BEFORE THE IOWA INDUSTRIAL COMMISSIONER LINDA V. MORSE, File No. 813735 Claimant, A P P E A L vs. D E C I S I O N CHAMPION GLOVE MFG. CO., Employer, F I L E D and OCT 17 1989 EMPLOYERS MUTUAL CASUALTY INDUSTRIAL SERVICES COMPANY, Insurance Carrier, Defendants. STATEMENT OF THE CASE Defendants appeal from an arbitration decision awarding permanent partial disability benefits as the result of an alleged injury on May 10, 1985. The record on appeal consists of the transcript of the arbitration hearing and claimant's exhibits A through E. Both parties filed briefs on appeal. Defendants filed a reply brief. ISSUES Defendants state that following issues on appeal: 1. The deputy erroneously substituted his judgement for the medical opinion of Dr. Burrows when the deputy concluded that claimant's underlying asthma was caused by exposure to dust in the work environment. 2. There is no competent medical evidence in the record that claimant's condition of asthma was caused by exposure to dust in the work environment. 3. There is no medical evidence in the record that claimant's preexisting asthmatic condition was permanently aggravated, exacerbated, or lighted up by exposure to elements in the work environment. 4. Where a preexisting or personal medical condition makes an individual incompatible with activity in the work environment, the claimant is not entitled to permanent disability benefits. Claimant states the following issues on cross-appeal: 1. Whether or not Claimant sustained an injury that arose out of and in the course of employment. 2. Claimant's entitlement as a result of her injury. REVIEW OF THE EVIDENCE The arbitration decision adequately and accurately reflects the pertinent evidence and it will not be set forth herein. APPLICABLE LAW The citations of law in the arbitration decision are appropriate to the issues and the evidence. ANALYSIS Defendants allege that the deputy improperly disregarded the medical evidence of Donald Burrows, M.D. Dr. Burrows testified that claimant's exposure to dust at her employment did not cause her asthma, but rather aggravated a preexisting asthma condition. The issues on appeal are whether the dust exposure on May 10, 1985 aggravated claimant's preexisting asthma; whether that aggravation was permanent or temporary; and, if permanent, the extent of the disability claimant now has as a result of that aggravation. Claimant was compelled to leave work on May 15, 1985, due to an asthma attack. Claimant was hospitalized. Upon her release from the hospital on May 21, 1985, claimant returned to work but after four hours began experiencing problems again. Dr. Burrows attributed claimant's attacks to her work environment. Claimant has clearly shown that on May 15, 1985, and on May 21, 1985, her asthma was aggravated by her work environment. Although claimant has shown an aggravation of her condition, there is no showing that the aggravation was permanent. Dr. Burrows clearly stated that if an aggravation occurred, it was not permanent. His description of the nature of asthma, and his comments that after the exposure is terminated, the airways will unswell and return to normal, indicate that claimant's aggravation was temporary in nature. This is corroborated by his release of claimant to return to work and his statement that her asthmatic reaction had reversed itself. When claimant attempted to return to work, she again experienced breathing difficulty. There is no testimony from Dr. Burrows that this second reaction was because claimant's asthma had been permanently aggravated by the first exposure. It is just as likely that claimant's preexisting asthma again reacted to the dust exposure at work, resulting in another period of temporary impairment. Dr. Burrows then advised claimant not to return to her work environment. Claimant had been diagnosed as asthmatic at least eight years prior to her May 10, 1985 exposure. She had been treated for that condition intermittently since then. There is testimony in the record that other everyday substances outside of claimant's work environment also caused claimant to have asthmatic reactions. Although claimant had worked for defendants for many years prior to her reaction on May 10, 1985, without a prior incident of asthmatic reaction to dust at work, claimant clearly had been treated for asthma for many years. Claimant now has a medical restriction not to work in a dusty environment such as she worked in at Champion. There is no medical evidence to indicate whether this restriction is the result of the incident on May 10, 1985, or whether it is yet another manifestation of her asthmatic condition which preexisted her work incident of May 10, 1985. Claimant bears the burden of proof. It would be speculation to assume that the inability to work in a dusty environment came about as a result of the May 10, 1985, incident in the absence of medical testimony so indicating. Claimant worked at various jobs with defendant employer. The mere absence of such an incident prior to May 10, 1985 is insufficient to carry claimant's burden to show she has suffered a permanent disability as a result of the May 10, 1985 incident. Claimant cites Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980) and argues that because claimant has now found that she can no longer work for defendant employer because of her asthma, she is entitled to benefits. However, where, as here, the condition that necessitates the change in employment has not been shown to have been caused by a work exposure, claimant is at most entitled to temporary disability benefits only. Robinson v. Marting Manufacturing, Inc., I-4 State of Iowa Industrial Commissioner Decisions 1050, Appeal Decision, June 24, 1985. Claimant has shown entitlement to temporary total disability only. FINDINGS OF FACT 1. On May 10, 1985, claimant suffered a severe asthmatic attack as a result of exposure to dust at work. 2. Claimant had been diagnosed and treated for asthma prior to May 10, 1985. 3. Claimant returned to work and again experienced an asthma attack. 4. The medical evidence establishes that claimant's asthma was temporarily aggravated by the May 10, 1985 incident. CONCLUSION OF LAW Claimant has established entitlement to temporary total disability. Claimant has failed to establish that she suffered a work injury on May 10, 1985 that resulted in permanent disability. WHEREFORE, the decision of the deputy is affirmed and modified. ORDER THEREFORE, it is ordered: That defendants shall pay to claimant temporary total disability from May 10, 1985 through May 21, 1985 at the rate of two hundred thirty-five and no/100 dollars ($235.00) per week. That defendants shall pay accrued weekly benefits in a lump sum. That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That claimant shall pay costs of this action pursuant to Division of Industrial Services Rule 343-4.33. That defendants shall file activity reports on the payment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 17th day of October, 1989. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. Robert W. Pratt Attorney at Law 1913 Ingersoll Des Moines, Iowa 50309-3320 Mr. Cecil L. Goettsch Mr. Brian L. Campbell Attorneys at Law 1100 Des Moines Bldg. Des Moines, Iowa 50309-2464 5-2206 Filed October 17, 1989 DAVID E. LINQUIST BEFORE THE IOWA INDUSTRIAL COMMISSIONER LINDA V. MORSE, Claimant, File No. 813735 vs. CHAMPION GLOVE MFG. CO., A P P E A L Employer, D E C I S I 0 N and EMPLOYERS MUTUAL CASUALTY COMPANY, Insurance Carrier, Defendants. 5-2206 Claimant failed to show that her preexisting asthma was permanently aggravated by her exposure to dust at work. Temporary disability benefits only were awarded. BEFORE THE IOWA INDUSTRIAL COMMISSIONER LINDA V. MORSE, Claimant, FILE NO. 813735 VS. A R B I T R A T I 0 N CHAMPION GLOVE MFG. CO., D E C I S I 0 N Employer, and EMPLOYERS MUTUAL CASUALTY COMPANY, Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Linda V. Morse, claimant, against Champion Glove Manufacturing Company, employer (hereinafter referred to as Champion), and Employers Mutual Casualty Company, insurance carrier, for workers' compensation benefits as a result of an alleged injury on May 10, 1985. On March 25, 1988, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. Oral testimony was received during the hearing only from claimant. The exhibits received into the evidence at the hearing are listed in the prehearing report. According to the prehearing report, the parties have stipulated to the following matters: 1. Claimant's rate of weekly compensation in the event of an award of weekly benefits from this proceeding shall be $235.00. 2. If the injury is found to have caused permanent disability, the type of disability is an industrial disability to the body as a whole. ISSUES The parties submit the following issues for determination in this proceeding: I. Whether claimant received an injury or an occupational disease arising out of and in the course of employment; II. Whether there is a causal relationship between the work injury or disease and the claimed disability; and, III. The extent of weekly disability benefits to which MORSE V. CHAMPION GLOVE MFG. CO. Page 2 claimant is entitled. SUMMARY OF THE EVIDENCE The following is a summary of the evidence presented in this case. For the sake of brevity, only the evidence most pertinent to this decision is discussed. Whether or not specifically referred to in this summary, all of the evidence received at the hearing was considered in arriving at this decision. As will be the case in any attempted summarization, conclusions about what the evidence offered may show are inevitable. Such conclusions, if any, in the following summary should be considered as preliminary findings of fact. Claimant testified that she worked for Champion from February 18, 1971 until the latter part of May, 1985, at which time she quit upon the advice of her physician. Claimant has held more than one job at Champion but primarily she was a "cutter" and a sewing machine operator. Champion manufactures sport gloves such as leather gloves to use to play golf. Claimant's job involved the cutting and sewing of leather used to make these gloves. Claimant testified that she was earning $9.10 per hour ($375.00 per week) in her job before she left in May, 1985. Claimant testified that her work at Champion involved working in a very dusty environment from handling the leather used in the manufacturing process and that the "chalk" dust was visible. Claimant testified that on May 15, 1985, she was hospitalized for a severe asthma attack consisting of shortness of breath, coughing and running of the nose. Claimant was treated by Donald Burrows, M.D., a specialist in pulmonary care (lungs and breathing mechanisms). Dr. Burrows related the attack to the dust at work noting a prior diagnosis eight years previous for asthma and intermittent treatment since that time. Treatment by Dr. Burrows consisted of rest and increase in medication. Claimant was also placed on a "nebulizerO machine which is a device to nebulize medicine and blow the medicine into the bronchial tubes and lungs. After her release from the hospital on May 21, 1985, claimant testified that she returned to work for approximately four hours and again experienced breathing difficulties with coughing and she returned home to use the nebulizer. Claimant has had continuing problems since that time. Claimant has not returned to work at Champion upon the advice of Dr. Burrows. Dr. Burrows continued treatment of claimant and she was again hospitalized in June, 1985, after awaking one morning with another asthma attack. Dr. Burrows' treatment lasted until February, 1986. Since that time, claimant has been admitted to the emergency rooms of various hospitals on three occasions to receive shots and other treatment to control episodes of asthma attacks. The most recent episode occurred in December, 1987, while she was baking pies for Christmas. Claimant attributes this episode to the baking flour in the air at the time. Claimant also has no real explanation as to the precipitating factors in the other attacks. MORSE V. CHAMPION GLOVE MFG. CO. Page 3 In his deposition, Dr. Burrows opines that claimant has not suffered a permanent injury to her lungs as a result of the dust exposure at Champion. The doctor notes that what may appear dusty and dirty to asthmatics may not be dusty and dirty to nonasthmatics. The doctor describes claimant's asthma episode at Champion as an aggravation of a preexisting asthmatic condition. The doctor explained that although he does not believe that claimant was exposed to any specific chemicals, he believes that the dust exposure set up an irritation of the bronchial tubes in claimant's lungs and this irritation caused her to have increased sensitivity and susceptibility to asthma attacks from lesser concentrations of dust or other items or from physical activity. When asked whether this aggravation has any permanency, the doctor felt that he expects claimant's aggravation to be fully reversed by modification in medications and removal of claimant from dusty environments. He has specifically prohibited claimant from working in any dusty work or play environments. In response to a specific question on whether the aggravation was permanent the doctor responsed in his deposition as follows: A. I'm not sure. And the reason being is I have asthmatics who can't work, who are disabled because we cannot fully reverse their disease, and it seems we have done everything we can possible to rid them of various exposures. So that in Linda MorseO case I would summarize she has very bad asthma that puts her at great risk for having problems with breathing in any type of dusty environment, that theoretically outside the dusty environment she should do well on the medication. But that doesn't take into account that when she gets older her asthma may get harder to control. It may not become reversible. Other factors may develop that cause her problems. It is not something that stays exactly the same way all the time. The analogy is good from the point of view -- maybe the point of view back then; but, generally our bad asthmatics, they would not qualify. I wouldn't say that the only problem she had was her work environment. I think it contributed to her problem. I don't think if you remove her from the work environment she no longer has a problem with that. I would not make that statement. Q. Because? A. Because she has asthma. She has a tendency to react to various things. This discussion we are having, let me tell you, is debated what asthma is and what it means with lung doctors in lung conferences. It seems so simple but it is very complex, what is defined as asthma and what we call asthma and what it can do and not do. If somebody has coronary artery disease, in other words, they have angina, the flow to their heart is decreased and when they exercise they get chest pain and potentially get a heart attack. If their job is chasing after dogs, well, they're going to have a lot of pain when they chase the dogs. Take them away from that job and put them at a desk job, they still have the coronary artery disease; but you have taken them away from the environment that makes it MORSE V. CHAMPION GLOVE MFG. CO. Page 4 worse, in a sense. Q. And the chasing of dogs didn't cause the coronary artery disease? A. Correct. Q. It just -- A. It could cause the heart attack in a sense precipitated on top of the coronary artery disease but didn't cause the underlying condition. Q. And the same thing is true in this case? A. Yes. Q. The work environment of Linda Morse isn't the cause? A. I don't think so. Claimant does not dispute that she was diagnosed as an asthmatic prior to May, 1985, but denies any lost time due to asthmatic problems before May, 1985. She states that she also has been troubled by dust in her nonemployment activities and gave up horseback riding in 1983 because of her asthmatic condition. Claimant is 39 years of age and is a high school graduate. Claimant testified that she has average academic skills. Prior to working for Champion claimant was involved in various jobs in manufacturing plants at minimum wage. According to vocational assessments made by the State Vocational Rehabilitation Agency, claimant performs at the eighth to tenth grade level in math, reading and spelling; at the 90th percentile level in space relation; and at the 100 percent level in ruler measurement. Claimant also possesses good people skills and potential for retraining in accounting and computer operation. According to Marion Jacobs, a vocational rehabilitation consultant, claimant has potential to fill such jobs as receptionist, various clerk positions and telephone sales earning from $4.35 per hour to $8.00 per hour. Jacobs states that if she could find a dust free manufacturing environment, she could use her manufacturing skills to earn from $6.25 per hour to $12.59 per hour. It was the opinion of Jacobs that claimant could return to work as a sewing machine operator at Champion. This opinion was based upon her observation that it was not dusty at Champion. Since September, 1987, claimant has worked as a sewing machine operator of textile products and gun cases in a manufacturing environment that is dust free. Claimant testified that if she were physically able to return to her cutter job at Champion she would be making $10.50 per hour. Claimant's appearance and demeanor at the hearing indicated that she was testifying truthfully. APPLICABLE LAW AND ANALYSIS MORSE V. CHAMPION GLOVE MFG. CO. Page 5 I. Claimant has the burden of proving by a preponderance of the evidence that claimant received an injury which arose out of and in the course of employment. The words "out of" refer to the cause or source of the injury. The words "in the course of" refer to the time and place and circumstances of the injury. See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). An employer takes an employee subject to any active of dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited therein. There is little question in this case that claimant has shown at least a work injury whether there is permanent effects or not in the form of an aggravation of a preexisting asthmatic condition. The causal connection views of Dr. Burrows on the relation of claimant's dust at work to her problems is only controverted by the observations of Marion Jacobs that she felt that the environment was dust free. As pointed out by Dr. Burrows, what may be clean to a nonasthmatic may very well be a different story for an asthmatic. Claimant argues in the alternative for benefits under Chapter 85A due to an occupational disease. However, claimant failed to show that the dust to which claimant was exposed was more prevalent at Champion then in other occupations or in every day life. Consequently, no occupational disease could be found. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 190 (Iowa 1980). II. The claimant has the burden of proving by a preponderance of the evidence that the work injury is a cause of the claimed disability. A disability may be either temporary or permanent. In the case of a claim for temporary disability, the claimant must establish that the work injury was a cause of absence from work and lost earnings during a period of recovery from the injury. Generally, a claim of permanent disability invokes an initial determination of whether the work injury was a cause of permanent physical impairment or permanent limitation in work activity. However, in some instances, such as a job transfer caused by a work injury, permanent disability benefits can be awarded without a showing of a causal connection to a physical change of condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); McSpadden, 288 N.W.2d 181 (Iowa 1980). The question of causal connection is essentially within the domain of expert medical opinion. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion of experts need not be couched in definite, positive or unequivocal language and the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). The weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Furthermore, if the available expert testimony is MORSE V. CHAMPION GLOVE MFG. CO. Page 6 insufficient alone to support a finding of causal connection, such testimony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish compensability, the injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith, 290 N.W.2d 348, 354. In the case of a preexisting condition, an employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). The obvious fighting issue in the case sub judice is whether claimant has suffered permanent effects from the aggravation injury. The views of Dr. Burrows that claimant has no permanent damage to her lungs or bronchial tubes is uncontroverted and accepted. However, to conclude from the doctor's statements in his deposition that he believes to a medical certainty that claimant has not suffered permanent effects or impairment from the acute attack of May, 1985, is incorrect. The doctor, approaching the problem scientifically, is simply unsure according to the passages quoted above in his deposition. The doctor clearly stated that dust was a contributing factor to claimant's problems. He described a scenario in which exposure leads to an attack which further leads to increased sensitivity or susceptibility to future attacks in less hazardous environments at work or at home. Critical to Dr. Burrows' views and to the issue of whether claimant has suffered permanency from the Champion dust exposure is whether there has been a reversal of symptomatology and a reduction of the frequency of her attacks after leaving the dusty environment. It is rather obvious that a complete reversal of claimant's symptomatology has not happened. Dr. Burrows' analogy to angina pain in the quoted section of his deposition is not typical of claimant's situation because claimant continued to have difficulties despite leaving the dusty environment at Champion. This deputy commissioner has come to the realization in this case that a detailed analysis of each and every confusing and conflicting phrase in Dr. Burrows' deposition loses sight of an obvious fact. Claimant worked without lost time for almost 14 years at Champion and since the May, 1985, episode she has been unable to return to Champion or any other dusty environment. She now, unlike before, has permanent restrictions on her work activity no less devastating than a restriction against heavy lifting for a manual laborer. But for her episode in May, 1985, she would be working at Champion today. Therefore, the greater weight of all the evidence shows that claimant has suffered permanent restrictions on the type of work she can perform, whether you consider this a permanent partial impairment or not. III. Claimant must establish by a preponderance of the evidence the extent of weekly benefits for permanent disability to which claimant is entitled. As the claimant has shown that the work injury was a cause of a permanent physical impairment or limitation upon activity involving the body as a whole, the degree of permanent disability must be measured pursuant to Iowa Code section 85.34(2)(u). However, unlike scheduled member MORSE V. CHAMPION GLOVE MFG. CO. Page 7 disabilities, the degree of disability under this provision is not measured solely by the extent of a functional impairment or loss of use of a body member. A disability to the body as a whole or an "industrial disability" is a loss of earning capacity resulting from the work injury. Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A physical impairment or restriction on work activity may or may not result in such a loss of earning capacity. The extent to which a work injury and a resulting medical condition has resulted in an industrial disability is determined from examination of several factors. These factors include the employeeOs medical condition prior to the injury, immediately after the injury and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985). Claimant's medical condition before the work injury was excellent and she had no ascertainable disabilities before May, 1985. Claimant was fully able to perform her physical tasks before May, 1985. Claimant's treating physicians have restricted claimant's work activities by prohibiting work in a dusty MORSE V. CHAMPION GLOVE MFG. CO. Page 8 environment. This restriction prevents her from returning to her former work or any other work which requires claimant to work in a dusty manufacturing environment. As a result of claimant's inability to return to her job at Champion she has suffered a 40 percent loss of earnings from a comparison of claimantOs current earnings to that which she would make had she been working at Champion at the present time. However, despite this loss of earnings, claimant is not physically impaired so long as she remains in a suitable environment and can fully perform manufacturing jobs such as the one she is performing today. As pointed out by Jacobs, claimant is able to perform numerous jobs in the labor market and will probably make more money in the future than her current salary. The exclusion of claimant from a certain portion of the labor market despite a lack of functional impairment is compensable under Chapters 85 or 85A. Blacksmith, 290 N.W.2d 348 (Iowa 1980). Claimant is 39 years of age and has a high school education. Claimant's vocational counselors indicate that she is retrainable. After examination of all the factors, it is found as a matter of fact that she has suffered a 15 percent loss of her earning capacity from her work injury. Based upon such a finding, claimant is entitled as a matter of law to 75 weeks of permanent partial disability benefits under Iowa Code section 85.34(2)(u) which is 15 percent of 500 weeks, the maximum allowable number of weeks for an injury to the body as a whole in that subsection. As it was found that claimant reached maximum healing upon a discharge from the hospital on May 21, 1985, benefits will be awarded from May 22, 1985. As claimant has established entitlement to permanent partial disability benefits, claimant is entitled to weekly benefits for healing period under Iowa Code section 85.34 from the date of injury until claimant reaches maximum medical improvement. Claimant left work on May 10, 1985, due to her asthmatic condition and she was discharged from the hospital on May 21, 1985. Claimant's asthmatic condition and treatment of that condition has remained essentially constant since that time. Therefore, claimant is entitled to healing period benefits from May 10, 1985 through May 21, 1985. FINDINGS OF FACT 1. Claimant was a credible witness. 2. On May 10, 1985, claimant suffered an injury to her lungs which arose out of and in the course of her employment with Champion. Claimant suffered a severe asthmatic attack as a result of exposure to dust which aggravated a preexisting condition. 3. The work injury of May 10, 1985, was a cause of a period of temporary disability from work beginning on May 10, 1985 and ending on May 21, 1985, at which time claimant reached maximum healing. The treatment in the form of medication and other MORSE V. CHAMPION GLOVE MFG. CO. Page 9 modalities prescribed during this hospitalization continues for the most part today. Claimant's condition has remained stable since May 21, 1985. 4. The work injury of May 10, 1985, was one of the significant causes of a permanent restriction against working in a dusty or fumy environment. The dust exposure at Champion caused increased sensitivity and susceptibility to asthmatic attacks from exposure to anything other than a dust free environment. Although claimant improved after leaving the work environment at Champion in May, 1985, she remains on medication and other modalities and continues to suffer periodic episodes of attacks from relatively minor exposures to dust and other activity. 5. The work injury of May 10, 1985, was a cause of a 15 percent loss of earning capacity. Claimant is unable to return to work as a cutter at Champion. Cutters currently make $10.50 per hour at Champion. Claimant currently only earns $6.25 per hour in her job as a sewing machine operator. Claimant has suffered a 40 percent loss of actual earnings but she will probably make significantly more money in the future. Claimant is retrainable and is able to perform sedentary and clerical work or manufacturing work in a suitable environment. Claimant is currently working in a suitable and stable job. CONCLUSIONS OF LAW Claimant has established by a preponderance of the evidence entitlement to permanent partial disability benefits and healing period benefits as awarded below. ORDER 1. Defendants shall pay to claimant seventy-five (75) weeks of permanent partial disability benefits at the rate of two hundred thirty-five and no/100 dollars ($235.00) per week from February 22, 1985. 2. Defendants shall pay to claimant healing period benefits from May 10, 1985 through May 21, 1985 at the rate of two hundred thirty-five and no/100 dollars ($235.00) per week. 3. Defendants shall pay accrued weekly benefits in a lump sum. 4. Defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. 5. Defendants shall pay costs of this action pursuant to Division of Industrial Services Rule 343-4.33. 6. Defendants shall file activity reports on the payment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 29th day of April, 1988. MORSE V. CHAMPION GLOVE MFG. CO. Page 10 LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert W. Pratt Attorney at Law 1913 Ingersoll Des Moines, Iowa 50309-3320 Mr. Cecil L. Goettsch Mr. Brian L. Campbell Attorneys at Law 1100 Des Moines Building Des Moines, Iowa 50309-2464 1803 Filed April 29, 1988 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER LINDA V. MORSE, Claimant, FILE NO. 813735 vs. A R B I T R A T I 0 N CHAMPION GLOVE MFG. CO., D E C I S I 0 N Employer, and EMPLOYERS MUTUAL CASUALTY COMPANY, Insurance Carrier, Defendants. 1803 Claimant awarded permanent disability benefits for a 15 percent industrial disability caused by chronic effects stemming from a severe episode of an asthma attack at work. Before her severe episode of asthmatic attack caused by dust at work, claimant was at work for 14 years in the plant and had no lost time as a result of her asthmatic condition. Page 1 before the iowa industrial commissioner ____________________________________________________________ : ALLEN F. HARDY, : : Claimant, : : vs. : : File No. 814126 ABELL-HOWELL COMPANY, : : A P P E A L Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE Defendants appeal from an arbitration decision awarding permanent total disability benefits as the result of an alleged injury on January 11, 1986. Claimant cross-appeals. The record on appeal consists of the transcript of the arbitration proceeding; claimant's exhibits A through S; and defendants' exhibits D-1 through D-6. Both parties filed briefs on appeal. Defendants filed a reply brief. ISSUES 1. Whether the deputy erred in finding that there is a causal connection between the alleged injury and claimant's disability. 2. Whether the deputy erred by finding that claimant Page 2 has a permanent total disability. Claimant states the following issue on cross-appeal: Claimant's correct weekly benefit rate should be $288.87 per week. REVIEW OF THE EVIDENCE The arbitration decision adequately and accurately reflects the pertinent evidence and it will not be totally set forth herein. Briefly stated, claimant worked for 25 years as an ironworker. On January 11, 1986, claimant injured his leg, arm and back in a fall. Claimant was 55 years old at the time of his injury, and had an eleventh grade education. Claimant's work experience was limited to his work as an ironworker, which required claimant to climb, work in high places, lift, bend, twist, and carry 70 pounds of equipment. Following his injury, claimant was treated by several physicians. Donald Berg, M.D., performed surgery on claimant's leg. Claimant was then referred to Edward P. Hermann, D.O. Dr. Hermann performed surgery on claimant's wrists and elbows. A CT scan of claimant's back ordered by Dr. Hermann showed claimant was suffering from degenerative disk disease with slight nerve root narrowing on the right of L4,5; and a marked degenerative bony spur formation nerve root on the left at L5, S1. Dr. Hermann attributed Page 3 claimant's back condition to his fall. Dr. Hermann opined that claimant cannot sit or stand for longer than twenty to thirty minutes, cannot walk beyond 4-6 blocks without back pain, and that claimant has permanent restrictions to avoid any bending, stooping or lifting. Claimant was also advised to avoid riding in motor vehicles to prevent aggravating his back pain. Dr. Hermann assigned claimant a 25 to 30 percent permanent partial "disability" of the body as a whole. Dr. Hermann also recommended that claimant undergo either an epidural block, or a laminectomy. Claimant refused both types of treatment. Claimant was also seen by David J. Boarini, M.D., a neurosurgeon, at defendants' request. Dr. Boarini opined that claimant has some limitation in the range of motion for his lower back in all directions, and that claimant's low back pain is due to his osteoarthritis, which was aggravated by his fall. Dr. Boarini imposed a 50 pound lifting restriction, and avoidance of bending. Dr. Boarini rated claimant's impairment as three percent "disability of the whole man." Dr. Boarini also recommended that claimant undergo a myelogram. Claimant was also evaluated by David L. Cunningham, M.D., also at defendants' request. Dr. Cunningham found that claimant exhibited pain in the lumbar area, and that flexion and extension of the lumbar spine were limited to 20 Page 4 percent of normal limits. An MRI recommended by Dr. Cunningham showed a bulging or ruptured disc at the L4 level protruding toward the right plus some midline posterior bulging of the L2,3 intervertebral disk. Dr. Cunningham recommended claimant undergo outpatient lumbar myelography. Claimant attempted to return to work, but was initially told no work was available. Claimant did eventually return to work, but pain in his back prevented him from continuing to work. Claimant was evaluated by vocational rehabilitation specialist George Brian Paprocki. Paprocki opined that based on claimant's inability to work for eight hours and the fact that claimant's skills as a welder and ironworker did not transfer to a sedentary occupation, claimant was unemployable. H. Shelby Swain, another vocational rehabilitation consultant, opined that claimant preferred to be working but had perhaps given up looking for work in light of his physical limitations. Claimant's earnings with the defendant employer were as follows: w/e 10/19/85 120.00 w/e 10/26/85 ------ w/e 11/02/85 ------ w/e 11/09/85 60.00 w/e 11/16/85 496.00 w/e 11/23/85 620.00 Page 5 w/e 11/30/85 372.00 w/e 12/07/85 620.00 w/e 12/14/85 651.00 w/e 12/21/85 372.00 w/e 12/28/85 201.50 w/e 01/04/86 ------ w/e 01/11/86 209.25 APPLICABLE LAW The citations of law in the arbitration decision are appropriate to the issues and the evidence. In addition, the following authorities are noted: An unreasonable refusal of proffered medical benefits can result in a loss of weekly benefits. Johnson v. Tri-City Fabricating & Welding Co., 33rd Biennial Report of the Iowa Industrial Commissioner 179 (Appeal Decision 1977). Failure to undergo surgery which carries some significant risk and the outcome of which is not altogether certain does not represent an unreasonable refusal of medical care. Arnaman v. Mid-American Freight Lines, I-3 Iowa Industrial Commissioner Decisions 497 (1985); Barkdoll v. American Freight System, Inc., Appeal Decision, June 28, 1988. Iowa Code sections 85.36(6) and (7) state in part: 6. In the case of an employee who is paid on a Page 6 daily, or hourly basis, or by the output of the employee, the weekly earnings shall be computed by dividing by thirteen the earnings, not including overtime or premium pay, of said employee earned in the employ of the employer in the last completed period of thirteen consecutive calendar weeks immediately preceding the injury. 7. In the case of an employee who has been in the employ of the employer less than thirteen calendar weeks immediately preceding the injury, the employee's weekly earnings shall be computed under subsection 6, taking the earnings, not including overtime or premium pay, for such purpose to be the amount the employee would have earned had the employee been so employed by the employer the full thirteen calendar weeks immediately preceding the injury and had worked, when work was available to other employees in a similar occupation. ANALYSIS The first issue on appeal is whether claimant has carried his burden to show that his present condition is causally connected to his work injury. Dr. Hermann opined that claimant's present back condition was the result of claimant's fall at work. Dr. Boarini stated that it was his opinion that claimant's fall did aggravate his preexisting osteoarthritis, but that this aggravation later stabilized, followed by further natural degeneration. When questioned Page 7 on this point in his deposition, Dr. Hermann expressed the belief that claimant's present back problems were not the result of natural degeneration, but rather were caused by trauma. Dr. Berg also testified that claimant's back condition was caused by "lumbosacral strain." It is noted that Dr. Hermann is claimant's treating physician. Dr. Hermann has had more contact with claimant, and has had more opportunity to observe claimant's back condition. In addition, claimant did not experience back pain or limitations in movement prior to his fall. These symptoms appeared soon in time after the fall, and have not alleviated. It is not necessary that claimant's injury be the only cause of his present condition. It is sufficient if it is a substantial cause. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980). The opinion of Dr. Hermann will be given the greater weight. Claimant's work injury was a substantial cause of his present back condition. The next issue raised by defendants is whether claimant has proven entitlement to permanent total disability benefits. However, defendants offer no argument in their appeal brief that claimant is not permanently and totally disabled at this time. No argument is offered on the various factors that determine industrial disability. Rather, defendants on appeal appear to urge that claimant is not entitled to permanent total disability benefits due to his refusal to undergo certain recommended medical treatment. Page 8 Claimant was advised by Dr. Hermann to undergo an epidural block or a laminectomy. Both Dr. Cunningham and Dr. Boarini recommended a myelogram. Claimant has declined to undergo the recommended procedures. Benefits cannot be reduced, however, unless the refusal to undergo medical procedures is unreasonable. Dr. Hermann has stated that even with the recommended procedures, claimant would still not be able to work for eight hours at a time. Dr. Boarini acknowledged that even if claimant underwent the surgery, he would still have a lifting and bending restriction. Dr. Boarini predicted an 80 percent chance of success with surgery. The other physicians predicted no more than a 35 percent to 50 percent chance of improvement. Dr. Hermann testified that some people would not benefit from the surgery, and could even become worse. Dr. Hermann stated he could not say claimant would be improved with surgery, but that he possibly would. None of the physicians were able to state that surgery, even if successful, would significantly improve claimant's impairment. Claimant testified that Dr. Hermann told him he would not be able to return to his work as an ironworker even with the surgery. There was little evidence offered on the risk of the procedures recommended. Claimant did testify that Dr. Hermann told him he could be better after surgery, he could be worse, or he could be in a wheelchair. Claimant stated Page 9 he would not undergo surgery unless he became paralyzed. Dr. Hermann stated that he felt claimant's refusal was reasonable under the circumstances. In addition, impairment is only one of the factors that determine industrial disability. Claimant's decision not to undergo surgery is reasonable, and benefits should not be reduced because of this refusal. In light of claimant's age of 55, his ratings of physical impairment, his eleventh grade education, his past work history, his loss of earnings since his injury, his lack of potential for vocational rehabilitation as shown by the testimony of the vocational rehabilitation experts, as well as the other factors that determine industrial disability, it is concluded that claimant is permanently and totally disabled. Claimant raises the issue of rate of weekly compensation as an issue on cross-appeal. The defendants calculated claimant's weekly benefit rate by including three weeks in which claimant apparently received no earnings due to being laid off. Defendants also included in the calculation one week where claimant earned only $60 due to claimant only working part of one day due to lead poisoning, and another week where claimant was laid off part way through the week and only earned $120. Claimant's position is that these weeks are unrepresentative and should not be considered. Rather, claimant urges, the previous five weeks that he worked for another employer should be used to calculate his rate. Page 10 Initially, a determination must be made which subsection of Iowa Code section 85.36 is appropriate. Section 85.36(6) deals with employees paid on an hourly basis. Section 85.36(7) deals with employees that have been in the employ of the employer less than thirteen calendar weeks immediately preceding the injury. Claimant was apparently paid on an hourly basis for the work he performed for defendant employer. Under Iowa Code section 85.36(6), the weekly earnings for an employee who is paid on an hourly basis is computed by dividing by thirteen the earnings of the employee earned in the last completed period of thirteen consecutive calendar weeks immediately preceding the injury. Claimant's work from October 16, 1985, through his injury on January 11, 1986, constitutes twelve and one-half weeks only. Thus, section 85.36(7) is the appropriate method to determine claimant's earnings. Section 85.36(7) states that the weekly earnings shall be computed as under section 85.36(6), but the earnings to be divided by thirteen shall be the amount the employee would have earned had the employee been so employed by the employer the full thirteen calendar weeks immediately preceding the injury and had worked, when work was available to other employees in a similar occupation. Claimant urges that the three full weeks and one partial week where he earned no wages or less than his usual wages due to being laid off should not be considered. Weeks that are not representative of claimant's usual earnings Page 11 should not be utilized in the calculation of claimaant's rate. Claimant earned no wages during three of the thirteen weeks immediately preceding his injury, due to being laid off. These weeks are not representative of claimant's normal earnings. Thus, claimant's earnings for the weeks ending October 26, 1985; November 2, 1985; and January 4, 1986, should not be included in the thirteen weeks calculation under section 85.36(7). The week ending October 19, 1985, was a partial week only, with claimant earning $120. Claimant began working for defendant during that week, on October 16, 1985. If this week was a partial week due to claimant beginning work in the middle of the workweek, it might very well constitute an unrepresentative week. However, in his answers to interrogatories, admitted into the record as Exhibit J, claimant states: "The week ending 10/19/85 was only a partially completed week with earnings of $120. Claimant worked only part of the week ending 10/19/85 because of no work from the employer." Thus, it appears that the week ending October 19, 1985, was a "short" week not because claimant began his employment in the middle of the pay period, but because of a lack of work. Although weeks in which claimant earned no wages at all due to being laid off are not to be included in the calculation of claimant's rate, weeks in which claimant did earn some wages, even though he was laid off for a portion of the week, are to be included in the calculation. Thus, the week ending October 19, 1985, is to be included in the Page 12 rate calculation. During the week ending November 9, 1985, claimant worked only one day due to steel poisoning. There is no contrary assertion from defendants. Absence from work due to illness does make the week ending November 9, 1985, unrepresentative of claimant's true earnings, and thus that week's earnings will not be included in the 85.36(7) calculation. Thus, there remain only 9 representative weeks of earnings with defendant employer. Claimant urges utilizing his earnings with a prior employer to complete the requirement of a representative thirteen weeks. However, both sections 85.36(6) and 85.36(7) refer to "the employer," which indicates that the earnings to be included are limited to those earned from the defendant employer. Utilizing the earnings of claimant with a prior employer would not be appropriate in this case. Under section 85.36(7), when the claimant has worked less than thirteen weeks for the employer, a determination is to be made as to what the claimant's earnings would have been had the claimant been employed by the employer for the full thirteen calendar weeks immediately preceding the injury and had worked, when work was available to other employees in a similar occupation. The record in the present case does not disclose what claimant's earnings would have been had he been employed the Page 13 full thirteen weeks preceding his injury, nor does the record show what employees in a similar occupation earned from the employer during this period. When it is not possible to determine a representative thirteen weeks of earnings for claimant, a proper determination of earnings can be made by dividing claimant's wages for the weeks he did work by the number of weeks. Barker v. City Wide Cartage, I Iowa Industrial Commissioner Report, 12, 15, (Appeal Decision, 1980). Claimant worked nine representative weeks for the defendant employer. His total earnings for those nine weeks was $3,661.75. Divided by nine, this yields weekly earnings of $406.86. Under the rate tables pertaining to an injury occurring on January 11, 1986, a married claimant with two dependents would have a weekly rate of $252.82. FINDINGS OF FACT 1. Claimant worked as an ironworker for defendant employer. 2. Claimant suffered an injury to his back arising out of and in the course of his employment on January 11, 1986. 3. Claimant received ratings of permanent physical impairment of 25-30 percent of the body as a whole, and three percent of the body as a whole. 4. Claimant has permanent restrictions on lifting, Page 14 bending, and stooping, and claimant has difficulty in walking or standing as a result of his work injury. Claimant cannot work eight hours at a time without lying down to rest. 5. Claimant did not have back problems prior to his work injury. 6. Claimant had a preexisting case of osteoarthritis in his back. 7. Claimant experienced back pain after his work injury which continues to the present time. 8. Dr. Hermann expressed the opinion that claimant's back condition was caused by trauma and not by degenerative disease. Page 15 9. Claimant was advised to undergo either an epidural block or a laminectomy, but claimant refused to do so. 10. Dr. Hermann indicated that surgery on claimant's back might or might not improve his condition, and might make claimant's condition worse. 11. Dr. Hermann expressed the opinion that claimant's refusal was reasonable from a medical standpoint. 12. Dr. Boarini expressed the opinion that even with surgery, claimant would still have restrictions and pain. 13. Claimant was 55 years old at the time of his injury and had an eleventh grade education. 14. Claimant's work experience is limited to ironworking. Claimant cannot return to ironworking or work at other occupations involving manual labor due to his impairment. 15. A vocational rehabilitation expert concluded that claimant is unemployable. 16. Claimant was paid an hourly wage. 17. Claimant's wages from defendant were as follows: w/e 10/19/85 120.00 Page 16 w/e 10/26/87 ------ w/e 11/02/85 ------ w/e 11/09/85 60.00 w/e 11/16/85 496.00 w/e 11/23/85 620.00 w/e 11/30/90 372.00 w/e 12/07/85 620.00 w/e 12/14/85 651.00 w/e 12/21/85 372.00 w/e 12/28/85 201.50 w/e 01/04/86 ------ w/e 01/11/86 209.25 CONCLUSIONS OF LAW Claimant's present back condition is causally connected to his January 11, 1986 work injury. Claimant's refusal to undergo recommended medical treatment was reasonable. Claimant is permanently and totally disabled. Claimant's rate of compensation is $252.82 per week. WHEREFORE, the decision of the deputy is affirmed and modified. ORDER Page 17 THEREFORE, it is ordered: That defendants are to pay unto claimant permanent total disability benefits at the rate of two hundred fifty two and 82/100 dollars ($252.82) per week during the period of his disability. That defendants shall pay interest on unpaid weekly benefits awarded herein as set forth in Iowa Code section 85.30. That defendants are to be given credit for benefits previously paid. That defendants are to pay the costs of this action. Defendants and claimant shall share equally the costs of the Page 18 appeal, including the preparation of the appeal transcript. That defendants shall file claim activity reports as required by this agency pursuant to rule 343 IAC 3.1(2). Signed and filed this ____ day of December, 1990. ________________________________ CLAIR R. CRAMER ACTING INDUSTRIAL COMMISSIONER Copies To: Mr. Dennis W. Emanuel Attorney at Law P.O. Box 601 Ottumwa, Iowa 52501-0601 Mr. Walter F. Johnson Attorney at Law P.O. Box 716 Ottumwa, Iowa 52501 5-1108.50; 2700; 3001 Filed December 21, 1990 MAM Clair R. Cramer before the iowa industrial commissioner ____________________________________________________________ : ALLEN F. HARDY, : : Claimant, : : vs. : : File No. 814126 ABELL-HOWELL COMPANY, : : A P P E A L Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1108.50 Opinion of treating physician that claimant's back condition was the result of trauma and not a degenerative condition was given greater weight than contrary opinion of an examining physician. 2700 Claimant refused to undergo surgery or epidural block for his back condition. Defendants requested a reduction of benefits due to this refusal. A reduction in benefits is justified only if the refusal is unreasonable. To determine if a refusal is unreasonable, a balancing test is used, weighing the risks of the procedure versus the predicted benefits. Here, both physicians acknowledged that even with surgery, claimant would still have significant restrictions. One physician opined that the procedure often does not help, and can in fact make claimant worse. There was no medical evidence to indicate to what degree claimant's impairment would be improved even with successful surgery. Based on the facts of this case, claimant's refusal was not so unreasonable as to justify a reduction in benefits. 3001 Claimant's rate was at issue. Claimant had worked for defendant employer for 13 weeks prior to his injury. Three of those weeks, claimant was laid off and earned no wages. One week, claimant worked only one day, then was laid off. Another week, claimant worked a day and was then off sick for the rest of the week. Weeks where claimant earned no wages due to being laid off are not counted. A week where claimant earned some wages and was then laid off, however, is counted. The week where claimant was sick is unrepresentative of claimant's true wages and is not counted. This yielded nine representative weeks. Claimant urged that his three weeks with no wages not be counted, but that additional weeks with a previous employer be used in the calculation. This was rejected, as 85.36(7) refers to wages earned from the employer at the time of the injury. When there are less than 13 representative weeks, section 85.36(7) requires a computation based on what the employee would have earned had he been employed a full 13 weeks prior to the injury. However, there was no evidence in the record of what those wages would have been. Thus, under Barker v. City Wide Cartage, I Iowa Industrial Commissioner Report 12, 15 (Appeal Decision, 1980), claimant's gross weekly earnings were calculated by dividing his total earnings over the nine representative weeks by nine. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ALLEN F. HARDY, Claimant, File No. 814126 vs. A R B I T R A T I O N ABELL-HOWELL COMPANY, D E C I S I O N Employer, and LIBERTY MUTUAL INSURANCE CO., Insurance Carrier, Defendants. INTRODUCTION This is an arbitration proceeding brought by Allen F. Hardy, claimant, against Abell-Howe Company, employer, and Liberty Mutual Insurance Company, insurance carrier, defendants. The case was heard on August 5, 1988 in Ottumwa, Iowa by the undersigned. The record consists of the testimony of: Allen Hardy, George Brian Paprocki, vocational specialist, and Ronald Mikel, business agent for Ironworkers Local 577. The record also consists of exhibits A through S for claimant and defendants' exhibits D-1 through D-6. ISSUES Pursuant to the prehearing report and order submitted and approved on the second day of March, 1988, the following issues are presented for resolution: 1. Whether there is a causal relationship between the alleged injury and the disability; 2. Whether claimant is entitled to permanent partial or total disability benefits; 3. Whether claimant is entitled to temporary disability/healing period benefits; 4. Whether claimant is an employee under the odd-lot doctrine; HARDY V. ABELL-HOWELL COMPANY PAGE 2 5. The rate to be used including interest calculation; and, 6. Whether claimant is entitled to medical benefits under section 85.27. FACTS PRESENTED Claimant, at the time of the hearing, was a 57 year old ironworker with an eleventh grade education. Up to the date of his injury, claimant had been employed for nearly 25 years in that capacity. During the course of his career, claimant was engaged in climbing and working in high places, lifting and bending, twisting, and moving. Additionally, claimant carried approximately 70 pounds of equipment on his person. At the time of claimant's injury on January 11, 1986, claimant was hired as an ironworker foreman. On the day of the injury, claimant fell 13 to 17 feet and landed on concrete. Claimant fell on his back. He attempted to break his fall by grabbing onto a safety bar with both hands. Claimant was hospitalized after his injury. Surgery on claimant's leg was performed by Donald Berg, M.D. Claimant's medical treatment was transferred from Dr. Berg to Edward P. Hermann, D.O. Claimant was first seen by Dr. Hermann on January 24, 1986. Dr. Hermann, in his deposition, described the extent of claimant's condition subsequent to the injury date: A HE HAD A DISLOCATION OF THE RIGHT GREAT TOE AT THE METATARSAL PHALANGEAL JOINT, WHICH WAS REDUCED IN THE EMERGENCY ROOM, AS I UNDERSTAND IT. HE HAD A NON-DISPLACED FRACTURE OF THE RIGHT FIBULA. HE HAD A CRUSH INJURY TO THE POSTERIOR PART OF THE CALF, OR THE BACK OF THE CALF. HE HAD A LACERATION TO THE SITE OF THE LEG JUST BELOW THE KNEE, NEAR THE AREA OF THE PROXIMAL END OF THE FIBULA. HE ALSO COMPLAINED OF BACK PAIN WHILE IN THE HOSPITAL UP THERE. AND I BELIEVE THE FINAL DIAGNOSIS OF DR. BERG INDICATES THAT, WITH THE OTHER INJURIES, WHY, HE ALSO FELT THAT THERE WAS LUMBAR SPRAIN. (Exhibit P, page 10, lines 6-16) Claimant's leg and big toe were treated. Approximately six months after the date of the injury, Dr. Hermann determined surgery was necessary on both of claimant's wrists and elbows. The surgeries were performed. Afterwards, claimant gained strength in both arms. On November 13, 1986, claimant was again seen by Dr. Hermann. According to the notes for that day, Dr. Hermann writes: HARDY V. ABELL-HOWELL COMPANY PAGE 3 Mr. Hardy was seen today for recheck. He, at this time, has normal sensation to his hands and fingers. He does have discomfort in the hands and fingers at times, but basically has normal sensation, normal range of motion and appears to have good strength. Surgical incisions at the elbows are healed and non tender. He has discomfort in the right hip and trochanteric area .... In general, I feel that he has reached almost maximum improvement. He is doing work and exercises at home in an effort to try and get himself so that he can return to work. I feel that his condition is such that he should be able to return to work and was given a slip indicating my approval to return as of Monday, 11-17-86 .... Claimant tried to return to work in December of 1986. However, no work was available to him. Claimant eventually returned on a very temporary basis. He worked two and one half days in December of 1986. Claimant also worked 10 or 11 days in March of 1987. Because of pain in his back and a throbbing pain which began in the hips and ran down claimant's right leg, claimant was unable to continue working. After the incident in March of 1987, Dr. Hermann ordered a CT scan. The CT scan report revealed: IMPRESSION: 1. Degenerative disk disease with slight nerve root narrowing on the right of L4,5; 2. Marked degenerative bony spur formation nerve root on the left at L5, Sl; 3. Significant articulating facet sclerosis generalized through the study. (Ex. N) Dr. Hermann, in his deposition, opined the degenerative disk disease was attributable to claimant's fall. He stated: Q WHAT WAS IT, DOCTOR, IN YOUR EXAMINATION OF MR. HARDY'S SYMPTOMS AND THROUGHOUT YOUR COURSE OF TREATMENT THAT ENABLED YOU TO FORMULATE THIS OPINION THAT THE BULGING OF THE DISK AT L-4, L-5, REFERRED TO IN THE RADIOLOGY REPORT AS DEGENERATIVE DISK DISEASE, WAS DIRECTLY RELATED TO THE HORMEL FACILITY INCIDENT? A TO MY KNOWLEDGE, THE MAN WAS ASYMPTOMATIC, OR HAD NO SYMPTOMS RELATING TO HIS BACK OR LEGS WHATSOEVER PRIOR TO HIS INJURY. AND HE COMPLAINED OF BACK PAIN WHILE IN OTTUMWA BEFORE I EVER SAW HIM, ACCORDING TO DR. BERG'S RECORD, I BELIEVE. AND AS LONG AS WE WERE NOT -- AS LONG AS HE WAS NOT UP AND ABOUT AND DOING VERY MUCH, WE DIDN'T HAVE TOO MUCH IN THE WAY OF SYMPTOMATOLOGY. AND ONCE WE STARTED TRYING TO STRESS HIM AND DO ANYTHING THAT WAS REALLY ACTIVE OR STRENUOUS, THEN WE COME UP WITH THE SYMPTOMS RELATING HARDY V. ABELL-HOWELL COMPANY PAGE 4 TO THE BACK INJURY, OR RELATING TO THE RUPTURED DISK. Q DOCTOR, DO YOU HAVE AN OPINION TO A REASONABLE DEGREE OF MEDICAL CERTAINTY AS TO WHETHER OR NOT THIS HERNIATED DISK IS A PERMANENT CONDITION? A I DO. Q WHAT IS THAT OPINION? A IT IS PERMANENT. Q DO YOU HAVE AN OPINION, DOCTOR, BASED TO A REASONABLE DEGREE OF MEDICAL CERTAINTY, AS TO THE CAUSATION, AGAIN OF THE HERNIATED DISK, AS IT RELATES, IF ANY, TO THE FALL THAT MR. HARDY HAD AT THE HORMEL FACILITY IN 1986? A I DO. Q WHAT IS THAT OPINION? A IT IS A RESULT OF THE FALL. (Ex. P, p. 28, 1. 21 to p. 30, 1. 1) After Dr. Hermann received the results of the CT scan, he placed claimant on a non-steroidal anti-inflammatory drug. Conservative treatment was ordered. Claimant was advised not to return to work. Conservative therapy was attempted. However, claimant remained in substantially the same condition. Dr. Hermann, since receiving the CT scan report, recommended two types of treatment to claimant; an epidural block or a laminectomy. Claimant has strongly refused both forms of treatment. Despite claimant's refusal to have surgery, Dr. Hermann has continued to treat claimant. Dr. Hermann, in his second deposition, testified that: Q BASED UPON YOUR EXPERIENCE, DOCTOR, IN TREATING OTHER PATIENTS AND PERFORMING SURGERY ON THEM, AND HAVING ANALYZED MR. HARDY'S CONDITION, WHAT IS YOUR RECOMMENDATION, IF ANY, FOR MR. HARDY IN TERMS OF FUTURE MANAGEMENT OF HIS BACK PROBLEM? A MR. HARDY HAS INDICATED TO ME THAT HE WAS NOT INTERESTED IN PROCEEDING WITH SURGERY. ON THAT BASIS, I COULD NOT, IN GOOD CONSCIENCE, RECOMMEND OR URGE HIM TO PROCEED WITH SURGERY, BECAUSE WITH IDEAL RESULTS, A CERTAIN PERCENTAGE OF PEOPLE ARE GOING TO BE BENEFITED. THERE ARE GOING TO BE A CERTAIN PERCENTAGE THAT ARE TOTALLY UNIDENTIFIABLE THAT ARE GOING TO BE JUST AS BAD OR WORSE AFTER SURGERY, AND HE DID NOT WISH TO TAKE THE CHANCE OF BEING IN THAT CATEGORY.- AND I'LL HONOR THAT -- I CANNOT SAY THAT HE WOULD BE IMPROVED WITH THE HARDY V. ABELL-HOWELL COMPANY PAGE 5 SURGERY. I CAN'T --- I THINK HE POSSIBLY WOULD, BUT I CAN'T SAY THAT HE WOULD BE. (Ex. 0, p. 11, 11. 8-24) Dr. Hermann, as of June 24, 1988, also testified that claimant's status at that time was as follows: A HE DESCRIBED THE GENERAL AREA, AND THEN I USED A PIN WHEEL TO STICK HIM, AND THERE DEFINITELY IS NUMBNESS AND DECREASED SENSATION. THE MAXIMUM THAT HE CAN WALK IS FOUR TO SIX BLOCKS, AND THAT IS AS FAR AS HE CAN GO WITHOUT CAUSING SEVERE PAIN IN THE BACK AND HAVING MORE SEVERE BACK LASH PROBLEMS THAT PUT HIM BACK IN BED. HE IS UNABLE TO SIT FOR ANY LENGTH OF TIME BECAUSE, AGAIN, DISCOMFORT BUILDS UP IN THE BACK AND THE LEG. I THINK IN ASKING HIM, I BELIEVE HE STATES THAT ABOUT TWENTY TO THIRTY MINUTES IS THE MAXIMUM THAT HE CAN SIT IN COMFORT, AND ABOUT THE SAME LENGTH OF TIME IN STANDING. SO HE HAS TO CHANGE POSITIONS, KEEP MOVING. LYING DOWN IS THE ONLY POSITION THAT IS REALLY COMFORTABLE, AND THAT IS NOT ALWAYS COMFORTABLE. Q DID YOU PRESCRIBE, DOCTOR, OR DO YOU HAVE AN OPINION AS TO WHAT PERMANENT RESTRICTIONS OF ACTIVITY YOU WOULD IMPOSE UPON ALLEN HARDY TODAY AS A RESULT OF HIS IMPAIRMENT? A HIS RESTRICTIONS ARE TO AVOID ANY BENDING, STOOPING OR LIFTING. HE IS TO AVOID AUTOMOBILES, OR VEHICLES OF ANY KIND THAT -- BECAUSE THEY HAVE A TENDENCY TO JIGGLE AND AGGRAVATE THE PAIN. HE IS TO WALK WITHIN LIMITS, AND AS LONG AS HE CAN -- FOR EXAMPLE, IF HE CAN WALK SIX BLOCKS NOW WITHOUT A GREAT DEAL OF DISCOMFORT, OR WITHOUT CAUSING TOO MUCH PROBLEM, HE SHOULD CONTINUE THAT, AND THEN PERIODICALLY TRY TO EXTEND IT BY A HALF A BLOCK OR A BLOCK TO BUILD UP VERY GRADUALLY, IF POSSIBLE. HE IS NOT TO DO ANYTHING THAT RESULTS IN PAIN -- INCREASED PAIN AND DISABILITY, AND THE NEED TO GO TO BED THE NEXT DAY. AND IT'S A LOT BY TRIAL AND ERROR, BUT IT'S MOSTLY NO BENDING, NO STOOPING, NO LIFTING, AND WALK WITHIN THE LIMITS THAT HE HAS DISCOVERED. (Ex. 0, p. 15, 1. 4 to p. 16, 1. 10) Dr. Hermann, in his deposition on June 22, 1987, rated claimant for a permanent partial disability. Dr. Hermann opined as follows: Q DOCTOR, ARE YOU IN A POSITION, BASED UPON YOUR PROLONGED TREATMENT OF MR. HARDY, AND YOUR EXAMINATION AND EVALUATION OF HIS CONDITION, ABLE TO ASSIGN A PERMANENT PHYSICAL IMPAIRMENT RATING TO MR. HARDY AS IT RELATES TO THE RESIDUALS OF THE FALL AT THE HORMEL FACILITY? A I COULD, YES. HARDY V. ABELL-HOWELL COMPANY PAGE 6 Q WHAT WOULD THAT IMPAIRMENT RATING BE, DOCTOR? A I WOULD CONSIDER HIM TWENTY-FIVE TO THIRTY PERCENT PERMANENT PARTIAL DISABILITY. Q AND IS THAT RELATED TO THE BACK ONLY, DOCTOR? A THAT'S MAINLY THE WHOLE OR -- NORMALLY, IF WE RATE -- IF I RATE TO THE BACK, WHY, THAT IS THE MAN AS A WHOLE. Q HOW MUCH OF THAT PERCENTAGE, DOCTOR, IS RELATED TO THE BACK? A ALL OF IT. (Ex. P, p. 35, 1. 6-21) Claimant was evaluated by David J. Boarini, M.D., a neurosurgeon, pursuant to a request by defendants. In his.letter of May 29, 1987, Dr. Boarini writes in relevant portion: Upon examination, the patient has a normal gait. He HARDY V. ABELL-HOWELL COMPANY PAGE 7 has some limitation in the range of motion of the lower back which is slight but in all directions. Neurological exam demonstrates normal strength in the lower extremities. He has normal sensation except for the right lateral calf which is probably related to his fracture. Knee reflexes are symmetric and physiologic while ankle reflexes are bilaterally absent. Straight leg raising is negative bilaterally. I think this gentleman has low-back pain due to his osteoarthritis but this was aggravated by his fall. I don't think I can make any further statement in regard to his disability rating, based on his lower extremity injury. I certainly would not disagree with it. Based upon his back difficulties and his limited range of motion, I would give him a 3% disability of the whole man, based purely on his back trouble. Although strictly speaking, I would not limit him from returning to work as an iron worker, symptomatically I don't think he will tolerate that. Probably some job with no more than 50 pounds of lifting and a very limited amount of bending would be more appropriate. Dr. Boarini conducted a follow-up examination of claimant on November 19, 1987. In his letter of December 2, 1987, Dr. Boarini also relates in part: Upon examination, the patient has a markedly limited range of motion of the back in all directions and quite an antalgic gait. Straight leg raising is positive on the right. He has clear-cut hypesthesia in both the L-5 and S-1 distributions on the right, as well as decreased strength of the extensors on the right foot and toes. Knee reflexes are 2 by 2 while ankle reflexes are trace bilaterally. I think Mr. Hardy has had considerable worsening in his condition since his last. examination. He clearly has radicular signs and symptoms at this time. I told him I think he needs a myelogram and is certainly a surgical candidate. He apparently no longer lives in this state but I assured him a neurosurgeon can be found locally who would be able to take care of him. For purposes of evaluation, claimant was seen by David L. Cunningham, M.D., pursuant to a request by defendants. He writes in his office notes for December of 1987: Today on examination the patient is lying quietly on the examination table and exhibits straight leg raising pain which seems to be quite severe to about 300 bilaterally however in a sitting position with his attention diverted full extension of either leg is possible without any evidence of discomfort. He has positive actual compression test when pressing on the top of the head and exhibits pain in the lumbar area as well as in the cervical area. He has a stocking type hypothesia of non-anatomical distribution over the HARDY V. ABELL-HOWELL COMPANY PAGE 8 right lower extremity to about the level of the umbilicus. Flexion and extension of the lumbar spine are limited to about 20% of normal limits. Deep tendon reflexes are present and symmetrical and motor function is normal. The patient can heal and toe walk without any difficulty and can stand on either foot and bend at the knee. I am going to obtain an MRI scan of his lumbar spine for further evaluation however at this point I feel that this man has definite [sic] amplification of symptoms with little or no objective findings to substantiate his complaints referable to to [sic] his low back and lower extremities. Dr. Cunningham also writes in his notes for December 31, 1987: Allen Hardy was seen in the office on the 31st of December. I relayed to him that the MRI scan shows an apparent bulging or ruptured disc at the L4 level protruding toward the right side plus some midline posterior bulging of the L2,3 intervertebral disc. This was reported by Neuro-Radiologist Dr. Halford. I told the man I feel he needs outpatient lumbar myelography to further clarify his condition and to determine whether or not he might able [sic] to do some sort of useful work, however, he does not appear to be inclined to have this done at this time and says he wishes to go back to Dr. Hermann, who has also suggested myelography. I discussed on his initial visit whether or not he had ever had a vocational/ behavioral medicine workup and he said this has been on two or three occasions. If, however, is [sic] has not I would suggest such an evaluation by Dr. Greg Cates. Claimant was also seen by several vocational rehabilitation specialists. Elaine Platz, of the State of Missouri, determined claimant did not meet the criteria established by that state for rehabilitation. Claimant was also seen and evaluated by George Brian Paprocki, a specialist in diagnostic vocational evaluation. Mr. Paprocki interviewed claimant on August 27, 1987. Mr. Paprocki determined a significant factor in assessing claimantOs employability was claimant's " ... inability to work for a continuous period of time, eight hours was specified by Dr. Hermann [sic]." (Transcript, p. 102, 11. 15-17) Mr. Paprocki also determined: ... he [claimant] would not be able to be employed in some type of identifiable job, because of his limitations." (Tr., p. 107, 11. 15-17) Q. Based upon your evaluation and assessment of Mr. Hardy, and review of the medical material, and even best case scenario of surgery, do you have an opinion whether Mr. Hardy is now employable or at any time in the future can be employable in a competitive labor HARDY V. ABELL-HOWELL COMPANY PAGE 9 market? A. I don't believe he is. At this time he definitely is not because held be unable to sustain regular employment. And my understanding is that in the future with the best possible results of surgery, I don't believe that he would be able to go out into a particular line of work that's a sedentary unskilled, and take virtually any job that would be in that category, or cashier work and be able and compete successfully for any cashier job. I think you are talking about somebody who would have to have a very selective placement with an employer who would be accepting of his problems and willing to work with him. And the prospect of actually locating that type of employment, I think, would be fairly nil. Q. Did any of the skills that Mr. Hardy has acquired over his work life, do any of them transfer to sedentary type of work activity? A. No. No. Basically the skills would involve welding, and that's at least a medium physical exertion job from a lifting standpoint. If you could find a job that didn't require anything by the way of lifting, would require probably a continual bending or leaning forward, stooping, those type jobs just don't exist, at least not in any significant number. You may find some isolated position here or there. (Tr., p. 116, 11. 7-25 and p. 117, 11. 1-15) Claimant was also evaluated by H. Shelby Swain, MS, CIRS, rehabilitation consultant. This was done November 19, 1987 pursuant to defendants' request. Mr. Swain concluded and recommended the following: CONCLUSIONS: Mr. Hardy impressed this consultant as being sincere and no doubt was a good worker over a long period of time. He readily admitted to being somewhat depressed, partly because they had lost their home in Missouri, due to economic difficulties, and because he can not be as active as he would like to be or once was. It is this consultant's impression that perhaps Mr. Hardy has "given up" and has not tried very hard to find work, since he simply assumes that there is no work available to a person in his condition. This consultant did feel that both Mr. and Mrs. Hardy were extremely nice people who would much prefer that Mr. Hardy was employed in a good job. RECOMMENDATIONS: HARDY V. ABELL-HOWELL COMPANY PAGE 10 1. Perhaps the insurance company should consider having a vocational or rehabilitation agency in Memphis explore job possibilities for this individual. 2. Mr. Hardy should definitely consider obtaining his GED through adult education services if he is at all interested in trying to find employment. 3. Possibly, Mr. Hardy would benefit from a pain clinic setting. APPLICABLE LAW An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(l). Claimant has the burden of proving by a preponderance of the evidence that he received an injury on January 11, 1986 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). HARDY V. ABELL-HOWELL COMPANY PAGE 11 The claimant has the burden of proving by a preponderance of the evidence that the injury of January 11, 1986 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinions of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). An opinion of an expert based upon an incomplete history is not binding upon the commissioner, but must be weighed together with the other disclosed facts and circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867 (1965). The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. Burt, 247 Iowa 691, 73 N.W.2d 732 (1955). In regard to medical testimony, the commissioner is required to state the reasons on which testimony is accepted or rejected. Sondag, 220 N.W.2d 903 (1974). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257-Iowa 516, 133 N.W.2d 867. See also Musselman, 26 Iowa 352, 154 N.W.2d 128 (1967). If a claimant contends he has an industrial disability he has the burden of proving his injury results in an ailment extending beyond the scheduled loss. Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964). As a claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional disability is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). HARDY V. ABELL-HOWELL COMPANY PAGE 12 A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. This is so as impairment and disability are not synonymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the later to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial disability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial disability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985). Under the odd-lot doctrine, which was formally adopted by the Iowa Supreme Court in Guyton, supra, a worker becomes an odd-lot employee when an injury makes the worker incapable of obtaining employment in any well-known branch of the labor market. An odd-lot worker is thus totally disabled if the only services the worker can perform are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist. Id., citing Lee v. Minneapolis Street Railway Company, 230 Minn. 315, 320, 41 N.W.2d 433, 436 (1950). The rule of odd-lot allocates the burden of production of evidence. If the evidence of degree of obvious physical impairment, coupled with other facts such as claimant's mental capacity, education, training or age, places claimant prima facie HARDY V. ABELL-HOWELL COMPANY PAGE 13 in the odd-lot category, the burden should be on the employer to show that some kind of suitable work is regularly and continuously available to the claimant. Certainly in such a case it should not be enough to show that claimant is physically capable of performing light work and then round out the case for non-compensable by adding a presumption that light work is available. Guyton, 373 N.W.2d at 105. When a worker makes a prima facie case of total disability by producing substantial evidence that the worker is not employable in the competitive labor market, the burden to produce evidence of suitable employment shifts to the employer. If the employer fails to produce such evidence and the trier of fact finds the worker falls in the odd-lot category, the worker is entitled to a finding of total disability. Even under the odd-lot doctrine, the trier of fact is free to determine the weight and credibility of the evidence in determining whether the worker's burden of persuasion has been carried. Only in an exceptional case would evidence be sufficiently strong to compel a finding of total disability as a matter of law. Guyton, 373 N.W.2d at 106. The court went on to state: The commissioner did not in his analysis address any of the other factors to be considered in determining industrial disability. Industrial disability means reduced earning capacity. Bodily impairment is merely one factor in a gauging industrial disability. Other factors include the worker's age, intelligence, education, qualifications, experience, and the effect of the injury on the worker's ability to obtain suitable work. See Doerfer Division of CCA v. Nicol, 359 N.W.2d 428, 438 (Iowa 1984). When the combination of factors precludes the worker from obtaining regular employment to earn a living, the worker with only a partial functional disability has a total disability. See McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 192 Iowa 1980). In Diederich v. Tri-City R. Co., 219 Iowa 587, 258 N.W. 899 (1935) the court, addressing the issue of the meaning of disability stated: What is "permanent total disability"? Does this clause refer to "functional disability" or to "industrial disability"? For clearness we shall use the term "industrial disability" as referring to disability from carrying on a gainful occupation--inability to earn wages. By "functional disability" we shall refer to the disability to perform one or more of the physical movements which a normal human being can perform. .... It is obvious that "disability" here used cannot refer to mere "functional disability',... HARDY V. ABELL-HOWELL COMPANY PAGE 14 It is ... 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 terms of percentages of the total physical and mental ability of a normal man. .... ... [T]he Compensation law was passed for the purpose of compensating the working man when injured. The loss which this claimant suffered due to the injury which he received while in the employ of the company is the inability to carry on the work he was doing prior to the time of the injury, or any work which he could perform. This man at fifty-nine years of age, after thirty years as a street car motorman, with little education, cannot find or hold a position that would not require some manual labor, and, of course, due to the condition of his back, he cannot perform such work. To say that he might become a stenographer or a lawyer or a clerk or a bookkeeper is to suppose the impossible, for a fifty-nine-year old man, with no education, is not capable of securing or filling any such position. His disability may be only a HARDY V. ABELL-HOWELL COMPANY PAGE 15 twenty-five or thirty per cent disability compared with the one hundred per cent perfect man, but, from the standpoint of his ability to go back to work to earn a living for himself and his family, his disability is a total disability, for he is not able to again operate the street car and perform the work which the company demanded of him prior to the time of the accident. The basis of compensation is the weekly earnings of the injured employee at the time of the injury. Iowa Code section 85.36. Weekly earnings is defined in Iowa code section 85.36: Weekly earnings means gross salary, wages, or earnings of an employee to which such employee would have been entitled had he worked the customary hours for the full pay period in which he was injured, as regularly required by his employer for the work or employment for which he was employed,.... Section 85.36 also provides various methods of computing weekly earnings depending upon the type of earnings and employment. If an employee is paid on a weekly basis, the weekly gross earnings shall be the basis of the compensation. Section 85.36(l), Code of Iowa. If an employee is paid on a daily basis or hourly basis or by output, the weekly earnings are computed by dividing by thirteen the earnings over the thirteen week period prior to the work injury. Section 85.36(6), Code of Iowa. ANALYSIS Claimant has met his burden of proving there is a causal connection between the fall which claimant sustained on January 11, 1986 and the disability on which he now bases his claim. The medical testimony of Dr. Hermann supports a direct causal connection. Furthermore, there is no evidence to indicate claimant had ever had back problems prior to the date of the injury, or that claimant was incapable of performing his job duties prior to the January eleventh date. Claimant has also established he has an impairment to the body as a whole. Therefore, an industrial disability has been sustained. Physicians for both sides agree claimant has a functional impairment. They disagree as to the extent of the functional impairment. More weight should be accorded the treating physician. The treating physician for claimant is a board certified orthopedic surgeon. Dr. Hermann assessed a 25 to 30 percent functional impairment of the body as a whole. This rating was based solely on claimant's back injury. However, the impairment rating was not calculated according to the Guides to the Evaluation of Permanent Impairment by the AMA. Dr. Hermann calculated the impairment rating as follows: Q DOCTOR, IOD LIKE TO GO BACK TO THE ASSIGNMENT THE PERMANENT PHYSICAL IMPAIRMENT ASSIGNMENT THAT YOU GAVE TO MR. HARDY'S BACK OF TWENTY-FIVE PERCENT. HARDY V. ABELL-HOWELL COMPANY PAGE 16 Q HOW IS THAT -- IS THAT BASED SOLELY UPON THE AMERICAN MEDICAL ASSOCIATION, OR THE ORTHOPEDIC GUIDE? OR HOW DID YOU ARRIVE AT THAT? A ORDINARILY, WITH A BACK THAT IS OPERATED OR INJURED, AND HAS THE EQUIVALENT INJURY OF SURGERY, THE SAME RESTRICTION AS SURGERY, IF IT HAS A GOOD RESULT, WE NORMALLY CONSIDER ABOUT A TWENTY PERCENT DISABILITY BECAUSE OF THE INJURY -- BECAUSE OF THE INSULT OF THE SURGERY, ET CETERA, ET CETERA. IN TRYING TO CORRELATE THAT WITH MR. HARDY, WHO HAS A PROBLEM THAT IS NOT COMMENSURATE WITH A GOOD RESULT FROM SURGERY, OR A GOOD RESULT FOLLOWING INJURY, HE STILL -- HE DOES HAVE SEQUELA, HE HAS RADICULOPATHY, THE PAIN RADIATING INTO THE LEGS. HE HAS THE PAIN WHEN HE TRIES TO LIFT OR TRIES TO STAND. THAT THEN RAISES IT TO TWENTY-FIVE TO THIRTY PERCENT, BECAUSE OF THE SEQUELA THAT HE DOES HAVE. THAT'S THE WAY I WOULD RATE IT, OR WHY I RATED HIM THAT WAY. Q DOES THIS PERMANENT PHYSICAL IMPAIRMENT OF MR. HARDYOS BACK, DOCTOR, PRECLUDE HIM FROM ENGAGING ONE HUNDRED PERCENT IN THE WORK THAT HE FORMERLY ENGAGED IN AS AN IRON WORKER? A YES. YES, IT DOES. (Ex. P, p. 40, 11. 7-25) One of defendants' physicians, Dr. Boarini, a neurologist, not an orthopedic surgeon, assessed a three percent impairment of the whole man based on the back alone. Dr. Boarini did not believe claimant would be able to handle returning to his position as an ironworker. This physician only saw claimant on two occasions. Both visits were for purposes of examination and evaluation only. Dr. Boarini was not the treating physician. The second of defendants' physicians, Dr. Cunningham, neglected to discuss an impairment rating. He did find evidence of a ruptured disk at the L-4 level. Defendants assert that any functional impairment rating assessed by claimant's physician must be discredited because claimant refuses to submit to an epidural block or to a laminectomy. Defendants argue claimant's refusal is subjective and unreasonable based upon unfounded fears. The undersigned finds otherwise. Dr. Hermann could not state claimant's condition would improve if surgery was performed. Dr. Hermann stated some conditions worsened after surgery. Even with surgical intervention, claimant would not be able to return to his position as an ironworker. Claimant testified he had seen news accounts on the epidural block and he had spoken to others who had had the laminectomy. From both sources, claimant had received negative view points. Therefore, it would not be unreasonable for claimant to refuse surgery. HARDY V. ABELL-HOWELL COMPANY PAGE 17 While claimant asserts the.applicability of the odd-lot doctrine, it is concluded that whether or not claimant is an odd-lot employee under Guyton is irrelevant to this case as the evidence presented establishes claimant is permanently and totally disabled under the principles recited in Diederich. Dr. Hermann reported claimant is to avoid all bending, stooping or lifting. Claimant is to avoid riding in vehicles. He is unable to sit for more than 20 or 30 minutes. Claimant is unable to walk more than six blocks. Claimant is unable to stand for more than 20 minutes. Claimant is under lifting restrictions. Claimant is 57 years old and was 55 at the time of his injury. Claimant's work history is primarily that of a laborer which required a sustained physical effort on his part. Clearly, as a result of his injuries, claimant has been precluded from this type of employment. claimant has an eleventh grade education. Mr. Paprocki does not believe claimant is functioning even on that level. Further education appears remote. Claimant's current skills, including welding, do not transfer to sedentary type jobs. Besides, claimant is incapable of sitting or standing beyond 30 minutes. He is unable to work an eight hour shift. Claimant's limitations are clearly a result of his injuries. Claimant has relocated. Yet, his relocation will not enhance his employability since his employability is not directly related to the area in which he lives. Claimant has established to the satisfaction of the undersigned that he is capable of working for only 20 to 30 minutes before he is required to lie down and rest. Claimant may not have the mental capacities to complete retraining and/or further his education. Claimant's age is working against any further academic endeavors. Given the above, claimant has established that he is permanently and totally disabled from employment during the period of his disability. See: Iowa code section 85.34(3). It is unnecessary to further evaluate claimant's status or disability under the Guyton test. However, even if the factors of Guyton are applicable, claimant is a worker incapable of securing employment in any well-known blanch of the labor market. Claimant is totally disabled under Guyton in that the only services claimant can perform are so limited in quality, dependability, or quantity that a reasonably stable labor market for him does not exist. Also in dispute, is claimant's entitlement to healing period benefits. Section 85.34(l) of the Iowa Code defines healing period as follows: If an employee has suffered a personal injury causing permanent partial disability for which compensation is payable as provided in subsection 2 of this section, the employer shall pay to the employee compensation for a healing period, as provided in section 85.37, beginning on the date of injury, and until the employee has returned to work or it is medically indicated that significant improvement from the injury is not HARDY V. ABELL-HOWELL COMPANY PAGE 18 anticipated or until the employee is medically capable of returning to employment substantially similar to the employment in which the employee was engaged at the time of injury, whichever occurs first. (Emphasis added). Because this case involves permanent total disability benefits, the undersigned does not need to address the issue of healing period benefits. Also at issue is claimant's entitlement to certain medical benefits under Iowa Code section 85.27. Claimant is entitled to be reimbursed for pharmacy expenditures in the sum of $317.97. Claimant is also entitled to be reimbursed for mileage as follows: 1-18-86 to 7-1-86 2677.5 miles x .24 = $642.60 plus 7-1-86 to 7-16-88 2448 miles x .21 = $514.08 Total $1,156.68 The final issue for disposition is the appropriate rate of compensation. At the time of the injury claimant was married HARDY V. ABELL-HOWELL COMPANY PAGE 19 with two exemptions. Defendants eventually paid claimant at the rate of $270.76 per week for 61 weeks. However, initially, defendants calculated the rate as follows: Started 7/23/85 w/e 7/27/85 496.00 came back 10/16/85 w/e 10/19/85 120.00 w/e 10/26/85 w/e 11/2/85 w/e 11/9/85 60.00 w/e 11/16/85 496.00 w/e 11/23/85 620.00 w/e 11/30/85 372.00 w/e 12/7/85 620.00 w/e 12/14/85 651.00 w/e 12/21/85 372.00 w/e 12/28/85 201.50 w/e 1/4/86 w/e 1/11/86 209.25 Claimant disputes this method of calculation. Claimant contends the correct weekly benefit rate for the claimant is $288.87. He calculates this rate as follows: ...There were five weeks of the thirteen weeks prior to the date of injury at Abell-Howe that did not represent completed weeks of employment. Therefore, the five prior weeks of work had to be considered. This employment was with Chilstrom Wayne Gateway. See the following for Claimant's calculation of the appropriate rate. Week Ending Employer Amount 8/22/85 Chilstrom $544 8/29/85 Chilstrom $584 (Exhibit 1) 9/5/85 Chilstrom $528 9/12/85 Chilstrom $512 9/19/85 Chilstrom $416 10/19/85 Abell-Howe Co. $120 11/16/85 Abell-Howe Co. $496 11/23/85 Abell-Howe Co. $620 11/30/85 Abell-Howe Co. $372 12/7/85 Abell-Howe Co. $620 12/14/85 Abell-Howe Co. $651 12/21/85 Abell-Howe Co. $372 12/28/85 Abell-Howe Co. $201.50 1/11/86 Abell-Howe Co. $209.25 TOTAL for 13 weeks $6,185.75 Average Weekly Gross Earnings: $ 475.83 ($6,185.75 divided by 13) Weekly Benefit Rate for Gross Weekly Earnings of $ 475.83 with 2 exemptions: $ 288.87 HARDY V. ABELL-HOWELL COMPANY PAGE 20 The following five weeks of the 13 weeks prior to Claimant's injuries are not representative weeks for the following reasons: a. Claimant was laid off from Abell-Howe because of no work for weeks ending 10/26/85, 11/2/85, and 1/4/86. b. Claimant worked only part of one day during the week ending 11/9/85 ($60 earnings) because of work missed due to steel poisoning at work. c. The week ending 10/19/85 was only a partially completed week with earnings of $120. Claimant worked only part of the week ending 10/19/85 because of no work from the employer. Because of the foregoing, the five weeks prior thereto had to be considered. This was work performed by Allen Hardy at Chilstrom. The check stubs from Chilstrom and Abell-Howe are attached hereto. The undersigned finds the correct method of calculation is as follows: Add all weekly earnings for the ten weeks worked. Divide by the number of weeks for which there are earnings. $ 496.00 120.00 60.00 496.00 620.00 372.00 620.00 651.00 372.00 201.50 $4,008.50 divided by 10 = $400.85 average weekly earnings. Use the figure for the average weekly earnings and compute as follows: Started 7/23/85 w/e 7/27/85 496.00 came back 10/16/85 w/e 10/19/85 120.00 w/e 10/26/85 400.85 w/e 11/2/85 400.85 w/e 11/9/85 60.00 w/e 11/16/85 496.00 w/e 11/23/85 620.00 w/e 11/30/85 372.00 w/e 12/7/85 620.00 w/e 12/14/85 651.00 w/e 12/21/85 372.00 w/e 12/28/85 201.50 HARDY V. ABELL-HOWELL COMPANY PAGE 21 w/e 1/4/86 400.85 w/e 1/11/86 400.85 5,211.05 divided by 13 = $400.85 According to the benefit schedule, claimant is married with two exemptions. His weekly compensation rate is $248.87 per week. FINDINGS OF FACT AND CONCLUSIONS OF LAW WHEREFORE, based on the evidence presented and the principles of law previously stated, the following findings of fact and conclusions of law are made: FINDING 1. On January 11, 1986, claimant received an injury while working for defendants. FINDING 2. As a result of the injury, claimant now has a permanent functional impairment of 25 to 30 percent of the body as a whole. CONCLUSION A. Claimant- has met his burden of proving his present back injury is causally connected to his injury on January 11, 1986. FINDING 3. Claimant is a 57 year old individual.who went through the eleventh grade in high school. FINDING 4. Claimant has spent most of his working career engaged in highly physical occupations. CONCLUSION B. As a result of his injury on January 11, 1986, claimant has a permanent total disability. FINDING 5. Claimant's rate of weekly compensation is $248.87 per week. FINDING 6. Claimant has incurred medical expenses and mileage as a result of the January 11, 1986 injury. CONCLUSIONS C. Claimant is entitled to have the following paid by defendants: pharmacy expenditures $ 317.97 mileage 1,156.68 Total $1,474.65 ORDER THEREFORE, defendants are to pay unto claimant weekly benefits for the duration of claimant's period of permanent total disability with said benefits commencing on January 11, 1986 and running continuously with the exception of twelve (12) days when claimant attempted to return to work at a rate of two hundred forty-eight and 87/100 dollars ($248.87) per week. Defendants are also to pay unto claimant mileage and pharmacy charges in the amount of one thousand four hundred HARDY V. ABELL-HOWELL COMPANY PAGE 22 seventy-four and 65/100 dollars ($1,474.65). Defendants shall take credit for benefits previously paid claimant. Accrued benefits are to be made in a lump sum together with statutory interest at the rate of ten percent (10%) per year pursuant to section 85.30, Iowa code, as amended. Costs are taxed to defendants pursuant to Division of Industrial Services Rule 343-4.33 which shall include the following costs which have been advanced by claimant: Amount Northeast Missouri Orthopedic Associates, P.C.records 15.00 Smart Corp. Grim-Smith Hospital Med records 35.25 Edward Hermann, D.O. - deposition Paid $500.00 150.00 Susan Kirkpatrick-Certified Court HARDY V. ABELL-HOWELL COMPANY PAGE 23 Reporter - Hermann Deposition 308.40 G. Brian Paprocki - vocational 150.00 Dr. Hermann - deposition 150.00 Susan Richardson, Court Reporter 185.60 Total $994.25 Defendants shall file a claim activity report upon payment of this award. Signed and filed this 23rd day of November, 1988. MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Dennis W. Emanuel Attorney at Law 112 N. Court P. O. Box 601 Ottumwa, Iowa 52501 Mr. Walter F. Johnson Attorney at Law 111 W. Second St. P. O. Box 716 Ottumwa, Iowa 52501 1402.60; 1803 Filed November 23, 1988 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER ALLEN F. HARDY, Claimant, File No. 814126 vs. A R B T T R A T I O N ABELL-HOWELL COMPANY, D E C I S I O N Employer, and LIBERTY MUTUAL INSURANCE CO., Insurance Carrier, Defendants. 1402.60 As a result of the January 11, 1986 injury, claimant is entitled to the reimbursement of reasonable medical expenses which he has incurred. 1803 Claimant awarded permanent total disability subsequent to injury resulting in functional impairment of the body as a whole.