BEFORE THE IOWA INDUSTRIAL COMMISSIONER JAMES CLARK, Claimant, File No. 774457 VS. PULLEY FREIGHT LINES, A R B I T R A T I O N Employer, D E C I S I O N and NATIONAL UNION FIRE INSURANCE, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by James Clark against Pulley Freight Lines, his former employer, and National Union Fire Insurance Company. The case was heard in Des Moines, Iowa on January 20, 1987 and was fully submitted upon conclusion of the hearing. The record in this proceeding consists of claimant's exhibits 1, 2 and 3; defendants' exhibits A through TT; joint exhibits 1 through 10; and testimony from Barbara J. Clark, Denise Morrison, James R. Clark, Larry W. Larsen, Alan Hellenthal, Marlene Smedema, Kathryn Bennett and Mark Wiederin. ISSUES Claimant alleges that he injured his shoulder on January 19, 1984 when he fell from the trailer of his employer's truck following making a delivery in St. Joseph, Missouri for his employer. Claimant seeks compensation for healing period and permanent disability. Defendants deny the occurrence of any such injury, and deny that any alleged fall was a proximate cause of any disability. Defendants further urge that claimant has unreasonably refused to submit to surgery and that such should constitute a forfeiture of any entitlement he may have. Defendants further assert that claimant's refusal to undergo invasive diagnostic testing should likewise forfeit or suspend his right to benefits. Defendants assert that the Iowa Workers' Compensation Act does not apply to this case because the alleged injury, if it occurred at all, occurred in Missouri and that this case does not fall under any of the provisions of Code section 85.71 which would give Iowa subject matter jurisdiction. ANALYSIS The jurisdiction of the subject matter is the power to hear and determine cases of the general class to which the proceedings belong. Green v. Sherman, 173 N.W.2d 843, 846 (Iowa 1970). When a court acts without legal authority to do so, it lacks jurisdiction of the subject matter. In Re Adoption of Gardiner, CLARK V. PULLEY FREIGHT LINES Page 2 287 N.W.2d 555, 559 (Iowa 1980). Jurisdiction of the subject matter cannot be conferred by waiver, estoppel or consent. It can therefore be raised at any time and need not be pled. Steffens v. Proehl, 171 N.W.2d 279 (Iowa 1969). The issue of subject matter jurisdiction is not a typical affirmative defense. In Federal practice, a plaintiff is required to specifically plead the statutory basis for the court's subject matter jurisdiction of the case. No such rule exists in the Iowa courts or before this agency. The lack of a pleading requirement, however, does not relieve the claimant from the burden of proving that the agency has subject matter jurisdiction to determine his claim. The proposition that the burden of proving an entitlement to anything rests on the proponent is so well settled that Rule 14(f)(5) of the Rules of Appellate Procedure provides that the citation of authority for that proposition is not necessary. The same rule regarding burden of proof applies in administrative proceedings. Wonder Life Company v. Liddy, 207 N.W.2d 27 (Iowa 1973). If the facts necessary to establish subject matter jurisdiction are absent, an order dismissing the petition is the only appropriate disposition. Lloyd v. State, 251 N.W.2d 551, 558 (Iowa 1977). The Iowa Industrial Commissioner has subject matter jurisdiction over all injuries suffered by employees within the geographical boundaries of the state of Iowa. [Code section 85.3(2)]. Where an employee is injured outside the territorial limits of this state, the Iowa Industrial Commissioner has subject matter jurisdiction only if one of the four criteria established in Code section 85.71 is present. Those four criteria provide as follows: 1. His employment is principally localized in this state, that is, his employer has a place of business in this or some other state and he regularly works in this state, or if he is domiciled in this state, or 2. He is working under a contract of hire made in this state in employment not principally localized in any state, or 3. He is working under a contract of hire made in this state in employment principally localized in another state, whose workers' compensation law is not applicable to his employer, or 4. He is working under a contract of hire made in this state for employment outside the United States. Subsections 3 and 4 are clearly not applicable in this case. Claimant's employment was not outside the United States as provided by subsection 4. His injury was covered by Missouri workers' compensation and therefore subsection 3 is not applicable. Whether jurisdiction exists under subsections 1 or.2 turns upon a determination of where claimant's employment was principally localized. In 1957 James Clark was hired in Des Moines, Iowa to work CLARK V. PULLEY FREIGHT LINES Page 3 for Pulley Freight Lines (defendants' exhibit V, exhibit SS, pages 16 and 17). He remained employed by Pulley until his retirement following the alleged injury. Claimant testified that he resided in Des Moines, Iowa during most of the years he was employed by Pulley, but moved to Amity, Missouri. The date of the move appears to have been in 1978 (defendants' exhibit SS, pages 17 and 18). Clark thereafter resided in the state of Missouri continuously until moving to Centerville, Iowa after the alleged injury. Mark Wiederin, the executive vice-president for Pulley Freight Lines since August of 1983, testified that Pulley is an interstate motor carrier of specified commodities over irregular routes which operates heavily in a 15-state area, but also to some extent in other states. Wiederin testified that there is no state in which 50% or more of Pulley's activities occur, but that all of the company equipment is maintained out of the Des Moines terminal. Wiederin testified that several years ago the company set up locations where drivers were hired and from where they worked. He referred to the location as a "domicile" and stated that one is located at Kearney, Missouri. Wiederin described a domicile as a place where a driver begins and ends his work week. He testified that claimant's official domicile was at Kearney, Missouri and that for income tax and withholding purposes, claimant was treated as a Missouri resident. Wiederin testified that a driver usually resides near his official domicile. Wiederin testified that, when an employee is at home, he is considered to be available for dispatch if he is eligible to drive additional hours under the applicable administrative regulations. Wiederin also testified that, if an employee desires to move to a different residence, he is required to notify the company. Wiederin testified that in 1983 a special agreement was entered into between the company and claimant. In general, it provided that claimant would always be assigned to haul bones from the Swift plant in Des Moines to the Swift plant in St. Joseph, Missouri rather than having the run be up for bids according to the usual seniority system. Wiederin felt that the arrangement was advantageous to the company because claimant gave up or waived three hours of pay in order to have the bone run. He felt that it was advantageous to claimant because it permitted him to be home every night, to avoid working on weekends, to limit his on-the-road expenses, to give claimant the predictability of knowing what he would be doing from day to day, and also to have an assignment that carried no responsibility for loading or unloading. Wiederin testified that some other drivers were discontent over claimant having the regularly scheduled run, but that it was allowed because it was convenient for both claimant and the company. Wiederin also testified that claimant's seniority was high enough that, on most occasions, he would have had a good chance of bidding the run through the regular system. Wiederin testified that in late 1983 it became apparent that the bone runs which claimant regularly performed would be ending in early 1984 and that they did, in fact, end in March of 1984. A meeting was held with claimant in December, 1983 where the topic of ending the bone runs was discussed. Wiederin CLARK V. PULLEY FREIGHT LINES Page 4 acknowledged that claimant had made bone runs to Chicago shortly before that meeting. Wiederin testified that bones were hauled on a flat rate fee which was not based on weight. He stated that there were overloads on occasion, but not continuously and that a driver had the ability to decline an overload. James Clark testified that all load assignments came out of Des Moines and that the satellite office in Kearney, Missouri was a place where some drivers parked their trucks but that he usually parked his truck at his home over the weekends (defendants' exhibit SS, pages 23 and 24). Clark testified that when he lived in Missouri, he came to Des Moines using Highway 6 and Interstate 35. He testified that the normal route from Des Moines to St. Joseph was Interstate 35 and Highway 36, but that when overloaded, he sometimes used alternate routes in order to avoid scales. He stated that he was overloaded 90% of the time (defendants' exhibit SS, pages 28-31). Claimant testified that his assigned run involved picking up bones at the terminal in Des Moines and then hauling them to Swift Chemical Company in St. Joseph, Missouri. He stated that he had done so on a consistent basis for two or three years (defendants' exhibit SS, pages 21 and 22). Marlene Smedema, a legal assistant for the Nyemaster Law Firm, testified concerning the number of miles which claimant would have driven in both Iowa and Missouri on a typical run and also on the number of hours claimant spent in the respective states while in a duty status according to the log books. Her testimony with regard to the number of miles between Des Moines and:the Iowa-Missouri state line is totally inconsistent with the mileage shown on defendants' exhibit FF, the state maps which were received into evidence. The evidence from the state maps is accepted as correct over her testimony. Defendants' exhibit L is a copy of claimant's weekly pay cards covering the weeks of November 14, 1983 through May 24, 1984. The first 12 pages deal with the times pertinent to the injury. The pay cards show that claimant was paid for traveling 179 miles each way between the Des Moines terminal and the St. Joseph, Missouri Swift plant. Exhibit L shows that claimant made 82 of such runs during the time covered by the exhibit. The pay card also shows him to have been paid for 14 hours of time in St. Joseph, Missouri and one-fourth of an hour in Des Moines, Iowa. The exhibit further shows that claimant was paid, on two occasions, for traveling to Chicago, Illinois, a distance which the pay card shows to be 345 miles each way. Reference to the Iowa map, which is in evidence as part of exhibit FF, shows the distance from the Pulley terminal, which exhibits show to be located at 405 SE 20th in Des Moines, Iowa, to the Iowa-Missouri state line to be approximately 82 miles. The Missouri portion of exhibit FF shows the distance from the Iowa-Missouri state line to the intersection of Highway 36 and Interstate 29 at the east edge of St. Joseph, Missouri to be approximately 90 miles. The exhibits in evidence show the address of the Swift plant to be 4800 Packers Avenue in St. Joseph (exhibit 3, page 1). Exhibit FF contains a small city map of St. Joseph, Missouri, but the map does not show the location of Packers Avenue. It does show the location of the stock yards CLARK V. PULLEY FREIGHT LINES Page 5 and it is quite common for packing houses to be located adjacent to stock yards. Trucking companies typically do not pay the drivers for more miles than what are actually traveled. When 82 miles in Iowa and 90 miles to the east edge of St. Joseph are added the sum is 172 miles. The additional seven miles needed to total 179 miles is most likely the distance from the east edge of St. Joseph to the Swift plant. Although the Swift plant is not necessarily located near the stock yards, seven miles would be approximately the distance from the east edge of St. Joseph on Highway 36 to the stock yards. The result would be that for each one-way trip on the normal bone run, claimant would travel 82 miles in the state of Iowa and 97 miles in the state of Missouri. Reference to the Iowa map portion of exhibit FF shows the distance from the Des Moines terminal to the Iowa-Illinois state line to be approximately 164 miles. Such is almost precisely one-half of the total of 345 miles paid for the runs claimant made to Chicago. According to exhibit L claimant was paid for driving 82 trips between St. Joseph and Des Moines for a total of 14,678 miles and four trips between Des Moines and Chicago for a total of 1,380 miles. The sum of his driving during the period covered by exhibit L is 16,058 miles. Of those total miles traveled 7,954 were traveled in the state of Missouri as shown by 82 trips of 97 miles each. If it is assumed that the miles were traveled at an average speed of 50 mph, it would provide a total of 159 hours. If a slower average speed were used the amount of time would, of course, be greater. From those same 82 runs to St. Joseph claimant would have traveled 6,724 miles in Iowa. The two runs to Chicago would have provided claimant with 600 additional miles for a total of 7,414 miles in the state of Iowa. The runs to Chicago provide 690 miles in the state of Illinois. Due to the Chicago runs, slightly less than one-half of claimant's driving miles were driven in the state of Missouri. Assuming the same 50 mph average speed for the miles traveled in Iowa and in Illinois, claimant would have 162 hours of driving time in states other than Missouri. Exhibit L shows claimant to have spent eight hours in Illinois for pay, one quarter of an hour in Iowa for pay, and 14 hours in St. Joseph, Missouri for purposes of pay. When combined with the estimated driving times, it would appear that, by a small margin, the majority of claimant's paid, on-duty time in the service of his employer, was spent in the state of Missouri. The summary of claimant's expenditures of nondriving time while on duty as allocated between Des Moines and St. Joseph, Missouri appears correct under exhibit M. Exhibit M does not show any on-duty nondriving time while in the state of Illinois or elsewhere. If off-duty hours are considered in any fashion whatsoever, the proportion of claimant's time allocable to the state of Missouri is even greater than if the consideration is limited to driving time and on-duty nondriving time as is done for purposes of this decision. Exhibit M, claimant's driver's daily log which was made and maintained by him, covers the entire year of 1983 and through most of January of 1984. A review of exhibit M, claimant's daily logs, shows that his normal work activity was in fact travel between Des Moines and CLARK V. PULLEY FREIGHT LINES Page 6 St. Joseph. With regard to the issue of mileage or time in such activity, the deviations through Amity, claimant's home, would not have any effect on the overall number of miles traveled. The only other destinations to which claimant drove, according to exhibit M, during the 13 months it covers, are six trips to East St. Louis, Illinois and four trips to Chicago. The trips to East St. Louis would, if using the normal traveled routes between Des Moines, Iowa and East St. Louis, provide an even greater amount of miles and time in the state of Missouri than would the normal runs to St. Joseph. Exhibit M shows the normal travel time between Des Moines and East St. Louis to have been seven hours, while the time typically used to drive between Des Moines and St. Joseph was three and one-half to four hours. The test for determining whether or not the Iowa statute applies to an out-of-state injury is whether Iowa has sufficient interest based upon its statutes. George H. Wentz, Inc. v. Sabasta, 337 N.W.2d 495, 498 (Iowa 1982). In that case the Iowa Supreme Court stated, "...a state where the employment is principally localized ... is the state where the employee spends most of his time while on the job.O In Iowa Beef Processors, Inc. v. Miller, 312 N.W.2d 530 (Iowa 1981), the court seemed to rule that the employee's performance of the primary portion of his work in a state is the test and that the location of the employer's place of business or the employee's domicile is of no effect. There is some authority to the effect that the job of an over-the-road trucker, by its very nature, is not principally localized in any state. Albertson v. I-29 Country Diesel, IV CLARK V. PULLEY FREIGHT LINES Page 7 Iowa Industrial Commissioner Report, 5 (1984). In this case, however, claimant was not working as a typical over-the-road trucker. He traveled a regular route. In the period of 13 months covered by defendants' exhibit M, his logs show him to have hauled loads to locations other than St. Joseph, Missouri on only 10 occasions. Four of those were to Chicago, the other six to East St. Louis, Illinois, which is a location that would be reached primarily by driving through the state of Missouri. It is found that the employment of James Clark was principally localized in the state of Missouri. Accordingly, subsections one and two of code section 85.71 do not give Iowa jurisdiction of this case. IT IS THEREFORE CONCLUDED that the Iowa Industrial Commissioner does not have subject matter jurisdiction over James Clark's claim that he was injured in St. Joseph, Missouri on or about January 19, 1984 as presented in this case. FINDINGS OF FACT 1. On January 19, 1984 James Clark was an employee of Pulley Freight Lines and a resident and domiciliary of the state of Missouri. 2. On January 19, 1984, and for several months prior thereto, claimant's primary work activity had been hauling bones between Des Moines, Iowa and St. Joseph, Missouri. 3. The distance claimant drove for the employer in making that regular assignment was a total of 179 miles of which approximately 82 miles were in the state of Iowa and approximately 97 miles were in the state of Missouri. 4. The majority of claimant's on duty working time from and after January 1, 1983 and running up to the date of the alleged injury was spent in the state of Missouri. 5. When claimant was off duty, he spent most of his time at his residence in the state of Missouri. 6. James Clark's employment was principally localized in the state of Missouri on January 19, 1984. CONCLUSIONS OF LAW 1. Where subject matter jurisdiction is an issue, the burden of showing that the industrial commissioner has subject matter jurisdiction rests upon claimant. 2. The Iowa Industrial Commissioner does not have subject matter jurisdiction over an injury alleged to have occurred to James Clark on January 19, 1984 in St. Joseph, Missouri. ORDER IT IS THEREFORE ORDERED that this claim is dismissed for lack of subject matter jurisdiction. Each party is ordered to pay their own respective costs CLARK V. PULLEY FREIGHT LINES Page 8 incurred in prosecuting this action. Signed and filed this 9th day of July 1987. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. William L. Kutmus Mr. Mark S. Pennington Attorneys at Law 620 Fleming Building Des Moines, Iowa 50309 Ms. Sara J. Sersland Attorney at Law 1900 Hub Tower 699 Walnut Des Moines, Iowa 50309 1110, 1402, 2301 2302, 2902 Filed July 9, 1987 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER JAMES CLARK, Claimant, File No. 764457 VS. PULLEY FREIGHT LINES, A R B I T R A T I 0 N D E C I S I 0 N Employer, and NATIONAL UNION FIRE INSURANCE, Insurance Carrier, Defendants. 1110, 1402, 2301, 2302, 2902 Claimant is a truck driver who was assigned a regular route between Des Moines, Iowa and St. Joseph, Missouri. His alleged injury occurred in St. Joseph, Missouri. He was a resident of the state of Missouri at the time of injury. It was found that the majority of claimant's driving miles and that the majority of his time in the service of his employer, both driving and nondriving time, was spent in the state of Missouri, but only by a slight margin. It was held that where subject matter jurisdiction is an issue, the burden of proof rests with the claimant to show that the Iowa Industrial Commissioner has jurisdiction of the case. In this case, it was held that jurisdiction was lacking and claimant's claim was dismissed for lack of subject matter jurisdiction. BEFORE THE IOWA INDUSTRIAL COMMISSIONER DAVID DOFNER, Claimant, vs. File No. 764460 MID-AMERICA EXPRESS R E V I E W - Employer, R E 0 P E N I N G and D E C I S I 0 N GREAT WEST CASUALTY, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in review-reopening brought by David Dofner, claimant, against Mid-America Express, employer, and Great West Casualty Company, insurance carrier, defendants, for benefits as a result of an injury which occurred on September 1, 1983. A hearing was held in Des Moines, Iowa on August 28, 1987, and the case was fully submitted at the close of the hearing. The record consists of the testimony of David Dofner (claimant), Anita Howell (vocational rehabilitation specialist), Nathan Skjervold (claim adjuster), Claimant's Exhibits 1 through 16 and Defendants' Exhibits A through Y. Both attorneys submitted excellent briefs. FIRST HEARING AND PRIOR AWARD As a result of the original hearing, which was held in Des Moines, Iowa on April 4, 1985, Deputy Industrial Commissioner Judith Ann Higgs filed an arbitration decision on April 30, 1985. This decision awarded claimant healing period benefits from September 2, 1983 through June 7, 1984 and 150 weeks of permanent partial disability benefits based upon a 30 percent functional impairment of the body as a whole, as well as medical benefits. Official notice is taken of this decision, the exhibits introduced into evidence at that hearing and the industrial commissioner's file of this case. Iowa Administrative Procedure Act 17A.14(4). STIPULATIONS The parties stipulated to the following matters: That an employer-employee relationship existed between DOFNER V. MID-AMERICA EXPRESS PAGE 2 claimant and employer at the time of the injury; That claimant sustained an injury on September 1, 1983 which arose out of and in the course of his employment with employer; That the injury was the cause of temporary disability; That claimant was entitled to temporary disability benefits and was paid those benefits and that temporary disability is not an issue in this case at this time; That the type of permanent disability, if the injury is found to be a cause of permanent disability, is industrial disability to the body as a whole; That the rate of compensation, in the event of an award of additional benefits, is $15.24 per week; That claimant's entitlement to medical expenses is no longer is dispute and That defendants have paid all benefits previously awarded. ISSUES The parties submitted the following issues for determination at the time of the hearing: Whether the injury of September 1, 1983, was the cause of additional permanent disability based upon a change of condition; Whether claimant is entitled to additional permanent disability benefits and if so, the nature and extent of those disability benefits and Whether claimant is an odd-lot employee. SUMMARY OF THE EVIDENCE All of the evidence was examined and considered. The following is a summary of the pertinent-evidence: At the prior hearing, Maurice P. Margules, M.D., claimant's treating physician, awarded claimant a ten percent permanent functional impairment rating of the body as a whole. This was based upon an aggravation of the preexisting condition of chronic adhesive arachnoiditis. The arachnoiditis was believed to have occurred at the time of an earlier back surgery in 1973. Dr. Margules gave claimant a 40 pound weight lifting restriction with limitation on hyperflexion and hyperextension of his back and acknowledged that claimant needs a job that will allow him to move around [Dofner v. Mid-America Express, Vol. 1, No. 4 State of Iowa Industrial Commissioner Decisions pp. 787, 794 & 795 (April 30, 1985, file no. 764460)]. After the first hearing, Dr. Margules issued the following report on July 16, 1987: Mr. David Dofner was evaluated in this office on May DOFNER V. MID-AMERICA EXPRESS PAGE 3 25th, 1987. The patient had been previously last evaluated on November 30, 1984. It is our opinion at this time that the,patient's symptomatology and complaints are the result of chronic adhesive arachnoiditis of the cauda equina, which has caused a progressive aggravation of the patient's condition since our last evaluation of November 1984. The condition of arachnoiditis of the cauda equina can be manifested clinically by progressive deterioration of the patient's condition as well as increasing pain in the lower extremities and sphincteric dysfunction. As a result of this injury it is our opinion that the patient has a partial permanent disability which is rated at 25% of the body as a whole. (Claimant's Exhibit 1) Joseph F. Gross, M.D., an orthopedic surgeon and examining physician for defendants, testified by deposition on May 13, 1987. He stated that claimant could do some sedentary work where he could get up and move around. He believed a 25 to 35 pound weight restriction would be appropriate. He said that auto damage appraisal work would be within claimant's physical capabilities. At the time of his examination prior to the first hearing and again at the time of his examination prior to the second hearing, Dr. Gross did not feel that claimant was motivated to work (Defendants; Ex. C, pp. 1 - 10 & 16 - 18). Dr. Gross said that claimant's neurological condition at the time of the second examination was almost the same (Def. Ex. C, p. 11). Dr. Gross felt that claimant's impairment would probably be 20 percent, maybe 25 percent (Def. Ex. C, p. 15). Dr. Gross did not award an impairment rating prior to the first hearing. Prior to the first hearing, Dr. Gross felt that claimant should have an eight to ten pound weight restriction. At the time of his examination prior to the second hearing, he felt that claimant had improved and that claimant could now lift up to 25 to 35 pounds (Cl. Ex. C, pp. 12 & 13). The evidence at the first hearing and the decision of Deputy Higgs disclosed that claimant has sustained a number of injuries in his working lifetime. He also suffers from diabetes, otitis media, a congenital anomaly of the right arm and a number of other ailments (Dec., pp. 789 to 791; Transcript p. 61). Claimant's earlier spinal fusion at L5-Sl on the right was performed in March of 1973 by C. M. Adli, M.D., (Dec., p. 790). Dr. Margules performed the second surgery on January ill 1984 for a herniation at L4, L5 and the area at L5, Sl was exposed again at that time (Dec. p. 791). At the first hearing, Anita Howell, a vocational rehabilitation specialist, hired by defendants, testified that she had arranged a work hardening program for claimant in body and fender work. Claimant had indicated to her that he had done this work before and was interested in doing it at that time. The job opportunity that Howell located was within Dr. MargulesO guidelines. At the first hearing, claimant testified that he DOFNER V. MID-AMERICA EXPRESS PAGE 4 felt that he was physically unable to perform these tasks. Claimant added that he was looking for light delivery or car jockey work. Howell also located an opportunity for claimant to learn to be an automobile damage appraiser (Dec. p. 789). Much controversy in the second hearing centered on two paragraphs in the earlier decision by Deputy Higgs. These two paragraphs are as follows: If claimant is unable to function in a job such as those Howell has found, he will likely suffer a significant reduction in actual wages. There is also potential for claimant's having a substantial industrial disability. Such an assessment would be inappropriate at this time. * * * Claimant's industrial disability is being set at thirty percent at this time. That award is made with the intent that defendants will continue to offer vocational rehabilitation and that claimant will cooperate with such efforts and make a reasonable attempt to return to work. The industrial disability assessed will give the parties some time to accomplish the goal of workers' compensation, which is to return the injured worker to work and this decision contemplates that return. Claimant has the protection of a review-reopening at some future time. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Gosek v. Garmer & Stiles Co., 158 N.W.2d 731 (Iowa 1968); Henderson v. Iles, 250 Iowa 787, 96 N.W.2d 321 (1959); Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957); Stice v. Indiana Coal Co., 228 Iowa 1031, 291 N.W. 452 (1940); Meyers v. Holiday Inn, 272 N.W.2d 24 (Iowa ct. ap. 1978). (Decision p. 795) Claimant indicated at the second hearing that he wanted to obtain his G.E.D. in order to be better qualified to perform the auto damage appraiser job (Tr. p. 20). The insurance carrier agreed to reimburse claimant for the G.E.D. expenses (Tr. pp. 110-111).. Claimant began the course but discontinued it because many of the other students were much younger than he was and because he sometimes found it necessary to stand up in class due to his back (Tr. p. 68). Claimant testified that his condition had worsened because he slept less and he had a greater fear that his back would lockup (Tr. pp. 25 & 26). Claimant testified that he had not worked since the time of his injury on September 1, 1983 (Tr. p. 21). Claimant stated that lie continued to have pain in his back, which ran down his legs, and that he had trouble bending and stooping (Tr. p. 32). Claimant described that his typical day was to get up, drive up to Hardees for coffee, read the newspaper, visit with friends or relatives, play cards, watch TV and lay down and rest (Tr. pp. DOFNER V. MID-AMERICA EXPRESS PAGE 5 26, 44 & 45). Claimant testified that after the first hearing on April 4, 1985, that he was not contacted by defendants' vocational rehabilitation specialist until May 28, 1986 (Tr. pp. 28, 71 & 72). Claimant added that since they did not contact him and based on their opinion that he could do body and fender work, claimant contacted two body shops of his own choosing to see about doing body and fender work with the following results: Q. But did you on your own seek any jobs in that field? A. Yes, I did. I worked for this fella's dad, Leon Brown. Brownie had his own body shop. He turned it over to his son, Mick. I went to see him and he said, "No way, Dof." He said, "You're too slow." So I went to see a -- Tim O'Neill is a good friend of mine, grew up with,.him, high school. He said, "No way, Jose. I need somebody who can work." He said, "We've got to have production. That lets you out." (Tr. p. 30) Claimant said that his attorney called McMillen Ford about a body shop job with the following result: Q. Was there a job available for you? A. Not at my age and two operations, no. I was there when he called. It wasn't hearsay. (Tr. p. 30) Claimant testified that he could not do body and fender work because he cannot lift and he cannot bend (Tr. p. 32). Claimant also objected to the fact that during his period of training and work hardening, he would only receive a workers' compensation check in the amount of $157.24 whereas, a body shop would be receiving $300.00 to $400.00 worth of work and would not be paying anything for it (Tr. p. 48). Claimant testified that he did not take the automobile damage appraisal job just prior to the last hearing because he did not want to start the job and then immediately take time off to go and testify at a workers' compensation hearing (Tr. pp. 32, 47 & 70). Claimant testified that he did not pursue and seek out this job opportunity after the prior hearing and decision because no one contacted him about doing it (Tr. pp. 33, 48, 49, 51, 54, 71 & 72). Claimant knew that this job opportunity was at Pete's Appraisal but he did not go there and inquire about this position. Claimant testified that his understanding of his duty to look for work as a result of Deputy Higgs' decision was as follows: Q. We had a very efficient Deputy Commissioner and we got the decision in April. A. Right. DOFNER V. MID-AMERICA EXPRESS PAGE 6 Q. I assume that you visited about the decision with your attorney or saw a copy of it, correct? A. One was sent to me. Q. Wouldn't you agree with me that a part of what the Deputy Commissioner said was that you and Great West should work together to try to get you into a job? A. The way I kind of read it is I was to go along with the Crawford Rehabilitation in trying to find me some gainful employment and to help them if they were willing to help me which, like I said, I never heard anything for a long, long time. And I called Shelly and I said, "I think they forgot about me." He said, "Give them a call," so I did. Q. You're saying they didn't return your call? A. No. I never got no call back and I told him, I said, "Well, I think I will try on my own," and that's when I went to Tim O'Neill and talked to him. I went to school with the guy and I knew he would give me a job or try me out. I walked in and he seen I was all stooped over and walking slow. He said, "Get out of here, fat boy." Q. Pete's Appraisers, though, in the other body shop, they already knew your condition when they offered you the job, didn't they? A. Yeah, I guess. Q. Well, presumably they did? A. From the rehabilitation. Q. Because they were going to help you getting into that job work-hardening? A. Yes. But can you understand how I feel about this? They're going to get something for nothing, aren't they? Q. Which job? A. Pete's Appraisers or body shop. (Tr. pp. 49 & 50) Claimant also testified that he did not want to do the automobile damage appraisal job because he did not feel that he was good enough at math (Tr. pp 51, 72 & 73). He preferred to get his G.E.D. first (Tr. p. 51). Therefore, he made no contact with Pete's Appraisal where the arrangement had been made (Tr. pp. 54 & 55). Claimant granted that Dr. Margules said that he could try it.(Tr. p. 67). At the prior hearing, claimant's own vocational rehabilitation specialist, Jack Rogers, testified that he did not DOFNER V. MID-AMERICA EXPRESS PAGE 7 believe that claimant could do body and fender work because claimant was too slow and did not wish to be retrained (Dec. p. 790). It had been 23 years since claimant had performed body and fender work (Tr. p. 29). Rogers did believe that claimant could drive a local delivery truck, perform light warehouse work or light auto parts work (Dec. p. 790). At this second hearing, claimant testified that the car delivery and automobile jockey job was a one time opportunity that did not work out. After that he never pursued this line of work again (Tr. pp. 62 - 65). Claimant further testified that he never did check out or try to find light warehouse work or light auto parts work either one after the first hearing (Tr. p. 65). Claimant did not know of any job that he could do eight hours a day based on his past experience or his general knowledge (Tr. pp. 35 & 37). Claimant testified that he was told that he was too slow to wash dishes (Tr. pp. 37 & 38). Claimant said that his current problems are his lower back, right leg and left hip (Tr. p. 34). In addition to his problem of sleeping, he also has a problem bending, stooping, walking and sitting (Tr. pp. 38 & 43). Claimant testified that he had applied for social security disability benefits, but he was denied benefits and he has appealed this decision (Tr. pp. 60 & 61). Anita Howell testified that claimant is not below average in intelligence, but rather is average to above average in DOFNER V. MID-AMERICA EXPRESS PAGE 8 intelligence (Tr. p. 85). She denied that her agency did not return claimant's telephone call (Tr. pp. 91 & 92). Howell testified that claimant made no contact with her agency from the date of the first hearing on April 4, 1985, until May 28, 1986 (Tr. p. 99). She conceded and admitted that her agency made no contact or attempt to contact claimant after the first hearing. This inactivity was done at the direction of the insurance carrier (Tr. pp. 94 - 100). Howell admitted that her agency took no action to assist the claimant for over a year (Tr. pp. 130, 142 & 143). She was instructed to close her file after the hearing (Tr. p. 143). Howell testified that she was waiting to be contacted by claimant after the first hearing on April 4, 1985 until March 1986 (Tr. p. 144). Howell testified that during this period of time she did not get a call from either claimant or from claimant's attorney (Tr. pp. 145 & 146). Nathan Skjervold testified that he is the claim adjuster for the workers' compensation carrier on this claim. He took over the file in January or February of 1986. He concluded that the file had been inactive since April of 1985 due to a lack of interest or noncooperation or both (Tr. pp. 150 & 151). Skjervold testified as follows: Q. What was the situation? A. The situation is quite clear in the decision that was handed down by Deputy Commissioner Higgs, I believe, and in there it was ordered that rehabilitation services would be -- would continue to be offered and in the same sentence or in the same paragraph that the employee, Mr. Dofner, would continue to cooperate in those efforts. Q. So the onus was really put on both sides if you will -- A. Yes. Q. -- to cooperate? A. Yes. Q. The file as far as Great West was concerned at Crawford, was it opened or closed up to the time of my letter? A. It would be more accurate I think to say it was in a holding pattern, in suspense. (Tr. p. 154) APPLICABLE LAW AND ANALYSIS An award for payments where the amount has not been commuted may be reviewed upon commencement of reopening proceedings within three years from the date of the last payment of weekly benefits under the award. Iowa Code section 85.26(2). Rankin v. National Carbide Co., 254 Iowa 611, 118 N.W.2d 570 (1962) and Sanford v. Allied Maintenance Corp., IV Iowa Industrial Commissioner Report 297 (1984). DOFNER V. MID-AMERICA EXPRESS PAGE 9 In a proceeding to reopen an award for payments the inquiry shall be into whether or not the condition of the employee warrants an end to, diminishment of, or increase in compensation so awarded. Iowa Code section 86.14(2). The first reported Iowa case to interpret and define "whether or not the condition of the employee warrants", after reviewing the law in the other states, held that modification of the award would depend upon "a change of the condition" of the employee since the award was made. The decision on review depends on the condition of the employee found to exist subsequent to the award being reviewed. It is not to redetermine the condition of the employee which was adjudicated by the former award. Stice v. Consolidated Ind. Coal Co., 228 Iowa 1031, 291 N.W. 242 (1940). Thereafter, the operative phrase in review-reopening became "change of condition". Lawyer and Higgs, Iowa Workers' Compensation -- Law and Practice, section 20-2. The burden of proof by a preponderance of the evidence is upon the employee to show "additional consequences, facts and circumstances" proximately caused by the original injury that occurred subsequent to the award being reviewed. Henderson v. Iles, 250 Iowa 787, 96 N.W.2d 321 (1959); Deaver v. Armstrong Rubber Co, 170 N.W.2d 455 (Iowa 1969). Wagner v. Otis Radio & Electric Co., 254 Iowa 990, 119 N.W.2d 751 (1963) required a showing of "increased incapacity"; while Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956) referred to "substantial proof of an aggravated condition"; and Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957 found "substantial evidence of a worsening of the claimant's condition not contemplated at the time of the first award". It was held that a difference in expert opinion subsequent to the first award was not sufficient to constitute a change of condition. The Supreme Court of Iowa expanded the narrow holding of the Stice case in review-reopening proceedings by allowing additional compensation where facts relative to an employment connected injury existed but were unknown and could not have been discovered by the exercise of reasonable diligence at the time of the prior award or settlement. Gosek v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968). A further refinement of the interpretation of the statutory words "whether or not the condition of the employee warrants" and the Stice case standard of "change of condition" was added in 1978. The Iowa Court of Appeals allowed additional permanent partial disability where the passage of time and the claimant's return to work revealed that the disability exceeded that determined in the original decision due to the claimant's failure to improve to the extent anticipated by the original decision. Meyers v. Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa App., 1978). Then in 1980 the Supreme Court of Iowa found a change of condition occurred and permitted an additional award where there was a change in earning capacity without a change in physical condition subsequent to the original award. Blacksmith v. DOFNER V. MID-AMERICA EXPRESS PAGE 10 All-American, Inc., 290 N.W.2d 348 (1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). It is necessary then to examine claimant's evidence now to see if there has been a change of condition subsequent to the earlier hearing caused by the original injury. Dr. Margules did in fact increase claimant's impairment rating from 10 percent to 25 percent. However, no factual basis is given for this substantial increase other than the bare conclusion that claimant's condition is more aggravated now then it was at the time of the prior rating. By contrast, Dr. Gross testified that claimant's neurological condition at the time of his second examination was about the same. Dr. Gross also felt that claimant had sustained an impairment of approximately 20 percent, maybe 25 percent. However, Dr. Gross had not rated claimant at the time of his prior examination. Therefore, it cannot be said there was any increase in impairment rating from Dr. Gross. Dr. Gross did testify that ten percent was a generally accepted rating for a successful back operation at the time he ' awarded the 25 percent impairment rating. However, Dr. Gross did not assign how much of his 20 percent to 25 percent determination should be allocated to the 1973 back surgery, how much of it should be allocated to the January 11, 1984 back surgery, or how much of it may have arisen after the prior decision on April 30, 1985. In any event, an increase in impairment rating is only one factor in determining industrial disability. It is also noted that Dr. Margules did not increase the previous 40 pound weight lifting restriction that he had imposed earlier. By contrast, Dr. Gross said that claimant had improved since the post-surgical period and Dr. Gross decreased his prior weight lifting restriction from eight to ten pounds to 35 pounds. A comparison of the weight lifting restrictions would indicate that claimant's condition has improved, rather than deteriorated. Claimant testified that he was taking no medication prior to the second hearing, whereas, he was taking medications prior to the first hearing (Tr. pp. 66 & 67). There was no significant evidence that claimant received necessary medical treatment after the first hearing other than the evaluation examinations. Claimant was not under treatment at the time of the second hearing. There was no evidence that additional treatment was planned. No new surgery has been recommended. Claimant testified basically that he slept less and that he had a greater fear that his back would lockup as his primary change in physical condition. Claimant's testimony on these two points was not substantiated by any specific medical evidence or any other evidence. Therefore, based upon the foregoing considerations it is determined that claimant did not sustain the burden of proof by a preponderance of the evidence that he sustained an increase in physical incapacity. He has not proven a substantially aggravated condition. Claimant has not introduced evidence of a substantial worsening of his physical condition that was not contemplated by the original award. Nor has claimant alleged or tried to prove that he suffered from an existing, but unknown injury that could not be discovered at the time of the first DOFNER V. MID-AMERICA EXPRESS PAGE 11 hearing. Claimant has not proven that he failed to improve to the extent anticipated by the original decision. The evidence in the record indicates that claimant is essentially the same. Dr. Margules increased his impairment rating but did not explain why. There is some evidence that claimant is slightly improved because he is no longer actively under medical treatment, he is no longer taking medications and according to Dr. Gross, he can lift more now than at the tune of the prior hearing. Claimant has not sustained the burden of proof by a preponderance of the evidence that he has sustained a change in physical or medical condition that would justify an additional award of permanent disability benefits. Claimant has not sustained the burden of proof by a preponderance of the evidence that he has sustained a nonmedical or nonphysical change in condition. He has not proven a change in earning capacity since the prior hearing. Claimant was unemployed and not actively seeking employment at the time of the first hearing. Claimant was unemployed and not actively seeking employment at the time of the second hearing. There is no substantial evidence that claimant actively sought or searched for realistic employment in between the two hearings. It is entirely possible, even probable, that claimant was not physically able to perform body and fender work as he testified because of the weight of tile parts that must be lifted and manipulated as well as the amount of stooping and bending involved in order to perform body and fender work. Since claimant testified that he could not do body and fender work, then his inquiry at the body shop of two different friends cannot be construed as a serious attempt to find employment. If claimant had been serious about being retrained in body and fender work, he could have been employed at the body shop arranged by the vocational rehabilitation service which was aware of his limitations but were, nevertheless, willing to work with him and allow him to see what he was able to do with respect to body and fender work within his limitations. Claimant chose not to attempt body and fender work even though the opportunity to try to get back into it had been set up for him if he wanted to try it. Claimant had told the rehabilitation services that body and fender work was his first love. Claimant admitted that he did not continue to try to find work delivering cars or as a car jockey which was something that he was looking into at the prior hearing. Claimant did not apply for any jobs in light auto parts or in light warehouse work as suggested by Jack Rogers, his own personally retained vocational rehabilitation specialist. Nor did claimant go to Pete's Appraisal after the last hearing to endeavor to try to do the auto damage appraisal work that had been arranged for him by defendants' vocational rehabilitation service. Dr. Margules said that he could try this job. Dr. Gross testified that this work was within claimant's physical abilities. Howell testified that in her opinion claimant could do this work. Nevertheless, claimant declined to even try it to see if he could do it, or if he could not do it. As to the injunction of Deputy Higgs that the parties should continue to work together to place claimant in some kind of employment, it would appear that claimant and defendants entered DOFNER V. MID-AMERICA EXPRESS PAGE 12 into a stand off to see which one could ignore the other one the longest. Claimant admitted that he did not immediately contact the vocational rehabilitation service. Howell admitted that she did not contact claimant for several months. Claimant asserted that he called the vocational rehabilitation service eventually but he did not say how long it was after the first hearing. Claimant asserted that the vocational rehabilitation service did not return his call. Howell denied that the vocational rehabilitation service had received any calls from claimant which were not returned. As far as failure to obey Deputy Higgs' injunction, it would appear that the parties are in pari delicto. As between claimant and vocational rehabilitation services, the primary duty is on the claimant to actively seek and search for employment. As to whether claimant should pursue the vocational rehabilitation service and try to find a job that he can do, or whether the vocational rehabilitation service should pursue claimant and force him to take a job within his limitations, the primary duty is on the employee to actively seek and try to find suitable employment using the help and assistance of the vocational rehabilitation service. Prior to the first hearing, the vocational rehabilitation service had worked with claimant and sincerely tried to place him in a job that he could do based on his background and the type of work that he said that he wanted to do. Claimant did not make contact with either one of the two arrangements that had been set up for him either before or after the hearing. Nor did he actively seek any other kind of employment on his own. Claimant stated that he wanted to obtain his G.E.D. to be better qualified to do the auto damage appraisal job. Defendants offered to reimburse claimant's expenses. Claimant started the program, but discontinued it. Therefore, the status of his G.E.D. training was the same at the time of the second hearing and it was no different than it was at the time of the first hearing. It would appear then, that claimant's nonmedical or nonphysical condition is the same as it was at the time of the prior hearing. Claimant introduced no evidence of an attempt to be gainfully employed either with or without the help of the vocational rehabilitation service. Since claimant has not demonstrated a bona fide effort to return to gainful employment in the area of his residence, he has failed to make a prima facia case of permanent total disability under the odd-lot doctrine. Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985); Emshoff.v. Petroleum Transportation Services, Inc., file no. 753723, (App. Dec. March 31, 1987). Claimant has suffered a number of injuries in his working career. In addition, he suffers from a number of other health problems. Claimant may justifiably not feel like working and may be suffering from a number of disincentives to work. This is understandable. However, these problems did not arise out of and in the course of his employment with this employer and they were not caused by this injury. In conclusion, claimant did not sustain the burden of proof by a preponderance of the evidence that he sustained either a medical/physical change of condition DOFNER V. MID-AMERICA EXPRESS PAGE 13 or a nonmedical/nonphysical change of condition in the way of decreased earning capacity subsequent to the prior hearing that was caused by the original injury on September 1, 1983. A redetermination of the condition of the claimant as it was adjudicated by a prior award is inappropriate. Stice, 228 Iowa 1031, 1038 291 N.W. 452, 456; Sheriff v. Intercity Express, Thirty-fourth Biennial Report of the Industrial Commissioner, 302 (App. Dec. 1978) (District Court Affirmed. FINDINGS OF FACT Wherefore, based upon the evidence presented the following findings of fact are made: Claimant demonstrated an increase in his physical impairment rating by his treating physician; An independent medical examiner stated that claimant had not sustained a change in medical condition; Claimant's treating physician did not change his lifting restriction; The independent medical examiner thought that claimant had improved and greatly moderated his weight lifting restriction; Claimant was unemployed and not actively seeking employment at the time of the first hearing; claimant was unemployed and not actively seeking employment at the time of the second hearing and claimant was unemployed and not actively seeking employment in DOFNER V. MID-AMERICA EXPRESS PAGE 14 between the two hearing; Defendants vocational rehabilitation service generated two employment opportunities for claimant to try to get back into the employment market by performing work that claimant was interested in and which was also within the treating physician's limitations and Claimant did not attempt to perform either one of these retraining opportunities, nor did he apply for or seek any employment on his own after the first hearing. CONCLUSIONS OF LAW WHEREFORE, based upon the evidence presented and the principles of law previously discussed, the following conclusions of law are made: That claimant did not sustain the burden of proof by a preponderance of the evidence that he sustained either a medical/physical or a nonmedical/nonphysical change of condition.subsequent to the first hearing which was caused by the original injury; Claimant is not entitled to additional permanent disability benefits and Claimant did not sustain the burden of proof by a preponderance of the evidence that he is an odd lot employee. ORDER THEREFORE, IT IS ORDERED: That no additional amounts of permanent disability benefits are owed by defendants to claimant; That the costs of this action are assessed against claimant pursuant to Division of Industrial Services Rule 343-4.33 and That defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services rule 343-3.1. Signed and filed this 9th day of August, 1988. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER DOFNER V. MID-AMERICA EXPRESS PAGE 15 Copies to: Mr. Sheldon Gallner Attorney at Law 803 3rd Ave P.O. Box 1588 Council Bluffs, Iowa 51502 Mr. R. Jeffrey Lewis Attorney at Law 2600 Ruan Ctr Des Moines, Iowa 50309 1402.40; 1803; 2905; 3102; 3103; 2707 Filed August 9, 1988 WALTER R. McMANUS, JR. BEFORE THE IOWA INDUSTRIAL COMMISSIONER DAVID DOFNER, Claimant, vs. File No. 764460 MID-AMERICA EXPRESS R E V I E W - Employer, R E 0 P E N I N G and D E C I S I 0 N GREAT WEST CASUALTY, Insurance Carrier, Defendants. 1402.40, 1803, 2905 Claimant failed to sustain the burden of proof by a preponderance of the evidence that he suffered either a medical/ physical or a nonmedical/nonphysical change of condition after the first hearing that was caused by the original injury. As to medical or physical change of condition, claimant's treating physician increased his permanent functional impairment rating from ten percent to 25 percent. Defendant's doctor said there was no change of condition, but rather indicated claimant had improved because he reduced claimant's weight lifting restriction for eight to ten pounds at the first hearing to 25 to 35 pounds at the second hearing. As to nonmedical or nonphysical change of condition there was no change of condition because claimant was not employed or actively seeking employment at the time of the first hearing, he was not employed or actively seeking employment at the time of the second hearing, and he was not employed and did not actively seek employment in between the two hearings. DOFNER V. MID-AMERICA EXPRESS PAGE 2 3102, 3103 As between claimant and vocational rehabilitation services, the primary duty is upon the claimant to actively seek and search for employment. As to whether claimant should pursue the vocational rehabilitation service and try to find a job that he can do or whether the vocational rehabilitation service should pursue claimant and force him to take a job within his limitations, the primary duty is on the employee to actively seek and try to find suitable employment using the help of the rehabilitation service. 2907 Costs assessed against claimant. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROGER L. BAKER, Claimant, VS. File No. 764491 FLOYD VALLEY PACKING, A P P E A L Employer, D E C I S I 0 N and ARGONAUT INSURANCE CO., Insurance Carrier, Defendants. STATEMENT OF THE CASE Claimant appeals from an arbitration decision denying all compensation because he failed to establish by a preponderance of the evidence that he sustained an injury to his left upper extremity. The record on appeal consists of the transcript of the arbitration hearing, claimant's exhibits 1 through 8, and defendants' exhibits A through N. Briefs were filed by both of the parties on appeal. ISSUES The issues raised on appeal are: 1) Whether claimant received an injury arising out of and in the course of his employment; 2) whether there is a causal relationship between the alleged injury and the disability; and 3) whether claimant is entitled to permanent partial or total disability. REVIEW OF THE EVIDENCE The arbitration decision adequately and accurately reflects the pertinent evidence and it will not be totally reiterated herein. Claimant has previously been awarded benefits as a result of an injury on April 6, 1983 (see file No. 741613). Claimant alleges he sustained a work-related injury to his left shoulder pulling "leaf lard" on January 10, 1983. The hearing deputy in his decision stated: Claimant testified that he bid onto the job of pulling lard. He stated that the lard weighs five to seven pounds on regular hogs and 10 to 15 pounds on sows. Claimant testified that on April 6, 1983 they were processing sows and that while he was reaching to grab the lard, he experienced a sharp pain in his low back. Claimant testified that he reported the incident to his foreman and was sent to the plant nurse who made an appointment for him to see Joe Krigsten, M.D., on the following day. Claimant testified that Dr. Krigsten examined him, gave him medication and advised him to return in two weeks. Claimant testified that he continued working and that when he returned in two weeks he was still having pain. Claimant described the pain as a sharp stabbing pain in his low back. He testified that he was given different medication but not taken off work. He stated that he was advised to see his family doctor. Claimant has already been compensated for the days he alleges he was off work in this claim in an arbitration decision filed February 27, 1985. Milton D. Grossman, M.D., and F. John Kissell, M.D., have recommended that claimant not work at a packing plant. APPLICABLE LAW The citations of law in the arbitration decision are appropriate to the issues and the evidence. ANALYSIS Claimant argues on appeal that he sustained an injury to his left shoulder pulling leaf lard on January 10, 1983. Claimant's exhibit 5 is a physician's report form completed by Milton D. Grossman, M.D., on February 1, 1983. Dr. Grossman made the following responses to the questions in sections 3, 5, 6, 7, and 15 of that form: 3. History and date of injury or disease as given by patient: Pulling lard; pain in left shoulder 5. Conclusion: Bursitis left shoulder; tendinitis left forearm 6. Was the injury or disease caused, aggravated or accelerated by the patient's alleged employment activity? Yes X No 7. Did this injury or disease disable patient from work? Yes No X 15. What further medical care is necessary? Recommend rehabilitation for different type of work These responses would seem sufficient to support claimant's assertion that he sustained a left shoulder injury on January 10, 1983. However, Dr. Grossman does not respond to the following questions in a questionaire prepared by Argonaut Insurance Companies: 3. Did this patient [sic] report a history of an accident occurring at work on or around 1/10/83? 4. In your opinion, was the patient's injury caused by this accident? In his answer to question 9, Dr. Grossman states: 9. Additional comments: I have not seen this patient since Jan. 18, 1983; He stated at that time that there was no known injury but he started having pain in his left shoulder BAKER V. FLOYD VALLEY PACKING Page 3 on Jan. 10, 1983. I recommended rehabilitation and a different type of work. I have no knowledge of his present condition. (Defendants' Exhibit F) This questionaire was signed by Dr. Grossman and dated October 15, 1985. Examination of the remainder of the record in this case reveals the following notations concerning claimant's left shoulder: Exhibit G, page 5. "6-14-82 stated pain left shoulder - opening hogs req to see Dr. Grossman - To Dr. Grossman's office at 3:30 p.m.O Exhibit F, page 3. Dr. Grossman states: "DATE OF THIS REPORT 9-13-82 - Description of Injury Received: Strain both shoulders" Exhibit D, page 3, paragraph 1. Albert D. Blessman, M.D., states: "Patient states since August 1982 he has been having problems with his right shoulder. He opens sows at work which requires pounding them open with knife and a hammer. Is having sharp pain in right shoulder which is making his neck ache, has trouble moving right arm. Left shoulder and arm bother him also but not as much." (Emphasis added.) Exhibit C, page 1. D.A. Benson, D.C. states: "I first saw this patient December 6, 1979. He had been treated by Doctor Kruse some six months previously for dorsal pains. He stated he had been on a particularly hard job November 29th, and his left dorsal area, shoulder and arm had been painful, weak, with poor control since, plus cervical pains and headaches." (Emphasis added.) Exhibit M, page 1, last paragraph, first sentence: "Mr. Baker also has a history of right shoulder bursitis (he receives 20% disability for this) and left shoulder pain and tendinitis in the left forearm." (Emphasis added.) Exhibit M, page 2, second paragraph, first sentence: "Past medical history is significant for bursitis in both shoulders; and tendinitis in the left forearm." Exhibit K, page 8. William M. Krigsten, M.D., deposition taken October 18, 1984. Dr. Krigsten testifies about his BAKER V. FLOYD VALLEY PACKING Page 4 findings after a March 27, 1984 examination: Q. And what findings did you make? A. Well, first I found out he was married and has two children, three and six years of age. All were healthy. Patient is 31 years and 11 months of age, 5 foot 9 inches in height, weighed 193 pounds, well developed and muscular. Both arms were tattooed about a year prior to the time I examined him. Finished the 8th grade in school and dropped out in the 9th grade. He walks perfectly normal, is able to walk on his toes as well as on his heels. He removed his stockings while sitting with no apparent discomfort, no loss of balance. Cranial nerves intact, neck motions normal in all directions, some tightness in the neck muscles on rotation as well as in flexion. The right shoulder is a little bit lower than the left, but the pelvis is level and remained so when standing on one foot. The right upper -- the upper arm was 13 inches; the right forearm was 13 inches, the left was 12. Shoulder motions and strength were normal. Elbow motions normal, strength normal, circulation normal, reflexes and sensations normal. (Emphasis added.) Exhibit J, page 2-3. Dr. Krigsten states in his report following the March 27, 1984 examination: X-rays reports as follows: AP of the cervical spine. Lateral flexion and extension, all negative for bone or joint injury or disease. Right shoulder, bone and joints all negative for disease or injury. Right shoulder, bone and joints all negative for disease or injury. Left shoulder negative for disease or injury. Standing barefoot shows no evidence of scoliosis. Right side of pelvis about 1/4" higher. Lateral shows slight increase in dorsal kyphosis and old residual healed epiphyseal chains T-9, 10-11. slight wedging of vertebral bodies. Right and left knee normal. Pelvis, no x-ray evidence of bone or joint abnormalities or injury. Lumbar and lumbosacral junction, negative for abnormalities, disease, or injury. Examination of the patient, review of recent x-rays, as well as those taken in the past, and patient's history during the past years, fails to reveal evidence of any organic or objective evidence of injury or disease. There is no history of a single definite injury. All complaints have been subjective. There has never been evidence of objective injury either on physical examination or x-ray review. The history of bedwetting in the Marine Corp with immediate recovery when discharged is extremely important. I would hesitate labeling him as a malinger, but the history and physical findings closely approach that diagnosis obtained from my fifty-four years of medical practice and from the literature I have read during those BAKER V. FLOYD VALLEY PACKING Page 5 years. I can find no organic reason for his complaints and I would strongly recommend psychiatric evaluation. The record as a whole does not establish that claimant suffered an injury to his left shoulder on January 10, 1983. Claimant had left shoulder pain while pulling leaf lard in 1982 and the medical evidence does not indicate that claimant suffered a specific injury on January 10, 1983. Claimant's physicians have recommended that he not work in a packing plant. However, it is not clear whether this recommendation is made as a result of claimant's left shoulder, his low back or his right shoulder problems. Dr. Krigsten's statement in defendants' exhibit J and claimant's continued bowling as evidenced by his testimony and defendants' exhibit A place claimant's credibility in question. FINDINGS OF FACT 1. Claimant worked for defendant employer from May 3, 1973 until May 9, 1983. 2. Claimant has been compensated in an arbitration decision filed February 27, 1985 for low back problems. 3. Claimant has sought compensation for a right shoulder condition during his employment with defendant. 4. Claimant experienced left shoulder pain in 1982 while pulling leaf lard. 5. Claimant's physicians have recommended that he not work in a packing plant. 6. Claimant did not sustain an injury to his left shoulder on January 10, 1983 while pulling leaf lard. CONCLUSION OF LAW Claimant has not established by a preponderance of the evidence that he sustained an injury arising out of and in the course of employment on January 10, 1983. WHEREFORE, the decision of the deputy is affirmed. ORDER THEREFORE, it is ordered: That claimant take nothing from these proceedings. That claimant pay costs of the arbitration proceeding and the costs on appeal including the transcription of the hearing proceeding. Signed and filed this 27th day of August, 1987. BAKER V. FLOYD VALLEY PACKING Page 6 DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. Harry H. Smith Attorney at Law 632-640 Badgerow Building P.O. Box 1194 Sioux City, Iowa 51102 Mr. Barry Moranville Attorney at Law 974 73rd St., Suite 16 Des Moines, Iowa 50312 1402.20 1402.30 Filed August 27, 1987 DAVID E. LINQUIST BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROGER L. BAKER, Claimant, VS. File No. 764491 FLOYD VALLEY PACKING, A P P E A L Employer, D E C I S I 0 N and ARGONAUT INSURANCE CO., Insurance Carrier, Defendants. 1402.20 - 1402.30 Claimant did not establish an injury arising out of and in the course of employment on January 10, 1983. While one physician's report form prepared by one treating physician indicated that claimant sustained a left shoulder injury at work, the other evidence presented revealed no such injury. Affirmed. BEFORE THE IOWA INDUSTRIAL COMMISSIONER EDWARD F. BERTLSHOFER, Claimant, File Nos. 764496 742752 vs. FRUEHAUF CORPORATION, A P P E A L Employer, D E C I S I O N and CNA INSURANCE COMPANY, Insurance Carrier, and SECOND INJURY FUND OF IOWA, Defendants. STATEMENT OF THE CASE Defendant employer/insurance carrier appeal from an arbitration decision awarding healing period and permanent partial disability benefits. The record on appeal consists of the transcript of the arbitration proceeding; joint exhibits 1 through 50; defendants' exhibits A and B; and Second Injury Fund of Iowa's exhibit 1. Both defendant employer/insurance carrier (hereinafter defendants) and claimant filed briefs. ISSUE Defendants state the following issue on appeal: The deputy erred in finding as a fact that claimant's intermittent healing period included the period from October 13, 1984 to July 1, 1985, a period of general plant layoff, and further erred in finding as a conclusion of law that claimant's healing period included those dates. REVIEW OF THE EVIDENCE The arbitration decision adequately and accurately reflects BERTLSHOFER V. FRUEHAUF CORPORATION Page 2 the pertinent evidence and it will not be totally set forth herein. Briefly stated, claimant was 39 years old at the time of hearing. Claimant worked as an assembler for defendant Fruehauf Corporation. On August 19, 1983, claimant cut his left forearm on a metal band. Claimant's arm was treated by Donald MacKenzie, M.D., and claimant was off work from August 20, 1983 to September 25, 1983, or five weeks and four days, before returning to light duty. However, after working for two days (September 26 and 27, 1983) claimant began to experience swelling, discoloration, and numbness with his left arm. Dr. MacRenzie advised claimant he had returned to work prematurely, and operated to release claimant's ulnar nerve in November 1983. Claimant was off work from September 28, 1983 through January 22, 1984, or 16 weeks and five days. Claimant then worked from January 23, 1984 to February 9, 1984. Claimant was off work due to sickness unrelated to his injury from February 10, 1984 to February 14, 1984. Claimant worked again from February 15, 1984 to April 1, 1984. Claimant was then referred to Barbara J. Campbell, M.D., and William F. Blair, M.D., of the University of Iowa Hospitals and Clinics. Dr . Campbell examined claimant on March 7, 1984, and also examined the records and x-rays for claimant's left arm injury. Dr. Campbell concluded that claimant developed a neuroma in some of the cutaneous nerves near the laceration and that further ulnar release was necessary. Surgery was again performed on April 2, 1984. Claimant missed work from April 2, 1984 to May 20, 1984, ( seven weeks ) . Dr. Campbell also diagnosed chronic tendonitis of the right arm. Dr. Campbell opined that claimant's right arm problem was a result of claimant's work, and that it was possible that the right arm problem developed from the over compensation for the left arm. Dr. Campbell also opined that claimant had a permanent impairment to the left arm, but a rating could not yet be given. Claimant worked from May 21, 1984 to June 12, 1984. He was off work from June 13, 1984 to July 1, 1984, or two weeks and five days as a result of problems with his arms. Claimant was examined by Dr. Campbell on July 18, 1984. Dr . Campbell later denied that claimant had reached maximum recovery at the time of this examination. Claimant was released to return to light duty work on July 2, 1984 and worked until August 20, 1984. Claimant was then off work again from August 21, 1984 until September 9, 1984, or two weeks and six days. Claimant worked from September 10, 1984 until October 12, 1984. BERTLSHOFER V. FRUEHAUF CORPORATION Page 3 Claimant alleged that he suffered an injury to his right arm on September 26, 1984, due to overuse of the arm to compensate for the injury to the left arm. On December 19, 1984, Dr. Campbell stated: "In response to your letter of October 17, we feel that it is too early to give a permanent impairment rating on this patient. He probably will not reach maximum medical improvement for at least one year post-operatively, which will be May, 1985." (Second Injury Fund Exhibit 1, page 38) Dr. Campbell also stated an inability to opine whether claimant's right arm was permanently impaired. Claimant was released by Dr. Campbell for light duty work on May 2, 1984. Claimant was laid off work as part of a general economic layoff from October 13, 1984 through July 1, 1985. Claimant returned to work July 2, 1985 with a restriction of his left arm. Claimant was assigned to do paneling work which required the use of both his arms. Claimant testified that he relied more on his right arm for this work because of the prior problems with his left arm. Claimant began to experience problems with his right arm and was referred to the company doctor, Miles Archibald, M.D. Claimant did not miss any time off work after visiting Dr. Archibald. Claimant was also seen by his personal physician, J. S. Kaboli, M.D., on September 25, 1985. Dr. Kaboli treated claimant for his right arm injury only, and diagnosed tennis elbow due to abuse and overuse of the hand. Dr. Kaboli stated that claimant's problem would go away if the arm were rested and treated with medication, but that heavy labor would aggravate the condition. Dr. Kaboli stated he could not assign a rating of impairment to claimant's right arm. William F. Blair, M.D., in a letter dated July 18, 1985,requested the opportunity to examine claimant's range of motion and other factors before giving a rating of permanent impairment for the left arm. In a letter dated August 14, 1985, Dr. Blair stated: In your letter of July 8, 1985, you had requested an impairment rating. At this time, Mr. Bertlshofer has reached his maximum medical recovery. A copy of our last clinic note, obtained July 30, 1985 is enclosed. Our impression states that Mr. Bertlshofer has a chronic pain syndrome, involving the left upper extremity. This pain syndrome has 3 components: (l) Mild medial epicondylitis, (2) Post cubial tunnel syndrome neuropathy, (3) A neuroma of the medial cutaneous nerve. BERTLSHOFER V. FRUEHAUF CORPORATION Page 4 These problems are equivalent to an impairment of the upper extremity as follows: Medial epicondylitis 2%, ulnar neuropathy 5%, neuroma 3%. These impairment [sic] total a 10% impairment of the left upper extremity. I hope these comments are helpful to you in the care of your client. (SIF Ex. 1, p. 40) On September 18, 1985, Dr. Blair opined that claimant did not have any permanent impairment of his right arm. (SIF EX. 1, p. 41) Claimant's last day of employment with defendant Fruehauf was September 29, 1985. Claimant quit when he was told defendant Fruehauf had no light duty work for him. On January 7, 1986, claimant was seen by Dr. MacKenzie, and it was found that both his right and left arms were stable. Claimant's absences from work were summarized in exhibits 50 as follows: 8/19/83 Accident Off work 8/20/83 through 9/25/83 5 weeks, 4 days Worked 9/26/83 and 9/27/83 Off work 9/28/83 through 1/22/84 16 weeks, 5 days Worked 1/23/84 through 2/09/84 Off work 2/10/84 through 2/14/84 (sick, not accident connected) Worked 2/15/84 through 4/01/84 Off work 4/02/84 though 5/20/84 7 weeks Worked 5/21/84 through 6/12/84 Off work 6/13/84 through 7/01/84 2 weeks, 5 days Worked 7/02/84 through 8/20/84 Off work 8/21/84 through 9/09/84 2 weeks, 6 days Worked 9/10/84 through 10/12/84 General layoff 10/13/84 through 7/01/85 Worked 7/02/85 through 9/29/85 Off work 10/01/85 through 7/25/86 9 months, 25 days (Jt. Ex. 50) BERTLSHOFER V. FRUEHAUF CORPORATION Page 5 The parties stipulated that claimant's injury of August 19, 1983 arose out of and in the course of his employment; that claimant was paid 34 weeks of healing period benefits, and weekly benefits for 10 percent permanent partial disability for the left arm; that claimant's rate was $229.34; that claimant's time off was accurately reflected in exhibit 50; and that all medical expenses were paid by the employer and were fair and reasonable. APPLICABLE LAW Iowa Code section 85.34(1) states: If an employee has suffered a personal injury causing permanent partial disability for which compensation is payable as provided in subsection 2 of this section, the employer shall pay to the employee compensation for a healing period, as provided in section 85.37, beginning on the date of injury, and until the employee has returned to work or it is medically indicated that significant improvement from the injury is not anticipated or until the employee 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. Healing period benefits may be characterized as that period during which there is a reasonable expectation of improvement of a disabling condition, and ends when maximum medical improvement is reached. Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa App. 1981). It is only at the point at which a disability can be determined that a workers' compensation disability award can be made. Until such time, healing period benefits are to be awarded the insured worker. Thomas v. William Knudson & Son, Inc., 349 N.W.2d 124 (Iowa App. 1984 A healing period may be intermittent, and may be interrupted by a return to work followed by another absence from work due to the disability. Willis v. Lehigh Portland Cement Company, I Industrial Commissioner Decisions 485 (1985). A return to light duty work does not prohibit the reinstitution of the healing period if the employee is again to compelled to leave work because of his injury. Steele v. Holtze Construction Co., Review-reopening Decision filed June 27, 1986. ANALYSIS The sole question on appeal is whether claimant's healing BERTLSHOFER V. FRUEHAUF CORPORATION Page 6 period should include the period from October 13, 1984 through July 1, 1985, the period during which claimant was laid off. Section 85.34(1), of the Code, states that claimant's healing period commences with the date of injury and continues until the earliest of three occurrences. The first occurrence contemplated by section 85.34(1) is a return to work. Claimant did attempt to return to work several times. On his first attempt, claimant discovered after two days that he had tried to do so prematurely. On the other attempts, claimant was only released for light duty work. Claimant's attempts to return to work resulted in further pain and discomfort and more time off work on each occasion. The second occurrence contemplated by section 85.34(1) is a determination that the employee is medically capable of returning to employment substantially similar to the employment in which the employee was engaged at the time of the injury. There is no indication in the record that claimant is capable of returning to the same or substantially similar employment. Instead, he now suffers a permanent impairment rating of 10 percent of the left upper extremity, a lifting restriction, and there is testimony that he is incapable of engaging in the type of manual labor he performed before the injury of August 19, 1983. Claimant is restricted to light duty work. Claimant is not medically capable of returning to employment substantially similar to the employment in which he was engaged at the time of the injury of August 19, 1983. The third occurrence contemplated by section 85.34(1) is when it is medically indicated that significant improvement from the injury is not anticipated. When asked if claimant had reached maximum recovery at the time of the July 18, 1984 examination, Dr. Campbell denied that claimant had reached maximum recovery at that point. In addition, Dr. Campbell opined that claimant would not reach maximum recovery until one year from his surgery, or May 1985. A rating of impairment was not given until August 14, 1985. On that date, Dr. Blair indicated that "at this time, Mr. Bertlshofer has reached his maximum medical recovery..." (SIF Ex. 1, p. 40) This letter referred to claimant's last examination, which occurred on July 30, 1985. Therefore, the period from October 13, 1984 through July 1, 1985, the period of time in which claimant was laid off work, is a part of claimant's healing period. As only the extent of claimant's healing period has been raised as an issue on appeal, the remainder of the arbitration decision will be affirmed. BERTLSHOFER V. FRUEHAUF CORPORATION Page 7 FINDINGS OF FACT 1. On August 19, 1983 claimant suffered an injury to his left arm while at work. 2. As a result of his injury, claimant suffered a permanent partial impairment to the left arm equal to 10 percent. 3. As a result of his injury, claimant underwent an intermittent healing period over the following periods of time: August 20 through September 25, 1983 5 weeks, 4 days September 28 through January 22, 1984 16 weeks, 5 days April 2 through May 20, 1984 7 weeks June 13 through July 1, 1984 2 weeks, 5 days August 21 through September 9, 1984 2 weeks, 6 days October 13, 1984 through July 1, 1985 37 weeks, 3 days TOTAL 72 weeks, 2 days 4. Claimant achieved maximum medical recovery from his left arm injury on July 31, 1985; he returned to work on July 2, 1985. 5. In September 1983 claimant began to experience pain in his right arm. 6. The pain in claimant's right arm was the result of repetitive or cumulative trauma at work. 7. Claimant gave notice pursuant to section 85.23, The Code, of his injury to- his right arm on or about July 27, 1984. 8. Claimant has missed no time off work because of the injury to his right arm. 9. All medical expenses concerning both of claimant's arms have been paid. 10. Claimant has suffered no permanent impairment to his right arm. 11. Claimant's rate of compensation is $229.34. 12. Claimant has been paid 34 weeks of healing period and 25 weeks of permanent partial disability benefits. CONCLUSIONS OF LAW Claimant has proven by a preponderance of the evidence that BERTLSHOFER V. FRUEHAUF CORPORATION Page 8 on August 19, 1983 he received an injury to his left arm arising out of and in the course of his employment. Claimant has proven by a preponderance of the evidence that there is a causal relationship between his injury and the disability upon which this claim is based. Claimant has proven by a preponderance of the evidence that as a result of his injury he is entitled to 72.286 weeks of healing period benefits and 25 week of permanent partial disability benefits. Claimant has proven by a preponderance of the evidence that commencing about September 1983 he began to develop a cumulative injury to his right arm which arose out of and in the course of his employment. Defendants have proven by a preponderance of the evidence that claimant failed to give notice of his injury to his right arm until July 27, 1984 and thus claimant is barred from recovering for injuries to his right arm prior to April 30, 1984. Claimant has failed to prove by a preponderance of the evidence that he suffered temporary total or permanent partial disability to his right arm. Claimant has failed to prove by a preponderance of the evidence that he is entitled to recover benefits against the second Injury Fund of Iowa. WHEREFORE, the decision of the deputy is affirmed. ORDER THEREFORE, it is ordered: That as a result of the injury of August 19, 1983, defendants shall pay unto claimant additional healing period benefits equal to thirty-eight point two eight six (38.286) weeks at the rate of two hundred twenty-nine and 34/100 dollars ($229.34). All accrued payments are to be made in a lump sum together with statutory interest. That claimant take nothing as a result of his injury to his right arm. That claimant take nothing from the second injury fund of Iowa. That the costs of this action are taxed to the employer. That the employer shall file a claim activity report in thirty (30) days. BERTLSHOFER V. FRUEHAUF CORPORATION Page 9 Signed and filed this 14th day of April, 1988. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER BEFORE THE IOWA INDUSTRIAL COMMISSIONER RANDY A. CLARK, File No. 764542 Claimant, A P P E A L vs. D E C I S I O N WILSON FOODS CORPORATION, F I L E D Employer, FEB 28 1988 Insurance Carrier, Defendant. IOWA INDUSTRIAL COMMISSIONER STATEMENT OF THE CASE Defendant appeals from an arbitration decision awarding permanent partial disability benefits based upon a 20 percent industrial disability. The record on appeal consists of the transcript of the arbitration hearing, claimant's exhibits 1 through 3, and defendant's exhibits A through C. Only defendant has filed a brief on appeal. ISSUES Defendant states the following issues on appeal: 1. Claimant has failed to prove by a preponderance of evidence from competent medical testimony that his back problem "arose out of" a work "injury". 2. The Arbitration Decision, without explanation or basis, erroneously favors the medical report of the evaluating physician over the opinions of the treating physician. 3. The Arbitration Decision erroneously finds the Claimant's injury to extend beyond the right lower extremity. REVIEW OF THE EVIDENCE The arbitration decision adequately and accurately reflects the pertinent evidence and it will not be totally reiterated herein. On May 1, 1984, while carrying a roll of film weighing 90-100 pounds, claimant slipped and twisted his body injuring his right knee. Claimant stated that he went to the company nurse who sent him immediately to the hospital. Claimant indicated that he was examined at the hospital and was placed in a splint and sent home the same night. Claimant was then treated by L.C. Strathman, M.D., on May 9, 1984. Dr. Strathman states in his examination report: EXAMINATION: Reveals mild puffiness about the knee, no discreet effusion. He states it was more swollen than this earlier. The collaterals and cruciates seem stable. He lacks a few degrees of extension and a few degrees of flexion compared to the other side. Tenderness is primarily medially. McMurray's test reveals no click. X-ray shows this very large knee. The joint is well preserved. I don't see any evidence of fracture or dislocation. Patellar view shows wide lateral facet but there does not seem to be impingement. His findings are more consistent with acute strain. The possibility of internal derangement has to be considered but I don't find enough change today to warrant further studies and particularly invasive studies. We'll have him start quad exercises, range of motion, gradually wean off the immobilizer and we should check him in a couple weeks. (Defendant's Exhibit A, unnumbered page 4) Dr. Strathman released claimant on May 10, 1984 for limited work wearing the knee immobilizer. See defendant's exhibit A, page 4. Claimant returned to Dr. Strathman on May 23, 1984, and Dr. Strathman noted that claimant was experiencing continued soreness but that claimant retained full range of motion. See defendant's exhibit A, page 5. Dr. Strathman examined claimant on June 25, 1984, and he opined: 6-25-84: This lad's right knee feels better but he is aware of a click in the knee. Today on acute flexion a palpable click is noted at the joint line medially. This is not particularly painful and there is no effusion. I feel this gentleman has a torn medial meniscus and when symptoms are bothering him sufficiently that he wishes to be rid of it we should proceed with arthroscopy and probably removal of this medial meniscus. (Def. Ex. A, p. 5) After his August 16, 1984 examination, Dr. Strathman scheduled claimant for arthroscopic surgery. In a December 9, 1985 letter, Dr. Strathman opines: This gentleman was seen and treated by the writer from 5-9-84 through 7-10-85. His initial history was of slipping while at work and injuring his right knee. He subsequently showed evidence of a click. Arthroscopic exam was carried out and he had a torn medial meniscus which was subsequently removed. He went on to satisfactory healing. During this time that we saw him there were no complaints other than in respect to this right knee. He was rated as an estimated permanent partial disability of 10% of the affected right lower extremity. (Def. Ex. A, p. 3) Claimant stated that the injury to his right leg has caused him to favor his left leg. Claimant opined that his left leg is getting bigger. Claimant also stated that he has been having problems with his lower mid back. Claimant opined that these back problems are related to his right knee injury. Claimant was examined by John R. Walker, M.D., with regard to claimant's back problem on October 16, 1985. Dr. Walker opines: OPINION: This patient has definite permanent impairment of the right lower extremity. It appears to be affecting his low back as well and I think that he may well have a little impairment of this as well. As far as the right, lower extremity is concerned, I believe that his permanent, partial impairment is 14% of the right, lower extremity and this is based on all of the findings, plus the cruciate laxity. This translates in to 6% of the whole man. I believe that he has suffered another 2% permanent, partial disability because of the low back lesion. It does seem reasonable that these complaints are logical and valid. I have queried him at great extent and he tells me that he has never had any back ache or back problems before this and has never been to a chiropractor or osteopath and he has never been to a doctor except for a Wilson Foods examination by the company doctor. All-in-all this should then total up to 8% impairment of the whole man. (Cl. Ex. 2) Claimant was examined by Dr. Strathman on July 18, 1986 with regard to claimant's back problems. Dr. Strathman states his impression: IMPRESSION: Acute and chronic low back strain. This gentleman should be working with a flexion exercise program, should be wearing a garment for awhile, at least for symptomatic relief. I think he's going to have to get some weight off and get on a conditioning program to keep this from becoming more of a chronic problem. There's no sign of radicular pain at this time and myelography or scanning does not seem indicated. I'll check him in a month. (Def. Ex. A, p. 2) With regard to whether the back problems are related to claimant's knee injury, Dr. Strathman opines: "I do not feel that the injury to his knee was contributory to his back complaints." (Def. Ex. A, p. 2) Claimant saw Dr. Walker again on August 18, 1986. Dr. Walker opines after that examination: OPINION: This patient still has the same problems that he had, plus a coccydynia which is painful. I cannot account for the coccyx pain as far as his original injury is concerned. It is difficult to see why he is having it other than this may have just come on in the course of events over these many months. As far as his permanent impairment is concerned, I would make no change. I believe that he has a permanent, partial impairment of the right knee amounting to 14% of the right, lower extremity and as far as the low back is concerned, he has a sprain of L-4, L-5 with some instability which is a chronic situation which I still believe amounts to a 2% permanent, partial impairment of the whole man. At the present time I really have no further suggestions for treatment except to do quadriceps exercises which I have indicated to him and to use heat on the low back on a PRN basis and to turn himself in to the nursing station at work if this back ache gets worse. I think that the back support is a good idea and he should wear it on a PRN basis. Probably he should be put on a back exercise program which I will leave to Dr. Strathman, however, today we did show him the quadriceps exercises because apparently he has not been doing them and I think they might benefit his right knee. I would be very happy to see this man back again if it is indicated. (Cl. Ex. 1) Claimant testified that his knee still bothers him but he opined that it is improving. Claimant stated that lifting bothers his knee and back. Claimant related that he lifts between 23,000 and 25,000 pounds per night in his current job. Claimant opined that his back pain affects his ability to work overtime. Claimant testified that he is 27 years old and that he dropped out of high school in the eleventh grade. Claimant has been employed by defendant since he was 19 years old. At the hearing the parties stipulated that claimant was off work from May 2, 1984 through May 9, 1984 and from August 16, 1984 through October 20, 1984. APPLICABLE LAW The citations of law in the arbitration decision are appropriate to the issues and evidence. ANALYSIS Defendant argues that claimant's injury does not extend to the body as a whole. The deputy analyzed this issue as follows: If a claimant contends he or she has sustained industrial disability (loss of earning capacity), he or she has the burden of proving that his or her injury resulted in an ailment that extends beyond the scheduled loss. Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964). Claimant herein has met his burden in this regard. Claimant's testimony combined with Dr. Walker's persuasive medical testimony establishes by a preponderance of the evidence a causal link between claimant's back impairment and the injury of May 1, 1984. In this regard, it is noted that a treating physician's testimony need not be given greater weight as a matter of law than that of a physician who later examines a workers' compensation claimant in anticipation of litigations. Rockwell Graphic Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985). Also, the record in this case establishes that claimant did not have any back problems prior to his injury of May 1, 1984. In sum, I am persuaded that claimant's back problem resulted from the trauma to his right knee and claimant "compensating" for this right knee injury. The fact that there is not substantial impairment to the back (i.e., greater than 2% of the whole body) does mean that this is a scheduled member case. (Arb Dec., p. 7) Claimant was examined and treated by Dr. Strathman on at least thirteen occasions before he reported to anyone that he was having back problems. He finally reported that he was experiencing back problem to Dr. Walker on October 16, 1985. At that time, Dr. Walker opines that the impairment of claimant's right lower extremity "appears to be affecting his back as well" and Dr. Walker assigns a two percent body as a whole rating based on impairment of the back, but Dr. Walker does not suggest any treatment for the back impairment nor does he place any restrictions on claimant. Claimant's next medical examination was on July 18, 1986 by Dr. Strathman. Dr. Strathman treated claimant's back problem with exercise program and with a back brace, but Dr. Strathman opines that claimant's back problems are not related to his right knee injury. Claimant returned to Dr. Walker on August 18, 1986. At that time, Dr. Walker states that claimant had the same problems plus a painful coccydynia which Dr. Walker opines he cannot account for as far as the original injury is concerned. See claimant's exhibit 1. Dr. Walker does not change his impairment ratings and he only suggests that claimant use heat on his back along with the treatment prescribed by Dr. Strathman. The following testimony by claimant concerning the onset of his back problems is interesting. Q. Randy, when did your back first start bothering you? A. Well, when I went to see Dr. Walker the first time, I told him about it. Q. Well, when did you first feel it though? Not when you first sought treatment, A. Well, it was a little ways after I had surgery on my knee. And I have been back to work for a while working on it and after a while it started bothering me, but it's been increasing more and more this last year. (Tr. p. 54) The greater weight of evidence does not support the deputy's finding that claimant's back problems are related to his work injury. The undersigned gives more weight to the opinion of Dr. Strathman who was claimant's treating physician and saw claimant over a greater length of time. Claimant's failure to report any back complaints until October 16, 1985 also supports such a conclusion. Claimant is entitled to benefits only to the extent of the impairment of his right lower extremity. Dr. Strathman opines that claimant suffers a 10 percent impairment of the right lower extremity. Dr. Walker opines that claimant suffers a 14 percent impairment of the right lower extremity. Dr. Strathman has observed claimant's knee injury over a substantial period of time. The greater weight of evidence establishes that claimant suffers a 10 percent permanent partial impairment of the right lower extremity. FINDINGS OF FACT 1. On May 1, 1984, claimant injured his right knee while working for defendant. 2. Claimant's back problems are not causally connected to his injury of May 1, 1984. 3. As a result of the May 1, 1984 work injury, claimant suffers a 10 percent permanent partial impairment of the right lower extremity. 4. Claimant returned to work on October 21, 1984. 5. Claimant's rate of weekly compensation is stipulated to be $206.09. CONCLUSIONS OF LAW Claimant has established that he sustained an injury arising out of and in the course of employment on May 1, 1984. Claimant is entitled to permanent partial disability benefits based on a 10 percent impairment of the right lower extremity. WHEREFORE, the decision of the deputy is affirmed and modified. ORDER THEREFORE, it is ordered: That defendant pay claimant twenty-two (22) weeks of permanent partial disability benefits at the rate of two hundred six and 09/100 dollars ($206.09) per week commencing on October 21, 1984. That defendant pay accrued amounts in a lump sum together with interest pursuant to Iowa Code section 85.30. That defendant be given credit for benefits already paid to claimant. That defendant pay the costs of this proceeding pursuant to Division of Industrial Services Rule 343-4.33. That defendant file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 22nd day of February, 1988. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. Robert F. Wilson Attorney at Law 810 Dows Building Cedar Rapids, Iowa 52401 Mr. John Bickel Attorney at Law P.O. Box 2107 5th Floor, MNB Building Cedar Rapids, Iowa 52401 1402.4 - 1803.1 Filed February 22, 1988 DAVID E. LINQUIST BEFORE THE IOWA INDUSTRIAL COMMISSIONER RANDY A. CLARK, Claimant, File No. 764542 vs. A P P E A L WILSON FOODS CORPORATION, D E C I S I 0 N Employer, Insurance Carrier, Defendant. 1402.40 - 1803.1 Claimant's contention that his right knee injury had caused impairment to his back was rejected. The opinion of the treating physician was given more weight in this regard. Claimant's failure to report any back complaints until a year after his knee injury also supported a finding of no causal connection.