Page 1 before the iowa industrial commissioner ____________________________________________________________ : JACK MYERS, : : File No. 652153 Claimant, : : P A R T I A L vs. : : C O M M U T A T I O N CHAMBERLAIN MANUFACTURING, : : D E C I S I O N Employer, : Self-Insured, : Defendant. : ___________________________________________________________ This is a proceeding involving an application for partial commutation filed by claimant against his employer, Chamberlain Manufacturing, self-insured employer. A review-reopening decision was filed on June 28, 1989 by Deputy Industrial Commissioner Michael G. Trier. No appeal from the review-reopening decision was taken. The petition for partial commutation was filed on January 18, 1990 by claimant seeking the sum of $17,418.89 so he could pay attorneys' fees. The matter was set for hearing on May 17, 1990. A stipulation of facts was submitted by the parties. issue The sole issue to be determined is whether it is in claimant's best interest to partially commute the order of Deputy Michael Trier in the sum of $17,418.89. findings of fact The deputy, having heard the testimony and considered all the evidence adopts and incorporates herein the stipulated facts. Along with the stipulation is the affidavit of claimant dated October 16, 1989. In his affidavit claimant stated under oath: I have agreed to pay an attorney fee on the basis of 25 percent of that award and desire to obtain a partial commutation using the last part of the remaining period of my entitlement to compensate my attorneys for their efforts in this matter. I understand that under the terms of the partial commutation that 100 weeks of benefits accruing during the last part of the remaining period of my entitlement will be commuted at its commuted value of 68.1357 weeks at the rate of $255.65 per week totaling $17,418.89. I further understand that my attorneys are willing to accept the amount of $17,418.89 in full payment of attorneys fees and expenses. Page 2 I believe it is in my best interest to obtain a partial commutation since this will eliminate the need to pay the fees out of my weekly payments and this will fully satisfy my obligation to my attorneys. I further believe that the remaining 150 weeks of compensation will be adequate to take care of my financial needs since I will be over 65 years of age by the time my entitlement to benefits will cease. At that time, I can recover social security benefis). artially commute one hundred Page 4 (100) weeks of claimant's review-reopening decision at the commuted value of sixty-eight point one-three-five-seven (68.1357) weeks x two hundred fifty-five and 65/l00 dollars ($255.65) per week for a total of seventeen thousand four hundred eighteen and 89/l00 dollars ($17,418.89). Costs of this action are assessed to defendant pursuant to rule 343 IAC 4.33 Defendant shall file a claim activity report as requested by this division pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of February, 1991. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Marvin E. Duckworth Attorney at Law Terrace Center STE 111 2700 Grand Ave Des Moines IA 50312 Mr. Jeffrey J. Greenwood Attorney at Law 528 W 4th St P O Box 1200 Waterloo IA 50704 3303; 3303.20 Filed February 21, 1991 MICHELLE A. McGOVERN before the iowa industrial commissioner ____________________________________________________________ : JACK MYERS, : : File No. 652153 Claimant, : : P A R T I A L vs. : : C O M M U T A T I O N CHAMBERLAIN MANUFACTURING, : : D E C I S I O N Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 3303; 3303.20 Claimant was allowed to partially commute his award of weekly benefits. It was the determination of the undersigned that it was in claimant's best interest to partially commute 100 weeks of claimant's remaining benefits. To do so would alleviate claimant's obligations to his attorney and would give claimant full use of his remaining benefits. An undue financial burden would not be placed on claimant since he would receive weekly benefit checks until he reached 65 and then he would collect social security benefit checks. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JACK MYERS, Claimant, File No. 652153 vs. R E V I E W - CHAMBERLAIN MANUFACTURING R E 0 P E N I N G COMPANY, D E C I S I 0 N Employer, Self-Insured, F I L E D Defendant. JUN 28 1989 INDUSTRIAL SERVICES INTRODUCTION This is a proceeding in review-reopening from a memorandum of agreement filed December 4, 1980 which has been brought by Jack Myers against Chamberlain Manufacturing Company, his former employer. The case was heard and fully submitted at Des Moines, Iowa on November 14, 1988. The record in the proceeding consists of testimony from Jack Myers, Elaine Myers and Roger Marquardt. The record also contains claimant's exhibits 1 through 13 and defendant's exhibits A through F. ISSUES The issues presented for determination are the extent of claimant's permanent disability. Claimant seeks an award of permanent total disability and asserts the odd-lot doctrine. If the award is for only permanent partial disability, then the end of the healing period must be determined. Claimant stipulated that he has been paid all weekly compensation which has come due up to and including the date of hearing. It was stipulated by the parties that claimant sustained an injury which arose out of and in the course of his employment on November 4, 1980, that the alleged injury is a cause of the disability upon which the claim is based, and that the correct rate of compensation is $255.65 per week. SUMMARY OF EVIDENCE The following is a summary of evidence presented in this case. Of all the evidence received at the hearing, only that considered most pertinent to this decision is discussed. Conclusions about what the evidence showed are inevitable with any summarization. The conclusions in the following summary should be considered to be preliminary findings of fact. Jack Myers is a 62-year-old man who was injured on November 4, 1980 when a stack of steel doors having a total weight of approximately 2,000 pounds fell over, knocking him to the floor and landing on top of him. The immediately discernible injuries included a severe laceration on the back of claimant's head, an undisplaced compression fracture of the first lumbar vertebra and contusions. Claimant's initial care was provided by Don N. Orelup, M.n., an Albia physician (defendant's exhibits A and B). Claimant attempted unsuccessfully to resume employment in February, 1981 and was then referred to Donald D. Berg, M.D., an orthopaedic surgeon in Ottumwa, Iowa. A myelogram was performed and interpreted as being normal, although there was some indication of a spondylolisthesis at the L4-5-S1 levels (claimant's exhibit 9, pages 2 and 4). On April 14, 1981, Dr. Berg indicated that claimant should not have any permanent physical impairment and that claimant was released to return to work (claimant's exhibit 8, page 6). Claimant did work, but testified that he experienced pain and difficulties in doing so. By October, 1981, Dr. Berg had again taken claimant off work, but continued to indicate a good prognosis (claimant's exhibit 8, pages 3-5). By June and July of 1982, Dr. Berg had indicated that claimant had a ten percent whole body permanent physical impairment secondary to degenerative changes in his spine, of which five percent was attributable to the November 4, 1980 injury (claimant's exhibit 8, page 1). Claimant continued to work until his employment was terminated by the employer in 1983. In the meantime, claimant's symptoms remained present. On October 20, 1983, John R. Scheibe, M.D., indicated that claimant had a 30 percent disability of the whole body (claimant's exhibit 7, page 3). In early 1984, claimant commenced treatment with E. A. Dykstra, M.D., an Iowa City orthopaedic surgeon. After diagnostic tests and consultation with neurologist R. F. Nieman, M.D., a laminectomy of L2 with partial laminectomy of L1 was performed on March 14, 1984 in order to relieve nerve root impingement. The impingement was indicated as being secondary to a compression fracture (claimant's exhibit 5). On March 11, 1985, Dr. Nieman had noted that the chances of claimant being able to return to his previous employment were doubtful and that claimant's advanced age was certainly a factor in that consideration (claimant's exhibit 2, page 9). On July 16, 1984, Dr. Nieman indicated that the initial results from surgery appeared to be good (claimant's exhibit 4). On November 19, 1985, claimant underwent a Gill procedure decompression laminectomy at the L5 level in order to remove constriction on the L5 nerve root due in part to a spondylolisthesis of L5 on S1 (claimant's exhibit 3). On December 18, 1985, Dr. Dykstra indicated that claimant was doing reasonably well following the low back surgery (claimant's exhibit 2, page 5). In mid-1986, Dr. Dykstra indicated that claimant was still having some back discomfort and had a small amount of swelling, but that he was doing much better from the standpoint of his legs (claimant's exhibit 2, page 2). On February 6, 1987, Dr. Dykstra stated that claimant had reached maximum recovery and that the claimant has a total permanent impairment rating of 20 percent of his back, of which 12 percent was attributable to the injury (claimant's exhibit 2, page 1). On November 11, 1986, Thomas A. Carlstrom, M.D., issued a report concerning an evaluation of the claimant which he performed. Dr. Carlstrom concluded that claimant was experiencing mechanical low back pain and that the symptoms were caused by the November, 1980 accident. He stated that claimant has a permanent impairment in the range of 20-25 percent of the body as a whole as a result of that incident. Dr. Carlstrom stated that claimant is capable of work which does not require lifting of more than 20 or 25 pounds and that he should also avoid prolonged sitting or standing, forward bending and working in cramped postures. Dr. Carlstrom stated that claimant had reached maximum healing. Jack Myers testified that, prior to the November 4, 1980 injury, he was active and engaged in activities such as remodeling his daughter's home, reshingling his own home, hunting, fishing, playing softball and bowling. Claimant was initially employed by a predecessor of Chamberlain Manufacturing in 1956 and remained so employed until the employment was terminated in 1983. During the years, he advanced to become a foreman, but still performed physical labor. Claimant's prior work included being a tank mechanic and infantryman in the United States Army. He worked as a section hand for the railroad and performed auto repair from 1946 until 1956. Since being terminated by Chamberlain, claimant obtained a job where he performed limited activities connected with small engine repair for several months in 1983. Claimant stated that the job allowed him to work at his own pace, set his own days and hours of work and that he was provided assistance whenever it was needed. Claimant stated that he now experiences pain in his low back and hip and has some level of pain constantly. He has ceased bowling and hunting, but has fished with friends on a few occasions. Claimant testified that he would have worked until age 65 if he had not been injured, but now knows of nothing which he could do in the way of employment. Claimant's spouse, Elaine Myers, corroborated claimant's testimony regarding his preinjury and postinjury activities. Elaine stated that claimant had been anxious to return to work following his injury and that he loves to work. She stated that, during the periods when he did return to work, he would come home in severe pain. Roger Marquardt, a qualified vocational consultant, testified that claimant has limited transferable skills and that any employment for him would require a job where he could stand or sit as needed. Marquardt expressed the opinion that claimant is not competitively employable in any well-known branch of the labor market. He stated that there are some positions in the workforce which claimant could perform, but that it would be very difficult to find those positions as they exist in insignificant numbers. He stated that many of them would be only part-time positions. Marquardt stated that, within claimant's geographical area, unskilled light work is very competitive and that claimant's chances of obtaining that type of work would be very slim. Marquardt questioned claimant's physical ability to work consistently eight hours per day, five days per week. APPLICABLE LAW AND ANALYSIS Claimant seeks an award of permanent total disability compensation. Total disability under the workers' compensation law is not equivalent to utter helplessness. The ability to earn some wages creates a presumption that a person has earning capacity commensurate with those wages. 2 Larson Workmen's Compensation Law, section 52-21(d). Permanent total disability exists when the combination of factors considered in determining industrial disability precludes the worker from obtaining regular employment in which he can earn a living for himself. Guyton v. Irving Jensen Co., 373 N.W.2d 101, 103 (Iowa 1985); McSpadden v. Big Ben Coal Co., 282 N.W.2d 181, 192 (Iowa 1980); Diederich v. Tri-City R. Co., 219 Iowa 587, 594, 258 N.W. 899, 902 (1935). As 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 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience 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). Industrial disability or loss of earning capacity is a concept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment of physical capacity creates an inference of lessened earning capacity. The basic element to be determined, however, is the reduction in value of the general earning capacity of the person, rather than the loss of wages or earnings in a specific occupation. Post-injury earnings create a presumption of earning capacity. The earnings are not synonymous with earning capacity and the presumption may be rebutted by evidence showing the earnings to be an unreliable indicator. Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 34th Biennial Report, 218 (1979): 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. There are few individuals in our society whose earning capacity is absolutely zero. The important consideration, however, is whether or not the person has sufficient earning capacity to be self-supporting. It normally requires full-time work, (i.e., 40 hours per week) in order for a person to be self-supporting. Part-time work is usually insufficient, particularly where the employee is performing unskilled work. This agency has previously established the precedent that in order to rely upon the odd-lot doctrine, it is necessary that the employee make an actual bona fide effort to obtain employment in the area of his residence. Testimony from a vocational consultant has been held to be insufficient. Collins v. Friendship Village, Inc., file number 679258 (App. Decn. October 31, 1988); Emshoff v. Petroleum Transportation Services/Great West Casualty, file number 753723 (App. Decn. March 31, 1987). The agency makes no distinction for those cases where it is obvious that the type of work which the employee could perform is not available. Dr. Carlstrom has determined that claimant is capable of employment. The other physicians have not specifically stated that claimant was not employable. The only other indication was that the prognosis for long-term employment was guarded. One job performing small engine repair work does not constitute a reasonable search for employment. It appears that it is the only job for which claimant applied and it appears that he was successful in obtaining that job. Prior to 1983 claimant was gainfully employed. Absent an actual search for work made by the claimant, the testimony of the vocational consultant is insufficient, under existing agency precedent, to create a prima facie case of total disability which would in turn, under the odd-lot doctrine, cause the burden of proof to shift from the claimant to the defendant. Compensation benefits are geared to weekly wage loss. With the approach of later years when it can be normally anticipated that a worker would be retiring, such fact may be considered when determining the extent of loss of earning capacity or industrial disability. Becke v. Turner-Busch, Inc., 34th Biennial Report of the Industrial Commissioner 34 (App. Decn. 1979); Cruz v. Chevrolet Grey Iron Div. of Gen. Motors, 247 N.W.2d 764, 775 (Mich. 1976). When all the appropriate factors of industrial disability are considered, it is determined that claimant sustained an 80 percent permanent partial disability as a result of the accident which occurred on November 4, 1980. Since the disability has been determined to be an 80 percent permanent partial disability, it is necessary to fix the end of the healing period. Claimant's last surgery was performed on November 19, 1985. Dr. Dykstra had indicated that it would be approximately one year before maximum improvement would be reached (claimant's exhibit 2, page 3). On November 11, 1986, eight days less than one year, Dr. Carlstrom indicated that claimant had reached maximum improvement. On February 6, 1987, Dr. Dykstra indicated that claimant had reached maximum recovery, but did not specify the date at which maximum recovery had occurred. It is therefore determined that November 11, 1986 is fixed as the last day of claimant's healing period consistent with the report from Dr. Carlstrom. Claimant's entitlement to permanent partial disability compensation therefore commences November 12, 1986. FINDINGS OF FACT 1. Jack Myers and Elaine Myers are fully credible witnesses. 2. The injuries which claimant sustained on November 4, 1980 were a substantial factor in producing the disability which now afflicts claimant. 3. The assessment of claimant's case as made by Roger Marquardt is correct. 4. Claimant recovered to the point that it was medically indicated that further significant improvement from the injury was not anticipated on November 11, 1986. 5. Claimant did not make a reasonable good faith effort to obtain employment following the termination of his employment by Chamberlain Manufacturing Company. 6. Claimant is physically capable of unskilled, light-duty employment. 7. It is unlikely that claimant would be able to effectively compete for the limited number of unskilled, light-duty jobs which are available in the area of his residence. 8. Claimant has sustained an 80 percent loss of his earning capacity as a result of the injuries he sustained on November 4, 1980.. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. An employee can avail himself of the odd-lot doctrine only by making an actual bona fide good faith search for employment. Expert testimony from a qualified vocational consultant is not legally sufficient to make a prima facie showing of total disability in order to cause the burden of persuasion regarding disability to shift from the employee to the employer. 3. Jack Myers has an 80 percent permanent partial disability when the same is evaluated industrially which entitles him to receive 400 weeks of compensation for permanent partial disability. 4. Claimant's healing period ended November 11, 1986 consistent with the report from Dr. Carlstrom. ORDER IT IS THEREFORE ORDERED that defendant pay claimant four hundred (400) weeks of compensation for permanent partial disability at the stipulated rate of two hundred fifty-five and 65/100 dollars ($255.65) per week payable commencing November 12, 1986. IT IS FURTHER ORDERED that defendant pay any past due, accrued amounts in a lump sum together with interest from the date each payment came due to the date it is actually paid pursuant to Iowa Code section 85.30. IT IS FURTHER ORDERED that defendant pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. IT IS FURTHER ORDERED that defendant file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3. Signed and filed this 28th day of June, 1989. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Marvin E. Duckworth Attorney at Law Suite 111, Terrace Center 2700 Grand Avenue Des Moines, Iowa 50312 Mr. Jeffrey J. Greenwood Attorney at Law 528 West 4th Street P.O. Box 1200 Waterloo, Iowa 50704 51804, 54100 Filed June 28, 1989 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER JACK MYERS, Claimant, File No. 652153 vs. R E V I E W - CHAMBERLAIN MANUFACTURING R E 0 P E N I N G COMPANY, D E C I S I 0 N Employer, Self-Insured, Defendant. 51804, 54100 Where claimant failed to make an actual search for employment, the odd-lot doctrine was not applied. The medical practitioners had indicated that he was capable of employment. Expert testimony that claimant had no reasonable likelihood of obtaining any of the limited light-duty jobs available in his area was held to be insufficient to cause the burden of persuasion to shift to the employer. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROBERT C. NEWLIN, Claimant, VS. File Nos. 653365 DRAKE UNIVERSITY, 776838 Employer, A R B I T R A T I O N and D E C I S I 0 N EMPLOYERS MUTUAL COMPANIES, Insurance Carrier, Defendants. INTRODUCTION This decision resolves two proceedings in arbitration brought by Robert C. Newlin against Drake University, his former employer, and Employers Mutual Casualty Company, its insurance carrier. The case was heard and fully submitted on September 3, 1987. The record in this proceeding consists of testimony from Robert C. Newlin, Myrna Blair, John William Brown, Ruth Byers, Roger Marquardt, Mary L. Lorey, Viola Oxley, Betty Durden and Katheryn Bennett. The record also contains jointly offered exhibits A through T, claimant's exhibits 2 and 3 and defendants' exhibit 1. Official notice was taken of the form 2 which was filed December 15, 1980 and also of Iowa Code section 507B.4. ISSUES Claimant alleges that he sustained injuries on November 3, 1980 and August 22, 1984 which arose out of and in the course of his employment with Drake University. With regard to each injury, he seeks compensation for healing period, permanent disability and section 85.27 benefits. Claimant alleges that he is permanently and totally disabled and relies upon the odd-lot doctrine. Defendants deny both injuries and, as a result thereof, deny that claimant is entitled to any weekly compensation or section 85.27 benefits. Defendants further urge that the claim based upon the alleged injury of November 3, 1980 is barred by the proVisions of section 85.26 of the Iowa Code. Defendants urge that the claim based upon the alleged injury of August 22, 1984 is barred by the provisions of section 85.23 of the Iowa Code. Claimant replies that defendants are equitably estopped from raising section 85.26 as a defense to the November 3, 1980 claim. NEWLIN V. DRAKE UNIVERSITY Page 2 Some stipulations were made. With regard to the claim based upon the alleged injury of November 3, 1980, it was stipulated that claimant was off work 48 days and that, in the event of an award, the proper rate of compensation is $151.57 per week. It was stipulated that the fees charged by the providers of medical services were fair and reasonable and that the services were provided for the condition upon which this claim is based. Lack of authorization and lack of causal connection were raised as defenses. With regard to the claim based upon the alleged injury of August 22, 1984, it was stipulated that claimant was off work for a period of nine days for which claim is made and also that, in the event of an award, the correct rate of compensation is $179.75 per week. With regard to section 85.27 benefits, it was stipulated that the fees charged for the medical services provided were fair and reasonable and that the services were provided to treat the condition upon which this claim is based. Lack of authorization and lack of causal connection to the alleged injury were raised as defenses. In both claims, it is stipulated that any permanent disability should be compensated as an industrial disability to the body as a whole. 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 necessarily be referred to in this decision. Robert C. Newlin testified that he is 57 years of age and was born on October 27, 1929. He stated that his highest educational achievement is the eighth grade in a special education program which he completed at the age of 16. Claimant has been employed primarily as a painter since 1962. He was self-employed for approximately 10 years and began his employment with Drake University in 1972. Prior to that time, he had engaged in a number of occupations. He has cleaned cars on a car lot, hauled coal, worked as a helper for a brick layer, performed NEWLIN V. DRAKE UNIVERSITY Page 3 landscaping work, concrete work and general labor and also driven a truck (exhibit H, pages 5-11). Claimant has had some health problems, but denied having any back injuries prior to the ones he alleges occurred during his employment at Drake University. Claimant testified that, on November 3, 1980, while working at the Drake computer center, he bent over to push a drop cloth on the floor against a baseboard and experienced a sharp pain in his lower back which made him unable to get back up. Claimant testified that he received assistance, went to the office, reported the injury to his supervisor, Terry Barnes, and then went home. Barnes confirmed that the report had been made (exhibit J, page 6). A first report of injury was filled out and appears in the agency file, having been received on November 13, 1980. Betty Durden and Mary Lorey testified that they participated in preparing the first report of injury. On December 15, 1980, a form 2 was filed with the industrial commissioner's office indicating that compensability of the alleged injury of November 3, 1980 was denied. The name "Mary Lorey" is stamped in the signature space of the form 2. Following the incident described as having occurred November 3, 1980, claimant reported to the Emergency Room at Northwest Community Hospital. The diagnosis at that time was of low back strain. He was advised to not work for three days (exhibit T, Emergency Room record 11/3/80). On November 11, 1980, claimant was admitted to Northwest Community Hospital where he remained until November 16, 1980 with a diagnosis of low back strain (exhibit S, page 9, lines 9-14). Straight leg tests were negative, indicating that he was having no nerve root irritation (exhibit S, page 10, lines 3-5). On January 17, 1981, claimant was readmitted to Northwest Community Hospital stating the present pain was much more severe than what he had in November (exhibit T, Northwest Community Hospital History and Physical dated 1/18/81). An orthopedic consultation was ordered by John C. Tapp, D.O., was done by Marshall Flapan, M.D. The history obtained by Dr. Flapan was: A 51-year-old married Caucasian male who works as a painter for Drake University, awoke about ten days earlier with pain in his back, which soon radiated down the posterior aspect of his right thigh and into his calf. ... He has a past history of being hospitalized at Northwest in November of 1980 for back pain, but at that time had no radiation. A lumbar laminectomy was carried out on February 2, 1981 and claimant was released from the hospital on February 7, 1981. (Exhibit T-2, page 1, Admission of 1/17/81). Claimant was returned to work by Dr. Flapan on March 16, 1981 (exhibit T, Clinical Record of Dr. Flapan dated 3/13/81). Dr. Flapan saw claimant again for a follow-up examination on NEWLIN V. DRAKE UNIVERSITY Page 4 June 15, 1981. At that time, claimant's right ankle jerk reflex remained absent and claimant complained of soreness in his right leg following activity. Claimant did not exhibit any weakness in the leg, however. Claimant was allowed to continue working full-time without restriction (exhibit T-2, page 3). Claimant testified that, when he returned to work following the surgery, his back was still sore and stiff, but that he performed his usual job as a painter. Claimant testified that he had been assigned to paint numbers on seats in the stadium in preparation for the Drake Relays and that the bending over to do so bothered his back. He testified that, after the surgery, the outer part of his right leg and the outside part of his right foot went numb, including the two outer toes of the foot. Claimant testified that, while he was off work for the surgery, he was paid by Drake from his sick leave and vacation accounts. He testified that, when he presented his return to work release at the personnel office, he was informed by the woman he gave it to that his claim had been turned in to workers' compensation. Claimant testified that the woman told him it was insurance through the state of Iowa. Claimant stated that he did not know what workers' compensation was. Claimant related that, subsequently, while at work, he was provided a note with a phone number and instructed to call it. He testified that he did so, that a man answered who stated he was from workers' compensation, and that the man told claimant that he did not believe claimant's injury happened on the job and that he felt claimant was ineligible for benefits. Claimant testified that he believed it when he was told he was not eligible and thereafter did nothing regarding workers' compensation benefits for the 1980 injury (claimant's testimony and exhibit H, pages 23-27). Claimant denied receiving any mail in approximately December, 1980 which dealt with workers' compensation. The next record of claimant receiving medical treatment for his back, which is found in the medical records portion of exhibit T at Tab 1, pages 1 and 16, indicates that, on July 11, 1983, claimant made complaint of numbness that had been present in his right leg since the time of the surgery. Claimant returned to Dr. Flapan on July 2, 1984 (exhibit T-2, page 4). At that time, claimant made complaint of numbness and discomfort in his right foot that had been present since the 1981 surgery. The report indicates that claimant related he was developing a fear of climbing on ladders. The examination showed claimant's right ankle jerk reflex to be absent. Claimant also exhibited a loss of sensation over the Sl dermatome pattern in his right leg, but he exhibited no weakness in the leg. In a report dated October 22, 1984 from Dr. Flapan, no mention is made of claimant falling (exhibit T-1, page 37). Dr. Flapan indicated, in a report of November 28, 1984, that claimant has a 10% permanent impairment due to back problems dating back to the March 16, 1981 return to work and also due to current problems (exhibit T-6, page 1). Claimant testified that, on August 22, 1984, while still employed at Drake, he was assigned to paint window trim on Memorial Hall, a three-story building, using a ladder. Claimant NEWLIN V. DRAKE UNIVERSITY Page 5 testified that, while climbing down the ladder to move it, he thought he had his right foot on a rung, but did not, slipped and slid down to the ground, striking the other rungs on the way down. Claimant testified that he hit the ground with quite a jolt which stung his feet, but which caused no pain elsewhere in his body. He stated that, approximately one-half hour later, he reported the incident to his supervisor, Floyd Brandt, and asked for assistance in moving the ladders. Claimant testified that Brandt told him he should see a good neurologist. When claimant indicated to Brandt that he did not know any, Brandt stated he would ask his wife, a nurse, if she could recommend a good one. Claimant stated that a couple of days later, Brandt told him his wife could not recommend anyone (exhibit H, page 30 and 31). Claimant testified that, on the day he fell, he got into an argument with Brandt about taking too long for coffee breaks. Claimant testified that, after Brandt left, he went into the building where he was painting, had coffee with Helen Richards, a housekeeper, and told her that he had fallen and had had a disagreement with Brandt. Claimant testified that he also thereafter went to the Administration Building and complained to Paul Johnson about the way Brandt had talked to him. Claimant testified that later, while in the paint shop, Brandt told him that he would fire him if he ever went over his head again. Claimant testified that a few days after slipping on the ladder, he began having trouble with his back and sought care from Harold Eklund, M.D., his family doctor, who in turn referred him to David Friedgood, D.O., a neurologist. Claimant saw Dr. Friedgood on August 31, 1984 (exhibit G, page 6; exhibit T-3, page 1). When deposed on March 21, 1985, claimant testified that he told Dr. Friedgood about falling off the ladder (exhibit H, page 32). When testifying at hearing, claimant testified that he did not tell Dr. Friedgood about falling from the ladder when he saw him on the first occasion, but that he did when he saw him later in February, 1985. Claimant testified that he was then referred to Dr. DeGravelles at Iowa Methodist Medical Center where he also saw Karen Kienker, M.D. Claimant related that he was in Mercy Hospital in October, 1984 for back troubles and again in December, 1984. Claimant testified that he has performed some odd jobs at the trailer park where he resides. He stated that he has not looked for regular work since leaving employment at Drake University. When claimant saw Dr. Friedgood on August 31, 1984, he made complaints of numbness in his right foot and problems with climbing, but exhibited no weakness. In his examination, Dr. Friedgood found very mild weakness of the right gastrocnemius muscle and decreased sensation in the lateral part of claimant's right leg and foot. Dr. Friedgood found claimant's right ankle reflex to be absent (exhibit T-3, page 1; exhibit G, pages 6 and 7). In a report dated December 18, 1985, Dr. Friedgood relates claimant's symptoms to the 1981 injury and states that, when he first saw claimant in August, 1984, claimant did not relate any NEWLIN V. DRAKE UNIVERSITY Page 6 incident having occurred on August 22, 1984 (exhibit T-12, page 1). A report of February 27, 1985 issued by Dr. Friedgood indicates that he is referring claimant to Dr. DeGravelles, but makes no mention of claimant reporting falling from a ladder. In a report dated April 22, 1985, Dr. Friedgood makes reference to claimant slipping and falling in August, 1984. In that report, Dr. Friedgood relates claimant's injuries to the incidents which were described in the history that was given (exhibit T-7, page 1). When deposed, Dr. Friedgood indicated that, when he first saw claimant, the history given was of problems with the leg for the last three years (exhibit G, page 6). Dr. Friedgood indicated that the findings he made on August 31, 1984 were similar to those Dr. Flapan had found following the 1981 surgery (exhibit G, page 11). Dr. Friedgood indicated that it is not unusual for chronic radiculopathies, such as claimant's, to decompensate or worsen with the passage of time (exhibit G, page 16). Dr. Friedgood indicated that he felt the damage to claimant's sacral nerve was chronic in nature (exhibit G, page 8). He stated that claimant's sensory loss and numbness is compatible with the 1981 S-1 nerve root injury and surgery (exhibit G, page 13). He indicated that claimant's back problems stem from the 1980 injury (exhibit G, page 14). On October 2, 1984, claimant was admitted to Mercy Hospital Medical Center. The history given at that time states, "For three days prior to admission, the patient developed severe low back pain. He stated that he got out of bed with no history of recent injury and could not stand up straight.O (Exhibit T-1, page 24). Another history found at page 43 of the same exhibit indicates that claimant's problem began on September 30, 1984 and makes no mention of falling from a ladder. Claimant was released on October 11, 1984. Claimant was again hospitalized at Mercy on December 19, 1984. The history given on that admission states, "This patient gives a long history of having recurrent bouts of low back pain with radiation down the right lower extremity, and also numbness in the right foot.O (Exhibit T-9, page 5). In the same exhibit at pages 6 and 20, it is again indicated that claimant's problem has been present since September with no incident of injury being reported. In exhibit T-10, at page 1, records from Iowa Methodist Medical Center dated March 14, 1985 contain reference to a September, 1984 incident with a ladder. The notes indicate that Dr. Kienker is the treating physician. Dr. Kienker, in a report dated April 23, 1985, indicated that she first saw claimant on March 14, 1985. At that time, claimant related a history of falling down a ladder in September, 1984. Her physical exam produced results consistent with those of the other physicians who have examined claimant (exhibit T-8, page 1). During the course of events, claimant was also seen by William R. Boulden, M.D., while claimant was hospitalized in December, 1984. The history given to Dr. Boulden was that claimant had right leg pain since September, but reported no incident of injury. Dr. Boulden indicated that claimant's medical problem was likely degenerative disc disease (exhibit NEWLIN V. DRAKE UNIVERSITY Page 7 T-11, page 1; exhibit 0). Claimant was examined by Thomas Carlstrom, M.D., on July 16, 1985. Dr. Carlstrom made findings similar to those which had been found by Dr. Flapan in 1981 and by Dr. Friedgood in 1984 (exhibit F, pages 9, 11, 12 and 13). Dr. Carlstrom indicated that the sensory disruption that he found could be a result of the 1981 surgery (exhibit F, page 10). The history given to Dr. Carlstrom indicated that, in September, 1984, claimant had fallen down a ladder, that a few days later his back started bothering, that he also started to have pain in his right hip and leg and that he sought care from Dr. Friedgood (exhibit F, page 13; exhibit T-10, pages 1 and 2). Exhibit S is the deposition of Harold Eklund, M.D. Dr. Eklund indicates that the history that claimant gave at Mercy Hospital on October 2, 1984 was of onset occurring three days prior. Dr. Eklund felt that claimant's present problems stem back to the 1981 injury (exhibit S, pages 29-31). At pages 21 through 26 of the deposition, Dr. Eklund discusses the numerous inconsistencies and inaccuracies which exist in the medical records and reports that were issued in 1980. Exhibit I is the deposition of Floyd Brandt. Brandt testified that, on August 22, 1984, claimant was working at Been Memorial Hall painting windows (exhibit I, pages 5 and 6). Brandt did not recall claimant reporting an incident of slipping and falling down a ladder (exhibit I, pages 6 and 7). Brant testified that, at some time prior to painting at Memorial Hall, claimant had complained about having a lack of feeling in his foot and Brandt suggested that claimant see a neurologist. Brandt indicated that, when claimant told him he did not know an neurologist, Brandt replied that he would ask his wife. When his wife could not recommend any particular neurologist, Brandt testified that he told claimant he should seek a referral from his former doctor (exhibit I, pages 7 and 8). Brandt testified that, after claimant received a doctor's statement that he was not to climb ladders, he assigned claimant to paint things that did not require working from a ladder (exhibit I, pages 10 and 11). Mary L. Lorey testified that, in 1980, she was a claims service representative for Employers Mutual Casualty Company. Lorey testified that she was assigned to investigate claimant's claim. She stated that she spoke with claimant on November 21, 1980 and took his statement. She stated that she also sent out forms to his doctors and the emergency room. Lorey testified that the doctor's report and statement (exhibit 2) appears to be disrupted and that the term "low back strain" should be entered in the block near "nature of injury." She also indicated that the date of the report should be O12-1-80" and that O11-11-80" is the date that a doctor determined that claimant had a medical problem. Lorey testified that the word "denied" was written by her supervisor, even though she herself had initially felt the event seemed compensable, NEWLIN V. DRAKE UNIVERSITY Page 8 based upon claimant's statement. Lorey testified that the claim was denied based upon the following evidence: An x-ray report which showed no evidence of recent injury; an emergency room report containing a statement "no known injury"; claimant's own report as recorded which did not indicate that the incident with the tarp occurred on the job; Dr. Tapp's doctor's report and statement which does not indicate where the injury occurred or whether claimant's condition was due to that accident; and, the appearance of a discrepancy in injury dates as to November 3, 1980 and November 11, 1980. Lorey indicated that, on December 12, 1980, she issued a letter to claimant indicating that his claim was denied because of an inability to find any direct causal connection between the condition and his employment. She indicated that the denial letter was not returned to her office so she assumed it was received by claimant. Lorey stated she felt the burden was on the claimant to show that his claim was compensable. Lorey also testified that claimant's claim was somewhat suspect because the injury was reported on a Monday morning. Lorey testified that, when the file was reopened in 1984, she contacted Drake University and they had no information regarding any 1984 injury. She testified that she informed them to use the same incident of injury as had been used in 1980 when filing the first report. Betty Durden, the director of personnel at Drake University, testified that Drake's first notice of any 1984 injury claim was the request from Mary Lorey for a first report of injury which was then filled out, according to Lorey's, NEWLIN V. DRAKE UNIVERSITY Page 9 instructions on November 19, 1984. APPLICABLE LAW AND ANALYSIS Claimant has the burden of proving by a preponderance of the evidence that he received an injury on August 22, 1984 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). There is not a single reference in the record of this case which indicates that claimant alleged an injury of August 22, 1984 resulting from falling from a ladder until a time subsequent to November 5, 1984, the date his petition was filed. The original petition alleged that he stooped over to push a drop cloth and hurt his lower back. The petition was later amended. All of the medical evidence in the record which was created during 1984 indicates an onset of symptoms in September with no known injury. Claimant's appearance and demeanor was observed as he testified. It is found that claimant has failed to establish sufficient credibility to carry the burden of proving that he sustained any injury falling from a ladder on August 22, 1984. In 1980, claimant made a prompt report of the incident of injury to his physicians. It is extremely unlikely that he would not have provided a history of falling when seeking medical treatment for his condition until several months had passed and his petition with this agency was already on file. With regard to the November 3, 1980 injury, the claim is clearly barred by Code section 85.26 unless equitable estoppel is applied. Even though claimant's intellectual ability may only be consistent with his formal educational achievement, it is clear that, by the time he returned to work following back surgery, he should have realized his back injury was serious and work-related. His petition was filed on February 5, 1985. it is clearly found that claimant knew the nature, seriousness and probable compensable character of his alleged 1980 back injury long before February 5, 1983. Robinson v. Department of Transp., 296 N.W.2d 809 (Iowa 1980). Claimant urges that defendants are equitably estopped from relying upon section 85.26 to bar the 1980 claim. The elements of equitable estoppel were specified in the case Paveglio v. Firestone Tire and Rubber Company, 167 N.W.2d 636, 638 (Iowa 1969). Those four elements are: (1) false representation or concealment of material facts; (2) lack of knowledge of the true facts on the part of the person to whom the representation or concealment is made; (3) intent of the party making the representation that the party to whom it is made shall rely thereon; and, (4) reliance on such fraudulent statement or concealment by the party to whom it was made, resulting in his prejudice. In Dierking v. Bellas Hess Superstore, 258 N.W.2d 312 (Iowa 1977) the Iowa Supreme Court defined the term "false representation": In its generic sense, a false representation is anything short of a warranty which provides upon the mind a false impression condusive to action. NEWLIN V. DRAKE UNIVERSITY Page 10 Ordinarily however, representation must be definite, and mere vague, general or indefinite statements are insufficient because they should, as a general rule, put the hearer upon inquiry, and there is no right to rely upon such statements. A party alleging equitable estoppel must be excusably ignorant of the true facts. S & M Finance Company of Fort Dodge v. Iowa State Tax Commission, 162 N.W.2d 505, 510 (Iowa 1968). Thus, the party alleging this theory must establish either his lack of knowledge or means of knowledge of the real facts. Dierking, 258 N.W.2d 312 (Iowa 1977). Equitable estoppel requires a showing of prejudicial reliance by the party asserting the theory. This requires that the party prove either a substantial benefit against the party to whom it is asserted or a substantial detriment to himself as a result of having been misled or induced to act or fail to act. State v. Raymond, 254 Iowa 828, 119 N.W.2d 135 (Iowa 1963). The reliance, however, must be reasonable. Dierking, 258 N.W.2d 312, 317 (Iowa 1977). A party asserting estoppel has the burden to establish all essential elements thereof by clear, convincing and satisfactory proof. Holden v. Construction Machinery Co., 202 N.W.2d 335, 355 (Iowa 1972). The gist of the representation made by Mary Lorey or possibly other representatives of Employers Mutual Casualty Company or Drake University is that claimant's claim for workers' compensation benefits was denied. It appears to have been indicated to claimant that the reason for the denial was that it was felt there was not a causal relationship between claimant's back problems and his employment or that it was felt claimant would not be able to prove the existence of such a causal relationship. Tho law does impose that burden of proof upon a claimant. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Although claimant's injury of 1980 appears to have been reported promptly, it was in fact reported on a Monday morning. The incident which was alleged to have caused the injury was not witnessed by anyone other than claimant. The activity to which claimant attributed the injury is not the type of thing which normally can be expected to produce serious injury. It could reasonably be urged that the activity in which claimant was engaged was no more stressful or strenuous than the activities of normal non-employment life and that his back problem was therefore an idiopathic condition and not the result of any injury which arose out of and in the course of employment. The medical reports issued at the time, as indicated by Dr. Eklund in his deposition, provided a number of inconsistencies and irregularities which would certainly make the claim suspect. When a case involving an unwitnessed injury goes to litigation, the claimant's credibility can be the difference in determining whether or not an award is made. Having observed claimant's appearance and demeanor and made findings regarding his credibility in this case, it cannot be said with absolute certainty that claimant would have recovered, even if he had commenced an action within two years of November 3, 1980. NEWLIN V. DRAKE UNIVERSITY Page 11 With regard to the first element of equitable estoppel, it is important to note that there is a difference between a representation of fact and a statement of opinion. A denial of a claim by an insurance adjustor is not necessarily a misrepresentation of fact even though it is later proven that the denial was erroneous. It is therefore found that, while there may have been an erroneous denial of claimant's claim, the act of denying a claim and giving the reason for denial is not a misrepresentation of fact, provided that some rational basis exists for denying the claim. It is found that, in this case, there were sufficient indications that the claim may not have been compensable in order to justify the denial of the claim. Claimant has not established the first element of equitable estoppel. With regard to the second element of equitable estoppel, lack of knowledge of the true facts on the part of the claimant, it must be assumed that claimant himself had always felt there was some relationship between the alleged incident of November 3, 1980 and his back problems. He provided that relationship in his medical history when he sought treatment in 1980. In his testimony he denied having any back problems prior to that incident. Claimant clearly had knowledge of the true facts of what happened regarding his back. There is nothing in the record to indicate that he could not have asked his treating physicians about the existence of any causal connection between his back condition and his employment at the times in 1980 and 1981 when he was receiving medical treatment. It is therefore found that claimant has failed to establish that he lacked knowledge of the true facts dealing with the 1980 incident. The third element of equitable estoppel is intent by the party making the representation that it be relied upon by the person to whom the representation is made. It would, of course, be assumed that, when an insurance adjustor denies a claim, the adjustor hopes and intends that the person making the claim will not pursue it further. Claimant has established the third element of estoppel. The fourth element of equitable estoppel is reasonable reliance upon the false representation. From the evidence in the case, it appears that no one in the world would have had more accurate knowledge regarding the onset of claimant's back problems than claimant himself. It is not reasonable for claimant to have relied upon someone who told him something which was contrary to what claimant knew to be the actual fact of the matter. The record further indicates that claimant in this case was paid for all the time he was off work. It appears that group medical insurance may have paid all or a substantial part of the medical expenses. Claimant did return to work without any apparent loss in his rate of earnings. It is not entirely impossible that claimant may have felt that he had little to gain by pursuing litigation over the denial of his workers' compensation claim. Although it is not a majority view, there are some who support the theory that, where disability is evaluated industrially, no industrial disability should be awarded in those cases where the person does return to the same job without any loss of earnings. In this case, claimant was probably unaware of the intricacies of, and the full extent of NEWLIN V. DRAKE UNIVERSITY Page 12 benefits provided by, the workers' compensation system. Ignorance of the law is not an excuse. In any event, it was not reasonable that he rely upon the denial of the claim as a reason for failing to pursue the claim in a timely manner. Claimant has therefore failed to establish the fourth element of equitable estoppel. It is therefore concluded that claimant has failed to present evidence to support his claim for relief on the basis of equitable estoppel. Claimant has not established that any unreasonable or unlawful claim practices were employed by the defendants in this case in violation of Iowa Code section 507B.4. Claimant's claim based upon an alleged injury of November 3, 1980 is therefore determined to be barred by the provisions of section 85.26. FINDINGS OF FACT 1. Claimant has not established that he is a fully credible witness. 2. Floyd Brandt is a credible witness. 3. Mary Lorey is a credible witness. 4. It was not unreasonable for Employers Mutual Casualty Company to deny claimant's 1980 injury claim based upon the information which they had at the time the denial was made. 5. Claimant had actual knowledge of the true facts surrounding the manner in which his back condition arose in 1980. 6. Nothing prevented claimant from seeing an attorney or asking his treating physicians about the cause of his back problem in 1980 or 1981 while he was under treatment. 7. It was not reasonable for claimant to rely upon the denial of the claim as a reason for not pursuing the claim further, for he himself knew the actual facts of how his back problems developed and had full access to his treating physicians. 8. The evidence in the case does not establish, by a preponderance of the evidence, that claimant fell down a ladder on August 22, 1984 as was alleged in his petition. 9. The most likely cause of claimant's current physical ailments affecting his low back and legs is whatever incident produced the need for the surgery which was performed in 1981. 10. Claimant's petition alleging an injury of November 3, 1980 was filed February 5, 1985. 11. Claimant's petition alleging an injury of August 22, 1984 was filed on November 5, 1984. CONCLUSIONS OF LAW NEWLIN V. DRAKE UNIVERSITY Page 13 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. Claimant has failed to introduce sufficient evidence to prove the elements of equitable estoppel as it relates to the alleged November 3, 1980 injury. 3. Claimant's claim arising from the alleged November 3, 1980 injury is barred by the provisions of section 85.26 of the Iowa Code. 4. Claimant has failed to prove, by a preponderance of the evidence, that he sustained any injury on August 22, 1984 which arose out of and in the course of his employment with Drake University. 5. The reasonable denial of an insurance claim does not constitute a misrepresentation of fact which can provide a basis for seeking relief from the application of a valid statute of limitations under a theory of equitable estoppel. ORDER IT IS THEREFORE ORDERED that claimant take nothing from this proceeding. IT IS FURTHER ORDERED that the costs of this proceeding are assessed against claimant pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 29th day of February, 1988. MICHAEL G.TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Frank Watson, Jr. Attorney at Law 410 Hubbell Building Ninth & Walnut Des Moines, Iowa 50309 Mr. Frank T. Harrison Attorney at Law Suite 111, Terrace Center 2700 Grand Avenue Des Moines, Iowa 50312 1402.30, 2101, 2402 Filed February 29, 1988 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROBERT C. NEWLIN, Claimant, VS. File Nos. 653365 DRAKE UNIVERSITY, 776838 Employer, A R B I T R A T I 0 N and D E C I S I 0 N EMPLOYERS MUTUAL COMPANIES, Insurance Carrier, Defendants. 1402.30, 2101, 2402 This decision covered an alleged injury of August 22, 1984 and also an alleged injury of November 3, 1980. With regard to the alleged injury of 1984, the claimant did not give the history of injury which he provided at hearing to any of his treating physicians until a date subsequent to the time that his petition was filed. Prior to that time, all the medical histories indicated no incident of injury and an onset of approximately one month later than the injury date alleged in the petition. It was found that claimant failed to carry the burden of proving that he sustained an injury which arose out of and in the course of employment. With regard to the 1980 injury, the statute of limitations of section 85.26 was raised as a defense and claimant sought to avoid it through a claim of equitable estoppel. Claimant urged that the insurance adjustor had denied the claim on the basis that there did not appear to be a causal connection between the complaints and the alleged injury. There were a number of inconsistencies in the medical reports dealing with that incident and a number of other factors which made the claim suspect. It was held to not be unreasonable to have denied the claim based upon the information which was then known to the insurance carrier. The mere reasonable denial of a claim was held to not constitute a false representation which can be the basis for applying equitable estoppel to avoid a statute of limitations. Both claims were therefore denied. BEFORE THE IOWA INDUSTRIAL COMMISSIONER SUZANNE BLUME f/k/a SUZANNE LENZ f/k/a SUZANNE LITTLE, FILE NOS. 653710 & 719256 Claimant, A R B I T R A T I 0 N VS. A N D FARMLAND FOODS, INC., R E V I E W - Employer, R E 0 P E N I N G and D E C I S I 0 N AETNA CASUALTY & SURETY COMPANY, Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a combined proceeding both in arbitration and review-reopening brought by Suzanne Blume, f/k/a Suzanne Lenz and Suzanne Little (these name changes are due to a divorce and remarriage during the pendency of these proceedings), claimant, against Farmland Foods, Inc., employer (hereinafter referred to as Farmland), and Aetna Casualty & Surety Company, insurance carrier, for workers' compensation benefits as a result of alleged injuries on November 1, 1980 and October 12, 1982. A memorandum of agreement for the November 1, 1980 injury was filed on November 24, 1980. On July 7, 1987, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing 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. Oral testimony was received during the hearing from claimant. The exhibits received into the evidence at hearing are listed in the prehearing report. All of the evidence received at the hearing was considered in arriving at this decision. The prehearing report contains the following BLUME V. FARMLAND FOODS, INC. Page 2 stipulations: 1. On November 1, 1980 and October 12, 1982 claimant received injuries which arose out of and in the course of her employment with Farmland; 2. Claimant is not seeking additional temporary total disability or healing period benefits in this proceeding; 3. Claimant's rate of compensation in the event of an award of weekly benefits from this proceeding shall be $217.37 per week for the November 1, 1980 injury and $225.78 for the October 12, 1982 injury; and, 4. The fees charged for an evaluation by Horst G. Blume, M.D., for which claimant seeks reimbursement in this proceeding is fair and reasonable and causally connected to the work injury. The prehearing report submits the following issues for determination in this decision: I. Whether there is a causal relationship between the work injuries and the claimed disabilities; II. The extent of claimant's entitlement to weekly benefits for permanent disability; and, III. The extent of claimant's entitlement to medical benefits under Iowa Code section 85.39. FINDINGS OF FACT 1. Claimant was a credible witness. From her demeanor while testifying, claimant appeared to be truthful. Claimant's testimony was consistent with histories BLUME V. FARMLAND FOODS, INC. Page 3 provided to physicians during treatment and evaluation of her injuries. 2. Claimant has been employed by Farmland since 1977 and continues to work for Farmland at the present time. There was little dispute among the parties as to the nature of claimant's employment with Farmland. Claimant testified that her duties consisted of general meat packing work. Claimant has worked on the bacon line, belly table and in butt skinning. Claimant regularly used a wizard knife, an electrically powered circular knife, during her Farmland employment in 1980 and 1981. Throughout claimant's employment at Farmland, she has used her hands, arms and shoulders on a repetitive basis. 3. Between September 1980 and continuing at the present time, claimant has suffered and continues to suffer gradual and accumulative traumas to her right hand, wrist, arm and shoulder which arises out of and in the course of her employment at Farmland. In September, 1980, claimant sought treatment from the company doctor, James Flood, M.D., for tendinitis of the right upper forearm and she was placed on light duty for one week. As stipulated, on November 16, 1980, claimant left work and sought treatment from Dr. Flood because her ring finger of her right hand became locked. She was referred by Dr. Flood at that time to an orthopedic surgeon, Timothy C. Fitzgibbons, M.D. Dr. Fitzgibbons diagnosed stenosing tenosynovitis and performed surgery to release the ring finger. Claimant's pain complaints after the surgery also involved the right shoulder and swelling and numbness of the right hand. Despite a negative EMG test, claimant had a positive TinelOs sign and numbness of the hand and wrist indicating a nerve entrapment according to the records of Dr. Fitzgibbons. Dr. Fitzgibbons continued to prescribe physical therapy and medication. Claimant improved after this treatment and was released for light duty on January 26, 1981. In February, 1981, she was discharged by Dr. Fitzgibbons who noted that if symptoms persist, claimant should consider alternative work and vocational rehabilitation. In May, 1981, claimant returned to Dr. Fitzgibbons with complaints of continued pain in the right hand, wrist and forearm when using the wizard knife during her employment at Farmland. Dr. Fitzgibbons took claimant off work especially the wizard knife job for a couple of weeks and prescribed physical therapy and medication. Again Dr. Fitzgibbons noted that if claimant's difficulties persist, she should be taken off a packinghouse type of job. In August, 1981, claimant again returned to Dr. Fitzgibbons with a recurrence of symptoms and Dr. Fitzgibbons diagnosed right deQuervain's tenosynovitis. At this time, Dr. Fitzgibbons took claimant off work and tried to relieve claimant's hand, wrist and arm symptoms with steroid injections. This treatment proved ineffective and he performed another release surgery in August, 1981. This surgery did not help alleviate claimant's symptoms of Vain and numbness in the right wrist and hand. Dr. Fitzgibbons indicated in October, 1981, that there was nothing else he could do and released claimant to return to light duty work on November 2, 1981 for six weeks and regular work after that. In December, BLUME V. FARMLAND FOODS, INC. Page 4 1981, Dr. Fitzgibbons again stated that there was nothing he could offer and referred claimant to Richard Murphy, M.D., a hand surgeon. There is little evidence in the record of Dr. Murphy's treatment at that time. In October, 1982, claimant experienced right shoulder pain and discomfort which was treated by Dr. Flood, Clifford M. Danneel, M.D., and William R. Hamsa, Jr., M.D., who all diagnosed that claimant had right shoulder bursitis but no particular form of treatment was recommended. According to claimant, she was placed on light duty for approximately a month following this bursitis pain. On March 8, 1983, claimant left work again and returned to Dr. Fitzgibbons who noted claimant's persistent complaints of discomfort up and down the forearm and wrist on the right side, referred symptoms into the right shoulder and some shoulder these bursitis. Dr. Fitzgibbons opined at that time that all of symptoms were exacerbations of claimant's previous problems. He again stated that claimant will continue to experience difficulty doing the type of work she has done in the past. Dr. Fitzgibbons returned claimant to light duty work on March 27, 1983 and continued treatment through April. Claimant began treating with another physician, Thomas P. Ferlic, M.D., in June, 1983. Dr. Ferlic felt that claimant was suffering from scarring of the radial nerve and that she was in need of further release of various tendons and nerves in the right hand. Dr. Ferlic like Dr. Fitzgibbons initially tried injections of medication but eventually performed exploratory surgery in August of 1983. It is unclear in the reports submitted into the evidence what exactly Dr. Ferlic did in this third surgery but Dr. Ferlic felt that claimant would be able to return to full duty after recovery from the surgery. Dr. Ferlic's diagnosis was the same as Dr. Fitzgibbons, stenosing tenosynovitis, right wrist. Although there are varying complaints extending from the fingers to the right shoulder, the views of Dr. Fitzgibbons, who appears to be the primary treating physician, are the most convincing. He believes that claimant is suffering from a series of exacerbations of a single injury process arising from overuse of her hands, arms and shoulders during her work at Farmland. The greater weight of evidence demonstrates that this injury process was continuous over a period of time and is probably continuing at the present time. Furthermore, there are several dates of injury as claimant has been compelled by her pain to be temporarily absent from work to receive treatment of her condition on several occasions: November 16, 1980; May 5, 1981; August 31, 1981; November 17, 1982; March 8, 1983 and August 29, 1983. These dates of injury coincide with the first day of each extended absence from work (as stipulated in the prehearing report) as a result of her right hand, wrist and arm condition. 4. The work injury of August 31, 1981 to claimant's right hand, arm and shoulder was a cause of a seven percent permanent partial impairment to claimant's right upper extremity. It is rather clear that early on in the gradual injury BLUME V. FARMLAND FOODS, INC. Page 5 process, Dr. Fitzgibbons felt that claimant's condition was permanent and that her persistent difficulties would only be corrected by a change in jobs. On November 5, 1981, Dr. Fitzgibbons stated in a report to Farmland's insurance carrier that although he could not give an exact rating, he was sure "there will be some permanency." Claimant stated that she had no previous medical history of any right hand, arm or shoulder problems and no prior functional impairment or disability due to such problems before working at Farmland. This testimony is uncontroverted by any other testimony or evidence. In a report submitted into the evidence, claimant's primary treating physician, Dr. Fitzgibbons opined in March, 1983, that claimant is suffering from a seven percent permanent partial impairment to her right upper extremity as a result of her work injuries at Farmland. Dr. Ferlic's views are somewhat confusing. He stated in September, 1983, that he did not feel that claimant would suffer permanent disability after she reaches maximum healing from the third surgery but stated that it was too early to give such an opinion at that time. A month later he stated that claimant had Oreturned to her preoperative status." He also stated that as far as he knows, "no permanent disability should result as a result of the surgery." One can reasonably interpret these statements as indicating that claimant's surgery had little or no influence on claimant's condition. If she had permanency before she would have permanency after the surgery. In May, 1987, claimant was examined by a neurosurgeon, Horst Blume, M.D., who opines that claimant suffers from a 13 percent permanent partial impairment to the right hand. Dr. Blume was not shown in the record to possess such extensive experience with orthopedic problems with the hand to warrant giving his views greater weight over those of the primary treating physician, Dr. Fitzgibbons. As claimant has chosen to endure the pain and not to permanently leave her employment at Farmland, the injury date of August 31, 1981 was chosen as the injury date for permanency purposes for reasons that will be discussed in the conclusions of law section of this decision. This injury date is the most recent injury date that bore a relationship to the time Dr. Fitzgibbons finally concluded that claimant's condition was permanent. It is also concluded from the evidence that claimant's permanent impairment does not extend into the shoulder or to the body as a whole. It would appear from the medical records that only soft tissues of the arm have had continuing problems. Dr. Fitzgibbons in his rating did not believe that the injury extended beyond the arm but definitely extended beyond the right hand. 6. After receiving a disability evaluation by an employer authorized and paid physicians namely, Dr. Fitzgibbons and Dr. Ferlic, claimant secured an evaluation of her right sided disability in May, 1987, from Horst Blume, M.D., and paid the sum of $200 for this evaluation. BLUME V. FARMLAND FOODS, INC. Page 6 CONCLUSIONS OF LAW I. Claimant has the burden of proving by a preponderance of the evidence that claimant received an injury which arose out of and in the course of employment. The words "out of" refer to the cause or source of the injury. The words "in the course of" refer to the time and place and circumstances of the injury. See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). An employer takes an employee subject to any active of dormant health impairments, and a work connected,injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited therein. It is not necessary that claimant prove that her disability results from a sudden, unexpected traumatic event. It is sufficient to show that the disability developed gradually or progressively from work activity over a period of time. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). The McKeever court also held that the date of injury in gradual injury cases is the time when pain prevents the employee from continuing to work. In McKeever the injury date coincided with the time claimant was finally compelled to give up his job. This date was then utilized in determining the rate of compensation. By adopting this rule, Iowa joins the majority of other states by placing full liability upon an insurance carrier or employer covering the risk at the time of the most recent injury that bares a causal relationship to the disability. In the case sub judice, the rule concerning the injury date in McKeever could not be strictly applied as claimant has not permanently left her employment. However, it is found that claimant's pain has caused claimant to temporary leave work on several occasions for treatment of her injuries. The undersigned believes that the logic of the McKeever rule requires that each temporary absence from work has its own precipitating injury date which coincides with the time claimant was compelled by her pain to leave work and seek treatment of her condition. II. The claimant has the burden of proving by a preponderance of the evidence that the work injury is a cause of the claimed disability. A disability may be either temporary or permanent. In the case of a claim for temporary disability, the claimant must establish that the work injury was a cause of absence from work and lost earnings during a period of recovery from the injury. Generally, a claim of permanent disability invokes an initial determination of whether the work injury was a cause of permanent physical impairment or permanent limitation in work activity. However, in some instances, such as a job transfer caused by a work injury, permanent disability benefits can be awarded without a showing of a causal connection to a physical change of condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). The question of causal connection is essentially within the BLUME V. FARMLAND FOODS, INC. Page 7 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, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Furthermore, if the available expert testimony is insufficient alone to support a finding of causal connection, such testimony may be coupled with nonexpert 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, 290 N.W.2d 348, 354. In the case of a preexisting condition, an employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). In the case sub judice, a finding was made causally BLUME V. FARMLAND FOODS, INC. Page 8 connecting a work injury of August 31, 1981 to claimant's permanent functional impairment to her arm. This injury date was chosen from among almost limitless alternatives in the continuous injury process. As discussed above, the rule in McKeever could not be strictly applied as claimant has chosen to Otough it out" at least at the present time and has not permanently left her employment despite the existence of permanent impairment. The above particular injury date was chosen because it was the most recent injury date prior to the time claimant's condition first became permanent, in the opinion of Dr. Fitzgibbons. Dr. Fitzgibbons first found permanency in November, 1981, when she completed her third extended period of absence from work to recover from her cumulative injuries. III. Claimant must establish by a preponderance of the evidence the extent of weekly benefits for permanent disability to which claimant is entitled. 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, 997 (Iowa 1983). When the result of an injury is loss to a scheduled member, the compensation payable is limited to that set forth in the appropriate subdivision of Code section 85.34(2). Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). "Loss of useO of a member is equivalent to "loss" of the member. Moses v. National Union C.M. Co., 194 Iowa 819, 184 N.W. 746 (1922). Pursuant to Code section 85.34(2)(u) the industrial commissioner may equitably prorate compensation payable in those cases wherein the loss is something less than that provided for in the schedule. Blizek v.Eagle Signal Company, 164 N.W.2d 84 (Iowa 1969). Based upon a finding of a seven percent loss of use to the upper extremity, claimant is entitled as a matter of law to a 17.5 weeks of permanent partial disability benefits under Iowa Code section 85.34(2)(m) which is seven percent of the 250 weeks allowable for an injury to the arm in that subsection. These permanent partial disability payments were due when she completed the healing period following the August 31, 1981 injury date and returned to work on November 2, 1981. This was also the time that the defendants were first informed that there would be some permanency from her condition. Therefore, permanent partial disability benefits shall be ordered from November 2, 1981. Unfortunately, the parties never stipulated as to a rate of compensation for the injury date found in this case that caused the permanent partial disability to occur and no evidence was offered to determine the rate for such an injury date. It is rather clear that claimant is entitled to at least the rate for the 1980 alleged injury and due to the fact that claimant has the burden of proof, she must suffer the consequences of any difficiency in the evidence. Therefore, only the stipulated rate for the early injury on November 1, 1980 in the amount of $217.37 will be used in awarding permanent partial disability benefits in this decision. BLUME V. FARMLAND FOODS, INC. Page 9 The parties stipulated that all of the healing period benefits requested by claimant have been paid. IV. Employers are obligated to furnish an independent disability evaluation of a work injury subsequent to an adverse evaluation by an employer retained physician under Iowa Code section 85.39. Given the findings in this case, claimant is entitled under law to reimbursement for the evaluation by Dr. Blume and such will be ordered herein. ORDER 1. Defendants shall pay to claimant seventeen point five (17.5) weeks of permanent partial disability benefits at a rate of two hundred seventeen and 37/100 dollars ($217.37) per week from November 2, 1981. 2. Defendants shall pay claimant the total sum of two hundred and no/100 dollars ($200.00) as reimbursement for the evaluation by Dr. Blume. . 3. Defendants shall pay accrued weekly benefits in a lump sum. 4. Defendants shall pay interest on benefits awarded herein from November 2, 1981. 5. Defendants shall pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. 6. Defendants shall file an activity report upon payment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 9th day of September, 1987. LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Harry H. Smith Attorney at Law 632-640 Badgerow Bldg. P. 0. Box 1194 Sioux City, Iowa 51102 Mr. Thomas M. Plaza Attorney at Law 200 Home Federal Bldg. P. 0. Box 386 Sioux City, Iowa 51102 2209 Filed September 9, 1987 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER SUZANNE BLUME f/k/a SUZANNE LENZ f/k/a SUZANNE LITTLE, FILE NOS. 653710 & 719256 Claimant, A R B I T R A T I 0 N VS. A N D FARMLAND FOODS, INC., R E V I E W - Employer, R E 0 P E N I N G and D E C I S I 0 N AETNA CASUALTY & SURETY COMPANY, Insurance Carrier, Defendants. 2209 Two alleged injury dates were found to be a part of the same cumulative injury process from which claimant has suffered a compensable permanent disability. However, none of these alleged injury dates were used to award benefits. Claimant has not permanently left her employment and the rule in McKeever could not be strictly applied. Therefore, the injury date utilized was the most recent injury date which precipitated a temporary absence from work which bore a relationship to the time when claimant's primary physician first concluded that claimant has permanent disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ MARTIN WILLIAMS, Claimant, vs. File No. 655174 SKKI, A P P E A L Employer, D E C I S I O N and STATE FARM FIRE & 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 December 23, 1991 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 October, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Michael L. Jankins Attorney at Law 2323 Grand Ave. Des Moines, Iowa 50312 Ms. Iris J. Post Mr. Thomas E. Leahy Attorneys at Law P.O. Box 10434 Des Moines, Iowa 50306 9998 Filed October 29, 1992 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ MARTIN WILLIAMS, Claimant, vs. File No. 655174 SKKI, A P P E A L Employer, D E C I S I O N and STATE FARM FIRE & CASUALTY COMPANY, Insurance Carrier, Defendants. ____________________________________________________________ 9998 Summary affirmance of deputy's decision filed December 23, 1991. Page 1 before the iowa industrial commissioner ____________________________________________________________ : MARTIN WILLIAMS, : : Claimant, : : vs. : File No. 655174 : SKKI, : R E V I E W - : Employer, : R E O P E N I N G : and : D E C I S I O N : STATE FARM FIRE & CASUALTY : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in review-reopening from an agreement for settlement. Martin Williams seeks additional healing period and permanent partial disability based upon an injury that occurred on October 29, 1980. With regard to the healing period issue, it was stipulated that additional compensation was due but the dates of entitlement were disputed. It was further agreed by the parties that there had been sufficient events to warrant review-reopening and reconsideration of the degree of permanent partial disability, but there was a dispute with regard to whether or not additional permanent disability compensation is payable. Claimant seeks compensation for permanent total disability and relies upon the odd-lot doctrine. The case was heard at Des Moines, Iowa, on October 16, 1991. The record in the case consists of exhibits 1 through 6 and 8 through 11. Official notice was taken of the pleadings and agreement for settlement which are contained in the agency file. The record also contains testimony from Martin Williams, Linda Williams, Roger Marquardt and James Coyle. Page 2 findings of fact Having considered all the evidence received, together with the appearance and demeanor of the witnesses, the following findings of fact are made. Martin Williams is a 39-year-old man who lives at Clarinda, Iowa. He is a 1971 high school graduate. Following his graduation from high school, Martin worked primarily in the telephone industry as a lineman and installer. The work involved climbing and carrying. He worked with telephone cable and switchboards. He had worked for SKKI for approximately one year at the time he was injured. The company installed cable television. The work involved climbing ladders, digging and handling 50 to 75 pound reels of cable. Martin's injuries occurred when he fell off a ladder in the process of installing cable TV service to a customer. Martin sustained severe injuries in the fall including an injury to his left knee, a fracture of his left femur and an injury to his left shoulder. He has undergone surgical procedures on all three of those parts of his body. He continues to complain of restrictions in his ability to use his left shoulder. He stated that his left knee will occasionally go out and that he is restricted in his ability to perform squatting and activities such as getting up and down from kneeling or squatting. He is unable to kneel on his left knee without pain. The fracture of Martin's left femur was surgically repaired in a manner which included placing a metal nail in his hip. The hip became painful and, in 1987, the nail was removed (exhibit 1, page 11). The course of medical treatment which led to the nail being surgically removed had commenced on July 13, 1987 (exhibit 1, page 7). Following removal of the nail, it was estimated that recuperation from the surgery would take nine months to a year. On November 9, 1988, Ronald K. Miller, M.D., who has been claimant's primary treating orthopaedic surgeon, authorized him to perform some type of sitting work (exhibit 1, pages 14 and 15). In a report dated March 24, 1989, Dr. Miller confirmed that claimant's medical improvement had probably stabilized. Several months later, on October 23, 1989, Martin reentered into a course of treatment with Dr. Miller which culminated in total hip replacement surgery being performed on November 28, 1989 (exhibit 1, pages 17 and 21; exhibit 2, page 12). On March 24, 1990, Dr. Miller again released claimant to perform sedentary work (exhibit 1, page 22). Martin characterized his hip replacement surgery as being excellent. He stated that he no longer limps as much as he did previously, though his level of pain is essentially unchanged. Martin stated that he still has trouble walking on account of his hip. He can tolerate walking five or six blocks and then has to stop for five or ten minutes in order to continue. He complained of pain with squatting. Martin Page 3 also related that his neck goes with certain movements and he is unable to turn it from side to side without pain. He stated that his low back is also sore. Martin attributed his neck complaints to the 1980 accident. Martin also stated that he was unable to sit for more than one-half hour to forty-five minutes or stand for a similar length of time without needing to change positions. He stated that he is limited in his ability to go up and down stairs and that jolts are a particular problem. Climbing poles or ladders bothers his hip. He complained of difficulty dropping things with his left hand. Since being last released by Dr. Miller, Martin has applied for work with Heritage Cablevision in Red Oak, Iowa, but has not been hired. He has been offered work operating a backhoe and Ditch Witch for another company but has declined to accept the employment. He has other job leads which have been provided to him through representatives of Crawford & Company and the Iowa Department of Job Service, but he has not followed up with those leads or gone to interviews which were scheduled (exhibit 10). Martin has made inquiries about jobs with other companies in the telephone and communications industry. Martin prefers work in the telephone industry. He does not want to perform factory work or other work which is done totally indoors. He prefers to stay around the Clarinda, Iowa, vicinity. Martin has had a problem with drinking as well as drinking and driving. His driver's license has been suspended on two occasions, one resulting from an October 18, 1989, accident and the other from an August 24, 1990, arrest. He currently has no valid driver's license. In December of 1990, he spent approximately 32 days in an alcohol abuse program. He continues to use alcohol on a regular basis. In the early 1980's, after initially recuperating from his injuries, Martin attempted self-employment selling, repairing and installing telephones. He was not financially successful. In 1987, he was employed by Henkel & McCoy in the state of Pennsylvania installing telephones in residential areas. The job had lasted approximately six or eight months when Martin was involved in a motor vehicle accident and sustained a serious head injury. CT scans showed a left frontal cerebral hematoma (exhibit 5, pages 6 and 7). He was assessed as having a brain injury with right hemiparesis. He takes Dilantin to prevent seizures (exhibit 5, page 20). Since undergoing hip replacement surgery, Martin worked briefly in a switch room. He stated that he was bumped out of the position because he was slow and another person had greater seniority. Diagnostic testing has shown Martin to have spondylolysis and a C5-6 disc herniation. Neither condition Page 4 can be attributed, however, to the original 1980 injury (exhibit 4, page 4). In 1985, an evaluator from Crawford & Company found Martin to be employable and capable of earning a salary in the range of $5.68 to $13.80 per hour. That assessment was based upon activity restrictions including the ability to lift 50 pounds and limited ability regarding overhead lifting, pushing, pulling, climbing and carrying (exhibit 6). Since recuperating from the hip replacement surgery, a functional capacity evaluation was performed in early 1991 which showed Martin to be capable of performing medium work (exhibit 10, last six pages). Roger Marquardt, a qualified vocational consultant, felt that claimant was employable only in a very select number of positions, very few of which exist. He had not been able to actually locate any such position (transcript, pages 18-24). Marquardt felt that, with the closed head injury residuals being considered, Martin was clearly unemployable. In making his assessment, Marquardt relied upon Martin's physical capabilities as being limited to very light or sedentary work in accordance with the statement from Dr. Miller (transcript, pages 16 and 17). Marquardt attributed claimant's lack of motivation in seeking employment to his closed head injury (transcript, pages 28 and 29). It is found that Martin Williams does have significant impairment and disability resulting from the October 29, 1980, injury when he fell from a ladder. Those impairments affect his left shoulder, left knee and left hip. The evidence does not show any of the problems in Martin's head, neck or low back to be attributable, to any degree, to that 1980 injury. The assessment of Martin's vocational capacity made by Marquardt is not fully adopted since it is based upon a statement from Dr. Miller which requires claimant to be absolutely sedentary. In his own testimony, Williams acknowledged greater physical capacity than that indicated by Dr. Miller. Further, the functional capacity assessment performed by Midwest Sports and Industrial Rehabilitation Company in early 1991 objectively shows Williams to have the ability to perform medium work. From Martin's own testimony, it appears as though the hip replacement surgery has left him little, if any, more impaired than he was in 1985 when comparing his ability to engage in activities. If the head injury is considered, Williams is likely unemployable in regular competitive employment. If his degree of disability is assessed assuming the head injury had not occurred, then he would clearly be employable as indicated in the 1985 vocational evaluation performed by Crawford & Company (exhibit 6). Under any reasonable scenario which has been presented, it is apparent that Martin cannot resume the regular work of a lineman which had been his career prior to the injury. Page 5 When this case was originally settled, it was not known that Martin would require surgery to remove the nail which was in his femur or that he would eventually require total hip replacement surgery. When this case was settled, his left hip was in fact in better condition than it is in currently. While it might have been known that there was a risk of a need for the surgeries which have now been performed, such was not a certainty. When all things are considered, the artificial hip is not as useable as a hip in the condition that Martin's hip was in during 1985. It is pertinent to note that he was able to resume work installing telephones and lines in the state of Pennsylvania. While the 65 percent permanent impairment rating arrived at by Dr. Miller appears to exceed that which would be determined under most objective rating plans (exhibit 1, pages 24 and 25), Martin nevertheless is more impaired now than he was in 1985 when he was rated as being 20 percent impaired (exhibit 1, pages 4-6). Bernard L. Kratochvil, M.D., found Martin to currently be 28 percent impaired (exhibit 9). It is therefore determined that Martin Williams has experienced a 50 percent reduction in his earning capacity as a result of the October 29, 1980, injury. conclusions of law Since the parties agreed that there had been sufficient change of condition to warrant review-reopening and reassessment of the degree of disability, that issue need not be determined, though the stipulation certainly appears correct from the evidence in the record. There is no need to show any particular change of condition in order to award additional healing period compensation, other than the occurrence of an event of disability which provides a basis for payment of healing period compensation. In this case, claimant, under the agreement for settlement, was paid permanent partial disability compensation ending June 28, 1986. Nothing was therefore payable to him until the healing period resumed on July 13, 1987. That initial healing period ran through November 9, 1988, a span of 69 and 3/7 weeks. The healing period entitlement then resumed commencing October 23, 1989, and ran through March 24, 1990, a span of 21 and 6/7 weeks. 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.2d 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term `disability' to mean `industrial disability' or loss of earning capacity and not a mere `functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which Page 6 he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). Industrial disability or loss of earning capacity is a concept tision since this is a proceeding in review-reopening from a prior settlement. Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957). The healing period and permanent partial disability provided by this decision totals 166 and 2/7 weeks. According to exhibit 8, defendants have previously paid 214 weeks of compensation benefits to the claimant commencing September 9, 1987. There is an overpayment in the amount of 47 and 5/7 weeks. Claimant is therefore not entitled to any additional recovery in this proceeding. order IT IS THEREFORE ORDERED that claimant take nothing from this proceeding as his entire entitlement has been previously voluntarily paid by the employer and its insurance carrier. IT IS FURTHER ORDERED that the costs of this proceeding are assessed against the claimant pursuant to rule 343 IAC 4.33. Signed and filed this ______ day of ____________, 1991. Page 7 ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Michael L. Jankins Attorney at Law 2323 Grand Avenue Des Moines, Iowa 50312 Mr. Thomas Leahy Attorney at Law 2222 Grand Avenue P.O. Box 10434 Des Moines, Iowa 50306 5-2905 Filed December 23, 1991 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : MARTIN WILLIAMS, : : Claimant, : : vs. : File No. 655174 : SKKI, : R E V I E W - : Employer, : R E O P E N I N G : and : D E C I S I O N : STATE FARM FIRE & CASUALTY : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 5-2905 Claimant's additional healing period and permanent partial disability determined to be a lesser amount than that which had been voluntarily paid by the employer and its insurance carrier. No additional recovery awarded. BEFORE THE IOWA INDUSTRIAL COMMISSIONER LEWIS E. JONES, Claimant, File No. 655193 VS. R. M. BOGGS COMPANY, INC., A P P E A L Employer, D E C I S I 0 N and NORTHWESTERN NATIONAL INSURANCE COMPANY, Insurance Carrier, Defendants. STATEMENT OF THE CASE Defendants appeal and claimant cross-appeals from a review-reopening decision in which claimant was awarded permanent total disability benefits. The record on appeal consists of the stipulations in the prehearing report; the transcript of the review-reopening proceeding; and exhibits 1, 2, 3 (except pages numbered 180-182), 4E, 4G, 5, 7, A through W, Y, Z and AA through DD, GG, MM, NN, and 00. Both parties filed briefs on appeal. The deputy properly excluded exhibits 3 (pages number 180-182), 4(A), 4(B), 4(C), 4(D), 4(F), X, KK, and LL and they are not considered upon appeal. ISSUES Defendants state the following issues on appeal: 1. The deputy erred in finding a causal connection between claimant's injury and his current condition. 2. Claimant's industrial disability rating of 100 percent is unsupported by the record evidence. 3. The deputy's rate calculation was in error. 4. The deputy erred in not allowing credit for past payment. Claimant states the following issues on cross-appeal: 1. The deputy erred in excluding claimant's exhibit 3 regarding rate. 2. The deputy's rate calculation was in error. JONES V. R. M. BOGGS COMPANY, INC. Page 2 3. The deputy failed to award mileage. REVIEW OF THE EVIDENCE The review-reopening decision adequately and accurately reflects the pertinent evidence and it will not be fully set forth herein. On November 13, 1980, while installing an air conditioning coil in a furnace, claimant suddenly became dizzy and disoriented and heard a loud roaring noise in his left ear. Claimant sought medical attention from the Department of Otolaryngology at the University of Iowa Hospital and Clinics. In December 1980, he underwent surgery to correct a perilymph fistula in the left ear. After a few weeks of recovery he returned to work. He continued to have periodic mild episodes of vertigo between 1981 and 1983. After experiencing severe spinning, dysequilibrium, dizziness, profuse sweating and vomiting in June 1983, he returned to University Hospitals in July 1983. A second surgery on a fistual in the left ear followed. He failed to improve and further surgery for the destruction of the portion of the left inner ear which controls balance was performed in December 1983. The vertigo spells subsided after the last surgery. He has no hearing in his left ear and residual dysequilibrium and poor balance which do not enable him to move around very much without tending to fall to the left side. He becomes disoriented with a startle reaction. Roger A. Simpson, M.D., Bruce Haughey, M.D., and Paul D. Nosal, M.D., have opined that the residual dysequilibrium and hearing loss are probably related to the events of November 13, 1980. Dr. Nosal rates claimant's whole person impairment at 56 percent of the body as a whole. A vocational rehabilitation specialist found claimant to be 90 to 100 percent vocationally impaired. Claimant worked forty or more hours for nine weeks out of a forty-five week period prior to the work injury. He worked thirty-seven or more hours for thirteen weeks in the time period May 28, 1980 through October 29, 1980. The hourly rate for this period of time was $14.25. He was not paid for time off taken due to illness, holidays, or vacations. Employees of defendant would usually work 40 hours per week. At time of the hearing claimant was 53 years of age and had a ninth grade education but had recently received his GED. In the 1960's he successfully completed a correspondent course in heating and air conditioning, and refrigeration repair and maintenance. He is also a licensed journeyman electrician and plumber. Prior to his heating and air conditioning work, he held various unskilled and semi-skilled jobs such as a garage mechanic, truck driver, door-to-door salesman, house mover, farm helper, and military policeman. Most of the jobs he held prior to the work injury in this case required heavy lifting and extensive standing or walking. APPLICABLE LAW The citations of law in the review-reopening decision are appropriate to the issues and evidence except as they relate to the issue of rate in this matter. JONES V. R. M. BOGGS COMPANY, INC. Page 3 Briefs by the parties indicate agreement that rate is to be calculated pursuant to Iowa Code subsection 85.36(6). That subsection provides a method to calculate the basis of compensation for employees who are paid on an hourly basis and have been employed for more than thirteen weeks at the time of the injury. Iowa Code section 85.27 provides in part, that "the employer, for all injuries compensable under this chapter or chapter 85A, shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatrial, physical rehabilitation, nursing, ambulance and hospital services and supplies therefor and shall allow reasonable necessary transportation expenses incurred for such services." ANALYSIS The filing of a memorandum of agreement conclusively establishes the occurrence of an injury arising out of and in the course of employment. While some language in the review-reopening decision might appear to indicate that the memorandum of agreement also establishes a causal connection between the injury and claimant's disability, the memorandum of agreement does not establish the causal connection. Claimant must prove by a preponderance of the evidence a causal connection between the work injury and his disability. The physicians are unanimous in their opinion that there is a direct link between claimant's disability and the November 1980 injury. Claimant has clearly established by a preponderance of the evidence that he suffered a permanent impairment to his body as a whole from the injury. Claimant's primary treating physician at University of Iowa Hospitals has given claimant an impairment rating of 56 percent and has described a condition that prevents claimant from doing anything other than sedentary work in an isolated environment. He has no significant training for such work and successful vocational rehabilitation is unlikely. Permanent disability benefits should begin as of June 28, 1983, the day after his last day he worked for defendant or anyone else. Because it is determined that claimant has suffered a 100 percent loss in earning capacity without the necessity of of changing the burden of proof, it is unnecessary in this case to determine if he is an odd-lot employee. The rate for hourly employees such as claimant is computed under Iowa Code subsection 85.36(6) using representative weeks. Overtime work is included but only at the normal hourly rate. Representative weeks are weeks in which there was no use of sick leave or vacation time. Representative weeks in this case must mean weeks where there was no substantial use of sick leave or vacation time. There were only approximately nine weeks out of a forty-five weeks period prior to the work injury in which claimant did not use some sick leave or vacation time. Therefore, those thirteen weeks which claimant worked thirty-seven or more hours would be the proper representative weeks. One other matter should be noted. In the review-reopening JONES V. R. M. BOGGS COMPANY, INC. Page 4 decision it was ordered that defendants pay for both a report from and expert witness fee for Marion Jacobs. Cost may be taxed either for either the report or the expert witness fee but not both because to tax both as costs would be taxing for cumulative evidence. In this case the cost to be taxed will be $150 for the expert witness fee. FINDINGS OF FACT 1. Claimant is a credible witness. 2. Claimant was in the employ of defendant at all times material herein. 3. Claimant's job on November 13, 1980 consisted of the installation, maintenance, and repair of heating and air conditioning equipment along with necessary plumbing and electrician work. 4. On November 13, 1980, while performing his work for defendant, claimant injured his left ear which resulted in immediate hearing loss, tinnitus, and vertigo. 5. As a result of the work injury, claimant underwent a surgical operation in December 1980 to plug the fistula hole with fat material. 6. Subsequent to the December 1980 surgery, claimant returned to work in January 1981 and except for his hearing loss his vertigo symptoms diminished. 7. Between January 1981 and June 1983, claimant had recurrent episodes of mild dizziness which lasted several minutes. 8. Beginning in June 1983, claimant began to develop severe episodes of vertigo and nausea from a recurrence of the November 1980 fistula. 9. In July 1983, another surgery was performed on claimant's left ear to patch the recurrent fistula with more fat material but claimant's symptoms did not subside after this procedure. 10. As a result of the recurrent fistula in September 1983, claimant underwent a surgical procedure termed a destructive labyrinthectomy which permanently destroyed parts of the left inner ear and resulted in a total hearing loss in that ear. 11 The September 1983 surgery ended the spontaneous episodes of vertigo but claimant still has permanent residual dysequilibrium as a result of the 1980 work injury. 12. As a result of the November 1980 work injury and residual dysequilibrium, claimant is unable to walk or stand without grasping a firm object and becomes disoriented upon movement of objects around him and after being startled with sudden noises. 13. Claimant had no episodes of vertigo, dizziness, hearing JONES V. R. M. BOGGS COMPANY, INC. Page 5 loss, or disorientation caused by sudden noises before the work injury of November 13, 1980. 14. Prior to November 1980, claimant had numerous physical problems including high blood pressure, obesity, and back pain. 15. After the work injury, claimant was diagnosed as diabetic and suffering from a peripheral neuropathy unrelated to the work injury herein. 16. Prior to the work injury, claimant had no physical impairments or ascertainable disabilities. 17. Prior to the work injury, claimant was able to fully perform his work at defendant. 18. As a result of the work injury, claimant is unable to perform strenuous work, extensive climbing, or heavy lifting. 19. As a result of the work injury herein, claimant is unable to return to heating and air condition work or any other work for which claimant is best suited given his past experience and training. 20. As a result of the work injury herein, claimant is unable to move about freely and is confined to a wheelchair. 21. Claimant is able to drive an automobile at the present time but such driving is unsafe given his tendency to have episodes of vertigo from movement of vehicles around him. 22. Claimant's work history consists of regular gainful employment in the type of work he can no longer perform. 23. Claimant has suffered a loss in actual earnings from employment due to his work injury. 24. Claimant is motivated to find suitable alternative employment but it is unlikely that claimant will ever find such employment. 25. Claimant was born August 28, 1932 and was 53 years of age at the time of the review-reopening hearing. Claimant has a GED. 26. Claimant has above average intelligence. 27. Claimant has very low potential for successful vocational rehabilitation. 28. As a result of the work injury, claimant has suffered a total loss of earning capacity. 29. Claimant has not been employed in any capacity since June 27, 1983 due to his work injury herein. 30. According to the parties' stipulation, at the time of the work injury herein, claimant was married and entitled to five exemptions. JONES V. R. M. BOGGS COMPANY, INC. Page 6 31. Claimant worked the following representative weeks and his gross earnings corresponding to those weeks are: Payroll Period Number of Amount of Ending (1980) Hours Earnings 10-29 38.5 $ 548.63 10-22 37.5 534.38 10-08 39.5 562.88 09-24 41.0 584.25 09-17 41.0 584.25 09-10 40.0 570.00 08-13 37.0 527.25 08-06 41.0 584.25 07-30 40.0 570.00 07-16 37.0 527.25 07-02 41.5 591.38 06-11 40.5 577.13 06-04 43.0 612.74 32. Claimant was earning $14.25 per hour during this period of time. 33. Claimant's gross weekly earnings at the time of the work injury were $567.26 per week. JONES V. R. M. BOGGS COMPANY, INC. Page 7 34. Claimant's rate of weekly compensation is $325.30. CONCLUSIONS OF LAW Claimant has established by a preponderance of the evidence that the injury of November 13, 1980 is a cause of permanent disability. Claimant has established by a preponderance of the evidence entitlement to permanent total disability benefits from June 28, 1983 at the rate of three hundred twenty-five and 30/100 dollars ($325.30) per week. Claimant is entitled to mileage expenses. WHEREFORE, the decision of the deputy is affirmed in part and modified in part. ORDER THEREFORE, it is ordered: That defendants shall pay to claimant permanent partial disability benefits during the period of his disability at the rate of three hundred twenty-five and 30/100 dollars ($325.30) per week from June 28, 1983. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for all weekly benefits paid after the date of June 28, 1983 and benefits previously paid for permanent partial disability. That defendants shall pay mileage expenses of one hundred eight dollars ($108). That defendants shall pay interest on all benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall pay the costs of this action including the costs of the transcription of the review-reopening hearing pursuant to Division of Industrial Services Rule 343-4.33. Specifically, the following costs are taxed against defendants. Reporter and transcript for the deposition of R.M. Boggs $ 55.00 Paul Nosal, M.D., report 150.00 Expert witness fee for Marion Jacobs 150.00 That defendants shall file activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. That the matter shall be set back into assignment for a prehearing and hearing on claimant's application for penalty benefits under Iowa Code section 86.13. JONES V. R. M. BOGGS COMPANY, INC. Page 8 Signed and filed this 29th day of June, 1988. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. John Broz Attorney at Law 630 Higley Bldg. Cedar Rapids, Iowa 52401 Mr. Roger L. Ferris Attorney at Law 1900 Hub Tower 699 Walnut Des Moines, Iowa 50309 Mr. Richard C. Garberson Attorney at Law 500 MNB Building P.O. Box 2107 Cedar Rapids, Iowa 52406 1804-2907-3001 Filed June 29, 1988 DAVID E. LINQUIST BEFORE THE IOWA INDUSTRIAL COMMISSIONER LEWIS E. JONES, Claimant, VS. File No. 655193 R. M. BOGGS COMPANY, INC., A P P E A L Employer, D E C I S I 0 N and NORTHWESTERN NATIONAL INSURANCE COMPANY, Insurance Carrier, Defendants. 1804 Claimant awarded permanent total disability for an injury to his left ear which caused severe vertigo. Following a surgical procedure which destroyed parts of the left inner ear the spontaneous episodes of vertigo ended but claimant had permanent residual disequilibrium. Claimant is unable to walk or stand without grasping a firm object and becomes disoriented upon movement of objects around him and after being startled with sudden noises, claimant is unable to return to prior work or any other work for which he is best suited. Claimant was determined to be permanently and totally disabled and it was unnecessary to consider whether claimant was an odd-lot employee. 2907 Either a practitioner's report or testimony of the practitioner but not both can be taxed as costs. In this case the $150 for the expert witness fees were the only costs relating to the practitioner that were taxed as costs. BEFORE THE IOWA INDUSTRIAL COMMISSIONER LEWIS E. JONES, Claimant, File No. 655193 VS. 0 R D E R R. M. BOGGS COMPANY, INC., N U N C Employer, P R 0 and T U N C NORTHWESTERN NATIONAL INSURANCE COMPANY, Insurance Carrier, Defendants. The appeal decision filed June 29, 1988 contains certain errors that claimant has requested be corrected in his application for rehearing filed July 14, 1988. The errors are corrected by me and of this order and the application for rehearing is accordingly herein denied. Findings of Fact numbers 10 and 11 are corrected to read: 10. As a result of the recurrent fistula in December 1983, claimant underwent a surgical procedure termed a destructive labyrinthectomy which permanently destroyed parts of the left inner ear and resulted in a total hearing loss in that ear. 11. The December 1983 surgery ended the spontaneous episodes of vertigo but claimant still has permanent residual dysequilibrium as a result of the 1980 work injury. The first paragraph of the order is corrected to read: That defendants shall pay to claimant permanent total disability benefits during the period of his disability at the rate of three hundred twenty-five and 30/100 dollars ($325.30) per week from June 28, 1983. Signed and filed this 20th day of July, 1988. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. John Broz Attorney at Law 630 Higley Bldg. Cedar Rapids, Iowa 52401 Mr. Roger L. Ferris Attorney at Law 1900 Hub Tower 699 Walnut Des Moines, Iowa 50309 Mr. Richard C. Garberson Attorney at Law 500 MNB Building P.O. Box 2107 Cedar Rapids, Iowa 52406 Page 1 before the iowa industrial commissioner ____________________________________________________________ : GLEN GRIMM, : : File No. 655540 Claimant, : : R E V I E W - vs. : : R E O P E N I N G WEYERHAEUSER COMPANY, : : D E C I S I O N Employer, : Self-Insured, : Defendant. : ____________________________________________________________ statement of the case This is a proceeding in review-reopening from a memorandum of agreement brought by Glen Grimm against Weyerhaeuser Company, his former employer, based upon an injury that occurred on October 21, 1980. Claimant seeks compensation for permanent total disability. In the event he is awarded permanent partial disability, he seeks healing period compensation running until December 15, 1983 with permanent partial disability compensation to follow the healing period. The primary issues to be determined are claimant's entitlement to compensation for healing period, permanent partial or permanent total disability. The employer contends that it has overpaid healing period and seeks credit for the overpayment as well as credit for the excess of $5.22 per week which was erroneously paid when benefits were paid to claimant. The case was heard and fully submitted at Cedar Rapids, Iowa on April 5, 1990. The record in the proceeding consists of jointly offered exhibits 1 through 40, claimant's exhibits 41, 42 and 43, and testimony from Glen R. Grimm, Bettyjoy Ranard and Carma Mitchell. findings of fact Having considered all the evidence received, together with the appearance and demeanor of the witnesses, the following findings of fact are made. Glen R. Grimm is not a credible witness. His description of his symptoms, complaints, abilities and limitations is not reliable. Bettyjoy Ranard holds a great deal of animosity towards Glen R. Grimm. Her testimony is likewise unreliable. There are some matters in which they seem to agree and, where they are in agreement, that portion of their testimony is found to be accurate. Photographs 1 through 6 which show claimant carrying a wooden cupboard type of furniture were taken after their divorce in 1985. Claimant did travel to Florida in 1984. Claimant did, subsequent to his third surgery, travel about with his Page 2 brother who is an over-the-road truck driver. Claimant has a chauffeur's license, yet in a statement dated October 8, 1985, he represented that he had never driven a truck in his life (exhibit 34). Claimant's denial of having even gone to Florida subsequent to 1980 seriously damages his credibility (exhibit 41, pages 45-47). His testimony of inability to drive for more than a few minutes in a vehicle is irreconcilable with the fact of making the trip in 1984 and making a subsequent trip to Georgia and part of Florida in 1990, shortly prior to the date of hearing. Claimant's travel with his brother over the road in a semi is likewise irreconcilable with his testimony regarding his lack of ability to drive in a vehicle. Claimant demonstrated an ability to sit, to move about, to twist to remove his wallet from his rear pants pocket and to bend over to open the gate in a railing which separates different parts of the courtroom, all without any indication of physical restriction, limitation or discomfort. Bettyjoy's animosity is clearly evidenced by her conduct in reporting his alleged truck driving activities to Social Security, reporting his divorce settlement to the child support recovery unit, photographing his actions in moving the cupboard following their divorce, and providing evidence voluntarily in this case. While these things do not necessarily make her testimony untruthful, they do indicate a very high degree of animosity which detracts somewhat from the credibility of the evidence. While claimant cannot be relied upon when describing his symptoms, complaints and limitations, that lack of trustworthiness does not mean that he cannot be disabled or have a bona fide physical affliction. Many of the facts as set out in claimant's brief are well supported by the evidence and are included in the findings made herein. The claimant, Glen Grimm, is now 53 years old. He was 44 years of age on October 21, 1980, when he injured his back when employed as a forklift driver for the Weyerhaeuser Company. He made $7.35 per hour when he last worked in 1980 (exhibit 31, page 222). After his back injury, William John Robb, M.D., of Cedar Rapids, Iowa, performed back surgeries on him in 1981, 1982 and again in 1983. His healing period lasted more than three years. He has been through three operations, physical therapy and the Pain Clinic at Mercy Hospital in Des Moines, Iowa. His employer refused to allow him to return to work. He has been receiving Social Security disability benefits for about six years. Glen Grimm grew up on a farm in the What Cheer area of Iowa. He claims that he graduated from high school, but only completed the tenth grade [as established by his mother (exhibit 42, page 20)]. Claimant did farm work for a number of years and then went to Cedar Rapids, Iowa and worked at Dearborn Brass for 11 years as a forklift driver. That plant closed and he was able to secure employment at the Weyerhaeuser Company. It was while he was working as a forklift driver for the Page 3 Weyerhaeuser Company on October 21, 1980 that he suffered the back injury that is the subject of this claim. He had some prior problems with his back, both lower back, mid-back and the neck area, in the late 1960's and again in 1972 and 1975. However, after each of those spells he was able to return to work. When he was hired by the Weyerhaeuser Company in 1979, he was given a physical examination and was found to have no restrictions (physical examination record dated October 9, 1979). After claimant suffered his injury on October 21, 1980 as a result of lifting and twisting with 25-pound boxes, he came under the care of Dr. Robb. Dr. Robb first tried conservative treatment. Claimant was hospitalized at bed-rest and was given traction and injections (exhibit 29, page 105). A lumbar myelogram was performed on January 15, 1981 (exhibit 29, page 41). A CT scan was also performed (exhibit 29, page 96). On April 13, 1981, Dr. Robb performed the first surgery on claimant's lower back (exhibit 29, pages 98, 100-101, 162-163 and 262-264; exhibit 24, page 4). Dr. Robb performed a laminectomy for instability of the posterior arch at the back of the vertebra at L-5. He removed the loose portion of the vertebra and inserted a bone graft, which came from the back of claimant's pelvis, from L4 to S1, in order to provide stability for the spine (exhibit 24, pages 4-5). Claimant did not improve after his first surgery. Eventually, a tomogram was done on January 6, 1982 and a repeat CT scan was performed on February 4, 1982. As it turned out, there had not been a solid fusion of the bone in his lower spine and that created instability and pain. A decision was made to reoperate (exhibit 29, page 181; exhibit 24, pages 5-6). Claimant's second back surgery was performed on February 15, 1982 (exhibit 29, pages 198-199 and 259-261; exhibit 24, page 5). In the second back surgery, Dr. Robb exposed the previous operative site, explored the graft and found that it was not solid (exhibit 24, page 5). This occurs 20 percent of the time when a two-level fusion is attempted (exhibit 24, pages 6-7). He then obtained more bone from the donor site as before for the new graft (exhibit 24, pages 5-7). Dr. Robb also used an orthofuse during the second surgery to accelerate the union of the grafts (exhibit 31, page 127; exhibit 24, pages 6 and 8). After his second back surgery, claimant continued to have difficulty. In August of 1982, x-rays were done which showed that the graft was healing, but that it was not yet solid (exhibit 29, page 258). Another CT scan performed in November of 1982 showed postoperative changes, a bulging L5-S1 disc, an intact bony fusion with some non-union of segments of the two grafts to each other and scar tissue (exhibit 29, page 254). Dr. Robb thought he might need to do a third fusion (exhibit 29, pages 259 and 313). Page 4 Claimant's third back operation was performed on January 24, 1983 (exhibit 29, pages 313 and 318). In his deposition, Dr. Robb testified that the surgery simply involved removal of the orthofuse. In fact, Dr. Robb did more. He also removed some additional bone in the spine (exhibit 24, page 9). During that third surgery, Dr. Robb observed that there was quite a bit of scar tissue present over the bone on top of the fusion. He explained that the amount of scar tissue depends upon the amount of muscle damaged or removed and the number of surgical procedures that are done (exhibit 24, pages 9-10). A person who has had three procedures is more likely to have more scar tissue than one who has had one or two (exhibit 24, pages 10-11). In a letter to the lawyer for the company dated April 5, 1983, Dr. Robb wrote the following: "There was a great deal of scar tissue, a substantial portion of which had replaced normal musculature. This in turn would explain some of the lack of mobility of his spine and also the soreness in attempted mobility." (Exhibit 31, page 166) Dr. Robb was repeatedly adamant in his opinion that claimant demonstrated no impairment prior to his October 21, 1980 injury and that the three surgeries were caused by the injury on that date, which was an aggravation of his preexisting non-symptomatic spondylolysis (exhibit 29, page 42; exhibit 31, pages 79, 81, 87, 137, 157 and 166; exhibit 24, pages 13 and 24). Between surgeries and continuing after his third surgery, claimant had physical therapy because he continued to experience pain and lack of mobility (exhibit 31, pages 101-106). In his letter of December 16, 1983, Dr. Robb reported that he had seen claimant the previous day and he felt he had reached his maximum improvement (exhibit 31, pages 169-198). The doctor noted that claimant would be restricted to work that did not require him to stand or sit for more than an hour and a half. Dr. Robb restricted claimant from doing any work which required stooping, bending or lifting of more than 20 pounds. The doctor stated claimant would not be able to return to his previous occupation, suggested he seek reeducation and rated him as having a 35 percent impairment of his back. The adjusting company for the employer had notified Dr. Robb that "[m]ost of the jobs at Weyerhaeuser entale [sic] a certain amount of bending and stooping with lifting in the area of 50 pounds and up." (Exhibit 31, page 115) Weyerhaeuser never offered claimant another job. It was then recommended that claimant attend a four-week program at the Pain Clinic at Mercy Hospital in Des Moines. The Pain Clinic schedule included four weeks of water exercises, stretching exercise, bike and treadmill work, physical therapy and classes in nutrition, relaxation techniques and stress management (exhibit 29, page 333). Claimant attended the Pain Clinic from March 19 until April 6, 1984 (exhibit 29, page 345). James L. Blessman, M.D., Page 5 director of the Pain Clinic, noted that claimant had multiple symptoms of depression, specifically sleep and sexual dysfunction (exhibit 29, page 392). He thought the sexual dysfunction was most likely secondary to depression and his chronic pain (exhibit 29, page 399). While at the Pain Clinic, Dr. Blessman asked for a vocational consultation by Pat Weigel. Weigel reported that claimant seemed to have made an attitudinal turnaround during his time at the Pain Clinic and had become enthused and optimistic (exhibit 29, page 374). She reported that claimant did want to return to work, but in her opinion, he was in need of vocational and job seeking skills training (exhibit 29, page 374). In his discharge summary from the Pain Clinic, Dr. Blessman noted that he had prescribed Elavil for claimant's depression and stated, "At his advanced age of 47 and multiple surgeries on his back, it is going to be very difficult to return him to work." (Exhibit 29, pages 392 and 393). Dr. Blessman completed a functional capacities form on June 4, 1984 and gave his opinion that claimant was unable to work at that time (exhibit 29, pages 400 and 401). At about that time, claimant applied for and was awarded Social Security disability benefits (exhibit 34). He has continued to receive Social Security disability benefits since that time. Claimant has not worked since 1980. He testified that he has constant pain and that he limits his activities these days to little more than watching television. Dr. Robb subsequently reduced his impairment rating from 35 percent to 5 percent. He justified the reduction by stating that he had relied heavily on claimant's complaints and statements when making the initial rating (exhibit 32; exhibit 24, page 12). On June 31, 1989, Dr. Robb assigned a 10 percent permanent impairment rating (exhibit 39). When deposed prior to hearing, Dr. Robb stated that claimant could lift 75-100 pounds a few times each hour and could lift 50 pounds repetitively. He felt that claimant had an excellent result from his surgical procedure (exhibit 24, pages 12, 18 and 19). James W. Turner, M.D., examined claimant on February 3, 1988. He rated claimant as having a 20 percent permanent impairment and indicated that he would have significant limitations in bending, lifting, prolonged standing or sitting (exhibit 31, pages 205 and 206). Warren Verdeck, M.D., prepared an estimated functional capacity assessment of the claimant. It shows very substantial limitations (exhibit 31, pages 211-213). Thomas B. Summers, M.D., diagnosed claimant as having failed lumbar laminectomy syndrome. He assigned a 15-20 percent permanent impairment rating (exhibit 31, pages 242-246). Anne Voigts, M.D., indicated in 1983 that claimant would have a problem with moderate to vigorous physical activities and increased discomfort with even mild physical activity (exhibit 31, pages 249-251). Page 6 Claimant was evaluated by clinical psychologist Van C. Owens. Owens found claimant to have a passive dependent underlying personality with hypochondriacal tendencies. He stated that claimant was a person who did not deal well with stress, would try to avoid the stress of working, is not motivated to return to work and actively misrepresented in order to avoid returning to work (exhibit 25, pages 27-33, 50-53, 59 and 60; exhibit 31, pages 220-226). Owens reported that there was only a slight chance of returning claimant to work. He evaluated claimant as testing in the low average range for intellectual functioning (exhibit 25, pages 20 and 47-49). The fact of claimant's injury and fusion surgery is well documented in the evidence and is not affected by his lack of credibility. It is only his description of his symptoms that is compromised. In view of claimant's lack of credibility, the result from his surgeries is deemed to be an average or normal result, rather than the extremely unsuccessful result which would be indicated by claimant's testimony regarding his condition. It is found that claimant's actual physical capacities are such that he is probably capable of lifting 50 pounds a few times each hour or of lifting lesser weights frequently. The range of motion of his back is restricted. He likely experiences discomfort which increases in proportion to increased physical activities. He quite possibly has a chronic low level of discomfort regardless of his activity level. Claimant is also not well suited for intellectual pursuits. His employment opportunities are limited to light to medium work which is semi-skilled or unskilled. Claimant has not made any efforts to seek employment. Claimant's ability to carry the cupboard, as depicted in exhibits 1 through 6, does not strongly indicate the ability to be gainfully employed. The cupboard could weigh as little as 50 pounds or as much as 100 pounds. Claimant's share of the weight would accordingly be as little as 25 pounds or as much as 50 pounds. The record shows a one-time event, not an ongoing course of conduct. While the activity shows claimant's capabilities to exceed what he has personally described, they do not necessarily establish the ability to be gainfully employed. It is found that, when considering all the pertinent factors of claimant's age, education, work experience, actual physical condition and general qualifications for employment, he experienced a 50 percent reduction in his earning capacity as a result of the October 21, 1980 injury. While there is evidence in the record to indicate that claimant might have recovered sooner, the indication from Dr. Robb of December 16, 1983 is the earliest medical evidence showing that further recuperation was not anticipated. Page 7 conclusions of law There is no requirement to show a change of condition when reopening from a memorandum of agreement. Caterpillar Tractor Co. v. Mejorado, 410 N.W.2d 675 (Iowa 1987). Since claimant's degree of disability has never been established by a prior award or an agreement for settlement, there is no change of condition requirement to be met in this case. The injured employee is entitled to recover healing period compensation until the earlier of his return to work, recuperation to the extent that he is physically capable of resuming the type of work in which he was engaged at the time of injury, or when it is medically indicated that further significant improvement from the injury is not anticipated. [Iowa Code section 85.34(1)] The evidence from Dr. Robb indicates that December 15, 1983 is the date when it was medically indicated that further improvement was not anticipated. December 15, 1983 is therefore the end of the healing period. Thomas v. William Knudson & Son, Inc., 394 N.W.2d 124, 126 (Iowa App. 1984). The correct legal standard is that the healing period ends at the time the physician determines that further improvement is not anticipated. It is not determined through hindsight by looking back to the time at which improvement ceased. This entitles him to receive 155 and 6/7 weeks of healing period compensation. 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.2d 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term `disability' to mean `industrial disability' or loss of earning capacity and not a mere `functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience 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). Industrial disability or loss of earning capacity is a concept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment of physical capacity creates an inference of lessened earning capacity. The basic element to be determined, however, is the reduction in value of the general earning capacity of the person, rather than the loss of wages or earnings in a specific occupation. Post-injury earnings create a presumption of earning capacity. The earnings are not synonymous with earning capacity and the presumption may be rebutted by evidence showing the earnings to be an unreliable indicator. Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 Page 8 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 34th Biennial Report, 218 (1979); 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. The most remarkable of the material factors in this case are that claimant has been determined to have an average or typical recovery and result from his surgeries, that he lacks motivation to resume employment and is not well suited to intellectual pursuits. He is not a high school graduate and his entire work history consists primarily of unskilled or semi-skilled labor. When all the material factors of industrial disability are considered, it is determined that Glen Grimm has a 50 percent permanent partial disability which was proximately caused by the October 21, 1980 injury. This entitles him to recover 250 weeks of compensation for permanent partial disability payable commencing December 16, 1983. The employer is entitled to credit for the $5.22 per week of weekly compensation that was paid in excess of the correct rate. For computation purposes, claimant has been paid 269 and 1/7 weeks at the incorrect rate of $186.54 per week. This totals $50,205.94. The amount of payments reported on the form 2A filed with this agency is slightly less, namely $50,179.26. It is that amount which is accepted as being correct. When divided by the correct rate of compensation, it amounts to 276.744 weeks of compensation. Claimant's entitlement under this decision is 405.857 weeks. The difference which is therefore due to claimant is 129.113 weeks. order IT IS THEREFORE ORDERED that Weyerhaeuser Company pay Glen Grimm one hundred fifty-five and six-sevenths (155 6/7) weeks of compensation for healing period at the rate of one hundred eighty-one and 32/100 dollars ($181.32) per week payable commencing October 22, 1980 and running through December 15, 1983, except for the dates of from November 1, 1980 through November 13, 1980 and November 15, 1980 through December 31, 1980. IT IS FURTHER ORDERED that Weyerhaeuser Company pay Glen Grimm two hundred fifty (250) weeks of compensation for permanent partial disability at the rate of one hundred eighty-one and 32/100 dollars ($181.32) per week payable commencing December 16, 1983. IT IS FURTHER ORDERED that the employer receive credit for the amounts of weekly compensation previously paid which is equivalent to two hundred seventy-six point seven four four (276.744) weeks. The remaining unpaid balance of the award made in this case is accrued, past due and owing and shall be paid to claimant in a lump sum together with interest computed at the rate of ten percent (10%) per annum from the date each payment came due until the date of actual payment pursuant to Iowa Code section 85.30. Page 9 IT IS FURTHER ORDERED that the employer pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. IT IS FURTHER ORDERED that the employer file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this ______ day of ____________, 1990. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Phillip Vonderhaar Attorney at Law 840 Fifth Avenue Des Moines, Iowa 50309 Mr. Richard C. Garberson Attorney at Law 500 MNB Building P.O. Box 2107 Cedar Rapids, Iowa 52406-2107 1402.40, 1802, 1803 Filed August 27, 1990 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : GLEN GRIMM, : : File No. 655540 Claimant, : : R E V I E W - vs. : : R E O P E N I N G WEYERHAEUSER COMPANY, : : D E C I S I O N Employer, : Self-Insured, : Defendant. : ____________________________________________________________ 1402.40, 1803 Claimant, whose credibility was effectively destroyed, was evaluated for disability as though he had a typical recovery from his injury and surgery. Claimant awarded 50 percent permanent partial disability for two-level fusion back surgery. 1802 Healing period ended at the time the physician stated that further recovery was not anticipated, not at the time when hindsight showed recovery to have ceased. BEFORE THE IOWA INDUSTRIAL COMMISSIONER CHARLES C. FULLERTON, Claimant, File No. 655819 R E V I E W - VS. R E 0 P E N I N G CATERPILLAR TRACTOR COMPANY, D E C I S I 0 N Employer, Self-Insured, Defendant. INTRODUCTION This is a proceeding in review-reopening filed by Caterpillar Tractor company, employer, against Charles C. Fullerton, claimant, seeking a determination of whether claimant established a change of condition in accordance with a district court ruling dated December 19, 1984. The record consists of defendant's exhibits 1 and 2; official notice of the appeal decision of Robert C. Landess, industrial commissioner, dated March 21, 1984; and, the ruling of the district court dated December 19, 1984. ISSUE The issue in this case is whether claimant needs to or has shown a change of condition to support the appeal decision of December 19, 1984. EVIDENCE PRESENTED The evidence in exhibits 1 and 2 is the same as that reviewed in the appeal decision of March 21, 1984. That decision is incorporated herein and relied upon for review of this evidence. A review of the appeal decision discloses that the commissioner found claimant to be thirty-seven and one-half percent industrially disabled. He further found that claimant had been unable to continue the duties of his previous job and that he had been laid off at work. The district court ruling deals primarily with the construction of relevant statutes and analysis of case law thereunder. The district court affirmed the decision of the industrial commissioner. APPLICABLE LAW AND ANALYSIS The issue in this case is perhaps not understood by this deputy. It would appear, however, that defendant seeks a redetermination of the legal issue of whether a change of condition is necessary under the facts of this case; and, if so, FULLERTON V. CATERPILLAR TRACTOR COMPANY Page 2 whether the facts support such a change. It is not clear just how the district court resolved these issues. It did, however, affirm the industrial commissioner and it did so without any remand for a specific finding on the issue of a change of condition. It is thus fair to assume that the court was satisfied with the agency decision as written. The issues, whatever they may be, are res judicata. Defendant has not presented evidence to show a change of condition since March 21, 1984;and accordingly, no diminishment of the award would be appropriate. FINDING OF FACT 1. The claimant has not experienced a substantial change of condition since March 21, 1984. CONCLUSIONS OF LAW Defendant has failed to prove claimant has had a change of condition since March 21, 1984. All other issues raised by defendant are res judicata. ORDER IT IS THEREFORE ORDERED that this matter be dismissed with costs taxed to defendant. Signed and filed this 30th day of January, 1987. STEVEN E. ORT DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Roger P. Owens Mr. Mark T. Hedberg Attorneys at Law 840 Fifth Avenue Des Moines, Iowa 50309 Mr. Larry L. Shepler Attorney at Law 111 E. Third Street 600 Union Arcade Bldg. Davenport, Iowa 52801 No Headnote number Filed: January 30, 1987 STEVEN E. ORT BEFORE THE IOWA INDUSTRIAL COMMISSIONER CHARLES C. FULLERTON, Claimant, File No. 655819 VS. R E V I E W - CATERPILLAR TRACTOR COMPANY, R E 0 P E N I N G D E C I S I 0 N Employer, Self-Insured, Defendant. There is no headnote which describes this proceeding. In essence, defendants sought to relitigate issues that had been affirmed on appeal to the district court. The invitation to do so was declined.