BEFORE THE IOWA INDUSTRIAL COMMISSIONER RONALD WEST, Claimant, vs. File No. 769431 L. H. SOWLES, A R B I T R A T I O N Employer, D E C I S I O N and AMERICAN MUTUAL INSURANCE CO., Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by claimant Ronald West against defendant employer L. H. Sowles and defendant insurance carrier American Mutual Insurance Company to recover benefits under the Iowa Workers' Compensation Act as the result of an alleged injury of June 11, 1984. This matter came on for hearing before Deputy Industrial Commissioner Garry Woodward in Des Moines, Iowa on March 10, 1988. The matter was considered fully submitted at the close of hearing. The record in the proceeding consists of joint exhibits A through I, inclusive and claimant's exhibits 1, 2, 3, 5 and 6 along with the testimony of claimant and Robert W. Jones. At the conclusion of evidence, Deputy Commissioner Woodward refused a motion to amend the petition to conform with the proof (by specifying the date of alleged injury as June 6, 1984) but did permit amending the pre-hearing report to that effect. After the record was closed, Deputy Woodward discontinued his employment with the Office of the Industrial Commissioner. By Order of July 22, 1988, jurisdiction for the purpose of preparing and filing a proposed agency decision was transferred to the undersigned by the industrial commissioner. A transcript of proceedings was prepared and received. All of the record evidence has been reviewed. The record in this case shows that a pre-hearing report was executed by the parties and duly submitted. However, the record does not reflect whether the same was accepted into the record by Deputy Woodward. It is hereby ruled that the pre-hearing report is approved and accepted into the record. ISSUES Pursuant to the pre-hearing report submitted by the parties the issues that remain to be resolved include: Whether claimant sustained an injury on June 6, 1984 arising out of and in the course of his employment; whether the alleged injury is a cause of temporary or permanent disability; the extent of claimant's entitlement, if any, to temporary total, healing period or permanent partial disability, including the commencement date for WEST V. L. H. SOWLES PAGE 2 permanent partial disability if awarded (however, it was stipulated that if the injury be found to be a cause of permanent disability, it is an industrial disability to the body as a whole); rehabilitation benefits; taxation of costs. It was stipulated that claimant's rate of weekly compensation in the event of an award should be $257.52 and that defendants paid 175.429 weeks of compensation at that rate prior to hearing for which credit should be allowed. It was further stipulated that all requested medical benefits have been or will be paid by defendants. REVIEW OF THE EVIDENCE Claimant was single, without dependents, and just short of his 40th birthday at the time of hearing. He graduated from high school in 1966 and thereafter attended a junior or community college for one semester, taking such general courses as English and algebra. He began working as an ironworker following high school and went through an apprenticeship program from 1969 until 1971. He was primarily employed as an ironworker until his alleged injury of June 6, 1984. Claimant testified that he was a journeyman ironworker with skills in many areas and that he had finally reached a point at the time of injury where he was qualified for foreman's jobs, all recognized ironworking jobs, and any welding jobs (being certified in four or five different types of welding). Claimant testified that he also ran his own welding shop as a part-time endeavor from 1981 until his injury and has also been employed in the past as a bakery delivery person, truck driver, cement finisher, lifeguard, service station worker, and as an electrician's and plumber's helper, mostly when in high school. Claimant attended the American Institute of Taxidermy following his alleged injury in approximately March through June, 1985 and received a certification in taxidermy. He attended the American Institute of Taxidermy for 11-12 weeks and paid his own tuition ($3,900), although the Iowa State Vocational Rehabilitation Services assisted with his living expenses. In furtherance of this alternative career, he has moved to the state of Montana and has opened his own taxidermy shop. Claimant further testified that due to a 25-pound lifting restriction, along with restrictions against repetitive stress imposed by his treating physician, Kirby R. Hotchner, D.O., he is physically unable to perform the farmwork, plumbing and electrical work, service station work and other such work in which he has experience, except for light bakery delivery and life saving. Claimant was clear in testifying that light-duty work does not exist in the ironworking trade, which is very physically demanding in all respects. Claimant testified that he sustained his injury of June 6, 1984 while installing rerods and concrete on a muddy day; because of the necessity to complete work before concrete sets, work must be performed at a hurried pace. Claimant fist sought attention from Dr. McMillan of Decatur County Hospital, and was hospitalized for several days. Thereafter he sought treatment from Kirby R. Hotchner, M.D., the primary treating physician. When claimant first saw Dr. Hotchner he suffered from numbness in both legs. He was treated with manipulation and a regimen of exercises and stretching after x-rays were taken. Dr. Hotchner did not immediately release claimant to return to work. WEST V. L.H. SOWLES PAGE 3 Claimant testified that he gradually improved while under Dr. Hotchner's care and was eventually released to return to work with light duty restrictions in December, 1984. Claimant did return to work and continued until January 17, 1985. He testified that during the last week of that work numbness began returning to his legs along with more back pain. Claimant was paid weekly benefits while attempting to return to work. Claimant continued to see Dr. Hotchner after January 17, 1985, when he was again taken off work. Claimant was again treated with an exercise regimen, manipulation and pain medication. Claimant saw no other physicians from January, 1985 through September, 1985, when he was referred to Iowa Methodist Medical Center for a CT scan. Claimant believed that he slowly improved during calendar year 1985 up to the point when he saw William Boulden, M.D., for evaluation on December 23, 1985. He discontinued seeing Dr. Hotchner when he moved to Montana (in pursuit of his new taxidermy business) in late 1985. Dr. Hotchner was unable to refer him to a Montana physician for follow-up treatment. Claimant believed that he had reached a plateau by the time he saw Dr. Boulden. In fact, claimant believes that he has failed to improve since that time; when he works too hard or reaches the wrong way, his condition deteriorates from that plateau, but then slowly improves back to that point. Claimant testified that he currently suffers front back pain all the time, although numbness does not now radiate to either leg. He testified that his current problems include an inability to ride long distances in a car, change flat tires or move furniture. He indicated that he continues to suffer a great deal of lower back pain and must take frequent breaks during the day along with pain medication. Claimant testified that he elected training in the taxidermy field because he believed he was physically unable to perform most other jobs listed by his vocational rehabilitation counselor. In self-employment, claimant believed that he would have the option of sitting down periodically during the day or even lying down Lo use a heat pad if necessary. Although he carefully researched to find an area in which he might be successful in the taxidermy trade, there are 25 licensed taxidermists in the valley where he now resides and competition is described as "very stiff. Claimant believes that it will take him several years to build up his taxidermy business, and indicative of that was a business loss of $9,660 for calendar year 1986. Even though claimant believes it will take four or five years to know whether the business will be successful, he does not anticipate that the trade will ever pay as much as ironwork, even if it is successful. Of course, the self-employment does not include fringe benefits such as insurance, paid vacations and the like. Testimony was also taken from Robert Wayne Jones, vocational evaluator with the Occupational Medicine Department of Mercy Hospital Medical Center in Des Moines, Iowa. Mr. Jones testified that claimant was evaluated on November 6 and 7, 1984, and that he participated in that vocational evaluation by administering the vocational aptitude, interest testing and vocational dexterity tests. Mr. Jones had at that time received a report from Marvin Dubansky, M.D., indicating that claimant might be unable to return to his previous employment as an ironworker. WEST V. L.H. SOWLES PAGE 4 Mr. Jones testified that claimant's aptitudes are very high as opposed to adults in the general population, and that all aptitudes were at least average and into the superior range. Claimant is also highly motivated. In matching an individual to a vocation, a vocational rehabilitation expert also takes into account an individual's interests. By using the Dictionary of Occupational Titles published by the United States Department of Labor, Mr. Jones opined that if claimant were physically able to work as an ironworker prior to his injury, he would be physically able to do almost any of the jobs listed in that dictionary. Mr. Jones indicated that he had reviewed the report of Dr. Boulden dated December 23, 1985, and considered the physical limitations that were placed upon claimant by Dr. Boulden and by Dr. Hotchner, including a lifting limitation of 25 pounds. A lifting restriction of 25 pounds would limit claimant to jobs which are classified as being either sedentary or light in physical requirements. Of the 12,106 job descriptions in the Dictionary of Occupational Titles, 7,429 are classified as either sedentary or light. However, Mr. Jones indicated that many of those jobs also require climbing, balancing, bending, stooping, kneeling, crouching, crawling or other similar activities. Therefore, Mr. Jones also excluded those positions due to claimant's physical restrictions. Considering claimant's restrictions, interests and aptitudes, Mr. Jones was able to consider a representative list of positions that would require no more than two years of retraining. Those included positions such as mechanical draftsman, electronics technician, janitor, retail store manager, printing press operator, production machine operator, television and radio repair person, tool and dye maker and combination welder. In each case, entry level or even median wages we're well below those paid to ironworkers. In Polk County, Iowa, structural steelworkers are paid an average wage of $14.13 per hour. Mr. Jones testified that generally it would be very difficult to place claimant in a vocation at the present time that would pay the same as a structural steelworker (ironworker) considering his age, education and physical limitations, along with his interests and aptitudes. Mr. Jones also testified that claimant scored high in both interest and aptitude in numerous other positions, but these were excluded from consideration because of claimant's physical limitations. Claimant was seen by Dr. McMillan on June 11, 1984. Dr. McMillan's notes reflect claimant complained of an accident lifting steel on June 6, 1984. Claimant at that time was complaining of his back and left leg. An x-ray report dated June 11, 1984 notes that the lumbar spine shows satisfactory alignment and minimal joint space narrowing of the lumbosacral junction. Dr. McMillan prepared an insurance report on September 13, 1984 in which he agreed that the accident reported by claimant was the only cause of claimant's condition, described as severe lumbar muscle strain. Further notes of the Decatur County Hospital show that Dr. McMillan found x-ray and diagnostic findings to be nondiagnostic and that physical findings were unremarkable except for marked muscle spasm, left side of the spine. Dr. McMillan's notes further show that "there is no neurological loss and patient states that he has no radiation of the low back pain down WEST V. L.H. SOWLES PAGE 5 either leg." Kirby R. Hotchner, D.O., is an assistant professor at the University of Osteopathic Medicine and Health Sciences in Des Moines, Iowa. As noted above, he was claimant's treating physician for this ailment. Dr. Hotchner prepared a surgeon's report for insurance purposes on September 10, 1984. While he believed at that time that claimant's injury would not result in permanent defect, it is also significant that he agreed that the accident reported by claimant was the only cause of his condition. In a letter of July 8, 1985, Dr. Hotchner indicated that claimant was continuing to heal, but had not reached maximum recuperation. In a letter of August 27, 1984, Dr. Hotchner reports that claimant's initial visit was on June 22, 1984, at which time he found muscle contractures with tenderness over the left sacroiliac junction. He noted that orthopaedic and neurological tests were normal, although claimant complained of numbness in his right foot. Dr. Hotchner's initial diagnosis was lumbar myosotis with lumbosacral spine somatic dysfunction. Dr. Hotchner noted that claimant had been and would be treated with manipulative therapy. On October 25, 1984, Dr. Hotchner wrote that claimant was continuing to make progress and might be able to return to work in about two weeks. His future prognosis was seen as good. On November 5, 1984, Dr. Hotchner reported that claimant was almost totally recovered and that he anticipated releasing him to return to work after treatment in two weeks. On November 21, 1984, Dr. Hotchner reported that claimant was released to return to work with light-duty restrictions, including lifting over 15 pounds. On January 8, 1985, the doctor reported that claimant had last been seen on December 20, at which time he still had a nagging pain in the left buttocks region due to a chronic piriformis contracture. He indicated that claimant should have no permanent disability. Dr. Hotchner wrote again on January 29, 1985. This was after claimant had again been seen on January 17, 1985, following further pain while at work. Claimant at that time complained of low back pain radiating to the right buttocks region. Further, the chronic complaint of pain in the right hip region was exacerbated. Claimant demonstrated a right rotation of L4 and L5 with a tight left piriformis along with some muscle spasm in the lower back. Dr. Hotchner opined that claimant's injury would only set him back a few weeks, but imposed a lifting restriction of 25 pounds and suggested that claimant change jobs so he would not have to lift so much; otherwise, claimant's back might never permanently heal. This lifting restriction has never been removed. Dr. Hotchner wrote again on May 17, 1985, indicating claimant had received osteopathic manipulation on five occasions since January 17, 1985. At that time, the January injury was resolved, but the doctor noted chronic pain in the left hip area continuing to gradually improve but aggravated by prolonged driving, sitting and lifting. Although Dr. Hotchner did not know if claimant would have any permanent partial impairment, he did feel that claimant should not go back to a job requiring heavy lifting so as to avoid a relapse. WEST V. L.H. SOWLES PAGE 6 Dr. Hotchner's last contribution was a letter of August 20, 1985 to claimant's attorney. He noted that claimant continued to receive treatments about once a month, still complained of lumbar pain, and was at that time still unable to do heavy lifting (over 25 pounds), to drive long distance or to subject his back to any kind of repetitive stress. Dr. Hotchner at this time assessed claimant's impairment at five percent of the whole body and noted that the prognosis was guarded. He estimated that claimant would reach maximum healing in three to six months' time. Following a return to work assessment at Mercy Hospital Medical Center Medical occupational Evaluation Center on November 6 and 7, 1984, an orthopaedic report was prepared by Marvin Dubansky, M.D., on November 7, 1984. Dr. Dubansky noted that claimant's history referred to the June 6, 1984 incident while he spent the day bent over tying rerods, but further noted that claimant indicated a strain of his low back picking up some things on the job two weeks previously, and that he had been off work one day. Claimant reported to Dr. Dubansky that he consulted a physician in Osceola, Iowa, was given some pain pills, and then went to Canada for about a week on a fishing vacation before returning to work. Claimant worked only three days before June 6, 1984. Claimant indicated that he developed "pulsations" about 10:00 p.m. after working on the reinforcing rods. Such,pulsations occurred in both legs and were accompanied by numbness in the left leg down to and including all toes. As of the evaluation, claimant no longer had pulsations or numbness. In reviewing the x-rays taken June 11, 1984, Dr. Dubansky noted that the lumbosacral spine showed good preservation of all the intervertebral disc spaces and that there was no evidence of fracture or bony abnormality except for a transitional facet joint at the lumbosacral area on the left. Dr. Dubansky felt that claimant had reached a state of maximum recuperation, but was concerned that if claimant returned to his regular ironwork, "he is not going to last; he's going to be right back again." Dr. Dubansky felt that claimant showed evidence of nerve root impingement on the left and opined that heavy manual labor would continue to give claimant further troubles. Dr. Dubansky assigned a five percent permanent impairment of the body as a whole rating at that time. Claimant also saw William R. Boulden, M.D., on December 23, 1985 for evaluation. Dr. Boulden is an orthopaedic surgeon. After reviewing claimant's history, Dr. Boulden noted that claimant had only 20 degrees of left and right lateral bending and that extension caused more pain. Straight leg raising on each side caused low back pain but not radicular symptoms. Dr. Boulden took flexion-extension views of the spine showing claimant to have some retrolisthesis at L4-5, with disc space narrowing at L5-S1. Dr. Boulden had an impression of low back pain, probably secondary to spinal instability and associated internal disc disruption. He felt that claimant could not return to his previous position as an ironworker and would require a position where he would not be required to do "any bending, stooping or lifting with his back. As far as weight restrictions go, whatever he can lift by his arms, while using proper biomechanics of the spine, would be in order." WEST V. L.H. SOWLES PAGE 7 Dr. Boulden further opined that claimant had reached his maximum recuperation approximately 12 weeks from the date of his last time off from work and that he should have plateaued at that time. Dr. Boulden assigned a permanent impairment rating of five percent of the lumbar spine based on the fact of spinal instability and disc space narrowing, probably representing internal disc disruption. A CT scan was done by Joseph D. Hall, M.D., on September 12, 1985. His findings: 9-12-85 CT of the lumbar spine: Contiguous sections were made from the L3 to the L5-Sl level. There is no evidence of a protruded intervertebral disc at any of the demonstrated levels nor is there evidence of compression or entrapment of the neural elements at any of the demonstrated. There is some minimal degenerative change noted about the articular facets at the L3-4 and the L4-5 levels. 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). WEST V. L.H. SOWLES PAGE 8 The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The supreme court of Iowa in Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934) at 731-32, discussed the definition 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 Workmens 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 injury of June 6, 1984 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). WEST V. L.H. SOWLES PAGE 9 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). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, (1962). Our supreme court has stated many times that a claimant may recover for a work connected aggravation of a preexisting condition. Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). See also Auxier v. Woodward State Hospital Sch., 266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 (1960). Although the concept of arising out of and in the course of employment and causal connection were identified as hearing issues, the parties did not extensively brief those questions. Claimant's uncontradicted testimony shows that he developed acute distress shortly after working in an unusual, bent over position for an extended period while tying reinforcing rods. He did not have a history of prior back problems causing him to lose time from work. There is no indication that claimant was not in the course of his employment while actually tying the rerods. Whether the aggravation or "lighting up" of a previous weakness or an entirely new injury, the deputy accepts it as establishes that the incident of June 6, 1984 both arose out of and in the course of claimant's employment. Causal connection to claimant's injury is a closer issue. As has been seen, this is primarily an issue for medical opinion. While not wholly satisfactory, the evidence does show that two physicians have causally linked the injury to claimant's work. Dr. Hotchner prepared an insurance form on September 10, 1984 and Dr. McMillan did likewise on September 13, 1984. Each checked a preprinted box to indicate that causal connection existed. While this evidence is perhaps not overwhelming, it stands uncontradicted and establishes causation. While Dr. Dubansky notes that claimant's history referred to an earlier incident, this also occurred at work and apparently did not lead to lost time or other problems. The parties are very much at odds as to the extent of WEST V. L.H. SOWLES PAGE 10 claimant's entitlement to healing period benefits. The medical evidence is in disarray as to when claimant reached maximum recuperation. The treating physician, Dr. Hotchner, expressed an opinion that claimant would reach maximum healing three to six months from August 20, 1985. Of course, this was a prediction and not a direct finding that claimant at any point did reach maximum recuperation. Dr. Dubansky felt that claimant was healed as early as November 7, 1984, but this was before claimant returned to work and exacerbated his injury, then leaving work again on January 17, 1985. Dr. Dubansky did not see claimant after this exacerbation, and it is clear from the evidence of Dr. Hotchner that claimant was again disabled following his unsuccessful return to work. Dr. Boulden expressed the opinion that claimant had reached his healing period approximately 12 weeks from the date of his last time at work. This would be in mid-April, 1985. Of course, Dr. Boulden did not see claimant at any time near April, 1985, but only on December 23, 1985. It is hereby found that claimant reached maximum recuperation and the end of his healing period on December 23, 1985. As of that date, Dr. Boulden's testimony established that he had reached maximum recuperation. He had not reached maximum recuperation as per Dr. Hotchner's opinion as of August 20, 1985, but would do so in three to six months from that date. Of course, December 23 is within that time frame. Even though Dr. Boulden was of the view that claimant had reached maximum recuperation much earlier, this opinion is based upon speculation. Therefore, claimant shall be awarded 80 5/7 (80.714) weeks of healing period benefits. The medical evidence shows that claimant has a permanent impairment resulting from his injuries. While the record is unclear as to exactly the nature of claimant's continued problem, the medical evidence establishes that a problem in his back continues to exist. Dr. McMillan did not express an opinion as to permanency. Dr. Hotchner initially diagnosed lumbar myosotis with lumbosacral spine somatic dysfunction, but never particularly changed that diagnosis or established a final diagnosis beyond chronic pain and muscle spasm. However, Dr. Hotchner imposed a permanent lifting restriction, felt that claimant should not return to his position, and assessed claimant's impairment at five percent of the body as a whole, with a guarded prognosis. Dr. Dubansky felt that claimant showed evidence of nerve root impingement on the left, noted that heavy manual labor would continue to give him further trouble, in particular his position as an ironworker, and also assigned a five percent permanent impairment rating. Dr. Boulden had an impression of low back pain, probably secondary to spinal instability and associated internal disc disruption. He also felt that claimant could not return to his previous position and also assigned a permanent impairment rating of five percent of the lumbar spine. Thus, it is established that claimant does suffer from a permanent partial impairment. As claimant has an impairment to the body as a whole, and is thereby disabled from returning to his work, 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 WEST V. L.H. SOWLES PAGE 11 man." Functional disability is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. This is so as impairment and disability are not synonymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the later to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to d degree of impairment. of bodily function. Factors to be considered in determining industrial disability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial disability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985). The evidence is undisputed that claimant had reached the top of his profession at the time of his injury. Before the injury, he was a competent and qualified ironworker, while now he is unable to return to that profession. There is no doubt that he has suffered an industrial disability. However, claimant's future is not entirely dark. The evidence shows that he is highly motivated, intelligent and gifted with aptitudes and talents in a large variety of areas. WEST V. L.H. SOWLES PAGE 12 Claimant was 35 years old at the time of his injury, and while it is unfortunate that he devoted so many years to developing his expertise as an ironworker, it is unrealistic to suppose that a talented and able 35-year-old is unable to retrain and reach success in a new profession. In fact, claimant has undertaken a retraining program and has commendably set out to make his way in a wholly different field, that of taxidermy. The evidence shows that it may be several years before claimant knows to what degree he will be successful in the taxidermy field. While he suffered a business loss during calendar year 1986, this can hardly be considered unusual or unexpected for an individual setting up a new business, particularly one as competitive as appears to be taxidermy in western Montana. And after all, business losses during a start-up stage can be misleading, because they are calculated for tax purposes. Also to be considered is that claimant appears to have a fairly wide variety of options available to him, some of which might be more remunerative than taxidermy, or at least more remunerative than taxidermy has been thus far. After all, it is not merely a loss of earnings that is to be considered, but a loss of earning capacity. The testimony of Robert Jones shows that claimant, either with retraining or with selective placement,might well be successful in a variety of different positions. However, since none of those positions appear to pay remuneration equivalent to that of a skilled ironworker, it is WEST V. L.H. SOWLES PAGE 13 clear that claimant's earning capacity, along with his actual earnings, has been reduced. Given the above considerations, this deputy finds and concludes that claimant has, by reason of his work-related injury, suffered an industrial disability of 20% of the body as a whole, the commencement date for permanent partial disability being December 24, 1985. Also at issue are vocational rehabilitation benefits under Iowa Code section 85.70. Claimant has sustained an injury resulting in permanent partial disability for which compensation is payable under this Chapter and apparently cannot return to reasonable gainful employment due to the disability. Claimant was unable to prove the precise amount of time he spent in vocational rehabilitation training (11 or 12 weeks), but did establish at least 11 weeks. This shall be at the statutory amount of $20.00 per week. The fact that claimant received some assistance from the state of Iowa for his housing expenses does not operate to relieve defendants of this statutory burden. FINDINGS OF FACT THEREFORE, based on the evidence presented, the following ultimate facts are found: 1. Claimant was employed by defendant L. H. Sowles Company as an ironworker on June 6, 1984. 2. On that date, claimant spent substantial time during a concrete pour in an unusual and stressful position, bent over tying reinforcing rods; thereafter, he suffered distress and pain to his back and sought medical attention. 3. Claimant's back pains are caused by physical problems of unclear diagnosis, but related to spinal instability and associated internal disc disruption and were either caused, aggravated or "lighted up" by the employment. 4. Claimant was off work for healing period purposes from June 7, 1984 through mid-December, 1984, at which time he returned to work for approximately five weeks until January 17, 1985. 5. Claimant's attempted return to work was unsuccessful and exacerbated his injury, which had to some degree healed as of his attempted return to work. 6. Claimant continued off work for healing purposes through December 23, 1985, at which time he had reached maximum recovery. 7. Claimant's injury of June 6, 1984 resulted in the loss of his job with defendant L. H. Sowles and disability to the extent that claimant is no longer able to perform his professional duties as an ironworker, due to lifting and movement restrictions. 8. At the time of claimant's injury, he was a well-qualified journeyman ironworker. 9. Claimant is a talented, able and highly motivated WEST V. L.H. SOWLES PAGE 14 individual who has successfully completed retraining in the taxidermy field since his injury and has set up a self-employment business in the state of Montana. 10. Claimant's loss of ability to continue his professional duties as an ironworker has caused a diminution both in his earnings and in his earning capacity. 11. Claimant's rate of compensation has been stipulated to be $257.52 per week. 12. Claimant has established that he undertook 11 weeks of vocational rehabilitation training. 13. Defendants have voluntarily paid to claimant 175.429 weeks of compensation at the stipulated rate. CONCLUSIONS OF LAW WHEREFORE, based on the principles of law previously stated, the following conclusions of law are made: 1. Claimant suffered an injury arising out of and in the course of his employment on June 6, 1984. 2. Claimant's injury was an injury to the body as a whole. 3. Claimant's injury directly caused a healing period from June 7, 1984 through December 23, 1985 (80.714 weeks) and permanent partial disability. 4. Claimant has established a permanent partial disability of 20% of the body as a whole, the commencement date being December 24, 1985. 5. Claimant is entitled to 11 weeks of vocational rehabilitation benefits under Iowa Code section 85.70 at $20.00 per week. ORDER THEREFORE, IT IS ORDERED: Defendants are to pay unto claimant eighty point seven one four (80.714) weeks of healing period benefits at the stipulated rate of two hundred fifty-seven and 52/100 dollars ($257.52) per week totalling twenty thousand seven hundred eighty-five and 47/100 dollars ($20,785.47). Defendants are to pay unto claimant one hundred (100) weeks [twenty percent (20%) of five hundred (500) weeks] permanent partial disability at the stipulated rate of two hundred fifty-seven and 52/100 dollars ($257.52) per week totalling twenty-five thousand seven hundred fifty-two and 00/100 dollars ($25,752.00). Defendants are to pay unto claimant eleven (11) weeks of vocational rehabilitation benefits at twenty and 00/100 dollars ($20.00) per week totalling two hundred twenty and 00/100 dollars ($220.00). Defendants shall be entitled to credit for one hundred seventy-five point four two nine (175.429) weeks of compensation WEST V. L.H. SOWLES PAGE 15 at the rate of two hundred fifty-seven and 52/100 dollars ($257.52) which were paid prior to hearing, totalling forty-five thousand one hundred seventy-six and 48/100 dollars ($45,176.48). Since the commencement date for permanent partial disability is December 24, 1985, and all permanent partial disability benefits to which claimant is entitled have accrued, the award shall be paid in a lump sum together with statutory interest pursuant to Iowa Code section 85.30. Costs of this action are assessed against defendants pursuant to Division of Industrial Services Rule 343-4.33. Defendants shall file a Claim Activity Report upon payment of this award pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 30th day of December, 1988. 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. Ross H. Sidney Ms. Iris J. Post Attorneys at Law 2222 Grand Avenue P.O. Box 10434 Des Moines, Iowa 50306 1802, 1803 Filed December 30, 1988 DAVID RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER RONALD WEST, Claimant, vs. File No. 769431 L. H. SOWLES, A R B I T R A T I O N Employer, D E C I S I O N and AMERICAN MUTUAL INSURANCE CO., Insurance Carrier, Defendants. 1802, 1803 Healing period ended when examining physician agreed that claimant had reached maximum recovery (although physician speculated that recovery had been attained much earlier), and where treating physician predicted that recovery would be reached within the time frame in which claimant was seen by examining physician. Claimant awarded 20% permanent partial disability where back injury forced him to leave work as ironworker, and limitations did not fit him for equally remunerative work. BEFORE THE IOWA INDUSTRIAL COMMISSIONER MARTIN L. ZAUHAR, Claimant, File No. 769652 VS. A R B I T R A T I 0 N WILSON FOODS, INC., D E C I S I O N Employer, Self-Insured, Defendant. INTRODUCTION This is a proceeding in arbitration. The case is brought by Martin L. Zauhar, claimant, against Wilson Foods, Inc., self-insured employer. The case was heard by the undersigned on June 2, 1989, in Storm Lake, Iowa. The record consists of joint exhibits 1-34. The record also consists of the testimony of claimant and the testimony of Sheila Zauhar, wife of claimant. ISSUE As a result of the prehearing report and order submitted on June 2, 1989, the issue presented by the parties is: The extent of entitlement to weekly compensation for permanent disability, if defendant is liable for the injuries. STIPULATIONS Prior to the hearing, the parties have entered into a number of stipulations. The stipulations are as follows: 1. The existence of an employer-employee relationship between claimant and employer at the time of the alleged injury; 2. That claimant sustained an injury on July 6, 1984, which arose out of and in the course of employment with employer as to his right shoulder; 3. That the alleged injury is a cause of temporary disability during a period of recovery is stipulated. That the work injury is a cause of permanent disability; ZAUHAR V. WILSON FOODS, INC. Page 2 4. That the extent of entitlement to weekly compensation for temporary total disability or healing period, if defendant is liable for the injury, is stipulated to be from July 7, 1984 to November 4, 1984, from August 23, 1985 to August 29, 1985, and from September 7, 1985 to March 9, 1986. 5. The type of permanent disability, if the injury is found to be a cause of permanent disability, is stipulated to be an industrial disability to the body as a whole. The commencement date for permanent partial disability, in the event such benefits are awarded, is stipulated to be the 10th day of March, 1986. 6. In the event of an award of weekly benefits, the rate of weekly compensation is stipulated to be $212.54 per week. 7. Defendant paid claimant 44.571 weeks of healing period benefits ($9;499.05) and 50 weeks of permanent partial disability benefits ($10,627.00). FACTS PRESENTED Claimant is 53-years-old and married. He has completed high school. In 1969, claimant commenced his employment with defendant. Claimant worked in a number of departments prior to the date of his work injury. Primarily, claimant was involved with hog kill work, including extracting the pancreatic gland from the gut. On the day in question, claimant injured his lower back while he was pulling heavy buckets onto a work table. He filed an accident report with the company subsequent to the injury. Claimant testified that defendant referred him to Keith Garner, M.D. Therapy was ordered by Dr. Garner. Dr. Garner, in turn, referred claimant to Mark Wheeler, M.D. Dr. Wheeler saw claimant on several occasions. In his office notes for August 20, 1984, the physician wrote: Impression: Probable L5-Sl herniated disc which is making progress in terms of healing. Disposition: I have recommended he stay off work until 09/04/84; he could then return if it was on a limited basis calling for lifting no more than 15 lbs., repetitive bending, twisting or standing .... Dr. Garner also referred claimant to John Connolly, M.D., Professor and Chairman, orthopaedics, University of Nebraska Medical Center. Dr. Connolly became the primary treating physician. He diagnosed claimant as follows: ZAUHAR V. WILSON FOODS, INC. Page 3 My impression is that he does have an L-5/S-1 disc protrusion, however, I think this is resolving and should continue to improve over the next 4-6 weeks. I would certainly give it that period of time before recommending any further treatment. He has not been sufficiently disabled to stop working, and I certainly would not recommend that he stay off work. I think the problem should resolve, but if he is not better in six weeks, I would like to know about it and we might consider further evaluation and disc removal, either by injection or by a surgical approach. Claimant, in September of 1985, was then hospitalized for an intradiskal injection of Chymopapain. Dr. Connolly later examined claimant as of July 17, 1986, he opined: Martin Zauhar was in the Orthopaedic Followup Clinic on June 19. He gave a history of having some pain with twisting of back. He said he went to a chiropractor who twisted his back and relieved his symptoms. He continues to work at the meat packing house, but still can't lift anything very heavy. When I examined him, he was nontender and full range of motion in the lumbar spine, being able to get his fingertips to about two inches from the floor. There were no motor nor sensory deficits. I felt he was still doing reasonably well, and needed to continue on his exercise program. At this time, he needs no further therapy. He apparently has been going occasionally to a chiropractor, but I would not recommend long-term treatment of this nature, since he could do most of the exercises himself. We will see him back here if he has any further difficulty. He is to continue aspirin and the exercise program we have discussed with him.... Dr. Connolly also provided a functional impairment rating. He rated claimant as having a "10% loss of back function." Other than the physicians listed above, claimant was also treated by M. A. Kennedy, D.C. Dr. Kennedy initially saw claimant on the date of the work injury. Dr. Kennedy continued treatment through January of 1989. He opined claimant's condition was as follows: Basically, Mr. Zauhar's problem has centered around pain in his lower back and pain in the buttocks [sic] and into the left leg. This particular condition has centered itself in the entirety of the time of his care. As of the present time, we still have ZAUHAR V. WILSON FOODS, INC. Page 4 a marked residual into the right hip and leg accompanying our pre-existing pain. This particular individual has been awarded many diagnoses. The 7/15/85 diagnosis of adhesive capsulitis was given by myself. That particular diagnosis I will maintain, in conjunction [sic] with a 5L disc degeneration. The above-captioned patient's back problem has without a doubt left him with a permanent impairment. This impairment is very difficult to put an impairment rating on due to the fact that we have never done such in our office. Looking back through the notes, however brief they may appear to yourself, they definitely substantiate the case that has been needed for this individual [sic] With approximately 24 years of clinical experience, I feel without a doubt that his permanent back involvement was substantially caused by his employment at Wilson Foods. The jolts and jars which an individual undergoes through normal "being man of the house" had just a fraction of any disabling percentage. Mr. Zauhar's need for further care will vary with his type of employment, fatigue, and weather conditions. Proper exercising will aid his condition. Claimant was released to return to work on March 10, 1986. He testified he was under no lifting restrictions. However, claimant indicated the hog kill floor was closed upon his return to work. He was thus placed in the recipe ready room where he worked on the McDonald line for four months. Claimant testified that defendant has engaged in reorganization. Some departments within the plant have been closed. As a result of the reorganization, claimant has been unable to hold a permanent position. Laid off workers, including claimant, have been placed in a labor pool where they are required to report for possible duty every Monday morning. According to claimant's testimony, he has "worked pretty consistently" since the labor pool has been instituted. During his hearing, claimant reported that as of April of 1988, he has been bumped into the sausage department where he inspects wieners. Claimant testified the wiener inspection job is tedious, it requires standing, but no lifting is involved, and the job is better than if claimant is required to bend. Ms. Zauhar testified on behalf of claimant. She stated claimant does his exercises every morning, and when claimant ZAUHAR V. WILSON FOODS, INC. Page 5 is experiencing pain, he takes aspirin to relieve the situation. She also indicated claimant cannot assist with the housework. APPLICABLE LAW An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(l). Claimant has the burden of proving by a preponderance of the evidence that he received an injury on July 6, 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 claimant has the burden of proving by a preponderance of the evidence that the injury of July 6, 1984, is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691,.73 N.W.2d 73 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). 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). ZAUHAR V. WILSON FOODS, INC. Page 6 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, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. This is so as impairment and disability are not synonymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial disability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial disability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v.Hagen, Inc., (Appeal Decision, March 26, 1985). ZAUHAR V. WILSON FOODS, INC. Page 7 For example, a defendant employer's refusal to give any sort of work to a claimant after he suffers his affliction may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). Similarly, a claimant's inability to find other suitable work after making bona fide efforts to find such work may indicate that relief would be granted. McSpadden, 288 N.W.2d 181 (Iowa 1980) ANALYSIS The sole issue to address is the nature and extent of claimant's permanent disability. It is noted the only functional impairment rating is the 10 percent figure provided by Dr. Connolly. While Dr. Kennedy states there is a functional impairment, his opinion cannot be given much weight since Dr. Kennedy admits he has never provided a functional impairment rating in his 24 years of practice. In light of the foregoing, the undersigned finds that claimant has a functional impairment of 10 percent as a result of claimant's work injury on July 6, 1984. Claimant argues he has an industrial disability. He maintains he has a loss of earning capacity and a loss of earnings. Defendant supports the position that claimant's permanent partial disability is no greater than the 10 percent functional impairment rating. Claimant has been able to work since he has returned to the plant on March 9, 1986. He has returned to work without any restrictions placed upon him by a medical practitioner. Any restrictions have been self-imposed. Such was the case when claimant chose not to bump into the pace boning department. Since April, claimant has bumped into the sausage room. By his own admission, claimant is better able to handle this position rather than a position where he is required to bend and twist. Claimant's present position involves minimal lifting. Claimant has not proven by a preponderance of the evidence that he has reduced his earning capacity as a result of his back injury. Claimant is under no physical restrictions. No limitations have been placed upon him. He is capable of handling the jobs within the plant. Likewise, claimant has not established that he has a loss of earnings as a result of his back injury. There is no question claimant's present hourly wages are less than the wages he has earned in previous years. However, the wage reduction is not attributable to claimant's back condition. Rather, the wage reduction is one which affects all employees. Across the board, ZAUHAR V. WILSON FOODS, INC. Page 8 defendant's employees have sustained wage cuts. Claimant has not established his back injury has resulted in a loss of earnings to him. It is the determination of the undersigned that claimant has a permanent partial disability of 10 percent. This finding is based on: 1) the aforementioned considerations; 2) based upon the permanent functional impairment rating assigned by Dr. Connolly; 3) based upon personal observation of claimant; 4) based upon claimant's testimony at the hearing; and, 5) based upon agency expertise, (Iowa Administrative Procedures Act 17A.14(s). FINDINGS OF FACT AND CONCLUSIONS OF LAW WHEREFORE, based on the evidence presented and the principles of law previously stated, the following findings of fact and conclusions of law are made: FINDING 1. Claimant sustained a back injury arising out of and in the course of his employment on July 6, 1984. FINDING 2. As a result of his injury on July 6, 1984, claimant has an attributable functional impairment of 10 percent of the body as a whole. FINDING 3. Claimant's loss of earnings is not attributable to his back injury of July 6, 1984. FINDING 4. Claimant has not reduced his earning capacity as a result of his back injury on July 6, 1984. FINDING 5. Claimant has no medical restrictions on the job. CONCLUSION A. Claimant has met his burden of proving he has a 10 percent permanent partial disability as a result of his injury on July 6, 1984. CONCLUSION B. Claimant is entitled to 44.571 weeks of healing period benefits. ORDER THEREFORE, defendant is to pay unto claimant fifty (50) weeks of permanent partial disability benefits at the rate of two hundred twelve and 54/100 dollars ($212.54) per week as a result of the injury on July 6, 1984. Defendant is to also pay unto claimant forty-four and five-seven-one (44.571) weeks of healing period benefits at ZAUHAR V. WILSON FOODS, INC. Page 9 the rate of two hundred twelve and 54/100 dollars ($212.54) per week as a result of the injury on July 6, 1984. Payments that have accrued shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30 Defendant is to be given credit for all benefits previously paid to claimant. Costs of this action are assessed against the defendant pursuant to Division of Industrial Services Rule 343-4.33. Defendant shall file a claim activity report upon payment of this award. Signed and filed this 31st day of August, 1989. MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Harry H. Smith Mr. Dennis M. McElwain Attorneys at Law 632-640 Badgerow Bldg. P. 0. Box 1194 Sioux City, Iowa 51102 Mr. David L. Sayre Attorney at Law 223 Pine St. P. 0. Box 535 Cherokee, Iowa 51012 5-1803 Filed August 31, 1989 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER MARTIN L. ZAUHAR, Claimant, File No. 769652 VS. A R B I T R A T I 0 N WILSON FOODS, INC., D E C I S I 0 N Employer, Self-Insured, Defendant. 5-1803 Claimant was awarded a 10 percent permanent partial disability after he injured his back at work. Claimant was given a 10 percent functional impairment rating by his treating physician. Claimant was placed under no restrictions upon his return to work. Claimant's loss of earnings determined to be unrelated to claimant's back injury. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ THERESE STUMP, Claimant, VS. File No. 769748 HAWKEYE BANCORP, A P P E A L Employer, D E C I S I 0 N and CIGNA INA, Insurance Carrier, Defendants. _________________________________________________________________ STATEMENT OF THE CASE Claimant appeals from an arbitration decision denying all compensation because she did not establish that she sustained an injury arising out of and in the course of employment. The record on appeal consists of the transcript of the arbitration hearing and joint exhibits A through X. 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 employment at Hawkeye Bancorp. REVIEW OF THE EVIDENCE The arbitration decision adequately and accurately reflects the pertinent evidence and it will not be totally reiterated herein. Claimant alleges that she sustained a work injury to her neck. The hearing deputy in the arbitration decision stated: Claimant described her work station as having a chair with castors and a computer screen immediately in front of the chair. She reported that she had a phone to the left of the chair and that the computer keyboard was to the right of the chair. Claimant indicated that while talking on the telephone, she had to hold the phone with her left shoulder while punching the the [sic] customer's credit card number into the keyboard and looking to the left of the keyboard at the computer screen. Claimant indicated that she was bent over the keyboard while turned to the left to view the computer screen while composing letters. Claimant's supervisor, Kathryn Layton, testified that claimant spent approximately 75 to 80 percent of her time doing paper work. She also stated that a special phone was purchased for claimant which she could rest on her shoulder. Claimant's job required her to handle a large volume of work and sometimes handle irate customers. Layton opined that claimant was distressed by her father's sudden death in June 1983 and by her family financial situation because her husband was laid off from work and underwent back surgery in early 1983. Claimant testified she first began experiencing neck problems in late spring or summer 1983. First she only noticed a slight shaking of her neck, however, this shaking soon became constant and pain developed on the right side of her neck. Claimant resigned in January 1984. She has not worked since that time. Claimant has sought treatment from a number of physicians and chiropractors. Eric A. Ravitz, D.O., states the following in a letter to claimant's attorney dated December 16, 1985: I first came to know Therese in March 1985 at which time it was obvious to me that she had chronic torticollis. Medical therapy and referral to Iowa City was initiated then. Therese has had minimal response to all therapeutic modalities so far. Because of the disappointing response I referred her to Dr. Steve Adelman, neurologist, who suggested biofeedback. He said if that wasn't successful, consideration to have a surgical procedure done might be effective. To answer your specific questions: 1.) Therese's diagnosis remains chronic spasmodic torticollis with a guarded prognosis. 2.) With a reasonable degree of medical certainty I can say her condition was aggravated and possibly accelerated by her work at the Credit Card Center. 3.) Therese still has the possibility of her condition improving through physical or surgical means. 4.) At this point I cannot say to what degree Therese is disabled or if it is permanent. (Joint Exhibit E) In their report the examining physicians at University of Iowa Hospitals state: Impression: Torticollis, etiology unknown. There are no obvious or palpable masses in her neck or tenderness. No evidence of enlarged cervical nodes no superclavicular nodes. Her thyroid did not feel enlarged. We are not exactly sure what the cause of this problem is, however, it is our impression that the torticollis, while not having a directly related organic cause can be treated reasonably well in this patient with a course of physical therapy including isometric exercises, working on her range of motion and using a TENS unit. Hopefully this will resolve the STUMP V. HAWKEYE BANCORP Page 3 problem. We will see her back in three months time for further follow-up. (Joint Ex. C) Claimant's follow-up examination at University of Iowa Hospitals did not result in any change in this impression. Claimant has also seen Robert A. Hayne, M.D., a neurosurgeon. Dr. Hayne disagrees with the diagnosis of torticollis. He opines the following in a letter to defense counsel dated May 9, 1985: I do not feel she has chronic torticollis and she does not exhibit symptoms that are associated with this problem. I feel that her prognosis should be good for spontaneous subsidence of symptoms. At this time it is my opinion she has not sustained any permanent impairment. I would feel the healing period would end about four to six weeks post-injury. The shaking that she described had been a problem to her and her pain had practically diminished at the time of my examination. She seemed to feel her work running the computer required her to turn her head frequently and therefore aggravated her symptoms and I felt if this were the case, she should not return to this type of job which does require her to turn her head on a prolonged daily basis. I feel she should be able to perform almost any other task which would require head movement occasionally. I do not feel there is any need for continue chiropractic treatments. (Joint Ex. A) In his deposition Dr. Hayne explains that he does not agree that claimant has torticollis because the degree of deviation of her head was less what he has seen in previous cases and claimant does not have intermittent movement of the head to the side. He states that his opinion would not change if claimant had a history of working in a position which required her to keep her head in a position to the left and down for long periods of time. Claimant has seen Robert C. Jones, M.D., a neurosurgeon. Dr. Jones states: I felt that she had some type of cervical stress syndrome. I suggested physical therapy to the neck but she has a financial problem and she had to forego this. I prescribed Equagesic as a muscle relaxant-pain killer and she was no better when I last saw her on February 20, 1984. As she has probably told you, she has been under a great deal of stress both on the job and financially. It could be that the position of her head STUMP V. HAWKEYE BANCORP Page 4 while working at the computer had a bearing on her neck problem but it is my feeling that stress kept the problem going. (Joint Ex. D) John S. Barakat, D.C., has opined that claimant's condition was related to her employment. APPLICABLE LAW The citations of law in the arbitration decision are appropriate to the issues and evidence. ANALYSIS In her appeal brief claimant argues that the deputy placed undue reliance on the opinions of Dr. Hayne since Dr. Hayne only examined claimant one time. In Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985) the Iowa Supreme Court stated: We think a rule of law would be unwise that a treating physician's testimony should be given greater weight than that of a later physician who examines the patient in anticipation of litigation. The employer should and does have the right to develop the facts as to a latter physician's employment in connection with litigation, his examination at a later date and not when the injuries were fresh, his arrangement as to compensation, the extent and nature of his examination, his education, experience, training, and practice, and all other factors which bear upon the weight and value of his testimony. The claimant may similarly develop such information as to the treating physician. Both parties may press all of this information to the attention of the fact finder, as either supporting or weakening the physician's testimony and opinion. All these factors, however, go to the value of the physician's testimony as a matter of fact, not as a matter of law. (Emphasis by the Court) In the decision the deputy set out several reasons for rejecting the diagnosis of torticollis related to claimant's work. First, the deputy noted that the length of time claimant spent in the position which she alleges caused her condition was not extensive. Claimant contends she developed a permanent distortion of her neck position as a result of working with her head down and turned to the left. We concede that claimant has a physical problem. We reject its work-relatedness for several reasons. The record does not establish that claimant worked extensively with her head in the position which she alleges produced her condition., Hence, it does not appear the physical STUMP V. HAWKEYE BANCORP Page 5 maneuver could have created or sustained her continuing problems. Second, the deputy noted that claimant's symptoms have persisted long after she left her employment with defendant. This, the deputy reasoned, supports a finding that the problem is related to stress and noted that claimant was experiencing personal stress. Finally the deputy examined the qualifications of the testifying doctors noting that Drs. Hayne and Jones specialized in neurosurgery. Dr. Ravitz' speciality was family practice. The qualifications and expertise of a witness is very germane in a determination of the weight to be given testimony. The deputy concluded that claimant did not meet her burden in proving she sustained an injury arising out of and in the course of employment. The undersigned comes to the same conclusion. The findings of fact, conclusions of law and order of the deputy are adopted herein. FINDINGS OF FACT 1. Claimant worked full-time as a customer service representative at the credit card center from September 27, 1982 to December 12, 1983. 2. Claimant spent approximately 20 to 25 percent of her time on the telephone and approximately 75 to 80 percent of her time in paperwork. 3. Claimant's employer purchased a special phone for her which claimant rested on her left shoulder. 4. Claimant's work station consisted of a telephone to the left, a computer screen in the center, and computer keyboard to the right. 5. Claimant had to look left at the screen while using the keyboard. 6. Claimant also used the computer screen and keyboard to compose letters. 7. Claimant first experienced symptoms in spring and summer 1983. 8. Claimant was having personal and financial stresses at that time. 9. Claimant had problems with her work supervisor and a heavy workload. 10. Claimant's neck condition has persisted long after she has left both the physical conditions and the emotional stresses related to her work. 11. Dr. Hayne is a neurosurgeon who has practiced since the early 1950's. 12. Dr. Ravitz is a family practice specialist. STUMP V. HAWKEYE BANCORP Page 6 13. Dr. Jones is a neurologist. 14. Claimant's condition more likely than not relates to her personal stresses and not to her work. CONCLUSION OF LAW Claimant failed to meet her burden in proving she received an injury arising out of and in the course of her employment with defendants. 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 the appeal. Signed and filed this 31st day of August, 1987. DAVID E. LINQUIST ACTING INDUSTRIAL COMMISSIONER Copies TO: Mr. David D. Drake Attorney at Law 2141 Grand Avenue P.O. Box 367 Des Moines, Iowa 50302 Mr. Marvin E. Duckworth Attorney at Law 2700 Grand Ave., Suite 111 Des Moines, Iowa 50312 1402.20-1402.30-2602 Filed August 31, 1987 DAVID E. LINQUIST BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ THERESE STUMP, Claimant, VS. File No. 769748 HAWKEYE BANCORP, A P P E A L Employer, D E C I S I 0 N and CIGNA INA, Insurance Carrier, Defendants. _________________________________________________________________ 1402.20 - 1402.30 - 2602 Claimant alleged that she suffers chronic torticollis as a result of her work which she maintained required that she hold a phone with her left shoulder while operating a keyboard and looking to the left at a computer screen. Medical evidence was in conflict, however, the opinions of Drs. Hayne and Jones were adopted in light of their specialization in neurosurgery. No injury arising out of and in the course of employment found. Affirmed.