1100; 1108.50; 2503; 2700 Filed March 13, 1991 HELENJEAN WALLESER before the iowa industrial commissioner ____________________________________________________________ : LLOYD L. HANSON and VALORA : J. HANSON, Administrators of : DENNIS L. HANSON, Deceased, : : Claimants, : File No. 742863 : vs. : R E M A N D : SHERMAN REICHELT, : D E C I S I O N : Employer, : : and : : FARM BUREAU MUTUAL : INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 1100; 1108.50 Under actual risk doctrine, injury arising out of and in the course of employment found where laborer sustained heatstroke while making hay in high, humid ambient temperature. Held laborer did not have to show continuous exertion to prevail where nature of employment exposed him to risk of heatstroke and prevented his seeking shelter from the heat. 2700; 2503 Maintenance on respirator of individual for 21 days who had suffered significant brain anoxia after cardiorespiratory arrest held to be reasonable medical care where testimony showed prognosis after brain anoxia cannot be established for at least 4 to 7 days and where doctor testified it was appropriate to permit family a reasonable time to adjust to individual's actual prognosis before ceasing extraordinary care. Reasonableness of care assessed by reviewing circumstances surrounding giving of care, not by reviewing the actual results of care. Although not directly applicable, Cruzan v. Director, Mo. Dep't of Health, 110 S. Ct. 2841 (1990) discussed in analysis. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ JOSEPH PINTER, Claimant, FILE NOS. 796964 & 743088 VS. C O N C L U D I N G FRED CARLSON CO., INC., A R B I T R A T I O N Employer, and BITUMINOUS CASUALTY, Insurance Carrier, Defendants. _________________________________________________________________ INTRODUCTION This concludes the interim arbitration decision filed December 11, 1986 wherein the claimant was directed to elect whether or not he would undergo surgery for the hemorrhoid condition with which he is afflicted. Claimant's election to decline the offered surgery was received at this office on January 12, 1987. The only remaining issue to be determined is assessment of claimant's entitlement to compensation for permanent partial disability. Matters stated in the interim decision are considered in this decision even though they are not repeated herein. ANALYSIS If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City R. Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963) . The method of awarding damages that was approved in Stufflebean v. City of Fort Dodge, 233 Iowa 438, 9 N.W.2d 281 (1943) is appropriate in t is case. When considering the award to be made in a case where surgery presents a high probability of a substantial reduction in physical impairment and, correspondingly, of increasing earning capacity, it is appropriate to consider a number of factors that are not normally considered in assessing industrial disability. These include a projection of the degree of disability that would result if the surgery were performed and provided the results that are medically indicated as shown by the record; the degree of disability that currently exists in the absence of surgery and the expense that the employer and insurance carrier would incur if the surgery were to be performed. The expense should include both the direct expenses of treatment and the healing period compensation during the time of recovery from the surgery. The employer should not be held responsible for payment of the uncorrected disability and then subsequently be required to provide surgery. The employer should likewise not profit economically from the employee's decision to decline the offered surgery. The award of disability should therefore be an amount approximately equal to the expense that the employer and insurance carrier would incur if the surgery were performed with results being as anticipated by the medical evidence in the record and the amount of residual disability, if any. In no event should the award exceed the extent of disability that actually exists without submitting to surgery. Claimant has many demonstrated abilities. He seems to have adapted his employment activities to a form of work for which he is trained and that it is appropriate for his disability. Nevertheless, his earnings have suffered. If claimant were to have the surgery and the surgery were to be successful, the employer would expend approximately $3,600 in treatment expenses and would also be responsible for paying claimant healing period compensation during the time he was disabled from the surgery. It appears that the healing period would consist of approximately one week in the hospital and approximately four weeks of restriction from lifting or straining (Exhibit 2, page 16). Five weeks of compensation at claimant's rate of $348.61 computes to $1,743.05. When added to the anticipated medical expenses at $3,600 the total is $5,343.05. This is roughly equivalent to 15 weeks of compensation for permanent partial disability which, in turn, is equivalent to a three percent permanent partial disability. The surgery has a high probability of success. If successful, there would be little, if any, permanent impairment. When all the factors of industrial disability are considered, together with claimant's decision to decline surgery and the probable result of such surgery if it had been elected, it is found and concluded that claimant is entitled to compensation for five percent permanent partial disability. The compensation is payable at the end of the first healing period, namely September 5, 1983. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986). While it is true that the degree of disability could not be determined until claimant made his election concerning surgery, it is likewise true that it should have been obvious that he had some permanent disability as evidenced by the medical restrictions that had been placed upon him. It is likewise true that the employer and insurance carrier have had the benefit of the use of the funds during the time that has transpired since September 5, 1983. Nothing prevents a defendant from assessing the degree of permanent partial disability that results from an injury and voluntarily paying whatever amount appears reasonable in a timely fashion. PINTER V. FRED CARLSON CO., INC. Page 3 Since claimant has elected to decline surgery and the employer is being ordered to pay compensation under those circumstances, the employee is barred from seeking additional compensation for section 85.27 benefits from the employer and insurance carrier in the event that he should subsequently choose to undergo surgical treatment. FINDINGS OF FACT Claimant's disability, when evaluated industrially, is five percent permanent partial disability. CONCLUSIONS OF LAW When an injured worker reasonably declines offered surgical treatment, the measure of recovery is an amount that is approximately equal in value to the compensation payable for the anticipated residual disability, if any, plus the direct expenses of the surgery under section 85.27 and additional compensation for healing period connected with the surgery. Once an injured worker has declined to undergo offered surgery, and the employer has paid compensation for permanent disability based upon the condition being untreated, the employee is thereafter barred from requiring the employer to subsequently pay the cost of the surgery and any healing period resulting from the surgery if it is performed. ORDER IT IS THEREFORE ORDERED that defendants pay claimant twenty-five (25) weeks of compensation for permanent partial disability at the rate of three hundred forty-eight and 61/100 dollars ($348.61) per week payable commencing September 5, 1983. IT IS FURTHER ORDERED that defendants receive credit against this award in the amount of seventy and 22/100 dollars ($70.22) and that defendants pay interest on the award pursuant to section 85.30 of the Code. IT IS FURTHER ORDERED that claimant is barred from hereafter seeking payment from defendants for the cost of hemorrhoid surgery and from any compensation for healing period during any period of recovery resulting from any such surgery. The costs of this proceeding are assessed against defendants pursuant to Division of Industrial Services Rule 343-4.33, formerly Industrial Commissioner Rule 500-4.31. Defendants are directed to file claim activity reports as requested by this agency. Signed and filed this 27th day of January, 1987. PINTER V. FRED CARLSON CO., INC. Page 4 MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. David L. Strand Attorney at Law 103 River Street P. 0. Box 485 Decorah, Iowa 52101 Mr. Cecil L. Goettsch Attorney at Law 1100 Des Moines Bldg. Des Moines, Iowa 50307 1402.40; 1402.60 1704; 1803; 3800 Filed January 27, 1987 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ JOSEPH PINTER, Claimant, FILE NOS. 796964 & 743088 VS. C 0 N C L U D I N G FRED CARLSON CO., INC., A R B I T R A T I 0 N Employer, D E C I S I 0 N and BITUMINOUS CASUALTY, Insurance Carrier, Defendants. _________________________________________________________________ 1402.40; 1402.60; 1704; 1803; 3800 Where a worker declines surgery intended to correct permanent disabilities resulting from a work related injury, the proper measure of recovery is an amount approximately equal in value to the anticipated residual permanent disability, the costs of performing the surgery, including expenses under section 85.27 and healing period compensation during the period of disability resulting from the surgery. Reliance was placed upon Stufflebean v. City of Fort Dodge, 233 Iowa 438, 9 N.W.2d 281 (1943). Interest was awarded from the end of the original healing period in 1983 with reliance placed upon Teel v. McCord, and the facts that some degree of disability was apparent and the defendants had the use of the funds during the intervening time. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ REX LEO RAMSEY, File No. 743145 Claimant, R U L I N G O N VS. A P P L I C A T I 0 N VITALIS TRUCK LINES, F 0 R Employer, D E C L A R A T I O N and R U L I N G MICHIGAN MUTUAL INSURANCE CO., Insurance Carrier, Defendants. _________________________________________________________________ On September 22, 1987 claimant filed a petition for declaratory ruling. The undersigned, having reviewed the application, the same comes on for determination. It is clear from a review of the application that it fails to meet the requirements for a petition for declaratory ruling. Division of Industrial Services Rule 343-X.5 indicates that an agency may refuse to issue a declaratory ruling for good cause. WHEREFORE, claimant's application for declaratory ruling is refused for the following reasons. 1. The petition does not substantially comply with the required form. 2. The questions presented would more properly be resolved in a different type of proceeding. 3. The petition is not based upon facts calculated to aid in the planning of future conduct but is, instead, based solely upon prior conduct in an effort to establish the effect of that conduct. 4. The questions presented by the petition are also presented in a current contested case, or other agency or judicial proceeding, that may definitively resolve them. This is not only shown by claimant's motion, but is evidence by a proceeding which is currently before this agency by claimant against the named defendants. THEREFORE, claimant's motion for declaratory ruling is denied and dismissed. Signed and file this 29th day of September, 1987. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. Thomas J. Reilly Attorney at Law 532 Euclid Avenue Des Moines, Iowa 50313 Mr. William J. Schadle Attorney at Law Suite 210 4900 University Avenue Des Moines, Iowa 50311 Ms. Dorothy L. Kelley Attorney at Law 1000 Des Moines Building Des Moines, Iowa 50309 Mr. Charles E. Cutler Attorney at Law 729 Insurance Exchange Bldg. Des Moines, Iowa 50309 BEFORE THE IOWA INDUSTRIAL COMMISSIONER FRED BRILEY, JR., Claimant, File Nos. 743429 791343 vs. A R B I T R A T I 0 N CITY OF DES MOINES, D E C I S I O N Employer, Self-Insured, Defendant. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Fred Briley, Jr., claimant, against City of Des Moines, Iowa, self-insured employer, to recover benefits under the Iowa Workers' Compensation Act as a result of injuries sustained on April 27, 1983 and March 29, 1985. This matter came on for hearing before the undersigned deputy industrial commissioner June 21, 1988. The record was considered fully submitted at the close of the hearing. The record in this case consists of the testimony of claimant and Jerry Riley, and joint exhibits 1 through 5, inclusive. ISSUES Pursuant to the prehearing report and order submitted and approved June 21, 1988, the following issues are presented for resolution: 1. Whether the work injuries of April 27, 1983 and/or March 29, 1985 are the cause of permanent disability; and, 2. The extent of claimant's entitlement, if any, to permanent partial disability benefits. FACTS PRESENTED Claimant sustained.an injury on April 27, 1983 which arose out of and in the course of his employment when, while lifting a garbage container from the curb, he felt pain in his left lower back. Claimant recalled he was unable to work any further, that he went to the city clinic for treatment and that when he was "no better" after two weeks, he was referred to Sinesio Misol, M.D. who diagnosed a herniated disc at L4-L5 and recommended conservative treatment. Claimant testified he was off work for three months or more and that when released, he "believed" it was to light duty. Claimant stated that when he took his daughter to Mayo Clinic a few months later he also saw a physician there who rated him as having a 15 percent permanent partial impairment. Claimant testified that although he is not "in pain" his lower back still bothers him at certain times, that the injured area is "like a weak spot," that he takes medication when he "overdoes" and that Dr. Misol told him to look for other work or "learn to live with it." Claimant acknowledged he had some low back problems in 1975 which caused him to be off work for a period of time and that he was not given any impairment rating as a result of that injury. Claimant sustained an injury on March 29, 1985 which arose out of and in the course of his employment when he thought he pulled a muscle in his left shoulder and could not lift his arm. Claimant recalled that when he got no relief from the city clinic, he returned to see Dr. Misol who diagnosed an injury to C3-C4 and referred him to John T. Bakody, M.D. Claimant offered that he was again treated conservatively with traction at home and physical therapy. Claimant stated he was released to return to work approximately one year later with the recommendation to find something easier to do and that he was given a 10 percent impairment rating. Claimant stated that when he returned to work, he was given a truck driving position but told he could not have that job after doing it for three weeks and that he had to return to solid waste or take a laborer's position in street maintenance which claimant felt would have reduced his pay by approximately $1,500 per year. Claimant has applied for other positions with the city but did not meet the job qualifications and has returned to the solid waste division where he currently earns $12.00 per hour. On cross-examination, claimant revealed he does not have to lift any trash cans which weigh in excess of 65 pounds since the city has a 65 pound weight limit on trash cans. Claimant admitted he is under no lifting restrictions, that he is currently holding the same job as he held at the time of his injuries paying the same amount of money, and that he declined to take certain other jobs which may have been made available BRILEY V. CITY OF DES MOINES PAGE 3 to him because he may have lost seniority, vacation and salary benefits. Jerry Riley, who identified himself as supervisor of the City of Des Moines Solid Waste Department, testified claimant has been a good worker who finishes his route on time and that he has had no complaints that claimant has been unable to do his job. Mr. Riley acknowledged that claimant at times has stated his back hurts when he has finished his route but to his knowledge claimant was never required to go to the city clinic as a consequence of his complaints. Mr. Riley opined that based on claimant's past job performance claimant should have no problem retaining his-position with the city. Michael Peterson, who identified himself as the safety and training administrator for the City of Des Moines and who is responsible for administration of comprehensive loss control and self-insurance compensation program, testified that following claimant's injury on April 27, 1983, claimant was seen by the City's employee health clinic and by Gary Breman, D.O., and went through conservative care treatment including physical therapy until he was referred to Dr. Misol for a second opinion. Mr. Peterson recalled Dr. Misol removed claimant from the light duty work claimant had been performing, took claimant completely off work until August 15, 1983 when claimant returned to work with a 20 pound weight restriction and returned claimant to regular duty without restriction on August 26, 1983. Mr. Peterson explained claimant continued to perform his regular duties until the injury of March 29, 1985 at which time claimant was seen and treated conservatively by the city physician, Randy Miller, D.O., who, after four days, referred claimant to Dr. Misol who later referred claimant to Dr. Bakody. Mr. Peterson testified that claimant was treated BRILEY V. CITY OF DES MOINES PAGE 4 conservatively, that claimant returned to work on light duty working half days from May 20 through August 7, 1985, that claimant was on light duty full days from August 8, 1985 until March 10, 1986 when claimant was discharged from Dr. Bakody's care. Mr. Peterson explained that although other positions were offered claimant, claimant was very much against taking any other kind of position and that claimant said he definitely could still handle his old job in solid waste and wanted to go back to that. On April 18, 1986, Mr. Peterson wrote to claimant: This letter is to clarify the conditions surrounding your return to work for the City of Des Moines as a Refuse Collector. You have been given a release to return to work as a Refuse Collector by Dr. Bakody and also by Dr. Miller. However, those have been made with the recommendation for you to get to a different position that requires less lifting and pressure. The City has strongly encouraged you to seek another position, especially one as a laborer in Sewer Maintenance, posted for April 18, 1986. Since that position would be a voluntary demotion, the City also agrees to pay you at the top of the pay grade 18 rather than that at the laborer rate 16A, salary $20,149 -vs-$18.859. This pay offer is with the understanding that it would be frozen at that rate until it was balanced with the salaries of other comparable positions. It is also understood that you would probably have an opportunity to bid on a higher paying truck driver job within a reasonably short period of time, thereby lifting the pay freeze. I strongly encourage you to bid on the laborer position at the pay level scheduled above. However, if you choose to go back as Refuse Collector, you are free to do so. In the event you are injured as a Refuse Collector, it may very well effect the City's ability to assist you further in employment opportunities. (Joint Exhibit 4) Mr. Peterson stated claimant returned to his job in solid waste without any restrictions and that he has not had any indication claimant has not been performing his job. Marshall Flapan, M.D., who saw claimant after his 1975 injury while claimant was working for Metro Solid Waste, opined on July 6, 1975: Impression: L-5 radiculopathy on the left, most BRILEY V. CITY OF DES MOINES PAGE 5 likely secondary to a herniated lumbar intervertebral disc at L-4, L-5. Comments & recommendations: It is my opinion that the above condition was secondary to a straining incident while at work. However, at this time, this man is relatively pain-free. He does demonstrate the weakness but this is not an indication for surgery. The only indication for surgery would be progressive neurological deficit or unrelenting pain. I believe this man now is suited to return to work at Metro Solid Waste on June 2, 1975. I invited him to return to see me in six weeks for a follow-up check. (Jt. Ex. 1, Item 1) The medical records of Sinesio Misol, M.D., of Orthopedic Associates, show claimant was first seen by Dr. Misol on May 31, 1983 with a diagnosis of: Degenerative disc disease from previously partial herniation of L4/5 disc, also involvement of the 3/4 to a slight extent radiographically with an aggravation sustained while at work four weeks ago producing a left sciatica without significant neurological deficit. (Jt. Ex. 1, Item 14) Dr. Misol recommended claimant remain off work and the plan was to treat claimant conservatively. Dr. Misol noted on August 5, 1983 that claimant was also completely recuperated from the Left L4/5 disc sciatica and released claimant to return to work August 15, 1983 with a 20 pound weight lifting restriction and to regular duty on August 29, 1983. Follow-up appointments with Dr. Misol through November 1984 revealed claimant "altogether is doing well" and had "so far compensated degenerative disc disease L4/5 without neurological deficit." Dr. Misol did not express an opinion on impairment at this time but stated on November 7, 1984: "The patient is to continue to work, I think what he is doing which is taking a day or two of rest when symptoms start to aggravate is appropriate. I would like to se (sic] him in the summer of 1985 for a follow up lateral x-ray of the lumbosacral spine." (Jt. Ex. 1, Item 39) Hymie Gordon, M.D., Chairman, Department of Medical Genetics, Mayo Clinic, advised claimant on September 27, 1983: [Y]ou have a damaged disc between the 3rd and 4th lumbar vertebras. Fortunately, at present, this is not causing severe symptoms; therefore, surgical treatment is not required. However, if you strain your back again, the acute symptoms could recur. Therefore, I suggest that, if at all possible, you should try to change your job to one that does not require you to bend frequently or to lift heavy objects. (Jt. Ex. 1, Item 31) On February 21, 1984, at the request of Dr. Gordon, claimant was evaluated by Steven W. Krein, M.D., Chief Resident Associate, BRILEY V. CITY OF DES MOINES PAGE 6 Orthopedic Surgery, Mayo Clinic, for low back and left lower extremity pain.' Dr. Krein found: X-rays of the lumbar spine showed narrowing of the L3-4 and L4-5 disk spaces with degenerative changes present. The assessment was that of mechanical low back pain secondary to degenerative disk disease. The patient had no evidence for radiculopathy. .... Based on the patient's subjective symptoms and the findings of decreased lumbar spine motion, his permanent partial impairment is estimated at 15 percent of the whole man. The repetitive lifting of heavy garbage containers, which-is apparently involved in this patient's work, is a likely contributory factor in his low back discomfort. if possible, a change in the patient's job assignment limiting the amount of repetitive lifting to approximately 50 lbs. would be in order. (Jt. Ex. 1, Item 34) Neurological consultation with Robert D. Fealey, M.D., of the Mayo Clinic Department of Neurology, on February 22, 1984 resulted in the opinion that: Mr. Briley had mechanical low back pain secondary to degenerative disc disease, without convincing evidence for nerve root compression. Secondly, I thought Mr. Briley had classical migraine headaches with his visual obscurations compatible with a migraine scintillating scotomata. I saw no need for the neurosurgeon regarding the patient's back and leg pain at this point. I concurred with the plan of physical therapy, heat, massage, simple non-narcotic analgesics, and an anti-inflammatory agent to help control the symptoms .... I thought it would be advisable for Mr. Briley to avoid heavy lifting. He mentioned looking into a job assignment to accomplish this. (Jt. Ex. 1, Item 38) Records reveal that following claimantOs injury of March 29, 1985, claimant was on light duty and started outpatient physical therapy before returning to see Dr. Misol on April 16, 1985. Dr. Misol found x-rays of the shoulder to be negative and recommended claimant be given "a week and a half off work" to attend daily physical therapy sessions. On May 1, 1985, Dr. Misol reported that AP and lateral x-rays of the cervical spine revealed narrowing of the C5-6 disc and claimant was referred to Dr. Bakody for examination. Claimant was seen by Dr. Bakody in the emergency room at Mercy Hospital Medical Center on May 4, 1985 describing fairly constant aching of the left shoulder and shoulder blade which was aggravated with use of the arm at the shoulder. Dr. Bakody BRILEY V. CITY OF DES MOINES PAGE 7 stated on May 6, 1985: It is my opinion that Mr. Briley has a cervical radicular compression on the left which does not appear to be segmental at the time of my examination. I suggested that he continue upon physical therapy on a daily basis and that home cervical traction be added to his therapy .... If he does not continue to improve consideration should be given to myelography and perhaps anterior cervical interbody fusion. (Jt. Ex. 1, Item 65) Claimant was released by Dr. Bakody to return to light duty work on August 12, 1985 with the restrictions of no "truck driving or heavy use of back" and was instructed to continue physical therapy. On March 10, 1986, Dr. Bakody, in a letter to Randy Miller, D.O., of the city health department, wrote: I have had occasion to see Mr.Briley in the office for progress examinations on the dates of January 21 and March 3, 1986. At the January visit he did not believe he had improved and was continuing to receive out patient physical therapy on an every-other-day basis. He indicated that he does not believe he can return to work at his prior job and when seen in March was receiving physical therapy twice a week and including the use of the exercise bicycle and exercising with the Nautilus equipment. HE [sic] was using ice massage instead of moist heat. The patient appears to hold his neck tightly but the neurologic findings are essentially normal. The patient was essentially discharged from my care and continue under your guidance. I would leave increasing his work activity up to you. (Jt. Ex. 1, Item 133) On July 24, 1986, Dr. Bakody opined: It is my opinion that as a result of the work duties described by Mr. Briley that Mr. Briley sustained a traumatic cervical syndrome. Mr. Briley does have x-ray evidence of cervical spondylosis, which condition no doubt did pre-exist any particular injury but which condition can be aggravated by the work Mr. Briley is engaged in. According to the Manual for Orthopaedic Surgeons in Evaluating Permanent Physical Impairment .... Mr. Briley has about a 10 percent permant [sic] physical impairment and loss of physical function as related to the body as a whole. (Jt. Ex. 1, Item 138) Dr. Bakody specified that the "figure of 10 percent" was all attributable to the 1985 injury. On April 5, 1988, Dr. Misol advised defendant's counsel: I'm afraid at this time I will not be able to separate BRILEY V. CITY OF DES MOINES PAGE 8 the amount of physical impairment for injuries sustained in 1975 and 1983. As you can see from my letter, when I last saw him it was my opinion that the total would be in the neighborhood of 5 to 7% and I do not know how you can separate how much it is, not only from previous injuries but also how much has to do with normal "attrition" by age. (Jt. Ex. 1, Item 147) Claimant was evaluated by Scott B. Neff, D.O., in approximately October 1985, who stated: Based on the information that I have at hand, and the physical examination that I have done, I do not find any evidence of neurologic injury, and do not believe that the patient has had a neck injury, which is directly related to his work. He has not had a blow to his head, or a forceful situation to his head or neck. He has had a muscle strain to the trapezius complex, which supports the head and neck, and this apparently is resolving. Because he says himself, that he is improved, I would recommend that he be returned to work. He is currently on light duty, and is scheduled to see Dr. Bakody in the next week or two for release to normal activity. I would concur that he could be released to normal activity, and do not feel that he has had any permanent impairment or disability with reference to his injury. (Jt. Ex. 1, Item 102) 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 claimant has the burden of proving by a preponderance of the evidence that the injuries of April 27, 1983 and March 29, 1985 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) and 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 BRILEY V. CITY OF DES MOINES PAGE 9 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). Iowa Code section 85.34(2)(u) provides: In all cases of permanent partial disability other than those hereinabove described or referred to in paragraphs "a" through "t" hereof, the compensation shall be paid during the number of weeks in relation to five hundred weeks as the disability bears to the body of the injured employee as a whole. If it is determined that an injury has produced a disability less than that specifically described in said schedule, compensation shall be paid during the-lesser number of weeks of disability determined, as will not exceed a total amount equal to the same percentage proportion of said scheduled maximum compensation. The parties have stipulated claimant sustained injuries on April 27, 1983 and March 29, 1985 which arose out of and in the course of his employment. The essential question for resolution is whether either or both of those injuries is the cause of any permanent disability. Generally, a claim of permanent disability invokes an initial determination of whether the work injury was the cause of permanent physical impairment or permanent limitation in work activity. Dr. Misol, claimant's primary treating physician following the 1983 injury, has opined claimant's impairment to be in the "neighborhood" of 5 to 7 percent but cannot separate how much is from injuries as opposed to age. Physicians from the Mayo Clinic who evaluated claimant following the 1983 injury found claimant to have a 15 percent permanent partial impairment due to subjective symptoms and decreased lumbar spine motion defined as "mildly limited in all directions." However, claimant's testimony establishes that he did not provide the Mayo Clinic with any medical records which may have shown his condition as of the time he was injured in 1975 or immediately thereafter. As a consequence, the doctors' abilities to evaluate claimant's condition as it related to the 1983 injury and to differentiate between what happened to claimant in 1983 as opposed to 1975 appear to be somewhat restricted. Based upon the experience of the undersigned, it is believed claimant, diagnosed with a herniated disc in 1975, may have had an impairment of at least 10 percent to the body as a whole at that time. 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). BRILEY V. CITY OF DES MOINES PAGE 10 The Iowa Supreme Court cites, apparently with approval, the C.J.S. statement that the aggravation should be material if it is to be compensable. Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's Compensation section 555(17)a. Since Dr. Misol did not find claimant any more impaired than he might have been in 1975 and the opinions of the physicians from the Mayo Clinic are suspect in light of the 1975 injury, the undersigned concludes that claimant has failed to establish he materially aggravated his preexisting condition and that claimant has established only that he sustained a temporary aggravation of a preexisting condition. Since claimant has been compensated for the period of time he was off work, claimant is entitled to no further compensation and claimant has failed to establish he sustained any permanent partial disability as a result of the 1985 injury. Attention is thus turned to the injury claimant sustained in 1985. Dr. Bakody, who treated claimant for the 1985 injury on referral from Dr. Misol, stated that claimant had preexisting cervical sponoylosis, that such a condition "can" be aggravated by work claimant performed and opined that claimant has about a 10 percent permanent partial impairment to the body as a whole. Dr. Neff did not find claimant had any permanent impairment with reference to this injury and neither physician imposed any work restrictions on claimant's employability. Claimant also acknowledged he is not currently working under any employment restrictions. The undersigned concludes that the greater weight of evidence would establish claimant has sustained a permanent BRILEY V. CITY OF DES MOINES PAGE 11 impairment as a result of the injury. Dr. Bakody was claimant's principal treating physician, saw claimant after Neff and is considered to have had more of an opportunity to see claimant's progress, difficulties, changes, symptoms and conditions. 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, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. This is so as impairment and disability are not synonymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the 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 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). Claimant is 41 years old with a tenth grade education and has been with the solid waste department for the City for a total of fifteen years. Claimant has returned to work without restrictions, to the same job he held at the time of this injury BRILEY V. CITY OF DES MOINES PAGE 12 and at the same rate of pay. Claimant has, therefore, not lost any actual earnings. It would appear from both Mr. Riley's and Mr. Peterson's testimony that claimant's position with the city is as secure as any job can be and possibly more secure than most. The facts of this case are not unlike those addressed in Harrison v. Bussing Automotive, Inc., Appeal Decision filed July 27, 1987. There, the industrial commissioner stated: Claimant has not shown that he has had an actual reduction in earning as a result of his injury. However, reduction in earnings is only one of the considerations in determining reduction of earning capacity. The physical restrictions imposed on claimant as well as his back surgery would discourage some employers from hiring claimant. The fact that claimant may not ever have to seek employment from other employers does not completely negate the effect of the injury on claimant's earning capacity. It is determined that as a result of his injury, claimant has an industrial disability of four percent. While it is recognized that claimant has no restrictions and is not now a candidate for surgery, unlike the claimant in Harrison, claimant has had two prior back injuries, a cervical injury and it has been recommended, not only by Dr. Bakody but also by Dr. Miller of the city clinic, that claimant acquire a position involving less lifting and pressure. Indeed, the letter from Mr. Peterson to Mr. Briley establishes that the city strongly encouraged claimant to see other employment within the city. The fact that claimant's position with the city may be secure and that claimant may never have to seek employment from other employers does not completely negate the effect of the injury on claimant's earning capacity. Considering then all the elements of industrial disability, it is determined that claimant has established he sustained a permanent partial disability of a percent for industrial purposes as a result of the injury of March 29, 1985. FINDINGS OF FACT WHerefore, based on all of the evidence presented, the following findings of fact are made: 1. Claimant sustained an injury on April 27, 1983 which arose out of and in the course of his employment. 2. Claimant was diagnosed as having a herniated disc at L4-L5 and underwent a course of conservative treatment until he returned to work on light duty August 15, 1983. 3. On August 26, 1983, claimant returned to his regular job without restrictions at his regular rate of pay. 4. Claimant had prior back problems as a result of an injury in 1975 and at that time was diagnosed as having a herniated lumbar intervertebral disc at L-4, L-5. 5. As a result of the injury of April 27, 1983, claimant BRILEY V. CITY OF DES MOINES PAGE 13 sustained no permanent impairment and no restrictions were imposed on his employability. 6. Claimant, as a result of the injury of April 27, 1983, suffered a temporary aggravation of a preexisting condition. 7. Claimant sustained an injury on March 29, 1985 which arose out of and in the course of his employment. 8. Claimant was diagnosed as having a cervical radicular compression on the left and was treated conservatively thereafter. 9. Claimant was released to return to light duty work on August 12, 1985 and was eventually released to return to work without restriction although it was recommended claimant find a position other than with the solid waste department. 10. Claimant, who was rejected from other positions with the city due to a lack of qualification and who rejected other positions due to a potential loss of benefits, elected to return to the solid waste department. 11. Claimant is currently performing the same job he held at the time of his injury and is paid at the same rate scale. 12. Claimant suffered a permanent impairment as a result of the injury of March 29, 1985. 13. Claimant, although he sometimes feels pain and stiffness at the end of the day, is capable of performing his job and his job with the city is as secure as any job and probably more secure than most. 14. Claimant, age 41, with a tenth grade education, has been with the solid waste department for a total of 15 years. 15. Claimant has not suffered any actual loss of earnings. 16. As a result of the injury of March 29, 1985, claimant has suffered a loss of earning capacity. 17. Claimant has sustained a permanent partial disability of 5 percent for industrial purposes as a result of the injury of March 29, 1985. CONCLUSIONS OF LAW Therefore, based on the principles of law previously stated, the following conclusions of law are made: 1. Claimant has established he suffered a temporary aggravation of a preexisting condition as a result of the injury of April 27, 1983. 2. Claimant has established he sustained a permanent partial disability of 5 percent for industrial purposes as a result of the injury of March 29, 1985. ORDER BRILEY V. CITY OF DES MOINES PAGE 14 THEREFORE, IT IS ORDERED: Claimant, having been paid all that to which he is entitled as a result of the injury of April 27, 1983, shall take nothing further from these proceedings on account of that injury. Defendant shall pay unto claimant twenty-five (25) weeks of permanent partial disability benefits as a result of the injury of March 29, 1985 at the stipulated rate of two hundred fifty-two and 44/100 dollars ($252.44) commencing April 7, 1986. Defendant shall receive full credit for all permanent partial disability benefits previously paid as a result of the injury of March 29, 1985. Payments which have accrued shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. A claim activity report shall be filed upon payment of this award. Costs of this action are assessed against defendant pursuant to Division of Industrial Services rule 343-4.33. Signed and filed this 13th of December, 1988. DEBORAH A. DUBIK DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Jon Valey Attorney at Law 1000 73rd St Ste 10 Des Moines, IA 50311 Ms. Anne L.Clark Assistant Attorney General Tort Claims Division Hoover Building Des Moines, IA 50319 1402.40; 1803 Filed December 14, 1988 DEBORAH A. DUBIK BEFORE THE IOWA INDUSTRIAL COMMISSIONER FRED BRILEY, JR., Claimant, File Nos. 743429 791343 vs. A R B I T R A T I 0 N CITY OF DES MOINES, D E C I S I 0 N Employer, Self-Insured, Defendant. 1402.40; 1803 Claimant failed to sustain his burden that he had any permanent partial disability as a result of an injury arising out of and in the course of his employment on April 27, 1983. CLaimant had prior back problems as a result of an injury in 1975 and at that time was diagnosed as having a herniated lumbar intervertebral disc at L4, L5. As a result of the injury of April 27, 1983, claimant sustained no permanent impairment and no restrictions were imposed on his employability. Claimant established that he suffered a temporary aggravation of a preexisting condition and no permanent partial disability benefits were awarded on that injury. Claimant also sustained an injury which arose out of and in the course of his employment on March 29, 1985 which was diagnosed as cervical radicular compression on the left. Claimant suffered a permanent impairment as a result of the injury and although claimant was capable of returning to his regular employment and suffered no actual loss of earnings, it was found claimant did suffer a loss of earning capacity and claimant had sustained a permanent partial disability of 5 percent for industrial purposes. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JAMES W. LACKEY, Claimant, VS. File Nos. 744035 KELLER PATTERN CO., 795344 Employer, A R B I T R A T I 0 N and D E C I S I 0 N UNITED STATES FIDELITY & GUARANTY COMPANY, Insurance Carrier, Defendants. INTRODUCTION These are proceedings in arbitration brought by the claimant, James W. Lackey, against his employer, Keller Pattern Company, and its insurance carrier, United States Fidelity & Guaranty Company, to recover benefits under the Iowa WorkersO Compensation Act as a result of injuries sustained February 22, 1983 and May 30, 1984. This matter came on for hearing before the undersigned deputy industrial commissioner at Davenport, Iowa, on July 21, 1987. First reports of injury were filed on September 12, 1983 and July 17, 1985, respectively. The record in this case consists of the testimony of claimant and of F. Dale Wilson, M.D., of joint exhibits 1 through 17 and of claimant's exhibits A through E. Defendants' objection to claimant's exhibit C is overruled. ISSUES Pursuant to the prehearing report, the parties stipulated that claimant received an injury which arose out of and in the course of his employment and that there was a causal relationship between the claimed injury and claimed disability. They further stipulated that claimant's healing period for the 1983 injury ran from May 9. 1983 to June 6, 1983, with permanent partial disability benefits, if due, commencing on June 6, 1983. They stipulated that claimant's healing period for the 1984 injury ran from June 16, 1984 to January 7, 1985, with permanent partial disability benefits, if due, commencing on January 7, 1985. The parties stipulated that, as a result of his injury of February 22, 1983, claimant was entitled to healing period benefits of four weeks and received 25 weeks of permanent LACKEY V. KELLER PATTERN CO. Page 2 partial disability payments. Total payments made to claimant on account of that injury were $12,152.52 with interest of $159.14. The parties further stipulated that, as a result of his May 30, 1984 injury, claimant was entitled to healing period benefits of 30 weeks and three days and received 12 1/2 weeks of permanent partial disability payments. Total payments made to claimant on account of that injury were $18,248.88. The issues remaining to be decided are: The nature and extent of claimant's benefit entitlement. As regards this issue, the parties stipulated that claimant's injuries are such that his permanent disability is a scheduled member disability to the right arm; and, Claimant's rate of weekly compensation, in the event of an award. As regards this issue, the parties have stipulated that claimant is married and is entitled to three exemptions. REVIEW OF EVIDENCE James W. Lackey reported that he was employed as a pattern maker leadman for the Keller Pattern Company at the time of the February 22, 1983 and the May 30, 1984 injuries and until the plant's closing on December 27, 1984. He identified joint exhibits 15 and 16 respectively as copies of his 1983 and 1984 pay stubs. Claimant testified that holiday pay was paid on weekly checks received, but that no pay stubs were received on holiday weeks or for weeks for which unemployment compensation was received. Claimant reported that he injured himself on February 22, 1983 when a pattern mold fell on his right arm. He reported he saw his family physician in April, 1983 and was referred to Thomas L. Von Gillern, M.D., who subsequently performed carpal tunnel surgery. Claimant reported that, on May 30, 1984, he was tightening a vise grip when he experienced a burning sensation in the wrist area. He apparently again saw Dr. Von Gillern and a hand cast was applied, apparently for ligamentous tears and bone damage. Bruce Sprague, M.D., subsequently performed surgery on August 28, 1984. Claimant described that surgery as alleviating his pain to a great extent, but as creating a condition wherein he can no longer bend his wrist or use his wrist for a lot of work. Claimant saw Dr. Sprague for evaluation only in July, 1985. Claimant self-described that evaluation as very short and as LACKEY V. KELLER PATTERN CO. Page 3 involving tests of mobility, squeezing his fingers and a "tape measure test." F. Dale Wilson, M.D., evaluated claimant on September 29, 1985. Claimant described that evaluation as lasting approximately 2 1/2 hours and as involving a pinch test, rotation testing, wrist movement testing, nerve testing, testing for hot and cold sensation and testing for grip strength. Paul C. Cunnick, M.D., also evaluated claimant. Claimant described this evaluation as less comprehensive and as involving nerve conduction and grip strength tests. Dr. Von Gillern evaluated claimant by reference, to the Franciscan Hospital for examination on August 20, 1986. Claimant described such testing as involving dexterity testing, lifting weights, nerve testing, "sweat testing", and "putting pegs in holes." Claimant is right-hand dominant. He now works for Liberty Patterns where he does small pattern work. He reported that he allows his apprentice to do larger items and that he has left work on occasion when no work which he could perform was available. Claimant is self-described as having a 50-pound lifting restriction, as being unable to hold weight in front of himself, as having muscle cramps upon attempting to carve wood, as having loss of sensation in the last two fingers of his hand, as having muscle spasms after performing repetitious, tedious work and as having difficulty turning screws. Claimant reported that he had broken a bone in his long finger, apparently on the right, as a child and that that finger did not bend properly at the last joint. Claimant agreed he had seen Dr. Von Gillern monthly in spring and summer, 1985 and that, in August, 1985 and again in August, 1986, Dr. Von Gillern did not recommend further treatment. F. Dale Wilson, M.D., testified that he is a surgeon who graduated from medical school in 1938 and has been in practice in the Davenport, Iowa area since 1947. Dr. Wilson reported that he examined and did not treat claimant. Dr. Wilson explained detailed examinations and measurements he had used in evaluating claimant and also reported he had reviewed various medical records regarding claimant's conditions and treatments that were submitted for his perusal. Dr. Wilson reported that he ascribed a 19% impairment of the extremity for loss of wrist motion, a five percent loss for impairment of the radial nerve, a 10% loss for impairment of the ulnar nerve, a five percent loss for impairment of the median nerve, a five percent impairment because claimant had difficulty reaching out and picking up items and a three percent loss for pain, which he stated claimant described as a constant, dull ache coming from the joint, but as not interfering with work or sleep or requiring medical attention. The doctor reported that claimant's impairment would be 47%, apparently of the extremity, if the combined values chart of the AMA guides was used or 53% if the various impairments he had ascribed were simply combined additionally. LACKEY V. KELLER PATTERN CO. Page 4 Dr. Wilson reported that Dr. Sprague, in evaluating claimant, assigned no impairment for neurological loss, for nerve impairment of the thumb, for grasp or strength, or for pain in the wrist or hand, but only for dorsiflexion, palmar-volar flexion and lateral deviation. Dr. Wilson reported that Dr. Von Gillern had not evaluated claimant's rotation, nerve impairment, pain or loss of strength, but did state that the Franciscan Rehabilitation Center had used a dynamometer to measure grasp or strength. Dr. Wilson reported that Paul C. Cunnick, M.D., had evaluated, but did not record rotation other than to say there was a 25% loss of flexion, extension, rotation and lateral motion. He reported that Dr. Cunnick mentioned the "flaw with the thumb," but did not give a percentage on such as deficiencies involving the thumb did not influence the performance of claimant's job. Dr. Wilson agreed that Drs. Cunnick and Von Gillern had performed their evaluations of claimant approximately one year after his evaluation. Dr. Wilson agreed that he is neither an orthopaedic surgeon nor a neurologist nor a hand specialist. Dr. Wilson described himself as semi-retired and stated that approximately 90% of his current practice is devoted to evaluation for losses in workers' compensation cases. He reported that 90-95% of his work is for plaintiff or applicant (apparently meaning "claimant"). The doctor agreed that, while a difference was found on the right and left hand as to the distance between claimant's thumb and index finger, no preinjury measurements were available to support an assumption that those were equal before claimant had injured his hand. In his report of September 27, 1985, Dr. Wilson reported claimant as limited in his weight lifting, particularly with the hand outstretched, as unable to elevate above the shoulder, as limited in rotation and, as requiring protection of his hand against temperature extremes. A tape-recorded telephone interview of Carl William August, owner of Liberty Pattern Company, with Keith Winey of U S F & G Insurance Company, substantiates claimant's statements that he has difficulty working with large items in his current job as a pattern maker. A June 17, 1986 report of Paul C. Cunnick, M.D., reported that, on motion of wrist, claimant had marked limitation of flexor, extention, rotation and lateral motion mostly due to the fusion. There was a 25% loss of all these functions, with claimant unable to make a tight fist of the right hand and fingers not reaching the palm. He also could not touch the fourth and fifth fingers with his thumb. Wrist motion loss was evaluated thusly: 40% of dorsiflexior loss with 20% retained equaling a loss to the extremity of six percent; 40% dorsipalmar flexion loss with 30% retained equaling a loss to the extremity of six percent; 10% radial deviation loss with 10% retained equaling a loss to the extremity of two percent; 20% ulnar deviation loss with 10% retained equaling a loss to the extremity of four percent; the total extremity loss equals 18%. The doctor stated that pain in the hand would equal three percent with weakness of the hand equaling four percent and sensation loss three percent for each nerve totaling nine percent, giving a total loss of 34% for the extremity. He stated he had not included the fact that claimant could not make a fist nor bring LACKEY V. KELLER PATTERN CO. Page 5 his fingers down to the palm, nor for the fact that he could not touch his thumb to his fifth finger as one "never does anything that requires a tight fist" and as thumb mobility is not required in performing a job. Thomas L. Von Gillern, M.D., of Moline Orthopedic Associates, reviewed claimant's chart including his hand evaluation. On March 3, 1987, he reported claimant had limited wrist dorsiflexion of 21% equaling a rating of six percent upper extremity impairment; limited palmar flexion of the right wrist of 15% equaling a rating of nine percent upper extremity impairment; limited radial deviation of four percent equaling a rating of four percent upper extremity impairment; limited range of ulnar deviation of 10% equaling a rating of four percent upper extremity impairment. He reported that limited range of motion would therefore total 23% upper extremity impairment. He indicated that claimant had limited strength and pain which would rate a combined total of 10% upper extremity impairment and that this, with the 23%, would equal 33% upper extremity impairment. On April 2, 1984, Dr. Von Gillern reported that claimant underwent a right median nerve lysis on May 9, 1983. operatively, claimant was noted to have moderate flexor tenosynovitis and was noted to have constriction of the median nerve due to the transverse carpal ligament. Postoperatively, claimant's symptoms were reported as cleared and claimant was reported, as of that date, to have complete relief of his hand pain and his numbness. Dr. Von Gillern opined that claimant's permanent impairment as of that date was 10% of the upper extremity, based on decreased sensation persistent in his left median nerve distribution as well as slight decrease in strength. B. L. Sprague, M.D., of Surgery of the Hand and Upper Extremity, diagnosed claimant as having chronic instability due to a ligamentous injury involving the ulnar column of the wrist and arranged.for a limited fusion of the navicular, hamate and triquetrium on August 28, 1984 with an iliac crest bone graft. On July 8, 1985, Dr. Sprague reported that claimant had been able to work as a pattern maker to a limited extent, but still continued to have pain in the dorsum of the right wrist and noticed some catching sensations. On examination, claimant had tenderness over the dorsal radial aspect of the wrist just radial to the incision. He had no swelling or reaction. Claimant's wrist motion was 30% of dorsiflexion, 30% of ulnar flexion, 10% of ulnar deviation and 10%'of radial deviation. No crepitus was noted on rotation of the forearm or wrist and claimant had normal sensibility involving his fingers as well as full range of motion of the MP, PIP and DIP joints. X-rays then taken showed solid arthrodesis between the hamate, triquetrium and the lunate. Some slight narrowing was evident-between the lunate and the head of the capitate with other carpal bones appearing to be normal and the carpal joints appearing to be normal. Dr. Sprague evaluated claimant's impairment as 15% of the upper extremity under the AMA guides, due to the lack of wrist motion. Claimant was seen at the Occupational Therapy Department of LACKEY V. KELLER PATTERN CO. Page 6 Rock Island Franciscan Hospital on August 14, 1986 and August 19, 1986 for evaluation of active and passive range of motion, grip and pinch strength, two-point discrimination, gross sensation, sweat patterns, manual muscle testing and a physical capacity evaluation of hand and upper body function. Claimant had decreased discrimination acuity on the volar side of the right hand at 4 and 5 proximally with decreased threshold limits dorsally in 3-5. In testing of gross sensation, on the right upper extremity, light touch on the dorsum of 4 and 5 was reported as numb instead of a "tickly" feeling. Light touch was not felt on the volar side of 4 and 5. Pin prick was absent on the volar side of the right little finger and along the ulnar side of the hand with stimulus felt on the dorsal side of 4 and 5, but sharp and dull not discriminated. Claimant had difficulty discriminating hot and cold over the dorsum of the wrist and in the little finger. Ability to discriminate hot and cold was absent in the volar side of 4 and 5. Examination showed that grasp and pinch strength as well as degree of both active and passive range of Motion were noticeably decreased in claimantOs right hand as compared to his left. On August 21, 1985, Dr. Von Gillern reported that claimant's hand evaluation regarding his impairment was performed and that such appeared to agree with Dr. Sprague's evaluation of 15% of the upper extremity. Claimant submitted the following information regarding weeks worked and compensation received immediately preceding his February 22, 1983 injury: Work Week Hours Hours Regular Hourly Hourly Vacation Ending Date Worked Off Pay Rate and Holiday Rate 10/01/82 32 8-V $18.17 $2.7255 10/08/82 ? 18.17 2.7255 10/15/82 40 18.17 2.7255 10/22/82 40 18.17 2.7255 10/29/82 19.75 20.25-V 18.17 2.7255 11/05/82 8 32-V 18.17 2.7255 11/12/82 on unemployment 11/19/82 on unemployment 11/26/82 0 24-V,16-H 18.17 2.7255 12/03/82 40 18.17 2.7255 12/10/82 40 18.17 2.7255 12/17/82 40 18.17 2.7255 12/22/82 24 16-H 18.17 2.7255 12/29/82 24 16-H 18.17 2.7255 01/07/83 40 18.17 2.7255 01/14/83 32 8-H 18.17 2.7255 01/21/83 45 18.17 2.7255 01/28/83 45 18.17 2.7255 02/04/83 45 18.17 2.7255 02/11/83 45 18.17 2.7255 02/18/83 45 18.17 2.7255 02/25/83 44.5 18.17 2.7255 Pay stubs for various weeks were also in evidence and were LACKEY V. KELLER PATTERN CO. Page 7 reviewed. Claimant submitted the following information regarding weeks worked and compensation received immediately preceding his May 30, 1984 injury: Work Week Hours Hours Regular Hourly Hourly Vacation Ending Date Worked Off Pay Rate and Holiday Rate 02/03/84 41.75 $18.54 $2.781 02/10/84 40.5 18.54 2.781 02/17/84 40 18.54 2.781 02/24/84 40 18.54 2.781 03/02/84 37 3 jury 18.54 2.781 03/09/84 41.75 18.54 2.781 03/16/84 40 18.54 2.781 03/23/84 40.25 18.54 2.781 03/30/84 40 18.54 2.781 04/06/84 40 18.61 2.7915 04/13/84 40 18.61 2.7915 04/20/84 28.5 12-H 18.61 2.7915 04/27/84 45 18.61 2.7915 05/04/84 18 8-S,16-V 18.81 2.8215 05/11/84 43.75 18.81 2.8215 05/18/84 40 18.81 2.8215 05/25/84 32.25 8-H 18.81 2.8215 06/01/84 32.75 8-H 18.81 2.8215 Pay stubs for various weeks were also in evidence. On many of LACKEY V. KELLER PATTERN CO. Page 8 these, gross weekly wages were indiscernible. The Job Shop Agreement of May 1, 1980 to May 1, 1983 between the Pattern Makers' League of North America and Quad Cities Area Job Shops provides that holiday pay shall be computed at five percent of the straight time hourly rate times the number of hours worked each week and that holiday pay shall be paid together with regular pay each week. The agreement provides that, effective May 1, 1981, all employees shall be entitled to and receive vacation pay in the amount of 10% of the straight time hourly rate times the number of hours worked each week, which pay is to be paid together with regular pay each week. Employees are required to and must take vacation time off equivalent to vacation pay earned during the year. APPLICABLE LAW AND ANALYSIS The first issue to be decided is the nature and extent of claimant's benefit entitlement. As noted above, the parties have stipulated that claimant's injuries are such that his permanent disability is a scheduled member disability to the right arm. We note also that the parties have stipulated that a causal connection exists between claimant's injuries and his claimed disability. In this regard, a report of Robert J. Chesser, M.D., expresses the belief that claimant's carpal tunnel syndrome and ensuing surgery would not have resulted from the work incident of February 22, 1983. The record as a whole, including claimant's described work activities, does support the parties' stipulation that there was a relationship between claimant's work and his need for carpal tunnel release surgery, however. The record also contains substantial material related to claimant's current job activities and changes in his ability to perform his job subsequent to his work injuries. This is, of course, of limited relevance since the legislature has mandated that loss of use of scheduled members may only be compensated according to the statutory scheme and not industrially. 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) . An injury is the producing cause; the disability, however, 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). A treating physician's testimony is not entitled to greater weight as a matter of law than that of a physician who later examines claimant in anticipation of litigation. Weight to be given testimony of physician is a fact issue to be decided by the industrial commissioner in light of the record the parties develop. In this regard, both parties may develop facts as to the physician's employment in connection with litigation, if so; the physician's examination at a later date and not when the LACKEY V. KELLER PATTERN CO. Page 9 injuries were fresh; the arrangement as to compensation; the extent and nature of the physician's examination; the physician's education, experience, training, and practice; and all other factors which bear upon the weight and value of the physician's testimony may be considered. Both parties may bring all this information to the attention of the factfinder as either supporting or weakening the physician's testimony and opinion. All factors go to the value of the physician's testimony as a matter of fact not as a matter of law. Rockwell Graphic Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985). Compensation for loss of an arm or loss of use of an arm shall be weekly compensation during 250 weeks or for such length of time as is proportionate to the percentage loss of use. Section 85.34(2)(m) and section 85.34(2)(u). Claimant's initial surgery consisted of a right medial nerve lysis performed May 9, 1983. Such followed his first injury. Claimant's second surgery, following his injury of May 30, 1984 and performed August 28, 1984, was limited fusion of the navicular, hamate and triquetrium with iliac crest bone graft. We have little information regarding claimant's hand impairment following his first surgery. Dr. Von Gillern, who performed that surgery, did opine on April 2, 1984 that claimant had a 10% permanent partial impairment of the upper extremity. As that date was subsequent to the first injury and surgery and prior to the second injury and surgery, that impairment assignation is accepted as claimant's permanent partial impairment related to his first injury and surgery. That percentage will be apportioned out for payment related to the first injury from any total amount of permanent partial impairment to claimant's hand that is determined. The fighting issue remains the extent of claimant's total disability to his right hand, given the various opinions of medical practitioners. F. Dale Wilson, M.D., evaluated claimant once after reviewing charts relative to claimant. That examination overall totaled approximately 2 1/2 hours. Dr. Wilson stated that he had arrived at a permanent partial impairment of either 47% or 53% of claimant's right upper extremity, depending upon whether one chose to combine as instructed in the AMA guides or to add different elements of impairment. Dr. Wilson also testified as to what he believed were deficiencies in the evaluation methods utilized by other physicians. Dr. Wilson is apparently a general surgeon. He acknowledged that he is neither a hand specialist nor an orthopaedic surgeon nor a neurologist. He further acknowledged that his current practice is largely limited to evaluations and 90-95% of those are done for claimants and applicants. Dr. Wilson was not claimant's treating physician and performed his evaluation substantially earlier in time than did either Dr. Cunnick or Dr. Von Gillern. Paul C. Cunnick, M.D., apparently evaluated claimant and, on June 17, 1986, opined that claimant had a 34% impairment of the upper extremity. The record does not suggest that Dr. Cunnick ever treated claimant. Likewise, the doctor's specialty, if any, is not apparent on the record. Thomas L. Von Gillern, M.D., has been claimant's primary LACKEY V. KELLER PATTERN CO. Page 10 treating physician from his first injury onward and performed the first surgery. The doctor's practice is apparently limited to orthopaedics, although it cannot be determined from the record whether he is a board-certified orthopaedic physician. On August 21, 1985, Dr. Von Gillern reported his agreement with Dr. Sprague's evaluation of a 15% impairment of claimant's upper extremity. On March 3, 1987, however, Dr. Von Gillern wrote an extensive report overviewing claimant's limitations as he viewed them through evaluation, apparently at the Franciscan Rehabilitation Center, and opined that claimant then had a 33% impairment of the upper extremity. Bruce L. Sprague, M.D., is identified as a hand and upper extremities surgeon, although it is not revealed on the record whether he is board-certified. Dr. Sprague was claimant's surgeon for his second surgery and, following evaluation, found that claimant had a permanent impairment of 15% of the upper extremity as of July 8, 1985. While all physicians who examined and evaluated claimant appear to be competent practitioners, we accept the most recent evaluation of Dr. Von Gillern as presenting the best evidence of claimant's residual loss of use of his right hand. Dr. Von Gi-llern is an orthopaedic practitioner and has had the most extensive and long-term contact with claimant. While Dr. Wilson testified at hearing that a treating practitioner's evaluation may be biased by the need to find efficacious treatment results, our general experience has been that the advantage gained by the treating practitioner's more extensive experience with the claimant's overall condition far outweighs any subjective need on the part of the practitioner to favorably color the results of the practitioner's own work. Furthermore, Dr. Von Gillern's impairment assignation of March 3, 1987 is most recent in time and, therefore, best reflects claimant's current impairment. (We acknowledge that Dr. Sprague, a hand specialist, performed claimant's second surgery and also evaluated claimant. We believe Dr. Von Gillern's longer involvement with claimant's overall condition and his more recent assessment of claimant makes his assignation of claimant more meaningful than that of Dr. Sprague. Furthermore, Dr. Von Gillern's assignation is more in keeping with those of claimant's other two evaluators, namely Drs. Cunnick and Wilson.) As noted above, claimant's total upper extremity disability will be apportioned between his first and second injuries with 10% permanent disability apportioned to the first injury and 23% apportioned to the second injury. Ten percent of 250 weeks equals 25 weeks. Defendants shall pay claimant 25-weeks of permanent partial disability benefits on account of the February 22, 1983 injury, with those payments to commence on June 23, 1983. Twenty-three percent of 250 weeks is 57.5 weeks. Defendants shall pay claimant 57.5 weeks of permanent partial disability benefits on account of his May 30, 1984 injury, with those payments commencing on January 7, 1985. Our remaining issue is claimant's rate of weekly compensation. As noted, claimant is married and entitled to three exemptions. LACKEY V. KELLER PATTERN CO. Page 11 Section 85.36 provides that the basis of compensation is the weekly earnings of the injured employee at the time of the injury. The section defines weekly earnings as the gross salary, wages, or earnings of an employee to which the employee would have been entitled had the employee worked the customary hours for the full pay period in which the employee was injured, as regularly required by the employee's employer for the work or employment for which the employee was employed, computed or determined under the schedule and then rounded to the nearest dollar. Under the schedule, section 85.36(6) provides that, in the case of an employee paid on an hourly basis, the weekly earnings shall be computed by dividing by 13 the earnings, not including overtime or premium pay, the employee earned in the employ of the employer during the last completed period of 13 consecutive calendar weeks immediately preceding the injury. The workers' compensation law is for the benefit of the worker and should be liberally construed. Irish v. McCreary Saw Mill, 175 N.W.2d 364 (Iowa 1970). Webster's Ninth New Collegiate Dictionary defines wages as a payment usually of money for labor or services usually according to contract on an hourly, daily or piecework basis. The shop agreement under which claimant worked from May 1, 1980 to May 1, 1983 provided that, as of May 1, 1981, all employees were entitled to and received vacation pay in the amount of 10% of the straight time hourly rate times the number of hours worked each week, which was to be paid together with regular pay each week. Holiday pay was to be computed at five percent of the straight time hourly rate times the number of hours worked each week. Holiday pay also was to be paid with regular pay each week. While the shop agreement effective after May 1, 1983 was not introduced into evidence, claimant's testimony as regards his compensation would suggest that similar vacation and holiday pay agreements were in effect at the time of the second injury on May 30, 1984. By contract, claimant's vacation and holiday pay was part of his gross wage each week. The vacation and holiday pay were not overtime pay and were not premium pay, both of which are excluded from gross wages under section 85.36. Likewise, while the vacation pay might be construed as an employer contribution to a benefit plan which would not be considered in determining gross salary, wages or earnings, that term is colloquially meant to include benefits other than a vacation or holiday pay rate for which the worker is directly compensated. Hence, when the law is construed in favor of the injured worker, claimant's vacation and holiday pay, received as part of claimant's overall weekly earnings, must be considered part of the basis of computation of claimant's weekly compensation rate. Lawyer and Higgs, Iowa Workers' Compensation -- Law and Practice, section 12-4, unnumbered paragraph 2, provides: It is not uncommon in determining the rate under section 85.36(6) for a non-salaried employee to find that there are weeks within the thirteen consecutive weeks prior to the injury that contain absences due to illness, vacation or other causes. Since the worker often does not get paid LACKEY V. KELLER PATTERN CO. Page 12 unless he works, these weeks are not representative of his earnings. The agency has consistently ruled that these weeks are not included in the thirteen weeks for determining the rate under Iowa Code section 85.36(6). Instead, the "short" weeks are skipped and additional weeks are included until thirteen completed consecutive weeks are accumulated for the calculation. The rationale for this method of determining the weekly earnings is based on the mandate of the first unnumbered paragraph of Iowa Code section 85.36 which requires a determination of earnings to which an employee "would have been entitled had he worked the customary hours for the full pay period in which he was injured..." Under the above reasoning, weeks in which claimant worked less than his regular work hours, which hours are presumed to be at least 40 per week, and in which he received either vacation pay, holiday pay, sick leave pay or unemployment benefits, would be skipped in finding the 13 weeks to be considered in calculating his rate of weekly compensation. Joint exhibit 15 does not include 13 full work weeks and, hence, cannot be properly used to calculate claimant's rate of weekly compensation regarding his February 22, 1983 injury. We note also that there is no evidence on the record as submitted as to whether claimant would have received overtime pay for those weeks in which he worked greater than 40 hours. Any overtime pay would not be included in the rate calculation, however. Under the record as submitted, our best calculation of claimant's rate regarding the LACKEY V. KELLER PATTERN CO. Page 13 February 22, 1983 injury is as follows: 45 + 45 + 45 + 45 + 45 + 40 + 40 + 40 + 40 + 40 + 40 [+ 40 + 40] = 545 X $20.8955 [18.17 + 2.7255] = $11,388.05 divided by 13 = $876 weekly earnings Under the benefit schedule in effect on February 22, 1983, weekly earnings of $876 result in a weekly compensation rate of $463.41 for a married individual entitled to three exemptions. The above calculation assumes that claimant worked two 40-hour weeks not reflected in the evidence submitted, but which should rightly be calculated in arriving at claimant's weekly compensation rate. The above calculation excluded all weeks in evidence during which claimant did not actually work a complete work week, that is, weeks in which claimant's gross wages included non-work pay. Claimant's weekly compensation rate for the May 30, 1984 injury was calculated as follows: [41.75 + 40.5 + 40 + 40 + 41.75 + 40 + 40.25 + 40 = 324.25 X $21.321 (18.54 + 2.781) = $6,913.33] plus [40 + 40 + 45 = 125 X $21.4015 (18.61 + 2.7915) = $2,675.1875] plus [43.75 + 40 = 83.75 X $21.6315 (18.81 + 2.8215) = $1,811.6381] which equals $11,400.155(.16) divided by 13 = $876.935 ($877) weekly earnings Under the applicable benefit schedule, an individual with weekly earnings rounded to $877 and married with three exemptions would be entitled to a weekly compensation rate of $478.05. Again, the above calculation excluded all weeks in evidence during which claimant did not actually work a complete work week, that is, weeks in which claimant's gross wages included non-work pay. FINDINGS OF FACT WHEREFORE, IT IS FOUND: Claimant received an injury to his right upper extremity on February 22, 1983 arising out of and in.the course of his employment. Claimant subsequently underwent a right medial nerve lysis on May 9, 1983 with release of transverse carpal ligament. Claimant sustained an injury to his right upper extremity on May 30, 1984, which injury arose out of and in the course of his employment. On August 28, 1984, B. L. Sprague, M.D., performed limited fusion of the navicular, hamate and triquetrium with iliac crest bone graft. LACKEY V. KELLER PATTERN CO. Page 14 Dr. Von Gillern primarily treated claimant relative to both the 1983 and 1984 injuries. Dr. Von Gillern is a physician whose practice is limited to orthopaedics. Dr. Sprague is a physician who is a specialist in hand and upper extremity. Paul C. Cunnick, M.D., evaluated claimant on June 17, 1986. Dr. Cunnick's medical area of specialization, if any, is unknown. Dr. Cunnick was apparently an evaluator only and not a treating physician. F. Dale Wilson, M.D., evaluated claimant in 1985 and issued a report on September 27, 1985. Dr. Wilson was an evaluating physician only. Dr. Wilson is apparently a general surgeon. On April 2, 1984, Dr. Von Gillern opined that claimant had a 10% permanent partial impairment of his upper extremity. On August 21, 1985, Dr. Von Gillern opined that claimant's findings were consistent with a 15% permanent partial impairment rating to the upper extremity, which Dr. Sprague had assigned on July 8, 1985. On March 3, 1987, Dr. Von Gillern issued a report extensively reviewing claimant's physical findings and opined that claimant's permanent partial impairment rating was 33% of the upper extremity. Dr. Von Gillern's rating of 33% upper extremity permanent partial impairment is most recent in time of the impairment ratings claimant has received. Dr.Von Gillern's rating is generally consistent with ratings of Drs. Cunnick and Wilson. Dr. Von Gillern's April 2, 1984 assignation of a permanent partial impairment of 10% of the upper extremity was subsequent to claimant's February 22, 1983 injury, but prior to claimant's May 30, 1984 injury. Claimant's vacation and holiday pay is a contractually agreed-to portion of his weekly wages and is not premium or overtime pay or a benefit to which his employer contributes. Claimant's weekly earnings for the 13 full weeks immediately preceding his February 22, 1983 injury, as can be ascertained from the evidence available, average $876.00. Claimant's weekly earnings for the 13 full weeks immediately LACKEY V. KELLER PATTERN CO. Page 15 preceding his May 30, 1984 injury, as can be ascertained from the evidence available and rounded to the nearest dollar, average $877.00. Claimant is married and is entitled to three exemptions. Claimant's rate of weekly compensation for the 1983 injury is $463.41. Claimant's rate of weekly compensation for the 1984 injury is $478.05. CONCLUSIONS OF LAW THEREFORE, IT IS CONCLUDED: Claimant is entitled to permanent partial disability resulting from his injury of February 22, 1983 of 10% of the right arm. Claimant is entitled to permanent partial disability resulting from his injury of May 30, 1984 of 23% of the right arm. Claimant's rate of weekly compensation for his injury of February 22, 1983 is $463.41. Claimant's rate of weekly compensation for his injury of May 30, 1984 is $478.05. ORDER THEREFORE, IT IS ORDERED: Defendants pay claimant permanent partial disability benefits for twenty-five (25) weeks at the rate of four hundred sixth-three and 41/100 dollars ($463.41) on account.of his injury of February 22, 1983 with those payments to commence on June 6, 1983. Defendants receive credit for benefits previously paid at the incorrect rate, with additional payment to equal the correct rate to be made. Defendants pay claimant permanent partial disability benefits for fifty-seven point five (57.5) weeks at the rate of four hundred seventy-eight and 05/100 dollars ($478.05) on account of his May 30, 1984 injury with those payments to commence on January 7, 1985. Defendants receive credit for benefits previously paid at the incorrect rate, with additional payment to equal the correct rate to be made. Defendants pay claimant four (4) weeks of healing period at the rate of four hundred sixty-three and 41/100 dollars ($463.41) per week on account of his February 22, 1983 injury. Defendants receive credit for benefits previously paid at the incorrect rate, with additional payment to equal the correct rate to be paid. Defendants pay claimant thirty point four two nine (30.429) LACKEY V. KELLER PATTERN CO. Page 16 weeks of healing period benefits at the rate of four hundred seventy-eight and 05/100 dollars ($478.05) on account of his May 30, 1984 injury. Defendants receive credit for benefits previously paid at the incorrect rate, with additional payment to equal the correct rate to be paid. Defendants pay accrued amounts in a lump sum. Defendants pay interest pursuant to Iowa Code section 85.30 as amended. Defendants pay costs pursuant to Division of Industrial Services Rule 343-4.33. Defendants file a Final Payment Report when this award is paid. Signed and filed this 28th day of January, 1988. HELEN JEAN WALLESER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Harold C. Lounsberry Attorney at Law 702 Putnam Building Davenport, Iowa 52801 Ms. Patricia Rhodes Cepican Attorney at Law 3432 Jersey Ridge Road P.O. Box 2239 Davenport, Iowa 52807 1803, 1806 Filed January 28, 1988 HELEN JEAN WALLESER JAMES W. LACKEY, Claimant, VS. File Nos. 744035 KELLER PATTERN CO., 795344 Employer, A R B I T R A T I 0 N and D E C I S I 0 N UNITED STATES FIDELITY & GUARANTY COMPANY, Insurance Carrier, Defendants. 1803, 1806 Claimant sustained two separate injuries to his right hand. Dispute was as to which of four medically assigned permanent partial impairment ratings should be accepted as a scheduled member disability rating. Disability rating of the primary treating physician was accepted over that of two examining physicians and claimant's surgeon for his second of two required surgeries. Primary treating physician had assigned a 10% disability subsequent to the first injury, but prior to the second injury. Claimant's scheduled member disability for the first injury was held to be that assigned by the treating physician subsequent to the first and prior to the second injury.