BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ CLIFFORD L. VANNATTA, Claimant, File No. 700050 VS. R E V I E W YELLOW FREIGHT SYSTEM, INC., R E 0 P E N I N G Employer, D E C I S I 0 N Self-Insured, Defendant. _________________________________________________________________ INTRODUCTION This is a proceeding in review-reopening from a memorandum of agreement which was filed June 1, 1982 brought by Clifford L. Vannatta, claimant, against Yellow Freight System, Inc., employer, and self-insured defendant, for benefits as the result of an injury that occurred on March 30, 1982. A hearing was held at Sioux City, Iowa, on December 17, 1986, and the case was fully submitted at the close of the hearing. The record consists of claimant's exhibits 1 through 17; defendant's exhibits A through M; the testimony of Clifford L. Vannatta (claimant), Marian Vannatta (claimant's wife), and Duane Behrens (terminal manager). Both attorneys submitted outstanding briefs. STIPULATIONS The parties stipulated to the following matters. 1. That an employer-employee relationship existed between employer at the time of the injury. 2. That claimant sustained an injury on March 30, 1982 that arose out of and in the course of his employment with the employer 3. That the injury was the cause of temporary disability claimant was entitled to and was paid temporary disability from March 31, 1982 through July 4, 1982, and again from July 14, 1982 through March 14, 1983. 4. That the type of permanent disability, if the injury is found to be a cause of permanent disability, is industrial disability to the body as a whole. 5. That the commencement date of permanent disability benefits, in the event such benefits are awarded, is March 15, 1983. 6. That all requested medical benefits have been or will be paid by defendant. 7. That defendant claims no credit for any nonoccupational group plan payments. 8. That defendant is entitled to a credit for 48 4/7 weeks of compensation benefits paid at the rate of $196.77 per week prior to the hearing for temporary disability benefits. ISSUES The issues presented by the parties for determination at the time of the hearing are as follows: 1. Whether the injury is the cause of any permanent disability. 2. Whether claimant is entitled to any permanent disability benefits. 3. Whether claimant is an odd-lot employee and entitled to the application of the so-called odd-lot doctrine. 4. What is the proper rate of weekly compensation for the period beginning on March 30, 1982. 5. Whether claimant is entitled to a different rate of compensation after he quit working on November 15, 1985 on the theory of a cumulative injury. SUMMARY OF THE EVIDENCE All of the evidence was examined and considered. The following is a summary of the pertinent evidence. Claimant is 62 1/2 years old, married, and has four adult children. He is six foot four inches tall and weighs approximately 240 pounds. He does not smoke or drink. He is a high school graduate. Most of his past employments are as a short haul truck driver, which involved loading and unloading trucks and handling freight on the dock (Ex. 11). Claimant also has the ability to repair trucks as a mechanic and to repair refrigeration units. In 1977, claimant attended a two week course to learn to repair refrigeration units. Most of his adult life claimant has been a licensed amateur radio operator. He likes and is good at anything electrical. He has constructed some primitive homemade computers as a hobby. Claimant started to work for employer part time in 1978 or 1979 and went on the seniority list in the fall of 1980. In the spring of 1982, just prior to his injury, claimant was working three days a week for employer. This is as much time as he could work based on his seniority at that time. On March 30, 1982, at approximately 5:00 p.m., claimant was involved in a one motor vehicle accident near Sioux Falls, South Dakota. The tractor and trailer that he was driving were almost empty. Claimant was driving south on Interstate 29 returning home to Sioux City, Iowa. As claimant crossed a bridge overpass that crossed over Interstate 229, his vehicle went through the bridge guardrail on the west side of the road, fell several feet, and landed upright on the roadway below. The distance of the fall appears in different exhibits variously between 25 feet and 57 feet. In any event, it was a long way to be airborne in a tractor and trailer before landing,on the roadway below. There VANNATTA V. YELLOW FREIGHT SYSTEM, INC. Page 3 was a dispute as to whether claimant was blown off the bridge or was not blown off the bridge. In any event, it is a fact, based upon the newspaper photograph and a snapshot, claimant's vehicle did pass through the guardrail and landed upright on the roadway below (Ex. 1 & 1A). Other snapshots show that the tractor and trailer were damaged extensively and that both units were a total loss (Ex. 2-6). Other snapshots show that claimant received a severe vertical laceration on his right forehead and ecchymosis and swelling of both eyes (Ex. 7-10). Claimant crawled out through the windshield and was ambulatory at the scene of the accident. A passing motorist took claimant to Sioux Valley Hospital in Sioux Falls, South Dakota. He was seen there by Merit G. Warren, M.D., and Dr. Delperdang (full name unknown), the emergency room physicians. Dr. Warren reported that claimant received a six to seven centimeter laceration to the right forehead, hematoma of the nose, abrasion of the right knee, and contusion of the right anterior ribs. X-rays of claimant's spine and chest were normal. Both eyes were markedly ecchymotic and the upper eyelids were beginning to swell shut with edema fluid. Otherwise, claimant's physical examination was normal. Dr. Warren estimated claimant could return to light work in about five days. Claimant was admitted overnight and released to his wife the following day (Ex.D, pp.1-4). Claimant then consulted his family physician of many years standing, H. E. Rudersdorf, M.D., a family practitioner in Sioux City, Iowa. Dr. Rudersdorf's records show twenty-three typed office note entries from April 1, 1982 through November 14, 1985 (Ex. C). Sutures were removed as an outpatient on April 5, 1982 (exhibit H, page 4). On April 19, 1982, Dr. Rudersdorf found the laceration well healed and that the clinically diagnosed fractured ribs on the right were resolving. On April 20, 1987 and April 21, 1987, claimant was hospitalized after an episode of headaches, nausea, and vomiting at home. R. Hiemstra, M.D., said claimant related to him that he had a flu-like headache, but he just could not get the patient to describe it as throbbing, sharp or dull. A CT scan ruled out a subdural hematoma. Dr. Hiemstra said claimant's symptoms disappeared rapidly after learning that there was no intercranial bleeding. Dr. Hiemstra stated that the headaches, nausea and vomiting were due to stress (Ex. H, p. 1-4). On May 17, 1982, Dr. Rudersdorf noted that claimant complained of recurring headaches and that they were either caused or associated with the previous trauma (Ex. C, p. 2). On June 3, 1982, he recorded that claimant was to increase his activities and to return to work in two weeks time (Ex. C, p. 2). On June 17, 1982, the doctor told claimant to continue to increase his activities to be able to return to work (Ex. C, p. 3). Then, on July 1, 1982, Dr. Rudersdorf released claimant to return to work on July 6, 1982 (Ex. C, p. 4). Claimant only worked for a few days, more specifically, July 5, 6, and 7, and then again on July 12 and 13. On July 16, 1982, VANNATTA V. YELLOW FREIGHT SYSTEM, INC. Page 4 claimant came to see Mike Jung, M.D., an associate of Dr. Rudersdorf. Dr. Jung reported as follows: Patient of Dr. Rudersdorf who comes in stating that he's had some dizzy weak spells at work and feels that it is unsafe to his health to continue working. He states that he feels that this is related to the injuries that he received in the accident back in late March. He wishes to get an excuse from work until this gets resolved. States that his vision comes and goes, the dizzy spells come and go, describes no true vertigo, no true syncopal or fainting episodes. No chest pain or shortness of breath. He does state that he sweats quite a bit. (Ex. C, p. 4) Dr. Jung's examination was essentially normal and disclosed no organic reason for claimant's symptoms. He diagnosed dizziness of unknown etiology. He instructed claimant that he was probably out of shape and needed to increase his muscle tone to tolerate working. He recommended claimant take a week from the job to build himself back up. He did not feel the dizziness would cause any permanent disability, that rather it was transient. He recommended claimant build up his work tolerance and return to work in one week (Ex. C, p. 4). Claimant then saw Dr. Rudersdorf again on July 23, 1982. The doctor stated that claimant is a very nervous, anxious type patient who never takes a positive attitude. His impression was that claimant had a great deal of anxiety. He recommended claimant take two to four more weeks to lift weights, bicycle, and, lift, and generally improve his work tolerance. Dr. Rudersdorf concluded as follows: Dizziness of unknown etiology 780.4. 2) Anxiety, acute. 3000. I do not feel there is a good organic explanation for these symptoms at all and I have known the patient over 30 years and his wife agrees that he has never looked on the bright side of things. Has been nervous, anxious, and tense. Feel that he needs mainly reassurance because he will worry about anything and everything. He is reassured that there wasn't any brain tumor or brain injury at this time as far as we know. Cat scans and all the other tests are all within normal limits. Is taking no medications at this time outside of the new Valium (Ex. C, p. 5). On August 6, 1982, Dr. Rudersdorf made the following notes: This is a man who was involved in a truck accident march 30, 1982. Continues to complain vehemently and out of proportion of pain in his right lower ribs anterior and laterally. Complains of headaches over his left eye, tenderness in the scar that goes obliquely across his forehead from left to the right VANNATTA V. YELLOW FREIGHT SYSTEM, INC. Page 5 eyebrow. Clearly out of proportion to his findings (Ex.C, p.6). On August 27, 1982, Dr. Rudersdorf began to consider a neurologic consultation (Ex.C, p.6), and did arrange for a complete neurological examination September 10, 1982 to determine whether these complaints were trauma syndrome or if he just has an inadequate personality. Dr. Rudersdorf said he explained to claimant that these are probably muskuloskeletal type headaches which are called tension headaches (Ex.C, p.7). Claimant saw William P. Isgreen, M.D., a neurologist, on September 15, 1982 who hospitalized claimant for various tests. Dr. Isgreen wrote to Dr. Rudersdorf on September 15, 1982 that the headache pattern was a bit unusual for post-traumatic syndrome (Ex.B, p.14). Dr. Isgreen wrote to the employer's claims examiner on September 18, 1982 that claimant's story was a little bit suspect for functional problems (Ex. B, p. 13). At the time claimant saw Dr. Isgreen he was complaining of sinus drainage. Therefore, Dr. Isgreen was exploring a possible diagnosis of hypoliquorrhea, secondary to a dural tear, leaking CSF (cerebral spinal fluid) out of the nose (Ex. B, p. 17). Claimant was hospitalized from September 27, 1982 to October 2, 1982 (Ex. H, pp. 5-8). Michael Jones, M.D., an otolaryngologist and head and neck surgeon, found that claimant had normal sinuses (Ex. H, pp. 6 & 7). Also, a radioactive ytterbium test conducted by Dr. Jones was normal and ruled a chronic CSF leak (Ex.H, p.5). Also, an EEG, hypertensive IVP, chest x-ray, skull x-rays, and a CAT scan of the brain were all normal. The ytterbium scan failed to demonstrate a dural tear with a CSF leak. The MMPI was also normal (exhibit H, page 8). Dr. Isgreen concluded on October 25, 1982 as follows: The only thing then that we can come up with is complaints of discomfort. One obviously can't reject the man's complaints out of hand, but on the other hand, there is no obvious structural change to account for the complaints. Since the complaints followed the accident, it's not altogether unfair to blame the injury for the headaches. However, in the face of no structural damage, the problem should resolve itself without any permanent impairment. Any impairment that he has now as a matter of fact would only be secondary to pain and that in a sense stretches the definition of impairment (Ex.B, p.11). Dr. Isgreen's office note for October 26, 1982 commented that all of the studies on claimant were totally unremarkable. He recommended the pain clinic in Omaha because a lot of claimant's problems stem from an inability to deal with frustration (Ex.B, p.9). On January 7, 1983, Dr. Rudersdorf strongly urged claimant to drop his opposition and to attend the pain clinic with a view VANNATTA V. YELLOW FREIGHT SYSTEM, INC. Page 6 toward getting back to work. He pointed out to claimant that he was actually better a few weeks after the accident and that he had not been able to find any organic cause for his headaches. Dr.ERudersdorf's continuing diagnosis was headache, post-traumatic celphalgia (Ex.C, p.8). Claimant was seen by F. Miles Skultety, M.D., at the University of Nebraska Pain Management Center, Omaha, beginning January 30, 1983 and was discharged on February 25, 1983. Dr. Skultety noted that claimant had difficulty giving a clear cut history of the development of his pain. When asked to describe the pain in his head he made a number of statements which were not pain descriptions (Ex. E, p. 1). It was pointed out to claimant that he was a "catastrophizer" and that this increased his tension level. It was also noted that he was probably receiving some benefit or secondary gain from this (Ex. E, p. 11). Claimant's condition improved immensely at the pain center. He exercised a great deal. He quit taking Tylenol. His attitude changed. He returned to work in mid-March 1983. At the time of his discharge from the Pain Management Center, Dr. Skultety concluded as follows: I also feel that the prognosis is fair to good. The possibility exists that he may have problems at some time in the future because of his tendency to catastrophize everything, thus increasing his stress level. On the other hand, considering the fact that he has probably been like this all of his life, even prior to his original injury and had no serious problem I think the chances are that he will continue to do well (Ex.E, p.12). Dr. Rudersdorf noted on March 14, 1983 that claimant had returned to work (Ex.C, p.10). On April,8, 1981, he commented that claimant was tolerating and handling work well with only slight headaches and some pain in his right side (Ex.C, p.11). On June 10, 1983, claimant continued to have numerous complaints such as (1) numb ache in his forehead; (2) when he talks he can hear his voice echo in his ears; and (3) right side pain. Dr. Rudersdorf attributed this to a low tolerance for pain and being an unhappy person (Ex.C, p.12). He finally discharged claimant on August 26, 1983 (Ex.C, p.13). About a year later, on October 19, 1984, claimant again saw Dr. Rudersdorf complaining of tiredness and headaches (Ex.C, p.14). Then, a year after that, on August 27, 1985, he saw Dr. Rudersdorf complaining of headaches and right side aches and stated he was thinking about a lawsuit. At this time, Dr. Rudersdorf sent claimant to the pain clinic in Iowa City (Ex.C, p.15). At Iowa City, Viney Kumar, M.D., a neurologist, administered a supraorbital nerve block injection (Ex.F, pp.1 & 2). Claimant testified that the shots relieved his headaches but caused him unbearable dizziness, nausea and emotional turmoil. Claimant testified and other evidence shows that claimant actually returned to work on March 14, 1983. He regularly worked approximately 40 or more hours per week driving trucks and loading and unloading trucks on the dock. He performed his job VANNATTA V. YELLOW FREIGHT SYSTEM, INC. Page 7 as a driver and freight handler for approximately two years and nine months until he voluntarily retired on November 15, 1985 with a termination date of November 30, 1985 (Ex.J, p. 69-72). Claimant testified that he quit because his head hurt, his right side hurt, and his back hurt. Each day it got worse. It was killing him to continue working. He testified that he had planned to work until age 65 in order to get a pension of $1,000 per month from the Teamsters. However, since he retired early, he only receives $765 per month. On November 13, 1985, just three days before he retired, claimant was found physically sound on an ICC physical examination for the DOT in order to maintain his license to drive a truck. However, the examining physician, Randy Asmin, M.D., referred claimant to his own personal physician for chronic pain syndrome (Ex.C, p.16; Ex.J., p.70). Dr. Rudersdorf commented on November 14, 1985 that claimant planned to retire on disability and also requested treatment at the Mayo Clinic (Ex.C, p.16). Dr. Rudersdorf wrote to claimant's counsel on December 13, 1985 that claimant's wife had cancer of the female genital system, had surgery, and was receiving chemotherapy. Her prognosis was very guarded. The doctor believed that the illness of claimant's wife aggravated his condition and that partly due to this was his reasoning for retiring at this time. Claimant's diagnosis continued to be post-traumatic celphalgia. Dr. Rudersdorf thought claimant could VANNATTA V. YELLOW FREIGHT SYSTEM, INC. Page 8 continue to work if he avoided continuous lifting over twenty-five pounds and continuous long-haul truck driving. The doctor thought claimant would benefit from behavioral modification therapy from a neurologist by the name of Dr. Nitz (full name unknown), but felt claimant probably would not cooperate with it (Ex. C, pp. 18 & 19). In his deposition on December 9, 1986, which was a few days prior to this hearing, Dr. Rudersdorf testified that he has been a family practitioner since 1943. He has cared for claimant and his family since 1960. Claimant did not have any complaints of headache pain or right side pain prior to the injury of March 30, 1982 (Ex. 17, pp. 1-5). Dr. Rudersdorf reaffirmed that his diagnosis was post-traumatic celphalgia due to the injury of March 30, 1982 because claimant did not have these symptoms or headaches prior to that time (Ex. 17, p. 17). Dr. Rudersdorf stated that he believes claimant's condition will be permanent and not temporary (Ex. 17, pp. 18 & 19) and that claimant cannot return to his former employment of driving, loading and unloading trucks. Furthermore, Dr. Rudersdorf now believes that claimant cannot do any kind of job (Ex. 17, p. 21). Even though there is no organic injury and the impairment is based entirely on subjective symptoms, Dr. Rudersdorf believed his opinion was correct because claimant is believable and honest. Simply because we cannot see or measure pain doesn't mean it isn't there (Ex. 17, pp. 18 & 21). The doctor conceded on cross-examination that he could not give an organic explanation of claimant's pain (Ex. 17, p. 25); that anxiety and tension aggravated his condition (Ex. 17, p. 32); his wife's cancer probably increased his anxiety (Ex. 17, p. 33); that all of Dr. Isgreen's objective tests were normal (Ex. 17, pp. 34-36); and that Dr. Asmin thought claimant could safely drive a truck even though he had chronic pain (Ex. 17, pp. 37 & 38). Dr. Isgreen, who had discontinued seeing claimant in October 1982, saw him again at the request of claimant's counsel on May 20, 1986. His office notes end as follows: DISCUSSION: The man has been decimated by his headache. I don't have really a good explanation for why the headaches other than my initial notion of dural tear and hypoliquorrhea with persistence [sic] of the headache problem, perhaps due to receptor sensitivity set. IMPRESSION: Post-traumatic headache syndrome. (Ex. 15, pp. 6 & 7; Ex. B, pp. 6 & 7.) In his report to claimant's counsel, Dr. Isgreen states that he, too, thought claimant's headaches were believable even though they were subjective and could not be quantitated or qualitated. He concluded his letter as follows: I think the man has a moderate permanent impairment on the basis of his injury, and using the second edition VANNATTA V. YELLOW FREIGHT SYSTEM, INC. Page 9 of the AMA Guidebook, because of the intrusion into his activities of daily living on a moderate basis, and the independent description of the problem by his wife, I don't think a permanent impairment number of 25 per cent is an unjust figure. Certainly the man has reached maximum medical recovery. There are no further neurodiagnostic studies that I would suggest. (Ex. 15, p. 2; Ex. B, p. 2.) Claimant was examined and evaluated by David J. Boarini, M.D., a neurosurgeon in Des Moines, on November 17, 1986. He gave a deposition two days prior to hearing on December 15, 1986. Dr. Boarini gave a final diagnosis of chronic intractable.headache which he stated could not be described as post-traumatic (Ex. L, Dep. Ex. 4). He testified that he had examined all of the medical evidence previously summarized in this decision (Ex. L, Dep. Ex. 2). Dr. Boarini reviewed and briefly explained the significance of claimant's prior tests and his own office examination, all of which were normal. He concluded as follows: Based on his history and his own reports, he's got chronic headache, but he's got an entirely normal neurological exam, and I could find no underlying abnormality to explain those headaches. (Ex. L, p. 12.) Dr. Boarini said he did not believe claimant has a dural tear or a cerebral spinal fluid leak (Ex.L, p.12). The following colloquy then transpired: Q. Do you have an opinion with reasonable medical certainty as to what's causing his headaches that he complains of? A. Well, these are chronic headaches with essentially an entirely normal finding and all normal tests, so I think they're a tension headache, a muscle headache related to stress, anxiety. Q. Did Mr. Vannatta tell you at the time of your examination that his wife was suffering from cancer? A. I don't recall that he mentioned that, no. Q. Would concern over that kind of a problem also produce tension headaches or stress headaches, or could it? A. Yes, it could. Q. Do you have an opinion, Doctor, with reasonable medical certainty, based on your examination and review of the records, as to whether or not Mr. Vannattals headaches should be described as post-traumatic? A. No, I don't believe they should be. Q. Why do you say that? VANNATTA V. YELLOW FREIGHT SYSTEM, INC. Page 10 A. Well, for two reasons. One is the type of headaches he has, but more importantly is their history in relationship to the accident. These headaches were not disabling, in the sense that he was able to return to work for quite a long time after the accident occurred, and then subsequently he feels they're incapacitating. In fact, the history of post-traumatic headaches is almost always that they shorten the--after the accident they are severe and then will get better over time, and these have been virtually the opposite of that. (Ex. L, pp. 12-14.) Dr. Boarini thought claimant could be gainfully employed and that he could drive a truck as he did before, be a mechanic or a radio operator. He said claimant had no work restrictions and he could not find any permanent impairment. He stated that the AMA Guides provide no impairment rating for chronic intractable headache (Ex. L, pp. 14-16). Dr. Boarini reiterated that post-traumatic headaches almost always are worse right after the trauma, and then over time, diminish and disappear completely in a matter of months (Ex. L, p. 17). He testified that he would not expect post-traumatic headaches to persist for four years and he would not expect them to worsen after claimant was able to work for a couple of years (Ex.L, p.18). Claimant testified that he did not have headaches or right rib pain before the injury. Now, his daily activities are to watch TV, do dishes, walk two and one-half miles a day, but usually after two and one-half hours he has to sit down due to headache, dizziness, and backache. He reads, works on his car a little, and works with his amateur radio a little bit. He tries to lie down and sleep. He states he could drive a semi now, but he could not do it all day long. He would like to work today if he could. He testified that he has not applied for employment or attempted to find employment since his retirement in November 1985. Claimant admitted that after he returned to work in March 1983, he worked five days a week whereas before the accident he only worked about three days a week. His Teamsters retirement is regular retirement, not disability retirement. He is not receiving social security benefits because he wants to wait until he is age 65 in order to draw a larger benefit. Claimant testified that the pay stubs in claimant's exhibit 16 are his pay stubs before he terminated his employment on November 15, 1985. The pay records in claimant's exhibit are his pay records before March 30, 1982 (Ex. 16A). Marian Vannatta testified that claimant never missed worked or complained of headache prior to his accident of March 30, 1982. He has a headache all the time now. He does not mow the yard because he cannot stand the noise and jerk of the mower. On road trips for the chemotherapy at Iowa City for her, she does most of the driving. She granted that claimant had other stresses in his life after the injury of March 30, 1982. Their son-in-law had made threats against their daughter and grandchildren and eventually committed suicide. Also, claimant's father died and both of her parents died after claimant's accident. Duane Behrens testified that he is terminal manager for VANNATTA V. YELLOW FREIGHT SYSTEM, INC. Page 11 employer. He was not there at the time of the accident on March 30, 1982. He stated that the hours shown on exhibit 16A are the employer's payroll records for this employee. He stated that these hours were not full-time hours because claimant did not have enough seniority to work full time at that time. After claimant came back to work in March 1983, he did have enough seniority and did bid and got a full-time job until he decided to terminate his employment. During the two years and nine months when claimant worked full time, from March 1983 to November 1985, claimant did everything that he was told to do and met all of his expectations. Claimant did complain of headache and the witness believed that he did have headaches, but claimant did get the job done. During that period, claimant drove trucks, loaded and unloaded on the dock, and operated a forklift. If claimant wished to return to work today, his seniority would allow him to work full time. Claimant's seniority makes him fourth in seniority for five full-time bid jobs. APPLICABLE LAW AND ANALYSIS The claimant has the burden of proving by a preponderance of the evidence that the injury of March 30, 1982 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Claimant did sustain the burden of proof by a preponderance of the evidence that the injury of March 30, 1982 was the cause of some permanent disability. Dr. Rudersdorf, the treating physician, testified that claimant suffered from post-traumatic celphalgia. The patient was complaining of headaches when he was hospitalized on April 20, 1982. Dr. Rudersdorf's office notes first mentioned headache pain on May 17, 1982 and he did say that he believed they were caused by or associated with the previous trauma at that time (Ex. C, p. 2). And, although his office notes (1) mention acute anxiety and that he has "known the patient over 30 years and his wife agrees that he has never looked on the bright side of things. He has been nervous, anxious and tense" (Ex. C, p. 5); (2) that claimant needs "to try to think positively which he hasn't been doing" (Ex. C, p. 6); and (3) that his subjective complaints are clearly out of VANNATTA V. YELLOW FREIGHT SYSTEM, INC. Page 12 proportion to his physical findings (Ex. C, p. 6); nevertheless, Dr. Rudersdorf recorded on August 27, 1982 that he believed the headaches and tension were post-trauma (Ex. C, p. 6). He also consistently recorded this same diagnosis of headache, post-traumatic celphalgia on October 18, 1982; January 7, 1983; January 17, 1983; February 28, 1983; March 4, 1983; April 8, 1983; June 10, 1983; August 26, 1983; October 19, 1984; August 27, 1985; and November 14, 1985 (Ex. C, p. 8-16) even though the headaches were combined with chronic endogenous anxiety and depression (Ex. C, pp. 14-15). Therefore, Dr. Rudersdorf's opinion in his deposition a few days prior to the hearing of post-traumatic celphalgia due to the injury of March 30, 1982 was entirely consistent with his recorded opinion over the preceding years ever since shortly after the injury of March 30, 1982. In September and October of 1982, Dr. Isgreen performed extensive tests and put a great deal of thought into claimant's complaints of pain, but he could find no organic cause for the headaches. Nevertheless, he did say that since the headaches follow the accident it is not unfair to blame the injury of March 30, 1982 for the headaches (Ex. B, p. 11). Again, in May of 1986, Dr. Isgreen still had no good explanation for the headaches, but his impression of post-traumatic headache syndrome is nevertheless consistent with earlier findings (Ex. 15, pp. 6 & 7; Ex. B, pp. 6-7). His assessment, then, of permanent partial impairment on the basis of the injury of March 30, 1982 which he made on May 20, 1986 is consistent with his earlier findings of causal connection (Ex. 15, p. 2; Ex. B, p. 2). VANNATTA V. YELLOW FREIGHT SYSTEM, INC. Page 13 Therefore, based on the testimony of the two treating physicians, Dr. Rudersdorf and Dr. Isgreen, who tested, studied and treated claimant's condition extensively, it is determined that the injury of March 30, 1982 did cause some permanent partial disability. This determination in no way discounts the testimony of Dr. Boarini, who examined the medical records and the claimant and concluded that claimant's symptoms did not follow a pattern of post-traumatic headache in his opinion. Dr. Boarini stated that claimant's headaches were tension headaches related to stress and anxiety. Dr. Boarini may be entirely correct. The evidence certainly establishes that claimant has a personality highly susceptible to stress and anxiety. In addition, since the injury of March 30, 1982, claimant has been subject to several very difficult stresses. His father died. His wife's parents have both died. His son-in-law made threats on his daughter and his grandchildren and eventually committed suicide. And, his wife has become ill with female genital cancer which has required surgery and repeated chemotherapy. However, the preponderance of the evidence in this case, the greater weight of the evidence, lies with Dr. Rudersdorf and Dr. Isgreen, who treated claimant extensively and were responsible for his recovery or failure to recover. .1 Deference, then, in this case is given to the two treating p . nysicians who found that the headaches were post-traumatic, which means they were caused by the trauma of the accident of March 30, 1982. See Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985). If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587,. 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term '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." The opinion of the supreme court in Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963) cited with approval a decision of the industrial commissioner for the following proposition: Disability * * * as defined by the Compensation Act means industrial disability, although functional disability is an element to be considered . . . In determining industrial disability, consideration may be given to the injured employee's age, education, qualifications, experience and his inability, because of the injury, to engage in employment for which he is fitted. * * * * Dr. Rudersdorf agreed that even without the accident claimant would have been one to stew and fret about his wife's condition (Ex. 17, p. 33). The pain center characterized claimant as a "catastrophizer" and that this personality trait will increase his tension level, and that he was probably VANNATTA V. YELLOW FREIGHT SYSTEM, INC. Page 14 receiving some benefit or secondary gain from it (Ex. E, p. 11). From the standpoint of his physical injuries, Dr. Warren thought claimant could return to light duty work approximately five days after the injury (Ex. D, pp. 1-4). Dr. Rudersdorf attempted to get claimant back to work a short time after the accident, but claimant resisted vehemently due to his many subjective symptoms. Claimant did return to work in July 1982, but left after only working five days and convinced Dr. Asmin and Dr. Rudersdorf that he could not work due to his subjective symptoms. After the pain clinic experience, claimant did work full time, five days a week, for two years and nine months from March 1983 to November 1985. This is more than he worked before the injury because he only worked three days a week at that time. Behrens said that claimant performed all the duties of his job as a driver and freight dock worker. Claimant voluntarily retired at the end of November 1985. He retired as a matter of his own voluntary, personal, individual decision and took a Teamsters pension in the amount of $765 per month. None of the doctors that he had seen previously, in particular his treating physicians Dr. Rudersdorf and Dr. Isgreen, ordered, recommended, or even suggested that he quit his job. No other medical practitioners recommended that claimant quit his job. Even though it is advanced that claimant quit on November 15, 1985 because he could no longer stand the pain, claimant never consulted a physician for his pain after his retirement. He last saw Dr. Rudersdorf on November 14, 1985, the day before he retired. Nor is there any evidence that he consulted any other health practitioner for this pain. Claimant's retirement seems to be entirely his own personal choice. Dr. Rudersdorf thought it was influenced by the the discovery of his wife's illness earlier that year. Claimant is age 62 and many people do retire at that age. In determining permanent partial disability consideration must be given to an employee's plans for retirement. Swan v. Industrial Engineering Equipment Co., IV Iowa Industrial Commissioner Report, 353 (1984) and his retirement benefits. McDonough v. Dubuque Packing Co., I-1 Iowa Industrial Commissioner Decisions 152 (1984). If claimant were permanently and totally disabled and not able to perform any job or gainful occupation as Dr. Rudersdorf testified in his deposition, then claimant would be clearly eligible for social security disability benefits. Yet, at the hearing claimant testified that he had not applied for social security benefits of any kind. His testimony was that he wanted to wait until age 65 in order to receive a larger amount of money. However, if claimant were, in fact, totally and permanently disabled, he is eligible for and could be drawing the maximum amount of social security as social security disability benefits. But, claimant has not applied for any social security benefits and did not indicate any intention of doing so. It should also be noted that Behrens testified claimant is fourth on the seniority list for five bid jobs. He stated that claimant could be working full time now if he chose to do so. Dr. Rudersdorf's opinion that claimant can not do any job is not reasonable inasmuch as claimant was fully performing a five day a week job until he chose to retire from it. There was no evidence that claimant's condition has worsened since his retirement. In VANNATTA V. YELLOW FREIGHT SYSTEM, INC. Page 15 fact, he has not sought any medical treatment since November 14, 1985, the day before he retired. It is also noted that Dr. Rudersdorf previously recommended that claimant see a neurologist by the name of Dr. Nitz for behavioral modification therapy (Ex. C, pp. 18 & 19). As far as permanent impairment ratings, Dr. Rudersdorf did not give a specific permanent impairment rating as such. He simply stated that claimant could no longer do his old truck driving job and that he did not think he could do any job at this time. Dr. Isgreen rather generally stated 'I don't think a permanent impairment number of 25 percent is an unjust figure" (Ex. 15, p. 2; Ex. B, p. 2). There is a common misconception that industrial disability is greater than functional impairment and that it is an add-on; i.e., something to be examined on top of functional impairment but such is not the case. Industrial disability can be the same as, less than, or greater than functional impairment. Lawyer & Higgs, Iowa Workers' Compensation --- Law and Practice, 13-5. In this case, claimant's industrial disability is found to be less than the rather general impairment rating advanced by Dr. Isgreen above. It is possible and proper to allow permanent partial disability for physical trauma which causes nervous injury, Newman v. John Deere, 372 N.W.2d 199 (Iowa 1985), Larson, Workers' Compensation Law, 42.22, page 7-601. Larson does not cite any Iowa cases and claimant's brief does not cite any Iowa cases. In this case, however, claimant's primary complaint and the object of his very comprehensive medical treatment and testing is headache pain. Dr. Rudersdorf, Dr. Isgreen, Dr. Jung, Dr. Hiemstra, Dr. Asmin, Dr. Skultety, and Dr. Boarini could not find any organic, physical, objective, medical cause for claimant's headache pain. Indeed, claimant's own description of the headache pain varied from doctor to doctor and from time to time. Dr. Skultety said that claimant could not describe a clear cut history of how this pain developed and he made a number of statements that were not pain descriptions at all (Ex. E, p. 1). It has been held by this agency that pain that is not substantiated by clinical findings is not a substitute for impairment, Waller v. Chamberlain Manufacturing, II Iowa Industrial Commissioner Report 419, 425 (1981). There is an abundance of evidence from Dr. Rudersdorf that claimant's long time personality has been one of tension and anxiety and that claimant has been basically a tense, nervous, and anxious person. Dr. Skultety and other members of his staff at the Pain Management Center characterized claimant as a catastrophizer. There is no evidence that the injury of March 30, 1982 was the cause of this personality or character trait which appears to be largely the cause of claimant's current suffering. There is a great deal of evidence that other factors such as aging, illness, and death in claimant's personal life may be a significant influence on his current condition. Also, Dr. Skultety predicted that claimant would have problems in the future because of his tendency to catastrophize everything which increased his stress level. He felt that claimant had probably been like this all of his life and even prior to the injury of VANNATTA V. YELLOW FREIGHT SYSTEM, INC. Page 16 March 30, 1982 (Ex. E, p. 12). As for claimant's ability to work, in spite of his chronic pain syndrome, Dr. Asmin found claimant physically sound to drive a tractor and trailer over the road and approved his ICC license on November 12, 1985, just three days before claimant retired (Ex. C, p. 16; Ex. J, p. 70). Claimant is not drawing a disability pension from the Teamsters. It is a regular retirement pension. Claimant has not applied for social security disability benefits. At the same it must be remembered that claimant was involved in a very serious motor vehicle accident. His tractor and trailer fell several feet airborne to the lower level and landed upright on its wheels. The tractor and trailer each were a total loss. Claimant suffered a seven centimeter laceration on his right forehead that took eighteen stitches to close and left a visible scar. Claimant's face received a traumatic blow that caused both of his eyes to be ecchymotic and swollen for several days. Claimant had a hematoma on his nose. He was clinically diagnosed as having fractured ribs. Claimant testified that he still suffers with headaches and right rib pain. Claimant testified that he consumes as many as sixteen aspirins or Tylenol a day in order to control his pain. There was no evidence that he does not actually experience this pain. Claimant's wife, Behrens, Dr. Rudersdorf, Dr. Isgreen, and Dr. Asmin all believed that he actually experienced this headache pain. Claimant testified that it is true that he was able to work, but it was very difficult and he suffered a great deal and consumed a lot of analgesics in order to do so. Therefore, based on all of the foregoing considerations, it is determined that claimant has sustained a 15 percent industrial disability to the body as a whole. Claimant asserts that he is an odd-lot employee citing Guyton v. Irving Jensen Company, 373 N.W.2d 101 (Iowa 1985). The Guyton principle is triggered when the employee makes prima facie showing that he cannot find any employment in any well-known branch of the labor market. In order to apply the Guyton rule, it is normally incumbent upon the injured worker to demonstrate a reasonable effort to secure employment in the area residence. In this case, claimant testified that he has not applied for employment or made any attempt to find employment since he retired in November 1985. Therefore, the Guyton principle cannot be applied to this case. The ICC physical examination that claimant passed three days prior to his retirement indicates that claimant was capable of continuing in the full-time job that he was performing at that time, but he chose to retire instead of continuing to work. Behrens further testified that with claimant's seniority he could be employed now full time if he chose to work. Thus, it is determined that claimant did not make out a prima facie case. Claimant is not permanently disabled under the odd-lot principle of the Guyton case. Claimant asserts that his rate of compensation beginning on March 30, 1982 should be determined by only using the thirteen weeks in which claimant completed thirty or more hours of work. Claimant then went back through thirty-four weeks of employment VANNATTA V. YELLOW FREIGHT SYSTEM, INC. Page 17 in order to isolate out thirteen weeks in which he had more than thirty hours of employment. Claimant asserts that only thirty hour weeks comply with the wording of the first unnumbered paragraph of Iowa Code section 85.36 that states the rate is to be based on "earnings of an employee to which such employee would have been entitled had he worked the customary hours for the full pay period in which he was injured." The testimony of claimant and Behrens indicated that claimant worked the hours at that time which claimant's seniority permitted. The hours for the thirteen weeks prior to the injury look very similar to the hours worked in the thirteen weeks prior to that (Ex. 16A, p. 3). Therefore, the thirteen week period prior to the injury represents claimant's customary wages at that time. The evidence is insufficient to show that claimant's customary work week prior to the injury was a thirty hour work week as asserted by claimant. Therefore, claimant's contention that the proper rate of compensation as illustrated on exhibit 16A, pages 1 and,2, cannot be accepted as correct. Neither can defendant's rate calculation in his brief be applied to this case. This is a correct method of calculation, but it does not result in the highest rate that can be applied to this case under the Code. Defendant applied Iowa Code section 85.36(10) and divided the last twelve calendar months earnings by twelve. This resulted in a gross wage of $314.27 per week and a weekly compensation rate of $193.09. The employer's claims examiner made a calculation which used VANNATTA V. YELLOW FREIGHT SYSTEM, INC. Page 18 Iowa Code section 85.36(6). This also is a correct method of computation, and it also allows claimant the highest weekly rate of compensation. It divides the earnings for the thirteen weeks immediately preceding the injury by thirteen and arrives at a gross weekly rate of $321 per week and a weekly compensation rate of $196.70 per week. Therefore, it is determined that $.196.70 is the weekly. rate of compensation to be applied to this case. Claimant asserts that he received a cumulative injury and, therefore, his rate of compensation after he quit working allegedly due to the pain should be based on the thirteen week period prior to November 15, 1985. This contention must be rejected because there is no evidence that claimant suffered a gradual or cumulative injury. The evidence is that claimant was injured in the motor vehicle accident on March 30, 1982. On April 20, 1982, he was hospitalized for headache pain. He first mentioned headache pain in Dr. Rudersdorf's notes on May 17, 1982. He has complained of this same headache pain ever since. There was no evidence of repeated traumas or gradual onset. Therefore, the weekly rate of compensation is $196.70 as previously determined. Claimant's calculations on the rate as proposed in exhibit 16 then cannot be accepted as the proper rate in this case based upon the cumulative injury theory. FINDINGS OF FACT WHEREFORE, based upon the evidence presented, the following findings of fact are made: That claimant sustained an injury on March 30, 1982 in a serious one vehicle truck accident. That shortly after the accident, claimant began to complain of headaches and has continued to complain of headaches until the present time. That numerous and very comprehensive medical testing and evaluating failed to establish an organic cause for claimant's headaches. That claimant did sustain serious trauma to his whole body and in particular to his face and head in the motor vehicle accident. That Dr. Rudersdorf and Dr. Isgreen, claimant's two treating physicians, stated that in their opinion the injury of March 30, 1982 was the cause of claimant's continuing headaches which Dr. Rudersdorf called post-traumatic celphalgia and Dr. Isgreen called post-traumatic headache syndrome. That both of these doctors and Dr. Skultety acknowledged claimant was tense, nervous, and anxious by nature. That Dr. Skultety and the Pain Management Center personnel characterized claimant as a catastrophizer type personality, and that this characteristic would increase his tension level in the future. That claimant eventually returned to work on March 14, 1983 VANNATTA V. YELLOW FREIGHT SYSTEM, INC. Page 19 and performed all of the duties of a truck driver and freight dock employee for two years and nine months until his voluntary retirement on November 15, 1985. That no medical practitioner ordered, recommended, or even suggested that claimant quit his employment on November 15, 1985. That claimant did not seek any medical attention or treatment for headaches after he retired on November 15, 1985 with Dr. Rudersdorf or anyone else. That claimant began drawing a pension of $765 per month from the Teamsters in November 1985 at age 62. That the Teamsters pension is a regular pension and not a disability pension. That claimant has not applied for social security disability benefits. That claimant has not applied for regular social security benefits at age 62. That claimant has not sought or attempted to find any employment since he retired on November 15, 1985. That claimant's rate of compensation is properly calculated for the highest benefit pursuant to Iowa Code section 85.36(6) using the thirteen weeks prior to his injury for the calculation. That there is no evidence of repeated trauma or gradual onset of injury, but rather the only injury date in evidence is March 30, 1982. That claimant suffered a severe laceration of the forehead, ecchymotic and swollen eyes, a hematoma of the nose, and right anterior rib injuries. That claimant's physical injuries appeared to heal well, but that claimant still complains of headache pain and right rib pain as a result of the accident on March 30, 1982. That claimant takes as many as sixteen aspirins or Tylenol per day in order to alleviate his subjective symptoms of pain. That even though claimant worked full time for two years and nine months after the injury, nevertheless, claimant's wife, Behrens, Dr. Rudersdorf and Dr. Isgreen testified that they believed claimant suffered the headache pain he claimed in his testimony. That claimant sustained an industrial disability of 15 percent of the body as a whole. CONCLUSIONS OF LAW WHEREFORE, based upon the evidence presented and the VANNATTA V. YELLOW FREIGHT SYSTEM, INC. Page 20 principles of law previously discussed, the following conclusions of law are made: That the injury of March 30, 1982 was the cause of some permanent disability. That claimant is entitled to seventy-five (75) weeks of permanent partial disability as industrial disability to the body as a whole. That claimant did not make out a prima facie case that he is an odd-lot employee. That the proper rate of weekly compensation is calculated by using Iowa Code section 85.36(6), using the thirteen weeks of employment immediately preceding the injury. That claimant did not sustain a cumulative injury that would entitle him to a rate of compensation based upon his earnings at the time he retired from employment. ORDER THEREFORE, IT IS ORDERED: That defendant pay to claimant seventy-five (75) weeks of permanent partial disability benefits as industrial disability to the body as a whole at the rate of one hundred ninety-six and 70/100 dollars ($196.70) per week commencing on March 15, 1983 in the total amount of fourteen thousand seven hundred fifty-two and 50/100 dollars ($14,752.50). That defendant pay this amount in a lump sum. That interest will accrue under Iowa Code section 85.30. That defendant will pay the cost of this action pursuant to Division of Industrial Services Rule 343-4.33. That defendant file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 20th day of August, 1987. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Michael P. Jacobs Attorney at Law 300 Toy National Bank Bldg. VANNATTA V. YELLOW FREIGHT SYSTEM, INC. Page 21 Sioux City, Iowa 51101 Mr. Frank T. Harrison Attorney at Law Terrace Center, Suite 111 2700 Grand Avenue Des Moines, Iowa 50312 1402.40; 1803;4100; 3002; 2209 Filed 8-20-87 Walter R. McManus, Jr. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ CLIFFORD L. VANNATTA, Claimant, File No. 700950 VS. R E V I E W YELLOW FREIGHT SYSTEM, INC., R E 0 P E N I N G Employer, D E C I S I 0 N Self-Insured, Defendant. _________________________________________________________________ 1402.40; 1803 Claimant drove his nearly empty semi-tractor and trailer through the guardrail, fell several feet, and landed upright on the roadway below. He received a 7 cm. vertical laceration on his right forehead, ecchymotic and swollen eyes, hematoma of the nose, and clinically diagnosed fractured right ribs. The physical injuries healed but claimant continued to have complaints of headaches for which he received much testing, evaluation and treatment. No organic cause could be found but everyone believed he had the headaches for which he took up to 16 analgesics a day. After a healing period of about a year he returned to work but continued to complain of headaches. After working two years and nine months he quit because he could not stand the ,pain any longer. It also happened that he was age 62 and took a Teamsters pension of $765 a month and his wife was diagnosed with cancer. It was found that claimant voluntarily retired and he was awarded 15% permanent partial disability for the headaches due to the severe head trauma. His personal physician and neurologist said the headaches were post-trauma. Neurologist awarded 25% permanent functional impairment. 4100 Claimant did not make out a prima facie case of odd-lot because he never sought employment after he retired. Furthermore, he passed his ICC physical examination for the DOT three days before he retired and employer testified he could have his old job back if he wanted it because he had the seniority to get it. 3002 Claimant was not allowed to isolate out the weeks of work in which he had more than thirty hours of work for his rate because it was not proven that this was a customary week for him. Rather, rate was computed under ICS 85.36(6) using the last thirteen weeks. 2209 Claimant did not prove gradual onset or repetitive,trauma and, therefore, was not entitled to a higher rate after he quit working based on McKeever. Page 1 before the iowa industrial commissioner ____________________________________________________________ : DALE E. LARSON, : : Claimant, : : vs. : : File No.701560 EICHLEAY CORPORATION, : : A P P E A L Employer, : : D E C I S I O N and : : AETNA CASUALTY & SURETY : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case Defendants appeal from a deputy industrial commissioner's decision awarding permanent partial disability benefits based on an industrial disability of 60 percent and awarding healing period benefits from April 8, 1982 to December 20, 1985. The record on appeal consists of the transcript of the hearing and joint exhibits 1 through 10. Both parties filed briefs on appeal. Defendants filed a reply brief. issues The issues on appeal are: I. Whether there is a causal connection between claimant's alleged injury of April 8, 1982 and claimant's permanent disability? II. Whether the greater weight of the evidence supports an industrial disability award of 60 percent as a result from an alleged injury of April 8, 1982? III. Whether the greater weight of the evidence demonstrates that the claimant's healing period ended prior to December 20, 1985? Page 2 review of the evidence The deputy's decision dated March 30, 1989 adequately and accurately reflects the pertinent evidence and it will not be reiterated herein. applicable law The citations of law in the deputy's decision are appropriate to the issues and evidence. Additional agency decisions will be discussed as necessary in the analysis. analysis The analysis of the evidence in conjunction with the law in the deputy's decision is adopted. The following additional comments are appropriate. The deputy's analysis of the nature and extent of claimant's industrial disability is adopted and becomes the final agency decision on the issue of industrial disability. The greater weight of the evidence supports a conclusion that a casual connection exists between claimant's work-related injury and his industrial disability. Claimant's treating physician, Dr. Hoover opined that claimant recovered completely from his automobile accident in January or early February and noted that claimant had returned to work at the time of his injury. (Joint exhibit 1, Page 45). Dr. Hoover opined that claimant's present back problem was related to the work injury which occurred on April 8, 1982. (Jt. ex. 1, p. 27). Parties stipulated that if it is determined that claimant is entitled to healing period benefits then it runs from April 8, 1982 to December 20, 1985. See prehearing report dated September 20, 1988 and the transcript of the hearing page 4, line 1 through 6. Parties will be bound by stipulations unless they are clearly contrary to the law. One of the conditions that ends healing period is when "it is medically indicated that significant improvement is not anticipated". (Iowa Code section 85.34(1)). It was held in a decision by this agency: That a person continues to receive medical care does not indicate that the healing period continues. Medical treatment which is maintenance in nature often continues beyond that point when maximum medical recuperation had been accomplished. Medical treatment that anticipates improvement does not necessarily extend healing period particularly when the treatment does not in fact improve that condition. Derochic v. City of Sioux City, II Industrial Commissioner Report 112, 114 (1982). In addition, a recent agency decision is pertinent: Page 3 As the name implies, permanent impairment is not subject to improvement. A rating of permanent impairment indicates that the healing period has ended and further improvement is not anticipated. This satisfies the requirements of Iowa Code section 85.34(1). ... The fact that claimant may need to undergo further treatment does not mean that claimant is still in healing period. Claimant's healing period can end and permanency begin with further treatment anticipated at a later time. Brown v. Weitz Company, Appeal Decision, March 13, 1990. Claimant was admitted for treatment in a chronic pain program at Sister Kenny Institute from December 1, 1985 through December 20, 1985. Claimant's overall progress in the program was considered good and claimant continued to improve in his overall physical conditioning as well as his mental outlook. (Jt. ex. 1, p. 78). Evidence in the record exists to support the conclusion that the parties' stipulation to healing period from April 8, 1982 to December 20, 1985 is consistent with Iowa Code section 85.34(1). findings of fact 1. Claimant sustained a back injury arising out of and in the course of his employment with defendants on April 8, 1982. 2. Claimant had a long history of back problems including a laminectomy as a result of a prior work-related injury. 3. Claimant was born April 13, 1928 and is approaching normal retirement age. 4. Claimant received his GED in 1964. 5. Claimant received training and became certified as a chemical dependency counselor subsequent to his injury on April 8, 1982. 6. Claimant's past work experience includes carpentry and millwright. 7. Claimant's treating physician opined that there is a casual connection between claimant's April 2, 1982 injury and claimant's permanent partial disability. 8. Claimant is unable to return to any position in the construction industry where there is climbing, twisting, bending or stooping as a result of claimant's April 8, 1982 work injury. 9. Claimant has not been motivated to seek employment in the field of chemical dependency counselor. Page 4 10. Claimant has a functional impairment of 20 percent of the body as a whole as a result of his preexisting injuries. 11. Claimant has an additional functional impairment of 30 percent of the body as a whole as a result of his April 8, 1982 work-related injury. 12. Claimant was in healing period from April 8, 1982 through December 20, 1985. 13. Claimant suffered a 60 percent loss of earning capacity as a result of the injury he sustained on April 8, 1982. conclusions of law Claimant established by a preponderance of the evidence that the work-related injury of April 8, 1982 was the cause of permanent partial disability. Claimant established by a preponderance of the evidence that he is entitled to healing period benefits from April 8, 1982 through December 20, 1985 at the weekly rate of $280.95 per week. Claimant established that he is entitled to 300 weeks of permanent partial disability based upon an industrial disability of 60 percent of the body as a whole. WHEREFORE, the decision of the deputy is affirmed. order THEREFORE, it is ordered: That defendants are to pay unto claimant healing period benefits beginning April 2, 1982 through May 10, 1983 at a weekly rate of two hundred eighty and 95/100 dollars ($280.95). That defendants are to pay unto claimant three hundred (300) weeks of permanent partial disability benefits at the rate of two hundred eighty and 95/100 dollars ($280.95) per week. That payments that have accrued shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. That defendants shall be given credit for all benefits previously paid to claimant. That defendants shall pay the costs of the appeal including the costs of transcription of the hearing before the deputy. That defendants file claim activity reports pursuant to Division of Industrial Services Rule 343-3.1(2). Page 5 Signed and filed this ____ day of July, 1990. ________________________________ CLAIR R. CRAMER ACTING INDUSTRIAL COMMISSIONER Copies To: Mr. David Drake Attorney at Law West Towers Office 1200 35th St., Ste. 500 West Des Moines, Iowa 50265 Mr. Glenn Goodwin Ms. Lorraine J. May Attorneys at Law 4th Floor Equitable Bldg. Des Moines, Iowa 50309 1802; 5-1803 Filed July 30, 1990 CLAIR R. CRAMER before the iowa industrial commissioner ____________________________________________________________ : DALE E. LARSON, : : Claimant, : : vs. : : File No. 701560 EICHLEAY CORPORATION, : : A P P E A L Employer, : : D E C I S I O N and : : AETNA CASUALTY & SURETY : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1802 Parties stipulated that if it is determined that claimant is entitled to healing period benefits then it runs from April 8, 1982 to December 20, 1985. Parties will be bound by stipulations unless they are clearly contrary to the law. Claimant's overall progress continued to improve while in a chronic pain program. Evidence in the record exists to support the conclusion that the parties' stipulation to healing period from April 8, 1982 to December 20, 1985 is consistent with Iowa Code section 85.34(1). 5-1803 Claimant sustained a back injury which resulted in permanent disability. Claimant proved entitlement to 300 weeks of permanent partial disability based upon an industrial disability of 60 percent of the body as a whole. BEFORE THE IOWA INDUSTRIAL COMMISSIONER DALE E. LARSON, Claimant, File No. 701560 vs. R E V I E W - EICHLEAY CORPORATION, R E 0 P E N I N G Employer, D E C I S I 0 N and F I L E D AETNA CASUALTY & SURETY COMPANY, MAR 30 1989 Insurance Carrier, IOWA INDUSTRIAL COMMISSIONER Defendants. INTRODUCTION This is a review-reopening proceeding brought by Dale E. Larson, claimant, against Eichleay Corporation, employer, and Aetna Casualty & Surety Company, insurance carrier, defendant. The case was heard by the undersigned in Des Moines, Iowa on September 20, 1988. The record consists of the testimony of claimant. The record also consists of joint exhibits 1 through 10. ISSUES As a result of the prehearing report and order submitted and approved on September 20, 1988, the issues presented by the parties are: 1) Whether claimant received an injury which arose out of and in the course of employment; 2) Whether there is a causal relationship between the alleged injury and the disability; 3) Whether claimant is entitled to temporary disability/ healing period benefits or permanent partial or total disability benefits; and, 4) Whether claimant is an odd-lot doctrine employee. FACTS PRESENTED At the time of the hearing, claimant was 60 years old. He is single and currently living alone. Claimant received his GED in 1964. He also successfully completed a four year apprenticeship program in carpentry. Following his apprenticeship, claimant worked as a carpenter and as a millwright for many years. After the alleged injury on April 8, 1982, claimant entered the Minneapolis Community College where he received a two year certificate as a chemical dependency counselor. Claimant concluded an internship program at a VA hospital. However, claimant did not seek full or part-time employment in this area, once he had received his certificate. Claimant has a history of prior back problems. As early as 1962, he had sought medical attention for his back. Medical records for Robert McCoy, M.D., indicate that in October of 1962, claimant was suffering from back strain because of work related lifting and driving duties. Then in September of 1971, claimant was admitted to a hospital because he had a "herniated intervertebral disc." In June of 1976, a laminectomy was performed on claimant. The medical records for June 11, 1976 indicate postoperatively: POSTOP DIAG: Herniation L3-4 disc, left, foraminal encroachment due to epiphyseal joint degenerative disease, L3-4. Allegedly this injury was work related. The claimant received an impairment rating of 30 percent of the spine and 20 percent of the body as a whole. Claimant was paid the requisite benefits. He reported he returned to work after two months. In March of 1982, claimant was involved in an automobile accident in Denver, Colorado. According to claimant's testimony, his head struck the back windshield. Claimant was hospitalized for neck pain for several days as a result. Subsequent to the automobile accident, claimant commenced his employment with defendant. Claimant testified, while working for defendant, he slipped. At the time, claimant was engaged in "torquing up bolts on a mill." Claimant slipped and fell between the motor base and the mill while the torque wrench he was using fell on him. Claimant stated he reported the injury to someone in defendant's office. According to claimant's,testimony, he did not feel a great deal of pain immediately after the injury but gradually the pain increased. Medical notes indicate claimant telephoned N. W. Hoover, M.D., on April 22, 1982, concerning claimant's work injury. The notes indicate: Mr. Larson called to say that he was getting along reasonably well until two weeks ago when he was carrying a heavy object at work and slipped and fell as he did. Since then, he has had severe pain in his low back with numbness of one buttock. This is different from pain he has had before. He has stayed at home during the past two weeks and has tried to be inactive but hasn't been able to stay in bed because he lives alone. Therefore, he agrees that he should come into the hospital and stay at the hospital at this time. Note that he left last time because of some type of personal problem. He is coming into Mercy tomorrow, April 23. The medical records established that claimant was hospitalized. The CT scan taken subsequent to the injury in April of 1982 indicated, "a significant disc protrusion though the radiologist reported a slight bulging of the L5-S1 intervertebral disc." Claimant did not return to work as a millwright. According to Dr. Hoover's note of July 6, 1982: ... As I indicated in my last note, this patient's usual occupation over the past many years is of such strenuous nature that it is impractical for him to continue to go back to it. He wishes to undergo vocational retraining which I think would be a very practical goal. Apparently, to make that possible it is necessary that evaluation of his impairment be done. This is an early time for such an evaluation coming only 3 months from his time of injury and therefore I emphasized that the reasons for the early evaluation is the patient's need for it to establish a base for his negotiation. I cannot assume that this is indicative of his ultimate condition but at the present time I find him to be impaired to the degree of 50% of the lumbar spine and note also that that impairment implies 100% permanent partial disability with respect to his usual occupation or any other for which he has competence training or experience. Claimant reported he completed his education as a substance abuse counselor. However, he testified it was impossible for him to work as a counselor because he was always focusing on his own pain. Claimant does do volunteer counseling through his local AA. Claimant did state that he currently engages in hunting for antiques and restoring them. He also noted that he swims regularly and the swimming eases his back pain. Claimant reported he lives in Arizona from December or January through March. Claimant also testified that he participated in the pain center at the Sister Kenny Institute in Minneapolis, Minnesota. He believed the institute assisted him in improving his mental outlook. Finally, claimant testified he had received vocational rehabilitation counseling from Richard McCluhan. Claimant indicated Mr. McCluhan had provided various job applications to him relative to employment as a substance abuse counselor. Claimant stated no interviews were set up by Mr. McCluhan, but that claimant reported to the counselor, he was unable to work. APPLICABLE LAW An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(l). Claimant has the burden of proving by a preponderance of the evidence that he received an injury on April 8, 1982, which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979); McClure, 188 N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). The claimant must prove by a preponderance of the evidence that his injury arose out of and in the course of his employment. Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). In the course of employment means that the claimant must prove his injury occurred at a place where he reasonably may be performing his duties. McClure, 188 N.W.2d 283 (Iowa 1971). Arising out of suggests a causal relationship between the employment and the injury. Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). The claimant has the burden of proving by a preponderance of the evidence that the injury of April 8, 1982 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinions of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). An opinion of an expert based upon an incomplete history is not binding upon the commissioner, but must be weighed together with the other disclosed facts and circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867 (1965). The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. Burt, 247 Iowa 691, 73 N.W.2d 732 (1955). In regard to medical testimony, the commissioner is required to state the reasons on which testimony is accepted or rejected. Sondag, 220 N.W.2d 903 (1974). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756, (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, (1962). When an aggravation occurs in the performance of an employer's work and a causal connection is established, claimant may recover to the extent of the impairment. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, (1960). The Iowa Supreme Court cites, apparently with approval, the C.J.S. statement that the aggravation should be material if it is to be compensable. Yeager v. Firestone Tire & Rubber Co., 253.Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's Compensation section 555(17)a. Our supreme court has stated many times that a claimant may recover for a work connected aggravation of a preexisting condition. Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). See also Auxier v. Woodward State Hospital Sch., 266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960). An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler, 252 Iowa 613, 620, 106 N.W.2d 591 (1960), and cases cited. 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, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960). See also Barz, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist, 218 Iowa 724, 254 N.W. 35 (1934). If a claimant contends he has industrial disability he has the burden of proving his injury results in an ailment extending beyond the scheduled loss. Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964). 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, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. This is so as impairment and disability are not synonymous. Degree of industrial disability can, in fact, be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial disability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are,to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial disability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985). Under the odd-lot doctrine, which was formally adopted by the Iowa Supreme Court in Guyton, supra, a worker becomes an odd-lot employee when an injury makes the worker incapable of obtaining employment in any well-known branch of the labor market. An odd-lot worker is thus totally disabled if the only services the worker can perform are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist. Id., citing Lee v. Minneapolis Street Railway Company, 230 Minn. 315, 320, 41 N.W.2d 433, 436 (1950). The rule of odd-lot allocates the burden of production of evidence. If the evidence of degree of obvious physical impairment, coupled with other facts such as claimant's mental capacity, education, training or age, places claimant prima facie in the odd-lot category, the burden should be on the employer to show that some kind of suitable work is regularly and continuously available to the claimant. Certainly in such a case it should not be enough to show that claimant is physically capable of performing light work and then round out the case for non-compensable by adding a presumption that light work is available.. Guyton, 373 N.W.2d at 105, When a worker makes a prima facie case of total disability by producing substantial evidence that the worker is not employable in the competitive labor market, the burden to produce evidence of suitable employment shifts to the employer. If the employer fails to produce such evidence and the trier of fact finds the worker falls in the odd-lot category, the worker is entitled to a finding of total disability. Even under the odd-lot doctrine, the trier of fact is free to determine the weight and credibility of the evidence in determining whether the worker's burden of persuasion has been carried. Only in an exceptional case would evidence be sufficiently strong to compel a finding of total disability as a matter of law.. Guyton 373 N.W.2d at 106. The court went on to state: The commissioner did not in his analysis address any of the other factors to be considered in determining industrial disability. Industrial disability means reduced earning capacity. Bodily impairment is merely one factor in a gauging industrial disability. Other factors include the worker's age, intelligence, education, qualifications, experience, and the effect of the injury on the worker's ability to obtain suitable work. See Doerfer Division of CCA v. Nicol, 359 N.W.2d 428, 438 (Iowa 1984). When the combination of factors precludes the worker from obtaining regular employment to earn a living, the worker with only a partial functional disability has a total disability. See McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 192 (Iowa 1980). In Diederich v. Tri-City R. Co., 219 Iowa 587, 258 N.W. 899 (1935) the court, addressing the issue of the meaning of disability stated: What is "permanent total disability"? Does this clause refer to "functional disability" or to "industrial disability"? For clearness we shall use the term "industrial disability" as referring to disability from carrying on a gainful occupation--inability to earn wages. By "functional disability" we shall refer to the disability to perform one or more of the physical movements which a normal human being can perform. .... It is obvious that "disability" here used cannot refer to mere "functional disability',... It is...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 terms of percentages of the total physical and mental ability of a normal man. .... ... [T]he Compensation law was passed for the purpose of compensating the working man when injured. The loss which this claimant suffered due to the injury which he received while in the employ of the company is the inability to carry on the work he was doing prior to the time of the injury, or any work which he could perform. This man at fifty-nine years of age, after thirty years as a street car motorman, with little education, cannot find or hold a position that would not require some manual labor, and, of course, due to the condition of his back, he cannot perform such work. To say that he might become a stenographer or a lawyer or a clerk or a bookkeeper is to suppose the impossible, for a fifty-nine-year old man, with no education, is not capable of securing or filling any such position. His disability may be only a twenty-five or thirty per cent disability compared with the one hundred per cent perfect man, but, from the standpoint of his ability to go back to work to earn a living for himself and his family, his disability is a total disability, for he is not able to again operate the street car and perform the work which the company demanded of him prior to the time of the accident. ANALYSIS In the case at hand, claimant has proven by a preponderance of the evidence that he has received an injury which arose out of and in the course of claimant's employment. Claimant described the incidents leading up to the injury. Here, the cause or source of the injury was the fall while "torquing up bolts on a mill." The injury occurred while claimant was performing his normal work routine. These were duties performed on behalf of defendant; employer, and pursuant to direction from defendant. Claimant has also established by a preponderance of the evidence that his injury on April 8, 1982, is causally related to the disability on which he now bases his claim. There is medical testimony to substantiate the necessary causal connection. Dr. Hoover writes in his letters of June 29, 1982 and December 16, 1982: June 29, 1982 ...Note that Mr. Larson was injured in the course of his work on April 8, 1982, when he pulled torque wrench, lost his footing as he did, and fell. He twisted his back in doing so. He was hospitalized for acute back pain and seemed to improve over a period of six days. He was then discharged from the hospital and next examined on May 7 when he was. standing with a list to the right, walking with difficulty, and obviously having more pain than when he had been discharged. Therefore, he was readmitted to the hospital in my absence and cared for by Dr. Emerson for the period 5/21 to 5/24... December 16, 1982 Mr. Larson has been under my care since his injury of April 8, 1982. That injury occurred in the course of his employment resulting from a fall when he lost his footing while pulling on a heavy torque wrench. The injury caused acute lumbar strain and damage to the lumbosacral intervertebral disc. CT scan made on May 10, 1982, demonstrated bulging of the disc. The patient's condition is such that he has not recovered sufficiently to return to his previous heavy physical work and, therefore, with respect to his usual occupation or any other for which he has competence or training, he remains 100% disabled. There is also the testimony of claimant. During redirect examination, he testified that the pain he experienced in April of 1982, subsequent to his fall on the eighth was different than the back pain he had experienced prior to the eighth. After the work injury, claimant stated, he experienced low back pain which radiated down into his buttocks. At all times prior to the April 8, 1982 injury, claimant was able to return to work. Even after the hospitalization in March of 1982, claimant was able to continue working as a carpenter/millwright, jobs which required more than sedentary responsibilities. In light of the foregoing, it is the determination of the undersigned that claimant has established the requisite causal connection. The third issue to address is the extent of claimant's healing period. Defendants paid healing period benefits through July 6, 1982. On August 4, 1982, defendants informed claimant they were terminating claimant's healing period benefits pursuant to Dr. Hoover's report of July 27, 1982. Section 85.34 of the Iowa Code (1987) defines healing period. This section provides that: 1. Healing period. If an employee has suffered a personal injury causing permanent partial disability for which compensation is payable as provided in subsection 2 of this section, the employer shall pay to the employee compensation for a healing period, as provided in section 85.37, beginning on the date of injury, and until the employee has returned to work or it is medically indicated that significant improvement from the injury is not anticipated or until the employee is medically capable of returning to employment substantially similar to the employment in which the employee was engaged at the time of injury, whichever occurs first. In the case at hand, claimant seeks benefits for the period from April 8, 1982 to December 20, 1985. The undersigned finds that the healing period ended on December 20, 1985. On that date, claimant was released from the Sister Kenny Institute. This was the last mode of treatment in which claimant actively participated. Claimant's doctors encouraged claimant to return to the work setting. Maximum progress had been made concerning claimant's pain management, and claimant's mental attitude seemed to have been elevated. Matthew Monsein, M.D., writes in his report of December 27, 1985: Overall, I was satisfied with Dale's progress in our pain management program. He was quite active and participated in all activities. At the time of Dale's discharge from our program, according to Dale, there really was not much improvement in his experience of pain. However, there was improvement in Dale's attitude towards his pain and his desire to return to a more productive lifestyle. ... Dale has expressed a desire to return to work as a chemical dependency counselor. As you know, Dale has received a degree in this. He states that he will probably be going to Arizona to see what opportunities are available in this area. I have recommended to Dale that he discuss this with Mr. McCluhan, his rehabilitation counselor, but certainly from our standpoint he was encouraged to pursue this goal. It was at this point that claimant was medically capable of returning to employment. Claimant had no other significant improvement after this date. While it is true that Dr. Hoover did provide an impairment rating on July 6, 1982, Dr. Hoover expressly notes the evaluation is an early evaluation and not indicative of claimant's ultimate condition. Therefore, this evaluation was not used to consider whether claimant's healing period ended on July 6, 1982. The next issue to discuss is the issue of permanency. As mentioned previously, claimant has had a long history of back problems. Claimant has also had a prior work related injury. In June of 1976, claimant had a laminectomy because of a herniated lumbar disc and because of degenerative problems. Dr. Hoover, in 1977, determined claimant was functionally impaired. He wrote in his report of June 17, 1977: I saw Mr. Larson finally on June 14, 1977 when he had reached a point of maximal recovery. He continues to have stiffness and soreness in his back each morning. He avoids bending because of persistent pain. He wears his corset periodically as his symptoms require. Nevertheless he has made a recovery sufficiently good to allow him to return to his usual occupation. on examination he was found to have flattening of his lumbar spine, he bends to reach to twelve inches from the floor, extension, side bending and rotation are limited to about fifty per cent of normal range. Straight leg raising is tight at 60 degrees on either side. He has no motor weakness and no sensory loss. Mr. Larson has made a reasonably good recovery from surgical removal of an acutely protruded mid lumbar disc but he has residual disability as noted in the findings above. I have estimated his permanent partial disability at 30% of the lumbar spine, or 20% of the man as a whole. Dr. Hoover, in his note of July 6, 1982, only provided a preliminary rating of functional impairment. He writes: ...I find him to be impaired to the degree of 50% of the lumbar spine and note also that that impairment implies 100% permanent partial disability with respect to his usual occupation or any other for which he has competence, training or experience. R. L. Emerson, M.D., is an orthopedic surgeon. He was a partner with Dr. Hoover. Dr. Emerson assumed claimant as a patient when Dr. Hoover left the area. At first, Dr. Emerson provided the following impairment rating: The impairment rating that I gave in May of 1983 was based upon my examination in judgment of Mr. Larson's impairment. This may or may not coincide with Dr. Hoover's previous impairment rating. It is not meant to be an additional 25% added on to Dr. Hoover's 20% of a whole man. It simply means that I felt that Mr. Larson had an impairment of 25% of the whole body. Later, Dr. Emerson concurred with the preliminary rating provided by Dr. Hoover. In his letter of April 12, 1984, Dr. Emerson opines: I have recently seen Mr. Dale Larson on follow-up for low back and lower extremity symptoms. His condition seems to have worsened since my last examination while he was in the hospital. Indeed, at the present time I would be in agreement in Dr. Hoover's previous impairment rating of 50% of whole man. As you know, I have had to reply [sic] on Dr. Hoover's previous notes fairly heavily in assessing Mr. Larson. I think that his impairment has changed from my correspondence with you last fall. At that point in time, I felt that he had an impairment of 25% of whole body. At the present time I think it is more realistically 50%. David J. Boarini, M.D., is a neurological surgeon. Pursuant to a request from defendants, he saw claimant on May 14, 1987. Dr. Boarini evaluated claimant in anticipation of this proceeding, after seeing claimant only on the one occasion. He opines in his report of May 19, 1987: Upon examination, the patient is mildly obese but he has an entirely normal gait and is able to heel and toe walk without difficulty. He has normal flexion of the lower back but very slight limitation on extension and side bending. Neurological examination shows normal strength in all muscle groups in the lower extremities. Sensory testing is intact to pin and touch. The patient has a negative straight leg raising sign bilaterally and symmetric and physiologic reflexes at the knees and ankles. Examination of the back shows a well healed surgical incision and there is no tenderness or spasm. I think this gentleman has chronic myofascial low-back pain. He is status post lumbar laminectomy. His neurological examination is entirely normal and his only abnormality at this time is a very minimal limitation in the range of motion. Based upon his having had a previous laminectomy and his minimal loss in the range of,motion, I would give him a permanent impairment rating of 8-9% of the whole man. I really have no further recommendations for treatment. Dr. Boarini's evaluation is markedly disparate from either Dr. Hoover or Dr. Emerson. Furthermore, both Dr. Hoover, and later, Dr. Emerson were treating physicians and orthopedic surgeons. Dr. Hoover had been treating claimant since 1976. He was quite familiar with claimant's history and condition. Because of the expertise of Dr. Hoover and Dr. Emerson, greater weight is accorded their impairment ratings. See Reiland v. Palco, Inc., Thirty-Second Biennial Report of the Industrial commissioner 56 (1975); Dickey v. ITT Continental Baking Company, Thirty-Fourth Biennial Report of the Industrial Commissioner 89 (1979). None of the three physicians determines whether any of the functional impairment is attributable to claimant's preexisting condition. This, in and of itself, does not make it impossible to determine the degree of functional impairment attributable to the injury on April 8, 1982. The undersigned finds that claimant is functionally impaired by 30% to the whole man as a result of the work injury on April 8, 1982. Claimant alleges he is permanently and totally disabled, or that in the alternative, claimant alleges he is an odd-lot employee under Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985). Claimant maintains he has been unable to reenter the labor market due to his physical condition and to the pain which he is experiencing. Claimant asserts he is unable to work as a substance abuse counselor despite his retraining, because claimant will take out his frustrations on the clients. Defendants argue that claimant is quite capable of working as a substance abuse counselor but claimant has not been motivated to seek employment. The undersigned finds claimant is not permanently and totally disabled, nor is claimant an odd-lot employee under Guyton. Claimant has successfully completed a retraining program in the area of substance abuse. Claimant is to be commended. Claimant's retraining program has included an internship program at a VA hospital. Claimant, to the satisfaction of his supervisors, has completed his internship. Testimony reveals that claimant has been doing substance abuse counseling through Alcoholics Anonymous on a volunteer basis. Claimant, however, has failed to make application for any positions, either full or part-time, in the area of substance abuse. No physician has stated claimant is incapable of working in this area. Quite the contrary, rehabilitation has taken place. Treating physicians have continuously encouraged claimant to seek employment in this area in hopes that claimant's focus would be transferred from himself to his job. Since claimant is capable of counseling chemical dependent individuals, he is not an odd-lot employee under Guyton. However, claimant has established that he has an industrial disability. This finding is based on: 1) the aforementioned considerations; 2) based upon the permanent functional impairment ratings assigned by Dr. Hoover, Dr. Emerson, and Dr. Boarini; 3) based upon personal observation of claimant; 4) based upon claimant's testimony; and, 5) based upon agency expertise, (Iowa Administrative Procedures Act 17A.14(s). Claimant has established there is a loss of earning capacity attributable to claimant's back injury on April 8, 1982. Claimant is unable to return to any positions in the construction industry where there is climbing, twisting, bending or stooping. Claimant has shown there has been a loss of earnings since the injury on April 8, 1982, and claimant is currently receiving social security disability benefits. On the other hand, claimant has not been motivated to seek employment in his new field as a substance abuse counselor. Claimant maintains it is too painful to work. No physician has restricted claimant. Claimant's physicians have repeatedly encouraged him to seek employment. Then there is the issue of claimant's residence. Claimant lives in Arizona for three to four months out of the year. This is a voluntary decision on his part. However, this decision greatly affects claimant's employability in Iowa, or in Arizona. In light of the foregoing, it is the decision of the undersigned that claimant, as a result of this work related injury, has an industrial disability of 60 percent. FINDINGS OF FACT AND CONCLUSIONS OF LAW WHEREFORE, based on the evidence presented and the principles of law previously stated, the following findings of fact and conclusions of law are made: FINDING 1. Claimant sustained a back injury arising out of and in the course of his employment on April 8, 1982. FINDING 2. Claimant had a long history of prior back problems including a laminectomy from a prior work injury. CONCLUSION A. As a result of the injury on April 8, 1982, claimant has an attributable functional impairment of 30 percent of the body as a whole. CONCLUSION B. As a result of preexisting injuries, claimant has an attributable functional impairment of 20 percent of the body as a whole. FINDING 3. Claimant has been retrained as a substance abuse counselor subsequent to his injury on April 8, 1982. CONCLUSION C. Claimant has met his burden of proving he has a 60 percent permanent partial disability attributable to his work injury on April 8, 1982. FINDING 4. Claimant was in the healing period from April 8, 1982 to December 20, 1985. CONCLUSION D. Claimant is entitled to 192.857 weeks of healing period benefits at the weekly rate of $280.95 per week. ORDER THEREFORE, defendants are to pay unto claimant three hundred (300) weeks of permanent partial disability benefits at the rate of two hundred eighty and 95/100 dollars ($280.95) per week. Defendants are to pay unto claimant one hundred ninety-two point eight-five-seven (192.857) weeks of healing period benefits at the rate of two hundred eight and 95/100 dollars ($280.95) per week. Payments that have accrued shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa code section 85.30. Defendants are to be given credit for all benefits previously paid to claimant. Costs of this action are assessed against the defendants pursuant to Division of Industrial Services Rule 343-4.33. Defendants shall file a claim activity report upon payment of this award. Signed and filed this 30th day of March, 1989. MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. David Drake Attorney at Law West Towers Office 1200 35th St., STE 500 West Des Moines, Iowa. 50265 Mr. Glenn Goodwin Ms. Lorraine J. May Attorneys at Law 4th Floor Equitable Bldg. Des Moines, Iowa 50309 1803 Filed March 30, 1989 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER DALE E. LARSON, Claimant, File No. 701560 vs. R E V I E W - EICHLEAY CORPORATION, R E 0 P E N I N G Employer, D E C I S I 0 N and AETNA CASUALTY & SURETY COMPANY, Insurance Carrier, Defendants. Claimant awarded 60 percent industrial disability subsequent to injury of claimant's back. Claimant neglected to return to work after having successfully completed a retraining program as a substance abuse counselor. BEFORE THE IOWA INDUSTRIAL COMMISSIONER DALE ISEMAN, File No. 701889 Claimant, R E V I E W - VS. R E 0 P E N I N G AUTOMATIC SPRINKLER CORPORATION OF AMERICA, D E C I S I 0 N Employer, and KEMPER INSURANCE COMPANY, Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in review-reopening brought by Dale Iseman, claimant, against Automatic Sprinkler Corporation of America, employer, hereinafter referred to as ASC, and Kemper Insurance Company, insurance carrier, defendants, for further benefits as a result of an injury on May 3, 1982. A memorandum of agreement for this injury was filed on June 4, 1982. On December 30, 1986 a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. Claimant is alleging in this proceeding that he is permanently injured as a result of an injury to both of his wrists from a fall while working for ASC and is seeking permanent disability benefits in this proceeding. Defendants agree that they are liable for an injury in this case and that the injury caused both temporary and permanent disability, but disagrees as to the extent of permanent disability benefits to which claimant is entitled. 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 the time of hearing are listed in the prehearing report. All of the evidence received at the hearing was considered in arriving at ISEMAN V. AUTOMATIC SPRINKLER CORP.OF AMERICA Page 2 this decision. The prehearing report contains the following stipulations: 1. On May 3, 1982 claimant received an injury which arose out of and in the course of his employment with ASC; 2. Claimant is entitled to healing period benefits from May 4, 1982 through July 3, 1985 and the commencement date for permanent disability benefits in this case shall be July 4, 1985; and, 3. Claimant's rate of weekly compensation in the event of an award of weekly benefits from this proceeding shall be $359.12. The prehearing report submits only the issue of the extent of claimant's entitlement to permanent disability benefits for determination in this decision. FINDINGS OF FACT 1. Claimant was a credible witness. Claimant's appearance and demeanor at the hearing indicated that he was testifying in a candid and truthful manner. 2. Claimant has been employed by ASC since March 1974 as a pipe fitter foreman. Claimant was a working foreman. In addition to his duties as a journeyman pipe fitter, claimant was responsible for directing the work of his crew and insuring that proper materials were available. Claimant stated in his testimony that he set the pace for his fellow workers. Claimant described pipe fitting as "back breaking," heavy work which involved the installation of air and water pipes for sprinkler systems. The materials were at times very heavy and much of the work was performed above ground, usually in excess of twenty to twenty-five feet. Pipe fitters are required to work both from ladders and power lifts. At the time of the work injury, claimant was earning approximately $17.70 per hour. 3. As stipulated, on May 3, 1982 claimant suffered an ISEMAN V. AUTOMATIC SPRINKLER CORP.OF AMERICA Page 3 injury which arose out of and in the course of his employment with ASC. Claimant's credible testimony and his medical records submitted into the evidence established that on the alleged injury date, claimant was working above ground on a boom of a power lift when he fell approximately twenty feet onto a hard "concrete like" surface crushing both of his wrists and injuring his face. The wrists injuries are described by his primary care physician, Thomas L. Von Gillern, M.D., an orthopedic surgeon, as "bilateral comminuted intra-articular distal radial fractures with wrist dislocations." After the injury, both of claimant's arms were placed into hard casts extending from the hand to the elbow. 4. As stipulated, the work injury was a cause of a temporary period of total disability while claimant was recovering from the injury from May 4, 1982 through July 3, 1985. Recovery from the injury was very slow. Although his face "healed pretty much" according to claimant's testimony, his wrists have been a continuous problem since the date of injury. Claimant developed post traumatic arthritis in both wrists which was worse on the left side. Claimant underwent several surgical procedures, the last of which involved a complete fusion of the left wrist. Although Dr. Von Gillern wishes to hold off a fusion of the right wrist at the present time, the doctor states that in all likelihood such a fusion will be necessary in the future. Upon a release to work "on a trial basis" by Dr. Von Gillern, claimant returned to pipe fitting work in the summer of 1986. 5. The work injury of May 3, 1982 was a cause of a fifty three (53) percent permanent partial impairment to claimant's body as a whole as a result of a functional loss of his right and left arms. No previous medical history of any wrist or arm problems or permanent impairment of either arms was offered into the evidence of this case. Claimant's credible testimony and the personal observations of the movement of claimant's wrists at the time of hearing by this deputy commissioner established that the loss of use of claimant's wrists and arms is very severe. Claimant has permanent loss not only in the movement of the wrists but in strength and dexterity of the hands and arms. Pain from arthritis and cold weather is a chronic problem which will probably never subside during the rest of claimant's life and work activity only aggravates this pain. Claimant is under a permanent restriction against heavy work and heavy use of his arms and hands according to his physician, Dr. Von Gillern. The finding as to the specific percentage of functional calculated using the impairment ratings of the offering opinions as to functional impairment in Von Gillern. Dr. Von Gillern rated claimant as a thirty-six percent body as a whole impairment his left extremity problems and twenty-seven body as a whole impairment from his right extremity problems. Unfortunately, Dr. Von Gillern did not give a total body as a whole impairment rating. It therefore was necessary to use the Guidelines for ISEMAN V. AUTOMATIC SPRINKLER CORP.OF AMERICA Page 4 Evaluating Functional Impairment published by the American Medical Association, Third Edition, which was officially noticed at the request of the parties to impairment was only physician this case, Dr. suffering from as a result of percent of the arrive at a workable combined value figure of fifty-three percent of the body as a whole, using the combined value chart in exhibit 10. Defendants in their brief argue that Dr. Von Gillern used the AMA Guidelines improperly in calculating the body as a whole impairments from the extremity problems. Defendants point out that in exhibit 1, Dr. Von Gillern rates the left upper extremity as twenty-seven percent and the right upper extremity as twenty percent which converts under the AMA Guidelines to a sixteen percent and twelve percent body as a whole impairment respectively. Defendants, however, take issue with Dr. Von Gillern's addition of twenty percent body as a whole impairment for additional functional loss to the extremity due to a loss of strength. Defendants contend that under the guidelines, the additional twenty percent impairment to the extremities under the applicable table set forth in the guidelines would result in an additional body as a whole impairment of only twenty-four percent, not forty percent as the doctor calculates in his report. Defendants' argument was rejected. First, the doctor at no time states in his written reports that he relied upon the AMA Guidelines for his ratings and his failure to strictly adhere to such guidelines is not dispositive of this issue. As will be noted in the conclusions of law section of this decision, the AMA Guidelines are not the only guidelines recognized by this agency as aids to arrive at impairment ratings. Secondly, loss of strength due to nerve loss is dealt with in chapter 2, pages 61 through 84 of the AMA Guidelines, an entirely different section than that which was reproduced in exhibit 10. After careful review of chapter 2 by this deputy commissioner, a rating of impairment for nerve loss in addition to loss of motion is certainly not as clear as defendants contend in their brief. Finally, the views of Dr. Von Gillern are the only opinions offered in this case as to the extent of claimant's functional impairment. This deputy commissioner has neither the desire nor the authority to "second guess" an experienced orthopedic surgeon as to the rating of functional impairment for an orthopedic problem without at least some other medical authority pointing out the alleged error of Dr. Von Gillern's methodology. 6. A finding could not be made that the work injury of May 3, 1987 was a cause of a total loss of earning capacity. There is little question that, measured industrially, claimant has a very severe loss of earning capacity as a result of the work injury. After reasonable efforts, claimant has been unable to locate work more suited to his disability. However, given the law of this case, the only issue before this deputy commissioner is whether or not the claimant has a total, not a partial, loss of earning capacity. Given the evidence in this case, a finding of a total loss of earning capacity could not be ISEMAN V. AUTOMATIC SPRINKLER CORP.OF AMERICA Page 5 made. Since the summer of 1986, claimant has been able to overcome his severe injuries and return to substantially the same work he was performing at the time of the work injury. Claimant was unemployed at the time of hearing only because of a temporary layoff due to lack of available work. Claimant fully expected to return to work within a few weeks. Admittedly, claimant is unable to perform many of the work tasks that he was able to perform before May 1982, but through assistance from,fellow employees and accommodations by his employers, he is able to function as a pipe fitter. Claimant is credible when he states that he does not know how much longer he will be able to function in this job. However, when and if his employability status changes, this agency can review such a change in status at that time to determine the effect such a change would have upon his earning capacity. Also, it is noted that Dr. Von Gillern believes that claimant will have to undergo further surgery on his right hand. If the surgery occurs, this agency can review the effects of such a surgery on his earning capacity at that time as well. It should be noted that this decision makes no attempt to measure claimant's disability should this second wrist fusion take place. Claimant has suffered a loss in actual earnings from employment due to,his work injury, but at the present time claimant earns only approximately $1.00 or $2.00 less per hour than he would be earning as a full working foreman. Claimant is forty-one years of age, has earned his GED, and exhibited average intelligence at the hearing. His lack of formal education indicates a low potential for successful vocational rehabilitation. However, he has experience as a first level supervisor which can be transferrable to new lines of industry. Claimant has not demonstrated a prima facie case that the services he can perform are so limited in quality, quantity, and dependability that a reasonable, stable market for them does not exist. CONCLUSIONS OF LAW In this case there was no controversy raised by the parties concerning the applicable law to be followed in determination of the issue. The foregoing findings of fact were made under the following principles of law. Claimant must establish by a preponderance of the evidence the extent of weekly benefits for permanent disability to which he is entitled. As claimant has shown that the work injury involved a permanent impairment to two upper extremities from a single accident, the extent of disability is measured pursuant to Iowa Code section 85.34(2)(s). Measurement of claimant's entitlement to disability benefits under this subsection is peculiar. Normally, if the injury is only to a single extremity, the amount of disability is measured only functionally as a percent of loss of use. This percentage of loss of use is then multiplied by the maximum allowable weeks of compensation set forth in the specific subsections in 85.34(2)(a-r) to arrive at the permanent disability benefit entitlement. These disabilities ISEMAN V. AUTOMATIC SPRINKLER CORP.OF AMERICA Page 6 are termed "scheduled member" disabilities. Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). "Loss of use" 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). For all other injuries, including those involving injuries to the body as a whole, the degree of permanent disability must be measured pursuant to Iowa Code section 85.34(2)(u). However, unlike scheduled member disabilities, the degree of disability under this provision is not measured solely by the extent of a functional impairment or loss of use of a body member. A disability to the body as a whole or an "industrial disability" is a loss of earning capacity resulting from the work injury. Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A physical impairment or restriction on work activity may or may not result in such a loss of earning capacity. The extent to which a work injury and a resulting medical condition has resulted in industrial disability is determined from examination of several factors. These factors include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity, and the length of healing period; the work experience of the employee prior to the injury, after the injury, and potential for rehabilitation; the employee's qualifications intellectually, emotionally, and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and, inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to injury are also relevant. Olson v. Goodyear Service Stores, 225 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963); Peterson v. Truck Haven Cafe, Inc., (Appeal Decision Filed February 28, 1985). Under Iowa Code section 85.34(2)(s), if the industrial disability is partial, then the extent of the permanent disability benefit entitlement is measured only functionally as a percentage of loss of use to each extremity which is then converted by medical opinion into a percentage of the body as a whole and combined together into one body as a whole value. If it is found that the industrial disability is total, or in other words, a total loss of earning capacity is found to have occurred from a loss of two extremities, then claimant is entitled to permanent total disability benefits under Iowa Code section 85.34(3). See Simbro v. DeLong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Burgett v. Man an So Corp., III Iowa Industrial Commissioner Report 38 (Appeal Decision 1982). In the case sub judice, the findings of fact concerning functional impairment mentions that the AMA Guidelines are not the only guidelines considered by this agency in evaluating functional impairments. Division of Industrial Services Rule 343-2.4 (formerly Industrial Commissioner Rule 500-2.4) states as follows: ISEMAN V. AUTOMATIC SPRINKLER CORP.OF AMERICA Page 7 The Guides to the Evaluation of Permanent Impairment published by the American Medical Association are adopted as a guide for determining permanent partial disabilities under section 85.34(2) "aO - "r" of the Code....Nothing in this rule shall be construed to prevent the presentations of other medical opinion or guides for the purpose of establishing that the degree of permanent impairment to which the claimant would be entitled would be more or less than entitlement indicated in the AMA guide. In the case sub judice, it could not be found that claimant had suffered a total loss of earning capacity as a result of the May 1982 injury. Consequently, the extent of claimant's entitlement to permanent disability benefits was measured solely functionally. Based upon a finding of a combined fifty-three percent impairment to the body as a whole as a result of the permanent injuries to two scheduled members, claimant is entitled as a matter of law to 265 weeks of permanent partial disability benefits under Iowa Code section 85.34(2)(s) which is fifty-three percent of the 500 weeks allowable for a simultaneous injury to two extremities in that subsection. ORDER IT IS THEREFORE ORDERED as follows: 1. Defendants shall pay to claimant two hundred sixty-five (265) weeks of permanent partial disability benefits at the rate ISEMAN V. AUTOMATIC SPRINKLER CORP.OF AMERICA Page 8 of three hundred fifty-nine and 12/100 dollars ($359.12) per week from July 4, 1985. 2. Defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for all weekly benefits previously paid. 3. Defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. 4. Defendants shall pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33 (formerly Industrial Commissioner Rule 500-4.33). 5. Defendants shall file activity reports on the payment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1 (formerly Industrial Commissioner Rule 500-3.1). Signed and filed this 27th day of February, 1987. LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Daniel Churchill Attorney at Law 1610 Fifth Avenue Moline, Illinois 61265 Mr. Roger A. Lathrop Ms. Vicki L. Seeck Attorneys at Law 600 Union Arcade Bldg. 111 E. Third Street Davenport, Iowa 52801 1803 Filed: February 27, 1987 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER DALE ISEMAN, File No. 701889 Claimant, R E V I E W - VS. R E 0 P E N I N G AUTOMATIC SPRINKLER CORPORATION OF AMERICA, D E C I S I 0 N Employer, and KEMPER INSURANCE COMPANY, Insurance Carrier, Defendants. 1803 Citing a prior agency precedent, it was held that entitlement to permanent total disability benefits under Iowa Code section 85.34(2)(s) is measured industrially, but if a total loss of earning capacity cannot be found, entitlement to permanent disability benefits is then measured solely functionally using the Simbro v. DeLong's Sportswear standard. However, in the case at bar, a total loss of earning capacity was not found and based upon the uncontroverted views of the treating physician, claimant was awarded disability benefits for a fifty-three percent body as a whole functional impairment as a result of simultaneous injuries to claimant's wrists.