Page 1 before the iowa industrial commissioner ____________________________________________________________ : TERRY SYFERD, : : Claimant, : : File No. 796344 vs. : : GEO. A. HORMEL & CO., : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : LIBERTY MUTUAL INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration wherein the claimant seeks additional permanent partial disability benefits as a result of an injury occurring on June 5, 1985. The record in the proceeding consists of the testimony of claimant and Leona E. Martin; and joint exhibits 1 through 6. issues The issues for resolution are: 1. Whether claimant is entitled to permanent partial disability benefits over and above the 100.143 weeks which defendants have already paid and which defendants agree they owe claimant; 2. Whether there is a causal connection of any permanent partial disability benefits claimant may have over and above 20 percent permanent partial disability for which disability the defendants have already agreed is owed and have paid; 3. Whether defendants are entitled to an 85.38(2) credit as to the $800.92 disability income payments claimant has received beginning January 1, 1989 against any additional workers' compensation benefits that would be awarded commencing January 1, 1989; and, 4. Whether claimant is an odd-lot candidate. Page 2 findings of fact The undersigned deputy having heard the testimony and considered all the evidence, finds that: Claimant is a 57-year-old high school graduate who has had no additional formal education and whose work history since his high school graduation has been in manual labor jobs. Claimant's history is outlined in detail in joint exhibit 6, page 54. Claimant worked for defendant employer for approximately 28 years. Within this employment with defendant employer, approximately 13 years, 1969 to 1982, claimant was as a ham boner which a vocational rehabilitation consultant considered semi-skilled since there had to be knowledge of the use of knives. All claimant's other employment is considered unskilled labor. Claimant has earned as high as $31,700 in one year. His income is dependent on various factors - incentives, layoffs, strikes, location of his work, etc. Claimant averaged $428 per week in 1985 plus various other benefits such as health, disability, dental insurance, and retirement benefits. Claimant's union contract provided he could only be fired for just cause. Claimant indicated he had no low back problems or problems with a congenital spina bifida condition and that his health was generally good prior to his June 5, 1985 injury. The medical evidence supports claimant. On June 5, 1985, claimant was injured on defendant employer's premises when he slipped on the floor as he was walking down a hall to punch out the clock at the end of his workday. There was liquid on the floor from boxes of meat. Although claimant did not actually fall, he slid on the sloping floor from side to side trying to catch himself as he was slipping and sliding. Claimant first thought that his injury was minor and went home and sat down and could hardly get up. Claimant related his medical treatment and his medical problems. Claimant went back to work and continued to have problems. The parties stipulated to claimant's healing period and temporary partial disability. Defendants also agreed that the 100.143 weeks which represents basically 20 percent permanent partial disability they paid is causally connected to claimant's June 5, 1985 injury and there is no dispute concerning that. The parties are basically arguing over whether there is any additional permanent partial disability benefits due claimant as a result of a June 5, 1985 injury and the causal connection issue is only as to any additional permanent partial disability benefits that claimant is claiming. Claimant also testified by way of deposition on February 20, 1990. He indicated that he drew workers' compensation payments through December 27, 1988 and began drawing a disability retirement pension from defendants in the amount of $800.92 beginning January 1, 1989. Claimant said he understood he will draw this the rest of his life Page 3 until he receives social security, at which time the Hormel disability will be $400 per month. Claimant indicated that he would draw no Hormel disability if he received workers' compensation (Joint Exhibit 2, page 15-16). Claimant last worked for defendant employer on September 10, 1986. Claimant has not searched for work or made any applications for employment anywhere since that time. Claimant has not contacted vocational rehabilitation or job service to assist finding employment, nor has he drawn unemployment compensation. The company doctor, Donald D. Berg, M.D., recommended consideration of vocational rehabilitation on February 6, 1986 and again on February 13, 1986, at which time he suggested claimant should consider changing jobs (Jt. Ex. 5(B). Claimant had a myelogram on October 1, 1986, and on October 2, 1986, R. F. Neiman, M.D., diagnosed claimant as having a disc herniation at the L4-5 level above the congenital spina bifida and abnormality at L5 (Jt. Ex. 4, p. 124; Jt. Ex. 5(J)) He suggested surgery for a herniated disc but not epidural steroids. On January 13, 1987, R. F. Beckman, M.D., Mercy Hospital, Iowa City, performed an epidural steroid injection (Jt. Ex. 4, p. 112). Claimant said this gave him only temporary relief. On January 26, 1987, Edward G. Law, M.D., an orthopedic surgeon, opined: I really don't think a discectomy would offer him a significant chance for relieving any half of his symptoms that he complains of. I think he is suffering from L4-5 disc degeneration. I think that removal of the small left sided disc herniation at L4-5 is unlikely to increase his level of comfort and adding a fusion to this is also unlikely to make him feel better. I feel he has approximately 10% permanent partial impairment, that he could work with restrictions of no lifting more than 20 lbs at a time, no lifting more than 10 lbs. repetitively, no bending, stooping or twisting. I think his healing period has ended. I don't think he is likely to improve significantly in the future. (Jt. Ex. 4, p. 134; Jt. Ex. 5(N)). Claimant's symptoms continued to progress and on June 15, 1987, Thomas A. Carlstrom, an orthopedic surgeon, thought claimant was a better surgical candidate now and recommended claimant be considered for a laminectomy. Claimant testified that the doctor told him there was a 50-50 chance of success of relieving claimant's symptoms. The medical record in evidence at other places in the record seem to indicate that this 50-50 chance of success was in reference to relieving back pain to the legs and not all the pain that might be attributed to claimant's arthritis in his back. Page 4 John C. VanGilder, M.D., a professor of neurology at The University of Iowa, wrote on July 22, 1987: I think with removing the disc he may have some relief of the symptomatology in the left lower extremity. I doubt if this would effect the paresthesias in the right hip and may or may not modify the low back pain. I can see no evidence to suggest instability. I regard to surgery with removal of the L4-5 lateral filling defect, I would not be optimistic that this would completely resolve his low back pain. It may be partially helpful in resolving the left lower extremity pain which is only a partial component of his symptomatology. I have discussed this with him in some detail and I think he fully understands this opinion. (Jt. Ex. 4, p. 146) Defendants hired Management Consulting & Rehabilitation Services and H. Shelby Swain, their rehabilitation consultant, states in his October 28, 1987 report: Locating available work would also be extremely difficult in the general Ottumwa area since, recently, it was disclosed that the Ottumwa Hormel plant would be closed, with the loss of 450 jobs. As far as academic functioning is concerned, Mr. Syferd has now been out of school long enough that it is doubtful he could really benefit by retraining, particularly at his age. Also, his salable skills involve working in a meat packing plant for the last 28 years and, obviously, this is fairly hard work, physically. His entire working experience involves medium to heavy physical work and he is probably precluded, due to his current physical problems, in doing this type of work, presently. (Jt. Ex. 5(S)) Mr. Swain indicates that there might be a number of entry level menial-type positions that claimant might be able to perform but indicated it would be foolish for claimant to give up his retirement as well as the possibility of receiving social security disability benefits in order to accept these types of positions (Jt. Ex. 5(S). In a September 1, 1987 report (Jt. Ex. 5(T)), Mr. Swain indicated that claimant was very cooperative but claimant indicated to him that he has chosen to take retirement and file for social security disability and that he was not interested in rehabilitation. Mr. Swain also seemed to indicate that claimant would not consider returning to work for Hormel if a job was found for him as he has chosen to take retirement pension. Page 5 It would seem obvious in taking the record as a whole that there would be no position at defendant employer which claimant could perform due to his medical condition and restrictions. The record also does not indicate that defendant employer has offered any job or return to work to claimant. Claimant was referred by his attorney to Leona E. Martin, a rehabilitation consultant and owner of Diversified Rehabilitation Services. She issued her report, which is reflected in joint exhibit 6. At the time of her report, she obviously did not know about the evaluation and report by David J. Boarini, M.D. The undersigned basically agrees with her comments that claimant was treated by a Hormel company doctor, Donald D. Berg, M.D., an orthopedist; Richard F. Neiman, M.D., neurologist; Edward G. Law, M.D., orthopedist; Thomas A. Carlstrom, neurosurgeon; John C. VanGilder, M.D., of the University of Iowa; and Samir R. Wahby, M.D., orthopedist, and that no doctor recommended surgery for claimant except Dr. Carlstrom, who recommended a spinal fusion and told claimant the chances of improving his condition were 50-50. Ms. Martin was the rehabilitation consultant that was hired by the social security administrative law judge to testify on behalf of the social security administration concerning claimant's disability claim for social security disability benefits. She emphasized that she did not work for claimant or for Mr. Pratt in claimant's social security action. Ms. Martin concluded: Mr. Syferd, in his present physical condition, is unable to meet the requirements for competitive employment due to his inability to sit or stand for 6 hours of an 8-hour day. He does not have the skills required of semi-skilled or skilled jobs which allow for more flexibility--sitting and standing at will. At best, Mr. Syferd may be able to tolerate working part time at a job that provided extended rest periods, alternating positions, and a slow pace. Employers do not chose to hire workers who risk another injury and are likely to have a high absentee rate due to another injury and are likely to have a high absentee rate due to pain. His past work attempts serve as evidence that although he tried, he is unable to meet the demands of work on a regular basis, 40 hours per week. Work which he might be able to do a few hours per day (at minimum wage) is not considered gainful employment. (Jt. Ex. 6, p. 56) Claimant was evaluated by David J. Boarini, M.D., orthopedic surgeon, on July 2, 1990, at defendants' request and testified by deposition on August 1, 1990. Dr. Boarini indicated a good deal of pain claimant has in his lower back is probably degenerative arthritis in nature and not caused by his June 5, 1985 injury. He indicated the June 6, 1985 Page 6 injury could be responsible for claimant's disc problem but it cannot be proven. He conceded that based on claimant's story when his symptoms began, it is quite possible that the slip has to do with his disc problem. Dr. Boarini estimated that there was an 85 percent chance claimant could be relieved of his pain from his back to his legs by a disc operation but it would not relieve all his back pain from his arthritis. Dr. Boarini indicated he agrees with Dr. VanGilder as to surgery and suggests surgery. The undersigned does not read or draw the same conclusion from Dr. VanGilder's report of January 22, 1987 (Deposition Exhibit 3 of Joint Exhibit 3), as Dr. Boarini reads it and concludes. Dr. Boarini does not address the fact that claimant had no prior problems working or complaints before his June 5, 1985 injury or accident. The doctor could not estimate with reasonable medical certainty as to claimant's arthritic progression other than it would slowly progress. He didn't address the effect trauma can have as to aggravating an arthritic condition. The doctor did say that claimant's leg numbness is likely to persist as long as claimant does not undergo surgery (Jt. Ex. 3, p. 27). The undersigned notes in Dr. Boarini's testimony that he referred to the "story" of the claimant. It appears that Dr. Boarini has a skeptical attitude regarding claimant which seems to reflect through his testimony, conclusions and comments. It appears from Dr. Boarini's deposition that he isn't facing reality and does not address the common fact as to what a trauma can do to lighten or activate symptoms of arthritic condition, particularly considering the fact that the evidence is very clear that claimant was not having problems from arthritis or a spina bifida condition prior to June 5, 1985. The doctor could not understand why claimant did not want surgery if he had so much pain (Jt. Ex. 3, p. 29). The doctor seems to indicate that the more pain a person has, the more desire they have for surgery. The undersigned questions how thoroughly the doctor read the claimant's prior medical. Dr. Boarini is the only doctor who gave claimant a better than 50-50 chance of surgical success as to pain in claimant's legs and then said it would have no likelihood of success as to claimant's arthritic pain. Dr. Boarini's partner did not give claimant much encouragement for surgery three years earlier. The undersigned is not impressed with Dr. Boarini's evaluation, conclusions or testimony. The undersigned was initially disturbed by the fact that claimant has not sought further rehabilitation or additional employment even though it appears clear it would be of the menial income jobs. It seems that claimant is in a difficult situation. He is 57 years old, has no transferable skills as to any work he is able to do, is not a suitable candidate for retraining, has sought several medical opinions to make sure that he could have relief from his pain and symptoms if he did have surgery, and has emphasized he will not have surgery. Defendants attack Page 7 claimant's position that he has foreclosed any chance of surgery. The undersigned believes claimant is correct in his position taking the medical expertise and the opinions he has received to date. Even Dr. Boarini indicated that even with the surgery, claimant would be actually substituting one impairment for possibly another, assuming success. A laminectomy, itself, carries an impairment rating. There has been considerable testimony and discussion concerning claimant's congenital or preexisting condition. Defendants take claimant as he is. For 28 years claimant went through the rigors of working in the meat packing industry and was able to do his job and perform his job until he became injured. Whatever arthritic condition that built up over the years was not affecting claimant. Defendants had 28 years of hard work from claimant. The medical evidence is clear that claimant's preexisting condition was substantially, materially aggravated, worsened, and lightened up by his June 5, 1985 injury. The undersigned finds that defendants are responsible for claimant's total impairment and disability as they exist today. Taking into consideration claimant's age, education, work experience, qualifications, any prior injuries or subsequent injuries, vocational abilities, severity of his injuries, healing period, motivation, and functional impairment, the undersigned finds that claimant is totally disabled and that his additional disability benefits would continue to run from December 27, 1988 during the period of claimant's disability at the stipulated rate of $264.42 per week. The undersigned finds that there is causal connection as to claimant's total disability and his June 5, 1985 injury. Claimant contends he is an odd-lot candidate. This agency has held in the past that there must be an extended search by the claimant as one of the conditions for the application of the odd-lot doctrine. It seems to be currently the precedent even if it would seem fruitless for the claimant to make such a search. The undersigned does not necessarily agree to that concept or that the Guyton case held that. This odd-lot doctrine application is moot in this particular case anyway in light of the fact that the undersigned has found claimant to be totally, permanently disabled. Defendants seek credit under 85.38(2) for an offset of $800.92 that defendants have been paying claimant since January 1, 1989 under its disability policy. Claimant's attorney contends notwithstanding the claimant's comment in his deposition that there would be no offset or credit as to these disability benefits against any workers' compensation benefits. Claimant contends that this disability was payable regardless of any workers' compensation benefits and was a right claimant earned under the terms of his employment. There is no insurance policy as exhibited in Page 8 the record. The undersigned cannot change the terms of any policy nor id the undersigned's decision intended to change the terms of any policy. The insurance carrier of said policy is not a party to this action, at least as to defending or arguing the terms of the policy. There was considerable discussion before the hearing, when the issues were being delineated in the prehearing report, and the parties knew before presenting their evidence, that the undersigned, not yet having heard the evidence or seen the exhibits, emphasized a hope that there would be some evidence strictly from any policy that might help the undersigned in being conclusive as to this issue. Defendants offered no evidence, including oral testimony, as to this issue through a witness. The undersigned finds that defendants are entitled to credit under 85.38(2) for only those amounts under the terms of the insurance policy providing for disability benefits, of which the claimant is a third party beneficiary, specifically calling for subrogation against any payments claimant might received as a result of a workers' compensation award. The undersigned further finds that any such credit, if any, shall be reduced by any income tax consequences, state and federal, and social security that would reduce the gross amount and further reduced by any reasonable attorney fee not to exceed one-third of the gross amount that the claimant would owe to his attorney for services rendered as a result of a workers' compensation action. conclusions of law The claimant has the burden of proving by a preponderance of the evidence that the injury of June 5, 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). Expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere Page 9 existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). 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, 595 (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 sec. 555(17)a. 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, 252 Iowa 613, 620, 106 N.W.2d 591, and cases cited. An employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299; Ziegler, 252 Iowa 613, 106 N.W.2d 591. See also Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term `disability' to mean `industrial disability' or loss of earning capacity and not a mere `functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." The opinion of the supreme court in Olson, 255 Iowa 1112, Page 10 1121, 125 N.W.2d 251, cited with approval a decision of the industrial commissioner for the following proposition: Disability * * * as defined by the Compensation Act means industrial disability, although functional disability is an element to be consid That claimant is permanently, totally disabled. That defendants are not entitled to any 85.38(2) credits as to $800.92 per month group disability benefits claimant has been receiving, beginning January 1, 1989, except as may be specifically provided in any written subrogation provision under the defendant employer's group insurance policy, of which claimant is a beneficiary. Any credit is further reduced by any federal, state or social security taxes payable from said sum and reduced by any reasonable attorney fees on the gross amount, not to exceed one-third. Page 11 order THEREFORE, it is ordered: That defendants pay compensation for permanent total disability at the stipulated rate of two hundred sixty-four and 42/100 dollars ($264.42) per week during the period of claimant's disability, commencing with the stipulated date of December 27, 1988. That defendants shall pay accrued weekly benefits in a lump sum. Defendants have paid no workers' compensation benefits for which they are entitled credit after and commencing with December 27, 1988. Defendants are only entitled to credit for the eight hundred and 92/100 dollars ($800.92) monthly group disability insurance payments that the claimant has been receiving since January 1, 1989 up to the current date minus any reduction due to reasonable attorney fees, federal, state and social security taxes, and providing there is a written subrogation clause in said group insurance policy requiring reimbursement of said payments in the event of a workers' compensation award. That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall pay the costs of this action, pursuant to Division of Industrial Services Rule 343-4.33. That defendants shall file an activity report upon payment of this award as required by this agency, pursuant to Division of Industrial Services Rule 343-3.1 Signed and filed this _____ day of September, 1990. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Robert W Pratt Attorney at Law 1913 Ingersoll Ave Des Moines IA 50309 Mr Walter F Johnson Attorney at Law 111 W Second St P O Box 716 Ottumwa IA 52501 1805; 54100 Filed September 5, 1990 Bernard J. O'Malley before the iowa industrial commissioner ____________________________________________________________ : TERRY SYFERD, : : Claimant, : : File No. 796344 vs. : : GEO. A. HORMEL & CO., : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : LIBERTY MUTUAL INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1804 Claimant found to be permanently totally disabled. Claimant was 57 years old, 28 years working in meat packing industry and no longer able to do this work or any meaningful work. Claimant has no transferable skills and was untrainable. 54100 Claimant found not to be an odd-lot candidate, basically because he didn't do extended job search which seems to be this agency's precedent by prior commissioner rulings, even if it appears any search would be fruitless. BEFORE THE IOWA INDUSTRIAL COMMISSIONER MARION CHIA, Claimant, vs. File No. 796436 PUROLATOR COURIER CORP. A R B I T R A T I 0 N Employer, D E C I S I 0 N and LIBERTY MUTUAL INSURANCE, Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Marion Chia, claimant, against Purolator Courier Corporation, employer (hereinafter referred to as Purolator), and Liberty Mutual Insurance Company, insurance carrier, defendants, for workers' compensation benefits as a result of an alleged injury on June 13, 1985. On May 25, 1988, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of contested issues and stipulations which was approved and accepted as a part of the record in this case at the time of hearing. Oral testimony was received during the hearing from claimant and the following witnesses: Marvin Krause, Wayne Sands, M.D., and Molly Chia. The exhibits received into the evidence at the hearing are listed in the prehearing report. According to the prehearing report, the parties have stipulated to the following matters: 1. On June 13, 1985, claimant received an injury which arose out of and in the course of his employment with Purolator; 2. Claimant is not seeking additional temporary total disability or healing period benefits in this proceeding; 3. If the injury is found to have caused permanent disability, the type of disability is an industrial disability to the body as a whole; 4. If permanent partial disability benefits are awarded herein, they shall begin as of October 23, 1986; 5. Claimant's rate of weekly compensation in the event of an award of weekly benefits from this proceeding shall be $302.82 per week; and, 6. All requested medical benefits have been or will be paid by defendants. ISSUES The parties submitted the following issues for determination in this proceeding: I. Whether there is a causal relationship between the work injury and the claimed disability; and II. The extent of claimant's entitlement to weekly benefits for permanent disability. SUMMARY OF THE EVIDENCE After a review of the entire record, it appears that claimant has submitted a proposed "Statement of Facts" in his brief that fairly summarizes the evidence presented and is reiterated below with some wording changes to improve objectivity. Whether or not specifically referred to in this summary, all of the evidence received at the hearing was considered in arriving at this decision. As will be the case in any attempted summarization, conclusions about what the evidence offered may show are inevitable. Such conclusions, if any, in the following summary should be considered as preliminary findings of fact. Claimant is 49 years of age, married and claims one dependent. He quit Dowling High School in Des Moines in the eleventh grade, has no other formal education and is of Hispanic descent. Claimant testified that his work history consisted of various labor and construction jobs beginning with part-time work at a vegetable farm in Polk County during summers while in high school. After high school claimant worked at the Iowa Packing House doing heavy labor for one and one-half years and then went to work briefly for the Des Moines Union Railroad on a section gang. In 1958 claimant started with Union Local 77 and did general labor and heavy construction work for ten years before commencing his employment with Purolator in December of 1968. Claimant started out at Purolator as a part-time sorter and driver. Within one year he was promoted to the position of dispatcher, a position which involved loading and unloading of trucks. Claimant has at all times during his employment with Purolator maintained a good work record. On November 16, 1978, claimant injured his lower back when he tripped over a hoist at Purolator and underwent a laminectomy performed by Joshua D. Kimelman, D.O., in August of 1979. He thereafter received a 10 percent permanent partial impairment rating from Dr. Kimelman and was given weight and lifting restrictions. Claimant then returned to work with Purolator in November of 1979 in a light duty dispatcher position involving general supervision of loading and unloading trucks with only occasional light lifting. Claimant testified that in late May of 1985, Purolator went through a management change and a reduction of personnel wherein many of claimant's subordinates were laid off. Claimant was informed by his new supervisor that he would be required to help load and unload trucks as he had done before his 1978 surgery despite his lifting restrictions, or he would lose his job. Claimant testified that he had no choice but to comply with this mandate and did so. On June 13, 1985, while unloading 140-150 pound packages of tractor parts from a truck during the course of his employment at Purolator, claimant testified he felt a "snap" in his lower back and experienced considerable pain. That day he consulted Dr. Kimelman who told him to take some time off. Thereafter, claimant attempted to go back to work but after four days had to stop again due to the pain. For the next four months claimant received conservative treatment and therapy through Dr. Kimelman and at Iowa Lutheran Hospital. Claimant's condition having not improved by November of 1985, he underwent a second surgery to the L5-Sl area on November 26, 1985. Claimant has not worked since June of 1985. Claimant testified he received no other injuries and was involved in no accidents or mishaps between 1979 and June of 1985. He stated that he had no problems whatsoever with his back at the time of the injury on June 13, 1985. Claimant contends that the second surgery had an unsatisfactory result in that he has at all times since suffered severe pain and discomfort. Claimant stated that since the second surgery, he has tried numerous physical therapy and pain management programs, all without success. In January of 1986, claimant received physical therapy through Dr. Kimelman's office and in May of 1986, attempted the pain clinic in Des Moines under the supervision of James L. Blessman, M.D. Claimant said that he was unable to participate in the program due to the pain. Claimant himself then contacted Family Fitness and with Dr. Kimelman's permission underwent a swimming, walking and exercise program for a period of approximately nine months, but states that he received only temporary relief. Claimant was then enrolled in the Iowa Methodist Sports Clinic where he performed exercises three and one-half to four hours per day for six weeks. Stating that he was unable to get out of bed and in considerable pain by the end of the sixth week, claimant discontinued his treatment at the Methodist Sports Clinic under the advice of Dr. Kimelman. Although no longer involved with a professional physical therapy organization or work hardening program, claimant still tries to perform the exercises Dr. Kimelman taught him on a daily basis, including arm and shoulder rotation, leg pulls, and sit-ups. Despite these efforts, claimant testified that he continues to be in constant, excruciating pain. Claimant describes the pain as starting at the belt level in the lower back and traveling all the way down his left leg, where he also experiences numbness and tingling. He has the same problems in his left leg down to his knee. Claimant testified that he cannot bend, stoop or squat and, unless he is sitting in a recliner his children bought him, he cannot sit for more than 10 to 15 minutes without experiencing considerable pain and discomfort. He cannot lift any weight from the floor and is unable to lift or maneuver objects from a table or desk. He cannot do chores around the house and cannot drive. Claimant testified that he cannot walk more than a block without having to sit down. Claimant testified that in a typical day he merely stays around the house reading or watching television until his wife, Molly, comes home from her work as a nursing home worker in the evening. Claimant testified that he can sleep only two and one-half hours at a time at night and often merely paces the floor or tries to read Reader's Digest or newspapers. He sometimes attempts to gain relief by sleeping on the floor. The evidence and testimony reveals that claimant is currently taking medication consisting of 7.5 milligrams of Tranxene and Darvocet N 100 every four hours. Claimant testified that the medication gives him only temporary relief and makes him feel numb all over. Claimant contends that his physical condition since the second surgery has had a considerable emotional and psychological impact. Claimant testified that before 1985 he enjoyed hunting, fishing and coaching softball, but that he is no longer able to do these things. Claimant testified that now he is always tense and irritable and that he has difficulty being around people, often being harsh with his wife and grandchildren for no reason. Claimant also testified that he has considerable difficulty concentrating and comprehending, often forgetting things told him or things he tries to read. Molly Chia testified that claimant is a changed man since the second surgery. Claimant testified that he feels useless because he cannot work. Dr. Kimelman, orthopedic surgeon, testified by deposition that he first became involved with claimant in November of 1978 due to claimant's work related injury during that year. After initially attempting conservative therapy without success, Dr. Kimelman conducted a lumbar myelogram which at that time was equivocal. Instead of recommending surgery, Dr. Kimelman at that time recommended that claimant lose 40 to 50 pounds, which claimant did. A lumbar laminectomy was then performed by Dr. Kimelman on August 1, 1979 which was successful. Dr. Kimelman released claimant to return to work in September of 1979 with light duty restrictions contemplating no bending, stooping or lifting over 25 pounds. During the next 18 months Dr. Kimelman saw claimant on six occasions when claimant complained of some discomfort. The last time Dr. Kimelman saw claimant prior to the second accident was on April 8, 1981, at which time it was noted that claimant's symptoms had subjectively improved. Dr. Kimelman then saw claimant on June 19, 1985, at which time claimant reported low back pain and left leg radiation occurring subsequent to his change of duties at work. Conservative therapy was attempted over the next few months and a CT scan was performed at Lutheran Hospital in August of 1985. Claimant was admitted to Mercy Hospital on November 11, 1985 and a repeat surgical exploration of his L5-Sl disc space was performed on November 26, 1985 with a post-operative diagnosis of degenerative arthritis with scar formation. Dr. Kimelman testified that scar tissue formation from this prior surgery sensitized the area to further injury and that although in retrospect the aggravated symptoms presented to him in November of 1985 were probably more attributable to scar tissue formation rather than increased disc herniation, the claimant's condition did not improve after the operation and has now been compounded by chronic pain syndrome. The last time Dr. Kimelman saw claimant was on December 18, 1987. X-rays revealed a degenerative disc disease at the L5-Sl level and Dr. Kimelman"s diagnosis was a failed lumbar disc syndrome with chronic pain syndrome. There is nothing further that can be done medically. Based upon the history given by the claimant, the physical examination and the treatment of the claimant, Dr. Kimelman testified to a reasonable degree of medical certainty that (1) claimant had sustained a material aggravation to a preexisting back condition while performing bending and lifting at his place of employment in June of 1985; (2) that the symptoms that arose from the June, 1985, incident resulted in claimant having the lumbar surgery in November of 1985; (3) claimant sustained a 15 percent permanent functional impairment as a result of the work related incident that occurred in June of 1985; and, (4) claimant's chronic pain syndrome was causally related to the June, 1985, work-related incident. Dr. Kimelman further testified that claimant's total current permanent impairment is 25 percent, that he believed claimant was truthful in reporting his symptoms and difficulties and that claimant is now two and one half times worse than he was after the first surgery in 1979. In Dr. Kimelman's s opinion, it is extremely unlikely that claimant would improve to the point that he would be gainfully employed in the future. Dr. Robert C. Jones, M.D., testified by deposition that he examined claimant on December 4, 1986 at which time he took a history from claimant consistent with the facts presented by claimant at hearing Review of x-rays, a myelogram and a CT scan taken of claimant's lower back area in September of 1986 indicated to Dr. Jones a herniated disc at the lower lumbar on the left with some clumping of the roots. Based upon his examination of claimant, the history taken and the materials provided him, Dr. Jones formed a diagnosis of a failed lumbar disc syndrome and depression. Dr. Jones also was of the opinion that claimant had a residual disc herniation at the lumbosacral area on the left with some scar tissue. Dr. Jones also concurred with Dr. Kimelman's assessment of a 25 percent functional impairment of the body as a whole with 10 percent being attributable to the 1978 injury. Noting from the history taken that claimant was doing well before the second injury, Dr. Jones related claimant's current problems to the 1985 injury and not to an ongoing.process from the 1978 surgery. Dr. Jones testified that the 25 percent rating represented a significant impairment and that because of the amount of pain claimant was experiencing, vocational rehabilitation would be difficult. Dr. Jones also testified that claimant suffered from chronic pain syndrome, and that it may be beneficial to explore this with a psychiatrist. In Dr. Jones' opinion, claimant probably will never be able to return to work duties and that his back and leg pain will keep him from working or being gainfully employed indefinitely. Dr. W. Wayne Sands, M.D., a psychiatrist, testified that he met with claimant on December 3, 1987, for the purpose of psychiatric evaluation and administration of psychiatric testing. Dr. Sands testified that claimant's psychological profile did not reveal that he was mentally ill or psychotic. Dr. Sands further testified that claimant was not a candidate for psychotropic medication and that he was not malingering. Claimant presented no history of any treatment for any psychological problems prior to June, 1985. Based upon his psychiatric evaluation of the claimant, the history taken and the psychological testing performed, Dr. Sands formulated a diagnosis of depressive Somatization Disorder, i.e., psychological conflicts which translate into symptoms. Dr. Sands testified that claimant suffers from a 60 percent psychological impairment according to the AMA Guidelines, thus representing a substantial impairment. While recognizing that claimant had some underlying propensity towards depression prior to June of 1985, Dr. Sands related no less than 50 percent of the claimant's psychological impairment to the June, 1985 work related accident. He was of the further opinion that his underlying sensitivities were triggered by the said injury. Dr. Sands also testified that claimant's psychological impairment will be permanent, noting that while medication and family counseling might temporarily take the edge off claimant's anxiety, it will never get better. Marvin Krause, a recently retired vocational rehabilitation specialist with the Iowa Department of Education, testified that he met with claimant before his retirement on December 14, 1987, for the purposes of attempting to locate employment alternatives. Having worked with numerous disabled individuals while employed with the Department of Education, Mr. Krause determined that claimant's physical impairment was too severe for him to derive any benefit from what the department had to offer and for this reason screened him out after the one interview. Mr. Krause testified that his review of medical reports by Dr. Kimelman, Dr. Jones and Dr. Sands since the interview corroborates his opinion that claimant is incapable of obtaining and maintaining any type of gainful employment of any nature given claimant's prior work history, medical and psychological condition and education. Also testifying as to claimant's vocational prospects was Howard Shelby Swain, a former workers' compensation supervisor at Traveler's Insurance and most recently a rehabilitation consultant with Management Consulting and Rehabilitation Services. Requested by Liberty Mutual to prepare a general assessment of employability and job placement, Mr. Swain met with claimant in October of 1986 for one and one half hours and had at least three contacts with him thereafter, the last being on November 25, 1987. Mr. Swain testified that he found claimant to be most cooperative and that he expressed a great desire to return to work at Purolator if his physical condition were to improve, but Purolator would not hire him back. This was confirmed when a representative from Liberty Mutual informed Mr. Swain that no job possibility was available for him at Purolator. Having had an opportunity to review the medical documentation from Dr. Kimelman, Dr. Jones, and Dr. Sands; and based upon factors such as claimant's age, demeanor, prior employment history, and lack of transferable skills, Mr. Swain testified that claimant now has a substantial impairment that would make it less likely than more likely for him to find any type of full time competitive employment. Additionally, Mr,. Swain testified that given his understanding of claimant's lifting restrictions after his first surgery and the fact that he did thereafter actually return to work at Purolator, he did not consider claimant industrially disabled prior to the second injury. In addition to the above summary, it should be noted by the undersigned that claimant's appearance and demeanor at hearing and that of his wife indicated that they were testifying in a candid and truthful manner. APPLICABLE LAW AND ANALYSIS I. The claimant has the burden of proving by a preponderance of the evidence that the work injury is a cause of the claimed disability. A disability may be either temporary or permanent. In the case of a claim for temporary disability, the claimant must establish that the work injury was a cause of absence from work and lost earnings during a period of recovery from the injury. Generally, a claim of permanent disability invokes an initial determination of whether the work injury was a cause of permanent physical impairment or permanent limitation in work activity. However, in some instances, such as a job transfer caused by a work injury, permanent disability benefits can be awarded without a showing of a causal-connection to a physical change of condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). The question of causal connection is essentially within the domain of expert medical opinion. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion of experts need not be couched in definite, positive or unequivocal language and the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). The weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Furthermore, if the available expert testimony is insufficient along to support a finding of causal connection, such testimony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. Asse Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish compensability, the injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith, 290 N.W.2d 348, 354. In the case of a preexisting condition, an employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). In the case sub judice, claimant has established by uncontroverted medical evidence That he suffered a 15 percent permanent partial impairment to the body as a whole from an injury on June 13, 1985. II. Claimant must establish by a preponderance of the evidence the extent of weekly benefits for permanent disability to which claimant is entitled. As the claimant has shown that the work injury was a cause of a permanent physical 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 condition 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, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985). Claimant's medical condition before the work injury was certainly not excellent and he had functional impairments and a probable industrial disability before June of 1985 due to permanent restrictions imposed upon him against bending, stooping or lifting over 25 pounds. However, claimant was able to fully perform physical tasks involving light repetitive lifting, bending and prolonged standing and sitting. As a result of the painful injury on June 13, 1985 and subsequent surgery, claimant may have a similar physician imposed restrictions as before but now is much more severely disabled in his ability to walk, stand or sit. Also, claimant has experienced almost continuous pain in varying degrees since the date of injury which was not the case after the earlier 1978 injury and surgery. This pain has resulted in chronic pain syndrome which aggravates the pain even more and greatly increases the disability by affecting claimant's mind and ability to concentrate. Claimant's physicians now have restricted claimant's work activities by prohibiting not only heavy lifting but any form of repetitive lifting, bending, twisting or prolonged sitting and standing for even short periods of time. Claimant's mental and physical condition prevents him from returning to his former work or any other work which claimant performed in the past or for which he is best suited given his lack of formal education and intellectual abilities. Claimant is 47 years of age and should be in the most productive years of his working life. Consequently, his loss of future earnings from employment due to his disability is more severe than would be the case for a younger or an older individual. See Becke v. Turner-Busch, Inc., Thirty-Fourth Biennial Report of the Iowa Industrial Commissioner 34 (Appeal Decision 1979). See also Walton v. B & H Tank Corp., II Iowa Industrial Commissioner Reports 426 (Appeal Decision 1981). Claimant has only an eleventh grade education and exhibits below average intelligence at hearing. According to vocational rehabilitation counselors involved in this case, claimant had little or no potential for vocational rehabilitation. This lack of potential is due to his severe physical problems; claimant's mental problems which stem from the work injury; and, his lack of educational skills in reading, spelling and math. Claimant simply cannot concentrate due to pain. The consensus of vocational counseling in this case is that claimant is not employable in any capacity. Claimant pleads the odd-lot doctrine which is a procedural device to shift the burden to defendants in alleged permanent total disability cases where claimant is able to perform light duty work but has made an unsuccessful effort to find such work. The undersigned does not have to resort to the odd-lot doctrine in this case to award permanent total disability as claimant is physically and mentally incapable of performing even light duty sedentary work. After examination of all the factors, it is found as a matter of fact that claimant has suffered a 100 percent loss of his earning capacity from his work injury of June 13, 1985. Based upon such a finding, claimant is entitled as a matter of law to permanent total disability benefits under Iowa Code section 85.34(3) for an indefinite period of time beginning on the date of injury. Defendants seek an apportionment of disability in this case between claimant's preexisting condition and the work injury of June, 1985. Such an apportionment may be proper when there is some ascertainable disability which existed independent of the injury before the injury occurred. Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984). Although a portion of claimant's current disability may be attributable to medical conditions prior to 1985, an employer still takes an employee as they occur when they are employed with all their prior faults and problems. Furthermore, an apportionment is not appropriate or possible in a permanent total disability case because the benefits are not payable for a definite period of time under Iowa Code section 85.34(2) but are paid for an indefinite period of time during the period of claimant's disability. Admittedly, claimant's work injury may be a contributing factor. However, the June, 1985 injury was the proverbial "straw that broke the camel's back" and permanent total disability benefits shall be awarded accordingly. FINDINGS OF FACT The proposed findings of fact submitted by claimant are adopted in their entirety and are reiterated below: 1. Claimant and his wife were found to be credible witnesses from their appearance and demeanor on the stand. 2. Claimant was in the employ of Purolator Courier Corporation at all times material herein. 3. On June 13, 1985, claimant suffered an injury to his low back which arose out of and in the course of his employment with Purolator. This injury consisted of a reinjury to the claimant's lower spine which eventually required surgery. That said injury and subsequent surgery has left his back and body as a whole permanently, functionally impaired. 4. Prior to the work injury of June, 1985, claimant had sustained a prior work injury on November 16, 1978, that resulted in surgery and some physical restrictions but claimant eventually recovered from that injury and was able to return to work with the defendant in a modified job position. There was no evidence of any decrease in wages from 1982 through 1985, the date of this incident. The claimant's wages increased from $18,807 in 1982 to $20,985 in 1984. 5. That before the June, 1985 work related injury the claimant was able to perform his work as a dispatcher with Purolator, but after said date, he has been physically unable to resume such work. 6. Claimant has sustained a substantial psychological impairment as a result of the June, 1985 work related injury. 7. That the work injury of June, 1985, was a cause of a 15 percent permanent partial impairment to the body as a whole in addition to the 10 percent permanent partial impairment of the body as a whole that the claimant suffered in the 1978 work related injury. Therefore, claimant's permanent partial impairment at present is 25 percent. 8. Claimant cannot sit, stand, ride in a car, or remain in a single position for any length of time, in excess of 15 minutes without changing positions. 9. As a result of his functional impairment and physical restrictions claimant is unable to return to any of his prior work activities or any other gainful employment. 10. Claimant's work history consists of gainful regular employment as a vegetable farm worker, packing plant laborer, railway section gang worker and general construction worker before commencing employment with Purolator in 1968 as a dispatcher and handler. 11. Claimant has constant pain in his low back and legs which affects his concentration and comprehension abilities. 12. Claimant has suffered a total loss in actual earnings from employment due to his work injury. 13. Claimant is adequately motivated to find suitable alternative employment, but is not able physically or mentally to perform any gainful employment. 14. Claimant is 49 years of age and has an eleventh grade education and has limited intellectual skills. 15. Claimant has no potential for successful vocational rehabilitation. 16. As a result of his work injury, claimant has suffered a total loss of earning capacity. 17. Pursuant to the stipulation of the parties, claimant's rate of compensation for this injury is $302.87 per week and he has not worked since June of 1985. 18. The work injury of June, 1985, and the resulting permanent partial impairment, is a cause of permanent and total loss earning capacity. ORDER 1. Defendants shall pay to claimant permanent total disability benefits for an indefinite period of time from June 13, 1985 during the period of claimant's disability. 2. Defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for all benefits previously paid. 3. Defendants shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 4. Defendants shall pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. 5. Defendants shall file activity reports on the payment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 17th day of November, 1988. LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Thomas P. Schlapkohl Attorney at Law 1906 Ingersoll Ave. Suite E Des Moines, Iowa 50317 Mr. Larry D. Krpan Attorney at Law 3100 Ingersoll Ave. Des Moines, Iowa 50312 Mr. Richard G. Book Attorney at Law 1000 Des Moines Bldg. Des Moines, Iowa 50309 1804; Apportionment of Disability (1806) Filed November 17, 1988 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER MARION CHIA, Claimant, vs. File No. 796436 PUROLATOR COURIER CORP. A R B I T R A T I 0 N Employer, D E C I S I 0 N and LIBERTY MUTUAL INSURANCE, Insurance Carrier, Defendants. 1804; Apportionment of Disability (1806) Permanent total disability benefits were awarded to a 49 year old high school drop out for a low back injury. The odd-lot doctrine was not utilized as claimant was found to be incapable of even light duty work due to physical and mental problems aggravated by chronic pain syndrome. Despite the probability of a prior industrial disability due to a prior work injury, an apportionment of disability was not made in this case. It was held that an apportionment is not possible in a permanent total disability case because benefits are not awarded for a definite time period but for an indefinite time during claimant's disability. There is no prior agency appeal decision on this point but this has been the agency view for the last several years and several deputy decisions have so field in the past. BEFORE THE IOWA INDUSTRIAL COMMISSIONER MARK A. VAN BLARCOM, Claimant, File No. 796651 vs. A R B I T R A T I 0 N FDL FOODS, INC., D E C I S I 0 N Employer, Self-insured, Defendant. INTRODUCTION This is a proceeding in arbitration brought by Mark A. Van Blarcom against FDL Foods, Inc., his self-insured employer. The case was heard and fully submitted at Dubuque, Iowa on December 15, 1987. The record in this proceeding consists of testimony from Mark A. Van Blarcom, joint exhibits 1 and 2 and claimant's exhibit A. ISSUES The only issue presented by the parties for determination is the nature and extent of claimant's permanent partial disability. It was stipulated that Van Blarcom had sustained an injury in the nature of carpal tunnel syndrome which arose out of and in the course of his employment on or about May 14, 1985, that his healing period ran from June 7, 1985 to September 8, 1985 and had been fully paid and that his rate of compensation is $85.17 per week. SUMMARY OF EVIDENCE The following is a summary of evidence presented in this case. Only the evidence most pertinent to this decision is discussed, but all of the evidence received at the hearing was considered in arriving at this decision. Conclusions about what the evidence showed are inevitable with any summarization. The conclusions in the following summary should be considered to be preliminary findings of fact. Mark A. Van Blarcom is a 26-year-old man who has been employed by FDL Foods, Inc. since October 18, 1984. in 1985, he developed right carpal tunnel syndrome and was referred to L. C. Faber, M.D., for treatment. After attempts at conservative treatment were unsuccessful, carpal tunnel release surgery was VAN BLARCOM V. FDL FOODS, INC. Page 2 performed on July 26, 1985 (exhibit 1, pages 1, 4 and 10). Dr. Faber released claimant to return to work on September 9, 1985 (exhibit page 23). Claimant testified that the surgery did not completely resolve his symptoms, but that, in the weeks following surgery, he noticed a decrease in numbness and a return of his grip strength. Claimant exhibited the scar on his right hand which ran into the palm of his hand and also approximately one and one-half inches from the base of the palm toward the wrist and forearm. Claimant testified that he continues to have difficulties with his right hand and arm. He stated that numbness has returned and that now it includes all the fingers of his hand and runs up his forearm, at times even to his shoulder. Van Blarcom stated that, at times, he has jolts which feel like an electrical shock which run throughout his entire arm. He stated that they start in the elbow and move in both directions, going to the shoulder and also to his hand. He stated that jolting can be produced by fully flexing or extending his right wrist. Claimant has bid on different positions and, at the present time, pushes carcasses in the cooler. He stated that, in view of the type of work he now performs, his symptoms are less frequent and less severe than they were at times when he performed knife work. Claimant stated that the scar does not restrict his wrist. In response to his complaints, claimant was referred to A. Sterrett, M.D., a neurologist, who felt that claimant was suffering from recurrent right carpal tunnel syndrome. He VAN BLARCOM V. FDL FOODS, INC. Page 3 suggested reexploration of the carpal tunnel (exhibit 1, pages 24 and 25). On June 26, 1986, Anthony J. Piasecki, M.D., issued a report in which he indicated that claimant has had carpal tunnel syndrome of his right wrist and that he has residual findings. Using the AMA tables on impairment of function, Dr. Piasecki assigned claimant an impairment rating of 11% of his right upper extremity (claimant's exhibit A). Claimant was also referred to William F. Blair, M.D., for an evaluation. On March 6, 1987, Dr. Blair issued a report which indicates that claimant has a persistent activity-related median neuropathy with an associated measurable decrease in sensibility in the right hand. Dr. Blair rated claimant as having a five percent permanent functional impairment of the right hand, a figure which he indicated was equivalent to a five percent impairment of the right upper extremity. APPLICABLE LAW AND ANALYSIS In view of the stipulation made by the parties, the extent of permanent partial disability is the only issue to be determined. Contained within that issue is whether the disability is limited to the hand or extends into the arm. The fact that Dr. Piasecki gave his rating as an impairment of the upper extremity is not necessarily an indication that impairment exists beyond the hand. Physicians commonly rate carpal tunnel syndrome impairment alternately as either an impairment of the hand or as an impairment of the upper extremity, regardless of the actual precise location of the impairment. Additionally, when the AMA guides are used to convert impairments between the hand and the arm, the net result when awarding compensation generally varies little regardless of whether the impairment is treated as one of the hand or of the arm. The operative report found at exhibit 1, page 10 indicates that the annular ligament was incised. The annular ligament is anatomically located distally to the distal end of the radius and ulna. It is located in an area that is considered to be part of the wrist. The wrist is considered to be part of the hand. Elam v. Midland Manufacturing, II Iowa Industrial Commissioner Report, 141 (App. Decn. 1981). None of the physicians in the case have identified anything in their reports which indicates that claimant has any physical ailment, abnormality or derangement that extends beyond the wrist and into the arm. Accordingly, claimant's disability should be evaluated as a disability of the VAN BLARCOM V. FDL FOODS, INC. Page 4 right hand. Lauhoff Grain Company v. McIntosh, 395 N.W.2d 834 (Iowa 1986). Dr. Blair's ratings do not appear to be inconsistent with table 9 which is found at page 10 of the second edition of the Guides to the Evaluation of Permanent Impairment. It shows a five percent impairment of the hand to be equivalent to a five percent impairment of the upper extremity. Dr. PiaseckiOs 11% impairment rating of the upper extremity is shown, in that same table, to be equivalent to a 12% impairment of the hand. Impairment ratings of the hand are easily converted to an equivalent impairment rating of the upper extremity and vice versa using the table in the guides. Division of Industrial Services Rule 343-2.4. Agency experience and expertise shows that an impairment rating, following carpal tunnel surgery,.of five percent of the hand or less usually indicates a favorable result from surgery. Impairment ratings of 10% of the hand or greater usually indicate a surgery that was not completely successful. Claimant's appearance and demeanor was observed as he testified. His testimony concerning his complaints is accepted as being correct. The rating from Dr. Piasecki is found to be more consistent with claimant's continuing symptoms and complaints than the rating from Dr. Blair. Nevertheless, when considering all the evidence in the case, it is determined that claimant has a 10% loss of use of his right hand as a result of the carpal tunnel syndrome. This entitles him to receive 19 weeks of compensation for permanent partial disability. Payment of those 19 weeks was due commencing at the end of the healing period, in this case, on September 10, 1985. Claimant is also entitled to recover interest on the unpaid compensation at the rate of 10% per annum computed from the date each payment came due until the date of actual payment. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986). FINDINGS OF FACT 1. Mark A. Van Blarcom has a 10% loss of use of his right hand as a result of the carpal tunnel syndrome which he incurred through his employment with FDL Foods, Inc. 2. Even though claimant experiences symptoms in his arm, the physical impairment and anatomical derangement is located in his hand. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. Claimant's disability should be evaluated as disability to the hand under Iowa Code section 85.34(2)(1). 3. Claimant is entitled to receive 19 weeks of compensation representing a 10% loss of use of the hand. ORDER VAN BLARCOM V. FDL FOODS, INC. Page 5 IT IS THEREFORE ORDERED that defendant pay claimant nineteen (19) weeks of compensation for permanent partial disability at the stipulated rate of eighty-five and 17/100 dollars ($85.17) per week payable commencing September 10, 1985. IT IS FURTHER ORDERED that the entire amount thereof is past due and shall be paid to claimant in a lump sum together with interest at the rate of ten percent (10%) per annum computed from the date each payment came due until the date of actual payment. IT IS FURTHER ORDERED that the costs of this action are assessed against the defendant, including the sum of ninety-nine and 50/100 dollars ($99.50) for a written report from Dr. Piasecki, pursuant to Division of Industrial Services Rule 343-4.33. IT IS FURTHER ORDERED that defendant file a Claim Activity Report within ninety (90) days from the date of this decision. Signed and filed this 16th day of May, 1988. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Louis P. Pfeiler Attorney at Law Washington Park Law Building 679 Bluff Street Dubuque, Iowa 52001 Mr. David C. Bauer Mr. James M. Heckmann Attorney at Law One CyCare Plaza, Suite 216 Dubuque, Iowa 52001 1803 Filed May 16, 1988 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER MARK A. VAN BLARCOM, Claimant, File No. 796651 vs. A R B I T R A T I 0 N FDL FOODS, INC., D E C I S I 0 N Employer, Self-insured, Defendant. 1803 The only dispute in the case was the extent of permanent partial disability and whether it was to the hand or to the arm. The injury was development of carpal tunnel syndrome. The claimant had a relatively unsuccessful result from surgery. Where the impairment ratings ranged front 11% of the upper extremity to 5% of the hand, it was held that claimant had a 10% permanent partial disability of the hand.