BEFORE THE IOWA INDUSTRIAL COMMISSIONER STEVE LONG, Claimant, File No. 791609 vs. A R B I T R A T I O N NATIONAL BY-PRODUCTS, D E C I S I O N Employer, F I L E D and MAY 26 1989 LIBERTY MUTUAL INSURANCE CO., IOWA INDUSTRIAL COMMISSIONER Insurance Carrier, Defendants. INTRODUCTION This is an arbitration proceeding brought by Steve Long, claimant, against National By-Products, employer, and Liberty Mutual Insurance Co., insurance carrier, defendants. The case was heard on November 16, 1988, in the Industrial Commissioner's office in Des Moines, Iowa. The record consists of the testimony of claimant. The record additionally consists of the testimony of Charles Wayne Wilson, Greg Allen Rice and Opal Long, all witnesses for claimant. For defendants' case, there is the testimony of Lewis Vierling, and the testimony of Michael Raymond. Also the record is comprised of joint exhibits A1-80 and defendants' exhibit C for rebuttal purposes. Prior to the hearing the claimant offered exhibits B1 and B2. Defendants objected that the medical reports were not timely served. The undersigned finds that exhibits B1 and B2 are not admissible. The basis for that decision is that claimant neglected to comply with paragraph 6 of the hearing assignment order which was filed on September 28, 1988. Specifically the provision provides: 6. Witness and Exhibit Lists. A list of all witnesses to be called at the hearing and a list of all proposed exhibits to be offered into the evidence at the hearing along with copies of all written exhibits not previously served shall be served upon opposing parties no later than fifteen (15) days prior to the date of hearing. Only those witnesses listed will be permitted to testify at the hearing unless their testimony is clearly rebuttal or sur-rebuttal. Medical records, practitioners reports and all other written evidence shall not be admitted as exhibits at the hearing unless they have been timely served upon an opposing party as ordered herein. The service of witness lists pursuant to this Order does not modify the requirements of Iowa Rule of Civil Procedure 125(c) to supplement responses to discovery as to experts not less than thirty (30) days prior to hearing. Claimant neglected to serve exhibits B1 and B2 pursuant to paragraph 6, these exhibits are not part of the record. ISSUES As a result of the prehearing report and order submitted and approved on November 16, 1988, the issues presented by the parties are: 1. Whether there is a causal relationship between the alleged injury and the disability; 2. Whether claimant is entitled to temporary disability/healing period benefits or permanent partial or total disability benefits; 3. Whether claimant is entitled to medical benefits under section 85.27; 4. Whether claimant is entitled to benefits under section 86.13. STIPULATIONS Prior to the hearing, the parties entered into a number of stipulations. These stipulations are as follows: 1. The existence of an employer-employee relationship between claimant and employer at the time of the alleged injury; 2. That claimant sustained an injury on April 1, 1985, which arose out of and in the course of employment with employer; 3. That the time off work for which claimant now seeks either temporary total disability or healing period benefits is stipulated to be from April 2, 1985; 4. The type of permanent disability, if the injury is found to be a cause of permanent disability, is stipulated to be an industrial disability to the body as a whole; 5. In the event of an award of weekly benefits, the rate of weekly compensation is stipulated to be $188.94 per week; and, 6. Claimant's entitlement to medical benefits under Iowa Code section 85.27 have been or will be paid by defendants. FACTS PRESENTED Claimant is a high school graduate. At the time of the hearing he was 30 years old. He commenced his employment with defendant on January 12, 1979. Claimant was hired as a truck driver who was assigned the task of picking up barrels of animal waste and hides from meat lockers. The barrels were plastic and held up to 250 pounds. On April 1, 1985, claimant attempted to lift a barrel weighing approximately 150 pounds at the Bedford Locker. Claimant testified he felt a sharp pain in his lower back and he fell to his knees. Claimant stated he felt the pain in his right leg. Claimant had to terminate his regular route because of the pain. He never returned to work at defendant's establishment after that date. Claimant testified at his hearing that he had been to a chiropractor prior to April 1, 1985. According to claimant, he had injured his back at work, but he had not reported the injury to anyone at work. Claimant's medical records indicate he was hospitalized at Rosary Hospital in Corning, Iowa from April 1, 1985 to April 9, 1985, where conservative treatment was ordered by Ted P. George, D.O. Claimant was then referred to an orthopedic surgeon, William R. Boulden, M.D., for examination on April 26, 1985. Dr. Boulden, in his report of May 14, 1985, opined: Follow up of low back pain with left leg pain. The CAT scan done in Des Moines, Metrizamide type, showed the patient to have some abnormalities especially the L3-4 disc on the left side. The right side shows the consistency of a conjoined nerve tendon, so I do not think this is anything to be concerned about. However, there is also some spinal stenosis noted at L4-5 level. Therefore, with these multiple abnormalities at 2-3 different disc levels, I think it is imperative that we find out the exact source or his pain, to make sure we give him the right options for treatment. Therefore, I have recommended discograms to be done with the possibility of following up with CAT scans after the discograms. He is agreeable to this, since he still continues to have a significant amount of left leg sciatica. Therefore, we will re-evaluate him after his discograms and CAT scan. Claimant requested a second opinion. He was then seen by Robert A. Hayne, M.D., a neurological surgeon. He diagnosed claimant as having a "myofascial strain of the low back region." In a report dated October 7, 1985, Dr. Hayne opined: I last wrote you July 9, 1985, regarding Steven Long. He was seen by me for examination on August 19, 1985. At that time, he had not returned to work. He was still having pain in the low back region and in the back of the left lower extremity. Neurological examination was essentially within normal limits. His next appointment with me in the office is on October 21, 1985. It was recommended to him in August that he would be able to return to some type of employment. In view of his persistent low back pain, he probably should obtain a job that does not require him to lift weights over 40 pounds. I feel that he has reached the end of his period of maximum medical improvement. I will assess him for a permanent impairment at the time of his October 21 appointment. Dr. Hayne referred claimant to the neurology outpatient clinic at the University of Iowa. R. W. Fincham, M.D., and Steve Geisler, M.D., determined in their report of February 11, 1986: Our impression and diagnosis was 1) Low back pain. Our recommendations were 1) we concur with the previous decision not to pursue any surgical exploration presently and to avoid heavy lifting as recommended by you. .... In conclusion we concur with the previous decision not to pursue any surgical exploration presently and to avoid any heavy lifting as recommended by you. He should return to our clinic on a PRN basis. As of March 14, 1986, Dr. Hayne determined the following: I have not seen Steven Long for examination since he has been evaluated at Iowa City. I feel at this time that his permanent disability is approximately 9% of body total. I base this on his CT and myelographic findings. Claimant also sought the opinion of Thomas B. Summers, M.D. In his report of May 14, 1986, Dr. Summers wrote: I have had an opportunity to personally review the radiographic films obtained at the time of the examinations on June 19, 1985. In my opinion, the findings are essentially normal. Certainly, there is no definite evidence of a herniated intervertebral disc.syndrome or other abnormality. CLINICAL IMPRESSION: Psychophysiologic reaction, musculoskeletal type. COURSE AND PROGNOSIS: In my opinion, the functional element here is sizeable in degree and contributing to the symptomatology in whole or in large part. Quite frankly, this young man is capable of regular and gainful employment and without restrictions, if he can be so motivated, however, therein lies the problem. Claimant then returned to Dr. Boulden. Dr. Boulden, in his report of September 17, 1986, opined: As it sounds by your letter and what I have been told by the patient, there still seems to be some contradictions in what is really happening. To set the record straight, I feel that the patient's best treatment and course of action is a fusion based on the fact that most of his pain is in the back. Therefore, with what we have found, I feel that a fusion technique would be in his best interest. If however, most of his pain and symptomatology was in the legs, then obviously a more conservative approach of discectomy may be in order. However, this does not seem to hold true in this gentleman's case, at least that is what he tells me. Dr. Boulden also determined in a follow-up report, dated October 1, 1986: As you know, I have recommended a fusion procedure to treat Steven Long's problem. His problem is basically one of back pain and not so much of leg pain. Therefore, I feel any surgery that just attacks the disc without fusion, in my opinion, will probably continue to leave the patient with chronic back complaints. I feel that in his best interest that the only logical choice is a fusion after inspection of the disc. Dr. Hayne later concurred with the opinion of Dr. Boulden. In the letter of January 26, 1987, Dr. Hayne wrote: I am enclosing a copy of the MRI report on Steve Long. As you will note, this does show a disc bulge in the lateral foramen on the left side at the L-4, 5 level and there is minimal displacement of the exiting L-4 nerve root seen. In addition, a disc herniation in the midline at the L-5, S-1 level and slightly to the left is present and there appears to be mild displacement of the neural elements at that level also. My recommendations at this time depend upon his pain. Since he has had considerable pain, I feel at this time that surgery is probably indicated. My recommendation at this time would be a laminectomy with removal of disc material that is herniated at the 4th and 5th lumbar segments. In view of this being his first operative procedure that I would not recommend a fusion at this time. I feel that with a discectomy and possible alteration of his work that a fusion could be avoided. In any event, whatever the decision is, I do not feel that he will be capable of returning to heavy labor and should have restrictions in the amount of lifting that he is required to do. In February of 1987, Dr. Hayne modified his earlier opinion. He wrote on February 27, 1987: I would recommend at this time that Mr. Long continue on nonsurgical measures. In my experience, surgically treating patients with the clinical course and the findings that we have on the CAT scan and myelography on Mr. Long, is generally disappointing. I would recommend that he be seen in the Low-Back Clinic in Iowa City. He appears to be indefinitely incapacitated from such work as he had at the National By-Products Company. Hopefully if he can gain some type of work where his lifting would be limited to around 30-40 pounds, and even this, not of a repetitive nature, he would be able to be gainfully employed. Eventually, claimant had a posterolateral fusion, L4-S1 with Knodt's rodding and discectomies L4-5, L5-S1. Subsequent to the surgery, Dr. Boulden wrote in his notes for October 15, 1987: Follow up of posterolateral fusion L4-S1 with Knodt's rodding and discectomies L4-5, L5-S1. The tomograms in my interpretation show the fusion to be intact very well on the right side with a little question on the left side. However because he has a unilateral fusion I feel we can end his healing period. At this point in time I feel the patient needs job vocational rehabilitation. I have counselled him that he should not do a job that involves prolonged sitting or do any bending, twisting, or lifting activities with his back. I feel that by doing this he should be able to be a productive individual once again. I have left his appointment open, but I will be happy to evaluate any jobs for him. At this point in time I feel he has a 15% impairment of the spine based on the fact of fusion. Claimant testified he last saw Dr. Boulden on February 24, 1988. It was also the last occasion where claimant had seen any physician. At his hearing, claimant testified he had performed odd jobs at the rate of $3.50 to $5.00 per hour since leaving the employ of defendant. Claimant reported he worked at his own pace. He performed such tasks as gardening, mowing, cleaning swimming pools, driving a tractor and doing farm chores. Claimant also testified concerning the jobs for which he had applied since working at defendant's establishment. Charles Wayne Wilson testified on behalf of claimant. Mr. Wilson stated he had hired claimant since the fall of 1987 to perform various farm chores on the Wilson farms. Mr. Wilson testified he paid claimant $3.50 per hour and claimant performed light jobs. Greg Allen Rice also testified on behalf of claimant. Mr. Rice testified that he is engaged in farming. He indicated he had first hired claimant to assist with planting in the spring of 1988. Mr. Rice advised the undersigned that claimant only did lighter type jobs, and because of that fact, claimant was terminated. Ms. Opal Long testified she is claimant's mother. She stated that prior to April 1, 1985, claimant had had no serious back problems. She also reported she had observed her son since the date of the work injury, and in her opinion, her son was only able to perform part-time light duty work. Lewis Vierling testified on behalf of defendants. He reported he was engaged as a vocational rehabilitation consultant. He indicated he was assigned this particular case. According to Mr. Vierling, the first step which he did was to contact claimant's attorney, William Garretson, for an appointment. The initial contact was made in August of 1988. However, according to the witness, Mr. Garretson was unable to keep the appointment. Consequently, a second appointment was set for August 19, 1988. Mr. Vierling indicated he met with Mr. Garretson and goals for vocational rehabilitation were discussed. Mr. Garretson informed Mr. Vierling he only wanted claimant to meet with Mr. Vierling when Mr. Garretson was present. Mr. Vierling stated an initial evaluation of claimant was made. However, not much else was done for claimant because Mr. Vierling believed there was no "open door" to claimant. Normally, the witness testified he would not continue to meet with a claimant in the presence of his attorney after an initial evaluation. Rather, Mr. Vierling stated he would meet alone with a claimant and provide monthly reports to a claimant's attorney. In the opinion of the witness, claimant's attorney was attempting to frustrate the goals of vocational rehabilitation because the attorney was requiring all consultations to be done in the attorney's presence. Mr. Vierling testified there was only limited cooperation and only minimal progress. 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 injury of April 1, 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). The opinions of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). An opinion of an expert based upon an incomplete history is not binding upon the commissioner, but must be weighed together with the other disclosed facts and circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867 (1965). The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. Burt, 247 Iowa 691, 73 N.W.2d 732 (1955). In regard to medical testimony, the commissioner is required to state the reasons on which testimony is accepted or rejected. Sondag, 220 N.W.2d 903 (1974). 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, 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.2nd 756, (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, (1962). When an aggravation occurs in the performance of an employer's work and a causal connection is established, claimant may recover to the extent of the impairment. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, (1960). 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 section 555(17)a. Our supreme court has stated many times that a claimant may recover for a work connected aggravation of a preexisting condition. Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). See also Auxier v. Woodward State Hospital Sch., 266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960). An injury is the producing cause; the disability, however, is the result, and it is the result which is compensated. Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). 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). 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, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. This is so as impairment and disability are not synonymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is 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 disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial disability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen .v. Hagen, Inc., (Appeal Decision, March 26, 1985). For example, a defendant employer's refusal to give any sort of work to a claimant after he suffers his affliction may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). Similarly, a claimant's inability to find other suitable work after making bona fide efforts to find such work may indicate that relief would be granted. McSpadden, 288 N.W.2d 181 (Iowa 1980) "Claimant is not entitled to reimbursement for medical bills unless he shows that he paid them from his own funds." See Caylor v. Employers Mut. Cas. Co., 337 N.W.2d 890 (Iowa App. 1983). ANALYSIS Claimant has established by a preponderance of the evidence that his injury on April 1, 1985 is causally related to the disability on which he now basis his claim. Immediately after the incident occurred at the Bedford Locker, claimant was taken for medical attention. There is medical evidence to substantiate the necessary causal connection. The notes of Ted P. George, D.O., for April 1, 1985, indicate there is a causal connection between the barrel incident and claimant's claimed disability. Dr. George writes: 04-01-85 Lifted barrell [sic] of 125# this a.m. around 11:30. Is approx. 2:00 to 2:30 p.m. Is having pain at the area of the left hip and into the lumbar spine, it radiates down into his leg. He complains of numbness in both hands as well as some back discomfort. Complains of occasional numbness in the feet. Says he has had back problems a couple months ago but it cleared on it's own after using heat and ASA. He has otherwise had no significant medical history. Straight leg raising test in the left leg was only 45 degrees before his left hip and lower lumbar pain was elicited. Right leg was up to 60 degrees. Dorsiflextion [sic] of the foot elicited no significant difference in the pain. Continued to be lo- [sic] left hip pain. Extreme muscle spasm was present and he was unable to sit in any comfortable position. Best position was lying supine with his knees bent. Had a good sensation to pin prick over the entire lower extremities with lateral and medial hand grips were excellent. Deep tendon reflexes were +2-3/4 and equal in all areas. Herniated lumbar disc TX: It was felt due to extreme pain he should have immediate hospitalization for complete bed rest and avaluation [sic]. He may need to see an orthopedic specialist if the problem does not resolve with the bed rest alone. TPG/mcc Dr. Boulden,,after his initial examination of claimant, wrote in his report of April 26, 1985: This is a 26 year old who approximately the first part of April, was lifting a barrel in a flexed position that weighed approximately 150 pounds. He immediately had severe pain and his left leg went numb. Since that period of time, he has been treated with physical therapy, medications, and has not really responded at all. He continues to have pain in his left lower back, pain down his left leg at times, and numbness in his left leg. He has been seen by Dr. George in Corning for this problem. Physical examination shows the patient to have good left and right lateral bending, but causes pain with right lateral bending. Extension causes some discomfort. Forward flexion, he has a list to the left, and pain in the left buttock. He has negative straight leg raising on the right. Positive on the left. Achilles tendon and knee tendon reflexes are equal and symmetrical. Great toe weakness is noted on the left side. Lumbar spine films shows straightening. Also disc space narrowing L4-5, L5-S1. Impression: Rule out herniated disc, L4-5, left. Dr. Boulden corroborates the opinion of Dr. George. The requisite causal connection has been proven. The next issue to address is the issue of healing period benefits. The claimant was in the healing period from April 1, 1985 to October 7, 1985. Dr. Hayne determined that as of October 7, 1985, claimant had reached "maximum medical improvement." Claimant was also in the healing period from April 22, 1987 to October 15, 1987. The period of time reflects the period during which claimant had the posterolateral fusion L4-S1 with Knodt's rodding and discectomies at L4-5, L5-S1. Dr. Boulden determined that as of October 15, 1987, the healing period could end. According to Dr. Boulden, "he [claimant] should be able to be a productive individual once again." The next issue to discuss is the issue of permanency. Dr. Hayne, prior to claimant's surgery, determined claimant was 9 percent functionally impaired. Dr. Hayne did not provide any other functional impairment rating subsequent to claimant's surgery. Dr. Boulden, as of October 15, 1987, the day he determined ended the healing period, evaluated claimant as having a 15 percent functional impairment. Dr. Boulden also stated that claimant should not work in a position where there is "prolonged sitting, bending, twisting or lifting activities; with his back." Claimant maintains he has an industrial disability. Claimant alleges he has a loss of earning capacity because of his work injury. In support of his allegations, claimant maintains he has only been able to perform light duty type jobs on a part-time basis. Claimant reports he has sought employment at the following business establishment's: Purina of Corning, UARCO, Wirecraft Systems, Iowa Outdoor, Bunn O'Matic of Creston, and at a sporting goods store. Claimant has been refused employment at the establishments, although the reasons cited for nonemployment are unclear. It is not evident claimant has been refused employment because of his back condition. In at least two instances, claimant did not know why he was refused employment. Claimant was offered a position as a feed salesman with Mormon Feed. However, claimant testified he never met with a representative of the company because claimant believed he would.not be able to perform any deliveries. Claimant reports he was offered no vocational rehabilitation from Management Consulting and Rehabilitation Services, Inc. An initial assessment was completed by Ms. Barbara Chaldy on September 30, 1985. Very little was accomplished after that date. The case was transferred to another consultant, Lewis Vierling. Mr. Vierling testified his efforts were frustrated by claimant's attorney, and there was only limited cooperation. It is the determination of the undersigned that neither the claimant and his attorney, nor the employer in conjunction with Management Consulting and Rehabilitation Services, Inc., engaged in full-hearted cooperative efforts for vocational rehabilitation. From the facts presented at the hearing, it appears little more than lip service was given by either side to vocational rehabilitation. As far as claimant's educational background and experience are concerned, claimant has a high school diploma. Claimant has also had a one year course in auto mechanics at Southwest Community College, and a six month course in auto body skills. While claimant has successfully completed the one year course in auto mechanics, claimant has not worked in that field. Other than claimant's employment with National By-Products, claimant has engaged in "handyman" type activities. He has also worked as a farmhand for both Mr. Wilson and for Mr. Rice. However, there is evidence to indicate claimant is unable to perform all types of agricultural duties. Claimant has been able to continue with his leisure activities despite his back injury. Claimant can still hunt, fish and trap. He is able to continue with the sport of archery. Claimant engages in ice fishing. There is no evidence the extreme cold aggravates his condition. Claimant raises hunting dogs. He is able to train them and claimant can walk several miles with the dogs in order to exercise them. Claimant's back condition is not affected by these activities. Claimant does not appear terribly motivated to find work other than casual labor or part-time seasonal farm,work. It does not appear to the undersigned that claimant has made a real effort to seek full time gainful employment. Claimant has indicated on more than one occasion, he is unwilling to seek employment outside of a 30 mile radius from his home. In light of the foregoing, and in light of: 1) the personal observation of claimant; 2) agency expertise, (Iowa Administrative Procedures Act 17A.14(s); and, 3) claimant's testimony, the undersigned finds claimant has a 20 percent industrial disability as a result of his injury on April 1, 1985. Since defendants have stipulated all medical bills under section 85.27 have been or would be paid, the only issue to address is whether claimant is entitled to benefits under section 86.13. In the prehearing report, the parties write at item number 11 the following: Claimant's claim for 86.13 which has been bifurcated from these proceedings: (X) Remains asserted. The parties stipulated to item 11 in error. According to the hearing assignment order which was filed by Deputy Industrial Commissioner Helenjean Walleser on September 28, 1988, section 86.13 was listed as a hearing issue under paragraph three. There was no mention of the fact on the hearing assignment order that the issue was bifurcated. Since the prehearing deputy did not designate 86.13 as a bifurcated issue, section 86.13 remained an issue to be proven at the hearing held on November 16, 1988. Section 86.13 of the Iowa Code provides in relevant portion: If a delay in commencement or termination of benefits occurs without reasonable or probable cause or excuse, the industrial commissioner shall award benefits in addition to those benefits payable under this chapter, or chapter 85, 85A, or 85B, up to fifty percent of the amount of benefits that were unreasonably delayed or denied. Under section 86.13 benefits are not awarded for medical expenses. The section 86.13 benefits are only applicable to weekly compensation benefits. Zahn v. Iowa State Men's Reformatory, IV Iowa Industrial Commissioner Report 409 (1983). If it is alleged that an employer wrongfully withholds weekly compensation benefits from a claimant, the claimant must establish the benefits were withheld unreasonably in order for the claimant to receive additional benefits under section 86.13. Curtis v. Swift Independent Packing, IV Iowa Industrial Commissioner Report 88 at 93 (1983). In a previous decision before the Division of Industrial Services, a hearing deputy has ruled that it was reasonable for an employer to withhold benefits when the employer was not alerted to occurrences which would notify a reasonable person that benefits would be due or when there was no work time lost. McCormack v. Sunsprout, I-1 Iowa Industrial Commissioner Decisions 142 at 144 (1984). In a separate decision before the Division of Industrial Services, the same deputy industrial commissioner awarded benefits under section 86.13. Here there was an unreasonable delay since there were no contradictions in the claimant's claim. Willis v. Ruan Transport Corporation, IV Iowa Industrial Commissioner Report 395 at 396 (1984). In the Willis case at 396 the deputy wrote: ...Reports and letters from the doctor are consistent with claimant's statements regarding his injury. There were no ambiguities and inconsistencies in claimant's claim. Withholding benefits was arbitrary and unreasonable. The five percent award based on Iowa Code section 86.13 will be attached to healing period only. Although the evidence presented clearly relates claimant's permanent impairment to his injury, defendants will be given the benefit of the doubt as to whether or not a failure to pay permanent disability also was unreasonable. Claimant had prior back troubles and conceivably some portion of his impairment might have been related to those difficulties or to a preexisting arthritis rather than to his injury. Here, claimant has not met his burden of proving that defendants unreasonably withheld his weekly compensation benefits or that without probable cause, the defendants withheld the benefits. At the November hearing, claimant presented testimony that he received benefits from April of 1985 to February 28, 1988. There was no evidence presented that defendant acted unreasonably in any manner. Claimant cannot prove he is entitled to benefits under section 86.13. FINDINGS OF FACT AND CONCLUSIONS OF LAW WHEREFORE, based upon the evidence presented and the principles of law previously stated, the following findings of fact and conclusions of law are made: FINDING 1. Claimant sustained a back injury arising out of and in the course of his employment on April 1, 1985. FINDING 2. As a result of the injury on April 1, 1985, claimant has an attributable functional impairment of 9 to 15 percent of the body as a whole. FINDING 3. Claimant was in the healing period from April 1, 1985 to October 7, 1985 and from April 22, 1987 to October 15, 1987. CONCLUSION A. Claimant has met his burden of proving he has a 20 percent permanent partial disability as a result of his injury on April 1, 1985. ORDER THEREFORE, defendants are to pay unto claimant one hundred (100) weeks of permanent partial disability benefits at the stipulated rate of one hundred eighty-eight and 94/100 dollars ($188.94) per week as a result of the injury on April 1, 1985. Defendants are to pay unto claimant fifty-one and six sevenths weeks (51 6/7) of healing period benefits at the stipulated rate of one hundred eighty-eight and 94/100 dollars ($188.94) per week as a result of the injury on April 1, 1985. Payments that have accrued shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. Defendants are to be given credit for all benefits previously paid to claimant. Costs of the action is assessed against the defendants pursuant to Division of Industrial Services Rule 343-4.33. Defendants shall file a claim activity report upon payment of this award. Signed and filed this 26th day of May, 1989. MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. William W. Garretson Attorney at Law 1200 35th St. Suite 206 West Des Moines, Iowa 50265 Mr. W. C. Hoffmann Attorney at Law 500 Liberty Bldg. Des Moines, Iowa 50309 51803; 54000.2 Filed May 26, 1989 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER STEVE LONG, Claimant, File No. 791609 vs. A R B I T R A T I O N NATIONAL BY-PRODUCTS, D E C I S I O N Employer, and LIBERTY MUTUAL INSURANCE CO., Insurance Carrier, Defendants. 51803 Claimant sustained a back injury on April 1, 1985, which resulted in a 20 percent permanent partial disability. Claimant was not motivated to seek additional employment. 54000.2 Additional benefits under section 86.13 were not awarded to claimant. BEFORE THE IOWA INDUSTRIAL COMMISSIONER PAMELA HETHERINGTON, Claimant, File No. 791716 vs. MERCY HOSPITAL MEDICAL CENTER, A R B I T R A T I 0 N Employer, D E C I S I 0 N and F I L E D AETNA CASUALTY & SURETY COMPANY, MAR 31 1989 Insurance Carrier, IOWA INDUSTRIAL COMMISSIONER Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Pamela Hetherington, claimant, against Mercy Hospital Medical Center, employer, and Aetna Casualty & Surety Company, insurance carrier, to recover benefits under the Iowa Workers' Compensation Act as a result of an alleged injury of April 1, 1985. This matter came on for hearing before the undersigned deputy industrial commissioner May 24, 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 Nancy DeVore, and joint exhibits 1 through 8, inclusive. ISSUE Pursuant to the prehearing report and order submitted and approved May 24, 1988, the following issues are presented for resolution: 1. Whether claimant sustained an injury on April 1, 1985 which arose out of and in the course of her employment; 2. Whether the alleged injury is the cause of the disability on which claimant bases her claim; and 3. The nature and extent of claimant's permanent partial disability entitlement, if any. FACTS PRESENTED Claimant testified that on April 11 1985, while walking from the employer's parking lot towards the hospital to work, she slipped and fell on an icy spot landing on her right side. Claimant stated she was "embarrassed" by the incident and went directly to the floor on which she was working without mentioning the fall to anyone. Claimant recalled that later that day, while taking care of a patient, her arm jerked and she poked herself with a needle. Claimant testified she then filled out an incident report, went to the emergency room where splints were placed on her arm up to her elbow and that she was told to go home. Claimant offered she did not return to work until August 1985 and that when she did return her symptoms of pain in her arm, shoulder and hand were "essentially the same" as when she left work. Claimant recalled that in August 1985 she was assigned a light duty clerk position in the medical records department at a rate of pay of $4.77 per hour. Claimant stated she also received temporary partial disability benefits while doing this job but that she could not continue with this work because the repetitive motion of "flipping paper" irritated her shoulder and arm. Claimant testified she then went to the personnel department where she answered phones, filed and did mailings and that this job ended in May 1986 when a filing cabinet "tipped" on her causing a "flare-up" of her symptoms. Claimant stated she was off work again from May 1986 until November 1986 during which time she went to physical therapy, did exercises and used a TENS unit. Claimant described herself as "emotionally upset by all this" and is "frustrated" because she cannot do her regular nursing job and was not "getting any answers from the doctors." Claimant testified that when she did return to work in November 1986 her symptoms ran from her shoulder down to her hand, that currently her right upper extremity is weak, she loses her grip, drops things, has "tremors" and seems "to have lost total control" over the extremity. Claimant recalled she initially returned to a position in personnel paying $5.03 per hour and that in January 1987 she was transferred to the purchasing office where she answered phones and typed. Claimant found this work to bother her shoulder, arm and hand. Claimant testified that in the fall of 1987 her pay was changed to be equal to that of a licensed practical nurse, her regular job, and that, at the same time, she received a back pay award making up the difference between the regular pay of a licensed practical nurse and that which she had been receiving. Claimant stated that in April 1988 she was transferred to the patient accounts area where she acts as a "collections agent," a job which she does not enjoy and which she feels is not light duty or within her restrictions. Claimant denied having any complaints concerning her right side prior to April 1985 although she acknowledged she had had a number of back strains and accidents both work and non-work related. Claimant stated she "did not know" about any future employment because she "did not think [she] could do an adequate nursing job" as she cannot lift and could cause a patient harm if her hand "acted up" while providing care. Claimant explained her licensed practical nurse certification is currently inactive but that she can get it back if she meets continuing education requirements. Claimant expressed her understanding that she is still under medical restrictions, as she was when she was on the employer's light duty program and that when she was removed from the light duty program she did not see any doctor who lifted the restrictions. Nancy DeVore, who identified herself as the workers' compensation coordinator who is responsible for the overall administration of the workers' compensation program including the light duty program at Mercy Hospital, testified that the goal of the employer is to allow employees who are injured to return to work regardless of their restrictions. Ms. DeVore explained that the light duty program is for temporary placement only in that the employer has no permanent light duty positions. Ms. DeVore agreed with claimant's testimony with regard to the number of light duty jobs claimant has held since her return to work and explained that changes were made because assignments are short-term or claimant complained of an inability to do the job. Ms. DeVore opined that claimant's nursing background could be important to the correct performance of the job in patient accounts although not necessarily so and acknowledged there are other areas in patient accounts which might better utilize an LPN background. On cross-examination, Ms. DeVore stated that the light duty program is new, that claimant is one of the first employees to be placed on the program, that she did not believe claimant is able to perform the responsibilities of an LPN "today" and that claimant's current wage is $.60 per hour greater than the top scale for the position she currently holds. Medical records reveal claimant has been seen and/or treated by a number of physicians. Albert L. Clemens, M.D., surgeon, examined claimant June 3, 1985, rendered a diagnosis of reflex dystrophy, noted claimant had "obvious discoloration and coldness in the right index thumb and long finger" and stated that claimant's cervical spine x-ray, EMG and Doppler tests were basically normal. Dr. Clemens recommended claimant consider Stellate ganglion block but claimant chose not to have anything done and Dr. Clemens acknowledged he had nothing more to offer claimant in the way of treatment. Claimant was then treated by Robert C. Jones, M.D., neurosurgeon, who provided her with a series of five Stellate blocks and indicated that a Dr. Simon was going to try guanethidine synthetic block. In August 1985, claimant came under the care of William R. Boulden, M.D., who concurred with Dr. Clemens' diagnosis of reflex sympathetic dystrophy and recommended claimant be "channeled right back to" Dr. Clemens for appropriate therapy. Dr. Boulden stated on August 22,1985: "I would also recommend to get her working because she is becoming very frustrated and I feel that she could do most light activities in nursing anytime, and the only thing that would be restricted would be heavy use of the arm." (Joint Exhibit 1, page 1) Dr. Boulden continued to see claimant for shoulder pain and prescribed physical therapy, of exercising and range of motion although on March 10, 1986 he noted claimant had "really no pain" in the shoulder joint itself or in the AC joint with full range of motion. Claimant was judged as doing "status quo" until June 1986 when the file cabinet fell over and claimant caught it. Dr. Boulden noted at that time that claimant was having increasing problems with her arm and shoulder. Dr. Boulden referred claimant to the University of Iowa Hospitals and Clinics in July 1986 where claimant saw Dr. Blair who stated his impression as: Chronic pain syndrome. On the basis of the history, physical examination and special tests available to me, I can identify no specific pathology. Plan: I discussed in general terms with the patient that she has a chronic pain syndrome. I advised her that I would recommend no specific treatment. I strongly encouraged her to begin the adjustment process accepting that a specific diagnosis and treatment may not be available, that she may have an element of pain with which she will have to live in the future and to which she may need to make adjustments. I also strongly encouraged her to return to some sort of employment as soon as possible. I openly volunteered to work with any employer including Mercy Hospital to define a set of restrictions that would allow her to make a transition back into a full-time, unrestricted state of employment. The patient in general, was not accepting of and had many questions concerning these recommendation. (Jt. Ex. 1, p. 173) On October 16, 1986, Dr. Boulden advised he would end claimant's healing period since "the diagnosis is totally unknown and there is no neurological loss of strength and/loss of motion. Dr. Boulden advised he "would not" rate claimant with any permanent impairment, there being no objective findings and, with reference to restrictions on employability, stated: "I would work within the guidelines that Mr. Bower has so described, and as long as she uses proper biomechanics of the back, I think she will be able to handle most duties within these capabilities." (Jt. Ex. 1, p. 9) Claimant underwent a functional capacity evaluation March 11, 1987 which found: Pain scale: The patient reports a starting level of pain of 2 on a scale from 0 to 10. This did not substantially increase during the exam process. Stress index: The patient was able to perform a kyphotic pull of 48 foot pounds, and a lordotic pull of 54 foot pounds. This yields a stress index of .89. This is within the accepted range of normal. Maximum effort tests: The patient demonstrated a maximum floor to waist lift of 37 pounds, knuckle to shoulder lift of 35 pounds, shoulder to overhead lift of 35 pounds, carry of 32 pounds, push of 25 pounds, and pull of 25 pounds. This places her in the lowest percentile category when comparing to healthy, industrial females. The patient has no difficulty ascending or descending stairs, squatting, bending, or sitting or standing. Endurance projections: Based on the low maximum effort, we were unable to adequately project endurance projections one time every five minutes or one time ever minute. Evaluator's observations: Correlation of pain appeared to be reasonably close to what she was describing. There was a flare up of the dramatic during the examination process when she had to stop several times and lift, and then proceed on with the activity. Overall, sufficient and good body mechanics was utilized during the testing procedure. The patient did not appear to fatigue easily. Endurance projections do not appear reliable simply because we were unable to project those based on the low maximum efforts. We do feel the overall test results to be valid. Recommendations: Based on the patient's function on today's exam, the patient would be placed in a light/medium category of work setting based on her function at this time. One way to deal with this particular patient would be to place her in a possible work hardening setting. I am unsure of exactly the specific goals that we would have in mind at this time. Her strength certainly overall is decreased and her flexibility is decreased in addition. We would suggest work hardening as a possibility at this time. (Jt. Ex. 1, p. 167) Thomas W. Bower, L.P.T., recommended claimant be placed on an overall program developing strength and endurance for upper and lower body and found no evidence of physical impairment. In a joint letter dated March 24, 1987 to defendant insurance carrier, Dr. Boulden and Mr. Bower stated: "It is apparent that she will not be able to perform any frequency of lift which certainly is going to be somewhat of a detriment in terms of finding her a specific job." Claimant was seen by Alexander Matthews, M.D., of Central Iowa Surgical Associates, P.C., on approximately December 20, 1985. Dr. Matthews reported: On examination there is no pain on compression of the head and no tenderness over the cervical spine. The Adson and Roos maneuvers are negative. Deep tendon reflexes are somewhat depressed but equal bilaterally. There is no appreciable weakness in any of the muscle groups in the upper extremity and no significant sensory changes. This lady does not have a thoracic outlet compression syndrome. If she has a mild reflex dystrophy this is certainly not responding to Stellate ganglion blocks and therefore I feel that Stellate ganglionectomy is not advisable. I would advise her, however, to stop her smoking in order to prevent vasospasm and to exercise her upper extremity religiously, trying to restore full motor function. I think that she has worried herself to the point where she is afraid to use the extremity. She should be encouraged to resume full activities as soon as possible. (Jt. Ex. 1, pp. 170-171) 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). Of first concern is whether or not claimant has shown that on April 1, 1985 she sustained an injury arising out of and in the course of her employment. The claimant must prove by a preponderance of the evidence that her injury arose out of and in the course of her employment. Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). In the course of employment means that the claimant must prove her injury occurred at a place where she reasonably may be performing her duties. McClure v. Union, et al., Counties, 188 N.W.2d 283 (Iowa 1971). Arising out of suggests a causal relationship between the employment and the injury. Crowe v. DeSoto Consolidated School District, 246 Iowa 402, 68 N.W.2d 63 (1955). The claimant has the burden of proving by a preponderance of the evidence that the injury of April 1, 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.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). 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, 261 Iowa 352, 154 N.W.2d 128 Claimant has testified that she fell on the ice on April 1, 1985 while walking to work from the employer's parking lot. Claimant was in an area which defendant employer could reasonably anticipate she would be in and was there at a time and place reasonable to her employment. Claimant has consistently given the same history to all the medical practitioners with whom she has treated or by whom she has been evaluated. No evidence was presented by defendants to controvert claimant's testimony outside of pointing to a number of accidents which claimant has had that were both work and non-work related. This is insufficient to discredit claimant's recitation of the incident on April 1, 1985. Therefore, it is concluded that claimant has met her burden of establishing an injury arising out of and in the course of her employment on April 1, 1985. Concomitantly, the undersigned does not question that it was this fall which was the proximate cause of all the medical treatment which claimant has received since April 1, 1985 and therefore that it was claimant's fall that is the cause of claimant's inability to work during the period stipulated to on the prehearing report. The essential question for resolution in this case is the nature of claimant's disability, be that to a scheduled member, the upper extremity, or to the body as a whole, an industrial disability, and claimant's entitlement, if any, to permanent partial disability benefits. 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). 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). An injury is the producing cause; the disability, however, is the result, and it is the result which is compensated. Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). Claimant argues her injury is the cause of an industrial disability. However, as cited above, the question of causal connection is essentially within the domain of medical experts. It is essential to note that the treatment which claimant has received has centered on her upper extremity. When describing her current symptoms claimant, too, centers on problems with the upper extremity, notably a loss of grip, dropping things, tremors in her arm and a feeling that the arm is out of her control. No medical practitioner has advised of any disability extending into the body as a whole. In the case of Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986), the Iowa Supreme Court vacated a court of appeals decision and, although primarily dealing in that case with a hip joint, indicated that the court would look in each instance now at shoulder injuries based on the "extent of the injury." No longer does the court make a blanket determination that a shoulder injury should not be treated as a scheduled injury but rather as a body as a whole injury. The court in the Lauhoff case has ruled that the extent of the injury in each case will be examined and will be treated as a body as whole injury only if the claimant establishes that the extent of the injury extends beyond the schedule. It must be determined that claimant has failed to show her injury extends beyond the schedule. Accordingly, claimant's disability must be evaluated by the functional impairment method. Although claimant has shown that she currently has some work restrictions, no physician who either saw or treated claimant has rendered any opinion on permanent impairment. Dr. Boulden was unequivocal in his opinion that, due to the absence of any objective finding, claimant has no permanent functional impairment. Claimant has full range of motion in the upper extremity and no particular pathology has been identified by the physicians involved in claimant's care. In addition, the undersigned is not convinced that the recommendations voiced by Dr. Boulden and Mr. Bower are permanent.in nature. Claimant did not show she went through a work hardening program or a program to strengthen the upper body as recommended. There being no evidence of functional impairment, it must be determined that claimant is not entitled to an award of permanent partial disability benefits. This is not to make light of claimant's pain for the undersigned does not dispute claimant's perceptions of pain. However, it has long been the rule of this agency that pain which is not substantiated by clinical findings is not a substitute for impairment. Waller v. Chamberlain Manufacturing, II Iowa Industrial Commissioner Report 419, 425 (1981). Accordingly, claimant has established the extent of her entitlement to weekly compensation for temporary total disability and temporary partial disability for the stipulated periods from April 23, 1985 through August 27, 1985, August 28, 1985 through May 11, 1986, and May 12, 1986 through November 21, 1986. Claimant, pursuant to the stipulation found in the prehearing report and order, has been paid for these periods of time and therefore she shall take nothing further as a result of these proceedings. FINDINGS OF FACT Wherefore, based on all of the evidence presented, the following findings of fact are made: 1. On April 1, 1985, while walking from the employer's parking lot towards the hospital, claimant slipped and fell on an icy spot. 2. Claimant sustained an injury arising out of and in the course of her employment on April 1, 1985. 3. Claimant sustained an injury to her upper extremity and did not sustain an injury to the body as a whole. 4. Claimant has not sustained any permanent functional impairment as a result of the injury of April 1, 1985. 5. Claimant had periods of temporary total disability and temporary partial disability for which she has been compensated. CONCLUSIONS OF LAW Therefore, based on the principles of law previously stated, the following conclusions of law are made: 1. Claimant has established that on April 1, 1985 she sustained an injury which arose out of and in the course of her employment. 2. Claimant has established that the injury of April 1, 1985 was the cause of temporary disability. 3. Claimant has established that her injury was to a scheduled member and not to the body as a whole. 4. Claimant has failed to establish that the injury resulted in any permanent partial disability. ORDER THEREFORE, it is ordered: Claimant, having been paid all that to which she is entitled, shall take nothing further as a result of these proceedings. Costs of this Action are assessed against defendants pursuant to Division of Industrial Services Rule 343-4.36. Signed and filed this 31st day of March, 1989. DEBORAH A. DUBIK DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. David D. Drake Attorney at Law West Towers Office 1200 35th St Ste 500 West Des Moines, IA 50265 Ms. Lorraine J. May Mr. Glenn Goodwin Attorneys at Law 4th floor Equitable Bldg Des Moines, IA 50309 1803; 1803.1 Filed March 31, 1989 Deborah A. Dubik BEFORE THE IOWA INDUSTRIAL COMMISSIONER PAMELA HETHERINGTON, Claimant, File No. 791716 vs. MERCY HOSPITAL MEDICAL CENTER, A R B I T R A T I 0 N Employer, D E C I S I 0 N and AETNA CASUALTY & SURETY COMPANY, Insurance Carrier, Defendants. 1803; 1803.1 Claimant found to have met her burden of proof that she sustained an injury arising out of and in the course of her employment when she fell while walking to work from the employer's parking lot. Claimant failed to establish that her injury extended to the body as a whole and claimant had no functional impairment rating from an imposition. Therefore, no award of benefits was made. BEFORE THE IOWA INDUSTRIAL COMMISSIONER FRANK E. SEARS, Claimant, VS. File No. 791847 IOWA QUALITY MEATS, A R B I T R A T I 0 N Employer D E C I S I 0 N and IOWA MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by claimant, Frank E. Sears, claimant, against his employer, Iowa Quality Meats, and its insurance carrier, Iowa Mutual Insurance Company, defendants. The case was heard by the undersigned on May 19, 1989. The record consists of the testimony of claimant. The record also consists of claimant's exhibits A-G and defendants' exhibit 1. STIPULATIONS Prior to the hearing, the parties entered into a number of stipulations. The stipulations are: 1. The existence of an employer-employee relationship between claimant and employer at the time of the alleged injury is stipulated; 2. That the type of permanent disability, if the injury is found to be a cause of permanent disability is stipulated to be a scheduled member disability to the right upper extremity; 3. In the event of an award of weekly benefits, the rate of weekly compensation is stipulated to be $109.06 per week; and, SEARS V. IOWA QUALITY MEATS Page 2 4. Defendants paid claimant 46.571 weeks of compensation at the rate of $109.06 per week prior to the hearing. ISSUES 1. Whether claimant received an injury which arose out of and in the course of employment; 2. Whether there is a causal relationship between the alleged injury and the disability; 3. Whether claimant is entitled to temporary disability/healing period benefits or permanent partial or total disability benefits; and, 4. Whether claimant is entitled to medical benefits under section 85.27. FACTS PRESENTED Claimant is 57 years old. Currently he is unemployed. Claimant testified he commenced his employment with defendants in September of 1983 when he was hired as a laborer. Claimant reported he was required to carry five-ten pound roasts from the work table to the conveyor belt. He indicated that on April 2, 1985, claimant was picking up a box of meat when he felt his right elbow snap. Claimant stated he' reported the incident to his foreman and claimant stated he was directed to proceed to Charter Community Hospital. Medical records indicate claimant was treated by the defendants' physician, Scott B. Neff, D.O..., for "tennis elbow." In his report of October 7, 1985, Dr. Neff opines: Mr. Frank Sears calls today, saying that he wants another note to keep him off work. I do not find any reason on physical examination why this patient cannot do at least some kind of work, and I am not certain why he grimaces and acts the way he does. .... I certainly have no idea why his elbow should be giving him this much difficulty. In November of 1985, Dr. Neff opines: Mr. sears had an injury to his elbow which was subsequently surgically treated by Dr. Kirkland. The SEARS V. IOWA QUALITY MEATS Page 3 injury was a strain or contusion of the extensor mechanism at the origin of the lateral epicondyle, and the result is lateral epicondylitis or, if you will forgive the expression, tennis elbow. Mr. Sears has been thoroughly and carefully evaluated since that surgery because he has continued to complain of pain, and continues to present with a peculiar affect, holding his arm in a peculiar position, and refusing to move it. He has undergone bone scan which was normal, and has been evaluated by a neurologist, who found no evidence of neurological disease. He has had a CT scan of his cervical spine, and this did not show any evidence of' herniated disc. These other studies were done because of the patient's persistent complaints of arm pain. I do not believe that this patient has any significant or permanent impairment, although he refuses to use his right arm, and winces, somewhat theatrically, in pain whenever he is examined. I had previously recommended an MMPI evaluation (Minnesota Multiphasic Personality Inventory), to see if this patient responds abnormally to painful stimuli, or if there is some evidence of hysterical conversion. In July of 1985, surgery was performed on claimant's elbow by Mark B. Kirkland, D.0... In his report of February 5, 1986, Dr. Kirkland opined: I would continue to agree with Dr. Neff in his opinion that Mr. Sears does not have any significant permanent impairment of his right arm. Of course we have not seen Frank since the llth of.November 1985. A reasonable period for normal healing in surgery such as Frank had would be three months. Claimant testified he next went to the Veterans Administration Medical Center in Des Moines. Donald W. Blair, M.D., Chief of Orthopedic Surgery summarized the treatment claimant received at the VA. In his report of December 31, 1987, Dr. Blair wrote: Mr. Sears was re-examined in the orthopedic clinic on December 28, 1987, relative to his right elbow. By history, his symptoms do appear to have originated from work related activities described in April 1985. SEARS V. IOWA QUALITY MEATS Page 4 He was initially treated by a private orthopedic physician who carried out a surgical procedure on the common extensor tendons at the right elbow. The symptoms did persist and he transferred his care to this facility. A further trial of conservative measures did not result in improvement and on September 8, 1986, a modified Bosworth procedure was carried out on this same elbow in an attempt to obtain.further relief. There has been some benefit following this latter procedure, particularly in regard to relief of some of the pain radiating into the forearm. He does, however, continue to complain of a persisting degree of pain and discomfort over the lateral aspect of the elbow to the extent that he states he cannot resume his prior work activities which involved handling packages of meat and cartons. Prior recommendations have also included.his attempting to change to a primarily left handed type of work activity. My impression is that this man is experiencing pain relative to this right elbow, although the degree of pain does appear to be greater and more persistent than one would ordinarily expect from this condition. I also feel that there could be a degree of functional overlay due to his chronic pain symptoms. Currently, he has no plans for resuming employment and indicates he could not handle his prior type of work. He has been off work since April 1985. After discussion with Mr. Sears, I did suggest that a psychological evaluation would be recommended to see if some further suggestions for help could be offered to help him to better deal with his pain which has not responded to the usual therapies. Mr. Sears is also being followed at Broadlawns Medical Center for what he describes as "chronic pain syndrome', in the abdomen secondary to a stab wound in the abdomen July 1986. In addition to the recommendation for psychological evaluation, consideration would also be suggested for an MMPI. I did discuss this latter suggestion with Mr. Sears and he is agreeable to having the additional consultation. SEARS V. IOWA QUALITY MEATS Page 5 As of January of 1989, A.P. Neptune, M.D., wrote in his clinical notes: This is a 56 y/o male patient with a past history of right lateral epicondylitis, for which he had surgery done in 1986, with some relief of his discomfort, mostly of the pain in the muscles in the proximal lateral forearm. The pain at the elbow itself over the lateral epicondyle has been present and is still quite annoying. when seen today, he was holding the right upper limb flexed at the elbow protecting it with the other arm and supporting it in a way. He was also wearing a forearm splint. On physical examination there was quite,a bit of tenderness on palpation or percussion of the lateral epicondyle. On the right, there was no muscle tenderness specifically. Pronation/supination against resistance did elicit pain at the elbow. Tinel sign was negative for Median and Ulnar nerves at wrist and elbow. No gross muscular atrophy was noted. On electro-diagnostic studies, normal motor and sensory latencies and conduction velocities were recorded for the right Median and Ulnar nerves segments tested. No pathology was found on EMG. IMPRESSION: Normal electrodiagnostic study of the tight upper limb. Clinical evidence of right lateral epicondylitis. . During direct examination, claimant testified his right elbow hurts all of the time. He indicated he wears splints and he cannot lift with his arm. Claimant maintains he is unable to work because of his pain. 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). Claimant has the burden of proving by a preponderance of the evidence that he received an injury on April 2, 1985 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa .352, 154 N.W.2d 128 (1967). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W..2d 548 (1963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). SEARS V. IOWA QUALITY MEATS Page 6 The words "out of" refer to the cause or source of the injury. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure v. Union et al. Counties, 188 N.W.2d 283'(Iowa 1971); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The claimant has the burden of proving by a preponderance of the evidence that the injury of April 2, 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. 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 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). 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). SEARS V. IOWA QUALITY MEATS Page 7 ANALYSIS The evidence is unrefuted that claimant sustained an injury to his right elbow on May 2, 1985. At the time of the injury claimant was loading boxes of meat for his employer. The injury arose out of and in the course of claimant's employment. Claimant has also established the requisite causal connection between the injury and the claimed condition. Prior to April 2, 1985, claimant testified he had not experienced any right upper extremity difficulties. After April 2, 1985, claimant was diagnosed as having tendonitis or "tennis elbow." Dr. Blair maintains, "By history, his symptoms do appear to have originated from work related activities described in April 1985. "No other physician has attributed claimant's condition to a source other than the injury of April 2, 1985. Therefore, the requisite causal connection has been established. The third issue to address is whether claimant has sustained any permanent disability. Neither authorized treating physician has assessed a functional impairment rating to claimant's right upper extremity. Dr. Neff can find no objective reason for claimant's complaints of pain. Claimant had a normal EMG. Claimant had a normal bone scan as well. There is no evidence of a herniated disc. Dr. Neff opined claimant was capable of some type of work. The physicians at the VAMC performed a "Bosworth procedure with dissection of the insertion of the common extensor tendon from the right lateral humeral epicondyle and also a release of the radial lateral ligament. An osteotome was then used to shave off part of the underlying bone and the radial collateral ligament and common extensor tendon were reinserted. The postoperative course was uneventful and the patient noted immediate and continued relief of his preoperative pain." Subsequent to the surgery, no physician at VAMC provided a functional impairment rating. Claimant is acknowledged to have pain in the right upper extremity. However, even the physicians at VA recommend psychological evaluation and counseling as a means to alleviate the pain. No physician at VA found an objective basis for the pain, once the Bosworth procedure had been performed. The pain appears to be subjective in nature. Therefore, in light of the above, it is the determination of the undersigned that claimant has not proven by a preponderance of.the evidence that he has a permanent partial disability to the right upper extremity. The next issue to address is whether claimant is entitled to temporary total disability benefits. Claimant was paid weekly SEARS V. IOWA QUALITY MEATS Page 8 benefits from April 2, 1985 to March 6, 1986 with the exception of two,weeks where claimant returned to work. This time computes to 46.571 weeks. Claimant, however, was temporarily and continuously disabled through May 20,.1986, when claimant was released from physical therapy from the VAMC. As of May 9, 1986, claimant had near normal range of motion. Claimant was again temporarily disabled from September 5, 1986 when the modified Bosworth procedure was performed, through January 15, 1987, when the records seemingly indicate physical therapy for the right elbow was to end and there were only home exercises prescribed. The entire number of weeks for which claimant is entitled to temporary total disability benefits is 74.571 weeks. The final issue to address is whether claimant is entitled to medical benefits pursuant to section 85.27. Claimant has incurred $4,903.00 in medical expenses at the VAMC. Iowa Code section 85.27 provides that a claimant is entitled to reasonable medical expenses for a work related injury. The defendants have the right to select the treating physician. Unauthorized treatment which improves an employee's condition and which ultimately may mitigate the employer's liability may subsequently be found reasonable and necessary for treatment of an injury. Butcher v. Valley Sheet Metal, IV Iowa Industrial Commissioner Report 49 (Appeal Decision 1983); Rittgers v. United Parcel Service, III Iowa Industrial Commissioner Report 210 (Appeal Decision 1982); Hutchinson v. American Freight Systems, Inc., I-1 Iowa Industrial Commissioner Decision 94 (Appeal Decision 1984). The evidence, in the instant proceeding, is uncontroverted that claimant's condition improved subsequent to the Bosworth procedure which he received at VAMC. Therefore, defendants are liable for claimant's hospital expenses from September 5, 1986 to September 11, 1986. The expenses total $2,718.00. Defendants are not liable for the balance of the medical expenses. There was no evidence that other treatments improved claimant's condition. Neither was there evidence that the remainder of the expenses were even causally connected to claimant's work injury of April 2, 1985. There was evidence of claimant having treatments for a right shoulder condition. 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. Claimant sustained an injury to the right (elbow) upper extremity on April 2, 1985. SEARS V. IOWA QUALITY MEATS Page 9 CONCLUSION A. Claimant sustained an injury on April 2, 1985 which arose out of and in the course of his employment. FINDING 2. As a result of his injury on April 2, 1985, claimant had two surgical procedures on his right elbow. FINDING 3. Claimant did not have an attributable functional impairment as a result of his injury on April 2, 1985. FINDING 4. Claimant was unable to work because of his injury from April 2, 1985 through May 20, 1986 and from September 5, 1986 through January 5, 1987. CONCLUSION B. Claimant was temporarily totally disabled from April 2, 1985 through May 20, 1986 and from September 5, 1986 through January 5, 1987, which is a.period of 74.571 weeks. FINDING 5. Claimant has incurred reasonable and necessary medical expenses as a result.of his injury on April 2, 1985. CONCLUSION C. Defendants are liable for medical expenses to the VAMC in the sum of $2,718.00. ORDER THEREFORE, defendants are to pay unto claimant seventy-four point five seventy-one (74.571) weeks of temporary total disability benefits at the stipulated rate of one hundred nine and 06/100 dollars ($109.06) per week. Payments that have accrued shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. Defendants are also liable for the aforementioned medical expenses for the VAMC in the sum of two thousand seven hundred eighteen dollars ($2,718.00). Defendants shall take credit for all benefits previously paid. Costs of this action are assessed against defendants pursuant to Division of Industrial Services Rule 343-4.33. Defendants shall file a claim activity report upon payment of this award. SEARS. V. IOWA QUALITY MEATS Page 10 Signed and filed this 28th day of December, 1989. MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Mr. Virgil Moore Attorney at Law 2454 SW Ninth St Des Moines IA 50315 Mr Roy M Irish Attorney at Law 729 Ins Exch Bldg Des Moines IA 50309 1801; 5-2209; 5-2500 Filed December 28, 1989 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER FRANK E. SEARS, Claimant, vs. File No. 791847 IOWA QUALITY MEATS, A R B I T R A T I O N Employer, and D E C I S I O N IOWA MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. 5-2209 Claimant did not sustain a permanent partial disability to his right upper extremity (elbow). 1801 Claimant sustained temporary total disability benefits because of an injury to his right upper extremity. 5-2500 Claimant is entitled to have some medical benefits paid to the VA Hospital for unauthorized services rendered but which improved claimant's condition. Page 1 before the iowa industrial commissioner ____________________________________________________________ : RAY E. STICKLER, : : Claimant, : : vs. : File No. 877854 : 791857 YOUNG RADIATOR COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : FIREMAN'S FUND INSURANCE CO., : : Insurance Carrier, : : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Ray E. Stickler, claimant, against Young Radiator Shop, employer (hereinafter referred to as Young Radiator), and Fireman's Fund Insurance Co, insurance carrier, and the Second Injury Fund of Iowa, defendants, for workers' compensation benefits as a result of an alleged injury on December 5, 1984 and December 7, 1987. On April 3, 1991, a hearing was held on claimant's petition and the matter was considered fully sub mitted at the close of this hearing. The parties have submitted a prehearing report of con tested issues and stipulations which was approved and ac cepted as a part of the record of this case at the time of hearing. Oral testimony and written exhibits were received during the hearing from the parties. The exhibits received into the evidence are listed in the prehearing report. According to the prehearing report, the parties have stipulated to the following matters: 1. An employee-employer existed between claimant and Young Radiator at the time of both alleged injuries. 2. On December 5, 1984, claimant received an injury which arose out of and in the course of his employment with Griffin. 3. Claimant is seeking the payment of additional tem porary total disability or healing period benefits only as a result of the alleged second injury of December 7, 1987. Page 2 4. Claimant is claiming such benefits for the time period from February 2, 1988 through September 10, 1989, and for a second period of time from November 27, 1989 through May 28, 1990. Defendants agree that claimant was not work ing during these two periods of time. 5. If the injury of December 5, 1984 is found to have caused permanent disability, permanent partial disability benefits will begin as of July 8, 1987. There was no agree ment as to a commencement date for permanent partial dis ability benefits for the second injury of December 7, 1987. 6. Claimant's rate of weekly compensation for both al leged injuries shall be $218.20. 7. With reference to the issue medical benefits, the only issue was authorization for the expense of whirlpool treatment in May, June and July 1989. issue The parties issued the following issues for determina tion in this proceeding: I. Whether claimant received an injury on December 7, 1987 arising out of and in the course of his employment; II. The extent of claimant's entitlement to disability benefits; and, III. The extent of claimant's entitlement to medical benefits. findings of fact Having heard the testimony and considered all the evi dence, the deputy industrial commissioner finds as follows: A credibility finding is necessary to this decision as defendants places claimant's credibility at issue during cross-examination as to the nature and extent of the injury and disability. From his demeanor while testifying, claimant is found credible. Claimant has worked for Young Radiator since 1977 and continues to do so on a part-time basis at the present time. Young Radiator makes radiators for large trucks, buses, mil itary vehicles and large powered equipment such as cranes. Until the injury of December 7, 1987, claimant operated heavy presses in this employment. Claimant's job involved the repetitious handling with his hands and arms 60 to 500 parts per day weighing from 30 to 35 pounds each. In this employment, claimant earned approximately $17,000 in 1984; $14,000 in 1985; $15,000 in 1986; $20,000 in 1987; $15,000 in 1988; and $3,000 in 1989. Claimant is currently working only two to four hours per day at Young Radiator due to his pain and physical restrictions imposed upon the time and amount of work he can perform by his physicians. Until re cently, claimant also operated a farm. On this farm, he bred and fed out cattle on 94 acres of farmland. The Page 3 farming operation ended with the recent sale of the land and the farm equipment. Claimant testified that after the second work injury, he could only perform light duty farm work, leaving the heavy work to his close relatives. This testimony is believed. According to claimant's supervisor, claimant was always a good worker at Young Radiator. On or about December 5, 1984, claimant injured his right shoulder while pulling on a wrench during the perfor mance of his duties at Young Radiator. He said that he could actually hear his shoulder "pop" after which severe pain ensued. Upon a diagnosis of shoulder strain and rotator cuff tear, claimant was treated conservatively by a family physician and then a neurosurgeon. However, the pain and loss of use continued and claimant was referred to Donald D. Berg, M.D., an orthopedic surgeon, who surgically repaired the tear in the shoulder rotator in September 1985. Following a long period of recovery after the surgery, claimant returned to work in July 1987 with restrictions against heavy work with the right arm. It is specifically found that the injury of December 5, 1987 involved not only the anatomical structures of the arm but also extended into the body as a whole. This finding is based upon the expla nation of a rotator cuff injury and its repair in the depo sition of Albert Richard Coates, M.D., an orthopedic surgeon, who performed surgery on claimant's left shoulder in a subsequent work injury. Clearly, structures of the shoulder were involved which go beyond the head of the upper arm which forms the ball of the ball and socket shoulder joint. The injury of December 5, 1984 was a cause of a 15 per cent permanent loss of earning capacity. Claimant suffered a significant permanent partial impairment to the right arm and to the body as a whole. Claimant's treating and evalu ating physicians rated the impairment of the arm from 20 to 37 percent and the impairment to the body as a whole from 12 to 20 percent. Clearly, there is a significant physical loss of use of the right arm and shoulder with permanent restrictions against heavy use of the arm following the injury. Claimant stated that he never fully recovered from this injury and remained symptomatic after his return to work. However, claimant did not have any major problems until his second injury in the latter part of 1987. The evidence reveals that claimant suffered an injury to the right shoulder in 1980 but this problem resolved and claimant was able to continue working. There were no records submitted in the evidence to suggest what type of problem occurred in 1980 or its exact diagnosis. From the evidence submitted, it is found that claimant had no prior permanent partial impairment to either of his arms or shoulders before December 5, 1984. At the time of injury, claimant was 58 years of age. Apart from his recovery period following surgery, claimant lost no income and re turned to the same job and at the same wages he was earning at the time of the injury. On or about December 7, 1987, claimant suffered a second injury to his right shoulder and a new injury to his left shoulder. These injuries arose out of and in the Page 4 course of his employment with Young Radiator. The injury to the right shoulder was an aggravation of the prior injury of December 5, 1984. The injury to the left shoulder was another rotator cuff tear. Both of these injuries occurred over a period of time starting in the summer of 1987 and ending on December 7, 1987. During this time, claimant's right arm and shoulder became very painful and he was unable to use his right shoulder or arm. Claimant then suffered severe pain and loss of use of his left shoulder. Claimant explained that due to his right shoulder problems, he was compelled beginning in the summer of 1987 to extensively use his left arm and shoulder more than he had been in the past. The symptoms grew gradually worse until December 7, 1987, when claimant's pain became so severe that he had to leave work and seek treatment in the form of pain pills and aspirin. It was at that time that he reported an injury to his supervisors at Young Radiator. A few days later, claimant sought an evaluation and treatment from Dr. Coates. Dr. Coates had previously evaluated claimant for his right shoulder problems. The above finding as to the exact nature of the December 7, 1987 injury was based upon Dr. Coates' office notes of December 10, 1987. Dr. Coates clearly opined that the injury was due to chronic repetitive motion in claimant's job as a press operator with Young Radiator. Dr. Coates saw claimant again on January 28, 1988, and wrote Young Radiator stating that he recommended surgery to the left shoulder. Claimant stated at hearing that Dr. Coates also told him at that time to remain off work. This was not reflected in the January 1987 letter by Dr. Coates. Claimant's testimony is credible and it is found that Dr. Coates did, in fact, instruct claimant to remain off work until further treatment and evaluation. As a result of the work injury of December 7, 1987, claimant was off work from February 2, 1988 through September 10, 1989. This period of time is in dispute as claimant was also off work at that same time for treatment of a nose infection problem. However, given the above find ing as to Dr. Coates' recommendations of January 28, 1988, it is found that claimant's shoulder problems remain as at least one substantial causative factor in his absence from work during this period of time. Claimant returned to work part-time from September 12, 1989 until November 26, 1989, to a light duty welding job at Young Radiator. Claimant was paid voluntary temporary partial disability benefits during this time. There does not appear to be a dispute as to the amount of money paid to claimant during this temporary partial disability period and there is no need for a finding as to what claimant may have earned during this period of time. As a result of the work injury of December 7, 1987, claimant was also off work from September 11, 1989 through May 28, 1990. During this period of time, claimant was under active care and treatment of Dr. Coates who performed rotator cuff surgery in November 1988. Following another long recovery, claimant was released to part-time work at Young Radiator on May 28, 1990. Claimant also reached maxi mum healing at that point in time. Page 5 Assuming that claimant had no preexisting disability (this assumption is required by law as will be explained in the conclusions of law section of this decision), the work injury of December 7, 1987 alone was a cause of a 15 percent loss of earning capacity. No physician has opined that claimant suffered permanent partial impairment from the ag gravation injury to the prior right shoulder injury. However, claimant suffered permanent partial impairment to the left arm and shoulder from the second rotator cuff tear and surgery. Dr. Coates and other physicians rate claimant's permanent partial impairment on the left side as 60 percent to the arm and 12 percent to the body as a whole. Dr. Coates indicates in his reports that he was quite disappointed that the left shoulder surgery did not improve the functioning of the shoulder as expected. Similar to the prior right shoulder injury, the injury of December 7, 1987 involves structures of the arm as well as structures forming the socket of the ball and socket shoulder joint and extended into the body as a whole. At the time of injury, claimant was 62 years of age with no immediate plans to retire. Claimant did not return to full-time work but this is due to the combined effects of the first and second injuries, not just the second injury. As the second injury was quite similar to the first injury of December 5, 1984, the same finding of a loss of earning capacity solely as a result of the second injury will be made. As a result of the combined effect of the first and second injuries and the resulting permanent partial impair ment, claimant suffered an additional 10 percent loss of earning capacity over and above the total combined disability (30 percent) caused by the first and second injuries looking at each separately. In other words, claimant's current industrial disability or loss of earning capacity from both injuries is 40 percent. As a result of the combined injuries, physicians were forced to impose severe permanent work restrictions of allowing him only to return to work on a part-time basis from two to four hours per day depending upon his ability on any particular day to withstand any ongoing pain. At hearing, claimant described deep and lingering pain into his shoulder, extending into the armpit on each side and into the chest area. Claimant described this pain as similar to that of a large toothache and states that his shoulder never quits hurting along. He also states that the right is worse than the left. All physicians have noted bilateral atrophy of the shoulder muscle indicating nerve damage. Claimant is unable to sit in a recliner for any lengthy period of time and he has difficulty sleeping at night. All of these problems appear to the undersigned to be a result of the combination of the two shoulder injuries and this is verified by the medical reports. Claimant also has severe work restrictions against carrying over 20 pounds and lifting anything over 5 to 10 pounds. According to Scott B. Neff, D.O., another orthopedic surgeon, claimant is unable to perform any repet itive activity of his arms at or above shirt pocket level. Page 6 Claimant is released to return to work as a result of both injuries to only the part-time press and welding work at Young Radiator. Claimant is earning the same rate of pay as before the second injury in December 1987 which is $9.68 per hour but is only working six to fifteen hours per week. Consequently, he has suffered a significant drop in earnings as a result of the combined effect of the two injuries. Claimant said that he would be retired now and looking for more suitable part-time work had he received an acceptable settlement offer from defendants' insurance carrier. Claimant has ended his farming operating in part due to his bilateral shoulder disabilities. However, claimant failed to show that the industrial disability loss from the combined effect of the injuries exceed 40 percent due to his age and apparent desire to remove himself from the work force. Claimant was 64 years of age at the time he returned to work after the second surgery. He was very close to the normal retirement age. His loss of earning capacity is not as great as would be the case for any younger individual. Vocational rehabilitation counselor have indicated that claimant is able to secure at least some part-time sedentary work. Claimant has not looked for such work preferring instead to remain employed in a job with people he enjoys. Obviously, if claimant had been younger, the loss of earning capacity would have been much greater. It is found that the whirlpool therapy in June, July and August 1989 is causally connected to both work injuries herein. Such treatment also constitutes reasonable and nec essary treatment of the injuries and was authorized. Dr. Coates stated in his office note of April 20, 1989 that he would allow claimant to continue on his own therapy program. This included the whirlpool therapy. Dr. Coates was an authorized physician. conclusions of law I. Claimant has the burden of proving by a preponder ance of the evidence that claimant received an injury which arose out of and in the course of employment. The words "out of" refer to the cause or source of the injury. The words "in the course of" refer to the time and place and circumstances of the injury. See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited therein. It is not necessary that claimant prove his disability results from a sudden unexpected traumatic event. It is sufficient to show that the disability developed gradually or progressively from work activity over a period of time. Page 7 McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). The McKeever court also held that the date of injury and gradual injury cases is the time when pain prevents the employer from continuing to work. In the case sub judice, a gradual injury was found for the December 1987 injury. Although it could be reasonably argued that a different injury date should have been chosen by the claimant in filing his petition under McKeever, there is no issue of timeliness or rate in this case. Therefore, the exact date of the gradual injury is unimportant to this decision. II. Claimant must establish by a preponderance of the evidence the extent of weekly benefits for permanent dis ability to which claimant is entitled. As the claimant has shown that the work injury was a cause of a permanent physi cal impairment or limitation upon activity involving the body as a whole, the degree of permanent disability must be measured pursuant to Iowa Code section 85.34(2)(u). However, unlike scheduled member disabilities, the degree of disability under this provision is not measured solely by the extent of a functional impairment or loss of use of a body member. A disability to the body as a whole or an "industrial disability" is a loss of earning capacity resulting from the work injury. Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A physical impairment or restriction on work activity may or may not result in such a loss of earning capacity. The extent to which a work injury and a resulting medical condi tion has resulted in an industrial disability is determined from examination of several factors. These factors 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. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, l985). Claimant also seeks additional disability benefits from the Second Injury Fund under Iowa Code sections 85.63 through 85.69. This fund was created to compensate an injured worker for an industrial disability resulting from the combined effect of two separate injuries to a scheduled member. The purpose of such a scheme of compensation was to encourage employers to hire or retain war veterans and handicapped workers. See Anderson v. Second Injury Fund, 262 N.W.2d 789 (Iowa 1978). There are three requirements under the statute to invoke Second Injury Fund liability. Page 8 First, there must be a permanent loss or loss of use of one hand, arm, foot, leg or eye. Secondly, there must be a permanent loss or loss of use of another such member or organ through a compensable subsequent injury. Third, there must be permanent industrial disability to the body as a whole arising from both the first and second injuries which is greater in terms of relative weeks of compensation than the sum of the scheduled allowances for those injuries. If there is a greater industrial disability due to the combined effects of the prior loss and secondary loss than equals the value of the prior and secondary losses combined, then the fund will be charged with the difference. Second Injury Fund of Iowa v. Neelans, 436 N.W.2d 355 (Iowa 1989). The Second Injury Fund is also not relieved of liabil ity simply because one or both of the injuries may also ex tend into the body as a whole. Id. However, when either the first or second injuries extend into the body as a whole, there is to be an apportioning process of the various resulting industrial disabilities and respective liabili ties. A determination of industrial disability must first be made for each injury individually. The employer at the time of the second injury is liable for the difference, if any, between the industrial disability of the second injury alone and the industrial disability as a result of the com bined effect of both injuries. The fund is liable for the difference less the industrial disability found for the first injury. See Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467, 470-471 (Iowa 1990). In the case sub judice, claimant demonstrated by the greater weight of the evidence that the combined effect of both industrial disabilities from the first and second injures resulted in a 40 percent industrial disability. Of this amount, the employer is liable for the 15 percent per manent partial disability found to have been caused solely by the second injury. The employer is liable also for the 15 percent permanent partial disability found caused by the first injury. The Fund, therefore, is liable for the dif ference, or for a 10 percent permanent partial disability. Based upon these findings, claimant is entitled as a matter of law to 75 weeks of permanent partial disability benefits from the employer, Young Radiator, for each work injury herein under Iowa Code section 85.34(2)(u), which is 15 percent of 500 weeks, the maximum allowable number of weeks for an injury to the body as a whole in that subsec tion. Claimant is also entitled as a matter of law to 50 weeks of permanent partial disability benefits from the Second Injury Fund under Iowa Code section 85.34(2)(u), which is 10 percent of 500 weeks, the maximum allowable for an injury to the body as a whole in that subsection. As claimant has established entitlement to permanent partial disability benefits as a result of his December 7, 1987 injury, claimant is entitled to weekly benefits for healing period under Iowa Code section 85.34(1) for the periods of time stipulated he was off work. Claimant is Page 9 also entitled to temporary partial disability benefits under Iowa Code section 85.33(2) for the period of time he was working part-time before reaching maximum healing. III. Pursuant to Iowa Code section 85.27, claimant is entitled to payment of reasonable medical expenses incurred for treatment of a work injury. Claimant is entitled to an order of reimbursement if claimant is paid those expenses. Otherwise, claimant is entitled only to an order directing the responsible defendants to make such payments. See Krohn v. State, 420 N.W.2d 463 (Iowa 1988). In the case at bar, the only dispute concerns the whirlpool treatment. This was found reasonable, necessary and authorized in the findings of fact. However, even if not authorized, defendants had no right to choose the medical treatment for the December 7, 1987 injury as defen dants disputed liability for that injury. This agency has held that it is inconsistent to deny liability and the obli gation to furnish care on one hand and at the same time claimant the right to choose the care. Kindhart v. Fort Des Moines Hotel, I Iowa Indus. Comm'r Dec. 611 (Appeal Dec. 1985); Barnhart v. Maq., Inc., I Iowa Indus Comm'r Rep. 16 (Appeal Dec. 1981). order 1. Defendants Young Radiator and Fireman's Fund Insurance Company shall pay to claimant seventy-five (75) weeks of permanent partial disability benefits at the rate of two hundred eighteen and 20/100 dollars ($218.20) per week from July 8, 1987 as a result of the injury of December 5, 1984. Defendants Young Radiator and Fireman's Fund Insurance Company shall pay to claimant an additional seventy-five (75) weeks of permanent partial disability ben efits at the rate of two hundred eighteen and 20/100 dollars ($218.20) per week from May 29, 1990 as a result of the injury of December 7, 1987. 2. Defendants Young Radiator and Fireman's Fund Insurance Company shall pay to claimant healing period bene fits as a result of the injury of December 7, 1987 from February 2, 1988 through September 10, 1989, and for a second period beginning on November 27, 1989 and extending through May 28, 1990, at the rate of two hundred eighteen and 20/100 dollars ($218.20) per week. Defendants Young Radiator and Fireman's Fund Insurance Company shall pay tem porary partial disability benefits from September 11, 1989 through November 26, 1989. 3. Defendant Second Injury Fund shall pay to claimant fifty (50) weeks of permanent partial disability benefits at the rate of two hundred eighteen and 20/100 dollars ($218.20) per week beginning on the seventy-sixth (76th) week following the May 28, 1990 commencement of benefits by defendants Young Radiator and Fireman's Fund. 4. Defendants shall pay the whirlpool expenses re ferred to in the prehearing report. Claimant shall be reim bursed for any of these expenses paid by him. Otherwise, Page 10 defendants shall pay the provider directly along with any lawful late payment penalties imposed upon the account by the provider. 5. Defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for all benefits previously paid. 6. Defendants Young Radiator and Fireman's Fund Insurance Company shall receive credit for previous payments of benefits under a nonoccupational group insurance plan, if applicable and appropriate under Iowa Code section 85.38(2), less any tax deductions from those payments. 7. All defendants shall pay interest on weekly bene fits awarded herein as set for in Iowa Code section 85.30. 8. Defendants Young Radiator and Fireman's Fund Insurance Company shall pay the costs of this action pur suant to 343 IAC 4.33, including reimbursement to claimant for any filing fee paid in this matter. 9. Defendants shall file activity reports upon payment of this award as requested by this agency pursuant to 343 IAC 3.1. Signed and filed this ____ day of May, 1991. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Daniel P Wilson Attorney at Law 303 W State St P O Box 367 Centerville IA 52544 Mr Richard G Book Attorney at Law 500 Liberty Bldg Des Moines IA 50309 Ms Joanne Moeller Assistant Attorney General Tort Claims Hoover Building LOCAL 3201 Filed May 24, 1991 Larry P. Walshire before the iowa industrial commissioner ____________________________________________________________ : RAY E. STICKLER, : : Claimant, : : vs. : File No. 877854 : 791857 YOUNG RADIATOR COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : FIREMAN'S FUND INSURANCE CO., : : Insurance Carrier, : : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : ___________________________________________________________ 3101 Second Injury Fund held liable for an excess industrial disability caused by the combined effects of right and left shoulder injuries occurring at separate times.