BEFORE THE IOWA INDUSTRIAL COMMISSIONER ________________________________________________________________ GLENDA EDENBURN, Claimant, vs. File No. 980076 FOOD SERVICE & DISTRIBUTING COMPANY, INC., A R B I T R A T I O N Employer, D E C I S I O N and ALLIED GROUP, Insurance Carrier, Defendants. ________________________________________________________________ STATEMENT OF THE CASE This case came on for hearing on March 1, 1995, at Burlington, Iowa. This is a proceeding in arbitration wherein claimant seeks compensation for permanent partial disability benefits as a result of an alleged injury occurring on October 10, 1990. The record in the proceeding consists of the testimony of the claimant, Brendan Markey and joint exhibits A through E. ISSUES The issues for resolution are: Whether an injury arose out of and in the course of claimant's employment on October 10, 1990. Whether there is any causal connection as to claimant's alleged permanent disability and the alleged October 10, 1990 injury. The extent of claimant's permanent disability and entitlement to disability benefits, if any. An 85.27 medical benefits issue, the issue being causal connection and reasonable and necessary. The amount in dispute being $1,693.65, defendant contending the medical had nothing to do with claimant's injury. FINDINGS OF FACT The undersigned deputy having heard the testimony and considered all the evidence finds that: Claimant is 52 years old. She began working for the defendant employer, who is also known as Automatic Vending Company, in August 1985. She indicated she had no injuries, physical problems or restrictions at that time and was able to do her work. Claimant acknowledges she broke her arm in the eighth grade, when she was 12 to 13 years old, but contends she fully recovered and never had restricted activity to her right arm. Claimant described the nature of her work, which was making sandwiches and desserts at a sandwich and dessert table. She also cut up lettuce for salads and made cakes and cookies during part of her employment with defendant employer. The nature of defendant's business is making food for vending machines and cafeterias. Claimant testified that she first noticed right arm, shoulder and neck problems to her body about one and one-half months after she started working at defendant employer. Claimant then indicated that three to four months before her surgery in July 1988, she was having problems. It appears this surgery involved median nerve damage and carpal tunnel. Claimant made no claim for workers' compensation as claimant did not think it was work related. Claimant returned to work in March 1989 and contends she had no restrictions and was able to return to the work she was doing. Claimant further described the nature of work and what she does in her work, which includes sealing; putting meat and lettuce on bread; wrapping; etc. Claimant indicated that in 1989 she started using a sealing machine which they did not have available prior to that time. She contends this caused her arm to swell up and hurt; it also caused her shoulder and neck to hurt. Claimant described the various medical attention she received and the limitations she had at different times as far as lifting, repetitive motion, etc. Claimant initially indicated that when she was on limited duty working six hours a day she had to do enough work as if she had worked eight hours. Only through cross-examination and finding reason to what she had said, it is obvious that claimant worked six hours and did six hours of work. When she left the sandwich table to go home after six hours there were others remaining to do work for their additional two hours. Claimant quit her job August 14, 1992. She contended she couldn't handle the work any more as her arm and shoulder would swell up and were hurting. She had neck pains and headaches. Claimant states she is now working for All for One, which is a dollar store, as a sales clerk and also is on call as an activity person for a nursing home. She contends she does not use her right arm, at least continuously, and is able to do the work at her current job, but her shoulder and neck were giving her problems. On cross-examination claimant was asked concerning the original fracture of her right forearm 30 years ago which had to be refractured two times after that and set with pins. Exhibit B, page 2, reflects that claimant has had problems over many years since the fracture 30 years ago and that she had additional median nerve with carpal tunnel release and release of the pronator teres and superficialis swing proximally, in July 1988. She acknowledges she made no claim for that particular injury or event. The record indicates, as well as claimant's testimony, that after she quit her job with the defendant employer in August 1992, her problems were basically alleviated or she had only minimal problems. Claimant acknowledged that when she began working for All for One her problems increased with the new job as a cashier. Also in December 1991, she indicated that she was also doing more sewing. (Joint Exhibit 2, page 20) Claimant again acknowledged that she was not having problems again until she began working at All for One as a cashier. Claimant does not remember being offered a Case Cafeteria job before quitting defendant employer. She acknowledged that no one at defendant employer said she had to quit or that she would be discharged. She acknowledges she returned to work eight hours per day before she quit. (Jt. Ex. D, p. 3) It appears to the undersigned this claimant has had problems for many years and that they originally began when she had her serious arm injury approximately 30 years ago. There is no question that repetitive work affects, reactivates or agitates claimant's arm condition and when this is aggravated, she has pains in other parts of her body (in this case, her neck and shoulder). The record is clear that when claimant quit her job with the defendant employer her problems eased and were basically alleviated, and then when she began work again for All for One, they returned. It is obvious that claimant must be careful of doing repetitive work; but the undersigned finds that this condition is not because of an injury cumulative or other wise at the defendant employer, but because of a condition she has had over the years due to her original injury 30 years ago. The undersigned questions why claimant left this job. It seems that the employer was not only accommodating her, but was going to whatever extremes necessary to make it easier and simpler for the claimant. It doesn't seem like the job she had was that strenuous in nature anyway, but the employer was accommodating her. The undersigned further finds that claimant's work at defendant employer did not substantially and materially heighten claimant's pre-existing condition to any extent of causing any permanent impairment or disability. When claimant would leave her job or work a few hours her condition improved. Claimant's work at All for One irritated claimant's condition which the undersigned believes is agitating a condition originally begun approximately 30 years ago. The undersigned finds that claimant did have a temporary period in which her condition was aggravated and claimant received 25.286 weeks of temporary partial benefits and one week of temporary total disability benefits. The undersigned believes this is all that claimant is entitled to. 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). 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). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, its mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956). If the claimant had a preexisting condition or disability that is materially aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961). It is further concluded that claimant incurred a temporary aggravation of her right upper extremity which arose out of and in the course of her employment on October 10, 1990, causing claimant to incur 25.286 weeks of temporary partial disability and one week of temporary total disability at the rate of $120.15. It is further concluded that claimant incurred no permanent impairment to her right upper extremity nor to her body as a whole. It is further concluded that the medical expenses in dispute amounting to $1,693.65 were incurred not as a result of any injury arising out of and in the course of claimant's employment, and therefore defendants are not responsible for payment of said sum. ORDER THEREFORE IT IS ORDERED THAT: Claimant takes nothing further from these proceedings. Claimant has received all she is entitled to. Defendants will be given credit for the twenty-five point two eight six (25.286) weeks of temporary partial disability and one (1) week of temporary total disability that defendants paid to claimant at the rate of one hundred twenty and 15/100 dollars ($120.15). The costs are to be divided equally among the parties. Signed and filed this _____ day of March, 1995. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. William Bauer Attorney at Law 100 Valley Street PO Box 517 Burlington, Iowa 52601 Ms. Deborah A. Dubik Attorney at Law 111 East Third Street-Ste 600 Davenport, Iowa 52801-1596 5-1100; 5-1108 5-1801; 5-1801.1; 5-2500 Filed March 28, 1995 BERNARD J. O'MALLEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER ________________________________________________________________ GLENDA EDENBURN, Claimant, vs. File No. 980076 FOOD SERVICE & DISTRIBUTING COMPANY, INC., A R B I T R A T I O N Employer, D E C I S I O N and ALLIED GROUP, Insurance Carrier, Defendants. ________________________________________________________________ 5-1100; 5-1108; 5-1801; 5-1801.1; 5-2500 Found claimant incurred an injury that arose out of and in the course of claimant's employment causing 25.286 weeks of temporary partial disability and one week of temporary total disability. Claimant was not allowed $1,693.65 for medical. Claimant recovered nothing more than she had already been paid. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ DEBBIE ELLIS, Claimant, vs. File Nos. 980097/993913 989779 LIBERTY MUTUAL INSURANCE COMPANY, A P P E A L Employer, D E C I S I O N and LUMBERMENS MUTUAL CASUALTY COMPANY, Insurance Carrier, Defendants. _________________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed July 29, 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 November, 1993. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Steven C. Jayne Attorney at Law 5835 Grand Ave., Ste 201 Des Moines, Iowa 50312 Mr. Joseph S. Cortese II Attorney at Law 500 Liberty Bldg. Des Moines, Iowa 50309 5-1803 Filed November 30, 1993 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DEBBIE ELLIS, Claimant, vs. File Nos. 980097/993913 989779 LIBERTY MUTUAL INSURANCE COMPANY, A P P E A L Employer, D E C I S I O N and LUMBERMENS MUTUAL CASUALTY COMPANY, Insurance Carrier, Defendants. ____________________________________________________________ 5-1803 Claimant sustained an injury to her right wrist, which aggravated a preexisting psychological condition. Relying on a recent Iowa Supreme Court case, claimant proved entitlement to industrial disability benefits, and was awarded 100 weeks of permanent partial disability benefits. See, Mortimer v. Fruehauf. Claimant's profile includes: 34 years of age; little motivation to return to work; severe lifting restriction of five pounds; limited grasping and grabbing ability; and, fragile mental state. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DEBBIE ELLIS, Claimant, vs. File Nos. 980097 989779 LIBERTY MUTUAL INSURANCE 993913 COMPANY, A R B I T R A T I O N Employer, D E C I S I O N and LUMBERMAN'S MUTUAL CASUALTY COMPANY, Insurance Carrier, Defendants. ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by claimant, Debbie Ellis, against her former employer, Liberty Mutual Insurance Company and its insurance carrier, Lumberman's Mutual Casualty Company. Ms. Ellis filed three petitions with injury dates of March 19, 1991 (agency file number 980097), March 29, 1991 (agency file number 993913) and April 8, 1991 (agency file number 989779). The matter came on for hearing before the undersigned deputy industrial commissioner on May 25, 1993 at Des Moines, Iowa. The record in this case consists of testimony from the claimant; claimant's husband, Leonard Ellis; Jeff Johnson, a vocational rehabilitation expert; and, Susan White, a vocational rehabilitation expert. ISSUES The parties submit the following issues for resolution: 1. Whether any of the injuries caused permanent disability; 2. Whether claimant has sustained a scheduled member injury, or an injury to the body as a whole; 3. Whether some of the medical treatment incurred was reasonable and necessary; 4. Whether some of the medical treatment incurred was causally connected to the work injuries; and, 5. Whether some of the medical expenses incurred were authorized by the defendants. FINDINGS OF FACT Page 2 The undersigned deputy, having reviewed all of the evidence received, finds the following facts: Claimant, Debbie Ellis was 34 years of age at the time of the hearing. She is married and has one daughter, age 15. Claimant completed the ninth grade in school, and earned her General Equivalency Degree in 1985. She has also taken courses in an administration clerk program. Ms. Ellis has a varied work history. From 1976 through 1986, she worked primarily in the janitorial services field. For a brief period of time, she worked for Farm Bureau in the filing department, and then worked as a private housekeeper, performing such tasks as dusting, vacuuming, washing dishes, gardening, cleaning cars and taking care of animals. In 1987, claimant began working for the defendant employer. Her first position was as a file clerk, a position she held for approximately two years. Her duties included filing all paperwork, inserting materials into files, locating files, and photocopying documents. In January of 1989, claimant became a payment processor on the SUS desk. In this position, she processed all workers' compensation claims which did not involved loss of time from work. She received on-the-job-training in computer skills, and her primary duties included keying in information from first reports of injury, including medical notations and other notes from the claims forms. Claimant's functions included recitation of medical payments, provider names and type of medical services were rendered. During her testimony, claimant indicated that 7 hours and 15 minutes of her 8 hour day were spent working at a computer keyboard entering or typing in information. The official job description is entered into evidence as Claimant's Exhibit 4. A report kept by claimant's supervisor records monthly inputs, and shows that claimant keyed in an average of 26 SUS reports per day, or 529 per month. This report does not reflect the number of medical reports and bills, as well as the number of searches for certain information were performed by claimant. (Claimant's Exhibit 5). The record shows that claimant has been cautioned by her employer about absenteeism. In December of 1990, she visited the emergency room and was taken off of work for several days due to an anxiety attack. Claimant blamed the attack on sinuses. A job performance evaluation dated January 7, 2992 reveals that claimant's problem with attendance was discussed. While claimant testified that she first experienced pain, numbness and tingling in her arms in September of 1990, she first reported these symptoms to her supervisor in March of 1991. She reported to Richard Reel, D.O., her family physician located at the Mercy Medical Clinic in Des Moines, Iowa. Medical records indicate that on March 22, 1991, she complained of pain and numbness in her right hand, Page 3 sensations she had been experiencing for the past six months. Range of motions tests of the wrist were within normal limits, and results of the Phalens and Tinels tests were negative. The initial diagnosis was that of tendinitis, and she was given voltaren. (Joint Exhibit 2, page 31). One week later, claimant returned to the clinic, and was once again assessed as having tendinitis. She was given a cock-up wrist splint, Anaprox, and was told to soak her wrist. She was taken off of work for one week. (Jt. Ex. 2, p. 31) After several more visits to the Mercy Medical Clinic in April, 1991, claimant began to complain of pain in her right arm, hand and shoulder. She was given additional medication, was taken off of work (Jt. Ex. 2, p. 32-34) and was referred to Timothy G. Kenney, M.D., an orthopaedic specialist, whom she saw on April 25, 1991. (Jt. Ex. 2, pp. 32-34, 39; Jt. Ex. 4, p. 6). Dr. Kenney performed an examination which showed that claimant had mild, diffuse edema of the entire right hand, wrist and forearm. She displayed full range of motion of the elbow and wrist, with slight pain on flexion. Tinel's sign was negative, but Phalen's sign was mildly positive on the right wrist. He believed that claimant had components of carpal tunnel syndrome and forearm flexor tendinitis due to cumulative trauma disorder. Dr. Kenney recommended an EMG and nerve conduction studies to evaluate the median nerve and physical therapy. Claimant was restricted to left-handed work only, and begin physical therapy at the Mercy Hospital Medical Center, where her therapist was Janet Darling, O.T.R. (Jt. Ex. 4, p. 2; p. 7; p. 59). Progress notes from the therapist begin on page 41 of Joint Exhibit 2. For the next several months, claimant underwent different modalities of treatment, including heat, message and exercises, and eventually showed some improvement. (Jt. ex. 2, p. 60). She returned to Dr. Kenney (Jt. ex. 2, pp. 41-45), and to the Mercy Medical Clinic (Jt. Ex. 2, pp. 35-36) in June, 1991. On follow-up with Dr. Kenney, claimant reported that although she felt some improvement from the last visit, she still experienced pain if she tried any grasping or lifting activities with her right upper extremity. His examination showed mild, diffuse soft tissue swelling of the entire right hand, with tenderness over the forearm flexors and extensors. Range of motion tests performed on the wrist elicited pain. He continued to diagnose a cumulative trauma disorder with forearm flexor and extensor tendinitis with a component of sympathetic dystrophy. He recommended additional physical therapy, and took claimant off of work, and requested a follow-up evaluation in one month. Two weeks later, Dr. Kenny was removed from the case, and the insurance company designated Senesio Misol, M.D., as the treating physician. (Jt. Ex. 4, p. 3; pp. 8-11). Claimant did continue physical therapy with Ms. Darling, and these records note some improvement. (Jt. Ex. 2, pp. 49-58). Claimant underwent the EMG and nerve conduction study in July of 1991. The results of the test were within normal Page 4 limits, and it was recommended that she return to "some other form of employment where no repetitious use of the fingers and wrist is required." No surgical intervention was recommended. (Jt. Ex. 4, pp. 4-5). In August of 1991, Dr. Misol stated that he believed claimant suffered from "functional carpal tunnel syndrome," and determined that she had reached maximum medical improvement as of August 5, 1991. He was unable to determine any percentage of physical impairment because there is no way to rate this type of condition under the AMA Guides and tables. He did state the claimant would benefit from a job where repetitious moving of the fingers and flexor tendons would not be required. This would involved no opening and closing of the fingers, and no grasping and no lifting of more than five pounds at a time. (Jt. Ex. 4, p. 15). Apparently, claimant applied for Social Security Disability benefits in October of 1991. (Jt. Ex. 4, pp. 16-18). She was denied benefits in January, March and April of 1992, and February of 1993. (Defendant's exhibit A). It appears that Dr. Misol again examined claimant in January of 1992. His diagnosis was dynamic carpal tunnel syndrome and flexor tendinitis. He instructed claimant not to lift more than five pounds and not to perform repetitive "grasping or grabbing." (Jt. Ex. 4, p. 29-30). In June of 1992, Dr. Misol clarified the term "functional carpal tunnel syndrome" (also called dynamic carpal tunnel syndrome) by stating that this diagnosis is made when a patient experiences numbness and pain in the wrist and/or hand when moving the hand whereby the median nerve is compressed by the retinacular ligament. Dr. Misol went on to state that he believed claimant suffered from this condition as well as flexor tendinitis. He believed the condition permanent, and rendered his professional medical opinion that the condition had been caused by claimant's work at Liberty Mutual. Dr. Misol stated that claimant should lift no more than five pounds on a repetitive basis, and would not be able to return to her former employment duties unless the repetitive activities and weight restrictions were observed. He did believe that claimant was employable. (Jt. Ex. 4, pp. 20-21). In September of 1992, Dr. Misol wrote a reply letter to the attorney representing the insurance company and employer. He reiterated that claimant's physical symptoms in her wrist/hand developed when she performed repetitive activities. (Jt. Ex. 4, p. 24-25). Claimant has a long-standing history of treatment for depression. These records reveal that claimant has complained of being tired, sleeplessness, headaches, crying, and encountering much stress. (Jt. Ex. 1; Jt. Ex. 3). In November of 1992, James Gallagher, M.D., provided a psychiatric evaluation for the Disability Determination Services Bureau. Dr. Gallagher diagnosed claimant's Page 5 condition as a moderate to severe degree of depression. His impression was that claimant was close to a psychiatric hospitalization due to both her depression and her physical problems. Her tolerance for stress was poor, and claimant was not hopeful about future employment. He noted that claimant was very tearful, and would have difficulties with motivation and energy levels. (Jt. Ex. 5, pp. 1-6). At the request of claimant's attorney, Hector Cavallin, M.D., a psychiatrist provided a report after his examination of claimant on February 18, 1993. Dr. Cavallin reviewed claimant's medical documents, including previous psychiatric examinations by Dr. Gallagher in 1992 and previous notes stemming from psychiatric treatment at the McFarland Clinic in Ames in 1978. Dr. Cavallin notes that claimant has a long history of chronic depression, and has been taking Immapramine, an antidepressant, off and on since the first diagnosis of depression in 1978, when claimant was 19 years old. Apparently, claimant was continuing to take this medication at the time of the evaluation. After examining claimant, Dr. Cavallin diagnosed a chronic, severe depression disorder. He stated that in spite of the history of chronic depression, claimant had been able to work, and that since the diagnosis of the carpal tunnel syndrome, her depression was aggravated and had become a major depressive disorder. It was his opinion that claimant was permanently disabled, and would not be able to return to any occupation. He believed that her level of pain and distress prevented her from being capable of carrying out any gainful employment. He predicted that claimant would not be able to attend work regularly, would suffer lapses in concentration, and would not be able to maintain the pace of a regular schedule. He further surmised that claimant would not be able to tolerate the stress of being supervised and would become easily distracted by co-workers. (Jt. Ex. 6). Dr. Gallagher provided a follow-up report in March of 1993. He clarified that claimant suffered from both a dysthymic disorder and a major depressive disorder, and he stated that claimant had a significant decrease in energy and the ability to concentrate. Again, he believed that both the physical problems encountered from the carpal tunnel syndrome and the mental problems severely limited claimant's ability to work and perform daily living activities. (Jt. Ex. 5, pp. 7-9). Jeff Johnson, a rehabilitation consultant wrote a report which was entered into the record as Joint Exhibit 7. The report, dated March 21, 1993, memorializes claimant's medical history with respect to the right upper extremity, as well as the subjective perceptions of limitations; motivational considerations; claimant's educational background; vocational background; and, transferable skills possessed by claimant. Mr. Johnson believed that claimant could return to work as a teacher's aide, account clerk, appointment clerk or order clerk. It was his opinion that claimant would be able to return only to work classified as unskilled and sedentary. (Jt. Ex. 7). Susan White, a vocational consultant, also provided a Page 6 report detailing claimant's employability. She was able to meet with claimant on one occasion, and reviewed numerous medical records and reports which outlined claimant's condition, treatment, diagnosis and prognosis. Ms. White reviewed claimant's family/social background, educational level, vocational experience and transferable skills. She determined that claimant was employable in many areas of the clerical field, including positions as a check audit clerk, document preparation for microfilm, a C.O.D. clerk, telephone surveyor, film rental clerk and teacher's aide. While the report delineates the number of these positions found within Iowa and nationally, the report does not detail how many positions are actually available for workers looking for jobs. The report offers that claimant has looked in the newspaper for jobs, but has not signed up with Job Service. Claimant does not have a resume, but she had called several employers about possible positions. Claimant was unable to remember the employers' names. Ms. White's report is dated April 22, 1993. (Jt. Ex. 8). Both experts testified at the hearing, and their opinions did not change from those expressed in each of their reports. Several medical bills have not been paid. (Cl. Ex. 9-11). ANALYSIS AND CONCLUSIONS OF LAW The parties were able to stipulate that claimant has sustained work-related injuries on March 18, March 29 and April 8, 1991. The first issue, then is whether the injuries caused a permanent disability, and, in the event she has sustained a permanent disability, is the disability to the right upper extremity or to the body as a whole. The party who would suffer loss if an issue were not established has the burden of proving that issue by a preponderance of the evidence. Iowa R. of App. P. 14(f). The claimant has the burden of proving by a preponderance of the evidence that the alleged injury actually occurred and that it arose out of and in the course of employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of" refer to the cause or source of the injury. The words "in the course of" refer to the time, place and circumstances of the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 1971). The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Page 7 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). Claimant argues several theories, including that claimant has sustained a body as a whole injury, and thereby the undersigned should employ Iowa Code section 85.34 (2)(u) and 85.34 (3); or, claimant has sustained a scheduled member injury and is permanently and totally disabled; or, that claimant has sustained an occupational disease. Defendants argue that claimant's physical condition is based on a predisposition to this type of syndrome. They interpret the medical reports, particularly those of Dr. Misol's, as concluding that claimant's condition is peculiar to claimant, and that whenever she performs repetitive work of any type, she will experience a manifestation of pain and discomfort. They continue their argument be stating that because claimant is predisposed to the condition, she did not actually have an injury at work, but rather a manifestation of underlying disease processes. This is an interesting argument considering the defendants did stipulate that claimant sustained work injuries on each of the three injury dates alleged by claimant. Claimant's last argument is disposed of easily. It has been determined that carpal tunnel syndrome is not an occupational disease under Iowa Code section 85A. See, Noble vs. Lamoni Products, (App. Decn. No. 851309). The following analyses addresses the remaining arguments. Dr. Misol has been claimant's treating physician for the right upper extremity problem. While he was unable to assign a percentage of disability due to the unavailability of an appropriate table in the AMA Guides, he was of the opinion that claimant should avoid any type of employment that would require her to perform repetitive grasping and grabbing motions with her right hand, and she is not to lift anything weighing more than five pounds. These are permanent restrictions. And, while claimant may be predisposed to this condition depending on the type of work she performs, the facts indicate that she was able to successfully perform her job duties for more than two years before she complained of Page 8 pain and numbness in her right wrist. The second component of claimant's condition stems from her mental status. This surely is to be the more difficult analysis. In the past, claimant has received treatment and therapy for her depression. Notes dating as far back as 1978 and as recently as December of 1990, indicate that claimant has been diagnosed with depression, and has had accompanying impairments such as sleeplessness, tiredness, anger and anxiety attacks. Both Drs. Gallagher and Cavallin have indicated that claimant's physical condition has aggravated her mental condition, making it that much harder for claimant to function in a job, and perhaps in her daily living. Neither held out much hope for claimant to return to a normal work situation, yet neither suggested extensive treatment, either. Given the evidence, it is found that claimant has suffered a permanent disability due to the work-related incidents in March and April of 1991. The next issue to address is whether claimant's work injuries are confined only to the right upper extremity, or if they produced an injury to the body as a whole. There is no evidence that claimant sustained an injury to the body as a whole. Her work did not cause the mental impairment, but rather, the carpal tunnel syndrome, which was caused by her work aggravated a pre-existing mental condition. But there has been a recent, interesting change in case law which now governs how the agency addresses mental conditions that result from a scheduled member injury. Prior to June of 1993, it was assumed that when the schedule was devised, the legislature took into consideration the mental affects that were directly caused by scheduled member losses. But the recent Iowa Supreme Court case of Mortimer vs. Fruehauf Corp. (No. 92-1143) (on remand) found differently, and allowed a claimant to recover additional benefits due to the aggravation of a preexisting mental condition caused by a scheduled member loss. Claimant proved an industrial disability. Mr. Mortimer injured his left foot while in the course of his employment. He received benefits pursuant to the schedule, and later filed a petition to review-reopen the case. Mr. Mortimer sought additional benefits to compensate him for the depression he had as a result of the foot surgery. While Mortimer conceded that he had a preexisting psychological condition, the court found that the condition had been substantially aggravated by the work injury. As a result, the court concluded that claimant had sustained an industrial 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 he is Page 9 fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. This is so as impairment and disability are not synonymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial dis ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, l985). At the time of the injury, claimant was 32 years old. She obtained her GED in 1985. Claimant's work history includes janitorial work and data entry. She has sustained a serious injury to her wrist, which severely limits her ability to lift, grasp or grab. Claimant appears to have a very fragile personality, yet she was able to function successfully as a data entry operator for several years prior to her injury. She earned approximately $7.71 per hour. The injury to her right wrist has aggravated a preexisting psychological condition. The combination of the two conditions has forced claimant to terminate her work as Page 10 a data entry operator. Claimant has not shown much motivation to return to work, yet two vocational rehabilitation experts have delineated several job classifications that may provide work conducive to her restrictions and limitations. The employer has not shown much interest in bringing claimant back into the work environment. In the instant case, there is evidence that claimant is employable. She has not displayed a great amount of motivation to secure other suitable employment, and while this lack of motivation may be a direct result of the depression, it must be considered when evaluating claimant's overall loss. After considering all of the evidence, it is found that claimant has sustained a 20 percent loss. Finally, the parties were unable to agree upon entitlement to medical benefits. Iowa Code section 85.27 provides, in relevant part: The employer, for all injuries compensable under this chapter or chapter 85A, shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies therefor and shall allow reasonably necessary transportation expense incurred for such services. Given the foregoing points of law, and considering that there is no evidence in the record indicating that the employer or insurance carrier admitted liability for the mental status of the claimant after the physical injuries occurred, it is found that they are responsible for payment of the psychiatric evaluations performed after the work-related injuries occurred. Additionally, defendants are ordered to pay bills from Drs. Misol and Kenney. ORDER THEREFORE IT IS ORDERED: That defendants shall pay claimant permanent partial disability benefits totaling one hundred (100) weeks at the rate of one hundred ninety-four and 07/100 dollars ($194.07) per week beginning September 3, 1991. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. That defendants shall pay interest on benefits awarded herein as 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 an activity report upon payment of this award as requested by this agency, pursuant to rule 343 IAC 3.1. Page 11 Signed and filed this ____ day of July, 1993. ______________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Steven C. Jayne Attorney at Law 5835 Grand Ave., Suite 201 Des Moines, IA 50312 Mr. Joseph S. Cortese II Attorney at Law 500 Liberty Bldg. Des Moines, IA 50309 5-1803 Filed July 29, 1993 Patricia J. Lantz BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DEBBIE ELLIS, Claimant, vs. File Nos. 980097 989779 LIBERTY MUTUAL INSURANCE 993913 COMPANY, A R B I T R A T I O N Employer, D E C I S I O N and LUMBERMAN'S MUTUAL CASUALTY COMPANY, Insurance Carrier, Defendants. ___________________________________________________________ 5-1803 Claimant sustained an injury to her right wrist, which aggravated a preexisting psychological condition. Relying on a recent Iowa Supreme Court case, claimant proved entitlement to industrial disability benefits, and was awarded 100 weeks of permanent partial disability benefits. See, Mortimer vs. Fruehauf. Claimant's profile includes: 34 years of age; little motivation to return to work; severe lifting restriction of five pounds; limited grasping and grabbing ability; and, fragile mental state. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ VICKI MITCHELL, Claimant, File No. 980259 vs. A R B I T R A T I O N IBP, INC., D E C I S I O N Employer, Self-Insured Defendant. ___________________________________________________________ INTRODUCTION This is a proceeding in arbitration brought by Vicki Mitchell, claimant, against IBP, Inc., employer and self-insured defendant for benefits as the result of a repetitive motion injury to claimant's upper extremities which allegedly occurred on three different dates, January 30, 1991 (File No. 980259), April 2, 1991 (File No. 997201) and June 6, 1991 (File No. 997202). A hearing was held in Des Moines, Iowa, on August 16, 1993, and the case was fully submitted at the close of the hearing. Claimant was represented by Robert E. McKinney. Defendant was represented by John M. Comer. The record consists of the testimony of Vicki Mitchell, claimant, Sandra Larson, medical case manager, claimant's exhibits 1 through 13 and defendant's exhibits A through J. PRELIMINARY MATTER At the time of the hearing claimant moved to amend the petition to exclude the left shoulder as a body part which was injured. The amendment to the petition was granted at the time of the hearing. STIPULATIONS The parties stipulated to the following matters at the time of the hearing. That claimant sustained an injury on January 30, 1991, which arose out of and in the course of employment with employer and that it is the only injury involved in this case even though three different petitions allege three different injuries on three different dates and there are three different files with three different claim numbers in this case (Transcript pages 8-11). That the injury of January 30, 1991, was the cause of both temporary and permanent disability. That claimant is entitled to and has been paid temporary disability benefits for two separate periods of time following her two separate surgeries. (1) From April 1, 1991 through April 16, 1991 following the right carpal Page 2 tunnel surgery which took place on April 2, 1991 and (2) from May 14, 1991 through May 28, 1991 following the left carpal tunnel surgery which took place on May 14, 1991 (Ex. 13, pp. 1 & 2). That claimant sustained an injury to both upper extremities caused by a single accident and that she is entitled to permanent disability benefits pursuant to Iowa Code section 85.34(2)(s). That the proper rate of compensation in the event of an award is $187.69 per week (Tran. p. 11). That defendant agreed to pay for the independent medical examination at the time of hearing and therefore the expense of this evaluation is no longer a disputed issue in this case (Tran. p. 11). That defendant agreed to pay for the medical mileage asserted by claimant at the time of hearing and that this medical expense is no longer a disputed issue in this case at this time (Tran. p. 12). That the temporary disability benefits paid to claimant prior to hearing were paid at the rate of $176.37 per week whereas the proper rate of compensation should have been $187.69 per week and the parties have agreed to work out this difference between themselves for these temporary disability benefits without a ruling from this deputy. That in the event of an award of permanent disability benefits that defendant is entitled to a credit for 20 weeks of permanent partial disability benefits paid to claimant prior to hearing at the rate of $176.37 per week in the total amount of $3,527.40. ISSUES The parties submitted the following issues for determination at the time of the hearing. Whether claimant is entitled to additional temporary disability benefits for the period from June 6, 1991 through July 1, 1992 (Tran. pp. 7 & 18). Whether claimant is entitled to permanent disability benefits, and if so the extent of benefit to which she is entitled (Tran. p. 13). Whether defendants are entitled to assert, over the objection of claimant, the affirmative defense that claimant is not entitled to additional temporary disability benefits after June 6, 1991 for the reason that employment was available by employer that claimant was able to perform pursuant to Iowa Code section 85.33(2) and (3) and therefore claimant is barred from receiving additional temporary disability benefits after June 6, 1991 (Tran. pp. 5, 13-15). FINDINGS OF FACT entitlement to additional temporary disability benefits It is determined that claimant is entitled to additional temporary disability healing period benefits for the period from June 6, 1991 through July 1, 1992. Claimant sustained a permanent disability in this case. The treating plastic and reconstructive surgeon, Thomas S. Parks, M.D., as well as an independent evaluating physician Page 3 for claimant, David T. Berg, D.O., who is a doctor of occupational medicine, both determined that claimant sustained permanent impairment. If an employee suffers permanent disability then the type of temporary disability benefits are characterized as healing period benefits. Iowa Code section 85.34(1). An employee is entitled to healing period benefits from the date of the injury until the employee (1) has returned to work, (2) has obtained maximum medical improvement or (3) it is determined that claimant is not medically capable of returning to substantially similar employment, whichever occurs first. Iowa Code section 85.34(1). In this case none of the three foregoing conditions had been met until Michael J. Makowsky, M.D., an occupational medicine doctor, who provided the post surgical care to claimant, determined that claimant had reached maximum medical improvement on July 1, 1992 (Tran. p. 60). He also assessed an impairment rating at that time. Prior to that time, on January 20, 1992, Dr. Makowsky wrote, "I have elected not to do a rating on her at this time. I feel she will slowly improve over time. I plan to see her back in about six months. Therefore, I have determined she has not reached maximum medical healing." (Ex. 2, p. 10). True to his word, Dr. Makowsky on July 1, 1992, wrote, "I saw Ms. Mitchell in my office on July 1, 1992. At that time, I evaluated her for an impairment rating. I have determined she has reached maximum medical healing effective today." (Ex. A, p. 1). Claimant was released to light duty work on May 23, 1991, however, nothing in the statute provides that a release to return to light duty with work restrictions constitutes a termination of healing period. On May 23, 1991, after the second and left carpel tunnel surgery, Dr. Parks wrote, "... I wanted to get her using her hand somewhat. She said she understood. I released her to light duty, less than five pounds, no vibration and no knife." (Ex. B, p. 11; Ex. 1, p. 2). Dr. Parks explained later that she was also restricted from repetitious motion on that release to return to work on May 28, 1991 (Ex. B, p. 8; Ex. 1, p. 2). A release to return to work light duty with significant restrictions cannot be equated to a return to work as that term is used in the statute or a return to substantially similar employment as those words are used in the statute. Iowa Code section 85.34(1). It is clear from Dr. Parks' notes dated June 13, 1991, July 8, 1991, July 29, 1991, August 15, 1991, November 25, 1991 and December 20, 1991, that claimant had not attained maximum medical improvement (Ex. B, pp. 1-16; Tran. pp. 56-58). On December 30, 1991, Dr. Parks stated that his job as a surgeon was done. He referred claimant to Dr. Makowsky for rehabilitation and after care with the possibility of seeing a neurologist, a psychologist, and the eventual determination of an impairment rating by Dr. Makowsky (Ex. Page 4 B, p. 1). On June 13, 1991, July 8, 1991, July 29, 1991, August 15, 1991, September 16, 1991 and November 25, 1991, Dr. Parks was still trying to improve claimant's condition of numbness, tingling, weakness and discomfort in both hands and wrists by physical therapy and consultation with a neurologist (Ex. B, pp. 2, 4-10, 15 & 16; Ex. C, pp. 1 & 2; Ex. D, Ex. E, pp. 1 & 2; Ex. F, pp. 1-5). Dr. Makowsky saw claimant on August 21, 1991, September 4, 1991, September 18, 1991, October 10, 1991, October 25, 1991, November 12, 1991, November 14, 1991, January 13, 1992, January 20, 1992 and on July 1, 1992 (Ex. 2, pp. 1-11). Dr. Makowsky prescribed physical therapy, work hardening and additional EMG/NCV tests. It is clear from Dr. Makowsky's notes that claimant had not achieved maximum medical improvement in his opinion until he made that determination on July 1, 1992 (Ex. 2, p. 11; Ex. A, p.1). Dr. Makowsky prescribed extensive physical rehabilitation and work hardening from several sources from July of 1991 through January 1992 (Tran. p. 61; Ex. 3, pp. 1-18; Ex. C, p.2; Ex. 4, pp. 1-3; Ex. D, p. 2; Ex. 5, pp. 1-3; Ex. 6; Ex. 7, pp. 1 & 2). Although employer did not pay weekly workers' compensation benefits for this period of treatment by Dr. Makowsky, nevertheless, employer did pay for all of this medical treatment during this period of time (Tran. p. 19). On August 8, 1991, Ronald S. Simms, M.D., a neurologist, recommended occupational therapy and anti-inflammatory drug treatment and a repeat EMG/NCV in six months (Ex. F, p. 5). Employer's medical records show that claimant did return to work light duty on May 28, 1991 for right-handed work only, no lifting over five pounds, no knife work and no vibration work (Ex. 9, p. 11; Tran. p. 37). Employer's medical records show that claimant complained on June 5, 1991 of soreness in her right wrist that began on May 31, 1991 to June 1, 1991. The report also shows that claimant felt that supervisors were asking her to handle pieces of meat on the pick lean job that weighed over five pounds (Ex. 9, p. 12). The report shows that claimant was returned to the pick lean job and that if the restrictions were not being met she was to report them to the supervisor or the nurse (Ex. 9, p. 12). The job description for the pick lean job is as follows. JOB DESCRIPTION The light duty worker is responsible for removing pieces of fat with lean from the conveyor belt on the loin line. This worker stands at the conveyor belt, removing pieces of fat with lean from the conveyor belt as it passes the workstation. The pieces of fat with lean weigh a maximum of 4.5 pounds. The Light Duty employee works at his/her own pace. This job can be performed with one or both hands. No walking, climbing, or carrying is required for this job (Ex. 11, p. 1). Claimant's counsel contended that claimant quit her job with Page 5 employer because employer did not provide work that she was able to perform. Counsel contended that she was asked to perform work that made her hands and arms become worse and that this is the reason she gave to employer for leaving this employment when she quit (Tran. pp. 19 & 21). Claimant herself testified that she reported that the reason that she quit was because her hands were swollen, tingling and hurt because of the work that the supervisors had asked her to perform (Tran. pp. 73 & 74). Claimant acknowledged that she was not fired (Tran. p. 66). Claimant related that she did perform the pick lean job after each of her two surgeries (Tran. pp. 33-37). Claimant further related that most of the time she worked full-time, eight hours per day while performing light duty work (Tran. p. 36, 70 & 71). Claimant appears to contend that the restrictions after each surgery were the same but that is not borne out by the medical evidence of record in this case (Tran. pp. 36, 37 & 42; Ex. B, pp. 11 & 12). After the first surgery claimant was released to one-handed light duty. No weight restrictions were given (Ex. B, p. 12). However, the job description of the pick lean job is limited to weights of 4.5 pounds. Claimant testified that a supervisor took her off this job and instructed her to sort loins which were a lot heavier. She said the loins weighed eight to ten pounds heavier. Claimant asserted that she was required to do this on approximately two occasions prior to the surgery on the other hand (Tran. pp. 27-41). After the second surgery the restrictions specified light duty, less than five pounds, no vibration, no knife and no repetitious work (Ex. B, p. 11; Ex. B, p. 8). Thus, claimant was not asked to violate any restrictions after the first surgery. Claimant granted that the pick lean job fit her restrictions after the second surgery except for the fact that it tended to be repetitious (Tran. p. 37). She maintained that after the second and left surgery when she returned to the pick lean job that it caused swelling and tingling in the right hand which she was suppose to be able to use (Tran. p. 43). Claimant also alleged that one day a supervisor required her to perform the butcher boy saw job using a band saw to saw edges off of the back bone of the hog. She said this job requires two hands but that she did it one-handed. She said that these were large bones and weighed more than pick lean meat. Claimant maintained that performing the butcher boy saw job caused her right hand to swell and tingle (Tran. pp. 43-46). Claimant averred that she asked two of her supervisors if they had checked with the nurse and that she was told that the nurse had okayed these other jobs that she was asked to perform (Tran. pp. 47, 69, 71 & 72). Claimant further testified that at one point the nurse gave her the impression that the supervisors had not obtained approval of the nurse for claimant to perform jobs other than the pick lean job (Tran. p. 74). Claimant said that on another occasion a supervisor told her Page 6 to rewrap a box of loins on the cryovac machine. She contended that these loins weighed more than five pounds and "It caused the same problem with the hands hurting and swelling and tingling." (Tran. p. 48). Claimant alleged that on another occasion she was assigned to make boxes which required the use of both hands and that it was repetitive work (Tran. p. 49). She told that on another occasion she was instructed to grab back ribs out of a sink and put them in a box and some of them weighed more than five pounds. She maintained that she did this for several days and that it caused swelling (Tran. pp. 49-51). Claimant asserted that on another occasion she was required to take hams out of a vat and run them through a metal detector and this also caused a lot of swelling (Tran. p. 51). Claimant summarized her post surgery jobs after the second surgery as follows, "I was assigned to pick lean. I ran some butcher boy saw. I made boxes. I sorted loins and did back ribs." (Tran. p. 68). Claimant explained why she quit working in the following language. Q. All right. Why did you leave IBP? A. Mainly because I kept getting put on these jobs and was told that it was okayed by the nurses' station. Come to find out it wasn't okayed. When they didn't have anyone else to put on these jobs, they put me on them. Q. You feel that these jobs made your condition, your injuries worse? A. Oh, yes, it did. Q. And you voiced those concerns to IBP; is that correct? A. To one of my supervisors in particular. Q. Who was that? A. Francis carpenter. Q. What was Mr. Carpenter's response to all these concerns that you voiced? A. I didn't really get all that much response. Q. When you voiced these concerns, did anyone at IBP ever offer you a job that was less demanding physically? A. Well, I was always put back on pick lean, but there was always some supervisor like Mark or Francis or Rich that would come and get me when they needed someone to do something they didn't have anyone else for. Q. And those other jobs were the ones that caused problems? A. Yes. It wasn't the pick lean that caused the problems. It was these other ones (Tran. pp. 53 & 54). Claimant testified that she cannot perform heavy lifting anymore and that it is not uncommon for her to drop things very easily (Tran. pp. 65 & 66). Claimant reaffirmed that when she returned to work light duty that she was working as many hours as the other employees, which was about eight hours and possibly some overtime (Tran. pp. 70 & 71). Claimant further stated that Page 7 since leaving employer she has not been contacted by them to come back to work (Tran. pp. 72 & 73). Sandra Larson, medical case manager, testified that she was the nurse manager from July of 1991 to April of 1992, which is within the time period which is in dispute in this case. Larson testified that she was the nurse at the time of claimant's injury. She testified that the company medical records did not show the jobs that claimant contends that she was asked to perform other than the pick clean job. Larson said she first learned about these jobs at the hearing (Tran. pp. 75 & 78). Larson mentioned that the medical record on the day that claimant quit on June 5, 1991 shows only that claimant was concerned whether or not "... the job pick lean was meeting her restrictions, and her main concern was the 5-pound weight limit. She felt that there were bigger pieces of meat than that." (Tran. pp. 78 & 79). Larson reaffirmed that there were no quotas on the pick lean job. She said that anything that claimant missed went on to become a different type of end product (Tran. p. 79). Larson testified that she was familiar with other light duty jobs which were available to claimant such as the cooker temp monitor which is an observation job watching gauges and which required no use of either hand. Another light duty job that Larson was aware of was called knife room helper which involves handing out knives and folding gloves (Tran. pp. 79-81). However, Larson admitted that the records do not show that any of these job were offered to claimant (Tran. p. 81). Larson verified that the pick lean job did not violate claimant's restrictions because it was under the 5-pound weight limit and it involved no knives, no vibration and no repetitive motion (Tran. p. 81). Larson admitted that employer would have had full knowledge of the continued treatment of claimant by Dr. parks and Dr. Makowsky after she left the employment of employer on June 6, 1991 (Tran. pp. 84 & 85). The reasons why claimant is entitled to the additional healing period benefits requested in this case are as follows. First, after claimant was taken off work for the surgeries she was being actively treated by company authorized physicians, Dr. Parks and Dr. Makowsky, who stated in their medical records that they were endeavoring to improve claimant's physical condition and to bring her to a point of maximum medical improvement after June 6, 1991. Armstrong Tire & Rubber Co. v. Kubli, Iowa App., 312 N.W.2d 60, 65 (1981); Keifer v. Iowa Public Service Company, file no. 830461 (Arb. Decn., June 27, 1991) Keifer is a final decision. Keener v. Harrett Corporation, file number 969789 (Arb. Decn., Feb. 9, 1994). Thus, she had not attained maximum medical improvement. Second, the assessment of a permanent impairment rating, which has been determined to be an indicator of maximum Page 8 medical healing, had not been made. No physician in this case had assessed a permanent impairment rating until July 1, 1992. Thomas v. William Knudson & Sons, Inc., 349 N.W.2d 124, 126 (Ia. Ct. App. 1984); Lowe v. Iowa State Penitentiary, file number 776977 (App. Decn., December 16, 1988); Schutt v. Riverside Book and Bible, file number 666100 (Review-Reopening Decn., January 22, 1990). Third, a release to return to light work is not equated to "returned to work" as those words are used in the statute nor is it in this case equated to "employment substantially similar" as those words are used in the statute. Iowa Code section 85.34(1). Dr. Makowsky, the authorized treating physician, said in January of 1992, that claimant had not attained maximum medical improvement. Furthermore, he said he wanted to see her back again in six months (Ex. 2, p. 10). Six months later on July 1, 1992, Dr. Makowsky declared that claimant had attained maximum medical improvement (Ex. 1, p. 1). Therefore, the event that occurred first pursuant to Iowa Code section 85.34(1) is the determination of maximum medical improvement by Dr. Makowsky on July 1, 1992 and that is when healing period in this case should terminate (Ex. 1, p. 1). As it happened, he also assessed an impairment rating on this date. Fourth, there is no duty on the part of a permanently injured employee to return to light duty work or work within her restrictions. Nor is there any obligation on the part of an injured employee to seek out the employer and attempt to return to light duty work or work with restrictions. If either the employer or insurance carrier wish to mitigate the amount of workers' compensation benefits which they rightfully owe to an injured employee for the full statutory period of temporary disability healing period recovery, then the burden is on defendants to obtain a release to return to work light duty or with restrictions and then seek out the employee and make an offer of light duty work or work within the doctor's restrictions. Morris v. Mike Brooks, Inc., file number 891286, filed July 12, 1991 and affirmed by the industrial commissioner in a short form affirmance on August 27, 1992. This holding also is compatible with Iowa Code section 85.33(2)(3)(4) with respect to temporary partial disability. This statement of the law is further supported by Helmle v. Beatrice Cheese, Inc., file no 918749 (Arb. Decn., November 27, 1991); Ellsworth v. Krause Gentle Oil Company, file number 989938 (Arb. Decn., August 10, 1993). Appealed to Industrial Commissioner, settled September 10, 1993. In this case claimant testified that she was required by her supervisors to perform work which exceeded her restrictions. The testimony of claimant is not controverted, contradicted, rebutted or refuted by any other direct evidence. Neither party subpoenaed the supervisors to find out what their testimony would be on this point. Since the burden of seeking out the employee and providing work that claimant can perform is upon the employer, then the burden of proving Page 9 that the employee was provided work that she could perform is also upon the employer. Defendants did not prove that claimant was provided work that she could perform within her restrictions all of the time. Fifth, a permanently injured employee is not obligated to accept light duty work even when it is offered. The industrial commissioner has determined that temporary disability healing period is not terminated even when the employer offers light duty work to the employee which the employee declines. Webb v. Lovejoy Construction Co., II Iowa Industrial Commissioner Report 430, 441 (Appeal Decn. 1981). With respect to Iowa Code section 85.34(1) the employee is privileged to remain off work until one of the three conditions of that statute is met. This was the determination in Webb. There is nothing in Iowa Code section 85.34(1) or any case law decision that this deputy is aware of that incorporates the provisions of Iowa Code section 85.33(2)(3) or (4) into Iowa Code section 85.34(1). Whether claimant can remain off work with respect to Iowa Code section 85.33(2)(3)(4) will be considered in the next section. Sixth, although (1) the date of a release to return to work, (2) the date of an impairment rating, (3) the date a doctor states maximum healing has occurred and (4) the date a doctor says healing has ended have all been used at different times to determine the termination of healing period, nevertheless, the determination of the termination of healing period for any particular case requires a practical application of the facts of each case and the existing law. Sloan v. National Oats, file 900250 (App. Decn., July 30, 1991); Lawyer and Higgs, Iowa Workers' Compensation--Law and Practice, (2d ed.) section 13-3, pages 120 and 121; Collins v. K mart, file number 921081 (Arb. Decn., March 11, 1993). Wherefore, based upon the facts summarized above and the legal authorities cited above it is determined that claimant is entitled to additional temporary healing period disability benefits for the period from June 6, 1991 the date she left work because she was unable to perform it through July 1, 1992 the date the treating physician determined that she attained maximum medical healing and also assessed a permanent impairment rating. affirmative defense-iowa code section 85.33(2)(3) "work consistent with the employee's disability" First, it is determined that defendant is not entitled to assert this defense in this case (Tran. p. 5, 14 & 15). Defendants first mention of this defense referring to Iowa Code section 85.33 was at the time of the hearing. Claimant's counsel said that he was not prejudiced insofar as he would have performed more discovery, however, he objected to this defense being raised for the first time at the time of hearing (Tran. p. 14). The prehearing conference report signed by both parties on Page 10 January 6, 1993, approximately eight months prior to this hearing, did not specify that defendant was asserting this or any other affirmative defense. Defendant did not amend the answer at any time prior to hearing. The hearing assignment order at paragraph 9, Hearing Issues, states "Unless otherwise agreed in writing, the issues to be heard are those identified in the prehearing conference report." There is no such agreement in writing and claimant's counsel objected to a determination of this issue when it was proposed by defendant at the beginning of the hearing. Furthermore, asserting a new and different statutory defense for the first time at the time of hearing is not consistent with the Iowa Rules of Civil Procedure, the Iowa Administrative Procedure Act, or the rules of the Industrial Commissioner which are designed to enable counsel to be prepared for hearing. Both parties should be apprised of the issues to be decided in the case in advance of the hearing so that both parties can be prepared to meet the issues at the time of the hearing. Second, assuming for purposes of argument that this defense was not barred from determination, then defendants introduced no evidence to show that Iowa Code section 85.33(2)(3)(4) were applicable because defendants did not show that claimant was ever offered or paid any temporary partial disability benefits. The undisputed evidence of record is the testimony of claimant that she was working full-time eight hours per day or more right along with other employees. The evidence establishes that she was a full-time employee. Defendants did not establish that claimant was temporarily, partially disabled or that claimant was ever compensated with temporary partial disability benefits. Iowa Code section 85.33(3) and (2). There is no evidence that claimant was ever paid 66 2/3 percent of the difference between her earnings at the time of the injury and her earnings during a period of temporary partial disability. Iowa Code section 85.33(4). Third, moreover, further assuming that defendants were entitled to assert this defense, then defendants have not demonstrated that claimant was offered "other work consistent with the employee's disability." Iowa Code section 85.33(2). Claimant testified that the work which she was required to perform exceeded her restrictions several times on the jobs that she was asked to perform and claimant's testimony was not controverted, contradicted, or rebutted or refutted. Wherefore, it is determined that if this affirmative defense was entitled to determination in this decision that defendants have failed to sustain the burden of proof by a preponderance of the evidence that claimant was temporarily partially disabled, or was paid temporary partial disability benefits. The burden of proof is upon the proponent of an issue. Norland v. Iowa Department of Job Service, 412 N.W.2d 409, 410 (Iowa 1987); Wonder Life v. Liddy, 207 Page 11 N.W.2d 27 (Iowa 1973). The party who would suffer a loss if an issue were not established has the burden of proving that issue. Iowa Rules of Appellant Procedure, Rule 14 f(5); Williams v. Quaker Oats Co., file number 1013375, (Arb. Decn., January 13, 1994). The supreme court has determined that the burden of proof of affirmative defenses is upon defendants. Everts v. Jorgensen, 227, Iowa 818, 289 N.W. 11, (Iowa 1939). The industrial commissioner follows this precedent and has also determined that the burden of proof of affirmative defenses is upon the employer. Schaapveld v. University of Iowa, file number 814525, Appeal Decn., August 15, 1989. Therefore, if this issue had been entitled to determination in this decision it would have been determined that defendants failed to sustain the burden of proof on this issue. Furthermore, there is nothing in Iowa Code section 85.33 that indicates that it has any application to healing period benefits which are authorized in Iowa Code section 85.34(1). Nor is this deputy aware of any case law connecting or relating the requirements of Iowa Code section 85.33(2), (3) or (4) to Iowa Code section 85.34(1), with respect to the words of section 85.33(3) to the effect that "If the employee refuses to accept the suitable work the employee shall not be compensated with temporary partial, temporary total, or healing period benefits during the period of the refusal." Iowa Code section 85.33 is a section of the code that is entitled Temporary Total and Temporary Partial Disability. Its application therefore must be limited to that scope i.e., temporary disability. It should not be judicially extended to healing period benefits which are an entirely different section of the code that cover temporary disability benefits when permanent disability is involved. entitlement to permanent disability It is determined that claimant has sustained a 6 percent permanent impairment to the body as a whole caused by a single accident pursuant to Iowa Code section 85.34(2)(s) because this is an injury to both arms and that claimant is entitled to 30 weeks of permanent partial disability benefits. Dr. Parks did not give an impairment rating but rather delegated the task to Dr. Makowsky (Ex. 1, p. 3). Dr. Makowsky rendered the following permanent impairment rating and permanent restriction. Based upon the American Medical Association's, "Guides to the Evaluation of Permanent Impairment", third edition revised, Ms. Mitchell has sustained a 3% impairment of the right hand and wrist and a 3% impairment of the left hand and wrist secondary to residual symptoms from her bilateral carpal tunnel surgery. I recommend that she have the following permanent restriction: 1. Avoid repetitive use of both hands and wrists (Ex. A, Page 12 p. 1). Converting and combining, 3 percent of the hand is equivalent to 3 percent to the upper extremity and 3 percent of the upper extremity converts to 2 percent of the whole person. When 2 percent of the whole person is combined for each arm it amounts to 4 percent of the whole person using the AMA Guides, third edition revised, which was used by Dr. Makowsky, Table 2 on page 16, Table 3 on page 16, and the Combined Values Chart on page 254. Dr. Berg performed an independent medical evaluation on February 3, 1993, based upon the third edition of the AMA Guides, and gave the following assessment. In conclusion, I believe that Ms. Mitchell has sustained a 7% impairment to the right upper extremity and a 3% impairment to the left upper extremity based on loss of strength and residual carpal tunnel symptoms. Referring to the above-mentioned guidelines, on Page 20, Table 3, a 7% impairment to the upper extremity is equal to a 4% impairment to the whole person. A 3% impairment of the upper extremity is equal to a 2% impairment of the whole person. Using the Combined Values Chart on Page 246, this results in a 5% impairment to the whole person (Ex. G, p. 5). From the evidence submitted it appears to the deputy that Dr. Berg gave claimant the most detailed examination and personalized evaluation of her residual problems as well as the best explanation of how he arrived at his rating. Dr. Berg's rating also comports best with the intractable nature of claimant's bilateral carpal tunnel injury, the long period of treatment, the months of physical therapy and work hardening and the remaining result which is somewhat short of a complete recovery. Dr. Berg's evaluation also comports best with claimant's own description of her problems, in particular so far as her right arm is worse than the left. There is one problem with Dr. Berg's evaluation. It may be a typographical error, nevertheless, it needs to be corrected. Using the Guides to the Evaluation of Permanent Impairment, 3rd edition, as Dr. Berg did, when 4 percent of the whole person is combined with 2 percent of the whole person on the Combined Values Chart on page 246 the result is a 6 percent impairment of the whole person rather than a 5 percent impairment. Therefore, it is determined that claimant has sustained a 6 percent impairment of the whole person in this case. Dr. Berg also imposed permanent restrictions against repetitive grasping, grasping with her hands, and repetitive flexion and extension of her wrists (Ex. G, p. 5). Wherefore, it is determined that claimant has sustained a 6 percent permanent impairment to the body as a whole as a result of her bilateral carpel tunnel injury to both arms caused by a single accident pursuant to Iowa Code section 85.34(2)(s) and that claimant is entitled to 30 weeks of permanent partial disability benefits. conclusions of law Page 13 Wherefore, based upon the foregoing and following principles of law, these conclusions of law are made: That claimant has sustained the burden of proof by a preponderance of the evidence that she is entitled to additional healing period benefits for the period from June 6, 1991 through July 1, 1992. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945); Iowa Code section 85.34(1). That defendant did not sustain the burden of proof by a preponderance of the evidence that they are entitled to assert the defense of Iowa Code section 85.33 (2) and (3) for the first time at the time of hearing based upon (1) the agreement of the parties in the prehearing conference report, (2) the directive of the industrial commissioner in the hearing assignment order, and the (3) general principles of preparing the case for hearing found in Iowa Rules of Civil Procedure, the Iowa Administrative Procedure Act and the Rules of the Industrial Commissioner. That claimant has sustained the burden of proof by a preponderance of the evidence that she has sustained a 6 percent permanent impairment to the whole person based upon this bilateral carpal tunnel injury to both arms pursuant to Iowa Code section 85.34(2)(s). ORDER THEREFORE, IT IS ORDERED: That defendant pay to claimant fifty-six (56) weeks of temporary disability healing period benefits for the period from June 6, 1991 through July 1, 1992 at the stipulated rate of one hundred eighty-seven and 69/100 dollars ($187.69) per week in the total amount of ten thousand five hundred ten and 64/100 dollars ($10,510.64) commencing on June 6, 1991. That defendant pay to claimant thirty (30) weeks of permanent partial disability benefits based upon a six percent (6%) permanent impairment to the whole body at the stipulated rate of one hundred eighty-seven and 69/100 dollars ($187.69) per week in the total amount of five thousand six hundred thirty and 70/100 dollars ($5,630.70) commencing on July 2, 1992. That defendant is entitled to a credit for twenty (20) weeks of permanent partial disability benefits paid to claimant prior to hearing at the rate of one hundred seventy-six and 37/100 dollars ($176.37) in the total amount of three thousand five hundred twenty-seven and 40/100 dollars ($3,527.40) as stipulated to by the parties. That all of these benefits are to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That the costs of this action, including the cost of the attendance of the court reporter at hearing and the cost of the transcript, are charged to defendants pursuant to rule 343 IAC 4.33 and Iowa Code section 86.19(1) and 86.40. That defendant file claim activity reports as requested by Page 14 this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of March, 1994. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Robert E. McKinney Attorney at Law 480 Sixth Street PO Box 209 Waukee, IA 50263 Mr. John Comer Attorney at Law PO Box 515 Dakota City, NE 68731 1401, 1402.40, 1802, 2901, 2902, 1802 Filed March 31, 1994 Walter R. McManus BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ VICKI MITCHELL, Claimant, File No. 980259 vs. A R B I T R A T I O N IBP, INC., D E C I S I O N Employer, Self-Insured Defendant. ___________________________________________________________ 1401, 1402.40, 1802 Defendant admitted injury and paid claimant for two short periods of temporary disability, once following a right carpel tunnel surgery and again following a left carpel tunnel surgery. Claimant was released to return to work light duty with restrictions of five pounds, no knife work, no vibration, no repetitive work. After a few days claimant quit her job contending (1) it caused swelling, pain, numbness and tingling and (2) the supervisors asked her to perform work in violation of her restrictions. Claimant's testimony was credible; it was not controverted; and it was accepted as true. Employer's nurse testified that they had other even lighter duty jobs but she could not testify that any of them were ever offered to claimant. Claimant was awarded additional temporary disability benefits for the period requested by claimant. This was a little over a year because after surgery the treating physician, who was authorized by defendant, determined that claimant had not reached maximum medical improvement. Both the surgeon, and the after care physician, stated that they were trying to improve claimant's condition with medications, physical therapy and work-hardening during this period of time. With respect to section 85.34(1) the employee is privileged to remain off work until one of the three conditions in the statute is met. It was determined that healing period continues while the physicians are endeavoring to achieve medical improvement and claimant is showing some improvement. Cites. It was determined that a permanently injured employee has no duty to seek out employer and arrange for light duty Page 2 work. If an employer wishes to mitigate the statutory period of healing to which an injured employee is entitled, then the burden is on employer to provide light duty work and persuade the employee to accept it. Cites. It was determined that a release to return to light duty work with restrictions by a physician cannot be equated to a return to work or a return to substantially similar employment as those words are used in section 85.34(1), even though the employer provides work within those restrictions. It was determined that healing period terminated when claimant attained maximum medical improvement and a permanent impairment rating was assessed. Cites. Several other factors that have been used to terminate healing period were cited but it was determined that the termination of healing period requires a practical application of the facts of each case and the existing law. Cites. There is no language in section 85.34(1) that incorporates any of the provisions of section 85.33(2) or (3) permitting an employer to terminate healing period benefits. 2901, 2902, 1802 It was determined that employer could not assert for the first time at the time of hearing that Iowa Code sections 85.33(2) and (3) were a defense for the termination of healing period benefits because of the employees refusal to accept suitable work. This defense was not asserted in the answer to the petition. It was not asserted in the prehearing conference report. It is inconsistent of the intent and purpose of the Iowa Rules of Civil Procedure, the Iowa Administrative Procedure Act and the Rules of the Industrial Commissioner, which allow parties to adequately prepare for a hearing, to raise a new issue for the first time at the time of hearing. As dicta, however, and to address all of the possible issues in the case the following determinations were made. With respect to Iowa Code sections 85.33(2) and (3) it was determined that defendant introduced no evidence that claimant was ever offered or was paid any temporary partial disability benefits. There was no evidence she was ever paid sixty-six and two-thirds of the difference between regular and temporary pay. On the contrary, the evidence established that claimant was a full-time employee during her short return to work. It was determined that employer did not offer claimant "other work consistent with the employee's disability." as those words are used in Iowa Code sections 85.33(2) and (3) because some of the work offered exceeded her restrictions. Furthermore, it was determined that section 85.33 is a temporary total and temporary partial disability statute for Page 3 injuries that are temporary in nature. This section should not be extended to section 85.34(1) which is healing period benefits for injuries which are permanent in nature. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ BILLIE JOE WETHERELL, Claimant, vs. File No. 980265 HOPKINS CONTRACTING, INC., A R B I T R A T I O N Employer, D E C I S I O N and CNA INSURANCE COMPANY, Insurance Carrier, Defendants. ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Billie Joe Wetherell as a result of alleged injuries to his shoulder and cervical spine which occurred on February 1, 1991. The defendants denied liability and multiple issues are presented for determination. This case was heard and fully submitted at Sioux City, Iowa on March 6, 1995. The record in the proceeding consists of claimant exhibits A through O, defendants exhibits A through F and testimony from Billy Joe Wetherell, Linda Hopkins, Steve Hopkins and Gary Moberg. Claimant was represented by Kay E. Dull, Attorney at Law. Defendants were represented by Michael P. Jacobs, Attorney at Law. ISSUES The issues presented for determination are as follows: 1. Whether claimant sustained an injury on February 1, 1991, which arose out of and in the course of employment; 2. Whether the injury is a cause of permanent disability the nature and extent thereof; 3. Whether claimant is entitled to Iowa Code section 85.27 medical benefits their authorization, fairness and reasonableness and causal connection to the work injury; and 4. Whether defendants are entitled to credits against any award for payment of weekly benefits and the number of weeks for which a credit is to be had. FINDINGS OF FACT Having heard the testimony of the witnesses and having considered all of the evidence in the record, the deputy industrial commissioner finds: Claimant, Billie Joe Wetherell began work for the employer as a laborer on April 6, 1989. In early December of 1990 claimant was working in South Sioux City, Nebraska, when he slipped and fell into a ditch. Claimant did not immediately seek medical treatment as a result of the slip and fall nor did he complain of pain in his cervical spine or shoulder immediately after that incident. Later in early 1991 claimant was working at Moville, Iowa, installing the water heater which weighed approximately 165 pounds. Claimant provided a medical history that the work performed while installing a water heater resulted in pain in his cervical spine and shoulder. Claimant also gave a history that the water heater weighed 800 pounds when in fact it weighed approximately 165 pounds. Claimant testified at hearing that on or about February 1, 1991, he had in fact slipped and fell in a ditch while performing work for the employer in South Sioux City, Nebraska. Claimant also testified that on or about the same day he then went to Moville to install the water heater and thereby aggravated the injury. Based upon a review of the evidence it appears that claimant was in error with respect to the day that he fell in South Sioux City, Nebraska and with respect to the day that he assisted in the water heater installation at Moville, Iowa. Claimant first sought medical treatment for the cervical spine and shoulder complaints on February 12, 1991 (Defendant Exhibit A). Claimant reported that he had right shoulder pain since the prior week. He also reported that he had picked up a child several days prior to onset and that was the only significant event which had occurred. On March 8, 1991, claimant gave a medical history that he had no specific injury or pressure and that the pain had begun one month earlier (Def. Ex. B). On April 15, 1991, a medical history was taken which indicated that claimant fell backwards into a ditch in late December of 1990 with some pain in the cervical spine which had resolved. The medical history also indicates that claimant was straining in early February with a gradual onset of right arm and right shoulder pain (Claimant Exhibit H). It is found that medical records created close in time to the alleged incident must be given greater weight. Those records were made at a time when the events were still fresh in the mind of all parties involved. Furthermore, the documentation was created when litigation had not yet commenced and there was no financial motivation on the part of the doctors or claimant. Therefore, the older medical records will be given greater consideration where a conflict exists in medical histories given. REASONING AND CONCLUSIONS OF LAW The first issue is whether claimant sustained an injury on February 1, 1991, which arose out of and in the course of employment with the employer. A personal injury contemplated by the workers' compensation law means an injury, the impairment of health or a disease resulting from an injury which comes about, not through the natural building up and tearing down of the human body, but because of trauma. The injury must be something which acts extraneously to the natural processes of nature and thereby impairs the health, interrupts or otherwise destroys or damages a part or all of the body. Although many injuries have a traumatic onset, there is no requirement for a special incident or an unusual occurrence. Injuries which result from cumulative trauma are compensable. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 1219, 38 N.W.2d 158 (1949); Almquist v. Shenandoah Nurseries, Inc., 218 Iowa 724, 254 N.W. 35 (1934). An occupational disease covered by chapter 85A is specifically excluded from the definition of personal injury. Iowa Code section 85.61(5); Iowa Code section 85A.8. 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). It is held that claimant has failed to establish by a preponderance of the evidence that he sustained an injury on or about February 1, 1991, which arose out of and in the course of employment with the employer. Claimant has the burden of establishing credible evidence to support a work-related injury. In this situation multiple inconsistencies existed within the record. First, it was clear that claimant could not have experienced an injury on February 1, or within several weeks of February 1, 1991 in South Sioux, Nebraska. The medical records document a slip and fall in December of 1990 as opposed to February of 1991. Furthermore, it is clear that claimant was not lifting an 800 pound water heater. Instead, claimant had the opportunity to install a water heater which weighed about 165 pounds. Such inconsistencies cause less weight to be given claimant's testimony. Finally, the medical records created early in claimant's medical treatment indicate an onset not connected to any traumatic event. It was not until after claimant had treated for two months that he related the onset of symptoms to work-related events. Such inconsistencies severely detract from the weight given evidence supporting a work-related injury. Therefore, it must be concluded that claimant has failed to bring forth sufficient credible evidence to establish by a preponderance of the evidence that he sustained an injury on or about February 1, 1991, which arose out of and in the course of employment with Hopkins Contracting, Inc. Since this issue is dispositive of the entire case further discussion is not warranted. ORDER IT IS, THEREFORE, ORDERED: Claimant shall take nothing from file number 980265. It is further ordered that claimant's petition in file number 980265 is hereby dismissed. It is further ordered that each party shall bear their own costs incurred with the prosecution of this action. Signed and filed this ____ day of March, 1995. ______________________________ MARLON D. MORMANN DEPUTY INDUSTRIAL COMMISSIONER Copies to: Ms. Kay E. Dull Attorney at Law 509 Ninth Street PO Box 3107 Sioux City, IA 51102 Mr. Michael P. Jacobs Attorney at Law 300 Toy National Bank Bldg. Sioux City, IA 51101 5-1402.30 Filed March 10, 1995 Marlon D. Mormann BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ BILLIE JOE WETHERELL, Claimant, vs. File No. 980265 HOPKINS CONTRACTING, INC., A R B I T R A T I O N Employer, D E C I S I O N and CNA INSURANCE COMPANY, Insurance Carrier, Defendants. ___________________________________________________________ 5-1402.30 Claimant failed to establish by a preponderance of the evidence that he sustained an injury on February 1, 1991, arising out of and in the course of employment. Inconsistent medical histories along with inconsistent statements made by claimant detracted from the weight given claimant's testimony as to a work injury. It was held that claimant failed to establish by a preponderance of the evidence a work injury due to the numerous inconsistencies.