before the iowa industrial commissioner ____________________________________________________________ : KEITH ANDERSON, : : Claimant, : File No. 789530 : vs. : A P P E A L : J. I. CASE COMPANY, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed August 22, 1990, is affirmed and is adopted as the final agency action in this case. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of September, 1991. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Francis Van Hooreweghe Mr. Don D. Thuline Attorneys at Law 1718 8th Avenue P.O. Box 399 Moline, Ilinois 61265 Mr. Larry L. Shepler Attorney at Law Suite 102, Executive Square 400 Main Street Davenport, Iowa 52801 9998 Filed September 27, 1991 BYRON K. ORTON HJW before the iowa industrial commissioner ____________________________________________________________ _____ : KEITH ANDERSON, : : Claimant, : File No. 789530 : vs. : A P P E A L : J. I. CASE COMPANY, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ____________________________________________________________ _____ 9998 Summary affirmance of deputy's decision filed August 22, 1990. Page 1 before the iowa industrial commissioner ____________________________________________________________ : KEITH ANDERSON, : : Claimant, : File No. 789530 : vs. : A R B I T R A T I O N : J. I. CASE COMPANY, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ____________________________________________________________ introduction This is a proceeding in arbitration brought by the claimant, Keith Anderson, against his self-insured employer, J. I. Case Company, to recover benefits under the Iowa Workers' Compensation Act as the result of an injury sustained on March 12, 1985. This matter came on for hearing before the undersigned deputy industrial commissioner at Davenport, Iowa on April 20, 1990. A first report of injury was filed on March 15, 1985. The record in this matter consists of the testimony of claimant as well as of Helen Heath and G. Brian Paprocki, and of claimant's exhibits 1 through 35 and joint exhibits 1 through 7. Claimant filed a brief. issues Pursuant to the prehearing report and the oral stipulation of the parties at hearing, the parties stipulated: that claimant's rate of compensation is $274.45; that medical costs were fair and reasonable for the condition treated; that claimant did receive an injury which arose out of and in the course of his employment and that a causal relationship exists between claimant's injury and certain temporary total/healing period and permanent partial disability. Apparently, the parties are agreeing that claimant's injury caused disability to his right foot. Issues remaining to be decided are: 1. Whether a causal relationship exists between claimant's injury and the disability by way of major depressive disorder, sleep apnea, and low back pain; 2. The nature and extent of any entitlement to benefits; 3. Whether claimant is an odd-lot employee under the Guyton doctrine; 4. Whether claimant is entitled to payment for certain medical costs as related to his injury and disability and as reasonable and necessary treatment for such; and, Page 2 5. Whether defendant is entitled to a credit under section 85.38(2). findings of fact The deputy, having heard the testimony and considered the evidence, finds: Claimant is 38 years old and a high school graduate. His school records, recent grade level testing by G. Brian Paprocki, and his demeanor at hearing all suggest that he functions at a relatively low level intellectually. Claimant worked for the employer from October 14, 1971 through March 12, 1985, but for a series of intermittent layoffs. He worked primarily as a floor sweeper and expediter, although he had two years of experience as a forklift driver. On March 11, 1985, claimant began work as a brake press operator. On March 12, 1985, a 900-pound die fell on his foot. Claimant sustained markedly comminuted fractures about the right foot with dislocation of the fourth toe metatarsal cuneiform joint, fractures of cuboid and fifth metatarsal in addition to 1 and 2. He underwent a fasciotomy followed by internal fixation, open reduction of the first and second toes with manipulative reduction of the fifth toe metatarsal and reduction of dislocation of fourth toe. Ultimately, claimant's second and third toes were amputated. Claimant has a fused right foot consisting of a great toe and a fourth and fifth toe. Claimant walks with a cane. He uses an orthopaedic right shoe consisting of a rocker and a side brace. Claimant has low back pain related to an altered gait resulting from his injury. Vernon P. Varner, M.D., a board-certified psychiatrist, and Richard Neiman, M.D., a board-certified neurologist both so opined. No evidence of permanent impairment related directly to the back pain was produced, however. Claimant has constant right foot and ankle pain. He has numbness in the big toe with intermittent back pain if he stands for an extended period. Claimant testified to right ankle and knee pain if he stands for greater than one hour. No medical evidence directly relates that pain to his injury, however. Claimant tires easily. He believes he cannot twist, push, pull, climb, stoop, walk or carry a bucket of water. No medical restrictions on these activities exist, however. He has difficulty bending at the waist. Claimant can drive up to two hours, however. Richard Neiman, M.D., a board-certified neurologist, first saw claimant on November 19, 1987 with a diagnosis of pain syndrome with partial injury to one of the peripheral branches of the peroneal nerves producing hyperesthesia. Osteoarthritic hypertrophic changes were apparent on x-ray of claimant's right foot. Dr. Neiman related these to his initial injury. Dr. Neiman believed that weight loss would benefit claimant. Claimant does not exercise as he did Page 3 prior to his injury. He is more socially withdrawn and has given up hunting and gun collecting. He also keeps fewer farm animals than he had prior to his injury. Dr. Neiman had referred claimant to Dr. Varner for primary treatment. Dr. Varner diagnosed claimant has having a major depressive disorder, secondary in part to pain and interrupted sleep from a painful right ankle and foot (October 17, 1988 report). D. V. Domingo, M.D., of Moline Psychiatric Associates, examined claimant for one hour on January 4, 1989. He diagnosed claimant as having an adjustment disorder with depression, chronic (January 5, 1989 report). Dr. Varner believed that claimant's pain interfered with his sleep and led to depression and that attempts to treat depression led to sedation with worsening of claimant's sleep apnea (October 17, 1988 Dr. Varner report). Dr. Varner, in his deposition taken October 31, 1988, stated that claimant was much heavier at the time of the deposition than when first seen. Dr. Varner attributed this to the medications claimant was taking. Claimant takes Amitriptyline, Trilafon, and Clonazepam. Amitriptyline and Clonazepam are known to increase appetite, especially for carbohydrates. With the exception of the Amitriptyline, these drugs were prescribed near claimant's March, 1988 hospitalization. Claimant's Amitriptyline dosage was significantly increased at that time. Claimant is six feet tall and weighs 290 pounds. He has gained approximately 90 pounds since his injury date and approximately 60 pounds since March 11, 1988 when he was admitted to Mercy Hospital in Iowa City for treatment of depression and pain. Claimant was hospitalized at Mercy Hospital in Iowa City, Iowa on March 11, 1988 for treatment of pain and depression. While hospitalized, claimant was diagnosed as having a mixed type sleep apnea consisting of both obstructive sleep apnea and central nervous system apnea. Guy Ernest McFarland, M.D., a board-certified ear, nose and throat specialist, first saw claimant on March 23, 1988 for sleep difficulties. On examination, claimant had a severely deviated nasal septum and his palate or uvula was two to three times the normal length. Claimant also had tonsils. Those conditions all produce nasal obstruction. Claimant had a larger than normal base of tongue, a condition that can contribute to a decrease in airway size. An EEG showed mixed sleep apnea, that is, a central nervous system as well as an obstructive component. Surgery was performed which enlarged the rear of claimant's throat by 100 percent. Claimant subsequently underwent a tracheostomy as the size of his tongue and surgical swelling prevented air exchange. Dr. McFarland characterized the tracheostomy as more or less permanent, although a long-term goal would be to extubate claimant and have him resume breathing predominantly through a normal passageway. A post-operative sleep study on July 27, 1988 showed central obstructive mixed sleep apnea, but improved over the preoperative study. When Dr. McFarland last saw claimant on December 8, 1988, claimant was sleeping better and had no major complaints [related to his sleep Page 4 disorder]. Claimant's mother did not recall claimant snoring while sleeping pre-injury. She believed that, post-injury, claimant had loud, raucous snoring. Claimant last fell asleep during the day in January, 1988. Claimant's sleep apnea symptoms had decreased markedly at his release from Mercy Hospital. Claimant appeared much more rested. Nursing observations did not notice apneic periods; no formal sleep studies were done at that time (Dr. Varner discharge summary of April 11, 1988). The absence of a pattern or chronic tardiness prior to claimant's injury suggests that claimant had not had sleep apnea prior to the injury (Dr. Varner deposition). Claimant's peers would have known if he had sleep apnea because typically he would have been dog-tired and had sat down at work and fallen asleep at break (Dr. Varner deposition). No peers testified at hearing, however. A sedentary activity rate and weight gain would change body composition such as to aggravate or bring out a sleep apnea problem. Claimant's single status makes pre-injury determination of sleep apnea more difficult since the patient was not aware of his own sleep patterns. Sleep apnea once triggered tends to continue. (Dr. McFarland deposition) Dr. Neiman believed that if claimant had not reported snoring prior to his work injury, but snored after the work injury, the injury was at least partially responsible for claimant's development of sleep apnea. Dr. Neiman believed that snoring subsequent to a weight gain suggested a relationship between the weight gain and sleep apnea. (Dr. Neiman deposition) Peter S. Jerome, M.D., who is board-certified in internal medicine, pulmonary medicine and critical care medicine, reviewed claimant's medical records. He did not examine claimant. Dr. Jerome's specialty of pulmonary medicine includes sleep disorder diagnosis and treatment. Dr. Jerome reported that a change in body weight can be a consequence of sleep apnea and that an increase in body weight can aggravate, or more rarely cause, sleep apnea. Sleep apnea can lead to a sluggish person with a strong tendency to gain weight. Fat tissue deposited in the upper airway in obese persons narrows the upper airway caliber. Dr. Jerome opined that uvulopalotopharyngoplasty has a high failure rate as a result of the multiple factors causing obstructive and mixed sleep apnea. He reported that the procedure can at times aggravate sleep apnea function as a result of the flaccid enlarged upper airway's loss of tone post-surgery. Dr. Jerome believed that consumption of alcohol and ingestion of central nervous system depressants [sic] were other factors that can aggravate sleep apnea. He reported that alcohol decreases the brain's ability to maintain upper airway patency and believed 12 beers per day could have that effect. He characterized Klonopin as a drug which decreases brain signals and as a drug used to prevent Page 5 alcohol withdrawal syndrome. Claimant apparently showed no signs of alcohol withdrawal after ceasing drinking while hospitalized at Mercy. Dr. Jerome felt that the subjective observations of Dr. Varner as to claimant's sleep apnea decreasing post-surgery should be given less weight as it was based on hospital observation and not on formal all-night polysomnogram. Dr. Jerome believed that claimant's sleep apnea was caused by multiple factors, the most prominent being his obesity, the anatomy of his upper airway and his concomitant use of possible alcohol products and central nervous system depressants. (Dr. Jerome deposition) Dr. McFarland believed that an elevated blood alcohol produces deeper sleep levels that affect the body's ability to monitor breathing and respond at appropriate times. (Dr. McFarland deposition) Dr. Neiman reported a known relationship between drinking alcohol and sleep apnea in that alcohol can suppress the respiratory drive and can cause hytrophy [sic] in tissue at the base of the throat. He reported that alcohol generally aggravates rather than causes sleep apnea. Dr. Neiman believed that claimant drank two beers per day during the week and four to six beers on Friday and Saturday nights. Dr. Neiman believed it was hard for a single individual who lived alone to know if he snores or if he had mild sleep apnea, but for possible daytime sleepiness. (Dr. Neiman deposition) It is specifically found that claimant's sleep apnea is produced by a variety of factors including his body size, his nose and throat composition and his alcohol consumption. Whether claimant had sleep apnea prior to his injury cannot be ascertained, given his single status and the absence of testimony from disinterested peers concerning his pre-injury condition. Claimant's weight gain subsequent to his injury was not a primary factor in claimant's development of sleep apnea as claimant had gained only approximately 30 pounds when his sleep apnea was diagnosed in March, 1988. His most significant weight gain occurred subsequent to diagnosis and treatment of the sleep apnea. Claimant's alcohol consumption subsequent to his injury was not a primary factor in the development of his sleep apnea as claimant's alcohol consumption did not increase subsequent to his injury. Medications prescribed to treat claimant's injury related to pain and his depression likely did not play a significant role in the development of his sleep apnea as the apnea apparently was diagnosed and treated prior to claimant receiving significant dosages of those medications. Regardless of the source of claimant's sleep apnea, claimant has had no significant symptoms of the condition since at least July, 1988 given his permanent tracheostomy. Dr. Varner opined that claimant's depression began long before March 11, 1988 in that claimant was depressed while hospitalized and developed sleep apnea while hospitalized [apparently in March, 1988]. The doctor stated that pain, sleep apnea and sleep interruption would have made claimant a very high risk for depression within a matter of weeks Page 6 after the injury, that is, that in September, 1985 claimant would have been well into a serious depression (June 8, 1989 report of Dr. Varner). The opinion is given less weight because it is not established that claimant had sleep apnea in September, 1985 and because Dr. Varner's statements concerning the presence of sleep apnea at that time appear to directly contradict Dr. Varner's other statements relative to the development of claimant's sleep apnea. On January 30, 1989, per Dr. Varner, claimant was in psychotherapy for delayed reaction as the result of his loss of function as well as the loss of "an incredible number of primary people in his life," that is, his father, a grandmother and grandfather, a favorite uncle, a second grandmother, a neighbor, and a sister-in-law who had developed thyroid cancer, all losses occurring within two years of January 30, 1989. Claimant's ability to do sustained work is interrupted by constantly feeling overwhelmed by pain. Claimant is socially markedly inhibited and withdrawn and has very few if any friends. He has very limited social skills, in part related to past alcohol abuse, and now related to frank embarrassment from anyone knowing about his permanent tracheostomy and with "seeing my foot." (February 11, 1989 Dr. Varner report) Absent a dramatic change in claimant's ability to use his right foot and limb and return to work with a social life centered around work, claimant will not be able to function sufficiently without continued outside support of psychotherapy on a life-long basis (March 15, 1990 Dr. Varner report). A variety of factors, including claimant's work injury; significant family losses; and, his lack of social skills and social isolation produced his depression. Claimant's exhibit 30 is a collection of medical statements which claimant's exhibit list characterizes as current unpaid medical bills of claimant. The prehearing report did not contain an itemized list of all medical expenses for which claimant is seeking reimbursement as required by subparagraph 3 of paragraph 10 of the hearing assignment order. It is not possible from the documents submitted to ascertain the exact amounts for which claimant is seeking reimbursement. conclusions of law Our first concern is whether a causal relationship exists between claimant's injury and disability by way of major depressive disorder, sleep apnea, and low back pain. The claimant has the burden of proving by a preponderance of the evidence that the injury of March 12, 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 Page 7 question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). The Iowa Supreme Court cites, apparently with approval, the C.J.S. statement that the aggravation should be material if it is to be compensable. Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's Compensation sec. 555(17)a. The work incident or activity need not be the sole proximate cause of the injury, if the injury is directly traceable to it. Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296, 297 (Iowa 1974). A cause is proximate if it is a substantial factor in bring about the result. It need be only one cause of the result; it need not be the only cause. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980). As noted above, the evidence that claimant's sleep apnea relates to his work injury is at best inclusive. Likewise, claimant has not made an appropriate showing that the sleep apnea is a preexisting condition that was aggravated by the work injury. Claimant has shown that his major depressive disorder is in part related to the consequences of his work injury. Similarly, the record demonstrates that claimant has low back pain related to an altered gait, which low back pain therefore relates back to his work injury. Unfortunately, the record does not in any way demonstrate the nature or extent of claimant's low back pain or any impairment related thereto. Therefore, it is concluded that claimant has not established a causal relationship between his work injury and his sleep apnea; it is further concluded that claimant has established a Page 8 relationship between his major depressive disorder and his work injury and a relationship between his low back pain and his work injury. Our next concern is the nature and extent of claimant's disability. The right of a worker to receive compensation for injuries sustained which arose out of and in the course of employment is statutory. The statute conferring this right can also fix the amount of compensation to be paid for different specific injuries, and the employee is not entitled to compensation except as provided by the statute. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). An injury to a scheduled member may, because of after effects (or compensatory change), result in permanent impairment of the body as a whole. Such impairment may in turn form the basis for a rating of industrial disability. Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). That a worker sustaining one of the injuries for which specific compensation is provided under the statute might, because of such injury, be unable to resume employment and because of his lack of education or experience or physical strength or ability, might be unable to obtain other employment, does not entitle him to be classed as tot Even though claimant has shown a psychological impairment on account of his work injury, he cannot recover benefits for industrial disability since his injury was to a scheduled member and not to the body as a whole. Claimant's psychological problems affect his earning capacity perhaps significantly. However, the current law of this agency holds that he has already been compensated for any reduction in his earning capacity through the schedule. The benefits under section 85.34, The Code, contemplate compensation for any effect on the claimant's earning capacity caused by psychological problems stemming from an injury to a scheduled member. See, Schell v. Central Engineering Co., 232 Iowa 424, 4 N.W.2d 339 (1942); Pilcher v. Penick & Ford, file number 618597 (App. Decn., October 21, 1987). For reasons set forth in the above findings of fact, claimant has not shown a causal relationship between his sleep apnea and his injury. Therefore, that condition cannot form the basis for extending claimant's disability beyond that provided in the schedule for loss or loss of use of a foot. Likewise, claimant is not entitled to industrial disability under the current law of this agency as reflected in the legal proposition cited above. Claimant's pain, but for his low back pain, would appear to be specifically related to his scheduled member loss and, therefore, also cannot form the basis for any award of industrial disability. We are left then with claimant's low back condition which both Drs. Varner and Neiman relate to his altered gait. Simple common sense supports the doctors' conclusions in that an alteration of gait will generally have some effect on the individual's overall sense of well being. The question then is whether claimant's low back pain of itself represents a significant body as a whole handicap entitling him to industrial disability. Unfortunately, this record is devoid of evidence suggesting such. No permanent partial impairment ratings are available as regards claimant's low back condition. No restrictions have been placed as regards claimant's low back condition. No evidence of how the low back pain alters claimant's lifestyle was presented. In the absence of such, we cannot find that the low back pain is significantly disabling in and of itself such that claimant is entitled to an industrial loss award on that basis alone. As claimant has not established any condition entitling him to compensation beyond the schedule, claimant's permanent partial disability is limited to that which claimant would be entitled to under the schedule for his loss of use of his foot. Evidence of that amount was not presented on this record. In the prehearing report, the parties stipulated that compensation payments to claimant are ongoing. Defendant, of course, is obligated to continue such until such time as claimant has been fully compensated for his loss or loss of use of his foot as reflected in the best available medical evidence regarding such. Page 10 The parties also dispute the extent of claimant's entitlement to temporary total disability or healing period benefits, as well as the commencement date for his permanency. Again, it is noted that the parties have presented virtually no evidence or medical testimony regarding when claimant was assigned a permanency rating or other indication that claimant's condition had reached the maximum level of improvement. Section 85.34(1), Code of Iowa, provides that healing period benefits are payable to an injured worker who has suffered permanent partial disability until (1) he has returned to work; (2) is medically capable of returning to substantially similar employment; or (3) has achieved maximum medical recovery. The industrial commissioner has recognized that healing period benefits can be interrupted or intermittent. Willis v. Lehigh Portland Cement Co., Vol. 2-1, State of Iowa Industrial Commissioner Decisions 485 (1984). Continuing to receive medical care which is maintenance in nature does not extend the healing period beyond the point where claimant has actually stopped improving. Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa App. 1981); Derochie v. City of Sioux City, II Iowa Industrial Commissioner Report 112 (1982) (District Court Appeal, remanded for settlement). Likewise, where claimant's condition will not improve from the start, but will be aggravated by further physical exertion, claimant is not entitled to healing period benefits as no further improvement of his condition was anticipated. Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa App. 1981). "Permanent" means for an indefinite and undeterminable period. Wallace v. Brotherhood of Locomotive Firemen and Enginemen, 230 Iowa 1127, 1130, 300 N.W. 322, 324 (1941), citing Garen v. New England Mutual Life Ins., 218 Iowa 1094, 1104, 254 N.W. 287, 292 (1934). Claimant obviously was not significantly improved from the sequelae of his injury when Dr. Neiman first saw him in November, 1987. Also, claimant was not significantly improved when hospitalized in March, 1988. As of January, 1989, Dr. Varner had prescribed psychotherapy, related in part to claimant's loss of use and loss of function. Hence, it cannot be said that claimant was at maximum medical healing at that time. As of March 15, 1990, Dr. Varner reported that claimant would not likely be able to function sufficiently without continued outside psychotherapeutic support throughout his life. From such, it is concluded that claimant's condition as of that date had reached a permanent state in that further improvement could not be anticipated. Therefore, it is concluded that claimant is entitled to healing period benefits through March 15, 1990. It is further concluded that claimant is entitled to permanent partial disability benefits at the appropriate rate and for the appropriate number of weeks for the loss of use of his foot commencing March 16, 1990. As claimant has not established an entitlement to Page 11 industrial disability, we need not consider whether claimant is an odd-lot employee under the Guyton doctrine. We note in passing, however, that it does not appear that sufficient steps have been taken relative to rehabilitation of claimant. Mr. Paprocki, in his testimony, did suggest that claimant could function in a sheltered workshop environment. Such an environment might well meet those social needs of claimant about which Dr. Varner has expressed concern. Under those circumstances, it appears that reasonable effort to consider rehabilitation for claimant through that avenue should have been made before claimant could fairly be determined to be an odd-lot employee. We reach the question of whether claimant is entitled to payment for certain medical costs as related to his injury and disability and as reasonable and necessary treatment for such. Under section 85.27, defendant is liable for medical costs related to reasonable and necessary treatment of a compensable injury. As noted, claimant has not shown that his sleep apnea relates to his work injury. Therefore, defendant is not liable for costs related to treatment of that condition. As noted, claimant has shown that his depression is at least in part proximately caused by his loss of use of his right foot. Therefore, defendant is liable for costs related to treatment of claimant's depression. Likewise, claimant's pain relates back to his loss of use of his foot and treatment of his pain condition is a reasonable and necessary medical cost for which defendant is liable. As noted in the above findings of fact, it is impossible from the medical costs submitted to determine what costs relate to treatment of what condition or what costs claimant is actually seeking to be paid. We note that this represents a serious violation of the hearing assignment order filed in this matter. The parties are directed to work together to determine which costs relate to treatment of claimant's loss of use of his right foot, of his pain, and of his psychiatric disorder. Defendant is liable for such costs. order THEREFORE, IT IS ORDERED: Defendant pay claimant healing period benefits from the date of his injury through March 15, 1990 at the stipulated rate of two hundred seventy-four and 45/100 dollars ($274.45) per week. Defendant pay claimant permanent partial disability benefits for the appropriate number of weeks to compensate for his loss or loss of use of his right foot at the stipulated rate of two hundred seventy-four and 45/100 dollars ($274.45) per week. Defendant pay claimant medical expenses actually related to his loss of use of his right foot, his pain related to loss of use of his right foot, and his depressive disorder. Page 12 Defendant pay any accrued amounts in a lump sum. Defendant pay interest if any be due pursuant to section 85.30 as amended. Defendant pay costs pursuant to Division of Industrial Services Rule 343-4.33. Defendant file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this ______ day of ____________, 1990. ______________________________ HELENJEAN WALLESER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Francis Van Hooreweghe Mr. Don D. Thuline Attorneys at Law 1718 8th Avenue P.O. Box 399 Moline, Illinois 61265 Mr. Larry L. Shepler Attorney at Law Suite 102, Executive Square 400 Main Street Davenport, Iowa 52801 1108.20, 1108.50, 1802 1803, 1803.1 Filed August 22, 1990 HELENJEAN WALLESER before the iowa industrial commissioner ____________________________________________________________ : KEITH ANDERSON, : : Claimant, : File No. 789530 : vs. : A R B I T R A T I O N : J. I. CASE COMPANY, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ____________________________________________________________ 1108.20, 1108.50, 1802, 1803, 1803.1 Claimant did not establish that sleep apnea condition was the result of an injury which had produced amputation of the second and third toes of the right foot where the evidence was inconclusive as to whether claimant had had sleep apnea prior to the injury; where the evidence did not show that claimant's alcohol consumption had increased subsequent to the injury; and, where the evidence did not show that claimant's sleep apnea condition came on after claimant had gained a significant amount of weight or after significant amounts of prescription drugs which might have contributed to the condition were administered. Claimant did show that the work injury was a substantial factor in his development of psychological disorder. Claimant was denied industrial disability on the basis of his psychological condition pursuant to agency precedent as regards psychological injury subsequent to a scheduled loss. Claimant's physicians indicated that claimant's fused foot had resulted in an altered gait which produced back pain. Physicians apparently did not give any permanency rating relative to the back pain and did not impose any restrictions related to the back pain. Held that in the absence of permanency ratings or restrictions related to the back pain, it could not be determined that the back pain was a significant condition such that claimant's scheduled loss became a body as a whole injury. The record contained little evidence as to when claimant reached maximum medical improvement. In March of 1990, claimant's treating physician opined that claimant would need psychotherapy throughout his lifetime on account of his continuing problems subsequent to his injury. Held that that opinion established a permanent condition in that claimant's condition would not improve significantly subsequent to that date. Healing period was awarded on and through that date. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JEAN WAMSLEY, N/K/A JEAN KENNE, Claimant, File No. 789563 vs. A R B I T R A T I 0 N K-MART CORPORATION, D E C I S I 0 N Employer, Self-Insured, Defendant. INTRODUCTION This is a proceeding in arbitration brought by Jean Wamsley, now known as Jean Kenne, against K-Mart Corporation, her self-insured former employer. The case was heard at Fort Dodge, Iowa on July 1, 1987 and was fully submitted upon conclusion of the hearing. The record in the proceeding consists of testimony from claimant, June Hageness and Donald Kenne. The record also contains claimant's exhibits 1, 2 and 3. ISSUES It was stipulated that claimant sustained injury which arose out of and in the course of her employment on March 8, 1985, that her rate of compensation is $124.38 per week and that she had been paid 82 weeks of compensation at the correct rate prior to hearing. The issues in the case are determination of claimant's entitlement to compensation for healing period and determination of her entitlement to compensation for permanent disability. It was stipulated that the payments of weekly compensation that have been paid were ended on October 4, 1986. The following is only a brief summary of pertinent evidence. All evidence received at the hearing was considered when deciding the case even though it may not necessarily be referred to in this decision. Jean Wamsley, now known as Jean Kenne, is a 63-year-old lady who has married since the date of her injury. She stated that her husband is age 71 and has been retired since 1982. Claimant has two adult children. Her daughter lives in Cumberland, Maryland and her son lives in Jacksonville, Florida. Claimant is a 1940 high school graduate, but has no other formal education. She is not currently employed and now lives in Cumberland, Maryland. In the past, claimant has worked as a bookkeeper, a bank teller, a billing clerk, a telephone WAMSLEY V. K-MART CORPORATION Page 2 operator, a waitress, a receptionist, a cashier in a cafeteria and a retail sales clerk. Claimant commenced employment with K-Mart Corporation in Fort Dodge, Iowa in September, 1978. She has worked in several different departments. In particular, she worked in the jewelry and camera department for three years. She worked on check-outs for two years. Claimant was assigned to the lay-away department in mid-1983 and was working in that department at the time of her injury. Claimant testified that her duties involved handling boxes or bags with the items which were being placed into or out of lay-away. She stated that her activities could include carrying the articles up steps to the storage area. She stated that some of the items she handled were heavy, such as microwave ovens. She related that, usually, there was only one person working in the department, but that she could call for assistance for any items which she was unable to handle. Claimant testified that she had no difficulty with her back while working in the lay-away department until March 8, 1985. On cross-examination, claimant stated she could remember only one hospitalization for back problems prior to the injury now under consideration. She did not deny, however, having an acute lumbar strain in 1982 or being hospitalized for low back problems three times during the 1980 through 1982 time range. Claimant related that, on March 8, 1985, she experienced stinging pains in the front of her legs at approximately 3:30 or 4:00 p.m., but that they went away and that she worked until 6:00 p.m. She related that March 8, 1985 was a Friday and that, after work, she did nothing strenuous. She stated that, on Saturday, she felt okay and did not do much. She stated WAMSLEY V. K-MART CORPORATION Page 3 that Sunday morning she found herself in excruciating pain on the left side of her body and was unable to get out of bed. She phoned her daughter for assistance and went to the hospital for medical care. She was given medication and sent home, but, on Monday, her condition had worsened and she was hospitalized. Claimant testified that, during the period of approximately ten days while she was hospitalized, she received therapy, but felt no better when discharged. Claimant testified that she was referred to John T. Bakody, M.D., a neurosurgeon. Claimant stated that, after tests had been conducted, Dr. Bakody told her that she did not have a ruptured disc and that he would not perform surgery. Claimant continued to treat with Dr. Bakody, but related that he was unable to find a cause for her pain and suggested that she be seen at the Mayo Clinic. Claimant went to the Mayo Clinic on June 24, 1985 where extensive tests were performed. Claimant related that she was given steroids which provided some temporary relief and that treatment with a Hubbard tank also provided temporary relief. She stated that the exercises which were recommended caused too much pain for her to perform them. Claimant testified that she was released and returned home where she resumed care under the direction of Roy M. Hutchinson, M.D., and that she has not been released to return to work by any of the physicians in the Midwest who have treated her. WAMSLEY V. K-MART CORPORATION Page 4 Claimant testified that she moved out of Iowa in July, 1986, going first to Burnsville, North Carolina, and then to Maryland in 1987. She has not returned to work at any location. Claimant testified that she received a letter from the K-Mart Corporation in October, 1986 which informed her that her employment had been terminated because she had left the state of Iowa. Claimant testified that she desires to return to work, but does not feel she could do so and has not looked for employment. She testified that she likes to work with people and that she also needs the money. She related she had planned on working until age 70. Claimant testified that she has limitations which make her unable to operate a vacuum cleaner. She stated that she climbs stairs one step at a time and that washing dishes drives her crazy. She stated that she is unable to sit for longer than approximately 20 minutes in a straight-back chair. She related that she spends her days reading, knitting and painting. While in North Carolina, claimant saw E. Stanley Willett, M.D., an orthopaedic surgeon. Claimant related that Dr. Willett advised her she could work four hours per day if she was able to sit and to stand as she felt the need and that she should have a 20-pound lifting limit. Claimant stated that, in Maryland, she was seen by W. C. Spiggle, M.D. Claimant related that Dr. Spiggle told her she had a herniated disc and should have surgery. Claimant stated that she does not want to have surgery at the current time, but WAMSLEY V. K-MART CORPORATION Page 5 that she may if her pain worsens. She felt that the pain was worse at the time of hearing than it had been in March, 1985. June Hageness is an evaluator at Iowa Central Community College where she interviews and tests applicants for their vocational aptitudes. Hageness evaluated claimant and indicated that claimant appeared to be uncomfortable when performing a peg board test and that she also appeared to be anxious about the testing. Hageness indicated that claimantOs test results showed her reading tO be at the beginning of the eleventh grade level and her math to be at the end of the seventh grade level. Hageness felt that claimant's evaluation showed that claimant would have a better chance of success at jobs she could learn from on-the-job training rather than from formal education. Hageness indicated that claimant's aptitude scores were sufficiently low that they did not indicate the ability to perform some of the jobs claimant has actually held in the past. Hageness indicated that claimant's expressed interest had been in either retiring or in obtaining part-time work. Hageness did not present any wage level survey information, but indicated that some of the jobs which appeared to be suitable for claimant would pay a wage that would probably be less than what claimant had earned at K-mart. Donald Kenne testified that he and claimant drove to Fort Dodge from the East, a distance of approximately 800 miles, and that they made the trip in 15 hours. Donald Kenne indicated that claimant was uncomfortable from sitting for so long and that he was also uncomfortable. He indicated that claimant did some of the driving and that they stopped at rest areas during the trip. Claimant has been thoroughly evaluated and examined by a WAMSLEY V. K-MART CORPORATION Page 6 number of physicians. Drs. Hutchinson and Spiggle have indicated that claimant has a herniated intervertebral disc (exhibit 1-1; exhibit 3). Dr. Bakody found her to have some traumatic myofascitis (exhibit 1-14). Dr. Willett felt that she had preexisting degenerative arthritis which was aggravated by her injury (exhibit 1-2). At the Mayo Clinic, it was concluded that she had bilateral chronic L5 radiculopathies, most prominent on the left, but that there was no satisfactory explanation for the pain which she described (exhibit 1-16). Dr. Hutchinson indicated that claimant had reached her maximum healing period by May 19, 1986 (exhibit 3). When Dr. Willett examined her on September 29, 1986, he felt that she had already reached maximum medical improvement (exhibit 1-2; 1-3). Dr. Willett indicated that claimant had a five percent impairment of her back (exhibit 1-2). He suggested the following physical restrictions: No lifting of more than 20 pounds, no repetitive bending or stooping and a job that would permit claimant to change from sitting to standing positions as she felt the need (exhibit 1-2). Dr. Hutchinson felt that claimant would not be able to return to work and that her physical activities should be restricted to lifting no more than 10 pounds. He indicated that she would have difficulty if she was called upon to sit, stand or walk for prolonged periods (exhibit 3). APPLICABLE LAW AND ANALYSIS The claimant has the burden of proving by a preponderance of the evidence that the injury of March 8, 1985 is causally related to the disability on which she now bases her 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). However, expert medical evidence must be considered with all WAMSLEY V. K-MART CORPORATION Page 7 other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Claimant complained of the onset of pain, sought immediate medical attention and has continued under medical care. Dr. Willett, in his report of December 2, 1987, indicated that claimant's condition was preexisting degenerative arthritis that had been aggravated by her injury. The medical history that claimant has consistently given indicates an onset of symptoms while lifting a microwave oven at work on Friday, March 8. None of the physicians have indicated that claimant's activities at work on March 8, 1985 were not a cause of her low back problems. It is therefore found and concluded that the injury claimant sustained on March 8, 1985 was a proximate cause of the disability which she has experienced arising from the condition of her low back. It is also found that claimant had preexisting spurs and degenerative disc disease in her spine, but diagnostic tests and recent studies have failed to demonstrate significant abnormalities in claimant's low back area (exhibit 1-2; 1-8; 1-9; 1-11; 1-16; 1-32; 1-33; and, 1-37). Only Dr. Spiggle found any abnormality (exhibit 1-1). Claimant had a history of prior back problems. It nevertheless appears that the injury of March 8, 1985 was of sufficient severity to cause claimant to seek medical treatment and that she has some residual limitations as a result of that injury. Claimant is entitled to recover compensation for healing period under the provisions of section 85.34(l). The healing period ended at the time she attained maximum medical improvement. Dr. Hutchinson made such a determination on May 19, 1986 as shown in exhibit 3 and his assessment is accepted as correct. Claimant's healing period therefore commences on Sunday, March 10, 1985, the first day where she experienced any disability, and it ends on May 19, 1986, a period of 62 2/7 weeks. If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It has 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.O 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 WAMSLEY V. K-MART CORPORATION Page 8 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 ). Claimant's degree of permanent disability should be compensated under the provisions of section 85.34(2)(u). Compensation benefits are geared to weekly wage loss. It is not inconsistent to generally state that workers, even if not disabled, typically, though not exclusively, retire at some point between the ages of 60 and 75. The fact that a worker is in or approaching typical retirement age may be considered as one of the factors in determining industrial disability. Brecke v. Turner-Busch, Inc., 34th Biennial Report 34 (App. Decn. 1979). In this case, claimant was gainfully employed at K-Mart and had been employed for several years. Subsequent to the injury, she married. She now lives in Cumberland, Maryland. Her daughter has likewise moved to Cumberland, Maryland since claimant's injury. Claimant appears to be living what could be characterized as a typical life for a retired person. Her husband is also retired. When claimant spoke with June Hageness regarding reentering the job market, her expressed interests were part-time work or retirement. Her physical restrictions as indicated by Drs. Hutchinson and Willett are substantial. It appears, however, that those restrictions were imposed more as a result of claimant's description of her problems to the physicians than as a result of any definable physical abnormalities that the doctors were able to identify. Claimant's appearance and demeanor were observed as she testified. Claimant's complaints regarding the severity of her pain and discomfort are not corroborated by objective medical evidence. Her ability to drive from Maryland to the state of Iowa in 15 hours, without stopping overnight, is not corroborative with her complaints. When all the material factors of industrial disability are considered, it is determined that claimant sustained a 15% permanent partial disability as a result of the injury she sustained on March 8, 1985. Claimant urged that she is permanently and totally disabled under the odd-lot doctrine as defined by the Iowa-Supreme Court in the case Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985). She has not, however, made a showing that she has made bona fide efforts to return to gainful employment and has, therefore, failed to make a prima facie showing of permanent total disability under the odd-lot doctrine. Emshoff v. Petroleum Transportation Services, (App. Decn. March 31, 1987). Claimant has no physical abnormalities that have been identified by the medical practitioners, as contrasted from her complaints, which make a prima facie case for total disability. FINDINGS OF FACT 1. Claimant injured her back on March 8, 1985 while performing lifting in the lay-away department of the K-Mart store at Fort Dodge, Iowa. 2. Following the injury, claimant was medically incapable of performing work in employment substantially similar to that she performed at the time of injury from March 10, 1985 until May WAMSLEY V. K-MART CORPORATION Page 9 19, 1986 when she reached the point that it was medically indicated that further significant improvement from the injury was not anticipated. 3. Claimant is 63 years of age, married and has no dependents. 4. Claimant's injury was an aggravation of preexisting degenerative arthritis in her spine. 5. Claimant is able to function at least as well as indicated by Drs. Hutchinson and Willett. 6. Claimant lives a relatively normal life for a retired person. 7. The credibility of claimant's testimony regarding her plans of continued employment and also regarding the severity of her physical complaints is not well corroborated and is not accepted as being an accurate indicator of her abilities and limitations. 8. Claimant has experienced a 15% loss of earning capacity as a result of the injuries she sustained on March 8, 1985. 9. Claimant has not made bona fide efforts to return to gainful employment. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. Claimant is entitled to receive 62 2/7 weeks of compensation for healing period and 75 weeks of compensation for permanent partial disability. ORDER IT IS THEREFORE ORDERED that defendant pay claimant sixty-two and two-sevenths (62 2/7) weeks of compensation for healing period at the stipulated rate of one hundred twenty-four and 38/100 dollars ($124.38) per week commencing March 10, 1985. IT IS FURTHER ORDERED that defendant pay claimant seventy-five (75) weeks of compensation for permanent partial disability at the stipulated rate of one hundred twenty-four and 38/100 dollars ($124.38) per week commencing May 20, 1986. IT IS FURTHER ORDERED that defendant receive credit for the eighty-two (82) weeks of compensation paid prior to hearing and also for any weekly compensation paid subsequent to the date of hearing. All past due amounts remaining unpaid after allowance of the credits as provided herein shall be paid in a lump sum together with interest computed from the date each payment came due pursuant to section 85.30. IT IS FURTHER ORDERED that the costs of this action are assessed against the employer pursuant to Division of Industrial Services Rule 343-4.33 in the amount of one hundred forty-one and WAMSLEY V. K-MART CORPORATION Page 10 67/100 dollars ($141.67). IT IS FURTHER ORDERED that defendant file Claim Activity Reports as requested by this agency pursuant to Division of Industrial Services Rule 343.3.1. Signed and filed this 10th day of February, 1988. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Monty L. Fisher Attorney at Law Suite 200, Snell Building P.O. Box 1560 Fort Dodge, Iowa 50501 Mr. Joel T. S. Greer Attorney at Law 112 West Church Street P.O. Box 496 Marshalltown, Iowa 50158 1402.40, 1802, 1803,4100 Filed February 10, 1988 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER JEAN WAMSLEY, N/K/A JEAN KENNE, Claimant, File No. 789563 vs. A R B I T R A T I 0 N K-MART CORPORATION, D E C I S I 0 N Employer, Self-Insured, Defendant. 1402.40, 1802, 1803, 4100 Sixty-one-year-old claimant at time of injury, age 63 at time of hearing, sought benefits in the nature of running healing period or permanent total disability as a result of a back injury which had been admitted by the employer. Claimant's credibility regarding the severity of her complaints was found to be lacking as it was not corroborated by objective evidence in the record. Claimant had not made bona fide efforts to resume employment. Awarded healing period as indicated by one of her treating physicians and 15% permanent partial disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ SYLVESTER L. STEFFEN, Claimant VS. HARVESTALL INDUSTRIES, INC., File No. 789568 Employer, R U L I N G 0 N and R E Q U E S T F 0 R IOWA SMALL BUSINESS EMPLOYERS' D E C L A R A T 0 R Y WORKERS' COMPENSATION GROUP, J U D G M E N T and ADJUSTCO, INC.,and UNDERWRITERS' ADJUSTING CO., Insurance Carriers, Defendants. _________________________________________________________________ On June 19, 1987 the claimant filed a "Motion for Declaratory Judgment for Settling Bona Fide Dispute Subject to Iowa Workers' Compensation Laws 85.35(6) & 85.36(4)." There being no resistance the same comes on for determination. It is clear from a review of claimant's motion that it fails to meet the requirements for a petition for declaratory ruling. Division of Industrial Services Rule 343-X.5 indicates that an agency may refuse to issue a declaratory ruling for good cause. WHEREFORE, claimant's motion for declaratory ruling is refused for the following reasons. 1. The petition does not contain facts sufficient to demonstrate that the petitioner will be aggrieved or adversely affected by the failure of the agency to issue a ruling. 2. The agency does not have jurisdiction over all the questions presented in the petition. 3. The questions presented by the petition are also presented in a current contested case, or other agency or judicial proceeding, that may definitively resolve them. This is not only shown by claimant's motion, but is evident by a proceeding which STEFFEN V. HARVESTALL INDUSTRIES, INC. Page 2 is currently before this agency by claimant against the named defendants. 4. The facts or questions presented in the petition are unclear, overbroad, insufficient, or otherwise inappropriate as a basis upon which to issue a ruling. 5. The petition is not based upon facts calculated to aid in the planning of future conduct but is, instead, based solely upon prior conduct in an effort to establish the effect of that conduct or to challenge an agency decision already made. THEREFORE, claimant's motion for declaratory ruling is. denied and dismissed. Signed and filed this 9th day of July, 1987. DAVID E. LINQUIST ACTING INDUSTRIAL COMMISSIONER Copies To: Sylvester L. Steffen Rte. Three Box 137 New Hampton, Iowa 50659 CERTIFIED MAIL Mr. Dan L. Dudley Attorney at Law 5601 Hickman Road, Suites 3 & 4 Des Moines, Iowa 50310 BEFORE THE IOWA INDUSTRIAL COMMISSIONER JAMES W. GIBSON, Claimant, File No. 789945 VS. A R B I T R A T I 0 N GRIFFIN PIPE PRODUCTS CO., D E C I S I 0 N Employer, Self-Insured, Defendant. STATEMENT OF THE CASE This is a proceeding in arbitration brought by James W. Gibson, claimant, against Griffin Pipe Products Co. (Griffin), self-insured employer, for benefits as a result of an alleged injury of March 12, 1985. A hearing was held in Council Bluffs, Iowa, on December 10, 1986 and the case was submitted on that date. The record consists of the testimony of claimant, Jimmy Williams, Dorcas Gibson, Larry W. Beard, and Kenneth Jezierski; and joint exhibits 1 through 29. The parties stipulated that claimantOs weekly rate of compensation is $269.92; that claimant was off work from March 13, 1985 through June 2, 1985; that permanent partial disability benefits, if awarded, would commence on June 3, 1985; and that claimantOs injury of March 12, 1985 arose out of and in the course of his employment with Griffin. ISSUES The contested issues are: 1) Whether there is a causal relationship between claimantOs injury of March 12, 1985 and his asserted disability; and 2) Nature and extent of disability; specifically, claimant argues that this is a body as a whole case while defendant argues that this is a scheduled case. SUMMARY OF EVIDENCE Claimant testified that he is 53 years of age having been born October 11, 1933. He is right handed. Claimant did not complete high school and has no specialized training. He entered the armed services on January 12, 1951 and was a medic in Japan for seventeen months; he also served in Korea for nine months. He can read and write, but his math ability is only fair. Claimant testified that he started working for Griffin on GIBSON V. GRIFFIN PIPE PRODUCTS CO. Page 2 July 17, 1974 and that Griffin makes round pipe out of iron or other metals. He then described the jobs he has performed at Griffin,one of which is a "material handler." He has also worked as a "second helper" and was paid a different rate for this job than he was or is paid for the material handler job. Griffin is a union shop. He stated that he was a laborer for Griffin also. Prior to coming to work for Griffin, claimant worked in a freezer and also drove a forklift. He has had a job with county government and has dug water wells in the past. He also has farmed with his father. He did not receive any specialized training for any of these jobs. Claimant testified that Griffin has three shifts and that there is a pay differential for these shifts. Jobs are bid on at Griffin and seniority is the determining factor in the bidding process. An individual can be bid out of a job. Claimant testified that on March 12, 1985, he was a "second helper" for that day. His rate of pay for that day was $10.03. He was injured when hot iron "bubbled out" and caused burns on his body. He received injuries to his left hand, neck, and "all down the front of me" and to his left foot. He testified that his face was not affected as he had goggles on that were badly damaged. Claimant was hospitalized as a result of his burns. He described the doctors that treated him in the hospital and was in the hospital for ten days. He was then "on therapy" until June 3, 1985. Subsequent to June 3, 1985, claimant was an outpatient and also had pigskin put on his left foot. Claimant described two particularly bad burns to his left foot. He described the burns on his neck, left hand, one of his shoulders, and on his "belly.O Claimant testified that when he returned to work in June 1985, he was assigned as a material handler as it was suggested that he stay away from hot iron. As a material handler, he drives a forklift. Claimant was shown exhibit 29 and then testified that he was paid $9.19 per hour on June 3, 1985. He testified that on June 3, 1985, a second helper would have been paid $9.63. He testified that his left foot and left hand bothered him on June 3, 1985. He has sustained loss of strength and grip in his left hand. He currently has problems with his left foot and his stomach itches when it gets warm where he works. Claimant testified that after June 3, 1985, he bid on a job working "on the trough." He was on this job for only a short period of time because it caused his left hand to swell up. He reported this swelling to his employer and was then reassigned to the material handler job after he was treated for this problem by Karen Proberts, M.D. A safety committee at Griffin recommended that claimant stay away from areas where it is hot. Claimant testified that the material handler job paid less than the trough job. Claimant testified that the material handler job now pays $9.59 plus a 30 1/2 cent raise. The trough job now pays $9.92 per hour plus a 30 1/2 cent raise. Claimant testified that he worked the day prior to the hearing held on December 10, 1986 and that he was still experiencing physical problems. His left foot hurt around the GIBSON V. GRIFFIN PIPE PRODUCTS CO. Page 3 top of the arch and he cannot stand as long as he used to. Climbing stairs is a problem for him. Claimant's left hand is currently stiff and sore and is sensitive to heat. He still has loss of strength and loss of ability to lift. Currently, the claimant has problems with his torso when he gets around too much heat. The area that was burned on March 12, 1985 starts to itch at work when he gets around too much heat. Also, temperature changes affect claimant's torso area, left hand and left.foot. Claimant has very little exposure to heat at Griffin while working as a material handler. Claimant currently has a problem lifting with his left hand and a problem climbing because of his left foot. Claimant attributes all of his physical problems described above to the burn incident of March 12, 1985. Claimant acknowledged that he does have diabetes and that he takes medication for this condition. He then testified that the healing of his burns has been "awfully slow." Claimant testified that in his opinion he is too old to seek retraining or find other work. Claimant commented that if Griffin closes, he would tell the truth about his physical condition on a job application. He then stated that his right foot is a club foot. On cross-examination, claimant acknowledged that he has Oworked regularly" from June 3, 1985 through December 9, 1986. He also acknowledged that in April 1986, he was off work for a week or two because of his diabetic condition. Claimant acknowledged that he "can handle" his material handler job. Claimant was shown exhibit 21 and then acknowledged that his job classification on March 12, 1985 was ductile iron treater and that he worked in a different capacity on that particular day pursuant to the union contract provision. Claimant was then shown exhibit 29 and testified that a ductile iron treater is in job class 5. Claimant was shown exhibit 22 and then testified regarding the jobs that he bid on after returning to work in 1985. In addition to listing the jobs that claimant did, in fact, bid on,this exhibit sets out the jobs claimant could have bid on. Claimant testified that his current job class is class 4. On March 12, 1985, as indicated above, claimant's job class was class 5. Claimant acknowledged that he could be a pipe inspector on the second or third shift and that this job pays more money than his current job. Claimant specifically acknowledged that he is physically able to do the pipe inspector job but that he bid out of this job. Claimant testified that on September 9, 1985, he bid on a cast machinist job, but then testified that he bid on this job even though he was not physically able to do the job. Subsequently, claimant attempted to do the trough job but a "joint decision" was made that he should not do this job. On February 26, 1986, claimant bid on the job of Mag Tr Prep which he acknowledged as a "hot job." Claimant testified on redirect that the second shift at Griffin starts in the afternoon and ends at midnight. He also testified that the first bid after he returned to work in 1985 was the bid of September 9, 1985 involving the cast machinist GIBSON V. GRIFFIN PIPE PRODUCTS CO. Page 4 position. He then testified that in September 1985 he did not know that his hand would swell up if he worked in such a position. He then testified that he worked in the trough job for a short period of time in September 1985. On November 27, 1985, claimant bid on the trough job again and then changed his mind. He testified that he bid on the cast machinist job on January 7, 1986 even though he did not think he could handle the job; he would have to lift cores weighing 40 to 50 pounds and he would have to do this with both hands. He was of the opinion that he could not handle this job because of his burn injuries of March 12, 1985. On recross-examination, claimant testified that he was a ductile iron treater on March 11, 1985. He then testified that on March 12, 1985, he was a ductile iron treater initially but then stepped into the second helper position on that date with a little extra pay. He acknowledged that on March 13, 1985, he would have been a ductile iron treater once again in all likelihood. Jimmy Williams testified that he is a trough operator at Griffin. He knows claimant and testified that claimant's left hand swelled up in September 1985 when he was around heat at work. He testified that claimant was counseled to "get out of the hot areas" such as second helper or ductile iron worker. Williams testified that Griffin is good at getting people back to work. On cross-examination, he acknowledged that he is neither a foreman nor a shift supervisor. Dorcas Gibson testified that she is claimant's spouse and that swelling resulted when claimant worked the trough job in September 1985. After June 1985, when claimant returned to work, he complained about stiffness in his left hand, that his left foot hurt, that his torso bothered him, and that heat bothered him. She testified that claimant cannot now stand as long as he was able to prior to March 12, 1985. Claimant also has trouble walking. She then explained the family problems that would result if claimant worked the second or third shift at Griffin. Larry W. Beard testified that he has known claimant since 1974. Beard has been employed by Griffin at Council Bluffs since October 1978. Beard did not witness the incident of March 12,, 1985 but was called to the scene and observed claimantOs injuries. Beard has observed that burn victims are sensitive to heat for as long as a year after their return to work. He then testified that, based on his observations, "most will come out of it." He testified that Griffin "puts people away from the heat" when they come back. He characterized claimant as a "good regular steady employee" after his return to work in 1985. He also testified that claimant was sensitive to heat in his hands prior to March 12, 1985. On cross-examination, Beard acknowledged that as a general rule Griffin employees do not have the heat sensitivity problems experienced by claimant prior to March 12, 1985. Kenneth Jezierski testified that he is the plant personnel manager for Griffin at Council Bluffs and has worked in this GIBSON V. GRIFFIN PIPE PRODUCTS CO. Page 5 capacity since October 1985. He has workers' compensation responsibilities and knows claimant. He was shown exhibit 21 and testified that claimant's job classification on March 12, 1985 was that of ductile iron treater with a rate of pay on that date of $9.30 per hour. On June 3, 1985, claimant returned to the first shift as a material handler with a rate of pay of $9.19 per hour. This witness then testified that exhibit 29 is a part of the local union agreement and sets the wage rate for various job classifications. A ductile iron treater is a class 5 job and material handler is a class 4. Since June 1985, claimant has remained in the position of material handler with a pay increase to $9.59 per hour effective November 18, 1985. He is now paid $9.59 per hour plus the 30 1/2 cent pay raise. A ductile iron treater is now paid ten dollars and one-half cent per hour. Currently, the difference in rate of pay between a material handler and a ductile iron treater is eleven cents per hour. Jezierski testified that permanent job changes are made through the bidding system, and there is a trial period of up to five days on a particular job. Jezierski testified that he is the author of exhibit 22. Exhibit 22 lists job classes equal to or higher than claimant's job classification of 4. On cross-examination, Jezierski acknowledged that an "upgrade" could be for one-half hour or a day with a maximum period of fourteen days. At the end of fourteen days, an individual would have to bid on the job as a conditional job. Exhibit 2 is claimant's deposition taken on June 12, 1986. On page 10, claimant testified that seniority was the reason for his temporary assignment on March 12, 1985 as a second helper. On page 12, claimant testified that he had no protective clothing on March 12, 1985 except goggles. On page 15, he stated that he got burned where the right arm joins the body. Exhibit 3 is the deposition of Joel N. Bleicher, M.D., taken on September 18, 1986. He has been a plastic surgeon since 1980; he specializes in burns. He first saw claimant on June 13, 1985. His diagnosis is thermal burn injury caused by the incident of march 12, 1985. Claimant has had "occupational therapy" to improve the range of motion of his left hand. Claimant was seen again on June 10, 1986 with complaints of hyperesthesia of the skin of the abdomen and itching of the abdomen and left foot. on page 13, Dr. Bleicher testified: "He may have some residual stiffness and swelling in his hand forever. By the same token, he may gradually improve to the point where he has no extensive persistence of his problems." In June 1986, claimant still had swelling and he complained of stiffness in his left hand. On page 15, Dr. Bleicher testified that the loss of motion in claimant's left hand is probably permanent. Dr. Bleicher also testified that the impairment to claimant's left foot is probably permanent, but claimant's torso problem is probably not permanent. Dr. Bleicher gave claimant a ten percent whole body rating. The following exchange appears on page 20: BY MR. SCIORTINO: GIBSON V. GRIFFIN PIPE PRODUCTS CO. Page 6 Q. What kind of complications in the future can arise from burn injuries like those that Mr. Gibson has? A. I don't really foresee any future complications from this particular burn injury. On page 21, Dr. Bleicher stated that no future treatment, surgery or medication was probably needed by claimant. On pages 24-25, Dr. Bleicher stated: "The hypersensitivity which the other burned areas have may make it more difficult for him to work, yes." (Emphasis added.) On page 26, he acknowledged the reduction of his whole body rating from ten to five percent. Exhibit 6, page 23, shows the areas of claimant's body that were burned on March 12, 1985. Exhibit 10, page 1, dated June 15, 1985, is authored by Dr. Proberts and reads in part: "Mr. James Gibson was first seen at the emergency room at Mercy Hospital on March 13, 1985 with burns to the neck, right shoulder, abdomen, scrotum, legs and left foot." On page 2, Dr. Proberts stated: "His prognosis at this time is excellent." On page 2, Dr. Proberts stated: At this time I would be hesitant in recommending a percentage rating for permanent partial disability because he should have complete recovery of function and probably also sensation in all areas. However, I would recommend a GIBSON V. GRIFFIN PIPE PRODUCTS CO. Page 7 referral to Dr. Joel Bleicher for more specific rating as to partial disability secondary to burn scarring. Exhibit 11, dated July 1, 1985, is authored by Ronald K. Miller, M.D., and contains a three percent rating for claimant's left foot and a three percent rating for claimant's affected hand. Exhibit 13 also contains these three percent ratings. Exhibit 14, dated in March 1986, is authored by Dr. Proberts and reads in part: I did examine James W. Gibson again on February 20, 1986. At that time Mr. Gibson, on examination, has some reddened areas on his left hand which are left over scars from the previous burn. However, there is good softness of the tissue, no contracture of the scars and no limitation of motion, sensation or function of the hand. .... In reviewing his examination at this time, I do feel like there is very little evidence of permanent disability in the hand, if any. I do feel that he has some limitation of the fourth and fifth toes of the left foot, possibly secondary to the injury from the burn, but again this should not cause significant permanent disability. Exhibit 15, dated April 9, 1986, is authored by Dr. Proberts and therein she agrees with Dr. Miller's two three percent ratings, and states the basis for this opinion. APPLICABLE LAW AND ANALYSIS The claimant in this case bears the burden of showing that Othere resulted an ailment extending beyond the scheduled loss....O. Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, 1262, 130 N.W.2d 667, 669 (1964). This is a question of fact determined from the record. Id. at 1257, 130 N.W.2d at 669. The Iowa Supreme Court held that such a showing had been made in Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). There the court stated that: [W]hile the trauma, the injury, was limited to the right foot, the Commissioner found claimant, as a result thereof, was affected with an ailment that extended beyond the scheduled loss of a foot, or the use thereof. The schedule is not applicable. Id. at 292, 110 N.W.2d at 664. The Iowa court reached a similar conclusion in Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). In Dailey, the claimant sustained an injury to his right femur. his injury caused a shortening of the leg, which in turn resulted in a tilting of the pelvis and curvature of the spine., Id. at 763, 10 N.W.2d at 571. On the basis of this evidence, the court held GIBSON V. GRIFFIN PIPE PRODUCTS CO. Page 8 that claimant's initial scheduled injury resulted in a nonscheduled permanent ailment, and that he was entitled to nonscheduled permanent disability benefits. Id. at 765, 10 N.W.2d at 573-74. The Iowa Court of Appeals stated in Caylor v. Employers Mut. Cas. Co., 337 N.W.2d 890, 893 (Iowa App. 1983): The statute which confers the right to collect disability compensation can also limit the amount of compensation payable for specifically enumerated disabilities. Barton v. Nevada Poultry Co., 253 Iowa 285, 289, 110 N.W.2d 660, 662 (1961). Thus, Iowa Code SS 85.34(l) provides a statutory compensation schedule for the loss of specifically enumerated members. "The very purpose of the schedule is to make certain the amount of compensation in the case of specific injuries and to avoid controversies." Dailey v. Pooley Lumber Co., 233 Iowa 758, 760, 10 N.W.2d 569, 571 (1943). If a claimant's impairment is limited to a scheduled member Owe are not concerned with the question of the extent of disability. The compensation in that event is definitely fixed according to the loss of use of the particular member." Dailey, 10 N.W.2d at 571. See also Graves v. Eagle Iron Works, 331 N.W.2d 116, 118-119 (Iowa 1983). "[W]here the result of an injury causes the loss of a foot, or eye, etc., such loss, together with its ensuing natural results upon the body, is declared to be a permanent partial disability and entitled only to the prescribed compensation." Barton 253 Iowa at 290, 110 N.W.2d at 663. (Emphasis added) The claimant in this case clearly failed to establish a whole body injury. Assuming for purposes of discussion that claimant could not do the trough job because of the swelling of his left hand, this does not establish a whole body injury because only a scheduled member is involved. The burns to claimant's shoulder and torso have not affected claimant's earning capacity, in my opinion, given the evidence of record. It is my judgment that claimant could now do the ductile iron treater job or the second helper job, or even the trough job, with the only possible physical problem being that of swelling of the left hand. It will be found that claimant sustained permanent partial impairment to both his left foot and left hand. The three percent ratings of record are persuasive. Both Drs. Miller and Proberts have given these ratings. Iowa Code section 85.34(2)(s) therefore applies. See Simbro v. DeLong's Sportswear, 332 N.W.2d 886 (Iowa 1983). Using the impairment tables of record (exhibits 24-28), it is determined that claimant is entitled to fifteen weeks of permanent partial disability commencing on June 3, 1985. He is also entitled to healing period benefits from March 13, 1985 through June 2, 1985. The fifteen weeks of permanency benefits is computed by converting the three percent ratings of GIBSON V. GRIFFIN PIPE PRODUCTS CO. Page 9 record into whole body ratings and then using the "combined values chart" to arrive at a three percent combined rating. Three percent of five hundred weeks is fifteen weeks. It is also concluded that claimant established a causal connection between the impairment to his left foot and left hand. Dr. Bleicher's testimony in this regard is persuasive. Defendant's argument to the contrary is frivolous. FINDINGS OF FACT 1. Claimant started working for Griffin on July 17, 1974. 2. On March 12, 1985, claimant's job classification was ductile iron treater, but he was working as a second helper on that particular day as a temporary assignment. 3. On March 12, 1985, claimant was burned by hot iron on his neck, right shoulder, abdomen, scrotum, legs, left foot, and left hand. 4. Claimant's injury of March 12, 1985 resulted in permanent impairment to claimant's left foot and left hand, but not to his abdomen, neck or right shoulder. 5. The impairment to claimant's left hand is three percent. 6. The impairment to claimant's left foot is three percent. 7. Claimant's stipulated weekly rate of compensation is $269.92. CONCLUSIONS OF LAW 1. Claimant established by a preponderance of the evidence that there is a causal connection between his work-related injury of March 12, 1985 and some permanent partial impairment to his left hand and left foot. 2. Claimant established entitlement to healing period benefits from March 13, 1985 through June 2, 1985 and then fifteen (15) weeks of permanent partial disability benefits commencing on June 3, 1985, pursuant to Iowa Code section 85.34(2)(s) as interpreted in Simbro v. DeLong's Sportswear, 332 N.W.2d 886 (Iowa 1983). ORDER IT IS THEREFORE ORDERED: That defendant pay the weekly benefits described above at a rate of two hundred sixty-nine and 92/100 dollars ($269.92). That defendant pay accrued benefits in a lump sum and pay interest pursuant to section 85.30, The Code. GIBSON V. GRIFFIN PIPE PRODUCTS CO. Page 10 That defendant be given credit for benefits already paid to claimant. That defendant pay the costs of this action, pursuant to Division of Industrial Services Rule 343-4.33, formerly Industrial Commissioner Rule 500-4.33. That defendant shall file claim activity reports, pursuant to Division of Industrial Services Rule 343-3.1(2), formerly Industrial Commissioner Rule 500-3.1(2), as requested by the agency. Signed and filed this 12th day of January, 1987. T. J. McSWEENEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Michael A. Sciortino Attorney at Law 221 South Main Council Bluffs, Iowa 51501 Mr. James E. Thorn Attorney at Law P.O. Box 398 Fifth Floor Park Bldg. Council Bluffs, Iowa 51502 1402.40; 1802; 1803.1 Filed 1-12-87 T. J. McSweeney BEFORE THE IOWA INDUSTRIAL COMMISSIONER JAMES W. GIBSON, Claimant, File No. 789945 VS. A R B I T R A T I 0 N GRIFFIN PIPE PRODUCTS CO., D E C I S I 0 N Employer, Self-Insured, Defendant. 1402.40; 1802; 1803.1 Held in arbitration that claimant failed to establish whole body injury. Claimant did, however, sustain permanent partial impairment to his left hand and his left foot. He was awarded healing period benefits and 15 weeks of permanent partial disability benefits pursuant to Iowa Code section 85.34(2)(s) and Simbro v. DeLong's Sportswear, 332 N.W.2d 886 (Iowa 1983).