BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : CHRISTINE VAN WEY, : : Claimant, : : vs. : : File Nos. 848411/758597 H. J. HEINZ, : : A P P E A L Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE Defendants appeal from an arbitration and review-reopening decision awarding permanent total disability benefits as the result of an alleged injury on November 9, 1985. The record on appeal consists of the transcript of the arbitration proceeding; defendants' exhibits A through J, L through P; and claimant's exhibits 1 through 3. Both parties filed briefs on appeal. Defendants filed a reply brief. ISSUES Defendants state the following issues on appeal: 1. Did the Deputy err in concluding that Claimant's current disability was causally connected to her work injury of November 9, 1985? 2. Did the Deputy err in concluding that Claimant is totally and permanently disabled? FINDINGS OF FACT The findings of fact contained in the proposed agency decision filed February 27, 1991 are adopted as final agency action. CONCLUSIONS OF LAW The conclusions of law contained in the proposed agency decision filed February 27, 1991 are adopted as final agency action, as modified by the following additional analysis: Claimant has failed to show good motivation to return to work or to find alternative work. Claimant failed to Page 2 fully cooperate with the vocational rehabilitation program set up for her. Claimant indicated she quit the program because she did not feel it was benefitting her, and that the vocational rehabilitation people were not trying to find a job for her. Claimant has not established that the vocational rehabilitation program was in any way defective or not properly designed for her needs. An injured worker cannot subjectively reject proffered rehabilitation services, then seek compensation from defendants for disability that defendants tried to alleviate through vocational rehabilitation efforts. By failing to cooperate and complete the vocational rehabilitation program, claimant has possibly caused a portion of her own present disability. Defendants cannot be held responsible for the results of claimant's noncooperation. Because of this, claimant cannot be said to have shown that all of her present disability was caused by her work injury. The possibility has now been raised by claimant herself that a portion of her present disability might have been alleviated if the vocational rehabilitation program had been completed. Claimant bears the burden to show her entitlement to benefits. The action by defendants in acceding to claimant's efforts to retire and obtain a pension by acknowledging she is disabled is of limited weight in this case. Under the totality of the circumstances, defendants were accommodating a request by claimant and the acknowledgement is viewed in that light. Subsequent to her November 9, 1985 injury, claimant received ratings of impairment of 53 percent of her right leg, and an additional 10 percent for her back condition. Claimant is 41 years of age, and has a high school education plus approximately 30 credit hours of college. Claimant's primary work experience is as a factory worker. Although claimant cannot return to this type of work, claimant is young enough to be retrained. As noted above, claimant's motivation to find alternative work is affected by her unwillingness to complete the vocational rehabilitation program. However, claimant has commendably sought to begin retraining herself with a course in accounting. Also, defendants have made an effort to accommodate claimant and have offered vocational rehabilitation. Based on these and all other factors of industrial disability, claimant is determined to have an industrial disability of 60 percent as a result of her work injury of November 9, 1985. Claimant is therefore entitled to an award of 300 weeks of permanent partial disability. The claimant's healing period and onset of permanency will be as stipulated by the parties. An apportionment for claimant's prior disability is not appropriate. Claimant's prior injury was limited to the right leg. Claimant's present injury is to the right leg and back. Claimant now has a rating of 53 percent impairment of the right leg and 10 percent impairment of the Page 3 back. Claimant's right leg had a rating of 25 percent impairment from her prior injury. In assessing claimant's industrial disability as a result of this injury, only that portion of claimant's right leg impairment resulting from this injury is considered, along with the impairment of her back. Functional impairment is only one factor of industrial disability. WHEREFORE, the decision of the deputy is affirmed and modified. ORDER THEREFORE, it is ordered: That defendants are to pay unto claimant healing period benefits at the rate of two hundred twenty two and 03/100 dollars ($222.03) per week, for the following periods: November 14, 1985 through March 16, 1986; June 6, 1986; and October 20, 1986 through October 25, 1987. That defendants are to pay unto claimant three hundred (300) weeks of permanent partial disability benefits at the rate of two hundred twenty two and 03/100 dollars ($222.03) per week from October 26, 1987. That defendants shall pay accrued weekly benefits in a lump sum. That defendants shall pay interest on unpaid weekly benefits awarded herein as set forth in Iowa Code section 85.30. That defendants are to be given credit for benefits previously paid. That defendants shall pay the costs of this matter including the transcription of the hearing. That defendants shall file claim activity reports as required by this agency pursuant to rule 343 IAC 3.1(2). Signed and filed this ____ day of July, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Michael J. Motto Attorney at Law 1000 First Bank Center Davenport, Iowa 52801 Page 4 Mr. Greg A. Egbers Attorney at Law 600 Union Arcade Building 111 East 3rd Street Davenport, Iowa 52801 1803 Filed July 7, 1992 BYRON K. ORTON BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : CHRISTINE VAN WEY, : : Claimant, : : vs. : : File Nos. 848411/758597 H. J. HEINZ, : : A P P E A L Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1803 Claimant with 10 percent impairment of the back and approximately 28 percent increase in impairment of the right leg over a prior injury, 41 years of age, high school education and one year of college, was awarded 60 percent industrial disability. Claimant could not return to factory work. Claimant was offered vocational rehabilitation by the employer, but subjectively quit the program without good cause. However, claimant did enroll in an accounting course. Page 1 before the iowa industrial commissioner ____________________________________________________________ : CHRISTIEN VAN WEY, : File No. 758597 : 848411 Claimant, : : A R B I T R A T I O N vs. : : A N D H. J. HEINZ, : : R E V I E W - Employer, : : R E O P E N I N G and : : D E C I S I O N LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This case came on for hearing on January 25, 1991, in Davenport, Iowa, wherein claimant seeks compensation for additional permanent partial disability benefits in a review-reopening case involving file No. 758597 and seeks permanent partial disability benefits due to a right lower extremity injury and a back injury occurring on November 9, 1985, represented by file No. 848411. The record in the proceeding consists of the testimony of claimant and Kendall Kelly; and joint exhibits A through N. issues The issue for resolution in both cases is the extent of permanent disability to claimant's lower right extremity, a scheduled member injury. The additional issues for resolution in regard to file No. 848411, the arbitration case, are: 1. Whether claimant's alleged back injury is causally connected to claimant's work injury on November 9, 1985; and 2. The nature and extent of claimant's permanent disability and entitlement to disability benefits as to any alleged back injury. Page 2 findings of fact The undersigned deputy having heard the testimony and considered all the evidence, finds that: Claimant is now known as Christine Hutchinson, having remarried on September 23, 1989. Claimant is a 41-year-old high school graduate and has completed thirty credit hours at Muscatine Community College, the last classes being last fall. She is currently in some home study courses. Claimant is interested in accounting and needs a total of 84 credit hours in order to complete her degree. Claimant indicated she temporarily stopped the classes due to a Mayo Clinic one week appointment. Prior to beginning working for defendant employer in August 1981, as a factory worker, claimant worked at various jobs which are set out in Joint Exhibit A, page 2. Claimant described her various jobs with defendant employer. She was a filler operator in October 1983 when she slipped and fell on the floor while attending to a jammed can in a machine. Claimant hurt her right knee in this incident. She said she continued to have pain and obtained treatment up to November 9, 1985, when she was injured again. Claimant indicated she did not injure her back in the October 1983 slip and fall. Claimant went back to work for two months for defendant employer, when, on November 9, 1985, she slipped on some gravy while standing on a platform. Claimant said a can was jammed in a machine and when she tried to stop the machine line, she slipped and went into the air and hurt her back and right leg. Claimant explained why some of the records may indicate medical attention was given mainly to her right leg and not her back. Claimant insisted her back injury was mentioned to the doctors but she understood that unless her knee problem was solved, her back problem could not be adequately treated or healed because her knee condition aggravates her back. Claimant indicated the doctors did not recommend back surgery until her knee healed. Claimant related that her back has always been painful since her November 9, 1985 work accident and that one doctor would be treating her back while another would be treating her knee. Claimant has been to Mayo Clinic for knee treatment as recently as January 14, 1991. Claimant indicated she is unable to squat and her leg twitches constantly. Because of the nature of this case and the controversy herein, the undersigned observed claimant. The undersigned believes claimant is in extreme pain while sitting, standing and walking. There were many observations by the undersigned in which claimant would not necessarily know she was being observed. The undersigned at times noticed the leg twitching and claimant's hand shaking. There were questions concerning why the vocational rehabilitation-fitness center program was terminated. Page 3 Claimant contends she was given a lot of tests that were of no rehabilitation purpose and she wanted to be rehabilitated so a job could be found. She said she was told there were no jobs available. She drove one and one-half hours to the center and said the pain was too great for what she was getting out of the program. She emphasized she did not quit vocational rehabilitation program but that she quit the repeated testing. Claimant appeared depressed. She understands there is no long-term cure for her back until her right knee is cured and she has been told there is no current cure for her knee problem. Claimant said she can't go up and down steps or climb stairs. She cannot wear tight shoes, nylons, jeans and that walking aggravates her problem. Claimant has seen several neurologists and orthopedists. She understands that if she has surgery to sever the nerve, the side effects would be terrible. Therefore, surgery has not been recommended by the various specialists. Claimant is on social security and welfare benefits which is the only current source of income she has. Claimant said she was taking accounting courses so she could try to work out of her home. Claimant attempted to return to work but was unable to perform the work. Claimant began receiving social security benefits in December 1989. She emphasized she still has the desire to return to work. Claimant acknowledged she received $21,500 from a life insurance company on a policy to which she and defendant employer contributed. These proceeds are obtainable if a person is determined to be totally disabled. Defendant employer agreed with that determination which enabled claimant to receive this lump sum. Defendant employer contends they agreed to the total disability based on claimant's knee condition and not because of her back. Kendall Kelly, the personnel manager for defendant employer, indicated there were jobs still available within claimant's restrictions as of June 13, 1988, the last day claimant worked for defendant employer. He acknowledged claimant applied for and obtained a lump sum from the employer-employee funded disability policy due to being determined totally disabled. Defendants and another insurance company agreed to this conclusion. Defendant employer then considered claimant ceased employment with them upon receiving this money. Mr. Kelly indicated this determination was based on claimant's pain in her right leg. Gerald Hale, D.O., an anesthesiologist, testified through his deposition on February 20, 1989 (Jt. Ex. M). His first contact with claimant was on October 27, 1986, in reference to a consultation regarding claimant's chronic right knee pain and her condition known as reflex sympathetic dystrophy. The doctor described his medical treatment of the claimant which involved a knee surgery in November 1986, which was claimant's third or fourth surgery since her October 28, 1983 right knee injury. The doctor described how he performed the block of Page 4 claimant's sympathetic nerves in October 1986 (Jt. Ex. M, p. 8). He then performed two sympathetic nerve blocks in January of 1987 (Jt. Ex. M, p. 10). He was asked to explain the procedure he goes through to administer a sympathetic block: A. ....Sympathetic nerves are nerves that parallel the spinal cord, and we find that if we can block the nerves at that level then we can essentially reduce the amount of pain in the knee, so it is the form of a spinal anesthetic that was received. .... A. In the initial treatment of reflex sympathetic dystrophy we normally set a patient up in a series of blocks. We normally find that with each block the duration of relief is no longer. This is usually in the acute setting, and a person in a chronic setting certainly has a condition that is more difficult to reverse. Q. Are you saying there that Chris's situation is chronic? A. Yes, at this point she was right at three years from the initial injury. (Jt. Ex. M, p. 12) Claimant had another continuous epidural block for two days in March 1987. These blocks involve sticking needles directly in the spine and inserting a catheter along the spinal canal (Jt. Ex. M, p. 12). Additional sympathetic blocks were done May 5 and 13, 1987 and February 1988. Dr. Hale said claimant received other blocks between May of 1987 and February 3, 1988, at the University of Iowa Hospitals. Dr. Hale said claimant has not been able to have any lasting or significant relief on any permanent basis. (Jt. Ex. M, p. 14). Dr. Hale testified he did not treat claimant for any low back problems, but said claimant complained of low back problems. He did say he treated claimant for hypertension which he found to be aggravated by low blood sugar due to a reaction to the block (Jt. Ex. M, p. 19) and this caused him to alter the reflex sympathy dystrophy treatment. The records of William Catalona, M.D., on November 11, 1985 (Jt. Ex. B, p. 11) reflect claimant complained of low back discomfort and had mild tenderness over the lower lumbar spine. The notes of David C. Naden, M.D., an orthopedic surgeon, (Jt. Ex. C), indicate claimant was having right knee problems in 1984 but was doing better. This is understandable based on the fact that claimant was concluded to have a 25 percent permanent partial impairment to her right leg in a hearing held on April 2, 1988, and which Page 5 ended in an arbitration decision filed May 29, 1985 (Jt. Ex. A). Claimant was also working during part of 1984 and was going through therapy. Claimant was also working in 1985 until her November 9, 1985 injury. On September 12, 1985, claimant was complaining of both right knee pain and low back pain. Dr. Naden's notes reflect: Disp: I think this woman's back condition is really not real severe and will clear up with time--particularly if we can get the knee symptoms under better control. At the present time I think she's able to work but she's obviously under dire distress. She has a gimpy rt. knee that's not only symptomatic but causing her to limp and I think starting to seriously affect her back. I think this woman's working days with this type of knee are limited and I think in the not-too-distant future she's going to need some type of reconstructive alignment procedure on that knee that will hopefully get these symptoms under control and her health in better shape. (Jt. Ex. C, pp. 6 and 7) This same exhibit reflect increased right knee problems on November 11, 1985, two days after claimant's November 9, 1985 injury. At that time, there is no reference to the back until January 9, 1986. On this date, the doctor said claimant has been having back problems since the November 1985 slip and fall and is being treated by another doctor for that. It would appear that Dr. Naden was mainly interested in trying to solve claimant's knee problem. Considering all the medical records in this case, it seems as though the back situation was put in the background due to the fact that unless the knee problem is solved, the back could not be solved or alleviated. There seems to be a tie between the two. On March 3, 1986, Dr. Naden gave claimant a return-to-work slip for March 17, 1986. His notes reflect claimant was having problems again in June. The undersigned will not go into claimant's time off and healing period and to what they were attributed because the parties have stipulated to the time off that claimant incurred and the extent of the healing period benefits that were paid and to which defendants agreed were owed to claimant. Claimant's entitlement to permanent disability benefits is an issue. Defendant's company medical in-house report indicates a diagnosis, "acute cervical & low back strain" and claimant "fell striking both knees against conveyor supports and then landed on buttocks." (Jt. Ex. C, p. 27). On May 12, 1986, Dr. Naden gave claimant an impairment as to her back and attributed certain amounts to certain injuries and preexisting conditions. A considerable amount of medical Page 6 care has been given to claimant since that time strictly by Charles T. Cassel, M.D., to whom Dr. Naden referred claimant in October 1986. The undersigned believes Dr. Cassel's impairment ratings are much more acceptable considering the total medical records and evidence and also are more recent and up to date. Dr. Cassel's notes of October 5, 1987 (Jt. Ex. D, p. 9 and 13) are a good example of how the doctor intertwines the back and leg but seems to be eventually directing attention to the right leg. On April 4, 1988, Dr. Cassel opined that claimant had a 43 percent impairment: I feel that she has a 43% permanent impairment of her right leg. I feel that she has a separate 10% impairment of her lower back. By history her back problem originated when she fell while recovering from knee surgery. I feel that the fall that she had which precipitated her back discomfort is related to her knee injury in that sense. Reviewing her films, she may have had mild degenerative changes in her back but the fall definitely aggravated an underlying condition. (Jt. Ex. D, p. 28) This 43 percent was obviously incorrect after looking at all the doctor's prior correspondence. The doctor corrected this 43 percent and on April 6, 1988, opined that claimant has a 53 percent impairment to her lower extremity (Jt. Ex. D, p. 30). On April 10, 1989, Dr. Cassel reiterated claimant's restrictions, which are: [T]he patient cannot stand or walk for prolonged periods of time. I would not anticipate her being able to stand or walk for longer than 30 or 40 minutes at a time without being able to sit down or rest or work in a sitting station. I do not feel that she would be able to do repetitive lifting, bending, or stooping, or stair climbing. I would have a weight restriction lifting limit of 25-30 lbs. (Jt. Ex. D, p. 34) The University of Iowa notes on August 25, 1987, reflect that claimant was referred to the pain clinic by Dr. Cassel for lumbar sympathetic block (Jt. Ex. F, p. 3). On August 27, 1985, claimant went through an operation described as a right L2,L3 sympathetic ganglion block under pluro. The records of J. Larry Troxel, B.S., D.C., basically conclude claimant is suffering from a permanent chronic low back disability which is aggravating her right knee, making it very difficult for claimant to move about (Jt. Ex. I, p. 13). On page 17 and 18 of Joint Exhibit I, Dr. Troxel sets Page 7 out a certain impairment rating. Joint Exhibit J reflects the various operations claimant has had. Page 41 is an example whereby claimant had a continuous epidural sympathetic block and IV regional sympathetic block on February 6, 1988. These notes refer to claimant's prior May 5, 1988 similar procedure, a combined lumbar epidural sympathetic and IV regional sympathetic block. On December 22, 1988, Dr. Hale agreed with Dr. Cassel's 53 percent impairment of claimant's right lower extremity. He did not evaluate claimant's back problem. Therefore, he did not agree or disagree with Dr. Cassel's 10 percent impairment rating as to claimant's back (Jt. Ex. J, p. 63). Wayne M. Sliwa, Ed.D., a licensed psychologist, wrote on June 16, 1989: "Given the medical diagnosis and the chronicity of the pain over the last several years, it does not appear that she will be able to work at all in the future. As the medical test reports, this is a very chronic disease with the prognosis being poor." (Jt. Ex. K, p. 9) Claimant contends that she has at least a 53 percent impairment of her right lower extremity. Claimant also contends that she injured her back on November 9, 1985. Defendants contend there not only is no back injury but that that is not an issue based on the record. It is difficult for the undersigned to see where the defendants are coming from in that respect. The defendants argue there is no mention of the back but only the knee in this record. There are numerous areas in which the back is referred to and treatment of the same or reference to the same resulting from the November 9, 1985 incident. Also, claimant was having some back problems prior to November 9, 1985. It is undisputed that if in fact there is a scheduled injury involved and a body as a whole injury involved in the same accident, then everything is rated and based on a body as a whole industrial disability. Taking all the medical evidence as a whole, it is clear to the undersigned that considerable effort has been made on trying to solve claimant's right knee problem and finding a cure for her reflex sympathetic dystrophy condition. At times, it seems like the back condition has taken a back seat. It is obvious from the record that there is little that can be done concerning the back if the right knee problem cannot be solved. It seems like they are intertwined in many respects as far as each condition to some extent affecting the other. Defendants contend that whatever the injury is, it is strictly a scheduled injury. The undersigned disagrees with this contention and believes the greater weight of medical evidence shows otherwise. Claimant has gone through several nerve blocks. The nature of this operation is explained in the operation. It involves placing needles in the spine and a catheter along the spinal cord. It is undisputed that the spinal cord is, in fact, part of the back or the central nervous system and is into a person's body as a whole. Page 8 The undersigned finds that although claimant was having some back trouble prior to this time, her real problems for the most part prior to November 9, 1985 involved her right knee. The undersigned finds that claimant's November 9, 1985 work injury substantially and materially aggravated and lighted up a preexisting back condition that claimant had. The undersigned also finds that claimant had a previous award of 25 percent permanent partial disability benefits regarding her right knee in an October 28, 1983 injury. The evidence indicates that claimant was getting along to some extent and had been working for a considerable period of time prior to her November 9, 1985 injury, and that upon receiving that work injury went through many more operations and treatments because of her right knee condition. The undersigned finds that regarding case No. 758597, a review-reopening, that claimant did not prove that the disability for which claimant seeks additional compensation was proximately caused by the first injury or that the second injury was proximately caused by the first injury. There is no question in the undersigned's mind that any increased impairment or disability incurred by the claimant was work related and increased claimant's impairment to her right lower extremity, and the undersigned finds that this increase in impairment was a result of the November 9, 1985 injury. The undersigned finds that Dr. Cassel's impairments are the most accurate as they are the most recent. Dr. Naden, an orthopedic surgeon, actually referred claimant to Dr. Cassel, who is also an orthopedic surgeon. Claimant is on social security. It is true that criteria in determining social security disability is different in some respects than the criteria to determine industrial disability. Claimant also was determined by another insurance company, not a party to this action, in agreement with defendant employer, that claimant was totally disabled and claimant received a lump sum payment, which payment is not an issue herein. Defendants contend that even though the employer agreed that claimant was totally disabled in order to receive those funds, it only had to do with the right knee. Although that might appear to have been the situation, or at least defendants' contention, the undersigned finds that there was substantial medical evidence in the record to indicate claimant was, in fact, totally disabled as a result of her work-related November 9, 1985 injury which affected her back and increased her impairment to the right knee. The undersigned finds that claimant has a total loss of earning capacity as a result of her November 9, 1985 injury. Taking into consideration claimant's age, complete medical history, work experience, healing period, age, education, motivation, physical condition, restrictions, severity and location of her injury, impairment, and any other criteria used in determining industrial disability, the undersigned finds that claimant is completely and totally disabled. The undersigned will not further determine or make any Page 9 finding as to claimant's healing period as the parties stipulated to the healing period incurred by claimant which involved more than one healing period. The parties further stipulated that any permanent partial disability benefits would, in fact, from the circumstances of this case begin October 26, 1987. conclusions of law The claimant has the burden of proving by a preponderance of the evidence that the injury of November 9, 1985 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). Furthermore, if the available expert testimony is insufficient alone to support a finding of causal connection, such testimony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish compensability, the injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith v. All-Amnerican, Inc., 290 N.W.2d 348, 354 (Iowa 1980). 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, 760-61 (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 Page 10 employer's work and a causal connection is established, claimant may recover to the extent of the impairment. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 (1960). The Iowa Supreme Court cites, apparently with approval, the C.J.S. statement that the aggravation should be material if it is to be compensable. Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's Compensation sec. 555(17)a. Our supreme court has stated many times that a claimant may recover for a work connected aggravation of a preexisting condition. Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). See also Auxier v. Woodward State 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, 253 Iowa 369, 112 N.W.2d 299; Ziegler, 252 Iowa 613, 106 N.W.2d 591. 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, and cases cited. When a worker sustains an injury, later sustains another injury, and subsequently seeks to reopen an award predicated on the first injury, he or she must prove one of two things: (a) that the disability for which he or she seeks additional compensation was proximately caused by the first injury, or (b) that the second injury (and ensuing disability) was proximately caused by the first injury. DeShaw v. Energy Manufacturing Company, 192 N.W.2d 777, 780 (Iowa 1971). An injury to a scheduled member may, because of after effects (or compensatory change), result in permanent impairment of the body as a whole. Such impairment may in turn form the basis for a rating of industrial disability. Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). If a claimant contends he has industrial disability he has the burden of proving his injury results in an ailment extending beyond the scheduled loss. Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964). 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.2d 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 Page 11 physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). The mere fact that the rating pertains to a scheduled member does not mean the disability is restricted to a schedule. Pullen v. Brown & Lambrecht Earthmoving, Incorporated, II Iowa Industrial Commissioner Reports 308 (Appeal Decision 1982). The case law relating to review-reopening proceedings is rather extensive. The opinion of the Iowa Supreme Court in Stice v. Consolidated Ind. Coal Co., 228 Iowa 1031, 1035, 291 N.W. 452 (1940) stated "that the modification of...[an] award would depend upon a change in the condition of the employee since the award was made." The court cited the law applicable at that time which was "if on such review the commissioner finds the condition of the employee warrants such action, he may end, diminish, or increase the compensation so awarded" and stated at 1038: That the decision on review depends upon the condition of the employee, which is found to exist subsequent to the date of the award being reviewed. We can find no basis for interpreting this language as meaning that the commissioner is to re-determine the condition of the employee which was adjudicated by the former award. The court in Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957) cited prior decisions and added a new facet to the review-reopening law by stating at page 69: But it is also true that unless there is more than a scintilla of evidence of the increase, a mere difference of opinion of experts or competent observers as to the percentage of disability arising from the original injury would not be sufficient to justify a different determination by another commissioner on a petition for review-reopening. Such is not the case before us, for here there was substantial evidence of a worsening of her condition not contemplated at the time of the first award. In a somewhat analogous vein, the Iowa Court of Appeals held in Meyers v. Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24, 25 (Iowa App. 1978) that a review-reopening petition may allow a change in compensation when a claimant has failed to improve to the extent initially anticipated. A major pronouncement came in the case of Gosek v. Page 12 Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968). The opinion there, at 732, stated that "[o]n a review-reopening hearing claimant has the burden of showing by a preponderance of the evidence his right to compensation in addition to that accorded by a prior agreement or adjudication." The opinion went on to discuss the common understanding that "if a claimant sustained compensable injuries of which he was fully aware at time of prior settlement or award, but for some unexplainable reason failed to assert it, he cannot, for the first time on subsequent review proceedings, claim additional benefits." The opinion continued at 733 "[b]ut according to the apparent majority view, if a claimant does not know of other employment connected injuries or disability at time of any prior agreement or adjudication, he is not ordinarily barred from later asserting it as a basis for additional benefits." The court went on to hold at 735 that "cause for allowance of additional compensation exists on proper showing that facts relative to an employment connected injury existed but were unknown and could not have been discovered by the exercise of reasonable diligence, sometimes referred to as a substantive omission due to mistake, at time of any prior settlement or award." Each of these cases rest upon some disparity between claimant's actual or anticipated physical condition at the time of the previous assessment and the physical condition which exists at the time of the review-reopening proceeding. Thus, the question initially becomes has claimant established a change in his physical condition since the time of the April 2, 1988 proceeding. Apportionment of disability between a preexisting condition and an injury is proper only when there was some ascertainable disability which existed independently before the injury occurred. Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984) The burden of showing that disability is attributable to a preexisting condition is, of course, placed upon the defendant. If evidence to establish a proper apportionment is absent, the defendant is resp claimant's right lower extremity and the combination of these two injuries on November 9, 1985 has resulted in claimant incurring an industrial disability. Claimant is totally permanently disabled as a result of claimant's November 9, 1985 injury. order THEREFORE, it is ordered: That as to File No. 848411, the November 9, 1985 injury, defendants shall pay claimant compensation for permanent total disability at the rate of two hundred twenty-two and 03/100 dollars ($222.03) per week during the period of claimant's disability commencing October 26, 1987. The rate to which the parties stipulated is wrong for the November 9, 1985 injury based on the parties' stipulated gross weekly income of three hundred fifty-three dollars ($353). That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That claimant takes nothing further as to File No. 758597 (review-reopening). That defendants shall pay the costs of this action, pursuant to rule 343 IAC 4.33. That defendants shall file an activity report upon payment of this award as required by this agency, pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of February, 1991. ______________________________ BERNARD J. O'MALLEY Page 14 DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Michael J Motto Attorney at Law 1000 First Bank Ctr Davenport IA 52801 Mr. Greg A Egbers Attorney at Law 600 Union Arcade Bldg 111 E 3rd St Davenport IA 52801 1108; 1804; 2905 Filed February 27, 1991 Bernard J. O'Malley before the iowa industrial commissioner ____________________________________________________________ : CHRISTIEN VAN WEY, : File No. 758597 : 848411 Claimant, : : A R B I T R A T I O N vs. : : A N D H. J. HEINZ, : : R E V I E W - Employer, : : R E O P E N I N G and : : D E C I S I O N LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1108; 1804 Forty-one year old claimant incurred a work-related knee injury resulting in a reflex sympathy dystrophy. No cure has been found nor is one anticipated. In same injury, claimant incurred a back injury. Claimant is unable to be employed. Claimant found to be permanently totally disabled. 2905 Claimant took nothing in the review-reopening case. It was found that claimant's current disability was the result of her recent injury referred to above which involved her right lower extremity and back. The review-reopening involved only her right lower extremity. BEFORE THE IOWA INDUSTRIAL COMMISSIONER PATRICIA CRAWFORD, Claimant, File No. 759165 vs. A R B I T R A T I O N WESTMARK PROPERTY MANAGEMENT D E C I S I O N COMPANY, Employer, F I L E D and FEB 09 1988 STATE FARM INSURANCE COMPANY, IOWA INDUSTRIAL COMMISSIONER Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Patricia Crawford against Westmark Property Management Company, her former employer, and State Farm Insurance Company, the employer's insurance carrier. The case was heard in Des Moines, Iowa on July 7, 1987 and was fully submitted upon conclusion of the hearing. The record in the proceeding consists of testimony from Patricia Crawford, Pamela Kelly and Brenda Goeden. Also received into evidence were claimant's exhibits 1 through 9 and defendants' exhibits A, B, C, D, E, G, H, I, K, L, M and N. ISSUES AND STIPULATIONS It was stipulated that claimant sustained an injury on February 3, 1984 which arose out of and in the course of employment. The issues identified by the parties for determination are: Whether there is a causal relationship between the alleged injury and the disability; whether claimant is entitled to temporary total disability or healing period benefits or permanent partial or permanent total disability benefits; whether claimant falls within the odd-lot doctrine; and, claimant's rate of compensation in the event of an award. The employer also seeks credit, in the event of an award, for the benefits previously paid to claimant. SUMMARY OF EVIDENCE The following is only a brief summary of pertinent evidence. All evidence received at the hearing was considered when deciding the case even though it may not necessarily be referred to in this decision. Defendants' proposed summary of evidence is essentially accurate and is incorporated herein with some modification. Patricia Crawford is a 55-year-old woman who had been employed by Westmark Property Management Company as an apartment manager for six months prior to her injury on February 3, 1984. She is single. Claimant's formal education is limited to the eighth grade. Prior to becoming an apartment manager in 1969, she had worked as a waitress. Claimant testified that, on February 3, 1984, while moving a washer and dryer at the Riverview Oaks apartment complex at 8450 Hickman, in Des Moines, Iowa, to clean behind them, she heard her back "pop." She went home to lie down. There were no witnesses. She saw a chiropractor on February 6, 1984 without obtaining relief. On February 7, 9, 15, and 27, 1984, she received osteopathic manipulative treatments from the Dietz Family Practice Clinic. She was given another prescription of Parafon Forte. After the treatment on February 7, 1984, claimant felt fine, but then went bowling, threw her back out and her symptoms returned (defendants' exhibit A, pages 3-5). Claimant sought treatment at the Mercy Hospital Medical Center on February 11, 1984. She was diagnosed by Sinesio Misol, M.D., as having a possible herniated disc. She was treated conservatively with medication, rest and a TENS unit. Claimant returned to see Marvin Dubansky, M.D., on March 1, 1984 and was admitted to Mercy Hospital. A myelogram was performed on March 2, 1984 which revealed evidence of partial sacralization of L-5. There was noted a large defect at the level of L-4, L-5 on the right side. There was no evidence of any other pathological change (defendants' exhibit B, page 23). Dr. Dubansky performed chemonucleolysis at L-4/L-5 on March 5, 1984 and discharged claimant on March 12, 1984 (defendants' exhibit B, pages 14-16). Because of complaints of pain, she was readmitted on April 4, 1984 to Mercy Hospital and was discharged on April 20, 1984. She received outpatient therapy and medication. Claimant was still having pain in the right leg and was admitted to Mercy Hospital on May 24, 1984. A lumbar laminectomy was performed on May 25, 1984 by Dr. Dubansky. According to the operative report, the findings on surgery were as follows: The dissector was used and there really was not too much bulging, and it was very difficult to try to identify the disc space itself. A needle was placed in what I thought probably was this space, although it was extremely narrow. Xray was taken and confirmed this was the L4-5 interspace where I wanted to be. A knife was used to try and cut into this area, but there was some thickening of tissues on the back of the vertebra and beneath the dura, but not really extruded disc. It didn't look like disc material. I used the narrowest pituitary rongeur to try and remove some of the material between the vertebra, but it was really scarred and fibrous. Using the dissector up under the nerve root, however, there was a hard, flat piece of material, about .5 cm x .5 cm. x 2-3 mm. It was lying beneath the nerve root and when this was removed, down to the vertebral body, and seemed to decompress the nerve root. The nerve root was a little bit inflammed [sic]. (Defendants' exhibit B, page 20). Claimant was released from Mercy Hospital on June 1, 1984, with an improved amount of right leg pain. Subsequently, she received physical therapy from June 14, 1984 through July 26, 1984. Claimant was discharged from therapy as she had plateaued in treatment on July 26, 1984 (defendants' exhibit B, pages 24 and 25). On July 31, 1984, Dr. Dubansky released claimant to do office work (defendants' exhibit B, page 6). On September 25, 1984, claimant started working at an apartment complex owned by employer in Phoenix, Arizona. Her "care" was transferred to Ronald B. H. Sandler, M.D., in Phoenix. She complained to Dr. Sandler of persistent pain involving the right buttock and lateral right thigh and burning pain in the right calf. Claimant complained that she would have it in the morning when she first awoke and at other times she would be on her feet for 1-2 hours before it begins (defendants' exhibit B, pages 26 and 27). Claimant received an epidural steroid injection on October 31, 1984, November 1, 1984, and again on November 8, 1984. When she again saw Dr. Sandler on November 16, 1984, claimant was feeling better with aching discomfort in the calf. Dr. Sandler indicated that she could continue working (defendants' exhibit B, pages 28-30). Claimant was next examined by Dr. Sandler on January 18, 1985 with complaints of persistent recurring discomfort in the right calf. Dr. Sandler felt that claimant could probably control her symptoms by watching her activity level and positions (defendants' exhibit B, page 31). On March 13, 1985, Dr. Sandler felt she was stable and gave claimant a 20% impairment rating (defendants' exhibit B, page 32). Claimant quit her job in April, 1985. She stated that she was physically incapable of continuing to perform the job due to her pain. Claimant received her last check in May, 1985 (defendants' exhibit E). At the time of the injury on February 3, 1984, claimant was making $800.00 per month and was receiving an apartment with a fair rental value of $295.00 with utilities valued at $20.00 per week (defendants' exhibit M). Claimant received the apartment and utilities until June 11, 1985. According to Evalene J. Hannah, claimant quit her job with the employer because she was getting married to Charles Buxton. Claimant testified that her pain and restricted activities caused the marriage to end. Claimant's job in Phoenix, Arizona included the leasing of apartments, paper work, collection of rents, serving of notices and court actions. Claimant hired an assistant or maintenance person to do the maintenance, repairs, grounds, pools and cleaning. Claimant was responsible for supervising and training this person. In late April of 1985, the employer received a written complaint concerning claimant regarding her availability to tenants. The employer also suggested a way for her to remain at her job in spite of her physical complaints (defendants' exhibit E, pages 10 and 11). Claimant saw Dr. Dubansky on December 9, 1985. At that time, claimant had an EMG and CT scan. The EMG study of L.S. paraspinal and left lower extremity was normal. The CT scan revealed no evidence of nerve root compression. Dr. Dubansky gave her a 20% impairment rating (defendants' exhibit B, pages 8 and 9). On October 13, 1986, claimant saw Andrew G. Shetter, M.D., a neurosurgeon, in Phoenix, Arizona. Claimant told Dr. Shetter that her pain symptoms had decreased over the past two years. Dr. Shetter observed no evidence of lower extremity muscle atrophy. Dr. Shetter stated that the patient's symptoms were indicative of a residual right L5 radiculopathy. He recommended no further surgery and felt that her present treatment should be continued (defendants' exhibit B, pages 44-46). On December 29, 1986, Dr. Dubansky again examined claimant. The doctor stated that there were no objective neurological changes and that claimant showed no evidence of weakness or atrophy. He recommended no change in her course of treatment (defendants' exhibit B, page 10). Claimant has not sought employment since quitting her job with the employer in April, 1985. The employer introduced evidence through Brenda Goeden of jobs presently available in the Phoenix area that were within claimant's experience and physical restrictions as indicated by Dr. Shetter. Also available in the Phoenix area was employment as a leasing hostess, or a job similar to that which she held with this employer. Claimant is presently restricted to 20 pounds lifting and should avoid excessive stooping or bending (deposition of Dr. Shetter, page 12). Claimant's prior medical history reveals that she has had polio which affected her right leg in her twenties and a work injury of "approximately three months duration" in 1962, according tO interrogatory answer number 3 (defendants' exhibit I, page 5). However, on cross-examination, it was admitted by claimant that her work injury occurred on March 14, 1963 and, as late as April 1, 1964, she still had not returned to work and had no knowledge as to when she would be returning to work. She saw Thomas B. Summers, M.D., on December 12, 1963. It was his opinion that her objective findings were minimal in degree. Claimant indicated that because of the pain she did not feel she could carry on with her usual occupation. Her work injury involved the lower cervical spine (defendants' exhibit A, page 31). Claimant received a settlement in June, 1964 from the employer and returned to work as a waitress thereafter (defendants' exhibit C, page 2). Claimant denied having any disability in her right leg from polio. However, on cross-examination, it was revealed that, whenever she gets tired, she limps on her right leg. Robert B. Stickler, M.D., her family doctor, stated that, in July, 1966, claimant had severe back pain (defendants' exhibit A, page 29). Dr. Shetter also rendered his opinion that gait changes from polio could aggravate or exacerbate arthritic changes in claimant's spine (deposition of Dr. Shetter, page 20). Claimant spends her time presently caring for her daughter's two seven-year-olds. Claimant belongs to a health club and occasionally socializes at a neighborhood bar. While she worked for the employer, claimant flew back to Des Moines in December, 1984 to attend a staff Christmas party. Claimant's major physical complaint relates to pain. Dr. Dubansky stated, in his deposition at page 32, that his rating of 20% included 15% for her subjective complaints of pain. Furthermore, Dr. Summers stated in a report dated April 13, 1978, that he believed there was a sizeable functional element which contributed to the symptomatology, in whole or in part. Dr. Summers was seeing claimant at that time for dizziness or lightheadedness (defendants' exhibit A, pages 33 and 34). Dr. Dubansky stated, in a clinical note dated August 23, 1984, that it is "Real hard to determine just how much of this is nerve root compression and how much is residual back that is causing some leg pain and how much of it is a psychological overlay." (Defendants' exhibit B, page 7; deposition of Dr. Dubansky, page 26). According to Dr. Shetter, claimant does not have any loss of motor function in the legs or sensory loss that would be functionally incapacitating (deposition of Dr. Shetter, page 15). He testified that all pains can be and are influenced by behavioral and emotional factors and that the location of claimant's pain is anatomically appropriate (deposition of Dr. Shetter, page 22). The defendants have paid claimant workers' compensation benefits from February 4, 1984 through September 29, 1984, a period of 34 weeks, at the rate of $127.90. Benefits were resumed on March 13, 1985 through June 16, 1987, a period of 118 weeks, at the rate of $127.90. The defendants paid benefits from June 17, 1987 to the date of hearing, a period of two weeks, at the rate of $177.01. A check was given to claimant's attorney on July 2, 1987 for $2,441.45 for what was believed to have been an underpayment of workers' compensation benefits based on the weekly rate paid of $127.90. The foregoing payments are established by a stipulation of the parties contained in the prehearing report. The total paid is $22,345.88. APPLICABLE LAW AND ANALYSIS Claimant has the burden of proving by a preponderance of the evidence that the injury of February 3, 1984 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 1607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The causal connection is made by Dr. Dubansky in his deposition. Claimant alleges she is entitled to the benefit of the odd-lot doctrine. Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985). However, she has failed to make a prima facie showing of permanent total disability under the odd-lot doctrine because she has made no effort to secure employment. She also presently cares for her daughter's seven-year-old twins. Emshoff v. Petroleum Transportation Services, Industrial Commissioner Appeal Decision, March 31, 1987. Therefore, this doctrine has no application in this case. It remains to be determined the percentage of disability to which claimant is entitled as a result of the work injury. Both Dr. Sandler and Dr. Dubansky gave claimant a 20% functional impairment rating. Dr. Dubansky admitted that 15% of the rating was for subjective complaints of pain. 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, 25 The approaching of later years,.when it can be anticipated that, under normal circumstances, a worker would be retiring is, without some clear indication to the contrary, a factor which can be considered in determining the loss of earning capacity or industrial disability which is causally related to the injury. Christopher B. Becke v. Turner-Busch, Inc. and American Mutual Liability Insurance Company, Thirty-fourth Biennial Report 34, 36. Claimant is 55 years old and has completed eighth grade. She has worked as a waitress and an apartment manager most of her adult life. Claimant's physicians gave her a 20% functional impairment rating and she is restricted to lifting no more than 20 pounds and to avoid excessive stooping and bending. Claimant has not attempted retraining or employment. At hearing, it was apparent from claimant's demeanor that she is not motivated to attempt to find gainful employment. Motivation is a factor which weighs on industrial disability. Claimant is of an age when normally her work life would soon end. Thus her potential loss of earning capacity on account of her disability is less than that of a younger individual. When claimant's physical impairment, education, work experience, age, motivation and all the other factors are considered, she is found to have sustained a permanent partial disability of 60%. The appropriate conversion date from healing period to permanency benefits remains to be determined. Claimant was released by Dr. Dubansky to return to office-type work as of July 31, 1984 and returned to work on September 30, 1984. She received her first check for the prior two weeks of work on October 15, 1984 (defendants' exhibit E, page 4). See Iowa Code section 85.34(l). All payments made after October 1, 1984 should be credited to permanency benefits. Claimant left her job in April, 1985. She was getting married. Despite her testimony, no physician had recommended that she quit. She did not seek medical attention or treatment from March, 1985 until September, 1985. Her condition has been essentially stable since she returned to work on September 30, 1984. No further healing period compensation is due. The healing period therefore runs from February 4, 1984 until her return to work on September 30, 1984, a period of 34 weeks. Claimant's rate must be established. Claimant received $800 per month in salary, plus an apartment valued at $295 per month and utilities valued at $20 per week. In calculating the rate, multiply $295 times twelve to get the yearly allowance for the apartment. This totals $3,540.00. Utilities of $20 per week multiplied by 52 weeks per year total $1,040.00. Utilities and the apartment added together total $4,580.00 which, when divided by 52 weeks brings an additional weekly value to claimant of $88.08 in earnings. Hoth v. Eilors, I Iowa Industrial Commissioner Report, 156 (1980). The additional value of $88.08 in earnings, when added to the weekly wage of $184.62 ($800 per month x 12 divided by 52 weeks), equals a gross weekly wage of $272.70. The benefit schedule would provide a rate of compensation of $168.22, if the rate is computed in this manner. The benefits of housing and utilities continued from February 3, 1984 through June 11, 1985. Therefore, a credit should be given as this was considered a portion of the payment of earnings that was continued. Division of Industrial Services Rule 343-8.4. The credit for the value of the apartment with utilities is applicable only to the healing period. The apartment and utilities were part of claimant's earnings for the work she performed. If the credit was applied against permanent partial disability benefits, it would be the same as crediting wages earned after the end of the healing period toward a permanent partial disability award. Wages earned during a period of entitlement to permanent partial disability benefits are not a credit against the employer's liability to pay permanent partial disability benefits [85.34(2)]. The statutes do not provide directives as to how the deduction should be handled. The two apparent alternatives are to deduct the value of the apartment and utilities directly from the rate of compensation or to recompute the rate based only upon the $800 monthly salary. Section 85.37 makes the rate equal to "eighty percent of the employee's weekly spendable earnings." Section 85.61(11) defines spendable earnings as the amount remaining after payroll taxes are deducted from gross weekly earnings. The values of the apartment and utilities are not included in claimant's taxable earnings and are not subject to payroll taxes (see defendants' exhibit H). Simply adding the $88.08 to the weekly salary and then applying that sum to the benefit schedule results in an understatement of the correct rate since the schedule treats the entire sum as if it was subject to payroll taxes. The correct way to compute the rate in a case where part of the earnings are not subject to payroll taxes is to apply the taxable salary to the benefit schedule to determine a preliminary rate based only upon the taxable salary. Then, 80% of the non-taxable earnings should be added to the preliminary rate to arrive at the final rate. Any other method of computing the rate would violate the statute. In this case, the weekly salary provides a preliminary rate of $119.11. Eighty percent of $88.08 equals $70.46. The final rate is therefore $189.57. For so long as the employer continued to provide the apartment and utilities, the employer's liability is to pay $119.11 per week. After September 30, 1984, the rate is $189.57 per week. The permanent partial disability award of sixty percent (60%) entitles claimant to 300 weeks of benefits commencing September 30, 1984, payable at the rate of $189.57 per week. The amount payable for permanent partial disability is $56,871.00. The net compensation payable during the healing period is $119.11 for 34 weeks for a total of $4,049.74. At the time of hearing, July 7, 1987, all healing period ($4,049.74) and 144 2/7 weeks of permanent partial disability compensation equaling $27,352.30 were due. The total due was $31,402.04. The sum of $22,345.88 had been paid by the date of hearing resulting in an underpayment of $9,056.16. FINDINGS OF FACT 1. On February 3, 1984 claimant was a resident of Iowa employed by Westmark Property Management Company in the state of Iowa. 2. On February 3, 1984 claimant sustained an injury to her back in the course of her employment. 3. Following the injury, claimant was medically incapable of performing work in employment substantially similar to that she performed at the time of the injury from February 4, 1984 to September 29, 1984, when claimant became medically capable of returning to employment substantially similar to that in which she was engaged at the time of the injury. 4. As a result of the injury, claimant has a permanent 60% loss of her earning capacity. 5. Claimant's credibility concerning the severity of her allegations of pain and disability is not well established. 6. Claimant presently babysits full-time for her daughter's twin seven-year-olds. 7. Claimant had worked for most of her adult life as a waitress and an apartment manager. 8. Claimant has not sought employment since quitting her job in April, 1985. 9. Claimant has not sought vocational rehabilitation. 10. The physical restrictions outlined by Dr. Shetter at pages 11 and 12 in exhibit 6 are correct for the claimant in this case. 11. The assessment made by Brenda Goeden that people with claimant's restrictions can usually obtain gainful employment if they want to work is correct. 12. Claimant has not established that she is disabled from working as an apartment manager. 13. Claimant has sustained a large loss of access to the job market. CONCLUSIONS OF LAW 1. Claimant has established that she received an injury on February 3, 1984 which arose out of and in the course of her employment. 2. Claimant has established a causal relationship between the injury and her disability. 3. Claimant is entitled to healing period benefits from February 4, 1984 until September 29, 1984, a period of 34 weeks. 4. Claimant is entitled to weekly benefits at the rate of $189.57. However, from February 4, 1984 to September 30, 1984, the amount to be paid is $119.11 as part of claimant's earnings were continued in the form of an apartment plus utilities valued at $88.08 per week for which a credit against healing period is granted. 5. The odd-lot doctrine is not applicable as claimant has not made a prima facie showing of permanent total disability through unsuccessful bona fide efforts to find employment or otherwise. 6. Where part of an employee's earnings are non-taxable, that part should not be applied through the benefit schedule. In lieu thereof, 80% of the value of the non-taxable earnings should be added to the rate determined when the earnings subject to payroll taxes are applied to the benefit schedule. 7. The value of the apartment and utilities is a credit against healing period compensation, but is not a credit against permanent partial disability compensation since it was then a part of claimant's current earnings. 8. Where the non-taxable part of an employee's earnings are continued by the employer, the weekly compensation paid to the employee should be based only upon that part of the earnings which are not continued. 9. Claimant has a 60% permanent partial disability when it is evaluated industrially which entitles her to 300 weeks of compensation under section 85.34(2)(u). ORDER IT IS THEREFORE ORDERED that defendants pay claimant thirty-four (34) weeks of compensation for healing period at the rate of one hundred nineteen and 11/100 dollars ($119.11) per week commencing February 4, 1984. IT IS FURTHER ORDERED that defendants pay claimant three hundred (300) weeks of compensation for permanent partial disability commencing September 30, 1984 at the rate of one hundred eighty-nine and 57/100 dollars ($189.57) per week. IT IS FURTHER ORDERED that credit is given for the twenty-two thousand three hundred forty-five and 88/100 dollars ($22,345.88) paid prior to hearing. Defendants are also entitled to credit for any payments made subsequent to the hearing. IT IS FURTHER ORDERED that all unpaid amounts which are accrued shall be paid in a lump sum together with interest pursuant to section 85.30. IT IS FURTHER ORDERED that defendants shall pay the costs of this action as itemized in Claimant's Bill of Costs filed on July 6, 1987 with the cost of five and 00/100 dollars ($5.00) for medical records disallowed and with the expert witness fees for Drs. Dubansky and Shetter limited to one hundred fifty and 00/100 dollars ($150.00) each pursuant to Division of Industrial Services Rule 343-4.33. The net amount equals one thousand one hundred sixty-eight and 09/100 dollars ($1,168.09). IT IS FURTHER ORDERED that defendants shall file Claim Activity Reports on the payment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. IT IS FURTHER ORDERED that this case be assigned for pre-hearing conference on claimant's claim for additional benefits under the fourth unnumbered paragraph of section 86.13. Signed and filed this 9th day of February, 1988. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Joseph S. Cortese II Attorney at Law 1000 Des Moines Building Des Moines, Iowa 50309 Ms. Iris J. Post Mr. Ross Sidney Attorneys at Law 2222 Grand Avenue P.O. Box 10434 Des Moines, Iowa 50306 1802, 1803, 3001, 3002 3003, 4100 Filed February 9, 1988 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER PATRICIA CRAWFORD, Claimant, vs. WESTMARK PROPERTY MANAGEMENT File No. 759165 COMPANY, A R B I T R A T I 0 N Employer, D E C I S I 0 N and STATE FARM INSURANCE COMPANY, Insurance Carrier, Defendants. 1802, 1803, 3001, 3002, 3003, 4100 Fifty-five-year-old claimant injured her back while working as an apartment manager. The employer offered continued employment with accommodations, but she resigned after working approximately eight months. The resignation was not medically directed and her condition had not changed and no further healing period was awarded. She has severe limitations and limited work experience. Claimant was awarded 60% permanent partial disability. Claimant had not looked for work or retrained and odd-lot held unavailable to her. Claimant received a salary and an apartment with utilities for her services as manager. The value of the apartment with utilities was held to be part of her gross weekly earnings and also of her weekly spendable earnings since it was not subject to payroll taxes. The rate was determined by applying the salary to the benefit schedule and then adding 80% of the value of the apartment and utilities. The employer was granted partial credit for the apartment and utilities for so long as the apartment was provided to claimant during the healing period, but it was not allowed as a credit against permanent partial disability since it was part of the earnings she received for the work she was then performing. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ : JOEY A. KELLER, : : Claimant, : : vs. : : File No. 759179 MORSE RUBBER PRODUCTS INC., : : A P P E A L Employer, : : D E C I S I O N and : : THE HARTFORD, : : Insurance Carrier, : Defendants. : _________________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed April 1, 1994 is affirmed and is adopted as the final agency action in this case. Defendants shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of August, 1994. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. James P. Hoffman Attorney at Law P.O. Box 1087 Keokuk, Iowa 52632 Mr. Greg A. Egbers Attorney at Law 600 Union Arcade Bldg. 111 East Third St. Davenport, Iowa 52801 5-1803 Filed August 29, 1994 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ : JOEY A. KELLER, : : Claimant, : : vs. : : File No. 759179 MORSE RUBBER PRODUCTS INC., : : A P P E A L Employer, : : D E C I S I O N and : : THE HARTFORD, : : Insurance Carrier, : Defendants. : _________________________________________________________________ 5-1803 Non-precedential, extent of disability case. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : JOEY A. KELLER, : : Claimant, : : vs. : : File No. 759179 MORSE RUBBER PRODUCTS INC., : : R E V I E W - Employer, : : R E O P E N I N G and : : D E C I S I O N THE HARTFORD, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in review-reopening brought by Joey Keller, claimant, against Morse Rubber Products, Inc., employer, hereinafter referred to as Morse, and The Hartford, insurance carrier, defendants, for the recovery of further workers' compensation benefits as the result of an injury on March 1, 1984. There is both a prior arbitration decision issued in August 1986 and a prior Iowa Code section 86.13 agreement for settlement for this injury approved in October 1989. On March 1, 1994, a hearing was held on claimant's petition in this proceeding and the matter was considered fully submitted at the close of this hearing. The parties have submitted a hearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. The oral testimony and written exhibits received during the hearing are set forth in the hearing transcript. According to the hearing report, the parties have stipulated to the following matters: 1. Claimant is not seeking temporary total or healing period benefits in this proceeding. 2. Claimant's rate of compensation is the same as before, $213.68 per week. 3. Medical benefits are not in dispute. ISSUE The only issue submitted by the parties for determination in this proceeding is the extent of claimant's entitlement to additional permanent disability benefits, if any. Page 2 FINDINGS OF FACT Having heard the testimony and considered all of the evidence, the deputy industrial commissioner finds as follows: From his demeanor while testifying, claimant is found credible. Claimant has worked for Morse for 20 years and continues to do so at the present time. The claim herein is not based upon any alleged change of physical condition, only a change in his job status. According to claimant's uncontroverted testimony, claimant has been able to move from job to job at Morse on his own bidding. This was the case back at the time of both the arbitration decision in 1986 and the settlement agreement in October 1989. However, in late 1993, claimant was given an evaluation of physical abilities and it was determined by the management of Morse that he could no longer perform his job as a press operator. Claimant was then involuntarily transferred to the shipping department. The sole reason for the transfer was claimant's back condition which has remained essentially the same since the agreement for settlement in 1989. Up until the transfer, claimant was repeatedly being injured by a series of aggravations of the prior back condition. Claimant admitted at hearing that he now performs work more in line with his disability. As a result of this non-physical change of condition, claimant has suffered a mild five percent loss of earning capacity. This loss is due to the original injury and resulting back condition. Claimant was earning $10.50 per hour in his job as a press operator. The involuntary transfer resulted in a cut in pay of $.61 per hour. All of the other factors of industrial disability found in the arbitration decision and discussed in the settlement agreement remain unchanged except that claimant now is older. Claimant states that he continues to have stiffness and soreness which varies from day-to-day. This appears to be the same physical condition he has described on prior occasions. Page 3 CONCLUSIONS OF LAW In a review-reopening proceeding, claimant has the burden of establishing by a preponderance of the evidence that he suffered a change of condition or a failure to improve as medically anticipated as a proximate result of his original injury, subsequent to the date of the award or agreement for compensation under review, which entitles him to additional compensation. Deaver v. Armstrong Rubber Co., 170 N.W.2d 455 (Iowa 1969). Meyers v. Holiday Inn of Cedar Falls, 272 N.W.2d 24 (Iowa Ct. App. 1978). Such a change of condition is not limited to a physical change of condition. A change in earning capacity subsequent to the original award or settlement which is proximately caused by the original injury also constitutes a change in condition under Iowa Code section 85.26(2) and 86.14(2). See McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Blacksmith v. All-American, Inc., 290 N.W.2d 348 (1980). As this is an industrial disability case, the degree of permanent disability must be measured pursuant to Iowa Code section 85.34(2)(u). Unlike scheduled member disabilities, the degree of disability under this provision is not measured solely by the extent of a functional impairment or loss of use of a body member. A disability to the body as a whole or an "industrial disability" is a loss of earning capacity resulting from the work injury. Diederich v. Tri-City R. Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A physical impairment or restriction on work activity may or may not result in such a loss of earning capacity. Examination of several factors determines the extent to which a work injury and a resulting medical condition caused an industrial disability. These factors include the employee's medical condition prior to the injury, immediately after the injury and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985). In the case sub judice, it was found that claimant suffered an additional five percent loss of his earning capacity as a result of the work injury. Such a finding entitles claimant to 25 weeks of permanent partial disability benefits as a matter of law under Iowa Code section 85.34(2)(u) which is five percent of 500 weeks, the maximum allowable number of weeks for an injury to the body as a whole in that subsection. As the change of condition occurred in later 1993, the benefits will be awarded from January 1, 1994. Page 4 ORDER 1. Defendants shall pay to claimant an additional twenty-five (25) weeks of permanent partial disability benefits at a rate of two hundred thirteen and 68/l00 dollars ($213.68) per week from January 1, 1994. 2. Defendants shall pay accrued weekly benefits in a lump sum. 3. Defendants shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 4. Defendants shall pay the costs of this action pursuant to rule 343 IAC 4.33, including reimbursement to claimant for any filing fee paid in this matter. 5. Defendants shall file activity reports on the payment of this award as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of April, 1994. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. James P. Hoffman Attorney at Law Middle Road PO Box 1087 Keokuk, Iowa 52632 Mr. Greg A. Egbers Attorney at Law 600 Union Arcade Building 111 East 3rd Street Davenport, Iowa 52801 5-1803 Filed April 1, 1994 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : JOEY A. KELLER, : : Claimant, : : vs. : : File No. 759179 MORSE RUBBER PRODUCTS INC., : : R E V I E W - Employer, : : R E O P E N I N G and : : D E C I S I O N THE HARTFORD, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803 Non-precedential, extent of disability case. BEFORE THE IOWA INDUSTRIAL COMMISSIONER DORENE K. SACHAU, Claimant, File No. 759191 vs. A R B I T R A T I O N FARMLAND FOODS, D E C I S I O N Employer, and AETNA CASUALTY & SURETY CO., Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Dorene K. Sachau, claimant, against Farmland Foods, employer, and Aetna Casualty & Surety Company, insurance carrier, defendants, for benefits as a result of an alleged injury which occurred on March 6, 1984. A hearing was held on September 25, 1987, at Sioux City, Iowa, and the case was fully submitted at the close of the hearing. The record consists of the testimony of Dorene K. Sachau, claimant, Nancy Wiese, plant nurse, Earl H. "Bud" Knudsen, foreman and Joint Exhibits 1 through 59. Both attorneys submitted excellent briefs. PRELIMINARY MATTER Claimant's Contentions, attached to the prehearing report, assert that employer is responsible to pay the expense of an Iowa Code section 85.39 examination performed by Horst G. Blume, M.D. However, a section 85.39 examination is not one of the issues designated as a hearing issue on the hearing assignment order. Claimant's attorney did not assert that this issue was raised at the time of the prehearing conference. Defendants' counsel stated that the issue was not mentioned at the prehearing conference, but, defendants had no objection to it being an issue for decision in this case. Defendants' consent is ineffective. The agency policy is that issues that are not raised at the prehearing conference and designated as hearing issues on the hearing assignment order will not be decided. Deputies are authorized to determine only those issues designated as hearing issues on the hearing assignment order. Therefore, it is determined that the issue of an Iowa Code section 85.39 examination is waived and it will not be decided as an issue in this case at this time. Presswood v. Iowa Beef Processors, Inc., file no. 735442 (Appeal Decision, November 14, 1986); Rahn v. Siouxland Towing and Auto Body, file no. 797004, filed October 20, 1987; Pulju v. Iowa Beef Processors, Inc., file nos. 804656 & 814502, filed February 9, 1988; Fisher v. American Freight Systems, Inc., file no. 797015, filed September 26, 1988. Claimant's counsel contended that a section 85.39 SACHAU V. FARMLAND FOODS PAGE 2 examination had been allowed in an earlier case with a claimant named Pirozek. There are two earlier cases where Raymond Pirozek was the claimant. The first case was Pirozek v. Swift Independent Packing, file nos. 753643, 753642 & 724893, filed September 24, 1985. The second case was Pirozek v. Swift Independent Packing, file no. 803955, filed December 22, 1986. In each of these cases, the expense of an Iowa Code section 85.39 examination was allowed, but also, in each of these cases it was designated as a hearing issue at the prehearing conference and designated as a hearing issue on the hearing assignment order. Therefore, since an Iowa Code section 85.39 examination was not raised at the prehearing conference and since it was not designated as a hearing issue on the hearing assignment order, it will not be considered a hearing issue in this case at this time. STIPULATIONS The parties stipulated to the following matters: That an employer-employee relationship existed between claimant and employer at the time of the alleged injury. That the extent of entitlement to weekly compensation for temporary total disability or healing period benefits, if defendants are liable for the injury, is from March 7, 1984 to October 29, 1984. That the commencement date for permanent partial disability benefits, in the event such benefits are awarded, is October 29, 1984. That the rate of compensation, in the event of an award, is $225.92 per week. That defendants seek no credit for benefits paid prior to hearing under an employee nonoccupational group health plan. That defendants paid claimant 36 3/7 weeks of temporary total disability compensation at the rate of $225.92 per week prior to hearing. That there was no agreement as to whether defendants paid claimant any permanent partial disability benefits prior to hearing. That there are no bifurcated claims. ISSUES The parties submitted the following issues for determination at the time of the hearing. Whether claimant sustained an injury on March 6, 1984, which arose out of and in the course of employment with employer. Whether the alleged injury is the cause of either temporary or permanent disability. Whether claimant is entitled to permanent disability benefits, and if so, the nature and extent of entitlement. Whether claimant is entitled to medical benefits. SACHAU V. FARMLAND FOODS PAGE 3 Whether this action was timely commenced under the provisions of Iowa Code section 85.26 is asserted as an affirmative defense by defendants. SUMMARY OF THE EVIDENCE All of the evidence was examined and considered. The following is a summary of the evidence most pertinent to this decision. Claimant is 41 years old. She was 37 years old at the time of the injury. Claimant attended high school until the first semester of tenth grade. Subsequently, she acquired a G.E.D. on May 17, 1983. She also completed a sewing course and a typing course but did not use these skills afterwards. Claimant started to work at age 13. She worked at a care center and in restaurants as a dishwasher, cook's helper, cook and waitress. Claimant was married on September, 30, 1967, had five children and returned to employment outside of her home in 1975, as a cashier in a supermarket. She started to work as an employee of this employer in March of 1977. She passed a preemployment physical examination at that time. Claimant denied any previous serious accidents or illnesses. Claimant has worked for employer continuously for approximately 10 years and was employed by employer at the time of this hearing on the production line in this pork kill plant. Claimant has packed link sausages, boned out loins and vacuum packed fresh pork in the cry-o-vac department. This latter job required claimant to take tenderloins, roasts, loins, butts and other cuts of meat which weighed anywhere from one pound to ten pounds off of the line. She had to straighten the plastic for a good seal and then run the package through the cry-o-vac machine which sealed the product in plastic. Some products might pass at the rate of 18 per minute and other products would pass at the rate of 40 per minute depending on what cut of meat was being packaged at any given time. Claimant testified that she first experienced tendonitis and bursitis in both hands in 1978. She saw James L. Flood, M.D., at this time. Periodically over the years, she experienced tendonitis and bursitis in her shoulders and her arms. She also experienced some back problems. She treated for these problems with Dr. Flood and J.G. Donovan, D.C. (Exhibit 2 & 15). Claimant testified that in March of 1984, her hand became numb, tingled and caused pain up into her shoulder. Her shoulders, neck and head ached. Her hand and arm had shooting pains and became numb. This time it was more severe than before. The nurse sent claimant to See Dayrle Crabb, M.D. Dr. Crabb referred claimant to Ronald A. Cooper, M.D., a neurologist in Omaha. Dr. Cooper recommended carpal tunnel surgery. This was performed by Dr. Crabb in Denison, Iowa. Claimant was off work from March of 1984 to October of 1984. She did well after the carpal tunnel surgery and had a good result from it; but her shoulder continued to be painful and was still painful at the time of the hearing. Claimant testified that she had difficulty in performing the cry-o-vac job and was transferred back to the night sausage job, which was her first job for employer. She still sees Dr. Crabb for prescriptions for her shoulder. Claimant testified that she is looking for different work but has to keep working in order to support her family. She said that SACHAU V. FARMLAND FOODS PAGE 4 she has taken postal service examinations and would like to be a window clerk or a clerk that sorts mail. Claimant testified that she can no longer do aerobic exercises, play baseball or ride horseback. Claimant explained that her left hand and left shoulder are involved in this injury. Claimant stated that she writes with her right hand and arm, but her left arm is her dominant arm in all other activities. Claimant affirmed that her right upper extremity was not involved in this claim for injury. Nancy Wiese, plant nurse since January of 1984, testified that she prepared the Health Service Daily Log for the entry on March 6, 1984, which indicates that claimant complained of numbness and swelling in her left hand into the left shoulder and requested to see a doctor. This same notation also states that claimant had the same problem in July doing the same job. The pain never did get better (Ex. 47). Wiese also testified that the Absence Record for Dorene Sachau from July 7, 1977 to August 1, 1987, was prepared by her from company records (Ex. 59). Wiese further testified that this report is accurate. Wiese testified that the Absence Record shows that claimant lost no time from work in 1987 due to her left shoulder. Earl H. "Bud" Knudsen, claimant's foreman, testified that he has supervised claimant for approximately one year and that he sees her everyday. Knudsen said that claimant is an excellent worker and has no trouble doing her job. She does good work and has made no complaints to him. She may have mentioned her physical problem to him, but she has not asked for any special treatment. Knudsen acknowledged that most of the jobs in claimant's department are repetitive jobs. He also granted that she may be taking pain pills in order to continue to work. Knudsen confirmed that claimant is a person who is motivated to work. Prior to this injury, the medical records show that claimant had trouble with her left shoulder as early as April 10, 1980. The office notes of Dr. Flood show that claimant was lifting a chamber lid at work and felt pulling in the left shoulder (Ex. 2, page 1). Dr. Flood called it a left shoulder sprain (Ex. 3). Claimant was hospitalized at St. Josephs Hospital in Omaha (Ex. 10). Claimant made an application for group disability benefits from April 30, 1980 to September 9, 1980 (Ex. 48). Dr. Flood noted (Ex. 2, p. 1.) and reported (Ex. 4) on April 30, 1980, that claimant had bursitis in both shoulders and also cervical radiculitis and myositis of the thoracic region of her back. An x-ray of claimant's left shoulder taken on May 1, 1980, was negative (Ex. 9). Claimant saw Dr. Donovan, the chiropractor, from June 4, 1980 to August 25, 1980 (Ex. 15). The first treatment was for her shoulder and the subsequent treatments appeared to be for her back. Also prior to this injury claimant hit her left shoulder on a guard rail at work on July 20, 1983 (Ex. 13). She saw Frank Iwersen, M.D., an neurosurgeon in Omaha (Ex. 12). She described symptoms of carpal tunnel syndrome to Dr. Iwersen which she stated began on July 6, 1983. She also reported that shortly after this, she hit the rail with her left shoulder and this was also giving her difficulty at the same time (Ex. 14). SACHAU V. FARMLAND FOODS PAGE 5 The Health Service Daily Log shows that claimant complained of pain in her left shoulder on July 21, 1983. Claimant stated that she bumped a guard rail on July 20, 1983. There were no bruises but the posterior shoulder and upper arm were swollen. Claimant denied it happened as a result of work at home (Ex. 46). The Health Service Daily Log for the date of March 6, 1984, records that claimant complained of numbness and swelling in her left hand into her left shoulder. It also stated that claimant was doing the same job and had the same problem as in July. The pain never did get better. Claimant was sent to see Dr. Crabb (Ex. 47). Dr. Crabb suspected a shoulder/hand syndrome and also carpal tunnel syndrome and sent claimant to see John C. Goldner, M.D., in Omaha (Ex. 22, p. 1 & Exs. 23 & 24). Dr. Goldner reported pain in the left shoulder, arm and hand--swelling in the hand has been occurring since July of 1983 (Ex. 19). Then, Ronald A. Cooper, M.D., a neurologist in Dr. Goldner's office said that he saw claimant on March 9, 1984. Dr. Cooper reported on March 12, 984, that claimant had carpal tunnel syndrome and also skeletal pain in the left shoulder which was not directly related to the carpal tunnel syndrome. Dr. Cooper reported that claimant has had intermittent shoulder pain over the years and that it has been variously diagnosed as bursitis and tenosynovitis (Ex. 20). Dr. Cooper saw claimant again on December 27, 1985, at the request of defendants' counsel and made a report dated December 30, 1985. Dr. Cooper said claimant had carpal tunnel surgery in April of 1984, and had good results. She no longer had any carpal tunnel syndrome symptoms. However, she continued to have pain in the left shoulder. Movements of the shoulder, especially reaching and pressure on the shoulder, cause her discomfort. Claimant had full strength but loss of range of motion in the left shoulder. There was pain on palpitation of the left shoulder joint itself. He found that claimant had no specific neurologic abnormalities. The exact etiology of her shoulder pain was unknown. Dr. Cooper concluded by saying that the carpal tunnel syndrome was related to work and he suspected that the shoulder problems were aggravated by certain types of lifting procedures that she may be required to do at work (Ex. 21). Dr. Crabb performed the carpal tunnel surgery on the left hand on April 2, 1984 (Exs. 25 & 26). Dr. Crabb reported to the insurance carrier on July 23, 1984, that claimant continued to have problems with her left shoulder. He said Dr. Cooper did not think that claimant had a shoulder/hand syndrome, but rather musculoskeletal pain in the left shoulder that was unrelated to the carpal tunnel syndrome (Ex. 28). Dr. Crabb stated that the shoulder injury was more than likely related to her work (Ex. 28). Again on September 24, 1984, Dr. Crabb wrote to the insurance carrier that the shoulder bursitis was indeed work related (Ex. 32). Dr. Crabb saw claimant several times for the left shoulder injury (Exs. 23-24, 27-31, & 33-37). On June 8, 1985, Dr. Crabb evaluated claimant's left shoulder as follows: Left Shoulder Impairment % 95 degrees 5 l/2% 15 degrees 2% SACHAU V. FARMLAND FOODS PAGE 6 80 degrees 8% 50 degrees 21/2% 40 degrees 8% 40 degrees 0% (Ex. 38) Dr. Crabb said.that the left upper extremity totaled 26 percent,which converted to 16 percent of the body as a whole. He stated that he used the Guides to the Evaluation of Permanent Impairment, second edition, published by the American Medical Association. In the course of claimant's treatment, Dr. Crabb referred claimant to W.R..Hamsa, M.D., an orthopedic surgeon in Omaha. He examined claimant on August 10, 1984. He said that the left shoulder has restricted abduction and external rotation having about 75 percent of normal range of motion with pain on extremes of external rotation. He stated that claimant might have trouble raising her arm above her head. He did not feel that surgery or steroids were indicated (Ex. 42). In a letter to defendants' counsel dated February 11, 1986, Dr. Hamsa said that claimant's problems began several years ago with distress in the left shoulder aggravated or produced by her employment which required repetitive use of the upper extremities. The patient has had a continuous problem of distress in her left shoulder. Although he had not seen claimant since August 10, 1984, he said that claimant has a normal active and passive motion about the shoulders, elbow, wrist and all digits of both hands with obvious pain in the left shoulder with abduction and external rotation. With forced internal or external rotation the patient has moderate shoulder pain (Ex. 43). Dr. Hamsa concluded as follows: My impression is that the patient has: 1) Recurrent tendonitis or bursitis, both shoulders, left more than right with main findings being in the rotator cuff and biceps groove. 2) Historical carpel [sic] tunnel, left wrist requiring surgical decompression. I don't have anything particularly to suggest except symptomatic support in the way of treatment. In reply to your questions concerning this problem it would seem that her main impairment or disability seems to be chronicity of symptoms. The patient has basically a normal physical examination, and disability rating is generally determined by loss of motion, evidence of atrophy or X-ray change. I think the patient is quite legitimate in her complaints and has demonstrated that she wants to continue working despite her problem. It would seem to me that if she could be employed in something that does't [sic] require repetitive motions of the shoulders or arms, her symptoms might be somewhat improved. (Ex. 43, p. 2) Claimant was examined at the request of her counsel by Horst G. Blume, M.D., Ph.D., on August 14, 1986. Dr. Blume wrote to claimant's counsel on January 13, 1987, that claimant had long SACHAU V. FARMLAND FOODS PAGE 7 standing shoulder pain which was constant. With extensive use of her left hand and arm the pain extends upward into her neck and down into the extensor aspect of her upper left arm. There is tenderness in the anterior, superior and posterior aspects of the left shoulder joint territory going down into the deltoid muscle, left, as well as the superior border of the trapezius and along the mid and lower cervical spine on the left side (Ex. 45). Dr. Blume's diagnosis was: The patients condition was diagnosed as status post carpal tunnel surgery on the left with no motor or sensory deficit or any discomfort from the surgery; chronic distress to left shoulder girdle with painful impaired range of motion of the left shoulder girdle with myofascial pain syndrome related due to different shoulder girdle muscles, especially the trapezius, the deltoid and some of the rotator cuff muscles. (Ex. 45, p.2) Dr. Blume concluded by rating claimant as follows and making the following statement concerning causal connection. My evaluation of the left shoulder impairment, the percentage calculated in the AMA book "Guides to Evaluation of Permanent Impairment", is as follows. Forward elevation - 65 degrees - 9%; Backward elevation - 30 degrees - impairment is 4%; abduction - 20 degrees 14% impairment; adduction - 55 degrees - 3% impairment; external outward rotation - 25 degrees - 10% impairment; internal rotation - 20 degrees - 3% impairment. This is a total of 43% to the left upper extremity. Therefore, it is my opinion within SACHAU V. FARMLAND FOODS PAGE 8 reasonable medical probability that the patient has a permanent partial impairment of the left upper extremity of 43% which is a 26% permanent partial impairment to the body as a whole as a result of her work activities at Farmland Foods. (Ex. 45, p. 2) It is also noted that a Preliminary Notification of Disability Claim was completed on September 21, 1984, and signed by LeRoy Gerken, personnel supervisor for employer, which certifies that (1) claimant left work on March 6, 1984, for carpal tunnel syndrome and now has bursitis in her left shoulder and (2) that the disability was caused while on duty by repetitive motion (Ex. 51). The absence record of claimant, which was prepared by Wiese, shows that claimant only lost three days of work specifically due to the left shoulder pain and that these three days were August 27-29, 1986. The record further shows that claimant lost no time from work after August 29, 1986, until the day of the hearing on September 25, 1987 (Ex. 59). Claimant has not seen a doctor for treatment for her left shoulder since she last saw Dr. Crabb on September 15, 1986 (Ex. 39). Claimant testified that she was able to work and perform her job but it required regular pain medication in order to endure the pain. APPLICABLE LAW AND ANALYSIS An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(l). Claimant has the burden of proving by a preponderance of the evidence that she received an injury on March 6, 1984, which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756, 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). Claimant did sustain the burden of proof by a preponderance of the evidence that she sustained an injury on March 6, 1984. Even though claimant had two previous episodes with her left shoulder, which were reported as traumatic injuries, specifically when she pulled a muscle while lifting a chamber lid on April 10, 1980, and when she hit her left shoulder on the guard rail on July 20, 1983; nevertheless, the doctors felt that claimant suffered from long term left shoulder bursitis and tenosynovitis aggravated by the repetitive nature of her work. Dr. Flood noted and reported on April 30, 1980, that claimant had bursitis in both shoulders (Ex. 2, p. 1 & Ex. 4). SACHAU V. FARMLAND FOODS PAGE 9 The health nurse, Wiese, apparently suspected a work connected problem. She noted on March 6, 1984, when claimant reported left shoulder complaints again, that claimant was doing the same job and had the same problem as in July of 1983. The pains never did get better (Ex. 47). One specialist, Dr. Cooper, a neurologist, said that claimant suffered from this condition intermittently for years and that it had been described as bursitis and tenosynovitis (Ex. 20). Dr. Cooper said he suspected that the shoulder problem was aggravated by certain types of lifting procedures which claimant was required to do at work (Ex. 21). Dr. Crabb, the primary treating physician and a company doctor also, said that the shoulder injury was more than likely related to her work (Ex. 28). On September 24, 1984, Dr. Crabb unequivocally told the insurance carrier that the shoulder bursitis was "indeed work related" (Ex. 32). Another specialist, Dr. Hamsa, an orthopedic surgeon who was retained by the company doctor, stated that the problem began several years ago with distress in the left shoulder aggravated and produced by her employment which required her to use the upper extremities. He recommended employment that did not require repetitive use of the shoulders (Ex. 43). Dr. Blume, another neurosurgeon, stated that claimant's left shoulder problem was the result of her work activities at Farmland (Ex. 45). Therefore, it is determined that claimant did sustain a cumulative type of injury and first lost time from work on account of the cumulative injury on March 6, 1984. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). In fact, this case is quite similar to the McKeever case in that claimant in both cases had two earlier traumatic episodes and then continued to have small traumas from continued repetitive work motions which later culminated in claimant being unable to work. In this case, claimant could not work due to both the carpal tunnel syndrome and her left shoulder; however, her left shoulder was one of the reasons she was not able to work on March 6, 1984. The parties agreed that claimant is entitled to temporary disability benefits for both the carpal tunnel surgery and the left shoulder injury from March 7, 1984 to October 29, 1984. The parties also agreed that the carpal tunnel syndrome did not result in any permanent disability. There is no evidence in the record that the carpal tunnel syndrome was the cause of any permanent impairment or disability. No impairment ratings were issued for the carpal tunnel condition. The physicians state that claimant had a good result. Claimant testified that she had a good result from the carpal tunnel surgery. Claimant has sustained the burden of proof by a preponderance of the evidence that the left shoulder injury was the cause of some permanent impairment and disability. Dr. Hamsa, the orthopedic surgeon, stated that claimant had difficulty with abduction and that the extremes of external rotation were only about 75 percent of normal. He stated that claimant would have a problem raising her arm over her head (Ex. 42, p. 1). Later on in his letter to defense counsel, he stated that claimant had normal active and passive range of motion and SACHAU V. FARMLAND FOODS PAGE 10 that her only impairment or disability seems to be the chronicity of symptoms. He said that claimant had a normal physical examination and indicated there was no loss of motion, evidence of atrophy or x-ray change. He recommended work without repetitive motions in order for her symptoms to improve (Ex. 43, p. 2). Dr. Crabb awarded a permanent functional impairment rating of 26 percent to the left upper extremity which converts to 16 percent to the body as a whole. However, as defendants' counsel detected and pointed out, he made an error in his calculations. The correct application of his data would result in a permanent functional impairment rating of 23 percent of the left upper extremity and 14 percent of the body as a whole (Ex. 38). Dr. Blume, claimant's evaluator, arrived at a permanent functional impairment rating of 43 percent of the left upper extremity, which converts to 26 percent of the body as a whole. Again, defendants' counsel correctly pointed out that Dr. Blume erroneously calculated his basic data and that the correct impairment is 37 1/2 percent of the right upper extremity and 22 percent of the body as a whole (Ex. 45, p. 2). No apportionment of loss of earning capacity between claimant's preexisting condition, if in fact there was one, and the work injury is made because an apportionment is proper only when there is some ascertainable disability which existed independently before the injury occurred. Varied Industries v. Sumner, 353 N.W.2d 407 (Iowa 1984). Even though claimant had complaints with her left shoulder prior to March 6, 1984, it was not demonstrated that claimant had any degree of impairment or disability prior to that date. Furthermore, there was no showing that the chronic bursitis and tenosynovitis was attributable to any cause outside of her current employment such as employment for another employer; caused by her personal activities or caused by a condition unrelated to her employment. Employer has either eliminated or certainly reduced the loss of actual earnings by providing claimant with employment which she can do within her limitations. Claimant should also be commended for continuing to work making use of her upper extremities in a.repetitive manner when it takes a great deal of effort and causes her pain. She testified that the pain and discomfort requires her to take pain medications in order to perform her job. As claimant's counsel pointed out, claimant should not be penalized for making an extraordinary effort to work under difficult conditions. Cook v. Iowa Meats, file nos. 727578 and 771086, appeal decision May 18, 1987. The right of a worker to receive compensation for injuries sustained which arose out of and in the course of employment is statutory. The statute conferring this right can also fix the amount of compensation to be paid for different specific injuries, and the employee is not entitled to compensation except as provided by the statute. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). If a claimant contends he has industrial disability he has the burden of proving his injury results in an ailment extending beyond the scheduled loss. Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964). There is no real evidence that the injury to the left SACHAU V. FARMLAND FOODS PAGE 11 shoulder is limited to the scheduled member of the arm alone. The evidence variously talks about the shoulder, the shoulder girdle, the shoulder girdle muscles, the trapezius, deltoids and rotator cuff muscles as well as the cervical muscles of the neck. Even though one of the issues to be resolved in this case is whether claimant sustained a scheduled member injury or an industrial disability, it is noted that defendants have not argued or contended that the injury is a scheduled member injury but have proceeded on the basis that it is an industrial disability. Therefore, it is determined that claimant has sustained an industrial disability to the left shoulder. Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986); Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 (1949); Nazarenus v. Oscar Mayer & Co., II Iowa Industrial Commissioner Report 281 ( Appeal Decision 1982); Godwin v. Hicklin GM Power, II Iowa Industrial Commissioner Report 170 (1981). As a claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional disability is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 257 (1963). Industrial disability can be the same as, less than or greater than functional impairment. Lawyer & Higgs, Iowa Workers' Compensation--Law & Practice, section 3-5, p. 116, 1987 supplement, p. 20. In this case, the industrial disability is less than the highest rating of permanent functional impairment by Dr. Blume for the reason that claimant has been able to continue to work for three years with only a minimal loss of time from work due to the left shoulder. Employer has provided work that claimant can do within her limitations. McSpadden v. Big Ben Coal Co., 228 N.w.2d 181 (Iowa 1980). Without any loss of pay. Blacksmith v. All-American, 290 N.W.2d 348 (Iowa 1980). In those cases in which the employee has returned to work for the employer for whom he was working at the time of injury, the argument is made that no industrial disability has been suffered. In most cases, some award will be made. (Lawyer & Higgs, section 13-5, p. 117) A showing that claimant had no loss of actual earnings as a result of a work injury does not preclude a finding of industrial disability. Michael v. Harrison Co., Thirty-fourth Biennial Report of the Industrial Commissioner 218, 220 (Appeal Decision 1979). A loss of earning capacity can occur without a loss in actual earnings. Larson, Workmen's Compensation Law, section SACHAU V. FARMLAND FOODS PAGE 12 57.21(c), p. 10-101 and section 51.21(d), pp. 10-113 and 10-125. The basic element to be determined however, is a reduction in the value of general earning capacity of the person rather than the loss of actual wages or earnings in a specific occupation. Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa appeals 1977), 100 ALR third 143; 2 Larson, sections 57.21 and 57.31. Claimant testified that it is difficult to work with constant pain in her shoulder all of the time. She has been looking for other employment. Even Dr. Hamsa, who did not find any functional impairment, granted that claimant would have difficulty in lifting her arm above her head. He added that she only had approximately 75 percent of normal external rotation. Dr. Crabb's data correctly computed resulted in a 14 percent functional impairment of the body as a whole. Dr. Blume's data, correctly calculated, results in a 22 percent impairment of the body as whole. If claimant is no longer able to perform production line work, which requires repetitive motions of her upper extremities, then, many of the highest paying and easiest to obtain jobs are foreclosed to her. Michael, Thirty-fourth Biennial Report of the Industrial Commissioner 21-8, 219; Rohrberg v. Griffin Pipe Products Co., I Iowa Industrial Commissioner Report 282 (1981). Whether claimant can continue to perform repetitive motion work in the meat processing industry until age 65 or an even earlier retirement date is questionable. Claimant has no formal education beyond the tenth grade of high SACHAU V. FARMLAND FOODS PAGE 13 school. To change careers, acquire new skills or to obtain additional education would require substantial rehabilitation for a women age 41 with a family that has become dependant on her income. Claimant was 37 years old at the time of the injury and 41 years old at the time of the hearing. She is, therefore, in the middle part of her working life. her loss of future earnings from employment, due to her disability, is more serious than would be the case for a younger or older individual. Becke v. Turner-Busch Inc., Thirty-fourth Biennial Report of the Industrial Commissioner 34 (1979); Walton v. B and H Tank Corp., II Iowa Industrial Commissioner Report 426 (1981). The basis for the determination of industrial disability in this case is based however, on the degree of impairment of the left shoulder, primarily. In conclusion, based on all of the foregoing considerations and all of the factors that are used to evaluate industrial disability, it. is determined that claimant has sustained an industrial disability of 15 percent of the body as a whole. Claimant is entitled to the payment of medical expenses. No decision is made with respect to an Iowa Code section 85.39 examination. Claimant's action is timely brought with respect to Iowa Code section 85.26. The injury date is determined to be March 6, 1984, which is the date when she first lost work due to the left shoulder injury. The original notice and petition was served on both defendants and received in the industrial commissioner's office on July 11, 1985. Therefore, the petition is timely. Claimant's healing period entitlement is established by the parties' pretrial stipulation. FINDINGS OF FACT Wherefore, based upon the evidence presented the following findings of fact are made. That claimant started to work for employer in March of 1977. That claimant developed bursitis and tenosynovitis in her left shoulder in approximately April of 1980. That Dr. Cooper, a neurologist, and Dr. Hamsa, a neurosurgeon, determined that claimant's left shoulder bursitis and tenosynovitis was long standing and was aggravated by the repetitive nature of her work. That claimant left work for treatment of this injury along with a carpal tunnel syndrome injury on March 6, 1984. That claimant sustained an injury to the body as a whole rather than to the left arm. That Dr. Crabb stated that claimant's left shoulder injury was caused by work and awarded a 14 percent permanent functional impairment rating of the body as a whole. That Dr. Blume stated that claimant's left shoulder injury SACHAU V. FARMLAND FOODS PAGE 14 was a result of her work at Farmland and awarded a 22 percent permanent functional impairment rating of the body as a whole. That the date of injury is March 6, 1984, and that the original notice and petition was filed and served on defendants on July 11, 1985. CONCLUSIONS OF LAW WHEREFORE, based upon the evidence presented and the foregoing principles of law the following conclusions of law are made. That claimant sustained an injury on March 6, 1984, to her left shoulder, which arose out of and in the course of her employment with employer. That the injury was the cause of both temporary and permanent disability. That claimant is entitled to 75 weeks of permanent partial disability based upon an industrial disability of 15 percent to the body as a whole. That claimant is entitled to reasonable medical benefits, except no determination is made with respect to an Iowa Code section 85.39 examination. That this action was timely brought pursuant to Iowa Code section 85.26. ORDER THEREFORE, IT IS ORDERED: That defendants pay to claimant thirty-three point seven one four (33.714) weeks of healing period benefits for the period from March 7, 1984 to October 29, 1984 at the rate of two hundred fifty-five and 92/100 dollars ($255.92) per week in the total amount of eight thousand six hundred twenty-eight and 09/100 dollars ($8,628.09) as stipulated by the parties. That defendants pay to claimant seventy-five (75) weeks of permanent partial disability at the rate of two hundred fifty-five and 92/100 dollars ($255.92) per week in the total amount of nineteen thousand one hundred ninety-four dollars ($19,194) commencing on October 29, 1984. That defendants are entitled to a credit for thirty-six point four two nine (36.429) weeks of workers' compensation benefits paid prior to hearing as stipulated. That these amounts are to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That defendants pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. That defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. SACHAU V. FARMLAND FOODS PAGE 15 Signed and filed this 14th day of October, 1988. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Harry Smith Attorney-at-Law P.O. Box 1194 Sioux City, Iowa 51102 Judith Ann Higgs Attorney-at-Law 200 Home Federal Bldg P.O. Box 3086 Sioux City, Iowa 51102 1106; 1402.20; 1402.30; 1402.40; 1803; 2209 Filed October 14, 1988 WALTER R. McMANUS, JR. BEFORE THE IOWA INDUSTRIAL COMMISSIONER DORENE K. SACHAU Claimant, File No. 759191 vs. A R B I T R A T I O N FARMLAND FOODS, D E C I S I O N Employer, and AETNA CASUALTY & SURETY CO., Insurance Carrier, Defendants. 1106; 1402.20; 1402.30; 1402.40; 1803; 2209 It was determined that claimant sustained an injury which arose out of and in the course of employment with employer of a cumulative nature due to repetitive work on the cry-o-vac machine. Claimant awarded 15 percent industrial disability based on impairment ratings of 14 and 22 percent. Claimant was still performing one of her old jobs for employer at the time of hearing but was looking for other work on the advice of physicians.