BEFORE THE IOWA INDUSTRIAL COMMISSIONER DARYLD LEWIN, Claimant, vs. File No. 786764 FARMSTEAD FOODS, A R B I T R A T I 0 N Employer, D E C I S I 0 N and F I L E D SENTRY INSURANCE, AUG 10 1989 Insurance Carrier, INDUSTRIAL SERVICES Defendants. INTRODUCTION This is a proceeding in arbitration brought by Daryld Lewin against Farmstead Foods, his former employer, and Sentry Insurance, the employer's insurance carrier. The case was heard and fully submitted at Cedar Rapids, Iowa on January 5, 1989. The record in the proceeding consists of testimony from Daryld Lewin, Lynn Lewin, Randy Crouse, and Roger Popham as well as claimant's exhibits 1 through 18 and defendants' exhibits A through D. ISSUES The issues presented by the parties for determination are: Whether claimant sustained an injury on or about January 14, 1985 which arose out of and in the course of employment with the employer; whether the alleged injury is a proximate cause of any temporary or permanent disability; determination of claimant's entitlement to compensation for temporary total disability or healing period; and, determination of claimant's entitlement to compensation for permanent partial disability. It was stipulated that all weekly compensation due prior to June 30, 1985 had been paid. A dispute exists with regard to whether any permanent partial disability should be compensated as a disability of a scheduled member or as a disability to the body as a whole. SUMMARY OF EVIDENCE The following is a summary of evidence presented in this case. Of all the evidence received at the hearing, only that considered most pertinent to this decision is discussed. 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. Daryld.Lewin is a 38-year-old married man who dropped out of high school and joined the Marines. He subsequently obtained a GED. In the Marines, he was trained in communications. Following discharge from the service, he worked as a lineman for the Rock Island Railroad for approximately three months. After a short job with a high line company, he commenced employment with Wilson Foods in Cedar Rapids in November, 1970. Claimant stated that he had performed labor throughout the plant, but worked primarily in the bacon room until 1977 or 1978 when he began boning hams. Claimant stated that the ham boning process changed while he was employed. Claimant stated that with chain boning, a worker performed only one part of the boning process, but performed it at a very rapid rate. Claimant stated that he simply was unable to perform at the rate which was required. Claimant, who is left-handed, testified.that he began to have problems with his shoulder, neck and upper back in late 1983 or early 1984. He described it as a deterioration of the shoulder which sometimes provided a feeling similar to an electrical shock. He sought treatment from the plant nurse and therapists for a time, but his symptoms worsened. Claimant stated that the pain is in his upper shoulder, tricep, bicep and sometimes in the upper mid-back. He stated that it originates under his shoulder blade and sometimes extends into his neck. Claimant stated that the pain was still present even though he had been out of the plant since 1985. Claimant stated that holding or doing anything above waist level causes pain. He stated that as long as he keeps his arms below the waist, he feels okay. Claimant testified that he has reduced his softball and other activities due to the discomfort that accompanies throwing overhanded. On or about July 6, 1985, claimant participated in a small town celebration and was photographed throwing an empty "pony" beer keg weighing approximately 15 pounds. When claimant attempted to return to work on July 10, 1985, consistent with his physician's release, he was immediately suspended for making a false workers' compensation claim (exhibit C). Claimant was initially awarded unemployment compensation benefits, but the appeal board reversed the award on the ground that claimant had not offered to return to work with the employer, an obviously incorrect finding. Following his employment at Farmstead Foods, claimant unsuccessfully sought work for a period of time. He performed some odd jobs, delivered cars and eventually obtained construction jobs. He was injured on one of his construction jobs, but that injury did not affect his shoulder. Claimant testified that, with Farmstead Foods, he was paid approximately $9.00 per hour and had a good fringe benefit package. He stated that the best pay he has received since losing his Farmstead Foods employment is approximately $6.50 per hour with no fringe benefits. In early 1985, claimant began treating with W. John Robb, M.D., a Cedar Rapids orthopaedic surgeon. Dr. Robb diagnosed claimant's condition as recurrent tendinitis, rotator cuff tendons, left shoulder. The doctor recommended that claimant transfer to another type of job that does not place the intensive demands on the rotator cuff of the shoulder, namely, repetitive elevation of the arm above 90 degrees with stress (exhibit 2, pages 1 and 2). On February 13, 1985, Dr. Robb stated that, in his opinion, the tendinitis was due to claimant's work activities and that he should restrict his activities to avoid abduction beyond 70-80 degrees (exhibit 2, page 3). On April 12, 1985, Dr. Robb indicated that claimant did not appear to have any permanent damage to the shoulder, but that the condition would remain painful as long as claimant performs the type of work which he was then performing (exhibit 2, page 5). Claimant as again taken off work commencing June 10, 1985. Dr. Robb expressed concern that continuing to work might result in permanent damage to claimant's rotator cuff (exhibit 2, page 7). On June 26, 1985, Dr. Robb again released claimant to return to work. In doing so, he stated: My taking him off work on the previous visit and putting the shoulder at rest and in a sling from his point of view has not resolved the problem. Therefore, I think he should consider another trial of work as I do not feel it will be detrimental to his shoulder even though it may produce some of the soreness he has had in the past. (Exhibit 2, page 8) When Dr. Robb reexamined claimant on November 26, 1986, he again diagnosed chronic tendinitis of the long head of the biceps and rotator cuff to a lesser degree, left shoulder. He felt that claimant would be limited in all types of work which require maintained abduction in excess of 90 degrees or repetitive motions which require lifting above 90 degrees. He stated that claimant would have a ten percent permanent impairment of the left upper extremity as a result of the tendinitis and limitations it imposes (exhibit 2, pages 12 and 13). Dr. Robb confirmed those same opinions in a report dated September 28, 1988 (exhibit 2, pages 14-16). When claimant did not improve during the course of treatment, Dr. Robb referred claimant to the University of Iowa Hospitals and Clinics. The diagnosis was mild rotator cuff tendonitis of the left shoulder and also mild lateral epicondylitis of the left arm (exhibit 5). Claimant was evaluated by John R. Walker, M.D., a Waterloo, Iowa orthopaedic surgeon. In his report dated February 3, 1988, Dr. Walker stated: OPINION: Throughout this man's history is [sic] is quite obvious that he has been suffering from an over-use and work stress syndrome involving the left, upper extremity, particularly the shoulder, the shoulder girdle and to some extent the left elbow. I further believe that the patient probably has suffered some stressful chronic sprain of the cervical spine associated with his work. (Exhibit 6, page 5) When deposed on December 20, 1988, Dr. Walker again confirmed that claimant had overuse syndrome of the left upper extremity which was a result of the work which claimant performed at Wilson and Farmstead Foods (exhibit 12, pages 25-28). Dr. Walker stated that the beer keg throwing incident played no part in producing or aggravating claimant's disability and that the activity was different from the injurious work activities in that the throwing was performing underhanded and was not repetitive (exhibit 12, pages 28 and 29). Dr. Walker felt that claimant had a 12 percent permanent impairment of the body as a whole when the condition of claimant's shoulder, cervical spine, elbow and chest wall complaints were considered. He did not break that rating down into the various components (exhibit 6, page 5; exhibit 12, pages 26 and 27). Dr. Walker also recommended that claimant avoid repetitive work and avoid work performed above shoulder level (exhibit 12, pages 29 and 30). Claimant's spouse, Lynn Lewin, confirmed that claimant's shoulder became acute.in January, 1985. She stated that the, condition had come on during the period of time when he was employed at Farmstead Foods. Claimant's spouse also stated that activities such as driving a car with the left arm elevated to the window ledge and throwing overhand cause pain. She confirmed that any activity performed overhead causes pain. Randy Crouse was claimant's ham boning supervisor during 1979 through 1987. Crouse stated that in late 1983, the first pace boning line was installed and that each person did a part of each ham rather than an entire ham. Until early 1984, pace positions and stationary positions existed concurrently. Crouse stated that the line,speed is now 305 hams per hour and the, work standard is 275 hams per hour. Crouse testified that presently production is 15.7 hams per person per hour, an amount which is less than what production had been prior to installing the pace line system. Crouse confirmed that, under the old stationary boning system, workers could work at their own pace, rest and take breaks as they chose, so long as they met the standard for production. He stated that under the new system, a relief person is needed before an employee can walk away from the line. APPLICABLE LAW AND ANALYSIS Claimant has the burden of proving by a preponderance of the evidence that he received an injury on January 14, 1985 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Claimant testified to the onset of symptoms consistent with the ham boning activities. Both Drs. Robb and Walker related the symptoms to claimant's work as a ham boner. The diagnosis reached by each of the doctors who have evaluated claimant is similar. It is therefore determined that claimant sustained an injury in the nature of chronic tendonitis of his left shoulder which arose out of and in the course of his employment with Farmstead Foods. The injury is determined to have been one which resulted from cumulative trauma. Since the first sustained identified period of disability commenced January 28, 1985, that date would be the correct date of injury under the cumulative trauma rule rather than January 14, 1985, the date claimant reported it to the employer. However, since January 14, 1985 has been used consistently by both parties throughout this case, it will be used as the injury date for the decision. Claimant seeks compensation for healing period running until December of 1986 when Dr. Robb assigned a ten percent permanent impairment rating. While the imposition of an impairment rating is often a good indicator of the time when the healing period has ended, it is not the exclusive method of determination. Thomas v. William Knudson & Son, Inc., 349 N.W.2d 124 (Iowa App. 1984); Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa App. 1981). In this case, claimant was off work during much of the month of June, 1985. While his condition improved somewhat, it did not completely resolve. Claimant worked on July 1 and 2, 1985, but was again taken off work by Dr. Turner in order to conduct an arthrogram. Following the arthrogram, Dr. Turner released claimant to return to work on July 10, 1985. The arthrogram was interpreted as being normal. Dr. Turner did not impose any specific restrictions upon claimant's activities (exhibit A). Claimant himself testified that his condition had changed little since July, 1985. It is therefore determined that the healing period under Iowa Code section 85.38(1) terminated on July 10, 1985 consistent with the release from Dr. Turner. There is no showing of any subsequent substantial recuperation or active medical treatment of claimant's condition which would extend the healing period. There is a dispute in this case regarding whether any permanent disability which exists is limited to claimant's left or whether it extends into the body as a whole. Claimant has not established by a preponderance of the evidence that any problem exists in his cervical spine, chest wall or elbow, which was proximately caused by his employment at Farmstead Foods. The primary diagnosis which was made by the physicians, however, is tendonitis in the left rotator cuff and shoulder. Those structures are not part of the arm. Therefore, the disability extends into the body as a whole and should be evaluated industrially. Lauhoff Grain Co. v. McIntosh, 395 N.W.2d 834 (Iowa 1986). When the medical profession uses the term "upper extremity" the definition commonly given includes the arm, shoulder and entire shoulder girdle. It is not limited to or synonymous with the arm. As claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 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. The assessment of claimant's restrictions and limitations as made by Drs. Robb and Walker are not greatly inconsistent. Claimant has sustained an overuse syndrome type of injury. It is the type of condition which gives little trouble so long as the aggravating activities are not performed. In this case, the aggravating activities are work at or above shoulder level, particularly repetitive work. Dr. Robb's ten percent impairment rating of the extremity is roughly equivalent to a five percent impairment of the whole person. Dr. Walker's twelve percent impairment rating of the whole person includes problems other than claimant's left shoulder. Claimant's formal education and work experience is such that it would require major retraining for him to enter into sedentary employment. All of his past employments have involved a substantial degree of physical labor and physical agility. Claimant has experienced approximately a 30 percent reduction in his actual earnings when the best paying job he has held since leaving Farmstead is compared to his wage level at Farmstead. He has lost the ability to perform many occupations. When all the material factors of industrial disability are considered, it is determined that Daryld Lewin sustained a 30 percent loss of earning capacity as a result of the chronic tendonitis injury affecting his left shoulder which arose out of and in the course of his employment with Farmstead Foods. FINDINGS OF FACT 1. Claimant is a left-handed male born January 14, 1950. He was employed from October 10, 1970 until July 1, 1984 by Wilson Foods Corporation in Cedar Rapids and after July 1, 1984 by Farmstead Foods. 2. At Farmstead Foods, claimant worked in the ham boning department. 3. Claimant went off work and received workers' compensation disability benefits from January 28, 1985 through March 18, 1985, seven and one-sevenths weeks, for an alleged injury on January 14, 1985. He also received three weeks from June 10, 1985 to July 2, 1985. Benefits were paid at $240.10 per week, the rate now agreed upon by the parties. 4. Dr. Robb reported on February 13, 1985 that the diagnosis was tendonitis of the rotator cuff and it was due to the mechanism in which the patient's shoulder was employed at work. He recommended that claimant avoid activities performed at more than 70-80 degrees of abduction. 5. Claimant's description of his symptoms and their onset is accepted as being correct. 6. Dr. Robb examined claimant on June 25, 1985, released him to work July 1, 1985 and listed no restrictions. Dr. Robb subsequently assigned a permanent impairment rating of ten percent of the left upper extremity. 7. Claimant returned to work with the employer and worked on July 1 and 2, 1985. 8. Dr. Turner examined claimant on July 3, 1985 for a "rotator cuff" and recommended no work until after the next appointment July 10. 9. An arthrogram performed July 5, 1985 was reported as negative (normal). 10. On July 6, 1985, claimant went to the Greeley Fun Days and three times threw an 8-gallon empty pony keg, weighing approximately 15 pounds, once 36 feet, 5 inches. Claimant was photographed and the Cedar Rapids Gazette published his picture on July 7, 1985. The throwing was performed underhanded. 11. Dr. Turner examined claimant on July 10, 1985 and recommended he resume work with no specific restrictions. 12. After being released by Dr. Turner, claimant went back to work on July 10, 1985 and was willing to work. On July 10 and 11, 1985, company and union officials met with the claimant. He was suspended and advised that it was the company's position claimant may have falsified his workers' compensation claim and that the company was going to investigate. 13. Claimant filed a claim for unemployment compensation benefits which the appeal board denied because the employer established misconduct since claimant was able to work and should have returned to the employer to offer his services, despite the fact that claimant did return and offer his services as soon as he was released by the company:physician. 14. After being suspended by Farmstead Foods for misconduct, claimant worked as a mechanic in November of 1985, as a carpenter, for Grimshaw Company in July, 1986, for Guetzko Construction in 1987, for Edgewood Corporation 8-12 weeks in the spring of 1988 and again for Guetzko in 1988. 15. Claimant at first testified at his deposition that the first place he worked after Farmstead Foods was Grimshaw Construction around February, 1987 as a laborer and that he had no physical restrictions from a doctor. Actually, he had worked in 1985 and 1986. 16. Claimant cannot remember whether he told Job Service he had any physical limitations or that he signed a paper he could physically do work. 17. Claimant never had undergone surgery for his left upper extremity or shoulder and none is anticipated. 18. Claimant has experience as a security guard, mechanic, carpenter, packinghouse worker, laborer and in communications. 19. Physicians at University Hospitals examined claimant on March 4, 1986 and the diagnosis was mild rotator cuff tendonitis left shoulder and mild-lateral epicondylitis left arm. Tests performed revealed normal findings and there,was nothing in the report about a disability rating. 20. On February 3, 1988, Dr. Walker examined claimant at the request of his attorney. The doctor rendered a report and gave a deposition, claimant's exhibits 6 and 12. He wants claimant to go out and do a good day's work, but not to put excessive stress on his shoulder and neck and arm region, left arm. Dr. Walker agreed that if the history given to him was not correct, the basis for his opinions about the cause of the conditions he diagnosed means there is no basis for his opinion. In his opinion, claimant had permanent partial impairment of the body as a whole amounting to 12 percent, including rotator cuff impingement, tendonitis, lateral epicondylitis (tennis elbow), chronic sprain and possibly minimal disc disruption affecting the left upper extremity with some component of radiculitis and lateral chest wall problem, probably muscle strain. So far as the neck, claimant basically had excellent or good range of motion. He had never examined the patient before injury and it is difficult to say he had a loss of motion. Claimant had only subjective complaints of pain moving his neck or arm, but nothing that could be actually discovered on x-ray or exam. Neurological tests were normal. Claimant had full range of motion of his shoulders. His lateral epicondyle was tender and his grips were unequal but not weak. 21. Dr. Walker formed the impression that claimant had not worked since he left the packing plant. 22. Claimant had six complaints when he consulted Dr. Walker; stiff neck was not borne out by physical examination; shoulder pain was only a symptom; slopped left shoulder was not important because everyone has a slopped left shoulder; grip and pinch on claimant's major arm (left) was weaker but some people on their major arm do have a weaker grip; left elbow ache was subjective; and complaints with weather changes were subjective and not something the doctor could observe. 23. Claimant was disabled and under appropriate medical treatment from July 3, 1985 through July 10, 1985. During that period of time, he was medically incapable of performing work in employment substantially similar to that he had performed at time of injury. 24. Claimant has experienced a 30 percent loss of his earning capacity as a result of the cumulative trauma type of injury affecting his left shoulder. 25. Claimant sustained an injury in the nature of chronic tendonitis affecting his left shoulder which arose out of and in the course of his employment with Farmstead Foods. 26. The injury resulted from the cumulative trauma process of ham boning which resulted in an overuse syndrome type of condition affecting claimant's left shoulder. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. Claimant sustained injury which arose out of and in the course of his employment with Farmstead Foods on or about January 14, 1985. 3. The injury is a proximate cause of claimant's inability to work during the period of July 3 through July 10, 1985 for which claimant is entitled to recover one and one-sevenths weeks of healing period compensation. 4. The injury is a proximate cause of a permanent disabling condition in claimant's left shoulder which is not limited to his arm but rather extends into the body as a whole so that the disability is to be evaluated industrially. 5. Claimant has a 30 percent permanent partial disability, when the same is evaluated industrially, which was proximately caused by the injury of January 14, 1985 which entitles him to receive 150 weeks of compensation payable commencing July 11, 1985. ORDER IT IS THEREFORE ORDERED that defendants pay claimant one and one-sevenths (1 1/7) weeks of compensation for healing period at the stipulated rate of two hundred forty and 10/100. dollars ($240.10) per week payable commencing July 3, 1985. IT IS FURTHER ORDERED that defendants pay claimant.one hundred fifty (150) weeks of compensation for permanent partial disability at the stipulated rate of two hundred forty and 10/100 dollars ($240.10) per week payable commencing July 11, 1985. IT IS FURTHER ORDERED that defendants pay interest to claimant pursuant to Iowa Code section 85.30 upon all unpaid amounts computed from the date the same became payable to the date of actual payment. IT IS FURTHER ORDERED that the costs of this proceeding are assessed against defendants 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 Industrial Services Rule 343-3.1. Signed and filed this 10th day of August, 1989. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Mark Liabo Attorney at Law P.O. Box 998 Cedar Rapids, Iowa 52406 Mr. Harry W. Dahl Attorney at Law 974 73rd Street, Suite 16 Des Moines, Iowa 50312 51108, 51402.20, 51402.30 51402.40, 51802, 51803 51803.1, 52209 Filed August 10, 1989 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER DARYLD LEWIN, Claimant, vs. File No. 786764 FARMSTEAD FOODS, A R B I T R A T I 0 N Employer, D E C I S I 0 N and SENTRY INSURANCE, Insurance Carrier, Defendants. 51108, 51402.20, 51402.30, 51402.40, 51802, 51803, 51803.1, 52209 Claimant developed chronic tendonitis of his left shoulder as a result of activities which he performed while boning hams for approximately seven years. Claimant's healing period was terminated with his last unrestricted release to return to work. Claimant had a ten percent functional impairment of the upper extremity, but had been advised to avoid work above shoulder level. Claimant awarded 30 percent permanent partial disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JUDY L. MITCHELL, Claimant, File No. 786976 VS. HERSCHEL MANUFACTURING CORPORATION, A R B I T R A T I 0 N Employer, and D E C I S I 0 N TRAVELERS INSURANCE, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Judy L. Mitchell, claimant, against Herschel Manufacturing Corporation, employer, and the Travelers Insurance Company, the employer's insurance carrier. Claimant alleges that she has developed tinnitus as a result of noise exposure in her employment and seeks compensation for permanent partial disability. Claimant presents her claim under Chapter 85 of the Code. The employer's position is that Chapter 85B provides the exclusive remedy for claimant's condition since the claim urges cumulative, rather than acute, trauma. The defense asserts that the claim is barred under the provisions of Code sections 85.23 and 85.26. It was stipulated that, in the event of an award, the rate of compensation is $163.28 per week. Claimant has lost no time from work as a result of the condition and makes no claim for healing period or for temporary total disability. The case was heard at Des Moines, Iowa on February 20, 1987 and was fully submitted upon conclusion of the hearing. The record in the proceeding consists of testimony from Judy L. Mitchell, Jack Kenney, Earl Davis, Robert R. Updegraff, M.D., Joe Poundstone, Joyce Brennan and John L. Dugan, Jr. The record also contains claimant's exhibits A through E and defendants' exhibits 1 through 7. ISSUES The issues presented by the parties are whether claimant sustained an injury which arose out of and in the course of her employment; whether a causal connection exists between the tinnitus and any employment noise exposure; and, determination of the degree of permanent partial disability that is related to any MITCHELL V. HERSCHEL MANUFACTURING CORPORATION Page 2 compensable injury. The issues raised by the defense are whether or not the claim is barred by the provision of Code sections 85.23 and 85.26 and whether Chapter 85B is the exclusive remedy. SUMMARY OF EVIDENCE The following is a brief summary of pertinent evidence. All evidence received at the hearing was considered when deciding the case. Judy L. Mitchell is a 39-year-old lady who complains of tinnitus which she first noticed in 1982. She has been employed at Herschel Manufacturing Corporation since 1975 and has been employed there continuously with some interruptions for medical problems and layoffs. Claimant testified that the fact of her hearing difficulty was established in 1983 by tests which showed a hearing loss and recommended use of hearing protection. She testified that she had had prior hearing tests, but that the results were not disclosed to her. Claimant testified that the first three years of her employment were in a parts alignment position and that she has worked primarily in the heat treatment area since 1978. Claimant described the heat treatment machine as a process which hardens metal and stated that the machine sometimes arcs out and causes a loud explosion noise. She stated that the machine is water cooled and has a noisy pump which is driven by an electric motor. Claimant testified that in 1982 the cooling tower and motor was moved from a location outside the building into the building near her work station. She stated that the motor had a loud squealing sound that continued until a period of layoff in 1985 when the factory shut down. She stated that, after the layoff, the motor no longer squealed. Claimant testified that, in the past, she has hunted and that she also runs a lawn mower and garden tiller at her home, but that she has used hearing protection whenever engaging in those activities. She stated that she has had difficulty obtaining hearing protection at the Herschel Manufacturing Corporation, particularly in the earlier years of her employment, but that she now regularly uses hearing protection even though the tinnitus is sometimes exacerbated by the ear plugs. Claimant described her current symptoms as a constant ringing and buzzing. She stated that she hears noise from the pump motor all the time. She stated that it is stressful to her, causes her to lose sleep and causes her to be irritable. She stated that it affects her job only in the sense that it causes her to miss approximately one day of work each month. Claimant testified that the problem bothers her most when she is in a quiet area, and that she often obtains relief by having background noise such as a radio playing softly. Jack Kenney testified that he has been employed at Herschel Manufacturing Corporation and that he lives with claimant. Kenney corroborated claimant's testimony that the pump motor made a loud noise and that, when the heat treatment machine arcs out, it makes a loud "bang" like a gun or a big firecracker. Kenney confirmed that claimant receives relief from her problem by MITCHELL V. HERSCHEL MANUFACTURING CORPORATION Page 3 playing a radio at a low volume. Earl Davis, another Herschel Manufacturing Corporation employee, also complained of a constant buzzing in his ears and hearing problems. Davis confirmed that the heat treatment machine made a loud humming, whine type of noise and "bangs" when it arcs out. Davis stated that the noisy motor started in 1979 and that it was repaired after he left the heat treatment department in 1984 or 1985. Joe Poundstone was claimant's supervisor during much of 1982 through 1984 when she worked in the heat treatment department. He stated that she never complained of noise from the motor and that he never noticed the motor to be particularly noisy. Poundstone testified that in August, 1983 the cooling tower was rebuilt and that it was moved inside the building. He felt that the change had not affected the noise level. He testified that no change was made in the pump motor or cooling equipment in 1985. Poundstone stated that the arcing is like what occurs with an electric arc welder and he did not consider it to be extremely loud or like an explosion. He described it as being more like a crackling noise. Poundstone testified that claimant had never complained of ringing in her ears and had never requested hearing tests. He stated that the first he knew of her complaint of tinnitus being caused by her employment was in approximately 1984. Poundstone stated that he believes claimant does wear hearing protection when in the plant and that a box of ear plugs is available in the office for use. Poundstone stated that claimant has demonstrated no performance problems in her job due to any hearing problem. Joyce Brennan has also supervised claimant in the heat treatment department. Brennan stated that claimant never complained about motor noise and could not recall a time when the motor seemed to be unusually noisy. Brennan stated that claimant never complained of ringing in her ears due to her work or asked for hearing protection. Brennan was not aware of this claim until the autumn of 1986. Brennan stated that, in 1983, hearing protection was always available in the office without a special request. Brennan testified that, when the heat treatment machine arcs, it makes a crackling noise or sound, but that she would not describe it as an explosion. She stated that claimant wears hearing protection now, but was unsure whether or not she did in 1983 or 1984. John L. Dugan, Jr., the plant superintendent and personnel manager since 1979, stated that everyone in the factory has had hearing tests annually since 1983. He testified that, as shown in exhibit 3, a number of individuals who work in the noisiest areas of the plant were tested. Dugan had no knowledge of claimant's hearing being tested before 1983 or of her ever requesting a hearing test. Dugan described exhibit 2 as the results of noise level MITCHELL V. HERSCHEL MANUFACTURING CORPORATION Page 4 testing that he conducted. Like Poundstone and Brennan, Dugan did not recall a time when the motor at the tower was particularly noisy and stated that claimant had not made any complaints about motor noise. Dugan testified that the water cooling system pump and tower was moved inside the building in 1982, that it is approximately 15 feet from claimant's work station to the motor, but that the move in 1982 did not bring it any closer to her than what it had been previously. Dugan stated that his first notice of claimant's claim was a letter from her attorney. Dugan was not aware of claimant missing any work due to tinnitus. Robert R. Updegraff, M.D., an otolaryngologist, testified that tinnitus is a common problem which he sees daily in his practice. He stated that it develops from a number of causes, including noise exposure. Dr. Updegraff concluded that claimant has non-vibratory tinnitus, a type that is very subjective. He characterized claimant's complaint as being relatively mild. Dr. Updegraff aided in drafting Chapter 85B of the Code, the occupational hearing loss chapter, and stated that tinnitus is not compensated under the occupational hearing loss chapter. He stated that the AMA guides do not provide a basis for providing an impairment rating for tinnitus due, primarily, to the subjective nature of the ailment. He disagreed with the impairment rating and method of rating employed by Eugene Peterson, M.D., who found claimant to have a 10% functional impairment of the body as a whole due to her tinnitus. Dr. Updegraff stated that tinnitus, from noise exposure, is not generally progressive once the person is removed from the noise. He stated, however, that if tinnitus is based upon noise exposure, the effect of noise tends to be cumulative. Dr. Updegraff stated that claimant's tinnitus condition is compatible with exposure to excessive noise. He stated that, if her tinnitus developed at a time when she was working in loud noise, a connection between the tinnitus and the noise exposure is likely. Dr. Updegraff stated that the common treatment for tinnitus such as claimant's is the use of background noise, such as a radio. He stated that the condition is seldom disabling and often has a tendency to dissipate once the person is removed from ongoing noise exposure. In his examination, Dr. Updegraff found claimant to have a high-frequency bilateral hearing impairment of a type that is commensurate with high noise exposure over a period of time and that, with such a type of hearing impairment, tinnitus is not unusual (respondents' exhibit 4, page 2). Claimant's exhibit A is the deposition of Eugene Peterson, M.D., another otolaryngologist. Dr. Peterson examined claimant for her complaints of tinnitus. He found her audiograms to show a pattern that he described as classical for noise trauma with a maximum hearing loss at the 4,000 to 6,000 cycle level. He stated that tinnitus occurs secondary to such hearing loss due to damage to the inner ear cell fibers. He expressed the opinion that claimant's tinnitus was caused by her exposure to noise at MITCHELL V. HERSCHEL MANUFACTURING CORPORATION Page 5 work (exhibit A, pages 7 and 8). Dr. Peterson felt that claimant had a 10% permanent partial disability to the body as a whole related to the tinnitus (claimant's exhibit A, pages 10 and 11). Donald Kurth, an industrial audiologist, testified by way of deposition (respondents' exhibit 1). Kurth has conducted audiograms of employees at the Herschel Manufacturing Corporation plant and stated that the first audiogram for claimant was in 1983 and that subsequent tests were administered in 1984, 1985 and 1987. Kurth found claimant to have a high-frequency hearing loss, but that it would not impede her work activities (respondents' exhibit 1, page 19). He agreed that occupational noise exposure is one known cause of tinnitus, that he sees it in a good deal of the individuals he tests, but that it does not generally impede their ability to perform their work (respondents' exhibit 1, pages 20 and 21). APPLICABLE LAW AND ANALYSIS Claimant brought this claim only under Chapter 85 and not under Chapters 85A or 85B of the Code. The various audiograms which appear in the record show a bilateral high-frequency hearing loss that is classic for the type that results from long term exposure to high noise levels. The loss is not sufficient, however, to entitle claimant to any compensation for loss of hearing under Chapter 85B of the Code as it appears that there is no actual hearing disability of the type that is compensated under Chapter 85B of the Code. Tinnitus, if compensable at all, is clearly not compensable under Chapter 85B of the Code. Tinnitus is sometimes considered to be an injury. It is a condition which can arise either from an acute trauma or from long-term high level noise exposure. Tinnitus has been held to be a physical trauma. Dotolo v. FMC Corporation, 375 N.W.2d 25 (Minn 1985). The case was one where noise-induced tinnitus was a basis for awarding compensation for mental disability. Some authorities considered tinnitus which results from long-term noise exposure to be an occupational disease. Moore v. Ford Motor Co., 9 A.D.2d 165, 192 N.Y.S.2d 568 (1959). The line of demarcation between an injury produced by cumulative trauma and an occupational disease is often unclear. Carpal tunnel syndrome is currently treated in this state as an injury. Simbro v. Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983). Before Chapter 85 was amended in 1972, however, conditions such as bursitis, synovitis and tenosynovitis were statutorily defined as an occupational disease (section 85A.9 1971 Code of Iowa). The current definition of occupational disease as found in section 85A.9 does not appear to exclude any of the diseases or conditions which were formerly considered to be an occupational disease under the prior statute. The Iowa Supreme Court has not specifically addressed the issue of whether carpal tunnel syndrome or tinnitus is an occupational disease compensable under Chapter 85A or an injury compensable under Chapter 85. In view of the uncertainty as to how tinnitus should be compensated, a dual analysis will be made. Claimant has the burden of proving by a preponderance of the MITCHELL V. HERSCHEL MANUFACTURING CORPORATION Page 6 evidence that her injury, or occupational disease, arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976). See also section 85A.8, Code of Iowa. The noise level studies as contained in respondents' exhibit 2 do not show particularly high levels of noise exposure. The accuracy of such testing, however, is not of the quality that is commonly seen when an industrial hygienist conducts a noise survey in order to arrive at a time-weighted average noise level exposure. Respondents' exhibit 3, the 1979 hearing test results for Herschel Manufacturing Corporation employees, shows approximately half of the work force to have been classified as AN which is a code which indicates that the employee has normal hearing at speech frequencies, but some hearing loss at higher frequencies which is often a first indication of a noise-induced hearing loss. The results are certainly consistent with the existence of a noise exposure hazard at the Herschel Manufacturing Corporation plant. Whether or not a noise level is injurious is something which is not readily ascertainable by casual observation. The perception of noise is often a relative matter and is based, to some degree, upon the individual's expectations. For example, a manufacturing plant may be relatively quiet, as manufacturing plants go, but still a quite noisy place. Drs. Peterson and Updegraff have both indicated that claimant's tinnitus is consistent with her high-frequency hearing impairment, that the high-frequency hearing impairment is consistent with long-term noise exposure and that the tinnitus, if it arose during a period of high-level noise exposure, is likely related to that noise exposure. The only evidence of sustained long-term noise exposure for Judy MITCHELL V. HERSCHEL MANUFACTURING CORPORATION Page 7 Mitchell is that she experienced at the Herschel Manufacturing plant. The high-frequency hearing loss she exhibits is found to be a result of noise exposure at her place of employment and the tinnitus is likewise found to be a result of noise exposure at her place of employment. It is not necessary for a noise level to exceed the level specified in Code section 85B.5 in order to be injurious or compensable. Muscatine County v. Morrison, ______ N.W.2d _(Iowa, 1987). If claimant's tinnitus is treated as an occupational disease, she is not entitled to receive compensation for any degree of permanent disability because she has not reached the point of disablement as defined in section 85A.4. The employer is, however, responsible for payment of the expenses of medical treatment for the condition as provided by section 85A.5. If claimant's ailment is treated as an injury under the provisions of Chapter 85 of the Code, the first question to be addressed is whether it is a scheduled disability under section 85.34(2)(r) or a non-scheduled disability compensable under section 85.34(2)(u). The very nature of tinnitus is not so much something which interferes with ability to hear as it is something which impairs the individual's ability to concentrate and their mental and emotional status. For these reasons, if tinnitus is treated as an injury arising from cumulative trauma, it is compensable under McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). McKeever is a case which essentially applies the discovery rule to hold that an individual will not be held to have discovered the seriousness of a condition until it becomes disabling. This avoids the running of the statute of limitations until the worker has something substantial to recover consistent with Sandbulte v. Farm Bureau Mutual Insurance Co., 343 N.W.2d 457 (Iowa 1984). Claimant's condition has not yet become disabling in the sense of McKeever and, if the discovery rule is applied, her claim is certainly timely under both the provisions of 85.23 and 85.26. There is a theory which provides that a cumulative trauma injury cannot be compensated until it produces disability in the sense of an inability to perform the individual's normal employment duties, and that any petition filed before such disability is premature and subject to dismissal. The history of this agency, however, has many cases where permanent partial disability was awarded without there being any loss of time from employment. It is concluded that it is not necessary for there to be actual inability to perform a person's normal job in order to recover for permanent partial disability that results from cumulative trauma. Since tinnitus is not a scheduled condition, it is to be compensated under the provisions of section 85.34(2) as a disability to the body as a whole. Hughes v. Pacific Northwest Bell, 61 Or. App. 566, 658 P.2d, 548 (1983). If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of MITCHELL V. HERSCHEL MANUFACTURING CORPORATION Page 8 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). It is of significance that the tinnitus condition has not caused claimant to be disabled from performing the normal duties of her employment. The condition is one which certainly is aggravating and bothersome, but none of the medical authorities has indicated that it seriously detracts from claimant's ability to be employed. In some cases tinnitus of a sufficiently severe degree may cause disability, but this does not appear to be one of those cases. Since claimant's tinnitus has not caused her any actual loss of earnings and does not appear to be disabling from an industrial standpoint, no compensation for permanent partial disability will be awarded. This is the same result as in the case of Hughes v. Pacific Northwest Bell, 61 Or. App. 566, 658 P.2nd 548 (1983). The employer is, of course, responsible for payment of treatment expenses under the provisions of section 85.27 of the Code. The result in this case is the same regardless of whether claimant's tinnitus is considered to be an occupational disease or an unscheduled injury arising from cumulative trauma to be compensated industrially. Claimant's claim was made under Chapter 85 of the Code only. The defense has not urged that the condition is one which is compensable only under Chapter 85A, the occupational disease statute. It is concluded that tinnitus, arising from long-term noise exposure, is a cumulative trauma injury. FINDINGS OF FACT 1. Judy L. Mitchell was exposed to injurious levels of noise in her employment with Herschel Manufacturing Corporation. 2. As a result of the noise exposure, Mitchell has developed a high-frequency hearing loss and a mild degree of tinnitus. 3. The tinnitus is not disabling from an industrial standpoint and claimant has suffered no loss of earning capacity as a result Of the condition. 4. The tinnitus is a result of cumulative trauma resulting from noise. 5. The condition is not disabling in the sense that it has made claimant unable to perform the normal duties of her employment. MITCHELL V. HERSCHEL MANUFACTURING CORPORATION Page 9 CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. Claimant sustained injury in the nature of tinnitus which arose out of and in the course of her employment with Herschel Manufacturing Corporation. 3. Since the injury is one resulting from cumulative trauma and it has never progressed to the point of disablement, claimant was not previously required to give notice or commence an action and the claim is not barred by the provisions of sections 85.23 or 85.26 of the Code. 4. Tinnitus is a condition which is not compensated under Chapter 85B of the Code; it is compensable as an injury to the body as a whole under section 85.34(2)(u). 5. Where there has been no demonstrated loss of earning capacity, an award for permanent partial disability is not warranted, but the defendants are responsible for medical expenses under the provisions of section 85.27. ORDER IT IS THEREFORE ORDERED that claimant has no entitlement to receive any compensation for permanent partial disability as the injury is not shown to have produced any permanent disability. IT IS FURTHER ORDERED that defendants are responsible for payment of the expenses of treatment for claimant's tinnitus under the provisions of section 85.27. IT IS FURTHER ORDERED that defendants pay the costs of this action under the provisions of Division of Industrial Services' Rule 343-4.33 in the amounts as follows: Dr. Peterson Deposition $147.20 Expert Witness Fee, Dr. Peterson 150.00 Cost of One Medical Report 25.00 Total $322.20 IT IS FURTHER ORDERED that defendants shall file Claim Activity Reports as requested by this agency pursuant to Division of Industrial Services' Rule 343-3.1. Signed and filed this 14th day of September, 1987. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER MITCHELL V. HERSCHEL MANUFACTURING CORPORATION Page 10 Copies To: Mr. Max Burkey Attorney at Law 211 Shops Building Des Moines, Iowa 50309 Ms. Patricia J. Martin Attorney at Law 300 Liberty Building Sixth & Grand Des Moines, Iowa 50309 1402.30, 1803 2203, 2208, 2209 Filed September 14, 1987 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER JUDY L. MITCHELL, Claimant, File No. 786976 VS. HERSCHEL MANUFACTURING CORPORATION, A R B I T R A T I 0 N Employer, and D E C I S I 0 N TRAVELERS INSURANCE, Insurance Carrier, Defendants. 1402.30, 1803, 2203, 2208, 2209 Thirty-nine-year-old lady was diagnosed with tinnitus which both otolaryngologists felt was consistent with high-level noise exposure, which exposure was corroborated by high frequency hearing loss. Her tinnitus was found to be an injury which arose out of and in the course of employment, compensable as an injury to the body as a whole under section 85.34(2)(u) rather than as a scheduled hearing loss. It was also found to be compensable under Chapter 85 rather than under 85A or 85B. A discussion of the considerations is contained in the decision. The injury was one which arose from long-term noise exposure, but had not produced a degree of hearing loss that would have been compensable under Chapter 85B. The condition, although aggravating to claimant, was not found to be industrially disabling and she was not awarded any permanent partial disability, but the employer was held responsible for section 85.27 benefits. Page 1 before the iowa industrial commissioner ____________________________________________________________ : RUSS SEVERSON, : : Claimant, : : vs. : : File Nos. 913829 & 787192 DEPARTMENT OF PUBLIC DEFENSE, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Russ Severson, claimant, against the Department of Public Defense, employer and the State of Iowa, insurance carrier, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained on January 11, 1985 and February 20, 1989. This matter came on for hearing before the undersigned deputy industrial commissioner on May 13, 1991. The matter was consid ered fully submitted at the close of the hearing. The record in this case consists of the testimony of claimant; joint exhibits B-H; and, J-M and claimant's exhibits 1-4. issue Pursuant to the prehearing report and order submitted and approved on May 13, 1991, the only issue presented for resolution is the extent of claimant's entitlement to permanent partial dis ability benefits stipulated to be an industrial disability to the body as a whole. findings of fact The undersigned has carefully considered all the testimony given at the hearing, the arguments made, the evidence contained in the exhibits herein, and makes the following findings: Claimant was born on December 1, 1932 and completed the eleventh grade of school. Prior to 1977, the claimant worked at various times as a cook, mechanic, service station attendant, roofer and custodian. On September 19, 1977, he was hired by the State of Iowa as a maintenance worker. In this capacity, he mowed grass, shoveled snow, worked on buildings, did repair work and other general maintenance duties. He has been at the Camp Page 2 Dodge facility since 1977. He did maintenance work for about a year and then in 1978/79 a carpenter slot opened up and he applied for and received the job. In this capacity, he repaired siding, windows, and furniture; remodeled buildings; tore out walls and put in new ones; insulated buildings; and repaired locks. He is classified as Carpenter I. As to the January 11, 1985 injury, claimant testified that he fell out of an army jeep and injured his left knee. He was seen by James Dolan, M.D., who referred him to Joshua D. Kimelman, D.O., an orthopedist. He was off work for 3 1/2 months and went back to part-time duty, four hours a day, for three weeks, and then full time duty. After he returned to work, he had back problems and was hospitalized in July 1985 and put in traction. He returned to his regular duties thereafter. Medical evidence pertaining to this injury indicates that in February 1985, claimant was diagnosed with a chronic patellar tendon tear. It was repaired on February 18, 1985, at Mercy Hospital. On July 11, 1985, claimant was admitted to Charter Hospital with back pain. He was treated conservatively and discharged on July 16, 1985. Thereafter, he was put on physical therapy. Diagnosis of lumbosacral strain, chronic, without neurological deficit, was made. On January 10, 1986, Dr. Kimelman gave claimant a 5 to 7 1/2 percent impairment to the left lower extremity and a 2 1/2 percent impairment to the back (Exhibit H). Claimant testified that he received workers' compensation benefits during the period of time he was off work due to the January 11, 1985 injury. As to the injury which occurred on February 20, 1989, claimant testified that, while at work, he slipped on ice, jammed his left knee and hurt his back. He underwent knee transplant surgery in June 1989. He was initially seen by Dr. Dolan, who referred him to Orthopedic Associates. An arthroscopy was performed on March 16, 1989, and a diagnosis of Grade IV chondromalacia of the medial femoral condyle in the femoral groove was made (Ex. H, page 8). Claimant had continued swelling in his left knee and he saw Mark B. Kirkland, D.O., on April 12, 1989, for following-up eval uation. He recommended a continuation of physical therapy. How ever, claimant's problems persisted and in June 1989 he was given the option of knee fusion or total knee reconstruction. Claimant opted for left total knee reconstruction and surgery was per formed by Martin Rosenfeld, D.O., on June 26, 1989, at Mercy Hospital (Ex. G, p. 12). Claimant testified that he was off work from February 1989 through December 1989. He returned to part-time employment for 1 1/2 months and then to full time work. He was put in charge of the tool room at Camp Dodge and does all of the lock work and plaque engraving. He testified that he spends 50 percent of his Page 3 time as a locksmith and the other 50 percent engraving plaques and working in the tool room. He testified that he cannot climb more than three steps or stand more than 30 minutes. Because of his limitations, he cannot advance to the Carpenter II position. As a Carpenter I his gross income is $852.00 every two weeks. The Carpenter II salary is $916.00 every two weeks. Claimant was seen by Dr. Rosenfeld on December 4, 1989, for follow-up evaluation. He recommended minimal walking, no climb ing, no standing and no heavy lifting. Back x-rays showed some disc degeneration (Ex. H, p. 13). On April 5, 1991, Dr. Dolan gave claimant a 24 percent permanent partial disability rating to the body as a whole (Ex. A-1). conclusions of law The only issue to be determined by the undersigned is the extent of permanent disability. Dr. Dolan gave claimant an impairment rating of 24 percent and physicians who have treated and/or examined claimant have imposed restrictions on his employ ability. Functional impairment is an element to be considered in determining industrial disability which is the reduction of earn ing capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inabil ity to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. This is so as impairment and disability are not synonymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportion ally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifi cations intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriv ing at the determination of the degree of industrial disability. Page 4 There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, moti vation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial disability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, l985). Claimant, age 58 at the time of the hearing, has an eleventh grade education with no other formal education experience. Claimant's work experience has been primarily as a mechanic and carpenter. Since 1989, claimant has worked primarily as a lock smith and performed other light duties. Since 1989, he has had work restrictions from his physician which include no squatting, bending, running, climbing, standing more than 30 minutes at a time, heavy lifting and carrying. These restrictions effectively operate to remove claimant from advancing to Carpenter II with the State of Iowa and other areas of the labor market. Claimant testified that his job with the state is secure and he plans to retain it until retirement at age 65. Nevertheless, claimant has suffered a loss of earning capacity. Claimant can no longer work as a mechanic, custodian, maintenance worker or general carpenter. Considering then all of the elements of industrial disability, it is determined that claimant has established a permanent partial disability of 30 percent for industrial pur poses entitling him to 150 weeks of permanent partial disability benefits. order THEREFORE, IT IS ORDERED: 1. As to claim number 787192, claimant takes nothing fur ther from this proceeding. 2. As to claim number 913829, defendants shall pay to claimant one hundred fifty (150) weeks of permanent partial disability benefits at the stipulated rate of two hundred thirty-six and 58/l00 dollars ($236.58) commencing December 7, 1989. 3. Defendant shall receive full credit for all disability benefits previously paid. 4. Benefits that have accrued shall be paid in a lump sum together with statutory interest pursuant to Iowa Code section 85.30. Page 5 5. Defendant shall file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. 6. Defendant shall pay the costs of this action pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of May, 1991. ______________________________ JEAN M. INGRASSIA DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Arthur C. Hedberg Attorney at Law 840 Fifth Ave Des Moines IA 50309 Ms. Joanne Moeller Assistant Attorney General Hoover State Office Bldg Des Moines IA 50319 5-1803 Filed May 31, 1991 JEAN M. INGRASSIA before the iowa industrial commissioner ____________________________________________________________ : RUSS SEVERSON, : : Claimant, : : vs. : : File Nos. 913829 & 787192 DEPARTMENT OF PUBLIC DEFENSE, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803 The only issue presented for resolution is the extent of claimant's entitlement to permanent partial disability benefits stipulated to be an industrial disability to the body as a whole. Claimant, age 58, eleventh grade education, manual labor work experience, restricted to light work due to knee transplant surgery in June 1989, awarded 30 percent industrial disability. 5-2905, 1802, 1803 Filed August 30, 1991 Byron K. Orton LPW before the iowa industrial commissioner ____________________________________________________________ : RANDALL LEE ELLIS, : : Claimant, : : vs. : : File No. 787559 B & B DISTRIBUTING CO., INC., : : A P P E A L Employer, : : D E C I S I O N and : : CIGNA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-2905 The standard of review on appeal of an arbitration decision is de novo. 1802 Held that claimant failed to prove a causal connection between his work-related automobile accident of January 31, 1985 and the time he was off work following his April 16, 1987 nonwork automobile accident. The second nonwork accident on April 16, 1987 is the proximate cause of claimant's missing work from May 4, 1987 through November 8, 1987. Claimant returned to his job following the January 31, 1985 work injury working up to one hundred hours a week. While claimant continued to experience chronic cervical strain which was treated with medication and a TENS unit prior to the April 16, 1987 accident, he was able to work. 1803 Held that claimant failed to prove that he was terminated by his employer on account of his work-related injury, therefore, the issue of whether claimant was entitled to an award of disability was moot. In reviewing the evidence, it was determined that the testimony of the employer's manager that they intended to terminate claimant's employment on the date of the accident was self serving. Next, the evidence was reviewed to determine whether claimant was terminated on account of his work-related injury. Claimant worked for the employer for more than two years following his work-related accident wearing a TENS unit, taking medication and occasionally wearing a cervical collar. Following the April 16, 1987 nonwork accident, claimant was not allowed to return to work. It was determined that claimant failed to prove he was terminated on account of his work-related injury. BEFORE THE IOWA INDUSTRIAL COMMISSIONER RANDALL LEE ELLIS, Claimant, File No. 787559 vs. A R B I T R A T I O N B & B DISTRIBUTING CO., INC., D E C I S I O N Employer, F I L E D and OCT 12 1989 CIGNA, IOWA INDUSTRIAL COMMISSIONER Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Randall Lee Ellis, claimant, against B & B Distributing Company, Inc., employer (hereinafter referred to as B & B), and CIGNA Insurance Companies, insurance carrier, for workers' compensation benefits as a result of an alleged injury on January 31, 1985. On April 13, 1989, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. Oral testimony and written exhibits were received during the hearing from the parties. The exhibits offered into the evidence are listed in the prehearing report. According to the prehearing report, the parties have stipulated to the following matters: 1. On January 31, 1985, claimant received an injury which arose out of and in the course of his employment with B & B. 2. If the injury is found to have caused permanent disability, the type of disability is an industrial disability to the body as a whole. 3. Claimant's rate of weekly compensation, in the event of an award of weekly benefits from this proceeding, shall be $184.57. 4. Entitlement to medical benefits is no longer in dispute. 5. Claimant was paid weekly benefits in the amount of 1 2/7 weeks prior to the hearing. ISSUES The parties submitted the following issues for determination in this proceeding: I. Whether there is a causal relationship between the work injury and the claimed disabilities; and, II. The extent of claimant's entitlement to weekly benefits for disability. STATEMENT OF FACTS The following is a brief statement highlighting some of the more pertinent evidence presented. Whether or not specifically referred to in this statement, all of the evidence received at the hearing was independently reviewed and considered in arriving at this decision. Any conclusions about the evidence received contained in the following statement should be viewed as preliminary findings of fact. Claimant testified that he worked for Robert Pecka, owner of B & B Distributing and Sentaco Industries, from the late 1970's when he was in high school until April 16, 1987. On April 16, 1987, claimant was involved in a nonwork related auto accident and Pecka would not allow claimant to return to work after this accident despite releases given by claimant's family physician, Jesse Landhuis, M.D. In his testimony, Pecka did not explain why he did not allow claimant to return to work. In the medical records of Dr. Landhuis, the doctor talked to a manager employed by Pecka and was told that he was concerned about claimant's ability to perform his job safely and adequately because of the wearing of a cervical collar and the taking of medication while on the job and that it was not logical for claimant to work all day and then go to physical therapy. Dr. Landhuis indicated to the employer the importance of returning an injured worker back to work in the physical rehabilitation process but agreed to keep him off work for another month. However, claimant was never allowed to return to work for B & B or Sentaco or any other company owned by Pecka. Claimant stated that at the time of the work injury in January 1985, he was a salaried employee earning approximately $1,000 to $1,200 a month performing supervisory and physical labor duties. Claimant was required to perform many duties in the installation and repair of TV sets and satellite dishes, the installation of car stereos, repair of snowmobiles and various other duties including personal work for Mr. Pecka. In February 1987, apparently as a result of an altercation claimant had with a fellow employee and his alleged inability to get along with fellow employees, claimant was demoted to a $5.00 an hour nonsalaried job and reassigned to assembly work in one of Pecka's fiberglass fabrication plants, Sentaco. This plant fabricated sleeper cabs which are installed on the cabs of large tractor trailer semi trucks. Both of these jobs, especially the fabrication job, required claimant to perform heavy lifting, bending and stooping. Claimant stated that after the work injury in January 1985, he seldom lifted over 50 pounds without assistance. Pecka testified that he was never told by claimant, nor did claimant in any other manner inform him of any physical problems he may have had while performing work at either of his two companies. He stated that claimant performed all work that was assigned to him including extensive overtime work while in the fabrication plant. However, Pecka admitted to observing claimant wearing a cervical collar and a TENS unit (an electrical nerve stimulation device to relieve pain) after the work injury of January 1985, and before the auto accident in April 1987. The work injury in January 1985 is not disputed. Claimant testified that while delivering a television set to a customer, he was involved in an auto accident with an elderly couple. After the accident he initially sought chiropractic care but later began treating with his family physician, Dr. Landhuis, for chronic neck, left arm and shoulder pain along with headaches. Upon a diagnosis of cervical strain secondary to the auto accident, Dr. Landhuis treated claimant with limitations on activity, use of a cervical collar and medication. Claimant was off work at that time from February 4, 1985 until February 11, 1985. Dr. Landhuis treated claimant for a continuation of his symptoms through April 17, 1985. At that time the doctor indicated that claimant should gradually improve and that he should have no permanent disability. Claimant was referred to Robert Hayne, M.D., a board certified neurosurgeon, in June 1985. Dr. Hayne treated claimant until September 1985 for persistent complaints of pain in his neck, upper back, left shoulder and left arm. Dr. Hayne indicates that his testing did not reveal any spinal abnormalities or any other cause for claimant's problems. Dr. Hayne indicated that an EMG test revealed to him that claimant had left carpal tunnel syndrome but that he did not feel claimant's symptoms were related to this problem. In his deposition, Dr. Hayne stated that he felt that claimant's symptoms were psychosomatic or the result of a neurosis because he could not explain claimant's difficulties. There was no evidence in the record pertaining to Dr. Haynes qualifications in psychology, psychiatry, or the treatment of these conditions. Dr. Hayne opined in his deposition that claimant's symptoms would have eventually resolved had it not been for the second auto accident in April of 1987. Dr. Hayne did not explain why claimant continued to have symptoms for over two years after the 1985 auto accident and shortly before the April 1987 accident. Claimant was referred to the Neurology Department of the University of Iowa Hospitals and Clinics in November of 1985 with persistent complaints of neck, left shoulder, left arm pain and headaches. Physicians in this department diagnosed "diffused musculoskeletal pain with no objective weakness" and treated claimant with medication and limitations on activity. The doctors in the department did not agree with Dr. Haynes diagnosis of carpal tunnel syndrome. Claimant returned to the department in March 1986 and was prescribed use of a TENS unit to relieve pain during activity. However, departmental physicians,still could not explain the cause of claimant's pain and stated that there was nothing more they could do for him. In June 1986, claimant returned and Arnold Menezes, M.D., Professor of Neurology, stated that he felt claimant's problem was a C7 root dysfunction and recommended that claimant continue wearing the cervical collar and taking medication. Claimant testified that he continued working with this collar and continued using his TENS unit to relieve pain. Further testing of claimant in June and July 1986 at the University of Iowa Hospitals and Clinics revealed some disc bulging in the cervical spine but no evidence of any root impingement. Again, the cause of claimant's pain was uncertain according to University of Iowa Hospitals. Dr. Menezes stated that there was no lesion present which could be corrected surgically. Claimant was to continue on medication. On April 10, 1987, claimant returned to Dr. Landhuis and stated that there was no improvement in his condition. He complained of tired neck muscles and sharp pain on the left side on occasion with activity and difficulties holding his head upright while working in a bent over position or driving. He also continued to have arm pain. Dr. Landhuis still causally connected this pain to the January 1985 accident. On April 16, 1987, while riding in a car with his wife, claimant and his wife were struck from the rear by another vehicle and claimant experienced a reoccurrence of his neck, shoulder and arm pain. Claimant sought immediate treatment from Dr. Landhuis at that time who noted also low back pain. Claimant was taken off work until May 4, 1987 and told to continue taking medication, continue taking physical therapy, and continue using his TENS unit. As stated above, claimant was not allowed to return to work after this accident. Dr. Landhuis indicated that the low back pain resolved. Claimant testified he began a treatment of pain therapy and work hardening from the University of Iowa Hospitals in June 1987 which extended until November 1987. In August 1987, doctors at the neurology department felt that he had sympathetic dystrophy of the arm and five stellate ganglion blocks were performed to treat this possible condition. Claimant reported several hours of benefit from this procedure and it was repeated. No other information was submitted from the University of Iowa Hospitals with reference for this treatment. On November 5, 1987, claimant reported to Dr. Landhuis that as a result of the block therapy he was 100 percent better with no pain. Dr. Landhuis then released claimant to return to work on November 9, 1987. Claimant telephoned Dr. Landhuis on a couple of occasions in 1988 to renew his prescriptions. In June 1988, claimant was admitted for evaluation at a local hospital for psychological depression. However, no doctors at the hospital could not find any psychological illness and claimant was referred for outpatient care of his depression. According to the physicians this depression appeared to stem from his financial problems and feelings he was treated unfairly by his former employer after being injured on the job. Claimant testified that he now has returned to work with a former employee of B & B and works approximately eight hours a day as a construction worker. This work involves carpentry and the remodeling of homes including roofing work. Claimant states that he limits his lifting in this job. Claimant states that his neck gets tired on occasion and he has learned to quit working when he experiences problems. APPLICABLE LAW AND ANALYSIS Note: A credibility finding is necessary to this decision as defendants place claimant's credibility at issue during cross-examination and their evidence as to the nature and extent of the injury and disabilities following each auto accident. From his demeanor while testifying, claimant will be found credible. With reference to defense witnesses, Robert Pecka was not convincing when he stated he had no knowledge that claimant had difficulty performing his work after the January 1985 accident. Pecka admitted that he observed claimant wearing a neck collar and TENS unit continuously at work after the work injury. I. The claimant has the burden of proving by a preponderance of the evidence that the work injury is a cause of the claimed disability. A disability may be either temporary or permanent. In the case of a claim for temporary disability, the claimant must establish that the work injury was a cause of absence from work and lost earnings during a period of recovery from the injury. Generally, a claim of permanent disability invokes an initial determination of whether the work injury was a cause of permanent physical impairment or permanent limitation in work activity. However, in some instances, such as a job transfer caused by a work injury, permanent disability benefits can be awarded without a showing of a causal connection to a physical change of condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). The question of causal connection is essentially within the domain of expert medical opinion. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion of experts need not be couched in definite, positive or unequivocal language and 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 (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 surrounding circumstances. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Furthermore, if the available expert testimony is insufficient along to support a finding of causal connection, such testimony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. Asse Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish compensability, the injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith, 290 N.W.2d 348, 354. In the case of a preexisting condition, an employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). In the case sub judice, claimant has not shown by a preponderance of the evidence that he suffers from a permanent partial impairment. The only opinion in the record is that of Dr. Hayne which is against the claimant on this issue. However, Dr. Hayne was not very convincing in his feelings that claimant's complaints of pain in the neck, left shoulder and left arm were psychosomatic. Dr. Hayne has not been medically trained in the diagnoses and treatment of neurosis or psychosis. It is quite clear that other physicians who have treated claimant including the Neurology Department at the University of Iowa Hospitals and Clinics do not feel that the symptoms are psychosomatic and actively treated this condition for several months. There is little question that all the care and treatment claimant received for his neck, left shoulder and arm pain is.causally connected to the work injury. This is the clear view of claimant's family physician, Dr. Landhuis. Likewise, claimant's absences from work to receive treatment from Dr. Landhuis and the University of Iowa Hospitals and Clinics following the April 1987 car accident were causally connected to the injury. Claimant suffered exactly the same symptoms before and after the April 1987 accident. Claimant was credible when he testified that the second accident did not change his condition. As stated above, claimant only has to show that the work injury was a significant factor in precipitating disability, not the only factor. According to Dr. Landhuis's records, claimant was not allowed to return to work by his employer. due to their fear of reinjury and inability to perform duties as a result of wearing a cervical collar and use of medication. They also objected to claimant taking physical therapy. Claimant was clearly taking medication, wearing a cervical collar and receiving physical therapy for almost two years prior to the second car accident as a result of the January 1985 work injury. Also, in addition to full healing period benefits for the times off work until a final release to duty on November 9, 1987, claimant is entitled to permanent disability benefits without a showing of permanent partial impairment under the theory of Blacksmith v. All-American, Inc., cited above. Claimant was terminated due to the treatment modalities he was receiving as a result of the work injury in January of 1985 and this job transfer or loss of his job resulted in a severe loss of earnings and a severe economic hardship. Disability caused by a job transfer is compensable under the theory of Blacksmith. Therefore, benefits will be awarded equivalent to a 10 percent permanent partial disability. FINDINGS OF FACT 1. Claimant was a credible witness. Claimant's appearance while testifying indicated that he was testifying truthfully. 2. The work injury of January 31, 1985, was a cause of a period of disability from work beginning on February 4, 1985 through February 11, 1985 and from May 4, 1987 through November 8, 1987, at which time claimant reached maximum healing. During this time claimant received extensive treatment of symptoms caused by the work injury consisting of pain in the neck, left shoulder and left arm. Various treatment modalities were utilized such as limitations on activity, medications for pain and inflammation, home exercises, supervised physical therapy, trigger point and other injections, use of a cervical collar and use of electronic pain relief devices. Although claimant had a second nonwork related auto accident on April 16, 1987, precipitating neck, shoulder and arm pain, this accident did not change claimant's condition. Claimant was not allowed to return to work by his employer after April 16, 1987, due to claimant's use of a cervical collar and medication at work. However, claimant was receiving such treatment modalities for over two years prior to the second auto accident. 3. Claimant has not shown by the preponderance of the evidence that the work injury of January 31, 1985, was a cause of any permanent partial functional impairment. Claimant certainly experienced pain while working but has returned to work as a carpenter performing heavy work. 4. The work injury of January 31, 1985, and the employer's refusal to return claimant to work due to treatment precipitated by this work injury, is a cause of.a 10 percent loss of earning capacity. Claimant was without income from any source for an extended period of time as a result of the employer's refusal to return claimant to work after April 16, 1987, for reasons related to the January 31, 1985 work injury. CONCLUSIONS OF LAW Claimant has established under law entitlement to 28 1/7 weeks of healing period benefits and 50 weeks of permanent partial disability benefits. ORDER 1. Defendants shall pay to claimant fifty (50) weeks of permanent partial disability benefits at the rate of one hundred eighty-four and 57/100 dollars ($184.57) per week from November 9, 1987. 2. Defendants shall pay to claimant healing period benefits from February 4, 1985 through February 11, 1985 and from May 4, 1987 through November 8, 1987 at the rate of one hundred eighty-four and 57/100 dollars ($184.57) per week. 3. Defendants shall pay accrued weekly benefits in a lump sum and shall receive a credit for benefits previously paid. 4. Defendants shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 5. Defendants shall pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. 6. Defendants shall file activity reports on the payment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 12th day of October, 1989. LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Blake Parker Attorney at Law 350 Boston Centre Fort Dodge, IA 50501 Mr. Marvin E. Duckworth Attorney at Law Terrace Center, STE 111 2700 Grand Ave. Des Moines, IA 50312 1803 Filed October 12, 1989 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER RANDALL LEE ELLIS, Claimant, File No. 787559 vs. A R B I T R A T I O N B & B DISTRIBUTING CO., INC., D E C I S I O N Employer, and CIGNA, Insurance Carrier, Defendants. 1803 Despite a failure to show permanent partial impairment by a preponderance of the evidence, claimant was awarded benefits equivalent to a 10 percent permanent partial disability under the theory of Blacksmith v. All-American, Inc. Claimant was not allowed to return to work due to a fear by his employer of reinjury and an inability to perform duties as a result of treatment modalities prescribed for treatment of the work injury.