BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ WESLEY R. JOHNSON, Claimant, File No. 478162 vs. REVIEW-REOPENING CHICAGO BRIDGE AND IRON CO., DECISION Employer, Self-Insured, Defendants. ________________________________________________________________ STATEMENT OF THE CASE This is a proceeding in review-reopening brought by Wesley R. Johnson, claimant, against Chicago Bridge and Iron Co., employer, a self-insured defendant, for the recovery of further workers' compensation benefits as the result of an injury on October 7, 1977. Two prior final review-reopening decisions were filed on November 30, 1981 and May 31, 1985. There was also a prior agreement for settlement filed on August 31, 1989 which only extended the time period within which claimant was allowed to commence another review- reopening proceeding. On June 14, 1994, a hearing was held on claimant's latest petition for review-reopening and the matter was considered fully submitted at the close of this hearing. The parties have submitted a hearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. The oral testimony and written exhibits received during the hearing are set forth in the hearing transcript. According to the hearing report, the parties have stipulated to the following matters: 1. Claimant is not seeking temporary total or healing period benefits in this proceeding. 2. If permanent partial disability benefits are awarded, they shall begin as of June 14, 1994. 3. Claimant's weekly rate of compensation remains at $228.00 for permanent partial disability benefits. 4. The medical bills submitted by claimant at the hearing are fair and reasonable and causally connected to the back and leg condition upon which the claim herein is based but that the issue of their causal connection to the original work injury remains an issue to be decided herein. ISSUES The parties submitted the following issues for determination in this proceeding: I. The extent of claimant's entitlement to permanent disability benefits. II. The extent of claimant's entitlement to medical benefits. FINDINGS OF FACT Having heard the testimony and considered all of the evidence, the deputy industrial commissioner finds as follows: Claimant, Wesley Johnson, age 39, is a union boilermaker. At the time of the injury, he was working for Chicago Bridge. Both before and after the injury, Wesley's work was limited to welding and for the last few years in specialized robotic welding for which he has been specially trained. Wesley continues to work as a boilermaker/welder today working for various employers out of the union hall. The injury on October 7, 1977 occurred when Wesley was 21 years of age. Wesley suffered two compression fractures in the lumbar (low) back at spinal levels L1 and L3 when he fell from a scaffold onto a concrete floor. He has had chronic low back and right leg pain ever since. The first review-reopening decision of this agency was filed on November 30, 1981. In that decision, Wesley was found to have suffered a 27 percent industrial disability or loss of earning capacity as a result of the injury and permanent partial disability benefits were awarded accordingly. A second review-reopening proceeding was commenced a few years later and in a final agency appeal decision filed May 31, 1985 it was found that claimant also suffered a herniated disc at the L5/S1 spinal level and that his condition had deteriorated since the last proceeding as a result of the injury. Wesley's industrial disability at that time was found to have increased by 8 percent and an additional 40 weeks of benefits were awarded. At hearing, Wesley stated that he believes his condition has deteriorated further. He stated that his symptoms of low back and right leg pain were the same but have worsened. Wesley's primary care physician over the years for this injury has been Ronald O. Schwab, M.D., a board certified orthopedic surgeon. Dr. Schwab's records show a steady pattern of similar complaints of chronic radicular back pain with various attempts over the years to try different treatment modalities of medications, physical therapy and steroid injections. Prior to the last proceeding, chymopapain therapy had been attempted at the L5/S1 level with little success. In his report of September 3, 1992, Dr. Schwab notes additional degenerative changes in the discs at new levels in claimant's lower spine such as L3/4 and L4/5 along with L5/S1. He stated at that time that these new problems may be the source of his symptoms at that time. Also, surgery was discussed at that time with claimant but nothing definite was decided. At hearing, Wesley stated that he believes that eventually he will require surgery but this has not been done at the present time. Dr. Schwab's diagnoses since 1984 have remained essentially unchanged; that being chronic radicular syndrome. He prescribed a newer model back brace. In a January 9, 1989 report, Dr. Schwab opined that claimant had a 20 percent whole body impairment from the prior compression fractures and treatment at the L5-S1 level but noted a slightly progressive increase in symptoms. In March 3, 1993, he lowered this to 15 percent of the whole person due to persistent symptomatology. His last examination note for June 1, 1994 indicated that the exam was unchanged from previous exams and his impression was as follows: "DJD of the lumbar spine, history of prior chemonucleolysis L5/S1 level and possible mild disc herniation L4/L5 level." (Ex. 1, p. 73). Dr. Schwab stated that claimant would require continuing treatment but gave no opinion as to the causal connection of the problems he found at spinal levels other than those found work-related in the prior proceedings. Apparently, in July 1993, he suffered an aggravation of his back and was off work for a few days while working for a different employer. However, there appears no real change in Wesley's overall condition as a result of this injury and after his return to work he returned to his prior chronic back pain symptomatology. Another physician, Alan H. Fruin, M.D., from the Creighton University School of Medicine in Omaha, Nebraska also has evaluated Wesley. In a written report in June 1993, he opined that Wesley required no further diagnostic studies but that treatment in the future should consist of medications for occasional symptoms. Dr. Fruin also stated at that time that he did not believe there was additional permanent disability since 1985. In a report one year later in June 1994, Dr Fruin states that claimant's back is continuing to deteriorate. This deterioration involves both the initial 1977 problem and from normal wear and tear of other structures in the spine aggravated by claimant's continued heavy work as a welder. Wesley testified that since the last hearing he has continued to work as a boilermaker/welder. Also, since that time, his work has become somewhat lighter as he is now trained as a robotics welder which uses a robot to perform the actual welding operations. Wesley states that such jobs are usually shorter in duration but require longer hours. He continues to work full time and takes all of the overtime offered. Although Wesley testified that he accepts only lighter duty jobs from the union hall, he admitted he has not suffered any loss in income since the last hearing. Although Wesley's income is sporadic, it is normal for boilermakers working out of a union hall. His annual income has increased on average since the last hearing. From the evidence presented, it could not be found that claimant suffered a significant change in his physical or economic condition since that last review-reopening proceeding. No change in physician impairment ratings were shown. If anything, the ratings today are lower than found in the last proceeding. Wesley admitted at hearing there was no change in work restrictions. His view that his work- related condition has worsened is not supported by the medical evidence. He watches what he does but this is no different that at the time of the last hearing. Also, nothing has been offered to show causal connection of the new problems at other levels of the spine to the original work injury of 1977. Furthermore, even if there had been a slight change in physical condition, Wesley has not suffered any further loss of earning capacity or industrial disability. Wesley continues to work in his chosen occupation. He is still relatively young. He has no additional work activity restrictions. He earns today the normal wage for a union boilermaker. He has worked when work was available. The brief loss of work in the summer of 1993 was an aggravation injury from work for another employer but it did not appear to materially change his condition. However, it is found that the entire back condition treated by Dr. Schwab since the last review-reopening proceeding and the requested medical expenses are causally connected to the 1977 work injury. Defendant has failed to demonstrate a rational basis to apportion-out treatment of non-work related conditions from the requested medical expenses. Dr. Schwab has found problems at other levels of the lower spine but treatment of those problems occurred in conjunction with on-going treatment of the original 1977 chronic problems found work-related in the last review- reopening decision. The therapies and medications were prescribed for claimant's total condition. It is also found that defendant has totally abandoned responsibility for treating claimant and that future treatment of the 1977 injury is needed, including a probability of eventual surgery. The most appropriate physician to treat claimant in the future is Dr. Schwab or physicians and therapists referred to claimant by Dr. Schwab given the doctor's extensive past involvement in claimant's case. CONCLUSIONS OF LAW I. In a review-reopening proceeding, claimant has the burden of establishing by a preponderance of the evidence that he suffered a change of condition or a failure to improve as medically anticipated as a proximate result of his original injury, subsequent to the date of the award or agreement for compensation under review, which entitles him to additional compensation. Deaver v. Armstrong Rubber Co., 170 N.W. 2d 455 (Iowa 1969). Meyers v Holiday Inn of Cedar Falls, 272 N.W. 2d 24 (Iowa Ct. App. 1978). Such a change of condition is not limited to a physical change of condition. A change in earning capacity subsequent to the original award which is proximately caused by the original injury also constitutes a change in condition under Iowa Code section 85.26(2) and 86.14(2). See McSpadden v Big Ben Coal Co., 288 N.W. 2d 181, (Iowa 1980); Blacksmith v All-American, Inc., 290 N.W. 2d 348 (Iowa 1980). If claimant shows a slight change in his physical condition but if this slight change does not result in any new restrictions on claimant's employment, such a change of condition is insufficient to support an award of additional industrial disability. Doyle v Land O'Lakes, Inc., Appeal Decision Filed 11/30/87. The question of causal connection is essentially within the domain of expert medical opinion. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W. 2d 167 (1960). The opinion of experts need not be couched in definite, positive or unequivocal language and the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag v. Ferris Hardware, 220 N.W. 2d 903 (Iowa 1974). The weight to be given to such an opinion is for the finder of fact to determine from the completeness of the premise given the expert or other surrounding circumstances. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W. 2d 867 (1965). Industrial disability is not measured solely by the extent of a functional impairment or loss of use of a body member. A disability to the body as a whole or an "industrial disability" is a loss of earning capacity resulting from the work injury. Diederich v Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A physical impairment or restriction on work activity may or may not result in such a loss of earning capacity. Examination of several factors determines the extent to which a work injury and a resulting medical condition caused an industrial disability. These factors 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. See Peterson v Truck Haven Cafe, Inc. vol. 1, no. 3 Iowa Industrial Commissioner Decisions 654, 658 (Appeal Decision, Feb. 28, 1985). In the case under consideration, claimant failed to show a change of condition and cannot prevail on the issue of entitlement to additional weekly benefits. II. Pursuant to Iowa Code section 85.27, claimant is entitled to payment of reasonable medical expenses incurred for treatment of a work injury. Claimant is entitled to an order of reimbursement if he/she has paid those expenses. Otherwise, claimant is entitled only to an order directing the responsible defendants to make such payments directly to the provider. See Krohn v. State, 420 N.W. 2d 463 (Iowa 1988) After establishing causal connection, the claimant does not have the burden to show that apportionment should not occur due to possible non-work related conditions. There is no agency precedent as to this precise point of law. Drawing from the general law of torts, the undersigned believes that the correct law is that claimant has no such additional burden after establishing a prima facie case for causation. The plaintiff in a personal injury case is not normally charged with a burden of proof as to the actual apportionment of damages. Any burden of that nature must be assumed by the defendant, since the defendant is the party standing to gain by litigating the apportionment issue. 2 Damages in Tort Actions, section 15.34(1)(a); Wonder Life Company v. Liddy, 207 N.W. 2d 27 (Iowa 1973). If no apportionment can be made the defendant is responsible for the entire damage. Becker v. D & E Distributing Co., 247 N.W. 2d 727, 731 (Iowa 1976). In the case under consideration, causal connection of the requested medical expenses was found. Although other conditions possibly non-work related were treated at the same time, defendant, as the party standing to benefit from raising the apportionment issue, failed to present any evidence to provide a means of apportionment. From the evidence presented, there was no method the undersigned could use to separate work and non-work related treatment rendered to claimant at the same time for his entire back condition. Therefore, since a significant portion of the treatment is the result of the 1977 work injury, all of the expenses will be awarded. Also, given the need for future treatment, defendant will be directed to provide care at their cost as recommended and provided by Dr Schwab or medical providers referred to claimant by Dr. Schwab. ORDER 1. Claimant's claim for weekly permanent disability benefits is dismissed with prejudice. 2. Defendant shall pay the medical expenses listed in exhibit 1, page 85, in the amount of four thousand nine hundred ninety-two and 51/100 dollars ($4,992.51) (Transcript, page 6). Defendant shall also provide all medical care without cost to claimant as recommended and provided by Ronald Schwab, M.D. or those medical providers referred to claimant by Dr. Schwab. 3. Defendant shall pay the costs of this action pursuant to rule 343 IAC 4.33, including reimbursement to claimant for any filing fee paid in this matter. 4. Defendant shall file activity reports on the payment of this award as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of June, 1995. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Dennis L. Hanssen Attorney at Law 2700 Grand Ave., Ste. 111 Des Moines, IA 50312 Ms. Helen C. Adams Mr. F. Richard Lyford Attorneys at Law 1600 Hubb Tower 699 Walnut St. Des Moines, IA 50309-3986 BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ SHARON K. MANNING, Claimant, File Nos. 481989/726458 VS. A P P E A L RALSTON PURINA COMPANY, D E C I S I 0 N Employer, and LIBERTY MUTUAL INSURANCE CO., and AETNA LIFE AND CASUALTY Insurance Carriers, Defendants. _________________________________________________________________ _ STATEMENT OF THE CASE Claimant appeals from a proposed consolidated review-reopening and arbitration decision in which she was denied further benefits as a result of a job-related injury of November 15, 1977 but was awarded temporary total disability for 107 4/7 weeks as a result of an injury on December 10, 1982. The record on appeal consists of the filings in both files of the parties and the transcript of the hearing proceedings together with claimant's exhibit 1. All parties filed briefs on appeal. ISSUES Claimant contests the exclusion of claimant's testimony regarding causal relationship between her employment termination and her injury of December 10, 1982 as it relates to her disability. Claimant further contests the finding of no additional permanent partial disability.as a result of her injuries. Claimant further contests the findings regarding her credibility, lack of symptoms, lack of change of condition, lack of motivation and insignificant loss of earnings related to her 1982 injury. REVIEW OF THE EVIDENCE The proposed decision adequately and accurately reflects the pertinent evidence and it will not be reiterated herein. Briefly stated, claimant received an injury to her back on November 15, 1977 for which she ultimately received an award on May 17, 1984 of 26 percent permanent partial disability of the body as a whole. On December 10, 1982 claimant sustained another injury to her back resulting in lost time and treatment. Following the December 1982 injury claimant's employment with defendant-employer Ralston Purina was terminated. The May 17, 1984 review-reopening decision reflects the following finding of fact concerning claimant's termination: "Claimant was terminated by her employer as a result of excessive absenteeism. A number of her absences result from her work injury. others resulted from unrelated personal problems of claimant." Additionally, defendant-Liberty Mutual's hearsay objections to conversations between claimant and her supervisors concerning her termination were sustained in the May 17, 1984 decision. However, at the August 27, 1985 hearing, claimant once again testified concerning a conversation with her supervisors concerning her termination. Defendant-Liberty Mutual and defendant-Aetna who did not participate in the earlier hearing objected to that testimony on the grounds that the reason for claimant's termination had already been determined by the May 17, 1984 decision. Those objections were sustained by the deputy in his proposed review-reopening and arbitration decision filed October 15, 1985. APPLICABLE LAW The citations of law in the proposed review-reopening and arbitration decision are appropriate to the issues and evidence. They are adopted herein. ANALYSIS Claimant contends on appeal that the deputy improperly excluded evidence concerning the causal relationship between her employment termination and her injury of December 10, 1982. The deputy excluded that evidence on the grounds that the issue of claimant's termination was res judicata because a finding of fact was made in the review-reopening decision filed May 17, 1984 concerning claimant's employment termination. However, further review of the May 17, 1984 review-reopening decision lends support to claimant's contention that the issue of her employment termination is not res judicata with respect to her injury of December 10, 1982. Although its occurrence was acknowledged and considered as a factor in the determination of disability as a result of the 1977 injury, no award for disability related to the December 10, 1982 injury was made in the May 17, 1984 decision. Additionally, at the beginning of the Applicable Law and Analysis section of the May 17, 1984 decision the following appears: We first must decide whether a causal relationship exists between claimant's injury of November 15, 1977 and her current disability. At the outset, it is noted that we are concerned with claimant's December 10, 1982 injury only in so far as the issue of a causal relationship between the original injury and the subsequent injury has been raised. Further reading of that section of the May 17, 1984 decision reveals that claimant's employment termination was only considered to the extent it was caused by her 1977 injury. Therefore, the issue of the causal relationship between claimant's December 10, 1982 injury and her employment termination as it relates to her disability is not res judicata. MANNING V. RALSTON PURINA COMPANY Page 3 Claimant also contests on appeal the deputy's finding of no further permanent disability as a result of her 1977 injury or her 1982 injury. With respect to the 1977 injury the deputy's analysis that claimant has not shown a change of condition is adequate and accurate and is adopted herein. However, no determination will be made here concerning claimant's disability as a result of the 1982 injury as further consideration of the causal relationship, if any, between claimant's December 10, 1982 injury and her employment termination is necessary. Finally, claimant contests on appeal the deputy's findings regarding her credibility, motivation, lack of symptoms, lack of change of condition and loss of earnings. The last two findings have already been considered here. With regard to the first three, review of the record reveals no reason to disturb the deputy's findings concerning claimant's lack of credibility, motivation, and symptoms insofar as they apply to the issue of change of condition since the May 17, 1984 decision and claimant's symptoms and motivation following the December 1982 injury. FINDINGS OF FACT 1. Liberty Mutual was the insurance carrier for Purina on November 15, 1977 and Aetna was the insurance carrier for Purina on December 10, 1982. 2. Claimant's job on December 10, 1982 consisted of cartoner/operator requiring some lifting of cartons and operation of machine. 3. As a result of the work injury, claimant underwent a surgical operation to correct a spinal leakage condition caused by the December 10, 1982 work injury. 4. The spinal fluid leakage condition was very severe resulting in severe headaches, nausea, vomiting, vertigo, and blurred vision. 5. The spinal leakage condition has been corrected and claimant's symptoms have now ended. 6. Prior to the work injury of 1982, claimant had a permanent disability and was not able to perform strenuous work and heavy lifting. 7. Since 1982 claimant has remained unmotivated to secure alternative suitable employment outside her home. 8. As a result of the 1982 work injury, claimant was absent from work for treatment of her condition from December 10, 1982 through December 31, 1984 for a total of 107 4/7 weeks (there was an extra day for the leap year of 1984) and during this time it was medically indicated that her condition would significantly improve. 9. Pursuant to the parties' stipulation, claimant's rate of compensation for the disability caused by the 1982 injury is MANNING V. RALSTON PURINA COMPANY Page 4 $232.36 per week. 10. Whether or not there is a relationship between claimant's 1982 injury and her termination has not been established. CONCLUSIONS OF LAW Claimant has established by a preponderance of the evidence that the work injury of December 10, 1982 was a cause of temporary total disability. Claimant has not established by a preponderance of the evidence that the work injury on November 15, 1977 is a cause of a change of condition in her earning capacity or permanent disability since the date of the last hearing on February 24, 1984 which determined the extent of her permanent disability, at that time. Claimant has established by the preponderance of the evidence entitlement to temporary total disability benefits for 107 4/7 weeks from defendant Aetna. Claimant is not precluded on the issue of the relationship, if any, between her 1982 injury and her termination. WHEREFORE, the decision of the deputy is affirmed as to File No. 481989 and remanded as to File No. 726458. ORDER THEREFORE, it is ordered: That defendant, Aetna, shall pay to claimant one hundred seven and four-sevenths (107 4/7) weeks of temporary total disability benefits from December 10, 1982 through December 31, 1984,at the rate of two hundred thirty-two and 36/100 dollars ($232.36) per week. That defendant, Aetna, shall pay accrued weekly benefits in a lump sum and shall receive a credit against this award for all benefits previously paid. That defendant, Aetna, shall receive credit for previous payments of benefits under a nonoccupational group insurance plan, if applicable and appropriate, under Iowa Code section 85.38(2). That defendant, Aetna, shall pay interest on benefits awarded as set forth in Iowa Code section 85.30. That claimant shall pay the costs of the review-reopening proceeding, File No. 481989, and defendant, Aetna, shall pay the costs of the arbitration proceeding, File No. 726458, pursuant to Division of Industrial Services Rule 343-4.33, formerly Industrial Commissioner Rule 500-4.33. That defendant, Aetna, shall file an activity report on the payment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1, formerly Industrial Commissioner Rule 500-3.1. MANNING V. RALSTON PURINA COMPANY Page 5 That the case is remanded to take testimony on the causal relationship, if any, between claimant's termination and her injury of December 10, 1982 as it may relate to any industrial disability. Signed and filed this 20th day of January, 1987. ROBERT C. LANDESS INDUSTRIAL COMMISSIONER Copies To: Mr. Arthur C. Hedberg, Jr. Attorney at Law 840 Fifth Avenue Des Moines, Iowa 50309 Mr. Thomas N. Kamp Attorney at Law 700 Davenport Bank Bldg. Davenport, Iowa 52801 Mr. Larry L. Shepler Attorney at Law 600 Union Arcade Bldg. Davenport, Iowa 52801 1402.40 - 1801 - 1803 Filed January 20, 1987 ROBERT C. LANDESS BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ SHARON K. MANNING, Claimant, VS. File Nos. 481989/726458 RALSTON PURINA COMPANY, A P P E A L Employer, D E C I S I 0 N and LIBERTY MUTUAL INSURANCE CO., and AETNA LIFE AND CASUALTY, Insurance Carriers, Defendants. _________________________________________________________________ 1402.40 - 1801 - 1803 Claimant did not establish a change of condition which would entitle her to further compensation for file No. 481989. Affirmed. However, the file No. 726458 is remanded for determination of the relationship, if any, between her 1982 injury and her employment termination. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ SHARON K. MANNING, Claimant, File Nos. 481989/726458 VS. A M E N D E D 0 R D E R RALSTON PURINA COMPANY, 0 N R E M A N D Employer, and LIBERTY MUTUAL INSURANCE CO., and AETNA LIFE AND CASUALTY, Insurance Carriers, Defendants. _________________________________________________________________ The last unnumbered paragraph of the Appeal Decision filed January 20, 1987 pertaining to instructions on remand is amended by striking the paragraph in its entirety and adding the following in lieu thereof: That the case is remanded to take testimony and make appropriate findings on the causal relationship, if any, between claimant's termination and her injury of December 10, 1982. Should such a causal relationship be found, the deputy shall then determine the extent of permanent disability, if any, caused by claimant's termination and award benefits accordingly. Signed and filed this 28th day of January, 1987. ROBERT C. LANDESS INDUSTRIAL COMMISSIONER Copies To: Mr. Arthur C. Hedberg, Jr. Attorney at Law 840 Fifth Avenue Des Moines, Iowa 50309 Mr. Thomas N. Kamp Attorney at Law 700 Davenport Bank Bldg. Davenport, Iowa 52801 Mr. Larry L. Shepler Attorney at Law 600 Union Arcade Bldg. Davenport, Iowa 52801 5-1803, 5-2905, 2700 Filed June 30, 1995 Walter R. McManus, Jr. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ WESLEY R. JOHNSON, Claimant, File No. 478162 vs. REVIEW-REOPENING CHICAGO BRIDGE AND IRON CO., DECISION Employer, Self-Insured, Defendant. ____________________________________________________________ 5-1803, 5-2905 In review-reopening claimant failed to show a change in either physical or economic condition and failed to prove an increase in industrial disability. 2700 Employer had burden to show a rational basis for apportionment of medical expenses when treatment of work and non-work related conditions was the same and occurred at the same time for both conditions. As defendant did not carry its burden, all of the expenses were awarded. Page 1 before the iowa industrial commissioner ____________________________________________________________ : VINCENT M. KOBLISKA, : : Claimant, : : vs. : : File Nos. 629402 SHEPHERD COMPONENTS, INC., : 491816 : Employer, : R E V I E W - : and : R E O P E N I N G : IOWA INSURANCE GUARANTY : D E C I S I O N ASSOCIATION on behalf of : IOWA NATIONAL MUTUAL : INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in review-reopening brought by Vincent Kobliska, claimant, against Shepherd Components, Inc., employer, and Iowa Insurance Guaranty Association on behalf of Iowa National Mutual Insurance Company (in insolvency), as defendants. The hearing was held on January 14, 1991 at Waterloo, Iowa. The case was considered fully submitted at the close of the hearing. The evidence consists of joint exhibits 1 through 20; and testimony from claimant; David Wade; and Rodney Kobliska. In accordance with the hearing assignment order and the prehearing report, the following issues were presented for resolution: 1. Whether there is a causal relationship between the injury and the disabilities; 2. Whether claimant is entitled to temporary total or healing period benefits, or permanent partial or permanent total disability benefits; and, 3. Whether claimant is entitled to medical benefits pursuant to Iowa Code section 85.27. findings of fact The undersigned deputy, having reviewed all the evidence finds the following facts: Vincent Kobliska, claimant, originally sustained an injury to his low back in 1978 while working for defendant, Page 2 Shepherd Components, Inc. He required prolonged and extensive medical treatment. He reinjured his lower back while working for defendant Shepherd in 1980. During his tenure with this employer, claimant held various laborer-type positions, although after the second injury in 1980, he began to work as a foreman, which did not require him to perform as extensive lifting as was required before the injury. In 1982, claimant underwent back surgery because he could no longer manage the pain and prescription pills were not effective in treating the pain. He also underwent knee surgery, which was also work-related, and was eventually laid off from his employment with defendant Shepherd. Claimant underwent a second back surgery in 1985 wherein Keene rods were implanted in his lower lumbar spine area to stabilize his back condition. Claimant eventually agreed to settle his workers' compensation claim against the defendants, and was assessed a 51 percent industrial disability and was paid accordingly. The settlement was approved in 1983 by the industrial commissioner under Iowa Code section 86.13. Pursuant to said agreement, claimant is entitled to reasonable and necessary medical care and treatment related to the injuries of March 23, 1978 and February 25, 1980 which arise out of claimant's low back injuries. (Joint Exhibit 13, Page 3). Claimant's petition for this proceeding is based on the injury of February 25, 1980. Claimant tried to perform other types of employment after he was released from Shepherd Components. Most positions he has held since 1982 involved job duties lighter than those he performed at Shepherd, and include woodworking and some light construction work. Claimant's work history prior to the first injury at Shepherd's in 1978 includes working at a grain elevator and driving a grain truck. In 1983, claimant began painting the exteriors and interiors of houses. Although his back still bothered him, claimant felt that as a sole practitioner, he could limit the amount and type of work he was required to perform. All of the issues in the case revolve around the Keene rods which were implanted in 1985. In November 1986, claimant underwent his third back surgery to remove the Keene rods. Claimant was involved in an automobile accident on June 20, 1986. Defendants argue that due to the motor vehicle accident, the rods became loose and necessitated the surgery for removal of the rods. Claimant's position is that the rods began to loosen in 1985, and the surgery performed to remove the rods should be paid by the defendants. analysis and conclusions of law Page 3 Pursuant to Iowa Code section 86.14(2), in a proceeding to reopen an award for payments, inquiry is to be made into whether or not the condition of the employee warrants an end to, diminishment of, or increase of compensation previously awarded. A change in condition must be shown to justify changing the original award. Henderson v. Iles, 250 Iowa 787, 96 N.W.2d 321 (1959). It is not proper to merely redetermine the condition of the employee as adjudicated by the former award. Stice v. Consol. Indus. Coal Co., 228 Iowa 1031, 291 N.W.2d 452 (1940). A mere difference of opinion of experts or competent observers as to the degree of disability arising from the original injury is insufficient to justify a different determination on a petition for review-reopening; there must be substantial evidence of a worsening of the condition not contemplated at the time of the first award. Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957). Or, a change in condition may be found where claimant has failed to improve to the extent initially anticipated, Meyers v. Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa App. 1978). Additionally, in cases not involving scheduled members, a change in earning capacity subsequent to the original award which is proximately caused by the original injury may constitute a change in condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980). The first issue to be addressed is whether there is a causal connection between claimant's work-related injury and his present disability. The claimant has the burden of proving by a preponderance of the evidence that the injury of February 25, 1980 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Furthermore, if the available expert testimony is insufficient alone to support a finding of causal connection, such testimony may be coupled with nonexpert Page 4 testimony to show causation and be sufficient to sustain an award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish compensability, the injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980). Claimant's surgery for the implantation of the Keene rods was performed on March 5, 1985. (Jt. Ex. 9, PP. 39-40). He was released from the hospital on March 13, 1985 and continued to receive follow-up care. The evidence shows that claimant frequently complained of pain, and called the hospital for various prescriptions to relieve the pain. (Jt. Ex. 9, PP. 33-35). Claimant's next appointment was on April 24, 1985. At that time, he was experiencing difficulty with pain in his right hip, which radiated into his right lower extremity. He also complained of numbness. (Jt. Ex. 9, P. 32). Claimant returned to the hospital for follow-up care on July 10, 1985. The notes indicate that claimant "continues to have pain similar to [that] which he experienced pre-operatively, that is, pain in the right hip radiating into his posterior aspect of his right lower extremity and occasionally associated with numbness." (Jt. Ex. 9, P. 31). Claimant was encouraged to continue with his rehabilitation program, and it was recommended that he undertake a bicycling or swimming program to increase his exercise activities. (Jt. Ex. 9, P. 31). X-rays were also taken, and indicated no change in the posterior fusion. (Jt. Ex. 9, P. 30). Another set of x-rays was taken on October 3, 1985, and revealed: Both rods appear to be unchanged in position since 7/10/85. There is slight posterior displacement of vertebral body of L5 on S1 in extension which measures approximately 4 MM on the film. This space appears increased to approximately 7 MM on the flexion view but there is no evidence of disruption of the posterior fusion or either of the metallic rods and this change between flexion and extension is most likely secondary to a slight change in position of the patient between the 2 films. There [is] no definite evidence of disruption of the posterior fusion. (Jt. Ex. 9, P. 28). The medical records also indicate that on October 3, 1985, claimant complained of a "recent episode starting about 2-3 weeks ago where he started developing a clicking sensation in his left ischial area associated with a ache in his entire left posterior thigh and calf and with symptoms Page 5 similar to those he had on his right side." (Jt. Ex. 9, P. 25). He was examined by Thomas R. Lehmann, M.D., who stated that his impression was a possible loose rod. He notes on that date indicate "[W]e need to continue to follow the patient should the loose rod be thought to causing symptoms over a long period of time. We may have to remove the rods." (Jt. 9, P. 25). A further review of the medical records submitted at the hearing shows that claimant continued to receive treatment at the University of Iowa Hospitals and Clinics, and was treated by numerous physicians. On July 18, 1986, claimant was seen by Dr. Shaffer, whose notes indicate: He states he attempted to go back to work at his painting contractor firm in early June but was unable to stay with it because of pain. After that he felt he was improving until he was involved in a one-vehicle accident about 2Æ weeks ago. He states that he took a hard "jolt" and for a week after that had severe pain in his low back which radiated down the posterior lateral aspect of his leg to his ankle. He feels it is slowly improved in the week and a half since that accident. He states that he cannot remain in any one position for more than a few minutes. He complains of Page 6 a tingling or numbness on the posterior lateral aspect of his right leg. .... The patient was seen and examined with Dr. Shaffer. We feel that he reinjured his lumbar spine in the MVA. But, as noted above, see no evidence of further rod displacement. At this point we see no evidence of worsening pseudo-arthrosis. (Emphasis added.) On August 15, 1986, claimant returned to the clinic, and was again seen by Dr. Shaffer: Mr. Kobliska is a 31 year old white male who is status post L4-S2 Keen distraction rod fusion on L5-S1 retrolisthesis. He had been doing well until approximately 6 weeks ago when he was involved in a motor vehicle accident. He then experienced exacerbation of his symptoms, back pain with radiation to the right leg. . . . The pain is worse when remaining in sitting position, however, it does not limit his activity. On September 26, 1986, the clinic records indicate: Patient is a 30-year-old who underwent L4-S2 Keene distraction fusion in March, 1985, and had been doing relatively well until 12 weeks ago when he suffered a motor vehicle accident and had increasing low sacral discomfort. I saw him in July of this year and didn't see any obvious motion of the hooks or fused segments. .... Patient was seen with Dr. Lehmann. We feel that he may have some loosening of his rods. He will be scheduled for rod removal and possible augmentation of his fusion of 11-04. He is to be admitted on 11-03-86. On March 10, 1987, a Dr. Kabins made the following notation: Mr. Kobliska is indeed a patient of Dr. Lehmann's and has been seen multiple times. The most recent on January 7, 1987. He has been temporarily totally disabled from 11-3-86 to 1-12-87. The patient had an original injury in 1978 when he was lifting a truss. His foot was planted and his back cracked. . . . He continued to have back and leg pain but returned to work. He re-injured his back in 1980 when he was doing construction. He was loading lumbar [sic] and had his foot planted and twisted with the re-injury to his back. He had increased pain in the back and increased pain Page 7 in the leg at that time. The patient has most recently undergone a rod removal (Keene rod) in addition to a fusion in March of 1985. The rods had loosened and the patient underwent removal of those rods in November of 1986. He has subsequently been doing moderately well. On January 7, 1987 it was felt that his healing period was over and that no further surgery or diagnostic study was advised. The patient was allowed to return to work. We however, cannot determine which if any injury is responsible for the back pain. He has had additional pain and changes in pattern of pain following his many injuries and the pain has not resolved since his original injury back in 1978. The undersigned feels that the greater weight of the medical evidence indicates that the rods had become loose prior to the motor vehicle accident in July of 1986. As early as October 3, 1985, the medical evidence contemplates a loose rod and possible removal of the rods. Of particular note is the indication on July 18, 1986 that the examination showed "no evidence of further rod displacement." And, claimant's complaints following the motor vehicle accident seemed to concentrate more on the right side of his lower back and his right legs, whereas prior to the accident, his complaints centered around the left lower extremity and left leg. Claimant has experienced a change in condition since the earlier agreement for settlement, and is entitled to additional benefits. It is found that the surgery performed to remove the rods is causally related to claimant's work related injuries in 1980 which allows claimant to be compensated at a rate of $158.47 per week. Therefore, there is a causal relationship between claimant's injuries and the disability. And, to address the medical benefits issue summarily, defendants shall pay for the costs of the surgery to remove the Keene rods. The next issue to be addressed is whether claimant is entitled to temporary total or healing period benefits, or permanent partial or permanent total disability benefits. Page 8 One physician with the University of Iowa Hospitals and Clinics rendered an opinion regarding permanency: 3-16-88 I feel that the patient's healing period has ended for his low back problem and that he does have a permanent partial disability of 15%. A review of all of the evidence submitted does not indicate that claimant's condition following the removal of the Keene rods has deteriorated, and thereby adding to his permanent disability as determined in 1983. Claimant continues to build his painting business, and is able to perform some light duty work in addition to his management responsibilities. Therefore, no further permanent disability benefits are awarded, however claimant is entitled to temporary total benefits for the time he was off work and recovering from the Keene rod removal surgery. Claimant also argues that he is entitled to benefits from February 1, 1989 to March 21, 1989. Although claimant testified that his back became worse during this time period, there is no medical evidence which shows claimant was required to be off of work for any reason during these six weeks. His claim for benefits during this time period is denied. Claimant contends his on-going medical treatment is related to the 1980 injury, which would allow him to be compensated at a higher worker's compensation rate. ($158.47/week). Defendants argue that if the latest surgery is causally connected to the prior injuries, it was necessitated by the first injury in 1978, which would allow claimant to be compensated at a lower rate. ($109.20/week). At the time of his first injury, surgery was not contemplated, and claimant was given conservative treatment in the form of traction and an exercise program. He was off work for approximately six months, and returned in a light duty capacity in October of 1978. Claimant's condition appeared to have stabilized until February of 1980, when he again hurt his back in a lifting episode. It was after this episode that claimant's physical condition required prolonged medical attention. The undersigned finds that claimant's Keene rod removal surgery was causally related to the 1980 accident, and he should be compensated at the higher rate. Page 9 order THEREFORE, IT IS ORDERED: That claimant is awarded medical benefits for treatment of his work-related injury, including mileage to travel to and from Iowa City, Iowa at the rate of $.21/mile. That claimant is awarded the costs of medications necessary to treat his low back condition. That claimant is awarded temporary total disability benefits for time off of work from March 5, 1985 to January 12, 1987. That defendants shall pay the accrued weekly benefits in a lump sum, and are awarded credit against 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 required by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of April, 1991. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Gary Papenheim Attorney at Law 234 3rd Street Box P Parkersburg Iowa 50665 Mr William L Dawe Attorney at Law 801 Grand Ave, Ste. 3700 Des Moines Iowa 50309 2904 Filed April 11, 1991 PATRICIA J. LANTZ before the iowa industrial commissioner ____________________________________________________________ : VINCENT M. KOBLISKA, : : Claimant, : : vs. : : File Nos. 629402 SHEPHERD COMPONENTS, INC., : 491816 : Employer, : R E V I E W - : and : R E O P E N I N G : IOWA INSURANCE GUARANTY : D E C I S I O N ASSOCIATION on behalf of : IOWA NATIONAL MUTUAL : INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 2904 Review-reopening proceeding, where evidence showed claimant's surgery was causally related to a work-related injury; claimant awarded medical benefits and temporary total disability. No showing of increased industrial disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER HARRY BRANT, JR., FILE NO. 492024 Claimant, R E V I E W - VS. R E 0 P E N I N G IOWA POWER AND LIGHT COMPANY, D E C I S I O N Employer, Self-Insured, Defendant. INTRODUCTION This is a proceeding in review-reopening brought by Harry Brant, Jr., against Iowa Power and Light Company, his self-insured employer. Claimant seeks further benefits based upon the injury that occurred on December 15, 1976. Compensability of the injury was established by the memorandum of agreement filed March 17, 1978. It was stipulated that claimant has been paid all healing period to which he is entitled and that he has been paid 87 1/2 weeks of permanent partial disability at the correct rate of $160.00 per week. The primary issues in the case deal with claimant's entitlement to compensation for permanent partial disability and whether that compensation should be determined as a scheduled member disability to the arm or as an industrial disability to the body as a whole. The case was heard at Council Bluffs, Iowa on December 15, 1986 and was fully submitted upon conclusion of the hearing. The record in the proceeding consists of testimony from Harry Brant, Jr., Mary Nelson, Rodney Radford, and Randy Williams. The evidence includes joint exhibits 1 through 10. SUMMARY OF EVIDENCE The following is only a brief summary of pertinent evidence. All evidence received at the hearing was considered when deciding the case even though it may not be specifically referred to in this decision. Harry Brant, Jr., is a 52 year old married high school graduate who resides at Glenwood, Iowa. The greater part of his working life has been spent in the employment of Iowa Power and Light Company where he has been employed almost continuously since 1953. The only employment interruptions shown in the record were two years of military service in 1954 through 1956, one year when Brant worked for Coors Brewery in Denver, Colorado in 1962, and a three month strike in 1964. He has worked as a laborer, ground man, truck driver, lineman, working line crew foreman and has been an electric serviceman since October 10, 1985 (Exhibit 6). Brant's injury of December 15, 1976 occurred when a truck, BRANT V. IOWA POWER AND LIGHT COMPANY Page 2 in which he was riding with two co-employees, overturned. Claimant testified that he could not move his right arm following the accident. The initial examination concluded that the shoulder had been bruised. After a period of therapy claimant returned to work but later was hospitalized due to internal bleeding. Ronald K. Miller, M.D., became involved in claimant's case at that time to treat his shoulder complaints. Dr. Miller found claimant to have evidence of a mild chronic rotator cuff impingement and suspected that he had sustained a partial rotator cuff tear (Ex. 4, page 1). After a period of approximately one year of conservative treatment consisting primarily of therapy and exercises, Dr. Miller concluded that claimant had a rotator cuff tear and assigned a physical impairment rating of 35 percent of the arm. He indicated that claimant would have problems with prolonged heavy overhead lifting, weakness and catching in the shoulder and inability to fully and forcefully abduct, elevate and externally rotate his arm (Ex. 4, p. 4). At the time of the accident Brant was employed working as a lineman out of the Logan, Iowa facility but the majority of his work had been in Council Bluffs, Iowa. After the hospitalization in early 1977 he returned to work as a lineman. He described the duties of a lineman as setting poles and running wire. He stated that the work involves shoveling a lot of dirt, hanging transformers and in general doing everything necessary to provide power to a house or building. Brant stated that a line crew normally involves three persons, a truck driver, a lineman and a working line crew foreman. In August of 1978, claimant was made a working line crew foreman. BRANT V. IOWA POWER AND LIGHT COMPANY Page 3 Brant testified that he had worked in Glenwood until the time he was transferred to Council Bluffs in 1967. He stated that he preferred to work in Glenwood but that the first opportunity to transfer back to Glenwood occurred in 1981. In making the transfer he gave up the line crew foreman job in Council Bluffs to work as a lineman at Glenwood. He stated that while the foreman and lineman actually do much the same work, the work in Glenwood was easier because the wires and cables used in Glenwood were smaller than those used in the metropolitan area of Council Bluffs. Due to an early retirement offering made by the company in 1985, a serviceman position became open and claimant bid into the job because he considered it to be easier and lighter work than that of a lineman. Claimant testified that as a serviceman he receives the same rate of pay, $15.31 per hour, that he would earn as a lineman, and that occasionally he fills in as a lineman when the regular person is absent. Brant stated that when he transferred from the foreman job in Council Bluffs to the lineman job in Glenwood he sustained a reduction in pay in the amount of $320 per month but that he also reduced his commuting expenses. Claimant continued to work until eventually seeking further medical care in 1982. During the intervening time he described a number of incidents where the shoulder caused problems. He sustained two other injuries which were apparently of minimal severity since they did not result in any lost time from work (Ex. 8 & 9). Claimant testified that he learned to perform many activities with his left hand rather than the right, which had been his dominant hand. He stated that on several occasions he had considered surgery but was reluctant to have it. Brant denied having any problems with his right shoulder prior to the December 15, 1976 accident and BRANT V. IOWA POWER AND LIGHT COMPANY Page 4 he denied any further substantial trauma to the arm or shoulder subsequent thereto. The problems which Brant described as occurring between 1976 and 1982 seem consistent with the problems that Dr. Miller had anticipated in his report of March 10, 1978 (Ex. 4, p. 4). Brant testified that he experienced severe pain while throwing a rope underhanded in 1982 and that he subsequently returned to see Dr. Miller. On October 29, 1982, Dr. Miller performed surgery in the nature of an arthrotomy of the right shoulder with resection of the anterior distal clavicle, acromionectomy and biceps tenodesis. The rotator cuff, however, was found to be intact (Ex. 4, pp. 7 & 8). After a period of recuperation Brant returned to employment as a lineman. Brant testified that prior to the 1982 surgery he experienced constant pain in his shoulder and frequently used Ben-Gay, muscle relaxers or heat. On occasion he had Cortisone shots. He also experienced weakness in the shoulder. Brant stated that the surgery improved his shoulder, that the constant pain is now gone and that he has recovered approximately 75 percent of his strength in the arm and shoulder. He complained of stiffness in cold, wet weather and some restriction in his range of motion. He stated that he occasionally experiences a sharp pain if he performs certain movements and that the shoulder bothers if he does a lot of shoveling. He stated that he currently does little overhead work and that his job as a serviceman requires less strength than that required of a lineman. Brant testified that he enjoys his present job and expects to continue in it until he retires. He indicated that he BRANT V. IOWA POWER AND LIGHT COMPANY Page 5 expects to retire at age 62 or possibly sooner. He feels that his job is secure. He stated that when others retired through the early retirement program he had his choice of jobs including foreman and he felt that he could have done any of the jobs available. Dr. Miller's deposition is part of the record as exhibit 2. At page 11, Dr. Miller expressed the opinion that the 1976 truck accident was a very substantial factor in claimant's shoulder complaints which ultimately necessitated the surgery that was performed in 1982. Dr. Miller went on to relate that claimant's problem is mainly an upper extremity problem (p. 27) but that it does effect the shoulder (pp. 40 & 41). He rated claimant's functional impairment as 30 to 35 percent of the upper extremity (p. 42) which he felt was equivalent to a 15 to 20 percent impairment of the body as a whole (p. 49). Mary Nelson, the manager of Compensation Services for Iowa Power and Light and former administrator of labor relations and benefits, testified that the difference in pay between a foreman and a lineman is $1.82 per hour or $312 per month. Rodney Radford, claimant's former foreman, testified that he has known Brant for approximately 30 years. He stated that claimant was always able to do his work and that he felt claimant was capable of working as a foreman, lineman, or serviceman. Radford confirmed that a serviceman's work is lighter in nature than lineman's work. He confirmed that prior to the time of surgery Brant had complained regarding his shoulder. Radford further testified that Brant would have approximately broken even economically when he transferred from the Council Bluffs foreman position to the Glenwood lineman position due to a reduction in commuting expenses. BRANT V. IOWA POWER AND LIGHT COMPANY Page 6 Randy Williams, the supervisor of the Iowa Power and Light Glenwood Service Center, testified that he has known claimant since 1963. He related that there had been no openings in the Glenwood facility until 1981 and that claimant had told him that working out of the Glenwood facility provided less commuting expense and the opportunity for more overtime work. Williams confirmed that more overtime was available at Glenwood than at Council Bluffs. Williams also confirmed that in 1985 claimant had his choice of the line foreman or serviceman position and selected the serviceman position. Williams related that claimant had indicated to him that he did not want the responsibility of being foreman and also liked the independence of working alone as a serviceman. Williams confirmed that the serviceman job is easier physically than the lineman position but that claimant has filled in as line crew foreman on occasion since 1985. APPLICABLE LAW AND ANALYSIS The first issue to deal with is whether claimant's disability is to be evaluated industrially or as a scheduled member disability. Permanent partial disabilities are classified as either scheduled or unscheduled. A specific scheduled disability is evaluated by the functional method; the industrial method is used to evaluate an unscheduled disability. Martin v. Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 887 (Iowa 1983). The governing authorities are Lauhoff Grain Company v. McIntosh, 395 N.W.2d 834 (Iowa 1986); Kellogg v. Shute & Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964); Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 (1949); and Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). These cases demonstrate that for an injury to extend into the body as a whole it is necessary that there be some objectively determinable physical impairment and disability that exists other than in a scheduled member. In this case the claimant's disabilities are manifested in his ability to use his arm. The actual functional disability, however, does not lie within the arm other than for that which results from the biceps tenodesis in which the attachment of the biceps muscle was relocated. All of the remaining surgical procedures dealt with parts of claimant's shoulder other than the arm itself. Most of the problems with the range of motion of claimant's arm result from the injury that exists within the shoulder rather than that which BRANT V. IOWA POWER AND LIGHT COMPANY Page 7 exists in the arm. It is therefore found and concluded that claimant's disability is a disability to the body as a whole which is to be evaluated industrially under the provisions of section 85.34(2)(u) rather than as the scheduled member of an arm which would be compensable under section 85.34(2)(m). A considerable amount of time elapsed between the 1976 accident and the 1982 surgery. There is, however, no evidence of substantial intervening trauma. Dr. Miller expressed his professional opinion that a causal connection existed between the 1976 accident and the surgical procedure. A cause is proximate if it is a substantial factor in bringing about the results; it need not be the only cause. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980). It is therefore found and concluded that the December 15, 1976 truck accident is a proximate cause of the surgery performed in 1982 and the disability which claimant now experiences in his right shoulder. If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term OdisabilityO to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). Dr. Miller had rated claimant's functional impairment at 35 percent of the arm in 1978. After the surgery he again rated the functional impairment and placed it at the same figure of 35 percent of the upper extremity. Surgery did not increase claimant's impairment. From his own testimony it appears that it improved his condition and, if anything, reduced the extent of his functional impairment. This is certainly what one would expect to result from the performance of a successful surgical procedure. Harry Brant, Jr., has not suffered any actual loss of earnings directly due to his injury. The only reduction of earnings that he has experienced arose from his decision to transfer from Council Bluffs back to Glenwood which is the place at which he resides. From an economic standpoint the reduction of commuting expenses and the opportunity for additional overtime appears to have been a factor that Brant considered when deciding to transfer. An additional factor is also the fact that the work at Glenwood was lighter than the work in the Council Bluffs area. Four years later, in 1985, Brant bid into the serviceman position which he currently holds. This again was without any loss of income from the lineman position. Brant could have become the line crew foreman had he desired. Brant agreed that he would be BRANT V. IOWA POWER AND LIGHT COMPANY Page 8 capable of performing the work of the line crew foreman at the Glenwood plant but he choose to work as the serviceman. The evidence in this case has failed to show that Harry Brant, Jr., has suffered any loss of actual earnings or opportunity for advancement due to the injury. It does not appear that it was necessary for the employer to make accommodations or to modify his job in order to permit him to continue in his employment. There appears from the record no reason to believe that his job is in any manner insecure. From all indications it appears that claimant is appropriately employed in a position which he is able to perform when the factors of his age, education, qualifications, experience and physical impairment is considered. He has, nevertheless, suffered an impairment of his ability to compete for employment and to engage in certain types of employment. It has not been necessary, however, for him to actually compete for jobs or seek other employment as a result of the injury. When all the appropriate factors of industrial disability are considered, it is found and concluded that claimantOs disability is a 15 percent permanent partial disability. This entitles him to receive 75 weeks of compensation for permanent partial disability. The 87 1/2 weeks previously paid is in excess of the amount of this award and no additional amounts are owing to claimant from the employer. FINDINGS OF FACT 1. Harry Brant, Jr., was a resident of the State of Iowa employed by Iowa Power and Light Company within the State of Iowa on December 15, 1976. 2. Harry Brant, Jr., injured his right shoulder on December 15, 1976 when the truck in which he was riding overturned. 3. At the time of the injury Brant was employed as a lineman working for Iowa Power and Light Company. 4. Harry Brant, Jr., is 52 years of age, married and a high school graduate. 5. Claimant has been employed during nearly all of his working life by Iowa Power and Light Company. 6. Ever since the injury claimant has continued to be employed by Iowa Power and Light Company without any actual loss of earnings or opportunity for career advancement due to the injury. 7. Claimant's transfer from a foreman position in Council Bluffs to a lineman position in Glenwood was induced in part by claimant's desire to reduce the amount of time and expense involved in commuting to and from work, in part, by greater opportunity for overtime work at Glenwood and, in part, due to the lighter nature of the work at Glenwood. 8. In transferring from a foreman position in Council Bluffs to a lineman position in Glenwood, claimant sustained a loss of earnings in the amount of $1.82 per hour but the loss in gross earnings was offset to some degree by reduced commuting expenses and increased opportunities for overtime work. BRANT V. IOWA POWER AND LIGHT COMPANY Page 9 9. Claimant has a 35 percent permanent functional impairment of his right upper extremity, an amount of impairment that is equal to that which initially resulted from the 1976 injury. 10. A 35 percent functional impairment of the arm is roughly equivalent to a 15 to 20 percent impairment of the body as a whole. 11. Claimant's actual functional impairment and physical disability is not limited to his arm but extends into the shoulder and into the body as a whole. 12. Claimant is presently employed by Iowa Power and Light Company in a position that is appropriate to his abilities and limitations and he appears secure in that employment. 13. When all applicable factors are considered, claimant has a 15 percent loss of earning capacity. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. The injury of December 15, 1976 is a proximate cause of the disability which Harry Brant, Jr., now experiences in his right shoulder. 3. The disability is a 15 percent permanent partial disability of the body as a whole when the same is evaluated industrially which entitles claimant to receive 75 weeks of compensation at the stipulated rate of $160.00 per week under the provisions of section 85.34(2)(u) of the Code. 4. Claimant's entitlement has been overpaid due to the 87 1/2 weeks of compensation previously paid by the employer but the workers' compensation law makes no provision for requiring repayment of benefits which have been overpaid. ORDER IT IS THEREFORE ORDERED that claimant take nothing from this proceeding as his entire entitlement has been previously paid by the employer. IT IS FURTHER ORDERED that claimant pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. IT IS FURTHER ORDERED that defendants file a final report as requested by the agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 9th day of April, 1987. BRANT V. IOWA POWER AND LIGHT COMPANY Page 10 MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Phillip Vonderhaar Attorney at Law 840 Fifth Ave. Des Moines, Iowa 50309 Mr. Cecil L. Goettsch Attorney at Law 1100 Des Moines Bldg. Des Moines, Iowa 50307 1108; 1402.40; 1703 1803; 1803.1 Filed April 9, 1987 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER HARRY BRANT, JR., FILE NO. 492024 Claimant, R E V I E W - VS. R E 0 P E N I N G IOWA POWER AND LIGHT COMPANY, D E C I S I 0 N Employer, Self-Insured, Defendant. 1108; 1402.40; 1703; 1803; 1803.1 Claimant, 52 years of age and a high school graduate at the time of hearing, had been employed by the employer throughout nearly his entire working life. He injured his shoulder when a truck overturned in 1976. In 1982 the shoulder became sufficiently troublesome that he resorted to surgical repair. There was no evidence of any other trauma to the shoulder and the only expert medical opinion in the record related the need for surgery to the truck accident. The accident was found to be a proximate cause of the need for surgery and resulting disability. The surgical procedure involved removal of a part of the clavical, part of the acromion and transpositioning of the proximal end of the bicep tendon. While the functional impairment was measured in respect to motion of the arm the actual abnormality that caused the reduction of motion and disability was based in the body, rather than in the arm. Claimant's disability was therefore evaluated industrially. His functional impairment had been rated at 35 percent of the arm but his industrial disability was found to be limited to 15 percent of the body as a whole in view of the fact that he had not suffered any actual loss of earnings, any loss of opportunity for career progression and was securely employed in a position appropriate for his abilities and limitations.