BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DAVID STARN, Claimant, vs. File No. 976100 ROBINSON SERVICE, INC., A P P E A L Employer, D E C I S I O N and AETNA, Insurance Carrier, Defendants. ____________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed May 10, 1993 is affirmed and is adopted as the final agency action in this case. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of August, 1993. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Robert F. Wilson Attorney at Law 810 Dows Bldg. Cedar Rapids, Iowa 52401 Ms. Carole J. Anderson Attorney at Law 600 Davenport Bank Bldg. Davenport, Iowa 52801 5-1402.30 Filed August 27, 1993 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DAVID STARN, Claimant, vs. File No. 976100 ROBINSON SERVICE, INC., A P P E A L Employer, D E C I S I O N and AETNA, Insurance Carrier, Defendants. ____________________________________________________________ 5-1402.30 Claimant, who lacked credibility, was the only witness to the alleged injury. Much evidence was inconsistent with his story. Claimant failed to prove an injury arising out of and in the course of employment. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : DAVID STARN, : : Claimant, : : vs. : : File No. 976100 ROBINSON SERVICE, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : AETNA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE Claimant David Starn seeks benefits under the Iowa Workers' Compensation Act upon his petition ins arbitration against his employer, Robinson Service, Inc., and its insurance carrier, the Aetna. Mr. Starn alleges that he sustained injury arising out of and in the course of his employment as a heavy machine operator on January 18, 1991. A hearing was thereupon held in Cedar Rapids, Iowa on April 5, 1993. Claimant's exhibits 1-8 and defendants' exhibits A-D were received into evidence. Testimony was received from claimant, Carlotta Starn, Fred Iben, James Rolfes, Duane Robinson and Jerald Smithey. ISSUES The parties have stipulated to the existence of an employment relationship and agree, in the event of an award, that defendants are entitled to certain credits under Iowa Code section 85.38(2). Issues presented for resolution include: 1. Whether claimant sustained injury arising out of and in the course of employment; 2. Whether the injury caused either temporary or permanent disability; 3. The extent of permanent disability (it being stipulated that if defendants are liable for the injury, claimant is entitled to temporary total or healing periods benefits from January 18 through March 25, 1991); 4. The rate of compensation; and, 5. Entitlement to medical benefits. Page 2 The parties agree that fees charged by medical providers are reasonable and necessary, but dispute whether that treatment was reasonable and necessary. However, it is stipulated that medical providers would testify as to the reasonableness of treatment and defendants offer no contrary evidence. Causal connection to the work injury is disputed, as is whether those expenses were authorized by defendants. However, the authorization defense was ruled invalid at hearing because defendants have denied liability on the claim, thereby forfeiting the right to control the course of medical care. FINDINGS OF FACT The undersigned deputy industrial commissioner finds: David Starn, 43 years of age at hearing, has spent basically all of his working life as a heavy machine operator, both for wages and in self-employment. Mr. Starn has operated bulldozers, endloaders, cranes, tiling machines, backhoes, dump trucks and other like equipment. He also has experience in the repair of heavy machinery. Of significance here, claimant was employed by Fred Iben for approximately four or five years from 1980, then in self-employment until 1989. Claimant took work with Robinson Service, Inc., in approximately September or October, 1989. Robinson Service is engaged in the earth moving business, including excavating basements, excavating for field tiles and similar work. According to claimant's testimony, he had suffered no back injuries prior to taking work with defendant. He also testified that he had not suffered substantial lower back problems during his career. However, there is substantial contrary evidence in this record. Fred Iben, claimant's former employer, testified that claimant wore a back support during the first spring of that employment and reported that his back "occasionally" acted up. During that employment, claimant made occasional but not frequent complaints of back ache. Later, while claimant was self-employed, he on at least one occasion subcontracted on a job for Mr. Iben. Although claimant owned only a single bulldozer, he had also hired an employee of his own. Iben, curious as to why claimant did not operate the dozer himself since he had only a single machine, asked why. Claimant answered that "with my back problems, I'm not going to do this any more than I have to." According to claimant, he suffered injury on January 18, 1991 while cleaning up at the end of the work day. A standard calendar shows that January 18, 1991 fell on a Friday. Official notice is hereby taken of that fact pursuant to Iowa Code section 17A.14(4). It is determined that fairness to the parties does not require an opportunity to contest that fact. Claimant went on to testify that while picking up a 100 pound LP gas tank he felt something pull in his back and Page 3 experienced sharp pain. He suffered pain on the way home low on the right side and had to lie down upon arrival. Mr. Starn further testified that he sought medical treatment at Mercy Hospital the very next day, presumably January 19. However, Mercy Hospital chart notes dated January 21, 1991 reflect that claimant presented with complaints of acute pain and spasm in the left lumbar-sacral spine after lifting a tool chest. Claimant's condition was so severe that no evaluation could be done ("since the PT was very acute & in spasm"). January 21, 1991, fell on a Monday. Given the severity of claimant's symptoms, it seems strange that he would have waited over the entire weekend before seeking care (not to mention the inconsistency with his testimony of seeking care the next morning). Also, the discrepancy in history is noted: was claimant lifting a heavy propane tank or tool box? During direct examination, claimant denied having been injured one year earlier. He further indicated that he sustained an additional injury approximately three weeks later during a half-day attempted return to work, and further testified that he did return to work approximately March 25, 1991, following which he continued to work with lower back pain for several weeks, until finally quitting the job due to physical inability to continue. Since then (and beginning almost immediately), claimant has worked as a heavy machine operator for other concerns. As of hearing, claimant was receiving job insurance benefits, certifying weekly that he is able and available to work (although he testified that he knows of no work he has been trained in that he can actually do). Mr. Starn indicated that he is troubled by extended sitting, standing, driving or riding over rough ground. The sequence of events became murky on cross-examination. Claimant conceded that he had been seen by a physician for lower back strain in 1982. Indeed, medical records of Dr. Phil First reflect complaints of lumbo-sacral and thoracic spasm on November 2, 1982. More significantly, claimant was questioned in some detail as to whether he had been off work for a back injury in January 1990. Claimant repeatedly denied that he had missed work on account of an LP tank incident in 1990, even going so far as to state that Dr. MacMenamin (his treating orthopedic specialist) was in error when he reported a year-old LP tank injury and, that all 1990 records "can't be right" because the LP tank incident was in 1991. On re-direct examination, claimant (in response to leading questions) agreed it was possible that the LP tank incident occurred in 1990, and that a tool chest incident (also work-related, of course) occurred in 1991. On questioning by this deputy, claimant asserted that he did not claim workers' compensation benefits for a back injury in 1990, even though such an injury would have occurred at work and records show that he missed three weeks (the pay periods ending January 13, 20 and 27 show no hours worked). Page 4 Asked why he failed to file a claim for so much lost time, claimant responded that he considered three weeks to be "no big deal." In each of the nine subsequent weeks, claimant grossed $320. As it happens, claimant was paid three weeks of workers' compensation benefits following a claimed injury lifting an LP gas tank in January 1990. Following his return to work, Duane Robinson indicated that claimant performed his normal work without further complaint of back problems until January 1991. Then, he claimed to have injured his back lifting his own toolbox out of the back of his truck. Robinson expressed ignorance as to why claimant would have done this, since the employer provided all tools. Recalled to the stand, claimant then averred that he had been taking his toolbox into the shop to work on a machine. On cross-examination, it was brought out that he had specifically denied a toolbox incident of this type during his deposition despite detailed questioning on the issue. Claimant then asserted he had no recollection of the toolbox incident until the day of hearing. Physical therapy chart notes from Mercy Hospital dated January 11, 1990 show that claimant reported with back pain and inability to move after feeling immediate pain when lifting a gas cylinder in excess of 100 pounds. Claimant had been to a chiropractor two times without relief. Observation was made of a man in "very obvious acute pain" who had a great deal of difficulty rising from his chair and walking into the department. Posture was deviated from normal with knees and hips flexed, the spine very flat and rigid and slightly bent forward. Claimant was able to bend forward, but could not return without "climbing up" his legs and deviating to the left. Physical therapy continued through January 26, 1990. A radiology report dated March 29, 1990, notes that claimant had suffered back pain with numbness in the left leg and testicle since January. It is this incident that neither Mr. Starn nor his wife claim to remember. Dr. MacMenamin, a board certified orthopedic specialist who testified by deposition on March 15, 1993, reported seeing claimant for the first time on February 4, 1991. Claimant gave a history of symptoms on and off for a year after lifting a 100 pound LP tank in his house, with the pain becoming worse in the last two weeks as he was using a bulldozer and tearing down buildings. A history questionnaire of that date from Iowa Medical Clinic reports pain developing on January 18 "lifting toolboxes out of the truck." These records, despite claimant's denial of accuracy, establish that any gas tank lifting accident occurred in 1990, although claimant at least once reported that the incident actually occurred at home. As noted, claimant was paid three weeks of workers' compensation benefits in January 1990 based on this incident. It now appears that this was probably a fraudulent claim. James Rolfes, also a former employee of Robinson Service (in the two weeks before trial, he again began working part time for defendant) Page 5 testified that claimant was off work for approximately three weeks and reported hurting his back when he "twisted wrong" while plowing out his own driveway. According to Rolfes, claimant said nothing about either a toolbox or an LP tank. Although Rolfes believed that this conversation occurred in January 1991, it seems clear that he has the year wrong, since he left work with Robinson Service near the end of 1990, and certainty before March 1991 when claimant returned to work. Therefore, this revealing conversation with claimant must have occurred in 1990. Duane Robinson also testified that claimant, during his tenure, often spoke about retiring because he was "too old" for such heavy work. Robinson also reported that when claimant quit in 1991, he did not claim that his decision was due to back problems, but instead, cited a prior leg injury he had suffered when stepping off his bulldozer. Medical records show such a incident occurred in 1988, while claimant was self-employed. Additionally, claimant was again seen by Dr. MacMenamin for "swelling" in the right leg on April 18, 1991. Based on the great number of inconsistencies with other evidence, many of which are difficult to explain, it must be concluded that claimant lacks credibility as a witness. ANALYSIS AND CONCLUSION OF LAW The claimant has the burden of proving by a preponderance of the evidence that the alleged injury actually occurred and that it arose out of and in the course of employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of" refer to the cause or source of the injury. The words "in the course of" refer to the time, place and circumstances of the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 1971). Claimant was the only witness to this alleged injury. He was not a credible witness. Other evidence fails to support his claim of injury arising out of and in the course of employment. Claimant has failed to meet his burden of proof. Other issues are accordingly rendered moot. ORDER THEREFORE, IT IS ORDERED: Claimant takes nothing. Costs are assessed to claimant. Signed and filed this ____ day of May, 1993. Page 6 ________________________________ DAVID R. RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Robert F Wilson Attorney at Law 210 2nd Street 810 Dows Building Cedar Rapids Iowa 52401-1407 Ms Carole J Anderson Attorney at Law 600 Davenport Bank Building Davenport Iowa 52801 5-1402.30 Filed May 10, 1993 DAVID R. RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DAVID STARN, Claimant, vs. File No. 976100 ROBINSON SERVICES, INC., A R B I T R A T I O N Employer, D E C I S I O N and AETNA, Insurance Carrier, Defendants. ___________________________________________________________ 5-1402.30 Claimant, who lacked credibility, was the only witness to the alleged injury. Much evidence was inconsistent with his story. Claimant failed to prove an injury arising out of and in the course of employment. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ SALLY J. GREINER, Claimant, vs. File No. 976604 EXCEL CORP., A P P E A L Employer, D E C I S I O N and CNA, 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 25, 1994 is affirmed and modified as the final agency action in this case. The order portion of the deputy's decision is modified as follows: This case will not be returned to assignment for hearing. Defendants may seek review-reopening if necessary. Defendants shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of February, 1995. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Gregg A. Pieper Attorney at Law P.O. Box 170 Fairfield, IA 52556 Ms. Dorothy L. Kelley Attorney at Law 500 Liberty Bldg Des Moines, IA 50309 5-1803 Filed February 27, 1995 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ SALLY J. GREINER, Claimant, vs. File No. 976604 EXCEL CORP., A P P E A L Employer, D E C I S I O N and CNA, Insurance Carrier, Defendants. ___________________________________________________________ 5-1803 Nonprecedential, extent of disability case. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : SALLY J. GREINER, : : Claimant, : : vs. : : File No. 976604 EXCEL CORP., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CNA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Sally J. Greiner, claimant, against Excel Corporation, employer, hereinafter referred to as Excel, and CNA Insurance Company, insurance carrier, defendants, for workers' compensation benefits as a result of an alleged injury on February 18, 1989. On August 31, 1993 and March 21, 1994, 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 contested 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 stipulated to the following matters: 1. An employee-employer relationship existed between claimant and Excel at the time of the alleged injury. 2. At the time of injury claimant was single and she was entitled to one exemption. Page 2 ISSUES The parties submitted the following issues for determination 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, rate of weekly compensation and penalty benefits, if any; 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 the credibility of claimant and her family at issue during the hearing as to the occurrence of the injury and its impact upon claimant's back and mental conditions. From their demeanor, appearance and gestures while testifying, claimant, her father and her mother are found credible. This finding was crucial to the issue of which group of medical experts should be relied upon in this decision because the treating physicians, which were supportive of this claim for compensation, relied heavily upon claimant's version of events and their own assessment that she was a credible and honest person, an assessment shared by the undersigned. Claimant worked for Excel from November 1988 until April 13, 1989 at which time she resigned. It is found that she resigned due to her work injury and low back pain. This was a disputed matter at hearing but her written exit statement from Excel supported this finding as well as a favorable ruling from an administrative law judge in claimant's unemployment compensation hearing. Although appealed, the finding by the judge that claimant left her Excel employment upon advice from her doctor due to back pain from a work injury was upheld. Although there was evidence to indicate that claimant was unhappy at Excel because of the physical work, the work injury and resulting pain was the precipitating factor in her decision to leave. On or about February 18, 1989, claimant suffered an injury to her low back which arose out of and in the course of her employment at Excel. The account of the incident by claimant is largely uncontroverted. She fell on her back while going down a flight of slippery stairs at Excel and suffered the immediate onset of low back pain. Claimant was initially reluctant to report the injury and seek medical treatment due to a policy at Excel that discourages the Page 3 reporting of work injuries. Apparently, there was an incentive pay system in which employees in a department will receive more pay if no work injuries are reported. Claimant was credible when she stated that this policy caused her to delay reporting of the injury and seeking medical treatment from Excel. Hopefully, this policy is now ended at Excel as it appears to greatly conflict with the purposes of the workers' compensation and OSHA laws in this state. After the injury, claimant did seek medical treatment on her own from a local chiropractor who advised her to leave Excel. She was off work at Excel only a couple of days. Later on, she was treated by a family physician who referred her to Donald Berg, M.D., an orthopedic surgeon. Dr. Berg initially treated claimant for coccydynia thinking her pain may be from a fractured tailbone. However, by the end of November 1990, he concluded that she had a bulging disc at L4-5 of the low spine. At claimant's request, Dr. Berg referred claimant to a neurologist, Richard Neiman, M.D. Dr. Neiman has since remained as claimant's primary treating physician for her chronic low back pain. Dr. Neiman's diagnosis is degenerative arthritis of the low spine at L4-5 and L5-S1 levels with bulging of the disc at L4-5. Dr. Neiman has treated this condition now for over four years and believes that claimant's back condition has stabilized. However, he has imposed permanent activity restrictions against heavy work. Dr. Neiman causally relates the degenerative arthritis and building disc conditions to claimant's fall at Excel in February 1989. In his deposition he maintained this opinion despite records that demonstrated low back pain episodes since 1981. Dr. Neiman explains that despite prior incidents of pain, claimant relates a history of the start of her current chronic and severe pain to the incident at Excel and he believes her. A contrary opinion was rendered by Michael Kitchell, M.D., another orthopedic surgeon, on May 27, 1993 after a single examination of claimant. The finding of a work injury is based upon the views of Dr. Neiman, the primary treating physician. The rejection of Dr. Kitchell's views is explained below. It is also found that the work injury of February 18, 1989 was a significant cause of claimant's current low back condition and significant permanent partial impairment. This finding is likewise based upon the views of Dr. Neiman. Dr. Neiman, as the treating physician, has far greater understanding of the condition due to his clinical involvement in claimant's case. Also, like the undersigned, he believes the claimant. On the other hand, the report and deposition of Dr. Kitchell demonstrated a cynicism toward claimant's story that is not shared by this deputy commissioner after observing her demeanor at hearing. Claimant did return to work after leaving Excel. In August 1989 she worked for Copperfield Chimney tracing UPS packages. Between January 1990 and May 1992, she was Page 4 employed at Jefferson County Hospital. Claimant stated that the hospital work was less demanding but that she did experience back problems with activity while walking and moping or cleaning. Claimant has not worked since leaving the Jefferson hospital. However, claimant's back problems are not the cause of this inability to return to any type of work. Since childhood, claimant has suffered from episodes of chronic mental depression. Her first significant hospitalization was in 1988, six months before starting at Excel. The diagnosis at the time was major depressive disorder. It was felt by her treating psychiatrist, Albert Norris, M.D., that the accidental death of her brother a year and a half before the admission was a significant stressor leading to this disorder. At the time of her fall at Excel, claimant was under treatment for depression from L. Elaine Ham, D.O., another psychiatrist. Claimant was taking anti-depressive medication when she fell at Excel but there is evidence to suggest that she was not taking it regularly. It is found that claimant never fully recovered from the depressive event in 1988. However, according to claimant's parents, claimant herself, and the records of her physicians, she was greatly improved at the time of the fall. She was able to live independently and work despite disliking the physical aspects of her job. Otherwise, she enjoyed working and her fellow employees. She also began at the time a significant relationship with a young man. After the fall claimant began taking the anti-depressive medication more frequently and Dr. Ham noted an increase in her stress due to physical pain from the back condition and from conflict with Excel over the compensability of her workers' compensation claim. Claimant was hospitalized again in October 1990 by another psychiatrist, Gary Tiegland, D.O., for major depressive disorder. Dr. Tiegland notes, as a significant cause for this hospitalization, claimant's inability to cope with her back pain following the Excel fall and the fact that she was not improving. This increased stress from the back pain and its effect on her depression was clearly noted by Dr. Neiman during his treatment of the back. In April 1991, claimant was given an intensive soft tissue program to relieve her back pain and was also treated for depression. Although claimant's back condition appeared to stabilize, her depression continued to worsen. Claimant's condition deteriorated until she became unable to concentrate or to function. Finally, she was again hospitalized in June 1992 for major depressive disorder and for suicidal idealization. Claimant was subsequently released but continues to be unable to work. She is currently attempting to return to college but is only capable of one course per quarter due to a lack of concentration ability. She, however, does well in this one Page 5 course and has received A's so far for each course. From observations at hearing, claimant is still a long way from being fully functional. She has continual bouts of crying and clearly has limited ability to concentrate. It is found that this worsening of claimant's ongoing depression was due to lingering back pain from the fall. This finding is based upon the observations of Dr. Neiman and the opinions of claimant's current board certified treating psychiatrist, Russell England, M.D. Dr. Neiman clearly observed a change in her condition following the fall and the lingering back pain. Dr. Neiamn had evaluated claimant on two occasions before the fall but noted no severe depressive symptoms. However, they became obvious after the fall. Dr. England, who testified personally at hearing, opines that claimant's fall and continuing back pain from this fall aggravated the prior-existing major depressive disorder. He attributes claimant's current emotional condition to two significant stressors: the death of claimant's brother and her back condition. At one point in this deposition, Dr. England stated that he could not be reasonably certain that the fall caused the episode but that the fall did worsen the condition. The undersigned believes that this somewhat confusing statement is largely due to use of the legal term "reasonable medical certainty." However, there is little doubt from his testimony at hearing and later on in the deposition that the injury and pain has probably worsened the condition. There may have been many other stressors which aggravated claimant's mental condition such as stormy incidents with family members, a breakdown in a love relationship, her continuing weight problem and just coping with everyday life. However, the fall of February 18, 1990 remains as one of the significant stressors causing claimants' mental problems. Dr. England states that claimant has not returned to the condition she was in at the time of the fall. Claimant certainly was suffering from ongoing depression at the time of the fall but she was recovering. He states that his treatment is continuing to improve the situation but he has not as yet achieved relief of the depression. Therefore, it is found that claimant has not as yet achieved maximum healing from the injury and aggravated depression. As claimant has not as yet reached maximum healing, a final assessment of industrial disability or loss of earning capacity, if any, from the fall, the back condition and the aggravated depression cannot be made at this time. Defendants have denied the compensability of the fall and have paid no workers' compensation benefits. The ongoing nature of the mental depression at the time of the fall in February 1989 clearly makes the causal connection between the fall and the depression fairly debatable. Page 6 However, defendants also denied the causal connection of the fall to her back complaints treated by Dr. Neiman despite clear statements by Dr. Berg and Dr. Neiman causally relating the complaints and treatment to the fall. Defendants did not have a supportive medical opinion denying the causal connection until they hired Dr. Kitchell. Dr. Kitchell did not issue his opinion until May 27, 1993, well over four years after the injury. It is found that the denial of compensability for the back injury between February 18, 1989 and May 27, 1993 was without reasonable or probable cause. Evidence in the record with reference to gross weekly compensation at the time of this work injury was sparse. The best evidence available shows that claimant was earning $6.05 per hour in February 1989. Claimant testified she worked 40 hours a week. Therefore, it is found that claimant's gross weekly earnings at the time of injury was $242.00. It is found that all of the requested medical expenses set forth in exhibit 2 constitute reasonable and necessary treatment of the injury. All of the treatment was conducted by licensed physicians in Iowa and absent contrary evidence, their treatment is found reasonably suited to treat the injury. With reference to the reasonableness of the fees and charges by the medical providers, it is found that all of the requested expenses were either totally or partially paid by either claimant herself or a group insurance carrier. Absent contrary evidence, the fees and charges are found reasonable and customary. CONCLUSIONS OF LAW I. Claimant has the burden of proving by a preponderance of the evidence that claimant received an injury arising out of and in the course of employment. The words "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. The question of causal connection is essentially within the domain of expert medical opinion. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion of experts need not be couched in definite, positive or unequivocal language and the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa Page 7 1974). The weight to be given to such an opinion is for the finder of fact to determine from the completeness of the premise given the expert or other surrounding circumstances. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Furthermore, if the available expert testimony is insufficient alone to support a finding of causal connection, such testimony may be coupled with non-expert 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). 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 (1980). In the case of a preexisting condition, an employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). In the case sub judice, claimant established causal connection by a preponderance of the credible evidence and benefits will be awarded accordingly. II. Claimant is entitled to weekly benefits for temporary total or healing period benefits under Iowa Code section 85.33 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. In this case, claimant returned to work several times only to be compelled to end employment due to conditions proximately caused by the injury. Healing period may terminate and then begin again. Lawyer & Higgs, Iowa Workers' Compensation -- Law and Practice Section 13-3. Willis v. Lehigh Portland Cement Co., I-2 Iowa Indus. Comm'r Dec 485 (1984); Riesselman v. Carrol Health Center, 3 Iowa Indus. Comm'r Rep 209 (Appeal Decision 1982); Clemens v. Iowa Veterans Home, I-1 Iowa Indus. Comm'r Dec 35 (1984). It was also found herein that claimant has not as yet reached maximum healing. Therefore, temporary total or healing period benefits will be awarded for all times she was off work and for an indefinite period of time into the future until maximum healing or a return to work occurs. This is a so-called "running award" as termed by this agency. With reference to rate of compensation, it was found that claimant's gross weekly rate was $242.00. Given the stipulations as to marital status and entitlement to one exemption, claimant's rate of compensation is $150.92 according to the commissioner's published rate booklet for Page 8 an injury in February 1989. Claimant seeks additional weekly benefits under Iowa Code section 86.13, unnumbered last paragraph. That provision states that if a delay in commencement or termination of benefits occurs without reasonable or probable cause or excuse, the industrial commissioner shall award extra weekly benefits in an amount not to exceed 50 percent of the amount of benefits that were unreasonably delayed or denied. Defendants may deny or delay the payment of benefits only when the claim is fairly debatable. Seydel v. U of I Physical Plant, (Appeal Decision, November 1, 1989). When the claim is "fairly debatable," the insurer is entitled to debate it, whether the debate concerns a matter of fact or law. The Supreme Court recently has clarified the grounds necessary to impose a section 86.13 penalty. In the recent case of Boylan v. American Motorists Ins. Co., 489 N.W.2d 742, 744 (Iowa 1992), the Iowa Supreme Court stated as follows: We conclude that it is unlikely that the legislature intended the penalty provision in section 86.13 to be the sole remedy for all types of wrongful conduct by carriers with respect to administration of workers' compensation benefits. By its terms, it applies only to delay in commencement or termination of benefits. It contemplates negligent conduct rather than the willful or reckless acts that are required to establish a cause of action under Dolan. Consequently, not only bad faith but also negligent conduct can invoke the penalty provisions of section 86.13. In reviewing the propriety of defendants' actions, Iowa Code section 507B.4(9) lists uniform unfair settlement claims practices for insurance companies. This listing is useful as a statement of public policy to identify the types of claim settlement practices that should be viewed unreasonable. Failing to promptly and fully investigate a claim and to force claimant to begin litigation to secure benefits are two types of unfair claims practices in this listing. Therefore, Iowa Code section 86.13, as now interpreted by Boylan, creates an affirmative duty for workers' compensation insurance carriers and self-insureds to act reasonably once a claim is filed. Acting reasonably means to fully and fairly investigate a claim, not to stand back and deny a claim simply because they wish to deny a claim. Failure to have a medical opinion to support a denial of a claim may also justify an award of penalty benefits when claimant's physician has opined in favor of claimant even if an opinion supportive of denial is later obtained. Turner v. Louis Rich Company, File No. 860345, (Appeal Decision, June 5, 1991). Page 9 Given the conduct exhibited herein, a reasonable penalty for a denial of benefits between the date of injury and August 1990, the date claimant first became re-employed following the back injury is eight weeks to be paid in addition to the weekly benefits awarded herein. III. Pursuant to Iowa Code section 85.27, claimant is entitled to payment of reasonable medical expenses incurred for treatment of a work injury. Claimant is entitled to an order of reimbursement if he/she has paid those expenses. Otherwise, claimant is entitled only to an order directing the responsible defendants to make such payments directly to the provider. See Krohn v. State, 420 N.W.2d 463 (Iowa 1988). In the case at bar, all of the expenses requested were found causally connected to the injury. However, no evidence was offered as to the reasonableness of the charges and fees despite the fact that the issue was listed as disputed in the prehearing conference report. However it was found that all of these expenses were either paid by claimant or partially paid by the group insurance carrier. Payment of medical fees can constitute evidence of their reasonableness and, in the absence of contrary evidence, is sufficient to carry claimant's burden of proof on reasonableness of the fees. Schneider v. Prairie Contractors, Inc., File No. 869747, (Appeal Decision, April 20, 1992). ORDER 1. Defendants shall pay to claimant temporary total disability/healing period benefits from February 18, 1989 through the present and continuing for an indefinite period into the future except for those periods of time claimant was employed either at Excel or with some other employer at the rate of one hundred fifty and 92/l00 dollars ($150.92) per week. These benefits shall continue until any of the conditions set forth in Iowa Code section 85.33 or 85.34(1) are satisfied which would justify a termination of such benefits and the commencement of permanent partial benefits. 2. Defendants shall pay in addition to the weekly benefits set forth above an additional eight (8) weeks of weekly benefits from February 18, 1989 as a penalty for an unreasonable denial of weekly benefits. 3. Defendants shall pay the medical expenses listed in the claimant's exhibit 2. Claimant shall be reimbursed for any of these expenses paid by him. Otherwise, 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. Page 10 5. Defendants shall receive credit for previous payments of benefits under a non-occupational group insurance plan, if applicable and appropriate under Iowa Code section 85.38(2), less any tax deductions from those payments. 6. Defendants shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 7. Defendants shall pay the costs of this action pursuant to rule 343 IAC 4.33, including reimbursement to claimant for any filing fee paid in this matter. 8. Defendants shall file activity reports on the payment of this award as requested by this agency pursuant to rule 343 IAC 3.1. 9. This matter shall be set back into assignment for hearing on the issue of extent of permanency benefits and for re-issuance of orders to submit a prehearing conference report indicating readiness for hearing. Signed and filed this ____ day of April, 1994. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Gregg A. Pieper Attorney at Law 103 1/2 E Broadway PO Box 170 Fairfield, Iowa 52556 Ms. Dorothy L. Kelley Attorney at Law 500 Liberty Building Des Moines, Iowa 50309 5-1803 Filed April 25, 1994 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ SALLY J. GREINER, Claimant, vs. File No. 976604 EXCEL CORP., A R B I T R A T I O N Employer, D E C I S I O N and CNA, Insurance Carrier, Defendants. ___________________________________________________________ 5-1803 Non-precedential, extent of disability case. before the iowa industrial commissioner ____________________________________________________________ _____ : JEFFREY A. SCHWAB, : : Claimant, : : vs. : : File No. 976608 COLONIAL BAKING COMPANY, : : A P P E A L Employer, : : D E C I S I O N and : : PACIFIC EMPLOYERS INSURANCE, : : Insurance Carrier, : Defendants. : ____________________________________________________________ _____ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed September 22, 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 January, 1993. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Jack Paige Attorney at Law P.O. Box 1968 Cedar Rapids, Iowa 52401 Mr. James M. Peters Attorney at Law 1200 Merchants Nat'l Bank Bldg. Cedar Rapids, Iowa 52401 9998 Filed January 28, 1993 Byron K. Orton PJL before the iowa industrial commissioner ____________________________________________________________ _____ : JEFFREY A. SCHWAB, : : Claimant, : : vs. : : File No. 976608 COLONIAL BAKING COMPANY, : : A P P E A L Employer, : : D E C I S I O N and : : PACIFIC EMPLOYERS INSURANCE, : : Insurance Carrier, : Defendants. : ____________________________________________________________ _____ 9998 Summary affirmance of deputy's decision filed September 22, 1992. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : JEFFREY SCHWAB, : : Claimant, : : vs. : : File No. 976608 COLONIAL BAKING COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : PACIFIC EMPLOYERS INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Jeffrey Schwab, claimant, against Colonial Baking Company, employer, and Pacific Employers Insurance, insurance carrier, as defendants. Claimant filed his petition based on an alleged work-related injury occurring on December 30, 1990. A hearing was held on August 5, 1992, at Cedar Rapids, Iowa. The record consists of testimony from the claimant and Scott Edmunds; and, joint exhibits 1 through 10. ISSUES The parties submit the following issues for resolution: 1. Whether claimant sustained an injury on December 30, 1990, which arose out of and in the course of his employment; 2. Whether there is a causal relationship between the alleged injury and claimant's disabilities; 3. Whether claimant is entitled to temporary total disability or healing period benefits or permanent partial disability benefits; and, 4. Whether claimant is entitled to medical benefits as governed by Iowa Code section 85.27. Page 2 FINDINGS OF FACT The undersigned deputy, having reviewed all of the evidence received, finds the following facts: Claimant, Jerry Schwab, was 22 years old at the time of the hearing. He currently works as a laborer at Colonial Baking Company. Claimant began working for the defendant on June 5, 1988. In December of 1990, claimant's title was that of "cake person." As such, he was required to unload a semi truck, distribute different bakery products to trucks assigned to various routes, and paperwork duties. Claimant also has the capability to "spot" trucks, and on a regular basis would move trucks so that the semi could back into the loading dock. Claimant testified that he was the only one on his shift that had the ability to move the trucks. Claimant was classified as a part-time worker, but averaged 44 hours of work per week. As a part-time employee, he was not given a guarantee to work any hours, was offered no insurance plan, and could not participate in the company's pension program. December 30, 1990 was a Sunday. Claimant was scheduled to begin work at 6:00 a.m. The weather on this particular day was that of a typical Iowa winter day, freezing rain. Claimant stated that some ice had formed on the sidewalks, but he encountered no problems driving to work. Claimant arrived at work and reported to Scott Edmunds, his supervisor. He was told that the semi truck that was to be unloaded was late. Claimant states he was told to go home and wait by the phone so that Edmunds could call him when the truck arrived. Edmunds told claimant that the truck could be five to six hours late. Claimant apparently told Edmunds that he could be reached by telephone at a friend's house. Claimant "punched out" and drove to his friend's house. As he reached the door of the house, he slipped on the ice and fell. He sustained a fractured ankle, and has incurred medical bills totaling more than $5,000 as a result of two surgeries and other medical treatment rendered. ANALYSIS AND CONCLUSIONS OF LAW The first issue to be addressed is whether claimant sustained an injury on December 30, 1990, which arose out of and in the course of his employment. 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 December 30, 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 Page 3 352, 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 v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 128. Claimant argues that after he left the warehouse, he was still under the employer's control because he was instructed to wait for a telephone call from his supervisor so that he could return to work when the truck arrived. Claimant states that he was not free to do anything or go anywhere he wanted, but rather had to be accessible by phone until the truck arrive Comp., Ap. Bd., 106 Cal. Rptr. 39, 29 CoA.3d 902 (1973) (benefits denied to police officer who, although on-call 24 hours per day, was not involved in any conduct for employer's benefit when injured while driving to work); Kansas City, Missouri, Police Dep't. v. Bradshaw, 606 SW2d 277 (Mo. App. 1980) (benefits denied when policeman, was on- call 24 hours a day, was traveling from his regular job to a second job, as on-call does not necessarily mean on-duty); Thornton v. Texarkana Cotton Oil Corp., 219 Ark.650, 243 SW2d 940 (1951) (benefits denied to employee who was going home from regular work but was subject to call at any time). Claimant argues that after he left the warehouse, he was still under the employer's control because he was instructed to wait for a telephone call summoning him back to work. Claimant contends he was not free to do anything or go anywhere he wanted. Additionally, he argues that his act of going home to sleep benefited the employer and makes his injury compensable. The undersigned is not convinced that claimant was an on-call employee, and that even if he was, does not believe his claim is compensable. Claimant, once he left the employer's premises, was told that the truck would be five to six hours late. During those hours, he feasibly could have done anything he chose to do. He punched out, and returned to a friend's house to sleep. At 6:00 a.m., it is more likely than not that claimant's act of sleeping was as much for his own benefits (if not more so) than for the benefit of his employer. Although claimant disagrees, the cakes job could have been performed by other people at the plant and/or at anytime after the truck finally arrived. Likewise, the evidence does not support a finding that claimant's act of going home to sleep until his duties could be performed constitute a special errand. Claimant was not instructed to do anything other than return to the warehouse when the truck arrived. As a result, claimant has failed to prove by a preponderance that his injury arose out of his employment. Page 5 ORDER THEREFORE, it is ordered: That claimant take nothing from these proceedings. That defendants shall pay the costs of this action. Signed and filed this ____ day of September, 1992. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Jack Paige Attorney at Law 700 Higley Bldg P O Box 1968 Cedar Rapids IA 52401 Mr James M Peters Attorney at Law 1200 Merchants natl Bank Bldg Cedar Rapids IA 52401 5-1100 Filed September 22, 1992 Patricia J. Lantz BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : JEFFREY SCHWAB, : : Claimant, : : vs. : : File No. 976608 COLONIAL BAKING COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : PACIFIC EMPLOYERS INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1100 Claimant failed to prove by a preponderance of the evidence that he sustained a work-related injury. Claimant had been told to punch out on the time clock and wait for five to six hours before returning to work. Claimant was free to do anything he wanted during the time he was off duty. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : LARRY HOCH, : : Claimant, : : vs. : File Nos. 956038 : 976617 FIRESTONE TIRE & RUBBER, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CIGNA INSURANCE COMPANIES, : : Insurance Carrier, : : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : ____________________________________________________________ STATEMENT OF THE CASE Claimant Larry Hoch asserts that he suffered a work-related injury to the left knee on December 8, 1988 (956038) or, in the alternative, on June 26, 1989 (976617). He has filed petitions in arbitration seeking benefits under the Iowa Workers' Compensation Act from his employer, Firestone Tire & Rubber Company, and its insurance carrier, Cigna. Claimant also named Second Injury Fund of Iowa as a party defendant in file number 956038. The cases were consolidated for hearing, and as the asserted injury dates were offered in the alternative, it was determined that Second Injury Fund of Iowa would properly be considered a party defendant in both actions. The cause came on for hearing in Des Moines, Iowa, on July 9, 1992. Claimant and Duane Abels testified at hearing (claimant's deposition of April 29, 1992, is also in evidence). Claimant's exhibits 1 through 12 and Second Injury Fund exhibits A, B and C were also received into evidence. Claimant's exhibit 13 and defendants' exhibits X, Y and Z were excluded upon objection. During the hearing, claimant requested that official notice be taken of the first report of injury in each file. The presiding deputy thereupon belatedly discovered that defendants Firestone and Cigna had failed to file a first report in case number 976617, as ordered by the hearing assignment order filed January 9, 1992. The hearing assignment order further specified that failure to file the Page 2 first report prior to commencement of hearing would result in an order closing the record to further evidence or activity on the part of those defendants. Accordingly, that sanction was imposed. Defendants subsequently offered a first report in case number 976617 which was accepted by the deputy for filing. Official notice was taken of the first report of injury in each case. ISSUES The parties have stipulated to the existence of an employment relationship at all times relevant; that if liability is established, to temporary total disability/ healing period from June 26 through August 27, 1989; that any permanent disability is to the left leg; to the facts necessary to determine the compensation rate; that affirmative defenses are waived; that medical benefits are not in dispute; and, that defendants Firestone and Cigna paid nine weeks of compensation at the rate of $466.85 prior to hearing. Issues presented for resolution include: 1. Whether claimant sustained an injury arising out of and in the course of his employment on December 8, 1988, or June 26, 1989; 2. Whether there exists a causal relationship between the claimed injury and temporary or permanent disability; 3. The extent of permanent disability; 4. Whether claimant sustained an injury under chapter 85 or an occupational disease under chapter 85A; and, 5. The extent of Second Injury Fund liability. FINDINGS OF FACT The undersigned deputy industrial commissioner finds: Larry Hoch, 52 years of age at hearing, is a high school graduate with work experience in farm labor, factory work, gas station work, and various unspecified part-time jobs held briefly while on layoff or strike during the course of his employment with defendant Firestone. This employment began in March 1960, although claimant's seniority date is August of that year due to a layoff shortly after his first hire. Claimant continues to work for Firestone, although he anticipates retiring in about five years. Claimant also has training as an emergency medical technician and has been an EMT and volunteer fire fighter since 1978, being assistant chief for the last five years. When claimant took work with Firestone, he was in good health and had no problems with either knee. He injured the right knee on November 17, 1981, while twisting and lifting. He underwent surgery at the hands of Stephen G. Taylor, M.D., on January 25, 1982. Dr. Taylor eventually released claimant to return to work (in fact, his same job) with no medical restrictions whatsoever, although he assigned an eight percent impairment rating. In late 1988, claimant was employed in the operation of a stand-up jeep. This gasoline-powered device was, as indicated by its name, operated in a standing position. The Page 3 right foot operated an accelerator pedal, while the left foot operated a clutch/brake device. This hinged pedal was sprung under tension, so that it popped up if released and, doing so, acted automatically as a brake. Operation of the stand-up jeep required constant use of the pedal, as it must be kept constantly depressed while the machine is in motion. The particular jeep assigned to claimant was characterized by extremely high tension on the left foot clutch/brake pedal. Persons of lighter weight than claimant had trouble even depressing it at all. In late 1988, claimant had worked in the operation of this particular jeep for about one to one and one-half years. After developing pain symptoms in the left leg, and successfully bid into another job operating a different jeep in a sitting position. This did not cause further problems to the knee. Later, he transferred to a different department in the "floatation" area and aggravated his knee symptoms pushing around and generally manhandling huge tires (some 1,400-1,500 pounds). Claimant reported this problem to Firestone for the first time on February 8, 1989. The company doctor referred him back to Dr. Taylor, who eventually performed an arthroscopy and partial lateral meniscectomy to the left knee on June 26, 1989. Post-operative diagnosis was of a complex tear of the lateral meniscus in the left knee with Grade I degenerative arthritis of the lateral compartment and patellofemoral joint of the knee. The date of surgery was the first time claimant missed work due to left knee problems. Claimant returned to work in August 1989, but still had symptoms. On September 12, Dr. Taylor limited him to duty requiring no more than 50 percent of his time on his feet. However, by October 10, 1989, claimant was doing much better and was released to full work duties on a PRN basis without restriction of any kind. Dr. Taylor has rated claimant as having sustained a 10 percent permanent partial impairment of the left leg and has causally related the problem to work activities which "significantly aggravated his underlying knee problem" and eventually led to the surgical procedure. Claimant now works the same job in the floatation area as was the case immediately prior to surgery. He still has no restrictions, except that the company physician (James Blessman, M.D.) has recommended that he not work as a tire builder due to an unrelated upper extremity problem concerning which claimant has undergone two other surgical procedures. Mr. Hoch is now relieved from his volunteer fire fighting duties because of a heart ailment requiring angioplasty in March 1992. This problem bears no relationship to the subject work injury. CONCLUSIONS OF LAW Defendants dispute whether claimant sustained an injury arising out of and in the course of employment on either Page 4 date alleged, and further deny the existence of a causal relationship between that injury and temporary or permanent disability. 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 other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). A personal injury contemplated by the workers' compensation law means an injury, the impairment of health or a disease resulting from an injury which comes about, not through the natural building up and tearing down of the human body, but because of trauma. The injury must be something which acts extraneously to the natural processes of nature and thereby impairs the health, interrupts or otherwise destroys or damages a part or all of the body. Although many injuries have a traumatic onset, there is no requirement for a special incident or an unusual occurrence. Injuries which result from cumulative trauma are compensable. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985); Olson v.urse of employment. The injury resulted in surgery which, itself, has left claimant with an impairment of the left leg. Dr. Taylor's assigned impairment rating of 10 percent is uncontradicted, consistent with agency experience and is hereby accepted. The leg is a scheduled member, the loss of which is compensable during 220 weeks under Iowa Code section 85.34(2)(o). Claimant is accordingly entitled to 22 weeks of compensation for his 10 percent impairment to that member. But what is the date of injury? This is significant in that the compensation rate varies from December 8, 1988, to June 26, 1989. When the disability develops gradually over a period of time, the "cumulative injury rule" applies. For time limitation purposes, the compensable injury is held to occur when because of pain or physical disability, the claimant can no longer work. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). Although claimant first developed symptoms in 1988, those symptoms later improved with a change of job and became aggravated with yet another change. Claimant had no disability or medical expenses until undergoing surgery on June 26, 1989, the first time he missed work. The date of injury is June 26, 1989. The parties have stipulated to a gross weekly wage of $859.36, marital status of married and entitlement to two exemptions with respect to that injury. The Guide to Iowa Workers' Compensation Claim Handling in effect at that time shows that an individual so situated is entitled to a compensation rate of $492.65. Claimant also asserts entitlement to benefits from the Second Injury Fund of Iowa. Page 6 Section 85.64 governs Second Injury Fund liability. Before liability of the Fund is triggered, three requirements must be met. First, the employee must have lost or lost the use of a hand, arm, foot, leg or eye. Second, the employee must sustain a loss or loss of use of another specified member or organ through a compensable injury. Third, permanent disability must exist as to both the initial injury and the second injury. The Second Injury Fund Act exists to encourage the hiring of handicapped persons by making a current employer responsible only for the amount of disability related to an injury occurring while that employer employed the handicapped individual as if the individual had had no preexisting disability. See Anderson v. Second Injury Fund, 262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers' Compensation-Law and Practice, section 17-1. The Fund is responsible for the industrial disability present after the second injury that exceeds the disability attributable to the first and second injuries. Section 85.64. Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467 (Iowa 1990); Second Injury Fund v. Neelans, 436 N.W.2d 335 (Iowa 1989); Second Injury Fund v. Mich. Coal Co., 274 N.W.2d 300 (Iowa 1970). Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, expe rience and inability to engage in employment for which the employee is fitted. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. Impairment and disability are not synonymous. The degree of industrial disability can be much different than the degree of impairment because industrial disability references to loss of earning capacity and impairment references to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of the healing period; the work experience of the employee prior to the injury and after the injury and the potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a Page 7 job transfer for reasons related to the injury is also relevant. Likewise, an employer's refusal to give any sort of work to an impaired employee may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience as well as general and specialized knowledge to make the finding with regard to degree of industrial disability. See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 529 (App. March 26, 1985); Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 654 (App. February 28, 1985). Compensation for permanent partial disability shall begin at the termination of the healing period. Compensation shall be paid in relation to 500 weeks as the disability bears to the body as a whole. Section 85.34. Other than his healing period of June 26, 1989, through August 27, 1989, as per the parties' stipulation (nine weeks), claimant has suffered no actual loss of earnings. He has no medical restrictions attributable to either knee injury which in any way diminish his ability to perform any work for which he is otherwise suited by education and experience. Claimant's only residual problem is that of pain and soreness when he is on his feet too long, particularly when working a 12-hour day. Pain alone, absent some impact on earning capacity, is not equivalent to industrial disability. If claimant has any industrial disability at all, it does not exceed the disability attributable to his "first" and "second" injuries. Accordingly, the Second Injury Fund of Iowa has no liability on this claim. ORDER THEREFORE, IT IS ORDERED: In file number 956038: Claimant shall take nothing. In file number 976617: Defendants Firestone Tire & Rubber Company and Cigna shall pay unto claimant nine (9) weeks of healing period benefits at the rate of four hundred ninety-two and 65/100 dollars ($492.65) per week commencing June 26, 1989. Page 8 Defendants Firestone Tire & Rubber Company and Cigna shall pay unto claimant twenty-two (22) weeks of permanent partial disability benefits at the rate of four hundred ninety-two and 65/100 dollars ($492.65) per week commencing August 28, 1989. Defendants shall have credit for all benefits voluntarily paid prior to hearing. All accrued benefits shall be paid in a lump sum together with statutory interest pursuant to Iowa Code section 85.30. Costs are assessed to defendants Firestone Tire & Rubber Company and Cigna pursuant to rule 343 IAC 4.33. Defendants Firestone Tire & Rubber Company and Cigna shall file claim activity reports upon compliance with this decision pursuant to rule 343 IAC 3.1. Signed and filed this ______ day of ____________, 1992. ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert W. Pratt Attorney at Law 6959 University Avenue Des Moines, Iowa 50311 Ms. Anne L. Clark Attorney at Law Suite 111, Terrace Center 2700 Grand Avenue Des Moines, Iowa 50312 Ms. Joanne Moeller Assistant Attorney General Tort Claims Division Hoover State Office Building Des Moines, Iowa 50319 1803; 2901; 3202 Filed July 13, 1992 DAVID RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ LARRY HOCH, Claimant, vs. File Nos. 956038 976617 BRIDGESTONE/FIRESTONE, A R B I T R A T I O N Employer, D E C I S I O N and CIGNA INSURANCE COMPANIES, Insurance Carrier, and SECOND INJURY FUND OF IOWA, Defendants. ____________________________________________________________ 1803; 3202 Claimant had impairment ratings to both legs. Where neither injury resulted in any medical restrictions whatsoever, his industrial disability, if any, did not exceed scheduled member disability, so there was no Second Injury Fund liability. 2901 Evidence and activity was cut off for failure to file a first report of injury prior to hearing. Page 1 before the iowa industrial commissioner ____________________________________________________________ : WILLIAM CONDON, : : Claimant, : : vs. : : File No. 976627 RIVER CITY TRUCKING & : EXCAVATING, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : AETNA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case Defendants did not supply the services of a court reporter, and at the beginning the hearing both parties agreed that this decision would serve as the official transcript of the case The record consists of live testimony from the claimant; Everett Rewold, vice president of River City Trucking & Excavating; Wayne Sterher; and, Arnold Barnett. Claimant offered exhibits 1-3, which were received. This matter was heard on December 19, 1991, at Davenport, Iowa. FINDINGS OF FACT The undersigned deputy has carefully considered all of the evidence and finds the following facts: Claimant, William Condon, was born on July 18, 1953. He is a high school graduate, and currently works as a construction laborer, laying sewer tile for various construction projects. In July of 1990, claimant worked for the defendant employer as a truck driver and loader. At one particular job site, the drivers were required to load their own dump trucks using a 950 wheel loader. Apparently, this piece of machinery is somewhat difficult to use. Another truck driver, Arnold Barnett, was attempting to load his truck using the wheel loader. Mr. Barnett, who testified at the hearing, indicated that while he was loading the truck, several dump trucks were waiting to be loaded. One of these trucks was being driven by the claimant. Claimant became frustrated waiting for Mr. Barnett to Page 2 finish loading his dump truck. Claimant approached Mr. Barnett and offered to show him how to run the equipment. Claimant then contacted his supervisor, Everett Rowold, explained the situation, and was told to assume the loader duties. Mr. Rowold, who also testified at the hearing, indicated that claimant was an experienced end loader operator, but that the company also allowed employees to use the end loader to load their trucks as on-the-job training. When claimant approached Mr. Barnett and told him that he (claimant) was to take over loading the trucks, Mr. Barnett refused to relinquish the controls. Claimant stated that Mr. Barnett called him an obscene name. Claimant felt intimidated, and hit Mr. Barnett. A brawl developed between the two men, and claimant's ear was injured. He reported to his supervisor, who told him to get medical treatment. Claimant visited several doctors, and incurred medical bills totaling $489.00 (Claimant's exhibit 1-3). ANALYSIS AND CONCLUSIONS OF LAW The sole issue to be addressed is whether claimant received an injury which arose out of and in the course of his employment. 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 July 24, 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. Defendants raise an affirmative defense under Iowa Code section 85.16, and argue that claimant's acts constitute a willful injury, and preclude a recovery under Iowa's Page 3 workers' compensation laws. In the case at bar, there is no dispute that claimant threw the first punch. However, there is enough evidence in the record to show that claimant was, or felt, intimidated by Mr. Barnett, and it would be contrary to the underlying concept of workers' compensation law to select one overt act out of a series of hostile verbal, psychological and/or physical acts as the one that caused a quarrel or fight. However, Iowa has statutory language which specifically addresses initial acts of aggression. Iowa Code section 85.16(1) provides: No compensation under this chapter shall be allowed for an injury caused by: 1. By the employee's willful intent to injure the employee's self or to willfully injure another. Several agency decisions are instructive. Felder v. Howard Steel Co., Thirty-fourth Biennial Rep., Iowa Indus. Comm'r 67, analyzed a similar situation on this manner: The key phrase to be interpreted is what constitutes "willful intent to injure." Larson in his treatise, supra, at 3-155 suggests the phrase contemplates "behavior of greater deliberations, gravity and culpability that the sort of thing that has sometimes qualified as aggression." According to Larson, the factors to be examined in evaluating this defense are: the seriousness of claimant's initial assault and the weighing of premeditation against impulsiveness. Larson sees consistency in decisions construing "willful intent to injure" in that "[p]rofanity, suffering, showing, rough handling, or other physical force not designed to inflict real injury" do not arise to the requisite degree of seriousness. The analysis must lie with whether claimant's actions were of such a magnitude as to be a willful intent to injure, which mandates a discussion of the seriousness of claimant's initial assault. Claimant's actions go well beyond those such as profanity, rough handling or other physical force not designed to inflict real injury. Claimant hit Mr. Barnett hard enough to draw blood, an act which was intended to injure another. Then, claimant hit Mr. Barnett again. These acts clearly show that claimant was acting as the aggressor, and was intentionally trying to hurt Mr. Barnett. And, even though the fight arose from employment conditions, the statute does not require a showing that it was employment related in order to compensate claimant for the injuries he sustained. Furthermore, Mr. Barnett testified that by the time Page 4 claimant approached him the second time, he (Barnett) was almost finished loading his truck. It was unnecessary for claimant to try and remove Barnett from the equipment, let alone use physical force in so doing. And, although claimant was told by his supervisor to operate the loader, it was never suggested that claimant hit or punch Barnett in order to carry out his instructions. The undersigned does not condone employees resorting to violence in the work place in order to make operations run more smoothly. It is particularly offensive that claimant hit Mr. Barnett while Mr. Barnett was performing duties required by the job. Although claimant is not necessarily precluded from recovery because he was the first aggressor, the legislature has specifically addressed his actions as stated in Iowa Code section 85.16(1). Even though it was shown that the fight arose solely from employment conditions on the job site, claimant's aggressiveness takes him out of his employment duties, and constitutes a willful intent to injure another. As a result, any injuries sustained by claimant are not covered by workers' compensation laws. order THEREFORE, it is ordered: That claimant take nothing from these proceedings. That each party shall pay their own costs in pursuing this claim. Signed and filed this ____ day of December, 1991. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Page 5 Copies To: Mr Douglas C Scovil Attorney at Law 2009 9th Ave Rock Island IL 61201 Ms Carole J Anderson Attorney at Law 600 Davenport Bank Bldg Davenport IA 52801 5-1100 Filed December 31, 1991 Patricia J. Lantz before the iowa industrial commissioner ____________________________________________________________ : WILLIAM CONDON, : : Claimant, : : vs. : : File No. 976627 RIVER CITY TRUCKING & : EXCAVATING, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : AETNA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1100 Claimant was the initial aggressor in a fist fight which developed on a construction job site. Claimant threw two punches, the first of which drew blood. He had approached the company employee on two occasions. Following Felder v. Howard Steel Co., Thirty-fourth Biennial Rep., Iowa Indus. Comm'r 67, claimant's actions were analyzed focusing on the seriousness and premeditation of the aggression. Held: Claimant's actions were serious, and went well beyond accepted acts of profane language and shoving or rough handling. His actions precluded a recovery (defendants relied on Iowa Code section 85.16(1) as a defense) and were found to constitute a willful intent to injure another.