1402, 1803, 3800 Filed April 11, 1988 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER KEN WATSON, Claimant, vs. File No. 726062 GETTY OIL COMPANY, A R B I T R A T I 0 N Employer, D E C I S I 0 N and TRAVELERS INSURANCE COMPANY, Insurance Carrier, Defendants. 1402, 1803, 3800 Claimant, a 46-year-old truck driver at the time of hearing, injured his neck in 1983. He then resumed employment with the same employer without any loss of earnings until the employer's business operations changed and claimant elected to terminate employment with severance pay concurrent with a change in ownership of the company. He subsequently resumed truck driving, but at reduced earnings. It was found that the change in employment was the primary factor in claimant's reduced earnings rather than the physical ailments regarding his neck. He was, however, awarded five percent permanent partial disability. Interest was held to commence at the end of the healing period, pursuant to Teel v. McCord. It was held that, in the event the employer sought to avoid prompt payment, it was necessary to show that the fact of permanent disability could not have been discovered through the exercise of reasonable diligence and that the record in this case did not show reasonable diligence to have been exercised, since defendants had not so much as requested that the doctor state whether any permanency had resulted. BEFORE THE IOWA INDUSTRIAL COMMISSIONER THOMAS E. BUSSEY, Claimant, File No. 726465 vs. A R B I T R A T I O N SATURN TOOL & DIE COMPANY, D E C I S I O N Employer, F I L E D and JAN 17 1990 WEST BEND MUTUAL INSURANCE CO. INDUSTRIAL SERVICES Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Thomas E. Bussey, claimant, against Saturn Tool and Die Company, employer, and West Bend Mutual Insurance Company, insurance carrier, for benefits as the result of an alleged injury that occurred in December 1982, according to the original notice and petition. A hearing was held in Des Moines, Iowa, on April 18, 1988, and the case was fully submitted at the close of the hearing. Claimant was represented by Robert C. Andres. Defendants were represented by John Bickel and Kevin Collins. The record consists of the testimony of Thomas E. Bussey, claimant; Suzzann Bussey, claimant's wife; Thomas J. Harrold, claimant's witness; Reverend Miles M. Grismore, claimant's witness; Jack Hendershot, defendants' witness; Jacques Benoit, employer; Dennis Riter, employer; claimant's exhibits 1 through 14 and defendants' exhibits A through H. Claimant's exhibit 1 and defendants' exhibit C, television video tapes, were placed in the custody of claimant's counsel to be held in safekeeping until all appeal periods have expired. Defendants' exhibits G and H, each of which is a heavy metal object, were placed in the custody of defendants' counsel to be held in safekeeping until all appeal periods have expired. In addition, defendants' counsel was ordered to photograph, describe, weigh and measure exhibits G and H, substitute the photographs with a written description for each of these two exhibits and furnish a copy of the photographs with descriptions to opposing counsel and to the industrial commissioner's file. The deputy ordered a transcript of the hearing. Both attorneys submitted outstanding briefs. PRELIMINARY MATTERS Defendants agreed to two extensions of the posthearing brief date, at claimant's request, but did not agree to claimant's third request for an extension. Claimant's brief is, nevertheless, accepted and was considered in the determination of this case. The reason for asking for briefs is to obtain input before making a decision. Defendants were not prejudiced even though claimant's brief was later than the last agreed upon extension. STIPULATIONS The parties stipulated to the following matters at the time of the hearing: That an employer-employee relationship existed between claimant and employer at the time of the injury. That the type of permanent disability, if the alleged injury is found to be a cause of permanent disability, is industrial disability to the body as a whole. That defendants make no claim for benefits paid prior to hearing under an employee nonoccupational group health plan. That defendants are entitled to a credit for 4 4/7 weeks of workers' compensation benefits paid prior to hearing at the rate of $295.63 per week. That there are no bifurcated claims. ISSUES The parties submitted the following issues for determination at the time of the hearing: Whether claimant sustained an injury in either September 1982 or December 1982, which arose out of and in the course of employment with employer. Whether the alleged injury was the cause of either temporary or permanent disability. Whether claimant is entitled to either temporary or permanent disability benefits, and if so,.the nature and extent of benefits to which he is entitled. What is the proper rate of compensation. Whether claimant is entitled to certain medical benefits. SUMMARY OF THE EVIDENCE Claimant, born October 10, 1945, was approximately 37 years old at the time of the injury and he was 42 years old at the time of the hearing. He is married and has four dependant children. He graduated from high school in 1963. He finished a tool and die apprenticeship and became a journeyman tool and die maker in 1972. He has attended some night classes on general interest subjects and has earned three college credits for a new teacher workshop. He served four years in the navy from October 1963 to November 1967 as a machinists mate in the engine room and received an honorable discharge. He served in combat in Viet Nam and received several awards and decorations for his service. His first employment after he left the navy was as an apprentice tool and die maker and all of his past employments have been tool and die work for a number of employers and he has worked for some of them more than once. Claimant started working full time for employer in June of 1979. He had worked there part-time before that because he had become a friend of the two owner-employers who are partners, Jacques (Benny) Benoit and Dennis Riter, while working in other shops before they opened their own business. Claimant denied any prior injuries to his back, neck or shoulder, except one minor injury to his low thoracic spine in 1977 or 1978 while working for another employer. On that occasion he saw the plant physician and performed light duty for two days. He lost no time from work and was not paid workers' compensation benefits. It did not affect his ability to do his job after that. Claimant testified that he first started to experience pain from his job at the end of September 1982, or the first part of October, while working on a rotary table (transcript pages 69 & 70). The work orders showed claimant had 94 1/2 hours on the rotary table from August 25, 1982 until September 24, 1982 (exhibit 5, pages 1-5). Claimant explained his injury was caused by building fixtures out beyond the rotary table for long periods of time (tr. p. 73). Claimant could not recall the dates, but stated that he first experienced pain between his shoulder blades where his neck starts and he fatigued easily while performing these job orders and doing these operations. He added,that he erroneously testified in a deposition given in September of 1985 that the injury occurred in December of 1982 (tr. pp. 81 & 82). A video tape was then shown by claimant of Thomas J. Harrold milling on a rotary table (ex. 1). Claimant related that pain just appeared between his shoulder blades during the long tedious process of standing there and cranking the table (tr. p. 86). Claimant testified the video accurately depicted the job he was doing and the amount of exertion performed when the injury occurred (tr. p. 86). These were rough cuts which required more exertion and the use of both hands (tr. pp. 88 & 89). It takes a lot of pressure to turn the crank and push the drill (tr. pp. 90 & 91). At first, claimant did nothing about it thinking it would go away, but instead it got worse and worse (tr. p. 93). Claimant estimated he reported the pain to his employers in November and that he first sought treatment with O.D. Bacon, D.C., on November 18, 1982, for pain in his upper shoulder from working long hours (tr. pp. 91-97). Dr. Bacon treated claimant on November 18, 1982, for aching across his back and shoulder, stiff muscles, really sore this week, some before. On January 2, 1983, Dr. Bacon recorded returned, lame, interscapular space and lower dorsal and lumbar area. In the course of claimant's treatment on four different dates, November 18, 1982; December 1, 1982; December 6, 1982 and January 3, 1983, Dr. Bacon manipulated his cervical, dorsal and lumbar area (ex. 6). Claimant identified the location of his pain as D1, D2, D3 at the base of the neck between his shoulder (tr. p. 99). Claimant discussed his problem with Riter in January of 1983. On Riter's recommendation, claimant saw Benjamin R. Walter, D.C. Claimant testified that Riter had claimant complete a first report of injury and told claimant to show the injury date as December 1982. Benoit suggested to claimant that he take a couple of weeks off and get himself healed. Claimant related this to Dr. Walter and the doctor took him off work. Also, at Riter's suggestion, claimant saw his family physician, John W. Keiser, M.D. Dr. Keiser reported he saw claimant on February 4, 1983 for back complaints with a month's history after using the rotary table. Dr. Keiser noted that his posture demonstrated slumping of the upper shoulders and neck. Claimant was examined and released without any medications prescribed (ex. 7, pp. 6- 8). On a report, Dr. Keiser showed an injury date of "12-82" and described, "Low back pain started after he had to use a rotary table in part of his work, this necessitated alot [sic] of extra turning with the arms. [L]ow back pain, stiffness of the upper shoulder girdle." (ex. 7, p. 1). Dr. Walter's records show an injury date of "12-82" and described, "pain between shoulders just gradually developed and got worse especially while executing one particular job." (ex. 8, p 1). He diagnosed intervertebral neuritis. He saw claimant several times each month beginning on January 10, 1982 until "patient discontinued treatment" on July 25, 1983. He took claimant off work on February 2, 1983, and returned him to work on March 7, 1983, but continued to give treatments through July 25, 1983. Dr. Walter said, "In my opinion the condition is a result of his work. There was a fixation of the second and third dorsal vertebrae." (ex. 8, p. 4). On June 14, 1983, Dr. Walter said, "I expect full, recovery and plan to release him very soon if we get a favorable check on his next visit or two." On the same date he reported, "... an unrelated complaint of back pain at this time which was caused by playing with his son." (ex. 8, p. 9). He anticipated no permanent disability (ex. 8, pp. 13 & 14). He checked a block on a medical form to indicate that work exposure directly caused the disability (ex. 8, p. 2). Claimant said that when he returned to work on March 7, 1983, pursuant to Dr. Walter's release, that he was terminated by employer. Claimant testified that when he did not get well under chiropractic care he acceded to the insurance representative's repeated requests to see an orthopedic surgeon, Martin F. Roach, M.D. (tr. p. 107). Dr. Roach postponed his appointment for a month and claimant wanted help so he went to see Dale G. Phelps, M.D., another orthopedic surgeon, at the suggestion of Dr. Keiser (tr. p. 108). Dr. Phelps examined claimant on August 10, 1983, and took x-rays of the cervical and lumbar spine. On July 17, 1984, Dr. Phelps said, "By history it was felt that this probably was a cervical strain which was definitely work related. He also had a lumbar disc syndrome which was not definitely work related." (ex. 11, p. 3). On May 16, 1985, Dr. Phelps wrote to claimant's counsel, "I have reviewed Mr. Bussey's Veterans Administration chart and I feel that his surgical treatment was, in fact, for the same problem which I was seeing him for which was neck and shoulder pain, and which I felt was job related." (ex. 11, p. 4). On August 12, 1985, Dr. Phelps wrote to claimant's counsel that he saw claimant again that day and assessed a "... permanent disability of approximately 20 percent of the whole body as he has persistent pain, numbness and some weakness following the anterior cervical fusion." (ex. 11, p. 5). This entry appears in Dr. Phelps' office notes under the date September 3, 1985: Conference with Atty. Bickel. Was shown a tape of the rotary machine which Mr. Bussey was reported to be working on when he injured himself. This was major lifting. He was lifting about a 20-25 lb. piece of equipment to about shoulder level and manipulating it. This was not done repetitively but once every four or five hours. I did tell the lawyer that I did not feel this was a probable cause of this sort of disability but was a possible cause. (ex. 11, p. 12) Dr. Phelps' wrote this letter to defendants' counsel on October 10, 1985: On 9-3-85 I reviewed a videotape showing the type of machine Mr. Bussey was reportedly working on when he injured his neck and arm. This was not an extremely heavy piece of equipment and did not require repetitive lifting. After viewing this film, with the film depicting the type of work, I think that I could state with a fair degree of medical certainty that this is an unlikely cause of the patient's illness, that is, it is not a probable cause. There is always a chance that this could be caused by such an activity but it is unlikely. (ex. 11, p. 7) On April 2, 1987, Dr. Phelps wrote this letter to claimant's counsel: On March 25, 1987, I viewed a videotape which according to Mr. Bussey accurately reflected the work activities which he was performing at the time he noticed onset of his symptoms. It is my opinion that the work activities shown would be the probable cause of pain and disability which led to Mr. Bussey seeking my advice on August 10, 1983. It also is the reason why he sought further treatment including an anterior cervical fusion on November 27, 1984. (ex. 11, p. 8) On July 10, 1987, Dr. Phelps wrote this letter to defendants' counsel: In response to your letter dated June 30, 1987, if I assume that Mr. Bussey first experienced pain in December 1982 and assume that the work performed by Mr. Bussey on the rotary table depicted on the video tape was performed more than 2 1/2 months prior to the onset of pain, furthermore, I assume there was no pain experienced by Mr. Bussey from the date of use of the rotary table in September until the onset of pain in 1982, it would be my opinion that the neck and back pain which Mr. Bussey complained of were probably unrelated to the use of the rotary table. That is to say, that Mr. Bussey did not use the rotary table from that period 2 1/2 months prior until the onset of pain. (ex. 11, p. 9) Dr. Roach saw claimant on August 25, 1983 and gave this history: He was working on a rotary table cranking it with his arms. He indicates that the forces were quite large as the item was being cut on the milling machine. Subsequent to that he developed back pain starting in the interscapular region and back of the neck and subsequently involving the lower lumbar spine more on the right than on the left....Patient does not have any significant neurologic complaints involving the upper or lower extremities." (ex. 10, p. 2) Dr. Roach said claimant has high arches which may be causing his lower back pain, but purchased well fitting high arched boots to remedy this situation. He said claimant was somewhat overweight. He gave this conclusion: IMPRESSION: Residuals of mild dorsal scoliosis with degenerative changes of the disc spaces mentioned including D-8, 9, D-5, 6, D-4, 5 on the right side. I would say this process has probably been long standing, [sic] may have been aggravated by the type of maneuver he was performing that week in December....We addressed the question regarding aggravating a pre-existing condition and that is probably what the case is here regarding his dorsal spine. (ex. 10, p. 3) Dr. Roach suggested weight reduction, a good exercise program and anti-inflammatory medication. He also gave claimant two prescriptions for physical therapy (ex. 10, pp. 3 & 4). He said claimant's healing had plateaued when he saw him and that he anticipated no permanent disability as a result of this aggravation (ex. E, p. 3). Claimant contended that Dr. Roach only spent 15 minutes with him and that he did not sign the prescriptions for physical therapy. Claimant said there was no follow-up on Dr. Roach's instructions (tr. pp. 111-114). Dr. Roach examined claimant again on May 21, 1984 and found he was essentially unchanged since his previous examination. He encouraged claimant to get his legal situation settled and to consult the Veteran's Hospital with regard to his lower back complaints. He found no permanency. His scoliosis is not work related. He indicated that his tests showed his condition was of a nonorganic etiology (ex. E, pp. 5 & 6). Claimant contended he was unable to work from March 1983 up until he saw Dr. Roach on August 25, 1983, and that he received no more medical treatment to enable him to return to work after seeing Dr. Roach (tr. p. 114). Claimant said the pain was not always in the same place. It moved up and down his spine. Vibration like mowing the lawn would affect his upper back which in a day or two would affect his lower back. He said he could not mow or rake the yard, but walked three miles at night for exercise. Claimant's attorney set up an appointment for him with Arnold E. Delbridge, M.D., an orthopedic surgeon, on January 24, 1984. Unemployment compensation had run out and Dr. Delbridge signed a statement so he could get incapacitated parent payments (tr. p. 117). Dr. Delbridge reported on the January 24, 1984 examination on February 27, 1984. He adopted the same history used by Dr. Roach and Dr. Phelps of a December 1982 rotary table injury of pain between his shoulder blades. He said his x-rays and findings were similar to Dr. Roach and Dr. Phelps except claimant had some minor loss of motion in both the cervical and lumbar spine which indicate a 6 percent impairment of the thoracolumbar spine and also a 2 percent impairment of the whole man considering the cervical area. He suggested physical therapy including a neuroprobe and possibly a trial of a TENS unit to reduce his symptomology. He said claimant's complaints were consistent with his description of the December 1982 accident (ex. 12, pp. 1-3). On November 4, 1985, Dr. Delbridge wrote to defendants' counsel that the work on the rotary table would correlate with claimant's mid and upper back complaints, but he did not think they would be delayed a period of months. He said, "Certainly there could be a delay of a day or two or even a week or two after the machine was utilized but certainly not a two or three month delay." (ex. 12, p. 4). On May 23, 1987, Dr. Delbridge wrote to claimant's counsel that after seeing that Dr. Bacon treated claimant on November 18, 1982, brought the treatment closer to September 1982 and makes it "... more likely, and even probable, that Mr. Bussey's injury was due to his operation of the machine in question, in September of 1982." (ex. 12, p. 5). Claimant said that neither Dr. Roach, Dr. Phelps or Dr. Delbridge were allowed to provide treatment for him and his condition continued to get worse, depression set it, and he was without hope. The insurance company had him see Dr. Roach again, but he did not receive any treatment. He had trouble with his leg, his back and had difficulty either standing or sitting (tr. pp. 118 & 119). Claimant said he didn't think he could work, but tried to find work anyway. He received ADC and food stamps and they subtracted his wife's part-time wages from the ADC. He was three years behind on his real estate taxes and six months behind on his house payment and they were going to repossess his home. Claimant said he was not physically able to do his own job duties, but he would have done them anyway (tr. pp. 120 & 121). Next claimant went to the Veteran's Hospital where he gave the same history of the rotary table and an onset of pain in December of 1982. They took a CAT scan, myelogram and an EMG. The myelogram showed a problem at C5, C6; surgery was performed; and he got relief from his symptoms. Claimant denied that he had been in any accidents or other situations that could have injured his neck, shoulder or back after he left employer up to the time of the surgery (tr. pp. 122-127). Claimant returned to work in March of 1985 making molds at $6 per hour and got raised to $8 per hour. He changed jobs in January 1986 to return to tool and die making at $12 per hour and he kept that job until August of 1987. He was able to perform these jobs except they made him tired and he had some kinks in his back (tr. pp. 128-134). Claimant then took a job at Hawkeye Institute of Technology as a tool and die instructor because it was less fatiguing and it was an opportunity where he could use his brains rather than his upper and lower back. Claimant stated a number of times that he would first feel pain in his upper back and in a few days it would then be in his lower back. He was earning $13.40 per hour when he left his last tool and die maker job (tr. pp. 135 & 136). Teaching pays less and is only for nine months. He hopes to do tool and die work in the summer and may return to it in the fall (tr. pp. 137 & 138). Claimant was admitted to the Veteran's Administration Hospital from October 31, 1984.to November 7, 1984 and again from November 26, 1984 to December 5, 1984. His diagnosis was cervical spondlysis. A cervical myelogram was performed on November 2, 1984 and a thoracal lumbar myelogram was performed on November 5, 1984 (ex. 14, pp. 1 & 11). Patrick Hitchon, M.D., assisted by Marshall Poor, M.D., performed an anterior interbody cervical fusion at C5, 6 on November 26, 1984. The surgeon commented that claimant's condition was of a chronic and longstanding nature (ex. 14, pp. 11, 32, 33). Dr. Hitchon indicated claimant was able to return to work in March of 1986 (ex. 13, p. 1). Neither Dr. Hitchon nor Dr. Poor commented on causal connection of claimant's condition to his work (exs. 13, p. 1; 14, p. 32). Joseph M. Doro, D.O., a neurosurgeon and an evaluator for claimant, did not examine claimant personally, but only his records, and wrote these conclusions to claimant's counsel on November 3, 1987: I have reviewed the medical records regarding Thomas E. Bussey. I have formed an opinion based upon a reasonable degree of medical certainty regarding the need for the surgery that Mr. Bussey underwent as well as for the resulting physical impairment as set forth by Dr. Phelps. My opinion is based upon the assumption that his symptoms arose during September of 1982 and had persisted to the degree that it was necessary for him to be seen by Dr. Bacon in November. I feel that Mr. Bussey's difficulties were due to his activities of September, 1982 when his symptoms first appeared. (ex. 13, p. 3) Dr. Doro then wrote to defendants' counsel on February 2, 1988: This is in regards to your letter of January 26, 1988 regarding Thomas E. Bussey. As you remember, as you indicated in your letter, I previously rendered an opinion regarding Mr. Bussey with the assumption that his symptoms arose during September of 1982. At this time, you are asking me to assume a different date of onset of his symptoms in rendering an opinion. Based upon a scenario in which his symptoms began during the week of November 8, 1982, approximately seven weeks after the last time he worked on the rotary table, my opinion, based upon a reasonable degree of medical certainty, would be that his pain was not due to his working on the table. Again, I need to emphasize that this is an assumption based upon his symptoms having developed in November. Before, as you know, I have assumed that his symptoms had developed in September of 1982. (ex. 13, p. 4) Claimant's direct testimony concluded as follows: Q. Dr. Phelps in his July 10, 1987, medical report indicated that -- *** Q. -- indicated that your neck and back pain were probably unrelated to the use of the rotary table if you did not use the rotary table from that period two-and-a-half months until the onset of pain. Was it two-and-a-half months before you had an onset of pain? A. No. Q. When was your onset of pain? A. During the time I used the rotary table. I didn't recognize it as pain. I recognized it as stiffness of muscle. The pain didn't come, I mean actual per se pain. General weakness. I could not lift a gallon of milk to pour it at the table so I would prop my arm up on it. The general pain per se didn't happen until December, late November, early December, if you're talking about physical pain. (tr. pp. 140 & 141) Claimant conceded that he completed the portion of the first report of injury which shows that the injury date was December 1982. He said it is his handwriting which states employer first knew of the condition "right away". (tr. pp. 143 & 144). Claimant granted that when he saw his family physician, Dr. Keiser, in February 1983, that he told Dr. Keiser that he hurt his back about a month ago and that could mean December of 1982 and that Dr. Keiser also shows December 1982 as an injury date (tr. pp. 145-151). Claimant agreed that he told Dr. Walter that he was injured in December 1982 (tr. pp. 151 & 152). Claimant acknowledged that in his deposition that he said the injury occurred in December 1982 (tr. pp. 158 & 159). Claimant said he did not recall the date he first experienced pain, but he recalls it by what job he was doing at the time it occurred (tr. p. 161). Claimant agreed that he collected unemployment compensation after he was laid off in March 1983 until February 1984 and that in order to do so he represented that he was able and available for work (tr. pp. 168 & 189). Claimant admitted that he snow skied after the onset of shoulder pain in the winter of 1982-83 (tr. pp. 169 & 190). Claimant admitted that his first job after his surgery was more physical than the one he performed for employer and that he lost no time from work on account of it (tr. pp. 170 & 171). Claimant again said that working on the rotary table was the job where he experienced trouble and that all of his time during that period was not spent on the rotary table (tr. pp. 178 & 179). Claimant said he got a lawyer when his workers' compensation check in March was marked final and he was released by Dr. Walter to return to work (tr. p. 182). Claimant said that when the doctors asked him when he felt discomfort he related it to when he was running the rotary table (tr. p. 185). Claimant admitted that he made about 15 picture frames while he was off work and it bothered his shoulder, but he could walk away from it when it hurt (tr. pp. 170 & 190). Suzzann Bussey testified that claimant had always been healthy. In the fall of 1982, his neck and shoulder hurt. She did not recall the precise date or any specific event. She estimated it was four to six weeks before he saw Dr. Bacon. It was continuous from the time it started until the surgery. She took employment in December 1983 part-time as a secretary. She said her husband became very depressed and Dr. Keiser suggested psychiatric treatment, but instead claimant went to the VA hospital. His recovery from the surgery was very difficult and beginning work again was exhausting for him. Claimant no longer blows snow, mows or rakes the yard because vibrations are too hard on his body. He told her his pain started while working on the rotary table. She had no explanation why the doctor's notes did not mention claimant's back and neck pain when Dr. Keiser saw claimant different times in 1983 and 1984. Thomas Harrold testified he is a machinist who worked with claimant after the surgery. Claimant was slow when he started, but improved greatly as he went along. He was the machine operator in claimant's video (ex. 1). It was a large cut and it took a good amount of pull to drill that. It was a strain. He indicated there are several ways to do this job. The demonstrated way is not necessarily the most efficient way. It is the method one might use to do the job quickly. Harrold watched defendants' video, exhibit C. A different machine was used and a different method of doing the same jobs. Miles Grismore testified he is claimant's pastor. He is aware claimant had a general back problem and later developed financial problems. He seemed better after the surgery, but not as good as he was before the injury. Jack Hendershot, operator of H & H Tool and Die, hired claimant to perform tool and die work in January 1986 without any restrictions or limitations due to a neck or back problem. He never learned of any back problems while claimant worked for him. Later he heard he had a back problem. Claimant was punctual for work and lost less time than the average employee. Jacques (Ben, Benny) Benoit testified that he is one of the owners of employer business. He was a personal friend of claimant and knew him socially. He never placed any time constraints on claimant, but it is understood that a job is to be done as quickly as possible. The year 1982 was a bad year. He indicated claimant should have used a saw or a milling machine instead of making such a large cut. He testified that all of the rotary table work was done in September 1982. Benoit said claimant was not rehired in March 1983 because he did not get along with other employees, he was careless with equipment and due to poor workmanship some of his work had to be redone. Claimant also had emotional problems that he refused to discuss. In September 1982, claimant did not say he was hurt. The witness first learned that claimant's back was hurting in December 1982 and that it was possibly due to running the rotary table. Benoit said that claimant's attitude became bad about a year before December 1982 and he also noticed it at the time of a wage cut on July 1, 1982. When claimant said his back was sore, Benoit said that he did not discuss it with him or ask him any questions on when or how it may have happened. Dave Riter is the other co-owner of the employer's business. They have eight employees. He and Benoit.had known claimant for several years and they had all been coemployees at a number of other tool and die companies. Claimant started to work for employer in 1979. He was their first employee. He observed claimant's video and he felt the job was not being done the most efficient way and he thought there was a certain amount of acting to show how tough it was. He also stated that in his opinion claimant was careless with equipment. He recalled that claimant complained about his back and Riter recommended Dr. Walter and instructed claimant to make a first report of injury. He indicated claimant was not rehired in March 1983 because other employees complained of having personal difficulties with claimant. Claimant did not report an accident. He felt the problem came on gradually. He could not remember whether claimant related it to work or otherwise. He thought claimant's video was exaggerated. He agreed that the operation claimant was performing could strain the body. Claimant agreed that the Veteran's Hospital examined and treated his lower back as well as his upper back. Claimant said that his problems occurred while working on the balance fixture job for John Deere and three separate jobs for Walker Manufacturing (tr. p. 345; exs. 5 & B). He said he has consistently complained to all physicians that he had pain between his shoulder, weakness in his arms, and that if, "...I exaggerate the upper, my lower back starts giving me trouble..." (tr. p. 346). Claimant replied that he used the rotary table because one of the parts called for a shoulder and another part called for a dish. He said defendants' video used a heavier machine, more solid, that has double locks on it and the knees are bigger. It was not representative of what he was doing when his trouble began. He did not think defendants' video took an actual cut because no chips flew off when they did it (tr. pp. 354 & 355). Benoit testified that both machines were substantially the same (tr. pp. 360 & 361). Defendants contend that if claimant was entitled to assert a September 1982 injury date, just prior to hearing, then they were entitled to assert an Iowa Code section 85.23 defense. APPLICABLE LAW AND ANALYSIS 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(1). Claimant has the burden of proving by a preponderance of the evidence that he received an injury in September 1982 or December 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). Claimant did not sustain the burden of proof by a preponderance of the evidence that he sustained an injury which arose out of and in the course of his employment in either September 1982 or December 1982. The petition alleged December 1982. At hearing, claimant repeatedly testified that his problem arose while working on the rotary table. He related that he worked on the rotary table when he performed the John Deere job on balance fixture and the three jobs for Walker Manufacturing. Both claimant's evidence (ex. 5) and defendants, evidence (exs. A & B), the job work orders, show that claimant worked on these jobs between August 25, 1982 (exs. 5, p. 1; A, p. 1; B-1, p. 1) and September 24, 1982 (exs. 5, p. 4; A, p. 10; B-3, p. 1). Claimant reported to all of the physicians that the injury occurred in December 1982, but at hearing he clarified that he first noticed difficulty while working on the rotary table, which was between August 25, 1982 and September 24, 1982. Claimant's testimony clearly presents a dilemma. Claimant resolved this dilemma at hearing by testifying that he had stiffness and weakness when he worked on the rotary table, but, "The pain didn't come, I mean the actual per se pain... The general pain per se didn't happen until December, late November, early December, if you're talking about physical pain." (tr. pp. 140, 141). Claimant's explanation is accepted. He experienced stiffness and weakness in September, but he experienced actual pain in December. Dr. Phelps, who was claimant's own choice of physician through his family physician Dr. Keiser, stated in the last report on July 10, 1987, that if the pain occurred two and one-half months after he used the rotary table, then it was unrelated to the use of the rotary table. (ex. 11, p. 9). Dr. Delbridge, who is also claimant's choice of physician at his attorney's request, said on November 4, 1985 that a delay of a day or two or a week or two was acceptable, but not a two or three month delay (ex. 12, p. 4). Later, on May 23, 1987, Dr. Delbridge said that since Dr. Bacon treated claimant on November 1982, that brought the treatment closer to September 1982 and, "... makes it much more likely, and even probable, that Mr. Bussey's injury was due to his operation of the machine in question, in September of 1982." (ex. 12, p. 5). However, Dr. Delbridge's last opinion must be discounted because claimant did not report a job related problem to Dr. Bacon. Dr. Bacon said claimant's condition was the common among working people, but indicated that claimant did not say it was work related or he would have made a,record of it. Furthermore, the treatments administered to claimant by Dr. Bacon were not limited to the area between his shoulder blades, but rather included his cervical, thoracic and lumbar spine (ex. 6). Furthermore, Dr. Delbridge's reports contradict each other (ex. 12, pp. 4 & 5). Claimant reported to Dr. Keiser, his personal physician, on February 4, 1983, that he had back pain of one month's duration from working on the rotary table (ex. 7). This is an irreconcilable dilemma again. The hearing testimony of claimant was that the actual pain occurred in December 1982 (tr. pp. 140 & 141). Dr. Doro, after examining all the records, assumed that claimant had continuing pain from September 1982 until he saw Dr. Bacon and concluded his work was the cause of his surgery.and physical impairment. However, he retracted this later and said that if claimant experienced his pain symptoms in November 1982, then it was not due to working on the rotary table (ex. 13, pp. 3 & 4). Dr. Roach found that claimant had dorsal scoliosis and degenerative disc changes. He suggested there may have been a temporary aggravation of a preexisting condition, but Dr. Roach was working on the incorrect premise that claimant was working on the milling machine (rotary table) in December 1982. He examined claimant on two different occasions and found no permanent injury. He said his tests showed claimant's condition was of a nonorganic etiology and suggested that he get his legal situation settled (ex. 11, p. 3; ex. E, pp. 5 & 6). Dr. Roach's testimony did not prove that claimant sustained a work-related injury from the rotary table because claimant had not worked on the rotary table since September 24, 1982. Dr. Poor and Dr. Hitchon, who treated claimant at the Veteran's Hospital and performed surgery, did not give any testimony on whether claimant sustained a work injury. On the contrary, their comments in the written material that they dictated indicated claimant's condition was long-standing and chronic. (ex. 13, p. 32). Dr. Walter first saw claimant on January 10, 1983 for pain between the shoulders while "executing one particular job" (ex. 8, p. 1). Dr. Walter was the first physician to record that claimant attributed his back problem to work. Claimant said the rotary table was the job that caused his injury, however, he last worked on the rotary table on September 24, 1982., some three months earlier. The fact that claimant received workers' compensation benefits for the period of time he saw Dr. Walter in February and March 1983, "does not constitute an admission of liability" Iowa Code section 86.13, first unnumbered paragraph. Therefore, after reviewing the evidence from Dr. Bacon, Dr. Walter, Dr. Keiser, Dr. Phelps, Dr. Roach, Dr. Delbridge, Dr. Poor, Dr. Hitchon, and Dr. Doro, no evidence can be found to sustain the fact that claimant sustained an injury at work in either September 1982 or December 1982. There is much evidence that claimant's problem is degenerative. Dr. Keiser said claimant demonstrated posture of slumping of the upper shoulders and neck. In addition to kyphosis, Dr. Roach recorded thoracic scoliosis, overweight and high arches. Dr. Poor and Dr. Hitchon described chronic and long-standing back problems in both the cervical and lumbar areas. Claimant still suffers with untreated lumbar disc problems not related to this injury. Degenerative problems have been discussed and treated at all levels of his spine by the various doctors. Claimant testified that the pain moved up and down his spine. He said several times that if his upper back was aggravated, that it moved to his lower back a few days later. Vibrating from the mower and snow blower aggravates his back and prevents him from using them. Since claimant did not sustain the burden of proof by a preponderance of the evidence an injury in either September 1982 or December 1982, then all other issues such as causal connection of the injury to disability, entitlement to temporary and permanent disability benefits, entitlement to medical expenses, the proper rate of compensation and whether claimant gave proper notice as required by Iowa Code section 85.23 are moot. FINDINGS OF FACT Wherefore, based upon the evidence presented, the following findings of fact are made: That claimant testified that he sustained an injury while working on the rotary table. That the work orders showed claimant worked on the rotary table from August 25, 1982 through September 24, 1982. That claimant testified that he first experienced actual pain in December 1982. That Dr. Phelps and Dr. Doro testified that if he worked on the rotary table in September 1982 and he first experienced pain in December 1982, that his pain was not caused by work on the rotary table. That Dr. Bacon, who saw claimant on November 18, 1982 and subsequently treated his entire spinal column, did not make any note of the fact that claimant reported a work injury. That Dr. Walter, who thought claimant had sustained a work injury, was not aware of the fact that claimant had worked on the rotary table some three months before the onset of actual pain. That Dr. Delbridge's opinion must be discounted because he did not know that claimant did not report a work injury to Dr. Bacon. Therefore, Dr. Delbridge's last opinion (1) proceeds on a false premise and (2) contradicts his earlier opinion, that a delay of a day or two or even a week or two was reasonable, but certainly not a two or three month delay. That Dr. Poor and Dr. Hitchon, the operating surgeons, did not give an opinion on causal connection between claimant's employment and the injury. That there is evidence of kyphosis, scoliosis and degenerative disc disease at all levels of claimant's spine that is chronic and long-standing. That there is evidence of overweight, high arches and symptoms of generalized degenerative spine disease. That claimant did not sustain an injury in September 1982 or December 1982 which arose out of and in the course of claimant's employment with employer. CONCLUSIONS OF LAW Wherefore, based on the evidence presented and the foregoing principles of law, the following conclusions of law are made: That claimant did not sustain the burden of proof by a preponderance of the evidence that he sustained an injury in either September 1982 or December 1982, which arose out of and in the course of employment with employer. That all other legal issues are moot in view of the foregoing findings of fact and conclusions of law. ORDER THEREFORE, IT IS ORDERED: That no amounts are owed by defendants to claimant. That the costs of this action are taxed to claimant, except the cost of the transcript, which is taxed to defendants pursuant to Division of Industrial Services Rule 343-4.33. That defendants are to photograph, weigh, measure and describe exhibits G and H, as they were ordered to do at the time of hearing, but failed to do since the hearing, and submit copies of the photographs, descriptions, weights, and measurements of exhibits G and H to claimant and to the industrial commissioner's file. That defendants respond to the requests of this agency for claim activity reports pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 17th day of January, 1990. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert Andres Attorney at Law 616 Lafayette St Waterloo, IA 50704 Mr. John Bickel Mr. Kevin Collins Attorneys at Law 500 Merchants National Bank Bldg Cedar Rapids, IA 52406 51106; 51108.50; 51400; 51402.20; 51402.30; 51402.40; 51402.60; 52206 52209 Filed January 17, 1990 Walter R. McManus, Jr. BEFORE THE IOWA INDUSTRIAL COMMISSIONER THOMAS E. BUSSEY, Claimant, vs. File No. 726465 SATURN TOOL & DIE COMPANY, A R B I T R A T I 0 N Employer, D E C I S I 0 N and WEST BEND MUTUAL INSURANCE CO. Insurance Carrier, Defendants. 51106; 51108.50; 51400; 51402.20; 51402.30; 51402.40; 51402.60; 52206; 52209 Claimant did not sustain the burden of proof by a preponderance of the evidence that he sustained an injury that arose out of and in the course of employment with employer in either September of 1982 or December of 1982. Claimant told most of the doctors (8 of them) that his injury occurred in December of 1982. He testified he could not recall the date of the injury, but it occurred when he worked on the rotary table. Employer's records showed that claimant worked on the rotary table from August 25, 1982 until September 24, 1982. Each doctor's testimony was summarized and discussed and it was demonstrated that no doctor could be found out of eight of them who supported the fact that claimant sustained a job-related injury in either September 1982 or December 1982. There was evidence that claimant had kyphosis, dorsal scoliosis, degenerative disc disease at all levels of his spine, high arches for which he was prescribed special boots, nonorganic etiology for his symptoms and that he was overweight. BEFORE THE IOWA INDUSTRIAL COMMISSIONER DANIEL W. TUTOR, Claimant, vs. FILE NO. 727100 COOPER PLUMBING, A R B I T R A T I 0 N Employer, D E C I S I 0 N and STATE FARM INSURANCE, Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Daniel W. Tutor, claimant, against Cooper Plumbing, employer (hereinafter referred to as Cooper), and State Farm Insurance Company, insurance carrier, for workers compensation benefits as a result of an alleged injury on February 21, 1983. On December 28, 1987, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. Oral testimony was received during the hearing only from claimant. The exhibits received into the evidence at the hearing are listed in the prehearing report. According to the prehearing report, the parties have stipulated to the following matters: 1. On February 21, 1983, claimant received an injury which arose out of and in the course of employment with Cooper. 2. Claimant's rate of weekly compensation in the event of an award of weekly benefits from this proceeding shall be $226.80 per week. 3. Claimant is entitled to healing period benefits from February 21, 1983 through November 2, 1983. 4. The alleged injury was a cause of permanent disability. 5. The type of disability is an industrial disability to the body as a whole. 6. Permanent disability benefits shall begin as of November 2, 1983. TUTOR V. COOPER PLUMBING Page 2 7. All requested medical benefits have been or will be paid by defendants. ISSUE The only issue submitted by the parties for determination in this proceeding is the extent of claimant's entitlement to weekly benefits for permanent disability. SUMMARY OF THE EVIDENCE The following is a summary of evidence presented in this case. For the sake of brevity, only the evidence most pertinent to this decision is discussed. Whether or not specifically referred to in this summary, all of the evidence received at the hearing was considered in arriving at this decision. As will be the case in any attempted summarization, conclusions about what the evidence offered may show are inevitable. Such conclusions, if any, in the following summary should be considered as preliminary findings of fact. The claimant is 42 years of age with a high school education. His work history was not in dispute at the hearing. Claimant testified he has been employed in the plumbing trade all of his adult life. Following graduation from high school, claimant completed a five year plumbing apprenticeship program and became a journeyman plumber in 1969. He eventually became a master plumber and currently holds a journeyman and master certificate or license issued by the City of Des Moines, Iowa. Claimant initially worked for Reliable Plumbing until 1971 when he was injured at Reliable while attempting to lift a jackhammer. Claimant testified that he did not return to Reliable after his recovery from the work injury and began working for Cooper. Claimant remained at Cooper until the alleged work injury in this case. Claimant said that his work at Reliable was much easier than his work at Cooper because he was always assisted by a plumber's helper at Reliable and the work for Reliable usually involved new residential construction rather than remodeling work which is primarily the work he performed at Cooper. Claimant explained that new construction was less strenuous than remodeling work because of the type of materials involved and the much heavier tools needed for remodeling. However, claimant stated that his prior plumbing work before the 1983 injury involved all aspects of plumbing from rough to finish work including extensive digging and "busting" of concrete material. Such work did require claimant to perform heavy lifting and frequent climbing, reaching and bending. Claimant testified at the time of the 1983 injury at Cooper, his gross weekly earnings was $350.00 per week plus a commission "now and then.O The work injury while working for Reliable in 1971 resulted in "laminectomy" back surgery. Claimant testified that he fully recovered from this surgery and returned to work as a journeyman plumber for Cooper which he said, as stated above, was much more physically demanding work. Claimant stated that he actually was surprised how well he did after the 1971 surgery. Claimant said that he worked for Cooper full time for 11 years without back problems. TUTOR V. COOPER PLUMBING Page 3 The facts surrounding the work injury in this case were again not in dispute. Claimant testified that on February 21, 1983, he and his helper were attempting to carry a heavy shower base unit at a Cooper construction site and the helper allowed the full weight of the unit to drop on claimant's back. Claimant said that he immediately sought treatment for a low back pain radiating into the left leg from John T. Bakody, M.D., a neurosurgeon. After a myelography test revealed a herniated disc and the necessity of further surgery on claimant's back, claimant underwent a second lumbar laminectomy on March 2, 1983. However, claimant testified that this time he did not fully recover after this surgery. Claimant was released to return to work in November, 1983. Despite this release, Dr. Bakody recommended that claimant restrict the use of his back. After his release to return to work, claimant could not return to the employ of Cooper as Cooper had sold his business during claimant's absence. Claimant stated that he worked approximately two months for the new owner but was not able to actually perform plumbing work due to lingering back problems. Claimant said that the new owner only hired him because he needed claimant's master's certificate to work on Des Moines construction projects. Claimant apparently was then terminated from this employment because the new owner needed a working foreman and claimant was physically unable to perform the usual duties of a plumber. Claimant testified that he felt at that time that the only way he could return to plumbing work was to start his own plumbing business and contract out the physical labor involved. Claimant then began his own business, called D & E plumbing, and continues in this business enterprise at the present time. This business operation involves general contracting for small construction projects to remodeling residential houses under federal assistance programs. Claimant said that he is unable to contract for larger projects due to the lack of collateral to obtain the necessary business loans. Claimant said that he subcontracts out all of the physical plumbing labor work and performs no physical work himself. Claimant simply acts as a middle man. Claimant's wife is his bookkeeper. She receives no salary. Claimant stated that he solicits work, prepares and presents bids and monitors the work of the subcontractors. Claimant's business, however, is not very profitable as compared to his earnings at Cooper. According to schedule C of claimant's income tax returns, claimant suffered a $200.00 loss in 1984, a $4,500.60 profit in 1985 and a $9,324.00 profit in 1986. Claimant said that his profit in 1987 will consist of approximately the same amount that he earned in 1985. Defendants in cross-examination pointed out that claimant's gross earnings before deductions in his business ranges from $44,000 to $71,000 annually and that a substantial portion of the claimed business expenses involved non-cash expenses such as depreciation. Claimant was last seen by Dr. Bakody on August 4, 1987. At that time, Dr. Bakody agreed with claimant's self-assessment of his limitations which restricted his ability to return to full plumbing duty. Claimant had said that he is unable to walk for prolonged periods of time and he is unable to lift heavy objects or perform frequent lifting, bending, digging, crawling, working TUTOR V. COOPER PLUMBING Page 4 with hands, working over head or twisting. Dr. Bakody agreed that claimant should continue restricting his physical activity and approved of his current work as a self-employed general contractor who performs no actual physical work himself. Dr. Bakody opines that claimant suffers from a 18 to 20 percent permanent partial impairment to the body as a whole as a result of the February 21, 1983 injury and resulting surgery. In his deposition, Dr. Bakody stated as follows with reference to the effect of the 1971 injury and surgery on claimant's current condition: I don't think it would apply to his condition at the present time because we're talking about an individual who was, in fact, working every day up until the time of the accident of O83, 1983. A person may have a major physical impairment and a very small industrial disability and vice versa, we're all aware of this. So whatever physical impairment he had before, he had at that time. I'm seeing him, like, four --not four, but several years later when he's fully employed, but now he has an accident and he's disabled from working. And we find that he has a lumbar disk protrusion, he's operated upon, and we conclude that he does have a permanent physical impairment as a result of that. In February, 1986, claimant underwent a functional capabilities evaluation by Thomas W. Bower, L.P.T., who summarized his recommendations as follows: 1) This patient's stamina and conditioning is poor and will tire quickly. A general conditioning program needs to be implemented in terms of overall conditioning, strengthening, and endurance. 2) All labor requiring heavy lifting, reaching, and twisting maneuvers (e.g. weight in excess of 30 pounds) will pose problems. 3) Because of limited kneeling, bending, and twisting, Dan is going to have problems in getting into the small nooks and crannies required of his work. 4) A weight loss program must be implemented to insure a safer future. 5) Essentially, future activities appear to be dictating more of a supervisory nature. We need to place Dan in positions and in job situations where fewer demands are placed on his spine. Claimant's appearance and demeanor at the hearing indicated that he was testifying in a truthful manner. APPLICABLE LAW AND ANALYSIS Claimant must establish by a preponderance of the evidence the extent of weekly benefits for permanent disability to which TUTOR V. COOPER PLUMBING Page 5 claimant is entitled. As the claimant has shown that the work injury was a cause of a permanent physical impairment or limitation upon activity involving 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 an 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 employeeOs 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. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985). In the case sub judice, claimant's testimony was found to be credible. This uncontroverted testimony established that claimant's medical condition before the work injury was excellent and despite prior back surgery, he had no functional impairments which are significant from an industrial disability standpoint. Claimant had no physician imposed work restrictions or limitations in his physical activities for 11 years prior to the 1983 injury and surgery. Prior to the work injury at Cooper, claimant was able to fully perform all of his plumbing tasks such as heavy lifting, repetitive lifting, bending, twisting, stooping and prolonged walking. Claimant's treating physician, Dr. Bakody, has given claimant an 18 to 20 percent permanent partial impairment rating to the body as a whole. Defendants in this case request that there be an apportionment of the impairment rating between claimant's prior condition and the condition caused by the second injury to his back. Claimant responds that Dr. Bakody refused to apportion his disability rating and cites various legal authorities for the proposition that defendants are responsible for the full extent of disability when there can be no medical apportionment of damages. However, both parties are failing to realize that this is an industrial disability case in which only a loss of earning capacity, not a loss of physical impairment is to be compensated. As is evident from Dr. Bakody's testimony quoted in the summary of evidence, the doctor was actually making an industrial disability assessment in refusing to apportion the rating between claimant's condition before and after the 1983 injury. Dr. Bakody repeatedly stated that the prior impairment TUTOR V. COOPER PLUMBING Page 6 did not effect his ability to work. This is beyond the expertise of Dr. Bakody as it is a decision concerning the effect of an impairment upon claimant's earning capacity -- a legal rather than a medical question. However, no apportionment will be made in this case because regardless of the extent of any residual physical impairment that claimant may have had after the 1971 injury and surgery, there was sufficient credible and uncontroverted lay evidence by claimant to establish the fact that he had no ascertainable industrial disability or loss of earning capacity before the work injury of February 21, 1983. Apportionment of disability between a preexisting condition and an injury is proper only when there is some ascertainable disability which existed independently before the injury occurred. Varied Enterprises, Inc., v. Sumner, 353 N.W.2d 407 (Iowa 1984). Consequently there is no need to reach the question of how to apportion liability when the amount of prior existing industrial disability cannot be determined from the evidence. Claimant's condition and physical conditions subsequent to the February 21, 1983 injury prevents him from returning to plumbing work or any other supervisory plumbing work involving manual labor which would require claimant to violate his work TUTOR V. COOPER PLUMBING Page 7 restrictions. Given his age, education and work history, claimant is best suited for the type of work he can no longer perform. Apart from his lost earnings during his healing period, claimant has suffered a substantial loss of actual earnings as a result of his inability to return to plumbing as a journeyman or master plumber. The fact that claimant was not able to continue with the new owner of the Cooper business as a supervisor or working foreman is evidence of a very serious disability. However, there is no evidence that claimant has made an extensive job search outside of the field of plumbing and there is no evidence of his current employability outside of plumbing in the Des Moines labor market. Claimant is 46 years of age and in the middle of his working life. His loss of future earnings from employment due to his disability is more serious than would be the case for a younger or an older individual. See Becke v. Turner-Busch, Inc., Thirty-Fourth Biennial Report of the Iowa Industrial Commissioner 34 (1979); Walton v. B & H Tank Corp., II Iowa Industrial Commissioner Report 426 (1981). Although claimant has not shown an extensive job search, it is apparent that claimant is motivated to remain employed in some capacity by initiating his own business, albeit unprofitable, as compared to his earnings at Cooper. His business operation over the last four years and his demeanor at the hearing is evidence that he does possess salesmanship and administrative skills not possessed by many injured workers from the laboring occupations that this agency deals with on a day to day basis. Given these skills, possibly some day claimant may overcome the effects of his disability. However, at the present time, he is very severely disabled from an earnings capacity standpoint. After examination of all the factors, it is found as a matter of fact that claimant has suffered a 60 percent loss of his earning capacity from his work injury. Based upon such a finding, claimant is entitled as a matter of law to 300 weeks of permanent partial disability benefits under Iowa Code section 85.34(2)(u) which is 60 percent of 500 weeks, the maximum allowable number of weeks for an injury to the body as a whole in that subsection. FINDINGS OF FACT 1. Claimant was a credible witness. 2. The work injury of February 21, 1983 was a cause of a period of disability from work beginning on February 21, 1983 through November 2, 1983. 3. The work injury of February 21, 1983 was a cause of a 10-20 percent permanent partial impairment to the body as a whole, some of which preexisted the injury due to prior existing back surgery in 1971. However, only the work injury of February 21, 1983 was a cause of permanent restrictions among claimant's physical activities consisting of no lifting over 30 pounds and TUTOR V. COOPER PLUMBING Page 8 no frequent bending, twisting, stooping or prolonged walking or climbing. Claimant had no such restrictions before February 21, 1983 and claimant was not limited in his job as a plumber by any back problems before February 21, 1983. 4. The work injury of February 21, 1983 and the resulting permanent partial impairment was a cause of a 60 percent loss of earning capacity. Claimant is 46 years of age and has a high school education. At the time of the work injury claimant's trade was a journeyman and master plumber. Claimant has no other work history other than in the plumbing field. Claimant had no ascertainable loss of earning capacity before February 21, 1983, despite a prior work injury and surgery in 1971. Claimant is not physically able to return to his work as a journeyman or master plumber, the work for which he is best suited, as a result of the work injury in this case. Claimant has no training or education in any occupation other than plumbing and his rehabilitation potential for other occupations is not good in light of his age, education and work history. Claimant is currently operating a plumbing contracting business as a general contractor in the remodeling of houses under federal programs but the future viability of this business is highly questionable. Claimant subcontracts out all of his physical labor work to fulfill his general contracts in his current business. Claimant's gross earnings at the time of the injury was $350 per week. Claimant is currently receiving a net income from his business ranging from $4,000 to $9,000 annually, substantially less than his earnings as a master plumber. There is no evidence that claimant looked for work outside of plumbing contracting work over the last few years but it is apparent that he is motivated to remain employed in some capacity. Claimant unsuccessfully attempted to work as a foreman or supervisor for the new owner of Cooper's operation after the injury but he could not continue because his physical limitations caused by the injury would not allow him to perform as a working foreman or to perform duties of a regular plumber. CONCLUSIONS OF LAW Claimant has established by a preponderance of the evidence entitlement to permanent partial disability benefits as ordered below. ORDER 1. Defendants shall pay to claimant three hundred (300) weeks of permanent partial disability benefits at the rate of two hundred twenty-six and 80/100 dollars ($226.80) per week from November 3, 1983. 2. Defendants shall pay to claimant healing,period benefits from February 21, 1983 through November 2, 1983 at the rate of two hundred twenty-six and 80/100 dollars ($226.80) per week. 3. Defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for all weekly benefits previously paid. 4. Defendants shall pay interest on benefits awarded herein TUTOR V. COOPER PLUMBING Page 9 as set forth in Iowa Code section 85.30. 5. Defendants shall pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. 6. 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. Signed and filed this 24th day of February, 1988. LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. John R. Ward Attorney at Law 840 Fifth Avenue Des Moines, Iowa 50309-1398 Mr. Thomas E. Leahy Attorney at Law 2222 Grand Ave. P. 0. Box 10434 Des Moines, Iowa 50306 1803 Filed February 24, 1988 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER DANIEL W. TUTOR, Claimant, vs. FILE NO. 727100 COOPER PLUMBING, A R B I T R A T I 0 N Employer, D E C I S I 0 N and STATE FARM INSURANCE, Insurance Carrier, Defendants. 1803 Claimant awarded a 60 percent industrial disability as a result of his inability to return to work as a journeyman or master plumber. Claimant's only work history has been as a journeyman and master plumber. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ JAMES WENTHE, Claimant, FILE NO. 727198 VS. A R B I T R A T I 0 N FRENCH & HECHT, D E C I S I O N Employer, Self-insured, Defendant. _________________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by James Wenthe, claimant against French & Hecht, employer (hereinafter referred to as FH) for workers' compensation benefits as a result of an alleged injury on February 18, 1983. On October 7, 1987, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. Oral testimony was received during the hearing from claimant and the following witnesses: Tim Landers, Norm Leibold, Karen Wenthe and Robert Williams. The exhibits received into the evidence at the hearing are listed in the prehearing report. According to the prehearing report the parties have stipulated to the following matters: 1. On February 18, 1983, claimant received an injury which arose out of and in the course of his employment with FH. 2. The injury of February 18, 1983, was a cause of a temporary disability during a period of recovery and of permanent disability. 3. Claimant's rate of weekly compensation in the event of an award of weekly benefits from this proceeding shall be $314.66 per week. 4. If the injury is found to have caused permanent disability, the type of disability is an industrial disability to the body as a whole. 5. If permanent partial disability benefits are awarded herein, they shall begin as of January 14, 1987. 6. All requested medical benefits have been or will be paid by defendant. ISSUE WENTHE V. FRENCH & HECHT Page 2 The issue submitted by the parties for determination in this proceeding according to the prehearing report is the extent of claimant's entitlement to weekly benefits for permanent disability. SUMMARY OF THE EVIDENCE The following is a summary of evidence presented in this case. For the sake of brevity, only the evidence most pertinent to this decision is discussed. Whether or not specifically referred to in this summary, all of the evidence received at the hearing was considered in arriving at this decision. Claimant testified that he has worked for FH since 1969 and continues to work at FH at the present time. Although claimant performed other jobs at FH, most of the time he drove a tow motor or forklift truck. Claimant earned over $12.00 per hour at the time of the alleged injury. However, since the injury all of the employees at FH have taken a pay cut pursuant to collective bargaining agreements. Claimant earns today what he would have earned had he continued on the same job that he had at the time of the work injury, however, this is considerably less per hour than he was earning before. Claimant's job at the time of the work injury required claimant to lift heavy weights on occasion. Claimant currently works in a light duty job at FH involving janitor work such as dumping wastepaper baskets, changing toilet paper and hand towels along with dusting and moping the floor. Claimant also drives in this job a power sweeper and power scrubber which resembles a tow motor in general appearance and operation. The facts surrounding the work injury are not in real dispute. Claimant testified that while delivering rims to the paint line with his lift truck, the load stuck between two pallets and one of the rims fell off. While attempting to pick up this rim which was heavy with his outstretched left hand, he felt a "snap" and immediate pain but claimant testified that this was not a sharp pain. Claimant's left hand then began to swell. Claimant immediately reported to the company doctor, Paul H. Beckman, M.D., who felt at the time that claimant suffered a strain of his left shoulder and chest along with left numbness and swelling. Dr. Beckman also noted that claimant lost sensation in three fingers in his left hand. Dr. Beckman then prescribed heat and heat packs and muscle relaxant medication. Claimant attempted to return to work on several occasions during the weeks and months following the injury but the pain persisted. Claimant was also treated initially by F. Dale Wilson, M.D., who reported that claimant suffered a right and left shoulder injury. Claimant was eventually referred to Steven R. Jarrett, M.D., and later to Eugene Collins, M.D., who are neurologists for EMG testing. As claimant was obese with a large upper torso, a proper EMG test could not be accomplished at that time. WENTHE V. FRENCH & HECHT Page 3 Claimant continued to experience left hand numbness and pain along with severe headaches after physical activity with his left arm during the latter part of 1983. It was the opinion of Dr. Beckman in November, 1983, that claimant sustained a "brachial plexus stretch type injury." In October, 1983, claimant was treated by a hand and arm surgeon, Bruce Sprague, M.D., who felt that claimant suffered a cervical stretch type injury and prescribed cervical traction. With no improvement in symptoms, Dr. Sprague ordered a third EMG test and claimant was referred to R. F. Neiman, M.D., a neurosurgeon. Testing by Dr. Neiman demonstrated a substantial radiculopathy and probable one or more herniated cervical discs in claimant's neck. Dr. Neiman then ordered a myelogram of claimant's spine. This myelogram was performed in December, 1983, on both claimant's upper and lower spine. The myelogram found that claimant's lower spine was normal but that the cervical spine was "totally blocked at one level." In December, 1983, claimant also began treatment with an orthopedic surgeon, G. E. Howe, M.D., from the Steinler clinic. Over the next several months, claimant continued treatment with both Dr. Neiman and Dr. Howe. Initially, these doctors were quite reluctant to consider surgery due to claimant's obesity despite the evidence of herniated discs at various levels of claimant's spine. However, by October, 1984, claimant had lost some weight at their request and expressed a desire for surgery so he could return to work. Finally, in October, 1984, Dr. Howe performed a "cloward anterior disc excision and dowel graft fusion" at three levels in claimant's neck and cervical spine, C3-4, C5-6 and C6-7. Following this surgery, claimant had a slow recovery but by January 6, 1986, Dr. Howe and Dr. Neiman released claimant for sedentary work with no lifting over 15 pounds. This restriction was later increased to 30 pounds in June, 1986. In January, 1987, Dr. Howe opined in a letter report that claimant suffers from a 35 percent permanent partial impairment to the body as a whole as a result of the three level back fusion. Dr. Howe finally imposed permanent restrictions against lifting over 40 pounds. Dr. Howe's primary diagnosis was cervical disc disease due to the presence of arthritis in claimant's spine aggravated by injury. He also recommended that claimant continue an exercise program including swimming. Dr. Neiman did not give a percentage rating of claimant's disability but concurred with the restrictions imposed by Dr. Howe. Richard Roski, M.D., another neurosurgeon evaluated claimant on a Cybex machine in October, 1987, and concluded that claimant was at extreme risk in moderate to heavy lifting but was able to perform light lifting up to 48 inches in height but with no overhead use of outstretched hands. FH has worked extensively with claimant and his physicians in returning claimant to gainful employment at FH. Since the release by Drs. Howe and Neiman in January, 1986, claimant has worked full time at FH in various light duty jobs but receives the same wage as he would receive had he remained on the job he was performing at the time of the work injury. Claimant initially performed clerical work sorting papers and making stencils. Claimant was then moved to light janitorial work in operating the power sweeper and scrubber as described above. WENTHE V. FRENCH & HECHT Page 4 There was one attempt on the part of FH to move claimant to his former job as a tow truck operator but without the need for occasional lifting. However, claimant's physicians disapproved of this move as it would involve extensive movement of the neck. Claimant had tried to perform other light duty jobs within the plant since his return but these jobs involve extensive use of his arms and it resulted in headaches and pain in the neck. The plant manager, Robert Williams, testified during a video tape presentation, that there are several light duty jobs within the FH plant that would fit within claimant's physician imposed restrictions which have a higher rate of pay then claimant currently receives. However, claimant's seniority does not permit his assignment to many of these jobs at the current time. Claimant continues on his janitor/sweeper/scrubber job and expresses satisfaction with the cooperation by FH to date in returning him to work. Claimant's current complaints consist of headaches with excessive use of his arms along with continued pain in the neck and arms along with limited motion of the neck. Claimant also describes a loss of strength in both of his arms and back. Claimant denies any past back or neck trouble before February 18, 1983. Claimant, his wife and several witnesses testified that claimant was very strong before the work injury and could easily lift and throw objects in excess of 200 pounds before February 18, 1983. Claimant, however, has significant prior health problems. Claimant had a heart attack in 1982 resulting in permanent damage to his right ventricle according to claimant's testimony. Also, since 1982, claimant has been diagnosed as suffering from diabetes and is currently taking insulin injections. According to his medical records, claimant has been diagnosed as suffering from hyperlipidemia which is being treated with Lopid, a history of gout and alopecia totalis and obesity. However, claimant testified that he had no restrictions on his physical activity either self-imposed or imposed by physicians before February 18, 1983 and the medical evidence submitted supports this testimony. The only causal connection opinion in the record is from Dr. Sprague who states in a letter of March 9, 1984, that although claimant had osteoarthritis before the injury, the injury is what aggravated and produced claimant's symptoms. It is unclear in the record exactly when claimant first began to complain of low back pain and leg pain. The myelogram performed in December, 1983, certainly did test both claimant's upper and lower back apparently for some reason. Dr. Neiman's notes first reflect some back pain complaints in February, 1984 and again in April, 1984, but Dr. Neiman initially felt that claimant's primary difficulties was with his upper spine rather than his low back. In April, 1984, G. T. Bozek, M.D., who had consulted with Dr. Neiman on claimant's case, noted claimant's leg discomfort at that time which he stated may be related to the December, 1983, myelogram. Dr. Howe states that claimant complained to him of low back pain on a couple of occasions during his course of treatment but found no correlation between the cervical problems and claimant's back or leg pain WENTHE V. FRENCH & HECHT Page 5 complaints. Claimant testified that his employment prior to FH primarily consisted of machine operator jobs in a manufacturing environment. Claimant occasionally was required to lift heavy weights in these jobs and was required to stand for prolonged periods of time. Claimant testified that he is 47 years of age. He quit formal schooling during the eleventh grade. Claimant testified that he had a C average in school. Patrick Doherty, a vocational consultant, submitted a report into the evidence. According to Doherty claimant performs at the low average range of intelligence and describes claimant's physical limitations submitted to him by Drs. Neiman and Howe consisting of no lifting over 20 pounds and no climbing or balancing. Given these restrictions, after reviewing the dictionary of occupational titles of jobs claimant could pursue, Doherty performed a labor market access study in the quad city metropolitan area. According to Doherty before the work injury claimant had access to 29 percent of the available jobs but post injury claimant's access has been reduced to zero. Dohert believes that claimant has a 100 percent loss of earning capacity. Claimant's appearance and demeanor at hearing indicated that he was testifying in a candid and truthful manner. APPLICABLE LAW AND ANALYSIS I. Claimant must establish by a preponderance of the evidence the extent of weekly benefits for permanent disability to which claimant is entitled. As the claimant has shown that the work injury was a cause of a permanent physical impairment or limitation upon activity involving the body as a whole, the degree of permanent disability must be measured pursuant to Iowa ode 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 an 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 WENTHE V. FRENCH & HECHT Page 6 the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985). In the case sub judice, claimant's medical condition before the work injury was certainly not excellent given all of his medical problems but he had no functional impairments or ascertainable disabilities at the time of the work injury. Claimant was able to fully performed physical tasks involving heavy lifting; repetitive lifting, bending, twisting and stooping; and, prolonged standing and sitting. As a result of painful injuries the function of his whole body has now been permanently modified. Claimant's treating physician, Dr. Howe, has given claimant a significant permanent impairment rating of 35 percent to the body as a whole. Any impairment prior to the work injury is not important as the record does not indicate that such impairment resulted in any work disability. Apportionment of disability between a preexisting condition and an injury is proper only when there was some ascertainable disability which existed independently before the injury occurred. Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984). Claimant's physicians have restricted claimants work activities by prohibiting tasks such as heavy lifting and WENTHE V. FRENCH & HECHT Page 7 repetitive use of his arms and neck. Claimant's medical condition prevents him from returning to his former work as a lift truck driver where he was required to occasionally lift objects or extensive use of his arms and neck. Claimant is an unskilled or semi-skilled laborer with little education. He is best suited for physical labor jobs for which he can now only perform on a limited basis. Apart from his lost earnings during his healing period which was compensated by healing period benefits, claimant has not suffered a permanent loss in actual earnings as a result of his disability at least at the current time. Defendant FH has admirably worked with claimant in a successful attempt to return claimant to employment. These efforts will not go unawarded as the award in this case is significantly lower because claimant has not suffered a loss of earnings as a result of the work injury. However, a showing that claimant has no loss of actual earnings does not preclude a finding of industrial disability. See Michael v. Harrison County, Thirty-Fourth Biennial Report of the Iowa Industrial Commissioner 218, 220 (1979). Claimant is 47 years old and in the middle of his working career. He should be at the most productive years of his life. His loss of future earnings from employment due to disability is more severe than would be the case for a younger or an older individual. See Becke v. Turner-Busch, Inc., Thirty-Fourth Biennial Report of the Iowa Industrial Commissioner 34 (1979); Walton v. B & H Tank Corp., II Iowa Industrial Commissioner Report 426 (1981). Claimant has shown motivation to remain employed and insisting upon surgery in an attempt to return to work. However, claimant has only a tenth grade education and exhibited average intelligence at the hearing. Although his intelligence performance according to the rehabilitation consultant was in a low range, little was shown in the form of actual testing to indicate claimant's potential for vocational rehabilitation via additional formal schooling. Claimant's current employment is suitable although its stability is unknown at the present time. Claimant has clearly shown that he would experience considerable difficulty finding replacement employment should he lose his current job. The views of the vocational rehabilitation consultant, Doherty, as to the loss of earning capacity is not a proper subject for vocational consultants and was not given any weight. However, his job availability study was quite useful. Although both doctors, Neiman and Howe, have increased the lifting restriction to 40 pounds since the evaluation, the report was given considerable weight in light of the most recent evaluation of claimant's condition by Dr. Roski. After examination of all the factors, it is found as a WENTHE V. FRENCH & HECHT Page 8 matter of fact that claimant has suffered a 30 percent loss of earning capacity from his work injury. Based upon such a finding, claimant is entitled as a matter of law to 150 weeks of permanent partial disability benefits under Iowa Code section 85.34(2)(u) which is 30 percent of 500 weeks, the maximum allowable number of weeks for an injury to the body as a whole in that subsection. It should be noted that no part of the award for claimant in this case was based upon claimant's low back,or leg pain as it could not be found that such problems stemmed from the work injury found in this case due to a lack of supportive medical expert opinion. However, it should also be noted that no work restrictions have been imposed upon claimant as a result of his low back or leg pain. FINDINGS OF FACT 1. Claimant was a credible witness. 2. Claimant was in the employ of FH at all times material herein. 3. On February 18, 1983, claimant suffered an injury to the upper back or neck which arose out of and in the course of employment with FH. Claimant was eventually compelled by his pain to seek surgery in order to return to work which resulted in a fusion of three vertebras in his neck. 4. The work injury of February 18, 1983, was a cause of a 35 percent permanent partial impairment to the body as a whole and of permanent restrictions upon claimant's physical activity consisting of no lifting, no median or heavy lifting and no extensive use of his neck or arms especially above shoulder level. 5. The work injury of February 18, 1983 and the resulting permanent partial impairment was a cause of a 30 percent loss of earning capacity. Claimant is 47 years of age with only a tenth grade education. Claimant performs at the low average intelligence range. Claimant is unable to perform medium or heavy physical labor employment, the type of employment best suited to him given his lack of education and past experience. However, claimant has not suffered a loss of actual earnings at the present time due to the cooperation of FH in returning claimant to work. CONCLUSIONS OF LAW Claimant has established by a preponderance of the evidence entitlement to permanent partial disability benefits as awarded below. ORDER 1. Defendant shall pay to claimant one hundred fifty (150) weeks of permanent partial disability benefits at the rate of three hundred fourteen and 66/100 dollars ($314.66) per week from WENTHE V. FRENCH & HECHT Page 9 January 14, 1987. 2. Defendant shall pay accrued weekly benefits in a lump sum and shall receive a credit against this award for all benefits previously paid. 3. Defendant shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30 and the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. 4. Defendant shall file activity reports on payment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 15th day of December, 1987. LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. James M. Hood Attorney at Law 302 Union Arcade Davenport, Iowa 52801 Mr. Larry Shepler Attorney at Law 600 Union Arcade Bldg. Davenport, Iowa 52801 1800 Filed December 15, 1987 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ JAMES WENTHE, Claimant, FILE NO. 727198 VS. A R B I T R A T I 0 N FRENCH & HECHT, D E C I S I 0 N Employer, Self-insured, Defendant. _________________________________________________________________ 1800 Claimant awarded 30 percent industrial disability due to a permanent impairment and loss of available employment opportunities caused by the work injury. BEFORE THE IOWA INDUSTRIAL COMMISSIONER PAUL E. SMITH, Claimant, VS. File No. 727394 IOWA MOTOR CO., INC., A P P E A L Employer, D E C I S I 0 N and UNIVERSAL UNDERWRITERS INSURANCE COMPANY, Insurance Carrier, Defendants. STATEMENT OF THE CASE Claimant appeals from a ruling denying claimant's motion to reconsider a ruling dismissing claimant's petition pursuant to defendants, motion. . The record on appeal is the agency file in this matter. Neither party has submitted briefs. ISSUE The issue on appeal is whether the deputy industrial commissioner properly overruled claimant's motion to reconsider and has properly dismissed claimant's petition. REVIEW OF THE EVIDENCE The ruling on motion to reconsider, filed November 23, 1988 and ruling on motion to dismiss, filed October 19, 1988 adequately and accurately reflects the pertinent evidence and it will not be reiterated herein. APPLICABLE LAW The citations of law in the ruling on the motion to dismiss filed October 19, 1988 are appropriate to the issues and evidence. SMITH v. IOWA MOTOR CO., INC. Page 2 ANALYSIS The analysis of the evidence in conjunction with the law in the ruling on the motion to dismiss is adopted. FINDINGS OF FACT 1. Claimant alleges a work-related injury on August 20, 1982 to his right foot. 2. Claimant and defendants entered into a compromise special case settlement agreement pursuant to Iowa Code section 85.35, on March 6, 1983. 3. Deputy industrial commissioner approved the special case settlement on March 9, 1983. 4. Claimant received a sum of $7,400.00. A receipt and satisfaction was signed by the claimant on March 16, 1983. CONCLUSION OF LAW Claimant's petition should be dismissed because a compromise special case settlement pursuant to Iowa Code section 85.35 has been previously approved regarding the alleged injury. WHEREFORE, the rulings of the deputy filed October 19, 1988 and November 23, 1988 dismissing claimant's petition and overruling claimant's motion to reconsider are affirmed. ORDER THEREFORE, it is ordered: That claimant's petition is dismissed. That all costs of this proceeding are assessed against claimant. Signed and filed this 22nd day of November, 1989. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER SMITH v. IOWA MOTOR CO., INC. Page 3 Copies To: Mr. John E. Behnke Attorney at Law Box F Parkersburg, Iowa 50665 Mr. Philip H. Dorm, Jr. Attorney at Law 2700 Grand Ave., Suite Ill Des Moines, Iowa 50312 3302 - 2301 Filed November 22, 1989 DAVID E. LINQUIST BEFORE THE IOWA INDUSTRIAL COMMISSIONER PAUL E. SMITH, Claimant, VS. File No. 727394 IOWA MOTOR CO., INC., A P P E A L Employer, D E C I S I 0 N and UNIVERSAL UNDERWRITERS INSURANCE COMPANY, Insurance Carrier, Defendants. 3302 - 2301 Deputy's decision denying claimant's motion to reconsider a ruling dismissing claimant's petition due to lack of subject matter jurisdiction was affirmed on appeal. Claimant received benefits for the alleged injury pursuant to a compromise special case settlement that had been previously approved, claimant's petition was properly dismissed by the deputy. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ SUZANNE D. SEYMOUR, Claimant, VS. FILE NO. 727538 UNITED PARCEL SERVICE, A R B I T R A T I 0 N Employer, D E C I S I O N and LIBERTY MUTUAL INSURANCE, Insurance Carrier, Defendants. _________________________________________________________________ INTRODUCTION This is a proceeding in arbitration brought by Suzanne D. Seymour, claimant, against United Parcel Service, employer, and Liberty Mutual Insurance Company, insurance carrier, defendants for benefits as a result of an injury which occurred on February 15, 1983. A hearing was held on November 11, 1986 at Dubuque, Iowa and the case was fully submitted at the close of the hearing. The record consists of the testimony of Suzanne D. Seymour (claimant); claimant's exhibits A through Z (with the exception of exhibit K) and AA, BB and CC; and defendants' exhibits 1 through 42. STIPULATIONS The parties stipulated to the following matters: That an employer/employee relationship existed between the claimant and the employer at the time of the alleged injury. That the claimant sustained an injury on February 15, 1983 which arose out of and in the course of her employment with the employer. That the type of permanent disability, if the injury is found to be a cause of permanent disability, is stipulated to be an industrial disability to the body as a whole. That the rate of compensation in the event of an award is $127.56 per week. That the provider of medical services would testify that the fees were reasonable and that the defendants are not offering contrary evidence. ISSUES SEYMOUR V. UNITED PARCEL SERVICE age 2 The issues presented by the parties for determination at the time of the hearing are as follows: Whether the injury is the cause of any temporary or permanent disability. Whether the claimant is entitled to any temporary or permanent disability benefits. Whether the claimant is entitled to certain medical benefits. SUMMARY OF THE EVIDENCE All of the evidence was examined and considered and the following is a brief summary of the most pertinent evidence. Claimant is age 35, divorced, has no dependants, is unemployed and lives with a friend. She is a high school graduate and studied pottery in summer school for two years at Luther College in Decorah, Iowa where she presently resides. Past employments include factory worker, keypunch operator, file clerk, teletype operator, art model, arts instructor, library aid, outreach worker for legal services, babysitting and mowing lawns. She started to work for United Parcel Service on January 27, 1981. She worked from midnight to 3:30 a.m. loading and unloading cars and trucks on the dock and driving them up to and away from the dock. She worked typically 15 hours per week and earned $11.87 per hour. Prior to her employment with the employer she was in good health, very physical and only weighed 135 pounds. Prior to this injury she had twisted her back at work in November of 1982. At that time she felt a twinge, reported it to the employer, and saw D. W. Wright, M.D. She was treated and fully recovered and was having no further problems at the time of this injury. The various medical reports describe various ways in which this injury occurred. However, since it has been stipulated that the claimant received an injury which arose out of and in the course of her employment with the employer it will suffice to give the claimant's version in her testimony at the hearing. She testified that on February 15, 1983 she was lowering an eight foot by four foot platform which had been stored upright. One end of the platform was frozen to the floor so it fell in a twisted manner. She caught it with both hands as it dropped and felt a cross ways slam in her left hip and back. It felt like she was hit by lightening and she had a white out sensation. She could not get out of bed the next morning. she reported the injury to the employer and went to see David R. Bakken, M.D., on February 16, 1983 who hospitalized her from February 17, 1983 until February 25, 1983. Dr. Bakken found tenderness with spasm in the lumbar spine, more on the left than on the right and diagnosed low back syndrome (Defendants' Exhibit 1). He treated her several times SEYMOUR V. UNITED PARCEL SERVICE age 3 from February 16, 1983 through November 18, 1983 with physical therapy, medication, bedrest and a TENS unit. He found a trigger point to the left of L5, Sl (Def. Ex. 3), but no radiculopathy (Def. Ex. 6). He did not describe a traumatic onset but did state that her low back pain was related to her lifting activities at United Parcel Service (Def. Ex. 6). He also mentioned that she engaged in certain self treatments by raising herself on her hands while sitting, hanging from doorways, and by obtaining osteopathic manipulation five times prior to one of her visits (Def. Ex. 8). She also attempted inverted lumbar traction with a device called a back swing (Def. Ex. 9). She also walked with a walker to decompress her lumbar spine (Claimant's Ex. BB, page 10) Dr. Bakken sent her to the Gunderson Clinic (an orthopedic clinic) in LaCrosse, Wisconsin where she was seen four times by Steven Hauge, M.D., in March and April of 1983. He diagnosed a back strain. A CT scan was suggestive of a disc problem at L5, Sl, but claimant declined to take a myelogram. He recommended that she return to work on April 25, 1983. (Def. Ex. 4) In May of 1983, claimant did return to work for nine days. After work on May 16, 1983, she noted pain in her back and could not get out of bed the following morning. Claimant also decided on her own to go to the Apple Valley Medical Clinic in July of 1983 where she was seen by Donald B. Miller, M.D., (Def. Ex. 14). Eventually, Dr. Bakken recommended a time table for claimant to return to work on November 30, 1983. Dr. Bakken thought that claimant had a back strain (Cl. Ex. BB, p. 13) aggravated by stress from marital problems (Cl. Ex. BB, p. 14). He felt that her problem was work related even though she did not describe a traumatic onset of her back pain to him (Cl. Ex. BB, pp. 16 & 17). Dr. Bakken also recorded that claimant had cardiac dysrythmia probably secondary to caffeine ingestion, hirsutism with irregular menses, mild chronic situational depression, capsulitis of the thumb at the PIP joint and a possible mitrol valve prolapse (Def. Ex. 1, Cl. Ex. BB). Further evidence revealed a past medical history of tonsellectomy, apendectomy, ovary surgery and a miscarriage. Claimant testified that she asked to see a chiropractor but the insurance carrier denied this request. She consulted with Richard Roby, D.O., an osteopath, but he needed repeated treatments and she wanted immediate relief and therefore discontinued treatment with him. Claimant testified that she decided on her own to go and see Dr. Miller at the Apple Valley Medical Clinic (an orthopedic clinic) but that the insurance carrier accepted this as authorized treatment. Dr. Miller saw claimant on April 22, 1983, diagnosed mechanical low back syndrome--subacute, and recommended that she see the Institute for Low Back Pain in Minneapolis-, SEYMOUR V. UNITED PARCEL SERVICE age 4 Minnesota (Def. Ex. 5 & 11). Dr. Miller reported on August 31, 1983 that claimant did see Charles Burton, M.D., at the Institute for Low Back Care at the Abbott Northwestern Hospital and a CT scan showed no evidence of a prolapsed disc or stenosis and a myelogram was also normal (Def. Ex. 13). On September 20, 1983, Dr. Miller said claimant still had discomfort but there was nothing further that he could do from an orthopedic point of view (Def. Ex. 15). Dr. Burton saw claimant on August 10, 1983, for low back pain, aching with sharp stabbing sensation in the buttocks more on the left than on the right, with pain into the leg. Claimant reported that she used aspirin, beer and rum for pain relief. It was also revealed that she suffered currently from an endocrine dysfunction from the use of birth control pills in 1978 that now causes irregular menses, facial hair growth, and lactation (Def. Ex. 12). Dr. Burton recommended a percutaneous radio frequency facet nerve block with epidural steroid administration for her mechanical low back syndrome on October 12, 1983 (Def. Ex. 16). This was carried out on November 7, 1983 (Def. Ex. 17). Claimant was also instructed in a stringent weight reduction program with the admonition that if it was not followed the likelihood of returning pain was quite high (Def. Ex. 18). The facet nerve block did relieve her pain and pursuant to Dr. Bakken's plan she returned to work on November 30, 1983 and worked until December 26, 1983 when, due to a shortage of help at work, claimant over worked and could not get out of bed on the following morning of December 27, 1983. Dr. Burton then referred claimant to Matthew Monsein, M.D., of the Chronic Pain Rehabilitation Program of the Sister Kenny Institute at the Abbott Northwestern Hospital in Minneapolis (Def. Ex. 21). Dr. Monsein completed an extensive history and physical examination and reached the following conclusion: IMPRESSION: 1. Mechanical back syndrome. 2. Status post facet block. 3. Chronic pain syndrome. 4. Depression. 5. Marked family dysfunction. 6. Employee anger syndrome. 7. Anxiety, situational. 8. Possible alcohol abuse. 9. Chronic pain patient. (Def. Ex. 21) All prior x-rays, CT scans and myelograms did not reveal any lateral stenosis or nerve root impingement. It was his impression that the degree of pain and incapacity was in excess of his physical findings. He did demonstrate some physical findings consistent with mechanical back syndrome and a paralumbar spasm on the left side while standing, triggering point tenderness at the L5, Sl area, and a positive forward stretch test on the left (Def. Ex. 21). Claimant was admitted to the pain program on January 22, SEYMOUR V. UNITED PARCEL SERVICE age 5 1984 and discharged on February 15, 1984 but continued to complain of pain in the low back area which Dr. Monsein felt was due to psychological factors. Claimant had been victimized as a child and subjected to psychological and physical abuse in her family and she sees her present life as a continuation of this victimization. In addition, she suffered from galactorrhea and urinary stress incontinence which they treated at that time (Def. Ex. 22 & 23). Dr. Monsein thought that if she followed a 50 pound weight restriction for 90 days she could then work again without any restriction (Def. Ex. 23 & 24). He did not feel that she had a permanent disability (Def. Ex. 25). After her discharge from the Pain Rehabilitation Center Dr. Monsein wrote to the claimant that she had a myofascial syndrome where she had experienced a muscle strain or sprain (Def. Ex. 26). On April 3, 1984, Dr. Monsein estimated that the maximum medical improvement would occur on June 1, 1984 when claimant finished her clinic follow-up weight reduction course. He recommended against returning to United Parcel Service for fear that she would physically reinjure her back and also because employer mistrust might produce adverse psychological reactions (Def. Ex. 28). On May 31, 1984, Dr. Monsein stated claimant had reached a point of maximal medical improvement and assessed a five percent permanent impairment rating (Def. Ex. 33). Dr. Monsein reported on December 3, 1984 that claimant had taken a job at the airport, SEYMOUR V. UNITED PARCEL SERVICE age 6 worked 12 days and strained herself again lifting weights up to 70 or 80 pounds. Dr. Monsein than reduced her weight restriction to 10 or 15 pounds and raised her impairment rating to 12.5 percent and recommended retraining her for lighter work (Def. Ex. 36). Dr. Monsein did testify that these changes of a lowered weight restriction and a higher impairment rating were related to her subsequent job at the airport and not her work for the United Parcel Service (Def. Ex. 40,p. 25). In his deposition Dr. Monsein defined mechanical low back syndrome as follows: A. A mechanical back syndrome is defined as a condition where there is some element of pathology in the structures of the low back, such as -- how can I put it -- so that there is some mechanical disfunction of the back, that there is some weakness in the ligaments or the structures supporting the lumbar vertebrae, but there is no frank evidence of a herniated disk. (Def. Ex. 40, p. 10). When claimant completed the pain clinical treatment the defendants ceased to pay for additional medical treatment, but claimant nevertheless continued to seek and obtain additional medical care. Among other things she saw Ralph Knudson, M.D., of Decorah from January 23, 1985 to July 16, 1985 (Cl. Ex. J). He hospitalized her from February 13, 1985 to March 4. 1985 (Cl. Ex. 0). Dr. Knudson also prescribed physical therapy from James Hughes, LPT, from March 1, 1985 to September 23, 1986 and she received regular physical therapy treatments from him (Cl. Ex. G, H, R, S, U, V, W, and X). Dr. Knudson diagnosed diffuse tenderness in her back in the left side (Def. Ex. CC, p. 6). He hospitalized her because she had suicidal feelings (Def . Ex. CC, p. 7). He found a lot of depression due to feelings of worthlessness and low self-esteem because she could not work and marital problems (Def. Ex. CC, pp. 10 & 11). He did not have a definitive opinion on whether her condition was permanent or not and he was not able to assign any permanent impairment rating (Def. Ex. CC, PP. 13 & 14). He thought a five pound weight restriction would be appropriate (Def. Ex. CC, pp. 15 & 20). He was not directly asked and did not give a professional medical opinion on whether the injury of February 15, 1983 caused the problem for which he treated her or caused her current condition (Def. Ex. CC). Claimant was seen and evaluated on October 17, 1984 for the defendants by Richard F. Neiman, M.D., in Iowa City. He appeared to conclude that claimant did have a mechanical low back syndrome for which nothing more could be done. He assessed a permanent impairment rating in the range of 10 to 12 percent (Def. Ex. 37). Dr. Neiman ordered a myelogram and a CT scan and the claimant was hospitalized at Mercy Hospital in Iowa City for these procedures from March 11, 1986 to March 13, 1986. The myelogram and CT scan demonstrated no abnormality on either test. Dr. Neiman saw nothing to suggest a surgical remedial lesion. He suggested that claimant be rated and to get her into some useful type of occupation (Def. Ex. 42). SEYMOUR V. UNITED PARCEL SERVICE age 7 A psychiatric evaluation on March 22, 1986 concluded dysthymia disorder but that claimant was showing improvement from the level of depression she had three years ago (Def. Ex. 38). Claimant also consulted the Minnesota Headache Institute on April 2, 1986 on her own. No real conclusion was reached by this group (Def. Ex 39 and Cl. Ex. L). At the hearing claimant testified that her back is not much better now than it was at the time of her injury on February 15, 1983. It was best after she left the pain clinic and prior to when she reinjured it working at the airport. Claimant testified that she applied for a job at Living History Farms but did not want to relocate to Des Moines. She was not able to endure the standing and lifting in the airport job. She worked a short time at the Luther College Food Service as a dishwasher for three hours a day but that hurt her back after six days and she could not handle the standing and lifting. She worked for a veterinarian for a short period of time but was not able to do that either. She has applied for social security disability but was denied benefits. Claimant began a vocational evaluation and career planning program in Des Moines on September 2, 1986 but she terminated the program after nine days. Richard L. Rattray, counselor, reported on September 26, 1986 as follows: Bunny elected to terminate the evaluation at the end of the 9th day. The constant pain, low self-confidence, and the possibility [sic] of hooking up with an acquaintance in Waterloo at a food convention are some of the reasons she elected to terminate at this time. (Cl. Ex. Z). APPLICABLE LAW AND ANALYSIS The claimant has the burden of proving by a preponderance of the evidence that the injury of February 15, 1983 is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. 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 SEYMOUR V. UNITED PARCEL SERVICE age 8 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 has sustained the burden of proof by a preponderance of the evidence that her injury of February 15, 1983 was the cause of both temporary and permanent disability. Dr. Bakken said that the injury was the cause of her disability. The other doctors proceeded on this same basis but did not directly give a professional medical opinion on causation. There was no evidence that the injury of February 15, 1983 was not the cause of some temporary and permanent disability even though claimant did have other problems. 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 v. United States Gypsum Co., 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 v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 ; Yeager v. Firestone Tire & Rubber, Co., 253 Iowa 369, 112 N.W.2d 299 (1961) Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960). See also Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). Most of the practitioners of the healing arts also testified that psychological problems combined with what normally would be a simple back strain to prolong and increase the amount of temporary and permanent disability. The employer takes the employee as is, and therefore, takes her subject to any active or dormant health impairments. Lawyer & Higgs, Iowa Workers' Compensation -- Law and Practice, section 42. As it happened claimant had severe psychological problems stemming from childhood and a stressful marital problem was existent at the time of this injury. The injury was in February of 1983 and she separated from her husband in March of 1983 and was later divorced sometime in 1984. Claimant did see a counselor for this situation. Claimant had numerous endocrine and female problems which influenced her during this period of time as well as a personal problem with alcohol abuse. The evidence shows that the defendants did pay for treatment for both physical and psychological problems of the claimant as required by statute up to the point of maximum medical improvement. Iowa Code section 85.34(l) provides for healing period benefits. Since the claimant did not return to work and cannot return to her old job, then healing period benefits begin on the date of the injury and continue until it is medically indicated that significant improvement from the injury is not anticipated. SEYMOUR V. UNITED PARCEL SERVICE age 9 The physical injury in this case was basically a back strain or what has been defined as an aggravation of a mechanical low back syndrome. Usually a back strain condition will be worse at first and then will gradually heal over a period of time with or without medical treatment. In this case claimant was treated by a local physician, Dr. Bakken, who was quite considerate and sympathic to her problems; the Gunderson orthopedic Clinic at LaCrosse, Wisconsin; the Apple Valley orthopedic Clinic; the Institute for Low Back Care at Minneapolis, Minnesota; and the Pain Rehabilitation Center at the Sister Kenny Institute in Minneapolis, Minnesota. In the process she received treatment for psychological problems, family problems, endocrine problems, female problems and urinary problems. Yet, at the hearing she testified that her back was not much better now than it was when she was first injured on February 15, 1983. Claimant has described enormous subjective pain and incapacity which Dr. Monsein testified exceeded his physical, objective, professional, medical findings. Dr. Monsein determined that maximum medical improvement occurred on May 31, 1984. This is the only opinion by any professional person on this point. Therefore, it is determined that claimant is entitled to healing period benefits for the period from the day after the injury February 16, 1983 through May 31, 1984. SEYMOUR V. UNITED PARCEL SERVICE age 10 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, 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. Monsein, who was the claimant's treating physician and probably the doctor who gave her the most individual attention, gave the claimant a functional impairment rating of five percent. The increased rating of 12 1/2 percent after the subsequent injury at the airport cannot be considered because Dr. Monsein indicated that this increase in rating was due to the later injury. However, defendants' evaluating physician, Dr. Neiman, gave claimant a 10 to 12 percent functional impairment rating. Claimant is 35 years old, single and has no dependants. She has average to above average intelligence according to the evidence. She is young enough to be trained or retrained in a number of occupations. The variety of her past employments show that she has potential in a wide variety of employment opportunities. . She has the advantage of a high school education and training in pottery and other crafts. The biggest detriment is that she cannot return to physical manual labor which she enjoyed a great deal coupled with the fact that she does not like stereotyped female types of jobs. There was no evidence that the claimant has made any serious attempts to obtain full time employment in a job within her physical restrictions. It also appears that she has not made a serious attempt at retraining. She came to Des Moines for a lengthy course of rehabilitation training sponsored by the State of Iowa and quit after nine days in order to go to a food convention in Waterloo with friends. According to her testimony she still suffers pain and Dr. Monsein corroborated that she does have a chronic pain syndrome. This of course will be a source of disability until it either goes away or she gives it up. At the same time pain that is not substantiated by clinical findings is not a substitute for impairment. Waller v. Chamberlain Mfg., 2 Iowa Industrial Commissioner Reports 419, 425 (1981). Based on the foregoing information it is found that claimant has sustained a 35 percent industrial disability to the body as a whole from the injury of February 15, 1983. SEYMOUR V. UNITED PARCEL SERVICE age 11 Iowa Code section 85.27 provides that the employer shall provide reasonable medical care for an injured worker but that the employer also has the right to choose the care. It is determined in this case that the employer did provide reasonable care to the claimant. It could possibly be stated that in some instances it was more than reasonable care under the circumstances. Some of the care that the employer paid for did not appear to be directly related to the work injury. Much of the same testing and evaluation was done more than once in order to determine if there was something more than back strain or mechanically low back syndrome involved. Claimant's exhibit B, the exercise bicycle in the amount of $251.15, is allowed because it was prescribed by David Jones, M.D., a physiologist at the Kenny Institute (Def. Ex. 23, p. 3). Claimant also testified that Dr. Bakken prescribed it and this testimony was not controverted. Also claimant's exhibit M, the medical bill for Dr. Bakken in the amount of $29.00 is allowed because he was an authorized physician and there was no evidence that the authority to see him was revoked. All of the other bills contained in claimant's exhibits A through 0 cannot be allowed because (1) there is no evidence that they were authorized by the defendants; (2) it was not proven that they were caused by the injury of February 15, 1983; (3) it was not proven that they were reasonable medical expenses. Some of the treatment appears to be for non-work related health conditions. Much of it is repeated treatment in therapy which have all ready been done in the past and according to the claimant did not improve her condition better than it was back on February 15, 1983. FINDINGS OF FACT WHEREFORE, based upon the evidence presented, the following findings of fact are made: That claimant was employed by the employer and sustained an injury on February 15, 1983 while at work on that date. That the claimant attained maximum medical improvement according to Dr. Monsein on May 31, 1984. That Dr. Monsein rated claimant's permanent functional impairment at five percent of the body as a whole and Dr. Neiman rated her permanent functional impairment at 10 to 12 percent of the body as whole. That claimant is age 35, single and has no dependants. She has average or better than average intelligence, a variety of previous work experiences and an infinite potential for retraining in jobs which do not involve lifting more than five to 15 pounds. That claimant incurred $280.15 in allowable medical expenses SEYMOUR V. UNITED PARCEL SERVICE age 12 for an exercise bicycle in the amount of $251.15 and treatment with Dr. Bakken in the amount of $29.00. CONCLUSIONS OF LAW WHEREFORE, based upon the evidence presented and the principles of law previously stated, the following conclusions of law are made: That the injury of February 15, 1983 was the cause of temporary and permanent disability. That the claimant is entitled to healing period benefits from February 16, 1983 through May 31, 1984. That claimant is entitled to 175 weeks of permanent partial disability benefits for a 35 percent industrial disability to the body as a whole beginning on June 1, 1984. That claimant is entitled to the payment of $251.15 for an exercise bicycle and $29.00 for the treatment of Dr. Bakken in the total amount of $280.15 in allowable medical expenses. ORDER THEREFORE, IT IS ORDERED: That the defendants pay to claimant sixty-seven point two-eight-six (67.286) weeks of healing period benefits for the period from February 16, 1983 through May 31, 1984 at the rate of one hundred twenty-seven and 56/100 dollars ($127.56) per week in the total amount of eight thousand five hundred eighty-three and no/100 dollars ($8,583.00). That defendants pay to claimant one hundred seventy-five (175) weeks of permanent partial disability benefits at the rate of one hundred twenty-seven and 56/100 ($127.56) per week in the total amount of twenty-two thousand three hundred and twenty-three and no/100 dollars ($22,323.00). That the defendants pay accrued benefits in a lump sum. That interest will accrue under Iowa Code section 85.30. That the defendants pay to claimant two hundred eighty and 15/100 dollars ($280.15) in allowable medical expenses for an exercise bicycle and for Dr. Bakken's bill. That the defendants pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. That defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 6th day of April, 1987. SEYMOUR V. UNITED PARCEL SERVICE age 13 WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies TO: Mr. Richard Phillips Attorney at Law 103 River Street P. 0. Box 485 Decorah, Iowa 52101 Mr. Jay P. Roberts Attorney at Law 300 WSB Bldg., Box 1200 Waterloo, Iowa 50704 1402.80; 1802; 1804 2501; 2503 Filed April 6, 1987 WALTER R. McMANUS, JR. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ SUZANNE D. SEYMOUR, Claimant, VS. FILE NO. 727538 UNITED PARCEL SERVICE, A R B I T R A T I 0 N Employer, D E C I S I 0 N and LIBERTY MUTUAL INSURANCE Insurance Carrier, Defendants. _________________________________________________________________ 1402.80 Claimant's first treating physician said the injury of a back strain at work was the cause of her back problems. Other doctors later did not specifically give an opinion on this point but did proceed on this assumption. Therefore, it was found that the medical treatment and disability were causally connected. 1802 Claimant had back strain plus multiple physical and psychological problems from childhood and marriage. She was allowed healing period benefits from the day after the injury until the pain center doctor said she was maximum medically improved. 1804 Claimant was female, age 35, divorced, no dependants, average intelligence and had a variety of work experiences. She could not go back to doing heavy labor type jobs. She did not seriously pursue jobs within her limitations or vocational rehabilitation offered. She did not like stereotyped female jobs. She was allowed 35 percent permanent partial disability as industrial disability based on chronic back pain and a 10 to 12 percent permanent impairment rating. 2501; 2503 After claimant reached maximum medical treatment she continued to incur medical services. These doctor, hospital, physical therapy and other bills were denied because they were not authorized, were repetitious, had not helped in the past and the doctor she employed did not state that they were caused by this injury.