left shoulder. Claimant returned to work at the plant where he had sustained his work injury. However, claimant was unable to return to his former position as a tire builder. Three physicians restricted claimant from tire building. Claimant was accommodated but his new position paid approximately $15.00 per hour as opposed to the former position where he would have earned $25.71 per hour. Claimant was restricted from engaging in overhead work and from working above shoulder level. Certain weight restrictions were also imposed. The restrictions were severe, although claimant's position within the plant was secure. Claimant had no hope of ever earning the same rate of pay as he had earned prior to the left shoulder injury. Page 1 2701, 2501, 2700, 2902, 2906 Filed April 6, 1993 Walter R. McManus BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DAVID L. KUSTER, SR., Claimant, vs. File No. 969141 ROSE ACRE FARMS, A L T E R N A T E M E D I C A L Employer, C A R E D E C I S I O N and HOME INSURANCE COMPANY, Insurance Carrier, Defendants. ___________________________________________________________ 2701, 2501, 2700, 2902 Claimant failed to prove that he was entitled to alternate medical care for his alleged vision, continuing pain and depression. Claimant specifically asked to see an ophthalmologist, a chiropractor and a psychiatrist as a part of his treatment for this injury. None of the medical practitioners whose reports are in evidence indicated that claimant was actually in need of this care. Claimant produced no independent medical evidence from any other medical practitioners that he was in need of this care. Nor had claimant sought or paid privately for such care in the two years and four months since this injury with exception of a few chiropractic treatments. Nor did claimant, who claimed to be financially needy, request such care from county health programs. Defendants established that claimant received reasonable care. 2906 Even though defendants alleged and established that claimant did not communicate his request for this care prior to filing his petition as required by Iowa Code section 85.27 and Rule 343 IAC 4.48(4), and also even though defendants established that claimant had not responded to discovery requests made in December of 1992 as required by Rule 343 IAC 4.48(9), the deputy determined it was in the best interest of justice and the best interest of the parties to hear and decide the case on the merits rather than attempt to dispose of it on procedural grounds. Page 2 Where claimant had made a threat of violence to the insurance company representative prior to hearing she was allowed to be present and testify at the hearing by speaker telephone at the request of defendants' counsel. Likewise, claimant's counsel was informed that capital police would be out of sight but on duty and in surveillance of claimant at the time of the hearing. Page 1 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DAVID L. KUSTER, SR., Claimant, vs. File No. 969141 ROSE ACRE FARMS, A L T E R N A T E M E D I C A L Employer, C A R E D E C I S I O N and HOME INSURANCE COMPANY, Insurance Carrier, Defendants. ___________________________________________________________ INTRODUCTION This is a proceeding in arbitration filed by David L. Kuster, Sr., (pronounced Keester) claimant, against Rose Acre Farms, employer, and Home Insurance Company, insurance carrier, defendants, requesting alternate medical care pursuant to Iowa Code section 85.27 and rule 343 IAC 4.48. A hearing was held in Des Moines, Iowa on April 5, 1993 and the case was fully submitted at the close of the hearing. The hearing began at 1:45 p.m. and ended at 4:45 p.m. Claimant was represented by Martin L. Fisher. Defendants were represented by Dorothy L. Kelley. The record consists of the testimony of David L. Kuster, Sr., claimant, and Kathy King, insurance company representative. Each party submitted approximately ten pages of medical exhibits. The hearing was recorded on audio tapes. King was not present in the courtroom but was present by speaker telephone during the entire hearing and testified by speaker telephone at the request of defendants' counsel because of a threat of violence made against her by claimant previously during telephone conservation with her. ISSUE The sole issue for determination is whether claimant is entitled to alternate medical care (1) from an eye specialist for alleged vision problems, (2) for treatment by a chiropractor for alleged continuing pain and (3) for psychiatric care due to alleged depression or other emotional problems. Page 2 PRELIMINARY MATTERS Defendants' counsel admitted on the record (1) that an employer-employee relationship existed between claimant and employer at the time of the injury, (2) that claimant sustained an injury which arose out of and in the course of employment with employer. The deputy announced at the beginning of the hearing that he been delegated the authority by the industrial commissioner to issue the final agency action in this matter. Therefore, appeal of this decision, if any, would be by judicial review pursuant to Iowa Code section 17A.19. FINDINGS OF FACT It is determined that claimant is not entitled to the alternate medical care requested. The employer is obligated to furnish reasonable medical services and supplies to treat an injured employee but also has the right to choose the care. Iowa Code section 85.27 (unnumbered paragraphs one and four). Iowa Code section 85.27 (unnumbered paragraph four) further provides that "If the employee has reason to be dissatisfied with the care offered, the employee should communicate the basis of such dissatisfaction to the employer, in writing if requested, following which the employer and the employee may agree to alternate care reasonably suited to treat the injury." King testified and defendants' counsel contended that claimant had never requested any of this care until he filed his petition for alternate medical care. Thus, defendants did not have an opportunity to discuss the alternate medical care requested with claimant prior to the original notice and petition, save require that his dissatisfaction be expressed in writing. In addition, rule 343 IAC 4.48(9) Discovery and evidence, provides as follows: "All discovery must be completed prior to the contested case hearing." Defendants' counsel contended in her answer to the petition for alternate medical care dated March 29, 1993, that discovery propounded to claimant and served on December 21, 1992 was still outstanding. In addition, defendants' counsel also contended, correctly, that at the time of the rescheduling telephone conference between counsel for both parties and the deputy on March 29, 1993, that she again requested that her discovery request submitted to claimant on December 21, 1992, be honored prior to this hearing. At the hearing defendants' counsel contended that she had never received the requested discovery information, which allegation claimant's counsel did not deny. Even though these procedural requirements of the statute and rules had not been met, it was the determination of the deputy to hear and decide the case on the merits in the best interest of justice and in the best interest of both parties rather than dispose of it on these procedural Page 3 deficiencies. Claimant, age 48 testified that he has been in the automobile salvage business as a self-employed person for approximately 30 years. Because of a need for additional finances he started to work for employer in August of 1990. On November 6, 1990, claimant fell approximately 12 feet from a walkway, landed on his feet and then flipped backwards onto a pile of sawdust with broken wood in it. During the fall he grabbed a 2 x 6 board with his right hand and injured his right hand, wrist, arm and shoulder. Claimant was treated on the injury date, November 6, 1990, by D. S. Tillotson, D.O., for complaints of pain in his right shoulder radiating down his arm into digits one, two and three and also some numbness with abduction of his shoulder. X-rays were negative for fracture of the shoulder or wrist. Dr. Tillotson prescribed a sling, anti-inflammatory medications, analgesic ice packs and physical therapy treatments. In her medical report dated December 5, 1990, Dr. Tillotson stated that the patient had not followed-up with physical therapy and failed to keep his last appointment with her. King testified that she only recorded one physical therapy treatment while claimant was treating with Dr. Tillotson and that was on November 6, 1990. Since this was the first examination by a medical practitioner and it occurred on the same date of the injury it should be noted that claimant did not complain about his neck, back, vision, headaches, lower extremities or his ears which are all parts of his body which he currently alleges were injured in this accident. Defendants' counsel called attention to the fact that claimant declined to attend additional physical therapy treatments and failed to keep his scheduled appointments with Dr. Tillotson. Claimant next saw David Ahrens, M.D., his personal and family physician on December 6, 1990, who recorded that claimant had been seeing Dr. Tillotson but would like a second opinion and he was out of Tyenol with codeine. Claimant complained of pain in his right shoulder, neck, low back and left ankle. Dr. Ahrens diagnosed dislocation of the right shoulder, neck strain, back strain, and sprain of the left ankle. He referred claimant to Rodney E. Johnson, M.D., an orthopedic surgeon. An appointment was set up with Dr. Johnson at 8:00 a.m. on December 7, 1990. Defendants' counsel emphasized, and claimant admitted, that he did not keep this appointment with Dr. Johnson at this time. Claimant did see Dr. Johnson on December 24, 1990 who recorded complaints of pain to his neck, shoulder, wrist, thumb, index and long finger. The doctor suspected a rotator cuff tear to the right shoulder and requested an arthrogram with a CT scan. He suspected a possible C6 disc injury for which he ordered cervical MRI. On January 14, 1991, Dr. Johnson saw claimant on Page 4 follow-up and reported that the cervical MRI demonstrated degenerative changes at C4-5 as well as C5-6, but that they did not correspond to the symptoms which the patient complained of. The doctor reported that claimant refused to have the arthrogram of his shoulder with a contrast CT scan because he refused to have dye injected into his shoulder. Defendants' counsel emphasized that claimant refused the diagnostic arthrogram which was ordered by the orthopedic surgeon. Dr. Johnson said that because of this he was forced to perform an MRI of the shoulder which was a less satisfactory and a less reliable test than the arthrogram. Dr. Johnson referred claimant to Joseph M. Doro, D.O., a neurologist for an EMG of the right arm. King testified that the only other physical therapy treatment which claimant submitted to was one more treatment during the treatment of Dr. Johnson on January 8, 1991. Defendants' counsel pointed out that claimant was requesting chiropractic care but refused physical therapy when it was offered to him. Dr. Doro saw claimant on February 18, 1991, recorded that claimant complained of pain in his neck, shoulder, arm, thumb, index and middle finger. Dr. Doro also recorded that claimant said that he was not seeing well with either one or both of his eyes. Dr. Doro indicated that the MRI of his neck ordered by Dr. Johnson did not show any abnormalities. Dr. Doro stated that the EMG was difficult to perform because claimant was sensitive to electrical current and that he was not able to complete all of the EMG because of the difficultly claimant had with needles. Dr. Doro added however, that he did not find any obvious abnormalities to suggest a radiculopathy or plexopathy. Dr. Doro did find evidence of a right carpal tunnel syndrome. Dr. Doro suspected that most of claimant's difficulties were on a chronic musculoskeletal basis. He said that they are slowly resolving. He suggested physical therapy and anti-inflammatory muscle relaxants but stated that the claimant was reluctant to do many things at this point. Defendants' counsel again emphasized that claimant did not fully cooperate with the EMG test of Dr. Doro and again declined physical therapy and anti-inflammatory muscle relaxants when they were offered. With respect to his vision Dr. Doro said that an ophthalmologist could be consulted to see if there is anything significant but he rather preferred a CT scan of the head because of his headaches. The CT scan of his head did not show any abnormalities. Dr. Doro stated that he would find it difficult to explain his monocular (one eye) difficulties on the basis of a central process. Defendants contended that the head CT scan eliminated any physiological basis for claimant's vision problems and that they never received a request for an ophthalmologist until this petition for alternate care. Claimant was seen again by Dr. Johnson on April 24, 1991, at which time he said the MRI of the shoulder did not Page 5 indicate there was a tear but he rather suspected some tendonitis around the shoulder. He too recorded that the EMG was positive for right carpal tunnel. He noted that claimant's right shoulder impingement or rotator tendonitis, type of complaint, had not been relieved by rest, exercise or anti-inflammatories and he offered to inject the shoulder with Cortisone but that claimant declined the Cortisone injection. Defendants' counsel stressed that claimant again refused the medical treatment of the orthopedic surgeon of a Cortisone injection in his shoulder and that he further declined to have the carpal tunnel syndrome surgery, which was recommended by Dr. Johnson on April 24, 1991. Claimant saw Dr. Ahrens again on June 3, 1991, for a recheck and a refill of Tyenol No. 3. The only complaint mentioned was the right shoulder on this date. The doctor found crepitation and some tenderness. He continued to diagnose right shoulder strain. The next chronological event is that claimant saw Dr. Aherns again on October 4, 1991 and wanted Tyenol No. 3. He diagnosed right shoulder strain again and referred claimant to Dr. Johnson again. An appointment was arranged for Wednesday October 9, 1991 at 11:00 a.m. Claimant admitted, and defendants' counsel again highlighted the fact, that claimant refused to receive medical treatment from an authorized orthopedic surgeon when it was authorized and recommended by his personal and family physician. On November 18, 1991, Dr. Johnson gave a 4 percent impairment rating of the neck which he arbitrarily apportioned 50 percent to degenerative changes preexisting this injury and 50 percent related to this injury. Normally the award of a permanent impairment rating is construed to mean that the employee has attained maximum medical improvement. This was the last time claimant saw Dr. Johnson. During 1992, claimant saw Allan J. Schultz, D.C., a chiropractor in Johnston, Iowa, on July 30, 1992 and August 19, 1992. His reports labeled these office visits as session number two and session number three and therefore claimant apparently had an earlier visit to Dr. Schultz. His graphs showed a definite loss of strength in the right side but at the same time it had improved significantly between these two visits. Claimant next saw Dr. Doro again on September 10, 1992. The MRI of the brain, which was intended to rule out any serious complications of his vision problem, was negative. The MRI of the cervical spine showed mild degenerative spondylosis at C-4/5, 5/6 and 6/7. Dr. Doro concluded there does not appear to be any surgically correctable process in his neck and he did not see any evidence of any structural abnormality of his brain. Dr. Doro indicates that claimant had attained maximum medical improvement by two comments in his report of September 10, 1992: (1) "At this point, I am not sure how much more there is to offer him." (2) "I do not think Page 6 further conservative treatment is going to be of benefit to him." Dr. Doro ended with two conclusions (1) he was not certain whether repairing his carpal tunnel might help, (2) the question of a pain clinic came up and he thought that was the only other option available at this point. Claimant contended that Dr. Doro had recommended an ophthalmologist in his report of February 18, 1991. Defendants countered that instead Dr. Doro recommended the MRI scan of the brain which was negative and ruled out any physiological basis for his headaches or vision problems. Defendants also contend, correctly, that Dr. Doro only commented that an ophthalmologist could be consulted but recommended the CT scan instead. Dr. Doro did not refer claimant to an ophthalmologist nor did he recommend that he be referred to an ophthalmologist. He merely mentioned that "an ophthalmologist could be consulted." Claimant also contends that Dr. Doro recommended a pain clinic on September 10, 1992. Defendants on the other hand contend that Dr. Doro only stated that the question of a pain clinic came up, which indicates that it may have been raised by claimant rather than the doctor. Defendants further contend that Dr. Doro did not recommend a pain clinic but merely stated it would be the only other option available at this point. Dr. Doro did not refer claimant to a pain clinic, nor did he recommend that claimant be treated at a pain clinic. Claimant contended that he injured his knee cap at the time the fall because it was jammed backwards. Defendants correctly contend that there is no evidence of a knee cap injury anywhere in the medical records. Claimant contends that he had an earache and found blood in his ear in approximately April of 1992 which is approximately one and one-half years after this injury occurred. Defendants correctly pointed out that there is no mention of earache or ear complaints of any kind in the medical records which are submitted in this hearing. Defendants' counsel also pointed out the fact that claimant declined to have carpal tunnel surgery when it was recommended to him. Furthermore, the deputy has a problem for the reason that Dr. Doro did not make a causation statement on what caused the carpal tunnel syndrome. Carpal tunnel syndrome is currently a very common disease which occurs in both employment situations outside the home and employment situations inside the home and in private life. Dr. Johnson did not make a causation statement on the cause of the carpal tunnel syndrome. This injury occurred approximately two years and four months ago. During that period of time claimant has not sought out any private treatment by a physician of his own choice for his vision complaints, his pain complaints to his right upper extremity and neck or any psychiatric or psychological treatment for his depression or other Page 7 emotional problems (with the exception of seeing chiropractors approximately four times). Claimant contended that he has had serious financial problems but admitted that he had not sought out treatment for his vision, pain or emotional problems through the county health organization. None of the authorized doctors have recommended chiropractic care. Claimant refused the physical therapy treatments that were offered by Dr. Tillotson and Dr. Johnson after only one treatment. Claimant brought forth no medical evidence from either Dr. Schultz or the other chiropractor in Ft. Dodge, Iowa that he had seen that chiropractic care would improve or be beneficial to his condition. Neither did claimant present any medical evidence from any source whatsoever that he was in need of vision care from an ophthalmologist. None of the medical reports in evidence demonstrate that claimant was suffering from depression or severe emotional problems. Claimant produced no medical evidence from any medical practitioner that he was in need of psychiatric or psychological counseling for any reason, save due from this injury. The parties agreed that defendants have scheduled claimant for a physical capacity examination on April 6, 1993, the day following this hearing on April 5, 1993, which is evidence that claimant's evaluation has not been entirely abandoned even though Dr. Johnson and Dr. Doro indicated that claimant had attained maximum medical improvement and that claimant had voluntarily quit seeing Dr. Tillotson and Dr. Ahrens. There was further evidence that an independent medical examination had been discussed between the parties. The only evidence of claimant's emotional instability was that when talking with King she alleged that he swore at her, indicated that he could handle firearms, and discharged a firearm twice during the conversation. She further testified that she has a recorded conversation for these events which claimant concluded by stating that if they could not work out an independent medical examination that she might be seeing him personally. Claimant admitted this did happen. Claimant testified that it was due to frustration, anger, financial difficulties, his lack of employment, the weather and other factors that may have been affecting him at the time of that conversation. Wherefore, based upon the foregoing evidence, it is determined as a matter of fact that claimant has not submitted facts which show that the medical treatment that he has received for this injury was not reasonable. On the contrary, it is determined, as a matter of fact, that claimant has received reasonable medical care based upon the evidence submitted at this hearing. CONCLUSIONS OF LAW Page 8 WHEREFORE, based upon the foregoing and following principles of law these conclusions of law are made: That claimant did not sustain the burden of proof by preponderance of the evidence that the medical care that he was provided was not reasonable medical care. Iowa code section 85.27 (unnumbered paragraphs one and four). That claimant did not sustain the burden of proof by preponderance of the evidence that he is entitled to alternate medical care. Iowa Code section 85.27 (unnumbered paragraph four). That defendants have shown that the care provided was reasonable. ORDER WHEREFORE, IT IS determined that claimant is not entitled to an order for alternate medical care. The costs of this hearing, are charged to claimant pursuant to rule 343 IAC 4.33 and Iowa Code section 86.40. That defendants are ordered to continue to file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. That the undersigned has been delegated the authority to issue final agency action in this matter. Appeal of this decision, if any, would be by judicial review pursuant to Iowa Code section 17A.19. Page 9 Signed and filed this ____ day of April, 1993. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Martin L. Fisher Attorney at Law 306 Audubon St. P.O. Box 158 Adair, IA 50002 Ms. Dorothy L. Kelley Attorney at Law 500 Liberty Building Des Moines, IA 50309 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : ROBERT WALKER, : : File No. 969163 Claimant, : : vs. : A R B I T R A T I O N : GRIFFIN PIPE PRODUCTS CO., : D E C I S I O N : Employer, : Self-Insured, : Defendant : : ___________________________________________________________ STATEMENT OF THE CASE This case came on for hearing on October 20, 1993, at Council Bluffs, Iowa. This is a proceeding in arbitration wherein claimant seeks compensation for permanent partial disability benefits as a result of an injury that occurred on November 15, 1990. The record in the proceeding consists of the testimony of the claimant, Trent Risper, and Thomas Leedy; and, joint exhibits 1 through 25. ISSUES The issues for resolution are: 1. The extent of claimant's permanent disability, if any; and, 2. Who is responsible for payment of the $390 bill of Dr. Eggers. FINDINGS OF FACT The undersigned deputy, having heard the testimony and considered all the evidence, finds that: Claimant is a 49-year-old who went through the eleventh grade and dropped out to go into the armed services. Claimant obtained his GED in the armed services. Claimant reviewed his work history up to May 31, 1984, at which time he began working for defendant employer. Claimant's prior work history involved painting, paper hanging, lifting of heavy boxes, bending, stooping, twisting, and climbing. He also served in the armed services and went through strenuous exercises there. Claimant indicated he had no prior back problems or injuries. Claimant had a pre-employment physical with C. Edwards, Jr., M.D., and he wasn't sure if x-rays were taken of his back or not. He was hired and began working at which time he had no pain or tingling or problems with his low back. Claimant worked for defendant employer as a laborer and in several other positions, including the maintenance Page 2 department, hand gun, and trough operation. He described the nature of his work and what he did. Claimant indicated that his job required him to stand, lift 10 to 100 pounds, bend, climb and unload. The floor he stood on was concrete. He said the jobs he bid on are set out in the union contract. Claimant said that on November 15, 1990, he was unloading a flatbed truck and was in the process of cleaning up the mess when he bent down and hurt his low back. He said he had been unloading and picking up bags or boxes of ladle, which is a paste. These boxes weighed about 100 pounds each. He said no one else was around except when a security person came by and noticed claimant was holding his back. Claimant said a foreman filled out an accident report during this second shift which was from 3:00 p.m. to 11:00 p.m. Claimant went to the nurses' station. Ice was put on his back and he was then driven to the hospital. Claimant said he went to work on November 16, 1990. He said he told the hospital that he hurt his back and pain was going down into his right leg and into his foot. Claimant said he had physical therapy and that the pain is better some days than others. He indicated his right leg would go numb, he had spasms and the bottom of his foot and toes would tingle. Claimant related some of his treatment and indicated he had a 25 pound lifting restriction which he contends is still in existence. Claimant returned to work in September 1991 as a laborer and not to his former job as he indicated he wasn't able to do his former job. Claimant described the type of work he was doing when he first returned to work, which included making up stickers for trucks, cleaning nuts and bolts, and sitting in the first aid room. He contends he knows of no other employee who was told to wear a light duty sticker on his hard hat. He referred to joint exhibit 19. He said this was a special light duty sticker and this has resulted in him receiving criticism and harassment from employees and the foreman. He said some of the comments are that they wished they had his job. He indicated he had his break schedule interrupted or changed. He said he filed a grievance because of the way the company was treating him. Claimant said that his current light duty work is not protected under the collective bargaining agreement. He said he would like to go to school and then go into his own business. Claimant said Behrouz Rassekh, M.D., recommended a pain clinic but the employer said it was too expensive so claimant did not go. Claimant acknowledged that he went to a Dr. Eggers, a psychiatrist, on his own and was not referred to by any doctor. He said the reason he went to the doctor was because he felt bad about his life and was not sure of himself and wanted things to be straightened out. Claimant indicated he misses or leaves work once in a Page 3 while because of his pain and he would call the employer if he cannot make it and doesn't get paid for that particular day. He said prior to November 15, 1990, he did not miss hardly any work. On cross-examination, claimant acknowledged that he has had absences since his return to work in September 1991. He acknowledged that he was suspended three days on one occasion for non-work absences and had been warned before in November 1991 of his absences. He indicated that one was because of his wife having open heart surgery and another because his daughter was having a baby. Claimant was again questioned concerning his contention that his current job is not a bid job. Claimant said he was told it was not a bid job or a collective bargaining job but the company has denied it. He admitted that no employer has said he isn't covered by the collective bargaining agreement. Claimant acknowledged that he has a right to bid on a job and that seniority plays a part in getting a job one would bid on. Claimant acknowledged that he has not told the company or personnel manager that any job they post that they think claimant can do to call him to present his bid. It appears this has been done by others in the same or similar situations. Claimant acknowledges that he is the one who makes the decision as to whether he wants to bid or not. He is concerned that his present job may terminate. Claimant said since September 1991 he has gone to adult education classes to increase his reading and math skills. Claimant said he has not prepared himself further since the September 1991 return to work because he is still employed with defendant employer and intends to continue working for them. Trent Risper testified that he has worked with defendant for seven and one-half years and is a grinder. He is familiar with the other jobs as a union steward. He said he has observed claimant and claimant gets around the plant very slow. He appears in pain and is in a bent over condition. He is familiar with claimant's light duty work. He acknowledged claimant is now cleaning nuts and bolts and has not seen others doing this type of job. He was referred to exhibit 19 which is a hard hat with the light duty sticker thereon. Mr. Risper said he has never seen anyone else have a sticker on a hat. He said claimant told him he has been harassed by others who have indicated they wished they could get a sticker so they could get out of working. He acknowledged that a grievance was not filed because this isn't provided for in the contract. He knows of others who are on light duty and they aren't required to wear a sticker. He has observed other employees harassing claimant. He was familiar with the foreman harassing claimant by scheduling his breaks at a different time. He knows of no others whose break times were changed. He testified that claimant is presently in a non-bid job. He wasn't familiar with any job that claimant could perform with defendant employer. He knows of claimant leaving in the middle of the week and he agreed that one or Page 4 two times a week claimant doesn't come to work. Mr. Risper acknowledged that defendant is trying to accommodate the employees but feels claimant is handled differently. Mr. Risper also acknowledged that defendant tries to accommodate each individual as an individual and that each individual may be treated differently depending on the particular employee's situation. On cross-examination, Mr. Risper acknowledged that bid jobs include the labor pool and when one first starts, they are in the labor pool and later they can bid on a job. He said he again indicated that the labor pool is a bid job. Mr. Risper also acknowledged that claimant could take the sticker off if he wanted to. It is not mandatory that the light duty sticker be placed on the hat. It would appear to the undersigned that this sticker can have advantages or disadvantages but that it is to help the employer or someone who might not be as familiar with the defendant as someone else to make sure he is not put in work other than light duty. It would appear that the employer could get criticized either way. It appears to the undersigned that if claimant felt the sticker did not prevent his chance of being put somewhere other than light duty, he could take the sticker off. Mr. Risper acknowledged that the company won both grievances as to the light duty sticker and as to claimant working in the first aid room. Thomas Leedy testified that he has been employed by defendant since May 1990 and is the plant personnel manager. Before this he was with defendant's company located in another state. He is familiar with the duties and jobs at defendant as he is responsible for the hiring of all employees and needs to know the nature of the jobs so that he can evaluate them. He has been in the court room during this proceeding and has heard claimant testify. He said the company has a status of light duty program to provide work for those who are temporarily injured and is a way to try to accommodate the workers. He said they won't replace another worker. He said all of the employees are covered by the collective bargaining agreement. He heard Mr. Risper testify and it is obvious he disagrees if Mr. Risper is trying to say that certain employees or the claimant wasn't covered by the collective bargaining agreement. Mr. Leedy acknowledged that light duty work wasn't a permanent status and that there are employees with permanent restrictions that are not on light duty. He acknowledged the company won the grievances previously referred to. He acknowledged claimant is the only one that has been this long on light duty work as one usually gets off of that. He emphasized the purpose of the sticker is to show a supervisor that claimant is on restrictions and not to violate the restrictions. Mr. Leedy also said that the company has not prevented claimant from bidding on any other job. He said the claimant has the right to bid on a job and the company cannot prevent this. Likewise, he indicated that if claimant thought he was being prevented, he could Page 5 file a grievance as to the company interfering with his bidding on a job. There were six various jobs mentioned in which Mr. Leedy indicated he thought claimant could do or a certain part could be adjusted so that claimant could be accommodated so claimant could do these jobs. They either paid as much or more as the job he was doing at the time of his injury or what he is getting at his current light duty job, which is the same he was getting at the time of his injury. Mr. Leedy went into detail as to the specifics of each particular job. Mr. Leedy emphasized that whether claimant considers himself permanent light duty or incapable, claimant's status is no different than any other employee. Claimant then was put on the stand again in rebuttal and went through the various jobs that defendant contends claimant could do or could be so modified that claimant could do. Claimant contends that there were some part of each job he wasn't able to do or they would violate his restrictions. Joint exhibit 1(a) is an October 29, 1992 letter from Charles Taylon, M.D., in which he opined claimant had a three percent permanent impairment to the body as a whole and is restricted to 25 pounds of lifting and there should be no pushing and pulling greater than 25 pounds. The doctor earlier, on September 14, 1992, indicated claimant's step climbing should be restricted to five steps in a series each time he attempts to walk up and down steps. Sitting and standing should be on an as-needed basis. Joint exhibit 1(f) is a July 1, 1991 letter from Dr. Taylon indicating that claimant suffered a mechanical musculoligamentous injury to his low back. In another letter dated the same date (jt. ex.(d)(2), the doctor believed that the claimant's injury to his low back was the result of a work-related injury in November of 1990. At that time, he opined a three percent permanent partial impairment to claimant's body as a whole. Therefore, as you can see, the time between October 2, 1991 and September 2, 1992, there was no increase or decrease in permanent impairment as far as Dr. Taylon was concerned. Joint exhibit 2(a)(1) is an August 17, 1993 report of Kurtis M. Hoppe, M.D., in which he opined claimant had seven percent permanent impairment of his body as a whole and that he could continue to work at light duty. A physical capacity evaluation completed on July 22, 1993 indicates that the patient was able to work safely at that physical demand level and that this test may represent the claimant's minimal work capabilities. Joint exhibit 2(b)(1) is a functional capacity evaluation that was done on July 22, 1933, and was the evaluation referred to by Dr. Hoppe. One might note on page 2(b)(3) that they emphasize the data in the functional capacity evaluation is only representative of claimant's minimal work ability and his maximum ability is left to conjecture. It would appear to the undersigned that reading the report as a whole that claimant is capable of doing more Page 6 than he is possibly doing on his light duty job but it confirms the fact that he is able to do the light duty work that he is currently doing. It would appear to the undersigned that claimant's motivation might affect his attempt to try to do more and try to work back into performing work similar to the work he was previously doing or at least working with the employer in modifying and accommodating him but upgrading the nature of his work, particularly since he seems to think it is menial work or as his attorney indicated gratuitous employment. Joint exhibit 4 is reports of Behrouz Rassekh, M.D., a neurosurgeon. His reports covering the period April to December 20, 1991, reflect that there are periods he cannot determine or explain claimant's symptomatology but feels he has pain and he has in his December 1991 report indicated claimant should not lift over 40 pounds and should not do any repeated bending, stooping or repeated lifting and should avoid long periods of driving. In August of 1991, the doctor had a 25 pound restriction on claimant. In August of 1991, he indicated claimant could gradually increase his work activity. The doctor had no explanation of why claimant was having the amount of pain that he was having. He also believed possibly claimant should go to a pain clinic. It appears claimant has not seen Dr. Rassekh since his last apparent appointment of December 14, 1991. The medical records seem to indicate that claimant has or shows a degenerative disc between L4-5 and L5-S1 and some bulging, but there is no evidence that claimant was having any problems with this condition prior to November 15, 1990. Of course, as would be expected, someone at the age of 49 would start having some degenerative diseases of his disc. As it is well known, they don't often show up until there is some traumatic injury. Joint exhibit 8(a)(1) is a psychological pain assessment report from the University of Nebraska. Joint exhibit 8(a)(5), under recommendations, it was the consensus of the licensed and certified clinical psychologist that claimant was not a good candidate for surgical intervention but that the best course of treatment would be a participation in the pain management program. A report dated November 13, 1991 was the same year that Dr. Rassekh recommended or suggested pain management for claimant. Joint exhibit 8(a)(6) and (7) is a physical therapy screening evaluation dated November 13, 1991. It was also recommended by the pain program physical therapist that claimant was appropriate and capable of participating in the full pain management program and it would be in his best interest for improvement to participate in the full program. Claimant had testified at the hearing that a pain clinic was recommended but the employer said it was too expensive and that claimant didn't go because it was too expensive for him. Under the Iowa law, the employer has the choice and if the employer refuses, of course, the employer can choose that course but as is so typical in workers' compensation cases, often the claimant cannot afford it, particularly if it is not to be covered. Of course, the employer takes a Page 7 risk as to whether that would improve claimant or not and if it improved claimant, it would lower any industrial disability for any permanent impairment and industrial disability and if it isn't successful, then that could be used by the claimant to further support claimant's position. That is the risk that is taken by the respective parties. Joint exhibit 9 reflects a psychological factor in this case. The record seems to indicate that there was no problems of this nature prior to claimant having been injured. Keep in mind that the parties agree that there was an injury. The only real issue in this case is the extent of claimant's permanent disability and, therefore, his industrial disability. Joint exhibit 10(a) is a February 10, 1992 report which is another functional evaluation and a B-200 evaluation. It indicates that claimant was performing at submaximal effort, thereby, making the finding invalid. The report indicates it was difficult to determine the motivation behind claimant's poor performance on this evaluation and that it may be due to conscience controlling of the test results or may be due to fear of increased pain of specific testing. The report indicates that claimant continues to be limited more by his subjective complaints of pain than due to true limitations in his strength and mobility (Jt. Ex. 10(a)(2) Joint exhibit 11 is the Midlands Rehabilitation Consultants report dated February 6, 1992. Joint exhibit 12 is a July 9, 1992 report of Iowa Department of Education Division of Vocational Rehabilitation Services. Joint exhibit 13 is a Rehabilitation Professionals report dated July 19, 1992. It seems like one of the things that run through these reports is claimant's lack of transferable skills. There is also mention of claimant getting further education because of his deficiency in certain areas. As seen by claimant's testimony, he did update his skills a little bit but he has not pursued anything further because he is working for defendant employer and desires to continue working for them. One might note that the conclusions drawn by the certified professional counselor rehabilitation consultant in joint exhibit 13(a)(6) is that claimant suffers 40 percent industrial disability. Determining industrial disability is the sole authority of the deputy industrial commissioner. It seems in these reports that the particular writer of the reports feels claimant is or may lose his job. There has been no indication in the testimony that claimant will or is about to lose his job. Claimant may have indicated he is not totally satisfied with it but the decision herein is rendered on the basis that the claimant will continue to be employed at defendant employer's and that his income will not be decreased because of him being on light duty or unable to do the heavier work that defendant employer might desire him to do if he were not injured. The undersigned is not going to speculate as to what the future may be for claimant. The rules and laws provided for review-reopening Page 8 are applicable under the circumstances existing at such time in the future as claimant's job status may change. The undersigned is only considering facts as they exist at the time of the hearing. Of course, things could improve or get worse. The undersigned is not going to speculate. Joint exhibit 14 is another rehabilitation report from the Nebraska Vocational Rehabilitation Services Career Development Center. Again, this report seems to hinge on claimant going to different occupations and getting additional training and education. There has been no indication from claimant's testimony or the record that claimant intends to do anything but continue on with defendant employer. He has indicated that he might like to do certain other things but there is no effort on his part to really accomplish anything else. The undersigned believes that claimant's efforts and increased motivation could be directed in staying with an employer that is attempting to accommodate him and is willing to work with him. The employer should be congratulated contrary to what the claimant seems to indicate. In considering his testimony, the undersigned believes the employer is attempting to work with the claimant and is not trying to demean him or discourage him. It would appear that claimant could begin to help himself by telling the employer that he would like to be notified when there are good jobs open that the employer may initially think would fit either within claimant's restrictions or the employer could accommodate claimant in a particular bid job. For some reason, claimant has failed to do this. It might be he is waiting until this litigation is over. It appears to the undersigned it is time for the claimant to make his decision as there are plenty of vocational rehabilitation reports in this file. Joint exhibit 25 is an October 6, 1993 report by the Omaha Orthopedic Clinic & Sports Medicine. This independent medical evaluation was made at the request of defendant. Anil K. Agarwal, M.D., wrote an extensive report setting out the information he reviewed in the medical reports, etc. He concluded in part that claimant had a preexisting lumbar spondylosis which may have been aggravated by an injury at work on November 15, 1990, and that claimant is working and may continue to do so with some restrictions that he had noted. He further opined that claimant sustained a three percent permanent impairment and loss of physical function of the body as a whole. Of course, Dr. Agarwal saw claimant only this one time and his evaluation was done approximately two weeks before hearing. The undersigned feels Dr. Agarwal's report is very biased, in particular, when he indicates that claimant had a preexisting lumbar spondylosis which may have been aggravated by an injury at work on November 15, 1990. This seems to indicate that claimant's problem is the preexisting lumbar spondylosis which no other medical doctor determined or concluded. It also seems to indicate that that is claimant's problem and it may be aggravated by a work injury on November 15, 1990. The Page 9 evidence is very clear that claimant did incur a work injury on November 15, 1990 and the parties so stipulated. The only issue herein is the extent of permanent disability. There is no issue as to healing period. Claimant is 49 years old and is at an age in which impairments and disabilities severely affect one's opportunity to find work. Claimant is making in excess of $11 per hour which was the approximate amount he was making at the time of his November 15, 1990 injury. Considering claimant's transferable skills, it would be hard for claimant to find another job at his age with his medical condition paying that much. As indicated earlier, the employer is to be congratulated for keeping claimant in employment and, likewise, the undersigned is sure the employer realizes its action has a substantial effect on reducing the extent of claimant's industrial disability. It appears to the undersigned to be a wise decision on behalf of the employer. Likewise, the undersigned questions whether claimant is taking full advantage of the potential opportunities with defendant employer. At least, the undersigned believes that claimant should make an effort to have his name on the list for possible good jobs and to test the employer's sincerity or desire to accommodate the claimant in particular bid jobs to see if there would be an accommodation made. Defendants clearly related various bid jobs that claimant could, in fact, bid if they became open. There is a question as to whether claimant has the seniority to get some of those jobs. The fact is he has done little or nothing to get his name on the list. Claimant should spend more time doing that than complaining about the nature of the work he is doing. The undersigned finds that claimant does have a permanent impairment and that he does have rather severe restrictions, both as far as the lifting limitations and his ability to climb, twist, bend, stand and sit. Although claimant has no loss of earnings, he does have a substantial loss of earning capacity. It seems undisputed he can no longer do the job he was doing before even with further accommodations. There is a question as to what other jobs he may be able to do but as indicated earlier, he has not made a real effort to test the employer's sincerity in seeing if they could accommodate him in those jobs. Of course, there is no evidence that had he bid, he could have got the jobs based on his seniority. The fact is, he hasn't tried. Taking into consideration claimant's work experience prior to the injury and after the injury; his pre-injury and post-injury medical history and his present condition; his education; his qualifications; his transferable skills; his wages prior to the injury and after the injury; the location and severity of his injury; his functional impairment; and, the employer's accommodating claimant, keeping him at the same wage level as he was at the time of his injury, the undersigned finds that claimant currently has a 35 percent Page 10 industrial disability. Claimant incurred a $390 bill with Dr. Eggers voluntarily without authorization. Claimant is responsible to pay that bill. CONCLUSIONS OF LAW Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, expe rience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disabil ity. This is so as impairment and disability are not syn onymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial dis ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., Page 11 (Appeal Decision, March 26, l985). It is further concluded that: Claimant incurred a 35 percent industrial disability as a result of a work injury on November 15, 1990. Claimant's work injury caused claimant to incur permanent impairment and permanent restrictions. Claimant is responsible for payment of the $390 bill of Dr. Eggers as it was without authorization. ORDER THEREFORE, it is ordered: That defendant shall pay unto claimant one hundred seventy-five (175) weeks of permanent partial disability benefits at the rate of two hundred eighty and 43/100 dollars ($280.43) beginning October 2, 1991. That defendant shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. The record indicates claimant was not previously paid permanent partial disability benefits. That defendant shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendant shall pay the costs of this action, pursuant to rule 343 IAC 4.33. That defendant 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 November, 1993. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Sheldon Gallner Attorney at Law 803 third Ave P O Box 1588 Council Bluffs IA 51502 Mr W Curtis Hewett Attorney at Law 35 Main Pl P O Box 249 Council Bluffs IA 51502 5-1803 Filed November 4, 1993 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : ROBERT WALKER, : : File No. 969163 Claimant, : : vs. : A R B I T R A T I O N : GRIFFIN PIPE PRODUCTS CO., : D E C I S I O N : Employer, : Self-Insured, : Defendant : : ___________________________________________________________ 5-1803 Claimant awarded 35% industrial disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : LESLIE FREDERICK ZIMMERMAN, : : Claimant, : File No. 969167 : vs. : A R B I T R A T I O N : OWEN INDUSTRIES, d/b/a : D E C I S I O N MISSOURI VALLEY STEEL, : : Self-Insured, : Employer, : Defendant. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Leslie Frederick Zimmerman, claimant, against Owen Industries, Inc., d/b/a Missouri Valley Steel, self-insured employer, defendant, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained on November 29, 1990. This matter came on for hearing before the undersigned deputy industrial commissioner on August 30, 1993, in Sioux City, Iowa. The record was considered fully submitted at the close of the hearing. The claimant was present and testified. Also present and testifying were Rosemary Zimmerman, claimant's wife; Robert Jacobson; Patrick Moulton; Gary Klueer; and Larry Monell. The documentary evidence identified in the record consists of joint exhibits 1 through 32 and 39 through 69. ISSUES Pursuant to the hearing report and order approving same dated August 30, 1993, the parties have presented the following issues for resolution: 1. Whether claimant sustained an injury on November 29, 1990; 2. Whether claimant's alleged injury is a cause of temporary and permanent disability; 3. The extent of entitlement to permanent partial disability benefits, if any; and 4. Whether claimant is entitled to medical benefits under Iowa Code section 85.27 for treatment of his alleged injury. Page 2 FINDINGS OF FACT The undersigned has carefully considered all the testimony given at the hearing, arguments made, evidence contained in the exhibits herein, and makes the following findings: Claimant was born on August 20, 1948, and completed the twelfth grade of school. He earned his associate of arts degree, a general education degree, in 1978 prior to starting work at Missouri Valley Steel Company. His relevant work experience was as an over-the-road truck driver, local delivery driver and warehouse worker (operating 10-ton overhead crane to load and unload steel), plate shear operator and various laborer positions. These jobs ranged from medium to heavy in physical exertion and were unskilled and semi-skilled in nature. On June 26, 1991, claimant was terminated by employer due to a 20-pound lifting restriction. He obtained a weekend job with Sioux City Night Patrol doing general security work and driving a patrol car to check customer premises. In September 1991 he obtained employment at Wis-Pak Plastics as an RHB machine operator. Claimant alleges that he was injured on November 29, 1990, while working for employer. At that time, he was earning $8.05 per hour. Claimant currently earns $7.65 per hour at Wis-Pak Plastics. Claimant's medical history is replete with a variety of industrial accidents and alleged injuries. The record contains 27 first reports of injury, eight of them allegedly to his neck, shoulder and arms (exhibits 42-68). One such incident occurred on December 13, 1989, while claimant was lifting a bundle of steel and felt something pop in his lower back and experienced a little catch in his right neck and shoulder region. He was seen by Daniel M. Youngblade, M.D., the company physician (ex. 18, page 2). Because of persistent complaints relative to the December 13, 1989 incident, Dr. Youngblade referred claimant to Kevin J. Liudahl, M.D., for examination on February 15, 1990. Dr. Liudahl diagnosed acute low back pain and left sciatica (ex. 5, p. 1). On March 7, 1990, a myelogram and CT scan were performed. Because the study was inclusive, repeat studies were performed on April 4, 1990. These showed slightly larger left posterolateral L3-4 extradural defects consistent with enlarging L3-4 HNP. On April 27, 1990, Dr. Liudahl performed a left L3-4 hemilaminectomy/diskectomy. A follow-up evaluation on May 18, 1990, revealed continued aches and pains in the lumbar spine, left hip and legs. An examination showed a questionable positive straight leg raising and marked decreased range of motion. Dr. Liudahl commented that claimant's symptoms were greatly out of proportion to the clinical findings. He made this observation again on July 19, 1990 (ex. 5, pp. 1-5). Dr. Liudahl sent claimant to Back Care, Inc., for evaluation on August 2, 1990. Claimant participated in a Page 3 13-week rehabilitation program. A myelogram was performed on September 4, 1990, and was normal. Leonel H. Herrera, M.D., director of Back Care, reported on September 5, 1990, that claimant manifested significant objective improvement without subjective improvement and he was concerned that claimant had numerous negative subjective complaints (ex. 15, pp. 1-6). On November 15, 1990, Dr. Liudahl gave claimant a 10 percent permanent partial impairment rating for his back with a permanent 50-pound lifting restriction (ex. 5, p. 5). Dr. Herrera concurred with the 50-pound lifting restriction but no other permanent restrictions (ex. 15, p. 7). On November 29, 1990, claimant presented to Dr. Youngblade with tenderness in the right posterior neck region over the trapezius muscle. Claimant reported to Dr. Youngblade that he had slipped while climbing up a ladder on the side of his truck. Cervical spine films were within normal limits. Dr. Youngblade diagnosed cervical strain. On December 4, 1990, claimant again presented to Dr. Youngblade. His complaints were referable to pain and discomfort in his posterior shoulder region. His neck appeared to be clear and free. These same complaints were articulated on December 12, 1990 (ex. 18, p. 3). Dr. Youngblade referred claimant to Dr. Liudahl on January 31, 1991, for evaluation of neck and arm problems. Claimant presented with numbness and weakness in the right upper extremity and severe neck pain and spasms. An examination of the neck revealed moderate severe tightness and tenderness of the cervical paraspinous muscles and moderate decreased range of motion of the cervical spine. X-rays of the thoracic and cervical spine were unremarkable. Dr. Liudahl diagnosed cervical muscle strain. To rule out cervical radiculopathy, Dr. Liudahl recommended upper extremity EMG and nerve conduction studies and an MRI of the cervical spine. He referred him to Ralph Reeder, M.D., for a second opinion (ex. 5, p. 6). Claimant underwent an MRI of the cervical spine on February 5, 1991, which did not identify any foraminal encroachment (ex. 20-2). EMG and nerve conduction studies performed on February 1, 1991, revealed no evidence of mononeuropathy or peripheral neuropathy of the upper extremities (ex. 15-9). Dr. Reeder evaluated claimant for neck pain and bilateral arm discomfort on March 1, 1991. After reviewing the claimant's medical history and noting his complaints (pain radiating from the shoulder into the forearms aggravated by any kind of work activity and neck pain producing headaches in the occipital region), Dr. Reeder performed a physical examination. He reported that claimant had no evidence of a radiculopathy or myelopathy. His cervical MRI scan showed no significant cord or nerve root compression. Dr. Reeder felt that claimant had mechanical cervical pain with radiating arm pain of undetermined Page 4 etiology which in his opinion did not represent a peripheral nerve root entrapment. Since claimant was on no pain medication, Dr. Reeder prescribed Pamelor and Motrin and a TENS unit for his neck and bilateral arm pain for one month. He released him from his care to either Dr. Liudahl or Dr. Youngblade (ex. 21, pp. 1-2). Claimant returned to Dr. Youngblade on April 2, 1991. He noted that all objective tests have been negative and no abnormalities found. Claimant presented with complaints of pain in the right upper shoulder and neck region with pain on lateral rotation. Claimant was advised to resume physiotherapy three times a week (ex. 18, p. 9). On May 24, 1991, claimant returned to see Dr. Liudahl still complaining of arm pain, back pain and bilateral leg pain of recent origin. On examination he had negative straight leg raising bilaterally, good knee motion and fairly good range of motion of the neck. He was noted to be neurologically intact in both upper and lower extremities. Dr. Liudahl commented that there was a paucity of physical findings, but suggested bilateral lower extremity EMG and nerve conduction studies to rule out lumbar radiculopathy (ex. 5, p. 6). Claimant returned to Dr. Reeder on May 30, 1991, saying that he was not really improved and that the TENS unit had not been helpful. On physical examination he showed good range of motion of the neck. Dr. Reeder reiterated that claimant has mechanical neck discomfort with pain radiating into the shoulder blades and occasionally into the shoulder. He felt that claimant had reached maximum medical improvement and gave him a 4 percent permanent partial disability rating. He imposed a permanent weight-lifting restriction of 20 pounds (ex. 21, pp. 5-6). Claimant returned to Dr. Liudahl on June 7, 1991, with complaints of right upper extremity pain and tenderness in the cubital tunnel and numbness on the ulnar side of the hand. Claimant had no neck complaints at this time. Dr. Liudahl felt that the etiology of claimant's chronic back and leg complaints could not be determined. X-rays of the thoracic and cervical spine were unremarkable. He felt that he had reached maximum medical benefit and recommended no further medical treatment (ex. 5, p. 6). Claimant was referred by his attorney to Horst Blume, M.D., for an independent medical examination on May 18, 1992. Claimant presented with numerous physical complaints including headaches, lightheadedness, constant pain with a burning sensation on the right side of the neck-shoulder junction, numbness in the right forearm and right hand, little finger and right ring finger, constant irritation and numbness on the top of the left hand, and constant central low back pain radiating into both hips. Dr. Blume reviewed a previous magnetic scan performed on February 5, 1991. It was his opinion that claimant has a cervical ruptured disc at C3-4 and a mild ruptured disc at C5-6. However, he felt this condition did not presently warrant surgical Page 5 intervention. He gave claimant a permanent partial impairment rating of 9 percent to the cervical spine area and 15 percent to the lumbar spine area. Without distinguishing between the cervical and lumbar spine restrictions, Dr. Blume indicated that claimant should not lift more than 40 pounds occasionally or perform any type of strenuous physical activity. He also felt that claimant was restricted to 30 minutes of repetitive bending, sitting, scooping, twisting, turning, crawling, kneeling, pushing, and pulling and walking or standing for no more than 15 minutes at a time (ex. 24, pp. 1-5). Claimant testified that when he was hired by Wis-Pak, his employment status with the company was contingent upon the 20-pound weight restriction being lifted. On October 5, 1991, Dr. Liudahl increased claimant's lifting restriction to 45 pounds (ex. 26, p. 4). The record indicates that claimant received no medical treatment for his back, neck, upper extremity, or lower extremity symptoms after his last visit with Dr. Liudahl on June 26, 1991. On May 11, 1993, claimant returned to Dr. Liudahl with complaints of left wrist pain. A notation indicates that "Previous back and neck are presently doing quite well." (ex. 5, p. 7). CONCLUSIONS OF LAW The first issue to be determined is whether claimant sustained an injury on November 29, 1990, arising out of and in the course of employment with employer. Since no one witnessed claimant's alleged injury, defendant questions claimant's veracity in this regard. Claimant has the burden of proving by a preponderance of the evidence that he received an injury on November 29, 1990, which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904, 908 (Iowa 1976); Musselman v. Central Telephone Co., 154 N.W.2d 128, 130 (Iowa 1967). The words "arising out of" have been interpreted to refer to the cause and origin of the injury. McClure v. Union County, 188 N.W.2d 283, 287 (Iowa 1971); Crowe v. DeSoto Consolidated School District, 68 N.W.2d 63, 65 (Iowa 1955). The words "in the course of" refer to the time, place and circumstances of the injury. McClure, 188 N.W.2d at 287; Crowe, 68 N.W.2d at 65. An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while the employee is doing work assigned by the employer or something incidental to it. Cedar Rapids Community School District v. Cady, 278 N.W.2d 298, 299 (Iowa 1979), McClure, 188 N.W.2d at 287; Musselman, 154 N.W.2d at 130. The supreme court has defined a personal injury for the purposes of workers' compensation cases. Almquist v. Shenandoah Nurseries, 254 N.W. 35, 38 (Iowa 1934). In this case the court found that a personal injury, is an injury to the body, the impairment of health, or a disease, not excluded by the Workers Compensation Act, which comes about, Page 6 not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee. The injury to the human body must be something, whether an accident or not, that acts extraneously to the natural processes of nature, and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. The Almquist court further observed that while a personal injury does not include an occupational disease under the Workmen's Compensation Act, yet an injury to the health may be a personal injury. A personal injury includes a disease resulting from an injury. However, the result of changes in the human body incident to the general processes of nature do not amount to a personal injury. This is true, even though natural change may come about because the life has been devoted to labor and hard work. Results of those natural changes do not constitute a personal injury even though the same brings about impairment of health or the total or partial incapacity of the functions of the human body. Although the work accident was unwitnessed, claimant reported the event to Dr. Youngblade on November 29, 1990 and to Dr. Liudahl and Dr. Reeder thereafter. Prior to the incident, claimant was able to perform all of the duties required of his job with employer. He had no neck complaints which interfered with his ability to work as a truck driver for employer. Defendant presented no evidence to the contrary. Accordingly, claimant has met his burden of proof that he was involved in a work-related incident which resulted in injury to his neck and upper extremities. The next issue to be determined is whether claimant's injury has caused permanent impairment. Since claimant has suffered an injury, the next question to be resolved is whether the injury has caused a permanent disability. The claimant has the burden of proving by a preponderance of the evidence that the injury of November 29, 1990, is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 133 N.W.2d 867, 868 (Iowa 1965); Lindahl v. L. O. Boggs, 18 N.W.2d 607, 613-14 (Iowa 1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa 1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960). Expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 73 N.W.2d at 738. The opinion of the experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974). Moreover, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag, 220 N.W.2d at 907. Finally, the weight to be given to such an opinion Page 7 is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other material circumstances. Bodish, 133 N.W.2d at 870; Musselman, 154 N.W.2d at 133. The supreme court has also observed that greater deference is ordinarily accorded expert testimony where the opinion necessarily rests on medical expertise. Sondag, 220 N.W.2d at 907. Medical opinion rendered as to causation was given by Dr. Liudahl on June 21, 1993. He reported to claimant's attorney that "I believe the patient's neck injury is the result of his accident at work as the patient indicated in my history of my note. I concur with Dr. Reeder that I doubt the ulnar neuropathy was related to this accident...." (ex. 5, p. 14). Defendant has produced no opinion to the contrary. In fact, Dr. Liudahl is defendant's physician. Accordingly, claimant has met his burden of proof that his neck injury is the result of his accident at work. The extent of permanent disability resulting from the neck injury must be determined. Dr. Reeder and Dr. Liudahl gave claimant a 4 percent permanent impairment rating. Dr. Blume gave claimant a 9 percent permanent impairment rating to the cervical spine. Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, expe rience and inability to engage in employment for which the employee is fitted. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. Impairment and disability are not synonymous. The degree of industrial disability can be much different than the degree of impairment because industrial disability references to loss of earning capacity and impairment references to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of the healing period; the work experience of the employee prior to the injury and after the injury and the potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also Page 8 relevant. Likewise, an employer's refusal to give any sort of work to an impaired employee may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience as well as general and specialized knowledge to make the finding with regard to degree of industrial disability. See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 529 (App. March 26, 1985); Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 654 (App. February 28, 1985). Compensation for permanent partial disability shall begin at the termination of the healing period. Compensation shall be paid in relation to 500 weeks as the disability bears to the body as a whole. Section 85.34. As previously noted, claimant earned $8.05 per hour at the time of his injury with employer. He currently earns $7.65 per hour as a machine operator with Wis-Pak. Claimant's actual loss of earnings is minimal. Claimant's earning capacity is affected by his neck and other complaints. However, physicians who have treated and/examined claimant have questioned the extent of his symptomatology. Dr. Reeder felt that since claimant's studies were within normal limits and there was no nerve entrapment evident that his subjective complaints of pain far exceeded the objective findings. Dr. Liudahl and Dr. Youngblade were at a loss to determine the etiology of claimant's numerous complaints. They appear to wax and wane and even resolve. A recent examination by Dr. Liudahl on May 18, 1993, again questioned claimant's complaints in light of the objective findings. On May 11, 1993, Dr. Liudahl stated that claimant's previous back and neck complaints were doing quite well (ex. 5, pp. 7-8). It appears that claimant exaggerates his complaints and attempts to present as more disabled than he really is. Pain that is not substantiated by clinical findings is not a substitute for impairment. Waller v. Chamberlain Mfg., II Iowa Industrial Commissioner Report 419, 425 (1981); Godwin v. Hicklin GM Power, II Iowa Industrial Commissioner Report 170 (1981). Pain is not compensable under chapter 85 unless there is an impact on earning capacity. Benton v. Hyman Freightways, Review-reopening January 7, 1991. Claimant's credibility is suspect as to the extent of disability he proclaims to suffer. Page 9 After carefully considering all of the factors of industrial disability and employing agency expertise, it is determined that claimant is 5 percent industrially disabled. The next issue to be determined is claimant's entitlement to benefits under Iowa Code section 85.27. The employer shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies for all conditions compensable under the workers' compensation law. The employer shall also allow reasonable and necessary transportation expenses incurred for those services. The employer has the right to choose the provider of care, except where the employer has denied liability for the injury. Section 85.27; Holbert v. Townsend Engineering Co., Thirty-second Biennial Report of the Industrial Commissioner 78 (Review-reopen 1975). Claimant has the burden of proving that the fees charged for such services are reasonable. Anderson v. High Rise Construction Specialists, Inc., file number 850096 (Appeal Decision July 31, 1990). Claimant is not entitled to reimbursement for medical bills unless claimant shows they were paid from claimant's funds. See Caylor v. Employers Mut. Casualty Co., 337 N.W.2d 890 (Iowa Ct. App. 1983). When a designated physician refers a patient to another physician, that physician acts as the defendant employer's agent. Permission for referral from defendant is not necessary. Kittrell v. Allen Memorial Hospital, Thirty-fourth Biennial Report of the Industrial Commissioner 164 (Arb. Decn. 1979) (aff'd by indus. comm'r). An employer's right to select the provider of medical treatment to an injured worker should be diagnosed, evaluated, treated or other matters of professional medical judgment. Assman v. Blue Star Foods, Inc., file no. 866389 (declaratory ruling, May 18, 1988). Claimant is entitled to payment of all medical bills and reasonable and necessary transportation expenses incurred for treatment of his neck condition. Page 10 ORDER IT IS THEREFORE ORDERED: That defendant pay to claimant twenty-five (25) weeks of permanent partial disability benefits at the rate of two hundred thirty and 46/100 dollars ($230.46) commencing May 31, 1991. That defendant pay for all medical and mileage expenses incurred for treatment of claimant's November 29, 1990 work injury. That defendant receive credit for any benefits previously paid. That defendant pay accrued amounts in a lump sum. That defendant pay interest pursuant to Iowa Code section 85.30. That defendant pay costs pursuant to rule 343 IAC 4.33. That defendant file claim activity reports as required by the agency pursuant to rule 343 IAC 3.1(2). Signed and filed this ____ day of September, 1993. ______________________________ JEAN M. INGRASSIA DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Dennis J. Mahr Attorney at Law 318 Insurance Centre 507 7th St Sioux City, Iowa 51101 Mr. Roger L. Carter Ms. Ruth M. Carter Attorneys at Law 304 Terra Centre PO Box 5332 Sioux City, Iowa 51102 51100, 51108, 51803, 52500 Filed September 13, 1993 Jean M. Ingrassia BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ LESLIE FREDERICK ZIMMERMAN, Claimant, File No. 969167 vs. A R B I T R A T I O N OWEN INDUSTRIES, d/b/a D E C I S I O N MISSOURI VALLEY STEEL, Self-Insured, Employer, Defendant. ___________________________________________________________ 51100 Claimant has shown by a perponderance of the evidence that he sustained a work-related injury on November 29, 1990, when he slipped while climbing up a ladder on the side of employer's truck. 51108 Defendant's physician causally connected claimant's injury to the incident on November 29, 1990, thus establishing medical causation. 51803 Claimant found entitled to 25 weeks (5%) permanent partial disability benefits. At the time of this injury, claimant earned $8.05 per hour and currently earns $7.65 per hour. Claimant's complaints appear to be exaggerated and out of proportion to the clinical and laboratory findings in the record. Claimant has a long history of industrial accidents and has reported 27 incidents with minimal objective findings. Claimant's credibility is suspect as to the extent of permanency. 52500 Claimant entitled to medical and mileage expenses for treatment of his November 29, 1990 work injury. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ : SHARON TEDFORD, : : Claimant, : : vs. : : File No. 969373 CONTEMPORARY INDUSTRIES/ : 7 ELEVEN, : : A P P E A L Employer, : : D E C I S I O N and : : CONTINENTAL LOSS ADJUSTING : SERVICES, : : 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 April 22, 1994 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 September, 1994. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Page 2 Copies To: Mr. Jeffrey A. Neary Attorney at Law P.O. Box 3223 Sioux City, Iowa 51102-3223 Mr. G. Daniel Gildemeister Attorney at Law P.O. Box 1768 Sioux City, Iowa 51102 5-1803; 5-1801; 2105; 2501 Filed September 27, 1994 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ : SHARON TEDFORD, : : Claimant, : : vs. : : File No. 969373 CONTEMPORARY INDUSTRIES/ : 7 ELEVEN, : : A P P E A L Employer, : : D E C I S I O N and : : CONTINENTAL LOSS ADJUSTING : SERVICES, : : Insurance Carrier, : Defendants. : _________________________________________________________________ 5-1803; 5-1801 Claimant failed to prove compensable permanent or temporary disability. 2105; 2501 It is irrelevant that medical expenses were accrued after insurance coverage ended, as workers' compensation insurance is not sold on a "claims made" basis. Section 85.27. Provides for lifetime medical coverage, so long as treatment is reasonable, necessary and causally related to a compensable injury. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ SHARON TEDFORD, : : Claimant, : : vs. : : File No. 969373 CONTEMPORARY INDUSTRIES/ : 7 ELEVEN, A R B I T R A T I O N : Employer, D E C I S I O N : and : : CONTINENTAL LOSS ADJUSTING : SERVICES, : : Insurance Carrier, : Defendants. : ____________________________________________________________ STATEMENT OF THE CASE This is a contested case proceeding upon the petition of Sharon Tedford against her former employer, Contemporary Industries/7 Eleven, and its insurance carrier Continental Loss Adjusting Services. Ms. Tedford contends that on December 20, 1989, she sustained a repetitive motion injury to her hands, arms, shoulders, neck and head. A hearing was scheduled and held in Sioux City, Iowa on January 27, 1994. The record consists of claimant's exhibits 1-17, 19-23 and 25-28, defendants' exhibits A-F and the testimony of claimant and Marie Meyers. ISSUES The parties have stipulated to the following: 1. An employment relationship existed at the time of the alleged injury; 2. Claimant was off work from February 22, 1992 through November 24, 1992, for which she claims entitlement to healing period benefits; 3. At the time of injury, claimant's gross weekly earnings were $178.71, she was single and entitled to three exemptions; and, 4. Fees or prices charged by medical providers are fair and reasonable and, although disputed, those providers would testify to the reasonableness of treatment; Page 2 defendants offer no contrary evidence. Issues presented for resolution include: 1. Whether claimant sustained injury arising out of and in the course of employment; 2. Whether the injury caused either temporary or permanent disability; 3. The extent of temporary total disability or healing period; 4. The nature, extent and commencement date for permanent partial disability, if any; 5. Entitlement to medical benefits, including whether treatment is causally connected to the work injury and to the medical condition upon which the claim is based; and, 6. Whether permanent impairment, if any, is related to a subsequent cumulative trauma injury incurred after the date Continental Loss Adjusting Services' insurance coverage ceased (September 1, 1991). Based on claimant's stipulated gross weekly earnings, marital status and number of exemptions, the parties calculated her weekly compensation rate at $124.97. The rate tables published by the commissioner in effect on December 20, 1989 show that an individual so situated is entitled to a rate of $125.55, which is hereby adopted as the correct compensation rate. Defendants sought to dispute whether medical expenses were authorized. The defense was ruled invalid at trial because defendants have denied liability on the claim, thereby forfeiting the right to control the course of treatment. FINDINGS OF FACT The undersigned deputy industrial commissioner finds: Sharon Tedford, born June 14, 1960, is a high school graduate without further education. Before accepting work as a convenience store clerk with defendants, she was employed in a fried chicken restaurant, part time at a local dog race track, and for a garment manufacturer. Claimant was discharged from the restaurant and garment manufacturer upon respective allegations of theft (unproven) and poor work performance. From 1982 or 1984 (trial and deposition testimony vary) until 1989, claimant was out of the competitive labor market, caring for her children. Unfortunately, claimant was for several reasons not found a credible witness in her own behalf. Her trial Page 3 testimony was frequently inconsistent with her deposition testimony and the medical records. She gave inconsistent histories to various physicians. In a verified petition, she alleged permanent injury resulting from an unrelated slip and fall, although she now testifies that she knew even then that no permanent injury had resulted. The large number of inconsistencies and incongruities convinces that her testimony is not reliable. Claimant started work with defendant on July 19, 1989, after having been away form the competitive labor market some 5-7 years. Her duties as a full time convenience store clerk included operating the cash register, stocking shelves, sweeping the store and picking up the parking lot. It is this work that she claims resulted in a repetitive trauma injury some five months later on December 20. Actually, claimant's work as a convenience store clerk appears to be almost the antithesis of "repetitive motion" as that term is commonly understood. In such cases, one ordinarily thinks of workers such as a meat cutter boning the same cuts endlessly in a packing house, a data entry operator at a key board, or a factory worker tightening the same screws on the same part for hour after hour. Claimant's work, on the other hand, involved frequent use of the upper extremities, but not in a typically repetitive fashion. For example, operating the cash register would normally include handling the products (to find the price), punching the appropriate buttons and making change. While these actions require use of the hands, different muscles are manipulated in different ways. Similarly, sweeping the floors, picking up the parking lot and stocking shelves are not classic "repetitive" movements. Dr. Tim Luse, a treating chiropractor, reported that claimant had not had "prior injury that caused similar symptoms to those is now experiencing." The same report (November 24, 1992) specifies: After the accident, the patient exhibited the following complaints and symptoms: "Pain in the right and left hand, wrist, elbow and thumb and also pain in the neck and shoulder area, especially the right shoulder." In her answers to interrogatories, Ms. Tedford alleges injuries consisting of carpal tunnel syndrome, tendinitis, fibromyalgia, headaches and pain. Complaints "for which claim is being made" include "headaches, pain in arms, neck, shoulders, upper back area, sleeping problems, weakness, pain reaches level of nausea." Prior to the claimed work injury, claimant was actively treating with another chiropractor, Kenneth L. Todd, D.C. Indeed, Dr. Todd's chart notes reflect that claimant was seen some 41 times between August 10, 1987 and the claimed injury, including 22 prior visits in calendar year 1989. Some of Dr. Todd's chart notations are inconsistent with a claim that similar symptoms did not preexist the work injury: Page 4 08-10-87 headaches 09-08-87 upper thoracic pain, headaches 09-22-87 headaches-severe 10-05-87 neck and upper back pains, headaches 10-22-87 headache 11-04-87 headache-severe 01-08-88 headaches 03-09-87 "you name it, it hurts" 03-17-88 pain all over 04-22-88 pain in neck and back 06-09-88 shoulder/neck 07-27-88 neck and back 11-03-88 neck, back, heads 01-03-89 shoulder and upper back pain 02-28-89 "you name it, it hurts" 03-15-89 upper back and neck 07-25-89 neck 07-27-89 left shoulder pain 08-03-87 shoulder pain 08-19-89 right shoulder pain 08-21-89 right shoulder 09-25-89 general ache and pain 10-09-89 general ache and pain 10-23-89 neck, upper back In deposition testimony of October 28, 1993, claimant described her work injury thusly: Q. Okay. And in that report Dr. Tim Luse states in essence that in December of 1989 you were involved in a work-related accident and that you were pulling pop out of a crate, 20-ounce bottles, and hurt your right and left wrists and right and left elbows. Is that a true statement? A. Yes. Q. Can you describe your work-related accident in your own words for us, please. A. Stocking cooler. the Coke bottles do come in plastic domes. You have to take them out of the plastic domes and stock them singly. That's when I noticed from pulling is when it started all happening. Q. Okay. Did you notice any kind of a popping or pulling or painful sensation when you did that? A. Popping in the wrist. . . . Q. Dr. Luse's report also says that after this accident that you had complaints of pain in your hands, wrists, elbows, and thumb. Also pain in your neck and right shoulder. Is that true? Page 5 A. Yes. Q. Okay. Was that right after this accident happened then? A. Not right after the accident. Q. Describe that course of events, please. A. I went to see Dr. Pechacek, Dr. Wheeler. Dr. Wheeler turned me back to work and told me it would work -- the tendinitis would work its way out. When I became manager, it got worse, and it went up into my neck and into my shoulders. Q. Okay. Is it a fact, then, that as far as any pain that you had in your neck or your shoulder that that did not occur until after you were appointed manager? A. Right. Q. So that would have been some five or six months after this accident? A. Right. . . . Q. So do I understand you to say that you had pain in your right thumb and your hand and your wrist immediately after the events of pulling the pop out of plastic domes on the same day that you were hurt? A. I didn't say immediately. Q. Tell me when. A. It worked up to -- From doing it constantly day after day, it worked up to it. Q. You said you felt a popping in your wrist? A. Yes, I did. Q. Okay. On the day that you felt the popping in your wrist, where were your complaints of pain? A. In my hand. Right through my right hand into the wrist. Q. So your complaints the first day were your hand and your wrist? A. Right. Q. Then a couple months later you had pain in your right elbow? Page 6 A. Yes. Q. And then several months after that you developed pain in your right shoulder and your neck? A. Yes. Q. Okay. Were there any other complaints of pain during this period of time that you had? A. My left elbow? Q. when did that begin to hurt you? A. After I was favoring my right hand, I used my left arm more. (Claimant's Deposition, Pages 21-25) In her trial testimony, claimant reported that shoulder and neck symptoms developed only in October 1992, almost three years after the claimed injury and eight months after she quit the job. The first practitioner claimant saw for problems developing on December 20 was Dr. Todd, seen that very day. Although largely illegible, Dr. Todd's chart notes appear to refer to left hand pain, diagnosed as tendinitis. On January 8, 1990 (eight visits later), Dr. Todd charts complaints of right elbow pain. On January 17, he charts complaints of left hand pain. On February 9, he charts left elbow pain. Claimant was next seen by Daniel Rhodes, M.D., her family physician. On January 5, 1990, Dr. Rhodes charted complaints of pain in the right arm which he diagnosed as mild tendinitis of the right forearm with epicondylitis Page 7 (commonly known as "tennis elbow"). Claimant was treated with ibuprofen and a tennis elbow band. Dr. Rhodes continued treating claimant for tendinitis and epicondylitis until March, then again starting in September. Curiously, he charted on February 27 that claimant's right arm was no better, and she "says that she knows it won't get better." Dr. Rhodes eventually (February 24, 1992) reached a diagnosis of epicondylitis, which should resolve in time, and fibromyalgia. He believed the epicondylitis was work related, but specified that fibromyalgia was not. In his medical report of that date, and also in chart notes, he notes that claimant had quit her job of her own volition on February 22, 1992. He went on to specify that he had not advised her to quit work. Dr. Rhodes also referred claimant to Dr. Pechacek, for treatment of epicondylitis. Claimant was seen on several occasions between March and July 1990. Dr. Pechacek's first notes, on March 12, reflect that claimant was unable to recall any specific injury and was not particularly aware of or bothered by any painful areas while working, but more when at rest. He specified that claimant did not mention any clicking, popping or snapping of the elbow, wrist or finger joints. Impression was of "mostly musculo-tendinous" right arm and hand pain extending from the elbow to the wrist while at rest. Dr. Pechacek saw no indications for surgery, anti-inflammatories or physical therapy, and would recommend that claimant continue to use her arm and hand as normally as possible. "Would not modify her job." A pain medication, Darvocet, was prescribed. After claimant reported not reacting well to that medication, over-the-counter Tylenol was recommended. By June 11, Dr. Pechacek reported that claimant still had symptoms in the right wrist and hand, but was no longer suffering pain into the forearm and elbow. Although he felt this pain was probably musculo-tendinous, some findings suggested possible carpal tunnel syndrome. However, EMG and nerve conduction studies were normal. Dr. Pechacek apparently then moved from the locality, after which claimant was seen by M. E. Wheeler, M.D. When Dr. Wheeler saw claimant on August 20, his impression was of an overuse tendinitis problem in the arm of insidious onset without precipitating cause or event, although claimant related it to work with "repetitive motion." Dr. Wheeler's chart notes of September 24, 1990, reflect complaints in the arm and wrist with "several incongruent findings today." Dr. Wheeler noted he had little to offer claimant and released her to activities as tolerated. Claimant saw Dr. Rhodes on several occasions in October 1990, the last time on October 29. She was not working at that time, although she reported that she wanted to return. Dr. Rhodes charted: "I added the comment if as minimal requirements of right arm, she may try work, but if it flares up, she should quit. We will see her again in 10 Page 8 days." This comment is interpreted as referring to a temporary time off work, not advice to quit the job. Claimant was seen again on November 8, but the only chart notes concern an unrelated sore throat complaint. Claimant was seen by no physician from October 29, 1990 until visiting Chiropractor Tim Luse about one year later. Dr. Luse concluded that claimant received an injury "as a result of this accident," (referring to pulling pop bottles out of a crate) and eventually diagnosed chronic bilateral carpal tunnel syndrome and chronic "epilateral condylitis" (this diagnosis is unfamiliar to the writer, but may be intended to refer to lateral epicondylitis). Impairment was apparently converted to the body as a whole, and rated at fifteen percent. Severe chiropractic restrictions were recommended, including restrictions against crawling and climbing ladders or lifting over 20 pounds. A chiropractic report was also issued on April 26, 1993 by Pat Luse, whose license to practice chiropractic has apparently now been suspended or revoked. In any event, he diagnosed chronic bilateral forearm tendinitis and fibrositis and chronic cervical strain/sprain "consistent with the repetitive injury described by the patient" and rated impairment at five percent of each upper extremity. Dr. Luse does not detail how cervical problems manifesting themselves in October 1992 could be causally related to a right wrist injury of December 1989. However, he may have been misled by the inaccurate history cited by Tim Luse, apparently a relative. Both chiropractors share the same address. In April 1991, claimant was promoted to store manager. She continued until quitting the job on February 22, 1992. Although claimant testified both that she did so upon the advice of Dr. Luse, and that she furnished a letter to that effect to her employer, neither Dr. Luse's records or defendants' records confirm this claim. According to Marie Meyers, a 7 Eleven area manager, the work claimant was doing fit within the restrictions previously recommended by Pat Luse. Claimant was also seen several times for fibromyalgia in 1992 by Niles Erikson, M.D. Dr. Erikson found multiple fibromuscular tender points in typical fibromyalgic distribution in both upper extremities, the upper back, the occiput, the anterior chest, lateral elbows and lumbosacral musculature. Fibromyalgia is understood as referring to a condition of generalized pain syndrome. Dr. Erikson is not shown to have expressed a view on causation, but it is noted that claimant was released to continue activity as tolerated on October 21, 1992. Claimant was also evaluated on September 28, 1993 by J. Michael Donohue, M.D., an orthopedic specialist. Dr. Donohue, who found a number of inconsistencies in claimant's physical evaluation, reached an assessment of "bilateral upper extremity dysfunction--subjective complaints far Page 9 outweigh the objective findings." He concluded that carpal tunnel syndrome was definitively ruled out by the normal EMG and nerve conduction studies, disagreed with the diagnosis of fibromyalgia and concluded that claimant had not sustained any permanent impairment from her alleged work injury: It is possible that the patient initially sustained some soft tissue inflammation from her work activities: however, she has certainly been allowed an adequate period of time for healing and at this point, demonstrates findings of symptom magnification rather than specific organic pathology. Based on the foregoing medical opinion, it is concluded that claimant developed epicondylitis from her non-repetitive upper extremity movements at work, but that the condition has not caused permanent impairment. She does not suffer carpal tunnel syndrome and fibromyalgia, if it exists at all, is not work related pursuant to the opinion of Dr. Rhodes. The chiropractic opinions of record are based on an inadequate history and come from less qualified practitioners. Claimant's history of headaches has been shown to precede the claimed work injury, or even the beginning of claimant's employment with 7 Eleven. Neck and shoulder problems also predate the claimed work injury and serious complaints did not appear until almost three years later. No causal nexus to the 1989 injury is shown. CONCLUSIONS OF LAW The party who would suffer loss if an issue were not established has the burden of proving that issue by a preponderance of the evidence. Iowa R. App. P. 14(f). The claimant has the burden of proving by a preponderance of the evidence that the alleged injury actually occurred and that it arose out of and in the course of employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of" refer to the cause or source of the injury. The words "in the course of" refer to the time, place and circumstances of the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 1971). The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence Page 10 must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Of Ms. Tedford's numerous complaints, only the early tendinitis and epicondylitis problems are causally related to her work. Neither have been shown to cause permanent disability or, for that matter, temporary disability subsequent to February 22, 1992, when she voluntarily quit employment, a decision not based on medical advice or necessity. Medical expenses are a different question, though. Claimant has submitted a list of disputed billings from nine separate providers totalling $7,658.13. Most of these date to 1992 and 1993, and are not causally related to the original 1989 injury. The employer shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies for all conditions compensable under the workers' compensation law. The employer shall also allow reasonable and necessary transportation expenses incurred for those services. The employer has the right to choose the provider of care, except where the employer has denied liability for the injury. Section 85.27. Holbert v. Townsend Engineering Co., Thirty-second Biennial Report of the Industrial Commissioner 78 (Review-reopen 1975). It will be recalled that the parties stipulated that fees or prices charged by providers are fair and reasonable, and that those providers would testify in the absence of contrary evidence to the reasonableness of treatment, although the issue remains disputed. Based on this stipulation, it is held that treatment was reasonable and necessary and that prices charged are fair and reasonable. Causal connection to the initial injury remains disputed. Defendants' effort to dispute authorization of these expenses has already been ruled invalid. Defendants also assert in their brief that certain expenses were accrued after insurance coverage was no longer provided. This, of course, is irrelevant. Coverage is not on a "claims made" policy. Rather, once liability for a compensable work injury is established, as here, claimant is entitled under section 85.27 to lifetime medical care so long as she can establish that it is reasonable, necessary and causally related to the initial injury. Billings of the Nebraska Chiropractic & Nutrition Clinic (Drs. Luse) include treatment for carpal tunnel syndrome, cervical strain, headaches, and even a thoracic sprain caused a totally unrelated slip and fall in January Page 11 1991. Claimant fails to establish causal nexus between these bills and the work injury. The Internal Medicine bill of December 22, 1993 appears to relate to shoulder complaints and biceps complaints. Neither are shown causally connected. The Internal Medical Associates' billings through April 1993 apparently are related to the care of Dr. Erikson, which was primarily for fibromyalgia. Fibromyalgia has not been shown to be caused by the claimed work injury. The PSI Health Care, Inc., bill totalling $992.66 relates to treatment of unknown type from June 1992 through January 1993. The evidence fails to show the nature of this treatment, so it cannot be determined causally related to the work injury. The St. Lukes Medical Center's bills of $107.70 and $69.50 were accrued in 1992 and fail to show the nature of treatment. Causal nexus is not established. The Walgreen's bills in 1992 and 1993 relate to prescriptions ordered by Dr. Erikson, whose treatment for fibromyalgia has not been shown causally related. The Sioux City Neurology Neurosurgery bill totalling $819.00 apparently relates to EMG and other testing at the request of Dr. Luse. Dr. Luse's services are not shown causally related. The Northwest Iowa Orthopaedics & Sports Center bill of $25.00 relates to a recheck exam in January 1992 upon the referral of Dr. Wheeler. Dr. Wheeler's care has been shown causally connected to the work injury. Defendants shall pay this bill. ORDER THEREFORE IT IS ORDERED: Defendants shall pay the Northwest Iowa Orthopaedics & Sports Center bill totalling twenty-five and no/100 dollars ($25.00). No weekly benefits are awarded. Costs are assessed to defendants. Signed and filed this ____ day of April, 1994. ________________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Page 12 Copies To: Mr Jeffrey A Neary Attorney at Law PO Box 3223 922 Douglas Street Sioux City Iowa 51102 Mr G Daniel Gildemeister Attorney at Law 400 Firstar Bank Building PO Box 1768 Sioux City Iowa 51102 5-1803; 5-1801; 2105; 2501 Filed April 22, 1994 DAVID RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ SHARON TEDFORD, : : Claimant, : : vs. : : File No. 969373 CONTEMPORARY INDUSTRIES/ : 7 ELEVEN, A R B I T R A T I O N : Employer, : D E C I S I O N : and : : CONTINENTAL LOSS ADJUSTING : SERVICES, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 5-1803; 5-1801 Claimant failed to prove compensable permanent or temporary disability. 2105; 2501 It is irrelevant that medical expenses were accrued after insurance coverage ended, as workers compensation insurance is not sold on a "claims made" basis. Section 85.27. Provides for lifetime medical coverage, so long as treatment is reasonable, necessary and causally related to a compensable injury.