Page 1 before the iowa industrial commissioner ____________________________________________________________ : ARLENE HEATON, : : Claimant, : : vs. : File Nos. 786195 : 954386 PELLA ROLSCREEN COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ On June 21, 1989 and November 21, 1990, Arlene Heaton (claimant) filed petitions for arbitration as a result of injuries to claimant's arm and shoulder occurring on January 25, 1984 and March 1, 1989 respectively. Pella Rolscreen ( Pella) was identified as employer and Employers Mutual Company was identified as the workers' compensation insurer for Pella (collectively defendants). On July 15, 1991, these matters came on for hearing in Des Moines, Iowa. The parties appeared as follows: the claimant in person and by her counsel Arthur Hedberg of Des Moines, Iowa and Pella and Employers Mutual by their counsel D. Brian Scieszinski of Des Moines, Iowa. The record in this proceeding consisted of the following: 1. The live testimony of the claimant, Sue Pelong and Myron Linn. 2. Joint exhibit 1, pages 1-113. 3. Defendants' exhibit A-D. stipulations The parties stipulated to the following matters for both injuries at the time of the hearing: a. An employer-employee relationship existed between claimant and employer at the time of the alleged injury. b. The claimant sustained an injury on January 25, 1984, 1989, which arose out of and in the course of employment. c. The claimant sustained an injury on March 1, 1989, which arose out of and in the course of employment. Page 2 d. The alleged injuries caused a temporary disability. e. The alleged injuries caused a permanent disability. f. The extent of entitlement to weekly compensation for temporary total disability or healing period, for the 1984 injury is stipulated to be 79 weeks ending on March 23, 1988. g. The type of permanent disability, if the injury is found to be a cause of permanent disability, for the 1984 injury is a scheduled member injury. h. The type of permanent disability, if the injury is found to be a cause of permanent disability, for the 1989 injury is industrial disability to the body as a whole. i. The commencement date for permanent partial disability, for the 1984 injury is March 23, 1988. j. The commencement date for permanent partial disability, for the 1989 injury is March 1, 1989. k. The rate of compensation, in the event of an award for the 1984 injury, is $204.98 per week based on a gross wage of $327 per week. At the time of the first injury claimant was single and had two children. She is entitled to three exemptions. l. The rate of compensation, in the event of an award for the 1989 injury, is $228.39 per week based on a gross wage of $366.93 per week. At the time of the first injury claimant was single and had one child. She is entitled to two exemptions. m. The parties agree that medical benefits are no longer in dispute. n. Defendants have paid the following benefits prior to hearing: Injury Date Weeks Paid Rate 1984 injury 79 weeks(Heal. Per) $204.98 1989 injury 37.5 weeks(PPD) $204.98 Page 3 Issue The only issue for resolution for both of these injuries is the extent of any entitlement to benefits owed to claimant. FINDINGS OF FACT After considering all of the evidence and the arguments of counsel, the undersigned makes the following findings of fact and conclusions of law. 1. At the time of the hearing, claimant was 41 years of age. At the time of the first injury in this matter, claimant was 34 years old. At the time of the second injury, in 1989, claimant was 39 years old. Claimant's formal education ended after her junior year in high school. She left school in 1967 and has never obtained a GED. Claimant was an average student. 2. After claimant left high school, she worked in an overall factory in Pella from November of 1976 to December 1976. Thereafter, she began working for Pella in January of 1977 to the present date. Claimant has also worked on a part time basis for Avon since 1988. Claimant continues as an Avon representative to date. 3. Claimant has had various work assignments since she began her employment with Pella in 1977. Additionally, claimant has received merit wage increases and cost of living increases on a periodic basis. In 1984, claimant was running a power screwdriver that she had been using for a couple of years to build window sashes. She was required to screw five screws in each sash for eight hours per day. This was repetitive work that required her to squeeze a trigger and bear down on the power screwdriver to make the window sashes. 4. On January 25, 1984, claimant was experiencing severe pain in her right arm. Claimant was referred to Arnis Grundberg, M.D., for treatment. Dr. Grundberg found that claimant was suffering from right carpal tunnel syndrome, right lateral epicondylitis, and right cubital tunnel. As a result of this diagnosis, Dr. Grundberg operated on claimant to correct these problems. Dr. Grundberg decompressed the lateral epicondylitis, the right cubital tunnel and did a decompression of the right carpel tunnel. 5. Claimant's post operative recovery was unremarkable and she was released to return to work on April 8, 1985. Dr. Grundberg imposed restrictions on claimant which included no pushing, pulling or lifting over five pounds with the right hand and no use of the power screwdriver. 6. Claimant continued to have difficulties with her right upper extremity during 1986. On August 5, 1986, Dr. Grundberg gave claimant a permanent impairment rating of 14.5 percent for her right arm for the right carpal tunnel syndrome and the other surgeries that he performed. Page 4 7. Claimant continued to have pain complaints in her right upper extremity, and was seen by Scott Neff, M.D., on August 13, 1986. During that examination, claimant complained of persistent pain in the right elbow and numbness and tingling in her right hand. Dr. Neff concluded that claimant might have thoracic outlet syndrome and referred claimant to Alexander Matthews, M.D. Before claimant saw Dr. Matthews, she had a functional capacity evaluation with Tom Bower, a licensed physical therapist. The claimant's EMG tests showed that aspects of the exam were within normal limits on the right side. However, claimant continued to complain of pain in her right hand and forearm with grip loss, intermittent tingling and numbness and persistent nocturnal parasthesias. At the time of this evaluation, claimant was building muntins for windows. This involved operating a power glue gun and gluing two pieces of wood together. The nerve conduction studies revealed that there was an increase in the amplitude at the proximal median nerve conduction which was slightly abnormal but not outside the range of a normal nerve conduction study. After Dr. Neff received the results from the study, claimant was referred to Dr. Matthews for thoracic outlet syndrome. 8. Dr. Matthews examined claimant on November 30, 1986, and concluded that she was suffering from thoracic outlet compression syndrome. Dr. Matthews performed the transaxillary resection of the first right rib on December 1, 1986. After the surgery, claimant's condition had improved significantly in that she was no longer complaining of numbness and tingling. 9. On March 16, 1987, claimant was returned to work on a part time basis. She was to work twenty hour per week. Claimant was seen by Dr. Matthews in April and reported that she was experiencing pain in her right forearm and elbow with shooting pain into her wrist. Dr. Matthews noted that claimant had a right grip reduction of about 50 percent. He did decide, however, to continue her on a limited work basis. 10. Through the spring, claimant continued to complain of a weak grip and weakness in flexion and extension in her wrist. On June 3, 1987, Dr. Matthews concluded that claimant needed a neurological consultation and referred her to Steven R. Adelman, D.O. Dr. Adelman examined claimant and found that claimant had no clinical evidence of a cervical radiculopathy or entrapment neuropathy of the right upper extremity. Dr. Adelman found that claimant's continuing complaints appeared to be musculoskelatal in nature with a component of tennis elbow. Dr. Adelman concluded after his examination that if claimant had not recovered in the last two or three years he would be skeptical as to whether she would ever be able to return to work on a full time basis. 11. Claimant returned to see Dr. Matthews in October and he was at a loss as to what form of treatment he should prescribe next. Consequently, he referred claimant to Dr. Neff for an evaluation. On October 13, 1987 Dr. Matthews did impose a five pound lifting restriction on claimant and Page 5 to avoid pressure and use of the right arm. 12. On October 29, 1987, Dr. Neff examined claimant and could really attribute no cause to her degree of symptoms. He reviewed the fact that claimant had been examined by Mr. Bower and she did not have a detectable grip strength which was extremely unusual. In December of 1987, Dr. Matthews again examined claimant and reported that there was no change in her symptoms or findings. Dr. Matthews indicated that claimant's current symptoms were not related to her thoracic outlet syndrome. 13. In early 1988, both Dr. Matthews and Dr. Neff examined claimant. They concluded that claimant's pathology is based at the elbow and forearm level. They did a repeat EMG study but claimant did not tolerate the procedure very well. From the study that Mr. Bower was able to complete, Dr. Neff felt that claimant's EMG study was normal. However, since the EMG study was not showing evidence of a specific median nerve or ulnar nerve entrapment, Dr. Neff referred claimant to Iowa City for further examination. 14. In February of 1988, doctors at the University of Iowa examined claimant's right upper extremity. The University of Iowa specialists could not trace her right elbow pain to any source and they concluded that the right elbow pain was of unknown etiology and simply recommended conservative treatment. At that juncture, there was no surgical procedure that would relieve claimant from her pain complaints. 15. After claimant returned from the University of Iowa examination, Dr. Neff examined her in March of 1988. At that time, he recommended that claimant stay on permanent part time work to alleviate her elbow pain. 16. In April of 1988, Dr. Neff assigned a fifteen percent permanent functional impairment to claimant's arm. Dr. Neff based his rating on the absence of EMG abnormalities and no documented neurological involvement. He concluded that claimant's right shoulder was not contributing to her rating. He noted that claimant had a fifteen degree loss of range of motion in the right elbow and persistent muscle weakness. The range of motion would account for ten percent of the permanent functional impairment and five percent was attributable to persistent muscle weakness and inability to tolerate repetitious activity. 17. Thereafter, Pella approached Dr. Neff in an effort to have claimant become fully employed. Pella devised a work program for claimant where she would be rotating positions on a part time basis. Dr. Neff viewed a video tape of claimant's work duties and agreed that if she rotated jobs this would be acceptable and she could be released for full time employment. As part of her combined job, claimant would build muntins and cut screen channels. Claimant was then released for full time employment on August 31, 1988. Page 6 18. On March 1, 1989, claimant began reporting shoulder pain. Claimant was eventually referred to Dr. Matthews, who examined claimant and found that she had shoulder impingement with radial neuropathy in the right upper extremity.(1) At that point, claimant had a repeat EMG study done. However, the portions of the study that were completed were all within normal limits. Again, claimant did not tolerate the needle procedure and the results of the examination were limited in that regard. 19. In October of 1989, claimant was referred to Dr. Neff for further evaluation of her shoulder. Dr. Neff found that claimant was suffering from impingement syndrome of the right shoulder and instability of the right shoulder. He noted that claimant had been working for the last 6 or 7 months and had been developing more difficulty with her right shoulder. She was doing repetitive work with a rapid motion side to side with her right arm. Upon manipulation of the joint, Dr. Neff was able to elicit a definite subacromial synovial crepitus or clicking which was felt when claimant lifted her arm overhead. Additionally, he noted tenderness with anterior stress on her shoulder. An MRI study of the right upper extremity was performed on October 31, 1989. The MRI showed a well defined rotator cuff with no tears. The acromioclavicular joint showed hypertrophy of the capsule without significant impingement. The MRI did not show any significant joint effusion and the glenoid labrum appeared intact. The MRI did show mild subacromial bursitis associated with a hypertrophic spur on the acromion. In November when Dr. Neff reviewed the study, he concluded that claimant had a spur on the inferior aspect of the acromion with subacromial bursitis. This finding supported his conclusion that claimant was suffering from impingement syndrome. He recommended a series of injections for claimant and noted that by December 1 claimant had improved. Dr. Neff concluded that claimant's repetitive side to side activity for eight hours per day had caused frictional changes in her subacromial bursa and rotator cuff tissues. This had resulted in an impingement syndrome. At that point, no surgery was recommended. However, Pella would need to alter claimant's jobs to avoid side to side work. 20. In 1990, when claimant was released to return to work. In her January 29 performance evaluation, Sue Pelong noted that claimant needed to have a job that kept her busy 100 percent of the time. 21. Claimant continued to complain of pain and in February 1990 was again examined by Dr. Neff. He reviewed (1). Impingement syndrome or painful arc syndrome occurs in the musculature and tendons and bursa around the shoulder when an inflammatory or a friction related process occurs. This condition is usually found or above shoulder height and can be caused by polishing, scrubbing, throwing, or swimming. It is more commonly associated with overhead work but it can be seen with repetitious activities in a forward or backward maneuver or side to side maneuver if the arm is elevated. Typically the condition is not caused by a single activity, it is caused by repetitious activity over a period of time. Page 7 recent plain x-ray films from Mercy which were unremarkable and the MRI study which showed that the rotator cuff was normal and the acromioclavicular joint was now only showing a minimal hypertrophy of the capsule. Additionally, Dr. Neff noted that the glenoid labrum was normal. 22. In June of 1990, claimant was evaluated by Jerome G. Bashara, M.D. Dr. Bashara reviewed the records from Dr. Grundberg, Iowa Methodist, Lutheran Hospital, Dr. Matthews, Dr. Adelman, University of Iowa, Mercy, and Dr. Neff. After reciting a fairly detailed history of claimant's injuries and treatment, Dr. Bashara noted that claimant's current symptoms included continuing pain in her right shoulder. Additionally, he noted that she had tingling in her right hand and loss of grip and strength. After examination, Dr. Bashara concluded that claimant was suffering from impingement syndrome of the right shoulder. He also concluded that this condition was related to some repetitive work activities from her occupation. Dr. Bashara gave her a four percent partial permanent impairment of the upper extremity which converted into a two percent impairment of the body as a whole. He recommended that claimant not work at eye level. 23. In August 1991, claimant was again examined by Mr. Bower and Dr. Neff. She was seen for an impairment rating and pain complaints. Dr. Neff noted that claimant had been given a 15 percent impairment rating previously for her right upper extremity. In his examination in August, claimant's right arm showed a full range of motion in the right shoulder. Dr. Neff could find no crepitation either on active or passive movements in the glenohumeral joint. The right elbow range of motion still showed a fifteen degree extension loss. Claimant had negative Phalen's and Tinel's signs at the wrist and elbow. Claimant's nerve conduction velocity for the ulnar and median motor and sensory nerves were completely normal. Claimant's grip measurements were still inconsistent with her condition. Dr. Neff concluded that claimant was preoccupied with pain. He found that there was no injury to the body as a whole and that claimant's injury was limited to the right upper extremity to the extent of a permanent partial impairment of fifteen percent. 24. At the time of the hearing, claimant was still working full time at Pella earning an hourly wage that had increased since time of her first injury. In order to be promoted at Pella, claimant is required to take specific classes regarding wood technology and the construction of windows. There are three classes of employment that claimant would be eligible for in the event that she took these classes and obtained a passing grade. Claimant has shown no inclination to take any of these classes, and has not attempted to obtain other employment at a higher rate of pay in the plant since the time of her injuries. Claimant has had the same raises that all employees at Pella have received in her class. She also is receiving the basic Page 8 employment benefit package which includes health insurance, profit sharing and other benefits. Claimant plans to continue working at Pella and she has not sought other employment since her injury. Claimant has made no effort to change jobs since she was injured. Additionally, she self selected herself out of several employment opportunities within the plant because she has made a judgment that she could not do the jobs since she believes they do not fall within her restrictions. 25. When claimant is building muntins, she is required to build approximately 75-80 per hour. Claimant is currently producing as many muntins today as she was prior to the injury to her shoulder. Claimant is permitted to work at her own pace so that she minimizes her arm pain. Claimant does work slower than other employees but her supervisors have concluded that this is an acceptable level of performance given the restrictions that she is working under. Claimant's other job involves cutting screen channels. This job involves operating a table saw with a foot control. Claimant simply takes a piece of wood and makes a cut. Claimant does her muntin job with her left hand and she can also do her cutting job with her left hand. Pella has no reason to discontinue employment of claimant in the foreseeable future and the company is satisfied with the job she is currently doing. 26. As far as claimant's future job security is concerned, Pella has had no layoffs in its 66 year history. Additionally, Pella has had no strikes and the company has followed a general policy of accommodating injured employees. Pella values its employees and works with medical doctors and rehabilitation specialists to modify the jobs to accommodate injured employees. CONCLUSIONS OF LAW I. 1984 injury. The parties have agreed that claimant suffered a loss to permanent loss to a scheduled member when her arm was injured in 1984. The only question to resolve is the extent of her entitlement under the Iowa Code. The right of a worker to receive compensation for injuries sustained which arose out of and in the course of employment is statutory. The statute conferring this right can also fix the amount of compensation to be paid for different, specific injuries. Barton v. Nevada Poultry Co., 110 N.W.2d 660, 663 (Iowa 1961); Soukup v. Shores Co., 268 N.W. 598, 601 (Iowa 1936). Where there is an injury to a specific part of claimant's body, such loss shall be compensable only to the extent provided by the statute. Thus by legislative edict, where the result of an injury causes the loss of a foot, or eye etc, such loss, together with its ensuing natural results upon the body, is declared to be a permanent partial disability and entitled only to the prescribed compensation set forth in Iowa Code section 85.34(2). A specific scheduled disability is evaluated by the functional method. Martin v. Skelly Oil Co., 252 Iowa Page 9 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 887 (Iowa 1983). Expert medical evidence is considered in determining the extent of claimant's disability. The expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974) The weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other material circumstances. Bodish v. Fischer, Inc., 133 N.W.2d 867, 870 (Iowa 1965); Musselman v. Central Telephone Co., 154 N.W.2d 128, 130 (Iowa 1967). The Supreme Court has also observed that greater deference is ordinarily accorded expert testimony where the opinion necessarily rests on medical expertise. Sondag, 220 N.W.2d at 907. Where there are conflicting opinions, the treating physician's testimony was not required to be given more weight than that of a later physician who examined worker in anticipation of a workers' compensation claim. Lithcote Company v. Ballenger, 471 N.W.2d 64, 66 (Iowa 1991); Rockwell Graphics v. Prince, 366 N.W.2d 903, 907 (Iowa 1974). In this instance, Dr. Neff and Dr. Grundberg gave claimant a rating for her arm. Dr. Grundberg as the treating physician saw claimant at the conclusion of her surgery on her arm. Dr. Neff saw claimant after her thoracic outlet surgery. Dr. Neff had numerous opportunities to treat claimant after this surgery. Moreover, Dr. Grundberg was not asked to reevaluate claimant after her thoracic outlet surgery. The impairment of rating of Dr. Neff was also reaffirmed after claimant had been working for a period of time. For these reasons, Dr. Neff's opinion that claimant suffered a 15 percent functional impairment to her right upper extremity will be adopted as the functional loss in this case. The loss of use to claimant's arm, based on her restrictions and the functional impairment rating is 15 percent. II. 1989 Injury. The parties have agreed that the injury suffered on March 1, 1989 resulted in a permanent disability. Where claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 258 N.W.2d 899, 902 (Iowa 1935) as loss of earning capacity and not a mere `functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal person. The essence of an earning capacity inquiry then, is not how much has the claimant been functionally impaired, but whether that impairment, in combination with the claimant's age, education, work experience, pre and post injury wages, motivation and ability to get a job within her restrictions, if any restrictions have been imposed, have caused a loss of earning capacity. Olson v. Goodyear Service Stores, 125 Page 10 N.W.2d 251, 257 (Iowa 1963); Diederich v. Tri-City Railway Co., 258 N.W. 899, 902 (Iowa 1935); Peterson v. Truck Haven Cafe, Inc., 1 Iowa Industrial Comm'r Dec. No. 3, 654, 658 (1985); Christensen v. Hagen, Inc., 1 Iowa Industrial Comm'r Dec. No. 3, 529, 534-535 (1985). There are no weighting guidelines that indicate how each of the factors are to be considered. There is no equation which can be applied and then calculated to determine the degree of industrial disability to the body as a whole. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience and general and specialized knowledge to make a finding with regard to the degree of industrial disability. See, Peterson, 1 Iowa Industrial Commissioner Decisions No. 3, at 658; Christening, 1 Iowa Industrial Commissioner Decisions No. 3, at 535. In this instance, the claimant urges that her future earning capacity must also be factored into the determination of her loss of earning capacity resulting from her shoulder injury. The agency case law dictates a different result. It is only the claimant's present not future earning capacity which is to be measured in awarding industrial disability. Stewart v. Crouse Cartage, File No. 738644, Slip Op. (Iowa Ind. Comm'r Arb. Feb. 20, 1987); Umphress v. Armstrong Rubber Co. File No. 723184, Slip Op. (Iowa Ind. Comm'r App. Aug. 27, 1987). At claimant's age, in her early forties, she is at the peak of her earning capacity. This makes claimant's loss more severe than it would be for a younger or older worker. Becke v. Turner-Busch, Inc., 34 Biennial Report of the Industrial Commissioner 34 (App. 1979); Walton v. B & H Tank Corp., II Iowa Industrial Commissioner Report 426 (1981); McCoy v. Donaldson Company, Inc., file numbers 782670 & 805200 (Iowa Ind. Comm'r App. Decision April 28, 1989). Claimant has a limited formal education which could limit her ability to be retrained. However, claimant has shown no inclination to obtain additional training to seek better jobs at Pella or otherwise. Claimant has a functional impairment rating for her shoulder which ranges between one and two percent. All of claimant's doctors have placed restrictions on claimant in connection with her shoulder. These restrictions prevent her from returning to the factory market for available repetitive jobs. Claimant has not experienced any wage loss however. Pella is to be commended for accommodating claimant and working with her to keep her fully employed. Claimant is still doing factory work, though she is not doing one job all day. Finally, the last report from Dr. Neff indicates that claimant has experienced substantial improvement in her shoulder. She had full range of motion in her right shoulder and no crepitation in the gleno-humeral joint. She had negative Phelan's and Tinel's at the wrist and elbow. Her EMG studies were normal. Based upon the foregoing factors, all of the factors Page 11 used to determine industrial disability, and employing agency expertise, it is determined that claimant sustained a eight percent industrial disability. order THEREFORE, it is ordered: 1. Pella and Employers Mutual shall pay to claimant permanent partial disability benefits in the amount of fifteen percent (15%) of two hundred fifty (250) weeks for an injury to the right arm. Payment shall commence on March 23, 1988. As these benefits have accrued, they shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30 (1991). 2. Pella and Employers Mutual shall pay to claimant permanent partial disability benefits for the injury to claimant's shoulder in the amount of eight (8%) with payment commencing on March 1, 1990. As these benefits have accrued, they shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30 (1991). 3. Pella and Employers Mutual shall have a credit for all amounts previously paid against any amounts owed. 4. The costs of this action shall be assessed to Pella and Employers Mutual pursuant to rule 343 IAC 4.33. 5. Pella and Employers Mutual shall file claim activity reports as required by rule 343 IAC 3.1. Signed and filed this ____ day of March, 1992. ________________________________ ELIZABETH A. NELSON DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Arthur C Hedberg Jr Attorney at Law 840 Fifth Avenue Des Moines Iowa 50309-1398 Mr D Brian Scieszinski Mr Cecil L Goettsch Attorneys at Law 801 Grand Avenue Suite 3700 Des Moines Iowa 50309 5-1803 Filed March 17, 1992 ELIZABETH A. NELSON before the iowa industrial commissioner ____________________________________________________________ : ARLENE HEATON, : : Claimant, : : vs. : File Nos. 786195 : 954386 PELLA ROLSCREEN COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803 Claimant's loss of use of her arm in File No. 786195 found to be 15 percent based on functional impairment of arm. 5-1803 Claimant, 41-year-old factory worker, with an 11th grade education, and a 0-2 percent functional impairment rating and lifting restrictions for injury to her shoulder awarded 8 percent industrial disability where claimant had returned to modified factory job with an increase in wages. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROLLAND L. ALLEN, Claimant, File No. 786303 vs. A P P E A L HYMAN FREIGHTWAYS, D E C I S I O N Employer, F I L E D and JULY 27, 1989 TRANSPORT INSURANCE COMPANY, INDUSTRIAL SERVICES Insurance Carrier, Defendants STATEMENT OF THE CASE Claimant appeals from an arbitration decision awarding claimant permanent partial disability benefits as a result of an alleged injury sustained on December 3, 1984. The record on appeal consists of the transcript of the arbitration decision and joint exhibits 1 through 15. Both parties filed briefs on appeal. ISSUE Claimant states the following issue on appeal: "Has the claimant suffered an industrial disability beyond the 15 per cent [sic] found by the deputy industrial commissioner?" REVIEW OF THE EVIDENCE The arbitration decision adequately and accurately reflects the pertinent evidence and it will not be set forth herein. APPLICABLE LAW The citations of law in the arbitration decision are appropriate to the issues and the evidence. ANALYSIS The analysis of the evidence in conjunction with the law is adopted. On appeal claimant argues that the limitations placed on him as a result of his injury would prohibit him from gaining a number of positions for which he is otherwise suited, if he were terminated or his present employment became otherwise unavailable. In effect, claimant is attempting to have the undersigned base an award on possible future developments of claimant's present condition. However, only claimant's present disability can form the basis of an award of benefits. Basing an award on possible developments of claimant's condition would be engaging in mere speculation. Should claimant's physical condition change or the circumstances surrounding his employment change he has the ability to file a review-reopening provided he meets the statutory requirements. FINDINGS OF FACT 1. Claimant was a 57 year old truck driver at the time of the arbitration hearing. 2. As a result of the injury that claimant sustained on December 3, 1984, he has a 15 percent permanent impairment of the body as a whole, due to the condition of his shoulder. 3. Claimant is prohibited from working with his right hand overhead. He is also prohibited from engaging in strenuous use of the right arm in activities such as lifting, pushing and pulling. 4. Claimant is unable to perform the work of a city delivery truck driver, but has been able to continue employment as an over-the-road truck driver. 5. Claimant has sustained a 15 percent loss of earning capacity as a result of the permanent effects of the injury he sustained on December 3, 1984. 6. Claimant did not suffer any loss of actual earning other than the earnings lost during the period of recuperation from the injury of December 3, 1984. CONCLUSIONS OF LAW Claimant has a 15 percent permanent partial disability of the body as a whole which entitles him to receive 75 weeks of compensation under the provisions of Iowa Code section 85.34(2)(u). Claimant has been previously paid 75 weeks of compensation for permanent partial disability and he has been fully paid all compensation due or payable to him as a result of the December 3, 1984 injury. WHEREFORE, the decision of the deputy is affirmed. ORDER THEREFORE, it is ordered: That claimant take nothing from this proceeding. That the costs of this action are assessed against claimant pursuant to Division of Industrial Services Rule 343-4.33. That defendants file a claim activity report as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 27th day of July, 1989. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. Thomas R. Isaac Attorney at Law 3213 East 14th St. Des Moines, Iowa 50316 Mr. Cecil L. Goettsch Attorney at Law 1100 Des Moines Bldg. Des Moines, Iowa 50309 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROLLAND L. ALLEN, Claimant, vs. File No. 786303 HYMAN FREIGHTWAYS, A R B I T R A T I 0 N Employer, D E C I S I 0 N and TRANSPORT INSURANCE COMPANY, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Rolland L. Allen against Hyman Freightways, Inc., his employer, and Transport Insurance Company, the employer's insurance carrier. The case was heard and fully submitted at Des Moines, Iowa on November 17, 1988. The record in this proceeding consists of joint exhibits 1 through 15, testimony from Rolland L. Allen and testimony from Joseph Chavez. Claimant seeks compensation for additional permanent partial disability resulting from an injury which occurred on December 3, 1984. The only issue in the case is determination of permanent partial disability. SUMMARY OF EVIDENCE The following is a summary of evidence presented in this case. only the evidence most pertinent to this decision is discussed, but all of the evidence received at the hearing was considered in arriving at this decision. Conclusions about what the evidence showed are inevitable with any summarization. The conclusions in the following summary should be considered to be preliminary findings of fact. Rolland L. Allen is a 57-year-old truck driver who has been employed by Hyman Freightways, Inc. since 1972. Allen injured his right shoulder when he slipped and fell on ice at work on December 3, 1984. He was off work for approximately thirteen months during which time he had rotator cuff surgery performed by Scott B. Neff, D.O. The surgery performed was a repair of claimant's right rotator cuff, acromioplasty and resection of the coracoacromial ligament and resection of the lateral clavicular osteophyte for decompression of the subacromial space (exhibit 4). Dr. Neff has given claimant permanent work restrictions which prohibit him from working overhead and which prohibit him from doing heavy lifting, pushing and pulling using his right arm. Dr. Neff assigned a fifteen percent permanent impairment rating (exhibit 12). At the time of injury, claimant was working as a city driver. A city driver performs frequent loading, unloading and handling of freight. It requires handling freight overhead and handling freight which weighs more than 50 pounds. The job of a city driver involves climbing in and out of the trailer as often as 20 or 30 times per day. Claimant testified that he has difficulty climbing in and out of a trailer since his use of his right arm is limited. Claimant stated that he cannot handle overhead work. Ever since he resumed employment following recuperation from this injury, the claimant has bid and held an over-the-road run to Chicago where he does not have to load and unload. Claimant stated that some other over-the-road runs do require handling of freight. Allen is currently number six on the seniority list of fifteen drivers. Routes are determined by bidding annually. Allen has been driving over-the-road since shortly after he resumed employment following recuperation from his injury. Claimant's annual earnings, as shown by exhibit 1, are as follows: 1983 $39,461.30 1984 $36,742.43 1985 $ 3,033.33 1986. $40,219.40 1987 $46,567.61 1988 (projected) $52,080.00 Claimant testified that he plans to stay in the freight industry and to remain employed by Hyman Freightways, Inc. He has not sought other employment. Claimant stated that his current bid job and other work with Hyman Freightways is not guaranteed to endure indefinitely. Claimant testified that he performs extra work in addition to his regular run in order to earn additional wages. Joseph Chavez, the safety director for Hyman Freightways, Inc., testified that over-the-road drivers generally earn a larger income than city drivers. Chavez stated that Allen is a very desirable employee and that claimant will be offered continued employment with Hyman Freightways, Inc. Chavez also ALLEN V. HYMAN FREIGHTWAYS PAGE 3 stated that claimant's physical restrictions would not prevent him from being hired by Hyman at the present tune if he were applying for initial employment. Chavez felt that claimant could find employment as an over-the-road truck driver elsewhere if he were not employed by Hyman Freightways, Inc. APPLICABLE LAW AND ANALYSIS Claimant's disability is primarily manifested in his ability to use his right arm. The actual situs of the injury, however, is his shoulder. A shoulder is not a scheduled member and it is the impairment of the shoulder that is responsible for claimant's loss of use of his right arm, rather than some injury or abnormality to the arm itself. Accordingly, the disability should be evaluated industrially. Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986); Kellogg v. Shute & Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964); Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 (1949); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). As claimant has an impairment to the body as awhole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 257 (1963). Industrial disability or loss of earning capacity is.a concept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment of physical capacity creates an inference of lessened earning capacity. The basic element to be determined, however, is the reduction in value of the general earning capacity of the person, rather than the loss of wages or earnings in a specific occupation. Post-injury earnings create a presumption of earning capacity. The earnings are not synonymous with earning capacity and the presumption may be rebutted by evidence showing the earnings to be an unreliable indicator. Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 34th Biennial Report, 218 (1979): 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. Claimant's recent work history has been limited to the trucking industry. It is unlikely that his education and other work experience would qualify him for any type of work which would be as financially rewarding as truck driving. Allen has not been forced to seek a different type of work. He has ALLEN V. HYMAN FREIGHTWAYS PAGE 4 remained employed with the same employer. His pattern of earnings seems to have continued with regular increases. The record that has been presented does not demonstrate any loss of actual earnings, other than for the earnings lost during the period of recuperation when Allen was not working. Nevertheless, Allen does have a significant physical impairment which detracts from his desirability as an employee. He has lost the flexibility to move into other types of work. When all the applicable factors of industrial disability are considered, it is determined that Rolland L. Allen has sustained a 15% permanent partial disability of the body as a whole as a result of the injury that occurred on December 3, 1984. FINDINGS OF FACT 1. Rolland L. Allen and Joseph Chavez are fully credible witnesses. 2. As a result of the injury that Allen sustained on December 3, 1984, he has a permanent 15% impairment of the body as a whole, due to the condition of his shoulder. He is prohibited from working with his right band overhead. He is also prohibited from engaging in strenuous use of the right arm in activities such as lifting, pushing and pulling. 3. Allen is unable to perform the work of a city delivery truck driver, but has been able to continue employment as an over-the-road truck driver. 4. Allen has sustained a 15% loss of his earning capacity as a result of the permanent effects of the injury he sustained on December 3, 1984. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. Rolland L. Allen has a 15% permanent partial disability of the body as a whole which entitles him to receive 75 weeks of compensation under the provisions of Code section 85.34(2)(u). 3. Claimant has been previously paid 75 weeks of compensation for permanent partial disability and he has been fully paid all compensation due or payable to him as a result of the December 3, 1984 injury. ORDER IT IS THEREFORE ORDERED that claimant take nothing from this proceeding. IT IS FURTHER ORDERED that the costs of this action are assessed against claimant pursuant to Division of Industrial Services Rule 343-4.33. IT IS FURTHER ORDERED that defendants file Claim Activity Reports as requested by this agency pursuant to Division of ALLEN V. HYMAN FREIGHTWAYS PAGE 5 Industrial Services Rule 343-3. Signed and filed this 28th day of November, 1988. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Thomas R. Isaac Attorney at Law 3213 East 14th Street Des Moines, Iowa 50316 Mr. Cecil L. Goettsch Attorney at Law 1100 Des Moines Building Des Moines, Iowa 50309 1803, 1803.1 Filed November 28, 1988 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROLLAND L. ALLEN, Claimant, vs. File No. 786303 HYMAN FREIGHTWAYS, A R B I T R A T I 0 N Employer, D E C I S I 0 N and TRANSPORT INSURANCE COMPANY, Insurance Carrier, Defendants. 1803, 1803.1 Injury to claimant's right shoulder for which rotator cuff and other surgery was performed was held to be an injury to the body as a whole, not to the scheduled member of an arm, even though the disability was primarily manifested in the claimant's lack of ability to use the arm. Where climant was retained in his same employment without any showing that his rate of earnings had been reduced as a result of the permanent effects of the injury, claimant was held to have sustained a 15% permanent partial disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JON KERNS, Claimant File No. 786482 vs. A P P E A L IBP, INC., D E C I S I O N Employer, Self-Insured, Defendant. STATEMENT OF THE CASE Claimant appeals from an arbitration decision awarding claimant benefits based upon ten percent permanent partial disability to the left hand. The deputy taxed the costs of the arbitration proceeding to claimant. The record on appeal consists of the transcript of the arbitration hearing and joint exhibits 1 through 11. Both parties filed briefs on appeal. ISSUES Claimant states the following issues on-appeal: "I. Was an award of 10% P.P.D. inadequate for the left hand since it was the dominant hand of claimant? II. Did the deputy abuse his discretion in awarding costs to a losing defendant and against a prevailing claimant?" REVIEW OF THE EVIDENCE The arbitration decision adequately and accurately reflects the pertinent evidence and it will not be set forth herein. APPLICABLE LAW Iowa Code section 86.40 provides: "All costs incurred in the hearing before the commissioner shall be taxed in the discretion of the commissioner." Division of Industrial Services Rule 343-4.33 was intended to implement section 86.40 and provides: Costs taxed by the industrial commissioner or a deputy commissioner shall be (l) attendance of a KERNS v. IBP, INC. Page 2 certified shorthand reporter or presence of mechanical means at hearings and evidential depositions, (2) transcription costs when appropriate, (3) costs of service of the original notice and subpoenas, (4) witness fees and expenses as provided by Iowa Code sections 622.69 and 622.72, (5) the costs of doctors' and practitioners' deposition testimony, provided that said costs do not exceed the amounts provided by Iowa Code section 622.69 and 622.72, (6) the reasonable costs of obtaining no more than two doctors' or practitioners' reports, (7) filing fees when appropriate. Costs of service of notice and subpoenas shall be paid initially to the serving person or agency by the party utilizing the service. Expenses and fees of witnesses or of obtaining doctors' or practitioners' reports initially shall be paid to the witnesses, doctors or practitioners by the party on whose behalf the witness is called or by whom the report is requested. Witness fees shall be paid in accordance with Iowa Code section 622.74. Proof of payment of any cost shall be filed with the industrial commissioner before it is taxed. The party initially paying the expense shall be reimbursed by the party taxed with the cost. If the expense is unpaid, it shall be paid by the party taxed with the cost. Costs are to be assessed at the discretion of the deputy commissioner or industrial commissioner hearing the case unless otherwise required by the rules of civil procedure governing discovery. This rule is intended to implement Iowa Code section 86.40 and 1988 Iowa Acts, House File 2444. ANALYSIS The deputy's analysis of the evidence concerning the extent of claimant's disability to the left hand and the law is adopted. The other issue claimant presents is whether the deputy abused his discretion in assessing costs to claimant. In his brief claimant cites Iowa Code section 625.1 and Eller v. Needham, 247 Iowa 565, 73 N.W.2d 31 (1956), for the proposition that costs must be taxed against the losing party, this statute and precedent is not applicable to this agency. See section 86.40. Therefore, consideration of this issue will be limited to whether the deputy abused his discretion. In the conclusion of his brief claimant states: But also importantly, the Industrial Commissioner should re-think an apparent recent change in policy KERNS V. IBP, INC. Page 3 of the Industrial Commissioner in assessing costs to claimant, often in close cases where the claimant is apparently destitute. This counsel has been serving workers' compensation clients for over 40 years and it has only been in the last year or two that insensitive deputies have been assessing costs to obviously indigent claimant's simply because of company doctors who routinely make it difficult to establish burden of proof for damages for often obvious industrial accidents. There has been no recent change in policy of the agency regarding assessing of costs. Many times, even though a defendant wins a case, they are assessed costs. Counsel should inform their respective clients that there may be costs involved with bringing or defending a claim and then informed decisions on bringing an action and defending an action need to be made. Deputies are not insensitive to workers who are destitute but are sensitive to all parties to an action. Some cases should not be defended but settled. Some actions should not be brought. In other cases the actions of an attorney has been the factor which greatly increased the costs of the proceeding. The deputy must consider all the variables in making his determination on who should pay such costs. Review of the record reveals no evidence which suggests that the deputy abused his discretion in assessing costs to claimant. Therefore, the deputy's assessment of the costs of the arbitration hearing will be adopted. FINDINGS OF FACT 1. Claimant sustained an injury to his left hand arising out of and in the course of his employment on February 4, 1985. 2. As a result of the work injury claimant suffers a ten percent permanent impairment to his left hand. 3. Claimant's healing period ended on July 16, 1985. CONCLUSION OF LAW Claimant has established that he is entitled to permanent partial disability benefits based upon a 10 percent permanent impairment to his left hand. WHEREFORE, the decision of the deputy is affirmed. KERNS v. IBP, INC. Page 4 ORDER THEREFORE, it is ordered: That defendant pay claimant nineteen (19) weeks of permanent partial disability benefits commencing on July 17, 1985 at the rate of one hundred seventy-four and 81/100 dollars ($174.81) per week. That defendant pay accrued amounts in lump sum together with interest pursuant to Iowa Code section 85.30. That defendant be given credit for benefits previously paid to claimant. That claimant pay costs of the arbitration hearing and this appeal pursuant to Division of Industrial Services Rule 343-4.33. That defendant shall file activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 11th day of August, 1988. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ JON KERNS, Claimant, File No. 786482 VS. A R B I T R A T I 0 N IOWA BEEF PROCESSORS, INC., D E C I S I O N Employer, Self-Insured, Defendant _________________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Jon Kerns, claimant, against Iowa Beef Processors, Inc. (IBP), self-insured employer, for benefits as a result of an alleged injury on February 4, 1985. A hearing was held in Storm Lake, Iowa on February 5, 1987 and the case was submitted on that date. The record consists of the testimony of claimant, and joint exhibits 1 through 11. Neither party filed a brief. The parties stipulated that claimant's rate of weekly compensation is $174.81; that claimant was off work from February 5, 1985 through May 1, 1985, and from June 27, 1985 through July 16, 1985; that permanency benefits, if awarded, would commence on July 17, 1985; that permanent partial disability benefits have been paid through October 31, 1985; that claimant's injury is scheduled; that claimant's injury of February 4, 1985 arose out of and in the course of his employment with IBP; and that the intoxication defense of Iowa Code section 85.16 was being waived by defendant. The first report of injury in this case states that the injury occurred on February 4, 1985; however, claimant's petition alleges an injury date of February 6, 1985. The parties stipulated that claimant started missing work on February 5, 1985. ISSUES The contested issues are: 1) Whether there is a causal connection between claimant's injury of February 4, 1985 and his asserted disability; and 2) Nature and extent of disability. SUMMARY OF THE EVIDENCE Claimant testified that he is 25 years of age and graduated from high school in 1980. He started working for IBP in either 1983 or 1984 at its Storm Lake plant. He described a variety of jobs that he performed at the plant such as cutting picnics and cleaning toilets. He then described the injury that he sustained at IBP on February 4, 1985 while running a saw. Claimant is left-handed and he cut his left hand on February 4, 1985. He stated that he cut bones and tendons in his left hand and as a result was taken to a hospital in Storm Lake, and then was eventually taken to a hospital in Sioux City, Iowa. John J. Dougherty, M.D., performed surgery on claimant's left hand and he was off work for a period of time after his injury and resulting surgery. Dr. Dougherty eventually sent claimant back for "One handed duty." Claimant then showed the hearing deputy his left hand. Claimant then described some exercises he has done with his hand. Claimant described the problems he is currently having with his left hand and complained of lack of flexibility in that he cannot make a fist with his left hand. He stated that he stopped going to rehabilitation because IBP stopped paying for physical therapy or rehabilitation and he could not afford to pay for this treatment out of his own pocket. On cross-examination, claimant stated that neither Horst Blume, M.D., nor R. H. Miller, M.D., treated him. Dr. Dougherty treated claimant for his left hand injury on quite a few occasions. Dr. Dougherty has told claimant that his left hand is not going to get any better at this point. Exhibit 2, pages 3-4 (dated February 4, 1985), is a medical record from Buena Vista County Hospital, authored by W. E. Erps, M.D., that reads in part: This 23 year old IBP worked [sic] was cut on the dorsal aspect of the left hand with a meat saw. He has an avulsion type laceration across the entire dorsal aspect of the hand severing all the tendons in that region plus several of the metacarpals. X-rays are pending. The degree of injury is severe and will require repair in the operating room. Extremities: All normal except for the dorsal aspect of the left hand with the severe laceration as mentioned above. This involves all, the dorsal tendons just proximal to the MP joints and several. metacarpals are severed. Fingers are held in flexion. DIAGNOSIS: Severe [sic] avulsion saw injury of dorsal aspect of left hand with severed tendons and metacarpal trauma multiple Exhibit 3, page 6 (dated February 4, 1985), is a medical record from Marian Health Center of Sioux City, Iowa that reads in part: FINAL DIAGNOSIS (including complications) Previous severe injury to the left upper extremity with multiple tendon injuries, metacrapal fractures, destruction of the MP joint of the little finger with marked loss of motion of the MP joints of the little, long and ring fingers. KERNS V. IOWA BEEF PROCESSORS, INC. Page 3 OPERATIVE PROCEDURES: Tenolysis on the dorsum of the hand of all of the extensor tendons; partial capsulectomy of the MP joints of the long, rign, [sic] and little fingers; resection of a portion of the collateral ligaments bilaterally of these fingers; closure with a splint. Exhibit 3, page 8 (dated July 14, 1985), is authored by J.J. Dougherty, M.D., and reads in part: The above patient was admitted to the hospital on 6-27-85. He had previously had a severe injury to the dorsum of his left hand, saw cut, with severe tendon and joint injuries, metacarpal fractures and injury to the interossei. At this point in time, he seems to be getting along better; however, we just can't get any significant motion out of the MP joints. Now he does not have much of a joint at the 5th finger. The thought had been considered about putting a prosthesis in his fifth finger, but I did not really feel this was indicated at this point in time. He was taken to surgery and a tenolysis was carried out of the extensor tendons and a capsulotomy of the long, ring, and little fingers with a resection of a portion of the collateral ligaments bilaterally of these fingers. FINAL DIAGNOSIS: Previous severe injury to the upper left extremity with multiple tendon injuries, metacarpal fractures, destruction of the MP joint of the little finger with marked loss of motion of the MP joints of little, long and ring fingers. Prognosis remains guarded here. It is still conceivable he might be a candidate for a prosthesis of the MP joint of the little finger, but did not as I mentioned above feel that it was indicated at this point in time. Exhibit 3, page 10, reads in part regarding the surgery of June 28, 1985: PREOPERATIVE DIAGNOSIS: Previous severe mutilative type of injury to the left upper extremity with an open saw cut, division of all tendons extending into, and loss of portion, of the MP joint of the little finger; loss of some of the interosseous muscles and tendons, now with marked KERNS V. IOWA BEEF PROCESSORS, INC. Page 4 extension contracture of the MP joints of the long, ring, and little fingers, and some of the index finger. POSTOPERATIVE DIAGNOSIS: Same NAME OF OPERATION: Tenolysis on the dorsum of the hand of all of the extensor tendons; partial capsulectomy of the MP joints of the long, ring, and little fingers; resection of a portion of the collateral ligaments bilaterally of these fingers; closure with a splint. Exhibit 3, page 89 (dated February 4, 1985), is an x-ray report authored by T. A. Ware, M.D., that reads: Examination of the left hand taken portable demonstrates a fracture of the midshaft of the 3rd metacarpal, a fracture of the distal shaft of the 4th metacarpal, and a fracture of the proximal portion of the proximal phalanx of the little finger with a separated fragment measuring from 6 mm. Re-examination of the left hand demonstrates internal fixation through the 3rd & 4th metacarpals and through the proximal portion of the proximal phalanx of the little finger with segments maintained in good position and alignment. Exhibit 4, page 1 (dated February 14, 1986), is authored by Dr. Dougherty and reads in part: With regard to permanent partial disability, I think his main disability is in reference to his MP joints. I have felt he's probably reached his maximum improvement and that probably he's entitled to 8% of his hand or possibly slightly more, maybe 10%. Exhibit 5, page 1 (dated April 2, 1986), is authored by R. H. Miller, M.D., and reads in part: According to the AMA Guide for permanent impairment of the extremities, limitation of joint motion at the index finger gives him 1.8% disability of the finger and 5% of the hand. The middle finger gives him 18% disability of the finger, 4% of the entire hand. Limitation of motion at the ring finger gives him 24% disability for the finger and 3% for the entire hand and for the fifth finger, limitation gives him 37% disability for the finger and 2% for the hand. This adds up to 14% disability of the hand on his limitation of motion only, does not take into consideration the loss of sensation in the ulnar nerve distribution. In my opinion, this translates then into between 16 and KERNS V. IOWA BEEF PROCESSORS, INC. Page 5 18% disability of his left upper extremity, again important to point out this is his dominant extremity. Exhibit 9 is the deposition of claimant taken on November 8, 1985. On pages 8-9, he stated that he has had carpal tunnel surgery on his left hand or wrist and received workers' compensation benefits as a result. Also, the following exchange is set out on page 35: Q. You apparently feel that you can use your hand in the types of work you've been looking for, would that be true? A. I hope so. Exhibit 10 is the deposition of Dr. Miller taken on November 12, 1986. On page 5, he gives claimant a five percent permanent partial impairment rating for his left hand. On page 9, there is a further rating discussion and on page 10 Dr. Miller corrected a percentage figure. Exhibit 11 is the deposition of Dr. Dougherty taken on December 10, 1986. On page 5, Dr. Dougherty stated that he saw claimant on April 11, 1984 because of a carpal tunnel problem. On page 8, he restated his 8-10% rating for claimant's left hand, but admitted on page 10 that he did not take claimant's left-handedness into account. On page 15, Dr. Dougherty stated that Dr. Blume arrived at a ten percent rating for claimant's left hand. APPLICABLE LAW AND ANALYSIS The causal connection issue overlaps with the nature and extent issue in this scheduled member case. The incident of February 4, 1985 did cause some permanent partial impairment. The questions that need agency resolution are: 1) what member or members were affected by the incident of February 4, 1985, and 2) what is the degree of impairment; that is, a percentage of impairment for the affected member or members must be determined. An injury is the producing cause; the disability, however, is the result, and it is the result which is compensated. Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). The disability in this case is limited to claimant's left hand. See William E. Jarrett, Jr. v. Churchill Truck Lines, Inc., (Appeal Decision, No. 737598 filed on December 22, 1986) (The facts in Jarrett are somewhat similar to the facts in this case.) I am persuaded that claimant has a ten percent permanent partial impairment or disability to his left hand entitling him to 19 weeks of permanent partial disability commencing on July 17, 1985. See Iowa Code section 85.34(2)(1). FINDINGS OF FACT 1. Claimant injured his left hand with a saw on February 4, KERNS V. IOWA BEEF PROCESSORS, INC. Page 6 1985 while working for IBP. 2. Claimant's work-related injury caused impairment or disability to his left hand only. 3. The degree of permanent partial impairment to his left hand is ten percent. 4. Claimant's stipulated rate is $174.81. CONCLUSIONS OF LAW 1. Claimant established entitlement to nineteen (19) weeks of permanent partial disability benefits commencing on July 17, 1985 and defendant is entitled to credit for benefits already paid. ORDER IT IS THEREFORE ORDERED: That defendant pay the weekly disability benefits described above. That defendant pay accrued benefits in a lump sum and pay interest pursuant to section 85.30, The Code. That defendant be given credit for benefits already paid to claimant. That claimant pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33, formerly Industrial Commissioner Rule 500-4.33. That defendant shall file claim activity reports, pursuant to Industrial Services Rule 343-3.1(2), formerly Industrial Commissioner Rule 500-3.1(2), as requested by the agency. Signed and filed this 26th day of March, 1987. T.J. McSWEENEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Harry Smith Attorney at Law P.O. Box 1194 Sioux City, Iowa 51102 KERNS V. IOWA BEEF PROCESSORS, INC. Page 7 Mr. Barry Moranville Mr. Harry Dahl Attorneys at Law 974 73rd St, Suite 16 Des Moines, Iowa 50312 1402.40; 1803 Filed 3-26-87 T. J. McSweeney BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ JON KERNS, Claimant, File No. 786482 VS. A R B I T R A T I 0 N IOWA BEEF PROCESSORS, INC., D E C I S I 0 N Employer, Self-Insured, Defendant. _________________________________________________________________ 1402.40; 1803 Held in arbitration that claimant sustained scheduled loss to his left hand, not his left arm. Costs were charged to claimant. The only "fighting issue" in the case was not a close one. BEFORE THE IOWA INDUSTRIAL COMMISSIONER MARK STEFFES, Claimant, File No.786705 VS. R E V I E W DUBUQUE PACKING CO., R E 0 P E N I N G Employer, D E C I S I 0 N and SENTRY INSURANCE, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding styled in review-reopening brought by claimant, Mark Steffes, against his employer, Dubuque Packing Company, and its insurance carrier, Sentry Insurance Company, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained on January 28, 1985. This matter came on for hearing before.the undersigned deputy industrial commissioner in Fort Dodge, Iowa on January 20, 1989. A first report of injury was filed on February 8, 1985. At hearing, the parties stipulated that claimant had been paid six weeks of nondesignated benefits at the rate of $240.17. Claimant did not comply with the Hearing Assignment Order filed October 20, 1988 in that claimant did not exchange witness and exhibit lists as ordered therein. Claimant was therefore barred from presenting documentary evidence or testimonial evidence other than his own. Defendants presented neither documentary or testimonial evidence. ISSUES Pursuant to the prehearing order which the parties completed at hearing, the parties stipulated that claimant sustained an injury on January 28, 1985, which injury.arose out of and in the course of his employment. The parties further stipulated that claimant was single and entitled to one exemption. The parties reported the following issues remained for resolution: 1. Whether a causal relationship exists between claimant's injury and his claimed disability; 2. Whether claimant is entitled to benefits and the nature and extent of any benefit entitlement; STEFFES V. DUBUQUE PACKING CO. Page 2 3. Whether claimant is entitled to payment of certain medical costs under section 85.27 as causally related to his injury, authorized by the employer and as fair and reasonable costs; and, 4. Claimant's rate of weekly compensation. REVIEW OF THE EVIDENCE Claimant's petition alleges that claimant injured his back while lifting beef and that such resulted in permanent partial disability to the body as a whole. The petition alleges that claimant has expenses under section 85.27 with Drs. Flood, Saul, Paulus, Woodward and Hansma. At hearing, claimant testified that he was injured while lugging beef on January 28, 1985 and saw Dr. Flood until May, 1985 when he was diagnosed. Claimant expressed his belief that he has a Grade I spondylosis.. He stated he had had no problem with his back prior to the incident and had missed no work before the incident. Claimant stated that he has had back pain and discomfort since the injury. He expressed his belief that he needs to return to the doctors to be rechecked. Claimant characterized his life as a "living mess" since the injury as a result of actions of this agency, of his employer, of his former counsel, and of defendants' counsel. On cross-examination, claimant agreed that he,had injured his shoulder in a fight in a bar in March, 1985 and that he had subsequently sought medical treatment. Claimant agreed that he had been arrested for assault and subsequently charged with driving without a license on December 23, 1986. Claimant was arrested on September 23, 1985 for driving while his license was suspended. Claimant agreed that he lost his license about two years ago and then got it back last summer and subsequently lost it approximately two weeks ago. He stated that by "lost" he meant that he had lost it in his billfold. Claimant agreed that the fact that he is on a "tightrope" as regards his license would affect his ability to get any job. Claimant agreed that he has been terminated from two packing houses, but stated that he was twice terminated because the plant had shut down and once terminated because he had been late for work. Claimant denied that he had a history of violence. He agreed that he had been involuntarily terminated from the Dubuque Packing Plant following an argument with his foreman and that he was subsequently denied unemployment compensation benefits. Claimant's union did not grieve his involuntary termination. Claimant has completed 17 hours of college credit. He agreed that his family has a trash hauling business. He denied that he had worked in the trash hauling business, but stated that he "has helped his dad out in little ways" in the past three years since his father has provided him with a place to live and spending money, and has paid his utilities. STEFFES V. DUBUQUE PACKING CO. Page 3 APPLICABLE LAW AND ANALYSIS An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(l). An injury is the producing cause;.the disability, however, is the result, and it is the result which is compensated. Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). The claimant has the burden of proving by a preponderance of the evidence that the injury of January 28, 1985 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in. whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co. , 261 Iowa 352, 154 N.W.2d 128 (1967). Claimant has not shown that his stipulated injury is causally connected to any alleged disability. As it is the disability which is the result, it is the disability which is compensated. Therefore, claimant has not shown that he is entitled to any additional compensation on account of his alleged disability. Likewise, claimant has not produced any medical costs which he states relate to his alleged injury and has not shown that any medical costs, if any there be, are causally connected to the stipulated injury and therefore are the employer's liability under section 85.27. Claimant also produced no evidence relative to his claim that the rate of weekly compensation is disputed. As no evidence was produced on that matter, it cannot be decided in claimant's favor. FINDINGS OF FACT THEREFORE, IT IS FOUND: Claimant sustained an injury arising out of and in the STEFFES V. DUBUQUE PACKING CO. Page 4 course of his employment on January 28, 1985 while lugging beef for Dubuque Packing Company. No medical evidence in the record supports claimant's claim that his injury of January 28, 1985 produced a disability to his back. No evidence in the record supports claimant's claim that he has medical costs related to his work injury and any work-related disabling back condition. No evidence in the record supports claimant's claim that the rate of weekly compensation at which defendants paid six weeks of benefits is in error. The evidence in the record does not support claimant's claim that he is entitled to any additional weekly benefits on account of his work injury. CONCLUSIONS.OF LAW THEREFORE, IT IS CONCLUDED: Claimant has not established a causal relationship between his injury and his claimed disability. Claimant has not established entitlement to any additional temporary total disability or any permanent partial disability benefits. Claimant has not established that claimant is entitled to payment of pertain medical costs under section 85.27. Claimant has not established that the rate of weekly compensation at which defendants paid six weeks of benefits is in error. ORDER THEREFORE, IT IS ORDERED: Claimant take nothing further from this proceeding. Claimant pay costs of this proceeding as provided in Division of Industrial Services Rule 343-4.33. Signed and filed this 16th day of March, 1989. HELENJEAN WALLESER DEPUTY,INDUSTRIAL COMMISSIONER STEFFES V. DUBUQUE PACKING CO. Page 5 Copies To: Mr. Mark Steffes 203 North West Street Carroll, Iowa 51401 REGULAR AND CERTIFIED MAIL Mr. Harry W. Dahl Attorney at Law 974 73rd Street, Suite 16 Des Moines, Iowa 50312 1402 Filed March 16, 1989 HELENJEAN WALLESER BEFORE THE IOWA INDUSTRIAL COMMISSIONER MARK STEFFES, Claimant, File No. 786705 VS. R E V I E W DUBUQUE PACKING CO., R E 0 P E N I N G Employer, D E C I S I 0 N and SENTRY INSURANCE, Insurance Carrier, Defendants. 1402 Claimant, who did not submit witness and exhibits lists as required under the hearing assignment order, was barred from presenting evidence other than his own testimony. Claimant failed to meet his burden of proof on any issue.