BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ CATHY ACCORDINO, Claimant, vs. File No. 971023 BRIDGESTONE/FIRESTONE, A P P E A L Employer, D E C I S I O N and PACIFIC EMPLOYERS INSURANCE, 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 August 11, 1994 is affirmed and is adopted as the final agency action in this case. Claimant and defendants shall share equally the costs of the appeal including transcription of the hearing. Signed and filed this ____ day of February, 1995. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Robert W. Pratt Mr. Max Schott Attorneys at Law 6959 University Ave Des Moines IA 50311-1540 Ms. Valerie A. Landis Attorney at Law Terrace Center STE 111 2700 Grand Ave Des Moines IA 50312 1808 Filed February 21, 1995 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ CATHY ACCORDINO, Claimant, vs. File No. 971023 BRIDGESTONE/FIRESTONE, APPEAL Employer, DECISION and PACIFIC EMPLOYERS INSURANCE, Insurance Carrier, Defendants. ___________________________________________________________ 1808 Injury date in case of bilateral carpal tunnel and cubital tunnel syndromes found to be when claimant left work for surgery, not when she first reported symptoms. The injury date made a significant difference in rate of compensation. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : CATHY ACCORDINO, : : Claimant, : : vs. : : File No. 971023 BRIDGESTONE/FIRESTONE, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : PACIFIC EMPLOYERS INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a contested case proceeding under Iowa Code chapter 17A. Claimant, Cathy Accordino, filed a petition in arbitration against her former employer, Firestone Tire and Rubber Company, and its insurance carrier, Pacific Employers Insurance, on account of a claimed work injury of June 6, 1989 (first medical attention) or September 7, 1989 (surgery and first lost work). A hearing was accordingly scheduled and held in Des Moines, Iowa on April 27, 1994. The record consists of claimant's testimony, claimant's exhibits 1-45 and defendants' exhibits 1-5. ISSUES The parties have stipulated to the following: 1. An employment relationship existed between claimant and Firestone Tire and Rubber Company at the time of the alleged injury; 2. If claimant sustained injury arising out of and in the course of employment, it caused temporary disability from September 7, 1989 through October 9, 1989 and July 21 through August 14, 1991; 3. Entitlement to temporary total disability or healing period benefits is no longer in dispute; 4. At the time of injury, claimant was single and entitled to five exemptions; 5. Affirmative defenses have not been raised; Page 2 6. Entitlement to medical benefits is no longer in dispute; and, 7. Defendants have voluntarily paid 56.571 weeks of compensation at the time of $343.65 per week, 7.143 weeks of which constituted healing period or temporary total disability. Issues presented for resolution include: 1. Whether claimant sustained injury arising out of and in the course of employment; 2. Whether the injury caused permanent disability; 3. The nature, extent and commencement date of permanent disability, if any; and, 4. The correct rate of weekly compensation. FINDINGS OF FACT The undersigned deputy industrial commissioner finds: Cathy Accordino, a right hand dominant 39 year old woman, commenced employment with Firestone Tire and Rubber Company in January 1989. Defendant Firestone operates a tire manufacturing facility in Des Moines, Iowa. At the time she began working for Firestone, Ms. Accordino suffered no physical problems. She worked as a tire trimmer, tire inspector, forklift operator and utility worker in the buff and repair department. In particular, work as a tire trimmer and inspector involved strenuous use of the upper extremities, as claimant would rotate tires with one hand, simultaneously trimming excess rubber with a knife held in the opposite hand. Unfortunately, claimant soon developed upper extremity problems eventually diagnosed through EMG testing as bilateral carpal tunnel syndrome. On June 6, 1989, she first appeared at the plant medical department with complaints of wrist pain. She was seen by the company doctor, James Blessman, M.D., and eventually referred for consultation to Arnis Grundberg, M.D. Dr. Grundberg first saw claimant on August 2, 1989. Based on her symptoms, examination and EMG testing, he developed an impression of bilateral carpal tunnel syndrome and probable bilateral cubital tunnel syndrome. On September 7, 1989, Dr. Grundberg performed bilateral carpal tunnel decompressions. On a number of forms prepared to release claimant to light duty work following surgery, Dr. Grundberg indicated that his entire diagnosis, including both carpal and cubital tunnel syndrome, was work related. Claimant returned to light duty work on October 10, 1989 Page 3 with restrictions against pushing, pulling or lifting over five pounds with either hand. Although the bilateral decompressions initially relieved symptoms, claimant soon suffered a recurrence. She had returned to full duty on November 5, 1989. By August 1990, Dr. Grundberg reports complaints of bilateral shoulder pain which he diagnosed as bursitis. However, Dr. Grundberg eventually concluded that the shoulder problems were not work related. On March 9, 1992, Dr. Grundberg rated impairment at three percent of each arm due to residuals from carpal tunnel syndrome. At that time, his impression also included mild bilateral cubital tunnel syndrome. Because the carpal tunnel decompressions had failed to relieve symptoms, Dr. Grundberg recommended against surgical treatment of the cubital tunnel problems. On January 5, 1994, Dr. Grundberg amended his impairment rating to add an additional five percent to each arm for unoperated bilateral cubital tunnel syndrome. In this letter, Dr. Grundberg noted that claimant had some shoulder complaints in October 1990, but that such complaints were more significant in March 1992 (when he last saw claimant); because Ms. Accordino had not worked for Firestone since July 1991, he concluded that the shoulder complaints were not causally related to her work. Actually, claimant was laid off by Firestone in August 1991. In 1991 and 1992, claimant was treated by Donna J. Bahls, M.D., a specialist in rehabilitation and physical medicine. On September 14, 1992, Dr. Bahls wrote that "her pains are casually [sic] related to her employment activities at Firestone from cumulative work injury." Although Dr. Bahls' previous notes had made some reference to pains radiating up to the shoulders and neck, it is not at all clear that this causation opinion was intended to include those symptoms, or possible permanent disability to the neck or shoulders. Dr. Bahls recommended physical restrictions to limit overhead use of the arms and avoid repetitive work with the hands and wrists. Dr. Bahls did not rate impairment and would "defer to someone else" on that score. Claimant was also seen on a number of occasions in 1991 by Robert F. Breedlove, M.D. On November 21, Dr. Breedlove felt claimant was experiencing symptoms which might be referred to cubital tunnel or mild bilateral reflex sympathetic dystrophy. By November 26, 1991, following repeat EMGs and nerve conduction velocity testing, Dr. Breedlove recommended that claimant return to Dr. Grundberg. He noted that testing was negative for cubital tunnel syndrome, but positive with respect to the median nerve across the carpal tunnel. He did not recommend further surgical treatment. Claimant was seen for evaluation on February 1, 1991 by Keith W. Riggins, M.D. Dr. Riggins identifies himself as board certified in orthopedic surgery and arthroscopic surgery. Dr. Riggins concluded that impairment was confined to the distributions of the ulnar nerve at the elbow Page 4 bilaterally and the median nerve at the wrist bilaterally. Utilizing the AMA Guides to the Evaluation of Permanent Impairment (4th Edition), Dr. Riggins found 30 percent impairment to the right upper extremity due to cubital tunnel syndrome and 20 percent due to carpal tunnel; also 30 percent impairment to the left upper extremity due to cubital tunnel and 20 percent due to carpal tunnel syndrome. Converting these impairment ratings to the whole person, Dr. Riggins found an 18 percent plus a 12 percent impairment on each side due to the two conditions, which he thereupon combined to find a 48 percent impairment to the whole person. Dr. Riggins further found both conditions to be caused by cumulative injury in the employ of Firestone, with current impairment attributable to residuals after appropriate treatment. He thought claimant unable to engage in activities requiring repetitive or finely controlled motions of the upper extremities on either side, unable to engage in tight gripping and lifting or carrying, and likely to require future treatment to control symptoms by utilization of anti-inflammatory medications. During the 13 weeks prior to the injury date of September 7, 1989, payroll records reflect the following hours and straight time earnings: Week Ending Hours Straight Time Earnings 9/03/89 32.0 $352.08 8/27/89 40.0 440.10 8/20/89 32.0 352.08 8/13/89 48.2 503.63 8/06/89 40.0 395.85 7/30/89 48.0 475.26 7/23/89 40.0 396.05 7/16/89 40.0 396.05 7/09/89 0.00 7/02/89 40.0 389.60 6/25/89 40.0 389.60 6/18/89 40.2 422.91 6/11/89 50.0 573.82 The record does not disclose why claimant missed eight hours during the weeks ending August 20 and September 3 or why she had no earnings for the week ending July 9. Claimant's testimony that she missed hours due to family health problems is understood to relate to the 13 weeks prior to June 6. 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, Page 5 154 N.W.2d 128 (1967). The words "arising out of" refer to the cause or source of the injury. The words "in the course of" refer to the time, place and circumstances of the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 1971). The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). A personal injury contemplated by the workers' compensation law means an injury, the impairment of health or a disease resulting from an injury which comes about, not through the natural building up and tearing down of the human body, but because of trauma. The injury must be something which acts extraneously to the natural processes of nature and thereby impairs the health, interrupts or otherwise destroys or damages a part or all of the body. Although many injuries have a traumatic onset, there is no requirement for a special incident or an unusual occurrence. Injuries which result from cumulative trauma are compensable. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 1219, 38 N.W.2d 158 (1949); Almquist v. Shenandoah Nurseries, Inc., 218 Iowa 724, 254 N.W. 35 (1934). An occupational disease covered by chapter 85A is specifically excluded from the definition of personal injury. Iowa Code section 85.61(5); Iowa Code section 85A.8. When the disability develops gradually over a period of time, the "cumulative injury rule" applies. For time limitation purposes, the compensable injury is held to occur when because of pain or physical disability, the claimant can no longer work. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). Drs. Grundberg, Bahls and Riggins attribute claimant's carpal tunnel and cubital tunnel symptomatology to cumulative trauma resulting from claimant's work at Firestone. No contrary medical evidence is shown of record. Page 6 Claimant prevails on the "arising out of" and causation issues. The appropriate date of injury is September 7, 1989, when claimant underwent surgery and was forced to leave work as a result. Under Iowa Code section 85.34(1), healing period is compensable beginning on the date of injury and continuing until the employee has returned to work, it is medically indicated that significant improvement from the injury is not anticipated, or until the employee is medically capable of returning to substantially similar employment, whichever first occurs. Claimant returned to work on October 10, 1989. Although she had a subsequent period of temporary total disability prior to her layoff, the healing period ended when she returned to work. At about this time claimant reached the "high water mark" in her imperfect recuperation, since her symptoms have steadily worsened since. We must next consider whether claimant's permanent disability is to the body as a whole or two scheduled members. Disability to the body as a whole is compensated by the industrial method as loss of earning capacity. Scheduled member disabilities are compensated according to the schedule set forth in Iowa code section 85.34 as a measure of functional loss. In this case, claimant has proven disability to each arm from carpal and cubital tunnel syndromes, but not disability extending to the shoulders, neck or body otherwise as a whole. All of claimant's upper extremity symptoms developed together and claimant's only surgery was bilateral on the same day. Claimant's disability should be compensated under Iowa code section 85.34(2)(s): For all cases of permanent partial disability compensation shall be paid as follows: .... s. The loss of both arms, or both hands, or both feet, or both legs, or both eyes, or any two thereof, caused by a single accident, shall equal five hundred weeks and shall be compensated as such, however, if said employee is permanently and totally disabled the employee may be entitled to benefits under subsection 3. Claimant was not totally disabled by the work injury under review, although she has since been involved in a terrible automobile crash and has suffered much greater disabilities. Ms. Accordino is currently receiving Social Security disability benefits. However, for purposes of this injury, claimant's age, intelligence (normal, at least) and work experience, including clerk/cashier, clerical and physician's assistance experience, indicate that although Page 7 the restrictions suggested by Drs. Grundberg, Bahls and Riggins are severe, claimant would still have some earning capacity. The impairment ratings of Dr. Grundberg and Dr. Riggins vary considerably. Dr. Grundberg's opinion certainly deserves respect as that of the primary treating physician and surgeon. However, this decision prefers the detailed evaluation of Dr. Riggins. Dr. Riggins' report is consistent with the symptoms claimant experiences (although there are hints in the record that symptom magnification may be a factor) and is based on a much more recent evaluation than is the case with Dr. Grundberg, who based his impairment rating on claimant's condition in 1992. Dr. Riggins' multiple board certification is also impressive. The calculation of combined disability using the AMA Guides combined values chart is consistent with the statute. Forty-eight percent of 500 weeks is 240 weeks. Claimant is entitled to 240 weeks of permanent partial disability benefits commencing October 10, 1992, but interrupted from July 21 through August 14, 1991, when claimant sustained a second period of temporary disability as per stipulation. This leaves determination of rate as an issue. Because claimant was paid an hourly wage, her compensation should be determined under Iowa Code section 85.36(6). The statute provides that the weekly earnings in this case is computed by dividing by 13 the straight time earnings during the last competed period of 13 consecutive weeks immediately preceding the injury. The payroll records demonstrate that claimant worked two short weeks and had no earnings whatsoever in one of the 13 weeks prior to September 3. The agency has long recognized that nonrepresentative weeks should be excluded from rate calculation. Hardy v. Abell-Howell Co., 841126 (App. Dec., December 12, 1990); Davis v. Weitz Co., 898933 (App. Dec., November 25, 1992). The week ending July 9 is clearly nonrepresentative, since claimant had no earnings. The record does not reflect why she worked but 32 hours during the weeks ending August 20 and September 3, but since it does not, claimant has failed to show they are nonrepresentative. The straight time earnings during the other 12 weeks totals $5,087.03. Division by 12 yields a quotient of $423.92. The rate tables published by this office show that a single individual with five exemptions and gross average weekly wages of $423.92 is entitled to a compensation rate of $275.07. ORDER THEREFORE, IT IS ORDERED: Defendants shall pay two hundred forty (240) weeks of permanent partial disability benefits at the rate of two hundred seventy-five and 07/100 dollars ($275.07) commencing October 10, 1989, except said benefits are interrupted from Page 8 July 21, 1991 through August 14, 1991. Defendants shall have credit for permanent partial disability benefits voluntarily paid prior to hearing. All accrued weekly benefits shall be paid in a lump sum together with statutory interest. Costs are assessed to defendants. Signed and filed this ____ day of August, 1994. ________________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Robert W Pratt Attorney at Law 6959 University Avenue Des Moines Iowa 50311-1540 Ms Valerie A Landis Attorney at Law Terrace Center Ste 111 2700 Grand Avenue Des Moines Iowa 50312 1808 Filed August 11, 1994 DAVID RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : CATHY ACCORDINO, : : Claimant, : : vs. : : File No. 971023 BRIDGESTONE/FIRESTONE, : A R B I T R A T I O N Employer, : : D E C I S I O N and : : PACIFIC EMPLOYERS INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1808 Injury date in case of bilateral carpal tunnel and cubital tunnel syndromes found to be when claimant left work for surgery, not when she first reported symptoms. The injury date made a significant difference in rate of compensation. Page 1 before the iowa industrial commissioner ____________________________________________________________ : LILLIAN NAIRN, : : Claimant, : : vs. : : File No. 971064 ALBIN SWANSON, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : STATE FARM INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ INTRODUCTION This is a proceeding in arbitration brought by Lillian Nairn, claimant, against Albin Swanson, employer, and State Farm Insurance Co., insurance carrier, defendants, for benefits as a result of an alleged injury which occurred on October 23, 1990. A hearing was held in Sioux City, Iowa, on August 26, 1992 and the case was fully submitted at the close of the hearing. Claimant was represented by Dennis McElwain. Defendants were represented by Judith Ann Higgs. The record consists of the testimony of Lillian Nairn, claimant, joint exhibits 1 through 26 and claimant's exhibits A through E. The parties agreed that defendants' exhibits C and E tended to be duplicates, however, exhibit E helped to explain exhibit C and therefore both C and E were admitted into evidence by agreement of the parties (Transcript pages 8-11). Defendants' presented a brief statement of contentions at the time of the hearing. Both attorneys submitted outstanding post-hearing briefs. The deputy ordered a transcript of the hearing. issues The parties submitted the following issues for determination at the time of the hearing. Whether claimant sustained an injury on October 23, 1990, which arose out of and in the course of employment with employer. Whether the alleged injury was the cause of either temporary or permanent disability. Whether claimant is entitled to either temporary or permanent disability benefits. Whether claimant is entitled to medical benefits. findings of fact Page 2 injury It is determined that claimant did not sustain an injury on October 23, 1990, which arose out of and in the course of her employment with employer. Claimant, age 51, has been employed as a care giver since 1978, a period of approximately 12 years prior to this incident (Tran., pp. 31 & 32). She worked for her previous employer as a care giver for approximately six and one-half years from June 13, 1983 to January 5, 1990. This previous employment also required lifting the patient (Tran., pp. 32-34,74). Claimant denied that she sustained any injuries while working for the previous employer (Tran., p. 34) but did admit that her back got tired from lifting her former client (Tran., p. 92). Claimant testified, "... -- my back problems there wasn't like it is now." (Tran., p. 35). The employer in this action is a stroke victim approximately 81 years of age who also had Parkinson's disease and was confined to a wheelchair (Tran., p. 41). Claimant started to work for employer Swanson on August 29, 1990 (Tran., pp. 40 & 82) and continued to work there until November 7, 1990 (Tran., p. 88), a period of ten weeks. Claimant's primary responsibility was to be a companion and to talk with him (Tran., p. 42). Her duties also included bathing and dressing employer, assisting him into and out of bed and a wheelchair, and onto and off of a couch and the toilet (Tran., p. 43). The weight of employer was not introduced into evidence but claimant testified that he was an average size man and defendants' counsel suggested that he might weigh about 135 pounds (Tran., p. 42 & 70). Claimant testified that her previous employer was a woman who weighed approximately 89 pounds (Tran., p. 42). In addition to claimant, employer also employed another woman as a live-in companion who cooked the meals and still another person was employed as housekeeper (Exhibit 24, page 6). Claimant typically worked from 8:00 a.m. on Monday morning until 5:00 p.m. on Friday afternoon (Tran., p. 41). Claimant testified that at approximately 10:30 a.m. on October 23, 1990 that she was trying to get a Depend (a sanitary diaper) on employer when she felt pain in her mid back and chest (Tran., p. 42; Ex., pp. 34, 35 & 37). This caused a recurrence of angina pain for which she took two Nitroglycerin pills. Claimant said she got over the angina pain but she continued to have a steady pain in her mid back (Tran., pp. 45 & 46). Claimant testified that she had never experienced anything like that before (Tran., pp. 46 & 47). Claimant stated that she called her doctor's office that afternoon at about 2:30 p.m. on October 23, 1990 and a nurse set up a stress test for her on the following day October 24, 1990 (Tran., p. 48). The office records of Gene E. Michel, M.D., claimant's personal physician, do not show an entry for October 23, 1990. Rather, Dr. Michel's office notes show that claimant called on October 22, 1990, the day before the alleged injury. The doctor's office note states, "Lillian called. Page 3 Wants stress test set up. Phoned back. Pain left side since last week. Recommended Dr. Parker." (Ex. 4, p. 2). Dr. Michel's office note for October 22, 1990, makes no mention of lifting a patient and feeling mid back and chest pain (Ex. 4, p. 2). At the hearing claimant did not testify that she reported the injury to employer, the cook, or the housekeeper at her place of her employment nor did any of these persons testify that claimant reported a mid back and chest pain to them while lifting employer at anytime while she was working for employer. Claimant did say in a telephone statement to the insurance company representative on January 3, 1991, that she reported it to the cook when the cook came home that day (Ex. 24, p. 36). This statement is neither corroborated nor controverted. Robert D. Swanson, employer's son, responding to interrogatory number 9 admitted that a work incident was reported by claimant to him. In interrogatory 14 he states that he was notified when claimant left to go to the doctor. Dr. Michel's notes show that she saw Dr. Wesley A. Parker, M.D., for the stress test on October 24, 1990 and she saw Dr. Michael with urinary tract problems on October 29, 1990 and November 5, 1990, but that claimant first complained of lower back pain from lifting Mr. Swanson on November 7, 1990 (Ex. 24, pp. 11 & 16, Ex. 4, pp. 1 & 2). Therefore it cannot be determined whether claimant reported this injury to employer or anybody connected with him before November 7, 1990 or not. Furthermore, it is noteworthy that when claimant did first allege back pain on November 7, 1990, from lifting Mr. Swanson she stated that it was in her lower back and moved around to the front rather than in her mid back and chest (Ex. 4, p. 1). The first report of injury, which was introduced into evidence as a joint exhibit, shows that claimant experienced a pain which went from her back to her chest on the left side and all the way through on November 7, 1990, and that the employer first knew of the condition on November 7, 1990 (Iowa Code section 86.11). This first report of injury is signed by Robert D. Swanson, employer's son (Ex. 20). Claimant insisted in her telephone statement to the insurance adjuster (Ex. 24, pp. 35 & 36) and in her testimony at the hearing (Tran., p. 47) that she was injured on October 23, 1990 and that she called the doctor's office on that same day. However, Dr. Michel recorded that claimant first called him on October 22, 1990. The doctor further noted that on October 22, 1990, that claimant had pain in her left side since last week (Ex. 4, p. 2). It is further noted that when she saw the doctor prior to this injury on October 19, 1990, concerning urinary problems that he also prescribed Nitrostat for chest pain (Ex. 4, p. 2). With respect to when claimant reported this injury to Dr. Michel the written office note of Dr. Michel and the other person in his office, both of whom made notes on October 22, 1990, is preferred over Claimant's recollection (Tran. 48 & 86). Claimant admitted that her recollection was not good Page 4 about what she told Dr. Michel on other matters (Tran., pp. 90 & 91). It is also noted that (1) approximately one year prior to this alleged injury, Dr. Michel recorded that claimant complained of chest pain and tenderness in the upper thoracic spine on November 13, 1989 (Ex. 4, p. 3), (2) that he prescribed Nitrostat for chest pain just a few days prior to this injury on October 19, 1990 (Ex. 4, p. 2) and (3) that on October 22, 1990, Dr. Michel noted that claimant had pain in the left side since last week (Ex. 4, p. 2). On October 24, 1990, the hospital records of Sioux Valley Memorial Hospital reflect that claimant told a nurse that she had experienced chest pain intermittently for the past year and that she had it two times in the last week. The hospital makes no mention of mid back and chest pain while lifting employer on October 23, 1990 or at anytime (Ex. 2, p. 2). Dr. Parker, who administered the stress test at the hospital on October 24, 1990, makes no mention of mid back and chest pain while lifting employer on October 23, 1990. On the contrary, Dr. Parker recorded that claimant had a history of intermittent substernal chest pain irrespective of activity, relieved by Nitroglycerin, and that there was a family history of premature heart disease. The results of the stress test were normal. Moreover, even though Dr. Parker discontinued the test due to leg fatigue and dry mouth he nevertheless commented that claimant's functional aerobic capacity was ten percent better than active females of the same age (Ex. 2, p.3). After the stress test was completed claimant did complain of discomfort in her midsternum and pain in her back. The complete records shows that these symptoms were first recorded on November 13, 1989. Furthermore, they would not constitute a specific injury but would appear to be a result of changes in the human body incident to the general processes of nature that do not amount to a personal injury which are natural changes which may have come about because of a life devoted to labor and hard work. Claimant testified that her back became very tired when lifting her previous employer. Claimant has a family history of early heart disease. Those natural changes do not constitute a personal injury even though they bring about some impairment of health or the total or partial incapacity of the functions of the human body. Almquist v. Shenandoah Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934). Dr. Michel recorded in his notes of October 24, 1990, that the stress test was normal. Thus, this office note on October 24, 1990, which was made by claimant's personal physician and which was made the day after the alleged injury makes no mention of mid back and chest pain on the previous day or at anytime (Ex. 4, p. 2). At the hearing claimant testified that she told Dr. Parker that her back pain was caused by this alleged injury but neither the nurse's notes nor Dr. Parker's notes make Page 5 any mention of mid back or chest pain which occurred on October 23, 1990, while lifting employer (Tran., pp. 49 & 50; Ex. 2). Dr. Michel noted on October 29, 1990, that claimant called and reported that she thought she passed some kidney stones. Back ache is mentioned but it appears to be in conjunction with her urinary problems. The doctor recorded, "Now backache, no fullness but burning after voiding." (Ex. 4, p. 2). The doctor then continues to discuss the stress test and the urinary tract problems but no mention is made of mid back and chest pain which occurred on October 23, 1990, while lifting her employer. Dr. Michel concludes this entry of October 29, 1990, with this notation, "She called back with tightness in her throat and chest and is all nerved up. I recommended she get out and walk to release some of this tension and not just take nerve pills." (Ex. 4, p. 2). On November 5, 1990, Dr. Michel noted that claimant reported to him that she had left flank pain which moved around to the front and she thought that she had passed what looked like a long light colored kidney stone. This office note, again, makes no mention of mid back or chest pain that occurred on October 23, 1990, while lifting employer (Ex. 2, p. 1). At the hearing claimant complained that she did not receive any medical care for her back after seeing Dr. Parker and when she continued to see Dr. Michel even though her back hurt something terrible (Tran., p. 50). Claimant related that the pain in her back got so bad that she couldn't take it anymore and that she was forced to quit her employment with employer on November 7, 1990 (Tran., p. 51). Claimant testified that she did not tell the employer that she was leaving but rather told the cook that she was leaving because she did not want to worry employer (Tran., p. 51). The office note of Dr. Michel for November 7, 1990, states that claimant complained of pain in her lower back around to the front when she lifts. Thus, even though claimant was quite specific at the hearing that the pain was in her mid back by words and gestures (Tran., pp. 46 & 51), Dr. Michel records that she reported to him that the pain was in her lower back and moved around to the front (Ex. 4, p. 1). On November 7, 1990, Dr. Michel wrote in his notes, "Works for Al Swanson. Has to lift him and has had a lot of pain today. Wonders if needs to be seen again or can have something for pain. ...." (Ex. 1, p. 4). Thus, the first indication in her personal physician's records that claimant had any back problems from her employment did not occur until November 7, 1990, which is the same day that she voluntarily quit her job with employer. This note does not indicate that this low back pain occurred on October 23, 1990. Nor does this note describe mid back and chest pain. Dr. Michel saw claimant on the following day, November Page 6 8, 1990, at which time he noted, "In to check back. Complains of pain left posterior rib cage radiates to left lower chest. Worse with movement or coughing, deep breaths." (Ex. 4, p. 1). Dr. Michel also recorded tenderness in her lower thoracic spine on November 8, 1990 (Ex. 2, p. 2) Thus, it was not until November 8, 1990, that claimant complained of symptoms which could be identified as mid back and chest pains. Dr. Michel ordered x-rays taken on November 12, 1990, by Glenn Van Roekel, M.D., at the Sioux Valley Memorial Hospital. The chest, thoracic spine and intravenous pyelogram were all normal (Ex. 3; Ex. 4, p. 1). On November 13, 1990, Dr. Michel recorded that the x-rays were normal. He also recorded that claimant wondered if it would come under workers' compensation and Dr. Michel wrote in his notes that claimant was having chest pain a year ago before she was working for this employer (Ex. 4, p. 1). Dr. Michel apparently was referring to his office note of the previous year on November 13, 1989, when he recorded that claimant had pain (tightness) in the lower sternum as well as heart palpitations with chest pain and tenderness in the upper thoracic spine on percussion (Ex. 4, p. 3). Dr. Michel suspected possible angina pectoris but he also added that the patient was very nervous and it could be neuromuscular pain or upper GI pain from her previous history of ulcers (Ex. 4, p. 2). In a letter to claimant's counsel which Dr. Michel wrote on July 5, 1991, the doctor stated "I have not been able to correlate her pain very well with the lifting of Al Swanson, and she did pass a small kidney stone, which I suspect was the cause of her pain." (Ex. 9). Thus, claimant's personal physician since January 15, 1988, who was the only physician actively treating claimant at the time of this alleged injury, did not attribute claimant's pain to a work injury but rather he attributed it to a kidney problem. Claimant testified that she transferred her care to M. A. Kennedy, D.C., on November 15, 1990, "Because Dr. Michel wouldn't do anything. He wouldn't recognize that I was having problems with my upper back and maybe he hadn't -- I don't know. I don't know. I can't account for --" (Tran., p. 53). Claimant contended that Dr. Kennedy looked at the Sioux Valley Memorial Hospital x-rays and told her that her back was all out of line and that she had a dislocated rib (Tran., pp. 53 & 90). Claimant described her treatment with Dr. Kennedy as follows. "Well, he did some -- he adjusted my back. He says, my God, lady, you got to be in a lot of pain, which I was, and he adjusted by back in several places and adjusted my neck. He said that my back was all out of line and that I had a dislocated rib and he showed on the x ray that I took from the hospital that Dr. Michel -- that I Page 7 insisted on Dr. Michel take and he said that there was space in between the ribs and the back and that I had to be in a lot of pain." (Tran., p. 53). Dr. Kennedy completed a doctor's report on January 31, 1991 in which he stated that his x-ray diagnosis was thoracic subluxation, thoracic strain/sprain and thoracic pain. (Ex. 5). In a later report dated June 25, 1992, Dr. Kennedy said that claimant's x-rays showed that aberrant vertebral mechanics of the cervico-thoracic spine were present at T6-T7 and T2-T3 (Ex. 14, p. 2). It cannot be determined what x-rays Dr. Kennedy was looking at. An examination of his itemized charges discloses no specific charge for x-rays (Ex. C & E). Therefore he could have been referring to the Sioux Valley Memorial Hospital x-rays that he examined previously which were interpreted by Dr. Van Roekel. However, John J. Dougherty, M.D., testified that he examined some x-rays which were chiropractic long x-rays which were dated June 18, 1992 (Ex. 26, p. 11). Dr. Michel's final office note entry on November 27, 1990 states that claimant told him that Dr. Kennedy told her that the Sioux Valley Hospital x-rays demonstrated a dislocated rib and two vertebra jammed together (Ex. 4, p. 1). Irrespective of whether Dr. Kennedy examined the Sioux Valley x-rays or his own x-rays the opinion of Dr. Van Roekel, a radiologist is preferred over the opinion of Dr. Kennedy. Also on June 25, 1992, Dr. Kennedy diagnosed, "Lower cervicothoracic segmental dysfunction. Cervical leading to a cephalgia; the thoracic to a myofacial fibrosis with some residuals into the lumbar spine." (Ex. 14, p. 2). With respect to the diagnosis of Dr. Kennedy of thoracic subluxation and aberrant vertebral mechanics at T6-T7 and T2-T3, it is determined that the report of Dr. Van Roekel, a radiologist, is preferred over the testimony of Dr. Kennedy, a doctor of chiropractic medicine. Dr. Van Roekel found that the chest films and the thoracic spine films were normal (Ex. 3). Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d 192 (Iowa 1985). A doctor's expertise may accord his testimony greater weight. Reiland v. Palco Inc., 32nd Biennial Report of the Industrial Commissioner 56 (1975); Dickey v. ITT Continental Baking Co., Thirty-fourth Biennial Report of the Industrial Commissioner 89 (1979). Dr. Michel's records demonstrate that claimant made no complaints of thoracic pain to him at all. With respect to the thoracic tenderness that he discussed and did record on November 8, 1990, and the left posterior rib cage pain that she complained radiated to the left lower chest, he did order x-rays on November 12, 1990. He said the x-rays were normal on November 13, 1990. Dr. Michel also called attention to the fact that "... she was having some chest pain a year ago and it was before she was working for him [employer]." (Ex. 4, p. 1). Page 8 Even though Dr. Kennedy stated "It is my opinion that Lillian Nairn has and will have on-going problems associated with the injuries she suffered in the 10-23-90 incident." (Ex. 14, p. 2), nevertheless, the opinion of Dr. Michel is preferred over the opinion of Dr. Kennedy. Dr. Michel said he could not correlate her pain with lifting Al Swanson and that he suspected the small kidney stone which she passed at that time was the cause of her pain (Ex. 9). Dr. Michel was seeing claimant regularly at the time of the alleged injury and made competent notes based on his clinical diagnosis, x-rays and his previous knowledge of claimant and her condition dating back to January 15, 1988 (Ex. 4). Dr. Michel and his office staff appear to be good historians making and initialing and recording all of the events which transpired including telephones calls (Ex. 4, pp. 1 & 2). Dr. Michel made no record of an injury caused by lifting employer on October 23, 1990, which caused immediate mid back pain that raided around to her chest. On the contrary, he indicated (1) that he could not correlate her symptoms to lifting employer, (2) that he suspected her pain was related to her kidney problems which she was having at that time and (3) he further believed that claimant's symptoms were quite possibly a recurrence of the chest discomfort and upper thoracic spine tenderness that he had been treating since November 13, 1989 (Ex. 4, pp. 2 & 3, E. 9). Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985). Defendants requested an independent medical examination from John J. Dougherty, M.D., an orthopedic surgeon on March 26, 1991, approximately five months after the alleged injury. Dr. Dougherty reported that when he mentioned taking x-rays that claimant requested an MRI of her whole body (Ex. 26, p. 33). Dr. Dougherty's physical examination was essentially normal. The x-rays of her dorsal spine were essentially normal, except for some minimal degenerative changes (Ex. 26, pp. 8, 9, 29 & 30). Dr. Dougherty concluded, "PAIN IN THE DORSAL SPINE, ETIOLOGY? PERHAPS SOME FIBROMYALGIA. RECOMMENDATIONS: Non. [sic] I think there is tremendous psychosomatic overlay here. Would not feel further diagnostic studies are indicated nor do I think she sustained any disbility [sic]." (Ex. 6). It should be noted that Dr. Dougherty's findings were consistent with Dr. Michel's findings. Furthermore, since Dr. Dougherty questioned the etiology of claimant's complaints it cannot be said that he determined that her complaints were caused by lifting employer on October 23, 1990 (Ex. 26, pp. 32-34). Moreover, he said that he could not find anything that would explain her pain (Ex. 26, p. 35). In a detailed report dated March 29, 1991, Dr. Dougherty concluded "In conclusion, based on one examination regarding this patient, I really didn't find very much wrong with her. Basically she has some restriction of chest expansion which perhaps is caused by some degenerative Page 9 changes in the back. I do not feel there are any further diagnostic studies indicated on her. I do feel that a considerable amount of her problem is perhaps on a psychosomatic basis. Basically I would feel that she could be back working. I also feel she hasn't sustained any permanent impairment." (Ex. 7, p. 2). Dr. Dougherty testified by deposition on August 12, 1992. He related that he is a board certified orthopedic surgeon who has been practicing orthopedic medicine for 37 years and that he has seen thousands of patients. He is admitted to practice in both Iowa and Nebraska (Ex. 26, pp. 1-5 & 42). He compared x-rays of December 14, 1987 and June 18, 1992 and found no significant difference in the dorsal spine between the two dates (Ex. 26, pp. 11, 12, 28 & 29). He did not find any thoracic radiculitis (Ex. 26, pp. 15, 30 & 31). The doctor reviewed the tests he performed and testified that if claimant had any residuals from this alleged injury they would have developed by the time of his examination (Ex. 26, pp. 16 & 33). Dr. Dougherty found no indication of a dislocated rib (Ex. 26, p. 17). The doctor opined that he did not believe that claimant aggravated a previous existing condition (Ex. 26, p. 36). He did not find any tender spots or muscle spasm (Ex. 26, p. 36). He reversed his earlier opinion that claimant might have fibromyalgia (Ex. 26, p. 37). Dr. Dougherty thought it was significant that claimant could hop on one foot and that he percuss her back and that she registered no pain (Ex. 26, pp. 7 & 41). In summary then Dr. Dougherty testified that he did not believe that claimant sustained any injury at anytime from lifting employer or otherwise to any part of her back. Claimant testified that she received relief from the chiropractic treatments of Dr. Kennedy while she was in the office but that her back would stiffen up again on the way home (Tran., p. 54). Because of this pain she consulted Dr. Hamm. The records of Dr. Hamm show that he saw claimant on February 28, 1991 and again on March 8, 1991 (Tran., pp. 54 & 55 and Ex. 10). Dr. Hamm was also a personal physician of claimant, who had seen her since June 28, 1964 (Ex. 10). Dr. Hamm has treated claimant for multiple complaints for a long period of time. His records show that she is a nervous and anxious person for whom he prescribed a number of prescription medications. Claimant requested cortisone shots in her back from Dr. Hamm because the chiropractor told her that she needed 15 to 20 cortisone shots (Ex. 10, p. 2). On this occasion he ordered nonsteroid anti-inflammatory medication and a sonogram of her gall bladder (Tran., p. 94). Claimant testified that she discontinued her treatment with Dr. Hamm because the medication did not help, the sonogram and her blood test proved negative and the insurance company refused to pay for his treatment (Tran., p. 56). Claimant admitted that two days after she started to work for employer she suggested to his son that he should Page 10 purchase a workers' compensation policy (Tran., p. 83). Although claimant has not worked since she voluntarily quit her employment with employer on November 7, 1990 (she was not taken off work by a doctor), she nevertheless has not applied for social security disability benefits nor has she applied for vocational rehabilitation assistance in finding employment (Tran., p. 95). Claimant testified that during her job search the first thing that she told prospective employers was that she had a bad back (Tran., pp. 96, 102 & 103). Claimant also testified that she had never filed a workers' compensation claim prior to this one (Tran., p. 104). Jay J. Parsow, M.D., a physiatrist, performed an independent medical examination on claimant on May 5, 1992, at the request of claimant's attorney. Among other things Dr. Parsow found (1) thoracic spondylosis, probably preexisting, aggravated by injury, (2) possible thoracic radiculitis T7/8 versus costovertebral joint dysfunction, probably pre-existing, asymptomatic, aggravated by injury, (3) history of possible fibromyalgia, (4) possible psychosocial disorder and (5) mechanical back pain with facet irritation, probably aggravated by injury. His other five findings are not related to the injury described by claimant in this case (Ex. 11). Dr. Parsow examined claimant again on June 25, 1992 and gave a detailed impairment rating and prognosis that claimant was limited to sedentary work (Ex. 15). Some of the difficulties involved in accepting Dr. Parsow's evaluation are as follows: (1) He is a one-time evaluator. (2) He had no personal experience with claimant's long and extensive medical history. (3) His evaluation goes far beyond claimant's original complaints of mid back and chest pain. (4) His evaluation includes the cervical and lumbar areas as well as her thoracic area. (5) His evaluation was performed at the request of claimant's attorney to produce evidence for this hearing. Dr. Michel's notes and report are preferred over the one-time evaluation of Dr. Parsow because he was a treating physician and he was treating claimant both before, during and immediately after this alleged injury. As a treating physician he was responsible for the success or failure of his treatment. Likewise, Dr. Dougherty's evaluation is preferred over the evaluation of Dr. Parsow, even though he too is an independent evaluator, because it comports best with the records of Dr. Michel and Dr. Parker whose records and reports were prepared contemporaneously with the date of the alleged injury. Many of the complaints that claimant presented to Dr. Kennedy and Dr. Parsow, she had registered earlier in 1987 to Dr. Erwin who is in the same office as Dr. Kennedy (Ex. 1). Claimant acknowledged that she did see Dr. Erwin, a doctor of chiropractic medicine, who is in the same office as Dr. Kennedy, on December 14, 1987 (Tran., pp. 35 & 36). The case history form which claimant completed for Dr. Erwin Page 11 shows that she had the following complaints or symptoms (1) headache, (2) pain in neck, neck pain with movement, muscle spasms in the neck and popping sounds in the neck, (3) pain in the left shoulder, tension in shoulders and pinched nerve in the left shoulder, (4) pain in the upper arm and pain in the forearm, (5) nervous stomach, (6) low back pain worse when working, lifting and bending, (7) pain down both legs and (8) nervousness, irritableness, depression, fatigue, general run-down feeling and loss of sleep. Claimant did not indicate any mid back pain on this form (Ex. 1, Tran. pp. 74-77). Claimant testified that she saw Dr. Erwin for her left shoulder and that this condition was not work-related and that she only saw Dr. Erwin two times (Tran., pp. 34 & 35). Wherefore, based upon the foregoing evidence and all the evidence introduced into the record in this case it is determined that claimant did not sustain an injury on October 23, 1990, to her thoracic spine and chest which arose out of and in the course of employment with employer. More specifically (1) the incident was not witnessed, (2) claimant did not establish that she reported it to employer, the cook, or the housekeeper who are living or working in the same household, (3) although claimant contended the injury happened on October 23, 1990, there was conflicting evidence that it may have occurred and that she first reported it to employer's son and Dr. Michel on November 7, 1990, (4) although she was communicating with Dr. Michel regularly at the time of this injury he makes no mention of a work-related incident until she voluntarily quit her job on November 7, 1990, (5) on November 7, 1990, she reported lumbar pain rather than thoracic back pain, (6) Dr. Michel first records left posterior rib cage pain radiating to the lower left chest on November 8, 1990 and he did not relate it to a lifting incident for employer on October 23, 1990, (7) Dr. Michel testified that claimant's pain was connected with her kidney problems that she was having at this time, (8) Dr. Michel further suggested that this might be a recurrence of the chest tightness and thoracic tenderness that she had a year earlier on November 13, 1989, which was suspected angina pectoris and for which he was regularly prescribing Nitroglycerin pills right up to October 19, 1990, four days before the alleged incident on October 23, 1990, (9) the nurse's notes at the Sioux Valley Memorial Hospital and Dr. Parker's notes on November 24, 1990, make absolutely no mention of a lifting incident for employer on October 23, 1990, (10) Dr. Dougherty, who examined claimant five months after the alleged injury, found only mild degenerative disc disease and did not think that claimant had sustained an injury to any portion of her back at any time, (11) that the testimony of Dr. Kennedy that claimant had thoracic subluxation and cervico thoracic segmental dysfunction is controverted by the x-rays and evidence from Dr. Michel, Dr. Parker and Dr. Dougherty, (12) that the evaluation of Dr. Parsow is too remote in time and Page 12 nonprobative in substance when compared to all of the other evidence in this case, (13) even though claimant testified that she sustained the injury October 23, 1990 and called the doctor's office on that date the written notes of the doctor and one other person in his office do not record a call on October 23, 1990, but rather show that claimant called the doctor for a stress test on October 22, 1990 for pain in the left side which had persisted since last week. In conclusion, it is determined as a matter of fact that claimant did not sustain an injury to her mid back and chest on October 23, 1990 which arose out of and in the course of her employment with employer from lifting employer on that date. conclusions of law 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 she sustained an injury to her mid back and chest on October 23, 1990, which arose out of and in the course of her employment with employer from lifting him on that date. Iowa Code section 85.3(1); McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). In view of the foregoing findings all other issues in the case become moot. order THEREFORE, IT IS ORDERED: That no amounts are due from defendants to claimant. That the costs of this action are charged to claimant, except that defendants are to pay for the cost of the attendance of the court reporter at hearing and the transcript of hearing. Iowa Code sections 86.19(1) and 86.40 and rule 343 IAC 4.33. That defendants file claim activity reports as requested by this agency. Rule 343 IAC 3.1. Signed and filed this ____ day of February, 1993. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Dennis M. McElwain Attorney at Law Page 13 632-640 Badgerow Bldg. P.O. Box 1194 Sioux City, IA 51102 Ms. Judith Ann Higgs Attorney at Law P.O. Box 3086 Sioux City, IA 51102 1100 Filed February 4, 1993 Walter M. McManus, Jr. before the iowa industrial commissioner ____________________________________________________________ : LILLIAN NAIRN, : : Claimant, : : vs. : : File No. 971064 ALBIN SWANSON, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : STATE FARM INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1100 Claimant did not prove an injury arising out of and in the course of employment with employer. Page 1 before the iowa industrial commissioner ____________________________________________________________ : ROMAN LUNA, : : Claimant, : : vs. : File Nos. 971311 : 1034572 MEREDITH/BURDA, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CNA INSURANCE COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case Claimant Roman Luna seeks benefits under the Iowa Workers' Compensation Act upon his petition in arbitration against employer Meredith/Burda and its insurance carrier, CNA Insurance Companies. Mr. Luna asserts that he sustained injury as the result of exposure to toxic substances in 1989 (toluene) and 1990 (blanket wash and UV curable coating). He asserts a single injury date of September 18, 1989, when he first was taken off work at the behest of a treating physician. This cause came on for hearing in Des Moines, Iowa on September 23, 1992. Testimony was received from claimant, Pamela Luna, Vernon Crawford, Merle Short and David Hendricks. Joint exhibits 1-2, 4-17 and 23-29 were received into evidence along with defendants' exhibit A. Mr. Luna's offer of claimant's exhibits A and B was taken under advisement with respect to defense objections. Those objections are hereby overruled and the exhibits are received into evidence. issues The parties have stipulated to the existence of an employment relationship, that any permanent disability is an industrial disability to the body as a whole, to the rate of compensation ($276.16 per week) and agree that all medical costs were paid by an non-occupational group insurance plan and that defendants are entitled to certain credit for sick pay/disability benefits under Iowa Code section 85.38(2). Page 2 Issues presented for resolution include: 1. Whether claimant sustained injury arising out of and in the course of his employment on September 18, 1989; 2. Whether such injury caused either temporary or permanent disability; 3. The extent of temporary total disability or healing period; and, 4. The extent and appropriate commencement date of permanent disability. findings of fact The undersigned deputy industrial commissioner finds: Roman Luna, 43 years of age at hearing, was employed by Meredith/Burda and a successor corporation for some 17 years. Meredith/Burda is a large printing operation. Claimant took work as a packer (of printed materials) in the pressroom in 1975, remaining there until 1986. In 1986, he began an apprenticeship designed to lead to journeyman status as a pressman. In 1988 and early 1989, claimant worked in the cylinder making or plate department, work that involved operating a rotogravure press (a process in which an inked impression is produced by a rotary press). Unlike offset presses, the rotogravure process entails use of the chemical solvent toluene. This solvent is blended into the ink itself and is also used in greater quantities to clean the press at the end of each run. A wad of rags is saturated with toluene and used to clean the printing plate, a process requiring roughly fifteen to twenty minutes. On average, this is done perhaps three times a day, but on occasion up to as many as five or six. On rare occasion there is a large ink spill, which necessitates substantial use of toluene for cleanup. This might occur only two or three times per year. Toluene is a toxic substance. It is used in many industrial applications and is contained in paint. Industrial exposure is typically of a long-term or chronic nature. The substance is also notorious for being abused by "glue sniffers," a process involving massive exposure for the purpose of attaining a state of euphoria described in the record as similar to alcohol intoxication. Toluene has a distinctive odor and is capable of being sensed by humans in remarkably small concentrations. Toluene is fat-soluble and volatile, meaning that it easily evaporates from a liquid into a vapor. It is typically absorbed into the human body through respiration, whereupon it has an affinity for fat tissue, especially in and about the central nervous system. According to S. G. Jejurikar, M.D., (who testified by deposition on September 9, 1992), concentration of toluene vapors at 200-500 parts per million Page 3 (ppm) for several weeks produces symptoms of headaches, nausea, lassitude, impairment of coordination and loss of memory. Vapor concentration of 500-1500 ppm causes similar but more severe effects. Concentration of 10,000-30,000 ppm may cause mental confusion, drunkenness and unconsciousness within a few minutes. Indeed, coma and death are not unknown in cases of extremely high exposure, such as may be the case with glue sniffers. According to claimant and his co-worker, James Goforth, industrial exposure at the Meredith/Burda plant would occasionally lead to symptoms of lightheadness, dizziness or uncoordination, similar to the effects of ethanol. (In this decision, "symptoms" refer to physical effects reported as experienced by the patient, while "signs" refer to physical effects objectively perceptible to an examining physician). According to claimant's testimony, he began developing symptoms of fatigue, loss of appetite and hallucinations in approximately March 1989. His wife, Pamela Luna, confirmed certain behavioral changes in early 1989, particularly confusion. She indicated that Mr. Luna had problems driving and was "very different" during two business trips in approximately May or June of that year. Ms. Luna also testified that claimant developed phobias, anxiety, insomnia and increased confusion between July and September 1989. On May 26, 1989, claimant underwent a routine physical at the hands of his family physician, Darwin Schossow, D.O. Curiously, claimant did not report these alarming symptoms to Dr. Schossow, complaining instead of a sore throat (and an allergic reaction to medication prescribed by Dr. Robert Conner for this problem) an itchy nose, cough in the morning and occasional wheezing. Taking this history, Dr. Schossow discovered that claimant was routinely exposed to toluene, and thereupon ordered blood tests to rule out a metabolic disorder. Blood tests on May 27 revealed elevated cholesterol and glucose levels (previous blood tests on December 12, 1987 and February 23, 1988 had also indicated elevated cholesterol and glucose) and a second test on June 19 also indicated a high cholesterol level. Both 1989 blood tests also revealed elevated levels of two liver enzymes: serum glutamic oxalacetic transaminase (SGOT) and serum glutamic pyruvic transaminase (SGPT). SGOT (now more commonly known as aspartate transferase, or AST) is commonly increased in various liver disorders, and in myocardial infarction, circulatory congestion, muscle injury, central nervous system disease and other nonhepatic disorders. The test is nonspecific, but very high levels may be suggestive of acute viral or toxic hepatitis. According to Dr. Jejurikar, SGPT (now more commonly known as alanine transferase, or ALT) is more specific for liver disease than is SGOT. On July 27, 1989, Dr. Schossow recommended that Mr. Luna be removed from his present work environment for a period of 30 days, following which liver enzymes studies Page 4 should be repeated. Claimant was accordingly transferred to the pressroom (where he had previously worked for some 14 years), following which a blood test on September 5, 1989 showed normal levels of SGOT and SGPT. Repeat testing on August 3, 1990 and November 10, 1990 again demonstrated normal levels of both enzymes. At about the same time, Dr. Schossow referred claimant to a gastroenterologist, William J. Semon, D.O. On July 19, Dr. Semon reported that claimant's abnormal liver studies were associated with some mild abdominal pain localized to the left side of the abdomen which claimant described as a burning or dull discomfort, and at times stinging. The abdominal pain was intermittent in nature and was relieved with eating, although it could be precipitated by spicy foods, greasy foods or even dry foods. Claimant also reported daily nausea without vomiting and occasional heartburn. On July 25, 1989, Dr. Semon recommended an empiric trial of the drug Tagamet, upon his impression that abdominal pain was most likely due to gastroesophageal reflux with chronic air swallowing. But on August 7, Dr. Semon advised claimant to discontinue the drug so as not to "muddy the waters," as Tagamet has been shown to cause abnormal liver studies. In their brief, defendants make a great deal of this advice, arguing that Tagamet could have caused the original enzyme imbalance, and that the subsequent normal blood tests could easily have been due to the discontinuation of Tagamet, rather than removal from toluene exposure. This argument is untenable. Indeed, it is dangerously misleading, since the abnormal enzyme levels were discovered prior to when claimant even commenced taking Tagamet. On September 12, 1989, Dr. Semon wrote that claimant's improvement in liver studies following removal from "high levels of toluene" suggested that toluene "may have, in fact, been responsible for the development of these abnormal liver studies." Dr. Semon further recommended that claimant continue to abstain from alcohol and if possible, seek a work environment in which none or only low levels of toluene were present. Based on liver enzymes returning to normal following a 30 day removal from toluene, Dr. Schossow also concluded that the elevated liver enzymes were causally related to toluene exposure and felt claimant should avoid prolonged exposure to toluene at high levels. He further suggested that claimant seek employment in a location where environmental exposure to any toxins was minimal. Dr. Schossow apparently did not recommend abstention from alcohol. This may be due to the disturbing likelihood that claimant gave his family doctor a false history of alcohol abuse. On July 6, 1989, Dr. Schossow writes: He does admit to a remote history of heavy alcohol use but states he has not consumed significant amounts of alcohol in several years. Page 5 In fact, claimant's wife testified that claimant got drunk on an average of once a week for most of their 22-year married life. She and claimant both testified that claimant last became drunk at Thanksgiving, 1988, or roughly six months before his physical with Dr. Schossow. Claimant's use of alcohol is quite significant, since, as shall be seen, alcohol abuse is a likelier cause of increased SGPT and SGOT levels than is toluene exposure. In any event, Mr. Luna complains that he continued to suffer symptomatology despite the return to normal of his liver enzyme levels. In testimony, he described his problem as an inability to "keep everything together." He next sought treatment from Mark Thoman, M.D., a board certified physician both in pediatrics and clinical toxicology. Dr. Thoman testified by deposition on August 25, 1992. Although claimant first saw Dr. Thoman on September 18, 1989, he apparently filled out a lengthy questionnaire as to his medical history on September 11. Despite answering a question requesting whether he was now fully recovered as "unknown," he listed the following symptoms: lightheadness, headache, blurred vision, dry mouth, diarrhea, tingling feeling, numbness in the head, muscle soreness everywhere, dizziness, bad taste in mouth, nausea, sleepiness, difficulty in swallowing or knot in the throat, weakness, ringing in ears, abdominal pain and inability to catch his breath. Some of the history claimant gave Dr. Thoman is apparently self-contradictory. For example, he answered that he actually got only four hours sleep per night, while also answering "true" to the statement: "I wake up fresh and rested most mornings," and "false" to the statement: "night sleep is fitful and disturbed." Claimant also answered "true" to the following statement: "I've never felt better in my life than I do now." Although Mr. Luna only went to school through the eleventh grade, he has earned a GED and impressed this observer as being of at least average intelligence. Page 6 September 11, 1989 is also significant in that claimant saw the company doctor, Robert Shires, M.D., on that date. Dr. Shires testified: Q. Now, when he came to see you in September of 1989 did he report any symptoms to you other than elevated liver enzymes? A. Not that I am aware of. Q. Could he have reported other -- A. Excuse me. He did have. He was packing books, and he had a sore left wrist. Q. In September of 1989? A. September of 1989 that same visit his problem he was presenting the letter about toluene exposure, and he had the week before developed a sore wrist while he was packing some books and looked like he had a mild tenosynovitis of his wrist. That was his problem he presented on that day. Q. Anything else besides that? A. Not that I recall. Q. If he had reported other symptoms or problems to you, would it have been your practice to include them in your notes? A. I usually write as many things down as I can recall and feel are pertinent. (Shires Deposition, pp. 8-9). The oral history taken by Dr. Thoman on September 18 was of respiratory irritation, a skin rash and liver enzyme elevation. Dr. Thoman testified that claimant had a tight throat from time to time, difficulty breathing with considerable coughing and esophageal hernia, unrelated. Although claimant had already been removed from the plate department and direct contact with toluene, Dr. Thoman elected to take him off work entirely. He testified: A. Generally there is. In most cases, we take them out until we can complete our evaluation. We like to err on the side of caution. If there is a potential of chemical exposure that might be causing some problems, the first thing you do is take them away from the exposure for two reasons. First of all, if it is, you want to see if it gets better when they are away from it. Secondly, you don't want to get worse because you haven't acted on it. Q. I notice in your notes of 9-18 you Page 7 postponed the return to work, is that right, at this point? A. That's right, until we could kind of sort everything out and see how much effect he was having from his exposure. Q. Then I notice in your note of 10-31 you returned him to work at that time; is that right? A. Right. Q. What was the reason for keeping him away from the work at that time? A. To decrease the chance of his having further damage if that particular solvent was the cause of his problem; and, secondly, to see if he got better without being around the chemical in question. Q. What occurred when you kept him out? What was your conclusion you reached? A. He improved. His liver enzymes decreased. He did have some symptoms, but they were essentially improved once he had been away from it for some time. (Thoman Deposition, Pages 14-16). Dr. Thoman prepared a supplementary report to defendant CNA on October 16. His diagnosis was of elevated liver enzymes secondary to toluene exposure. Asked if claimant was still disabled, Dr. Thoman answered; "he is currently disabled from working around toluene + like solvents." As to when claimant could return to work, Dr. Thoman specified, "when a suitable environment in the plant is found." On October 25, 1989, Dr. Thoman toured the Meredith/Burda plant so as to study the various working conditions in order to make recommendations for claimant's continued employment. On October 31, he wrote that based on prior health and work history claimant most likely had a sensitization to chemicals and their noxious fumes, and could for that reason no longer work in an environment with significant concentrations of volatile petrochemicals. Further, Dr. Thoman wrote that claimant's liver enzymes had stabilized at present and that "therefore" he was released to return to work in a work environment with low to zero concentration of those petrochemicals. Dr. Thoman further recommended regular monitoring of blood chemistry. There is wide diversity of highly qualified medical opinion as to whether claimant's reported symptomatology and the objective sign of increased liver enzymes bear a causal relationship to toluene exposure. The existence or nonexistence of that causal relationship is the key issue in this litigation. Page 8 As noted, Dr. Thoman is a board certified clinical toxicologist. He is a highly qualified physician whose opinions have frequently been received in toxic exposure claims litigated before this agency. Dr. Thoman believes that a causal nexus does exist between claimant's symptoms and toluene exposure. Asked to list the symptoms or problems caused by toluene, he testified: A. Upper and lower respiratory irritation. He had some headache. He had some dermatological changes. He had some hepatic enzyme changes at the time. SGOT and SPTP were elevated. I think those were the primary ones he presented with, and then some emotional problems that certainly go along with this situation. (Thoman Deposition, p. 18). Dr. Thoman was further asked whether his suggested restrictions against exposure to volatile petrochemicals were permanent in nature: A. Generally they are. Over time you can get a pretty good idea, but over months, continuing into years, if they continue to have problems with reexposures to related chemicals, then it's like being allergic to penicillin. Once you have an allergic reaction -- and I'm not indicating this is an IGE or typical allergic reaction, but it's similar to the allergic reaction. Once you're allergic, you can't have any penicillin in the future. Once you become sensitized, quotes, you have to be careful about certain inhalants of certain types in the future. Q. Was the exposure he then had, did that then make him more sensitized to having further exposures under, say, lesser conditions, or what happened? A. What happens is if he has the same exposure to the same chemical or closely related, which is an aromatic hydrocarbon, which is like benzenes or toluene or toluol, this could trigger off a number of symptoms, the headache, cause the rash to recur, upper and lower respiratory tract irritation, wheezing and so on. Some of the related compounds, particularly hydrocarbons, and I think subsequently he had trouble with hair spray, aftershave, and so forth. Once they have a reaction, then they are often sensitive to other chemicals. So you have to kind of alert them that there may be certain areas or certain situations in which they do not want to go, because it may cause some old symptoms to come back. (Thoman Deposition, pp. 26-27). Page 9 As will be discussed later in this decision, Mr. Luna developed certain symptoms in late 1990 which he attributes to exposure to other chemicals. Dr. Thoman believes that toluene exposure increased claimant's sensitivity to other chemicals and ties those symptoms to the original exposure. The mechanism is as set forth above. Here, a few words about Dr. Thoman are in order. Under Iowa Code section 17A.14(5), this agency's experience, technical competence, and specialized knowledge may be utilized in the evaluation of evidence. As noted above, Dr. Thoman has frequently been called upon to offer expert opinion in litigation before this agency. His opinion has sometimes been accepted, but sometimes not. In particular, this deputy recognized in Peck v. Merrill Mfg. Co., Number 894350 (Arb. Dec., February 26, 1991) that Dr. Thoman's views on the subject of chemical sensitization are similar to that of devotees of the theory of "clinical ecology." This is a controversial subject in medical science. Some such practitioners believe in environmental illnesses whose victims may become allergic or sensitized to practically all chemicals and substances not found in nature. To date, the American Medical Association has not accepted these theories. In any event, it seems fair to say that non-allergic chemical sensitization is a theory somewhat outside the mainstream of current medical thought. An altogether different opinion on the causation issue was received from Dr. Jejurikar. Dr. Jejurikar is board certified in forensic toxicology and has been the state toxicologist for the state of Minnesota for roughly 22 years. Asked to distinguish between a clinical toxicologist and a forensic toxicologist, he indicated that a forensic toxicologist would be more involved in studying and dealing with the effects of a given chemical or drug on the human body, while a clinical toxicologist would be more involved in actively treating patients on a direct care basis. Dr. Jejurikar has never seen claimant. However, he has devoted substantial time to the study of Mr. Luna's medical records and the medical literature relating to toluene exposure. He testified to spending perhaps between 50 and 60 hours on the case prior to his deposition testimony. (Since Dr. Jejurikar was paid $75 per hour, he has clearly profited by his work on this case. Nonetheless, a reading of his report and deposition testimony does not leave the impression that he is a "hired gun" offering his opinion for sale to the highest bidder. Rather, his opinions are consistent with the extensive medical literature he cites). Dr. Jejurikar based his opinions on the assumption that claimant had some exposure to toluene. In his brief, Mr. Luna criticizes this opinion as based on a mistaken belief that claimant had low to zero exposure because he invariably wore a charcoal-filtered respirator. This is a misstatement of the doctor's testimony. In fact, while claimant wore his respirator more frequently than anyone else (for instance, he was the only one to consistently wear his respirator while the press was running), he definitely had toluene exposure. Defendants make much of the technologically Page 10 advanced exhaust system and claim that toluene exposure was practically nonexistent. Yet, in 1991, this same employer was fined $5,000 under the Iowa Occupational Safety and Health Act (by the Iowa Division of Labor, a sister agency) for allowing excessive exposure to toluene both in the roto press area and proof press area. Dr. Jejurikar testified: A. As far as the toluene is concerned, there should not be really any difference how much the exposure is. Q. Why is that? A. Because all the studies have shown that there is no relation between the amount of toluene exposure and any relation to elevation in the enzymes such as SGPT, SGPT. (Jejurikar Deposition, p. 13). And: A. Based on all the studies I have seen, there is no relation of elevation in enzymes in the liver, such as SGOT or SGPT, and the concentration of toluene exposure, and therefore in my mind the elevation which was caused in Mr. Luna's case is really not due to toluene but could be due to several other reasons. Q. Would you tell us what those other reasons are and where you identified them as potential causes. A. As I indicated in my report in some references, people who are obese, people who are diabetic, people who use heavy amounts of alcohol also have a rise or elevation in their liver enzymes. Therefore not knowing exactly where it is coming from, whether it is coming from alcohol or whether it's coming from obesity, you really don't know -- it could be due to one of the things I mentioned. It could be due to all of the three, such as diabetes, obesity, or heavy use of alcohol can cause elevation in liver enzymes. Q. Is Mr. Luna overweight? A. That is correct. Q. Where did you get that information? A. From his medical records. Time and time again he was asked to lose a few pounds since he was diagnosed as obese. Q. And is he diabetic? Page 11 A. He had an elevation in glucose in quite a few tests plus he also had a history of family diabetes. Q. Does he have a history of past alcohol consumption? A. That is correct. (Jejurikar Deposition, pp. 14-15). Dr. Jejurikar further testified that if the elevated enzymes had been caused by toluene, he would also anticipate seeing elevation in certain other enzymes, such as alkaline phosphatase. Dr. Jejurikar found no impairment of Mr. Luna which he could scientifically relate to toluene exposure. He further testified that exposure to toluene does not caused increased sensitivity either to toluene itself or other chemicals. The record contains numerous items of medical literature. A review of this literature indicates there is no significant difference in the prevalence of abnormal SGOT and SGPT levels in solvent-exposed workers compared to a Page 12 control group, that toluene exposure has not been shown to lead to liver damage, that a fatty liver associated with obesity, diabetes or alcoholism can complicate liver function tests and that heavy drinking is a more profound cause of abnormal liver function than is exposure to solvents such as toluene. Opinions were also received from Paul From, M.D. Dr. From is a board certified internist who testified by deposition on September 2, 1992. Like Dr. Jejurikar, Dr. From has not actually examined claimant. His opinions are based on medical records and study of the literature. While Dr. From is not board certified in either clinical or forensic toxicology, that science is a part of his practice as an internist, and he has personally treated patients exposed to toluene. Dr. From did not see a causal nexus between claimant's liver enzymes abnormalities and toluene exposure. Similarly, he believed that claimant had sustained no permanent impairment attributable to such exposure, pointing out that any injury to the liver would have been of a transient nature. And, he did not believe that exposure to toluene would increase claimant's sensitivity to subsequent exposure. After Dr. Thoman released claimant to return to work on October 31, 1989, he was placed permanently in the press room as a packer. In approximately November 1990, he developed additional symptomatology which he ascribes to exposure to blanket wash (a mixture of aliphatic hydrocarbons alone or with butyl cellosolve) and ultraviolet curable coating (which consists of monomeric multifunctional acrylates and acrylate esters). High concentrations of blanket wash may produce irritation to the skin, eyes and respiratory tract and central nervous system affects such as headaches, dizziness, ataxia, anesthetic stupor and unconsciousness; or, if butyl cellosolve is contained, lack of coordination, nausea, and general weakness. UV ultraviolet curable coating could cause irritation of the eyes, skin and respiratory tract. Claimant saw Dr. Robert Conner on November 9 and November 16, 1990. Complaints were made of anxiety, stress and chronic headaches. Dr. Conner's assessment was of uncontrolled hypertension (high blood pressure) and probable chemical intoxication. Claimant thereupon returned to Dr. Thoman on November 20, 1990. He prepared a letter on that date stating that around October 1990, he started noticing changes including uneasiness, uncertainty and chills along with memory loss and inability to concentrate. He further complained of an increase of hair growth all over the body, especially on the ears, along with insomnia, impotence, headaches, severe mood swings, depression, hypertension and fear of losing control. He noted that Dr. Conner had taken him off work for two months with instructions to avoid chemical exposure. Dr. Thoman did not return claimant to work until January 25, Page 13 1991. His diagnosis was of anxiety and physiological manifestations secondary to previous on the job chemical exposure. Asked in his deposition how the secondary complaints related to the original toluene exposure, Dr. Thoman testified: A. The particular chemical that he was originally exposed to was an aromatic hydrocarbon. This is not the same category, but close enough that if an adequate dosage could be encountered by an individual, it could trigger off primarily a toxic exposure, causing the signs and symptoms he complained of, but it could also trigger off a certain stress reaction as well. I think subsequent to that visit we suggested counseling, which we often do. Q. Did he have both the medical reaction as well as a stress reaction? A. That's right. (Thoman Deposition, pp. 30-31). Dr. Thoman's reasons for taking claimant off work related both to the respiratory symptoms and to get sufficient counseling to obtain specific recommendations. Mr. Luna was referred to a licensed psychologist, Herbert Notch, PH.D., for this purpose. As it happens, claimant had seen Robert T. Brown, M.D., in October 1990 with sinus and earache complaints. Dr. Brown conducted extensive allergy skin testing which found a significant response to house dust only. In March 1991, Dr. Brown recommended weekly allergy desensitization injections. His initial impression had been of right maxillary sinusitis, possible underlying allergy and bilateral serous otitis media (inflammation of the ears). Although Dr. Brown did not diagnose asthma, Dr. Thoman testified that claimant had some asthmatic bronchial spasm which he did not feel was precipitated by pollens or house dust. However, Dr. Thoman agreed that allergy could have played a part in those reactions. Once again, Dr. Jejurikar proved of a different mind. He specified that exposure to blanket wash and UV coating did not cause panic attacks, anxiety, sinus problems or asthma. Nor would either increase susceptibility or reactivity to future exposures. Dr. Jejurikar agreed that claimant's panic disorder could have resulted from emotional stress related to his worrying about chemical exposure to blanket wash or UV coating, but that the substances themselves would not actually cause anxiety. He did not testify as to why he believed these substances did not cause respiratory problems, nor did he address that issue in his otherwise detailed and persuasive report dated August 24, 1992. Page 14 Dr. From testified that he did not believe claimant suffered chemically induced asthma, noting that his symptoms could readily be explained by his allergy to dust and noting that claimant had many ear, nose and throat problems by history. He also noted that there are many causes for lightheadness, blurred vision and headaches, but expressed no opinion as to whether a causal nexus existed between such symptoms and exposure to blanket wash or UV coating. As noted above, Dr. Thoman referred claimant in 1990 to Dr. Notch, a clinical psychologist. Dr. Notch testified by deposition on August 14, 1992. His three part diagnosis was of panic disorder with agoraphobia, probable mild to moderate agoraphobia and possible post traumatic stress disorder. Dr. Notch agreed that claimant had a number of preexisting psychological problems due primarily to family problems, but that his "work situation" caused a temporary aggravation of those preexisting problems, a temporary aggravation which he would expect to resolve. Dr. Notch could not testify to permanent psychological changes based upon the acute episode in late 1990 and early 1991. Dr. Notch continued treating claimant until March 1992. He concurred with Dr. Thoman that claimant was appropriately off work for psychological problems from November 21, 1990 through January 21, 1991. Dr. Notch pointed to claimant's state of anxiety as due to his association of current problems with what he considered a deleterious previous toxic exposure and also a phobic reaction wearing a face mask while at work. It is worth noting that claimant's family was more or less simultaneously going through family therapy with DeVon R. Stokes, Ph.D, another licensed psychologist. Dr. Stokes' letter of December 5, 1990, indicates severe and longstanding family problems, including alcohol abuse, physical violence and a lack of respect shown claimant's wife by Mr. Luna. conclusions of law Although claimant alleged but a single injury, that of September 18, 1989, this decision treats the allegations of exposure in 1989 and 1990 separately. This decision holds that claimant did not prove injury arising out of and in the course of employment in 1989, but that he did meet his burden of proof on that issue with respect to the 1990 claimed exposure. 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). Page 15 The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). A personal injury contemplated by the workers' compensation law means an injury, the impairment of health or a disease resulting from an injury which comes about, not through the natural building up and tearing down of the human body, but because of trauma. The injury must be something which acts extraneously to the natural processes of nature and thereby impairs the health, interrupts or otherwise destroys or damages a part or all of the body. Although many injuries have a traumatic onset, there is no requirement for a special incident or an unusual occurrence. Injuries which result from cumulative trauma are coailed to mention these alarming symptoms to Dr. Schossow. It seems stranger yet that although claimant allegedly developed phobias, anxieties, insomnia and increased confusion between July and September, he failed to mention any of these symptoms to Dr. Shires on September 11 and, as noted, that he gave an ambivalent and inconsistent history to Dr. Thoman. As for the rise in SGOT and SGPT enzymes, the opinion of Dr. M. Jejurikar as supported by the medical literature is found more persuasive than the opinion of Dr. Thoman. Alcohol abuse has been shown to be a much more probable cause. Claimant had a long history of alcohol abuse and, although he testified to having discontinued alcohol at Thanksgiving 1988, he also gave a false history to Dr. Schossow on this subject ("he has not consumed significant amounts of alcohol in several years"). The medical literature does not support an association between toluene exposure and elevation of those two enzymes. By the time Dr. Thoman saw claimant and took him off work, he had long since been removed from toluene exposure and his enzymes had already returned to normal. Why Dr. Thoman took claimant off work on the alleged injury date of September 18 is extremely unclear, since every requirement for claimant's eventual return to work was already in place (enzymes returned to normal and claimant assigned a job away from toluene exposure). Although claimant also complains of numerous other symptoms, his reporting of those symptoms to the relevant treating physicians at the time in question was either inconsistent or nonexistent and, we must not forget that Mr. Luna has suffered chronic psychological problems related by Dr. Notch to his on-going family problems and childhood experiences. Claimant's reported symptoms and one sign (elevated liver enzymes) are not proven on this record to be caused by toluene exposure. While it is a reasonable prophylactic measure to move claimant away from toluene exposure for the future, it has similarly not been shown that toluene exposure causes increased sensitivity and danger to future toluene exposure. Dr. Jejurikar's opinion on this "clinical ecology" theory is much more in keeping with the mainstream of current medical thought. Interestingly, even if it were determined that claimant's symptomatology in 1989 was caused by Toluene exposure, Mr. Luna would not be entitled to recover for temporary disability or permanent disability (medical expenses are not at issue). No healing period or temporary total disability could be found in this record, because it has not been shown that claimant's loss of work was medically necessary, since his condition was the same when Page 17 he was taken off work by Dr. Thoman as when he was returned to work by Dr. Thoman. Permanency benefits would be appropriate if toluene exposure caused increased sensitivity to toluene, thus leading to a necessary change in job responsibilities (and less actual income). The record, however, does not support that theory. The record is much scantier with respect to the 1990 exposure to blanket wash and UV coating. Claimant had some respiratory symptoms and an onset of acute psychological problems against the backdrop of his chronic condition. Dr. Jejurikar baldly states there is no causal connection, but in this case Dr. Thoman's opinion seems the better reasoned, since it takes into account respiratory symptoms that claimant clearly experienced. Dr. Thoman and Dr. Notch relate psychological problems to the exposure, although Dr. Notch (although he is a psychologist rather than a physician, his opinion is detailed and expert) ties the onset of acute symptomatology also to a phobia about Mr. Luna's face mask. By reason of the psychological problems and respiratory problems together, claimant has established entitlement to temporary total disability from November 21, 1990 through January 21, 1991. The division will be ordered to prepare a second litigated file with an injury date of November 21, 1990. In this case, it does not appear that defendants will be prejudiced by "creating" a second injury date. Nonetheless, claimant's procedure in pleading but a single injury date in 1989 is a dangerous practice and one not to be approved. The 1990 problems could be compensable under a 1989 injury date only if those symptoms were found to be sequelae of the original Toluene exposure. This is a fragile thread with which to attach potential liability. However, claimant is not entitled to permanent industrial disability with respect to the 1990 exposure. He is back to work without loss of earning capacity. Dr. Jejurikar's opinion that this exposure has not increased his sensitivity is accepted in preference to the opinion of Dr. Thoman. The psychological problems constitute a single episode only, and in the nature of a temporary aggravation of a preexisting condition. Industrial disability has not been shown. In the absence of contrary evidence, claimant's gross weekly earnings, martial status and exemptions will be assumed to be identical to the parties' stipulation relative the 1989 claim. The rate book published by this office shows that a married individual with a gross weekly wage of $410 and entitlement to six exemptions has a rate of $276.67 per week. Temporary total disability of 8.857 weeks at the compensation rate of $276.67 equals $2450.46. Exhibit 16 shows that defendants are entitled to credit under Iowa Code section 85.38(2) in the sum of $2,099.59. Therefore, claimant takes $350.87. order Page 18 THEREFORE IT IS ORDERED: In case no. 971311: claimant takes nothing. In case no. 1034572: The division shall create a new litigated file showing an injury date of November 21, 1990. Defendants shall file a first report of injury within thirty (30) days of the filing of this decision. Defendants shall pay claimant two thousand four hundred fifty and 46/100 dollars ($2,450.46) in temporary total disability benefits, commencing November 21, 1990. All accrued benefits shall be paid in a lump sum with statutory interest. Defendants shall have credit in the sum of two thousand ninety-nine and 59/100 dollars ($2,099.59). Costs of this action are assessed to defendants. Signed and filed this ____ day of February, 1993. ______________________________ DAVID R. RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Arthur C Hedberg Jr Attorney at Law 840 5th Avenue Des Moines Iowa 50309 Mr Charles E Cutler Attorney at Law 729 Insurance Exchange Building Des Moines Iowa 50309 1108.30; 2205; 2910; 3700 Filed Feburary 25, 1993 DAVID R. RASEY before the iowa industrial commissioner ____________________________________________________________ : ROMAN LUNA, : : Claimant, : : vs. : File Nos. 971311 : 1034572 MEREDITH/BURDA, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CNA INSURANCE COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1108.30; 2205; 2901 Claimant alleged exposure to different toxic substances in 1989 and 1990, but alleged only a single 1989 injury date. No 1989 injury was found, but claimant proved a temporary disability from toxic exposure in 1990. The division was ordered to prepare a second litigated file for that injury date, and defendant was ordered to file a first report. No permanency found. Claimant was entitled to temporary total disability. 3700 Under 17A.14(5), the agency's experience, technical competence and specialized knowledge were utilized in the evaluation of Dr. Thoman's testimony. It was recognized that Dr. Thoman has been seen as holding views similar to devotees of "clinical ecology," a controversial theory not accepted by the mainstream of current medical thought.