9999 Filed August 30, 1991 Byron K. Orton DRR before the iowa industrial commissioner ____________________________________________________________ : BARBARA J. WOLFE, : : Claimant, : : vs. : : File Nos. 730638/775865 IOWA MEAT PROCESSING, : : A P P E A L Employer, : : D E C I S I O N and : : CHUBB GROUP OF INSURANCE CO. : and ARGONAUT INSURANCE CO., : : Insurance Carriers, : : and : : SECOND INJURY FUND, : Defendants. : ___________________________________________________________ 9999 Summary affirmance of deputy's decision filed November 3, 1989, with short additional analysis. BEFORE THE IOWA INDUSTRIAL COMMISSIONER BARBARA J. WOLFE, Claimant, File Nos. 730638 VS. 775865 IOWA MEAT PROCESSING COMPANY, A R B I T R A T I 0 N Employer, D E C I S I 0 N and CHUBB GROUP OF INSURANCE CO. and ARGONAUT INSURANCE CO., Insurance Carriers, and SECOND INJURY FUND, Defendants. STATEMENT OF THE CASE These are proceedings in arbitration brought by claimant Barbara J. Wolfe against defendant employer Iowa Meat Processing Company, defendant insurance carrier Argonaut Insurance Companies (730638). defendant insurance carrier Chubb Group of Insurance Companies (775865), and defendant Second Injury Fund of Iowa to recover benefits under the Iowa Workers' Compensation Act as the result of injuries allegedly sustained on January 17, 1983 (730638) and September 17, 1984 (775865). These matters came on for hearing before Deputy Industrial Commissioner Garry Woodward in Sioux City, Iowa, on April 20, 1988. Each case was considered fully submitted at the close of hearing, although all parties subsequently filed briefs. The record in this proceeding consists of claimant's testimony at hearing and by deposition and joint exhibits 1 through 38. The file contains joint exhibit 39, which was never mentioned or admitted on record. The second page of that exhibit is independently in evidence as the first page of joint exhibit 25. However, the first page of that exhibit does not appear to otherwise have been independently entered, and for that reason has not been considered. After the record was closed, Deputy Woodward discontinued his employment with the Division of Industrial Services. By Order of the industrial commissioner entered July 22, 1988, jurisdiction of these matters for the purpose of preparing WOLFE V. IOWA MEAT PROCESSING COMPANY Page 2 and filing a proposed agency decision was transferred to the undersigned. ISSUES Pursuant to the prehearing report submitted by the parties (but apparently not approved by Deputy Woodward at hearing or otherwise on the record) in case number 730638, the parties have stipulated: That an employment relationship between claimant and employer existed at the time of the alleged injury; that claimant sustained an injury on January 17, 1983, arising out of and in the course of that employment; that the injury is causally related to both temporary and permanent disability; that healing period benefits were to commence on March 29, 1983; that claimant's appropriate rate of compensation is $284.92; that medical benefits are no longer in dispute; that defendants paid 40 3/7 weeks healing period benefits and 37 1/2 weeks permanent partial disability related to the right arm at the stipulated rate. The following issues in case number 730638 are presented for determination: The extent of claimant's entitlement to compensation for healing period benefits; the extent of claimant's entitlement to compensation for permanent disability; the commencement date for permanent partial disability, if awarded; the type of permanent disability claimant sustained; taxation of costs. Pursuant to the prehearing report submitted by the parties (but not approved of record by Deputy Woodward) in case number 775865, the parties have stipulated: That an employment relationship existed between claimant and employer at the time of the alleged injury; that the appropriate rate of weekly compensation is $217.67; that all requested medical benefits have been or will be paid by defendants; that defendants paid benefits in the sum of $3,748.68 prior to hearing. The following issues in case number 775865 are presented for determination: Whether claimant sustained an injury on September 17, 1984, arising out of and in the course of his stipulated employment; whether the injury bears a causal relationship to temporary or permanent disability; the extent of claimant's entitlement to compensation for temporary total disability, healing period or permanent partial disability; the commencement date for permanent partial disability; the type of permanent disability; whether defendant should be reimbursed $50 by reason of claimant's failure to appear for medical examination; taxation of costs. Also at issue is the extent of liability on the part of the Second Injury Fund of Iowa. REVIEW OF THE EVIDENCE Claimant testified that she is 36 years of age and a high school graduate. She began, but did not complete, a correspondence WOLFE V. IOWA MEAT PROCESSING COMPANY Page 3 art class. She anticipated.beginning a graphic communications course at Western Iowa Tech in August, 1988. Claimant testified that her work history included part-time work as a seamstress while in high school, after which she took full-time employment with that business. She worked in the laundry for a motel, worked for IBP (a meat packer) for approximately 30 days, worked about 4-5 months as a waitress for a pizza restaurant, worked on a light assembly job for about two years for an electronics company, worked in catalog, telephone and cash register as a part-time Christmas employee for a department store chain, and began her employment with defendant or a predecessor meat packing company in approximately April, 1981. Claimant had returned to work with defendant approximately one week prior to the hearing, having accepted a job "flipping bellies." Claimant testified that she suffered no hand or arm problems prior to beginning employment with defendant employer or its predecessor. However, she indicated that she began suffering bilateral problems in approximately 1982. When she first sought medical attention in January, 1983, she was then having problems with both hands and arms. However, claimant testified that her problems more severely impacted upon the right arm, hand and fingers. She suffered achiness, "locking down" of the fingers, and intermittent numbness. Claimant first complained to company nurses and was referred to Morningside Family Practice, where she was seen by several physicians over time. Claimant was first seen on January 17, 1983, and was treated with pills and a recommendation that she soak her hands at home. Claimant was returned to work without time off and told to come back if she continued having difficulties. Claimant visited Morningside Family Practice on several occasions, and was eventually referred to John, ' Dougherty, M.D. Dr. Dougherty eventually performed a carpal tunnel release and trigger finger release of three fingers on April 27, 1983. Claimant testified further that she was then off work for approximately nine months before returning to light duty in January, 1984. Claimant testified that her right hand and arm were still bothering her despite the surgery, so that she attempted to compensate by using her left hand and arm to a greater extent. Claimant further testified that her left arm began developing worse problems after her return to work and that she eventually sought medical attention to the left side on September 13, 1984. When asked what kind of troubles she had been having, she indicated the arm had been falling asleep, burning and hurting, stinging and that the whole arm generally ached. Claimant then saw Kevin A. Weidman, M.D., and D. L. Johnson, M.D. of Orthopaedic Center, P.A. Dr. Johnson performed carpal WOLFE V. IOWA MEAT PROCESSING COMPANY Page 4 tunnel surgery to the left side on February 17, 1986. Claimant testified that Dr. Johnson returned her to work without restrictions approximately two weeks later. However, she indicated rather emphatically that she did not believe the.unrestricted release was justified. In approximately March, 1987, claimant and others went out on strike. She noticed that her hands and arms still bothered her, but were much improved as opposed to times when she had to work. Claimant indicated that when she returned to work approximately one week prior to hearing, she noticed additional problems such that she now has both hands falling asleep, the left more than the right. She stated that her wrists, fingers and arms ache, get stiff, tingle, burn and get numb. She described the pain as extending to her elbows bilaterally. When asked what she is now unable to do that she could do before developing bilateral extremity problems, claimant indicated that often her children and husband do housework, that she has suffered a loss of grip strength, that her fingers "just flip out" and that she has a problem with dropping items, having broken a lot of coffee cups. Claimant was rather extensively questioned by the various attorneys in this case concerning her complaints when she first sought medical treatment in 1983. She consistently indicated that, although she was suffering problems bilaterally, it was then her right hand and arm that actually caused her to leave work and led to surgery to the right side. Claimant indicated the first time she had gone off work by reason of left hand or arm problems was in February, 1986. Claimant also testified that three physicians have advised her to leave packinghouse employment: Drs. Budensiek, Redwine and Butler. Claimant also testified to a slip and fall in 1986 after her second surgery. She described Dr. Johnson as advising that the problem was perhaps a sprain, and that it would get better in a few days. Claimant further testified that the condition did improve. Claimant also testified that she did not seek work in any active sense from the time she went on strike until returning to employment one week prior to hearing. Medical records of the Morningside Family Practice medical group dated January 19, 1983 reflect claimant's first complaints to a medical practitioner. Daniel M. Rhodes, M.D., noted sore right third and fourth fingers and sore left wrist and that claimant occasionally wakes up in the middle of the night with tingling in her fingers, both hands, left greater than right. Claimant complained of the fingers locking and of weakness and pain. Claimant showed a negative Tinel's sign bilaterally. Dr. Rhodes had an impression of mild carpal tunnel syndrome, WOLFE V. IOWA MEAT PROCESSING COMPANY Page 5 left greater than right, and right trigger finger with some tendonitis. Richard Budensiek, D.O., reported on March 31, 1983, that claimant had been seen Wednesday night (a standard calendar shows this to have been March 30), and given wrist splints and Motrin. Claimant showed a positive Tinel's sign, apparently on the right side. Dr. Budensiek had an impression of carpal tunnel syndrome and advised claimant to remain off work until the next Tuesday, which would have been April 4, 1983. Dr. Rhodes reported on April 5, 1983, that claimant showed positive Tinel's and Phalen's signs bilaterally and noted that claimant was still off work. Dr. Rhodes injected claimant in both wrists and had an impression of carpal tunnel syndrome, right greater than left, and myofascitis of the right arm. Claimant was seen again by Dr. Rhodes on April 8 and April. 11, 1983, without apparent improvement. Dr. Rhodes then referred claimant to Dr. Dougherty. Claimant was not seen again at Morningside Family Practice until September, 1984, and then with respect to her left side. John J. Dougherty, M.D., of Orthopaedic Associates of Sioux City, P.D., saw claimant on April 15, 1983. Claimant was then complaining of pain in both wrists and arms and the right fingers. Dr. Dougherty noted that the left side was not too bad and did not bother claimant that much, although she might have a slight tendency to triggering. X-rays of the hands and wrists were essentially negative. Dr. Dougherty's impression was of stenosing tenosynovitis, right long, ring and little fingers, with a suggestion of some on the left, but not bad, and possible carpal tunnel syndrome. As did Dr. Rhodes, Dr. Dougherty had some question as to claimant's emotional stability. Claimant was referred for electromyographic studies on April 20, 1983. B. Krysztofiak, M.D., reported motor distal latency of the right median nerve to be in high level or normal and a slowing of conduction of the motor fibers on the right median nerve across the wrist. Motor sensory latencies of the left median nerve were normal and ulnar nerve conduction was normal bilaterally. The results of the studies were suggestive of the presence of early carpal tunnel syndrome on the right side. Dr. Dougherty performed surgery to the right side on April 27, 1983. That procedure involved a release of the tendon sheath on the right long, ring and little fingers followed by a partial synovectomy to the little finger with a carpal tunnel release and partial synovectomy of the carpal tunnel. Thereafter, Dr. Dougherty's diagnosis was stenosing tenosynovitis right long, ring and little fingers and carpal tunnel syndrome with chronic synovitis. WOLFE V. IOWA MEAT PROCESSING COMPANY Page 6 Dr. Dougherty saw claimant repeatedly through August, 1983. Claimant appeared to form a keloid at the site of surgery and was slow in recovering. Dr. Dougherty was of the view that claimant was not actively participating i.n her own rehabilitation. As of August 9, 1983, Dr. Dougherty reported that claimant continued to crepitate and recommended that claimant return to work if she could be found a light-duty job. He wrote to a claim examiner for Argonaut Insurance Companies on August 25, 1983, stating his view that it would be beneficial for claimant to return to work using her hand as much as possible, although not on a knife. Dr. Dougherty did not see claimant again until November 5, 1987. Claimant returned to Morningside Family Practice on September 17, 1984. Dr. Budensiek's notes of that date reflect that claimant had left arm soreness radiating up into the jaw and down into the muscles between the first and second digits of the left hand, and that this began today when claimant began "flipping bellies." Claimant showed tenderness of the left thumb and muscles between the thumb and first finger with positive Tinel's and Phalen's signs. Dr. Budensiek had an impression of thenar myositis with possible. early carpal tunnel syndrome. Dr. Budensiek reported on September 20, 1984, that claimant had some numbness of the second and third fingertips, had no crepitations or swelling over the extensor tendons, a normal range of motion, and mildly positive Phalen's and Tinel's signs. His impression was of mild carpal tunnel syndrome, left wrist, and mild tenosynovitis of the left extensor tendons of the hand, resolving. Claimant was treated with rest and splints. The notes of September 17 and 20 indicate that claimant was taken off work on September 17, 1984 and released to return to work on September 24, 1984. Claimant was seen by John N. Redwine, D.O., on December 11, 1984. His impression was of left-sided carpal tunnel syndrome; Dr. Redwine advised that claimant could continue light duty at work, but should return for an EMG. Dr. Redwine saw claimant again on December 14 and December 19, finding that Tinel's sign was negative on the latter date, claimant had good range of motion, that claimant's nerve conduction studies were normal, and that claimant's left wrist carpal tunnel syndrome had resolved. The Iowa Meat Processing plant was at that time shut down. Dr. Redwine saw claimant again with complaints of swelling and tenderness in the right hand on April 11, 1985 and claimant saw Dr. Budensiek on April 19, 1985. On referral from Dr. Dougherty, claimant was seen by Bruce Butler, M.D., on December 5, 1983. She had not yet returned to work as of that date. Examination showed no evidence of recurrence of carpal tunnel syndrome on the tight, claimant had no real sensory change compared to her "normal" hand or to the ulnar nerve fingers, although she might have a little bit of ulnar nerve discomfort at the elbow. Claimant lacked WOLFE V. IOWA MEAT PROCESSING COMPANY Page 7 full flexion of the fingers of which she made complaint, and also of soreness. Dr. Butler was unwilling to determine a final disability rating until at least a year from surgery and until claimant had reached maximum range of motion. Dr. Butler saw claimant again on February 22, 1984, at which time she was doing well. She was then working full-time on a lighter job and had excellent range of wrist motion, finger extension and finger flexion, although still some slight loss of full flexion. On April 18, 1984, Dr. Butler reported that claimant's right carpal tunnel was basically improved and her trigger finger completely resolved. Dr. Butler noted that claimant had been shifted around on her job from various types of work because of inability to handle various occupations, including the use of a Wizard knife. Dr. Butler did not feel claimant had a recurrent carpal tunnel syndrome and had no trigger finger. Further, he stated: On my examination, if I put all the fingers in the palm and touch the palm, she can hold them in that position but tells me she is holding them there with her little finger which is very difficult to do. In any event, she has residual discomfort and slight sensory loss from the carpal tunnel surgery. This is not unusual, and I would consider that she has a 10% impairment of the right upper extremity secondary to chronic residuals of carpal tunnel syndrome. This is based on figures obtained from the American Medical Association Guide to the Evaluation of Impairment. In addition, we would concur that she has a slight loss of flexion in all fingers, being able to flex within a half inch of the palm in all digits, and I would consider this as a proximal interphalangeal joint problem and rate it as loss of 20 degrees motion in each of the four PIP joints which would be a 12% impairment of each of the four digits. A 12% impairment of the index finger is a 3% impairment of the hand. A 12% impairment of the long finger is a 2% impairment of the hand. A 12% impairment of the ring finger is a 1% impairment of the hand. A 12% impairment of the little finger is a 1% impairment of the hand. Accordingly, she would have a 7% impairment of the hand for lost motion in her fingers; a 7% impairment of the hand as a 6% impairment of the extremity. .Combining this with a 10% impairment of the extremity for a chronic carpal tunnel syndrome, she would have a 15% impairment of the involved right upper extremity. I feel at this time maximum benefit of medical and surgical treatment has been obtained. I do not see any need for any further follow-up. WOLFE V. IOWA MEAT PROCESSING COMPANY Page 8 Dr Butler saw claimant again on June 10, 1985, but found claimant basically unchanged since her previous disability rating and with "nothing for her to worry about at this time." Claimant saw Kevin A. Weidman, M.D., on December 23, 1985, with complaints of left hand and wrist pain with numbness that awakened her at night. She had positive Phalen's and Tinel's signs and also light thenar atrophy. Dr. Weidman had an impression that claimant would need carpal tunnel surgery and provided her a return to work with limitations of no lifting over ten pounds, no knives, and no work greater than eight hours per day. Dr. Weidman saw claimant again on January 13, 1986. She had made no real improvement since her previous visit, despite an injection in the wrist and elbow. Claimant then underwent surgery to the left side on February 17, 1986. This was described as a left carpal tunnel release with medial neurolysis, division tendon sheath left first and second dorsal compartments. The surgery was performed by D. L. Johnson, M.D. Dr. Johnson's diagnosis was of left carpal tunnel syndrome, tenosynovitis first and second dorsal compartments left wrist. Dr. Johnson reported on March 3, 1986 that claimant's wounds were clean and dry and that she had better sensation in her hand, but some tugging of the flexors to the long and ring fingers. He recommended that she use the hand as tolerated and reported that claimant had no specific restrictions at that time. Dr. Johnson reported seeing claimant again on March 19, 1986. Claimant at that time complained of inability to perform her job because of difficulties with the left hand. Claimant reported some limitation of motion and some stiffness in the wrist and hand in the flexor tendons as well as the extensor tendons and pain referred up the arm. Wounds were well healed. Dr. Johnson recommended physical therapy and took her off work for two weeks. Dr. Johnson reported seeing claimant again on April 2, 1986, at which time she reported burning pain in the first dorsal web space on the left and also up along the brachial radialis proximal to her incisions. Strength was improving. Claimant still had a little stiffness at the extremes of motion of the wrist, but Dr. Johnson believed that claimant could return to unrestricted activity and believed that use of her wrist was an important factor in rehabilitation. He reduced claimant's physical therapy by two-thirds and recommended that she return in two to three months. However, claimant returned on April 10, 1986, suffering from an exacerbation of her tenosynovitis when she fell on the left hand. She was taken off work for the remainder of the week and released to light-duty work for the week following that. Claimant was seen again on April WOLFE V. IOWA MEAT PROCESSING COMPANY Page 9 21 and June 11, 1986. She was released without restrictions on the latter date. Thereafter, claimant saw Dr. Butler again on October 5, 1987, for reevaluation of both upper extremities. He found claimant's impairment to be basically unchanged from April, 1984. On the left, claimant showed a well-healed two-inch incision just above the wrist on the ulnar side and had a slight decrease in sensation as a residual of her carpal tunnel surgery. Dr. Butler considered patients who had undergone a carpal tunnel release surgically to have a permanent ten percent impairment of the extremity based on a slight permanent loss of sensation and grip strength. Dr. Butler felt that claimant had reached maximum benefit of medical and surgical treatment and was fit for performing light duty as long as there was no heavy lifting, pushing and pulling involved. Dr. Butler then wrote to attorney Harry W. Dahl on November 23, 1987 to clarify that his ten percent impairment of the left extremity corresponded to an eleven percent impairment of the hand. He wrote: Your questions about cause and effect are difficult to answer. We know that if a patient has carpal tunnel syndrome on one side that the chance of occurrence on the other side is greater than in the patient who has not had any carpal tunnel syndrome. Some feel that the need to work the so-called normal side harder while the initial side recovers may bring on the symptoms. It might not have come on or that might have come on much later, that is probably where this girl sits. My judgement would be that since both occurred relatively at the same time that the second side became involved because the first side did not do a good days work, so I would think that this would make this job related on both sides. Claimant was seen again by Dr. Dougherty on November 5, 1987. Dr. Dougherty wrote to attorney Judith Higgs on November 10 of that year. At that time, claimant had not worked since March, due to the previously noted labor dispute. After reviewing reports from Drs. Butler, Johnson and Nitz and his own records, Dr. Dougherty concluded that claimant was probably doing most everything she wanted to at that point and that she would be working, but for the strike. Dr. Dougherty further opined that claimant had sustained a 5-7 percent permanent partial impairment of both hands. On the left, this probably could include a little bit of the wrist; on the right, a little bit of the fingers. He went on to state: As I mentioned, I think both of them would be more related to the hand, which would extrapolate to essentially the same thing as far as the arm. As far as functional impairment, I don't [sic] think she has any significant functional impairment.. I think she does pretty much what she wants to do. It would be my opinion that WOLFE V. IOWA MEAT PROCESSING COMPANY Page 10 perhaps she may have some discomfort if she overuses her hands. I don't think there is any significant problems with the elbow at this point in time. As far as the injury to the right and left side developing simultaneously, on reviewing the records, appears the right bothered her first and then the left subsequently came along and began to give her some discomfort. As I recall, following the surgery on her right hand, I followed her thru about August of 1983 and I was having a tremendous amount of difficulty in getting her range of motion. That seems to be pretty well returned now. Basically, I think she is doing OK. Would see no reason why she couldn't be working if there was not a strike. I don't think anything else is indicated as far as further treatment and I would feel that is her disability. Exhibits of record reflect that attorney Judith Higgs (representing employer and Chubb Group of Insurance Companies) wrote claimant's present and then attorney, Harry H. Smith, on April 7, 1987 to note that an independent medical evaluation had been scheduled for claimant with Dr. Dougherty on September 9, 1987 and asking Mr. Smith to inform claimant of the appointment. Ms. Higgs also requested that if claimant could not attend for any reason, that Mr. Smith let her know immediately so that the appointment could be rescheduled. Claimant testified that she never knew of the appointment. There is no evidence that Mr. Smith did not receive the letter from Ms. Higgs. In any event, Dr. Dougherty submitted a charge of $50 for the missed appointment. 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(l). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The supreme court of Iowa in Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934) at 731-32, discussed the definition WOLFE V. IOWA MEAT PROCESSING COMPANY Page 11 of personal injury in workers' compensation cases as follows: While a personal injury does not include an occupational disease under the workmen's Compensation Act, yet an injury to the health may be a personal injury [Citations omitted.] Likewise a personal injury includes a disease resulting from an injury .... The result of changes in the human body incident to the general. processes of nature do not amount to a personal injury. This must follow, even though such natural change may come about because the life has been devoted to labor and hard work. Such resuit of those natural changes does not constitute a personal injury even though the same brings about impairment of health or the total or partial incapacity of the functions of the human body. .... A personal injury, contemplated by the Workmen's Compensation Law, obviously means an injury to the body, the impairment of health, or a disease, not excluded by the act, which comes about, not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee. [Citations omitted.] The injury to the human body here contemplated must be something, whether an accident or not, that acts extraneously to the natural processes of nature and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. The claimant has the burden of proving by a preponderance of the evidence that the injuries of January 17, 1983 and September 17, 1984 are 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.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 WOLFE V. IOWA MEAT PROCESSING COMPANY Page 12 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962). When an aggravation occurs in the performance of an employer's work and a causal connection is established, claimant may recover to the extent of the impairment. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960). The right of a worker to receive compensation for injuries sustained which arose out of and in the course of employment is statutory. The statute conferring this right can also fix the amount of compensation to be paid for different specific injuries, and the employee is not entitled to compensation except as provided by the statute. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). The most serious bone of contention in this case is how many injuries claimant sustained and when they were sustained. Claimant did not suffer single, traumatic incidents. Rather, she developed bilateral carpal tunnel syndrome over a period of time: that is to say, a cumulative injury. Two recent decisions have dealt with this issue. Himshoot v. Montezuma Mfg., file numbers 672778 and 738235 (App. Decn. April 15, 1988) and Johnson v. George A. Hormel & Co., file numbers 782796 and 792733 (App. Decn. June 21, 1988) held that bilateral carpal tunnel syndrome is one injury when symptoms for both hands occur at the same time, even though, in Himshoot, the treatment and surgery for each arm occurred on different dates about a year apart. In Himshoot, claimant experienced numbness in both hands and pain that went up into her arms, the right arm worse than the left, a funny feeling in the right index finger, loss of grip strength and a ganglion cyst on the right wrist. In this case, it is undisputed in the record that claimant first made complaint on January 19, 1983 with sore right third and fourth fingers and sore left wrist and tingling in the fingers of both hands, left greater than right (based on the subsequent history, Dr. Rhodes may well have confused the two sides). Dr. Rhodes had an initial impression of mild carpal tunnel syndrome, left greater than right and right trigger finger with some tendonitis. On April 5, 1983, claimant showed bilateral positive Tinel's and Phalen's signs. She was treated with injections in both wrists and Dr. Rhodes continued to express his impression of bilateral carpal tunnel syndrome, right greater than left. When claimant saw Dr. Dougherty on WOLFE V. IOWA MEAT PROCESSING COMPANY Page 13 April 15, 1983, his impression was of stenosing tenosynovitis, long, ring and little fingers on the right, with a suggestion of some on the left, but not bad, and possible carpal tunnel syndrome. Dr. Butler noted that the problems with each hand came on at essentially the same time. Even though claimant's left side appreciably worsened in the year following her right side surgery, it is clear that her condition arose from cumulative trauma and manifested itself bilaterally at the time she first sought medical attention. Under the authority of Himshoot and Johnson, it must be held that claimant's bilateral carpal tunnel syndrome is one injury because symptoms for both hands occurred at the same time. The parties do not truly dispute whether claimant suffered work-related injuries, but dispute as to when and how many. It is stipulated that claimant sustained an injury arising out of and in the course of her employment on January 17, 1983. Although the stipulation relates to claimant's right hand, there is no real. dispute that the left hand was also then involved. There is no evidence that claimant's disability arose from any other source beyond employment. Dr. Butler, for one, specified his opinion that claimant's disability is job related on both sides, although he was of the view that a second injury affected claimant's left side. However, in this context the date of injury is a legal, not a medical question. It is held that claimant has established causal connection between the work injury and disability resulting from her bilateral carpal tunnel syndrome. Although the parties have stipulated to an injury date of January 17, 1983, it appears that claimant did not actually miss work until March 29, 1983. In cumulative injury cases, the last day of work is the injury date rather than when an individual first made complaint to a medical practitioner. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). Healing period can be interrupted or intermittent. Willis v. Lehigh Portland Cement Co., II-1 Iowa Industrial Commissioner Decisions 45 (1984); Teel v. McCord, 394 N.W.2d 405 (Iowa 1986). Claimant's healing period is intermittent. As stipulated, it began on March 29, 1983. Claimant was released to a light-duty job on August 9, 1983, by Dr. Dougherty. This ended the first segment of healing period, although.claimant had not at that time reached maximum medical improvement in terms of the complete termination of healing period. The record reflects that claimant was again off work, this time for her left side, from September 17 through September 24, 1984. Claimant next missed work when she underwent surgery on February 17, 1986. She was released without restrictions on March 3, 1986, but was later taken off work for two weeks from March 19, 1986 to April 2, 1986. Claimant was at that time released to return to unrestricted activity, which ended her healing period. Under Iowa Code WOLFE V. IOWA MEAT PROCESSING COMPANY Page 14 section 85.34(l), healing period ends when it is medically indicated that significant improvement from the injury is not anticipated or until the employee is medically capable of returning to substantially similar employment. Although claimant had been released without restrictions on March 3, it appears that this release was premature because of the continued healing period from March 19 through April 2, 1986. Thus, claimant's total healing period in four distinct segments is 24 weeks, 3 days. Permanent partial disability commences April 2, 1986. Workers' compensation benefits for permanent partial disability of two scheduled members caused by a single accident is a scheduled benefit under Iowa Code section 85.34(2)(s); the degree of disability must be computed on a functional basis and not on an industrial basis. Simbro v. DeLong's Sportswear, 332 N.W.2d 886 (Iowa 1983). Dr. Butler opined on April 18, 1984, that claimant had sustained a 15% impairment of the right upper extremity. This was based on a 7% impairment of the hand, which he then combined with a general 10% impairment of the right upper extremity, which he apparently feels should be assigned by reason of chronic residuals of carpal tunnel syndrome. However, a review of his letter indicates that all of claimant's functional impairment appears to be in the hand or fingers, rather than the arm. Dr. Butler wrote on November 23, 1987 to express the view that claimant had sustained an 11% impairment of the left hand. Dr. Dougherty was of the view that claimant had sustained a 5-7% permanent partial impairment of each hand; on the left, this would include a little bit of the wrist, while on the right, a little bit of the fingers. Agency expertise and experience has evolved to generally indicate a 5% rating of the hand after successful carpal tunnel surgery and 10% or greater for surgery not completely successful. Rinehardt v. John Morrell & Co., file number 769079 (App. Decn. August 17, 1988). In this case, it is clear that claimant's impairment is to the hand or wrist and not the arm, although she has some pain to her elbows. It is also clear that her surgeries have not been completely successful. Pain in the forearm following carpal tunnel surgery does not extend the injury into the arm absent evidence of disability or impairment to the arm. Streeter v. Iowa Meat Processing Co., file numbers 730461 and 809945 (App. Decn. March 31, 1989). Based on the foregoing, it is held that claimant has sustained a 7% permanent partial impairment of her right hand and an 11% permanent partial impairment of her left hand. Under Simbro, supra, the impairments should be combined and expressed as a percentage of 500 weeks, even though not calculated industrially. Under the Guides to the Evaluation of Permanent Impairment, published by the American Medical Association, a 7% impairment of the hand corresponds to a 6% impairment of the upper extremity, while an 11% impairment of the hand corresponds to a 10% impairment of the upper extremity. A 6% impairment of the upper extremity WOLFE V. IOWA MEAT PROCESSING COMPANY Page 15 corresponds to 4% of the whole person, while a 10% impairment of the upper extremity corresponds to a 6% impairment of the whole person. The combined values chart published in the guides shows that the total of a 4% and a 6% whole body impairment is 10%. Therefore, claimant shall be awarded 10% of 500 weeks, or 50 weeks of permanent partial disability. Because claimant's condition has been found to be only one injury, the Second Injury Fund of Iowa is not liable for benefits because claimant does not have a "second" injury within the meaning of the Second Injury Compensation Act, Iowa Code section 85.63, et seq. FINDINGS OF FACT THEREFORE, based on the evidence presented, the following ultimate facts are found: 1. At all times relevant, claimant was employed by defendant Iowa Meat Processing. 2. Although it was stipulated by the concerned parties that claimant sustained an injury arising out of and in the course of that employment on January 17, 1983, claimant first lost work by reason of that injury on March 29, 1983. 3. Claimant had developed symptoms of bilateral carpal tunnel syndrome as of March 29, 1983, although at that time, the symptoms were more severe on the right side. 4. Claimant underwent surgery for her right-sided carpal tunnel syndrome on April 27, 1983 and for her left-sided carpal tunnel syndrome on February 17, 1986. 5. Claimant's work injury of March 29, 1983 is causally related to disability of both claimant's left hand and right hand. 6. Claimant has sustained a functional impairment of 7% of her right hand and of 11% of her left hand. 7.Because of claimant's injury, she missed work from March 29 to August 9, 1983, from September 17 through September 24, 1984, from February 17, 1986 to March 3, 1986, and from March 19, 1986 to April 2, 1986. This is a total of 24 weeks, 3 days. 8.As stipulated, defendants Iowa Meat Processing Company and Argonaut Insurance Company paid claimant 40 3/7 weeks and 37 1/2 weeks of compensation at the stipulated rate of $288.46 prior to hearing. CONCLUSIONS OF LAW WHEREFORE, based on the principles of law previously stated, the following conclusions of law are made: WOLFE V. IOWA MEAT PROCESSING COMPANY Page 16 1. Claimant sustained an injury known as bilateral carpal tunnel syndrome on March 29, 1983. 2. Claimant's injury was to her left hand and to her right hand. 3. Claimant's injury directly caused a healing period that was intermittent in nature as set forth in the findings of fact above. 4. Claimant has sustained a permanent partial disability by reason of her work injury of March 29, 1983, of 7% to her right hand and 11% to her left hand. Pursuant to Simbro v. DeLong's Sportswear, 332 N.W.2d 886 (Iowa 1983), compensation for permanent partial disability of two scheduled members caused by a single accident is a scheduled benefit under Iowa Code section 85.34(2)(s); the degree of disability must be computed on a functional basis, but converted to a percentage of 500 weeks. Claimant's permanent partial disability is 10% of 500, or 50 weeks. 5. Claimant is not entitled to recovery against the Second Injury Fund of Iowa because she has not sustained a second injury. ORDER THEREFORE, IT IS ORDERED: Claimant shall take nothing from this proceeding with respect to file number 775865 or from the Second Injury Fund of Iowa. Defendants Iowa Meat Processing Company and Argonaut Insurance Company are liable to claimant to the extent of twenty-four (24) weeks, three (3) days of healing period benefits at the stipulated rate of two hundred eighty-four and 92/100 dollars ($284.92), totalling six thousand nine hundred sixty and 31/100 dollars ($6,960.31). Defendants Iowa Meat Processing Company and Argonaut Insurance Company are liable to claimant to the extent of fifty (50) weeks of permanent partial disability benefits at the stipulated rate of two hundred eighty-four and 92/100 dollars ($284.92), totalling fourteen thousand two hundred forty-six and 00/100 dollars ($14,246.00). Defendants Iowa Meat Processing Company and Argonaut Insurance Company are entitled to credit for alll benefits voluntarily paid prior to hearing; because the credit exceeds claimant's entitlement, claimant shall take nothing further in file number 730638. WOLFE V. IOWA MEAT PROCESSING COMPANY Page 17 Each party to this action shall be responsible for its own costs pursuant to Division of Industrial Services Rule 343-4.33. Because agency records do not reflect voluntary benefits paid by Argonaut to the degree stipulated, Argonaut Insurance Company shall file a current claim activity report within thirty (30) days of the filing date of this decision. Signed and filed this 3rd day of November, 1989. DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Harry H. Smith Attorney at Law P.O. Box 1194 Sioux City, Iowa 51102 Ms. Judith Ann Higgs Attorney at Law 200 Home Federal Building P.O. Box 3086 Sioux City, Iowa 51102 Mr. Harry W. Dahl Attorney at Law 974 73rd Street, Suite 16 Des Moines, Iowa 50312 ms. Joanne Moeller Assistant Attorney General Tort Claims Division Hoover State Office Building Des Moines, Iowa 50319 2207, 2209, 3202 Filed November 3, 1989 DAVID RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER BARBARA J. WOLFE, Claimant, File Nos. 730638 VS. 775865 IOWA MEAT PROCESSING COMPANY, A R B I T R A T I O N Employer, D E C I S I 0 N and CHUBB GROUP OF INSURANCE CO. and ARGONAUT INSURANCE CO., Insurance Carriers, and SECOND INJURY FUND, Defendants. 2207, 2209, 3202 Bilateral. carpal tunnel was one injury when symptoms developed together, although much worse on one side first. Himshoot and Johnson followed. Because there was only one injury date, SecoNd Injury Fund and insurance carrier on date of alleged second injury (when other hand got worse) were not liable. BEFORE THE IOWA INDUSTRIAL COMMISSIONER NATHAN E. GUNDERSON, Claimant, vs. File No. 731189 LEHIGH PORTLAND CEMENT CO., A R B I T R A T I O N Employer, D E C I S I O N and TRAVELERS INSURANCE COMPANIES, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Nathan E. Gunderson against Lehigh Portland Cement Company, his former employer, and the Travelers Insurance Companies. The case was heard and fully submitted at Mason City, Iowa on January 8, 1988. The record in the proceeding consists of testimony from Nathan E. Gunderson, Kimberly Engler, Roger Marquardt and Louis Fazing. The record also contains claimant's exhibits 1 through 5 and defendants' exhibit A. ISSUES Claimant seeks further benefits based upon the alleged injury of April 12, 1983. Claimant seeks additional healing period, permanent partial disability and expenses of medical treatment. The issues presented by the parties at the time of hearing are whether claimant sustained an injury on April 12, 1983 which arose out of and in the course of employment; whether the alleged injury is a proximate cause of any treatment, temporary or permanent disability; determination of the claimant's entitlement, if any, to compensation for healing period and permanent partial disability; and, determination of claimant's entitlement to expenses of medical treatment under section 85.27. SUMMARY OF EVIDENCE The following is a summary of evidence presented in this case. Only the evidence most pertinent to this decision is discussed, but all of the evidence received at the hearing was considered in arriving at this decision. Conclusions about what the evidence showed are inevitable with any summarization. The conclusions in the following summary should be considered to be preliminary findings of fact. Nathan E. Gunderson is a 46-year-old man who lives at Mason City, Iowa. Gunderson graduated from high school in GUNDERSON V. LEHIGH PORTLAND CEMENT CO. PAGE 2 1960. He was trained as a truck driver in the National Guard. Before commencing employment with Lehigh Portland Cement, he held a number of different positions including working at a car lot, painting houses, delivering furniture and appliances, working as a grain elevator laborer, driving a petroleum tank truck and management trainee for a variety store chain. Gunderson became employed by Lehigh in 1969 as a yard laborer. Over the years he held a number of different jobs. In 1981, he was in the electric shop where he earned in excess of $27,000 per year. A force reduction occurred subsequently and, on April 12, 1983, Gunderson was again working as a yard laborer earning in excess of $12.00 per hour. Gunderson testified that, on April 12, 1983, he was driving a Heister forklift truck through the yard moving pallets of material. Gunderson stated that it was cold, that he was driving fast on a rough road and that the bouncing caused his back to hurt. Claimant stated that he reported the injury to a supervisor, Chris Breen, who arranged a doctor's appointment. Claimant related that exhibit 1-12, a letter from J. K. Coddington, M.D., dated April 12, 1983, accurately reflects what happened. Claimant testified that Dr. Coddington kept him off work until November and that, during the course of treatment, he was referred to Wayne Janda, M.D., an orthopaedic surgeon. Claimant related that Dr. Janda's notes of June 15, 1983 reflect what claimant told Dr. Janda (exhibit 1-1, page 7). Claimant was treated conservatively with medication and therapy under the direction of Dr. Janda until claimant was released to return to work on or about November 7, 1983 (exhibits 1-1, page 11; 1-21). Dr. Janda diagnosed claimant's GUNDERSON V. LEHIGH PORTLAND CEMENT CO. PAGE 3 condition as being herniated nucleus pulposus L5-Sl as shown by a CT scan (exhibits 1-1, pages 9-19; 1-18). Dr. Janda initially imposed a 60-pound lifting restriction, but then changed it to 40 pounds and also restricted claimant from performing overtime work (exhibit 1-1, pages 11-15). Claimant worked as a yard laborer from November, 1983 until May 14, 1984 when a strike occurred. Claimant continued to treat with Dr. Janda during the period he had resumed working and further saw Dr. Janda subsequent to the onset of the strike. In 1984, Dr. Janda recommended that claimant consider vocational retraining (exhibits 1-1, page 14; 1-24). Claimant testified that he was able to perform his work at Lehigh within the restrictions set by Dr. Janda. While claimant was off work in 1983, he was evaluated by William R. Boulden, M.D., an orthopaedic surgeon. Dr. Boulden noted that claimant exhibited bulging of the discs at both the L4-5 and L5-Sl levels, but that the discs were not actually herniated. Dr. Boulden indicated that claimant may eventually develop actual herniation because of the bulging, but that herniation is a condition which can develop in a person who had not been previously injured. Dr. Boulden felt that the only appropriate restrictions at that time would be use of proper back mechanics (exhibits 1-19; 1-20). Lehigh alleged that claimant had participated in misconduct during the strike and, when claimant attempted to return to work on June 7, 1984, he was not rehired. Claimant and the employer eventually settled the dispute by placing claimant on a disability pension which provides him with approximately $430 per month. Gunderson testified that he enrolled at the North Iowa GUNDERSON V. LEHIGH PORTLAND CEMENT CO. PAGE 4 Area Community College in June, 1985. Claimant has two associate's degrees, one in liberal arts and the other in business. He had accumulated 89 hours of college credit by the time of hearing. Claimant stated that he needs an additional 128 hours to obtain a bachelor's degree through the program in which he currently participates. It is conducted on the NIACC campus by Buena Vista College. Claimant stated that his course of study deals with management information systems and that he is knowledgeable in the field of computer programming. Claimant has an excellent academic record. Claimant testified that, during the period of January to September 16, 1985, his condition was relatively stable. He stated that, on September 16, 1985, he awoke, stretched in bed, felt something pop and experienced a lot of intense pain in his low back. Claimant stated that, after two days of seeking relief by lying on the living room floor, he went to the hospital emergency room for medical treatment where he was seen by.Dr. Janda and referred to the Mayo Clinic. Claimant testified that he had surgery at the Mayo Clinic and that exhibit 4 contains the bills from that operation. Claimant stated that the surgery was a success, but that he continued to have back pain and muscle cramps in his legs. In June, 1987, claimant underwent a second surgery which he also characterized as being successful, but he continues to have some residual low back pain and cramps in his legs. Claimant testified that he is unable to shovel, perform continuous lifting or perform continuous sitting. Claimant stated that he is currently restricted from lifting more than 15 or 20 pounds and that he has been advised to avoid doing anything that is aggravating. GUNDERSON V. LEHIGH PORTLAND CEMENT CO. PAGE 5 Claimant testified that he has applied for a variety of jobs, one of which is a computer operator job with Cerro Gordo County which pays $3.35 per hour and provides no fringe benefits. Since leaving employment with Lehigh, claimant has held a variety of short-term or part-time jobs. During the summer of 1986, he worked at Van Horn's Truck Museum for which he was paid $3.50 per hour. He worked for a local television station operating a camera, teleprompter and video machine for which he was paid $3.35 per hour. He has tutored other students in computer language. During 1987, he earned $81.00 welding for the Iowa Traction Railroad. Claimant stated he felt that he would have been physically capable of working after the strike if he had been rehired. Claimant has also applied for maintenance electrician jobs. He stated that he did not feel capable of performing them, but needed the money. Claimant had completed a four-year maintenance electrician training program while employed at Lehigh Portland Cement. Claimant's treatment at the Mayo Clinic was performed primarily by M. J. Ebersold, M.D. Surgery was performed on October 7, 1985 to excise an extruded fifth lumbar intervertebral disc on the right (exhibits 1-30, page 3; 1-31). On April 8, 1987, Dr. Ebersold indicated that claimant's back problems, the initial surgery and the residual disability, which he determined was nine percent of the whole person, were all causally connected to the April 12, 1983 injury (exhibit 1-43). Dr. Ebersold also indicated that the second surgery, performed in June, 1987, was likewise related to the initial trauma of April 12, 1983 (exhibits 1-44; 1-45). Kimberly Engler, a qualified vocational consultant, testified that, at the time of hearing, claimant's job skills would probably provide him with an income level of GUNDERSON V. LEHIGH PORTLAND CEMENT CO. PAGE 6 approximately $12,000 per year and that, upon completion of the Buena Vista College program, he could expect to earn in the range of $18,000-$20,000 per year. Engler stated that many employers are reluctant to hire a person who has had an oil-the-job injury. Roger Marquardt, a qualified vocational consultant, stated that, if claimant finishes the four-year education and works closely with a placement office, the claimant could expect to approach, or possibly exceed, the level of earnings that he would be experiencing if he were still employed at Lehigh. Marquardt stated that claimant had prospects of earning in the range of $7.76 per hour to in excess of $20.00 per hour in the computer programmer and computer systems analyst fields. Marquardt stated that claimant had aptitude for retail management positions where the range of pay is from $3.58 per hour to $13.85 per hour. Marquardt expressed the opinion that it would be most beneficial for claimant to pursue his education in the computer field or, in the alternative, that claimant obtain a job where the employer would provide him with further training in order to increase his skills. Louis Fazing, safety and training supervisor at Lehigh since 1981, stated that, since 1984, there have been two pay increases at Lehigh of $4.00 per hour each in 1986 and 1987. Fazing stated that the total wage and fringe benefit package at Lehigh costs the employer approximately $20.00 per hour. APPLICABLE LAW AND ANALYSIS Claimant has the burden of proving by a preponderance of the evidence that he received an injury on April 12, 1983 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 GUNDERSON V. LEHIGH PORTLAND CEMENT CO. PAGE 7 Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Claimant's appearance and demeanor were observed as he testified. His testimony was considered in light of the other evidence in the record. The claimant is found to be a credible witness. It is therefore determined that claimant was injured while operating a forklift truck on April 12, 1983 as claimant alleged and testified. The claimant has the burden of proving by a preponderance of the evidence that the injury of April 12, 1983 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960. However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in.part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and.other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Drs. Ebersold and Janda relate claimant's herniated lumbar disc to the April 12, 1983 injury. Both surgeries were performed to treat that disc. Dr. Ebersold relates both surgeries to the April 12, 1983 injury. While Dr. Boulden indicated that individuals without a prior injury can develop a herniated disc, he did not state that such was the most common scenario. In fact, Dr. Boulden apparently recognized that further problems with the disc were foreseeable. It is therefore found and concluded that the injury of April 12, 1983 is a proximate cause of Gunderson's herniated L5 lumbar disc, of both surgeries employed to treat the condition and of the claimant's residual disability with regard to his low back. Since defendants have been found to be responsible for proximately causing the disc injury, defendants are therefore responsible for all expenses of treatment under the provisions of Iowa Code section 85.27. Claimant's exhibit 4 itemizes those expenses which total $17,824.51. Claimant seeks additional healing period compensation under the provisions of Iowa Code section 85.34 from the date of May 14, 1984 until whatever date Gunderson actually returns to gainful employment. Claimant's healing period was ended by his return to work in November, 1983 for which claimant acknowledges receipt of full payment. Claimant's lack of employment subsequent to the May 14, 1984 strike was not attributable to his physical condition. It is not until September 16, 1985 that GUNDERSON V. LEHIGH PORTLAND CEMENT CO. PAGE 8 claimant's physical condition disabled him beyond the permanent partial disability that existed following the November, 1983 return to work. The medical bills indicate that claimant was hospitalized from October 1 through October 14, 1985 when the first surgery was performed. The record does not contain any direct evidence with regard to the time when claimant"s recuperation from that surgery was substantially completed. Claimant stated that he had a return visit two weeks after being released from the hospital. No direct medical evidence appears in the record to specify the recovery period from either surgery. The burden of proving that entitlement rests upon the claimant. Agency expertise, however, makes it apparent that some extended period of recovery follows lumbar disc surgery and an award for a relatively short healing period is warranted. In view of the lack of other evidence in the record, it is determined that the healing period entitlement is ten weeks commencing September 16, 1985 for the first surgery and eight weeks commencing June 22, 1987. As a claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional disability is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 257 (1963). Industrial disability or loss of earning capacity is a concept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment of physical capacity creates an inference of lessened earning capacity. The basic element to be determined, however, is the reduction in value of the general earning capacity of the person, rather than the loss of wages or earnings in a specific occupation. Post-injury earnings create a presumption of earning capacity. The earnings are not synonymous with earning capacity and the presumption may be rebutted by evidence showing the earnings to be an unreliable indicator. Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 34th Biennial Report, 218 (1979): 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. Industrial disability is to be evaluated as the claimant exists immediately following recuperation from the injury. Speculation into the future is to be avoided. Stewart v. Crouse Cartage Co., file number 738644, Appeal Decision, February 20, 1987. An employee's aptitude for academic pursuits is to be considered. However, defendants who did not provide substantial retraining, such as two or four years of college, do not directly GUNDERSON V. LEHIGH PORTLAND CEMENT CO. PAGE 9 benefit, through a reduced disability award, from the employee's initiative and economic expenditures made to qualify for a new vocation which provides enhanced earning potential. The termination of claimant's employment with Lehigh does not appear to have been related to his physical condition or injury. To determine whether or not the accusation of claimant engaging in misconduct during the strike was warranted is not within the province of the undersigned. Despite the fact that the termination of claimant's employment in 1984 was not related to the condition of his back, it is apparent that he would not now be capable of performing that same type of heavy work as he performed at that time and that it would have eventually become imperative for him to change occupations. When all the appropriate factors of industrial disability are considered, it is determined that claimant has a 40% permanent partial disability as a result of the injuries he sustained on April 12, 1983. The disability award is payable commencing November 15, 1983, the day after the stipulated end of the initial healing period. It was apparent that claimant had some permanent disability at that time due to the restrictions referred to in Dr. Janda's notes. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986). FINDINGS OF FACT 1. On April 12, 1983, Nathan E. Gunderson injured his low back while operating a forklift truck as part of the duties of his employment with Lehigh Portland Cement Company. 2. Following that injury, claimant was off work and temporarily disabled until he resumed employment on November 15, 1983 as stipulated by the parties. 3. The injury of April 12, 1983 was a substantial factor in producing a permanent condition in claimant's lumbar spine which ultimately required the surgical treatment which was performed at the Mayo Clinic on or about October 1, 1985 and again on or about June 25, 1987. 4. Gunderson was totally disabled and medically incapable of performing work in employment substantially similar to that he performed at the time of injury from September 16, 1985 until November 24, 1985, a period of ten weeks, which is a reasonable allowance for recovery from surgery. 5. Claimant was totally disabled and medically incapable of performing work in employment substantially similar to that he performed at the time of injury from June 22, 1987 until August 16, 1987, a period of eight weeks, a reasonable amount of time for recovering from the 1987 surgery. 6. All medical treatment received by claimant, as evidenced by the charges contained in exhibit 4, was reasonable treatment for the injury of April 12, 1983. 7. The trauma that Gunderson sustained on April 12, 1983 was a substantial factor in producing the surgeries that he underwent on his low back in 1985 and 1987 and of the residual permanent disability in his low back. GUNDERSON V. LEHIGH PORTLAND CEMENT CO. PAGE 10 8. Gunderson has experienced a 40% reduction in his earning capacity as a result of the injuries he sustained on April 12, 1983. 9. Nathan Gunderson, and all the other witnesses who testified at hearing, are fully credible. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. Nathan E. Gunderson sustained an injury to his low back on April 12, 1983 which arose out of and in the course of his employment with Lehigh Portland Cement Company. 3. Gunderson is entitled to recover eighteen additional weeks of compensation for healing period with ten weeks thereof payable commencing September 16, 1985 and with eight weeks thereof payable commencing June 22, 1987. 4. Nathan E. Gunderson has sustained a 40% permanent partial disability under the provisions of Iowa Code section 85.34(2)(u) which entitles him to receive 200 weeks of compensation for permanent partial disability. 5. The compensation for permanent partial disability is payable commencing November 15, 1983, but is to be interrupted by the additional eighteen weeks of healing period awarded. 6. Defendants are entitled to credit for the fifty weeks of permanent partial disability compensation previously paid. 7. Defendants are responsible under the provisions of Iowa Code section 85.27 for payment of all of claimant's medical expenses as contained in exhibit 4 in the total amount of $17,824.51 plus mileage in the amount of $273.00. 8. Claimant's permanent partial disability is to be evaluated as he exists at the end of his recuperation, with consideration given to his experience, aptitudes and all other material factors, but without speculation with regard to whether he will in fact complete a particular course of study or obtain a particular job. 9. Defendants who do not pay the costs of retraining an employee subsequent to the employee's injury are not entitled to directly benefit from enhancement of the employee's earning capacity which results from substantial retraining acquired by the employee at his own expense. ORDER IT IS THEREFORE ORDERED that defendants pay claimant eighteen (18) weeks of compensation for healing period at the stipulated rate of three hundred five and 66/100 dollars ($305.66) per week with ten (10) weeks thereof payable commencing September 16, 1985 and with the remaining eight (8) weeks payable commencing June 22, 1987. GUNDERSON V. LEHIGH PORTLAND CEMENT CO. PAGE 11 IT IS FURTHER ORDERED that defendants pay claimant two hundred (200) weeks of compensation for permanent partial disability at the stipulated rate of three hundred five and 66/100 dollars ($305.66) per week payable commencing November 15, 1983. Defendants are entitled to credit against the award for the fifty (50) weeks of benefits previously paid. Payment of permanent partial disability is to be suspended for periods when healing period compensation for the same injury is being paid. IT IS FURTHER ORDERED that defendants pay claimant's expenses listed in exhibit 4, under the provisions of section 85.27, as follows: Wal-Mart 09-18-85 thru $ 38.32 10-19-85 St. Joseph Mercy Hospital 09-22-85 47.25 Dr. Janda 09-27-85 24.00 St. Joseph Mercy Hospital 09-29-85 531.00 Dr. Janda 10-01-85 30.00 Dr. Hayreh 10-01-85 90.00 Radiologists of Mason City 10-05-85 180.00 Mayo Clinic 10-16-85 4,023.95 St. Mary's Hospital 10-17-85 3,507.04 Dr. Janda 10-22-85 60.00 Mayo Clinic 07-07-87 4,932.00 St. Mary's Hospital 10-01-87 4,360.95 Totals $17,824.51 IT IS FURTHER ORDERED that defendants pay claimant two hundred seventy-three and 00/100 dollars ($273.00) in mileage and transportation expenses. IT IS FURTHER ORDERED that defendants pay the costs of this proceeding pursuant to Division of Industrial Services Rule 343-4.33. IT IS FURTHER ORDERED 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 14th day of November, 1988. GUNDERSON V. LEHIGH PORTLAND CEMENT CO. PAGE 12 MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert W. Pratt Attorney at Law 1913 Ingersoll Avenue Des Moines, Iowa 50309 Mr. C. Bradley Price Mr. Mark A. Wilson Attorneys at Law 30 Fourth Street NW P.O. Box 1953 Mason City, Iowa 50401 1402.20, 1402.30, 1802, 1803 Filed November 14, 1988 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER NATHAN E. GUNDERSON, Claimant, vs. File No. 731189 LEHIGH PORTLAND CEMENT CO., A R B I T R A T I O N Employer, D E C I S I O N and TRAVELERS INSURANCE COMPANIES, Insurance Carrier, Defendants. 1402.20, 1402.30, 1802, 1803 The claimant was found to be credible. His testimony was relied upon to establish the alleged injury. Expert medical opinions established causal connection between the injury and the treatment and disability. The claimant underwent two separate back surgeries, but the evidence did not provide any specific statement regarding release, return to work or maximum improvement. Agency expertise was relied upon to assign a conservative healing period for each surgery. Ten weeks and eight weeks were allowed. The injury forced the claimant out of occupations which involve physical labor. The employee's education at the time of injury was limited to high school and some electrician training provided by the employer during his employment. Claimant was awarded 40% permanent partial disability despite the fact that he is currently attending college and has maintained an excellent academic record. Testimony from vocational consultants showed that, without retraining, his earning capacity was extremely restricted, but that, with retraining, he had some reasonable expectation of eventually obtaining a level of earnings comparable to those he would have if he were still employed by the employer. Claimant's employment with the employer was terminated for reasons unrelated to his disability (possible misconduct), but it was clear that he would not have been physically capable of continuing to perform that employment. BEFORE THE IOWA INDUSTRIAL COMMISSIONER RUTH ANN (GAJESKI) CARTER, Claimant, File No. 732627 vs. A R B I T R A T I O N OSCAR MAYER COMPANY, D E C I S I O N Employer, Self-Insured, F I L E D Defendant. APR 17 1989 INDUSTRIAL SERVICES INTRODUCTION This is a proceeding in arbitration brought by Ruth Ann (Gajeski) Carter against Oscar Mayer Company, her self-insured employer, based upon an injury of May 16, 1983. The case was consolidated for hearing with file number 830031 and was heard and fully submitted at Davenport, Iowa on July 7, 1988. The record in this proceeding consists of testimony from claimant and from Monica Murphy. The record also contains claimant's exhibits 1 through 9 and defendant's exhibits A through DD. ISSUES Claimant seeks compensation for permanent partial disability affecting her neck, shoulder and back based upon the May 16, 1983 injury. The issues for determination include whether or not any condition affecting claimant's neck, shoulder or back was proximately caused by the events that occurred on May 16, 1983, the extent, if any, of permanent partial disability resulting from that incident and whether or not claimant's claim is barred by lack of notice under the provisions of Code section 85.23. SUMMARY OF EVIDENCE The following is a summary of evidence presented in this case. Of all the evidence received at the hearing, only that considered most pertinent to this decision is discussed. ConcLusions about what the evidence showed are inevitable with any summarization. The conclusions in the following summary should be considered to be preliminary findings of fact. Ruth Ann Carter is a 27-year employee of Oscar Mayer Company. On May 16, 1983 she was lifting a tub of meat weighing 40-60 pounds when she experienced the onset of pain. Claimant testified that the pain was in her groin and also in her shoulder and that she reported the incident to the plant nurse, including pain in her groin and shoulder areas. Claimant stated that she saw Gordon A. Flynn, M.D., at the plant and was then sent on to Dr. Bishop at the clinic. Dr. Flynn's note of May 18, 1983 contains no reference of neck, shoulder or back complaints (exhibit D, page 1). Claimant was diagnosed as having bilateral hernia and underwent bilateral inguinal hernioplasty on June 22, 1983 (exhibit S) . Claimant returned to work August 15, 1983 (exhibit DD, page 18). A note from Dr. Flynn dated September 9, 1983 indicates that claimant complained of right arm and elbow problems. The following note which is dated April 17, 1984 notes complaints of pain in the right shoulder which had been present for almost a year and which had started with lifting tubs (exhibit D, page 2). Subsequent to that date, other records found in the exhibits contain references to claimant complaining of neck, shoulder and back pain. Claimant was referred to Byron W. Rovine, M.D., a neurosurgeon. Dr. Rovine, in his report dated May 4, 1984, concluded that claimant had cervicobrachial pain syndrome of undetermined etiology. The report indicates that claimant told him that she had similar symptoms prior to May of 1983. Dr. Rovine found no objective neurological evidence of cervical radiculopathy (exhibit H). Claimant was also treated by Richard A. Roski, M.D. In a report dated November 7, 1985, Dr. Roski states: ...I think it is related to a chronic muscle strain that may be secondary to her injury in 1983. Claimant was also seen by John E. Sinning, M.D., an orthopaedic surgeon. Dr. Sinning concluded that claimant has degenerative cervical disc disease of a long-standing origin which existed prior to claimant's 1983 accident. Dr. Sinning felt that the degenerative disc disease is the source of claimant's symptoms. He declined to relate claimant's complaints to the 1983 accident (exhibit R, pages 9-11). Records show that claimant was hospitalized in Zion, Illinois in 1982 for problems dealing with her neck (exhibits F, G, H and T). APPLICABLE LAW AND ANALYSIS In this case, claimant makes claim only for disability regarding her neck, shoulder and back. She specifically made no claim for permanent disability connected to the hernias which she had experienced. She specifically made no claim for any healing period or temporary total disability. The record clearly shows that claimant did sustain an injury on May 16, 1983. The fact that the employer's records do not make note of shoulder complaints is not particularly persuasive since claimant was clearly afflicted with an apparently more acute condition in the nature of the hernias. Further, an employee's notice of injury need not contain every symptom. It need only inform the employer that an injurious event has occurred. Moudry v. Protivin Fire Department, file number 753632, (App. Decn., August 16, 1988). Claimant has the burden of proving by a preponderance of the evidence that she received an injury on May 16, 1983 which arose out of and in the course of her 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 claimant has the burden of proving by a preponderance of the evidence that the injury of May 16, 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.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.?d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). In view of claimant's preexisting degenerative cervical condition, it is certainly easy to believe that the lifting incident of which she testified could have aggravated that condition. Aggravation of a preexisting degenerative condition is an injury which normally resolves itself with a few weeks of rest. Claimant was off work for hernia surgery for several weeks following May 16, 1983. Any injury in the nature of an aggravation should have resolved in that period. The record of this case fails to contain any expert medical opinion which relates claimant's current complaints to that May 16, 1983 incident. Claimant's own testimony is not found to be sufficient to establish by a preponderance of the evidence that any injury to her cervical spine, back or shoulder was permanent in nature. The greater weight of evidence from the physicians is to the contrary. The most supportive of claimant's condition is Dr. Roski who simply states that the condition be secondary to her injury in 1983. Dr. Rovine states that her condition is of undetermined origin while Dr. Sinning states that the current complaints are simply due to the degenerative condition. While claimant may very likely have experienced a temporary aggravation of a preexisting condition with regard to her shoulder and cervical spine in the events that occurred on May 16, 1983, the evidence fails to show that any disability resulting therefrom extended beyond the time that claimant was disabled for the hernias. The evidence further fails to show, by a preponderance of the evidence, that any injury or aggravation affecting claimant's neck, shoulder or back produced any permanent disability. FINDINGS OF FACT 1. The evidence in this case fails to show that it is probable that claimant experienced any permanent disability as a result of the events which occurred on May 16, 1983 at her place of employment. 2. The evidence does establish that claimant had a preexisting degenerative condition in her cervical spine prior to May 16, 1983. 3. The evidence in this case is consistent with an aggravation of a preexisting condition or a muscle strain having occurred on May 16, 1983. Injuries of that nature normally resolve within the amount of time that claimant was off work under treatment for the hernias. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. Claimant has failed to prove, by a preponderance of the evidence, that she sustained any permanent partial disability involving the condition of her neck, shoulder or back in the incidents that occurred on May 16, 1983. ORDER IT IS THEREFORE ORDERED that claimant take nothing from this proceeding. IT IS FURTHER ORDERED that the costs of this action are assessed against claimant pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 17th day of April, 1989. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Albert J. Stafne, Jr. Mr. Thomas H. Preacher Attorneys at Law 2535 Tech Drive, Suite 200 Bettendorf, Iowa 52722 Mr. Richard M. McMahon Ms. Vicki L. Seeck Attorneys at Law 600 Union Arcade Building 111 East Third Street Davenport, Iowa 52801-1550 51402.30, 51402.40, 51803 Filed April 17, 1989 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER RUTH ANN (GAJESKI) CARTER, Claimant, File No. 732627 vs. A R B I T R A T I O N OSCAR MAYER COMPANY, D E C I S I O N Employer, Self-Insured, Defendant. 51402.30, 51402.40, 51803 Claimant suffered an injurious strain while lifting which produced a hernia. The issue in this case was whether it also affected her neck, shoulder or back. Claimant had no expert medical evidence to support her claim and the claim was denied. BEFORE THE IOWA INDUSTRIAL COMMISSIONER DENNIS SANBORN, Claimant, File Nos. 732672 & 830408 vs. A R B I T R A T I O N GRISSEL COMPANY, INC., D E C I S I O N Employer, and ROYAL INSURANCE COMPANY and IOWA CONTRACTORS WORKERS' COMPENSATION GROUP, Insurance Carrier Defendants. INTRODUCTION This is a proceeding brought by Dennis Sanborn, claimant, against Grissel Company, Inc., employer, and Royal Insurance Company and Iowa Contractors Workers' Compensation Group, insurance carriers, defendants. These cases come upon petitions for arbitration for benefits as a result of alleged injuries occurring on May 20, 1983 and on October 8, 1984. The cases were heard by former Deputy Industrial Commissioner Garry D. Woodward on March 30, 1988. The cases were fully submitted on that date. On July 13, 1988, the cases were transferred to the undersigned by David E. Linquist, Industrial Commissioner. A transcript of the hearing was received by the division on October 12, 1988. Pursuant to prehearing reports, the parties stipulated to various issues at trial. With reference to file number 732672, the parties stipulated that claimant sustained an injury on May 20, 1983 which arose out of and in the course of his employment. At the time of the injury, the insurance carrier was Iowa Contractors Workers' Compensation Group. At the time of the injury which allegedly occurred in October of 1984, the insurance carrier was Royal Insurance Company. The record consists of the testimony of claimant, the testimony of Roger Marquardt, a vocational rehabilitation specialist. The record also consists of exhibits 1-13 inclusive. ISSUES The issues presented by the parties at the time of the prehearing and the hearing are: (1) Whether claimant received an injury which arose out of and in the course of employment; (2) SANBORN V. GRISSEL COMPANY, INC. PAGE 2 Whether there is a causal connection between the alleged injury and the disability; and, (3) Whether claimant is entitled to temporary disability/healing period benefits or permanent partial or total disability benefits. FACTS PRESENTED Claimant was employed as a sheet metal worker for defendant. Claimant had been employed in that capacity since 1973. He last worked for defendant in October of 1984. At the time of the hearing, claimant was six feet two inches tall; he weighed approximately 350 pounds. Claimant reported that since the age of nine or ten, he had experienced problems with his weight. Medical records indicate that since the 1960's, claimant has had recurring back pain. As early as 1968, there is evidence of physical problems, including numbness in the legs. Leland Hawkins, M.D., in his consultation notes writes: ...In the right lower extremity, the patient had weakness of the right extensors and of the ankle and toes on his right side. He felt this may have been from his original episode of back pain that had occurred back in the late '60's .... The medical records of James A. Smrha, M.D., for August of 1974, reveal the following: Injured back lifting pipes onto scaffold. Severe pain. X-ray shows cortical bone torn from anterior surface of upper portion of L5. Dr. Strathman consult. Severe LS strain. Fitted with lumbosacral support. Dr. Smrha's medical records also reveal the following: Feb. '79: Injured back 3 months prior to this visit. Helping carry aheavy [sic] beam. Able to function, but two days ago had another heavy lift and now back is very sore. Wt - 400#. Severe LS strain. Appt. made with Dr. Anderson in Ia. City. Pt. wants gastric stapling done. After the injury in May of 1983, Dr. Smrha again treated claimant for back problems. Dr. Smrha's notes provide: May '83: Severe LS strain from heavy lift yesterday. Bp-132/66. p-68 Admitted tohospital [sic]. Dr. Hawkins consult. July '83: fairly comfortable. On Naprosyn bid. Unable to dorsiflex right foot-- Sept. 84. Claimant was referred to Dr. Hawkins from Dr. Smrha after the injury in May of 1983. Dr. Hawkins, in his consultation record reports: ...The patient's plain X-rays demonstrated some degenerative changes with narrowing of the L-4,5 and L-5, S-2 disc space. Because of the 1983 injury claimant was paid 11 weeks of compensation at the rate of $381.22 per week. Claimant, later returned to work. SANBORN V. GRISSEL COMPANY, INC. PAGE 3 After the 1983 injury, claimant testified in his deposition: Q. Where there any other ways that your back bothered you in terms of your everyday activities after 1983 that had not previously bothered you? A. Other than the fact you just had to be a little more careful in what you done, no. Q. Would you feel pain in sitting after 1983? A. Now, we are getting into -- I never really paid all that much attention. It's basically been the lifting and all that. I would say not very much, if any. The only thing I noticed between 83 and '84 was the leg getting a little worse and having to be careful on the back as far as how I moved. Q. And you described the leg as being in your ankle and foot region, is that right? A. Right. Q. Did you notice any pain in the back of your thighs extending down from your back during that period of time? A. Not that I can recall right off. Q. Okay. After you returned to work, were you unable to perform some of the aspects of your job the way you had before? A. No, I pretty much done everything. I would say if you wouldn't be able to do your job, they just plain wouldn't have you there. We would get a load of steel in, we would have to unload the steel right along with the rest of the people, you know. Q. Would it be fair to say after you returned to work, your job involved essentially the same functions as you had before? A. I would say yes. (Exhibit 11, page 54, line 20 to page 56, line 1) Claimant testified that he was not certain whether the alleged injury in October of 1984 occurred on the fourth or on the eighth. However, at his deposition, claimant revealed he felt a pain when he attempted to push a sheet of metal onto sawhorses. Claimant testified he felt a sharp knife-like pain through his lower back. (Ex. 11, p. 65, 11. 4-25) Subsequent to the 1984 injury, claimant was treated by James Turner, M.D. Dr. Turner performed a laminectomy. In his deposition, Dr. Turner provided his diagnosis of claimant: ... When this -- the lamina or the overlying bone -- was removed, the underlying nerve root was -- my note says "severely compressed." The root was gradually immobilized and retracted, gotten out of the way, and SANBORN V. GRISSEL COMPANY, INC. PAGE 4 then a small fragment of disc material was removed and the disc space was further explored. There was also a bony ridge present -- -- osteophyte, if you will -- and this was removed to give the nerve root more room at the 3-4 level. Because of the root cut on the myelogram, this level was explored. There appeared to be a moderate amount of pressure, and this was relieved with bony decompression. obvious disc herniation. Otherwise, it was an uneventful closure. Subcutaneous fat was placed around the roots to try to prevent future scarring, and the wound was closed. (Ex. 12, pp. 8-9, 11. 11-5) Claimant received physical therapy. He worked on weight loss, general conditioning and he was seen by various rehabilitation counselors. Claimant was last seen by Dr. Turner on June 2, 1986. Nearly one year after the 1984 injury, claimant was referred to R. F. Neiman, M.D., for purposes of evaluation by defendant, Royal Insurance Company. Dr. Neiman advised a more aggressive approach to treatment. After the evaluation by Dr. Neiman, claimant was referred to Professional Rehabilitation Management, Inc., by defendant, Royal Insurance Company. Claimant was assigned to Janice Craven, M.A., a counselor with P.R.M. Ms. Craven attempted to secure part-time employment for claimant as a clerk or as an employee conducting inventory or performing telemarketing. No employment was obtained. Claimant was later enrolled in the Kirkwood Community College Skill Centers program. However, after training in the computer area, claimant was released from the program. According to John Hughes, counselor at Kirkwood, claimant was released from the program because: ... [W]e have explored all your limitations and based upon your report of an inability to sit for a moderate amount of time and the infrequent lifting limitations you experience it would appear that you are handicapped too severe for services. I would encourage you to recontact us when/if your limitations stabilize. (Ex. 8) Since the date of the 1984 injury, claimant has not been employed on either a full or part-time basis. Claimant is able to visit friends during the day. He is also able to fish and to mow his yards with a riding lawnmower. APPLICABLE LAW An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. section 85.3(l). Claimant has the burden of proving by a preponderance of the evidence that he received injuries on May 20, 1983 and October 8, 1984 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); SANBORN V. GRISSEL COMPANY, INC. PAGE 5 Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979); McClure, 188 N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). The claimant has the burden of proving by a preponderance of the evidence that the injuries of May 20, 1983 and October 8, 1984 are causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756, (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, (1962). When an aggravation occurs in the performance of an employer's work and a causal connection is established, claimant may recover to the extent of the impairment. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620), 106 N.W.2d 591, SANBORN V. GRISSEL COMPANY, INC. PAGE 6 (1960). Our supreme court has stated many times that a claimant may recover for a work connected aggravation of a preexisting condition. Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). See also Auxier v. Woodward State Hospital Sch., 266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960). An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler, 252 Iowa 613, 620, 106 N.W.2d 591 (1960), and cases cited. An employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960). See also Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist, 218 Iowa 724, 254 N.W. 35 (1934). An injury is the producing cause; the disability, however, SANBORN V. GRISSEL COMPANY, INC. PAGE 7 is the result, and it is the result which is compensated. Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). Functional disability is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. This is so as impairment and disability are not synonymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the later to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial disability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial disability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985). In Parr v. Nash Finch Co., (Appeal Decision, October 31, 1980) the industrial commissioner, after analyzing the decisions of McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) and Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980), stated: SANBORN V. GRISSEL COMPANY, INC. PAGE 8 Although the court stated that they were looking for the reduction in earning capacity it is undeniable that it was the "loss of earnings" caused by the job transfer for reasons related to the injury that the court was indicating justified a finding of "industrial disability." Therefore, if a worker is placed in a position by his employer after an injury to the body as a whole and because of the injury which results in an actual reduction in earning, it would appear this would justify an award of industrial disability. This would appear to be so even if the worker's "capacity" to earn has not been diminished. For example, a defendant employer's refusal to give any sort of work to a claimant after he suffers his affliction may justify an award of disability. McSpadden, 288 N.W.2d 181 (Iowa 1980). Similarly, a claimant's inability to find other suitable work after making bona fide efforts to find such work may indicate that relief would be granted. McSpadden, 288 N.W.2d 181 (Iowa 1980) ANALYSIS Claimant has established that he sustained injuries which arose out of and in the course of his employment. In both case files, claimant has demonstrated he was performing duties for defendant when claimant was injured on May 20, 1983 and again on October 8, 1984. While it is true claimant has had a prior history of back problems, there is sufficient evidence to establish that claimant's present condition is causally related to the two injuries which are at issue. Medical testimony supports this contention. Dr. Turner, in his deposition, testified under cross-examination as follows: The first is, do you have an opinion as to whether the October '84 incident that I have described and asked you to assume, the pushing of the sheet metal, was a causal contributing or aggravating factor causing the problems that you began treating and for which you did surgery? ... Q. Do you have an opinion? A. Yes, I have an opinion. Q. What is the opinion? A. I think that the alleged injury described to cause an aggravation of Mr. Sanborn's degenerative disc syndrome probably resulting in a small acute fragment herniation of his disc. MR. TEMPLER: Injury or injuries? THE WITNESS: Aggravation of -- I'm using a cautious "injury" and a significant aggravation. There SANBORN V. GRISSEL COMPANY, INC. PAGE 9 is no question that he had pre-existing problems. Q. My next question is: Do you have an opinion as to whether the described incident of May 20, 1983, the incident involving the lifting of tools onto the pickup truck, whether that was a causal contributing or aggravating factor in bringing on the problems that you treated and for which you performed surgery? A. Yes, I have an opinion. Q. And what is the opinion? A. I feel that that episode again was a significant cause or significant aggravation of his overall condition. (Ex. 12, p. 16, 11. 9-15, p. 17, 11. 8-25, p. 18, 11. 1-7) Claimant has also established that he has a permanent partial disability. Dr. Turner has determined claimant has a functional impairment rating of 25 percent. That functional impairment rating involves the aggravation of claimant's preexisting back condition. He writes in his office notes for June 2, 1986: Recheck. Status quo since last visit. Exam is unchanged. Continue with 25 percent permanent impairment rating of man as a whole. I feel that he has now reached a stable plateau and can be rated permanently. Dr. Turner, in his deposition, also opined; Q. Doctor, you rated the man as having 25 percent impairment; is it possible for you, or not, to separate or divide that impairment between the incidents of May 20, 1983 and October of 1984? ... A. I have an opinion -- and it is not an opinion, it is somewhat arbitrary, but I would divide it as half and half, 12 and a half and 12 and a half. If somebody wanted to say 10 and 15, or 15 and 10, I certainly wouldn't quibble with it. (Ex. 12, p. 18, 11. 14-1-8, p. 19, 11. 1-6) Q. With regard to the ratings that you gave him there and the rating that Mr. Vonderhaar questioned you about which was at 25 percent, these are based upon the orthopedics manual for the evaluation of impairment, isn't that correct? A. Correct. Q. And as the treating physician of Dennis Sanborn, in giving him the 25 percent rating which you did, and indicated to Mr. Vonderhaar you did, you are giving your patient the benefit of all doubts, are you not? SANBORN V. GRISSEL COMPANY, INC. PAGE 10 A. Probably. Q. In other words, I'm not suggesting that that is an inaccurate impairment rating, but that if you were to rate it on the high or low side, that would mitigate towards the high side, would it not? A. I think I'm within acceptable limits, and I freely admit I'm probably on the upper side of that. (Ex. 12, p. 34, 1. 25, p. 35, 11. 1-21) Dr. Turner further opined ms calculations were arbitrary. He states: Q. At one point in your examination -- I'm sorry, I guess it was your cross-examination by Mr. Bickel, you attempted to differentiate, and I think I don't recall your specific words, but attribute some percentage of that 25 percent you gave him in June of 1986 to the '83 injury versus the '84 injury, and at one point in time, you said maybe 12 and a half, 12 and a half; and then one point you said 10 or 15: Did you mean 10 in '83, and 15 in '84? A. Or vice-versa. Q. Is that variable? A. It's arbitrary, and there isn't a scientific way of doing it. It's purely that. Q. Is there any would your opinion be any different if you were aware of the fact, as you may be now, if Mr. Sanborn didn't work during that may '83 to October '84? A. I would still tend to be arbitrary and tend to split it between the two. MR. TEMPLER: I think that's all I have. MR. VONDERHAAR: Doctor, I just have three or four. (Ex. 12, p. 47, 11. 1-25) Finally, Dr. Turner, in his deposition, reports on recrossexamination: Q. Doctor, we have talked extensively about his past history of problems dating back to '68 forward, degenerative changes in his disc that were noted in Dr. Strathman's records in the mid 1970s; with regard to the impairment rating that you have assigned the patient, what percentage of that impairment rating of 25 percent would you attribute to his condition of health relating to his spine before the year 1983? A. I guess that's tough to say. You know, I think that you have to be take an honest look and some of it has to go back, and I don't know. SANBORN V. GRISSEL COMPANY, INC. PAGE 11 Q. If you had to put a number on it and we were asking you to do your best in that, what would you do? A. On the basis of, if I still understand, prior to '83, the episodes that he had did not at any period of time result in any prolonged periods off work, and he was always able to get back into a work situation; that's basically why I didn't tend to put much on it. Q. But there would be something that --- A. Yes, I think there has to be something, and you know, I don't know what's fair. You can probably, you might -- I don't think anybody could say it would be 5 percent before '83 and then 10/10, something like that. And it's a pure -- you know, it's like Solomon trying to divide up a baby on the thing. I don't know what's fair, but I agree with you, I think you have to say that there would be something prior to then. Q. And lawyers call upon you frequently to exercise the wisdom of Solomon and divide the baby, don't they? A. Yeah, and that's why I freely admit we come up with some things that are very arbitrary. Q. But your best medical judgment would be the 5 percent of the amount would be attributable? SANBORN V. GRISSEL COMPANY, INC. PAGE 12 A. Yes, and then you have got 20, and you can fight about that, you know, one way or the other, whichever way you want to go. But I think the gross figures are fair -- relatively so, at least. (Ex. 12, p. 49, 11. 3-25, p. 50, 11. 1-25) Claimant was later evaluated by Richard F. Neiman, M.D., pursuant to a request made by Jane Collentine, R.N., for Professional Rehabilitation Management, Inc. Dr. Neiman, in his letter to Ms. Collentine wrote: Your client, Dennis Sanborn, returned for examination on 7/2/86. Since the visit last year he has lost approximately 80 pounds of weight. I think he needs to be commended for the weight reduction. Unfortunately, despite the weight reduction, he has not improved as far as the back pain. He still has a rather profound footdrop on the right side with evidence of sciatic nerve irritation with straight leg test being positive approximately 70 degrees in both sitting and supine position. He still has some paravertebral muscle spasm. When he tries to bend forward he lists to the left. Looking back through my notes I still think there is the possibility of recurrent disc at the L4-5 level. I would normally suggest referral to Dr. Edward Dykstra for a second opinion since Dr. Turner seems to wish not to do anything further regarding the back. I discussed the matter with Dennis who is inclined to proceed with a conservative course since he feels going into rehabilitation perhaps is the better route. Dennis is frankly concerned about the possibility of intensification of the pain with a second operation. At this stage I would suggest a rating of 25% permanent disability on the whole body. I would, however, like to recheck him in 6 months just to make sure things are going well. If he has intensification of the pain or something else happens in the future, I would certainly like to see him before 6 months. In the cases at hand, claimant is able to attribute each injury to a separate and distinct occurrence or event. Claimant, in detail, described the respective incidents which gave rise to the medical treatments from Dr. Turner. The evidence does support a finding that this is not the type of case which falls under the McKeever doctrine. Rather, the fact pattern in the instant case, resembles the facts in Babe v. Greyhound Lines, Inc., Nos. 706132, 790714, Appeal Decision filed February 29, 1988. In Babe, the claimant received back injuries over the course of several years. The industrial commissioner determined the Babe case was distinguishable from McKeever because in Babe the injuries were traumatic rather than repetitive. Also, in Babe, claimant had missed more than three days from work following each separate injury. In the case sub judice, claimant suffered an injury on May 20, 1983. Unlike the first injury in McKeever, however, claimant did miss time from work. In McKeever, the repetitive nature of claimant's work and the gradual worsening of the condition meant that the employee had no single, identifying event putting him on notice of a work-related injury. SANBORN V. GRISSEL COMPANY, INC. PAGE 13 By contrast, the instant cases are different. Claimant can clearly identify the events which precipitated his injuries. It is irrelevant for determining liability whether the date of the injury is October 4, 1984 or October 8, 1984. What is relevant is the fact that claimant can recall the precise event which gave rise to the missed work time. Claimant related his calendar reflects an injury date of October 8, 1984. There is no evidence to indicate the date was other than October 8, 1984. In both cases, claimant missed work subsequent to the "event." Claimant has established there were two separate injuries which aggravated his preexisting condition. In the cases at hand, there is also uncontroverted medical testimony from Dr. Turner regarding the liability for any functional impairment. Dr. Turner, the treating physician, determined a five percent functional impairment was attributable to preexisting injuries. He also determined the remaining impairment figure, 20 percent, should be evenly divided between the two defendants. Healing period benefits are also at issue with respect to file number 830408. The evidence supports a permanent impairment rating. Defendant, Royal Insurance Company, maintains that if healing period benefits are due for the October 8, 1984 injury, then the period expired on June 3, 1985, the date, a preliminary impairment rating was provided by Dr. Turner. Claimant alleges the healing period ended on June 2, 1986, the date a final impairment rating was provided by Dr. Turner. Section 85.34(l) of the Iowa Code (1987) governs the award of healing period benefits. That section provides: If an employee has suffered personal injury causing permanent partial disability for which compensation is payable as provided in subsection 2 of this section, the employer shall pay to the employee compensation for a healing period, as provided in section 85.37, beginning on the date of injury, and until the employee has returned to work or it is medically indicated that significant improvement from the injury is not anticipated or until the employee is medically capable of returning to employment substantially similar to the employment in which the employee was engaged at the time of injury, whichever occurs first. With respect to the matters before the undersigned, claimant was not able to return to work on June 3, 1985, the date after that date, or on June 2, 1986. Therefore, the date claimant returned to work cannot be used as the date for ending healing period benefits. However, Dr. Turner, on June 2, 1986, medically indicated claimant would not reach further improvement. He wrote in his clinical notes for that date: Status quo since last visit. Exam is unchanged. Continue with 25 percent impairment rating of man as a whole. I feel that he has now reached a stable plateau and can be rated permanently. (Emphasis added) Under section 85.34(l), June 2, 1986 is the date on which it was determined claimant would not improve, consequently, that is the date on which the healing period ended. SANBORN V. GRISSEL COMPANY, INC. PAGE 14 The next issue which must be addressed is the issue of industrial disability. Claimant asserts lie has an industrial disability which exceeds any functional impairment rating. There is no question there has been a loss of earnings since the October 8, 1984 injury date. Claimant has not worked since that date. In June of 1985, Dr. Turner described the type of rehabilitation program which should involve claimant. Dr. Turner wrote the following in a letter dated June 21, 1985: ... At this time I feel that it is exceedingly doubtful that he will be able to return to work that involves unlimited bending, twisting particularly in restricted quarters or in awkard [sic) positions .... I think every effort should be made at potential vocational retraining knowing full well that it is exceedingly difficult with today's economic climate in this area. After June 2, 1986, claimant was placed in various vocational rehabilitation programs by defendant, Royal Insurance Company. Defendant hired Janice Craven of Professional Rehabilitation Management, Inc., to work with claimant. She attempted to secure a part-time position for claimant as a clerk or as a telemarketer in the Cedar Rapids area. Ms. Craven was unsuccessful in securing the same. No position was ever acquired by P.R.M. Claimant was also sent to the East Central Iowa Employment and Training Consortium and Private Industry Council which is the agency that monitors the Job Training Partnership Act. Diane Early, employment coordinator, was unable to assist claimant as "...he has a broad interest in several fields. However, he has many limitations due to his physical condition, ruling out all of the choices." Ms. Early did refer claimant to the Kirkwood Skills Center for vocational rehabilitation. While at the Kirkwood Skills Center, claimant demonstrated an interest in computers. Nevertheless, claimant did not satisfactorily complete the program. This was primarily due to the fact claimant was unable to sit for periods greater than 20 minutes. Since claimant's release from the Kirkwood Skills Center, he has demonstrated little if any motivation to seek other employment, or to engage in additional rehabilitation. Claimant has decreased rather than increased his level of activity since his release from the Kirkwood program. The record is devoid of any evidence which shows claimant has attempted to seek employment since his participation in the program at Kirkwood. Roger Marquardt, a vocational rehabilitation specialist was hired by claimant to testify as an expert witness at claimant's hearing. Even he stated claimant could be encountering a lack of motivation. (Transcript p. 102, 11. 13-22). Claimant, despite his lack of motivation to seek employment has been able to successfully complete the following tasks at home: mowing the two and one-half acre lawn with a riding mower, shoveling snow with a snowblower while riding a lawn mower, SANBORN V. GRISSEL COMPANY, INC. PAGE 15 fishing from a johnboat, loading the riding mower onto a trailer, occasionally riding,a dirt bike, visiting friends, loading a johnboat onto a truck and repairing small appliances. Since 1984, claimant has been unable to ride his dirt bike on a regular basis or to.play football. Presently, claimant is under restrictions. Dr. Turner, in his deposition, provides the following list of restrictions for claimant: A. I think that there are a high percentage of the activities he could perform if he could control the time when he could rest and when he wouldn't; how much he would have to lift, and in what positions .... (Ex. 12, p. 31, 11. 12-16) In light of the foregoing, claimant has met his burden of proving that he has an industrial disability greater than the 25 percent functional impairment of the body as a whole. Claimant has an industrial disability of 50 percent.. Claimant has established there is a loss of earning capacity attributable to his back injuries. Claimant has shown there has been a loss of earnings since the two injuries at issue. Claimant is unable to sit or stand for longer than 20 minute periods. Repeated efforts at rehabilitation have been unsuccessful. Even part-time positions have been unobtainable. Claimant is 43 years old. He has been away from an academic setting. it would be extremely, difficult for claimant to commence a college career since he cannot even sit for 50 minutes. Claimant has few skills which can transfer to a realistic sedentary position. Claimant is industrially disabled. FINDINGS OF FACT AND CONCLUSIONS OF LAW WHEREFORE, based on the evidence presented and the principles of law previously stated, the following findings of fact and conclusions of law are made: FINDING 1. Claimant sustained a back injury arising out of and in the course of his employment on May 20, 1983. FINDING 2. Claimant sustained a back injury arising out of and in the course of his employment on October 8, 1984. FINDING 3. As a result of the two injuries above, claimant had a laminectomy on October 23, 1984. CONCLUSION A. As a result of the injury on May 20, 1983, claimant has an attributable functional impairment of 10 percent of the body as a whole. CONCLUSION B. As a result of the injury on October 8, 1934, claimant has an attributable functional impairment of 10 percent of the body as a whole. CONCLUSION C. As a result of preexisting injuries, claimant has an attributable functional impairment of five percent of the body as a whole. FINDING 4. Claimant is a 43 year old obese man who has limited experience outside of the sheet metal industry. SANBORN V. GRISSEL COMPANY, INC. PAGE 16 FINDING 5. As a result of the injuries sustained on May 20, 1983 and on October 8, 1984, claimant has not been able to secure employment and has had a loss of earnings. CONCLUSION D. Claimant has met his burden of proving he has a 50 percent permanent partial disability attributable in equal proportions to each defendant insurance carrier. FINDING 6. Claimant was in the healing period from October 8, 1984 to June 2, 1986. CONCLUSION E. From defendant, Royal Insurance Company, claimant is entitled to 33 6/7 weeks of healing period benefits at the weekly rate of $355.72. ORDER THEREFORE, defendants are to pay unto claimant two hundred fifty (250) weeks of permanent partial disability benefits. The first one hundred twenty-five (125) weeks shall be at the rate of three hundred eighty-one and 22/100 dollars ($381.22) per week. The second one hundred twenty-five (125) weeks shall be at the rate of three hundred fifty-five and 72/100 dollars ($355.72). Each defendant insurance carrier shall bear its proportional share. Defendant, Royal Insurance Company, is to pay unto claimant thirty-three and Sixth-sevenths (33 6/7) weeks of healing period SANBORN V. GRISSEL COMPANY, INC. PAGE 17 benefits at the rate of three hundred fifty-five and 72/100 dollars ($355.72). Payments that have accrued shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. Costs of this action are assessed equally against the defendants pursuant to Division of Industrial Services Rule 343-4.33. Defendants shall file a claim activity report upon payment of this award. Signed and filed this 7th day of December, 1988. MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Phil Vonderhaar Attorney at Law 40 Fifth Ave. Des Moines, Iowa 50309 Mr. Mark L. Zaiger Mr. John M. Bickel Attorneys at Law 500 MNB Bldg. P. O. Box 2107 Cedar Rapids, Iowa 52406 Mr. John A. Templer Mr. Dean C. Mohr Attorneys at Law 3737 Woodland, STE 437 West Des Moines, Iowa 50265 1803 Filed December 7, 1988 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER DENNIS SANBORN, Claimant, File Nos. 732672 & 830408 vs. A R B I T R A T I O N GRISSEL COMPANY, INC., D E C I S I O N Employer, and ROYAL INSURANCE COMPANY and IOWA CONTRACTORS WORKERS' COMPENSATION GROUP, Insurance Carrier, Defendants. 1803 Claimant awarded 50 percent industrial disability subsequent to injury of claiinant's back.