BEFORE THE IOWA INDUSTRIAL COMMISSIONER KAREN KISTLER, Claimant, File No. 764556 VS. A R B I T R A T I 0 N MONTGOMERY WARD, D E C I S I 0 N Employer, and AETNA CASUALTY & SURETY, Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Karen Kistler, claimant, against Montgomery Ward, employer, and Aetna Casualty & Surety Company, insurance carrier, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained May 5, 1984. This matter came on for hearing before the undersigned deputy industrial commissioner October 1, 1987. The record was considered fully submitted at the close of the hearing. The record in this case consists of the testimony of the claimant and Larry Kistler, her husband; claimant's exhibits 1 through 9, inclusive, and defendants' exhibit A. ISSUES Pursuant to prehearing report and order approved October 1, 1987, the issues which remain for decision are: 1. Whether the claimant's work injury is the cause of any permanent disability, and, if so, the extent thereof; 2. Whether claimant is entitled to additional temporary total disability/healing period benefits for the period from December 31, 1985 to and including May 21, 1986; and 3. The appropriateness of certain medical expenses under Iowa Code section 85.27. FACTS PRESENTED Claimant testified she was working for defendant employer Montgomery Ward on May 5, 1984 as a sales clerk and sustained an injury which arose out of and in the course of employment when she fell down approximately six steps while carrying a box of jeans weighing about 60 pounds. She recalled she landed on the KISTLER V. MONTGOMERY WARD Page 2 left side of her back and felt a burning sensation in her neck. Claimant was sent to the mall's clinic and, after x-rays, was sent home. Her symptoms did not dissipate but, she felt, worsened as the pain began radiating down her back and arm and she began to have headaches. After a few days off,work, claimant was directed to see her own doctor who treated her with medications. Even though claimant returned to work June 11, 1984, she did not feel her family doctor was providing her relief from her symptoms and, therefore, on her own initiative, went to see David W. Seitz, D.O. Claimant testified she was off work again August 5, 1984 and began treating with Dr. Seitz on August 7. Claimant explained that after therapy at River Rehabilitation on referral from Dr. Seitz she was released to return to work full time September 25, 1984. Claimant stated she began to feel better but, on December 21, 1984, while on her way to see Dr. Seitz, fell on the ice and her left leg ended up under her buttocks causing pain. Claimant remained off work again beginning December 28, 1984 through February 23, 1985. She explained that during this period, she was moving some furniture at home which set off an increase in the pain she was feeling in her back. Claimant continued treating with Dr. Seitz after her return to work and was referred by him to Charles F. Andrews, D.O., in April 1985. Claimant testified that by December 1985, she was feeling more and more pain and could not perform her job. She remained off work again from December 31, 1985 through May 21, 1986, when she was released to return to work by Dr. Andrews. Claimant explained her doctors wanted her to remain off for a full year but, for financial reasons, she needed to return to work. Claimant stated that in November 1986, she began treating with Dennis P. Lopez, D.C., and was still under his care at the time of the hearing. She did not return to see Dr. Andrews after she was released to return to work as she felt he had done as much as he could to help her. Claimant also acknowledged she saw Richard R. Ripperger, M.D., on February 18, 1985 and again on March 5, 1985, at the request of defendants. Claimant did not wish to continue treating with Dr. Ripperger because of his recommendation that she take cortisone shots and because of his diagnosis of obesity. She maintained Dr. Ripperger told her after the second visit she did not have to return for any further care. Claimant admitted she was advised by defendants that they would no longer pay for medical care if she did not return to see Dr. Ripperger. Claimant testified that since she began seeing Dr. Lopez she is better. She perceives some burning in her neck/shoulders which goes into pain in her lower back on occasion. Claimant explained she has difficulty remaining on her feet all day but admitted that since she returned to work she is able to perform all of her responsibilities. She explained, however, that in February 1987, she transferred into her employer's fine jewelry department which does not require her to handle stock, freight, or move merchandise. Claimant stated she acquired her GED last year and attempted to attend barber college but did not feel she could handle the standing that would be required. Barry Kistler testified claimant has not been active since her injury and, in essence, has become a "couch potato." He KISTLER V. MONTGOMERY WARD Page 3 explained he feels he has to listen to claimant's complaints of pain all the time. David 0. Seitz, D.O., testified by deposition that his initial contact with claimant was on August 7, 1984, when she appeared at his office without referral. Initially, Dr. Seitz noted claimant's only complaints involved the thoracic and cervical area but, after beginning treatment, she complained of some discomfort in the low back radiating into the upper thigh. Claimant was treated with a program of osteopathic manipulation treatments, nonsteriodial anti-inflammatory, analgesics and muscle relaxants. Dr. Seitz notes that by the end of 1984 it was elected to keep claimant off work for two or three months. Of claimant's fall in the driveway at home on December 21, 1984, Dr. Seitz noted that claimant's pain pattern was essentially unchanged; and, of her actions in moving furniture on January 10, 1985, he noted that that seemed to aggravate the pain in the low back and lumbar spine. Dr. Seitz acknowledges claimant was referred to Dr. Andrews April 9, 1985, when no improvement was noted. After the referral, claimant was not seen again until July 30, 1985, when she wanted a release to return to work with a ten pound weight restriction and then not again until October 28, 1985, when he recommended to her that she remain off work for one year and, if the pain persisted, she would need to consider changing jobs. Dr. Seitz testified he last saw claimant on March 3, 1986, when he came into her office stating she had no significant pain, wanted to return to school part time and needed to return to work. He explained he consulted with Dr. Andrews who opined that returning to work would not be a wise thing for claimant to do and that she should, in fact, continue to remain off for the period of a year and reevaluate it at that time. Charles F. Andrews, D.O., first saw claimant April 18, 1985, when she was referred for manipulative therapy treatments. Claimant was seen regularly through 1985 and complained to Dr. Andrews on February 4, 1986, of three weeks of recurring back pain. On February 11, 1986, Dr. Andrews reported that claimant stated her back was better but by April 1, 1986, had begun to have pain into her left leg. Claimant was last seen by Dr. Andrews May 15, 1986 when claimant reported that she had had some occasional pains but was going to go back to work. On June 20, 1986, Dr. Andrews concludes: "My impression is that Karen has a chronic reccurent [sic] low back strain which should improve over a period of time with treatments, physical conditioning, weight loss and to avoid lifting and pushing while having difficulty." (Claimant's Exhibit 5) Claimant was seen by Richard R. Ripperger, M.D., on February 18, 1985, whose impression, after examination, was low back strain without sciatica. Dr. Ripperger's notes reflect a poor diagnosis because of obesity and very poor conditioning. Claimant was seen again March 5, 1985, at which time left greater trochanteric bursitis was noted and an injection of cortisone into the bursa of this region was recommended. At this time, Dr. Ripperger noted he had no further diagnostic or therapeutic measure to recommend and on May 6, 1985, he opined "On the basis of her clinical examination, x-rays and CT scan, I would rate the percent of permanent physical impairment and loss of physical function to be zero.O (Cl. Ex. 4) KISTLER V. MONTGOMERY WARD Page 4 Dennis P. Lopez, D.C., reports that claimant has been treated from November 24, 1986 to the present with specific chiropractic manipulations; lumbar intersegmental distraction or specific long lever distraction to specific lumbar motor units. At the time of his report on June 24, 1987, Dr. Lopez opines that claimant has reached maximum medical rehabilitation and that claimant has sustained a five percent impairment of the "whole man." APPLICABLE LAW An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(l). The claimant has the burden of proving by a preponderance of the evidence that the injury of May 5, 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. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). 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). Iowa Code section 85.27 states, in part: The employer, for all injuries compensable under this chapter or chapter 85A, shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies therefor and shall allow reasonably necessary transportation expenses incurred for such services. The employer shall also furnish reasonable and necessary crutches, artificial members and appliances but shall not be required to furnish more than one set of permanent prosthetic devices. Iowa Code section 85.33(l) states, in part: Except as provided in subsection 2 of this section, the employer shall pay to an employee for injury producing temporary total disability weekly compensation benefits, as KISTLER V. MONTGOMERY WARD Page 5 provided in section 85.32, until the employee has returned to work or is medically capable of returning to employment substantially similar to the employment in which the employee was engaged at the time of injury, whichever occurs first. ANALYSIS Of first concern is whether or not claimant has sustained any disability as a result of her fall on May 5, 1984. A disability may be either temporary or permanent. In the case of temporary disability, the claimant must establish that the work injury was the cause of absence from work and lost earnings during a period of recovery from the injury. Generally, a claim of permanent disability invokes an initial determination of whether the work injury was a cause of permanent physical impairment or permanent limitation in work activity. By the very meaning of the phrase, a person with a "permanent disability" can never return to the same physical condition he or she had prior to the injury. Armstrong Tire & Rubber Company v. Kubli, 312 N.W.2d 60, 65 (Iowa 1981), citing 2A Larson, The Law of Workmen's Compensation, section 67.12 (1981). With the exception of Dr. Lopez who began treating claimant in November 1986, no medical practitioner who treated or evaluated claimant provides any impairment rating. Medical records of Dr. Oshann, who saw claimant immediately after her injury, were not submitted in evidence. Dr. Seitz, who saw claimant from August 1984 until March 1986, renders no opinion on any permanent impairment. Dr. Andrews' prognosis was that claimant's condition would improve over a period of time. Richard Ripperger, M.D., an orthopedic surgeon, rates claimant's permanent impairment as zero based on AMA Guidelines. Both Dr. Andrews and Dr. Ripperger opine that long-term result with respect to claimant's back would hinge on proper conditioning and weight loss. These physicians saw claimant nearer to the time of her accident. By the time Dr. Lopez began treating claimant, a significant amount of time had lapsed since her accident. Further, the report of Dr. Lopez, found at claimant's exhibit 6, does not refer to any causal connection between the impairment rating given and the claimant's accident of May 5, 1984. Although claimant has now changed positions with Montgomery Ward so that she no longer is required to handle stock, freight or move merchandise, she acknowledged that when she returned to work in May 1986, she was able to perform all of the aspects of her job as a sales clerk including handling stock, freight, and moving merchandise. When Dr. Andrews released claimant on May 15, 1986, he does not note she was under any restrictions other than to avoid lifting and pushing when having difficulty. This appears to to the undersigned to be more in the nature of practical advice rather than strict medical restrictions. It is not believed claimant has met her burden of proof that she has sustained a permanent disability. Rather, the greater weight of evidence shows claimant has sustained neither a permanent impairment nor a permanent disability. The record fails to establish claimant can never return to the condition she was once in. At most, claimant has established a temporary disability for which she is entitled to be compensated. On the advice of her KISTLER V. MONTGOMERY WARD Page 6 physicians, claimant remained off work from May 5, 1984 through June 10, 1984, August 5, 1984 through September 25, 1984, December 28, 1984 through February 23, 1985, and December 31, 1985 through May 21, 1986. As a result of her injury on May 5, 1984, claimant was unable to work during these periods and is therefore entitled to temporary total disability benefits pursuant to Iowa Code section 85.33(l) during each of these periods of time. Claimant clearly did not seek the permission of defendants to see Dr. Lopez. She acknowledged by her testimony that she was advised by defendants that Dr. Ripperger had been designated as the treating physician. Claimant did not seek alternate medical care pursuant to the provisions allowed under Iowa Code section 85.27. Therefore, her request for payment for the medical bills incurred with Dr. Lopez must be and is hereby denied. Evidence establishes that defendants have paid the medical bills incurred with Dr. Seitz and defendants therefore have acquiesced in that medical care. Since Dr. Seitz referred claimant to Dr. Andrews and defendants continued to pay the medical expenses incurred by his care, defendants shall be liable for all costs incurred as a result of his care including $120.42 in medication. FINDINGS OF FACT Wherefore, based on the evidence presented, the following facts are found: KISTLER V. MONTGOMERY WARD Page 7 1. Claimant sustained an injury arising out of and in the course of her employment on May 5, 1984 when she fell while carrying merchandise. 2. Claimant sought treatment first with her own family doctor, then with Dr. David Seitz, who referred her to Dr. Charles Andrews. 3. Claimant was unable to work as a result of her injury for the periods from May 5, 1984 through June 10, 1984, August 5, 1984 through September 25, 1984, December 28, 1984 through February 23, 1985, and December 31, 1985 through May 21, 1986. 4. When claimant returned to work in May 1986, she was able to perform all aspects of the job she held at the time of her injury. 5. Neither Dr. Seitz nor Dr. Andrews provide any permanent impairment rating. 6. Dr. Ripperger, who saw claimant on two occasions, rates claimant as zero percent impaired. 7. Dr. Lopez, chiropractor, rates claimant five percent impaired but gives no indication of any causal connection in his report. 8. Claimant is currently under no medical restrictions other than to avoid lifting and pushing when having difficulty with her back. 9. Claimant did not seek permission to change medical care to treat with Dr. Lopez. 10. Claimant has not suffered any permanent impairment to her back as a result of her fall. CONCLUSIONS OF LAW Wherefore, based on the principles of law previously stated, the following conclusions of law are made. 1. Claimant has established her entitlement to temporary total disability benefits for the period from December 31, 1985 to and including May 21, 1986. 2. Claimant has not established she sustained any permanent disability as a result of her injury. 3. Claimant is entitled to payment for medical expenses incurred with Dr. Charles Andrews. 4. Claimant has not established entitlement to payment for medical expenses incurred with Dr. Dennis Lopez. ORDER THEREFORE, IT IS ORDERED: KISTLER V. MONTGOMERY WARD Page 8 Defendants are to pay unto claimant twenty point two hundred eight-six (20.286) weeks of temporary total disability benefits at the stipulated rate of eighty-six and 30/100 dollars ($86.30) per week. Defendants are to pay all disputed medical expenses incurred with Dr. Andrews. Temporary total disability benefits shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. A claim activity report shall be filed upon payment of this award. Costs of this action are assessed against defendants pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 15th day of January, 1988. DEBORAH A. DUBIK DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Randy J. Hohenadel Attorney at Law 617 Brady Street Davenport, Iowa 52803 Mr. Larry L. Shepler Attorney at Law 111 East Third Street 600 Union Arcade Building Davenport, Iowa 52801-1550 1402.4; 1402.6 Filed 1-15-88 Deborah A. Dubik BEFORE THE IOWA INDUSTRIAL COMMISSIONER KAREN KISTLER, Claimant, File No. 764556 VS. A R B I T R A T I 0 N MONTGOMERY WARD, D E C I S I 0 N Employer, and AETNA CASUALTY & SURETY, Insurance Carrier, Defendants. 1402.4 Claimant was injured in a fall at work. She established her entitlement to temporary total disability benefits but failed to establish any permanent impairment or permanent limitation in work activity which would entitle her to an award of permanent partial disability. 1402.6 Claimant failed to establish entitlement to payment for medical expenses incurred with unauthorized physician where record did not establish claimant voiced her objections to the care provided or that the unauthorized treatment was reasonable, necessary or improved claimant's condition. BEFORE THE IOWA INDUSTRIAL COMMISSIONER PAUL A. HIKE,.JR., Claimant, vs. File No. 764571 776652 IBP, INC., A R B I T R A T I O N Employer, Self-Insured, D E C I S I O N and WEBSTER CONSTRUCTION CO., F I L E D Employer, NOV 3 1989 and INDUSTRIAL SERVICES AETNA CASUALTY & SURETY COMPANY, Insurance Carrier, Defendants. STATEMENT OF THE CASE These are proceedings in arbitration brought by claimant Paul A. Hike, Jr., against self-insured defendant employer IBP, Inc., (764571), defendant employer Webster Construction Company, and its insurance carrier Aetna Casualty & Surety Company (776652) to recover benefits under the Iowa Workers' Compensation Act as the result of injuries allegedly sustained on May 10, 1984 (764571) and October 3, 1984 (776652). Each alleged injury was to the right shoulder. These matters came on for hearing before Deputy Industrial Commissioner Garry Woodward in Storm Lake, Iowa, on April 5, 1988. The matter was considered fully submitted at the close of hearing, although all parties subsequently filed briefs. The record in this proceeding consists of claimant's exhibits 1 through 6, IBP exhibits 1 through 24 (the record is a little unclear, but it appears that exhibit 23 was admitted for the limited purpose of impeachment), Webster Construction exhibits A through I, all inclusive, and the testimony of claimant, Lisa Brockway and Scott Demers. In addition, Deputy Woodward took official notice of the agency file in both cases. After the record was closed, Deputy Woodward discontinued his employment with the Industrial Commissioner. By Order of the Industrial Commissioner entered July 22, 1988, jurisdiction of these matters for the purpose of preparing and filing a proposed agency decision was transferred to the undersigned. ISSUES Pursuant to the prehearing report submitted by the parties (but apparently not approved by the deputy at hearing or later) in case number 764571, the parties have stipulated: That an employment relationship existed between claimant and employer at the time of the alleged injury; that claimant sustained an injury on May 10, 1984, arising out of and in the course of that employment; that the injury caused temporary disability during a period of recovery; that the fees charged for medical services or supplies are fair and reasonable; that defendant does not seek credit for payments under Iowa Code section 85.38(2); that defendant paid claimant 10 2/7 weeks of compensation at the rate of $186.85 prior to hearing. The following issues in case number 764571 are presented for determination: Whether the work injury caused permanent disability; the extent of claimant's entitlement to compensation for healing period and permanent disability; whether, if claimant's injury is found to have caused permanent disability, the injury is a scheduled member disability or an industrial disability to the body as a whole; the commencement date for permanent partial disability, if awarded; the appropriate rate of weekly compensation; the extent of claimant's entitlement to medical benefits; taxation of costs. Defendant IBP also asserted as an affirmative defense Iowa Code sections 85.39 and 85.27 as to authorization of medical expenses. However, the undersigned is of the view that the burden of proof of entitlement on these issues remains with claimant. Pursuant to the prehearing report submitted by the parties (but apparently not approved by the deputy) in case number 776652, the parties have stipulated: That an employment relationship existed between claimant and employer at the time of the alleged injury; that the appropriate rate of weekly compensation is $174.78 per week; that affirmative defenses are not applicable; that the fees charged for medical services or supplies are fair and reasonable and incurred for reasonable and necessary treatment; that defendants do not seek credit under Iowa Code section 85.38(2); that defendants paid claimant one day of compensation at the stipulated rate prior to hearing. The following issues in case number 776652 are presented for determination: Whether claimant sustained an injury on October 3, 1984, arising out of and in the course of his stipulated employment; whether the alleged injury caused temporary or permanent disability and the extent thereof; whether the injury, if found to have caused permanent disability, is an industrial disability or a scheduled member disability; the commencement date for permanent disability, if awarded; the extent of claimant's entitlement to medical benefits; taxation of costs. REVIEW OF THE EVIDENCE Claimant gave extensive testimony through his appearance as a witness and the introduction of his deposition taken October 26, 1987. Claimant's credibility was attacked through cross-examination and in the brief submitted by defendant IBP. Because this case was transferred to a deputy industrial commissioner other than the deputy who heard the case, claimant's demeanor cannot be used as a factor in evaluating his credibility. Rather, only errors or inconsistencies in his testimony or specific impeachable facts, such as conviction for a crime such as perjury, are valid indices of claimant's credibility. There are examples of prior inconsistent statements in the record (for example, at least two physicians report claimant's version of how this employment relationship came to an end as inconsistent with the undisputed trial testimony that he was discharged for absenteeism; however, even there, claimant also indicated in his testimony that he believed he had actually been discharged because of his injury). Claimant has made errors or misstatements of fact. However, the only incident that truly troubles the writer is that claimant knowingly failed to notify the Department of Human Services of income at a time that he was receiving welfare benefits. On the other hand, claimant forthrightly admitted to this in his testimony, even though he was presumably aware that this conduct is arguably criminal. Nonetheless, a review of claimant's testimony as a whole is consistent with the documentary evidence in the case and his testimony as to the most salient issues is internally consistent and hangs together well as a unified whole. On balance, the undersigned finds insufficient reason to discount claimant's testimony on the basis of credibility. Claimant and IBP have stipulated that claimant sustained an injury on May 10, 1984, arising out of and in the course of his employment. Claimant described his injury as somewhat cumulative in nature, but culminating in a specific incident. He testified that before May 10 his shoulder had "started popping and swelling up all the time and bothering me" (transcript, page 13); however, on May 10 he suffered a much worse incident while throwing a pork belly to the work station above him. Although claimant was supposed to curl pork bellies that still retained ribs and place them on a table next to him, claimant apparently was not aware of this preferred procedure and commonly threw such bellies back to the work station above him. The videotape introduced as IBP exhibit 24 shows an individual working at a conveyor belt at approximately waist height. To his immediate left is a sloped ramp or chute descending from a higher conveyor belt, perhaps slightly over the worker's head in height. The job entails using a meat hook and the other hand to maneuver pork bellies into a proper position to be cut by an immediately adjacent saw or blade. Claimant described using the shadow cast by a string as a guide for positioning the pork bellies. On the videotape, occasionally pork bellies would bunch up or get hung up on the chute; this required additional. maneuvering by the worker. Although the film was of approximately 10 minutes' duration (it was not timed), the worker did not appear to reject any pork bellies while on camera. However, there were several pork bellies already on a table to his immediate right, presumably for pork bellies containing ribs or abscesses (claimant's job involved rejecting any such bellies); at one point when there was a brief gap in the line, the worker reached and took one of those bellies to place back into the line. IBP nurse's notes of the date of injury show that claimant complained of a right shoulder injury: Turns Fat Bellies--Throws belly up it shoulder cracked. Unable to extend arm. This report is consistent with claimant's testimony. Claimant indicated that he went to the first aid office and after a brief examination by the nurse was referred to the local hospital. Claimant first saw A. Ames, M.D. Emergency room notes by Dr. Ames report acute strain of the right shoulder with full motion, although pain. Claimant had good strength and no numbness of the hands or wrist. Claimant then visited the Buena Vista Clinic several times over the next few days. Records of the clinic show that claimant was taken off work immediately. Claimant was returned to light work May 21, 1984. He took work in the laundry room which he did with his left arm. He continued in that position until later given an August 13, 1984 unrestricted return to work by John J. Dougherty, M.D. Claimant returned to work as a floor janitor and helped train another employee until discharged September 17, 1984, after an incident of absenteeism. Claimant was given conservative treatment by W. Erps, M.D., of the Buena Vista Clinic. This included physical therapy and a sling. Claimant still complained of pain on May 31, 1984, so a referral appointment was made with John J. Dougherty, M.D., for June 7. On July 26, the office made another appointment with Dr. Dougherty for July 30. Claimant was not seen again by the Buena Vista clinic or Dr. Erps until October 4, 1984. Notes at that time show that claimant was having intermittent problems with his shoulder since the injury and that the shoulder had started hurting again while claimant was working for a different company (Webster Construction) on October 2, 1984. Claimant was taken off work until October 8, 1984. Dr. Dougherty's notes of June 7, 1984 show that claimant continued to complain of pain and that he was tender over the acromioclavicular (hereafter AC) joint. Claimant's strength and grip were okay, but he was bothered by flexion and extension. Dr. Dougherty was unable to demonstrate any subluxation and found x-rays of the shoulder normal. Claimant was initially treated with medication and a shoulder immobilizer. Dr. Dougherty's initial impression was of probable strain to the rotator cuff and he reported this to Dr. Erps on June 11, 1984. Dr. Dougherty saw claimant again on June 18. He continued to complain of pain and Dr. Dougherty was "not so sure he doesn't have a little anterior subluxation compared to the other side. He does crepitate." Claimant was seen again on June 28. Although reportedly tender, he had good flexion, although showing some crepitation upon internal and external rotation. Claimant was seen again on July 12 with similar symptoms and a good range of motion. Claimant was seen again on July 30. He had some discomfort on extension and some discomfort in the rotator cuff. Dr. Dougherty was again unable to demonstrate subluxation, but continued to note that "he kind of crepitates some." When claimant was seen on August 13, 1984, he was getting along much better. He was minimally tender with no real crepitation. Strength and range of motion were okay. He was given an unrestricted return to work and released on a PRN basis. Dr. Dougherty did not see claimant again until June 30, 1987. Claimant testified that he requested the unrestricted return to work because a nurse at IBP had told him that he either had to return to work or be discharged. However, it should be noted that claimant has given multiple versions of how his employment relationship with IBP actually came to an end. In any event, claimant was discharged by IBP and almost immediately took employment with defendant Webster Construction Company. This position involved in part constructing concrete walls by the use of metal forms. Claimant testified that when he accepted this position, his shoulder was still bothering him from the IBP injury: "It was still swelling up all the time and popping out of place." (Transcript, page 22). Claimant described his alleged October 3, 1984 injury as occurring while he was carrying these forms or pans to be stacked when the shoulder joint "popped out." Claimant repeatedly testified that he had had the same experience on numerous previous occasions: Q. The injury that you had talked about in October while at Webster Construction had happened previously, too, though, hadn't it? A. Yes. Q. In fact, your shoulder had popped in the same manner many times while at IBP? A. Yes. Q. When it popped at Webster Construction Company, the pain in your shoulder wasn't any different than it was at IBP, was it? A. No. Q. Was the pain any more intense or less intense? A. No, the same. Q. When your shoulder would pop, would the pain go away once you let your arm rest for a while? A. Well, it would lighten up after a couple of days. Q. And it only popped one time at Webster Construction Company, on October 10 -- I'm sorry; October 3? A. Yeah, yeah. (Transcript, page 91, line 11 through page 92, line 8) Claimant further and repeatedly testified that his shoulder continued "popping" after employment with Webster Construction and until 1987. The only distinguishing characteristic of this particular incident is that claimant sought medical care and was off work for four days by doctor's orders. As has been seen, this was Dr. Erps. Claimant saw Dr. Beattie on February 25, 1985 with continued complaints of shoulder pain. Claimant was complaining of an inability to lift without dropping items and was not then working. Dr. Beattie found the right shoulder essentially negative with questionable bursitis. X-rays of the right shoulder by roentgenologist N. Faltas, M.D., resulted in findings of no recent fracture, dislocation or bone destruction, and of intact AC joints without evidence of separation or subluxation. Dr. Beattie prescribed pain medication and referred claimant to outpatient physical therapy following an injection of cortisone. The physical therapist reported that claimant discontinued on March 11, 1985 after having a difficult time complying with the schedule and being out of contact since March 4, 1985. Although claimant saw other physicians between 1985 and 1987, he did not make complaint of continuing shoulder problems. Claimant explained this in his testimony as resulting from his lack of medical insurance and consequent inability to stand the expense of extensive treatment to the right shoulder. As of February 2, 1987, claimant had finally acquired medical insurance coverage while employed with an enterprise known as Osh Kosh Tanning, which is not a party to this action. Claimant described seeing Dr. Wolfe, who referred him to Mark Brodersen, M.D. Dr. Wolfe noted on February 2, 1987 that claimant complained of a three-year history of right shoulder problems and that: Lately due to his factory job and the repetitive up and down motions that he makes he has noted it has flared once again and several days ago appeared to be swollen and warm to touch. This has resolved and he is still left with pain with abduction primary. Dr. Wolfe further noted that claimant was in no distress and had full range of motion; crepitus was noted with forward flexion. Claimant had no distal weakness, numbness or tingling. Claimant saw Dr. Brodersen on February 10, 1987. He again complained of right shoulder pain beginning three years ago when throwing pork bellies and he felt a pop in the shoulder. The notes revealed: 2 weeks ago at work -- started popping -- got so sore couldn't move it. Been off work since. The notes also show that claimant tried to lift a 50-pound speaker two days before and developed pain in the shoulder. Claimant had good strength and full range of motion with a negative x-ray, but a positive apprehension test. Dr. Brodersen noted on February 14, 1987 that claimant's arthrogram was positive and that he believed claimant to be a subluxer. After several more visits, Dr. Brodersen determined on surgical treatment which was performed May 7, 1987 at the Mary Greeley Medical Center in Ames, Iowa. Dr. Brodersen's notes of May 6 show that Dr. Brodersen anticipated either a tear of the labrum or more likely subluxation of the shoulder. His postoperative diagnosis: "Anterior shoulder subluxation with tear of the interior glenoid rim." The procedure was described as arthroscopy, arthrotomy, excision anterior glenoid and anterior shoulder repair. The surgery revealed that "the labrum had been torn lose with marked fraying of the glenoid labrum anteriorly. Biceps tendon was fine as was the rotator cuff tendon." Claimant was released to return to work on July 20, 1987. Claimant demonstrated the position of the scar on his body at the hearing. Of course, the undersigned was unable to view that demonstration. Claimant described the scar as at the shoulder joint and the arm, where they came together, but towards the chest. July 20, 1987 fell on a Monday. Claimant testified that the "following Monday" he began employment at a business known as Northwest Bodies as a fiberglass worker. It is unclear from the testimony, but this may have been the same date. Claimant testified as to his condition at that time: Q. Following the surgery and until you began working for Northwest Bodies, how did you get along with your shoulder? A. Between the surgery and Northwest Bodies, I couldn't do anything hardly at all. Q. Did the surgery provide you any relief from the problems that you were having before that? A. It's basically quit popping now, but I'm still having a lot of trouble with it. Q. Now, I'm talking about the time period before you started to work at Northwest Bodies, before the doctor released you. A. Yeah. Q. Okay, what -- was there any improvement that you experienced after the surgery? A. It seemed -- it felt a lot better at first. That's it. Q. Something I failed to mention with you, before you had the surgery by Dr. Brodersen, did he prescribe some physical therapy for you at the Boone County Hospital? A. Yes, he did. Q. How were you feeling -- how was your right shoulder feeling at that time you started work for Northwest Bodies? A. I thought it felt real good when I first started there. I still had a lot of limitations, so I had to really be careful what I was doing. Q. Did you experience additional problems after you started working at Northwest Bodies? A. Yeah. Q. What problems did you experience? A. It just started -- the more repetitious work that I was doing, the sorer it was starting to get again. Q. What would be the repetitious work that you mentioned? A. About the last two months that I worked there it was all hanging doors, mainly, was my main job. Q. Did this come on gradually, or was it any particular injury or anything at Northwest Bodies? A. There was no injuries there, no. It just gradually kept getting worse. Q. The records indicate that you went back to Dr. Brodersen on November 23 of 1987. A. Yes. Q. Why did you go back to him at that time? A. I was having a lot of shoulder problems again. Q. Did he make any recommendations to you at that time as far as work? A. Yes, he took me off work and put me on physical therapy. Q. Have you been off work since that date? A. Yes. Q. Are you still taking physical therapy? A. Yes, I am. (Transcript, page 37, line 24 through page 40, line 8) Claimant also testified: Q. Has Dr. Brodersen released you to return to work as of this date? A. No. Q. What problems are you experiencing with your shoulder at the present time? A. It aches constantly, and there's absolutely no power at all in it. Q. Are those problems different than the problems you were having before you went to Dr. Brodersen? A. No, the only pain that's different is I don't have the shoulder popping out of place anymore. Q. The loss of power that you described, was that true before you went to see Dr. Brodersen? A. Yes. Q. Has that been true since the injury at IBP? A. Yes, it has. (Transcript, page 41, line 2 through line 21) Claimant testified further as to the history of his shoulder after being released to return to work on July 20, 1987: Q. And it says on 11-23-87, "Paul returns in regards to his shoulder. He has been back at his job, which requires him to vigorously pound fiberglass doors into place with the palms of his hand." A. Yes. Q. "He had developed a fair amount of soreness about the right shoulder and some difficulty in fully abducting his shoulder, as well as an occasional catching sensation." So you had been working there since July and hadn't been back to the doctor since July 17, had you? A. Not until that time, no. Q. And this pounding of the fiberglass caused your shoulder to hurt again? A. It had already been hurting, yes, but this pounding of the fiberglass made it worse again. Q. Now, what did you have to pound -- why did you have to pound the fiberglass? A. You had to make sure the doors were sealed before you bolted them on, because if they weren't sealed, they'd leak. Q. So it was part of your job? A. Yes. Q. Couldn't you use a hammer? A. No. Q. You had to use your hands? A. Yep. Q. And this is part of putting these truck bodies together; isn't that right? A. Yes. Q. How long had you been doing the, you know, assembling of truck bodies? A. Since I had been there. Q. So you had been pounding these doors into place since July -- the first Monday after July 17, 1987? A. Yes. Q. And you did that on a daily basis? A. Yeah. Q. And evidently it got to the point where you could no longer pound the doors into place because it hurt? A. Yeah. Q. And it just kept getting worse and worse and worse until you had to go to the doctor again? A. Yes. Q. And at that time you applied for short-term disability? A. Yeah. (Transcript, page 121, line 2 through page 123, line 2) And as follows: Q. Now, when we did your deposition, were you working at.Northwest Bodies? A. I think so. Q. It was on October 26, 1987. Isn't that right? A. Yeah; yeah. Q. You didn't tell us.anything about having continued shoulder problems at that time, did you? A. I don't remember if I did or not. Q. Did you say that your work at Northwest Bodies was giving you difficulty? A. I don't remember if I did or not. I assume that a lot of the troubles I was having at Northwest Bodies was because I just had the surgery done, and I hadn't given it enough time for everything to heal yet. Q. You said today you cannot do engine work because you won't be able to lift heads; is that correct? A. Uh-huh (affirmative response). Q. And what do you attribute to the cause of not being able to lift heads; what caused your injury or your inability to lift heads of cars? A. Well, right at the present time, because of the surgery,.I suppose. Q. But you were back lifting -- how much does a head weigh? A. I wouldn't have any idea. Q. You lifted things at Northwest Bodies that were as heavy as a head, didn't you? A. Yeah. Q. So you were able to lift things at Northwest Bodies that were as heavy as a head but today you cannot? A. No. Q. And the only thing you did between the surgery and today is work at Northwest Bodies; isn't that right? A. Yes. (Transcript, page 124, line 21 through page 126, line 9) After Dr. Brodersen took claimant off work on November 23, 1987, claimant was again seen on December 18. He still had soreness in the shoulder and "it will occasionally go dead." Claimant had good range of motion, but some limitation in external rotation. The shoulder was stable and could not be subluxed. Claimant was at that time released to return to a light-duty job that did not involve repetitive use of his arm or lifting above shoulder level or having to push heavy objects with his shoulder. On October 12,. 1987, before claimant returned with his renewed complaints after employment at Northwest Bodies, Dr. Brodersen wrote to attorney Glenn Goodwin to note that he had last been seen in July and had a mild limitation of range of motion in external and internal rotation. Dr. Brodersen stated: It is my feeling that his shoulder problem is on the basis of the injury that he sustained while throwing pork bellies. Any subsequent injuries may have temporarily aggravated the shoulder but it is doubtful that they substantially increased the severity of the injury. At a point in time two months following his injury, he still had some mild limitation of range of motion. This impairment may continue on into the future but it is also possible that he may lose this restricted motion as he continues to work with his shoulder. I believe that if he does end up with any impairment from either the injury or surgery that it will not be very great. Dr. Brodersen wrote attorney Marlon Mormann on January 6, 1988: In regards to your recent inquiry about Paul Hike, Clinic Number 362-536-5, the following information is provided. Mr. Hike was last seen by me on 12/18/87. At that point in time, he had evidence of some mild limited motion in external rotation. On the basis of this, I would feel that he had a five percent impairment of his upper extremity or a three percent impairment of the person as a whole. You should be aware that this limited external rotation of the shoulder is expected in the post-operative period for this type of surgery. Frequently, this limited motion will slowly improve with the resumption of normal activity. It is possible that this impairment rating may decrease as time goes by. I believe that I would classify his current impairment as temporary and would be a bit reluctant to give him a permanent impairment rating until a year had elapsed from the time of his surgery. The date of his surgery, for your information, was 5/7/87. Dr. Brodersen's chart notes of March 1, 1988 reflect that claimant was not complaining of numbness, but did have night throbbing of the joint with anterior tenderness. The shoulder was stable but sore. Claimant had diminished strength of rotators, pectorals and deltoid muscles. He was referred to physical therapy and given restrictions against any overhead work or repetitive lifting. Claimant's return to work date was subsequent to the hearing date. Claimant was seen again by Dr. Dougherty on June 30, 1987. Claimant reported that his shoulder was better than it had been prior to surgery. With reference to the original injury, Dr. Dougherty noted agreement with the opinion of Dr. Wirtz that if claimant did sublux, it would probably not be on one single incident, although if he did the work at IBP repeatedly, the doctor supposed he could have stretched his tissues out. As to causal connection, Dr. Dougherty stated: With regard to whether I feel his surgery was a direct result of his injury of 5-10-84, I think that is a possibility. Going back over his records, it appeared that he could relate it to one incident of loud popping. When I saw him, I really couldn't demonstrate any significant instability. It certainly has been a long time since his initial injury and he has done a lot of things since; namely, construction work, odds and ends, working in the garden and working at the tanning company. Said it continued to bother him all that time, but apparently he was able to do it without any great problems as he really didn't [sic] see any doctors. Dr. Dougherty noted that claimant still appeared to have considerable pain from his surgery and restriction of motion. He felt it perhaps too early to determine claimant's ultimate range of motion or ultimate outcome. Claimant had not reached maximum medical improvement as of the examination. Dr. Dougherty did not have the surgical notes and was unclear as to what actually was done. Dr. Dougherty anticipated that the decreased range of motion would improve with time and declined to give a disability rating at that early stage. Claimant was also seen for evaluation by Peter D. Wirtz, M.D. He wrote to Lisa Brockway on April 27, 1987. His diagnosis was to rule out subluxation of the right shoulder with chronic tendonitis. He stated: This patient developed symptoms in May, 1984 with activities which would indicate that the persistence of the symptoms were caused by laxity of the shoulder and subluxation. If this patient has subluxation of the shoulder, based on the fact that he had no one single traumatic episode but rather multiple work related activities, then he had a pre-existing congenital condition that was aggravated by the right arm throwing activities in May, 1984. When this subluxation condition develops with laxity of the shoulder it will be on a permanent basis. The period of time between the original injury and his most recent medical evaluation (2-87 Dr. Broderson [sic]) would indicate few functional problems and possible new injury causes; based on these facts the May, 1984 injury condition cleared. Claimant testified that he was paid an hourly wage of $7.15 by defendant IBP. Scott Demers testified that claimant was paid $6.50 per hour on an hourly basis. IBP exhibit 21 is a wage verification showing claimant's gross wage for the weeks of his employment and shows a wage of $6.50. Beginning the week ending May 5, 1984, (the week ending May 12 is the week in which claimant was injured) and counting back for thirteen weeks, claimant earned a gross sum of $3,038.59. The wage verification form reflects that claimant was paid $6.00 per hour for the weeks ending February 2, February 11, February 18 and February 25, 1984; $6.43 per hour through the week ending March 24, 1984; and, $6.50 per hour thereafter. Claimant submitted evidence as to his medical costs in exhibit 3. These include Boone County Hospital ($90.00), prescriptions at Bedel's Drive-In Pharmacy ($10.29 paid by claimant), prescriptions at Storm Lake Drug ($2.70 paid by claimant), Buena Vista County Hospital ($74.00 paid by claimant), Buena Vista Clinics, P.C. ($66.50 paid by claimant), McFarland Clinic ($2,142.03), Mary Greeley Hospital ($1,351.04), and Greene County Hospital ($200.00). It appears that all of these charges except for Greene County Hospital were incurred prior to claimant's employment with Northwest Bodies. Claimant has also set forth certain mileage expenses in his exhibit 2.. Those expenses that predated claimant's employment with Northwest Bodies include Boone County Hospital (240 miles), Mary Greeley Hospital (80 miles), and McFarland Clinic (1,040 miles). Claimant has also set forth certain other mileage expenses, but the record is unclear as to the purpose of these trips. 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 he received injuries on or about May 10, 1984 and October 3, 1984 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa .402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The supreme court of Iowa in Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934) at 731-32, discussed the definition of personal injury in workers' compensation cases as follows: While a personal injury does not include an occupational disease under the workmen's Compensation Act, yet an injury to the health may be a personal injury [Citations omitted.] Likewise a personal injury includes a disease resulting from an injury....The result of changes in the human body incident to the general processes of nature do not amount to a personal injury. This must follow, even though such natural change may come about because the life has been devoted to labor and hard work. Such result of those natural changes does not constitute a personal injury even though the same brings about impairment of health or the total or partial incapacity of the functions of the human body. .... A personal injury, contemplated by the Workmen's Compensation Law, obviously means an injury to the body, the impairment of health, or a disease, not excluded by the act, which comes about, not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee. [Citations omitted.] The injury to the human body here contemplated must be something, whether an accident or not, that acts extraneously to the natural processes of nature and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. The claimant has the burden of proving by a preponderance of the evidence that the alleged injuries of May 10, 1984 and October 3, 1984 are causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). 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). While claimant and IBP, Inc., have stipulated that claimant sustained an injury arising out of and in the course of that employment on May 10, 1984, claimant and Webster Construction Company dispute whether a second injury occurred on October 3, 1984 arising out of and in the course of that employment. The record shows that claimant had continuing incidents of "popping" of his right shoulder after the work injury of May 10, 1984 and continuing through one such incident while employed at Webster Construction on October 3, 1984. Claimant's shoulder was "still swelling up all the time and popping out of place" by his own testimony. Claimant admitted that the "popping" incident at Webster Construction and the pain derived therefrom did not differ from numerous prior incidents at IBP. The record fails to disclose any factor whatsoever indicating that this incident was a separate and independent source of disability, except that claimant sought medical treatment and was kept off work for four days by Dr. Erps. As discussed below, Dr. Dougherty has opined that claimant's disability was related to the IBP incident. Claimant has failed to establish by his burden of proof that any of his current disability is causally related to the Webster Construction incident, or that this incident constituted anything greater than a mere temporary exacerbation of his preexisting problem. Claimant was off work for four days and was paid one day of temporary disability by defendants Webster and Aetna. Claimant has failed to establish his right to any further recovery from those defendants. It is stipulated that claimant sustained an injury arising out of and in the course of his employment with IBP on May 10, 1984. Disputed issues include the extent of claimant's temporary disability and whether the work injury is causally related to permanent disability. As has been seen, causal connection between a work injury and permanent disability is primarily in the sphere of expert testimony, although the entire record is.to be reviewed in making the determination. In this case, it is clear that claimant undertook substantial physically demanding work between his stipulated injury and his eventual surgery in 1987, all of which might easily be.viewed as having excacerbated the original injury. In addition, Dr. Wirtz was of the view that the substantial gap of time between the injury and claimant's subsequent surgery was an indication that the original injury had cleared up. Dr. Dougherty noted that during the substantial time gap claimant had performed construction work, odds and ends, worked in the garden and worked at a tanning company. He opined only that there was a "possibility" that claimant's surgery was a direct result of the IBP work injury. On the other hand, Dr. Brodersen, the treating surgeon, specified directly that the shoulder problems he surgically treated were sustained by reason of the work injury under review and that any subsequent injuries may have temporarily aggravated the shoulder, but it was doubtful that they substantially increased the severity of the injury. Thus, there is a full range of medical opinion on the causation issue. While Dr. Brodersen was the treating physician, it is not an absolute rule that a treating physician's testimony is to be given greater weight than the testimony of another physician who examines claimant for evaluation. Rockwell Graphic Systems, Inc. v. Prince, 366 N.W.2d 187 (Iowa 1985). Rather, factors such as education, compensation, the date of the examination and experience all go to evaluating that testimony as a question of fact, not law. Claimant testified.that he continued having the same symptoms as to his shoulder injury between the work injury and his eventual surgery in 1987. While claimant saw a number of physicians during that time, he did not make specific complaint of his continuing shoulder problems. Claimant explained that his reason for doing so was because of his lack of medical insurance and financial inability to pay for extensive medical treatment. Anyone who follows current events can scarcely be unaware that medical costs are frequently expensive and have been increasing dramatically in recent years. The writer is unwilling to hold that the unwillingness of an individual lacking medical insurance to seek medical care is necessarily indicative that no medical care is needed. Claimant's testimony that he continued having the same symptoms throughout this extended time gap is accepted as credible. Given this history, Dr. Brodersen's view as to causation is the most persuasive in this case. Claimant has met his burden of proof in establishing permanent disability causally related to his work injury. Before discussing the extent of claimant's permanent disability, it is appropriate to consider the extent of his healing period. Healing period may be interrupted or intermittent, or terminate and begin again (for example, after surgery). Riesselman v. Carroll Health Center, III Iowa Industrial Commissioner Reports 209 (1982); Teel v. McCord, 394 N.W.2d 405 (Iowa 1986). In this case, claimant's healing period is intermittent in nature. Under Iowa Code section 85.34, healing period begins on the date of injury and continues until the employee has returned to work, it is medically indicated that significant improvement from the injury is not anticipated, or until such time as the employee is medically capable of returning to substantially similar employment, whichever first occurs. Claimant was injured on May 10, 1984 and given an unrestricted return to work on August 13, 1984. This ended the first segment of healing period, which amounts to 13 weeks exactly. Dr. Brodersen then took claimant off work for surgical treatment from May 7, 1987 through his return to work July 20, 1987. This segment totals 10 weeks, 5 days. After claimant was released to return to work in July, 1987, he accepted work with Northwest Bodies. As,has been seen, claimant had continuing shoulder problems at that time, and was eventually taken off work by Dr. Brodersen on November 23, 1987 and remained off work as of the date of hearing.. This period of temporary disability must be considered in conjunction with the issue of permanent disability. Here, the question of claimant's employment with Northwest Bodies must be reviewed. Claimant testified that his work with Northwest Bodies exacerbated his shoulder problems. Claimant's work included vigorously pounding fiberglass doors into place with his hands on a daily basis. As claimant testified, it "kept getting worse and worse and worse" until he had to return to Dr. Brodersen. Dr. Brodersen's notes show that claimant, as of November 23, 1987, had developed at least one additional symptom: an occasional catching sensation. Claimant testified directly as to increased loss of function during his employment with Northwest Bodies. Before working for Northwest Bodies, he was able to lift heads (automobile parts), but was unable to do so as of the date of hearing. Claimant agreed that the only thing he did between the surgery and the date of hearing was work at Northwest Bodies. Claimant agreed that in addition to the vigorous pounding the Northwest Bodies job required, he was also required to lift items as heavy as a head (claimant did not express an opinion as to what heads weigh, but it is apparently substantial). Because claimant developed an additional symptom and his shoulder condition substantially worsened during his employment with Northwest Bodies, it is entirely possible that he sustained yet another work injury, cumulative or otherwise, while in that employment. Of course, Northwest Bodies is not a party to this litigation. Obviously, it would be inappropriate to make a finding as to whether claimant's employment with Northwest Bodies actually caused an aggravation or other new injury. Nonetheless, it remains claimant's burden of proof to establish the extent of his disability that is causally related to the IBP work injury under review. On this record, it would be speculative at this point to find that claimant's presumably temporary disability subsequent to November 23, 1987 or any resulting permanent disability is causally related to the work injury under review. Claimant has not met his burden of proof in establishing that his presumably temporary disability from November 23, 1987 through the date of hearing bears a causal relationship to this injury. What then is the extent of claimant's permanent disability that is shown to be related to the work injury under review? It is first necessary to consider whether the injury is a scheduled member disability or an injury to the body as a whole. Shoulder injuries are particularly troublesome to decide. The leading case on this issue is Lauhoff Grain Co. v. McIntosh, 395 N.W.2d 834 (Iowa 1986). Although that case dealt with a hip injury, the logic is equally applicable to a shoulder injury. In remanding that case to the commissioner for further review of the issue, the court noted that "there can be no recovery of benefits for industrial disability unless it is shown that a part of the body other than the (scheduled member) is impaired." The court noted that surgical intrusion in that case extended into the body beyond the hip joint and that claimant presented evidence of impairments which were not directly related to the scheduled member functions (disabling pain in the hip and lower back). The court recited the commissioner's findings of fact and italicized the following finding: "The surgical procedure has extended claimant's disability to the body as a whole(,)" but still chose to remand the case. From the foregoing, the undersigned concludes that the disability must be shown to affect the body as a whole beyond the scheduled member to be compensable as an industrial disability. On the one hand, the court cited with approval cases from other jurisdictions to the effect that an injury to the hip joint itself extends beyond the scheduled member, but on the other hand, was unable to conclude with certainty that a surgical intrusion to the acetabulum, a part of the pelvis, extended the injury in that case to the body as a whole. The undersigned readily confesses to an inability to apply the teachings of Lauhoff Grain with certainty. Dr. Brodersen's surgical notes reflect that "the anterior glenoid rim revealed that the labrum had been torn loose with marked fraying of the glenoid labrum anteriorly." The torn anterior labrum was then surgically excised. Thus, the surgical intrusion extends beyond the arm into the body as a whole. However, under Lauhoff Grain, this is clearly not dispositive of the issue. Instead, it appears that the question depends upon whether functional disability extends beyond the scheduled member. In this case, only Dr. Brodersen has expressed an opinion as to the degree of claimant's impairment. In his letter of January 6, 1988, Dr. Brodersen based his opinion on evidence of some mild limited motion in external rotation. Based on this, Dr. Brodersen was of the view that claimant had sustained a five percent impairment of the upper extremity, which he then converted to an impairment of the body as a whole. Because Dr. Brodersen's opinion was based on a loss of function of the extremity only, it is held that claimant's injury does not extend into the body as a whole and should not be compensated industrially. Dr. Brodersen was also of the view that claimant's impairment rating might decrease as time went by and that he was reluctant to classify the impairment as other than temporary until a year had elapsed from the time of surgery. However, claimant undertook employment at Northwest Bodies before that year had elapsed and may well have sustained an independently compensable aggravation or new injury. Therefore, it would be speculative to conclude that claimant's disability would actually decrease. In fact, the hearing was held less than a year post-surgery. The best evidence in this case is that claimant sustained a five percent impairment of the "upper extremity" by reason of his stipulated work injury. Of course, "upper extremity" is not a scheduled member under Iowa Code section 85.34. The AMA Guides to the Evaluation of Permanent Impairment, however, do speak of "upper extremity" impairments. For all practical purposes, and particularly for the purposes of this decision, the arm is coextensive with the upper extremity. Loss of an arm is compensable during 250 weeks under Iowa Code section 85.34(2)(m). Five percent of 250 weeks is 12.5 weeks. Therefore, claimant shall be awarded permanent disability benefits of 12.5 weeks commencing July 21, 1987. The parties also dispute claimant's rate of compensation, although it is stipulated that he was married with four exemptions on the date of injury. Claimant was paid on an hourly basis and has not been shown to have been a part-time employee. Therefore, his rate should be calculated under Iowa Code section 85.36(6). His gross weekly earnings must be computed by dividing by 13 his earnings in the last completed period of 13 consecutive weeks immediately preceding the injury. His earnings for the 13 weeks ending May 5, 1984 (the last completed weeks prior to injury), were $3,038.59, or an average of $233.73 per week. The workers' compensation benefit schedule published by the commissioner and effective July 1, 1983 shows that the appropriate rate for an individual who is married, has four exemptions, and gross weekly wages of $234.00 is $158.96. Claimant's rate of compensation is $158.96. Defendant IBP takes the position that Dr. Brodersen's medical treatment and services are not compensable because they were not authorized. However, numerous cases have held that defendants cannot simultaneously deny liability and seek to guide the course of treatment. See Barnhart v. MAQ, Inc. I Iowa Industrial Commissioner Reports 16 (1981). The defense of lack of authorization fails. Of the medical bills set forth in claimant's exhibit 3, it appears that the Greene County Hospital expenses in the sum of $200.00 were accrued following claimant's employment with Northwest Bodies, at least based upon the dates set forth for claimant's mileage in claimant's exhibit 2. Claimant shall be awarded medical benefits to be paid to the care provider, except those paid personally by claimant, as follows: Boone County Hospital $ 90.00 Bedel's Drive-In Pharmacy 10.29 (to claimant) Storm Lake Drug 2.70 (to claimant) Buena Vista County Hospital 74.00 (to claimant) Buena Vista Clinics, P.C. 66.50 (to claimant) McFarland Clinic 2,142.03 Mary Greeley Hospital 1,351.04 Total $3,736.56 Claimant is also entitled to mileage expenses he accrued while seeking medical treatment. These include trips to Boone County Hospital (240 miles), Mary Greeley Hospital (80 miles), McFarland Clinic (1,040 miles while claimant lived in Pilot Mound, 280 miles while claimant lived in Churdan, and 180 miles while claimant lived in Manson), for a total of 1,820 miles. At $.21 per mile, the award shall be $382.20. Mileage accrued after July 17, 1987 (when claimant last saw Dr. Brodersen before beginning employment with Northwest Bodies) is excluded as speculative, since it is unclear whether those miles may have been related to a possible intervening injury. FINDINGS OF FACT THEREFORE, based on the evidence presented, the following ultimate facts are found: 1. As stipulated, claimant was employed by defendant IBP, Inc., on May 10, 1984, when he sustained an injury arising out of and in the course of that employment. 2. As stipulated, claimant was employed by Webster Construction Company on October 3, 1984. 3. Claimant's injury of May 10, 1984 was to his right shoulder, but his functional impairment did not extend into the body as a whole. 4. Claimant has failed to establish that his injury of October 3, 1984 (776652) was anything greater than a temporary exacerbation of his work injury of May 10, 1984 (764571). 5. Claimant was off work by reason of his May 10, 1984 injury from May 10, 1984 through August 13, 1984 (13 weeks) and from May 7, 1987 through July 20, 1987 (10 weeks, 5 days). 6. Claimant's injury of May 10, 1984 has been shown to result in an impairment of 5 percent of his right arm. 7. During the 13 weeks prior to May 10, 1984, claimant, who was paid on an hourly basis, earned a total of $3,038.59, or an average of $233.73 per week. 8. As stipulated, defendant IBP, Inc., paid claimant 10 weeks, 2 days compensation at the rate of $186.85 prior to hearing. 9. After being released to return to work July 20, 1987, claimant accepted employment with an enterprise known as Northwest Bodies. During that employment, his condition worsened and he developed at least one new symptom. 10. Although the author of this decision did not view claimant's testimony and his credibility was attacked, claimant's testimony has not been shown to lack credibility. 11. The following medical bills are causally connected to claimant's stipulated work injury of May 10, 1984: Boone County Hospital $ 90.00 Bedel's Drive-In Pharmacy 10.29* Storm Lake Drug 2.70* Buena Vista County Hospital 74.00* Buena Vista Clinics, P.C. 66.50* McFarland Clinic 2,142.03 Mary Greeley Hospital 1,351.04 Total $3,736.56 * Paid by claimant personally to medical suppliers. 12. The following mileage expenses have been shown to be causally related to claimant's work injury of May 10, 1984: Boone County Hospital (240 miles); Mary Greeley Hospital (80 miles); and, McFarland Clinic (1,500 miles) for a total of 1,820 miles. CONCLUSIONS OF LAW WHEREFORE, based on the principles of law previously stated, the following conclusions of law are made: 1. Claimant has failed to establish by his burden of proof that he sustained an injury arising out of and in the course of his employment with Webster Construction Company on October 3, 1984 (776652). 2. Claimant sustained an injury arising out of and in the course of his employment with IBP, Inc., on May 10, 1984 (764571). 3. Claimant has established entitlement to intermittent healing period benefits resulting from his May 10, 1984 work injury totalling 23 weeks, 5 days. 4. Claimant has established a permanent partial disability of 5 percent of the right arm resulting from his work injury of May 10, 1984. 5. Claimant's injury of May 10, 1984 was to his right arm and did not extend into the body as a whole; therefore, the injury must be compensated as a scheduled member and not as an industrial disability. 6. Claimant is entitled to medical expenses and mileage under Iowa Code section 85.27 as set forth above. 7. Claimant's award must be determined on the basis of his condition prior to beginning employment with Northwest Bodies, because the worsening of his condition thereafter may have been related to an intervening and independent work injury; it would be speculative to base this award on claimant's condition subsequent to his employment with Northwest Bodies. 8. Claimant's rate of compensation is $158.96. ORDER THEREFORE, IT IS ORDERED: Claimant shall take nothing from this proceeding with respect to file number 776652. Defendant IBP, Inc., shall pay unto claimant twenty three point seven one four (23.714) weeks of healing period benefits at the rate of one hundred fifty-eight and 96/100 dollars ($158.96) per week, totalling three thousand seven hundred sixty-nine and 58/100 dollars ($3,769.58). Defendant IBP, Inc., shall pay unto claimant twelve point five (12.5) weeks of permanent partial disability at the rate of one hundred fifty-eight and 96/100 dollars ($158.96) per week, totalling one thousand nine hundred eighty-seven and 00/100 dollars ($1,987.00). The commencement date is July 21, 1987. Defendant IBP, Inc., shall pay the following medical expenses: Boone County Hospital $ 90.00 Bedel's Drive-In Pharmacy 10.29* Storm Lake Drug 2.70* Buena Vista County Hospital 74.00* Buena Vista Clinics, P.C. 66.50* McFarland Clinic 2,142.03 Mary Greeley Hospital 1,351.04 Total $3,736.56 Those items marked with an asterisk will be paid directly to claimant, while the other items shall be paid directly to the care providers. Defendant IBP, Inc., shall pay mileage expenses to claimant totalling three hundred eighty-two and 20/100 dollars ($382.20). Defendant IBP, Inc., shall be entitled to credit for all benefits paid to claimant voluntarily prior to hearing. As all unpaid benefits have accrued as of the date of this decision, they shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. Costs in file number 764571 are assessed to defendant IBP, Inc., pursuant to Division of Industrial Services Rule 343-4.33. Costs in file number 776652 are assessed to claimant pursuant to division of Industrial Services Rule 343-4.33. Defendant IBP, Inc., shall file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 3rd day of November, 1989. DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Dennis L. Hanssen Attorney at LaW Suite 111, Terrace Center 2700 Grand Avenue Des Moines, Iowa 50312 Mr. Marlon D. Mormann Attorney at Law P.O. Box 515, Dept. #41 Dakota City, Nebraska 68731 Ms. Lorraine J. May Attorney at Law 4th Floor, Equitable Building Des Moines, Iowa 50309 51402, 1402.40 Filed November 3, 1989 DAVID RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER PAUL A. HIKE, JR., Claimant, vs. IBP, INC., File Nos. 764571 Employer, 776652 Self-Insured, A R B I T R A T I 0 N and D E C I S I 0 N WEBSTER CONSTRUCTION CO., Employer, and AETNA CASUALTY & SURETY COMPANY, Insurance Carrier, Defendants. 51402 Claimant awarded healing period and five percent permanent partial disability of the right arm. 1402.40 Where claimant suffered one new symptom and exacerbation of his shoulder condition while employed with a nonparty subsequent employer, his permanency was calculated as of the time he began the subsequent employment. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : PAUL HIKE, : : File No. 764571 Claimant, : : R E M A N D vs. : : D E C I S I O N IBP, INC., : : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ STATEMENT OF THE CASE The above captioned case has been remanded to the Iowa Industrial Commissioner by ruling of the Iowa District Court, dated October 31, 1991. The remand ruling stated the case was remanded "for a determination of disability pursuant to 85.34(2)(u)." ISSUE The judicial review decision determined that claimant's injury was to the body as a whole. That decision was not appealed to the Iowa Supreme Court, and thus the decision is the law of the case. The sole issue on remand, therefore, is the extent of claimant's industrial disability. FINDINGS OF FACT The review of the evidence set forth in the arbitration decision filed November 3, 1989 is adopted herein. conclusions of law Claimant has suffered a shoulder injury. Dr. Brodersen rated claimant's impairment as five percent of the upper extremity or three percent of the body as a whole. Although Dr. Brodersen indicated these ratings might decrease over time, the state of the record at the time of the hearing was that claimant suffered this degree of physical impairment. Claimant earned, depending on claimant's testimony or records of the employer, either $7.15 or $6.50 per hour at IBP. After leaving IBP, claimant tried to work in other fields, including construction and fiberglass work. Claimant found he was unable to perform at these jobs because of pain from his shoulder injury. Claimant has suffered a loss of earnings as a result of his work injury. Claimant was exactly 26-years-old at the time of the hearing. Claimant has a high school diploma. Claimant's prior work experience included farm labor. Page 2 Based on these and all other appropriate factors for determining industrial disability, claimant is determined to have an industrial disability of 40 percent. ORDER THEREFORE, IT IS ORDERED: That defendant is to pay unto claimant two hundred (200) weeks of permanent partial disability benefits at the rate of one hundred fifty-eight and 96/100 dollars ($158.96) from July 21, 1987. That defendant shall pay accrued weekly benefits in a lump sum. That defendant shall pay interest on unpaid weekly benefits awarded herein as set forth in Iowa Code section 85.30. That defendant shall pay the costs of this matter including the transcription of the hearing. Signed and filed this ____ day of May, 1993. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Dennis L. Hanssen Attorney at Law Terrace Center STE 111 2700 Grand Avenue Des Moines, Iowa 50312 Mr. John M. Comer Attorney at Law P O Box 515 Dakota City, Nebraska 68731 5-1803 Filed May 24, 1993 BYRON K. ORTON BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : PAUL HIKE, : : File No. 764571 Claimant, : : R E M A N D vs. : : D E C I S I O N IBP, INC., : : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 5-1803 On remand from district court, claimant's industrial disability was determined to be 40 percent. Claimant was 26 years old, with a shoulder injury, high school education, lost earnings, and a rating of 3 percent body as a whole impairment. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ THOMAS H. KLAREN, File No. 764821 Claimant, VS. A R B I T R A T I 0 N QUAKER OATS COMPANY, D E C I S I 0 N Employer, Defendant. _________________________________________________________________ INTRODUCTION This is a proceeding in arbitration brought by the claimant, Thomas H. Klaren, against his employer, Quaker Oats Company, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained May 9, 1984. This matter came on for hearing before the undersigned deputy industrial commissioner at Cedar Rapids, Iowa, on June 17, 1987. A first report of injury was filed May 16, 1984. The parties stipulated that claimant has received all temporary total or healing period benefits to which he is entitled and that such benefits are not at issue. The record in this case consists of testimony of claimant, of Julie Ann Klaren, of James Klima, and of Larry Van Lancher as well as of claimant's exhibits one through four, six and eight and defendant's exhibits A, B and C. Mr. Van Lancher was called as a rebuttal witness. ISSUES Pursuant to the pre-hearing report, the parties stipulated that claimant's rate of weekly compensation is $279.08, that claimant received an injury on May 9, 1984 which arose out of and in the course of his employment, and that the injury was causally related to temporary and permanent disability. The issues remaining for resolution are: 1. The extent of claimant's permanent partial disability entitlement; and, 2. Whether claimant is entitled to payment of mileage expenses enumerated under section 85.27. The parties indicated that the permanent partial disability entitlement issue may include a sub-issue as to interest due claimant. The parties also dispute the commencement date for permanent partial disability. Defendant's counsel recommended payment of a charge of $21.96 which is apparently the outstanding section 85.27 issue. The issues presented in claimant's motion in limine appear moot at this time. KLAREN V. QUAKER OATS COMPANY Page 2 REVIEW OF THE EVIDENCE Claimant was born on September 26, 1956, is married and was graduated from high school in 1974. He began work with Quaker Oats on August 11, 1975 and has worked for the company continuously since then. On May 9, 1984, claimant was loading oats in the LCL dock. He reported that he felt a pain in his back. Claimant subsequently saw the company nurse who referred him to William R. Basler, M.D., the company doctor. Dr. Basler referred claimant to Martin Roach, M.D., an orthopaedic specialist who prescribed physical therapy and referred claimant to Warren N. Verdeck, M.D. Dr. Roach subsequently again prescribed physical therapy and released claimant for work. Claimant reported that he was then referred to James R. LaMorgese, M.D., who ordered a CT scan and myelogram which studies revealed a herniated disc. Claimant underwent a laminectomy at L5-Sl on June 24, 1985, and was off for 13 weeks. On September 23, 1985, he returned to his LCL job with a 40-pound weight restriction. Claimant continues to hold that job. He described his job as involving loading and unloading case goods, relieving the cereal checker, moving bulkhead doors, changing truck batteries and helping (clean up) dumped loads. He indicated that he also drives a forklift. On cross-examination, claimant agreed that the LCL job primarily involves forklift driving. He had stated that forklift driving is a problem in that it "jolts" his entire body. Claimant agreed that his job is currently easier than it was when he was injured or on his work return. He reported that he has, on occasion, back stiffness and also pain in his right leg. Claimant agreed that, since his injury, he has received raises as the result of union/management collective bargaining agreements. He has received annual bonuses and anticipates an annual bonus for 1987; he has health and accident insurance. Claimant characterized the LCL job as in the second highest pay bracket within the company. He reported he has not bid on other jobs since the LCL job is "all right" when compared with other jobs. He reported that he intends to stay with Quaker Oats and feels his job is secure. He testified that he has had disciplinary problems with the company in the past, but has none now. He reported that he feels his foreman has unjustifiably expressed dissatisfaction with his work in the past. Julie Ann Klaren testified that claimant's physical condition bothers him at times, but that, at other times, it does not bother him. She characterized claimant as a noncomplainer. James Klima, a co-worker of claimant's who has known claimant for approximately ten years, testified that he is a checker in the shipping department, but previously held an LCL job. He reported that he has observed claimant at work since his work return and that claimant has trouble lifting heavy sacks and is bothered by riding on the forklift. He reported that the forklift is driven on a rough, uneven surface and that holes in the floor are repaired by cutting the holes out and refilling them with cement. He described the checker job as involving taking a product off a roller and loading it in a designated KLAREN V. QUAKER OATS COMPANY Page 3 trailer. He reported the bulkhead doors are moved by releasing the door pin and then (apparently sliding) the door to the opposite end (apparently of the trailer). Klima stated that the forklift battery must be changed each day. He agreed that the battery itself was lifted with a hoist, but reported that the battery changer must lean forward approximately two or three feet to remove the seat and the metal platform above the battery. He characterized the plate as extremely heavy. Klima characterized the LCL job as a good job in that an individual just loads a trailer "straight in, straight out" with no left or right maneuvering and with no rollers to which to attend. Larry Van Lancher is the LCL second shift supervisor and has been claimant's supervisor since November, 1985. He reported that claimant's job as an LCL trucker basically involves forklift truck operation, that is, hauling a load of product to the dock and unloading it onto the truck. He reported that occasionally a load must be hand finished and that hand loading 40-50 pound bags is required for fifteen to twenty minutes once on each shift. He indicated that two people are usually available if 100 pounds need to be handled. He stated that the forklift is operated on a cement floor which is "fairly good" but for a few places where 16-inch steel plates have been placed over cracks. He agreed that the battery of the forklift must be changed each shift, but reported that he has observed claimant doing so with no apparent difficulties. He indicated that claimant has replaced the wrapper roll in the wrapper machine approximately twice in the last 12 months. The plastic wrapper roll weighs about 40 pounds. He testified that he has observed claimant reloading weights of greater than 50 pounds, but that, when he has done so, claimant has always been assisted. Van Lancher agreed that the LCL trucker relieves the checker department and that the trucker must then load and unload product onto the trailer. He indicated that bags of field grain generally weigh approximately 50 pounds; that rice weighs 100 pounds; and, that drums of peanut butter or soybean oil weigh approximately 500 pounds. He reported, however, that incoming ingredients are generally palletized and that they are unloaded with the lifter. He agreed that those which fall off need to be hand reloaded and. that one will hand-load to fill out a trailer. Mr. Van Lancher characterized claimant as a good worker who is able to carry out all assigned job duties. Dr. LaMorgese has assigned claimant a 10% permanent partial "disability" rating of the body as a whole. In a letter of March 18, 1987 to claimant's counsel, Dr. LaMorgese noted that claimant was released from any lifting restrictions on April 22, 1986. Additionally, he stated the following: Usually I instruct patients to restrict their lifting to approximately 70 lbs. after a lumbar laminectomy event with an excellent to good result. I feel that patients after low back surgery from a herniated disk are at increased risk of having a recurrent back injury and that is why I usually have them restrict the amount of weight that they lift. Mr. Klaren indicated to me on April 22, 1986, that if I continued to have a weight restriction on his lifting ability, that he would lose his job. I reluctantly lifted any restriction on his KLAREN V. QUAKER OATS COMPANY Page 4 weight in order to try to save him any trouble with his employer. I usually also instruct patients with a low back injury to refrain from doing repetitive [sic] pushing, pulling, or straining and would recommend that they not do this with more than 60 to 70 lbs. of weight also. Dr. LaMorgese had made the following notes on April 22, 1986: April 22, 1986 - patient was late for his appointment this morning because he thought it was 15 minutes later; Dr. had left already. Patient wanted to know if his weight restriction could be lifted and Dr. said to 60 lbs.- Patient was concerned his Foreman wouldn't be too pleased but said he rarely needs to lift over 60 lbs. anyway. Dr. said no 100 lb. weights should be lifted yet. April 22, 1986 - telephone conversation I spoke to Mr. Klaren on the phone today. The foreman at Quaker Oats would like to have Mr. Klaren released from all weight lifting restrictions at this point. I am reluctantly doing this so that Mr. Klaren can continue working at Quaker Oats. I feel that in all probability that the patient will do well without a weight restriction. The patient will be seen again in May. On May 15, 1986, Dr. LaMorgese indicated that claimant appeared to be fully healed and had no neurologic deficits. He reported that claimant had good bilateral ankle reflexes and was not having significant back problems. He discharged claimant from his care. The description of an LCL trucker contained in claimant's personnel file is that that individual iS responsible for assembly and marking of LCL orders, the correct count of items received in shipments, and the recording of information as to code dates, condition, inspection and identification. The LCL trucker also inspects and loads trailers and performs other duties as assigned or required for effective plant operation. Computerized job descriptions in records indicate that the LCL trucker would stand approximately 15% of his time and sit approximately 85% of his time with no walking involved. He or she might lift or carry 25 pounds four times per hour, but would not be required to push or pull. The individual would occasionally climb, balance, stoop or crouch. The individual would constantly reach, handle, finger or kick, but would not be required to kneel, crawl, lie down or feel. Strength factors for a cereal checker are essentially identical. A pallet repair and sanitation worker would need to stand approximately 90% of his time and walk approximately 10% of the time with no sitting required. The individual would need to lift or carry approximately 50 pounds approximately 100 times per hour, but would not be required to push or pull. That individual would frequently balance, stoop, kneel and crouch, would occasionally reach, and would constantly handle and finger. That individual would not need to climb, crawl, lie down, feel or pick. KLAREN V. QUAKER OATS COMPANY Page 5 Claimant's exhibit 3 contains the following: DR. JAMES LAMORGESE 11 @ 6.5 miles per trip = 71.5 miles 1984 - 8-22, 8-30, 9-28, 11-13 1985 - 2-5, 5-7, 7-18, 8-20, 10-22 1986 - 4-22, 5-15 ORTHOPEDIC SURGEONS 4 trips @ 4 miles per trip = 16 miles 1984 - MERCY HOSPITAL One trip @ 4 miles = 4 miles 1985 - TOTAL MILES = 91.5 TOTAL EXPENSE = $21.96 The balance of the evidence was reviewed and considered in the disposition of this matter. APPLICABLE LAW AND ANALYSIS Of first concern is the extent of claimant's permanent partial disability entitlement. An injury is the producing cause; the disability, however, is the result, and it is the result which is compensated. Barton V. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). 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 25 257 (1963). Claimant has a 10% permanent partial impairment. He has returned to the job he held at the time of his injury. He KLAREN V. QUAKER OATS COMPANY Page 6 himself agreed that the job is now easier than it was either at the time of the injury or at the time of the September, 1985 work return. He can perform that job albeit with some occasional back and leg pain. It appears to be a secure job. Claimant apparently does not intend to seek other employment and has not bid on other jobs within the company as he feels that this job is "all right." Claimant's job is at the second highest wage bracket in the company. He has received increased wages as a result of collective bargaining agreements since his injury. Claimant has, at best, a 70-pound lifting restriction. He himself indicated to his physician that he rarely needs to lift over 60 pounds in his present job. The overall security that claimant has in his present position and his satisfaction with that position indicate that claimant is not likely to be seeking the heavy industrial jobs from which a 70-pound restriction could well preclude him. In any event, should that circumstance change, claimant's claim would be subject to review-reopening. Additionally, claimant is a younger worker and a high school graduate. His overall demeanor at hearing suggested that he is of at least average intelligence. Consequently, he is in a far better position for retraining for lighter duty, non-industrial employment within any lifting restrictions if he so desired than would be an older worker. Claimant did not testify as to any life activity restrictions outside of his employment. That fact would suggest that claimant's work injury has not been severely disabling. We find that claimant has demonstrated a permanent partial disability of 15%. KLAREN V. QUAKER OATS COMPANY Page 7 At hearing, counsel for claimant indicated that the permanent partial disability question would include a sub-issue as to interest due claimant. No evidence relative to that issue was presented at hearing and that issue was not addressed in briefs submitted by either party. Claimant, of course, is entitled to interest pursuant to section 85.30 on accrued amounts. Likewise, little evidence concerning the commencement date for permanent partial disability benefits was presented. Pursuant to section 85.34(l), those benefits commence upon claimant's work return on September 23, 1985. Claimant seeks payment of mileage expenses in the amount of $21.96. Section 85.27 permits recovery of mileage expenses related to compensable medical expenses. Defense counsel has recommended payment of such expenses. The expenses are ordered paid. FINDINGS OF FACT WHEREFORE, IT IS FOUND: Claimant was born on September 26, 1956 and was graduated from high school in 1974. Claimant has worked for Quaker Oats since August 11, 1975 and continues to work for the company. Claimant sustained an injury which arose out of and in the course of his employment on May 9, 1984 while working in the LCL dock. Claimant subsequently underwent a laminectomy at L5-Sl on June 24, 1985. Claimant returned to his LCL job on September 23, 1985 with a 40-pound weight lifting restriction. On April 22, 1986, Dr. LaMorgese lifted all weight restrictions in order that claimant might continue to work at Quaker Oats. Dr. LaMorgese generally would prescribe a 70-pound weight lifting restriction following a laminectomy at L5-Sl. Claimant generally would not lift over 60 pounds in his current position. Claimant is not having significant difficulty carrying out his LCL job. Claimant has received several raises since his injury as the result of union-negotiated collective bargaining agreements. Claimant's LCL job is easier now than it was at the time of his injury or at the time of his work return. Claimant's LCL job with Quaker Oats is secure and claimant is satisfied with the position. KLAREN V. QUAKER OATS COMPANY Page 8 Claimant is in a better position to seek retraining for a be less physically demanding job should he so desire than would an older worker. Claimant has had mileage expenses of $21.96 associated with medical treatment related to his compensable injury. CONCLUSIONS OF LAW THEREFORE, IT IS CONCLUDED: Claimant is entitled to permanent partial disability of 15% resulting from his May 9, 1984 injury with benefits to commence upon his September 23, 1985 work return. Claimant is entitled to payment of medical mileage expenses of $21.96. ORDER THEREFORE, IT IS ORDERED: Defendant pay claimant permanent partial disability benefits for seventy-five (75) weeks at the rate of two hundred seventy-nine and 08/100 dollars ($279.08) with those payments to commence on September 23, 1985. Defendant pay accrued amounts in a lump sum. Defendant pay claimant mileage expenses as set forth in claimant's exhibit 3 and totalling twenty-one and 96/100 dollars ($21.96). Defendant pay interest pursuant to section 85.30. Defendant pay costs pursuant to Division of Industrial Services' Rule 343-4.33. Defendant file a Final Payment Report when this award is paid. This case be returned to docket for consideration of the section 86.13 issue. Signed and filed this 22nd day of September, 1987. HELEN JEAN WALLESER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert R. Rush Attorney at Law KLAREN V. QUAKER OATS COMPANY Page 9 526 Second Avenue SE P.O. Box 2457 Cedar Rapids, Iowa 52406-2457 Mr. John M. Bickel Attorney at Law 500 MNB Building P.O. Box 2107 Cedar Rapids, Iowa 52406-2107 1803 Filed September 22, 1987 HELEN JEAN WALLESER BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ THOMAS H. KLAREN, File No. 764821 Claimant, VS. A R B I T R A T I 0 N QUAKER OATS COMPANY, D E C I S I 0 N Employer, Defendant. _________________________________________________________________ 1803 Claimant awarded 15% industrial disability. Claimant was a 31-year-old high school graduate who had a 10% permanent partial impairment rating. Claimant was employed at the same job as he had held prior to his injury and testified that his work was easier than at the time of his injury or at the time of his work return. Claimant was satisfied with the employment and the employment was secure. Claimant's treating physician had advised claimant's counsel that the physician generally would have imposed a 60-70 pound weight restriction, but had removed all restrictions as claimant believed he needed all restrictions removed to continue his employment. Claimant had self-reported to his physician that he is rarely required to lift over 60 pounds in his job. BEFORE THE IOWA INDUSTRIAL COMMISSIONER DIANE RENDER, Claimant, vs. File No. 765147 IOWA DEPARTMENT OF HUMAN A P P E A L SERVICES, Employer, D E C I S I O N and STATE OF IOWA, Insurance Carrier, Defendants. STATEMENT OF THE CASE Claimant appeals from an arbitration decision denying claimant any benefits. The record on appeal consists of the transcript or the arbitration hearing; claimant's exhibits 1 through 3; and defendants' exhibits A through E. Both parties filed briefs on appeal. ISSUE The issue on appeal is whether claimant sustained an injury arising out of and in the course of her employment. REVIEW OF THE EVIDENCE The arbitration decision adequately and accurately reflects the pertinent evidence and it will not be reiterated herein. APPLICABLE LAW The citations of law in the arbitration decision are appropriate to the issues and evidence. ANALYSIS The analysis of the evidence in conjunction with the law in the arbitration decision is adopted. RENDER V. IOWA DEPARTMENT OF HUMAN SERVICES Page 2 The following additional comments are made to augment the analysis by the deputy which is adopted. Claimant argues in her appeal brief her hospitalization upon a petition of her supervisor was a physical injury that aggravated her emotional disorder. Claimant's argument is not convincing for several reasons. Claimant cites no authority on point for the argument. The tort law principle that confinement against one's will is actionable has not been extended in Iowa workers' compensation law to mean that such action constitutes a physical injury. There is no indication in the record that claimant was physically injured during the process. Furthermore, there is no indication that the legal procedure for an involuntary hospitalization was not followed in this case. Also, Robert E. Smith, M.D., board certified psychiatrist, testified that the people who sought the commitment acted appropriately. Last, no specific authority need be cited in this decision for the conclusion that merely because a person happens to be hospitalized while at work for a nonwork condition does not mean that the nonwork condition is a result of the employment. Claimant has not proved that she sustained an injury that arose out of and in the course of her employment. FINDINGS OF FACT 1. During 1982 and 1983, Diane Render, claimant, was a resident of the state of Iowa, employed by the Iowa Department of human Services within the State of Iowa. 2. Claimant has a long history of psychological problems dating at least as far back as 1974. She was hospitalized at least six different times for emotional problems prior to the commencement of calendar year 1982. 3. Claimant was hospitalized for an emotional disturbance in March 1982, where she was diagnosed as having depression and as having a borderline personality disorder. 4. The March 1982 hospitalization occurred at a time when claimant's employment was relatively harmonious and free from stress. 5. Claimant did not completely recover from the March 1982 episode. 6. The nature of claimant's preexisting, underlying psychological disorder is that it can become symptomatic, based upon stress, regardless of whether the stress is real or perceived. RENDER V. IOWA DEPARTMENT OF HUMAN SERVICES Page 3 7. When claimant's underlying psychological disorder becomes symptomatic, she has difficulty with interpersonal relationships. 8. The problems and stress that claimant encountered in her employment in 1982 and 1983 were a result of the manifestation of the symptoms of her underlying psychological disorder. 9. The evidence in the case fails to establish, by a preponderance of the evidence, that stress in claimant's employment was a substantial factor in bringing about the psychological disability which affected her commencing in 1982 and continuing up to the present time. 10. The evidence in the case fails to establish, by a preponderance of the evidence, that the stress to which claimant was subjected in her employment was unusual or was out of the ordinary when compared with the day-to-day stresses which are inherent in being gainfully employed. 11. Claimant's employment merely provided the setting in which claimant's psychological disabilities manifested themselves. 12. The assessment of this case made by Dr. Smith is correct. CONCLUSIONS OF LAW Claimant has failed to prove, by a preponderance of the evidence, that she sustained an injury which arose out of and in the course of her empLoyment with the Iowa Department of Human Services. Claimant has failed to prove that stress to which she was subjected in her employment with the Iowa Department of Human Services was a proximate cause of any emotional or psycho logical disability with which she has been afflicted during the time period commencing January of 1982 and running up to the present time. Claimant has failed to prove that stress in her employment aggravated her preexisting condition. WHEREFORE, the decision of the deputy is affirmed. ORDER THEREFORE, it is ordered: That claimant take nothing from this proceeding. That claimant pay the costs of this appeal including transcription of the arbitration hearing. RENDER V. IOWA DEPARTMENT OF HUMAN SERVICES Page 4 That all other costs of this proceeding are assessed against defendants pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 15th day of May, 1989. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. Steven C. Jayne Attorney at Law 5835 Grand Avenue Suite 201 Des Moines, Iowa 50312 Mr. Luis Herrera Attorney at Law 840 5th Avenue Des Moines, Iowa 50309 Mr. Robert W. Pratt Attorney at Law 1913 Ingersoll Avenue Des Moines, Iowa 50309 Mr. Patrick L. Brick Attorney at Law 550 39th Street Des Moines, Iowa 50312 Mr. Greg Knoploh Assistant Attorney General Tort Claims Division Hoover State Office Bldg. Des Moines, Iowa 50319 1108.20 - 1402.30 - 2204 Filed May 15, 1989 DAVID E. LINQUIST BEFORE THE IOWA INDUSTRIAL COMMISSIONER DIANE RENDER, Claimant, File No. 765147 vs. IOWA DEPARTMENT OF HUMAN A P P E A L SERVICES, Employer, D E C I S I 0 N and STATE OF IOWA, Insurance Carrier, Defendants. 1108.20, 1402.30, 2204 Claimant, a 44-year-old woman with a long history of psychological disturbances, had been employed by the Iowa Department of Human Services for approximately 17 years despite a number of hospitalizations for psychological difficulties and a medical history that included almost constant psychological treatment. In March of 1982, at a time when claimant's employment relationship appeared to be quite harmonious, her condition deteriorated and she was hospitalized. She did not fully recover from that episode and the subsequent stresses that she experienced in her employment were due to her underlying personality disorder and did not arise out of and in the course of her employment. The Wisconsin Rule was cited with approval, but this case was determined based upon the facts which were found to be similar to those in Newman v. John Deere Ottumwa Works. Deputy's decision affirmed on appeal.