BEFORE THE IOWA INDUSTRIAL COMMISSIONER LUCILLE A. SCHULTZ, Individually and as Executor of the Estate of Edwin A. Schultz, File No. 752752 Claimant, A P P E A L vs. D E C I S I O N DUNHAM-BUSH, INC. Employer, Self-Insured, Defendant. STATEMENT OF THE CASE Defendant appeals from an arbitration and death benefits decision awarding claimant death benefits, temporary total disability benefits, medical expenses, and burial expenses from an injury on November 14, 1983. The record on appeal consists of the transcript of the hearing; joint exhibits 1 through 20; claimant's exhibits A and B; and defendant's exhibit I. Both parties filed briefs on appeal. ISSUE The issue on appeal is whether there is a causal connection between the work injury of November 14, 1983 and claimant's decedent's death. REVIEW OF THE EVIDENCE The arbitration and death benefits decision adequately and accurately reflects the pertinent evidence and it will not be set forth herein. APPLICABLE LAW The citations of law in the arbitration and death benefits decision are appropriate to the issues and evidence. ANALYSIS The analysis of the deputy in conjunction with the issues and evidence presented is adopted. SCHULTZ v. DUNHAM-BUSH, INC. Page 2 The findings of fact, conclusions of law, and order of the deputy in the arbitration and death benefits decision dated November 23, 1987 are adopted herein. FINDINGS OF FACT 1. Decedent experienced back pain on November 14, 1983 after he had lifted a large impeller in the course of his duties as a machine operator for employer, Dunham-Bush Company. 2. Decedent had prior back complaints and had done Williams exercises on a regular basis since 1971. 3. Decedent sought no medical treatment in the immediate interval following the November 14, 1983 incident. 4. Decedent continued to have difficulties through December 6, 1983 for which decedent's spouse treated him-with back rubs. Decedent also continued to do his Williams exercises. 5. Decedent's spouse was a credible witness. 6. An impeller weighs approximately 75-80 pounds and is 14 inches in diameter and three inches thick. 7. On December 6, 1983, decedent changed a chuck on a turret lathe in the morning. 8. A chuck weighs approximately 75 pounds. Lifting is required in changing a chuck. 9. Decedent did not have symptoms immediately following lifting the chuck. Little apparent significance was attached to the lifting of the chuck. 10. Upon rising from a seated position at the end of his work break on the morning of December 6, 1983, decedent experienced leg numbness and foot drop. 11. Decedent subsequently sought medical treatment and was off work from December 15, 1983 through February 13, 1984. 12. Decedent returned to work until his May 3, 1985 retirement without restriction and apparently at the same duties he had held prior to the development of his back and leg condition. 14. Decedent continued to experience numbness and foot drop while myelographic studies and CT scan studies indicated a herniated disc at L4-5. 15. On August 21, 1985, decedent entered the hospital where Dr. Brodersen performed a laminectomy on August 22, 1985. SCHULTZ v. DUNHAM-BUSH, INC. Page 3 16. On September 5, 1985, decedent had fever, shortness of breath and complaints of chest pain. 17. On September 7, 1985, decedent died. 18. An autopsy revealed clots in the pulmonary artery with one clot representing a fusion of two smaller clots indicating that the clot was from a small vein, probably in the upper leg or pelvis. 19. Blood clots are known complications of surgery in the leg or pelvic area, especially in older persons. 20. Decedent was born July 30, 1919. 21. Dr. Summers is a board-certified neurologist with long-term expertise in that field as well as experience in orthopaedics. 22. Dr. Brodersen is a board-certified orthopaedic surgeon who has substantially Less experience than has Dr. Summers. 23. Decedent's disc herniation was proximately caused by his November 14, 1983 work incident. 24. Decedent's laminectomy was occasioned by his disc herniation. 25. Decedent's death was caused by bilateral pulmonary emboli due to his laminectomy. 26. Decedent was off work and unable to seek other employment on account of his work-related injury from August 21, 1985 until his September 7, 1985 death. 27. Lucille Schultz is the surviving spouse of decedent. 28. Medical expenses to Glendon D. Button, M.D., Mach Ambulance Service, Mary Greeley Medical Center and Marshalltown Medical Center relate to decedent's work-related injury. 29. Decedent's reasonable burial expenses exceeded $1,000. CONCLUSIONS OF LAW Decedent received an injury which arose out of and in the course of decedent's employment on November 14, 1983. The injury of November 14, 1983 was a proximate cause of decedent's disability and his ensuing death. SCHULTZ v. DUNHAM-BUSH, INC. Page 4 Decedent's estate is entitled to payment of temporary total disability benefits from August 21, 1985 through September 7, 1985. Decedent's surviving spouse is entitled to benefits as provided in section 85.31(1)(a). Decedent's claimant is entitled to payment of medical costs as enumerated in the order below. Decedent's claimant is entitled to payment of reasonable burial expenses in the amount of $1,000. WHEREFORE, the decision of the deputy is affirmed. ORDER THEREFORE, it is ordered: That defendant pay claimant as surviving spouse of decedent Edwin A. Schultz benefits as provided in section 85.31(1)(a) at the rate of two hundred twenty-one and 42/100 dollars ($221.42) per week. That defendant pay claimant as executor of the estate of Edwin A. Schultz temporary total disability benefits from August 21, 1985 through September 7, 1985 at the rate cf two hundred twenty-one and 42/100 dollars ($221.42). That defendant pay medical expenses as follows: Glendon D. Button, M.D. $257.50 Mach Ambulance Service 372.00 Mary Greeley Medical Center 286.00 Marshalltown Medical Center 35.00 That defendant pay claimant reasonable burial expenses in the amount of one thousand dollars ($1,000). That defendant pay accrued amounts in a lump sum. That defendant pay interest pursuant to section 85.30 as amended. That defendant pay costs of this proceeding including the cost of transcription of the hearing pursuant to Division of Industrial Services Rule 343-4.33. That defendant file claim activity reports as requested by the agency. SCHULTZ v. DUNHAM-BUSH, INC. Page 5 Signed and filed this 31st day of October, 1988. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER BEFORE THE IOWA INDUSTRIAL COMMISSIONER LARRY VAN WINKLE, Claimant, VS. File No. 752893 GROWMARK, INC., A R B I T R A T I 0 N Employer, D E C I S I 0 N and AMERICAN MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Larry Van Winkel against Growmark, Inc., his employer, and American Mutual Insurance Company. The case was heard and fully submitted at Des Moines, Iowa on March 7, 1988. The record in this proceeding consists of testimony from Larry Van Winkel and Kevin Little. Jointly offered exhibits A through 0 were received into evidence. ISSUES The issues identified for determination at the time of hearing are whether claimant sustained an injury on November 28, 1983 which arose out of and in the course of his employment; whether the alleged injury is a cause of temporary or permanent disability; and, determination of the claimant's entitlement to compensation for permanent partial disability. In their post-hearing brief, however, defendants agreed that Van Winkel was injured on November 28, 1983 in the manner in which he had alleged. It was stipulated that, in the event of an award, the claimant's entitlement to healing period compensation was 74 1/7 weeks and that compensation for permanent partial disability became payable commencing on July 1, 1985. The rate of compensation was stipulated to be $343.70 per week. It was stipulated that defendants had paid 74 1/7 weeks of compensation for healing period and 50 weeks of compensation for permanent partial disability prior to hearing. VAN WINKLE V. GROWMARK, INC. Page 2 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. Larry Van Winkel is a 45-year-old, married man who has three dependent children. Van Winkel ended his formal education during the ninth grade. Van Winkel served in the Navy as.a deck hand and gunner's mate for three and one-half years. Van Winkel's work experience consists primarily of truck driving. Van Winkel initially could not recall experiencing any injuries to his back prior to the injury of November 28, 1983. Upon detailed questioning, Van Winkel did recall some other incidents of injury, but stated that none of them caused any permanent disability. Van Winkel testified that, on November 28, 1983, he slipped on wet snow while making a delivery of fuel at Alden, Iowa. Van Winkel stated that he experienced the onset of a dull pain in his back and reported the incident to his dispatcher when he returned to Des Moines. Van Winkel consulted his physician, Gregory L. Ingle, D.O., and was taken off work. Claimant was seen by a number of physicians. Martin S. Rosenfeld, M.D., indicated in December, 1983 that claimant had resolving left sciatica (exhibit G). In February, 1984, David B. McClain, D.O., confirmed that diagnosis (exhibit E). Claimant was seen by Dante R. Toriello, D.O., commencing in March, 1984. A CT scan which was performed was interpreted as being normal (exhibit F). Dr. Toriello felt that claimant had an L4 and L5 radiculopathy (exhibit D). Claimant commenced treatment with Kent M. Patrick, M.D., in May, 1984. Dr. Patrick reviewed the earlier CT scan and found it to be of such a poor quality that it would not be reliable (exhibit J, page 2). Claimant continued to treat with Dr. Patrick. A second CT scan was performed which was interpreted as showing a herniated L5-Sl intervertebral disc. Dr. Patrick indicated that claimant had a ten percent impairment of the body as a whole due to the disc and that the impairment was the same as what would exist if claimant had surgical excision of the disc with a good result (exhibit J, report dated September 20, 1985). Claimant has been treated conservatively throughout this matter. Dr. Patrick has indicated that surgery would be warranted if the frequency or duration of aggravations which Van Winkel occasionally experiences were to increase substantially. VAN WINKLE V. GROWMARK, INC. Page 3 Van Winkel continues to function as a truck driver for Growmark, Inc. Wages with the employer have been frozen since the time of injury and claimant earns the same now as he earned at the time of injury. Claimant has been able to perform all the duties of his employment, although he has had subsequent aggravations which have caused him to miss work and seek medical treatment. Claimant drives a truck which has been equipped with a special seat. Claimant indicated that he would not be able to function as a truck driver without the special seat. Claimant expressed concern regarding the security of his position with Growmark, Inc. Claimant complained of continuing back pain. He felt that he would be unable to perform several of the jobs he had previously held with other employers due to his limited bending and lifting abilities. Claimant stated that he would be unable to handle freight on a daily basis, although he does so occasionally in his current job. Kevin Little, the regional dispatcher for Growmark, Inc., stated that it is anticipated that Growmark will continue to use employee drivers, such as claimant, rather than increase their reliance upon owner-operators. Little indicated that claimant will likely have a job indefinitely into the future. Little testified that he would probably not hire a person with a documented herniated disc if he were hiring new employees. APPLICABLE LAW AND ANALYSIS By virtue of the agreement with regard to injury arising out of and in the course of employment and liability for healing period compensation as made in defendants' brief, it is determined and established that Larry Van Winkel sustained an injury to his back on November 28, 1983 which arose out of and in the course of his employment with Growmark, Inc. It is further established that the injury is a proximate cause of a healing period of 74 1/7 weeks' duration, which has been fully paid by defendants. The only remaining issue is determination of the degree of permanent partial disability that was proximately caused by the injury of November 28, 1983. The record contains evidence of prior injuries, but no evidence which even suggests that any of the prior incidents produced any degree of permanent disability. Accordingly, all the disability currently found to exist is determined to have resulted from the November 28, 1983 injury. As claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa VAN WINKLE V. GROWMARK, INC. Page 4 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 257 (1963). Industrial disability or loss of earning capacity is a concept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment of physical capacity creates an inference of lessened earning capacity. The basic element to be determined, however, is the reduction in value of the general earning capacity of the person, rather than the loss of wages or earnings in a specific occupation. Post-injury earnings create a presumption of earning capacity. The earnings are not synonymous with earning capacity and the presumption may be rebutted by evidence showing the earnings to be an unreliable indicator. Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 34th Biennial Report, 218 (1979): 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. It is clear that if Larry Van Winkel were for any reason compelled to seek reemployment in the competitive labor market, it would be highly unlikely that he could obtain employment which would in any way approach the level of earnings that he currently experiences with Growmark, Inc. The employer in this case, by continuing Van Winkel's employment, insulated itself from what would otherwise likely have been a large award. Claimant is currently working without any medically imposed specific activity restrictions, but he is, nevertheless, limited. He has been rated as having a ten percent permanent impairment. His education is quite limited. The evidence presents no reason to suspect that claimant's current state of employment is insecure. Industrial disability awards are not made upon speculation as to what the future may hold. one thing about the future which is not speculative is that the future holds uncertainty. Industrial disability is not precisely the same as wage loss, even though wage loss is an important factor in determining the degree of industrial disability. When all the factors of industrial disability are considered, it is determined that Larry Van Winkel sustained a 20% permanent partial disability as a result of the injuries he sustained on November 28, 1983. VAN WINKLE V. GROWMARK, INC. Page 5 FINDINGS OF FACT 1. On November 28, 1983, Larry Van Winkel was a resident of the state of Iowa employed by Growmark, Inc., in the state of Iowa. 2. Van Winkel was injured on November 28, 1983 when he slipped while unloading the truck that he operated for Growmark, Inc. 3. Following the injury, Van Winkel was medically incapable of performing work in employment substantially similar to that he performed at the time of injury until July 1, 1985 when he returned to work. 4. Van Winkel has a limited education, but appeared to be of at least average intelligence. 5. Van Winkel has a ten percent impairment of the body as a whole as a result of the herniated disc he sustained on November 28, 1983. 6. Van Winkel's work experience consists primarily of truck driving. 7. Larry Van Winkel has sustained a 20% permanent partial loss of earning capacity as a result of the injuries he sustained on November 28, 1983. CONCLUSIONS OF LAW 1.This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. Larry Van Winkel has a 20% permanent partial disability which entitles him to receive 100 weeks of compensation under the provisions of Code section 85.34(2)(u). ORDER IT IS THEREFORE ORDERED that defendants pay claimant one hundred (100) weeks of compensation for permanent partial disability at the stipulated rate of three hundred forty-three and 70/100 dollars ($343.70) per week payable commencing July 1, 1985. IT IS FURTHER ORDERED that defendants receive credit for the fifty (50) weeks of compensation previously paid and that remaining unpaid fifty (50) weeks be paid in a lump sum together with interest pursuant to Iowa Code section 85.30. IT IS FURTHER ORDERED that defendants.pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. VAN WINKLE V. GROWMARK, INC. Page 6 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 3rd day of January, 1989. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Dennis L. Hanssen Attorney at Law Suite 111, Terrace Center 2700 Grand Avenue Des Moines, Iowa 50312 Mr. Ross H. Sidney Ms. Iris J. Post Attorneys at Law 2222 Grand Avenue P.O. Box 10434 Des Moines, Iowa 50306 1803 Filed January 3, 1989 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER LARRY VAN WINKLE, Claimant, VS. File No. 752893 GROWMARK, INC., A R B I T R A T I 0 N Employer, D E C I S I 0 N and AMERICAN MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. 1803 Claimant was a 45-year-old truck driver with a ten percent permanent partial impairment of the body as a whole due to an unoperated herniated lumbar disc. Claimant was awarded 20% permanent partial disability despite the fact that he had suffered no actual wage loss due to the employer's action in retaining his employment. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ ARCHIE ROZELL, Claimant, File No. 753062 VS. A P P E A L SIOUX TOOLS, INC., D E C I S I 0 N Employer, and CNA INSURANCE COMPANIES, Insurance Carrier, Defendants. _________________________________________________________________ STATEMENT OF THE CASE Defendants appeal from an arbitration decision awarding permanent total disability benefits. The record on appeal consists of the hearing transcript; claimant's exhibits 1 through 6; and the briefs and filings of all parties on appeal. Defendants' exhibits A and B were excluded from the record at the arbitration proceedings. ISSUES Defendants state the following issues on appeal. 1. Whether there is a causal relationship between claimant's disability and his injury of November 28, 1983. 2. The extent of claimant's industrial disability. 3. Whether the deputy erred in excluding exhibits A and B. REVIEW OF THE EVIDENCE The arbitration decision adequately and accurately reflects the pertinent evidence and it will not be totally reiterated herein. Briefly stated, claimant was 64 years old at the time of the hearing. His education consists of completing the eighth grade, and he stated that he found school to be "tough." Since the age of 18, claimant has worked at a series of physical labor jobs such as farm work, factory work, and service station work, all of which involved some degree of lifting, bending or stooping. Claimant began work with defendant Sioux Tools, Inc., June 16, 1969, running a degreaser and a polisher. This job required him to lift pans weighing 40 to 50 pounds, as well as to stand, stoop and bend. In 1975, claimant experienced an injury to his back while lifting a 50 pound pan. He underwent fusion surgery for this by E.M. Mumford, M.D., and was off work for eight months. It was opined that claimant sustained an eight percent impairment of the body as a whole as a result of the 1975 injury. He later returned to work and was able to perform his job tasks, but was under medical restriction from Dr. Mumford not to lift over 40 pounds. Claimant stated that he had no further injuries until November 28, 1983. On that date, he was engaged in shoveling heavy packed snow. He described the snow as hardened and icy, and shoveling it "just like driving a shovel through cement." Claimant shoveled snow for eight hours on November 28, 1983. He testified that he felt his back "catch" during the shoveling and felt pain in the same area as the 1975 injury and surgery. Claimant also testified that when he returned home after work on November 28, 1983, he was still in pain. On November 29, 1983, he again shoveled snow for defendant employer. At 10:00 a.m., he went home from work due to pain from the shoveling. Claimant opined that each shovel of snow he lifted would weigh about 25 pounds. Claimant made an appointment to see Dr. Mumford, but was not seen until December 19, 1983. He continued to work for Sioux Tools until December 16, 1983, but avoided heavy duties and took frequent rests. He has not worked since that date. Claimant was hospitalized in January 1984. At that time, he underwent surgery by E.M. Howells, M.D., for a vascular insufficiency in both legs and was also treated by Dr. Mumford while in the hospital for his back, with a series of injections. Claimant testified he had no problems with leg pain prior to November 28, 1983. Claimant testified that since the injury of November 28, 1983, he is unable to lift or walk even a short distance without pain and needing to rest. He stated that he has a paralyzing "Catch" in his back and has to wear a back brace eight hours daily, and when his back catches, he experiences pain in his back which also radiates into his legs. He stated he cannot sit for a long period of time or drive a car for more than a short distance, experiences cramps, and has pain in the middle of his bock without numbness in his hands or arms. He cannot lift, bend, stoop, or stand for over two or three hours. Claimant also indicated he knows of no work he can do, and that he had contacted the Iowa Department of Job Service one month prior to the hearing, but has had no indications of job openings. Claimant states he would prefer to work. Dr. Mumford has not released him to go back to work, and has told him there is nothing more he can do for him. On July 30, 1984, Dr. Mumford stated: It is my impression this man aggravated a preexisting degenerative spondylolisthesis and has increased instability of the back. He certainly does have disability, some I think because of his vascular insufficiency, and some because of the aggravation of the low back area. ROZELL V. SIOUX TOOLS, INC. Page 3 In my opinion he is disabled from doing any heavy work and should retire. As far as the percentage of increased disability from the one episode of injury on 11/29/83, I would state that his impairment has probably increased some 10-15% above and beyond his previous disability. In distinguishing between the amount of impairment caused by claimant's back condition as opposed to his vascular insufficiency, Dr. Mumford opined on September 25, 1984: You asked if he would be able to return to gainful employment if his condition were strictly the back. He could return to very sedentary employment at a sitting position, but he would not be able to perform any kind of activities requiring lifting, stooping or bending. Certainly his legs, suffering from some vascular insufficiency, do contribute to any activity that he might do as far as prolonged walking. However, his back does preclude him from doing anything but a sitting type of work. On January 4, 1985, Dr. Mumford concluded that claimant "from a functional rating, would have 25-30% disability of his body on the basis of his back. This does not include the disability due to his vascular insufficiency." In regard to the leg surgery of May 31, 1984, Dr. Howells stated: I have treated Mr. Rozell for arterial insufficiency in the lower extremities. In January of 1984, he underwent femoral popliteal bypass for arterial insufficiency in the left lower extremity and underwent dilatation of an iliac artery on the right side for problems of the right lower extremity. Both of these, I think would be considered natural disease and not result of accident or complicated by work. From the arterial point of view, I would consider his disability partial at the present time. Testimony was also received from Calvin J. Rathel, an interviewer for the Iowa Department of Job Service who specializes in job placements for the handicapped. Rathel testified that due to claimant's age, lack of education, and impairment, he cannot be "gainfully employed in the State of Iowa." He further opined that he could easier place a blind man in a job than he could place claimant. Delores Rozell, claimant's wife, testified that since November 28, 1983, claimant has frequent discomfort, has trouble getting into and out of chairs, and can no longer do yard work or help around the house. The parties stipulated that the injury arose out of and in the course of claimant's employment with defendant employer, and that his rate of compensation was $212.86. ROZELL V. SIOUX TOOLS, INC. Page 4 APPLICABLE LAW The claimant has the burden of proving by a preponderance of the evidence that the injury of November 28, 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. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Under Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980), a cause is proximate if it-is a substantial factor in bringing about the result. It does not have to be the only cause. 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 Hosp. 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 v. United States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 (1960). 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.2d 760-761 (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, 815 (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, 252 Iowa 613, 620, 106 N.W.2d 591, 595. 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, 253 Iowa 369, 112 N.W.2d 299; 100 ROZELL V. SIOUX TOOLS, INC. Page 5 C.J.S. Workmen's Compensation 555 (17)a. 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; Yeager 253 Iowa 369, 112 N.W.2d 299; Ziegler, 252 Iowa 613, 106 N.W.2d 591. See also Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist, 218 Iowa 724, 254 N.W. 35. If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." The opinion of the supreme court in Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963) cited with approval a decision of the industrial commissioner for the following proposition: Disability * * * as defined by the Compensation Act means industrial disability, although functional disability is an element to be considered . . . In determining industrial disability, consideration may be given to the injured employee's age, education, qualifications, experience and his inability, because of the injury, to engage in employment for which he is fitted. * * * * 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 ROZELL V. SIOUX TOOLS, INC. Page 6 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 formula 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). An older worker with a relatively low functional disability, little education, a history of former employment involving physical labor, and restrictions on his present ability to perform similar labor, may be totally disabled. See Diederich, 219 Iowa 587, 258 N.W. 899. Division of Industrial Services Rule 343-4.17 (formerly Industrial Commissioner Rule 500-4.17 (1986)) states: Each party to a contested case shall serve all medical records and reports concerning the injured worker in the possession of the party upon each opposing party not later than twenty days following filing of an answer, or if not then in possession of a party, within ten days of receipt. Medical records and reports are records of medical practitioners and institutions concerning the injured worker. Medical practitioners and institutions are medical doctors, osteopaths, chiropractors, dentists, nurses, podiatrists, psychiatrists, psychologists, counselors, hospitals, clinics, persons engaged in physical or vocational rehabilitation or evaluation for rehabilitation, all other practitioners of the healing arts or sciences, and all other institutions in which the healing arts or sciences are practiced. Each party shall serve a notice accompanying the records and reports identifying the records and reports served by the name of the practitioner or institution and date of the records and reports, and if served later than twenty days following filing of the answer, stating the date when the records and reports were received by the party serving them. Pursuant to 4.14(86), the notice and records and ROZELL V. SIOUX TOOLS, INC. Page 7 reports shall not be filed with the industrial commissioner. A party failing to comply with the provisions of this rule shall, if the failure is prejudicial to an opposing party, be subject to the provisions of 4.36(86). Division of Industrial Services Rule 343-4.36 (formerly Industrial Commissioner Rule 500-4.36 (1986)) states: If any party to a contested case or an attorney representing such party shall fail to comply with these rules or any order of a deputy commissioner or the industrial commissioner, the deputy commissioner or industrial commissioner may dismiss the action. Such dismissal shall be without prejudice. The deputy commissioner or industrial commissioner may enter an order closing the record to further activity or evidence by any party for failure to comply with these rules or an order of a deputy commissioner or the industrial commissioner. ANALYSIS Defendants appeal the exclusion at the hearing of their proffered exhibits A and B. The parties were required by Division of Industrial Services Rule 343-4.17 to submit medical and practitioners' reports to the opposing party. At the pretrial conference, defendants indicated to the prehearing deputy that ROZELL V. SIOUX TOOLS, INC. Page 8 they had received and exchanged all of their medical reports and that Rule 343-4.17 was complied with. An assignment order was issued indicating that a list of exhibits to be offered at the hearing shall be served on the opposing party. Defendants acknowledge noncompliance with both the rule and the order through "inadvertence and oversight." Defendants offered exhibits A and B at the hearing and they were objected to by claimant and excluded by the deputy commissioner. Defendants urge their admission because some of claimant's exhibits allegedly similarly failed to comply, yet the record shows defendants did not object at hearing to claimant's exhibits. The deputy properly excluded defendants' exhibits for noncompliance with the rule and the hearing order. Claimant's testimony indicates he had no back pain or "catch" prior to the date of injury, nor did he have any difficulty bending, lifting, stooping, standing, walking or driving prior to the date of injury, other than medical advice not to lift more than 40 pounds. After shoveling heavy snow for his employer on November 28, 1983, claimant immediately experienced a "catch" and pain in his back, and now has difficulty lifting, bending or stooping, and cannot stand or drive a car for any substantial period.of time. He also now wears a back brace. The testimony of Dr. Mumford that claimant aggravated his preexisting spondylolisthesis on November 28, 1983 is uncontroverted. Claimant's restrictions on lifting, stooping or bending all stem from his back condition. Dr. Mumford based his rating of impairment on the back condition alone, without regard to the vascular insufficiency. Claimant has established a causal relationship between the November 28, 1983 injury and his disability. The testimony of claimant and the reports of Dr. Mumford indicate claimant has a 25 to 30 percent permanent-functional impairment of his back. Claimant previously was determined to have an 8 percent functional impairment to the body as a whole stemming from a 1975 injury to his back while working for the same employer. Defendants conceded at the bearing that claimant's industrial disability is now greater than 30 percent but less than 100 percent. Functional impairment is only one of the criteria. Claimant was 64 years old at the time of the hearing. His education limited to the eighth grade, and testified he found school "tough." His opportunity to retrain for other employment is nonexistent. His impairment makes him unable to perform the work he has done all of his life and the testimony of Calvin Rathel would indicate that claimant is not employable in the state of Iowa. Based on the fact that claimant has no earning capacity as a result of his November 28, 1983 injury, he is permanently and totally disabled. Claimant's income from nonearned sources is irrelevant to a determination of earning capacity. FINDINGS OF FACT 1. Defendants failed to timely provide copies of medical reports designated exhibits A and B. ROZELL V. SIOUX TOOLS, INC. Page 9 2. Claimant was 64 years old at the time of the hearing. 3. Claimant's education consists of completing the eighth grade. 4. Claimant had difficulty with school. 5. Claimant worked in various labor jobs involving lifting, bending, or stooping prior to working for defendant employer. 6. Claimant began work for defendant employer in June 1969 operating a degreaser and polisher. 7. Claimant's work for defendant employer required him to bend, lift and stoop. 8. In 1975, claimant suffered a back injury while employed by defendant employer which resulted in an 8 percent functional impairment. 9. On November 28, 1983, while shoveling snow, claimant suffered a back injury arising out of and in the course of his employment. 10. Claimant did not have pain or experience difficulty lifting, bending, stooping, standing, walking or driving prior to the injury of November 28, 1983. 11. Claimant experiences pain and a."catch" in his back, wears a back brace, and can no longer lift, bend, stoop, walk or drive more than short distances subsequent to his injury of November 28, 1983. 12. Claimant can no longer perform the duties of his job. 13. Claimant's last day at work was December 18, 1983. 14. Claimant underwent surgery for a nonwork-related vascular insufficiency of both legs in January 1984. 15. Claimant has 25-30 percent functional impairment of the body because of back condition but separate and distinct from the vascular insufficiency. 16. Claimant is motivated to work, and has utilized job placement services without success. 17. Claimant's age, lack of education, his impairment and job experience result in no jobs being available to claimant. CONCLUSIONS OF LAW 1. The deputy properly excluded exhibits A and B. 2. Claimant's disability is causally related to his November 28, 1983 injury. 3. Claimant is permanently and totally disabled as a result ROZELL V. SIOUX TOOLS, INC. Page 10 of his November 28, 1983 work-related injury. WHEREFORE, the decision of the deputy is affirmed. ORDER THEREFORE, defendants are to pay unto claimant permanent total disability benefits at the stipulated rate of two hundred twelve and 86/100 dollars ($212.86) per week for the period of his disability. Defendants are to be given credit for benefits previously paid. Payments that have accrued shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. Defendants are to pay the costs of this action. Defendants shall file claim activity reports, pursuant to Division of Industrial Services Rule 343-3.1(2), as requested by this agency. Signed and filed this 18th day of December, 1987. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. P.D. Furlong Attorney at Law 401 Commerce Building Sioux City, Iowa 51101 Mr. Michael P. Jacobs Mr. William J. Rawlings Attorneys at Law 300 Toy National Bank Bldg. Sioux City, Iowa 51101 1108.50; 1804; 2601.20 Filed 12-18-87 David E. Linquist BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ ARCHIE ROZELL, Claimant, File No. 753062 VS. A P P E A L SIOUX TOOLS, INC., D E C I S I 0 N Employer, and CNA INSURANCE COMPANIES, Insurance Carrier, Defendants. _________________________________________________________________ 1108.50 Where claimant's restrictions on bending and lifting were shown by expert medical testimony to be caused by aggravation of preexisting back condition and restrictions were not based on claimant's vascular insufficiency, claimant's disability was causally related to his injury. 1804 Affirmed deputy's finding that a 64 year old worker with eighth grade education, a history of physical labor jobs involving lifting and bending, a current rating of impairment of 25-30%, restrictions on lifting and bending, expert testimony that claimant is unemployable, was permanently totally disabled. 2601.1 Deputy commissioner properly excluded defendants' medical exhibits for failure to provide exhibits to claimant's counsel in violation of rule and prehearing order. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JOYCE D'OSTILIO, File No. 753117 Claimant, R E V I E W - vs. R E O P E N I N G FEDERAL RESERVE BANK, D E C I S I O N Employer, F I L E D and MAR 09 1988 THE HARTFORD INSURANCE GROUP, IOWA INDUSTRIAL COMMISSIONER Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in review-reopening from a Memorandum of Agreement brought by Joyce D'Ostilio against Federal Reserve Bank, employer, and The Hartford Insurance Group, its insurance carrier. Claimant seeks further benefits as a result of the injury that she sustained on January 29, 1982 which arose out of and in the course of her employment. The case was heard and fully submitted at Des Moines, Iowa on August 6, 1987. The record in this proceeding consists of testimony from Joyce D'Ostilio, Kim Rhoads and Bil Cooper. Joint exhibits 1 through 20 were received into evidence. ISSUES The issues presented by the parties for determination are whether the injury of January 29, 1982, which the employer admitted, was a proximate cause of the permanent disability with which claimant is afflicted; the extent of claimant's entitlement to compensation for healing period; determination of claimant's entitlement to compensation for permanent disability; and, assessment of costs. In particular, claimant urges that she is permanently and totally disabled and relies upon the odd-lot doctrine. Defendants, at the time of hearing, sought credit for the amount of claimant's salary that had been paid in addition to workers' compensation benefits, but in their posthearing brief, defendants acknowledged that they were not entitled to any credit for the excess. (Division of Industrial Services Rule 343-8.4). Claimant had sought additional compensation under the fourth unnumbered paragraph of Iowa Code section 86.13, but that claim was waived at the time of hearing. The parties stipulated that claimant's rate of compensation is $169.68 per week, that benefits had been paid as set forth in exhibit 19, which was received into evidence, and that the days claimant was absent from work were as set forth in an attachment to the pre-hearing report. 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 offered may show are inevitable with any summarization. The conclusions in the following summary should be considered to be preliminary findings of fact. In the post-hearing filings made by the parties, each party included a summary of the evidence. Those summaries were both quite accurate and fairly summarize the pertinent evidence in the case. The summarization by claimant is used as a basis for the following statements, with some modifications as were deemed appropriate by the undersigned. Claimant testified that she was 49 years old at the time of hearing. She resides at 902 SE Diehl, Des Moines, Iowa. Claimant has been married for over 30 years to Patrick W. D'Ostilio, a city of Des Moines police officer. Their two children are now grown and no longer reside in the family home. Mr. D'Ostilio will be eligible for retirement in about three years. Claimant stated she and her husband then plan to move their residence to a "place where it is warm." Claimant graduated from Roosevelt High School in 1955. She has had no further education or vocational training. Following high school, claimant worked for the phone company for approximately two years; Central National Bank for five years; and, Valley National Bank for one year. All of these employment positions were clerical in nature. From 1966 until 1972 she remained at home with her children as a housewife. Claimant returned to employment in 1972. Initially, she worked in a restaurant as a waitress and cashier. Later in 1972, she gained a position with the defendant, Federal Reserve Bank. Initially, her duties were limited to clerical typing and filing, but as she gradually gained experience, her employment positions entailed more responsibility and bookkeeping work. At the time of her injury in January, 1982, she worked in "check adjustment" receiving "blocks" of tapes from commercial banks, reviewing and researching the tapes, and trying to solve whatever bookkeeping problem the banks had. Claimant testified that, while employed by the Federal Reserve Bank, she worked 40 hours per week and, at the time of injury, was receiving an annual salary of $13,771.00. Her job title at the time of injury was that of a "senior difference clerk." Claimant's duties included preparation of routine correspondence, carrying blocks of checks, reviewing lists of figures for errors, movement of small file trays and computer tapes, and other various clerical duties which included both working at a desk as well as a lesser amount of walking and climbing. Claimant testified that she enjoyed her job duties with the Federal Reserve Bank and received above average performance ratings throughout the course of her employment. This testimony is confirmed by exhibits 12 and 14, both of which refer to above average performance ratings and an essentially perfect attendance record prior to the January 29, 1982 work incident. Claimant testified that, on January 29, 1982, (a Friday), while walking to her car in a parking lot maintained by the Federal Reserve Bank, she slipped on an icy surface with her feet going out from under her. She fell to the parking lot surface on her buttocks and hands. Claimant, not believing herself to be seriously injured, went home, but, over the course of the weekend, noticed that she began to feel poorly. The following Monday, February 1, 1982, claimant reported the fall to her employer, but continued working (exhibit 13). Claimant's condition did not improve whereupon she was referred to the company physician, Mangil G. Seo, M.D. Claimant first saw Dr. Seo on February 8, 1982 (exhibit 1). Dr. Seo treated claimant in a conservative fashion prescribing medication, heat, ultrasound and massage. He instructed claimant to stay off work. One week later, she again saw Dr. Seo who changed her medication and kept her off work. Dr. Seo saw claimant on February 22, 1982, at which time claimant indicated that she was feeling better, but that she was still experiencing pain at the center of her neck. Dr. Seo was of the opinion that she had suffered a myofascial strain of the neck. Claimant was authorized to return to her preinjury employment duties on February 23, 1982 (exhibit 1). Claimant returned to and continued to perform her occupational duties for approximately two months. On April 28, 1982, she was examined by Dr. Seo who noted that her pain was persisting both in her neck and right arm along with tingling and numbness of the right fourth and fifth fingers. The aspirin she was taking for pain was giving her stomach problems. On May 7, Dr. Seo examined claimant noting pain intensification. He admitted her to Mercy Hospital Medical Center in Des Moines, Iowa for purposes of administering physical therapy. On May 8, 1982, a consultation with John T. Bakody, M.D., a board-certified neurosurgeon, was arranged by Dr. Seo. Dr. Bakody was initially of the impression that claimant was suffering from traumatic spinal syndrome and suggested intensive physical therapy and the administration of medication [exhibit 2(b)]. The physical therapy was performed without lasting benefit [exhibit 2(i)]. On May 18, 1982, a cervical myelogram was carried out which showed an anterior indentation of the dye column at the C5-6 interspace [exhibit 2(i)]. On May 21, 1982, Dr. Bakody carried out an anterior cervical interbody fusion at the C5-6 interspace [exhibit 2(f), 2(i)]. Postoperatively, claimant improved with regard to her discomfort, her wounds healed well and, upon x-ray, the cervical spine showed good position and alignment of the fusion mass [exhibit 2(i)]. Claimant was allowed to return home on May 27, 1982 with a prescription of Tylenol #3 for pain as needed [exhibit 2(i)]. Claimant continued to follow up with Dr. Bakody as a patient through the months of June and July. Cervical x-rays again showed excellent positioning of the fusion body although claimant was experiencing discomfort with activity and also was suffering from reduced range of motion of the head and neck [exhibit 2(a)]. Dr. Bakody recommended return to half-time duties beginning August 23, 1982 [exhibit 2(a), 2(k)]. Claimant testified that she felt she was ready to return to work and did so on a half-time basis beginning August 23, 1982, working approximately four hours per day. On September 10, 1982, she again saw Dr. Bakody. Claimant reported that she was continuing to suffer a lot of pain. Her prescription for Tylenol #3 was renewed and Dolobid and Elavil were also prescribed [exhibit 2(a)]. On October 12, 1982, claimant was examined by Dr. Bakody and related that "she was feeling a lot better" (exhibit 18(d), page 9). After discussion with Dr. Bakody, it was agreed that she could try full-time work, which she did on October 15, 1982 (exhibit 13). Dr. Bakody related, in reference to claimant's return to full-time duties in October, 1982: I think you could consider recovery, work return, at that time, at least, representing a maximum recovery but not knowing, again, what the future will bring. (Exhibit 18(d), page 12). Claimant testified that she did in fact return to her preinjury employment duties on or about the October 15, 1982 date and continued with these duties until approximately December 13, 1983. In the interim, she testified to having experienced a lot of pain in her neck, arms and head. Exhibit 15 sets forth in part the prescription medications that she was taking during this interim. In addition to the Dolobid, Tylenol #3 and Elavil, claimant testified to taking lots of aspirin during this time frame. Claimant testified that the pulling of drawers and the hanging of her head over her work area were two particular factors that seemed to aggravate the discomfort in her neck, arms and head. Dr. Bakody's office notes [exhibit 2(a)] also set out both the quantity of pain medication that was being prescribed and her reports of discomfort. At the time of claimant's July 13, 1983 examination, the doctor resumed claimant's Dolobid and Elavil, which apparently had been either reduced or discontinued during January of 1983. Claimant testified that, on or about December 13, 1983, the pain became so intense that it was to the point of becoming disabling. She testified that she could not function. She missed work on December 13, 14, 15, 16, 23 and 30. On December 19, claimant consulted with Dr. Bakody reporting her distress. Upon examination, Dr. Bakody found limitation in rotational movements of claimant's head and neck, but neurological findings were normal. He advised continuing her medications and ordered her to report for physical therapy (exhibit 18(d), page 15). He also ordered electromyography and nerve conduction studies, both of which were reported as normal [exhibit 2(q)]. Dr. Bakody reported that the symptoms claimant was suffering at this time appeared to be a continuum of her problems relating to the fall in the parking lot in 1982 [exhibit 2(t)]. Claimant testified that she got no relief from the physical therapy and again sought Dr. Bakody for further examination on January 24, 1984. She had not worked since December 29, 1983 (exhibit 2(t), page 18). Dr. Bakody obtained a progress x-ray and found, "the fusion position from an x-ray standpoint, it was excellent." Claimant continued to see Dr. Bakody approximately every two weeks during the months of January and February, 1984. Dr. Bakody continued the Tylenol #3, Elavil and Motrin, prescribed a "wall-pil-o" and recommended the practice of biofeedback muscle relaxation techniques [exhibit 2(a)]. On February 7, 1984, Dr. Bakody recommended treatment at the Mercy Hospital Pain Clinic under the care of James Blessman, M.D. [exhibits 2(a); 2(v)]. Dr. Blessman was of the initial impression that claimant was suffering from chronic myofascial cervical strain [exhibit 5(a)]. From mid-February to March 16, 1984, claimant was hospitalized at the Mercy Hospital Medical Center Pain Clinic. Claimant was seen in consultation with staff psychologist, Dr. Todd Hines. It was reported that Dr. Hines found claimant to be significantly depressed and noted a number of secondary gain factors that were operating in this case [exhibit 5(b)]. However, Dr. Blessman stressed that there were absolutely no signs of malingering [exhibit 5(b)]. He felt the patient's pain to be on an anatomical basis and did feel it was related to the traumatic injury of 1982 [exhibit 5(b)]. While a patient at the Pain Clinic, claimant's medication was modified, she was treated with several different types of physical therapy. A TENS unit was recommended and utilized with some success [exhibit 5(b)]. Claimant participated in aquatic exercises, stretching and flexing exercises and various aerobic exercises, specifically including walking on a treadmill [exhibit 5(b)]. Dr. Blessman was of the impression that claimant was very well motivated [exhibit 5(b)]. Claimant was instructed in weight reduction, restriction in the consumption of caffeine and refined sugars and Dr. Blessman recommended that she work on her efforts to discontinue smoking [exhibit 5(b)]. Dr. Blessman was of the opinion that claimant had gained considerable improvement from the pain management program and recommended that she continue an active rehabilitation program through the use of an exercise bicycle and swimming at the YMCA [exhibit 5(b)]. Her return to work eight weeks following discharge from the Pain Center was projected [exhibit 5(b)]. Claimant testified that she returned to her home and continued to practice the techniques learned at the Pain Clinic. She also continued to consult with Dr. Bakody. Dr. Bakody's office notes of April 24, 1984 report that claimant was feeling a lot better and that she was of the impression she had learned a lot at the Pain Clinic [exhibit 2(a)]. At that time, it was Dr. Bakody's plan that claimant return to employment duties during early June, 1984 [exhibits 2(a); 2(z)]. Claimant returned to the bank and worked the days of June 5 and June 6, 1984 (exhibit 13). On June 5, 1984, she phoned Dr. Bakody with so many complaints that he referred her to Theodore Rooney, D.O., who is head of the rheumatology clinic at Mercy Hospital (exhibit 18(d), page 23). Dr. Bakody has not seen claimant since then. In Dr. Bakody's opinion, claimant has sustained in the area of a 15% to 20% permanent physical impairment to the body as a whole "as a result of the change of the structure of her neck, along with the surgery, and the fact that there are continuing complaints" (exhibit 18(d), pages 13 and 34). Claimant first saw Dr. Rooney on or about June 19, 1984 [exhibit 3(a)]. The following are excerpts from exhibits 3(a) and 3(x). Claimant reported to Dr. Rooney that she had been taking between six and eight Tylenol #3 daily for the past three weeks, but was barely able to deal with the pain. She described symptoms of achiness and discomfort of the posterior cervical area and the cervicothoracic area that was worse on the right as opposed to the left. She reported intermittent pain radiating down into her hands. She reported swelling in her arms and fingers which came and went, but was not associated with any definite joint stiffness or swelling or was usually not limited to the joints. She reported that she generally felt best in the morning depending upon how she felt before going to bed and that the symptoms became worse as the day went on. She reported significant disrupted sleep. Examination revealed restricted range of motion in the cervical spine; evidence of multi-tender trigger points along the posterior musculature of the upper neck and thoracic spine; and, some tenderness in the lateral elbows. She had no findings in the lower extremity and her neurological exam was unrevealing (exhibit 18(c), pages 6 and 7). Dr. Rooney was under the initial impression that claimant suffered from chronic pain syndrome secondary to chronic cervical strain and significant fibromyalgia (exhibit 18(c), page 8). He was also of the opinion that a portion of her problems were tied to underlying depression and frustration which would exacerbate the underlying condition. Other aggravating factors included her disrupted sleep pattern. Testing was carried out in order to rule out systemic rheumatologic manifestations. Dr. Rooney prescribed Nalfon, Elavil and water exercises at Mercy Hospital. His plan for treatment was directed to controlling her symptomatology through anti-inflammatory and anti-depression medication (exhibit 18(c), page 11). Upon re-examination of claimant on July 28, 1984, Dr. Rooney noted that she had less discomfort, was sleeping better and there was no tenderness in her lower back area [exhibit 3(e)]. Dr. Rooney reported that the Feldene he had prescribed in place of the Nalfon was causing some stomach upset. He also reported that claimant tended to have symptoms of reflux without any other medications on board. Dr. Rooney recommended the continuation of the Feldene, the use of liquid antacids and a trial basis of return to half-time work approximately six weeks into the future. On September 24, 1984, claimant returned to part-time employment duties with the Federal Reserve Bank. The half-time duties were described as the same duties that she performed both before her January 29, 1982 accident and the interims thereafter. Claimant performed her half-time duties continuously until January 4, 1985 with the exception of December 14, 1984 and a vacation taken from November 13 through December 7, 1984 (exhibit 13). When claimant was next seen on November 25, 1984, Dr. Rooney found her significantly improved and almost pain-free (exhibit 18(c), page 17). Apparently, claimant's medication had been changed from Feldene to Naprosyn. Claimant reported having occasional GI upset, but on an irregular basis. She was continuing to take Elavil at night time. Dr. Rooney reported his assessment as moderate to severe fibromyalgia that was improved over the episodes that had been previously reported. He recommended continuation of her present medications, a reduction in the ingestation of Naprosyn, instruction in the use of stress and relaxation techniques, continuation of a regular exercise program and an increase in her working day to a total of six hours with a goal of an eventual increase to full-time duties (exhibit 13). Claimant testified that, throughout this particular return to work episode, she continued to suffer from pain and additional frustration. Claimant testified that, on or about January 4, 1985, she suffered from an exacerbation of the underlying condition. She reported that her pain and depression was much worse than during the previous year, that she ached and that she had difficulty in concentrating and thinking. She was continuing with the Naprosyn. She spoke with Dr. Rooney over the phone [exhibit 3(x)]. Claimant had apparently been taking Darvocet N100 for pain, but the medication had caused her to be ill so she stopped using this medication. The doctor recommended she continue to use the Naprosyn, Elavil, TENS unit, pool and warm heat [exhibit 3(x)]. Claimant returned to Dr. Rooney on January 27, 1985, describing increased pain in her neck and shoulders radiating down into both arms (exhibit 18(c), page 17). Dr. Rooney described his findings at the January 27, 1985 exam as indicating a "flare-up" of symptoms which can be precipitated by a variety of emotional or physical events (exhibit 18(c), page 20). He was of the impression that most of the manifestations were secondary to rather significant muscle spasms [exhibit 3(x)]. Dr. Rooney did not examine claimant again until September, 1985 (exhibit 18(c), page 23). However, he received a phone call from claimant in May, 1985, wherein she related feeling better, but "she was freely admitting to some significant depression at that time" (exhibit 18(c), page 24). In his report of April 14, 1985, Dr. Rooney indicated that the natural history of conditions such as fibromyalgia, as well as many different types of arthritis, is one of remissions and exacerbations that do not necessarily have any predictable nature to them [exhibit 3(h)]. He indicated that claimant's condition had been precipitated by the original injury and that the injury had probably predisposed her to some secondary osteoarthritis which may have contributed to the difficulties she was suffering [exhibit 3(h)]. Over the next four months, Dr. Rooney attempted to adjust claimant's medication in order to accomplish maximum relief which included the prescription of Tolectin, Darvocet N100 and Elavil. During May, 1985, Dr. Rooney referred claimant to Dr. Hines for consultation [exhibit 3(x)]. Claimant began to consult with Dr. Hines on a weekly basis beginning May 14, 1985 [exhibit 4(a)]. Dr. Hines reported that claimant had experienced a reactive depression in response to the pain and disability which had become of such magnitude as to be disabling in and of itself [exhibit 4(a)]. The diagnostic impression was that of Dysthymic Disorder (DSMIII/300.40). Dr. Hines was of the opinion that claimant expressed a strong emotional investment in her work and derived much of her sense of self worth from her productivity [exhibit 4(a)]. Claimant's experience of pain had been so strong and so pervasive that she had been unable to perform domestic tasks, to participate in typical activity patterns and to be emotionally available to her family as well as being unable to return to employment outside the home [exhibit 4(a)]. She reported fears of rejection and abandonment by everyone including family and employer as a result of her decreased productivity and the fear of both tended to drive her efforts toward recovery and to fuel her depression as she found herself unable to perform [exhibit 4(a)]. During approximately April, 1985, Bil Cooper (rehabilitation counselor with North Central Rehabilitation) was employed by the defendants to assist claimant in a possible return to employment duties. The effort to.return claimant to employment was coordinated with Drs. Hines and Rooney, claimant and the employer. Exhibit 9(c) is a job analysis form that was prepared by Cooper specifically describing the nature of the employment duties to which claimant would return. The duties can be best described as extremely light and primarily sedentary. Approximately five percent of claimant's time would be spent lifting weights between 3-12 pounds. Approximately 75 percent of her time would be spent sitting. Cooper testified at hearing that the job description was about as light as was possible with the Federal Reserve Bank. Dr. Hines was in agreement that a third attempt to return to work was needed [exhibit 4(a)]. The plan was for Dr. Hines, Dr. Rooney, claimant, Bil Cooper and the employer to arrange for claimant's return to work on a limited basis. On September 7, 1985, claimant returned to Dr. Rooney for reevaluation. The doctor noted improvement in pain and discomfort although claimant appeared to be rather depressed. She exhibited decreased motion in the neck and there was noted again tender muscles in the cervical and thoracic area (exhibit 18(c), page 25). She also reported episodes of severe epigastric pain that awakened her at night. The medications of Nalfon, Elavil and Tylenol #3 were continued. Claimant attempted a return to these employment duties beginning September 9, 1985 and through October 22, 1985 with the exception of September 18, 19, 20, 25, 26, 30, October 1, 2, 9, and 10, 1985, when claimant missed entire work days. Beginning October 23, 1985 and continuing to the hearing date, claimant had not resumed employment duties. (From November 4, 1985 through December 13, 1985, claimant was absent from work for a non-work related condition.) On December 15, 1985, claimant was again evaluated by Dr. Rooney. She was continuing to complain of the same pain including pain and stiffness in the muscles of the cervical-thoracic region. Claimant, for the first time, related to Dr. Rooney that she had developed discomfort in the outer hip and low back (exhibit 18(c), pages 25, 48 and 49). She was using Elavil and Nalfon. She was also complaining of migraine headaches with visual symptoms. She reported headaches of a migraine variety as a young lady, but they had not reoccurred until only recently. Dr. Rooney recommended a prescription for a Jackson cervical pillow, whirlpool and ultrasound treatments, water exercises, neurologic consultation and a follow-up in 3-4 months. The neurologic consultation was carried out with Steven R. Adelman, D.O. Dr. Adelman was of the impression that claimant was suffering from classic migraine headaches (exhibit 7). Dr. Adelman was of the opinion that stress and muscle tension can precipitate the onset of migraine headaches, but that the same could be controlled through the use of medication and lifestyle modification [exhibits 7(c) and 7(d)]. Dr. Adelman was of the opinion that there was a "loose" association at best between the migraine headaches and the cervical fusion [exhibit 7(b)]. During the course of both the return to work and the subsequent discontinuing of her employment duties, claimant continued to consult with Dr. Hines. In his report of January 31, 1986 [exhibit 4(b)] he reported that, due to the intensity of the pain experience, it was necessary for claimant to terminate her recent efforts to return to work on a part-time basis. Dr. Hines continued in his opinion that claimant was strongly motivated to return to work, but was realistic about the needs of the employer to have someone on the job who is consistently productive [exhibit 4(b)]. Dr. Hines indicated that the job had become a source of continuing frustration to her and suggested that it might well be therapeutic for the job and related legal issues to be brought to a close [exhibit 4(b)]. Claimant was examined by Dr. Rooney on June 22, 1986 [exhibit 3(x)]. A complete neurological examination was unrevealing. By this time, claimant was able to discontinue smoking. Her pain was described as again in the cervical-thoracic area with some intermittent numbness in the shoulder and trapezius. The pain seemed to be aggravated by most kinds of activity. Claimant reported suicidal ideations which had improved recently. Dr. Rooney was of the opinion that she was continuing to suffer from chronic cervical muscular pain with some secondary osteoarthritis and also depression. He felt that she should see a psychiatrist for a change in her antidepressant medication with the prescription of either Orudis or Flexoril for clinical relief once the depression medication had been regulated (exhibit 18(c), pages 26 and 27). When seen on September 4, 1986, Dr. Rooney noted significant improvement (exhibit 18(c), pages 27 and 28). Claimant was referred to Hector W. Cavallin, M.D., with Dr. Cavallin first seeing claimant on June 30, 1986 [exhibit 8(b)]. Dr. Cavallin began claimant on Tofranil PM with the amount of medication being increased through the month of July. Dr. Cavallin did not feel claimant was able to return to work in the near future [exhibit 8(b)]. Dr. Cavallin indicated that it was difficult to know how well she would respond to the change in medication and whether her depression would improve sufficiently to allow her to return to work [exhibit 8(b)]. On or about July 15, 1986, Jo Ann Bennett, manager of operations of the Federal Reserve Bank, wrote to claimant informing claimant that, effective February 20, 1986, all benefits under the Workers' Compensation Act had ended (exhibit 4(c), page 2). Bennett informed claimant that, from February 20 until July 7, 1986, claimant had received payments for accrued sick leave. After July 7, 1986, claimant's status was changed to "ill without pay." Bennett asked for a commitment as to what date claimant intended to return to work and required a response by Friday, July 18, 1986, or claimant would be removed from the company's records as of said date. Dr. Hines [exhibit 4(d)], Dr. Rooney [exhibit 3(u)], and Dr. Cavallin [exhibit 8(b)] were all in agreement that, at that time, claimant was incapable of returning to her previous employment duties with the Federal Reserve Bank. Claimant testified that, at the present, she suffers from limitations of neck movement and limitations in her ability to use her hands above her head such as to wash her hair. She is in constant pain which interferes with her ability to concentrate. She reports that the motion of her head and neck is severely limited, both in her ability to rotate her head as well as to flex and extend same. She testified that a typical day would involve her arising at approximately 6:00 a.m., having coffee and breakfast with her husband, perhaps walking with a friend at her own pace for approximately 45 minutes, listening to relaxation tapes, performing light housework such as dusting and depositing clothing in a washing machine. All of the activities were described as activities that she conducted at her own pace. She reported lying on a heating pad on a daily basis. Pads were placed both on her recliner and davenport. Claimant ate lunch which she would prepare and then, in the afternoon, she would rest and perhaps watch television or read while lying in the recliner. Claimant usually prepared the evening meal for herself and for her husband, limited her standing to less than 30 minutes and was up and down as her tolerance for pain dictated. After the evening meal, claimant generally deposited her dishes in a dishwasher, watched some television, was up and down as her pain would tolerate, spent time lying on a heating pad and, on occasion, took an evening shower. Claimant testified to having had various hobbies, including toll painting, ceramics and sewing. She participates in no hobbies now. She is able to operate a motor vehicle, although she does have difficulty turning her head to observe traffic. Claimant reported that she feels herself to be a failure and she has been unable to successfully return to work. She reported that work was something that she enjoyed in that she enjoyed the sense of well-being and the sense of camaraderie that was shared with her fellow employees. She would like to return to work, but she really does not know what she can do. She cannot envision any easier work than what was offered by her employer. She feels frustrated and disappointed. She never thought she would end up as she is now. She is concerned about the future of her relationship with her husband. She feels she is not living up to her end of her marital commitments. She feels her goals of working until retirement after her children are gone, of traveling, of having security in the future and of developing and maintaining friendships have all been affected by this injury. Dr. Rooney is the medical director of the Arthritis Center and Rehabilitation Organization at Mercy Hospital Medical Center. He is board certified and specializes in rheumatology, arthritis and related disorders. Dr. Rooney testified that, in his opinion, there was a relationship between the January 29, 1982 incident and the initial diagnosis of chronic pain syndrome secondary to chronic cervical strain and significant secondary fibromyalgia (exhibit 18(c), page 9). Dr. Rooney explained that Nalfon was one of the medications prescribed which acts as an anti-inflammatory medication similar to aspirin, Motrin and Feldene. All of these drugs are similar in that they are helpful in reducing pain and/or inflammation depending upon the dosage that is used. He described Elavil as a tricyclic medication used in very high doses to treat endogenous depression and other associated disorders. Dr. Rooney was of the opinion that claimant's depression was related to her chronic pain syndrome (exhibit 18(c), page 12). He described fibromyalgia as a form of nonarticular rheumatism meaning a discomfort in the muscles and other soft tissues that surround the joints (exhibit 18(c), page 13). As a part of its manifestation, fibromyalgia often disrupts sleep, causes chronic pain with radiation into the arms or legs and causes trigger points on palpation upon direct examination at certain characteristic areas (exhibit 18(c), page 13). At the time of his initial assessment of claimant on June 19, 1984, he did not feel she was capable of returning to her employment duties with the Federal Reserve Bank and that such inability continued up until the time of her eventual part-time return during September, 1984 (exhibit 18(c), page 16). At the time of Dr. Rooney's examination of claimant during January, 1985, he noted that she suffered a "flare" which can be precipitated by over activity, stressful events or other emotional or physical trauma (exhibit 18(c), page 20). Dr. Rooney thought it would be probable that the factors of returning to work, the underlying depression and the presumed increased physical activity would all contribute to the flare noted during January, 1985 (exhibit 18(c), page 21). In a report dated October 20, 1986 [exhibit 3(w)], Dr. Rooney indicated that he reviewed all of claimant's cervical spine films from 1982 up to and including x-rays taken in May, 1986, for purposes of seeing whether there had been any interval change over that period of time. The first x-rays taken in May, 1982, revealed mild changes of osteophyte formation (evidence of osteoarthritis) at C5 and C6. Repeat post-surgery films revealed a stabilized cervical fusion without deterioration. The fusion remained stable over the four-year period. The only change noted was a little bit of osteophyte formation at C6 and C7 which had not been present in 1982 (see also, exhibit 18(c), pages 29 and 30). Dr. Rooney stated that claimant's initial film suggested that she had osteoarthritis and that the change noted is indicative of the natural history of the process of osteoarthritis. It was impossible for Dr. Rooney to state the cause of the changes over the four-year period because osteoarthritis is a slowly progressive disorder (exhibit 18(c), page 31). Nor could he state the effect of these changes upon her symptoms (exhibit 18(c), page 33). Since the disease is a gradual process, it was impossible for him to tell how long the condition had existed prior to the initial May, 1982 x-rays (exhibit 18(c), pages 46 and 47). Dr. Rooney has assigned a nine percent permanent partial functional impairment rating to claimant's body as a whole (exhibit 18(c), page 33). In his opinion, claimant's prognosis is fair. Although he believes it is likely she will continue to have exacerbations in the future, he thinks she would be able to return to work and yet be able to control at least a comfortable level of pain that was not disabling (exhibit 18(c), page 36). Despite optimal, maximal measures, claimant has not progressed as well as Dr. Rooney expected (exhibit 18(c), pages 36-38). Dr. Rooney did indicate that the opinions expressed in his deposition as well as reports were restricted to musculoskeletal manifestations and did not encompass the fields of psychiatry or psychology (exhibit 18(c), page 60). Dr. Bakody is a board-certified neurosurgeon practicing in Des Moines, Iowa. Dr. Bakody was of the opinion that there was a cause and effect relationship between falling at work and the ensuing surgery of May, 1982 (exhibit 18(d), page 7). Further, the doctor was of the opinion that there was a permanent physical impairment, both as a result of the change of the structure of the neck along with the surgery and the fact that there are continuing complaints (exhibit 18(d), page 13). The doctor referred to the Manual of Orthopedic Surgeons in Evaluating Permanent Physical Impairment and offered the opinion that claimant suffers from a 20% impairment of the body as a whole from a functional standpoint. Dr. Bakody indicated that he felt there was a relationship between the exacerbation of December, 1983 and the original injury and that he felt the manifestations of December, 1983 were a continuum of the earlier problem (exhibit 18(d), page 20). At the time of Dr. Bakody's January 9, 1984 evaluation of claimant, he related that claimant had not been working since December 29, 1983 and that, based upon the history as reported as well as his examination, he did not feel claimant was able to return to her employment during that time. Subsequent to the January 9, 1984 evaluation and continuing up to his final evaluation of claimant, Dr. Bakody reported a gradual improvement in her overall condition (exhibit 18(d), pages 22 and 23). He was of the opinion that her discomfort could be expected to continue for an indefinite amount of time into the future (exhibit 18(d), page 23). Dr. Cavallin is a psychiatrist licensed to practice medicine in the state of Iowa. Dr. Cavallin testified that claimant was suffering from a major depressive disorder and that she had been suffering from this disorder for a significant amount of time before he had first seen her (exhibit 18(e), page 4). The doctor indicated that the use of pain killing medication following claimant's surgery both affects the intellectual functioning of people who take the medication and also creates depression (exhibit 18(e), page 5). Dr. Cavallin described the function of the medication Tofranil in that it helps sleep, reduces depression and increases the tolerance for pain (exhibit 18(e), page 7). He described the effect of chronic pain and/or depression as creating chronic fatigue in that the patient loses energy and suffers from a loss of motivation and a loss of strength. It tends to limit the amount of physical activity and contributes to social withdrawal because a patient experiences relief from being quiet and from spending a rather sizeable amount of time resting, more than the usual person would (exhibit 18(e), page 7). Dr. Cavallin was of the opinion that the major depressive disorder appeared to have been triggered by the chronic pain syndrome which had been treated at the Mercy Pain Clinic during 1984 (exhibit 18(e), page 4). He indicated that claimant would be required to use Tofranil indefinitely. Dr. Cavallin was of the opinion that claimant was at the present unable to return to gainful occupational duties because the degree of her depression was so severe as to incapacitate her from any kind of gainful employment (exhibit 18(e), page 11). The doctor was also of the opinion that, in view of the course of the illness up to the present, her disability due to the depression is permanent and that he does not anticipate any significant change in the foreseeable future. As a consequence of no anticipated improvement in her depression, the doctor was of the opinion that she would not be able to perform gainful occupational duties in the future. He indicated that his involvement would be necessary into the indefinite future, but that it would be primarily limited to monitoring claimant's medication. Dr. Cavallin was of the opinion that claimant's condition, from a psychiatric standpoint, essentially stabilized since August 4, 1986 (exhibit 18(e), pages 16 and 17). Dr. Hines is a clinical psychologist licensed to practice psychology in the state of Iowa. He testified that claimant suffers from a diagnosis called dysthymic disorder, which basically means chronic depression. Based upon the history given and his examination of claimant, it was his clinical opinion that there was a relationship between her diagnosis and the pain that she suffered as a consequence of her work injury of January, 1982 (exhibit 18(f), page 6). He testified: It's my opinion that the depression arises wholly out of the injury and the pain experience. I have seen Joyce on some 75 occasions, which is a rather extensive, at least in terms of my practice, course of psychotherapy and have come to know her, I think, and the conditions of her life relatively well. As best I can discern, she was not depressed before her injury. There were no conditions or symptoms or expressions of significant depressions that I am aware of, and I know of no other factors in her life over the time that I have been acquainted with her or information that I have about other times that would indicate anything else as the cause other than her injury and her pain. (Exhibit 18(f), page 6). At the time claimant was first evaluated by Dr. Hines, Dr. Hines was of the opinion that she was incapable of performing or returning to her full range of employment duties with the Federal Reserve Bank (exhibit 18(f), page 6). Dr. Hines described depression as something that does not occur overnight, but rather is a result of a gradual building process (exhibit 18(f), page 8). Dr. Hines expressed the opinion that a particular episode is not necessary to cause depression, but rather, in light of his knowledge of claimant, there would either not be a particular event or else it would be difficult to determine one particular event simply because claimant would have a tendency to deny and suppress and try to work over or work through any particular kind of event that would contribute to the depression (exhibit 18(f), pages 9-10). Dr. Hines testified that he felt an attempt to return to work would be therapeutic and thus he cooperated in the attempt to return Joyce to employment duties during 1985 (exhibit 18(f), pages 12-13). Dr. Hines reported that claimant's motivation continued at a very high level, but that her pain experience was simply not going to allow her to do the work she wanted to do (exhibit 18(f), page 14). Following her efforts to return to her employment duties during 1985, the doctor described that, when she would come to his office, she would be dysfunctional (exhibit 18(f), page 14). She was a mess, which is to say she was in so much pain that it was hard for her to get here. It was hard for her to get up out of a chair in the waiting room. Once we got her down in here, it was hard for her to get up and down. She could not sit still. The pain experience was very strong. She was in tears all the time, just could not stop crying. She would literally cry from the moment she hit the door until the moment she left. She was then 60 minutes in tears. (exhibit 18(f), page 14). Dr. Hines opined that emotional turmoil interferes with concentration, memory, attention span, and can be so specific as to disorient a person (exhibit 18(f), page 15). Dr. Hines indicated that the July 15, 1986 letter from the Federal Reserve Bank directed to claimant informing her that she would be dropped from the work roles had a very significant effect upon her (exhibit 18(f), pages 17 and 18). Dr. Hines explained that claimant has carried a deep-seated fear of abandonment, that she was strongly connected to her work and to the particular job and that the letter emotionally carried her back into her fear of abandonment (exhibit 18(f), page 18). In Dr. Hines' opinion, following the final attempt to return to occupational duties in 1985, claimant reached her psychological plateau at or about the time of Dr. Hines' referral to Dr. Cavallin (exhibit 18(f), page 19). Claimant's prognosis from a psychological standpoint is that her condition will flare on occasion and, when it does, she will need more therapeutic intervention (exhibit 18(f), page 21). Dr. Hines is of the opinion that it is highly improbable that she could carry on the necessary duties of employment (exhibit 18(f), page 23). Dr. Hines confirmed the opinions expressed in his report of January 20, 1987 [exhibit 4(e)] that claimant is totally and permanently vocationally disabled and he does not anticipate that this condition will improve in the foreseeable future. Dr. Hines indicated that psychotherapy will probably be necessary at least one time per month for life (exhibit 18(f), page 21). The purpose of the continued therapeutic treatment is to keep claimant from getting any worse as far as the depression is concerned, particularly to ward off any need for mental health unit hospitalization, and also to guard against any suicidal impulses that might arise (exhibit 18(f), page 20). Scott B. Neff, D.O., is a board-certified orthopedic surgeon. He examined claimant on one occasion during September, 1986. Dr. Neff was of the opinion that claimant suffers from a loss of motion and chronic achiness that occurs in the neck and muscles of the neck as a consequence of her cervical fusion. Dr. Neff initially expressed the opinion that claimant suffered a 10% functional impairment of the body as a whole because of the neck injury, cervical fusion, resulting loss of motion and the persistence of neck soreness and neck pain (exhibit 18(a), page 29). Dr. Neff recommended that claimant not be asked to do heavy manual labor and not be in a work place function whereby she has to do repetitive side-to-side or flexion/extension activity of the neck (exhibit 18(a), page 33). Dr. Neff felt claimant has one legitimate medical problem. She has had a cervical fusion resulting in loss of motion and chronic pain in the neck (exhibit 18(a), page 25). He does not know of any way anatomically that such a condition would result in pain radiating down the legs and into the feet or cause headaches in the front part of her head (exhibit 18(a), page 25). He further stated that he has examined numerous patients who suffer from chronic pain syndrome and reactive depression and he has never found any such individual to be permanently disabled from gainful employment (exhibit 18(a), pages 27-28). It is Dr. Neff's opinion that claimant has a 10% impairment to the body as a whole based on persistence of neck pain (exhibit 18(a), page 29), although he would have no difficulty in agreeing with Mr. Bower's 15% rating (exhibit 18(a), page 34). There is no question in Dr. Neff's mind that claimant is physically capable of gainful employment in an office-type environment (exhibit 18(a), page 33). Dr. Neff did confirm that there was more than simply a musculoskeletal component to the injury which was in part confirmed by the symptom magnification profile that was completed (exhibit 18(a), page 40). Dr. Neff conceded that claimant has undergone significant deconditioning over the past 3 1/2 years since she last worked, that claimant does not fit within the average parameters of strength for a person of her size and age and that she could not be expected to do manual labor at any point in the future (exhibit 18(a), page 42). Dr. Neff confirmed that the opinions he has expressed as far as claimant's ability to perform office type sedentary work would be from a musculoskeletal standpoint only (exhibit 18(a), page 34). Thomas W. Bower is a licensed physical therapist. He conducted a functional capacity evaluation of claimant in an attempt to describe her overall abilities to function (exhibit 18(b), page 7). Mr. Bower reported that her functional capacity placed her within the light/medium category which means that she could infrequently lift 35 pounds and frequently would be able to lift 25 pounds or less (exhibit 18(b), page 16). He expressed the opinion that claimant was a borderline symptom magnifier which means that the individual's behavior is out of proportion to the organic findings (exhibit 18(b), page 19). Mr. Bower was of the opinion that claimant should be able to perform the occupational duties that were attempted during the fall of 1985 (exhibit 18(b), pages 25-26). However, Mr. Bower did confirm that the opinions he expressed with regard to the job description for the position created in the fall of 1985 would be from a musculoskeletal standpoint only (exhibit 18(b), page 29). He confirmed that once deconditioning takes place, it makes it extremely difficult to rehabilitate the person and get them back to a functioning level. He indicated that a 3 1/2 year period of time where an individual has been off work, such as claimant, would make a work hardening process much more improbable (exhibit 18(b), page 30). Mr. Bower confirmed that, from a musculoskeletal standpoint, claimant suffers a 15% functional impairment of the body as a whole (exhibit 18(b), page 32). Mr. Bower was not aware that claimant had been diagnosed as suffering from chronic depression (exhibit 18(b), pages 36 and 37) and that chronic depression could have an impact upon the findings he noted (exhibit 18(b), page 37). Mr. Bower confirmed that, if claimant had attempted to return to the duties as described in exhibit 9(c), and was unable to perform those duties, a question would be posed as to why claimant could not function in a job placed within those restrictions (exhibit 18(b), page 40). It may mean that there would be other concerns such as psychological or psychiatric concerns that would be beyond the area,of Mr. Bower's admitted expertise which may in some fashion affect claimant's ability to perform the occupational duties described in exhibit 9(c), (exhibit 18(b), page 40). Exhibit 15 sets out claimant's prescription medication usage and costs since February 8, 1982. It shows that claimant has advanced $178.00 from her own funds which has not been reimbursed by the defendants. Exhibit 17 sets out claimant's mileage expenses. Exhibit 19 sets out the total amount of temporary partial disability, temporary total disability/healing period, and permanent partial disability benefits paid and the respective dates thereof. Exhibit 20 reflects that the employer continued to pay claimant's salary while absent from work until approximately the second month of 1986 and that the total amount of salary paid over and above workers' compensation benefits was $6,871.14. Kim Rhoads, testifying on behalf of the Bank, stated that she is presently employed at the Bank as supervisor of the night force, although most of her work experience with the Bank has been in its human resources department. She has been a Bank employee since February, 1982. Ms. Rhoads described the specific duties of the "check processor" position to which claimant returned in September, 1985. The position entailed receiving and comparing bookkeeping machine tapes for accuracy. The duties were performed while seated at a desk. No machinery was required other than an adding machine. Other than carrying a "block" of tapes from a cart to her desk, no lifting was required. (Claimant testified these "blocks" weighed approximately one pound.) Claimant was free to stand, walk or rest as she needed. Ms. Rhoads further testified that she researched and prepared exhibit 20 which evidences the amount of salary paid to claimant by the Bank over and above her weekly workers' compensation benefits. The Bank's policy is to pay employees on workers' compensation full salary, less compensation benefits. Ms. Rhoads stated that the Bank is willing to return claimant to employment. Although the "check processor" position is presently filled, she testified that there is a high rate of turnover in the position, especially in the night force, and that as soon as the position opened, claimant could return to work. Bil Cooper testified that he is owner of Cooper Consultants, a vocational rehabilitation firm, and has been employed as a rehabilitation consultant with his firm for one year. Previously he was a vocational rehabilitation counselor with North Central Rehabilitation Services for three years. While with North Central, he was retained by the Bank's insurance carrier on April 16, 1985 to evaluate claimant for vocational rehabilitation purposes. Thereafter, Cooper contacted claimant, her physicians and Bank personnel and, in consultation with these individuals, developed a "work hardening program" with a view towards returning claimant to employment with the bank. Cooper received from Dr. Rooney a capacity evaluation concerning restrictions upon claimant's physical activity [exhibit 9(d)]. He then developed an employment position with the Bank which would meet or be less taxing than the criteria set by Dr. Rooney. The position developed was that of "check processor." Cooper then set forth a description of the check processor's duties to both Dr. Rooney and Dr. Hines for their approval on a "job analysis" form [exhibit 9(c)]. Both Dr. Rooney and Dr. Hines approved claimant's return to work as a check processor (exhibit 18(f), page 30; exhibit 18(c), page 44). The plan under the work hardening program was to return claimant to work at the new position on a part-time basis and gradually thereafter to full-time. Claimant returned to work at the new position on September 9, 1985. Cooper accompanied her to work and maintained close contact with claimant as to her progress. Cooper testified that he could not think of a more sedentary job than that which claimant performed as a check processor. He did not recall claimant complaining of any physical problems with the job. The Bank was very cooperative and allowed claimant to rest or take breaks at will. During the first 30 work days of the program, claimant failed to report to work on 20 occasions (exhibit 13). She absented herself from work on November 4, 1985 for gall bladder surgery and has not returned to work since. Cooper was not satisfied with claimant's efforts toward the work hardening program and did not feel claimant cooperated in the effort. APPLICABLE LAW AND ANALYSIS The claimant has the burden of proving by a preponderance of the evidence that the injury of January 29, 1982 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.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Defendants do not dispute that claimant sustained some permanent impairment and permanent disability in the cervical area of her spine as the result of the January 29, 1982 injury. The real issue in the case is the relationship between the January 29, 1982 injury and claimant's claimed inability to be gainfully employed due to a major depressive disorder. The facts of this case as it began to unfold were relatively unremarkable. Claimant fell and then sought medical treatment when her condition did not resolve promptly. A trial of conservative treatment was employed, but without success. Surgery was eventually performed. Following the surgery, claimant returned to her work, which was sedentary in nature. From the evidence presented, it appears that, as of October 16, 1982, when claimant resumed full-time duties, the expectation was that she would make a relatively full recovery and continue with her employment. She, in fact, continued to work and perform the duties of her employment in an apparently satisfactory manner, as shown by her employee evaluations (exhibit 12). However, in December, 1983, she began missing work and again sought medical care. Although there have been two subsequent efforts for claimant to resume her employment, both have met with failure. Drs. Cavallin and Hines have both expressed the opinion that claimant suffers from a major depressive disorder that was induced by the pain which she experienced from the condition that resulted from her January 29, 1982 fall. There is some evidence in the record that claimant may have had some problems in her relationship with her husband, but that evidence appears to be quite remote and relatively less significant to claimant's depressive disorder than is the pain resulting from the January 29, 1982 injury. From the evidence, it appears that the pain feeds the depression and that the depression feeds the pain. The symptom magnification exhibited to Mr. Bower is as likely a symptom of the depression as it is any indication of exaggeration of complaints. The evidence does not contain a single opinion from a medical professional which disputes the diagnosis of depression that has been made. It is therefore found that claimant is afflicted with a major depressive disorder which was proximately caused by the injuries she sustained in the fall that occurred on January 29, 1982. Dr. Neff indicated that some degree of depression is not uncommon following a relatively serious injury or surgery. A depression of the magnitude that has been diagnosed by Drs. Cavallin and Hines is not, however, what normally occurs. For claimant to have developed the major depressive disorder, it would seem likely that she was in some way predisposed or susceptible to developing the disorder. 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.2d 756, 760-761 (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, 815 (1962). An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960), an cases cited. An employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber, Co., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 (1960). See also Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. Blacksmith v. All American, Inc., 290 N.W.2d 348, 354 (Iowa 1980). A disability of the magnitude claimant experiences does not normally occur following an injury of the type which she experienced. The injury is, nevertheless, a proximate cause of the disability with which she is now afflicted. Claimant's injury was initially to her cervical spine and she now has a major depressive disorder. Neither condition is a scheduled member and the parties correctly stipulated that her disability should be evaluated industrially. If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." 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). Claimant seeks to rely on the odd-lot doctrine. Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985). The Federal Reserve Bank has treated claimant quite fairly throughout the entire course of events that are the subject of this proceeding. Claimant has been given fine medical treatment. The employer made good faith efforts to enable claimant to resume employment. Unfortunately, the efforts were not successful. Drs. Cavallin and Hines have indicated that, in their opinions, claimant is not capable of being gainfully employed due primarily to her depressive disorder. The physicians who have dealt with her physical state, namely, Drs. Neff and Bakody, have found no reason why claimant should not be able to be gainfully employed. A cervical fusion does not normally make an individual unable to perform sedentary employment. If this case was typical, claimant would have remained at work up to the present time and indefinitely into the future following her return on October 16, 1982. That is not, however, what occurred. There is no expert medical evidence in the record which indicates that claimant's emotional disorder is not disabling. There is no expert medical evidence in the record which indicates that the emotional disorder is not permanent. To the contrary, the unrebutted evidence from Drs. Cavallin and Hines shows claimant's emotional disorder to be totally disabling and to be of indefinite and indeterminable duration, if not permanent. The only evidence in the record which detracts from the opinions expressed by Drs. Cavallin and Hines is: (1) that a major depressive disorder does not normally occur following an injury of the type claimant sustained; (2) the fact that secondary gain may be a factor; and (3) the physical impairment resulting from the cervical fusion would not normally prevent a person from performing sedentary employment. It is found that those factors are not sufficiently strong to overcome the clear, unrebutted opinions of Drs. Cavallin and Hines. Claimant is therefore found and determined to be permanently and totally disabled within the meaning of Iowa Code section 85.34(3). The date that claimant's healing period ended is not of any particular importance in view of the finding of permanent total disability. It is clear that claimant was not permanently and totally disabled when she resumed full-time work on October 16, 1982. She did, however, have some degree of permanent partial disability at that time and was entitled to receive compensation for permanent partial disability. It is determined that her permanent partial disability, on October 16, 1982, based upon the information that was available on that date, would have presented a disability of approximately 15% permanent partial disability. Such would have provided an entitlement of 75 weeks of benefits. Claimant worked on a full-time basis for 60 5/7 weeks and then began missing work again commencing December 13, 1983. When she began missing work, her entitlement to compensation for healing period resumed. That entitlement continued until the point that it became medically indicated that further significant improvement from the injury was not anticipated under the provisions of Iowa Code section 85.34(1). Teel v. McCord, 394 N.W.2d 405 (Iowa 1986); Thomas v. William Knudson & Son, Inc., 349 N.W.2d 124, 126 (Iowa App. 1984); Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa App. 1981). It is therefore determined that claimant's healing period ended on October 23, 1985, the last day of her last attempt to return to work. An injured worker is not entitled to receive both healing period and compensation for permanent disability from the same injury on any given day. It must be one or the other. In this case, claimant was paid her full salary to supplement workers' compensation benefits. She was either receiving healing period, permanent partial disability, temporary partial disability, her regular salary or some combination. Up to the date of October 23, 1985, claimant had clearly been paid all that was due to her under the workers' compensation system through the combination of workers' compensation benefits and the employer's salary continuation policy. While the excess of the salary continuation over and above the workers' compensation benefits does not constitute a credit towards future workers' compensation liability, the amounts paid as salary do satisfy the workers' compensation liability for the weeks for which the salary was paid. (Division of Industrial Services Rule 343-8.4). For purposes of the record, however, the healing period should be specified. Claimant's healing period, determined in accordance with section 85.34(1), is as follows: February 9, 1982 through February 22, 1982 (2 1/7 weeks) May 6, 1982 through August 22, 1982 (15 4/7 weeks) December 13, 1983 through December 16, 1983 (4/7 week) December 23, 1983 (1/7 week) December 30, 1983 through September 23, 1984 (38 2/7 weeks) November 13, 1984 through December 9, 1984 (3 6/7 weeks) January 4, 1985 through September 8, 1985 (35 3/7 weeks) Total -- 96 weeks Claimant is also entitled to receive temporary partial disability in accordance with Iowa Code section 85.33(2) for the following periods: August 23, 1982 through October 15, 1982 (7 5/7 weeks) September 24, 1984 through November 12, 1984 (7 1/7 weeks) December 10, 1984 through January 3, 1985 (3 4/7 weeks) September 9, 1985 through October 22, 1985 (6 2/7 weeks) Total -- 24 5/7 weeks Claimant also seeks to recover costs. Division of Industrial Services Rule 343-4.33 controls costs in proceedings before this agency. The costs claimed are found in exhibit 13. All of the depositions for which claimant seeks to recover costs were received into evidence and reporting and transcription fees incurred in obtaining depositions are recoverable under Iowa Rule of Civil Procedure 157(a). Woody v. Machin, 380 N.W.2d 727 (Iowa 1986). Expert witness fees are limited, however, to $150.00 as provided by Iowa Code section 622.72. The costs recoverable by claimant are therefore as follows: Rooney report $100.00 Hines report 90.00 Bakody expert witness fee 150.00 Cavallin expert witness fee 150.00 Rooney expert witness fee 150.00 Hines expert witness fee 150.00 Bakody deposition reporter fees 143.50 Hines deposition reporter fees 157.00 Cavallin deposition reporter fees 83.25 Rooney deposition reporter fees 242.00 Total $1,415.75 FINDINGS OF FACT 1. On January 29, 1982, Joyce D'Ostilio was a resident of the state of Iowa employed by Federal Reserve Bank in Des Moines, Iowa. 2. Joyce D'Ostilio was injured when she fell in the parking lot of the employer's place of business on January 29, 1982. 3. Following the injury, claimant continued to work through February 8, 1982, but then sought medical treatment which took her off work from February 9, 1982 through February 22, 1982. Claimant was again absent from work from May 6, 1982 through August 22, 1982 for purposes of medical treatment. She returned to Work part-time on August 23, 1982 and resumed full-time duties on October 16, 1982. Thereafter she continued to work full-time until December 13, 1983. Commencing on December 13, 1983, claimant began missing work and has not since made a sustained, long-term return to work, although she has attempted to return to work on a part-time basis on three separate occasions. 4. During all of the times claimant was absent from work, she was medically incapable of performing work in employment substantially similar to that she performed at the time of injury. 5. Claimant reached the point it was medically indicated that further significant improvement from the injury was not anticipated on October 23, 1985. In all, claimant accumulated a total of 96 weeks when she was in a healing period status and 24 5/7 weeks when she was temporarily partially disabled and working part-time. She has been paid all weekly benefits due prior to October 23, 1985. 6. Claimant is a credible witness. 7. Claimant's injury was the herniation of cervical disc for which cervical fusion surgery was performed. 8. Claimant initially made a relatively normal recovery, but then developed a chronic pain syndrome which, in turn, developed into a major depressive disorder which is currently her primary medical problem. 9. The fall which claimant sustained on January 29, 1982 was a substantial factor in producing the depressive disorder with which claimant is currently afflicted. 10. Drs. Cavallin and Hines are correct in their assessment that claimant is presently totally disabled from performing gainful employment and that she is likely to remain so disabled for an indefinite period of time. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. Claimant's fall in the employer's parking lot on January 29, 1985 is a proximate cause of the physical impairment in her cervical spine, the pain she experiences in the cervical spine, the chronic pain syndrome which she has developed and the major depressive disorder with which she is currently afflicted. 3. Claimant's depressive disorder is an injury which arose out of and in the course of her employment with the Federal Reserve Bank. 4. Claimant is permanently and totally disabled within the meaning of Iowa Code section 85.34(3). 5. Claimant is entitled to receive 96 weeks of compensation for healing period, all of which has previously been paid by the employer and its insurance carrier. 6. Claimant is entitled to receive 24 5/7 weeks of temporary partial disability compensation, all of which has previously been paid by the employer and its insurance carrier. 7. Claimant is entitled to receive 60 5/7 weeks of compensation for permanent total disability payable commencing October 16, 1982, all of which has previously been paid by the employer and its insurance carrier. 8. Claimant is entitled to receive compensation for permanent total disability for so long as she remains permanently and totally disabled commencing October 23, 1985. 9. Claimant is entitled to recover costs from the defendants in accordance with Division of Industrial Services Rule 343-4.33 in the amount of $1,415.75. ORDER IT IS THEREFORE ORDERED that defendants pay claimant compensation for permanent total disability commencing October 23, 1985 at the rate of one hundred sixty-nine and 68/100 dollars ($169.68) per week and continuing for so long as claimant remains totally disabled from gainful employment. IT IS FURTHER ORDERED that defendants receive credit for all amounts previously paid and, in the event any amounts are past due and owing, such amounts shall be paid in a lump sum together with interest pursuant to section 85.30 of The Code of Iowa. IT IS FURTHER ORDERED that defendants pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33 in the amount of one thousand four hundred fifteen and 75/100 dollars ($1,415.75). 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 9th day of March, 1988. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Steven C. Jayne Attorney at Law 5835 Grand Avenue Suite 201 Des Moines, Iowa 50312 Mr. George H. Capps Attorney at Law 1332 Grand Avenue W. Des Moines, Iowa 50265 1108.20, 1402.30, 1402.40 1701, 1804, 2907, 4100 Filed March 9, 1988 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER JOYCE D'OSTILIO, Claimant, vs. File No. 753117 FEDERAL RESERVE BANK, R E V I E W - Employer, R E 0 P E N I N G and D E C I S I 0 N THE HARTFORD INSURANCE GROUP, Insurance Carrier, Defendants. 1108.20, 1402.30, 1402.40, 1701, 1804, 2907, 4100 Claimant fell sustaining a herniated cervical disc. Fusion surgery was performed. After relatively normal recovery, she returned to work. Approximately one year later, she began missing work and seeking medical care due to complaints of severe pain. Claimant's condition generally deteriorated and, at the time of hearing, the only expert medical opinions in the record indicated that she was permanently and totally disabled due to a major depressive disorder which had arisen as a result of her chronic pain. Claimant urged that she was permanently and totally disabled and sought assistance from the odd-lot doctrine. The odd-lot doctrine was not discussed, but permanent total disability was awarded based on the uncontroverted medical opinions from a psychiatrist and a psychologist. The employer was granted a credit on a week-for-week basis for its salary continuation program, but no credit was allowed for the excess of salary over the workers' compensation liability as against future workers' compensation benefits. Costs in the nature of reports, expert witness fees and report and transcription fees were assessed.