BEFORE THE IOWA INDUSTRIAL COMMISSIONER VICKIE E. FRY, Claimant, vs. File No. 808328 H. J. HEINZ, 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 LIBERTY MUTUAL INSURANCE APR 11 1989 COMPANY, INDUSTRIAL SERVICES Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration wherein claimant seeks compensation for permanent partial disability in connection with an injury that occurred on December 18, 1983. The case was heard and fully submitted at Davenport, Iowa on July 7, 1988. The record in the proceeding consists of testimony from Vickie E. Fry and Ronald Albright. The record also contains joint exhibits 1 through 55. ISSUES The only issue identified by the parties for determination is the extent of permanent disability, if any, which resulted from the December 18, 1983 injury. SUMMARY OF EVIDENCE The following is a summary of evidence presented in this case of all the evidence received at the hearing, only that considered most pertinent to this decision is discussed. Conclusions about what the evidence showed are inevitable with any summarization. The conclusions in the following summary should be considered to be preliminary findings of fact. Vickie E. Fry is a 29-year-old, married lady who lives at Muscatine, Iowa. She is a high school graduate. Fry commenced employment with H. J. Heinz in August, 1980. Prior to that time, she had worked in a restaurant and had also worked in the Leitica factory. Claimant's prior health history includes an automobile accident that occurred on May 20, 1977 for which she did not seek medical care. Claimant testified that she had not gone to a chiropractor for treatment prior to the time she commenced work at Heinz. In December of 1981, claimant was helping move furniture and strained her neck. She sought treatment from Jeffrey A. Shay, D.C., and was off work approximately two weeks (exhibits 8, 9 and 42). Claimant stated that the main problem was in her neck and that she had no problem with her shoulders or arms as a result of that incident. Claimant related that, during the summer of 1982, she had resumed full activity and had no residual problems from the incident. Exhibit 6 is the employer's first aid treatment record. An entry of December 10, 1981 indicates that claimant made complaints regarding her left neck and shoulder. A note of April 22, 1982 indicates that claimant complained that her left shoulder was aching. A note dated April 7, 1983 indicates that claimant complained of her left shoulder hurting and of hurting the shoulder a couple of months earlier. On October 11, 1983, she again received first aid treatment for her left shoulder. A note dated November 23, 1983 indicated that claimant had been wearing a cervical collar. A note of December 20, 1983 again indicates pain in the left shoulder. Subsequent entries in the first aid records indicating a problem with claimant's left shoulder appear on December 21, 1983, January 25, 1984, April 24, 1984, May 4, 1984, June 29, 1984, August 9, 1985, October 29, 1985, October 30, 1985, and November 11, 1985. In early 1983, claimant again injured her neck while moving furniture and sought treatment from Dr. Shay. Claimant stated that the injury did not involve her shoulder, deltoid or trapezius (exhibit 10). Claimant testified that, during the summer of 1983, she had resumed full activity and had no further problems. Claimant testified that problems with her left shoulder that occurred in March, 1983 arose while she was operating the double seamer, a job that requires lifting with the arms overhead. Claimant stated that, in April, 1983, she had more problems with her left shoulder while operating the palletizer. Claimant stated that she had occasional left shoulder problems during the remainder of 1983. Claimant testified that, in December, 1983, she again saw William Catalona, M.D., when she had been operating the double seamer and that the doctor issued restrictions against her performing any work with her hands above shoulder level. In 1985, claimant was involved in an automobile accident. Claimant stated that she had no problem with her arm or shoulder during the summer of 1985 from that accident and had engaged in full activity. Claimant testified that Dr. Catalona has advised her to not perform repetitive work and recommended that she move into secretarial work. Claimant stated that the employer has been very good in complying with the restrictions recommended by Dr. Catalona, but that there are jobs which she cannot now perform, some of which provide a higher rate of pay than the job she currently performs. Claimant testified that she now earns $9.58 per hour and works 40 hours per week. Sometimes she also works overtime. Claimant stated that she missed no time from work for her shoulder complaints other than when she had a myelogram performed for diagnostic purposes. Claimant testified that she is able to bowl, using her dominant right arm, without the activity bothering her left shoulder. She stated that she performed aerobics when she was still in school and also last winter. She stated that she performed aerobic exercises at her home in 1985 and 1986. Claimant complained that she has pain in her shoulder all of the time. Claimant stated that the shoulder problem limits her ability to carry things (exhibit 51, pages 22 and 23). William Catalona, M.D., an orthopaedic surgeon, has been the primary treating physician for claimant's left shoulder complaints. Dr. Catalona arranged for claimant to be evaluated by neurologists who performed diagnostic testing and concluded that claimant had a mechanical or strain syndrome, but could not diagnose any other problem (exhibit 28). Claimant was evaluated by Byron W. Rovine, M.D., a neurosurgeon. A myelogram was performed in order to determine whether claimant's problems were related to a cervical disc abnormality. Dr. Rovine's only diagnosis was cervical brachial pain syndrome of undetermined origin. He recommended no further diagnostic testing or treatment. He would not impose any activity restrictions for claimant (exhibit 53, pages 7-9). Dr. Rovine indicated that he did not feel that claimant suffered from overuse syndrome, and that overuse syndrome is a vaguely defined, poorly characterized disorder (exhibit 53, pages 11, 12, 18 and 19). Dr. Rovine did not attribute claimant's complaints to her work at H. J. Heinz (exhibit 53, page 17). Dr. Catalona concluded that claimant did suffer from overuse syndrome. Dr. Catalona explained that overuse syndrome arises in individuals who have a collagen deficiency disease which makes them susceptible to its development. He stated that the symptoms can resolve with prolonged rest, but that upon resuming repetitive activity, the symptoms recur. He stated that there was no effective treatment for the underlying condition (exhibit 52, pages 19-24, 31 and 32). Dr. Catalona indicated that claimant should avoid frequent repetitive motions, especially those which are performed with her hands overhead. He recommended to the employer that claimant not be assigned any work which required overhead use of her hands (exhibit 52, pages 18 and 25). Dr. Catalona felt that claimant had some permanent impairment, although he did not have a numerical rating for that impairment (exhibit 52, pages 32 and 33). Dr. Catalona explained that claimant's condition is one which is cumulative. He did not relate ail of claimant's symptoms to the strain that she suffered in December, 1983, but felt that her work was a factor. The doctor declined to apportion the condition among the various causative factors (exhibit 52, pages 29-39). Ronald Albright, a supervisor at H. J. Heinz, stated that, within the Heinz pay system, grade 6 is the highest pay level and grade 1 is the lowest. He related that the double seamer position is a grade 5 while claimant's current inspector job is grade 3 and that the difference between the two is approximately $.40 per hour. Albright stated that advancement in the plant is based on seniority and the ability to do the job and that jobs are posted and bid. Albright stated that jobs are evaluated according to their physical effort, complexity and other requirements which then are assigned points from which the actual pay grade is determined. Albright agreed that claimant's restrictions may limit her ability to move into other jobs, but stated that the company tries to accommodate persons with work injury restrictions. Albright stated that claimant is currently paid $10.22 per hour. Claimant disagreed with her pay rate and stated that she is working at grade 2 for which she is paid $9.58 per hour. APPLICABLE LAW AND ANALYSIS The fact of injury arising out of and in the course of employment having occurred on December 18, 1983 was established by the stipulation of the parties and is well supported by the evidence in the record. Dr. Catalona's assessment of claimant's injury as a strain or overuse syndrome is well supported by the evidence and is accepted as correct, despite the conflicting indications from Dr. Rovine. The claimant has the burden of proving by a preponderance of the evidence that the injury of December 18, 1983 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 (19,45). 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). 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. Apportionment of disability between a preexisting condition and an injury is proper only when there was some ascertainable disability which existed independently before the injury occurred. Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984). The parties correctly stipulated that any permanent disability should be evaluated industrially. Claimant's neck and shoulder complaints seem to, be somewhat intertwined. A cervical disc problem was a suspected source of claimant's shoulder complaints. Some of the records indicate that claimant often voiced complaints which involved both her neck and shoulder at the same time. Dr. Catalona is the primary treating physician for this injury. He is a well-regarded, highly experienced orthopaedic surgeon who deals with industrial injuries on a frequent basis. His assessment of the case is corroborated by the assessments made by Drs. Worrell and Neiman. Accordingly, Dr. Catalona's opinions are accepted as correct in this case, despite the fact that they are contradicted to some degree by evidence from Dr. Rovine. Claimant likely has an underlying, preexisting collagen disorder which makes her susceptible to injury from repetitive activity. Claimant is now afflicted with continuing chronic complaints whereas she was symptom-free at the time she commenced her employment with Heinz. She has injured her neck, and probably her shoulder on a number of occasions, some of which occurred at work and some of which occurred while she was off work. For a cause to be proximate, it need only be a substantial factor in producing the result; it need not be the sole factor. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980). Dr. Catalona correctly concluded that part of claimant's increased symptomatology has resulted from her employment activities at H. J. Heinz. He was unable to make an apportionment of precisely what percentage was attributable to her employment activities as opposed to other causes. Dr. Catalona has imposed permanent activity restrictions. He stated that claimant has permanent impairment, although he did not assign a numerical rating. It is therefore found and concluded that Vickie E. Fry does have permanent disability which has resulted from the repetitive activities she has performed in her work with H. J. Heinz. As claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 257 (1963). Industrial disability or loss of earning capacity is a concept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment of physical capacity creates an inference of lessened earning capacity. The basic element to be determined, however, is the reduction in value of the general earning capacity of the person, rather than the loss of wages or earnings in a specific occupation. Post-injury earnings create a presumption of earning capacity. The earnings are not synonymous with earning capacity and the presumption may be rebutted by evidence showing the earnings to be an unreliable indicator. Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 34th Biennial Report, 218 (1979): 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. From the record, it appears that claimant's only actual physical restriction is that she avoid repetitive work that is performed with her hands overhead. This restriction limits claimant's access to some of the jobs available at H. J. Heinz. It does not, however, eliminate her from the Heinz workforce. Claimant has been able to remain employed and is currently in a position she is able to perform without violating her restrictions and without worsening her condition. It is now known that claimant cannot perform repetitive work with her hands overhead without injuring herself Due to the underlying collagen disorder, she never had the capacity to perform repetitive work with her hands overhead without injuring herself. In this case, however, she did attempt to perform the work and performed it for a period of time. She did injure herself and she now has a chronic condition: The employer has limited the effect of the injury upon claimant's actual earnings. It does not appear that the injury would make claimant unable to perform most types of work. While there is some discrepancy in the testimony regarding claimant's current pay grade and pay rate, the testimony is consistent in the sense that claimant is earning in the range of $9.50-$10.00 per hour and that the differential between pay grades is approximately $.20 per hour. Claimant appeared to have no intellectual shortcomings or other physical disabilities. When all the material factors of industrial disability are considered, it is determined that Vickie E. Fry has a five percent permanent partial disability when the disability is evaluated industrially. In making this determination and assessment, it is recognized that claimant's condition arose from a cumulative injury process. Further activity of the type responsible for the injury will aggravate the condition. It is further recognized that no single incident of aggravation is responsible for the chronic complaints which claimant now experiences, but that the cumulative effect of all the aggravations has "lighted up" what had previously been an asymptomatic propensity to develop injuries from repetitive activity. Compensation for permanent partial disability is normally payable commencing at the end of the healing period. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986). In this case, there was no actual healing period, other than for the time when claimant was off work following the myelogram. Claimant was in a continuing course of treatment from Dr. Catalona. Early in the treatment, Dr. Catalona had frequently indicated that there would be no permanent disability. A close examination of Dr. Catalona's treatment notes (exhibit 13) indicates that, on December 18, 1986, all diagnostic testing had been completed and that it was at this time he determined claimant had a chronic strain syndrome and should not increase her work activity. It is determined that it was on December 18, 1986 that it was medically indicated that further significant improvement from the injury could not be anticipated. While there is no actual lost time in this case for an actual healing period to have ended, it is determined that the point of maximum recuperation and the point at which it was determined that further recovery would not be forthcoming was December 18, 1986. December 18, 1986 is the date at which it was first discoverable, in the exercise of,reasonable diligence, that the injury was permanent. FINDINGS OF FACT 1. Vickie E. Fry was injured on December 18, 1983 from] repetitive activity performed in her employment with H. J. Heinz. At the time of injury, claimant was operating a double seamer, an activity which required repetitive use of her hands above shoulder level. 2. As a result of the injury, permanent restrictions upon claimant's physical activities have been imposed by her physician. Those activities limit her access to certain jobs in both the employer's workforce and in the workforces of other employers. 3. Claimant has permanent physical impairment and disability in her left shoulder which prohibits her from being able to use her left arm in overhead positions. 4. Claimant has suffered a five percent reduction in her earning capacity as a result of the injury she sustained on December 18, 1983 and the cumulative effects of other repetitive activity affecting claimant's left shoulder while employed by H. J. Heinz. 5. It was determined by Dr. Catalona on December 18, 1986 that further significant improvement from the injury was not anticipated. 6. Claimant's entitlement to compensation for permanent partial disability commences December 18, 1986 at the time when it was medically indicated that further significant improvement from the injury was not anticipated and that some permanent disability would result. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. The injury claimant sustained to her left shoulder on December 18, 1983 was a proximate cause of the permanent disability which currently exists in her left shoulder. 3. Claimant has a five percent permanent partial disability of the body as a whole which, under the provisions of Code section 85.34(2)(u), entitles her to receive 25 weeks of compensation for permanent partial disability. 4. The compensation for permanent partial disability is payable commencing December 18, 1986. ORDER IT IS THEREFORE ORDERED that defendants pay claimant twenty-five (25) weeks of compensation for permanent partial disability at the stipulated rate of two hundred sixteen and 30/100 dollars ($216.30) per week payable commencing December 18, 1986. IT IS FURTHER ORDERED that defendants pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. IT IS FURTHER ORDERED that defendants file Claim Activity Reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3. Signed and filed this 11th day of April, 1989. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Michael W. Liebbe Attorney at Law 116 East 6th Street P.O. Box 339 Davenport, Iowa 52805 Mr. Greg A. Egbers Attorney at Law 600 Union Arcade Building 111 East Third Street Davenport, Iowa 52801-1550 1802, 1803 Filed April 11, 1989 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER VICKIE E. FRY, Claimant, vs. File No. 808328 H. J. HEINZ, A R B I T R A T I 0 N Employer, D E C I S I 0 N and LIBERTY MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. 1802, 1803 Where there was no actual healing period, claimant's entitlement to compensation for permanent partial disability was awarded payable commencing at the time when the physician determined that claimant's activity restrictions were permanent and that further improvement from the injury was not anticipated. Page 1 before the iowa industrial commissioner ____________________________________________________________ : CLEME SLY, : : Claimant, : : File No. 808340 vs. : : R E V I E W - GLEASON CORPORATION, : : R E O P E N I N G Employer, : : D E C I S I O N and : : CNA INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in review-reopening upon claimant's petition filed December 14, 1989. Pursuant to a stipulation and agreement for settlement under Iowa Code section 86.13 approved by this agency on December 12, 1986, claimant sustained an injury due to inhalation of toxic fumes on or about December 7, 1985. Based upon her condition on August 25, 1986, these parties agreed that she had sustained a five percent industrial disability to the body as a whole. This award was based on a restriction against exposure to welding fumes. Hearing on the review-reopening petition was had in Burlington, Iowa, on August 26, 1991. The record consists of defendants' exhibit 1, claimant's exhibits 1 through 12 and claimant's testimony. issues It has previously been determined that claimant sustained an injury arising out of and in the course of her employment with Gleason Corporation on December 7, 1985, that the injury caused permanent disability to the body as a whole and that the appropriate rate of weekly compensation is $184.33. Pursuant to the prehearing report filed by the parties at hearing, it is agreed that claimant seeks no additional compensation for temporary total disability or healing period and that medical benefits are no longer in dispute. Issues presented for resolution include: 1. Whether claimant has suffered a change in condition Page 2 since August 25, 1986 warranting a diminishment or increase of compensation previously awarded; and, if so, 2. The extent of her current industrial disability. findings of fact The undersigned deputy industrial commissioner finds: The stipulation and agreement for settlement approved by this agency on December 12, 1986, shows that as of December 7, 1985, Cleme Sly was first unable to work due to previous periods of inhalation of toxic fumes. She was then employed as a welder. Her primary treating physician was William E. Anderson, Jr., M.D. Dr. Anderson, who testified by deposition on April 15, 1986, specialized in internal medicine, diabetes and endocrinology and began treating claimant on November 15, 1985. Claimant's major complaint at that time was of fatigue ("she was so tired she couldn't even keep awake"). Test findings were consistent with hepatic injury due to drugs or exogenous toxins, not indicative of any specific agent. Based largely on the fact that claimant has no history of alcohol abuse, Dr. Anderson believed her liver condition was associated with exposure to welding fumes. He was unable at that time to determine whether her condition was permanent, although he believed she had been sensitized and would likely suffer the same reaction upon new exposure to welding fume vapors, even if she did recover. Dr. Anderson restricted claimant from returning to work in the same environment with exposure to welding fumes. Claimant is still employed with defendant, a manufacturer of wheels and hammocks. However, she no longer works in the same department and is now a tire mounter. She is located away from the welding area, but was unable to estimate the distance. The building is generally open, much like a warehouse. Claimant is currently earning $.10 per hour more than in 1986, apparently due to a general increase negotiated on behalf of the bargaining unit. Ms. Sly currently complains that she is working fewer hours because of fatigue, pointing out that she missed 31 days in 1990 for that reason (although, some of that time may have been lost due to a back injury). Claimant conceded on cross-examination that she has felt fatigued and lost substantial time ever since liver damage was discovered prior to the agreement for settlement and testified that "it hasn't gotten very different." Employee attendance records have been submitted for 1985 through July 1991. As best those records can be interpreted by this writer, it appears that claimant lost either all or part of a day due to absence or leave of absence approximately 80 times in 1985, 103 times in 1986, Page 3 45 times in 1987, 47 times in 1988, 46 times in 1989, 33 times in 1990 and 34 times through July 1991. Claimant has continued to complain of symptoms relating to her liver damage, including severe pruritus. Rao V. Movva, M.D., a specialist in gastroenterology and hepatology, wrote on June 7, 1990, that following two evaluations of claimant, liver function abnormality was noted and that antimichondrial antibody studies were highly suggestive of primary biliary cirrhosis, which would explain symptoms of fatigue and severe pruritus. Claimant did not follow through with recommended further investigation, including possible liver biopsy. Dr. Anderson has long since moved from the Burlington area. The record does not indicate that claimant has been assigned any further medical restrictions by Dr. Movva or any other physician. conclusions of law Pursuant to Iowa Code section 86.14(2), in a proceeding to reopen an award for payments, inquiry is to be made into whether or not the condition of the employee warrants an end to, diminishment of, or increase of compensation previously awarded. A change in condition must be shown to justify changing the original award. Henderson v. Iles, 250 Iowa 787, 96 N.W.2d 321 (1959). It is not proper to merely redetermine the condition of the employee as adjudicated by the former award. Stice v. Consol. Indus. Coal Co., 228 Iowa 1031, 291 N.W.2d 452 (1940). A mere difference of opinion of experts or competent observers as to the degree of disability arising from the original injury is insufficient to justify a different determination on a petition for review-reopening; there must be substantial evidence of a worsening of the condition not contemplated at the time of the first award. Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957). Or, a change in condition may be found where claimant has failed to improve to the extent initially anticipated, Meyers v. Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa App. 1978). Additionally, in cases not involving scheduled members, a change in earning capacity subsequent to the original award which is proximately caused by the original injury may constitute a change in condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980). Although claimant complains of increased fatigue, the record clearly shows that these complaints preexisted the agreement for settlement. In fact, claimant conceded that her condition is not now substantially different in that respect. She does not labor under any additional medical restrictions and continues to be employed at a higher hourly wage than was the case in 1986. Since Dr. Anderson did not know whether claimant would improve at the time of his deposition, it cannot be said that she has failed to improve Page 4 to the extent initially anticipated. In essence, industrial disability constitutes loss of earning capacity. Diederich v. Tri-City Ry. Co., 219 Iowa 587, 258 N.W. 899 (1935). Although claimant may have developed some additional symptoms (pruritus), she has failed to establish any unanticipated or additional reduction in earning capacity. Accordingly, she shall take nothing further. order THEREFORE, IT IS ORDERED: Claimant shall take nothing further from this proceeding. Each party shall be assessed its own costs pursuant to rule 343 IAC 4.33. Signed and filed this ______ day of ____________, 1991. ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Page 5 Copies To: Mr. James P. Hoffman Attorney at Law Middle Road P.O. Box 1087 Keokuk, Iowa 52632 Mr. Elliott R. McDonald, Jr. Attorney at Law P.O. Box 2746 Davenport, Iowa 52809 5-1803 Filed September 13, 1991 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : CLEME SLY, : : Claimant, : : File No. 808340 vs. : : R E V I E W - GLEASON CORPORATION, : : R E O P E N I N G Employer, : : D E C I S I O N and : : CNA INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 5-1803 No change of condition found in review-reopening. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ GARY WALTERS, Claimant, File Nos. 808379/810109 VS. A P P E A L OSCAR MAYER, R U L I N G Employer, Self-Insured, Defendant. _________________________________________________________________ Rule 500-4.27 states in part: "No appeal shall be separately taken under this or 4.25 (17A, 86) from an interlocutory decision, order or ruling of a deputy industrial commissioner. A decision, order or ruling is interlocutory if it does not dispose of the contested case." The ruling filed July 1, 1987 which is the subject matter of this appeal is not dispositive of the contested case and therefore interlocutory. THEREFORE, the appeal filed July 17, 1987 is hereby dismissed. Signed and filed this 28th day of July, 1987. DAVID E. LINQUIST ACTING INDUSTRIAL COMMISSIONER Copies To: Mr. Jim Lawyer Attorney at Law 2141 Grand Avenue P.O. Box 367 Des Moines, Iowa 50302 Mr. Harry W. Dahl Attorney at Law 974 73rd st., Suite 16 Des Moines, Iowa 50312 before the iowa industrial commissioner ____________________________________________________________ : RALPH ZECK, : : Claimant, : : vs. : : File No. 808538 GEETINGS, INC., : : A P P E A L Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed January 12, 1990 is affirmed and is adopted as the final agency action in this case. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of September, 1991. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Donald G. Beattie Mr. Larry G. Wilson Attorneys at Law P.O. Box 367 Altoona, Iowa 50009 Mr. Walter F. Johnson Attorney at Law P.O. Box 716 Ottumwa, Iowa 52501 9998 Filed September 12, 1991 Byron K. Orton DRR before the iowa industrial commissioner ____________________________________________________________ : RALPH ZECK, : : Claimant, : : vs. : : File No. 808538 GEETINGS, INC., : : A P P E A L Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 9998 Summary affirmance of deputy's decision filed January 12, 1990. 51108 Filed January 12, 1990 DAVID RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER RALPH ZECK, Claimant, vs. File No. 808538 GEETINGS, INC., A R B I T R A T I 0 N Employer, D E C I S I 0 N and LIBERTY MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. 51108 Claimant failed to meet burden of proof in establishing work injury caused disability. The only doctor to find causal connection did so on the basis of an inaccurate history. BEFORE THE IOWA INDUSTRIAL COMMISSIONER RALPH ZECK, Claimant, File No. 808538 vs. A R B I T R A T I O N GEETINGS, INC., D E C I S I O N Employer, F I L E D and JAN 12 1990 LIBERTY MUTUAL INSURANCE COMPANY, INDUSTRIAL SERVICES Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by claimant Ralph Zeck against defendant employer Geetings, Inc., and defendant insurance carrier Liberty Mutual Insurance Company to recover benefits under the Iowa Workers' Compensation Act as the result of an injury sustained on October 18, 1985. This matter came on for hearing before the undersigned deputy industrial commissioner in Des Moines, Iowa, on January 6, 1989. The matter was considered fully submitted at the close of hearing. Both parties submitted.briefs. The record in this proceeding consists of the testimony of claimant and Shirley Zeck. Defendants' exhibits 1 through 5 were admitted into evidence, as were claimant's exhibits 1 through 6, 12 and 13. Claimant also offered exhibits 7, 8 and 9, to which defendants interposed objections on the basis of relevance and competency. Ruling on the objections was reserved. Those objections are hereby overruled and exhibits 7, 8 and 9 are admitted into evidence. ISSUES Pursuant to the prehearing report submitted by the parties and approved by the deputy at hearing, the parties have stipulated: That an employment relationship existed between claimant and employer at the time of the injury; that claimant sustained an injury on October 18, 1985, arising out of and in the course of that employment; that the appropriate rate of weekly compensation is $169.38; that defendants paid claimant 20 1/7 weeks of compensation (for the period from October 30, 1985 through March 19, 1986) voluntarily prior to hearing; that claimant's claim for penalty benefits under Iowa Code section 86.13 is waived. Issues presented for resolution include: Whether the work injury caused temporary or permanent disability; the extent of claimant's entitlement to compensation for temporary total disability or healing period; the extent of claimant's entitlement to compensation for permanent disability, the type of permanent disability, and the commencement date thereof; the extent of claimant's entitlement to medical benefits; taxation of costs. REVIEW OF THE EVIDENCE Claimant testified that he was born on October 16, 1929. He testified further to a limited education (having completed the seventh grade) and a career history involving a great deal of heavy labor including work as a heavy equipment operator for some 25-26 years. Claimant testified to taking employment with Geetings, Inc., from October 7, 1985 through November 9, 1985. He was hired as a mechanic, but also performed many other chores. Claimant testified that prior to accepting work with Geetings he had suffered no back problems whatsoever, except for perhaps a pulled muscle. Claimant testified that the stipulated work injury occurred when he was using a wrench to remove nuts from a truck wheel. He described feeling a "pop" in his back, causing him to drop the wrench. He bent over and dropped to his knees. He described the sensation as stabbing, like a knife in his lower back. Claimant described his back as hurting the rest of that day, although he continued to work until the end of his shift. On the following day, he tried to work, but went home because of the pain. However, he continued working until November 9, 1985, when he left work because he was unable to perform his job satisfactorily due to pain. Claimant's testimony was unclear as to whether he saw a Dr. Meyer, a chiropractic practitioner, either on or prior to November 9, 1985. In any event, he had not seen a physician for his back before Dr. Meyer. Claimant continued seeing Dr. Meyer three times a week, but also saw Kurt R. Vander Ploeg, M.D., Marc E. Hines, M.D., and saw David J. Boarini, M.D., for evaluation. Claimant further testified that he has continued in his work as a journeyman equipment operator with a number of employers since his injury. Claimant testified that he is able to "handle" that work since he makes little use of his back, although he has some back pain if he sits too long. However, claimant testified he is unable to run a scraper because the vibration is too painful. In his deposition of August 26, 1988, claimant testified that he had been continuously employed since August, 1986. He was at that time averaging some 58 hours per week. At hearing, he testified that Dr. Meyer had released him to return to work in March, 1986, although the specific date was not disclosed. The records of Dr. Meyer are not in evidence. The medical records closest in time to the injury are those of Dr. Vander Ploeg, dated January 20, 1986. Dr. Vander Ploeg reported that claimant gave a history of using an air wrench to take tires off a truck on October 18, 1985, ending up on the floor on his hands and knees and unable to rise. Subsequent to that claimant described developing a bruise on the lower back, although no history of direct trauma to the area and no history of previous back problems. Claimant was having sharp pains beginning in the back and going down the back of the legs nearly to the ankle bilaterally. Dr. Vander Ploeg further reported that claimant had received treatments from a chiropractor since then "and as of today has no complaints about his back." He complained of intermittent numbness to the fingers of the left hand and about pain in the area of the right plantar heel region in the medial aspect of the foot. Dr. Vander Ploeg observed that claimant ambulated well, had good heel and toe raise, had good range of motion at the waist, no sciatic notch tenderness, and that straight leg raising and Patrick's tests were negative bilaterally. His assessment was of right plantar fasciitis and low back strain apparently resolved. His notes continue: Feel there's no point in further work-up on his back problem since it seems to be resolved. Would feel that his original injury was probably just a low back strain rather than a true disc syndrome. His exam today is certainly not compatible at all with a disc syndrome and the only aspect of his history that would correlate at all with a disc syndrome would be the sciatic nature of the pain. Claimant was seen by Dr. Vander Ploeg on one further occasion, but the date on his chart notes is partially cut off on the photocopy introduced into evidence. However, it appears that the date is 7-8-86, which is also consistent with the comment that claimant should never have been disabled for eight months on the recommendation of a chiropractor. Dr. Vander Ploeg's notes of that date in full: S - Ralph was here apparently to be examined for Liberty Mutual relative to his back problems. Ralph says his back wasn't really giving him any trouble until about a month ago he stepped wrong down off a curb. Apparently pulled something in his right low back and also effected [sic] his right neck area. He is to the point where he can do most activities of daily living without trouble. He knows that lifting hruts [sic] his back and also bothers hsi [sic] neck. He says the neck will sometimes get to the point where it needs to be popped. Initially had some degree of pain in the legs after this more recent injury but that has apparently resolved. He has some trouble with the back. He says it will kind of effect [sic] his right knee and he'll have some pain in the back sof [sic] the legs justa bove [sic] the knee. Sometimes after he's been sitting in the car driving or sitting in one place for awhile when he gets up to walk he'll feel quite stiff in the back. O - Ralph has equal grips. 100% strength in the arm, shoulder, and neck muscles. He has full ROM at the neck. Did find him to be tender anteriorly over the C-5,6,7, right transverse processes. Does not elicit B,T,BR, or K jerks. There is an area of point tenderness in the lowback at about the area of the right posterior spine. Does a good heel and toe raise. Full ROM at the waist. No sciatic notch tenderness. SLR and Patrick's are negative. A - Right cervical and right low back sprain. P - Feel this patient should never have been disabled for 8 months on the recommendation of a chiropractor. Particularly at the time I saw him in January he did not have complaints about his back. Feel there's a reasonable chance this strain=sprain situation he's having now may heel [sic]. He might possibly benefit from PT. If he does not respond to those conservative measures, I think he might be a candidate for injectionthose [sic] trigger points. And see if he'll respond to that. Don't feel x-rays will be any benefit at this point since these are pretty obviously soft tissue findings. Claimant was next seen by Marc E. Hines, M.D., on April 1, 1987. In his deposition, Dr. Hines indicated he was seen on referral and in consultation with Drs. Meyer and Vander Ploeg. Claimant gave Dr. Hines a history of injuring himself in October, 1985, and being off work since that time. Claimant described having difficulties in the low back and neck with episodic numbness in the hands and feet and increased pain with sustained activities "since that time." Dr. Hines examined claimant with the following findings: On neurologic examination, the patient's reflexes are trace at the patellas bilaterally, 1+ Achilles bilaterally. The patient has right foot everter weakness and some 4/5 ileospoas on the right. There is some patchy decrease to pinprick which is somewhat difficult to explain but seems to be involving the right lower extremity and particularly the foot and the C8, T1 distribution in the right hand and some C5 distribution in the left hand. The gait examination reveals a definite list to the right. The patient is stooped over and has difficult [sic] walking. He additionally has muscle spasm in the right side of his low back and lumbosacral area. He has negative straight leg raising bilaterally. Lumbosacral spine films were sent with him from Dr. Meyer's office and revealed very definitive abnormalities at multiple levels. The patient has diffuse osteosclerotic changes with anterior and posterior spurring most notable at approximately L3, and below this with significant degenerative disc disease and intervertebral disc space narrowing that is most marked at L5, S1 but seen also at L4, 5 and L3, 4. There is evidence possibly consistent with spinal stenosis at L5, S1, possibly even at L4, 5. There is also some mild lateral shifting of the vertebral bodies of L4 on L5 and L3 on L4, definite malalignment at these levels. Dr. Hines saw claimant again on May 6, 1987. His notes of that date show that he believed claimant to have an L4,5 disc herniation to the left with nerve root compression on the right. Dr. Hines then wrote to claimant's attorney on May 13, 1987 to express his view that the lateral bulging disc at L4,5 with compression of the nerve root on the right as well as disc herniation on the left was responsible for claimant's bilateral lower extremity symptoms, and that claimant had upper extremity symptoms "which are probably secondary to similar disease in the neck." Dr. Hines expressed the view that "these disc herniations" are secondary to claimant's work-related injury "from the history which the patient has given me and that he had no previous problems of this degree until he was injured at work and that he did have some mild preexisting back and neck disease that most probably was aggravated by this work injury." Dr. Hines further recommended that an MRI be done of the cervical spine. Radiologist Carter S. Young, M.D., performed a lumbosacral spine series on April 2, 1987 for Dr. Hines. His findings: LUMBOSACRAL SPINE: Lumbosacral spine series was performed. I presume that there are five fully segmented lumbar vertebrae and the slices performed were through from mid L3 through S1 but correlation with the plain film examination is recommended. There is a diffuse annular bulge at L3-4 that produces deformity of the anterior aspect of the thecal sac. Similar more severe changes are present at L4-5 with vacuum disc formation. There is a lateral bulge at L4-5 as well on the left at L4-5 that may be producing some compression of the exiting root. There are calcifications in the annulus at L5-S1 and the exiting root at L5 on the right is obliterated adjacent to these calcifications. A free fragment is not identified however. The sacroiliac joints are normal. The facet joints at L3-4 are normal. At L4-5 the facet joints are normal, at L5-S1 there is a moderate facet arthropathy but this does not appear to produce a significant reduction in size of the spinal canal. The bulging annulus at L3-4 and L4-5 does produce a reduction in the AP dimension of the spinal cord. IMPRESSION: Degenerating disc at L3-4, L4-5 and L5-S1 with lateral bulge at L4-5 on the left and obliteration of the exiting root on the right at L5. Magnetic resonance imaging of the cervical spine was done by Thomas E. Murphy, M.D., on May 27, 1987. His impression was of a one centimeter lesion anterior to the junction of the medulla and cervical core raising the possibility of neurofibroma, meningioma, or 12th nerve glioma. No other abnormalities were noted. Dr. Hines reviewed the MRI on May 29, 1987, and noted what was probably a small neurofibroma at the tip of the clivus in front of the cord pushing the cord back at that level. Claimant was seen again by Dr. Hines on July 29, 1988. He at that time was basically having exactly the same problems as was the case in April and May, 1987. Claimant had had no significant improvement. Claimant indicated that he had been running a bulldozer and was able to tolerate this as long as he did no heavy lifting. However, he complained of the return of symptoms when doing any heavy lifting. Claimant was seen for evaluation by David J. Boarini, M.D., on June 22, 1987. Claimant's history to Dr. Boarini was of twisting his back in October, 1985, and developing significant low back difficulty two or three days later, with his troubles gradually increasing. Claimant returned to work in August, 1986 as an operator. Claimant did state that he exacerbated his back difficulties when he stepped off a curb, although unsure of the date. Claimant was currently working and had no difficulty operating a bulldozer, although his back pain was increased when he did manual labor. Claimant described his pain as centered in the low back with occasional radiation to the right leg, although the radiation was not a major problem. Dr. Boarini's examination showed claimant to be a moderately obese white male in no acute distress with normal gait and a normal range of motion to the lower back. Neurological examination of the lower extremities showed negative straight leg raising, normal strength in all muscle groups and normal sensation to touch and pin. Claimant did complain of some decreased pin sensation on the dorsal side of the right foot. Dr. Boarini stated in a letter of June 29, 1987 to a claims adjuster for defendant Liberty Mutual that claimant had a moderate low back strain "which is certainly no longer symptomatic. I find no evidence of a permanent injury. With a normal exam and normal range of motion, I don't think he qualifies for an impairment rating." Although Dr. Boarini did not recommend specific work restrictions, he did feel that it would be wise to keep claimant away from a job involving repetitive heavy lifting and bending. Dr. Hines testified by deposition taken December 17, 1988. He testified that he first saw claimant on April 1, 1987 in consultation for Dr. Meyer and Dr. Vander Ploeg. When asked if he had seen claimant because of a referral, he agreed that this was correct, but did not specify whether the referral was that of Dr. Meyer, Dr. Vander Ploeg, or both. Dr. Hines testified that the lumbosacral spine films revealed degenerative disease, but that lumbosacral CT scan revealed not only degenerative disease, but a disc bulging that obliterated the exiting nerve root at L-5 on the right, which he described as in keeping with the neurological examination findings of pinprick impairment and right leg weakness. He felt that the disc was more than simply bulging, but that there was sufficient disc herniation or slippage to actually press on the nerve root and equated the word "obliterated" with "pressed on the nerve root." Dr. Hines went on to state that claimant's pinprick examination described an area of decreased pinprick that would be in keeping with an L5 nerve root impairment. As to claimant's neck complaints, Dr. Hines indicated that the neurofibroma found on MRI could well be causing some of the difficulties claimant was having in his arms and hands. He also agreed that the neurofibroma was not caused by the subject work injury. As to the herniated disc, Dr. Hines expressed his opinion to a reasonable degree of medical certainty that the herniation was caused by the subject work injury. He also believed that claimant did sustain a permanent impairment, although he was unable to specify an exact percentage without performing another evaluation for that purpose. Asked as to whether claimant should have medically imposed restrictions, Dr. Hines stated that claimant would be extremely ill-advised to work with heavy manual labor, particularly anything that required repeated lifting. He indicated that claimant should be restricted for repeated lifting to 20 pounds and against any lifting above 50 pounds. He also indicated that he would not recommend that claimant take employment as a truck driver. Dr. Hines testified further: Q. Doctor, the indication you had made from your history was that there was an existing degenerative disc disease in Mr. Zeck, if I understood correctly? A. That's correct. Q. And in your opinion and based upon a reasonable degree of medical certainty, would you indicate or have an opinion as to whether this accident of October 18, 1985, due to this preexisting condition would have any effect on the symptoms that Mr. Zeck indicated? A. Well, an accident not infrequently can light up or exacerbate or worsen a preexisting condition such as degenerative disease. We have a clear-cut disc herniation. That would certainly light up or increase symptoms, if you will, if the disc herniation was in any way related to the preexisting disease. The fact is I examined him in April of 1987, and the accident occurred in October of 1985. A good year and a half later, I just simply can't state what the relationship between -- Well, let me back up. What I'm saying is I can't state whether or not he had preexisting disease prior to October of '85 or not. By the time I saw him, it was a year and a half later. If I'd seen him within a month and he had lumbosacral degenerative disease, then I would have had to say he had lumbosacral degenerative disease prior to the accident because it doesn't develop this quickly. On the other hand, a year and a half is starting to stretch the limits before I can say, yes, the lumbosacral spine films could reflect some changes that were actually due to the accident rather than to preexisting degenerative disease. So it confuses the issue as to whether he had preexisting degenerative disease prior to the accident and even further confuses whether he had it prior to his employment at all. Those are questions I just can't answer. (Dr. Hines deposition, page 26, line 10 through page 27, line 25) Dr. Hines also testified that in his belief, claimant would not have had the same restrictions imposed but for his work injury. Dr. Hines was of the view that claimant's healing period ended around May 29, 1987, when claimant had reached a maximum degree of healing. However, he also conceded that claimant had undergone no significant change of condition on any of the four times he was seen. He was of the view that Dr. Boarini's opinion that claimant "stabilized" in March, 1986 was premature from his standpoint in ending healing period or temporary total disability because claimant had not been diagnosed at that time. In discussing his differences with Dr. Boarini as to whether claimant sustained a work-related permanent impairment, Dr. Hines testified: Q. If Doctor Boarini testified that there is no L-4, L-5 disc herniation and that there are some clear arthritic changes in the scan which are the same as you can see in plain X rays but nothing else, and when I said did you read the same MRI and he says yes, would you differ with him on that? A. Yes. Q. Why would there be such a difference in determination as to whether there is a herniation by a neurosurgeon and a neurologist who are seeing the same test results? A. Well, I think there are a couple of possibilities. Actually, there are several possibilities. Let me just spell them all out. First of all, the neurologist's job is to do as detailed a neurological examination as possible. This is not to denigrate the neurosurgeon's job to do a neurological examination of their abilities to do one, but it is that the special training of neurologists to do this is in more detail than the neurosurgeon; and, in fact, that is the common practice. It is the neurosurgeon's job, on the other hand, to do good surgery, the neurologists having no particular expertise in that area. So there are some differences in terms of inclination towards the neurologic examination. I clearly demonstrated before I ever saw this patient's CT scan or before it was ordered or even thought of being ordered that he had neurologic involvement that exactly placed the lesion at either L-5 or S-1 on the right. It would be extremely peculiar to be able to have that kind of predictive power on examination if the examination findings were not genuine. Then I found that not by my reading but by the radiologist who had seen the patient, who had never examined the patient but just examined his CT scan -- that the patient indeed did have a disc herniation, and it was peculiarly enough exactly placed at L-5 on the right and that a nerve root was impaired. Finally, I examined the CT scan and felt that that was the case. Now, there is another possible reason for the difference; and that is that when we interpret CT scans or MRI scans, sometimes the bony abnormalities and the soft tissue abnormalities can be difficult to discern. The important thing, however, is whether or not this L-5 nerve root was impaired in terms of its transit through the narrowed lateral recess where it was pinched. I think that in my opinion this was due to a disc herniation. There was a disc bulging on the left as well as the right to impair the nerve root. In the opinion of the radiographer who saw it, it was. It was keeping in the history that it occurred suddenly. Q. Which radiographer are you talking about now? A. I'm talking about the radiologist who read the -- Q. In Pella? A. This Doctor Carter S. Young. (Dr. Hines deposition, page 40, line 22 through page 43, line 10) He further testified: Q. In connection with this and the report of this physician that you're talking about, I questioned Doctor Boarini at length and said to him, "A bulging disc means that the disc is moved. It hasn't ruptured, but it is moving?" and his answer is, "No. A bulging disc is an x ray finding. All it means is the disc is worn. It's a very common, almost a normal finding in someone this age. It's exactly what you expect to see in someone who has degenerative arthritis and wear and tear of the discs." Do you agree with that or disagree with that? A. I don't disagree with the statement about a bulging disc. I don't think that that's all this patient had. He clearly had obliteration of the nerve root. Q. He goes on to say it specifically says in there -- and we're talking about the finding of the radiologist in Pella -- that there is no free fragment, no herniation, which exactly means that what he is seeing is osteoarthritic wear and tear and not a herniated disc. Is that a difference of opinion between the two of you? A. I think it is because I think as long as the patient has a disc that is obliterating a nerve root and actually impairing a nerve root, I cannot call that normal. That is not the normal wear-and-tear event. This is an event which causes neurological involvement and that clearly would impair the patient. If you wish to call that normal, then we would have to say it's normal for patients to have back pain with neurologic impairment including weakness and sensory loss. I find that to be an extreme statement of normal. (Dr. Hines deposition, page 44, line 3 through page 45, line 13) Dr. Hines further testified that he had no good reason to believe one way or the other whether the bulging disc was present prior to the work injury, but noted that claimant had symptoms come on as a result of the lifting incident: A. All I know is that the patient had symptoms come on as a result of a lifting incident in October of 1985 and had a subsequent CT scan which was abnormal and demonstrated an abnormality that would explain his symptoms, and the symptoms were continuous from the time of the lifting accident in '85. Therefore, I connect this abnormality back,to the lifting incident. (Dr. Hines deposition, page 47, line 7 through line 14) David J. Boarini, M.D., testified by deposition taken October 6, 1988. He agreed that he had seen claimant twice: On June 22, 1987 and October 3, 1988. Dr. Boarini's clinical findings were in some respects different from those of Dr. Hines. He observed that claimant had a normal gait and normal range of motion. As did Dr. Hines, he found straight leg raising to be negative. He found claimant to have normal strength in the lower extremities and all muscle groups and normal sensation to touch and pin. However, he found "very vague" decreased sensation to pinprick in part of the right foot. Dr. Boarini did not find this to be significant or of a neurological nature. In general, he found nothing clinically which showed any nerve involvement or any evidence of disc herniation. He found no evidence of any abnormality which would be reflective of impairment under American Medical Association guidelines. He testified: Q. Doctor, is there anything in connection with this June 1987 examination which would show any residue of the incident of October 1985 which he described to you? A. No. Q. What did you feel that it reflected insofar as the complaints which he had of low back pain? A. Well, the injury he talked about, that he attributed this to, was a very minor injury, he just twisted his back, didn't have any pain for a few days, and then had some back pain after that, which wasn't bothering him at this point. He had a very typical examination and description of somebody with an osteoarthritic back who doesn't tolerate heavy work very well. (Dr. Boarini deposition, page 9, line 16 through page 10, line 5) * * * Q. What did you find with reference to the condition of this gentleman on June 22, 1987, as the same would relate to the incident of October 18, 1985 that he described to you? A. I didn't think any of the difficulties he complained of when I saw him were related to that, to that incident. He just has an osteoarthritic back. He's overweight, and he has back pain that's just explainable from that. Q. Can you state with reasonable medical certainty whether or not his condition was that that you would find normally in a man that age, in that physical condition, with that weight who had had no injury or claim of injury? . A. Yes, it was very typical for that sort. Q. Doctor, were you able to tell with reasonable medical certainty as to when his condition -- from what he indicated occurred on October 18, 1985 or thereabouts, when his condition,would have stabilized? A. Well, I'm sure from his description he did strain his back in October of '85. I would say sometime--I don't have an exact date, but some months after that, in the spring or summer, he had improved and returned to work, and somewhere in there it stabilized, some months after the injury. Q. If he had been released for work, and if the record were to indicate that he was released for work by another physician in March of 1986, would that date have been relevant for the date of stabilization purposes? A. That would sound like a reasonable time, yes. (Dr. Boarini deposition, page 10, line 15 through page 11, line 21) With respect to the October 3, 1988 examination, Dr. Boarini testified that no report had been prepared because of the close proximity in time. He noted that he had examined claimant and taken repeat x-rays of the neck and back. The x-rays showed arthritic changes in the neck and back and the doctor found as the only difference in claimant's condition that claimant had a very slight limitation in flexion, which he felt also to be merely arthritic. Claimant still had a normal gait and a normal range of motion in the neck, although a five degree loss of flexion in the lower-back. Strength, sensation and reflexes of the arms and legs were normal. However, claimant complained of some decreased sensation, on both feet, in sort of vague areas of the feet on pinprick. Dr. Boarini did not find the decreased sensation to be in the pattern of a particular pinched nerve or ruptured disc. X-ray examination did not specifically show anything except arthritis. Dr. Boarini further testified: Q. Was there anything else of any significance in the October 3, 1988 examination? A. He's still overweight. That's all. Q. Did he indicate to you that he was able to handle the work that he's doing? A. Yes. Q. As a result of that examination, Doctor, do you feel that there is any specific work restrictions that you would place upon him.? A. I'd say the same thing I said last time, that he's a man in his late fifties with a lot of osteoarthritis, and he will not tolerate heavy manual labor, repetitive bending and lifting. Q. Were you able to tell within a reasonable degree of medical certainty whether or not that was directly or indirectly caused by the October 18, 1985 incident? A. It's not related to that. (Dr. Boarini deposition, page 16, line 13 through page 17, line 5) Dr. Boarini further testified that with respect to claimant's neck complaints, claimant had no disc herniation in the neck, but suffered from degenerative osteoarthritis. As to the CT scan performed by Dr. Carter S. Young, Dr. Boarini testified: Q. All right. Did you have the opportunity to review the CT or computerized tomography films A. Yes. Q. --that were performed at the Pella Community Hospital? A. Yes. Q. Did you read the report of Dr. Carter S. Young, radiologist? A. Yes. Q. He reported, did he not, that there were bulging disks in his lower back and the lumbosacral area? A. Yes. Q. A bulging disk means that the disk is moved; it hasn't ruptured, but it is moving? A. No. A bulging disk is an X-ray finding. All it means is that the disk is worn, and that is a very common--almost a normal finding in someone this age. It's exactly what you expect to see in someone who's got degenerative arthritis and wear and tear of the disks. Q. Well, can an injury-- A. It specifically says in there that there's no free fragment, no herniation, which exactly means that what he is seeing is osteoarthritic wear and tear, not a herniated disk. (Dr. Boarini deposition, page 24, line 2 through page 25, line 2) Dr. Boarini testified further: Q. Now, if you were to assume for purposes of a hypothetical that Mr. Zeck had no back problems preexisting his incident at work--at least none that were known to him--that resulted in back pain or problems, and he sustained this injury that he reports to you in October of '85, and from that day forward has back pain and problems, that whenever he engages in heavy lifting, i.e., lifting of 50 pounds or more, repetitive lifting or riding in vehicles that result in sharp bumps or jolts to his spine, or had physical activity that causes him pain and discomfort and difficulties, would there then, in your opinion, be a causal connection between that incident and his resulting back condition? A. No. That's exactly how I understand the situation now, and I don't think they're causally related. Q. Well, I'm asking you to focus strictly on a hypothetical. A. Yes. But that hypothetical is exactly how I understand the situation, and, no, I don't think they're related. Q. Aren't there situations where somebody can have a preexisting condition, such as dormant osteoarthritis, and have an incident that would light it up or aggravate it to make it become active instead of dormant? A. Absolutely. And if you talk to this man, that's exactly what happens now: He tells you in his own words he gets along fine, doesn't have any trouble, but if he does heavy work today, it hurts him tonight or tomorrow, and that's exactly what happened in '85, and it will happen again every time he does the work, but it's because of his condition, not because of the twisting incident in '85. (Dr. Boarini deposition, page 33, line 6 through page 34, line 15) As to whether claimant has suffered permanent disability, Dr. Boarini testified: Q. Dr. Boarini, are you of the opinion that back strains, i.e., muscles and ligaments, tears, never result in permanent injury, or can they? A. No; they can. Q. Okay. In this case, it has not? A. That's correct. Q. Why not in this case? What distinguishes Mr. Zeck, in your opinion, from fully recovering from a back strain or sprain as opposed to somebody that does have permanent injury? A. Well, a lot of things. One is he's got an underlying condition that all by itself very easily explains his problem. Secondly, if you just listen to his history, he will tell you that he does fine, but every time he strains his back--any time he does manual labor, his symptoms return and then go away. This is a very typical story for somebody with bad underlying osteoarthritis and minor injuries to the back. As long as he stays away from those things, he has no trouble. There hadn't been any injury, there hasn't been any residual from the injury, but every time he restrains it, it hurts again, and that's a very typical story for somebody with naturally occurring degenerative joint disease. And, also, if somebody injures themselves and has something that's persisting for years, you'd look for a single spot that has been injured or hurt. He's got X-ray changes all up and down his spine from his head to his tail, and it's all degenerative arthritis, certainly not related to a simple sprain injury, and that explains his problem in his neck and his back. (Dr. Boarini deposition, page 35, line 22 through page 37, line 4) Defendants' exhibit D-3 is a set of defendants answers to interrogatories. In interrogatory number 7, it is set forth that authorized treating physicians are Dr. Vander Ploeg and Dr. Boarini. Claimant's exhibit 12 is a check to Dr. Hines in the sum of $400 dated December 14, 1988. This appears to be Dr. Hines' deposition fee. APPLICABLE LAW AND ANALYSIS As has been seen, the parties have stipulated that claimant sustained an injury arising out of and in the course of his employment on October 18, 1985. The parties dispute whether that injury caused temporary or permanent disability. The claimant has the burden of proving by a preponderance of the evidence that the injury of October 18, 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 v. Fischer, Inc., supra. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. Burt v. John Deere Waterloo Tractor Works, supra. In regard to medical testimony, the commissioner is required to state the reasons on which testimony is accepted or rejected. Sondag v. Ferris Hardware, supra. The supreme court of Iowa in Almquist v. Shenandoah Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) discussed the definition of personal injury in workers, compensation cases as follows: While a personal injury does not include an occupational disease under the Workmen's Compensation Act, yet an injury to the health may be a personal injury. [citations omitted.] Likewise a personal injury includes a disease resulting from an injury....The result of changes in the human body incident to the general processes of nature do not amount to a personal injury. This must follow, even though such natural change may come about because the life has been devoted to labor and hard work. Such result of those natural changes does not constitute a personal injury even though the same brings about impairment of health or the total or partial incapacity of the functions of the human body. .... A personal injury, contemplated by the Workmen's Compensation Law, obviously means an injury to the body, the impairment of health, or a disease, not excluded by the act, which comes about, not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee. [Citations omitted.] The injury to the human body here contemplated must be something, whether an accident or not, that acts extraneously to the natural processes of nature, and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). 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. Curiously, neither party elected to introduce evidence of the records and opinions of the first and primary treating physician, Dr. Meyer. Dr. Vander Ploeg is the first physician to have seen claimant whose records are in evidence. Claimant reported as early as January 20, 1986, that his injury caused him to end up on the floor on his hands and knees, unable to rise. However, Dr. Vander Ploeg reported that although claimant had been having problems with his back, he had received treatments from a chiropractor and as of that date (January 20, 1986) had no complaints about his back. Assessing claimant as suffering low back strain apparently resolved, Dr. Vander Ploeg felt there was no point in any further workup on the back problem and that his examination was not compatible at all with a disc syndrome. Dr. Vander Ploeg next saw claimant on a date partially cut off on the photocopy submitted as page 2, claimant's exhibit 5. The date appears to be 7-8-86. This is consistent with the comment that claimant should never have been disabled for eight months on the recommendation of a chiropractor. The only part of the first number is to the upper right-hand side, and appears to show the start of a descending slash mark, such as would be consistent with the number 7. While this would also be consistent with a "3" in a print style employing a sharp angle at the top of the 3, notes of January 20, 1986 were apparently typed on the same typewriter and show that the number 3 is printed with a rounded upper corner (in the last line, "3 fingers"). Therefore, the undersigned concludes that these chart notes were made on July 8, 1986. Those chart notes show that claimant said his back was not really giving him any trouble until about a month ago when he stepped wrong off a curb and apparently pulled something in his right low back, and also affecting his right neck area. Dr. Vander Ploeg assessed claimant at this time as suffering a right low back sprain and found an area of point tenderness in the lower back at about the area of the right posterior spine. Based on Dr. Vander Ploeg's chart notes, the undersigned concludes that claimant suffered a sharp pain that dropped him to his knees at the time of the stipulated work injury. However, it must also be concluded that claimant's problems resolved as of January 20, 1986, when he reported no complaints about his back to Dr. Vander Ploeg. Symptoms apparently returned and were exacerbated when claimant stepped wrong off a curb about a month prior to July 8, 1986. Drs. Hines and Boarini expressed diametrically opposed opinions as to whether any causal relationship existed between claimant's stipulated injury and his condition of disability. However, based on the above findings, both Dr. Hines and Dr. Boarini based their opinions on inaccurate histories. Of course, both saw claimant substantially after the work injury. Dr. Boarini believed that claimant "just twisted his back, didn't have any pain for a few days, and then had some back pain after that, which wasn't bothering him at this point." Claimant's testimony that he felt a sharp, knifelike pain at the time of the incident and continuing thereafter is accepted as credible. It seems obvious even to a lay person that a delay in the onset of pain for a "few days" would tend to lessen the likelihood that the pain was caused by a particular preceding event. Thus, this is a serious deficiency in the history upon which Dr. Boarini based his opinions. On the other hand, Dr. Boarini's history did make note that claimant reported exacerbating his back difficulties when he stepped off a curb, thereby lending support to the accuracy of Dr. Vander Ploeg's observations and recorded history. Dr. Hines indicated in his deposition that claimant described having difficulties in the low back and neck with episodic numbness in the hands and feet and increasing pain with sustained activities since the date of his injury. As quoted above, Dr. Hines reported that claimant had symptoms come on as the result of the lifting incident, had a subsequent CT scan showing abnormalities that would explain his symptoms, "and the symptoms were continuous from the time of the lifting accident in '85. Therefore, I connect this abnormality back to the lifting incident." However, this history is completely inconsistent with the contemporary records of Dr. Vander Ploeg, showing that claimant's symptoms had resolved as of January 20, 1986. The intervening incident when claimant reinjured himself stepping from a curb also occurred well before claimant saw Dr. Hines. The misstep from a curb incident was not discussed by Dr. Hines. Therefore, we are in the dark as to whether his opinion would be the same if he knew that claimant's symptoms had resolved and had then reoccurred following another traumatic episode in apparently June, 1986. Thus, this represents a very serious deficiency in the history upon which Dr. Hines based his opinion. Drs. Hines and Boarini disagree as to the radiological evidence prepared by Dr. Young. The use of the verb "obliterate" is of uncertain meaning to this lay reader. While it seems more probable that Dr. Hines' interpretation is correct (Dr. Boarini believing that those reports showed no herniation since there was no free fragment), this still does not answer the question of whether the herniation, if there be one, was causally related to the work injury under review, as opposed to the misstep from a curb or some other incident. On the basis of this analysis, the undersigned concludes that claimant has failed to meet his burden of proof in establishing any causal relationship between his stipulated work injury and any current physical impairment or disability. The most reliable medical records in evidence show that claimant's symptoms had resolved by January 20, 1986. Although claimant has had continuing pain and back problems up until the time of hearing, it is also true that he suffers from osteoarthritis which, as Dr. Boarini points out, is capable in and of itself of producing his current symptoms. It is further held that claimant has failed to establish by persuasive medical opinion that there exists any causal relationship between the work injury and temporary disability. This is a much, much closer question, since claimant did leave work of his own volition after the injury. However, temporary total disability is payable under Iowa Code section 85.33 until the employee has returned to work or is medically capable of returning to employment substantially similar to that in which he was engaged at the time of injury, whichever first occurs. Although claimant may not have been released by Dr. Meyer until some unspecified date in March, 1986, he was asymptomatic when he saw Dr. Vander Ploeg on January 20, 1986. This is a period of 13 weeks, 4 days from the date of injury. As it was stipulated that defendants paid 20 weeks, 1 day of compensation on a voluntary basis prior to hearing, there would be no further award of temporary disability, even if it was found that claimant had met his burden of proof as to establishing the appropriate causal nexus. The parties dispute claimant's entitlement to medical benefits under Iowa Code section 85.27. Defendants dispute causal connection to the work injury and whether the expenses were authorized. Claimant has failed to meet his burden of proof in establishing that medical expenses of Dr. Hines are causally related to the work injury on the basis of the same reasoning set forth above as to permanent disability. Therefore, lack of authorization is unnecessary to consider as a defense. FINDINGS OF FACT THEREFORE, based on the evidence presented, the following ultimate facts are found: 1. As stipulated, claimant sustained an injury on October 18, 1985 arising out of and in the course of his employment with Geetings, Inc. The injury manifested itself by a sharp pain to claimant's back, driving him to his knees. 2. Claimant suffers from an osteoarthritic back. 3. Claimant's back condition had resolved when he was examined by Dr. Vander Ploeg on January 20, 1986. However, claimant reinjured his back taking a misstep from a curb approximately one month before seeing Dr. Vander Ploeg on July 8, 1986. 4. Dr. Hines opined that a causal connection existed between the work injury and claimant's current state of disability; however, Dr. Hines' opinion was based upon a faulty history in that he was unaware that claimant's back condition had resolved itself by January 20, 1986, and that claimant suffered a subsequent incident in approximately June, 1986. CONCLUSION OF LAW WHEREFORE, based on the principles of law previously cited, the following conclusion of law is made: 1. Claimant has failed to meet his burden of proof in establishing a causal connection between his stipulated work injury and any period of temporary disability, permanent disability or the medical expenses of Dr. Hines. ORDER THEREFORE, IT IS ORDERED: Claimant shall take nothing from this proceeding. Costs of this action shall be assessed against claimant pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 12th day of January, 1990. DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To:' Mr. Donald G. Beattie Mr. Larry G. Wilson Attorneys at Law 204 8th Street SE P.O. Box 367 Altoona, Iowa 50009 Mr. Walter F. Johnson Attorney at Law 111 West Second Street P.O. Box 716 Ottumwa, Iowa 52501 Page 1 before the iowa industrial commissioner ____________________________________________________________ : RICHARD WHEELER, : : Claimant, : : vs. : : File No. 808800 BOWKER & SON, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : HARTFORD INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration upon the petition of claimant, Richard Wheeler, against his employer, Bowker & Son, Inc., and its insurance carrier, Hartford Insurance Company, defendants. The case was heard on October 24, 1990, in Cedar Rapids, Iowa at the Linn County Courthouse. The record consists of the testimony of claimant, the testimony of Dennis Drahas, President of Bowker & Son, Inc., and John C. Sutter, rehabilita tion consultant. Additionally, the record consists of claimant's exhibits 1-26 and defendants' exhibits 1-18. Counsel for the parties did not eliminate unnecessary duplications. They are instructed to do so in the future. issue The sole issue to be determined is: 1) Whether claimant is entitled to permanent partial dis ability benefits. findings of fact The deputy, having heard the testimony and considered all the evidence, finds: On October 25, 1985, claimant was working on a construction site as a plumber. He was hit from behind by a clam bucket. The impact of the collision threw claimant into an excavation which was 20 feet deep. Apparently, claimant was able to climb out of the hole unassisted. Later claimant sought medical attention. Claimant treated with William R. Basler, M.D. In his report of June 10, 1986, Dr. Basler opined: Page 2 Mr. Wheeler has not been seen since May 5, 1986. I am unable to render an opinionated period of disability or permanent disability he will suffer... Claimant also treated with James R. LaMorgese, M.D., a board certified neurosurgeon. The patient was seen in my office again on March 4, 1986. At that time I went over the results of his myelogram along with his other diagnostic studies. The patient continued to have the same symptoms for which he was admitted to Mercy Hospital for. He was having paresthesias in his hands and feet and sorenss [sic] in his heels. He was having paresthesias in his chest area. He continued to indicate that activity seemed to aggravate his symptoms. I indicated to the patient that I was at a loss to explain all these symptoms, especially the numbness and tingling or paresthesias that he was complaining of. I recommended that he con tact Dr. Basler and arrange for a tertiary care center evaluation in light of his lack of progress and posi tive findings on the tests performed by me and at my direction. It is my feeling that this patient has no definite evi dence of neurologic injury from his accident despite the fall. I am at a loss to explain the continued and prolonged pain that this patient suffers. It seems to me that the pain syndrome that Mr. Richard Wheeler is experiencing is out of proportion to the degree of neu rologic findings found. I hope that at this time, Mr. Wheeler, is doing better than when I last saw him and I cannot give you any indication of Mr. Wheeler's present condition. (Claimant's Exhibit 4) Per a request from the insurance carrier, Fred J. Pilcher, M.D., an orthopedist, examined claimant. Dr. Pilcher diagnosed claimant as: Impression: MUSCULAR AND LIGAMENTOUS CONTUSION STRAIN TO THE SHOULDER GIRDLE BILATERALLY. UNUSUAL RADICULAR COMPLAINTS OF THE UPPER EXTREMITIES, NO FOCAL NEUROLOGIC CHANGES. MUSCULOLIGAMENTOUS STRAIN OF THE LOW BACK AND SI JOINT. APPARENT L5 NERVE ROOT IRRITATION TO THE LEFT LOWER EXTREMITY, ETIOLOGY UNKNOWN. Recommendations: I feel before I can offer any type of treatment or complete evaluation, I need the insight of all the other work up that he has had done and this was sent for. Claimant was also examined at the University of Iowa Page 3 Hospitals and Clinics in the Neurology Outpatient Clinic. The diagnosis was 1) chronic headache most consistent with muscle contraction type; 2) chronic back pain possibly secondary to injury, likely ligamentous. A myelogram showed only minor bulging discs. Claimant was advised to return on a per needed basis. Claimant also received chiropractic treatment from W. Gene Cretsinger, D.C. Dr. Cretsinger opined claimant's prognosis looked good. Dr. Cretsinger, after treating claimant for a period of time, opined claimant was not permanently impaired. Finally, defendant-insurance carrier referred claimant to a pain management clinic in Springfield, Missouri. Claimant received treatment from Clyde Norman Shealy, M.D., Ph.D. The physician diagnosed claimant as having myofascial pain syndrome and a rotation of the sacrum which was a preexisting condition. Dr. Shealy opined he was able to treat claimant's symptoms of chronic muscle spasms. The physician restricted claimant to no repetitive lifting greater than 30 pounds, no one time lifting greater than 50 pounds, walking up to two hours per day, sitting up to six or eight hours per day, but not more than four to six hours per setting, and driving an hour at a time up to three hours per day. As of August 25, 1986, claimant was allowed to return to work with the aforementioned restrictions. However, Dr. Shealy did not recommend that claimant should return to work as a plumber. Dr. Shealy rated claimant as having a 20 percent permanent impairment. Five percent of the impairment was attributable to claimant's mechanical problems of the spine. Fifteen percent of the impairment was attributed to claimant's ongoing pain. Dr. Shealy noted claimant was significantly better after his treat ment at the clinic. Claimant enrolled in several classes at Kirkwood Community College. These were classes proposed by the Iowa State Department of Vocational Rehabilitation. Additionally, claimant's employer, offered claimant a position with the company. Initially, claimant was hired as a part-time inventory con trol clerk for $7.50/hour. Gradually, claimant worked into full time employment. He was assigned the position of expeditor and/or estimator. Later claimant was given the position of safety manager. At the time of the hearing, claimant was paid $11.50 per hour. He was also provided with vacation benefits and a retirement plan. conclusions of law Functional impairment is an element to be considered in determining industrial disability which is the reduction of earn ing capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inabil Page 4 ity to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. This is so as impairment and disability are not synonymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportion ally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifi cations intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriv ing at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, moti vation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial disability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, l985). 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). With respect to the instant case, claimant has proven by a preponderance of the evidence that he has sustained a permanent partial disability. Physicians have rated claimant as having functional impairment ratings from 10 percent to 20 percent. Claimant is permanently restricted as stated above. He is unable to return to his former position of journeyman plumber. At the Page 5 time of the hearing, plumbers for defendant employer were earning $21.97 per hour. Other plumbers in the area were earning $18.00 to $20.00 per hour. Claimant, as the safety manager, is now earning $11.50 per hour plus benefits. There has been a definite loss of earning capacity since claimant is no longer able to engage in plumbing. Positions for which claimant is qualified pay considerably less than the position of journeyman plumber. Claimant's position of inventory clerk had paid $7.50 per hour. His former position of audio visual technician is an even lower paying position. An estimator is paid approximately the same as a safety manager. Claimant's position is secure. Defendant-employer is to be commended for accommodating claimant. Other employers should look to defendant-employer as a model. Defendant-employer is truly interested in the well-being of its employees. Therefore, based upon the foregoing, and based upon: 1) the personal observation of claimant; 2) agency expertise, (Iowa Administrative Procedures Act 17A.141s); and, 3) claimant's tes timony, the undersigned determines claimant has a 10 percent permanent partial disability. order THEREFORE, IT IS ORDERED: Defendants are to pay fifty (50) weeks of permanent partial disability benefits at the stipulated rate of three hundred forty-five and 75/l00 dollars ($345.75) per week commencing on June 5, 1987. Interest shall be paid pursuant to Iowa Code section 85.30. Defendants shall receive credit for all benefits previously paid and not credited. Costs of the action shall be assessed to defendants pursuant to rule 343 IAC 4.33. Defendants shall file a claim activity report pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of April, 1991. ______________________________ MICHELLE A. McGOVERN Page 6 DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert F. Wilson Attorney at Law 210 2nd St 810 Dows Bldg Cedar Rapids IA 52401 Mr. Chris J. Scheldrup Attorney at Law 2720 1st Ave NE P O Box 1943 Cedar Rapids IA 52406 5-1803 Filed April 22, 1991 MICHELLE A. McGOVERN before the iowa industrial commissioner ____________________________________________________________ : RICHARD WHEELER, : : Claimant, : : vs. : : File No. 808800 BOWKER & SON, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : HARTFORD INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803 Claimant is awarded a 10 percent permanent partial disability as a result of his work injury. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ RACHELLE R. SCHARPING, Claimant, VS. File No. 808823 ALEXANDER MANUFACTURING CO., A R B I T R A T I 0 N Employer, D E C I S I 0 N and KEMPER GROUP, Insurance Carrier, Defendants. _________________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Rochelle R. Scharping, claimant, against Alexander Manufacturing Company, employer, hereinafter referred to as Alexander, and Kemper Group, insurance carrier, for benefits as a result of an alleged injury on November 6, 1985. On June 24, 1987 the case was submitted on a stipulated written record. The parties have submitted a pre-hearing report of contested issues and stipulations which is now approved and accepted as part of the record of this case. The exhibits constituting the stipulated record as listed in the pre-hearing report submitted on June 24, 1987 are now received into the evidence of this case. All of this evidence was considered in arriving at this decision. The pre-hearing report contains the following stipulations: 1. On November 6, 1985, claimant received an injury which arose out of and in the course of her employment with Alexander. 2. The November 6, 1985 work injury was a cause of both temporary disability during a period of healing and permanent scheduled member disability to the right index finger. 3. The commencement date for permanent partial disability benefits, if awarded herein, shall be January 28, 1986. 4. Claimant's rate of compensation, in the event of an award of weekly benefits from this proceeding, shall be $118.22. 5. All requested medical benefits have been or will be paid by defendants. The only issue submitted by the parties for determination in this decision is the extent of claimant's entitlement to weekly benefits for permanent disability and claimant's entitlement to interest on those benefits. FINDINGS OF FACT 1. As stipulated, on November 6, 1985 claimant suffered an injury to her right index finger which arose out of and in the course of her employment with Alexander. The medical records submitted into evidence show that claimant suffered a "crush injury to the right index fingertip extensor disruption and open fracture of the distal portion of the middle phalanx. Claimant was immediately treated by an orthpaedic surgeon, R. L. Emerson, M.D., and claimant underwent a surgical procedure described by Dr. Emerson as "debridement of wound", "repair of extensor tendon", and "K-wire fixation of the IP joint." There was an initial attempt by Dr. Emerson to avoid an arthrodesis or fusion of the distal interphalangeal (DIP) joint, but claimant failed to improve as hoped by Dr. Emerson. On January 15, 1986, Dr. Emerson surgically fused the DIP joint. The parties stipulated that claimant's healing period ended on January 28, 1986. 2. The work injury of November 6, 1985 was a cause of a 30% permanent partial impairment to claimant's right index finger. Claimant's primary treating physician, Dr. Emerson, opined that claimant, as a result of the work injury, suffers from a 30% permanent partial impairment to the right index finger. Claimant argues that a fusion of the DIP joint constitutes a total loss of function of the distal phalanx. Dr. Emerson, in his letter report of September 18, 1986, disagreed. He stated the following: I have reviewed our rating scales which we make reference to for evaluation of permanent impairment. In our scales, there is a difference in percentage of impairment between an amputation at the distal interphalangeal joint and ankylosis or fusion of that joint. Ms. Scharping has not had an amputation at the joint and thereby still has present her distal phalanx. However, it is fused at the distal interphalangeal joint; that is the joint between the middle and distal phalanx bones. The impairment rating for a fused joint in the position which she is fused in is 30% of that finger. Amputation at that joint, thereby losing the length of the distal phalanx, would result in a 45% impairment to that finger. The 30% impairment applies to loss of joint function. The 45% impairment due to amputation takes into account loss of finger length and function. She has lost the use of her distal interphalangeal joint. She still has the length of that bone but not the functional use of the joint. Dr. Emerson's views are uncontroverted in the record. CONCLUSIONS OF LAW Claimant must establish by a preponderance of the evidence the extent of weekly benefits for permanent disability to which claimant is entitled. Permanent partial disabilities are SCHARPING V. ALEXANDER MANUFACTURING CO. Page 3 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 19B3); Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 997 (Iowa 1983). When the result of an injury is loss to a scheduled member, the compensation payable is limited to that set forth in the appropriate subdivision of Code section 85.34(2). Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). "Loss of use" of a member is equivalent to "loss" of the member. Moses v. National Union C.M. Co., 194 Iowa 819, 184 N.W. 746 (1922). Pursuant to Code section 89.34(2)(u) the industrial commissioner may equitably prorate compensation payable in those cases wherein the loss is something less than that provided for in the schedule. Blizek v. Eagle Signal Company, 164 N.W.2d 84 (Iowa 1969). Based upon a finding of a 30% loss of use of the right index finger, claimant is entitled as a matter of law to 10.5 weeks of permanent partial disability benefits under Iowa Code section 85.34(2)(b) which is 30% of the 45 weeks allowable for an injury to the index or first finger in that subsection. It was stipulated that claimant was paid this amount of permanent partial disability benefits in April, 1986. Claimant argues that she should be entitled as a matter of law to 50% of the index finger under section 85.34(2)(f) which states that the loss of the first distal phalange shall equal the loss of one-half of a finger. However, the undersigned agrees with Dr. Emerson in that the loss by amputation is not equivalent to a loss by fusion of the DIP joint. It is apparent that Dr. Emerson was making reference to the AMA or similar guidelines for rating impairments. In the AMA guide, impairment of the finger by fusion of the DIP joint can be from 30-45% depending upon the position of the fused distal phalange. See Guides to the Evaluation of Permanent Impairment, Second Edition, American Medical Association, page 6. Claimant argues that she should be entitled to interest between the time of the termination of her healing period and the time she was paid permanent partial disability benefits in April, 1986. On this issue, claimant is correct. Iowa Code section 85.34(2) states that permanent partial disability benefits should begin at the termination of the healing period. The Iowa Supreme Court has ruled that interest upon permanent partial disability benefits begins at that time. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986); Farmers Elevator Company v. Manning, 286 N.W.2d 174 (Iowa 1979). Defendant argues that Dr. Emerson did not give an impairment rating until April, 1986 and that they should not be expected to pay interest before they know the full extent of the impairment. This argument was rejected in Teel, 394 N.W.2d 407. As in Teel there was no question that clailmant would suffer some extent of permanent impairment from the fusion on January 15, 1986, two weeks before the end of healing period. A defendant should not delay the payment of benefits simply because the full extent of the impairment is not known. Claimant seeks reimbursement for the costs of a report from SCHARPING V. ALEXANDER MANUFACTURING CO. Page 4 Dr. Emerson, exhibit 5. This request is appropriate under Division of Industrial Services Rule 343-4.33. ORDER 1. Defendants shall pay to claimant interest at the statutory rate upon ten point five (10.5) weeks of permanent partial disability benefits at the rate of one hundred eighteen and 22/100 dollars ($118.22) per week from January 28, 1986 until the time claimant actually received those benefits in April, 1986. 2. Defendants shall pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. Specifically the sum of thirty five dollars ($35.00) shall be paid to claimant for the cost of Dr. Emerson's September, 1986 report and defendants are ordered to pay this amount accordingly. 3. Defendants shall file Claim Activity Reports of the payment of this award as requested by the agency pursuant to Division of Industrial Services Rule 343-3.1. 4. This matter shall be set back into assignment for pre-hearing and hearing on the extent of additional permanent disability benefits to which claimant may be entitled for an alleged unreasonable delay in the commencement of benefits under Iowa Code section 86.13. Signed and filed this 19th day of August 1987. LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert S. Kinsey III Attorney at Law 214 North Adams P.O. Box 679 Mason City, Iowa 50401 Mr. Michael A. McEnroe Attorney at Law 3151 Brockway Road P.O. Box 810 Waterloo, Iowa 50704 1803, 3800 Filed August 19, 1987 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ RACHELLE R. SCHARPING, Claimant, File No. 808823 VS. ALEXANDER MANUFACTURING CO., A R B I T R A T I 0 N Employer, and D E C I S I 0 N KEMPER GROUP, Insurance Carrier, Defendants. _________________________________________________________________ 1803 It was held that a fusion of the DIP joint did not constitute a total loss of the distal phalange thereby invoking the provisions of Iowa Code section 85.34(2)(f). Consequently, claimant was awarded permanent partial disability benefits for a 30% loss of function to the first finger. 3800 Despite the fact that the final impairment rating was not given by the doctor until 1986, interest was awarded to claimant on permanent partial disability benefits from the date of the end of her healing period on January 28, 1986. As in the Teel v. McCord case there was no question that claimant would suffer some degree of permanent impairment from a fusion surgery occurring prior to the termination of claimant's healing period.