BEFORE THE IOWA INDUSTRIAL COMMISSIONER ALLEN MICHAEL DONOVAN, Claimant, File No. 789214 vs. IOWA STATE MEN'S REFORMATORY, A R B I T R A T I O N Employer, D E C I S I O N and F I L E D STATE OF IOWA, JAN 17 1989 Insurance Carrier, Defendants. IOWA INDUSTRIAL COMMISSIONER INTRODUCTION This is a proceeding in arbitration brought by the claimant, Allen Michael Donovan, against Iowa Men's Reformatory, Employer, and State of Iowa, insurance Carrier, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained on March 29, 1983. This matter came on for hearing before the undersigned deputy industrial commissioner in Dubuque, Iowa, on November 30, 1988. The record in this proceeding consists of the testimony of claimant and joint exhibits A and B. Pursuant to the prehearing report, the parties stipulated that claimant's weekly compensation rate is $180.74; that there is an employer-employee relationship; that the injury arose out of and in the course of his employment; that the date of injury was March 29, 1983; that the medical charges are fair and reasonable; that there are no credits involved; that no benefits have been paid; and,.agreed as to the taxation of costs. ISSUES The issues remaining in this are: l. Whether there is a causal connection between the:injury and claimant's alleged disability; 2. The nature and extent of claimant's disability and commencement dates; and, 3. Whether claimant is entitled to medical benefits. REVIEW OF THE EVIDENCE Claimant was in an Iowa minimum security facility pursuant to a two year sentence in Black Hawk County in connection with his conviction for transporting and possession of a firearm by convicted felon. Claimant testified he was sent to this facility and was under the supervision of either Iowa conservation officers and/or correctional officers during his work while serving his sentence. Claimant was transferred as an inmate to work at the Yellow River Forest, a state operated sawmill. Claimant testified he had worked less than two weeks at this sawmill when an injury occurred on March 29, 1983. Claimant said he was injured when the rotating sawmill and pressure feed malfunctioned and propelled a cut board at claimant striking him in the right shoulder, chest, mouth, and knocking claimant ten feet and leaving him unconscious. Claimant was admitted to the University of Iowa Hospitals on March 29, 1983 for oral and maxillofacial surgery. That same day the University of Iowa Hospital records show the diagnosis was: [R]right mandibular body fracture with alveolar fracture contain teeth #27 and 28 and maxillary alveolar fracture with avulsed teeth #7,8,9 and 10.... .... ...Attention was first drawn to the upper arch where avulsed teeth #7, 8, 9 and 10 were repositioned in the arch and it was found that #7,8 and 9 were completely free of all bony attachments and were therefore removed. Tooth #10 still had good buccal and lingual bone attachments and was deamed [sic] salvageable. (Joint Exhibit A, page 4) The records ultimately show that tooth #lO was also removed some time thereafter. The same medical record further indicates: ,"The prefabricated mandibular lingual splint was the [sic] applied with straight .018 gauge wires and the patient was brought into anatomic occlusion and found to fit quite well." Claimant testified he was also cut in the right cheek and his gums were cut and his whole body and neck hurt from the impact. On the day of hearing, claimant's external cheek or jaw showed no real visible signs of any injury but testified that there still is either a numbness or tingling feeling in his lower cheek jaw area. When he pushes it, it aches into the gum and tooth area. Claimant indicated the doctor told him he had nerve damage and would not get any better. Claimant said his jaw was wired shut for approximately six and a half weeks plus another two weeks claimant wore a rubber device when the jaw was unwired. Claimant stated that during the time the jaw was wired, he had to eat liquid food and did so through the space where the four front teeth were missing. Claimant testified he was totally incapacitated for eight weeks until all the wires were cut. Claimant testified that there were twelve weeks altogether that he was not able to work. After this twelve weeks, claimant said he fully recovered except for the nerve damage to which he testified to earlier. Claimant testified he received replacement false teeth but "did not wear them because they did not fit right." Dr. Bernard Sines, D.D.S., wrote on May 18, 1988: "While incarcerated at the Medium Security Unit at Mount Pleasant Inmate Donovan requested an "upper claspless partial." He received this in September '84 and did not return to the dental clinic for any adjustments or complaints during the remaining five months of his incarceration at MSU. When he returned through IMCC at Oakdale two years later we asked where his partial was and he stated he threw it away because it didn't fit." Although a "flipper" is adequate [sic], it is not the ideal replacement for missing teeth. However, I question whether or not the treatment of choice would be a 6 or 8-unit fixed porcelain bridge. I suspect the length of the span and the curvature ,of the arch might be excessive. A referral to a prosthedontist for an evaluation could answer this. The compromise treatment of choice would be a removable maxillary partial denture with a cast framework and "clasps." (Jt. Ex. A, p. l) There were no outstanding medical bills at the time of hearing. APPLICABLE LAW AND ANALYSIS The claimant has the burden of proving by a preponderance of the evidence that the injury of March 29, 1983 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). There is no question that claimant sustained injuries that arose out of and in the course of his employment. Claimant was in a minimum security arrangement working for the state while serving his sentence. The 12 weeks that it took claimant to fully recover were during the time when claimant was still serving his sentence. Iowa Code section 85.36(10)(d) states: If the employee was an inmate as defined in section 85.59, the inmate's actual earnings shall be disregarded, and the weekly compensation rate shall be as set forth in section 85.59. Iowa Code section 85.59 states, in part, as follows: If an inmate is permanently incapacitated by injury in the performance of his or her work in connection with the maintenance of the institution or in an industry maintained therein or while on detail to perform services on a public works project, or is permanently or temporarily incapacitated in connection with the performance of unpaid community service under sections 907.13 and 910.2 or a work assignment of value to the state or to the public under chapter 232, that inmate shall be awarded only such benefits as are provided in section 85.27 and section 85.34, subsections 2 and 3. It is undisputed that claimant was an inmate. Therefore 85.59 is applicable. There is no outstanding medical expense. Claimant made a mistake to which he should be held responsible. Claimant threw away his "upper claspless partial" prothesis. If it did not fit as he alleged, then he should have made an arrangement with the dentist to make an adjustment. Claimant has lost four front teeth on his upper jaw which was caused by his injury that arose out of and in the course of his employment. He contends he should have a four tooth transplant if he is a medically suitable subject. Whether he is suitable for this type of surgery can only be determined by a competent professional dental surgeon. If he is not a suitable subject, claimant wants another prothesis for his missing four teeth lost as a result of the March 29,1983 injury. Claimant was temporarily incapacitated by this injury. It is not an unreasonable request for an attempt to be made to have a four tooth implant. If this is not medically advisable, it is unreasonable to expect the defendants to pay for another prothesis device to replace the one claimant threw away. If a 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." If claimant is entitled to permanent disability payments, what type? There is no scarring of the face, therefore, no scheduled loss. The loss of four front teeth is not a scheduled loss. Any disability is outside a scheduled member. There is no evidence of a reduction of claimant's earning capacity. Although the loss of teeth is permanent, there is no impairment rating and none seems appropriate. Impairment is only one thing to consider in an industrial disability. There is no evidence that claimant is not employable or less employable due to his injuries incurred on March 29, 1983. Claimant testified he fully recovered after 12 weeks from the injury while he was still incarcerated, except for the four teeth missing and an ache he has at times in his cheek and gum. To be an industrial disability, there must be a showing of a reduction of earning capacity. FINDINGS OF FACT 1. Claimant incurred an injury arising out of and in the course of his employment on March 29, 1983, when he was hit by a board coming out of a saw, hitting him in the cheek, jaw and teeth, resulting in certain injuries including the loss of four front teeth on his upper jaw. 2. There were no unpaid medical benefits at time of hearing. 3. There had been no benefits paid at the time of the hearing other than payment of all medical and dental bills that were incurred by claimant. 4. Claimant is still missing four front teeth on his upper jaw. 5. Claimant threw away an "upper claspless partial" prothesis that was provided by the defendants at no cost to the claimant. 6. Claimant has no injury to a scheduled member. 7. Claimant has no permanent impairment and no reduction in his earning capacity as a result of his injury on March 29, 1983. 8. Claimant was temporarily incapacitated in connection with a work assignment of value to the state or to the public under chapter 232, Code of Iowa. CONCLUSIONS OF LAW THEREFORE, it is concluded: Claimant is not entitled to healing period, temporary total disability nor permanent partial disability benefits. Claimant is not entitled to new replacement of "upper claspless partial" prothesis device. Claimant is entitled to an oral dental surgeon exam to determine claimant's suitability for a four tooth transplant, and if suitable to have the surgery transplant provided for him. ORDER THEREFORE, it is ordered: Defendants shall pay for the cost of an evaluation by an oral dental surgeon as to whether claimant is a suitable candidate for tooth implant. If claimant is a suitable subject, defendants shall pay for implantation of four teeth on the upper jaw of claimant. Defendants shall pay the costs of this action pursuant to Division of Industrial Services Rule 343-43.33. Defendants shall file an activity report upon payment of this award as required by this agency pursuant to Division of Industrial Services rule 343-3.1. Signed and filed this 17th day January, 1989. BERNARD J.O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Wallace D. Parrish Attorney at Law 604 Mulberry St, Ste 201 P.O. Box 85 Waterloo, IA 50704 Mr. Robert D. Wilson Assistant Attorney General Tort Claims Division Hoover Building Des Moines, IA 50319 2501; 2502; 2503 2504; 2500; 1108.50 2700 Filed January 17, 1989 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER ALLEN MICHAEL DONOVAN, Claimant, File No. 789214 vs. IOWA STATE MEN'S REFORMATORY, 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 2501; 2502; 2503; 2504; 2500; 1108.50; 2700 Claimant was an inmate at Iowa State Men's Reformatory when he was assigned to work at a state sawmill under correction officers' supervision. While working, a piece of cut wood shot out of saw machine, knocking out claimant's four front teeth. Only benefits awarded to claimant were entitlement to exam by oral surgeon to determine suitability of tooth implant and if medically advisable. Defendants to pay the cost of tooth implant. No denture benefit allowed as claimant threw away a prior denture provided for him. Iowa Code sections 85.36(10)(d) and 85.59 limits benefits when inmate is involved, i.e., (l) actual earnings are disregarded; (2) permanent or temporary incapacitation must be found; and (3) only benefits under 85.27 and 85.34(2)(3) can be awarded. BEFORE THE IOWA INDUSTRIAL COMMISSIONER RUSSELL J. KEENEY, File Nos. 789227/679931 789226 Claimant, A R B I T R A T I O N VS. A N D WILSON FOODS CORPORATION, R E V I E W - Employer, R E 0 P E N I N G Self-Insured, Defendant. D E C I S I 0 N INTRODUCTION This is a proceeding for the recovery of further benefits as a result of injuries claimant received while working for defendant on August 26, 1981, March 16, 1982 and February 7, 1984. The cases came on for hearing on January 30, 1987. Other than allowing the parties to file briefs the matter was considered fully submitted upon completion of the hearing. Although this case was heard by the undersigned while still a deputy, the undersigned is now the Industrial Commissioner and the agency will treat this decision as a final agency decision. The record consists of the testimony of claimant, LuRie Fairlie, Fred Nekola, Mary "Pat" Usher and Hugh MacMenamin, M.D.; claimant's exhibits 1 through 10 and defendant's exhibits A, B, E, F, J, K, L and portions of D, G, H, and I which were not objected to. ISSUE The issue presented by the parties is the extent of permanent partial disability related to claimant's injuries on August 26, 1981, March 16, 1982, and February 7, 1984. FACTS PRESENTED Claimant started working for defendant in May of 1975. On August 26, 1981 claimant received an injury arising out of and in the course of his employment with defendant when, while cutting cords, he strained his back. Claimant went to see the company nurse and company doctor. Claimant testified that he had no prior problems with his back. Claimant indicated that the pain he experienced was in his back right buttock and right leg. Claimant missed some work but then was released back to work on September 3. Claimant testified that his back pain, right buttock pain and right leg pain has continued and basically not changed since that date. On March 16, 1982 claimant had another injury when he fell KENNEY V. WILSON FOODS CORPORATION Page 2 backwards off a stand onto a metal grate. Claimant disclosed that he was off a couple of days but then returned to work. Claimant stated his back, right buttock pain and right leg pain continued as before the March 16, 1982 injury. On February 7, 1984 claimant was again injured when he fell down icy steps at work. Claimant stated he bounced down the steps on his buttock and back. Claimant returned to work the following day. Claimant revealed that his back pain, right buttock pain and right leg pain continued as before the injury. On March 21, 1985 claimant alleges he had another injury while working for Farmstead Foods when while bending down and lifting up four gambrels he felt a sharp pain like an electrical shock in his back. In a report to William R. Finn, M.D., dated December 19, 1978, W. J. Robb, M.D., stated: Russell J. Keeney was examined on December 15, 1978, in regard to persisting pain in his dorsal spine or thoracic spine as a result of injury incurred in September, 1978, in an automobile accident near Oelwein, Iowa. He was riding as a passenger in a van, the van was hit from behind and rolled over several times, and he sustained injury to his back. He was transferred from Oelwein to St. Luke's Hospital in Cedar Rapids and attended here. Subsequent to the accident, he developed some back pain, primarily mid or upper back area. He does not recall having had any problem with his neck. He had to remain off work on several occasions because of the pain in the back and in spite of improving some, he still has soreness in this area. He is working at this time, however. On examination he shows a full range of motion of flexion, extension, and lateral bending. He is moderately tender over the erector spinae muscle mass on the right from T4 to T12. This is a generalized tenderness, and I don't detect any trigger points. Full flexion of the spine did not seem to produce any symptoms. X-ray examination of the dorsal spine does not reveal any evidence of fracture-dislocation or abnormality of the bone or joint. KENNEY V. WILSON FOODS CORPORATION Page 3 Diagnosis: STRAIN, ERECTOR SPINAE MUSCLE MASS, DORSAL SPINE Treatment: The patient's work is probably heavy enough that it is straining the muscles some and constitutes some aggravation but on the other hand I see no reason why he should not continue working. I think the symptoms of which he complains are temporary in nature and will gradually subside. I did order some Nalfon, 300 mg. One q.i.d. to try for a period of two to three weeks and could be renewed if beneficial. I shall plan to check him once more in two months. Earl Y. Bickel, M.D., in a report dated October 3, 1985, stated: I saw Russell J. Keeney on March 17, 1982. I saw him on only one visit. Laboratory tests were obtained. A letter was sent to Wilson's on March 23, 1982, and at this time I felt that he had myositis or spondylosis. I was not able to explain the exact nature of his problem. He was placed on some Tolectin, and I felt that his problems would subside. At that time I did not anticipate any permanent disability. In his report dated September 22, 1986, John R. Huey, M.D., stated: I saw Russell Keeney in my office March 23, 1984 with a three week history of pain in his back. He stated he had had no prior treatment for back problems. He was working on a job at Wilson and Company which involved bending over and pulling. Most of his pain was in the mid lumbar area of the back and over the sciatic nerve. He was not having any complaint of numbness in the legs. He had seen the company doctor and also Dr. Bickel who placed him on Tolectin and obtained an arthritis profile which was negative. He continued to work with only occasional absences. On examination straight leg raising tests caused pain on the right at about 1800 and were negative on the left. No muscle weakness, spasm or rigidity was present. Reflexes were physiological and he could bend well in all directions. No sensory changes were noted. X-rays of his pelvis were negative for the hip area. Other than a spina bifida of the first sacral segment, the films were essentially negative of his lumbosacral spine. I felt he had a mildly congenital weak lumbar spine and advised William's exercises. He was told to try to live with and around his problem and to elevate his work. In summary, his findings were basically negative. The straight leg raising tests at 1801 were mainly on a muscular basis only. I could find no evidence of neurological deficit and I feel he has no permanency from this episode. In a report to claimant's attorney dated December 16, 1985, KENNEY V. WILSON FOODS CORPORATION Page 4 Hugh P. MacMenamin, M.D., stated: In reply to your request for information on the above patient, in having examined the documents you sent, I would state the following. My working diagnosis on Russell Keeney is chronic low back pain-chronic myofascial strain. His second diagnosis is degenerative disc disease with a very minimally bulging L-5 S-1 disc and spina bifida occulta of S-1. Specifically in answer to your question #1 whether the incident of August 21, 1981, pulling hogs, was a causal, contributing, or aggravating factor in producing his back complaints, I have no specific way of telling. From Mr. Keeney's history it sounds as though this was the case. However I do not have any medical records from this period of time. The incident of March, 1985 picking up gambrels and trolleys off the floor appeared to exacerbate his pain also. As to your question #3, in examining the records and in examining the modalities for issuing a permanent partial impairment rating, namely the American Medical Association Guide and the Manual for Orthopaedic Surgeons in evaluating permanent physical impairment, I do not find any evidence of a permanent partial impairment. As to your question #6 regarding Mr. Keeney's prognosis, he will probably continue with symptoms as he has in the past, that is, intermittent low back pain associated with exertion or activities as outlined in his history. I would not put any limitations on his future employment. I would encourage him to continue to work as he has been doing over the years. Dr. MacMenamin saw claimant on October 8, 1986. A report which appears to be dated October 16, 1986 states: 10/09/86: This patient is a 32-year-old white male who is seen for evaluation at the request of Wilson Foods. He is seen for evaluation of back pain and right buttock and thigh pain. He states he had the onset of his symptoms in August of 1980. His job at Wilson's Food at that time was cutting cords on hogs. This required him to be in a bent over position, with the knife in one hand and pulling with the other. He states at that time that production speeded up. Following this, he noted pain in his back in the right "hip" and the right buttock. He worked through the next several weeks and noted that he had to take a bath and relax every night in order to try to gain enough strength for work the next day. He states that he has very little sleep at night because of the pain. He has had a history of back pain prior to this, but it was mostly in the upper back and not in the lower back. He was seen at this office 6/l/79 by Dr. Strathman for KENNEY V. WILSON FOODS CORPORATION Page 5 back pain related to a motor vehicle accident. This was in the upper back. He was seen 3/23/84 by Dr. Huey at this office for trouble with his back related to work. He had pain in the right hip at that time. As stated, it had been bothering him for several months. In August, 1980, the patient states he saw the nurse at Farmstead Foods and subsequently saw Dr. Sloan and Dr. Solmonson. He was treated with medications with only minimal improvement. He continued having a lot of pain at night and difficulty working. He relates one time in 1980 he was reaching and felt sudden pain in the right thigh and hip. He has seen Dr. Bickel in and around 1983. I do not have a copy of the record of this. He had lower and upper back pain at that time. He states that he saw Dr. Bickel after he went to Union Hall and asked where he could receive help. He states that Dr. Bickel did tests for arthritis which were apparently negative. He went to physical therapy for two weeks. He states that he was diagnosed as having spina bifida which he says now has been disproven. He has had persistent low back pain and right buttock pain through the years. He has been absent on several occasions from work. He is presently working and does five different jobs. He states that he cannot stay in the same job more than several days, otherwise his back will bother him. EXAMINATION: He is a health-appearing white male. His forward flexion beyond 50 degrees produces discomfort. Lateral bending is 20 degrees bilaterally. His straight leg raising signs, on the right, he appears to resist any attempt at straight leg raising beyond 50 degrees. On the left, it is negative. He states that he gets back pain on the right side with attempts at straight leg raising. Ankle jerk and knee jerk are 2+ and symmetrical, bilaterally. Ankle dorsiflexion and toe dorsiflexion is normal. He notes sensation is decreased on the lateral aspect of the right foot. Patrick's test and pelvic rock tests are negative. From reviewing the notes, his CT scan done 5/11/85 at Mercy Hospital does appear to have a small bulging disk to the left side at the L5-Sl level. Lumbosacral spine films done at Mercy Hospital showed slightly narrowed L5-Sl. There are no other distinct abnormalities. IMPRESSION: 1. Degenerative disk disease, L5-Sl, with protrusion to the left. DISCUSSION: This is the opposite side from the patient's symptoms. I still do not have any distinct pathological cause for the patient's right-sided hip pain. Perhaps a follow up CT scan or even a myelogram would help to resolve this. The findings on testing, i.e., the left-sided disk protrusion, does not appear to match the patient's symptoms. We do know that he has degenerative disk disease at the L5-Sl level. At most, I would confer that this will give the patient a 5% impairment and loss of physical function to KENNEY V. WILSON FOODS CORPORATION Page 6 the whole body. On December 23, 1986 Dr. MacMenamin stated that after reviewing claimant's chart he still opined claimant's impairment to be five percent. On March 21, 1986 Jerome G. Bashara examined claimant on behalf of claimant and gave the following report. EVALUATION 3-21-86 This is an evaluation being seen for the Attorney Phillip Vonderhaar. The patient is accompanied today by a cover letter from Mr. Vonderhaar; a signed patientOs waiver; employee records (health records) from the Wilson Food Corporation/Farmstead Food Corporation of Cedar Rapids, Iowa; medical records from the Mercy Hospital Trauma Center in Cedar Rapids, Iowa; medical records from the Lynn County Orthopedists, P.C.; medical records from Dr. Huey; medical records from Dr. MacMenamin; medical records from the Frank T. Hazelton Physical Therapists; a deposition taken on Russell J. Keeney; medical records from Dr. Robb and Dr. Bickel; medical records from Dr. Finn's office in Cedar Rapids, Iowa; x-rays from the Cedar Rapids Radiologists P.C.; x-rays from the Orthopaedic Surgeons, P.C. in Cedar Rapids; and x-rays from the Cedar Rapids Mercy Hospital. H.P.I.: This is a 31 year old white male who has sustained multiple injuries to his lower back while at work for the Wilson Foods Corporation, now the Farmstead Food Corporation of Cedar Rapids, Iowa. The following history was obtained both from the patient and corroborated with the above medical records which were researched. He had some intermittent back discomfort, primarily in his neck and thoracic region in the late 1970Os. Sometime in mid July of 1981, he developed low back pain with pain radiating down his right lower extremity. Sometime between July and August 26 of 1981, he began seeing the company nurse on a regular basis for complaints of persistent back pain with radiation down his right lower extremity which he felt was brought on and aggravated by his job in reaching and pulling hogs while at work. He has been treated nonoperatively throughout the past 5 year period with physical therapy, medication and restricted activity [sic]. He has had several other specific injuries to his back since August and July of 1981. On March 16, 1982 while at work he fell approximately 2 feet off of a stand and landed on a metal grate. He was seen at that time at the Mercy Hospital Trauma Center by Dr. Sawyers. He was treated for abrasions to his left hand and both elbows. No x-rays of his lumbar spine were taken at that time, although the patient states that he fell because of pain in his lower back. He was seen by Dr. Earl Bickel in Cedar Rapids on March 17, 1982. Dr. BickelOs primary notes refer to his problem from that accident being related to the cervical KENNEY V. WILSON FOODS CORPORATION Page 7 spine and thoracic spine regions. Over the last 5 year period this.patient has experienced intermittent pain down through his lower back, right Sl Joint, with intermittent pain radiating down his right lower extremity. On 2-7-84, while he was attempting to go down some ice covered metal steps, he fell and bounced down approximately 14 metal grated steps. He complained of pain in his left elbow, left scapular region and in his back. X-rays were taken at the Mercy Hospital Trauma Center in Cedar Rapids, Iowa. He was released and instructed with ice and aspirin. The patient was seen by Dr. John Huey in Cedar Rapids on 3-23-84, Orthopeadic [sic] Surgeons, P.C. for complaints of low back pain. X-rays were taken at that time and he was started on a William's back exercise program. On 3-21-85 he was bending over to pick up some gambriels [sic], weighing approximately 3 lbs. each - 2 in each hand, when he developed some severe low back pain and this time the pain radiated down his left lower extremity. The patient was seen by Dr. MacMenamin. X-rays were reviewed from Mercy Hospital. A CT Scan was ordered. A diagnosis at that time was made of a herniated disc at the L5-Sl level, primarily left sided herniation. The patient continues to have back and primarily right lower extremity pain aggravated by lifting, twisting or bending and somewhat relieved by rest. KENNEY V. WILSON FOODS CORPORATION Page 8 P.M.H.: OPERATIONS: None MEDICATIONS: None DRUG ALLERGIES: None F. & S.H.: He is married and employed at Farmstead as a production worker. P.X.: Height: 5O10" Weight: 182 lbs. He has mild lumbar paraspinous muscle spasm, particularly on the right. Mild tenderness at the L5-Sl interspace posteriorly. His straight leg raising produces back and buttock pain on the right at 60 degrees and is negative on the left at 80 degrees. He has tight hamstrings bilaterally. A neurological exam of the lower extremities is normal. X-RAYS: X-rays were reviewed from the Cedar Rapids Radiologists, P.C. dated 3-9-82, thoracic spine normal. X-rays of the cervical spine dated 3-9-82, reveal flattening of the normal cervical lordosis, otherwise they appear normal. X-rays were reviewed from the Orthopaedic Surgeons, P.C. in Cedar Rapids dated 3-23-84 of the lumbosacral spine show some mild narrowing of the L5-Sl disc space and a spina bifida occulta of Sl. X-rays were reviewed from the Cedar Rapids Mercy Hospital, a CT Scan dated 5-10-85, there appears to be a herniated disc at the L5-Sl level, centrally and to the left. DIAGNOSIS: 1. Herniated lumbar disc L4-Sl. I would give the patient a 10% permanent partial physical impairment of his body as a whole related to the above diagnosis. It is impossible to determine how much of the permanency rating is attributed to each of the incidents which occurred at work, but feel that the 10% permanency rating is related to some increased symptoms which started in July or August of 1981 and progressively got worse until the present time. KENNEY V. WILSON FOODS CORPORATION Page 9 APPLICABLE LAW An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(l). The claimant has the burden of proving by a preponderance of the evidence that the injuries of August 26, 1981; March 16, 1982; and February 7, 1984 are causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 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). 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); Yeager v. Firestone Tire & Rubber, Co., 253 Iowa 369, 112 N.W. 2d 299 (1961); Ziegler v. United States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 (1960). See also Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). ANALYSIS Claimant has failed to meet his burden in proving his injuries of March 16, 1982 and February 7, 1984 resulted in any permanent impairment or disability. Claimant's own testimony indicates that claimant's back, right buttock and right leg pain was not changed as a result of either of these injuries. Furthermore, the greater weight of medical evidence supports such a conclusion. The real question then is, does claimant have any permanent impairment or disability as a result of his injury on August 26, 1981? From the claimant's own statements and the medical evidence that has been presented claimant's back complaints did predate his August 26, 1981 injury. Not only was claimant involved in a motor vehicle accident, claimant had pain in the KENNEY V. WILSON FOODS CORPORATION Page 10 right side of his back (Defendant's Exhibit F, page 150) and the nurses notes indicate that claimant was having low back complaints as early as June of 1981. By claimant's own testimony he was having problems sleeping prior to his August 26, 1981 injury. There are also incidents subsequent to his August 26, 1981 injury about which not much has been said. It would appear that claimant injured his back shoveling snow (Def. Ex. F, p. 152). Furthermore, the greater weight of medical evidence indicates that claimant had no permanent impairment as a result of the August 26,.1981 injury. Dr. Bickel opined claimant had no permanent disability on March 17, 1983. In a letter dated December 16, 1982 Dr. MacMenamin, a treating physician, indicated he could find no evidence of permanent partial impairment. More weight is given to claimant's treating physicians than Dr. Bashara who merely examined claimant. Therefore, claimant only met his burden in proving he had a temporary aggravation of a preexisting condition. Although there is evidence that might support a decision in favor of claimant as a result of his injury of March 21, 1985 that matter is not before the undersigned. It should be pointed out that even if claimant had shown a permanent impairment as a result of his injury on August 26, 1981 he would still not have prevailed. Permanent impairment is only one of the considerations in determining industrial disability. Claimant returned to work and continued to do that work at least up to March 21, 1985 in the same position he held prior to his August 26, 1981 injury. Weighing all the factors that one considers in determining industrial disability, claimant failed to prove any disability resulted from the August 26, 1981 injury or that he had a reduction in his earning capacity. FINDINGS OF FACT AND CONCLUSIONS OF LAW WHEREFORE, based on the evidence presented and the principles of law previously stated, the following findings of fact and conclusions of law are made: FINDING 1. On August 26, 1981 claimant received an injury while working or defendant. FINDING 2. Prior to his injury on August 26, 1981 claimant had problems with his back. FINDING 3. As a result of his August 26, 1981 injury claimant missed work for which he has been compensated. FINDING 4. Claimant has no permanent impairment as a result of his August 26, 1981 injury. CONCLUSION A. Claimant failed to prove that his August 26, 1981 injury resulted in any permanent disability. CONCLUSION B. Claimant did meet his burden in proving a temporary aggravation of his preexisting condition. FINDING 5. On March 16, 1982 claimant was injured while working for defendant. FINDING 6. As a result of his March 16, 1982 injury, claimant KENNEY V. WILSON FOODS CORPORATION Page 11 missed work for which he has been compensated. FINDING 7. Claimant has no permanent impairment as a result of his March 16, 1982 injury. CONCLUSION C. Claimant failed to prove that his March 16, 1982 injury resulted in any permanent disability. FINDING 8. On February 7, 1984 claimant was injured while working for defendant. FINDING 9. Claimant's medical bills were paid. FINDING 10. Claimant's injury of February 7, 1984 did not result in claimant qualifying for temporary total disability benefits because he did not lose the required time. FINDING 11. Claimant's injury of February 7, 1984 resulted in no permanent impairment. CONCLUSION D. Claimant failed to prove his February 7, 1984 injury resulted in any permanent disability. ORDER THEREFORE, claimant is to take nothing as a result of these proceedings. Costs are taxed to defendant pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 29th day of January, 1988. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. Phillip Vonderhaar Attorney at Law 840 Fifth Avenue Des Moines, Iowa 50309-1398 Mr.,John M. Bickel Mr. Ralph W. Gearhart Attorneys at Law P.O. Box 2107 Cedar Rapid, Iowa 52406-2107 1402.40 - 2906 Filed January 29, 1988 DAVID E. LINQUIST BEFORE THE IOWA INDUSTRIAL COMMISSIONER RUSSELL J. KEENEY, File Nos. 789227/679931 789226 Claimant, A R B I T R A T I 0 N VS. A N D WILSON FOODS CORPORATION, R E V I E W - Employer, R E 0 P E N I N G Self-Insured, Defendant. D E C I S I 0 N 1402.40 Claimant failed to establish that any of his work injuries resulted in permanent impairment or industrial disability. 2906 Although this case was heard by the undersigned while still a deputy, the undersigned became the industrial commissioner and the agency treated this decision as a final agency decision. BEFORE THE IOWA INDUSTRIAL COMMISSIONER CRAIG A. DANN, Claimant, VS. File No. 789249 ALUM.ALINE CUTLERY CO., INC., A P P E A L Employer, D E C I S I 0 N and IOWA SMALL BUSINESS WORKERS COMPENSATION GROUP, Insurance Carrier, Defendants. Claimant appeals from a ruling sustaining defendants' motion for summary judgment. The record on appeal consists of the filings and pleadings of the parties. Review of the record discloses the ruling of the deputy was appropriate and it is adopted as the final ruling. WHEREFORE, defendants' motion for summary judgment is sustained and claimant's petition is dismissed. All costs are taxed to claimant. Signed and filed this 15th day of January, 1987. ROBERT C.LANDESS INDUSTRIAL COMMISSIONER Copies To: Mr. John Behnke Attorney at Law Box F Parkersburg, Iowa 50665 Mr. Paul C. Thune Attorney at Law 300 Fleming Bldg. 218 Sixth Avenue Des Moines, Iowa 50309 1100-1402.30-2902 Filed January 15, 1987 ROBERT C. LANDESS BEFORE THE IOWA INDUSTRIAL COMMISSIONER CRAIG A. DANN, Claimant, VS. File No. 789249 ALUMALINE CUTLERY CO., INC., A P P E A L Employer, D E C I S I 0 N and IOWA SMALL BUSINESS WORKERS COMPENSATION GROUP, Insurance Carrier, Defendants. 1100 - 1402.30 - 2902 Claimant's statements indicating injury received outside of employment supported summary judgment for defendants. BEFORE THE IOWA INDUSTRIAL COMMISSIONER RICHARD CARPENTER, Claimant, File No. 789333 vs. C. W. TRANSPORTATION, A R B I T R A T I 0 N Employer, D E C I S I 0 N and LIBERTY MUTUAL INSURANCE CO., Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Richard Carpenter, claimant, against C. W. Transportation, employer, and Liberty Mutual Insurance Company, insurance carrier, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained on February 7, 1985. This matter came on for hearing before the undersigned deputy industrial commissioner May 12, 1988. The record was considered fully submitted at the close of the hearing. The record in this case consists of the testimony of claimant and Louise Carpenter, his wife; and joint exhibits 1 through 7, inclusive. ISSUES Pursuant to the prehearing report and order submitted and approved May 12, 1988, the following issues are presented for resolution: 1. Whether the work injury is the cause of permanent disability; 2. The nature and extent of claimantOs entitlement to permanent partial disability benefits, if any; and, 3. The applicability of the odd-lot doctrine. FACTS PRESENTED Claimant, a truck driver, sustained an injury which arose out of and in the course of his employment on February 7, 1985, when, while unloading a trailer, he felt his shoulder "snap." Claimant testified that although he felt pain, he continued working and that he did not seek medical care until approximately two weeks later when he saw a Dr. McCoy of the Ankeny Emergency Clinic who "took" him off work. Claimant stated that at this time he could not shift the gears in his truck and that it hurt to turn the steering wheel. Claimant explained that he was referred to Dr. Flapan who gave him a "shot in the shoulder" (which claimant felt helped for a day) and that Dr. Flapan told him to return to work. Claimant stated he did return to work, continued treating with the doctors at the Ankeny Emergency Clinic, that he was in "constant" pain which was getting worse in that he could no longer lift, reach or shift gears and that he was compensating with his left arm. Claimant testified he was taken off work again in September 1985 and referred to Dr. Friedgood by the Ankeny doctors who, in turn, referred him to Dr. Neff. Claimant stated he has not worked at all since September 11, 1985 and that the strength in his arm has been affected. Claimant testified that Dr. Neff ran several tests and that he had surgery on his A/C joint in October 1985 which "did not help" since he still had pain and that any pressure placed on his shoulder, even that from a shirt that he wore, caused pain. Claimant described a second surgery in January 1986 where part of his collar bone was removed and that currently he suffers from a constant ache from his elbow to his shoulder to the back of his neck to the bottom of his head, of limited ability to move his arm, that his hands feel swollen at times and that sometimes the tips of his fingers feel numb. Claimant recalled he has had chest pain in his collar bone area and that he once went to the emergency room as a result of this pain. Claimant also described that his shoulder "locks" on him and that when it does he requires his wife's assistance to move it back into position. Claimant testified to limited home activities, that what he does he must do left-handed and that he "cannot hardly lift anything." Claimant stated he "does not sleep that much" waking two or three times during the night, that his mind has a tendency to wonder as a result of the pain and that he uses hot showers, hot pads and pain medication every morning to counteract the pain. Claimant stated there was "no way" he could drive straight truck or semi-tractors/trailers, or that he could load or unload, that he has not looked for work as he was told his "working days are over" and that he has not had any vocational rehabilitation. Claimant testified he was in "good health" prior to this injury although he had had back surgery in 1962 after which he was returned to work without restriction, another back surgery in 1969 after which he had no problems, and that he had hurt his neck in 1975 or 1976 and was paid a seven percent disability as a result thereof. Claimant stated that after this surgery he had no problems and returned to work without restriction. Claimant did indicate that in 1980 his right thumb was caught in a dock plate while at work and that he also had surgery for its repair. CARPENTER V. C. W. TRANSPORTATION PAGE 3 On cross-examination, claimant revealed he suffers from emphysema but denied he was told to quit smoking (although he acknowledged he was told to cut down) or that if he did quit smoking it would help the pain in his chest. Claimant explained he receives a pension of $700 per month and social security disability benefits of $585 per month. Claimant testified he last saw Dr. Neff in approximately March 1988 and that he did not have a current appointment to see him in the future. Louise Carpenter testified that claimant's previous back surgeries did not interfere with either his ability to do his job or his work around the home but that since his 1985 injury his disposition has changed in that he is "grumpier" and that it is harder for him to concentrate and to think. Mrs. Carpenter stated that claimant lies down, showers, uses heating pads and medication to deal with the pain he is feeling, that claimant drops things, that he does not sleep "much" and that his shoulder locks. The medical records of Scott B. Neff, D.O., orthopedic surgeon, reveal.claimant was first seen on September 25, 1985 and was noted to have: ...minimal,motion in his right shoulder, weakness on active abduction, and a markedly positive impingement maneuver with forward flexion of the shoulder. Passive internal and external rotation in the elevated position also reproduces his pain. He has pain over the right acromioclavicular joint, and it appears somewhat more prominent than that of the left. The left side has full motion without abnormalities, and has active strong abduction. (Joint Exhibit 1, page 5) Dr. Neff recommended a bone scan with attention to the A/C joints, arthrogram of the right shoulder and plain x-rays of the A/C joints. The arthrogram did not show a rotator cuff tear but did show "impingement from largo subacromial and subclavicular osteophytes" with "some element of disuse atrophy of the shoulder following these months and months of pain." The bone scan showed CARPENTER V. C. W. TRANSPORTATION PAGE 4 increased uptake in both the acromioclavicular joints, slightly greater on the right and Dr. Neff recommended "excision of the distal clavicle, subacromial decompression, excision of the subacromial bursa." Claimant was referred for outpatient surgery on October 31, 1985 and on November 6, 1985, Dr. Neff noted claimant appeared to be healing nicely but that he would require a "significant rehabilitative process because of the magnitude of his surgery" and "age." By the end of November, claimant was reporting tenderness at the base of his neck and over the right side of the shoulder so that he could not stand to have his shirt touch it. Dr. Neff stated: I am not certain what is occurring, and this patient appears to me to be clinically depressed, and frustrated. I have no idea why he should be having tenderness in the skin from his shirt. There is no swelling or skin changes in the hand, and he does not appear to be having a reflex sympathetic dystrophy." (Jt. Ex. 1, p. 8) Dr. Neff later recommended a CT scan of the shoulder which showed some degenerative changes in his neck without evidence of disc herniation. On January 14, 1986, claimant underwent distal clavicle resection of the right A/C joint and approximately one month later Dr. Neff noted claimant's shoulder motion had markedly improved but that claimant continued to have persistent point tenderness in the A/C joint. Dr. Neff found claimant to be "doing relatively well" although the second surgery was expected to "somewhat slow down the recovery and rehabilitative process." In March 1986, claimant was noted to be markedly improved but still suffering from an aching and on May 7, 1986, Dr. Neff wrote: In light of his persistent symptoms, I do not believe it is going to be possible for him to return to his job of loading trucks, and feel that he should be given a rating and considered for alternative employment. I don't know whether he is trainable at his age and educational background to do anything else. (Jt. Ex. 1, p. 15) Dr. Neff "strongly supported" another opinion stating: "I wonder if we are dealing with an overlay depression type problem." In May 1986, claimant was sent to Iowa City for evaluation and in August 1986, he was sent to the Mayo Clinic. Neither of the doctors he saw had any recommendations nor solutions to claimant's symptoms although Brian F. Kavanagh, M.D., of the Mayo Clinic opined claimant "had, basically, cervical tension myalgia" as well as some "impingement-type bursitis, tendinitis in the shoulder." On April 18, 1987, Dr. Neff concluded: The neck pain has occurred following treatment of his shoulder. I am not certain whether or not he would have developed neck muscle pain anyway or whether he was having some when I first saw him and it was not bothering him to a very great degree because the CARPENTER V. C. W. TRANSPORTATION PAGE 5 symptoms in his shoulder were masking the less intense symptoms in his neck. .... Certainly it would not be fair to include any possible sequelae of his neck fusion into a rating on the shoulder, and because he has had a neck fusion and will without a doubt have some symptoms from that I think it would be fair to state that he has an impairment rating of 25% to the body as a whole. Five-percent of that rating to the body as a whole would be due to the range of motion loss and associated symptoms in his neck which were due to his previous surgery on the neck. Twenty percent accordingly of the impairment rating would be related to his shoulder injury subsequent surgical treatment and resulting range of motion loss and pain. (Jt. Ex. 1, p. 19) Thomas W. Bower, L.P.T., saw claimant for a functional capacity evaluation on or about April 24, 1986 and stated: This patient obviously has incurred a rather substantial injury to the right shoulder which has rendered his right upper extremity, at least from a shoulder standpoint, useless. All and all he has not had a particularly good result from the surgery. I have explained to Mr. Carpenter that a lot of the problems have resulted because he had a significant injury to the right shoulder and his upper extremity stamina is not certainly that of a 20-year-old gentleman. Never-the-less, Mr. Carpenter has put forth maximum effort and is doing all that we have asked him to do and has been a very hard worker in the rehabilitation process. Basing our clinical exam with the Cybex Evaluation, it is certainly my opinion that this gentleman will never return back to driving semiOs and specifically unloading and loading these vehicles. He will not be able to lift any heavy weights above a 90 degree position and it is doubtful that he will even be able to move beyond the 72 degrees of active motion which have been displayed by the Cybex. Even light articles are going to be a cumbersome problem for this gentleman. This is certainly substantiated by no torque development on either strength or endurance settings of the Cybex. It appears he would be able to do some useful work that requires only elbow flexion and extension and all movements below any specific elevation process of this shoulder. I do have some concern relative to the numbness and tingling that he is experiencing in his right hand. EMG's in the past have not demonstrated any changes from a neural standpoint. (Jt. Ex. 1, p. 37) Robert A. Hayne, M.D., reported claimant was under his care in 1962 when claimant underwent a laminectomy for treatment of a CARPENTER V. C. W. TRANSPORTATION PAGE 6 herniated disc in the lumbar area, in 1976 when claimant underwent an anterior cervical fusion for treatment of a herniated disc at the C5,6 interspace and that claimant was last seen on February 5, 1979 for pain in the back of the neck and down the lateral aspect of the left upper extremity. Dr. Hayne stated on August 20, 1987: [I]t is my firm opinion that his present symptoms referable to his shoulder date back to the injury on the 7th of February, 1985. I do not feel that there is any causal relationship between the symptoms that required a cervical fusion in 1976 and his present shoulder injury and complaints. (Jt. Ex. 1, p. 51) 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). The claimant has the burden of proving by a preponderance of the evidence that the injury of February 7, 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). The expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The greater weight of evidence establishes a causal connection between claimant's injury of February 7, 1985 and the disability on which claimant now bases his claim. Although it cannot be the subject of dispute that claimant had some injury prior to this 1985 injury, both Drs. Neff and Hayne conclude these prior injuries did not cause claimant's current symptoms. These opinions, taken in conjunction with claimant's own testimony, allows claimant to meet his burden of proof on the issue of causal connection., Permanent partial disabilities are classified as either scheduled or unscheduled. A specific scheduled disability is evaluated by the functional method; the industrial method is used CARPENTER V. C. W. TRANSPORTATION PAGE 7 to evaluate an unscheduled disability. Martin v. Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLongOs Sportswear, 332 N.W.2d 886, 887 (Iowa 1983). If a claimant contends he has industrial disability he has the burden of proving his injury results in an ailment extending beyond the scheduled loss. Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964). If a 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." A shoulder injury, however, is not scheduled, being an injury to the body as a whole. Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 (1949). Of first concern is whether or not claimant's injury to his shoulder is limited to the schedule or extends to the body as a whole which would allow for a determination of industrial disability. Based upon the situs of the injury and the surgery, as well as claimant's own testimony of subjective symptoms beyond the upper extremity, it is accepted that claimant's injury extends beyond the schedule and that claimant has sustained an injury to the body as a whole. See Alm, supra; Nazarenus v. Oscar Mayer & Co., II Iowa Industrial Commissioner Report 281 (Appeal Decision 1982) and Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986). Therefore, the question becomes the extent of claimant's permanent disability and concomitantly, whether claimant is an odd-lot employee under Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985). Under the odd-lot doctrine, which was formally adopted by the Iowa Supreme Court in Guyton, supra, a worker becomes an odd-lot employee when an injury makes the worker incapable of obtaining employment in any well-known branch of the labor market. An odd-lot worker is thus totally disabled if the only services the worker can perform are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist. Id., citing Lee v. Minneapolis Street Railway Company, 230 Minn.315, 320, 41 N.W.2d 433, 436 (1950). The rule of odd-lot allocates the burden of production of evidence. If the evidence of degree of obvious physical impairment, coupled with other facts such as claimant's mental capacity, education, training or age, places claimant prima facie in the odd-lot category, the burden should be on the employer to show that some kind of suitable work is regularly and continuously available to the claimant.. Certainly in such a case it should not be enough to show that claimant is physically capable of performing light work and then round out the case for non-compensable by adding a presumption that light work is available. Guyton, 373 N.W.2d at 105. When a worker makes a prima facie case of total disability by producing substantial evidence that the worker is not CARPENTER V. C. W. TRANSPORTATION PAGE 8 employable in the competitive labor market, the burden to produce evidence of suitable employment shifts to the employer. If the employer fails to produce such evidence and the trier of fact finds the worker fails in the odd-lot category, the worker is entitled to a finding of total disability. Even under the odd-lot doctrine, the trier of fact is free to determine the weight and credibility of the evidence in determining whether the worker's burden of persuasion has been carried. Only in an exceptional case would evidence be sufficiently strong to compel a finding of total disability as a matter of law. Guyton, 373 N.W.2d at 106. The court went on to state: The commissioner did not in his analysis address any of the other factors to be considered in determining industrial disability. Industrial disability means reduced earning capacity. Bodily impairment is merely one factor in a gauging industrial disability. Other factors include the worker's age, intelligence, education, qualifications, experience, and the effect of the injury on the worker's ability to obtain suitable work. See Doerfer Division of CCA v. Nicol, 359 N.W.2d 428, 438 (Iowa 1984). When the combination of factors precludes the worker from obtaining regular employment to earn a living, the worker with only a partial functional disability has a total disability. See McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 192 (Iowa 1980). In order to conclude that claimant is an odd-lot employee under Guyton, it must be found that claimant has made a prima facie case of total disability by producing substantial evidence that he-is not employable in the competitive labor market. While it is clear that claimant has both a permanent impairment and restrictions on his employability, it cannot be concluded that claimant has shown he is unemployable within the competitive labor market. Claimant has presented no evidence that he has, in any way, sought any type of competitive employment. Merely because claimant can no longer drive a truck does not necessitate a conclusion that claimant is not employable. Therefore, the principles of Guyton are not applicable. The question turns to the extent of claimant's permanent partial disability. Dr. Neff, working alone and with Thomas Bower, L.P.T., has found claimant to have both a functional permanent impairment and permanent restrictions in his employability. Functional disability is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. This is so as impairment and disability are not synonymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the later to anatomical or functional abnormality or loss. Although loss of function is to CARPENTER V. C. W. TRANSPORTATION PAGE 9 be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial disability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, -motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial CARPENTER V. C. W. TRANSPORTATION PAGE 10 disability. It therefore becomes necessary for the deputy to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial disability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985). Claimant is currently 58 years old and has an eleventh grade education, never having acquired his GED. Claimant was 55 at the time of his injury and may have had many years in his working career ahead of him. His loss of future earnings from employment due to his disability may not be as severe as would be the case with a younger individual. See Becke v. Turner-Busch, Inc., 34 Biennial Report, Iowa Industrial Commissioner 34 (1979) However, his age could prove to be a problem in securing employment in alternative vocations. Claimant has principally earned his living as a truck driver which work he is currently precluded from performing as a result of the restrictions and limitations imposed by Dr. Neff. Claimant has a history of back and cervical problems; however, none of these problems ever precluded him from engaging in his chosen occupation. The undersigned does find it curious that claimant appears to have recovered easily from these previous injuries and not to have recovered at all. from the injuries sub judice. Perhaps this is due to motivation, but perhaps not. However, both the reports of Dr. Neff and Mr. Bower are replete with references to claimant's age. These references and claimant's motivation do not go without note. Claimant appears to be of at least average intellectual ability and to possess the academic/vocational skills which may be necessary to reenter the labor market if he should so desire. Claimant also possesses supervisory skills from the five years he worked as a dock area supervisor at All American. Claimant has not, however, investigated alternative employment candidly acknowledging he has not even looked for work. Claimant has not been employed since September 11, 1985, consequently, has no earnings and is currently receiving pension benefits. Notwithstanding, the record is clear that as a result of the injury of February 7, 1985, claimant has suffered an actual loss of earnings and a loss of earning capacity. Considering then all the elements of industrial disability enumerated above, it is concluded that claimant has sustained a permanent partial disability of 50 percent for industrial purposes. However, claimant had an industrial disability of seven percent as a result of the injury to his neck sustained in 1975/76. Therefore, it is determined that seven percent of claimant's 50 percent disability is attributable to his previous injury and defendants are liable in this case for permanent partial disability benefits based upon a 43 percent industrial disability therefore entitling claimant to 215 weeks of permanent partial disability benefits. FINDINGS OF FACT Wherefore, based on all the evidence presented, the following findings of fact are made: 1. Claimant sustained an injury which arose out of and in the course.of his employment on February 7, 1985. 2. As a result of the injury, claimant underwent surgery on October 31, 1985. CARPENTER V. C. W. TRANSPORTATION PAGE 11 3. When claimant's symptoms failed to dissipate, he underwent a second operation on January 14, 1986, a distal clavicle resection of the right A/C joint. 4. Claimant continues to experience pain from his elbow to his shoulder to the back of his neck to the bottom of his head, and a limited ability to move his arm. 5. Claimant is 58 years old with an eleventh grade education who has earned his living primarily as a truck driver. 6. Claimant has a permanent impairment as a result of the work injury. 7. Claimant has permanent work restrictions as a result of the work injury which precludes him from engaging in the occupation of a truck driver. 8. Claimant has previous injuries which resulted in a laminectomy for treatment of a herniated disc in 1962, another back surgery in 1969, an interior cervical fusion for treatment of a herniated disc at the C5,6 interspace in 1976. 9. Claimant was paid disability benefits as a result of the 1976 cervical fusion in the amount of seven percent. 10. Claimant has not worked since September 11, 1985 and is currently receiving pension benefits and social security disability benefits. 11. Claimant has not attempted to secure work since September 11, 1985. 12. Claimant possesses skills necessary to secure employment labor market. 13. Claimant sustained an injury to his shoulder which upper extremity and into the body as a whole. 14. Claimant has sustained an industrial disability of 50 percent, seven percent of which is attributable to his previous injury. 15. As a result of the injury of February 7, 1985, claimant has an industrial disability of 43 percent. CONCLUSIONS OF LAW Wherefore, based on the principles of law previously stated, the following conclusions of law are made: 1. Claimant has established that a portion of the disability on which he now bases his claim is causally connected to his work injury of February 7, 1985. 2. Claimant has not established that he is an odd-lot employee. 3. Claimant has established he has an industrial disability of 50 percent, seven percent of which is attributable to a CARPENTER V. C. W. TRANSPORTATION PAGE 12 previous injury. ORDER THEREFORE, IT IS ORDERED: Defendants shall pay unto claimant two hundred fifteen (215) weeks of permanent partial disability benefits at the stipulated rate of three hundred thirty and 04/100 dollars ($330.04) per week commencing June 12, 1986. Defendants shall receive full credit for all permanent partial disability benefits previously paid. Payments that have accrued shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. A claim activity report shall be filed upon payment of this award. Costs of this action are assessed against defendants pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 24th day of October, 1988. DEBORAH A. DUBIK DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Channing Dutton Attorney at Law West Towers Office Complex 1200 35th St, Ste 500 West Des Moines, IA 50265 Mr. W. C. Hoffmann Attorney at Law 1000 Des Moines Building Des Moines, IA 50309 1803; 1803.1; 4100 Filed October 24, 1988 Deborah A. Dubik BEFORE THE IOWA INDUSTRIAL COMMISSIONER RICHARD CARPENTER, Claimant, File No. 789333 vs. A R B I T R A T I 0 N C. W. TRANSPORTATION, D E C I S I 0 N Employer, and LIBERTY MUTUAL INSURANCE CO., Insurance Carrier, Defendants. 1803; 1803.1 Claimant sustained an injury to his shoulder and was found to have sustained an injury to the body as a whole. Claimant's injury resulted in two surgical procedures, a functional impairment of 20% and restrictions which precluded him from engaging in his regular employment. Claimant had limited range of motion of his right upper extremity and symptoms into his neck and back. Claimant, age 58 with an eleventh grade education, found to have sustained an industrial disability of 50%, seven percent of which was attributable to a previous injury. 4100 Claimant, who made no attempt to secure employment since his injury, found not to have met his burden of proof that he was an odd-lot employee. BEFORE THE IOWA INDUSTRIAL COMMISSIONER RAMON TENEYUQUE, Claimant, vs. FILE NO. 789389 A R B I T R A T I 0 N SIVYER STEEL CORP. D E C I S I O N Employer, and AETNA CASUALTY & SURETY, Insurance Carrier, Defendant. INTRODUCTION This is a proceeding in arbitration brought by Ramon Teneyuque, claimant, against Sivyer Steel Corporation, employer, and Aetna Casualty & Surety Company, insurance carrier, defendants, for benefits as the result of an injury that Occurred on February 25, 1985. A hearing was held in Davenport, Iowa on February 19, 1988 and the case was fully submitted at the close of the bearing. The evidence consists of the testimony of Ramon Teneyuque (claimant), Juanita Teneyuque (claimant's wife), and joint exhibits A through I. STIPULATIONS The parties stipulated to the following matters: That an employer-employee relationship existed between claimant and employer at the time of the injury. That claimant sustained an injury on February 25, 1985, that arose out of and in the course of employment with employer. That the injury was the cause Of temporary disability and that claimant was paid temporary disability benefits for one and one-sevenths weeks from March 3, 1985 to March 11, 1985 and that temporary disability is no longer an issue in this case. That the commencement date for permanent partial disability benefits, in the event such benefits are awarded, is to be March 11, 1985. That the rate of compensation in the event of an award is $335.05 per week. TENEYUQUE V. SIVYER STEEL CORP. Page 2 That the provider of medical services and supplies would testify that their charges are fair and reasonable and defendants are not offering contrary evidence. That defendants make no claim for employee nonoccupational group plan benefits or permanent partial workers' compensation benefits paid prior to hearing. That there are no bifurcated claims. ISSUES The parties submitted the following issues for determination at the time of the hearing. Whether the injury was the cause of permanent disability. Whether claimant is entitled to permanent partial disability benefits; and if so, the nature and extent of benefits, to include whether claimant is entitled to scheduled member benefits or industrial disability benefits. Whether claimant is entitled to certain medical expenses, more specifically the charges of Albert Zimmer, M.D., and Mercy Hospital. SUMMARY OF THE EVIDENCE All of the evidence was examined and considered. The following is a summary of the pertinent evidence. Claimant is age 43 and has been employed by employer for 14 years. He is currently employed as an arc air operator melting steel with a torch. This job requires him to wear goggles with straps which must fit very tightly on his nose to keep dirt, smoke and flying sparks away from his eyes. On February 25, 1985, while operating an electric hoist to move two castings, one hook came out of the hole and caught on the bottom of the rail. When it came loose, it sprang up and struck claimant a very hard blow in the nose. Claimant could feel blood in his throat when he tilted his head back. He went to First Aid and was taken to the doctor later that night. The doctor prescribed pain pills and sent him back to work the following day. Claimant continued to do his regular job. The goggles hurt his nose real bad and the pain pills did not work. Claimant said that he continued to complain to employer about his pain and was sent to a specialist who performed surgery on his nose. He was off work several days. He returned to work on March 11, 1985 and has continued to suffer a great deal of pain in his nose. The pain pills do not alleviate the pain. Claimant said that the nose specialist said that the pain was from scars from the operation and that there was nothing more he could do about this pain. Claimant said that he then sought out his own personal physician. TENEYUQUE V. SIVYER STEEL CORP. Page 3 Claimant testified that the goggles still press down and smash his nose. This is because the goggles must be worn very tightly to be effective in keeping dirt, smoke and sparks away from his eyes. The pressure of the glasses against his nose causes pain in his nose, down the front of his face on both sides, up into his head and even in the back of his head. The tip of his nose is still sore to any slight touching of any kind. He can no longer dry his face with a towel in the normal manner by wiping because the tip of his nose is extremely pain sensitive. He must very carefully blot it dry by barely touching it. Cold weather outdoors against his nose also causes pain. Claimant testified that his personal physician said that the nerve is smashed and there is no surgery or medical treatment to eliminate or reduce the pain. The company nurse told him that there is nothing more the company can do and that if he needed additional care he would have to pay for his own doctor. Claimant testified that he is earning less now than at the time of the injury but the reason was due to an economic decrease in the rate of piece work. It was not due to the injury. Claimant said that he has been performing the same job that he was performing at the time of the injury. Claimant's wife corroborated claimant's testimony that the injury was exceptionally painful. She could see his nose was physically smashed down at the time of the injury. His eyes turned black. He was unable to eat and went to bed but had trouble sleeping due to the pain. He also had trouble breathing. Even after the surgery he continued to have severe pain and trouble sleeping. The pain causes him to lay down more frequently which he did not formerly do. B. E. Hoenk, M.D., diagnosed a displaced and depressed fracture of the nasal bones on March 1, 1985. Dr. Hoenk performed outpatient surgery on the same date (Exhibit A). Claimant was released to return to work on March 11, 1985 (Ex. B). Dr. Hoenk reported on March 29, 1985, that he performed a closed reduction of a depressed and displaced nasal fracture under general anesthesia at Mercy Hospital on March 1, 1985. Claimant's post-operative course was not remarkable. Claimant exhibited an excellent cosmetic appearance along with good airways and was released with regard to his nasal fracture (Ex. C). The office records of Dr. Hoenk (ENT Associates) disclosed that claimant was seen by both Dr. Hoenk and W. S. Barker, M.D., in that office. Claimant was seen again on March 19, 1985, after his surgery, complaining of headaches and pain in the top of his head. His ENT examination was normal. Claimant was told to see his family doctor regarding any further evaluation for these headaches (Ex. F, page 2). On August 12, 1985, claimant complained again to ENT Associates about sensitivity around the tip of his nose. Claimant was examined and the physical condition of his nose was normal. Claimant was reassured that no therapy was needed (Ex. F, p. 2). TENEYUQUE V. SIVYER STEEL CORP. Page 4 On October 15, 1985, claimant returned to ENT Associates. He was satisfied with the physical appearance of his nose but complained of pain in the tip of his nose. His physical examination again was essentially normal. The office notes added, however, that the pain etiology is possible neuralgia (pain along the route of a nerve) secondary to the crushing effect of the initial injury (Ex. F, p. 3). On October 28, 1985, Dr. Barker recorded pain around the tip of the nose elicited by simply brushing the skin lightly. Pressing deeper did not decrease the discomfort. Physical examination of the nose again was normal. Dr. Barker speculated that possibly claimant has a neuralgia or neuritis of the anterior ethmoidal nerve. He prescribed a medication and stated that if it was not successful then he could not suggest any other treatment (Ex. F, p. 3). Dr. Barker wrote as follows on November 13, 1985: It is my impression that the physical examination was completely normal with the exception of some slight irregularity detected by palpation on the nasal pyramid. The nasal fragments were in good re-alignment but because of the unusual pain he was experiencing in the lower part of his nose, Dilantin 100mg three times daily for twenty days was prescribed on a one time basis. No future treatment was recommended by me. (Ex. D) Dr. Barker reported again on May 20, 1986, as follows: Enclosed is a recent letter I sent to Mr. Teneyuque's attorney. I'm not sure what PTD is but if it refers to permanent disability I would say there should be none. The patient has not been seen by me since 10-28-85. He was originally seen by Dr. Hoenk, now retired, on 3-1-85 for his nasal fracture. (Ex. F) Dr. Barker made no reference to or expressed any familiarity with the AMA Guides. Albert Zimmer, M.D., testified by deposition that he is a board certified otolaryngologist who has practiced in ear, nose and throat for 30 years (Ex. H, pp. 3 & 4). He first saw claimant on January 21, 1986, complaining primarily of pain in the tip of his nose. There was a scar two centimeters long on the right side of his nose. The nose was synunetrical and not extremely crooked. It looked different than it looked in pictures taken prior to the injury. The nose had a satisfactory appearance after the injury but appeared flatter and less protruded. The nasal septum was irregular but did not block the airway on either side. Claimant described to the doctor that he had a continuous pain like a burning sensation that was accentuated by cold weather or by touch. Simply touching his bed sheet caused discomfort to his nose (Ex. H, pp. 6-8). Dr. Zimmer believed that there was damage to the cutaneous nerves, small sensory nerves in the skin, from scar tissue putting pressure or irritation on the nerve fibers (Ex. H, p. 8). TENEYUQUE V. SIVYER STEEL CORP. Page 5 The doctor said that his objective findings were the scar tissue but he also said that he accepted and believed that claimant's subjective symptoms were true because the pain was continuous, it was located in the area of the injury and was made worse by touch or cold (Ex. H, pp. 9 & 10). The doctor acknowledged that claimant's complaints could not be verified independently (Ex. H, p. 24). X-rays showed no evidence of fracture to the nose in the nasal bones. Subsequent x-rays of the sinuses disclosed no infection, tumor or anything gross anatomically that would be contributing to his symptom (Ex. H, p. 11). Dr. Zimmer acknowledged that claimant's case was unusual. He had not encountered one like it before. A more common complaint would have been numbness and tingling because of the interruption of the nerve pathways, but it is certainly conceivable that in some instances pain could also occur (Ex. A, p. 12). The doctor said that he believed the patient's complaints (Ex. H, pp. 9 & 12). He said that the type of surgery that claimant had and the type of pain he was feeling was consistent with a blow to the nose (Ex. H, pp. 12 & 13). He said the injury was the cause of the pain (Ex. H, p. 17). Additional surgery would not correct but might only make it worse by causing more scar tissue (Ex. H, p. 18). Dr. Zimmer summarized his opinion in a letter dated January 8, 1987 as follows: I saw Mr. Ramon Teneyuque for the first time on January 21, 1986, and he was most recently seen on December 9, 1986. He gave a history of an accident in March of 1985. He had reconstructive surgery performed for this injury. He has a persistent complaint of pain, tenderness, and altered sensitivity to touch in the nose. This is much worse in cold weather. His nasal septum is irregular, but the airway is satisfactory. His external nose is different from his pre-injury appearance. It is symmetrical and quite acceptable in appearance. There is some small fine scarring on the right side of his nose. I feel that a 10% loss is a reasonable estimate, since he will probably have pain and altered sensation in his nose for the remainder of his life. I feel that this does constitute a permanent partial disability. The question of whether this is a 10% loss of his whole body is difficult to answer, however I feel that permanent persistent pain will affect ones attitude and therefore would be considered a 10% loss of the whole body. Facial x-rays, including sinuses were normal, and a copy of these are included. (Ex. I) Dr. Zimmer granted that the figure of 10 percent was just a guess. He described it as a reasonable approximation on his part. He acknowledged that he did not use the AMA Guides and that he has never used them before (Ex. H, pp. 14-16). Dr. Zimmer said that the basis for his impairment rating was that chronic pain decreases the enjoyment of life and causes a distraction to activities which require concentration (Ex. H, p. 17). Similarly, the pain would distract his concentration to do his job (Ex. H, p. 25). TENEYUQUE V. SIVYER STEEL CORP. Page 6 Dr. Zimmer conceded to defendants' counsel that Dr. Hoenk has never mentioned a laceration of the nose in his notes (Ex. H, p. 19). Dr. Zimmer also admitted that a closed reduction, which is what claimant received, means that the reconstructive surgery did not involve any incision into the skin at all, but rather an elevation of the depressed parts. There is no suturing to be done. There was no specific repairing of a rent or laceration of the nose (Ex. H, pp. 19 & 20). Looking at the AMA Guides, Dr. Zimmer granted that claimant did not have dyspnea or any of the obstructions in Table 5 on page 160 that allow an impairment rating for air passage defects (Ex. H, pp. 26-28; Ex. 6, p. 4). Dr. Zimmer said he was looking at class one on page 159 which made an allowance for visible scars and abnormal pigmentation, but granted that claimant did not suffer any functional impairment (Ex. H, pp. 29 & 30). APPLICABLE LAW AND ANALYSIS Permanent partial disabilities are classified as either scheduled or unscheduled. A specific scheduled disability is evaluated by the functional method; the industrial method is used to evaluate an unscheduled disability. Martin v. Skelly Oil Co., 252 Iowa 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). Iowa Code section 85.34(2) t. & u. provide as follows: t. For permanent disfigurement of the face or head which shall impair the future usefulness and earnings of the employee in his occupation at,the time of receiving the injury, weekly compensation, for such period as may be determined by the industrial commissioner according to the severity of the disfigurement, but not to exceed one hundred fifty weeks. u. In all cases of permanent partial disability other than those hereinabove described or referred to in paragraphs "a" through OtO hereof, the compensation shall be paid during the number of weeks in relation to five hundred weeks as the disability bears to the body of the injured employee as a whole. If it is determined that an injury has produced a disability less than that specifically described in said schedule, compensation shall be paid during the lesser number of weeks of disability determined, as will not exceed a total amount equal to the same percentage proportion of said scheduled maximum compensation. If a claimant contends he has industrial disability he has the burden of proving his injury results in an ailment extending beyond the scheduled loss. Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964). 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, TENEYUQUE V. SIVYER STEEL CORP. Page 7 593, 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). As to Iowa Code section 85.34(2) t., claimant did prove there is a two centimeter scar on the right side of his nose. He did not prove that this scar was caused by this injury. ,Claimant did not testify that this scar was specifically caused by this injury. The office notes and correspondence from Dr. Hoenk, the treating physician and his associate and successor, Dr. Barker, do not mention either a scar or laceration on the nose. Closed reduction did not involve incision, excision or suturing. Even assuming that claimant did receive the scar from this injury, claimant did not demonstrate a disfigurement of the face or head which will impair the future usefulness and earnings of the employee in his occupation in which he was engaged at the TENEYUQUE V. SIVYER STEEL CORP. Page 8 time of receiving the injury or in most other occupations. Claimant returned to the same job and has performed the same work satisfactorily since March 11, 1985. His pay is less but claimant testified that this was due to a change in the rate for piece work and not due to the injury. Even if the injury were found to be a cause of permanent disability to the body as a whole under Iowa Code section 85.34(u), claimant would not be entitled to permanent partial disability benefits because he has not demonstrated any loss of earning capacity. The briefness of his healing period, his return to work at the same job for the same pay for his employer of the last 14 years tends to negate any loss of earning capacity, but on the contrary would indicate that claimant is rather secure in his job. No doctor has placed any restrictions or limitations on claimant's performance of his regular job. The loss of earning capacity is a reduction in value of the general earnings capacity of the individual rather than the precise loss of wages or earnings in any specific operation. Holmquist v. Volkswagen of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) (100 A.L.R. 3d 143). In this case it definitely appears that claimant returned to his former employment without any loss of earnings or employment status of any kind. Mason v. Armour-Dial, Inc., I Iowa Industrial Commissioner Report 227, 229 (1981). There is no showing that claimant is foreclosed from performing any other job activity on account of this injury. Michael v. Harrison County, Thirty-Fourth Biennial Reports of the Industrial Commissioner 218, 220 (App. Decn. 1979). The only industrial disability factor that Dr. Zimmer mentioned in his deposition was the fact that claimant's concentration to do his work might be distracted by the pain. However, the actual evidence is that claimant has been able to perform his job satisfactorily, although with much difficulty in spite of the pain. The injury occurred on February 25, 1985 and the hearing was held on February 19, 1988. Therefore, claimant has been performing his job satisfactorily for approximately three years since the injury. In conclusion, it is found that claimant did not sustain the burden of proof by a preponderance of the evidence that the injury was the cause of permanent disability. Claimant did not demonstrate that he is entitled to benefits under either Iowa Code section 85.34(2) (t.) or (u.) for either scheduled member or industrial disability benefits. FINDINGS OF FACT Based upon the evidence presented, the following findings of fact are made: That claimant did not prove that the injury was the cause of the scar on his nose or any other facial disfigurement. That claimant did prove that he suffers pain and discomfort on the tip of his nose but he did not prove that the pain and discomfort reduced his earning capacity. That Dr. Zimmer was not an authorized physician but instead TENEYUQUE V. SIVYER STEEL CORP. Page 9 was a physician of claimant's own choice. CONCLUSIONS OF LAW WHEREFORE, based upon the evidence presented and the foregoing principles of law, the following conclusions of law are made: That claimant did not sustain the burden of proof by a preponderance of the evidence that the injury of February 25, 1985 was the cause of any permanent disability. That claimant did not sustain the burden of proof by a preponderance of the evidence that he is entitled to either scheduled member or industrial disability benefits. That claimant did not prove that he was entitled to medical benefits for the evaluation and treatment by Dr. Zimmer who basically examined and evaluated claimant but did not treat the condition in any measurable degree. ORDER THEREFORE, IT IS ORDERED: That claimant take nothing from this proceeding. That the costs of this action are charged to claimant pursuant to Division of Industrial Services Rule 343-4.33. 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 15th day of April, 1988. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. David A. Millage Attorney at Law 1989 Spruce Hills Drive Bettendorf, Iowa 52722 Mr. Larry D. Shepler Attorney at Law 600 Union Arcade Bldg. 111 East Third Street Davenport, Iowa 52801-1550 1402.40; 1803; 1803.1; 2500; 2907 Filed April 15, 1988 WALTER R. McMANUS, JR. BEFORE THE IOWA INDUSTRIAL COMMISSIONER RAMON TENEYUQUE, Claimant, FILE NO. 789389 vs. A R B I T R A T I 0 N SIVYER STEEL CORP., D E C I S I 0 N Employer, and AETNA CASUALTY & SURETY, Insurance Carrier, Defendant. 1402.40; 1803, 1803.10 Claimant received a severe blow to the nose at work and was paid temporary total disability and received a closed reduction of a depressed, displaced fracture. Claimant failed to prove slight scar on his nose was due to this injury or that he otherwise was entitled to permanent partial disability either for a scheduled member injury [Iowa Code section 85.34(2)(t)] or for industrial disability [Iowa Code section 85.34(2)(u)]. 2500 Claimant's medical expense was not authorized and was for evaluation for trial rather than treatment and therefore was not allowed. 2907 Costs assessed against claimant.