BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : MARILYN BERGERT, : : Claimant, : : File Nos. 903793 vs. : 979289 : WILSON FOODS, : : A R B I T R A T I O N Employer, : Self-Insured, : D E C I S I O N Defendant. : : ___________________________________________________________ STATEMENT OF THE CASE This case came on for hearing on July 21, 1992, at Storm Lake, Iowa. This is a proceeding in arbitration wherein claimant seeks compensation for permanent partial disability benefits as a result alleged injuries occurring on December 13, 1988 and January 7, 1991. The record in the proceedings consist of the testimony of the claimant, and Pat Luse, D.C.; and, joint exhibits 1 through 30. The parties agreed to the claimant amending her petition to insert in file number 979289 the injury date of January 7, 1991 in lieu of December 15, 1990. FINDINGS OF FACT Claimant is a 48-year-old high school graduate who testified that she had no medical problems including her hands, arms and shoulders prior to beginning work for Wilson Foods in August 1979. Claimant described in detail the various jobs she held at Wilson Foods since 1979. These jobs included but were not necessarily limited to pace boning, the weiner room, the package department, sausage, belly department, cut floor, the kill floor, stylexing, palletizing, tenderloin department, wrapping and boxing department. Claimant indicated that in these jobs she always stood and that these were fast moving production line type jobs. Claimant indicated that if a particular job set out for eight hours could be done in six hours then they would be able to go home two hours early. Claimant indicated the amount of products she must handle at a particular job per hour and the weights that were involved in certain jobs. The weights varied up to 65 pounds. Claimant indicated that for four or five years she was on the 800 list or gang which meant that she would be sent all over the plant and did not own a particular job. She would go where the company needed the work done. Claimant indicated that because of her small hands and Page 2 features it was harder for her to do the work and hold certain products that was required in her job. The undersigned did notice that claimant does have small hands and features. Claimant indicated her first symptoms appeared in the early 1980's and involved her left elbow and that in the last five years from 1987 to 1992, her elbow developed more pain through her work. She said it was better after her surgery but then became worse again. Claimant emphasized there was no single trauma that caused her problems. Claimant's attention was called to joint exhibit 1 in which Thomas P. Ferlic, M.D., indicated claimant was having a problem with her left elbow and right elbow on July 5, 1989. She was also referred to joint exhibit 24 in which Mark Wheeler, M.D., noted on February 2, 1989, claimant's left elbow and wrist problem. Claimant contends that currently her elbows pop at times, her arms swell and she cannot do certain things because of her arms and wrists. She indicated she cannot talk on the phone with her hands up, cannot play tennis, and loses concentration at work. She said she has crepitation of the left elbow. Claimant said that her hands began sleeping and she couldn't grip things. She first noticed this in 1990 and her condition got so bad in both of her hands that she had left wrist surgery in January 1991. Claimant said around this time she was working in the stylexing department which required using a hook to grab and reach for a ham with the left hand and then use the right hand with a electric knife to cut the ham and roll it over, etc. She indicated the hams weigh from 30 to 65 pounds. Claimant then had right wrist surgery in February 1991. She indicated that in May of 1991 when Dr. Ferlic issued a disability rating, he did not perform any tests nor any sensory testing. He gave her a 5 percent permanent partial impairment rating on each hand. Claimant said she then returned to work in May of 1991 at the stylexing job. She stated her hands again started to swell and would fall asleep at night and she would drop things unexpectedly. Claimant indicated she does not feel her wrists are any better now after the surgery and that they hurt in her palm area and on the top side of the wrist. She said if she squeezes her hands it feel like electricity going through them. Claimant testified when she was young she played a lot of tennis but quit after knee surgery in 1976 or 1977. Claimant did say that she played a little tennis after her knee injury but hasn't played since her wrist surgery. Claimant acknowledged she has not seen Dr. Ferlic or any other orthopedic surgeon since May of 1991 and the only doctor she has seen for her problems involving her wrists or hands was to be evaluated by Dr. Luse in February of 1992. Claimant testified she has not missed many days due to Page 3 her alleged injuries and emphasized that the reason she is still working at Wilson is that she has bills to play, children in college and there is nothing else she can do. Pat Luse, D.C., testified in person. He went into detail as to the nature of his evaluation of claimant, the instruments he used. In fact, he brought into the court room some of the particular measuring instruments he used. Dr. Luse did an evaluation around August 2, 1990, and opined at that time an impairment to claimant's right wrist of 13 percent and left wrist of 9 percent. These were prior to claimant's surgeries. On February 18, 1992, the doctor said he again evaluated claimant's left elbow and both wrists and explained the tests and the guides he used in arriving at his 15 percent permanent impairment to her left and right upper extremity. The doctor indicated that claimant's problems were the result of repetitive nature of her work at Wilson Foods and that her problems were not caused by a single trauma. The doctor acknowledged that his impairment ratings were higher in 1992 after claimant had her surgery than before. He also indicated that the newer guides gave a greater rating than the older guides he used in 1990. Dr. Luse acknowledged there was an increase in claimant's grip strength after surgery even though his impairment rating was higher after the surgery. Dr. Luse said that his first rating in 1990 was lower than it should be so he is not necessarily concluding that claimant's impairment increased after surgery even though the actual ratings he gave are higher after claimant's surgery. Dr. Luse also agreed that precise mathematics is not the sole determining factor in using the guides but that some judgment is involved. He also did not believe Dr. Ferlic used the guides or mathematical calculations when he arrived at his 5 percent impairment rating. Joint exhibit 16, page 4, indicates that the first note concerning pain on claimant's right upper extremity was November 23, 1988, which involved the right hand and finger. Shortly thereafter, claimant was complaining of a numb Left hand and the pain in her elbow in December of 1988, and on January 18, 1989, the doctor's notes indicate pain left elbow, has carpal tunnel. In June of 1989, she was complaining as to both elbows (Joint Exhibit 16, page 5). The notes reflect claimant's January and February 1991 surgery to the left and right hand respectively. It does not appear that claimant lost any time from work in 1988 and 1989 or 1990. In looking at various exhibits in which claimant went in for an appointment when she was complaining of pain and a particular upper extremity, it appears on the date of the appointment the doctor returned her to work that day or the next day (Jt. Exs. 1, 2 and 3). In fact, on joint exhibit 3, on December 5, 1990, the doctor returned claimant to regular duty until her surgery that was to be scheduled in January of 1991. In none of those exhibits are there are any restrictions or Page 4 work limitations set out. Joint exhibit 4 is the operative report showing claimant's January 7, 1991 carpal tunnel syndrome surgery on the left. Also, a lateral antebranchium cutaneous nerve entrapment at the elbow (Jt. Ex. 4). Joint exhibit 6 is claimant's operative report showing claimant's February 12, 1991 carpal tunnel syndrome surgery on the right. These were both performed by Ferlic. There is no dispute in this case as to healing period. On May 7, 1991, Dr. Ferlic indicated in joint exhibit 13 that claimant could return to work. It is obvious the parties agreed the healing period must have ended on May 20, 1991, as they agreed that any benefits that would be awarded would begin May 21, 1991. On July 5, 1991, claimant was complaining about tenderness over both elbows but Dr. Ferlic could not determine the etiology of her discomfort. He advised her to return in one week and claimant did on July 13, 1991, at which time it doesn't seem the doctor could determine anything further but offered claimant corticosteroid injections but claimant did not want one. He indicated claimant could return to work. Joint exhibit 14, page 5, reflects a May 7, 1991 note of Dr. Ferlic in which he indicated claimant returned today and was doing essentially well. She was having a little more problem with her left than her right but she told them that she was very satisfied with the left elbow release and she felt like it had benefited her quite well. He concluded that he would rate the patient for disability. The undersigned believes the doctor meant impairment. Joint exhibit 15 is a May 8, 1991 letter from Dr. Ferlic in which he wrote Keith O. Garner, M.D., that he opined claimant had reached maximum medical healing and that the patient has a 5 percent disability of each hand separately on the basis of her carpal tunnel release. He indicated he did not rate her for her left lateral antibronchial cutaneous nerve release as he did not believe that would become a functional or clinical problem. Joint exhibit 24 reflects a report by Dr. Wheeler in which claimant visited with him on February 2, 1989. At that time, his examination showed that claimant had marked tenderness over the medial epicondyle, slightly over the ulnar nerve also. He indicated that he related claimant's medial epicondylitis to her work but that she felt better when she was off work for a week's vacation. He indicated her work aggravates her condition. He indicated she could return to work after being off for two weeks and return to him if necessary. At the time of her visit she was complaining of her left elbow and hand problems. Joint exhibit 25 is an orthopedic evaluation by Joshua Kimelman, D.O., dated January 24, 1990, at which time pursuant to his examination he had the impression that claimant had chronic epicondylitis bilaterally by history. It seems that he was more impressed or put more attention on claimant's right knee and agreed with Dr. Wheeler that she had a 10 percent permanency to that right knee. As regards claimant's other diffuse musculoskeletal complaints, he at that time saw no evidence of permanency or dysfunction and Page 5 he had no further recommendation for diagnostic tests or treatment. Joint exhibit 28 is Dr. Luse's August 2, 1990 evaluation in which he opined a total impairment to claimant's left wrist of 9 percent, right wrist 13 percent, right elbow 5 percent, and right knee 10 percent. In that report, the doctor referred to October 15, 1981 and April 27, 1987 injuries in which claimant alleged she injured her knee by slipping on the grading in 1981 and incurred repetitive motion trauma to both arms in 1987. In Dr. Luse's report of February 18, 1992, he opined in summary on page 6 of joint exhibit 26 that claimant had a total impairment of her right upper extremity of 15 percent and a total impairment of her left upper extremity of a net 15 percent. In the doctor's oral testimony at the hearing he acknowledged when he opined a 13 and 9 percent impairment to claimant's right and left wrist respectively in August 1990. When he later issued his impairments in 1992, he indicated that he was not only updating them and using a more updated impairment guide but that he was conservative in his prior rating. In his 1992 report, he refers to the upper extremities. It is also obvious that he was addressing claimant's left elbow problem in which he indicated that claimant had popping of the left elbow with movement. He also in his 1992 report refers to claimant's right medium nerve and left medium nerve due to entrapment neuropathy and crepitation of the left elbow. The undersigned believes that Dr. Luse is taking the total upper extremity impairment which includes the wrist and the elbow in arriving at his impairments and that is why he is referring to the upper extremity and not the wrist. There seems to be confusion taking Dr. Luse's February 18, 1992 report as a whole. He does not address anything as to claimant having a right elbow problem and yet he uses the right upper extremity terminology notwithstanding the fact that it looks like he sees only a right wrist problem. Claimant contends that she incurred an injury to her left hand and elbow on December 13, 1988. There is insufficient evidence in the record to indicate that the claimant did in fact incur a compensable injury on December 13, 1988. It appears from the record that claimant was having some problems and that an ultimate cumulative injury was in its earlier stages but had not come into fruition under the law. The undersigned therefore finds that claimant has failed in her burden of proof to prove that she incurred a cumulative injury on December 13, 1988, that arose out of and in the course of her employment and further failed to prove that there is any causal connection between that alleged injury and the impairments or disability from which claimant alleges she currently has. As to claimant's January 7, 1991 injury which she originally pled as a December 15, 1990 injury, the undersigned finds that the greater weight of medical Page 6 testimony and evidence shows that claimant did incur a cumulative injury to her right hand and left hand simultaneously. It appears that claimant first missed work on January 7, 1991, which is the date she had her carpal tunnel syndrome surgery on her left and also a lateral antibroncium cutaneous nerve entrapment at the elbow (Jt. Ex. 4). Then, on February 12, 1991, she had her second surgery which involved a carpal tunnel syndrome surgery on her right. The evidence is clear that claimant was developing this condition cumulatively over a period of time. Claimant's leaving work for her surgery established the injury date for this simultaneous bilateral carpal tunnel. It is not unusual that a person in such a situation will have surgeries several months apart so that one will not be completely incapacitated. It is a judgment call as to whether it best to have both of them at the same time or sometime apart. These two surgeries were approximately five weeks apart. Claimant worked in a meat packing industry, which industry is known for the repetitive type of work. The evidence is clear that claimant's job with defendant involved continuous repetitive work in which a requirement to keep up with others and reach certain quotas was evident. Claimant also complained of elbow injuries. The evidence shows that claimant did incur a cumulative injury in her left elbow area and that she had surgery as to her nerve entrapment at the left elbow. Dr. Ferlic, who performed the surgery, opined a 5 percent permanent impairment to claimant's hands as a result of carpal tunnel surgeries but indicated that he did not think there would be any functional impairment as to her elbow injury when he issued a report on May 8, 1991 (Jt. Ex. 15). It appears that as time went by and claimant was returned to work Dr. Ferlic's conclusion as to the elbow did not come true. The undersigned believes that claimant did incur an impairment to her left elbow area which has not been addressed later by Dr. Ferlic. Dr. Luse did address claimant's left elbow impairment as well as addressing claimant's left and right carpal tunnel problems. The undersigned believes that Dr. Ferlic, the orthopedic surgeon who performed surgery on claimant is best able to opine claimant's impairment due to the fact that he was not only a surgeon but treated claimant. Dr. Luse strictly saw claimant as an evaluator and he is also a chiropractor and is not able to perform surgery and it would be outside of his expertise. The undersigned does believe that since Dr. Luse did address claimant's elbow area, there is some impairment because of claimant's left elbow problem. The record shows that Dr. Ferlic did not or possibly was not given an opportunity to do any further updating concerning claimant's left elbow after his May 1990 report. Likewise, the undersigned does not believe that Dr. Luse's 15 percent impairment of the left and right extremity is accurate, particularly since they are identical impairments and yet it Page 7 is obvious from Dr. Luse's report that there is more wrong with the claimant's left upper extremity than the right due to the epicondylitis condition of the left elbow. The undersigned finds that claimant did incur a carpal tunnel syndrome condition on the left and right and epicondylitis on claimant's left elbow which arose out of and in the course of her employment on January 7, 1991, and that this work injury caused claimant to have her carpal tunnel surgery on the left and nerve entrapment surgery at the left elbow on January 7, 1991, and the right carpal tunnel surgery on February 12, 1991, and that this work injury and surgery caused claimant to incur a 5 percent impairment to her right wrist and an impairment to her left hand and left elbow area resulting in a total impairment to claimant's left arm (upper extremity) of 10 percent. The undersigned finds that claimant's injuries are a simultaneous bilateral injury occurring on January 7, 1990, and that said injuries shall be compensation under 85.34(2)(s), and that any weekly payments shall begin May 21, 1991. Taking 5 percent permanent impairment to claimant's right hand equals 5 percent to her upper extremity which converts to 3 percent of the body as a whole. Claimant's 10 percent permanent partial impairment to her upper extremity converts to 6 percent body as a whole. Converting the 6 percent and 3 percent under the provisions of 85.34(2)(s) and the charts of the AMA Guides to the Evaluation of Permanent Impairment, (3rd ed.) results in claimant having a 9 percent body as a whole injury as a result of her cumulative January 7, 1991 work injury. Nine times 500 weeks equals 45 weeks. Claimant is entitled to 45 weeks of benefits payable at the rate of $259.55. CONCLUSIONS OF LAW Claimant has the burden of proving by a preponderance of the evidence that she received injuries on December 13, 1988 and January 7, 1991, which arose out of and in the course of her 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 claimant has the burden of proving by a preponderance of the evidence that the injuries of December 13, 1988 and January 7, 1991, is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal Page 8 connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). It is not necessary that claimant prove her disability results from a sudden unexpected traumatic event. It is sufficient to show that a 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 a gradual injury case is the time when pain prevents the employee from continuing to work. In McKeever the injury date coincides with the time claimant was finally compelled to give up his job. This date was then utilized in determining rate and the timeliness of the claimant's claim under Iowa Code section 85.26 and notice under Iowa Code section 85.23. Iowa Code section 85.34(2)(2) provides, in part: "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." Workers' compensation benefits for permanent partial disability of two members caused by a single accident is a scheduled benefit under Iowa Code section 85.34(2)(s) and that the degree of impairment caused by a partial loss must be computed on the basis of functional, rather than industrial disability. Simbro v. DeLong's Sportswear, 332 N.W.2d 886 (1983). Page 9 As to claimant's alleged December 13, 1988 injury, it is concluded that: Claimant has failed to prove that she incurred an injury that arose out of and in the course of her employment and that such work injury caused claimant any permanent partial impairment or disability. As to claimant's January 7, 1991 injury, it is further concluded that: Claimant incurred a cumulative simultaneous bilateral carpal tunnel injury and an injury to her left elbow that arose out of and in the course of claimant's employment on January 7, 1991 and that said injury caused claimant to incur surgery on January 7, 1991 and February 12, 1991, and that these surgeries and claimant's injury resulted in claimant incurring an impairment to her left upper extremity which included an impairment to her left hand, left elbow and her right hand. Claimant incurred a 9 percent body as a whole injury under the provisions of 85.34(2)(s) entitling her to 45 weeks of benefits at the rate of $259.55. ORDER THEREFORE, it is ordered: As to claimant's December 13, 1988 alleged injury, file number 903793, claimant takes nothing from that proceeding. As to claimant's January 7, 1991 cumulative injury represented by file number 979289, it ordered that: Defendant shall pay unto claimant forty-five (45) weeks of permanent partial disability benefits at the rate of two hundred fifty-nine and 55/100 dollars ($259.55), beginning May 21, 1991. Defendant shall pay the accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. The parties stipulated that claimant has been paid thirty (30) weeks of permanent partial disability benefits and all her healing period benefits at the rate of two hundred fifty-four and 02/100 dollars ($254.02). That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall pay the costs of this action, pursuant to rule 343 IAC 4.33. That defendants shall file a first report of injury for the January 7, 1991 injury (file number 979289). That defendants shall file an activity report upon payment of this award as required by this agency, pursuant to rule 343 IAC 3.1. Page 10 Signed and filed this ____ day of August, 1992. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Harry H Smith Mr Dennis McElwain Attorneys at Law 632-640 Badgerow Bldg P O Box 1194 Sioux City IA 51102 Mr David L Sayre Attorney at Law 223 Pine St P O Box 535 Cherokee IA 51012 5-1100; 5-1108; 5-1808 Filed August 20, 1992 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : MARILYN BERGERT, : : Claimant, : : File Nos. 903793 vs. : 979289 : WILSON FOODS, : : A R B I T R A T I O N Employer, : Self-Insured, : D E C I S I O N Defendant. : : ___________________________________________________________ 5-1100; 5-1108; 5-1808 Found claimant incurred a simultaneous cumulative bilateral injury on January 7, 1991, that arose out of and in the course of claimant's employment and caused claimant to incur two surgeries on January 7, 1991 and February 12, 1991, respectively, all of which resulted in claimant being impaired and entitled to 45 weeks of permanent partial disability benefits under 85.34(2)(s). File No. 979289. Found no December 13, 1988 injury that arose out of and in the course of claimant's employment and no causal connection. Claimant took nothing from the case. File No. 903793. Page 1 before the iowa industrial commissioner ____________________________________________________________ : ROBERT J. WOLFE, : : Claimant, : File No. 979295 : vs. : A R B I T R A T I O N : ORAL B LABORATORIES, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ statement of the case Claimant, Robert Wolfe, seeks benefits under the Iowa Workers' Compensation Act upon his petition in arbitration against defendant self-insured employer Oral B Laboratories based upon allegations of a work injury to the upper extremities on March 1, 1991. This cause came on for hearing in Cedar Rapids, Iowa on January 4, 1993. Testimony was received from claimant, Marty Holbrook, Al Morris and Marcy Kuhl. Exhibits received into evidence include joint exhibits 1-7, defendant's exhibits A and C-K, and claimant's exhibits 1-8 and 12-18. Defendant lodged objections to claimant's 9, 10 and 11. Ruling was reserved. Those objections are overruled as to exhibits 9 and 11, each of which are hereby received into evidence. Defendant's objection to exhibit 10 is sustained. On December 30, 1992, claimant filed an application for extension of time in which to submit evidence. The application was considered and overruled at hearing. issues The parties have stipulated to the existence of an employment relationship on March 1, 1991, to the rate of compensation ($383.45 per week) and that defendant is not entitled to credit for benefits voluntarily made prior to hearing. Claimant waived his allegation of occupational disease under Iowa Code chapter 85A. Issues presented for resolution include: 1. Whether claimant sustained injury arising out of and in the course of his employment on March 1, 1991; 2. Whether the injury caused either temporary or permanent disability; 3. The extent of temporary total disability or healing period; 4. The extent and commencement date of permanent Page 2 partial disability (it being stipulated that if a work injury caused permanent disability, it is a scheduled member disability to the upper extremities); 5. Entitlement to medical benefits; and, 6. Entitlement to penalty benefits under Iowa Code section 86.13. With regard to medical benefits, defendant stipulated that the fees charged for medical services and supplies are fair and reasonable and incurred for reasonable and necessary treatment. Causal connection to a work injury was disputed, as was authorization of those expenses by defendant. The authorization defense was ruled invalid at hearing, as defendant waived the right to control the course of medical treatment by denying liability on the claim. findings of fact The undersigned deputy industrial commissioner finds: Robert "Jack" Wolfe has been employed by Oral B Laboratories since 1977. Defendant manufactures toothbrushes. Claimant has held a number of jobs, but was employed as a mold technician for approximately nine years prior to the claimed work injury. The job of mold technician involves setting up, adjusting, and overseeing the operation of a number of machines which manufacture plastic toothbrush handles. From time to time, new molds must be placed in the machines, which involves loosening and tightening nuts with wrenches, flipping switches, and removing and replacing water lines. The latter responsibility at one time required removing and replacing numerous clamps, but now the machines are equipped with "quick-connect" water lines. The position also required a certain amount of lifting. For approximately four years prior to March 1, 1991, claimant had bilateral symptoms of pain in the arms and numbness in his fingers. On March 1, his symptoms worsened and he was unable to flex the terminal digits of both his right thumb and index finger. Claimant was first seen on March 11 by the company doctor, Dr. Sun. His associate, Erich Streib, M.D., diagnosed right median nerve palsy and right elbow pain and swelling which was "most likely" due to injury or sickness arising out of employment. Claimant testified that he gave Dr. Streib a detailed history, including a description of his job responsibilities. Dr. Streib referred claimant to Walter J. Hales, M.D., who performed right sided surgery on March 26, 1991. Pre- and post operative diagnoses were of proximal compression neuropathy of the median nerve (pronator syndrome), compression somewhere above the innervation of the pronator teres muscle of the median nerve. The procedure was described as a release of the median nerve from the proximal Page 3 arm to the distal forearm. Based on claimant's verbal history, Dr. Hales rendered a "strong opinion" on June 20, 1991 that claimant's problem was work related. Dr. Hales had made arrangements to actually examine the work place, but then decided to leave Iowa in favor of practice in the state of Oregon and was unable to attend. He did not feel it was necessary to do so based on the history given him by claimant. Claimant's care was given over to William W. Eversmann, Jr., M.D., of the same office. Dr. Eversmann continued treatment and eventually conducted an on-site view of the mold technician job on August 3, 1992 at the Oral B plant in Iowa City. Dr. Eversmann's chart notes of August 12 described the duties in some detail and concluded: In some [sic] total then, based on the information that I was provided on August 3, 1992, I cannot in fact identify any pronation risk which would contribute to a pronator syndrome such as was handled in the case of Robert J. Wolfe. I further have reviewed the clinic note of March 25, 1991 of Dr. Hales. Dr. Hales indicates that he worked as a mechanic. He noted that there was a lot of pulling and tugging on wrenches and other tools in his repair work on the machines. I saw little evidence of this activity. Based on the information supplied by Dr. Hales I would suggest that I cannot confirm his findings of a work related injury. Having viewed the exact job rather than the patient's description of it as Dr. Hales had made a decision with, I cannot confirm the origin as being work related based on my viewing in the work place. (Joint Exhibit 1, Pages 11-12). Dr. Eversmann's chart notes of October 6, 1992, specifically stated that: "I do not feel that he has a work-related injury, certainly not one that provided him wit [sic] a pronator syndrome for which he has been treated." Claimant, however, insists that although Dr. Eversmann accurately described the mold technician job as it existed in 1992, the job had been substantially changed through plant modernization since the injury date asserted in 1991. He is supported in this allegation by fellow employee Marty Holbrook. However, Al Morris, first shift supervisor and molding process engineer (supervisor of mold technicians) testified that modernization occurred earlier, and that the job viewed by Dr. Eversmann was "exactly the same" as in March 1991, and, for that matter, in March 1990, 1989 or even 1988. Mr. Morris pointed out that the machines which required loosening and tightening nuts to replace molding dies were replaced in 1986 (this being one of the major pronation/supination duties described by claimant). Given his familiarity with the job, access to plant records, lack of interest in this litigation and general demeanor, the testimony of Al Morris is found more persuasive than that of Page 4 claimant and Marty Holbrook with respect to the timing of plant modernization. For that reason, the opinion of Dr. Eversmann is found more persuasive than those of Dr. Hales and Dr. Streib with respect to causation, since Dr. Eversmann actually saw claimant's job as it is performed, while Dr. Hales and Dr. Streib based opinions on claimant's verbal description. The opinion of Dr. Ware as to causation is found irrelevant, since he was treating claimant for an unrelated allergic problem. His opinion as to causation related to that problem, rather than the median nerve symptoms under consideration here. 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 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). This requirement is satisfied by showing a causal relationship between the employment and the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986). 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). Dr. Streib and Dr. Hales have opined that a causal nexus exists between the employment and claimant's disability. Dr. Hales was a treating physician. Both opinions are based on claimant's verbal description of his job. Dr. Eversmann also is a treating physician, although he did not perform surgery. He took over care from Dr. Hales when the latter physician moved out of state. Unlike Drs. Streib and Hales, Dr. Eversmann had an opportunity to view claimant's actual job in detail. His opinion that the job did not cause claimant's disability is more persuasive than the opinions of Drs. Hales and Streib. Accordingly, it must be concluded that claimant has Page 5 failed to meet his burden of proof in establishing that he sustained an injury arising out of and in the course of employment. Other issues are thereby rendered moot. order THEREFORE, IT IS ORDERED: Claimant shall take nothing from this proceeding. Costs are assessed to defendant pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of January, 1993. ________________________________ DAVID R. RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Matthew J Petrzelka Attorney at Law 115 3rd Street SE Suite 1200 Cedar Rapids Iowa 52401 Mr John M Bickel Attorney at Law 500 Firstar Bank Building PO Box 2107 Cedar Rapids Iowa 52406 1108.50 Filed January 19, 1993 DAVID R. RASEY before the iowa industrial commissioner ____________________________________________________________ : ROBERT J. WOLFE, : : Claimant, : File No. 979295 : vs. : A R B I T R A T I O N : ORAL B LABORATORIES, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 1108.50 Claimant underwent a median nerve release after he developed upper extremity symptoms which he alleged were caused by pronation/supination activities at work. Based upon claimant's description of his job, the treating surgeon found that a causal nexus existed. When the treating surgeon moved out of state, the physician who continued claimant's care actually visited the plant and viewed claimant's exact job. Based on this view, that physician concluded that the job did not cause the median nerve symptoms. The second opinion was found move persuasive. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ HELEN H. DAVIS, Claimant, vs. File No. 979357 ROSE HAVEN NURSING HOME, A P P E A L Employer, D E C I S I O N and ALLIED MUTUAL INSURANCE CO., Insurance Carrier, Defendants. ____________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed March 11, 1993 is affirmed and is adopted as the final agency action in this case. Defendants shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of July, 1993. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Thomas J. Currie Attorney at Law 3401 Williams Blvd SW P O Box 998 Cedar Rapids, Iowa 52406-0998 Mr. David L. Jenkins Attorney at Law 801 Grand Avenue Suite 3700 Des Moines, Iowa 50309-2727 2206; 1108; 1803; 3700 Filed July 26, 1993 BYRON K. ORTON BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ HELEN H. DAVIS, Claimant, vs. File No. 979357 ROSE HAVEN NURSING HOME, A P P E A L Employer, D E C I S I O N and ALLIED MUTUAL INSURANCE CO., Insurance Carrier, Defendants. ____________________________________________________________ 2206; 1108 Minor work incidents were held to have "lighted up" or aggravated a calcified, necrotic intradural tumor, later surgically removed. 1803 Although no medical restrictions were imposed, industrial disability of 15 percent was awarded, based on history of back surgery, unoperated bulging or herniated (but, now asymptomatic) disc and failure to provide continued employment. 3700 Claimant was discharged, allegedly for job misconduct. Job Service determination to the contrary was given preclusive effect. Page 1 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : HELEN H. DAVIS, : : Claimant, : : vs. : : File No. 979357 ROSE HAVEN NURSING HOME, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : ALLIED MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE Claimant Helen Davis seeks benefits under the Iowa Workers' Compensation Act upon her petition in arbitration against defendant employer Rose Haven Nursing Home and its insurance carrier, Allied Mutual Insurance Company. Claimant asserts that she sustained a work injury to the back on March 13, 1991; in particular, she alleges that two incidents at work aggravated or "lit up" a previously unknown condition, a calcified tumor near the spinal cord. This cause came on for hearing in Cedar Rapids, Iowa on January 6, 1993. The following exhibits were received into evidence: joint exhibits 1-6, claimant's exhibits 1-17 and defendants' exhibits A-F. The following witnesses testified at hearing: claimant, Kimberly Holst, Alice Prince, Sharon Fry and David Yearian. ISSUES The parties have stipulated to the existence of an employment relationship between claimant and Rose Haven Nursing Home on March 13, 1991. They have also stipulated to the proper rate of compensation ($199.14 per week). Issues presented for resolution include: 1. Whether claimant sustained injury arising out of and in the course of her employment on March 13, 1991; 2. Whether the injury caused either temporary or permanent disabilities; 3. The extent of each, if any; 4. Entitlement to medical benefits. Page 2 With respect to medical benefits, it was stipulated that the providers of medical services would testify in the absence of contrary evidence that fees were reasonable and incurred for reasonable and necessary treatment. Causal connection to the work injury was disputed. Defendants also disputed whether those expenses were authorized, but this defense was ruled invalid at hearing, as defendants forfeited the right to control the course of medical treatment by denying liability on the claim. FINDINGS OF FACT The undersigned deputy industrial commissioner finds: Helen Davis, 47 years of age at hearing, is a 1963 high school graduate. She took a course in practical nursing at the University of Iowa in 1966 and became licensed as a LPN. She is currently taking courses in a registered nursing program and anticipates receiving her Associates of Arts Degree in Spring, 1993. Claimant worked as a nurse's aide from 1963 to 1966, on a part time basis while in school and on a full time basis otherwise. Thereafter, she has continued working as an LPN in the health care field with similar duties for a variety of employers through the present date. She now has largely paper work duties for a home health care supplier. Ms. Davis was employed by Rose Haven as a staff nurse from early 1990 through April 19, 1991, when she was discharged by Nursing Home Administrator, David Yearian. Prior to March 13, 1991, claimant had no history of back problems and had never sought medical care with respect to her back. On that date, she was working the p.m. shift, and found it necessary to deliver two medical cardexes weighing approximately seven pounds to Director of Nurses Alice Prince, who was supervising that shift. Claimant, five feet ten inches tall, had to lean slightly over a wall 39 inches high and four inches thick to place the cardex on the desk, roughly two feet away. The desk was of roughly standard height, approximately eight inches below the opening in the adjacent wall. Upon doing so, claimant experienced a sharp "grabbing" sensation in the lower back with discomfort radiating to the legs bilaterally. She described this "grabbing" as similar to a sharp muscle cramp. Although Ms. Davis described the incident as somewhat dramatic in nature (even that she was unable to move for approximately two minutes), Alice Prince noticed only that claimant grimaced and said "ouch," which did not particularly concern or impress her that anything was seriously wrong. However, Prince also claimed that it was unnecessary for claimant to bend (perhaps, except slightly) to place the cardexes on the desk. Common observation reveals that for a five foot ten inch individual of normal proportions to place a seven pound object held in both hands on a 31 inch surface at a distance of two feet requires bending nearly 45 Page 3 degrees. The finder of fact does not accept that claimant was able to pass over the cardexes without bending. Claimant was able to walk off the pain. However, she suffered a recurrence later that same shift when she was helping a resident up from her chair after dinner. Ms. Davis testified that her back has been sore ever since. In any event, she was able to finish her shift and was not scheduled to work the next day. Although it is a little unclear, judging from claimant's recorded statement of April 12, 1991 (to an insurance adjuster), she may have had perhaps four more recurrences by the following day. On March 15, claimant contacted her family physician, Janet Gilbert, M.D. This contact was by telephone; Dr. Gilbert charted (erroneously, as "2"-15-91) that low back pain had started Wednesday at work (February 13 and March 13 both fell on a Wednesday) and prescribed Ibuprofen and Flexeril by phone. Claimant was taken off work. Defendants suggest that this note reflects an injury dating back to February 15, almost a month before the work incidents complained of. In a letter dated June 8, 1992, Dr. Gilbert herself recognized that her chart note was in error and should have been dated March 15. That note itself goes on to state that if claimant was not better, she should call for an appointment on Monday, March 18. This notation would, of course, make no sense whatsoever if were recorded on February 15. On March 15, claimant's telephone complaint to Dr. Gilbert was of low back pain. She was first seen by Dr. Gilbert on March 25, at which time she was described as "much much better but still having some pain." Dr. Gilbert noted right sided pain in the greater sciatic notch and very mildly positive straight leg raising on that side. Assessment was of sacroiliac pain from inflammation. Claimant was returned to work on a part time basis the same day with restrictions. The return to work did not go well. Claimant saw Dr. Gilbert again on March 28 complaining of increased pain while sitting and was referred to an orthopedic physician, Lawrence C. Strathman, M.D. Dr. Strathman first saw claimant on March 28 with complaints of pain localized to the low back. Impression was of acute low back strain. Dr. Strathman charted that claimant gave history of her legs going weak during the nurses' station incident, this being consistent with claimant's later testimony. Chart notes of April 2 indicate that claimant apparently phoned in complaining that she was unable to work due to pain and burning in the back. Dr. Strathman took her off work until the next appointment, April 5. Claimant still complained of soreness, especially if sitting or standing for a long time. The discomfort was low over the sacrum, more to the left side. Claimant had discomfort Page 4 leaning to the left and extending. However, straight leg raising was negative. Claimant was returned to work with restrictions. Ms. Davis continued to work until April 19. The events of that night precipitated her discharge. Claimant felt put upon by working with what she considered too few staff members. Alice Prince did not feel the staff size was unusual and reported that claimant was angry on that night. Sharon Fry, activity director, believed that claimant was unreasonably prickly and upset, although claimant reported that Fry was actually the one out of sorts. Fry wrote out a letter to the administrator on April 22 regarding these events. The letter was hand written. Someone, presumably Administrator David Yearian or someone at his direction, reduced this letter to a typed document. Fry had ended her letter with the following paragraph: I found the evening of 4-19-91 to be a relatively calm and quiet night. There were no major disruptions or problems while I was there. It was a routine shift. The individual who typed Fry's letter altered that paragraph as follows: I found the evening of 4-19-91 to be a relatively calm and quiet night with the exception of the disruption caused by Helen Davis. Sharon Fry signed both letters. The "correction" of the final paragraph is indicative of a conscious effort to manufacture evidence by someone on behalf of defendant Rose Haven. In any event, claimant was discharged. Although defendants would have us believe this discharge was for job misconduct, this is an issue that has already been litigated and decided adversely. A representative of Job Service of Iowa (a sister agency to this) determined in a decision dated August 29, 1991, that Rose Haven failed to furnish sufficient evidence to establish misconduct for purposes of unemployment compensation eligibility. This adjudication is entitled to preclusive effect. Board of Supervisors, Carroll County v. Chicago & North Western Transp. Co., 260 N.W.2d 813 (Iowa 1977). In May, Dr. Strathman ordered a computerized tomography scan which disclosed a probable herniated disc at L5-S1. By May 9, claimant found her symptoms "quite extreme" and magnetic resonance imaging studies were ordered. The MRI discovered a lesion in the region of the conus medullaris (the cone shaped lower end of the spinal cord at the level of the upper lumbar vertebrae). Then, a myelogram agreed. By this time, claimant's severe symptoms were left sided, and extending to the left leg. Dr. Chad Abernathey noted on July 17 that he did not believe the right sided disc defect was contributing significantly to Page 5 symptomatology. He recommended a surgical exploration of L1-2 lesion, but defendants refused treatment in the belief that the lesion and its symptomatology were not work related. On February 3, 1992, Dr. Abernathey wrote that he did not feel that the lesion was secondary to the work related injury, but that the small disc bulge might be. However, he suggested that the treating surgeon would have the best feel for whether or not the lesion was the cause of symptomatology and whether or not it was trauma related. At the University of Iowa Hospitals and Clinics, claimant underwent surgical removal of the lesion or tumor on June 12, 1991. Attending staff surgeon was Patrick W. Hitchon, M.D.; resident surgeon was Richard K. Osenbach, M.D. Apparently both physicians participated in the procedure, although claimant understood that Dr. Osenbach was the primary surgeon. The procedure was defined as T12-L2 laminectomy, resection of intradural extramedullary tumor. Fortunately, the operation was successful. Dr. Hitchon reported on June 13 that claimant was now free of radicular pain, although she continued to complain of incisional pain. Before leaving the hospital, claimant required further surgery to repair spinal fluid leakage, but no permanent damage resulted. Pathologist Gary L. Baumbach reported that the intradural mass was probably a myxopapillary ependymoma that had undergone extreme degeneration and regression, although the diagnosis was somewhat presumptive in that the entire mass was necrotic and contained no viable neoplastic cells. On August 12, 1991, Dr. Hitchon wrote that claimant could seek employment with a 30 pound weight lifting restriction for three months from the last operation (June 23), but thereafter the restriction "may be lifted without limitation." Claimant was to be seen again for follow-up in one year. Claimant saw Dr. Hitchon again on September 21, 1992. He reported on September 30 that claimant was found to be neurologically intact and had no evidence of any permanent impairment. She was not expected to have one in the future in the absence of tumor recurrence. No physician has imposed permanent restrictions relating either to the tumor or the lumbar disc problem. Claimant, on the other hand, voluntarily limits her lifting to 20 pounds and complains of residual pain ("like a bruise") which is exacerbated if she stands, sits, bends, or stoops extensively. She claims that Dr. Hitchon verbally advised her to "watch" lifting, bending and body alignment, but no written restrictions of any kind appear of record. The petition in this case was filed on May 10, 1991. Claimant has had adequate time and opportunity to obtain evidence of any restrictions imposed by Dr. Hitchon since she has been represented by counsel. If a party has the Page 6 power to produce more explicit and direct evidence than this hearsay assertion, but does not, it may properly be inferred that such other evidence would lay open deficiencies in its case. Crosser v. Iowa Dept. of Public Safety, 240 N.W.2d 682 (Iowa 1976). Claimant has failed to prove the existence of any medically imposed permanent restrictions relating to the work injury of March 13, 1991. Dr. Osenbach offered a detailed report dated September 25, 1991. With respect to the "slightly bulging disc" on the right at L5-S1, he felt it "possible" that the disc was causally related to the transient right leg pain and that it was "certainly possible" that the work incident of March 13 was causally related. Dr. Osenbach did not believe the disc problem caused the tumor to become symptomatic but pointed out that "on occasion some tumors and cysts within the spinal canal can become symptomatic following a episode of trauma such as a lifting injury." The doctor specified that he could not state unequivocally that such a relationship did exist. However the doctor further noted that given the temporal onset of symptoms following injury and the fact that those symptoms had essentially resolved with the removal of the tumor, one could "certainly argue the case" for a causal nexus. In a letter to claimant's attorney dated June 24, 1992, Dr. Osenbach opined "that there is certainly greater than 50% chance that the precipitation of Mrs. Davis's symptoms was related to the injury sustained at her job." Defendants strenuously argue that this constitutes a conflict with the doctor's previous opinion and suggest that his credibility is destroyed. This writer sees no such conflict. Claimant was also seen for evaluation by James B. Worrell, M.D., in November 1992. Dr. Worrell assigned a ten percent impairment rating to the body as a whole (one percent due to loss of motion of the spine, seven percent due to the unoperated L5-S1 disc on the right and two percent for sensory loss impairment of the left leg). In a letter dated December 2, 1992, he opined that claimant's "back symptoms" were causally related to the work injury and that he agreed with Dr. Osenbach's comments "[a]s far as the relationship to the tumor." Apparently then, Dr. Worrell believes that the bulging or herniated disc was causally related to the work injury under review. Dr. Worrell did not suggest any physical restrictions, although he apparently was given an incorrect history of a 30 pound lifting restriction and very limited patient care. Claimant's medical records were also reviewed by Daniel J. McGuire, M.D., although he did not physically examine claimant. Dr. McGuire is a board certified orthopedic surgeon and a frequent defense expert in litigation before this agency. In Dr. McGuire's view, the work incident of March 13 neither caused the tumor nor caused it to become symptomatic. He believed that if trauma had caused the tumor to become symptomatic, symptoms should have become and remained constant, rather than changing over the first few weeks. He also found significant that the surgeon's report and pathology reports did not indicate hemorrhage into the Page 7 tumor, which he would have expected had trauma caused the onset of symptomatology. Indeed, Dr. McGuire believed the surgical and pathology reports to be "the most convincing evidence" that the work incident did not cause the tumor to become symptomatic. It is found that claimant did experience two work incidents on March 13, 1991 as she described. As discussed below, those incidents caused the spinal tumor to become symptomatic, all of which directly resulted in two surgical procedures. CONCLUSIONS OF LAW Although it is agreed that an employment relationship existed between Helen Davis and Rose Haven Nursing Home on March 13, 1991, the parties dispute whether claimant sustained injury arising out of and in the course of employment as she alleges. 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 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). It has been also said that the "arising out of" requirement is satisfied by showing a causal relationship between the employment and the injury. Sheerin v. Holin Co., 380 N.W.2D 415 (Iowa 1986). 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). Page 8 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 manylatively light weight, it is magnified in a bending position with the arms outstretched, much as a lever on a fulcrum. This is clearly a vulnerable posture. Physicians have frequently testified before this agency that even minor twists and turns or lifting may cause injury or even herniate a disc; more than one has pointed out that even a sneeze can do so. The second incident, when claimant was helping a resident rise from a chair, is much more typical of the onset of back symptomatology, since it involved relatively strenuous lifting. Taken together, these two incidents led to and "lighted up" the discovery and eventual surgical excision of claimant's spinal tumor. Since, at minimum, these incidents caused claimant to be off work from March 15 through March 25 and April 2 through April 5, an injury arising out of and in the course of employment has been established. Testing eventually uncovered two separate problems: a right-sided disc bulge or herniation at L5-S1 (medical opinion varies as to which) and the tumor at the top of the lumbar spine. Causation as to these problems must be Page 9 discussed separately. With respect to the bulging or herniated disc, Dr. Hitchon expressed no opinion, Dr. Osenbach found only a "possibility" of a causal nexus and Dr. Worrell was able to state quite definitely that "her back symptoms" were causally related, which presumably includes the lumbar disc, since his impairment rating included the disc. Dr. McGuire did not address this question. However, claimant has basically not had right-sided symptoms since the early weeks following injury. Still, the only two physicians to express an opinion find, respectively, a possibility that the bulging disc was caused by the injury and a "definite" opinion on causality. The weight of the evidence establishes that the pathological disc condition at L5-S1, whether the same be merely bulging or actually herniated, is causally related to the work injury. There is a range of opinion with respect to the tumor. Claimant does not allege that the work caused her tumor, but only that it was caused to become symptomatic. Since, as seen above, an aggravation or "lighting up" of a preexisting condition is compensable, this allegation is sufficient if it is proven. Dr. Hitchon wrote on November 16, 1992, that he could not incriminate any event as being directly or indirectly responsible for the tumor. He does not express an opinion either way on whether any incident caused the tumor to become symptomatic. Thus, his opinion is irrelevant to claimant's theory of the case. Dr. Osenbach, the other treating surgeon, finds there to be a greater than 50 percent chance that the work injury caused the onset of symptoms. Of course, it will be noted that claimant was asymptomatic before the incident and symptomatic afterwards. It is hardly unreasonable to find significance in this strictly temporal relationship. Similarly, Dr. Worrell has opined that a causal relationship exists. This leaves Dr. McGuire. Dr. McGuire never saw claimant, but only reviewed certain medical records. In his letter of December 4, 1992, he betrays unfamiliarity even with those, in that he reports that the board certified physicians who were "caring" for claimant "did not feel the work incident caused the tumor or caused the tumor to become symptomatic." This assertion is clearly erroneous. Dr. McGuire relies heavily upon the surgical report and the pathology report in reaching his opinion. However, the only one of the actual surgeons to offer an opinion as to the causation of symptoms reached an opposite conclusion. And, it is noted that in the experience of this agency, Dr. McGuire is well known for consistently offering defense-friendly opinions in litigated cases. Under Iowa Code section 17A.14(5), the agency's experience, technical competence and specialized knowledge may be utilized in the evaluation of evidence. All things considered, the opinions of Drs. Osenbach and Worrell are entitled to greater weight than the opinion of Dr. McGuire. Page 10 Since this decision finds that claimant sustained permanent disability, it is necessary to determine the extent of her healing period. Under Iowa Code section 85.34(1), healing period is compensable beginning on the date of injury and continuing until the employee has returned to work, it is medically indicated that significant improvement from the injury is not anticipated, or until the employee is medically capable of returning to substantially similar employment, whichever first occurs. Healing period can be interrupted or intermittent. Willis v. LeHigh Portland Cement Co., 2-1 Iowa Industrial Commissioner Decisions 485 (1984). The record shows that claimant was off work from March 15 through March 25 (11 days), April 2 through April 5 (4 days) and from June 12 through "three months" from the second surgery, which occurred on June 23. Therefore, it is held that the final segment of healing period ran from June 12 through September 23, 1991 (14 weeks, 6 days). The total is 17 weeks, 0 days. Next, it is appropriate to turn to the question of permanent partial disability. Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, expe rience and inability to engage in employment for which the employee is fitted. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. Impairment and disability are not synonymous. The degree of industrial disability can be much different than the degree of impairment because industrial disability references to loss of earning capacity and impairment references to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of the healing period; the work experience of the employee prior to the injury and after the injury and the potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. Likewise, an employer's refusal to give any sort Page 11 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. At present, claimant has no medically imposed physical restrictions. For obvious reasons, self-imposed restrictions are much less reliable in determining extent of industrial disability. There is nothing claimant could do before that she cannot do now in terms of medical restriction. There are, however, two factors supporting an award of industrial disability. Claimant's surgical history and unoperated lumbar disc may cause her to be a less desirable employee in the eyes of at least some potential employers. And, defendants refused to give claimant continued employment following the injury. This, of itself, may justify an award. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Pigneri v. Ringland-Johnson-Crowley, Number 838742 (Appeal Decision, July 31, 1991). The commissioner has awarded ten percent industrial disability where this was the only apparent factor supporting an award. Galli v. Advanced Drainage Systems, Inc., Number 825795 (Appeal Decision, November 30, 1989). Considering then these factors in specific and the record otherwise in general, it is held that claimant has sustained a permanent industrial disability equivalent to fifteen percent of the body as a whole, or 75 weeks. Claimant's assertion that she should be awarded additional industrial disability because Administrator Yearian has persisted in denying any injury whatsoever is rejected as an improper factor in determining industrial disability. The parties also dispute entitlement to medical benefits, although it is agreed that providers of services would testify in the absence of contrary evidence that fees charged were fair and reasonable and incurred for reasonable and necessary treatment. The expenses are attached as an Page 12 addendum to the prehearing report as follows: Anesthesiologists Office Svc $ 336.00 Cedar Rapids Radiologists 770.00 Iowa Medical Clinic, P.C. 447.00 The University of Iowa Hospitals and Clinics 28,896.54 Williamsburg Family Practice Ctr 66.00 Marengo Memorial Hospital 199.00 Mercy Medical Center 3,817.30 Medical Mileage (1,564 miles) 328.44 Prescriptions 51.08 $34,911.36 Causal relationship is established as per the foregoing analysis. Defendants shall pay the above medical bills. Page 13 ORDER THEREFORE IT IS ORDERED: Defendants shall pay seventeen (17) weeks of intermittent healing period benefits (March 15 through March 25, April 2 through April 5, and June 12 through September 23, 1991) at the stipulated rate of one hundred ninety-nine and 14/100 dollars ($199.14), totalling three thousand three hundred eighty-five and 38/100 dollars ($3,385.38). Defendants shall pay unto claimant seventy-five (75) weeks of permanent partial disability benefits commencing September 24, 1991, at the stipulated rate, totalling fourteen thousand nine hundred thirty-five and 50/100 dollars ($14,935.50). All accrued weekly benefits shall be paid in a lump sum together with statutory interest. Defendants shall pay the medical bills set forth above totalling thirty-four thousand nine hundred eleven and 36/100 dollars ($34,911.36). Defendants shall file claim activity reports as required by the agency and upon compliance with this award. Costs of this action are assessed to defendants pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of March, 1993. ________________________________ DAVID R. RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Thomas J Currie Attorney at Law 3401 Williams Blvd SW PO Box 998 Cedar Rapids Iowa 52406-0998 Mr David L Jenkins Attorney at Law 801 Grand Avenue Suite 3700 Des Moines Iowa 50309-2727 2206; 1108; 1803; 3700 Filed March 11, 1993 DAVID R. RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ HELEN H. DAVIS, Claimant, vs. File No. 979357 ROSE HAVEN NURSING HOME, A R B I T R A T I O N Employer, D E C I S I O N and ALLIED MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. ___________________________________________________________ 2206; 1108 Minor work incidents were held to have "lighted up" or aggravated a calcified, necrotic intradural tumor, later surgically removed. 1803 Although no medical restrictions were imposed, industrial disability of 15 percent was awarded, based on history of back surgery, unoperated bulging or herniated (but, now asymptomatic) disc and failure to provide continued employment. 3700 Claimant was discharged, allegedly for job misconduct. Job Service determination to the contrary was given preclusive effect. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ ARTHUR JEFFREY BATES, Claimant, vs. File No. 979525 WOLFE MASONRY COMPANY, INC., A R B I T R A T I O N Employer, D E C I S I O N and HAWKEYE-SECURITY INSURANCE COMPANY, Insurance Carrier, Defendants. ___________________________________________________________ STATEMENT OF THE CASE Claimant Arthur Bates seeks Iowa workers' compensation benefits pursuant to his petition in arbitration against his employer, Wolfe Masonry Company, Inc., and insurance carrier Hawkeye-Security Insurance Company. Mr. Bates sustained an injury to his back in a fall on March 19, 1991. A hearing was thereupon held in Des Moines, Iowa on April 1, 1993. The record consists of claimant's exhibits 1 through 17, defendants' exhibits A and B, and the testimony of claimant and Leonard Wolfe. ISSUES The parties have stipulated that claimant sustained injury arising out of and in the course of his employment on March 19, 1991, that the injury caused temporary disability from March 20 through July 14, 1991, to the rate of compensation ($161.50), and that defendants are entitled to credit for voluntary payment of 35 weeks of permanent partial disability benefits. Issues presented for resolution include: 1. Whether the injury caused permanent disability; 2. If so, the extent of claimant's industrial disability; and, 3. Entitlement to medical benefits. With respect to medical benefits, defendants dispute whether fees or prices charged by the provider (of a hospital bed) are fair and reasonable, whether that treatment was reasonable and necessary, and whether the expense is causally connected either to the work injury or to the medical condition upon which the claim is based. Authorization was disputed by defendants, but that defense was ruled invalid at hearing because defendants denied Page 2 liability on the claim, thus forfeiting the right to control medical care. FINDINGS OF FACT The undersigned deputy industrial commissioner finds: Arthur Bates, 34 years of age at hearing, is a 1977 high school graduate. Prior to the work injury, Mr. Bates completed one semester of community college work in drafting. He has since returned to school and anticipates receiving an Associate of Arts degree in drafting technology in May 1993. Mr. Bates has maintained a B average in his studies. There is no showing that defendants have helped finance his continued education. Claimant's work history includes being a bottle sorter and route salesman for a soft drink bottler, concrete block mason, armored car driver and messenger, packing house worker (almost five years), construction laborer, part-time taxi cab driver and two separate stints as a laborer for defendant Wolfe Masonry Company. Claimant was so employed for approximately four months at age 20, and again for one and one-half days prior to the subject work injury. Claimant also anticipates accepting work as a production manager for Able Waterproofing after receiving his Associate's degree. He participated in a job training program with that employer for nine weeks during the summer of 1992. Claimant was injured on his second day on the job (as a laborer earing $6.50 per hour) when a scaffold broke and he fell roughly 12 or 13 feet. X-ray examination at Iowa Methodist Medical Center disclosed slightly comminuted, wedge-type acute compression fracture deformities at vertebral bodies T9, T10, and T11. Claimant's treating physician was Daniel J. McGuire, M.D.. Dr. McGuire found claimant to be neurologically intact and the spine was stable. He was discharged home on March 23, 1991 for bed rest of 20 to 22 hours per day. Claimant rented a hospital bed for this purpose for one month at a cost of $100. The record does not show that this item was prescribed by Dr. McGuire. On May 9, Dr. McGuire released claimant to return to part-time work (three to four hours per day) with a restriction against lifting more than 30 to 40 pounds. Chart notes of May 24 reflect that claimant still had back pain and that Dr. McGuire told him this might continue for the rest of his life, but that the associated disability was "small." On June 13, Dr. McGuire encouraged claimant to return to work at four hours per day with a lifting restriction of 50 pounds. However, claimant was not allowed to return to work. On July 11, Dr. McGuire released him to return to "full duty." Claimant attempted to return to work for one-half day before he and another worker were released. Page 3 Claimant has made further attempts to return to work with Wolfe Masonry, but has not been hired (although other workers have been hired). Leonard Wolfe, defendants' owner, testified that claimant was not a good worker. Of course, this is inconsistent with the fact that he was hired for a second time prior to the work injury, and briefly put back to work afterwards. It does not appear that Dr. McGuire has imposed any permanent restrictions. Claimant was found to have reached maximum medical improvement on August 22, 1991. Dr. McGuire estimated a permanent "disability" (read as "impairment") of seven percent according to American Medical Association Guidelines. Claimant was released PRN (return as needed). Claimant was also seen for evaluation on October 10, 1992, by Jack W. Brindley, M.D.. Like Dr. McGuire, Dr. Brindley is an orthopedic surgeon. Dr. Brindley found claimant's prognosis to be "somewhat guarded," and estimated physical impairment to the body as a whole as 10 percent. Dr. Brindley also recommended restrictions against lifting in excess of 50 pounds and against frequent bending. Dr. Brindley's proposed restrictions appear more suitable to claimant's current condition than the unrestricted release from Dr. McGuire. Claimant currently suffers discomfort when he stands or sits in excessive of 30 minutes, finds bending and pushing difficult, and is less able to engage in certain recreational activities such as motorcycle riding, golf and bowling. Claimant has sought other work while attending school (full-time since August 1991). One employer, a meat packer, refused employment due to claimant's medical history. While this refusal to hire may relate to claimant's back condition, it may equally well relate to his heart condition (rheumatic fever as a child, and a later history of "galloping" heart rate diagnosed as paroxysmal supraventricular tachycardia or atrial fibrillation). ANALYSES AND CONCLUSIONS OF LAW 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 4 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). Defendants dispute that the injury caused permanent disability. While Dr. McGuire did not impose medical restrictions, he has rated permanent impairment to the body as a whole, which implies loss of function. He also has suggested that claimant may have lifelong pain. Claimant's post-injury history suggests that this is true. Dr. Brindley has also rated impairment and has suggested medical restrictions. No physician whatsoever has testified that the injury did not cause permanent disability. Claimant has unquestionably met his burden of proof on the issue. Claimant has sustained industrial disability. Industrial disability was defined in Diederich v. Tri-City Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It is therefore plain that the legislature intended the term `disability' to mean `industrial disability' or loss of earning capacity and not a mere `functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience, motivation, loss of earnings, severity and situs of the injury, work restrictions, inability to engage in employment for which the employee is fitted and the employer's offer of work or failure to so offer. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). Compensation for permanent partial disability shall begin at the termination of the healing period. Compensation shall be paid in relation to 500 weeks as the disability bears to the body as a whole. Section 85.34. The restrictions suggested by Dr. Brindley seem more consistent with claimant's current condition of ill-being than the unconditional release by Dr. McGuire. Also, Dr. Brindley has had the opportunity to see claimant more recently than Dr. McGuire, although for evaluation as opposed to treatment. It is not necessarily the case that a treating physician's testimony is to be given more weight than a later examining physician. Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d 187 (Iowa 1985). Dr. Brindley's restrictions will foreclose claimant from some of the jobs he has previously held, including soft drink route sales (tanks weigh from 50 to 60 pounds) masonry laborer (Leonard Wolfe concedes that a laborer must lift at Page 5 least 90 pounds) and some packing house work (which requires substantial lifting and bending). Defendants are not entitled to substantial "credit" for claimant's subsequent educational attainments because they have not contributed to the cost. Nonetheless, it is incontrovertible in light of those attainments that claimant had a true capacity for retraining at the time of injury. Claimant has lost substantial earnings through his lengthy unemployment following the injury and defendant's refusal or inability to offer continued employment is, by itself, a factor justifying an award of industrial disability, see McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) and numerous subsequent cases decided by this agency. Considering then these factors in specific and the record otherwise in general, it is held that claimant has sustained an industrial disability equivalent to 20 percent to the body as a whole, or 100 weeks. Under Iowa Code section 85.27, defendants are required to furnish reasonable services and supplies to treat an injured employee. The only "medical" item in dispute is the $100 hospital bed rental. While this may seem to be a common sense item for an injured worker sent home to 20 to 22 hours of bed rest per day, the record fails to show that rental of this bed was medically prescribed. It is claimant's burden to prove "the necessity of treatment and the reasonableness of charges." The latter requires expert opinion under current agency precedent. Anderson v. High Rise Construction Specialists, Inc., file number 850096 (App. Decn. July 31, 1990). Accordingly, claimant is not entitled to reimbursement on this record. ORDER THEREFORE IT IS ORDERED: Defendants shall pay unto claimant one hundred (100) weeks of permanent partial disability at the stipulated rate of one hundred sixty-one and 56/100 dollars ($161.56) commencing July 14, 1991. Defendants shall have credit for thirty-five (35) weeks of permanent partial disability voluntarily paid prior to hearing. All accrued benefits shall be paid in a lump sum together with statutory interest. Defendants shall file a claim activity report upon compliance. Costs of this action are assessed to defendants. Signed and filed this ____ day of May, 1993. Page 6 ----------------------------- DAVID R. RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. J. Terrence Denefe Attorney at Law 104 South Court Street PO Box 493 Ottumwa, IA 52501 Mr. Thomas Henderson Attorney at Law 1300 First Interstate Bank Bldg. Des Moines, IA 50309 5-1803; 2504 Filed May 5, 1993 David R. Rasey BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ ARTHUR JEFFREY BATES, Claimant, vs. File No. 979525 WOLFE MASONRY COMPANY, INC., A R B I T R A T I O N Employer, D E C I S I O N and HAWKEYE-SECURITY INSURANCE COMPANY, Insurance Carrier, Defendants. ___________________________________________________________ 5-1803 Industrial disability was determined. 2504 Although claimant was released home for 20 to 22 hours per day of bed rest following three level thoracic fracture, he failed to present expert testimony that the rental of a hospital bed was reasonable (or that it was medically prescribed). Reimbursement on this item was denied. Page 1 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : WILLIAM W. PIERCE, : : Claimant, : : vs. : : File No. 979540 MENEFEE DRYWALL COMPANY, INC.,: : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CNA INSURANCE COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by William W. Pierce, claimant, against Menefee Drywall Company, Inc., employer, hereinafter referred to as Menefee, and CNA, insurance carrier, defendants, for workers' compensation benefits as a result of an alleged injury on March 12, 1991. 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 prehearing report, the parties have stipulated to the following matters: 1. An employer-employee relationship existed between claimant and Menefee at the time of the alleged injury. 2. Claimant is seeking temporary total or healing period benefits only from March 13, 1991 through May 7, 1991 and from May 16, 1991 through August 16, 1991 and defendants agree that if they are liable for the injury, claimant is entitled to such benefits for these periods of time. 3. At the time of injury claimant's gross rate of weekly compensation was $526.00; he was single; and he was entitled to one exemption. Therefore, claimant's weekly rate of compensation is $303.72 according to the Industrial Commissioner's published rate booklet for this injury. ISSUES Page 2 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; and, II. The extent of claimant's entitlement to disability benefits. FINDINGS OF FACT Having heard the testimony and considered all of the evidence, the deputy industrial commissioner finds as follows: A credibility finding from claimant's demeanor was not possible as claimant failed to appear for hearing and only testified by written deposition out of the presence of the undersigned administrative law judge. Claimant worked for Menefee as a drywaller from July 1990 until August 1991. His duties consisted of hanging drywall and framing. On or about March 12, 1991, claimant injured his back after lifting a 130 pound sheet of drywall with a fellow employee. Claimant twisted and he felt a snap in the back. The pain grew worse during the course of the day and claimant could resume working the next couple of days. After calling in, claimant was referred by Menefee to a physician for treatment. This finding is based upon claimant's uncontroverted deposition testimony and the medical records. As a result of the injury of March 12, 1991, claimant was absent from his work at the times stipulated in the hearing report upon the advice of his physicians. Following the injury, Robert S. Tomas, M.D., treated claimant initially. When claimant's condition failed to improve, he was referred to Thomas J. Hughes, M.D., a family practi tioner and a specialist in occupational medicine. This treatment was conservative and consisted of absence from work, medication and physical therapy. Claimant was returned to work with restrictions against heavy lifting and deep bending but still experienced pain after only a few hours work. Claimant was taken off work a second time with additional therapy. Claimant was last treated by Dr. Hughes on August 5, 1991. At that time, Dr. Hughes felt there was nothing else he could offer by way of treatment and he released claimant back to work without restrictions. Claimant did not return to work in August 1991. He called Menefee on the day he was to report for work and explained that he could not show up as he had moved his residence and could not afford the cost of travel and motel expenses. Claimant explained that his weekly benefit check from the workers' compensation carrier was delayed and he did not have money available. Menefee then fired claimant for refusing to return to work. Page 3 From the evidence submitted, it could not be found that the work injury of March 12, 1991 was a cause of permanent impairment to the body as a whole. No permanent work restrictions were imposed by Dr. Hughes in his release for work in August 1991. Dr. Hughes explained in his September 1991 report that he was reluctant to give claimant a perma nency rating due to inconsistent testing results. He stated that he might give a five percent rating but no more. This is insufficient medical evidence of impairment. Also, claimant's current physical condition is unknown as he chose not to appear and give testimony at hearing. Furthermore, it is impossible to determine claimant's current loss of earning capacity or industrial loss, if any, that may be due to the injury. Claimant, in his deposition, states he was not physically capable of returning to dry walling employment and had made some unsuccessful attempts to do so. However, again, claimant's failure to appear for hearing negates an examination of claimant's current employ ment situation. CONCLUSIONS OF LAW I. Claimant has the burden of proving by a preponder ance of the evidence that claimant received an injury aris ing 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 circum stances of the injury. See generally, Cedar Rapids Commu nity 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. In the case sub judice, claimant's deposition testimony and the medical records was uncontroverted as to the occur rence of the injury at the time specified in the petition herein. II. As claimant failed to show that he suffered perma nent impairment or disability from the injury, he is not entitled to an award of permanent disability benefits. Claimant is entitled to temporary total disability benefits under Iowa Code section 85.33(1) but he already has been paid in excess of his entitlement stipulated to in the hear ing report. ORDER 1. Claimant's petition is dismissed with prejudice and he shall take nothing from this proceeding. 2. Claimant shall pay the costs of this action pur suant to rule 343 IAC 4.33. Page 4 Signed and filed this ____ day of April, 1993. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Michael J. Schuster Attorney at Law 318 South River Park Drive Guttenberg, Iowa 52052 Mr. Elliott R. McDonald, Jr. Attorney at Law P O Box 2746 Davenport, Iowa 52809 5-1803 Filed April 6, 1993 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ WILLIAM W. PIERCE, Claimant, vs. File No. 979540 MENEFEE DRYWALL COMPANY, INC., A R B I T R A T I O N Employer, D E C I S I O N and CNA INSURANCE COMPANIES, Insurance Carrier, Defendants. ___________________________________________________________ 5-1803 - Non-precedential, extent of disability case.