before the iowa industrial commissioner _________________________________________________________________ : BEVERLY R. RANSOM, : : Claimant, : : vs. : : File No. 974073 HARDEE'S, DENISON, IOWA, : : A P P E A L Employer, : : D E C I S I O N and : : AMERICAN FAMILY INSURANCE : COMPANY, : : 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 July 8, 1992 is affirmed and is adopted as the final agency action in this case. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of December, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Harry H. Smith Attorney at Law P.O. Box 1194 Sioux City, Iowa 51102 Mr. Jeffrey A. Sar Attorney at Law P.O. Box 717 Sioux City, Iowa 51102 9998 Filed December 21, 1992 BYRON K. ORTON DRR before the iowa industrial commissioner ____________________________________________________________ _____ : BEVERLY R. RANSOM, : : Claimant, : : vs. : : File No. 974073 HARDEE'S, DENISON, IOWA, : : A P P E A L Employer, : : D E C I S I O N and : : AMERICAN FAMILY INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ _____ 9998 Summary affirmance of deputy's decision filed July 8, 1992. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : BEVERLY R. RANSOM, : : Claimant, : : vs. : File No. 974073 : HARDEE'S, DENISON, IOWA, : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : AMERICAN FAMILY INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ STATEMENT OF THE CASE Claimant Beverly Ransom seeks benefits under the Iowa Workers' Compensation Act upon a petition in arbitration against employer Hardee's, Denison, Iowa, and its insurance carrier, American Family Insurance Company. She alleges a cumulative trauma injury to the hand, arm and shoulder of April 3, 1989. This cause came on for hearing in Sioux City, Iowa, on April 29, 1992. The record consists of joint exhibits 1 through 31 and the testimony of claimant, Steve Ransom, Sharon Lapel and Kimberly Kohlm. ISSUES The parties have stipulated to the existence of an employment relationship on or about April 3, 1989; to healing period or temporary total disability entitlement (if liability is established) from May 31 through July 12, 1989; to the rate of compensation; and, that certain benefits were voluntarily paid prior to hearing. Issues presented for resolution include: 1. Whether claimant sustained an injury arising out of and in the course of her employment on April 3, 1989; 2. The nature and extent of permanent disability, if any; 3. The extent of entitlement to medical benefits; 4. Whether the claim is barred as untimely under Iowa Code section 85.26; and, Page 2 5. Whether the claim is barred for failure to give timely notice under Iowa Code section 85.23. Defendants stipulated that the providers of medical services would testify, in the absence of contrary evidence, that fees were reasonable and provided for reasonable and necessary treatment, but dispute whether those expenses are causally connected to the work injury or whether they were authorized. The authorization defense was ruled invalid at hearing because defendants denied that claimant sustained an injury arising out of and in the course of employment, both in their answer and at the time of prehearing conference. By doing so, they forfeit the right to control the care. Barnhart v. MAQ, Inc., I Iowa Industrial Commissioner Report 16 (1981). FINDINGS OF FACT The undersigned deputy industrial commissioner finds: Beverly Ransom, 39 year of age at hearing, is a right-hand dominant female who left school in the eleventh grade. Her only further education consists of on-the-job instruction as a nurse's aide. Beginning at age 18, claimant worked for less than a year bagging hamburger in a packing house, then for about one year as a waitress, and followed this with approximately one year's employment as a nurse's aide in a residential facility. Claimant was then out of the labor market for approximately eight years before accepting work with defendant Hardee's in December 1983. Defendant is a fast food restaurant, part of a well-known national chain. Prior to accepting work with Hardee's, claimant says she experienced no health problems, particularly to the right upper extremity. She started as a cashier, but has also made salads, cooked, made biscuits, acted as a crew leader, and became a supervisor in approximately 1987. She was promoted to assistant manager in August 1990 and was so employed on the date of hearing. Claimant's recollection as to her history of right upper extremity problems has been shown to be unreliable. She has given multiple and conflicting histories to different doctors and in her testimony by deposition (on March 5, 1992) and at hearing. She agrees, as well she should, that contemporaneous medical records are more reliable. Claimant was treated by a chiropractor, Ronald Dreyer, D.C., beginning at least in 1978. An undated health history, which is assumed to have been taken at the first visit, notes pain between the shoulder blades, neck and shoulders for eight years with nightly throbbing pain between the shoulders. Although Dr. Dreyer's notes are largely illegible to this eye, treatment specifically to the Page 3 right shoulder was begun as early as September 5, 1978. Dr. Dreyer's notes of March 18, 1988, to the extent legible, show complaints of right shoulder and arm pain following the unloading of a truck, with loss of sensation "RUT" (possibly right upper thorax?) to the right shoulder. Another notation, unreadable here, is referred to as approximately six months. On March 19, chart notes reflect improvement, but complaints of right arm numbness appear on March 29. Additional illegible chart notes appear on April 27, April 29, May 2, May 6, May 25 and August 26, 1988. Dr. Dreyer billed for services in March, April and May of that year, and diagnosed a strain of the right upper trapezius with attending cervicothoracic segmental dysfunction. In his report of April 22, 1988, Dr. Dreyer reported that he believed the injury would not result in permanent impairment. His billings were apparently paid as a workers' compensation injury by defendant Hardee's, which filed a first report of injury reflecting a shoulder injury of March 18. Claimant did not miss any time from work. According to claimant, her right shoulder pain cleared up after the 1988 incident. However, it is clear that claimant did not soon find relief from her symptoms. Chart notes of Dr. John Sinnott dated July 13, 1988, show complaints of right shoulder pain with the onset "two months ago" when claimant was lifting and unloading a truck for Hardee's (no doubt the March 18 incident). The notes continue: Since then her right arm tingles and is numbish. She has seen a physician, had some ultrasound without success. Her pain is keeping her up at night, difficulty sleeping, cannot lie down. Has been sleeping in a chair. She had tenderness with some soreness in the palm of her right hand. Dr. Sinnott, apparently a doctor of osteopathic, further noted a rib lesion and treated claimant with "OMT" (probably, osteopathic manipulative therapy). On July 19, Dr. Sinnott reported that the right arm and neck had improved dramatically after treatment, but that symptoms recurred on July 18. Dr. Sinnott saw claimant again on March 13, 1989, with complaints of numbness and tingling in the right hand. Claimant reported that she pounded a lot of frozen foods at Christmas time (claimant professed not to know where this history came from) which seemed to aggravate her hand. She also complained of upper rib discomfort and upper shoulder and neck discomfort. Claimant was treated with manipulation and seen again on March 28 with pain about the right hand and arm. At this point, Dr. Sinnott made a referral to Thorir S. Ragnarsson, M.D. Dr. Ragnarsson's chart notes of April 10, 1989, show that claimant presented with a nine-month history of right arm pain and numbness which she related to an injury at work. True to pattern, Dr. Ragnarsson found claimant "not very specific" about her Page 4 injury, although reporting that she believed she had injured her hand using a cutter at work in June of 1988, noting also that claimant had been treated with chiropractic treatments. This is an apparent reference to Dr. Dreyer's treatment following the March 1988 incident. However, the reference to a "cutter" seems to relate to the "pounding ice" incident at Christmas time, 1988. Dr. Ragnarsson thought claimant might have a rotator cuff tendonitis, with possibly a cervical radiculopathy superimposed. When he saw claimant again in 1990, he suggested EMG testing to sort this out, but it proved normal (apparently, an earlier EMG on May 3, 1989, was ambiguous, although no direct interpretation appears of record). Right hand and arm numbness continued to be troublesome and were treated surgically by Quentin J. Durward, M.D., on May 31, 1989: a right carpal tunnel release. On July 12, 1989, Dr. Durward reported that claimant had developed a "terrible pain" in the right arm when cleaning her oven two days before. He thereupon rated claimant as having sustained a ten percent impairment of the right upper extremity, apparently referring to the carpal tunnel release. Claimant underwent physical therapy in January 1990. Chart notes of January 16 reflect complaints that the shoulder "catches" and reported the existence of palpable crepitus. On January 23, claimant reported the "clunking" in her shoulder occurred less often. These notes are more consistent with a musculoskeletal problem than a neurological problem. On February 19, 1990, claimant was seen by Kevin Liudahl, M.D. Dr. Liudahl was given a history of shoulder pain developing four months post-surgery. His impression was of right shoulder subacromial bursitis with impingement, some symptoms questionable as to radicular type pain. As of March 12, after claimant was treated with injection, the problem had nearly resolved. Claimant was seen for evaluation by Anil K. Agarwal, M.D., on August 30, 1990. Dr. Agarwal also understood that claimant injured her right upper extremity while using a cutter at work in June 1988, although no such incident at that time appears of record. He diagnosed tendonitis of the right shoulder, minimal cervical strain and post-carpal tunnel syndrome. He believed all care was directly related to the workers' compensation claim, apparently referring to the incident in June 1988, whatever that might be. He rated claimant as having sustained a two and one-half permanent "disability and loss of physical function" of the right hand and five percent permanent "disability and loss of physical function" to the right upper extremity relating to shoulder tendonitis. Claimant was also seen for evaluation by Pat Luse, D.C., a chiropractor, on February 3, 1992. Claimant gave Dr. Luse a history of being involved in a work-related Page 5 accident cutting shrimp on April 3, 1989, resulting in pain in the wrist, arm and shoulder. This incident has a curious and inconsistent history as shown by the evidence. Claimant requested that a first report of injury be filled out by defendant on April 3, 1989. She made no mention of any specific, traumatic incident cutting frozen shrimp product (surimi), but advised Sharon Lapel that the injury was cumulative in nature. Lapel credibly testified that claimant made no mention of shoulder problems, complaining of a repetitive injury to the right wrist only (and, contrary to claimant's testimony, said that no earlier report had been made). On April 10, it will be recalled that claimant told Dr. Ragnarsson that she had been symptomatic for nine months, having injured her hand using a cutter at work in June 1988. In a statement to an anonymous representative of defendant American Family Insurance Company taken June 19, 1989, claimant stated that, "Not one certain thing that triggered it." No mention of a cutting incident was made. In her deposition testimony on March 5, 1992, claimant clearly specified that the April 3, 1989, injury occurred while she was cutting through frozen surimi with a knife. But, in her trial testimony on April 29, she claimed an onset of symptoms in early 1989, approximately one month before the first report of injury. She further indicated that she had made excessive use of the right arm in late 1988 while unloading trucks, washing ceilings and walls, mopping, making salads and lifting heavy cookers. In her deposition testimony, claimant denied hurting anything but the hand (although also, and falsely, claiming that she had never had shoulder problems prior to April 3, 1989). It appears, based on the medical records, that the cutting incident actually occurred around Christmas 1988 as reported by Dr. Sinnott. Dr. Luse indicated in his report that he had read the other histories, but did not discuss the sequence of events and reported complaints. He found that claimant had impairment to the right wrist (ten percent of the upper extremity) and to the right shoulder (12 percent of the upper extremity) and concluded that claimant's condition was causally related to the "type of accident that this patient had described" and repetitive motion work. This reference is apparently to the surimi cutting incident as the "accident described." CONCLUSIONS OF LAW The claimant has the burden of proving by a preponderance of the evidence that the alleged injury actually occurred and that it arose out of and in the course of employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of" refer to the cause or source of the injury. The words "in the course Page 6 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). She also 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 treatments and continued to complain to Dr. Sinnott some four months later, when she still had a tingling and numb right arm and pain such as to keep her up at night sleeping in a chair. The fact that medical bills were accrued (and paid) shows that this injury was a compensable event. But, defendants assert the defense of limitations under Iowa Code section 85.26(1). The statute provides: An original proceeding for benefits under this chapter or chapter 85A, 85B, or 86, shall not be maintained in any contested case unless the proceeding is commenced within two years from the date of the occurrence of the injury for which benefits are claimed or, if weekly compensation benefits are paid under section 86.13, within three years from the date of the last payment of weekly compensation benefits. No weekly benefits have been paid with respect to this injury. More than two years elapsed between the date of injury (March 18, 1988) and the date claimant filed her petition: February 26, 1991. Claimant cannot assert that she only recently "discovered" this injury within the meaning of the "discovery rule." The two-year statute of limitations starts running when claimant should know that her injury is both serious and work connected. Orr v. Lewis Cent. School Dist., 298 N.W.2d 256 (Iowa 1980). A reasonable person standard is to be applied, taking into account the intelligence and education of the worker. Robinson v. Dep't of Transp., 296 N.W.2d 809 (Iowa 1980). As of July, claimant had suffered four months of pain and numbness and had required substantial medical attention from two separate practitioners. By that time, she should have known that her injury was both serious and work connected. Thus, the affirmative defense of limitations bars relief with respect to the shoulder injury. A different result obtains with respect to claimant's wrist injury. Although there may have been an exacerbation during the surimi cutting incident at Christmas time 1988, it seems clear that the development of these symptoms was gradual in nature. In this case, the injury date occurred when, due to pain or physical inability, claimant was no longer able to work. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). This occurred when claimant underwent her carpal tunnel release on May 31, 1989. The parties have stipulated to the extent of healing period and agree that if claimant sustained an injury arising out of and in the course of employment, it caused both temporary and permanent disability. Drs. Luse and Durward (the Page 8 treating surgeon) agree that the extent of impairment is equivalent to ten percent of the upper extremity. Under Iowa Code section 85.34(2)(m), the arm is compensated during 250 weeks. Accordingly, claimant shall be awarded 25 weeks of permanent partial disability benefits. Claimant also seeks an award of medical benefits with respect to her treatment at the hands of Steven G. Oatman, D.C. The record shows that the treatment is chiropractic manipulation and relates to the shoulder. As noted, the shoulder injury is not compensable in this proceeding due to the bar of limitations. The parties stipulated to a compensation rate of $129.40. Based upon claimant's gross weekly earnings ($179.00), marital status (married) and five exemptions, the proper rate is actually $129.43. ORDER THEREFORE, IT IS ORDERED: Defendants shall pay unto claimant six point one four three (6.143) weeks of healing period benefits at the rate of one hundred twenty-nine and 43/100 dollars ($129.43) per week commencing May 31, 1989. Defendants shall pay unto claimant twenty-five (25) weeks of permanent partial disability benefits at the rate of one hundred twenty-nine and 43/100 dollars ($129.43) per week commencing July 13, 1989. Defendants shall have credit for all benefits voluntarily paid. As all benefits have accrued, they shall be paid in a lump sum together with statutory interest pursuant to Iowa Code section 85.30. Costs are assessed to defendants pursuant to rule 343 IAC 4.33. Defendants shall file a claim activity report upon compliance with this decision pursuant to rule 343 IAC 3.1. Signed and filed this ______ day of ____________, 1992. ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Page 9 Copies To: Mr. Harry H. Smith Attorney at Law P.O. Box 1194 Sioux City, Iowa 51102 Mr. Jeffrey A. Sar Attorney at Law 750 Pierce Street P.O. Box 717 Sioux City, Iowa 51102 1803; 2402 Filed July 8, 1992 DAVID RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : BEVERLY R. RANSOM, : : Claimant, : : vs. : File No. 974073 : HARDEE'S, DENISON, IOWA, : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : AMERICAN FAMILY INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 1803; 2402 Claimant alleged multiple injuries on same date: shoulder and carpal tunnel syndrome. However, the shoulder injury had occurred over one year earlier and was barred by limitations. The scheduled injury was compensated. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ LAURA SOUDER, Claimant, vs. File No. 974074 NATIONAL COMPUTER SYSTEMS, INC., A P P E A L Employer, D E C I S I O N and THE ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Insurance Carrier, Defendants. ____________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed April 15, 1993 is affirmed and is adopted as the final agency action in this case with the following additional analysis: The deputy's extension of the discovery deadline did not prejudice defendants. The extension was very limited in its terms, and applied equally to both parties. The thrust of defendants' objection is that the extension allowed claimant to utilize a new attorney more effectively. The extension was properly granted. Defendants shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of January, 1994. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Page 2 Copies To: Mr. Paul J. McAndrew, Jr. Attorney at Law 122 South Linn Street Iowa City, Iowa 52240 Mr. Douglas Tindal Attorney at Law 225 West Main Washington, Iowa 52353 Mr. Greg A. Egbers Attorney at Law 600 Union Arcade Building 111 East Third Street Davenport, Iowa 52801 5-1803 Filed January 25, 1994 BYRON K. ORTON BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ LAURA SOUDER, Claimant, vs. File No. 974074 NATIONAL COMPUTER SYSTEMS, INC., A P P E A L Employer, D E C I S I O N and THE ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Insurance Carrier, Defendants. ____________________________________________________________ 5-1803 - Non-precedential, extent of disability case. Page 1 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : LAURA SOUDER, : : Claimant, : : vs. : : File No. 974074 NATIONAL COMPUTER SYSTEMS, INC.,: : A R B I T R A T I O N Employer, : : D E C I S I O N and : : THE ST. PAUL FIRE AND MARINE : INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Laura Souder, claimant, against National Computer Systems, employer, hereinafter referred to as NCS, and St. Paul Fire and Marine Insurance Company, insurance carrier, defendants, for workers' compensation benefits as a result of an alleged injury on May 7, 1990. On March 9, 1993, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a hearing report of con tested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. The oral testimony and written exhibits received during the hearing are set forth in the hearing transcript. According to the hearing report, the parties have stip ulated to the following matters: 1. An employee-employer relationship existed between claimant and NCS at the time of the alleged injury. 2. Claimant is seeking temporary total or healing period benefits from May 5, 1990 thru May 13, 1990 and from May 15, 1990 through September 16, 1990 and defendants agree that she was not working through July 5, 1990. 3. If the injury is found to have caused permanent disability, the type of disability is an industrial disabil ity to the body as a whole. 4. At the time of injury claimant's gross rate of weekly compensation was $216.00 and she was single. 5. It was stipulated that the medical bills submitted Page 2 by claimant at the hearing are fair and reasonable and causally connected to the medical condition upon which the claim herein is based but that the issue of their causal connection to any work injury remains an issue to be decided herein. ISSUES The parties submitted the following issues for determi nation in this proceeding: I. Whether claimant received an injury arising out of and in the course of employment; II. The extent of claimant's entitlement to disability benefits, including rate of weekly compensation; and, III. The extent of claimant's entitlement to medical benefits. FINDINGS OF FACT Having heard the testimony and considered all of the evidence, the deputy industrial commissioner finds as follows: A credibility finding is necessary to this decision as defendants placed claimant's credibility at issue during cross-examination as to the nature and extent of the injury and disability. From her demeanor while testifying, claimant is found credible. Claimant worked for NCS from April 23, 1990 until May 3, 1990 as a data entry operator, at which time she left work to receive treatment for hand complaints. Claimant returned briefly on May 14, 1990 but again left work due to pain. After May 14, 1990, she never returned to employment with NCS. On August 16, 1990, claimant was terminated by NCS. Claimant's duties at NCS consisted of entering data into a computer using a keyboard. This involved continuous and repetitive use of both hands. On or about May 14, 1990, claimant injured both of her hands and arms over substantially the same time period dur ing her employment with NCS. The injury consisted of carpal tunnel syndrome and ulnar nerve compressions which affected the right extremity more than the left. This finding is based upon the diagnoses of the two primary treating physi cians, Richard Neiman, M.D., and Marc Hines, M.D., both of whom are board certified neurologists. Also, both of these neurologists causally connect these conditions to claimant's work at NCS. Defendants denied liability for the condition due to the short span of time she worked for NCS and the fact that she performed keyboard computer data entry work for a couple of months prior to and after NCS employment. Also, there was a claim she extensively used her hands in volunteer work for a religious institution called "Shilo." However, claimant credibly testified that she had no symptoms prior Page 3 to NCS employment or after any other activity before her first symptoms in May 1990. She credibly denied extensive use of her hands at Shilo which was supported by credible testimony of Shilo management at hearing. The medical records support the claim of lack of prior symptoms. The view that prior or subsequent activity was a significant causative factor was rejected by the two treating physicians. The injury date for this cumulative trauma injury was chosen because it was the date of the fist manifestation of the disability or the date claimant was finally compelled by her symptoms to leave NCS employment permanently. Claimant was initially treated by Dr. Neiman but this care was changed to Dr. Hines after Neiman expressed dissat isfaction with defendant insurance carrier's denial of responsibility for the injury. Hines later supported the prior treatment and views of Dr. Neiman. Dr. Hines released claimant from his care and back to work on September 17, 1990. Consequently, claimant is found to have reached maxi mum healing on September 16, 1990. She was not working until after September 16, 1990. The work injury of May 14, 1990 is found to be a cause of an 18 percent permanent impairment to the body as a whole. Dr. Hines' views as to the extent of permanent impairment was used to arrive at this finding. He was the only treating physician to rate claimant's impairment. Using the AMA guidelines, Dr. Hines opined that claimant suffered a 15.5 percent permanent partial impairment to each extremity from the injury. He stated that this could be converted to a single body as a whole rating under the guidelines but he did not do so. Using agency expertise and the revised third edition of the AMA guidelines readily available to the undersigned and specifically Table 3 on page 6, a 15.5 percent extremity impairment converts to a 9.5 percent rating to the body as a whole. Using the com bined value chart on page 246 of the revised third edition to the guidelines, and interpolating to account for the fractions, two 9.5 percent ratings converted to a total of 18 percent combined body as a whole rating. It is also found that claimant is not permanently and totally disabled as she now is working full time as an advertising salesman for a magazine and according to her superiors, this employment is suitable and satisfactory for her. For purposes of rate determination, it is found that at the time of injury claimant was entitled to three exemptions for tax purposes as she was eligible to take all of her children as exemptions pursuant to agreement with her ex-husband upon default in child support. CONCLUSIONS OF LAW I. Claimant has the burden of proving by a prepon derance of the evidence that claimant received an injury arising out of and in the course of employment. The words Page 4 "out of" refer to the cause or source of the injury. The words "in the course of" refer to the time and place and circumstances of the injury. See generally, Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). An employer takes an employee subject to any active or dormant health impairments. A work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. U.S. Gypsum, 252 Iowa 613, 620, 106 N.W.2d 591 (1961), and cases cited therein. It is not necessary that claimant prove his disability results from a sudden unexpected traumatic event. It is sufficient to show that the disability developed gradually or progressively from work activity over a period of time. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). The McKeever Court also held that the date of injury in gradual injury cases is the time when pain prevents the employee from continuing to work. In McKeever the injury date coincided with the time claimant was finally compelled to give up his job. This date was then used by the Court to determine rate and the timeliness of claimant's claim under Iowa Code section 85.26 and notice under Iowa Code section 85.23. In the case sub judice, like in McKeever, the date when claimant was finally compelled to leave work was chosen as the injury date. II. It was found that this was a loss to both extrem ities at the same time. It was also found that claimant was less than totally disabled from the injury. Section 85.34(2)(s) of the Iowa Code states as follows: 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. The Iowa Supreme Court concluded in reference to a 1974 amendment to the above subsection that the plain and unam biguous language in the amendment of paragraph (s) which set out a definite schedule of benefits shows a clear intent by the legislature to make the loss of two specified members a scheduled loss. A partial loss under paragraph (s) must be determined by evidence of the functional loss rather than the industrial loss. Simbro v. DeLong's Sportswear, 332 N.W.2d 886 (1983). Under Simbro the scheduled loss is determined by converting each scheduled loss to a single body as a whole and then make an award as a percentage of 500 weeks. As the conversation process required under Simbro was not done by any physician in this case, agency expertise recognized by Iowa Code section 17A.14(5) and resort to actual examination of the AMA Guides was necessary to make the combined body as a whole finding so an award could be rendered. In the case sub judice, it was found that claimant suf Page 5 fered an 18 percent body as a whole loss as a result of the work injury. Such a finding entitles claimant to 90 weeks of permanent partial disability benefits as a matter of law under Iowa Code section 85.34(2)(s) which is 18 percent of 500 weeks, the maximum allowable number of weeks for a par tial loss injury in that subsection. Claimant's entitlement to permanent partial disability also entitles her to weekly benefits for healing period under Iowa Code section 85.34 from the date of injury until claimant returns to work; until claimant is medically capable of returning to substantially similar work to the work she was performing at the time of injury; or, until it is indicated that significant improvement from the injury is not anticipated, whichever occurs first. As it was found that claimant was off work until she reached maximum healing on September 16, 1990, benefits will be awarded accordingly. The parties stipulated that if three exemptions were found, claimant's weekly rate should be $147.10. This rate is consistent with the commissioner's published rate booklet for this injury. III. Under Iowa Code section 85.27, claimant is enti tled to causally connected medical expenses to treat the injury. The only dispute as to the requested expenses were their causal connection to a work injury. The causal con nection to the claimed work-related condition was not dis puted. Therefore, in light of the above stipulations and findings, the medical expenses requested will be awarded. ORDER 1. Defendants shall pay to claimant ninety (90) weeks of permanent partial disability benefits at a rate of one hundred forty-seven and 10/l00 dollars ($147.10) per week from September 17, 1990. 2. Defendants shall pay to claimant healing period benefits from May 5, 1990 through May 13, 1990 and from May 15, 1990 through September 16, 1990, at the rate of one hun dred forty-seven and 10/l00 dollars ($147.10) per week. 3. Defendants shall pay the medical expenses listed in the prehearing report and exhibit 2. Claimant shall be reimbursed for any of these expenses paid by him. Other wise, defendants shall pay the provider directly along with any lawful late payment penalties imposed upon the account by the provider. 4. Defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for all benefits previously paid. 5. Defendants shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 6. Defendants shall pay the costs of this action pur suant to rule 343 IAC 4.33, including reimbursement to claimant for any filing fee paid in this matter. Page 6 7. Defendants shall file activity reports on the pay ment of this award as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of April, 1993. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Page 7 Copies To: Mr. Paul J. McAndrew, Jr. Attorney at Law 122 South Linn Street Iowa City, Iowa 52240 Mr. Douglas Tindal Attorney at Law 225 West Main Washington, Iowa 52353 Mr. Greg A. Egbers Attorney at Law 600 Union Arcade Building 111 East Third Street Davenport, Iowa 52801 5-1803 Filed April 15, 1993 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ LAURA SOUDER, Claimant, vs. File No. 974074 NATIONAL COMPUTER SYSTEMS, INC., A R B I T R A T I O N Employer, D E C I S I O N and THE ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Insurance Carrier, Defendants. ___________________________________________________________ 5-1803 - Non-precedential, extent of disability case. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ SHERI NORMAN, Claimant, vs. File No. 974077 HEAT TECH, A R B I T R A T I O N Employer, D E C I S I O N and LIBERTY MUTUTL INSURANCE COMPANY, Insurance Carrier, Defendants. ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by the claimant, Sheri Norman, against her employer, Heat Tech, and its insurance carrier, Liberty Mutual Insurance Company, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury allegedly sustained on January 31, 1991. This matter came on for hearing before the undersigned deputy industrial commissioner at Des Moines, Iowa, on September 14, 1992. The first report of injury has been filed. The record consists of the testimony of claimant as well as of the testimony of Cory Colman, Cindy Driscoll, Marvin Rychnovski, Joni Jones Stonehacker, Monte McIntryre, Theresa Swope, Bruce Jones, Vern Lane, Linda Platt, Mary Jane Miller, Barbara Jennings Davidson, and Roxanne Huntington. The record also consists of joint exhibits A through C and claimant's exhibits I through V. ISSUES Pursuant to the hearing assignment order, the pre-hearing report and the oral stipulation of the parties, the parties have stipulated to the following: 1) that claimant is married and entitled to five exemptions; 2) that medical costs accrued were fair and reasonable costs for treatment of claimant's condition; 3) that claimant was off work on account of the alleged injury from February 1, 1991, through March 3, 1991; and 4) that commencement date for any permanent benefits due claimant would be March 4, 1991. Issues remaining to be decided are: (1) Whether claimant received an injury which arose out of the course of her employment on the alleged injury date; (2) Whether a causal relationship exists between Page 2 claimant's work injury and claimed permanent disability; (3) The nature and extent of any benefit entitlement; (4) Whether claimant is entitled to payment of certain medical costs pursuant to section 85.27; (5) Whether claimant is entitled to a penalty for unreasonable delay in commencement of the benefits or for unreasonable denial of benefit payment; and (6) The applicable rate of weekly compensation. FINDINGS OF FACT The deputy, having heard the testimony and considered the evidence finds: Claimant is a high school graduate who is currently enrolled in her second year at Southwestern Community College. She intends to pursue a course of training as a legal assistant. Claimant appears quite capable of reaching that educational and employment objective. Claimant is married and has three minor children. Claimant worked briefly as a waitress in 1976 and 1977 and subsequently provided day care in her home until becoming employed as a Heat Tech production worker in December 1988. Claimant was one of eight people initially employed as start-up workers in Heat Tech's new operation. Cory Colman was then designated plant manager. His title has changed since December 1988; yet, Colman has remained the overall manager of operations at the Heat Tech operation from November 1988 onward. Claimant was initially hired as a machine operator in the flexible and foil department. She progressed rapidly and received favorable job reviews overall and pay raises as expected. She proved to be a conscientious and technically competent worker. On May 4, 1989, claimant became a leadworker who supplied workers with materials, checked workers' work quality and overall supervised 20 people. In September 1989 claimant was made supervisor in the flex and foil department. She had those responsibilities she had had as the leadworker plus paper work, material supply responsibility and the capacity to do worker performance reviews and promote or demote workers under her supervision. She supervised three flex and foil shifts working daily from about 6:00 a.m. to past 3:00 p.m. and averaging 50 to 60 hours per week at work. As claimant's job duties increased, her work evaluations overall remained quite positive. The evaluations did suggest goals for claimant, which goals were indicative of her having problems dealing with persons under her supervision and following the proper chain of command relative to reporting to her own supervisors. A variety of claimant's co-workers, both managerial personnel and production workers, testified at hearing. The overall testimony was that claimant was technically proficient in her job duties but highly controlling and lacking in tact in her relationships with her subordinate production workers. Page 3 Claimant, with the consent of her own immediate supervisor and Cory Colman, demoted another worker from the leadworker position in the flex and foil operation and then promoted claimant's sister to the leadworker position. Production in flex and foil declined. Managerial personnel, especially Mr. Colman, assessed the situation. Colman held a series of meetings with flex and foil production workers. Workers' comments in those meetings led Colman to conclude that claimant's sister and claimant's and her sister's relationship as supervisor and leadworker played a substantial role in the worker dissatisfaction and poor productivity in flex and foil. Colman, Bruce Jones, plant manger in flex and foil and then claimant's immediate supervisor, and claimant met to discuss the situation on the fourth Monday of January 1991. As Colman had pledged confidentially to those workers from the flex and foil department who had confided regarding their perception of the problems claimant's sister created, those problems were discussed generally and not specifically. Claimant was advised that management was considering demoting her sister from leadworker in that management perceived that was in the best overall interest of the plant. Final decision as regards claimant's sister's demotion from leadworker had not been made. Claimant was asked not to speak with her sister regarding the potential demotion until a decision was finalized. On Friday on the fourth week of January of 1991, claimant was informed that her sister would be demoted. Claimant was also informed that her own job duties would change in that she would retain her salary and her title as a supervisor but would supervise only the foil section of the flex and foil division and not the overall flex and foil operation. Claimant requested that she inform her sister of the demotion. Colman agreed that claimant could do so and advised claimant and her sister that they could leave work for the balance of the day without lost pay. Claimant and her sister did so. Apparently the plant was in production on Saturday and claimant did not report to work. Claimant also did not report to work on Monday and Tuesday of the following week. She did speak to Cory Colman on Tuesday, however. In a meeting at his office, she indicated that while she had been considering returning to production work only that she would report to work in her foil department supervisor position as of Wednesday morning. Claimant did report on Wednesday. Claimant held a meeting with production workers in foil on Wednesday morning. Claimant expressly indicated that the rearrangement of work duties was not a demotion for her and that she would be supervising in the foil department in an attempt to enhance its production. Colman characterized claimant as cold and perhaps as somewhat distant on Wednesday but as not appearing unduly upset. Claimant reported that she did not have the same duties on reporting to work on Wednesday as she had had previously and that both Colman and Bruce Jones were on the floor performing responsibilities she perceived as her own. Colman reported that he and Jones had had to setup and plan production in Page 4 claimant's absence and that claimant was advised of the plans they had made on Wednesday. Claimant reported to work on Thursday morning. She reported that she had cried on Wednesday evening after leaving work and on Thursday morning had vomited before coming into work. She felt excluded from managerial decisionmaking in which she had previously been included. Three presses in the foil department were broken. Claimant asked Monty McIntryre, supervisor in maintenance, to fix the presses. He told claimant he was busy. She then asked two other maintenance workers. She reported that they said they would help her yet never did. Apparently, the maintenance personnel informed claimant that a major breakdown had occurred in another plant division and that they could only fix the presses in the foil department after dealing with that breakdown. In the course of the morning claimant had an altercation with Monty McIntryre regarding a disagreement as to whether another press machine needed maintenance. On walking away from that interaction, McIntryre referred to claimant as a dumb (expletive an obscenity related to the female pudenda, deleted). McIntryre reported the altercation and the incident regarding the obscenity to Colman within an hour of its occurrence. Colman gave McIntryre an oral reprimand and placed a notice regarding the incident in McIntryre's personnel file. Claimant did not report the incident. Sometime thereafter, claimant asked Bruce Jones to help with the presses. Apparently, she and Jones had difficulty getting the press started. At that point claimant got very emotionally upset and began verbalizing loudly and crying on the plant floor. Jones got Colman to attempt to calm claimant down. Both Jones and Colman indicated that the situation developed so quickly that they did not consider removing claimant from the plant floor to the office. In the course of the incident, claimant advised Colman she wanted her old job back and expressed her belief that Colman had made a mistake in rearranging plant duties. Colman advised that the job of overall supervisor in flex and foil no longer existed. Jones offered to drive claimant to her home and did so. Neither Colman nor Jones offered to take claimant to a physician. Jones and Colman did not believe that claimant was upset sufficiently for medical care to be necessary. Claimant's spouse suggested claimant see a physician and claimant did see Yogesh Gandhi M.D., her family physician. Dr. Gandhi prescribed medications and took claimant off work. On February 14, 1991, Dr. Gandhi indicated that claimant was undergoing treatment for stress which was probably due to work. Gandhi referred claimant to Ashwini Pradhan, M.D., a psychiatrist and to William Smith, a licensed social worker. Dr. Pradhan saw claimant on February 15, 1991, and March 1, 1991. She diagnosed claimant's condition as an adjustment disorder with mixed Page 5 emotional features and by history in the diagnostic interview related claimant's very distraught mood, anger and crying to claimant's work situation. She released claimant to return to work as of March 4, 1991. Mr. Smith saw claimant for supportive therapy and agreed with Dr. Pradhan's diagnosis of an adjustment disorder with mixed features. Claimant attempted to return to work on March 4, 1991. Mr. Colman had earlier informed claimant that she would be demoted from her supervisor's position. On March 4, he informed her no production work was available. She was placed on lay-off, subsequently terminated; and has not been rehired. Claimant appears to have fully recovered from her emotional distress related to her perception of unfair treatment in her work situation. Her demeanor at hearing demonstrated no evidence of residual emotional problems. The record contains no medical evidence of permanent residuals. Hearing testimony and the practitioner's records of Pradhan and Smith reflect that claimant believed that she was considered for the plant manager position but that Bruce Jones was chosen for that position as he is male and she is female. Colman, in his deposition, denied that Jones was chosen on account of his sex and indicated that Jones was chosen on account of his past work experience as a store owner and manager. The record overall supports the finding that reasons other than claimant's sex, including the lack of productivity in the flex and foil division under her supervision and her apparent interpersonal problems with both supervisory and production workers, made it unlikely that claimant would have been appointed plant manager. Claimant, at hearing, expressed embarrassment over an incident at a overall plant meeting wherein she was presented a poster size photograph of the back of a male dancer sitting on her lap. Evidently claimant and some other female plant workers had gone to a bar where "male dancers were performing" in nonwork hours. Photos were taken; the particular photo was passed on to Colman who then had it enlarged and presented it to claimant with a note stating the following: Find enclosed a small token expressing my gratitude for the wonderful evening we spent together. My mind still remembers fondly the tenderness of your loving touch. I can honestly say your "love grip" is one of a kind. The bruises are finally fading. Until we are together again, yours forever "Malibu" P.S. Bring this picture in at our next performance, and it will entitle you to free admission and another 'freebie'. M. Colman read the note to all persons at the meeting. Colman testified that claimant did not appear embarrassed Page 6 although other workers indicated she then may have been uncomfortable. Apparently, claimant's spouse indicated to Colman that the spouse would have liked to have been present to observe claimant's reaction. Colman testified that the presentation of the photo was part of routine "humorous" presentations made to workers at overall plant production meetings and that the intent had not been to embarrass claimant. Colman also reported that at one point, although he was uncertain as to whether prior to or subsequent to this photo incident, Claimant had presented Colman with a cane to assist Colman in "reaching the urinal" in that Colman's "male organ" was of itself inadequate for the task. It is expressly found that the overall atmosphere in the plant was pubescent and puerile as regards matters related to human sexuality. Claimant apparently actively contributed to that atmosphere and was not unduly distressed by the atmosphere while participating in it. It is expressly found that the situation claimant encountered in her work at Heat Tech was not a situation producing stress of greater dimensions than the day to day mental stresses and tensions which all employees must experience. Claimant's actual stress resulted from the discrepancy between her own perception of her work performance and her perceived loss of status when her job duties were reorganized and when her sister was demoted from the leadworker position to which claimant had promoted the sister. All workers are to a greater or lesser degree subject to different perceptions of their performance by co-workers and supervisors. Furthermore, claimant's evaluations reflect an attempt on management's part to advise claimant of her need to improve her interpersonal relationships. Hence, while the evaluations were overall favorable to claimant, it cannot be said that claimant was wholly surprised that her performance and personal relationship building at work were perceived as inadequate. Likewise, claimant had earlier been advised of potential problems resulting from promoting her sister to leadworker. Hence, while that situation was unusual, it remained a situation of claimant's creation, and the adverse consequences following from claimant's initial decision to promote her sister cannot be said to have resulted from a situation of greater dimensions overall than the day to day mental stresses and tensions which all employees experience. All supervisory workers must at some point face demoting a co-worker. Also, claimant voluntary chose to inform her sister of the sister's demotion. The employer did not request that claimant perform that task and the employer quite consciously attempted to give claimant and her sister an opportunity to deal with their feelings regarding the demotion and the change of responsibilities outside of the work environment. Likewise, all employees at some point face reorganizations of their job responsibilities and actual demotions. Claimant's reorganization of responsibilities, which claimant perceived as a demotion, was not an egregious act of the employer but rather a Page 7 responsible business decision handled appropriately. Hence, neither the situation nor the employer's actions within the situation can be said to have created a situation of greater dimensions of stress than the day to day mental stresses and tensions to which all employees are subject. In this regard also, Jones and Colman's behavior when claimant reacted on the plant floor on January 31, 1991, does not appear to have produced for claimant a situation of greater dimensions than the day to day mental stresses and tensions to which all employees are subject. While Jones and Colman did not remove claimant from the floor, the incident arose so quickly that Jones and Colman felt compelled to resolve it immediately; and did so without the opportunity for forethought as to the most comfortable situation for claimant. The need to deal with an emotionally distraught employee immediately and without overall consideration of the embarrassment that the emotional display might produce for the employee if allowed to continue in public is a situation that is often encountered in the work place. It cannot be said to be a situation of greater dimensions than the day to day mental stresses and tensions to which all employees are subject. CONCLUSIONS OF LAW Our first consideration is whether claimant has established a mental injury arising out of and in the course of her employment which meets the standards for liability under Iowa law. The claimant has the burden of proving by a preponderance of the evidence that the alleged injury actually occurred and that it arose out of and in the course of employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of" refer to the cause or source of the injury. The words "in the course of" refer to the time, place and circumstances of the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 1971). The claimant has the burden of proving by a 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 Page 8 other surrounding circumstances. As noted above, the limited medical evidence produced indicates that claimant's adjustment disorder with mixed emotional features was precipitated by both the actual happenings in claimant's work environment and by claimant's perception of those happenings and by her beliefs as to what should have happened. Given such, claimant has established medical causation between her work environment and her adjustment disorder. Claimant has not established legal causation, however. When viewed objectively and not as claimant perceived them, claimant's work stresses were not out of the ordinary from the countless emotional strains and differences that employees encounter daily without serious mental injury. Given such claimant is not entitled to a recovery under our workers' compensation law. In that claimant has not met the threshold requirement of establishing employer liability for injury, other issues presented need not be considered. ORDER THEREFORE, IT IS ORDERED: Claimant take nothing from this proceeding. Claimant pay costs of this proceeding. Signed and filed this ____ day of October, 1992. Page 9 ______________________________ HELENJEAN M. WALLESER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Dennis L. Hanssen Attorney at Law 2700 Grand Avenue, Suite 111 Des Moines, IA 50312 Mr. James C. Huber Attorney at Law 500 Liberty Building Des Moines, IA 50309-2421 1108.20, 2204 Filed October 5, 1992 Helenjean M. Walleser BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ SHERI NORMAN, Claimant, vs. File No. 974077 HEAT TECH, A R B I T R A T I O N Employer, D E C I S I O N and LIBERTY MUTUTL INSURANCE COMPANY, Insurance Carrier, Defendants. ___________________________________________________________ 1108.20, 2204 Claimant who perceived plant demotion of claimant's sister and reorganization of claimant's job duties without a reduction in pay or a change in claimant's title as unmerited demotions did not establish that the work situation resulted from a situation of greater dimensions than the day to day mental stresses and tensions which all employees must experience. All employees face a discrepancy between their own perception of job performance and perceptions of other in the work environment. All employees are subject to demotions and job reorganizations. Where those demotions and job reorganizations are objectively justifiable and do not result from reasons personal to the worker they cannot be said to be out of the ordinary and different from the countless emotional strains and differences that employees encounter daily without serious mental injury. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ WILLIAM COE, Claimant, vs. File No. 974094 PST, INC., A P P E A L Employer, D E C I S I O N and LIBERTY MUTUAL INSURANCE COMPANY, 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 23, 1993 is affirmed and is adopted as the final agency action in this case with the following additional analysis: Defendants argue that claimant violated a work rule, and that this violation took him out of the course of his employment. Specifically, defendants argue that claimant violated a memorandum not to park his truck/trailer at the truck stop in West Memphis where claimant met the man who presumably later stole his truck. Although defendants allege that claimant received a memo with these instructions, neither the memo nor the person who allegedly communicated the memo to claimant were produced at the hearing. Claimant denies receiving the memo. In addition, claimant's limited ability to read and write and his level of intelligence cast further doubt on whether the restriction was in fact effectively communicated to him. It is axiomatic that before an employee can be held to have violated a work rule or restriction, the rule or restriction must be communicated to the employee. Defendants have failed to show that the work rule they allege claimant violated was adequately communicated to claimant. Page 2 Defendants shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of March, 1994. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. James M. Hood Attorney at Law 302 Union Arcade Bldg. Davenport, Iowa 52801 Mr. Greg A. Egbers Attorney at Law 600 Union Arcade Bldg. 111 East Third St. Davenport, Iowa 52801-1596 5-1100; 5-1404.30; 5-1600; 1111 Filed March 29, 1994 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ WILLIAM COE, Claimant, vs. File No. 974094 PST, INC., A P P E A L Employer, D E C I S I O N and LIBERTY MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. _________________________________________________________________ 5-1100; 5-1404.30; 5-1600 Claimant was employed as an over-the-road truck driver. He was severely beaten one evening. Defendants denied liability, and asserted that claimant was intoxicated at the time of the hearing, and argued further that the assault was a willful act of a third party directed against the employee for reasons personal to such employee, pursuant to Iowa Code section 85.16. Both of defendants' affirmative defenses failed. It was determined that while claimant was intoxicated at the time of the assault, his intoxication was not a substantial factor in causing the injury. Likewise, it was found that claimant was selected at random for purposes of the attack. Claimant lost the use of his left eye due to the severe injuries he sustained, and was awarded 140 weeks of compensation. 1111 It was also held on appeal that before defendants could rely on violation of a work rule as a defense, it must be shown that the work rule was effectively communicated to claimant. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : WILLIAM COE, : : Claimant, : : vs. : : File No. 974094 PST, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by William Coe, claimant, against his former employer, Pacific States Transport and its insurance carrier, Liberty Mutual Insurance Company. Mr. Coe seeks workers' compensation benefits due to an alleged work-related injury occurring on November 2, 1990. The matter came on for hearing before the undersigned deputy industrial commissioner on June 2, 1993, in Davenport, Iowa. The case was considered fully submitted at the close of the hearing. The record consists of the claimant's testimony, testimony from Thomas Proctor, Vice President of Safety for the defendant employer; and, joint exhibits A-V. ISSUES Pursuant to the hearing report and order, the parties submit the following issues for resolution: 1. Whether claimant sustained an injury on November 2, 1990 which arose out of and in the course of his employment; 2. Whether there is a causal relationship between the injury and claimant's disability; 3. Whether claimant is entitled to temporary total disability benefits, healing period benefits, or permanent partial disability benefits; and, 4. Whether claimant is entitled to medical benefits. Defendants raise intoxication and the willful act of a third party as an affirmative defense. Page 2 FINDINGS OF FACT The undersigned deputy, having reviewed all of the evidence received, finds the following facts: Claimant was born on January 28, 1948, and at the time of the hearing was 45 years of age. Claimant grew up in Alabama, and did not finish the 8th grade in school. His scores on I.Q. tests hovered between 69-72. He has difficulty reading and spelling, and finds it difficult to concentrate when trying to better these skills. Claimant was in the Navy from 1967-1969. He was assigned to the engine room which involved working on machinery temperatures, steam pipes and monitoring valves. He received an honorable discharge. Prior to joining the Navy, and once discharged, claimant worked for Calvin Long Plumbing. His primary job duties included loading and unloading trucks, hauling materials to job sites and pipe fitting. Claimant earned between $4.50 and $5.50 per hour, and worked 40 to 60 hours per week. From 1972 to 1978 and from 1982-1990, claimant worked as an over-the-road truck driver. From 1978 to 1979, claimant worked for the DeKalb Foundry, where he performed heavy labor, and from 1979 to 1981, claimant worked for Armalie Electrical Plating Company, cleaning and electroplating various machine parts. Some of his job duties required the use of a crane. In January of 1990, claimant began working as an over-the-road truck driver for the defendant employer. As such, he pulled flat bed trailers loaded with tractors, steel, various machine parts and junk freight throughout the continental United States. His terminal was based in Davenport, but claimant received his work orders from a station in Oregon. He was not paid for meals or lodging unless his truck was in the shop. There were no restrictions on where claimant could eat or sleep, and claimant usually slept in the bed located in the truck cab. On the morning of November 1, 1990, claimant unloaded cargo in West Haven, Mississippi and traveled to West Memphis, Arkansas. The following morning, November 2, 1990, claimant awoke at 7:00 a.m. and went to a truck stop to wash up. He called the terminal for further instructions, and was told to wait in West Memphis for a load which was to be loaded at 12:00 noon and delivered in Fitzgerald, Georgia (a distance of approximately 500 miles, or a ten-hour drive) on November 4, 1990. The company did not place any restrictions on where claimant could spend his time during layovers. According to claimant, his truck was loaded from 1:00 p.m. to 6:30 p.m. He was going to begin the drive to Fitzgerald that evening. Page 3 Once claimant's truck had been loaded, he returned to the truck stop to shower and eat dinner. Claimant testified that while at the truck stop, he was approached by a gentleman named Dave who was wearing a tan jacket sporting the defendant employer's logo or emblem. Dave told claimant that his truck had broken down and would be in the shop until Monday, and invited claimant out to dinner at a restaurant located in downtown West Memphis. Claimant unhooked the truck from the trailer, and both gentlemen rode in claimant's truck. They arrived at the restaurant at approximately 8:00 p.m. When claimant got out of the truck, he left the keys in the ignition, but locked the doors because he had an extra set in his pocket. He noticed that Dave leaned over towards the driver's side before he got out the truck. Claimant felt he had been misguided, and believed that the restaurant that Dave had suggested was more of a nightclub ("Club Unity"), but he proceeded to go in with Dave, who found a table. Claimant made his way to the bar, and ordered a hot dog, chips and a Coke. When he returned to the table, Dave had ordered beer. Although claimant initially declined to imbibe, Dave "kept after" him and he started to drink. Upon reflection, claimant felt Dave was trying to get him drunk. Around 11:00 p.m., claimant had had enough, felt a little drunk, and wanted to leave the club. He did not want to leave alone, as he felt that the club was located in a rough part of town, so he asked Dave to leave with him. Dave acquiesced, but first excused himself to use the rest room. He never returned. Once outside, claimant realized that his truck had been stolen. Then, he was jumped by four men, severely beaten and robbed of approximately $60.00. Claimant believes he was "set up" by Dave. The police were called, and an incident report was filled out. The report notes that the occurrence happened on November 3, 1990 at 1:44 a.m., and the police arrived on the scene on November 3, 1990 at 1:47 a.m. (Joint Exhibit C) Claimant sustained serious injuries as a result of the beating, including a broken nose, broken bones above and under the left eye, retinal loss in the left eye and a blood clot in the right temple lobe. Once found on the pavement in a state of unconsciousness, claimant was taken by ambulance to the emergency room at Crittenden Memorial Hospital in West Memphis, Arkansas. X-rays of the cervical spine, facial bones and skull showed opacification of both maxillary sinuses, small cortical infractions of the anterior wall of the maxillary sinuses, and small fractures at the zygomatical orbital rim on the left. Clouding of the frontal sinuses were present. Claimant also sustained a giant retinal tear which required surgical repair by a vitrectomy (Jt. Ex. P). It was recommended that claimant undergo a CT scan (Jt. Ex. L). Claimant was transferred to the Baptist Memorial Hospital in Memphis, Tennessee, where Page 4 various CT scans were taken and confirmed bruising and swelling in the right anterior temporal lobe and near the temporo-occipital junction, broken bones in the nasal cavities and other abnormalities (Jt. Ex. G, pp.13-18). Other notations from the physicians at the hospital indicated that claimant was unable to remember what had happened, and that he was intoxicated (Jt. Ex. G, pp. 4(a); 5(b); and 12(a)). Other records indicate that claimant's blood alcohol level was twice the legal limit at the time he was admitted to the emergency room (Jt. Ex. V). Prior to his discharge on November 14, 1990, claimant underwent a tracheostomy; intramaxillary fixation by plating and wiring; open reduction and internal fixation by plating and wiring of the left trimalleolar fracture and inferior orbital rim fracture; closed reduction of the nasal fracture; open reduction and internal fixation of the left lateral maxillary buttress; exploration of the piriform ampliture and left antrostomy; plans Plana lensectomy; vitrectomy and silicone oil fill of the left eye. In all, claimant underwent six operations to repair the damage sustained from the attack. Claimant was eventually released to return to Alabama, and his plane fare was paid for by the defendant employer (Jt. Ex. G, pp. 1-6; Jt. Ex. H; Jt. Ex. L; and, Jt. Ex. N). William McCarty performed intermaxillary fixation on claimant. His office was mostly concerned about payment of the procedure (Jt. Ex. J). On November 28, 1990, claimant visited Michael Massey, M.D., apparently at the request of David Meyer, M.D. Dr. Massey is a physician located in Montgomery, Alabama. After a complete examination, Dr. Massey believed claimant was making an excellent recovery, and that the retina was completely attached. In January of 1991, Dr. Massey was of the opinion that claimant would be legally blind in the left eye for the rest of his life. The blindness was due to the injuries sustained in November of 1990 (Jt. Ex. K, pp. 1-6; p. 7; Jt. Ex. P). In February of 1991, claimant sought follow-up treatment on three occasions from Jack Griffin, M.D., a neurologist located in Columbus, Georgia. Complaints from claimant included headaches, dizziness, discomfort about the shoulders and neck, and, loss of central vision in the left eye. Dr. Griffin ordered a repeat CT scan of claimant's head, and the results of the test were normal. Dr. Griffin declined other studies at that time, but claimant was to confer with his eye doctor in March about the safety of an MRI on the cervical spine (Jt. Ex. M). Other than a medical report filed with the Georgia State Board of Workers' Compensation, there are no other records from Dr. Griffin (Jt. Ex. I). Claimant also sought treatment from the Hurst Chiropractic Clinic from February through July of 1991. A progress report from the clinic indicates that claimant was suffering from multiple cervical sublimation; thoracic subluxations and lordosis; lumbar subluxations; lumbar disc Page 5 degeneration; and, lumbar lordosis. No final diagnosis or prognosis is found. The notes from the clinic are difficult to read, due to the poor quality of both the record-keeping of the chiropractor and the photocopies provided to the undersigned (Jt. Ex. O). On May 14, 1991, Joseph Keller, M.D., who had treated claimant's left eye shortly after the assault and resulting hospitalization informed the defendant insurance company that "[b]ecause of the presence of vitreous hemorrhage in the left eye, immediately after the trauma, and because of the nature of the retinal tear and the timing of it, it is a virtual certainty that [claimant's] eye problems in the left eye all resulted from the beating [claimant] received." (Jt. Ex. P) Also in May of 1991, claimant was referred by Leonardo Antaris, M.D., to the University of Iowa Hospitals and Clinics, where he was evaluated by Christopher Blodi, M.D., assistant professor of the vitreoretinal service for the left eye condition, and possible removal of the silicone oil from the left eye. Claimant was complaining of pain and redness of the left eye, and after a discussion of the pros and cons of removal of the silicone oil from the eye, decided to undergo surgery to have the oil removed. Surgery was performed on June 13, 1991. Dr. Blodi referred claimant to Michael Laws, M.D., a neurologist located in Davenport, Iowa, for further follow-up care with respect to claimant's head trauma and resulting physical problems. Claimant was released from Dr. Blodi's care on August 12, 1991 (Jt. Ex. Q). Claimant met with Dr. Laws on several occasions from July 8, 1991 through January of 1992. According to the records, claimant saw Dr. Laws for a total of three appointments, although he had been scheduled for a total of eight appointments. Dr. Laws diagnosed post traumatic syndrome, and claimant began taking amitriptyline, elavil and fiorinal, to treat depression and headaches present since the incident in November of 1990. An EEG was performed, the results of which were normal (Jt. Ex. R). A final report from Dr. Laws was not provided, but the only final progress notes which are legible are dated January 23, 1992, indicate that claimant continued to complain of headaches and a decrease of sensation around the left eye. A neurological examination showed normal range of motion of the eyes, with the left pupil still "fixed." There was tenderness to palpation of the scalp. Dr. Laws felt claimant continued to have post traumatic headaches and prescribed additional medications, including amitriptyline for the headaches. Claimant also underwent an electroencephalography, which was normal (Jt. Ex. R). In March of 1992, claimant was evaluated by Paul Hauck, Ph.D. Dr. Hauck paints a bleak picture of claimant's physical, intellectual and emotional condition and capabilities. His testing concentrated on claimant's inability to reason and comprehend, stating that claimant is in the borderline mentally retarded range of intellect. Page 6 Additionally, Dr. Hauck opined that claimant would be unable to adapt physically or psychologically in a work environment. Claimant's vision hampered his motor skills (Jt. Ex. S). In July of 1992, claimant underwent additional vocational assessment testing. Most, if not all, of claimant's medical records were reviewed by Judy Stengel, the vocational evaluator. Claimant was complaining of problems with depth perception, which limited his capacity to read, drive, cook and thread a fish hook. Headaches increased in proportion to stress, and claimant was still taking anti-depressant medications, as well as non-narcotic analgesics to relieve the headaches. Claimant also reported pain in his right arm, shoulder and back, present since his release from the hospital in November of 1990. He stated that back pain had prevented him from lifting a 30 pound box during a recent move (Jt. Ex. T, pp.1-4). After a review of claimant's past education and employment, Ms. Stengel developed a guideline to determine claimant's aptitude in a variety of areas, including intelligence; verbal, numerical and spatial aptitudes; form and clerical perception; motor coordination; finger and manual dexterity; eye-hand-foot coordination; and color discrimination. She also outlined overall training preparation, job adaptabilities, work activities and working conditions (Jt. Ex. T, pp. 4-8). In her final analysis, based on work restrictions given by Dr. Laws, claimant's intellect, age, work experience and physical capabilities, Ms. Stengel believed claimant was unable to return to any of his previous occupations. She determined that he was "marginally employable in other occupations." (Jt. Ex. T, p. 10) She did not provide any assistance in securing suitable employment for claimant, but did collect job descriptions tailored to claimant's previous jobs (Jt. Ex. T, pp. 14-18). Mr. Proctor testified on behalf of defendants. A former Idaho State police officer and currently the Director of the Utah Department of Medicaid Fraud, Mr. Proctor, at the time of the incident, was the Vice President of Safety for the defendant employer. His duties included investigation of traffic accidents, workers' compensation claims, driver background checks and thefts. Mr. Proctor knew of the assault on November 14, 1990, when claimant contact him by telephone. Mr. Proctor testified that claimant told him during the telephone conversation that Dave had followed claimant to the restaurant; that claimant was aware that it was against company policy to unhook his load from his truck and to keep one key in the ignition even while the truck was locked; and, that it was against both company and Department of Transportation policy to drink while on the road. ANALYSIS AND CONCLUSIONS OF LAW The first issue to address is whether claimant Page 7 sustained an injury on November 2, 1990 which arose out of and in the course of his employment. Defendants argue that claimant was intoxicated at the time of the beating, and that the beating was a willful act of a third party, thereby relieving them of liability. Both of defendants' arguments are affirmative defenses which must be established by the employer by a preponderance of the evidence. An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). Claimant has the burden of proving by a preponderance of the evidence that he received an injury on November 2, 1990, which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe, 246 Iowa 402, 68 N.W.2d 63. The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63. "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283; Musselman, 261 Iowa 352, 154 N.W.2d 128. Iowa Code section 85.16(2) states, in relevant part: No compensation under this chapter shall be allowed for an injury caused: .... 2. By the employee's intoxication, which did not arise out of and in the course of employment but which was due to the effects of alcohol or another narcotic, depressant, stimulation, hallucinogenic, or hypnotic drug not prescribed by an authorized medical practitioner, if the intoxication was a substantial factor in causing the injury. The defense of claimant's intoxication can be easily Page 8 disposed. The statute states that the employee's intoxication must be a substantial factor in bringing about the injury. In the case at bar, there is no evidence that claimant's intoxication had anything to do with the assault. He did not invite the assault due to his state, and it is just as possible that the assault would have occurred even if claimant had been drinking non-alcoholic beverages all night. The evidence does not exclude other reasonable causes for the accident which are totally unrelated to claimant and his libations during the evening of November 1 and the morning hours of November 2, 1990. As a result, defendants' affirmative defense of intoxication on the part of claimant fails. The second component of defendants' affirmative defenses involves Iowa Code Section 85.16(3): No compensation under this chapter shall be allowed for an injury caused: By the willful act of a third party directed against the employee for reasons personal to such employee. The record contains no evidence which suggests that claimant had any type of a relationship with the men who attacked him. While that attack is certainly considered a willful act of a third party, with no relationship with the attackers, it would be difficult, if not impossible, to find that claimant's attack stemmed from "reasons personal to such employee" as required by the statute. The assault, battery and robbery were random. Claimant was in the wrong place at the wrong time. As a result, defendants' affirmative defense of a willful act of a third party direct against the employee for reasons personal to such employee also fails. As a traveling employee, claimant was required to sleep over in certain cities depending on when and where he could pick up or drop off his loads. All of defendants' arguments are without merit. 1A Larson Workmen's Compensation Law at section 25 states the law with respect to a traveling employee: Employees whose work entails travel away from the employer's premises are held in the majority of jurisdictions to be within the course of their employment continuously during the trip, except when a distinct department on a personal errand is shown. Thus, injuries arising out of the necessity of sleeping in hotels or eating in restaurants away from home are usually held compensable. At section 25.21 (a), Larson further states that: [T]raveling employees, whether or not on call, Page 9 usually do receive protection when the injury has its origin in a risk created by the necessity of sleeping and eating away from home. Furthermore, Larson states at section 25.23(c): [W]hen an employee is required to travel to a distant place on the business of his employer and is directed to remain at that place for a specified length of time, is status as an employee continues during the entire trip, and any injury occurring during such period is combinable, so long as the employee at the time of the injury was engaged in a reasonable activity. Reasonable activities have included a claimant seeking nourishment in order to fortify himself for his pending trip. See, Walker V. Speeder Mach. Corp., 213 Iowa 1134, 140 N.W. 725 (1932). Claimant was performing his job duties in a manner consistent with his position as an over-the-road truck driver. He was attacked, and sustained serious injuries due to the attack. Claimant has shown by a preponderance of the evidence that he sustained an injury on November 2, 1990 which arose out of and in the course of his employment. The next issue to address is whether there is a causal relationship between claimant's work injury and any permanent disability he may have. The claimant has the burden of proving by a preponderance of the evidence that the injury of November 2, 1990, is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 N.W.2d 128. Furthermore, if the available expert testimony is insufficient alone to support a finding of causal connection, such testimony may be coupled with nonexpert Page 10 testimony to show causation and be sufficient to sustain an award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish compensability, the injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980). At least one treating physician supplied the requisite opinion that claimant's problems in his left eye resulted from the assault. Dr. Keller clearly states that the beating caused vitreous hemorrhage in the left eye and caused continued eye problems. Dr. Massey, who subsequently provided treatment to claimant for his left eye problems, opined that claimant would be legally blind in the left eye for the rest of his life, obviously a permanent condition. The eye problem is the only physical condition in the record that has merited opinions from some of the physicians involved in claimant's medical care. Although claimant alleged a brain injury, and there is evidence in the record that he did sustain a contusion in the brain, there is no evidence that it resulted in a permanent condition. Claimant still suffers from headaches, but he has not sought treatment for the same since January of 1992. While claimant testified that he continues to suffer from headaches, memory loss and lack of concentration, there is no objective evidence as to any loss of brain function to account for these ailments. The record reflects that claimant has always suffered from an inability to concentrate. Additionally, claimant received a broken jaw and a broken nose in the fight, but there is no evidence that either condition caused a permanent disability. As a result, it is found that claimant has sustained permanent disability to his left eye due to the work injury. The next issue to address is claimant's entitlement to healing period benefits. Having found that claimant has sustained a permanent disability due to the work injury, he is entitled to healing period benefits. Iowa Code Section 85.34(1) provides that healing period benefits are payable to an injured worker who has suffered permanent partial disability until (1) the worker has returned to work; (2) the worker is medically capable of returning to substantially similar employment; or (3) the worker has achieved maximum medical recovery. Claimant's healing period benefits will begin on November 2, 1990 and end on August 12, 1991, the day he was released from Dr. Blodi's care. While the undersigned recognizes that claimant received further care and treatment for his injuries from Dr. Laws after August 12, 1991, there is no evidence in the record that he could not have worked during the time he was actively treated by Dr. Laws. The next issue to be addressed is whether claimant Page 11 sustained a scheduled member injury, or an injury to the body as a whole. The right of an employee to receive compensation for injuries sustained is statutory. The statute conferring this right can also fix the amount of compensation payable for different specific injuries. The employee is not entitled to compensation except as the statute provides. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). Compensation for permanent partial disability begins at termination of the healing period. Section 85.34(2). Permanent partial disabilities are classified as either scheduled or unscheduled. A specific scheduled disability is evaluated by the functional method; the industrial method is used to evaluate an unscheduled disability. Simbro v. Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v. Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960). An injury to a scheduled member may, because of after effects or compensatory change, result in permanent impairment of the body as a whole. Such impairment may in turn be the basis for a rating of industrial disability. It is the anatomical situs of the permanent injury or impairment which determines whether the schedules in section 85.34(2)(a) - (t) are applied. Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986); Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). If claimant has sustained an injury to the body as a whole, he has sustained an industrial disability, and his loss of earning capacity is analyzed. Claimant has sustained a permanent injury to the left eye. There is no evidence that he has a permanent injury to any other portion of his body, including his brain or back. As a result, he is to be compensated by the schedule The next issue to address is whether claimant is entitled to medical benefits pursuant to Iowa Code Section 85.27: The employer, for all injuries compensable under this chapter or chapter 85A, shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies therefor and shall allow reasonably necessary transportation expense incurred for such services. It has been found that claimant sustained an injury which arose out of and in the course of his employment. As a result, he is entitled to medical benefits under the applicable statute. These benefits include payment of all bills submitted at the hearing by claimant. The evidence is clear that claimant's left eye is non-functional. He has sustained a complete loss of use of the eye, and is awarded 140 weeks of benefits to be paid at Page 12 the rate of $216.17 per week. ORDER THEREFORE, IT IS ORDERED That defendants shall pay claimant healing period benefits from November 2, 1990 through August 12, 1991, totaling forty point five seven one (40.571) weeks at the rate of two hundred sixteen and 17/100 dollars ($216.17) per week; That defendants shall pay claimant permanent partial disability benefits totaling one hundred forty (140) weeks at the rate of two hundred sixteen and 17/100 ($216.17) per week commencing August 13, 1991; That defendants shall pay medical benefits pursuant to Iowa Code section 85.27; That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid; That defendants shall pay interest on benefits awarded herein as wet forth in Iowa Code section 85.30; That defendants shall pay the costs of this action, pursuant to rule 343 IAC 4.33; Page 13 That defendants shall file an activity report upon payment of this award as required by the agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of August, 1993. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr James M Hood Attorney at Law 302 Union Arcade Bldg Davenport IA 52801 Mr Greg A Egbers Attorney at Law 600 Union Arcade Bldg 111 E 3rd St Davenport IA 52801 5-1100; 5-1404.30 5-1000 Filed August 23, 1993 Patricia J. Lantz BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : WILLIAM COE, : : Claimant, : : vs. : : File No. 974094 PST, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1100; 5-1404.30; 5-1600 Claimant was employed as an over-the-road truck driver. He was severely beaten one evening. Defendants denied liability, and asserted that claimant was intoxicated at the time of the hearing, and argued further that the assault was a willful act of a third party directed against the employee for reasons personal to such employee, pursuant to Iowa Code Section 85.16. Both of defendants' affirmative defenses failed. It was determined that while claimant was intoxicated at the time of the assault, his intoxication was not a substantial factor in causing the injury. Likewise, it was found that claimant was selected at random for purposes of the attack. Claimant lost the use of his left eye due to the severe injuries he sustained, and was awarded 140 weeks of compensation.