BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROBERT A. SLIFER, JR., Claimant, VS. File No. 814202 SWIFT INDEPENDENT PACKING COMPANY, A R B I T R A T I 0 N Employer, D E C I S I 0 N and TRANSPORTATION INSURANCE COMPANY/CNA Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration wherein Robert A. Slifer, Jr., seeks additional compensation for permanent partial disability. The case was heard and fully submitted on November 2, 1988 at Fort Dodge, Iowa. The record in the proceeding consists of claimant's exhibit A, defendants' exhibits 1 through 11, and the testimony of claimant, Elmer Freese, and John C. Jontz. ISSUES The issues presented by the parties for determination are whether claimant sustained an injury on December 13, 1985,.which arose out of and in the course of employment with the employer; whether the alleged injury is a cause of temporary or permanent disability; and, determination of claimant's entitlement, if any, to compensation for permanent partial disability. It was stipulated by the parties that, in the event of an award, claimant's healing period entitlement commences on December 14, 1985 and runs through July 15, 1986. It was stipulated that any compensation for permanent partial disability should be payable commencing, July 16, 1986 and that the rate of compensation is $240.74 per week. It was further stipulated that defendants are entitled to credit for 29 and 5/7 weeks of healing period compensation previously paid and for 125 weeks of permanent partial disability compensation. SLIFER V. SWIFT INDEPENDENT PACKING COMPANY Page 2 SUMMARY OF EVIDENCE The following is a summary of evidence presented in this case. Of all the evidence received at the hearing, only that considered most pertinent to this decision is discussed. Conclusions about what the evidence showed are inevitable with any summarization. The conclusions in the following summary should be considered to be preliminary findings of fact. Robert A. Slifer, Jr., is a 35-year-old high school graduate. Slifer has worked in a factory, at a grain elevator and has performed odd jobs. Slifer has been employed by Swift Independent Packing Company since 1974 where he has performed a multitude of different jobs. Claimant denied having sustained any injuries to his back prior to the commencement of his employment with Swift. Slifer engaged in sports when he was in high school and has since engaged in activities such as softball, flag football, hunting, fishing and horseback riding. Slifer testified that, on December 13, 1985, he was coming down off a ladder backwards when his left foot stepped onto a piece of fat on the floor and slid causing him to do "the splits." Claimant stated that he felt pain in his low back immediately, but did not think too much about it and went on to another job. He stated that the pain kept increasing so he contacted the nurse who eventually sent him to E. L. Keyser, M.D. Claimant stated that Dr. Keyser examined him and found nothing, but took him off work for a week. Claimant stated that, when he did not recover, a CT scan was performed which was interpreted as showing a ruptured disc. Claimant was referred to Thomas A. Carlstrom, M.D. After conservative treatment and diagnostic testing, claimant underwent lumbar laminectomy surgery on March 7, 1986 at which time it was found that claimant had herniated discs at the L4,5 and L5,Sl levels of his spine. The free fragments were removed and the discs were curetted out in order to decompress the nerve roots (exhibit 1, page 93). On May 27, 1986, Dr. Carlstrom indicated that claimant would be a poor candidate for returning to work requiring heavy exertion. On July 16, 1986, Dr. Carlstrom indicated that claimant had attained maximum benefits of healing and rated his permanent impairment at 8-10 percent of the body as a whole (exhibit 1, page 20). Thereafter, on July 22, 1986, Dr. Carlstrom recommended restrictions upon claimant's activities including avoidance of heavy lifting, a maximum lifting limit of 35-40 pounds, avoidance of repetitive lifting and avoidance of prolonged sitting or standing (exhibit 1, page 19). On September 25, 1986, however, after observing videotapes of claimant engaging in trail riding activities, Dr. Carlstrom changed his assessment to state that claimant could work without restrictions and reduced the impairment rating to five percent of the body as a whole (exhibit 1, page 15). SLIFER V. SWIFT INDEPENDENT PACKING COMPANY Page 3 Following recuperation from surgery, claimant exhibited a great deal of difficulty in making a successful resumption of employment. Claimant was evaluated by Mark P. Brodersen, M.D., who concluded that claimant had a physical impairment of 20 percent of the person due to persistent pain and the surgical proceedings. Dr. Brodersen, who also examined the depictions of claimant's horseback riding, stated that the fact that claimant engaged in those activities is not completely conclusive since bales of hay can vary in weight, with some being within the weight limits initially suggested by Dr. Carlstrom, and also since the activities were done for short periods of time rather than on an all day, every day basis. Dr. Brodersen recommended that claimant avoid lifting objects on a regular basis which weigh more than 40 pounds and that he also avoid repetitive bending, lifting and twisting (exhibit 1, pages 1-4). Claimant was also evaluated by John R. Walker, M.D., who concluded that claimant presently had a temporary disability of 65 percent, but that it would be reducible to 27 percent with further surgical treatment. He recommended that claimant restrict his activities. Claimant was gainfully employed on a full-time basis at the time of hearing performing work similar to, but lighter than, that which he had performed at the time of injury. He stated that he has bid into the lighter jobs and that doing so has reduced his income. Claimant complained of continuing residual pain and difficulties. The record contains five video cassettes and numerous photographs which demonstrate that claimant is capable of performing activities which are within the range of activities that would have been contemplated by Dr. Carlstrom's original restrictions. Claimant did not deny being capable of performing activities of the nature initially recommended by Dr. Carlstrom or those shown in the video cassette or photographic depictions. Claimant has sought additional care and further surgery has been identified as a possible course of conduct, but only Dr. Walker recommends further surgery at this time. APPLICABLE LAW AND ANALYSIS Claimant has the burden of proving by a preponderance of the evidence that he received an injury on December 13, 1985 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d .128 (1967). SLIFER V. SWIFT INDEPENDENT PACKING COMPANY Page 4 Claimant's appearance and demeanor was observed when he testified. All the records in the case were considered. It is determined that claimant did injure his back when he stepped from the ladder on December 13, 1985 as he testified, despite the existence of apparent inconsistencies found in some of the medical reports and records. It is therefore determined that claimant sustained an injury to his back on December 13, 1985 which arose out of and in the course of his employment with Swift Independent Packing Company. The claimant has the burden of proving by a preponderance of the evidence that the injury of December 13, 1985 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co. , 261 Iowa 352, 154 N.W. d@128 (1967). Dr. Carlstrom indicated that the incident of stepping down at work which claimant described to him was a likely cause for his problems (exhibit 1, page 26). Dr. Walker and Dr. Brodersen agree on the issue of causation (exhibit 1, page 83; exhibit 1, page 1). While defense counsel speculates upon other possible sources of injury or causes of injury, the evidence in the case fails to support the speculation. It is therefore determined that the injury of doing "the splits" when stepping off a ladder and onto a piece of fat on the floor is a proximate cause of the herniated discs which were found in claimant's back at the time of surgery and of the resulting permanent partial disability affecting claimant's back at the present time. While there is some evidence in the record that claimant may have previously injured his back, there is no showing that any prior back injury had produced any permanent disability or limitations which preexisted December 13, 1985. Accordingly, it is determined that all of claimant's current disability was proximately caused by the December 13, 1985 injury. SLIFER V. SWIFT INDEPENDENT PACKING COMPANY Page 5 As claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 257 (1963). Claimant has undergone surgery at two levels of his spine. He exhibits complaints of continuing pain. He exhibits neurological changes in his left leg. Much of the defense of this case deals with claimant's activities at his home and while attending a trail ride. Upon observing all the photographs and videotapes together with all the other evidence in the record, it is determined that the initial evaluation made by Dr. Carlstrom and the evaluation made by Dr. Brodersen are most fairly representative of claimant's actual physical status. As indicated by Dr. Brodersen, bales of hay can vary in weight with many weighing less than 35 pounds. The ability to engage in activities at one's own pace and in a manner which an individual finds to be relatively comfortable is much different from engaging in all day, every day types of activities which are performed at a competitive pace. Claimant has resumed employment in positions that are appropriate for his physical limitations. The employer's action in making work available to him within his limitations has avoided claimant from experiencing what could have otherwise been a very substantial wage loss. The 25 percent permanent partial disability which defendants had voluntarily chosen to pay is appropriate and fairly represents claimant's permanent partial disability. Since claimant prevailed upon the issue of determining whether or not his injury arose out of and in the course of employment, claimant is entitled to recover costs, despite the fact that he has been fully paid for all permanent partial disability to which he is entitled. Establishing liability is necessary to ensure rights for future medical care and to review-reopen. FINDINGS OF FACT 1. Robert A. Slifer, Jr., injured his low back on December 13, 1985 when he stepped off a ladder onto a piece of fat. SLIFER V. SWIFT INDEPENDENT PACKING COMPANY Page 6 2. That injury was a substantial factor in producing two herniated lumbar discs in his low back and also in producing the residual physical impairment which exists regarding his low back. 3. Claimant has a 10-20 percent impairment of his low back and is restricted in his activities to include lifting of not more than 40 pounds on a regular basis and avoidance of repetitive motions involving his low back, all as indicated by Dr. Carlstrom in his initial report and by Dr. Brodersen. 4. The activities shown in the video cassettes are not inconsistent with the restrictions initially indicated by Dr. Carlstrom or those which were issued by Dr. Brodersen. 5. Claimant has sustained a 25 percent loss of his earning capacity as a result of the injuries he sustained on December 13, 1985. 6. There is no evidence in the record which establishes that claimant had any permanent disability affecting his low back prior to December 13, 1985. CONCLUSIONS OF LAW 1.This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. Robert A. Slifer, Jr., sustained an injury to his low back on December 13, 1985 which arose out of and in the course of his employment with Swift Independent Packing Company. 3.The injury was followed by a period of recuperation and healing for which claimant was paid 29 and 5/7 weeks of healing period compensation, an amount stipulated to be correct. 4. Claimant has a 25 percent permanent,partial disability of the body as a whole which entitles him to receive 125 weeks of compensation for permanent partial disability. 5. Claimant is entitled to recover the costs of this.action since claimant prevailed on the disputed issue of liability. ORDER IT IS THEREFORE ORDERED that defendants pay claimant one hundred twenty-five (125) weeks of compensation for permanent partial disability at the stipulated rate of two hundred forty and 74/100 dollars ($240.74) per week payable commencing July 16, 1986. Defendants are entitled to full credit for all amounts previously paid. SLIFER V. SWIFT INDEPENDENT PACKING COMPANY Page 7 IT IS FURTHER ORDERED that defendants pay the costs of this proceeding pursuant to Division of Industrial Services Rule 343-4.33. IT IS FURTHER ORDERED that defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 27th day of June, 1989. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Patrick L. Wilson Attorney at Law 208 Masonic Temple Marshalltown, Iowa 50158 Mr. Michael R. Hoffmann Attorney at Law 500 Liberty Building Des Moines, Iowa 50309 51402.20, 51402.30 51803, 2907 Filed June 27, 1989 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROBERT A. SLIFER, JR., Claimant, VS. File No. 814202 SWIFT INDEPENDENT PACKING COMPANY, A R B I T R A T I 0 N Employer, D E C I S I 0 N and TRANSPORTATION INSURANCE COMPANY/CNA Insurance Carrier, Defendants. 51402.20, 51402.30 Claimant's appearance and demeanor were observed as he testified and compared with the other evidence in the record. Claimant's description of the injurious event was found to be correct. 51803 Claimant, who had a lumbar laminectomy at two levels of his spine, was awarded 25 percent permanent partial disability where he was able to return to work substantially similar to that he engaged in at the time of injury with the same employer. 2907 Where defendants denied liability, costs were awarded to claimant despite the fact that defendants had previously paid the full amount of the award voluntarily prior to hearing. BEFORE THE IOWA INDUSTRIAL COMMISSIONER NORMAN THOMPSON, Claimant, File No. 814236 vs. R E V I E W - DES MOINES WATER WORKS, R E O P E N I N G Employer, D E C I S I O N and F I L E D UNITED STATES FIDELITY AND GUARANTY, FEB 15 1990 Insurance Carrier, INDUSTRIAL SERVICES Defendants. INTRODUCTION This is a proceeding in review-reopening brought by Norman Thompson against his employer, Des Moines Water Works, and its insurance carrier, United States Fidelity and Guaranty. The case was heard and fully submitted at Des Moines, Iowa on August 30, 1989. The record in the proceeding consists of testimony from Eriks H. Walter, Betty Hannon, Norman Thompson, William Thompson, Larry Soloman and William Lloyd, Jr. The record also contains claimant's exhibits 1 through 4 and defendants' exhibits A, B, C, E, F, G and H. Official notice was taken of the settlement documents in the agency file dealing with the Agreement for Settlement which was approved November 10, 1987. ISSUES Claimant seeks additional compensation based upon an injury that occurred on December 11, 1985. The disputes in this case center upon determining whether or not claimant's cervical condition, for which he has undergone surgery, was proximately caused by the December 11, 1985 injury and whether there has been a change of condition to permit reopening of the Agreement for Settlement. It was stipulated that in the event of an award, claimant's entitlement for healing period dealing with the cervical condition runs from May 5, 1988 to August 23, 1988. Claimant was paid 16 weeks of temporary total disability compensation at the stipulated rate of $287.54 per week prior to hearing, credit for which is stipulated. An issue also exists regarding whether defendants are entitled to credit against any award made herein for permanent partial disability compensation paid under the 1987 settlement agreement. SUMMARY OF EVIDENCE The following is a summary of evidence presented in this case. Only the evidence most pertinent to this decision is discussed, but all of the evidence received at the hearing was considered in arriving at this decision. Conclusions about what the evidence showed are inevitable with any summarization. The conclusions in the following summary should be considered to be preliminary findings of fact. Norman Thompson is now a 60-year-old man with an eighth grade education which he completed at the age of 16. He stated that he was held back and had difficulty with school. After leaving school, he worked in factories and the meat packing industry. He helped his uncle performing sanitation work and junking cars. He served in the Army on two separate occasions. He was wounded in Korea for which he receives a monthly disability payment from the Veterans Administration. Claimant commenced employment with the Des Moines Water Works on March 23, 1954 and has been employed there continually ever since. He started as a laborer and in approximately ten years became a machine operator. At one time, machine or equipment operators did not perform physical labor, but in recent years there was a change in policy which requires them to work with the laborers whenever actual machine work is not needed. Claimant estimated that 45 percent of his time on the job, prior to injury, was performing physical labor. Thompson's past medical history prior to 1985 is remarkable for low back problems and a finger injury. He has also had other medical problems which do not appear particularly pertinent to this proceeding. On or about November 13, 1985 claimant and his supervisors thought he was having a heart attack at work and he was taken to Lutheran Hospital. After appropriate testing, it was determined that his chest pains were not from a cardiac problem. Claimant saw Joshua Kimelman, D.O., a Des Moines orthopaedic surgeon, who found claimant to have a cervical radiculopathy affecting his left arm. EMG testing showed early carpal tunnel syndrome in claimant's left hand, but neither confirmed nor denied the existence of a cervical radiculopathy (exhibit 2, pages 5 and 6). On December 11, 1985, claimant had been operating a piece of equipment which was used to break concrete. He was driving it on Indianola Road returning to the shop from the work site when he hit ice, lost control and was thrown from the machine. Claimant testified that he landed on the road six or eight feet from the machine, landing with his neck, right shoulder and right arm coming into contact with the street. Shortly after the accident, he was joined by fellow worker Paul Crutchlow and his crew leader Eriks Walter. Claimant testified that he had pain in his neck, shoulder and right arm and that he was bleeding from an injured leg. Eriks Walter, claimant's crew leader who testified at hearing, stated that when he arrived at the scene, Thompson complained about his arm, neck and legs. Walter confirmed that Thompson reported landing on the back of his neck when he was thrown from the machine. Walter stated that claimant appeared as though he had hit the street. Claimant sought medical treatment and eventually came under the care of Dr. Kimelman. Dr. Kimelman diagnosed fractures in claimant's right arm and applied a cast. The fractures healed and claimant was released to return to work on April 14, 1986. After follow-up visits, Dr. Kimelman indicated on August 28, 1986 that as much healing as was likely had occurred and that the remaining residual limitations should be considered permanent. On September 24, 1986, claimant voiced complaints of pain, tingling and numbness in his right hand to Dr. Kimelman. Dr. Kimelman had EMG testing performed and diagnosed claimant as having carpal tunnel syndrome. Right carpal tunnel release surgery was performed on October 27, 1986. After a relatively uneventful period of recuperation, claimant was released to resume full duty employment on January 28, 1987. Dr. Kimelman stated that the carpal tunnel syndrome was related to the December 11, 1985 injury (exhibit 2, pages 13 and 14). On May 21, 1987, Dr. Kimelman issued a report that claimant had a 5-7 percent permanent impairment of the right upper extremity as a result of the injuries he had sustained to his right upper extremity. Dr. Kimelman expressed that same impairment.rating when he was subsequently deposed on June 13, 1989 (exhibit 2, page 15). From the deposition, it appears as though Dr. Kimelman did not include any impairment related to claimant's cervical condition when making that rating. In late 1987, claimant entered into an agreement for settlement working through adjuster Ray Card. The settlement contained a stipulation that claimant had a four percent permanent partial impairment of his right arm as a result of the December 11, 1985 injury. It was supported by a statement from Dr. Kimelman and also from the report of an evaluation performed by Alfredo D. Socarras, M.D., on October 2, 1987. Dr. Socarras concluded that there was no objective evidence of a carpal tunnel syndrome and no functional impairment from a neurological standpoint. The report indicates that when examined, claimant reported that his right elbow continued to feel stiff and that he was unable to straighten it. Claimant complained that his fingers were stiff when he tried to make a fist and that he had occasional pain in his right wrist and the entire arm. The report indicates that claimant told the doctor that he would continue to experience tingling in the fingers of his right hand approximately once per week. Dr. Socarras' examination reports that claimant's reflexes were active and equal, that there was no muscle weakness or atrophy and that, in summary, the neurological examination was entirely normal. The settlement documents were signed by the claimant on November 9, 1987. Rather than simply provide ten weeks of compensation at the stipulated rate of $287.54 per week, a structured settlement was used which gave claimant $1,000 upon approval of the agreement and an additional sum of $2,923.33 which will become payable on November 13, 1992. The settlement documents indicate that claimant would receive a total of $3,923.33 rather than the $2,875.40 which would represent ten weeks of permanent partial disability compensation. Claimant testified that his neck and right arm pain did not ever completely resolve and that the carpal tunnel surgery did not provide any major change in his symptoms. Claimant stated that the pain worsened and he then returned to Dr. Kimelman in early 1988 for further treatment. Betty Hannon testified that following the December, 1985 injury, claimant exhibited problems with his right arm including dropping things. She stated that he continued to express complaints regarding his neck and right shoulder. She stated that she had encouraged him to seek further medical care and that he finally did so. Eriks Walter testified that during the winter of 1987-1988, claimant had made a statement that he was not getting better and that he was hurting more and more. Walter stated that claimant complained of his shoulder and arm occasionally. When claimant was seen on March 8, 1988 by Dr. Kimelman, he reported a zinging pain running from his right shoulder to his right hand. EMG's conducted on March 22, 1988 were interpreted as being normal, but Dr. Kimelman diagnosed a cervical radiculopathy based upon weakness in claimant's right triceps. When the symptoms did not improve with conservative treatment, Dr. Kimelman referred claimant to Des Moines orthopaedic surgeon Robert C. Jones, M.D. (exhibit 2, pages 10-12). Dr. Jones examined claimant and formed the opinion that he had a cervical radicular compression syndrome. Dr. Jones stated that claimant had preexisting degenerative changes in his cervical spine due to aging and hard work and that the condition was aggravated when claimant fell from the concrete breaker machine, leading to the need for surgery (exhibit 1, pages 5 and 6; exhibit 3; exhibit H, page 185). After conducting diagnostic tests, Dr. Jones performed an anterior cervical interbody fusion at the C5-6 and C6-7 levels of claimant's spine on May 17, 1988. After a relatively uneventful period of recovery claimant returned to work on August 22, 1988 with restrictions. Initially, he performed only paperwork, but then was authorized to perform painting of water hydrants and to operate the backhoe. The employer continues to carry claimant in a light-duty status. Claimant does perform physical labor of some types, however, as observed by Cecilia O'Brien. Claimant stated that if he overexerts himself, he experiences an increase in his symptoms. Claimant has received regular pay increases since the injury. He feels that on one occasion the absences resulting from the injuries resulted in a reduced amount of an annual pay increase. Dr. Jones expressed the opinion that claimant has received a good result from the fusion surgery and has a residual 8-10 percent permanent partial impairment of the body as a whole (exhibit 1, pages 13, 16 and 22; exhibit H, page 170). Dr. Jones stated that claimant should avoid undue stress on his neck such as excessive turning (exhibit 1, pages 14 and 23). He was unable to apportion the degeneration in claimant's cervical spine between claimant's employment and nonemployment activities or causes. Dr. Jones indicated that it was possible for the cervical radiculopathy to have been missed by other physicians in earlier examinations and that the fact they did not discover it does not necessarily establish that the condition did not result from the December 11, 1985 accident. Dr. Kimelman had indicated in his opinion that it was possible, though not probable, that the cervical radiculopathy had resulted from the December 11, 1985 injury. He also indicated, however, that he would not dispute an opinion of Dr. Jones which found the December, 1985 accident to have been a cause of the cervical radiculopathy (exhibit 2, pages 23 and 24). Eriks Walter stated that he has not had claimant on his crew very frequently since the neck surgery was performed, but that from his observations, claimant has required assistance when lifting. Betty Hannon stated that claimant has continued to exhibit difficulties with the use of his right hand. William Thompson, the risk manager for the Des Moines Water Works testified that claimant had indicated to him that he had hurt his arm on the spinner on the steering wheel of the concrete breaker equipment and said nothing about being thrown from the equipment. Thompson also agreed that he was aware claimant had experienced leg injuries, but did not inquire about those. He agreed that claimant's leg bleeding would be consistent with him having been thrown to the pavement. Larry Soloman, human resources coordinator for the Des Moines Water Works, stated that claimant has been on the light-duty list for approximately one year. Soloman stated that at one point in time equipment operators ceased being limited to operating equipment and began to be required to perform other work when needed. William Lloyd, Jr., assistant supervisor at the Des Moines Water Works, stated that since claimant's return to work in 1988, claimant has been a machine operator on light duty. Lloyd was not aware of claimant making any complaints since returning to work in 1988 and was not aware of claimant having any difficulty performing his job since returning to work in 1988. Lloyd stated that claimant is paid the same on light duty as he would be paid if he were on full duty. Claimant denied suffering any injury to his neck between December, 1985 and when he began receiving treatment from Drs. Kimelman and Jones in 1988. He denied having any prior difficulties with his neck. Betty Hannon, who has known claimant for several years, stated that she was not aware of him having any problems with his neck prior to the December, 1985 accident. APPLICABLE LAW AND ANALYSIS In a review-reopening proceeding, the claimant has the burden of establishing that he has suffered an additional impairment or lessening of his earning capacity as a proximate result of the original injury, subsequent to the date that the agreement for settlement which is now under review was entered into. Deaver v. Armstrong Rubber Co., 170 N.W.2d 455, 457 (Iowa 1969). One cause for allowance of additional compensation is when it is shown that facts relative to an employment-connected injury existed, but were unknown and could not have been discovered by the exercise of reasonable diligence. Gosek v. Garmer & Stiles Co., 158 N.W.2d 731 (Iowa 1986). Review-reopening has been allowed where the employee did not improve as much as had been anticipated. Meyers v. Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa App. 1978). In this case, Norman Thompson settled the case based upon the assessment from the physicians which stated that his problem was limited to his right arm. The cervical radiculopathy had not been diagnosed at that time. Further, there is no showing in the record that claimant knew he would need cervical surgery. The identification of the previously undiagnosed cervical condition is clearly a sufficient change of condition to warrant review-reopening and reconsideration of claimant's award. All witnesses who testified at the hearing were observed by the undersigned. All appeared to be credible witnesses. Claimant's testimony that he continued to experience neck pain following the December 11, 1985 injury, and his denial of prior neck pain, is accepted as being correct. It is corroborated by Betty Hannon and Eriks Walter. Thompson appeared to be a rather stoic individual. It is not the least bit surprising that he would have worked despite being in substantial discomfort. His testimony of a worsening of his condition in 1988 which led him to seek further medical treatment is likewise accepted as being correct. The EMG tests do not appear to have been a reliable indicator of the radiculopathy. It is therefore determined that the medical history which Norman Thompson provided to Dr. Jones is accurate and correct and that the opinions regarding causation, permanent impairment and physical restrictions as assessed by Dr. Jones are also correct. When deposed, Dr. Kimelman indicated that he would essentially defer to Dr. Jones with regard to the issue of causation for the cervical condition. It is therefore determined that there has been a change of condition which was proximately caused by the December 11, 1985 injury and which was not discoverable in the exercise of reasonable diligence at the time the settlement was entered into in November, 1987. It is further determined that the cervical radiculopathy is a part of the injury which arose out of and in the course of claimant's employment on December 11, 1985. If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). Industrial disability or loss of earning capacity is a concept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment of physical capacity creates an inference of lessened earning capacity. The basis element to be determined, however, is the reduction in value of the general earning capacity of the person, rather than the loss of wages or earnings in a specific occupation. Post-injury earnings create a presumption of earning capacity. The earnings are not synonymous with earning capacity and the presumption may be rebutted by evidence showing the earnings to be an unreliable indicator. Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 34th Biennial Report, 218 (1979); 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. Claimant is nearing retirement age where pensions and social security would be expected to replace wages. It is speculative to determine whether he would retire at age 62 or 65 or any other particular age, but the fact of retiring at some point in the near future is probable. Brecke v. Turner-Busch, Inc., 34th Biennial Report of the Industrial Commissioner 34 (App. Decn. 1979). Considering claimant's age and apparent academic aptitude, retraining of any type is not practical. The best employment opportunity for Norman Thompson is the employment which he currently holds with the Des Moines Water Works. It has not been proven by a preponderance of the evidence that he has experienced any loss of actual wages as a result of the December 11, 1985 injury, although there is some possibility that an annual increase may have been slightly reduced. Nevertheless, he does have a notable physical impairment and activity restrictions. The fact that he is likely to retire in the near future does not mean that he, like many others, would not engage in any type of post-retirement gainful employment or other gainful activity. The employer's actions in this case in keeping him on the job in a light-duty status have, however, clearly insulated Norman Thompson from what would most likely be a major reduction in his actual earnings if he were forced to reenter the job market with a new employer. It is clear that he has sustained some degree of disability on an industrial basis. When all the pertinent factors of industrial disability are considered, that degree is determined to be a ten percent permanent partial disability. This entitles him to receive 50 weeks of compensation. The ten percent permanent partial disability determination includes not only claimant's cervical condition but also the impairment in his right arm. When an injury produces disability which is evaluated industrially, the entire disability is evaluated in that manner and is not added on to any scheduled member disability which may also exist. Defendants are therefore entitled to a credit for the ten weeks of permanent partial disability to be paid under the Agreement for Settlement. The remaining 40 weeks are payable to claimant commencing on the date of this decision. Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957). It should be noted that this is a case in review-reopening where it was necessary for the claimant to show a change of condition in order to recover additional compensation. Bousfield has not been overruled for cases requiring a change of condition. Where the necessity to show a change of condition exists, the additional award runs from the date of the decision which awards it, rather than from an earlier date as would be the case if there had been no need for the claimant to prove a change of condition. As stipulated by the parties, defendants are also entitled to a credit for overpaid temporary total disability in the amount of $442.24. The credit is to be applied against the permanent partial disability award. FINDINGS OF FACT 1. The cervical radiculopathy which was diagnosed in 1988 was proximately caused by the December 11, 1985 accident. It was an aggravation of a preexisting degenerative condition which had resulted, in substantial part, from claimant's employment activities. 2. When the Agreement for Settlement was entered into in November, 1987, the existence of the cervical radiculopathy was not discoverable in the exercise of reasonable diligence. It had not been discovered by claimant's examining physicians and claimant was not aware that it existed. He knew of his symptoms, but not of their anatomical cause. 3. The assessment of this case made by Dr. Jones is correct. 4. All witnesses who testified at hearing are fully credible. There are no irreconcilable conflicts when their testimony is considered. 5. Claimant has experienced a ten percent loss of his earning capacity as a result of the December 11, 1985 injuries. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. Diagnosis of the cervical radiculopathy is a change of condition which is sufficient to warrant review-reopening. 3. Claimant is entitled to recover 50 weeks of compensation under the provisions of Iowa Code section 85.34(2)(u). 4. Defendants are entitled to credit for the 10 weeks of compensation paid in accordance with the Agreement for Settlement entered into in November, 1987. 5. Claimant is entitled to recover 15 5/7 weeks of healing period compensation commencing May 5, 1988 as stipulated. ORDER IT IS THEREFORE ORDERED that defendants pay claimant fifteen and five-sevenths (15 5/7) weeks of compensation for healing period commencing May 5, 1988 at the stipulated rate of two hundred eighty-seven and 54/100 dollars ($287.54) per week. Defendants are entitled to credit for the amounts of healing period compensation previously paid. IT IS FURTHER ORDERED that defendants pay claimant forty (40) weeks of compensation for permanent partial disability at the stipulated rate of two hundred eighty-seven and 54/100 dollars ($287.54) per week payable commencing on the date of this decision. Defendants are entitled to recover the stipulated credit in the amount of four hundred forty-two and 24/100 dollars ($442.24) for overpaid healing period compensation against this award. IT IS FURTHER ORDERED that defendants pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. IT IS FURTHER ORDERED that defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 15th day of February, 1990. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. H. Alan Bowers Attorney at Law 942 Insurance Exchange Building 505 5th Avenue Des Moines, Iowa 50309 Ms. Iris J. Post Attorney at Law 2222 Grand Avenue P.O. Box 10434 Des Moines, Iowa 50306 1108.50, 1302.1, 1402.30 1702, 1703, 1803, 2206 2905, 3800 Filed February 15, 1990 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER NORMAN THOMPSON, Claimant, vs. File No. 814236 DES MOINES WATER WORKS, R E V I E W - Employer, R E 0 P E N I N G and D E C I S I 0 N UNITED STATES FIDELITY AND GUARANTY, Insurance Carrier, Defendants. 1108.50, 1302.1, 1402.30. 2905 Claimant entered into a settlement regarding his right arm. It was subsequently determined that he also had a cervical condition which required surgery. The belated diagnosis was held to be a sufficient change of condition to warrant review-reopening. 1702, 1703, 1803, 2206 Sixty-year-old man who had not experienced any actual loss of wages awarded ten percent permanent partial disability. The employer was granted credit toward the award for the full amount paid in the settlement based upon the stipulated disability rather than the total amount of the payments which were to be paid under the structured settlement arrangement. 2905, 3800 Payments were held to be due commencing on the date of this decision since a change of condition needed to be shown in order to obtain any further recovery citing Bousfield. BEFORE THE IOWA INDUSTRIAL COMMISSIONER MARGIRET LANHART, Claimant, File No. 814417 vs. A R B I T R A T I O N ORKIN PEST CONTROL, D E C I S I O N Employer, F I L E D and APR 7 1989 UNDERWRITERS ADJUSTING CO., IOWA INDUSTRIAL COMMISSIONER Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by claimant, Margiret Lanhart, against Orkin Pest Control, employer, and Underwriters Adjusting Co., insurance carrier, to recover benefits as a result of an injury sustained on November 29, 1985. This matter came on for hearing before the undersigned deputy industrial commissioner in Des Moines, Iowa, on January 31, 1989. The record consists of the testimony of claimant, Michael Lanhart, claimant's husband, Michael Kenneth Polaski; joint exhibits 1 through 15 and claimant's exhibits A and B. Pursuant to the prehearing report, the parties stipulated that: There was an employer-employee relationship; that temporary total disability/healing period was paid for the period of December 4, 1985 to July 13, 1986, inclusive, (31 5/7 weeks) and temporary partial disability benefits from July 14, 1986 to July 23, 1986, inclusive, (1 3/7 weeks) both at the agreed to rate of $147.06 per week. If an injury is found which is causally connected to claimant's disability, then it is an industrial disability to the body as a whole and permanent disability benefits would begin July 24, 1986. ISSUES The issues for resolution are: 1. Whether claimant's injury arose out of and in the course of her employment; 2. Whether there is a causal connection between claimant's injury and her disability; 3. The nature and extent of claimant's disability; 4. Whether certain medical benefits should be paid under Iowa Code section 85.27; and 5. Whether said medical was necessary and causally connected to the claimant's injury and services rendered. REVIEW OF THE EVIDENCE Claimant testified that on November 29, 1985, she was soliciting business door-to-door for defendant employer when she slipped on a porch step of a potential customer and landed on her back, injuring herself. Claimant stated she started working for defendant employer on November 4, 1985. Claimant indicated that she had hit her head on a door while working for defendant employer one-half week prior to the November 29, 1985 injury and also was in a minor car accident while working for this employer approximately one week before the November 29, 1985 injury. Claimant emphasized that these accidents caused no resulting physical problems. Claimant testified her job consisted of trying to sell a pest control program to a potential customer of defendant employer and involved inspecting homes. Claimant stated the inspection process at times would involve bending, stooping, looking under crawl spaces, under houses with no basement, crawling on her stomach, squatting, and getting on her knees, and mixing chemicals and spraying at customers' premises. Claimant stated she attempted to continue working but was unable to do the required work because of her back and neck pain. Claimant was off work December 4, 1985 up to July 13, 1986. Claimant testified she returned to work on July 13, 1986 for two weeks part-time, four hours per day and that she had to do some lifting. Claimant indicated that she had problems working and that her back pain increased. Claimant stated that she thought that she recovered the best she would when she returned to work on July 13, 1986. Claimant said that she resigned from defendant employer at the end of the workday on July 23, 1986 because her back problems continued and her pain increased. Claimant indicated she then went back to work for Cedar Rapids Grain in approximately August or September 1986 and worked until September 2, 1988 when she was laid off. This company was bought by another company and claimant was not rehired although she did apply for a job with the take-over company. Claimant indicated that she had formerly worked for Cedar Rapids Grain two months in September and October 1985 and that her husband has been employed at Cedar Rapids Grain for several years. Claimant testified she has not worked since September 2, 1988. Claimant emphasized she could not do the required work at Cedar Rapids Grain that she had done when she first worked for them in 1985. Claimant indicated her duties were to operate a probe, to climb on railroad cars and take a test sample of grain, carry the test corn in buckets weighing 25 to 30 pounds each and carry sample bags of corn weighing two or three pounds each. Claimant contends that the doctor put a five pound weight restriction on her. Claimant also stated that upon returning to work at Cedar Rapids Grain she was then unable to remember the grain test figures that she had obtained and that she still has this memory problem to this date. Claimant relates this memory problem also to the November 29, 1985 injury. Claimant testified that she had scoliosis as a child and wore a Milwaukee brace for two and one-half years at age 12 to 13 and has had pain in her low back and between the shoulder blades her entire life. Claimant summarized her employment history which included a waitress in high school, two months as a nurse's aide in 1976, no work between 1976 and 1983 due to her pregnancies and caring for her children, a jewelry store in 1983 and 1984, Cedar Rapids Grain September and October 1985, Orkin 1985, and Cedar Rapids Grain 1986 to 1988. Claimant admitted that Orkin Pest Control was her only full-time job. Claimant testified her complaints today which she relates to the November 29, 1985 injury are numbness in her leg, back pain, very bad headaches which she describes as "unreal and hard to describe," nausea at times, dizziness, ringing in her ears, pain in her neck, ears, eyes and temple, loss of smell, fatigue, low energy level, depression, and can't do her household chores or duties. Claimant indicated aspirin and Tylenol do nothing for her. Claimant also revealed that certain foods like chocolate and cheese and certain stress result in her headaches. Claimant stated she is unable go to her children's ball games as her leg goes numb and she has pain. She indicates she is unable to sit for more than one-half hour to 45 minutes or stand for longer than one-half or one hour because of the pain. Michael Lanhart, claimant's husband, testified that his family's move from Wisconsin to Iowa did create some emotional problems with his wife since they had lived in Wisconsin all their life prior to coming to Iowa and had ties there. Mr. Lanhart testified that claimant was in good physical condition prior to the accident on November 29, 1985. Mr. Lanhart contended that claimant's physical condition changed due to this November 1985 accident and claimant could no longer do the required physical work. Mr. Lanhart then stated that his wife is real moody now and has headaches, cramp spasms and he would have to rub her back and shoulder and at times would have to help her to get moving and to get out of bed. Mr. Lanhart admitted that he lived with his boss, Michael Kenneth Polaski, at the Cedar Rapids Grain, who was also claimant's boss when she worked there. Mr. Lanhart indicated he comes home to his wife in Ottumwa, Iowa, on weekends. Mr. Lanhart acknowledged that Mr. Polaski is his wife's third cousin. Mr. Lanhart emphasized that prior to November 29, 1985 his wife was in good physical condition but he did not deny that claimant had problems like fatigue and headaches but claimed no knowledge of prior back pain, numbness in the arms and medication for anxiety and depression Michael Kenneth Polaski, the owner and president of Cedar Rapids Grain, testified that he is familiar with claimant's job and its requirements and how she was able to do the job before her injury and after her injury of November 29, 1985. Polaski indicated he would not let claimant climb on the railroad cars for inspections as he was afraid she would not be able to get her down once she got up. He would be concerned for her safety. Polaski indicated that he would observe what the claimant would do and could tell by her grinding her teeth or moaning and groaning that she was having problems or stress on her body. Polaski indicated that before November 29, 1985 claimant could do all those things required including using the probe, lifting 10 to 15 pounds, lifting the buckets of corn, climbing on railroad cars, and raising buckets for testing above her head to test the grain. Polaski indicated that after the November 29, 1985 injury, at the end of four hours work claimant had a hard time lifting the buckets over her head, and sometimes would drop the bucket. Polaski acknowledged that the claimant was a good worker and that she was laid off in 1988 when Cargill took over the Cedar Rapids Grain Company and changed the inspection process. Marc E. Hines, M.D., a neurologist, on December 17, 1985, wrote: "IMPRESSION: At the time of admission is that the patient has spinal cord contusion we were admitting her to exclude the possibility of a concommittant [sic] demyelinating disease and will continue to treat her as if she may have post traumatic migraines." (Joint Exhibit 4) On December 18, 1985, complete myelogram with pantopaque was done on this patient at Dr. Hines' request with the impression "normal complete myelogram." On December 17, 1985, a CT scan of the head and double dose delayed films was performed. The impression was: "normal brain CT with double dose and delayed filming technique." (Exhibit 5) In December 1985, claimant had several other neurological tests all of which were normal including nerve reduction velocities and EEG. Claimant had two other CT scans on May 7, 1986 and December 7, 1987 which showed normal lumbar and no evidence of herniated discs. There was no significant pathology that could be identified. On October 21, 1986, Dr. Hines, in his notes, states: Margiret came back in today having.developed new wrist symptoms and numbness in the median distribution in her right hand which may represent a carpal tunnel syndrome. We will be obtaining an EMG and Nerve Conduction Velocity for this, and the patient will use a wrist splint while at work and at night. (Jt. Ex. 6, p. 20) On November 23, 1987, Dr. Hines wrote: Obviously, the situation has been very difficult to follow even for those of us who have been close at hand since following her concussion and whiplash injury. Following the determination that she has suffered a mild brain stem contusion, the patient has been involved in additional accidents and injuries. .....Although, the accidents have worsened her symptomotology, they have done this merely on the basis of exacerbating a pre-existent condition which was secondary to her work injury. Symptoms of headache, neck pain, arm pain, episodic numbness, and dizziness have continued despite a wide variety of therapies. No other etiology has been found despite a very extensive investigation. So far as there has been involvement of the upper extremities, this problem is primarily secondary to the contusion of the spinal cord and/or stretch injury to the cervical nerve roots. In that regard, her difficulty falls under the classification of spinal cord injuries in the AMA Guides to the Evaluation of Permanent Medical Impairment, Second Edition, page 65 in which there is impairment in use of both upper extremities in which the patient can use the upper extremities for self care, grasping, and holding but has difficulty with digital dexterity. The patient has approximately a 10% impairment to the whole person. Headaches have been the other major symptomatology which she has continued to have but is not rated by the AMA Guides. We are strictly instructed by the AMA Guides not to exclude the rating of other impairments which simply are not covered by the guides through oversight, ommission [sic], or other cause. Her headaches have been significantly disabling, and I have given her a 10% impairment to the whole person. In the Combined Values Charts on page 240 of the AMA guides, a 10% impairment combined with a 10% impairment is a 15% impairment to the whole person. (Jt. Ex. 6, P. 35) Dr. Hines wrote on December 2, 1987, in his history and physical examination notes: Margiret is a very complex patient who has many somatic symptoms which go back some time and involve a variety of areas primarily arthralgias and back pain, neck, and head pain all following accidents and injuries which she has had. She has been involved in several auto accidents, and accident at work in which she hit her head and has for these reasons had a number of EMG's and other intensive investigations with very little in the way of any significant objective abnormalities being found. .... IMPRESSION: Patient has considerable somatic complaints primarily consisting of arthralgias and arthritis types of complaints, multiple injuries in auto accidents, falls and head injuries as well as new onset of abdominal complaints, all of unexplained etiology at this time. The patient will have further evaluation and treatment. (Jt. Ex. 6, P. 47) On December 2, 1987, claimant was referred to T. Phillips, M.D., for evaluation of an abdominal pain. Dr Phillips wrote: "IMPRESSION: Abdominal pain cause unclear. The interpretation of her symptoms is made difficult in that I think she has a somewhat histrionic personality." (Jt. Ex. 4, p. 88) Alfredo D. Socarras, M.D., performed an independent neurological evaluation on claimant on November 30, 1987 and opined: It is my opinion that there is a great disproportion between patient's symptoms and the lack of objective findings, suggesting a large psychophysiological element in this case. Some of the headaches are suggestive of migraine and equivalents, however, the constant headache for the past two years is likely to be on a tension basis. Clinically I do not feel that this patient ever had a cervical cord contusion. Dr. Hines diagnosis was purely speculative and without proper clinical foundation. Her symptomatology, the normal neurological examination of November 28, 1985 and all the laboratory tests after the incident of November 28, 1985 did not corroborate this diagnosis. I believe that this patient's medical treatment has been rather ineffective and has protracted the situation. I am recommending a psychological evaluation, including MMPI. From the neurological standpoint I find no functional impairment. (Ex. 1, p. 4) Robert G. Siekert, M.D., Department of Neurology, Mayo Clinic, did a neurologic examination, performed.a CT scan of the head with contrast, and an electromyographic examination on claimant on an outpatient basis between June 16 and 24, 1988. Dr. Siekert wrote: Because of her complaint of memory impairment, she was seen by Dr. Robert Ivnik, psychologist, who performed extensive neurocognitive examination. In summary, he states "neurocognitive testing suggests an individual whose basic intellectual endowment is now average and the person has probably always been of average intelligence. There are no definite signs of acquired neurocognitive impairment. There are clearly no signs of any significant generalized intellectual deficit or compromise." She was seen in the Impairment Evaluation Center because I wished to have an opinion concerning any component of the narrowing of the lumbosacral interspace in the causation of her symptoms. Dr. G. S. Peterson of the Department of Physical Medicine and Rehabilitation reviewed the problem and concluded that she had diffuse tension myalgia, chronic pain syndrome, and believed that the narrowing of the L5-S1 interspace was of no clinical significance in her present complaints. At the present time, I could not make a diagnosis of any organic disease of the central nervous or peripheral nervous system, that her symptoms appeared psychophysiologic, that she has a chronic pain syndrome and likely pain amplification syndrome, and that we found no evidence of physical impairment. Doctor Peterson discussed the matter of her psychophysiologic symptom formation with her. (Ex. 2, p. 3) Claimant was seen at the Impairment Evaluation Center for musculoskeletal evaluation at Mayo Clinic beginning June 24, 1988. Claimant related her present symptoms to the doctor as: Mrs. Lanhart describes constant, dull low back pain with intermittent sharp pain. When she has these sharp pains in her back she states that her leg [sic] feel like they are paralyzed". She also has sensation of numbness of her entire right foot. Her right hip, ankle, and occasionally her [sic] feel weak. She also describes constant tight aching pain in her neck radiating into her shoulders. She denies cough, strain, sneeze affect. She denies urinary incontinence but notes occasionally fecal soiling. (Ex. 2) Gregory S. Peterson, M.D., rendered the following diagnosis, conclusions and recommendations: DIAGNOSIS: 1. Chronic pain syndrome. 2. Diffuse tension myalgia. 3. Narrowed L5-S1 interspace, doubtful clinical significant to her present complaints. CONCLUSIONS/RECOMMENDATIONS: Mrs. Lanhart has reached maximum medical improvement from formal medical treatment, and is left with a permanent partial impairment of the whole body of 0 percent from the musculoskeletal standpoint. No surgery or further extensive investigation is indicated. However, she might benefit from a program of emotional, psychological and physical reconditioning. Specifically, I would recommend that she participate in a psychiatrically-based pain management program which would include supervised conditioning to improve her endurance, flexibility and work tolerance. It is difficult to directly relate her current symptoms to her reported work-related injuries, as the history is vague and atypical. Her symptoms currently are primarily those of pain amplification. I think that it would be difficult for Mrs. Lanhart to return to work until her chronic pain problem is addressed. After resolution of her litigation, she may benefit from the pain management center approach such as is available at Mayo Clinic. (Ex. 2) Claimant had complaints of backaches, weakness in her legs and low back pain in 1980. In 1982, claimant went for an evaluation of back and lower extremity pain and indicated she had a long history of back pain and discomfort. At that time, claimant indicated a number of subjective neurologic complaints, parethesias in her hands and legs and numbness and cold feeling in her lower extremities. At that time, the examination did not reveal any objective neurologic abnormalities. It was suggested that she should have a evaluation at that time. Medical records of the Duluth Clinic on May 10, 1982 set out the following pursuant to a neurological evaluation: She has been complaining of 3 main symptoms---numbness in her arms and legs, coldness in all 4 extremities. She claims that the pain in the low back has been present for approximately 2 years intermittent and that at times when she is walking she may fall for no apparent reason. In addition to this, within the last 12 months, she has had trouble with her arms with pain in the elbows....In addition, her legs and feet would also get numb and cold. (Ex. 10) The medical records of this same clinic indicate the same or similar complaints of this claimant in 1972, 1974 and 1975. On August 19, 1974, the Duluth Clinic notes indicate: "upset with Dr. RPH because he indicated it was 'all in my head.'" APPLICABLE LAW AND ANALYSIS The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The claimant has the burden of proving by a preponderance of the evidence that the injury of November 29, 1985 is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516,,133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756, 1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, (1962). When an aggravation occurs in the performance of an employer's work and a causal connection is established, claimant may recover to the extent of the impairment Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, (1960). The Iowa Supreme Court cites, apparently with approval, the C.J.S. statement that the aggravation should be material if it is to be compensable. Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's Compensation section 555(17)a. An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960), an cases cited. An employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 (1960). See also Barz v.Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). Iowa Code section 85.32 provides: Except as to injuries resulting in permanent partial disability, compensation shall begin on the fourth day of disability after the injury. If the period of incapacity extends beyond the fourteenth day following the date of injury, then the compensation due during the third week shall be increased by adding thereto an amount equal to three days of compensation. Iowa Code section 85.33(1) provides: Except as provided in subsection 2 of this section, the employer shall pay to an employee for injury producing temporary total disability weekly compensation benefits, as provided in section 85.32, until the employee has returned to work or is medically capable of returning to the employment substantially similar to the employment in which the employee was engaged at the time of injury, whichever occurs first. Claimant is approximately 36 years old. She has not worked since September 2, 1988 and was laid off from Cedar Rapids Grain Company when it was purchased by Cargill. The evidence shows that claimant most likely would not have been laid off and would still be working for Cedar Rapids Grain Company had it not been purchased by the new owner. Claimant has a history of problems before her alleged injury of November 29, 1985 which includes the same or similar complaints from which claimant now complains. The greater weight of medical evidence shows no causal connection between claimant's present disability and the injury of November 29, 1985. Dr. Socarras found no functional impairment and a lack of objective findings and suggested a large psychophysiological element. Dr. Hines, who treated claimant over the years, could not determine with any clear medical certainty the etiology of claimant's complaint. Dr. Hines referred claimant to Dr. Phillips who thought claimant had a somewhat histrionic personality. Claimant went to Mayo Clinic and saw several doctors including a neurologist and psychologist and was put through several tests and evaluations. Dr. Ivnik, a psychologist, found no definite signs of acquired neurocognitive impairment. Dr. Petersen indicated that claimant's symptoms appear psychophysiologic. Dr. Petersen further opined a zero permanent partial impairment of the body as a whole from the musculoskeletal standpoint. Medical evidence leads one to conclude that claimant's problems are psychogenic. In August 1984, claimant was upset with a doctor because he indicated it was "all in my head." There is no evidence that the psychophysiological problems are causally connected to claimant's injury of November 29, 1985 nor was there any material aggravation or worsening of any preexisting medical conditions that claimant had as a result of this November 29, 1985 injury. Claimant's November 29, 1985 injury did not cause any of claimant's present medical complaints or conditions. Claimant has had extensive tests since her November 29, 1985 injury by various medical personnel and in some instances duplicate tests which turned out normal. There was very disturbing evidence in the record as to claimant's and her husband's substantial or total lack of recall or knowledge of claimant's prior medical record or problems. By listening to claimant and her husband alone, it could be concluded that claimant was a person in good health and no mentionable problems and that all her present problems are a result of her November 29, 1985 injury. Claimant and her husband are not credible witnesses in that the greater weight of evidence indicates claimant had prior physical problems. Claimant's present disability is not causally connected to her injury of November 29, 1985. Claimant has no permanent impairment or disability nor permanent loss of earning capacity as a result of her November 29, 1985 injury. Claimant's temporary total disability began December 4, 1985 and ended up to but not including July 13, 1986 amounting to 31.571 weeks. As to exhibit B and the medical bills, the evidence is unclear as to the nature and purpose of the drugs set out therein considering the medical problems claimant had before her November 29, 1985 injury and those that carried over to the present. The record shows that claimant had treatment for medical problems since the November 29, 1985 injury that are not causally connected to this injury. Defendants are not responsible for any drug bills or medical expenses incurred beginning July 13, 1986 to present, except defendants shall pay all the Mayo Clinic bill of which the defendants have paid all but a balance of $353.63. All of the prescription charges and medical bills beginning November 29, 1985 up to and not including July 13, 1987 are to be paid by defendants. As to the taxation of costs, defendants shall pay,,$150 of the $1000 deposition fee of Dr. Hines which is the maximum amount allowed for an expert witness per chapter 622.72, Code of Iowa, and the $371.25 for Dr. Hines' deposition. All other costs or balance set out in part D of defendants' statement of disputes and issues are the responsibility of the claimant as a cost of doing business in litigating this claim. FINDINGS OF FACT WHEREFORE, it is found: 1. Claimant temporarily injured her back on November 29, 1985 when she fell while making inspections for defendant employer. 2. Claimant had preexisting injuries and medical conditions which were not materially aggravated or worsened as a result of her November 29, 1985 injury. 3. Claimant was temporarily disabled as a result of her injury of November 29, 1985. 4. Claimant's temporary disability began December 4, 1985 to and not including July 13, 1986 at the weekly rate of $147.06. 5. Claimant incurred no permanent impairment as a result of her injury of November 29, 1985. 6. Claimant incurred no healing period as a result of her injury of November 29, 1985. 7. Claimant returned to work July 13, 1986. 8. Claimant incurred no permanent loss of earning capacity as a result of her November 29, 1985 injury. 9. Claimant incurred certain medical expenses during her period of temporary total disability as a result of her injury of November 29, 1985. CONCLUSIONS THEREFORE, it is concluded: Claimant's injury arose out of and in the course of her employment on November 29, 1985. Claimant was temporary totally disabled beginning December 4, 1985 up to but not including July 13, 1986 as a result of her injury of November 29, 1985. Claimant's preexisting injuries and medical conditions were not materially aggravated or worsened as a result of her November 29, 1985 injury. Claimant incurred no permanent impairment as a result of her November 29, 1985 injury. Claimant incurred no permanent loss of earning capacity as a result of her November 29, 1985 injury. Claimant was not permanently partially disabled as a result of her November 29, 1985 injury. Claimant is not entitled to any healing period or permanent partial disability benefits as a result of her November 29, 1985 injury. ORDER THEREFORE, it is ordered: Defendants are to pay unto claimant thirty-one point five seven one (31.571) weeks of temporary total disability benefits at the stipulated rate of one hundred forty-seven and 06/100 dollars ($147.06) per week which amount defendants have already paid. Defendants are to pay unto claimant three hundred fifty-three and 63/100 dollars ($353.63) balance of the Mayo Clinic bill and reimburse claimant for all prescription drug expenses beginning November 29, 1985 up to but not including July 13, 1986. Defendants shall pay the court reporter fee of appearance and taking of the deposition of Dr. Hines in the amount of three hundred seventy-one and 25/100 dollars ($371.25). Defendants shall be given credit for the benefits already paid. Defendants shall pay one hundred fifty dollars ($150.00) of the one thousand dollar ($1,000.00) deposition expense of Dr. Hines per Iowa Code chapter 622.72. Claimant is responsible for the deposition transcript of Dr. Socarras in the amount of sixty and 40/100 dollars ($60.40), the court reporter regarding Dr. Hines in the the amount of eighty and 70/100 dollars ($80.70), and the Held Concepts-Dr. Hines' records of thirty dollars ($30.00). All other costs are taxed to defendants per Division of Industrial Services Rule 343-4.33. . Defendants shall file a claim activity report upon payment of this award as required by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 7th day of March, 1989. BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. W. Michael Murray Attorney at Law 2323 Grand Des Moines, IA 50312 Ms. Dorothy L. Kelley Attorney at Law 500 Liberty Bldg Des Moines, IA 50309 Mr. Thomas M. Wertz Attorney at Law 4089 21st Ave SW Suite 114 Cedar Rapids, IA 52404 1108; 1801 Filed April 7, 1988 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER MARGIRET LANHART, Claimant, File No. 814417 vs. ORKIN PEST CONTROL, A R B I T R A T I 0 N Employer, D E C I S I 0 N and UNDERWRITERS ADJUSTING CO., Insurance Carrier, Defendants. 1108 Claimant has considerable preinjury medical problems including psychogenic and psychophysiological symptom formation problems which carried over post-injury. Medical evidence showed claimant had a histrionic personality which affected any perceived permanent disability. No causal connection between injury and alleged permanent partial disability found. 1801 Claimant awarded only temporary total disability for her injury resulting from slipping on a porch step. Page 1 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : HARVEY HUGO, : : Claimant, : File Nos. 814422 : 916717 vs. : 916718 : 916719 WILBERT HASSEBROEK, d/b/a : 916720 HASSEBROEK TRUCKING and : J & J LIVESTOCK, : A R B I T R A T I O N : Employers, : D E C I S I O N : and : : ALLIED INSURANCE COMPANY, : BITUMINOUS CASUALTY, and : GREAT WEST CASUALTY COMPANY, : : Insurance Carriers, : Defendants. : ____________________________________________________________ STATEMENT OF THE CASE This decision concerns five proceedings in arbitration brought by Harvey Hugo against his former employer based upon injuries alleged to have occurred on or about January 10, 1986, October 1, 1986, May 5, 1987, January 11, 1988, and December 12, 1989, respectively. Hugo seeks compensation for healing period, permanent partial disability, interest, penalty under section 86.13 of The Code and expenses under section 85.27 of The Code for medical services and transportation. The respective parties have stipulated to the occurrence of an injury on January 10, 1986, as represented in file number 814422. In the other four files, the occurrence of injury arising out of and in the course of employment with the employer is disputed. It is further stipulated that, with regard to the January 10, 1986, injury, Hugo is entitled to healing period compensation from January 10, 1986, through November 28, 1986, but the entitlement to compensation for permanent partial disability resulting from that injury is disputed. Hugo also seeks compensation for lost time from work to attend doctor appointments on February 18, 1987, May 1, 1987, September 14, 1987, and January 27, 1988. The commencement date for permanent partial disability resulting from the January 10, Page 2 1986, injury is disputed. The parties stipulated to an appropriate rate of compensation for all five of the alleged injuries. The employer asserts a lack of notice defense with regard to the alleged January 12, 1989, injury and a statute of limitations defense under section 85.26(1) with regard to the alleged injuries of October 1, 1986, May 5, 1987, and January 12, 1989. It was further stipulated that, in addition to what were substantially weekly payments made during the time span of from January 20, 1986, through December 9, 1986, claimant was paid the sum of $8,410.00 on January 26, 1988, apparently for permanent partial disability compensation associated with the January 10, 1986, injury. The case was heard and fully submitted at Mason City, Iowa, on January 9, 1992. The evidence in the case consists of joint exhibit 1, claimant's exhibits A and B, defendants' exhibits 1 and 2, and testimony from Harvey Hugo, Loretta Hugo and Ray Smalley. FINDINGS OF FACT Having considered all the evidence received, together with the appearance and demeanor of the witnesses, the following findings of fact are made. Harvey Hugo is a 50-year-old married man who lives near Buffalo Center, Iowa, with his wife Loretta. Harvey's formal education is limited to the ninth grade. Most of his working life has involved unskilled manual labor. He has worked as a farmhand and mechanic. He has performed production work and metal work such as welding. He has apparently attempted self-employment without success on at least three occasions. He has typically salvaged scrap metal as a part-time vocation for several years. Claimant's typical hourly earnings have been $6.00 per hour or less, except for approximately one year when he was employed by Winnebago Industries at $7.58 per hour (claimant's exhibit B, pages 11-13). Hugo asserts five injuries. The first four are asserted as separate events of acute trauma. The claimant's descriptions of the manner in which he was injured on each of those first four occasions, namely, January 10, 1986, on or about October 1, 1986, May 5, 1987, and January 11, 1988, are all found to be correct. With regard to the January 10, 1986, injury, the claimant was driving a truck when he lost control. The medical records show him to have rather severely injured his right knee. The parties stipulated in the prehearing report that the healing period for the knee injury ran from January 10, 1986, through November 28, 1986, a span of 46 and 1/7 weeks. T. C. Mead, M.D., had released claimant to resume work effective December 1, 1986 (joint exhibit 1, pages 33 and 46). The stipulation showing the healing period to have Page 3 ended on November 28 will not be disturbed despite the fact that the return to work release would indicate that November 30, 1986, would be a more appropriate termination date for healing period benefits. The injury consisted in pertinent part of a fracture of the tibial plateau of the claimant's right knee. He underwent open reduction with internal fixation surgery on January 11, 1986 (joint exhibit 1, pages 5-13). The surgical procedure included removal of the lateral meniscus (joint exhibit 1, pages 9 and 28). After release from the Sioux City, Iowa, hospital where the surgery was performed, the claimant's care was transferred to Mason City orthopaedic surgeons, M. W. Crane, M.D., and T. C. Mead, M.D. On October 1, 1986, Dr. Mead removed the metallic fixation devices from the knee (joint exhibit 1, page 27). On that same date, Dr. Mead issued a written report to Lorna Stephenson, the claims representative for the insurance carrier, in which he stated that it would be at least three or four months until permanent impairment could be assigned, but that he estimated that, with the post-traumatic deformity and loss of range of motion and the meniscectomy, the impairment would be approximately 25 percent of the lower extremity (joint exhibit 1, page 25). On June 2, 1987, Dr. Mead answered a report indicating that it was undetermined if there would be permanent disability (joint exhibit 1, page 46). Later, in response to a letter dated January 13, 1988, (joint exhibit 1, page 51), Dr. Mead reported to the insurance carrier that claimant had a 25 percent impairment of the lower extremity as a result of the injury (joint exhibit 1, page 56). It is found that, based upon the October 1, 1986, report and the fact of the removal of the lateral meniscus, it was reasonably certain that claimant would have some permanent disability affecting the right knee as early as October 1, 1986, when Dr. Mead issued his report. It was only the percentage of impairment that was uncertain. In October of 1986, the best estimate was that the impairment would be 25 percent. That estimate ultimately proved to be accurate. According to the stipulation attached to the prehearing report showing payments of weekly compensation, the bulk of the permanent partial disability compensation was not paid until January 26, 1988. It was unreasonable for the insurance carrier not to have paid some permanent partial disability compensation immediately at the end of the healing period since the fact that some permanency would result was a certainty. It is found that, under the circumstances which were known to exist, it was unreasonable not to have paid compensation for at least a 20 percent permanent partial disability of the right leg, even though the final impairment rating had not been made. The record does not show an express request for Page 4 a permanent impairment rating to have been made by the insurance carrier until the January 13, 1988, letter. The letter to the insurance carrier which was dated January 21, 1988, contains an impairment rating which was apparently based upon Dr. Mead's last examination of the claimant. That examination had been performed on September 14, 1987. It is found that Dr. Mead could have rated the impairment on September 14, 1987, if he had been asked to do so. If the insurance carrier had acted reasonably, it would have voluntarily paid 44 weeks of permanent partial disability compensation commencing at the end of the healing period. Those 44 weeks would have provided compensation through November 2, 1987. With Dr. Mead's examination on September 14, 1987, the final impairment rating of 25 percent could have been received by the insurance carrier, if it had requested the same promptly, in order to have permitted paying the additional five percent permanent partial disability (11 weeks) without there having been any interruption in benefits. Based upon the stipulation, the healing period is 46 and 1/7 weeks. Twenty-five percent permanent partial disability of the claimant's right leg would entitle him to 55 weeks of permanent partial disability compensation. The total entitlement would therefore be 101 and 1/7 weeks. According to the stipulated record of payments shown at page 6 of the prehearing report, an amount equal to 101 and 2/7 weeks of benefits has been paid. The initial 47 and 4/7 weeks were paid timely. The remaining 53 and 4/7 weeks (including 1/7 week overpayment) was not paid until January 26, 1988. Payment of 53 and 4/7 weeks of permanent partial disability compensation was therefore unreasonably delayed. It is found to have been entirely unreasonable not to have paid the claimant permanent partial disability compensation for a right leg injury in a timely manner. With regard to the January 10, 1986, injury, claimant also seeks to prove that the injury permanently affected his back or otherwise extended into his body. The first mention of any back complaints in the medical records following the January 10, 1986, injury is found at a note dated February 18, 1987 (joint exhibit 1, page 35). X-rays showed some degenerative disc disease. In a report dated September 5, 1989, Dr. Crane stated that, if claimant had no chronic back pain before his injury but then had pain subsequently, the pain would be directly related by history to the accident (joint exhibit 1, page 67). The history given in that report shows the onset of back pain with the accident suffered while driving a truck. That same report shows that the claimant states his right shoulder is not much of a problem (joint exhibit 1, page 67). In a report dated December 23, 1991, Dr. Mead states that the claimant's Page 5 arthritic changes in his spine and shoulder are most likely related to the aging process and perhaps accelerated by specific traumatic events such as a motor vehicle accident. The report goes on to state that claimant may not be able to do very heavy lifting but could probably tolerate lighter duty (claimant's exhibit B, page 71). The history of the onset of back pain immediately following the January 1986 truck accident is not corroborated by any medical record. The process which has been identified through x-rays is consistent with normal aging and deterioration. It is not a condition which is indicative of acute injury. The accident of January 10, 1986, that was described by the claimant does not show a series of events which would be likely to have produced a substantial back injury. It is therefore found that the evidence in this case does not show it to be probable that any permanent injury to the claimant's back resulted from the January 10, 1986, accident. The second injury alleged, file number 916719, deals with an accident that occurred on or shortly before October 1, 1986, while claimant was driving the employer's pickup. The record does not show the claimant to have sustained any identifiable injury, to have incurred any medical expenses for treatment of any injuries which were sustained, to have experienced any disability from performing his normal work or to have received any degree of permanent disability of any type whatsoever as a result of that accident. While claimant likely had some bumps, bruises or abrasions, the record fails to show that he sustained any injury which was sufficiently severe as to require medical treatment or to have disabled him to any extent either temporarily or permanently. The third injury which the claimant asserts occurred on May 5, 1987, when a sow caused him to fall upon his right shoulder. The incident was witnessed by his employer. Claimant has sought medical care for the shoulder on various occasions. Claimant expresses residual complaints regarding the shoulder, but there is nothing in the record which indicates that those complaints have any significant detrimental effect upon his ability to hold employment or limit his access to employments which would otherwise be appropriate for him. The fourth injury occurred on January 11, 1988, while he was loading sows. A sow ran into the gate he was holding and caused him to injure his back. The record shows that claimant did incur some expenses for treatment and travel, but it does not show any period of disability related to that injury. The injury was a temporary aggravation which did not cause any permanent disability as noted by Dr. Mead (joint exhibit 1, page 57). Claimant asserts an injury resulting from cumulative Page 6 trauma with an injury date of January 12, 1989, claimant's last day of work for the employer. Claimant's employment was terminated due to an accident wherein the employer's property was damaged. The claimant was not injured in that accident. Since that date, the claimant has obtained and held employment regularly. There is no indication that he has been disabled by any type of cumulative injury process. It was stipulated that the expenses incurred for treatment were fair and reasonable, that the treatment was reasonable and necessary and that it was causally connected to the alleged work injury. The expenses were not, however, authorized by any defendant. The itemized expenses include travel expenses as well as charges for chiropractic treatment and prescription medications. With regard to the January 10, 1986, injury, it is found that claimant received treatment for that injury running through May 1, 1987. In doing so, he traveled a total of 1,030 miles which entitles him to receive $216.30 in commuting expenses. There is no evidence in the record to indicate that the claimant ever obtained any treatment for the injuries he allegedly sustained on or about October 1, 1986. Claimant was injured on May 5, 1987, and thereafter received some treatment for his shoulder. Those treatments are the ones received commencing May 5, 1987, and running through September 14, 1987. He also incurred expenses in the amount of $35.00 with Judith M. Edling, D.C., for services performed on May 18 and May 21, 1987. Claimant was again injured while loading sows on January 11, 1988. It is found that the travel and expenses performed commencing January 13, 1988, and running through May 9, 1988, resulted from that incident. Claimant's visit to Dr. Crane on September 5, 1989, and the resulting prescription appear to be a temporary aggravation of his underlying condition which was related to his scrap iron business rather than to any of the earlier accidents. A radiographic report dated September 5, 1989, shows deterioration of the right rotator cuff and degenerative changes in the lumbar spine. There is no evidence in the record which directly relates either of those conditions to any of the injuries or injury processes which are present in the record of this case. CONCLUSIONS OF LAW The claimant has the burden of proving by a preponderance of the evidence that the alleged injury actually occurred and that it arose out of and in the course of employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, Page 7 154 N.W.2d 128 (1967). The words "arising out of" refer to the cause or source of the injury. The words "in the course of" refer to the time, place and circumstances of the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 1971). A personal injury contemplated by the workers' compensation law means an injury, the impairment of health or a disease resulting from an injury which comes about, not through the natural building up and tearing down of the human body, but because of trauma. The injury must be something which acts extraneously to the natural processes of nature and thereby impairs the health, interrupts or otherwise destroys or damages a part or all of the body. Although many injuries have a traumatic onset, there is no requirement for a special incident or an unusual occurrence. Injuries which result from cumulative trauma are compensable. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 1219, 38 N.W.2d 158 (1949); Almquist v. Shenandoah Nurseries, Inc., 218 Iowa 724, 254 N.W. 35 (1934). When the disability develops gradually over a period of time, the "cumulative injury rule" applies. For time limitation purposes, the compensable injury is held to occur when because of pain or physical disability, the claimant can no longer work. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). Claimant has failed to prove, by a preponderance of the evidence, that he sustained any injury on or about January 12, 1989. Claimant has proven that he sustained injury on each of the other four dates alleged. The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Page 8 Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Claimant has failed to prove that any of the three injuries, except for the injury of January 10, 1986, caused any temporary disability which exceeded three days or any permanent disability. With regard to the injury of on or about October 1, 1986, he has not introduced evidence showing any disability or medical treatment. With regard to the injury of May 5, 1987, claimant has not proven that the injury produced any disability, but he has proven that he traveled 64 miles in obtaining medical treatment for the injury which entitles him to receive $13.44 and that he incurred charges in the amount of $35.00 with Dr. Edling in treating the injury. With regard to the injury of January 11, 1988, claimant has not proven that he sustained any temporary or permanent disability, but he has proven an entitlement to medical expenses and mileage. He traveled 419 miles which entitles him to $87.99. He incurred charges in the amount of $30.00 with Dr. Edling and prescription expenses prescribed by Dr. Mead in the amount of $52.92. The injury of January 10, 1986, produced a 25 percent permanent partial disability of the claimant's right leg. It also caused an entitlement to healing period compensation running from January 10, 1986, through November 28, 1986. Iowa Code sections 85.33 and 85.34 provide the dates when weekly compensation benefits are due and payable. The record in this case does not show the precise dates when the claimant received any of his weekly benefits, but it does show the dates that the payments were issued to him. Any delay in his healing period compensation is determined to be de minimus. The record shows a regular practice of making periodic payments. There was a considerable delay in making the claimant's permanent partial disability compensation payments. The amount of that delay has been previously found to be unreasonable. Claimant is entitled to recover interest from the time each weekly payment came due until the date it was actually paid to him. Twenty-five percent permanent partial disability of the right leg entitles claimant to recover 55 weeks of permanent partial disability compensation. Benefits were regularly paid through December 9, 1986. Those payments paid all 46 and 1/7 weeks of the healing period entitlement and 1 and 3/7 weeks of the permanent partial disability compensation entitlement. The balance of 53 and 4/7 weeks of the permanent partial disability compensation entitlement was paid in a lump sum on January 26, 1988. Interest on permanent partial disability compensation is computed from the date each weekly payment came due until it is finally paid. Code section 85.30. The Page 9 current rate is ten percent per annum. It is also recognized that the proper method of allocating partial payments is to apply the payment first to interest which is then accrued with the balance of the payment being applied to the principal. A claimant's unpaid weekly compensation is essentially an open account and interest should be computed accordingly. Fockler v. Beach, 32 Iowa 187 (1871); Smith, Twogood & Co. v. Coopers, 9 Iowa 376 (1859); Huner v. Doolittle, 3 Greene 76, 54 Am. Dec. 489 (Iowa 1851). The proper method of computing interest is found in the Guide to Iowa Workers' Compensation Claim Handling. The factors for 53 weeks and 54 weeks are 2.6500 and 2.7519, respectively. The period in question is 53 and 4/7 weeks and four-sevenths of the difference between these two factors for the full weeks is .0582. The factor for 53 and 4/7 weeks is therefore 2.7082. Interest under Step 1 is therefore computed as $156.57 x 2.7082 = $424.02. The period during which permanency benefits were payable ended December 18, 1987 (55 weeks after November 29, 1986). As of December 18, 1987, claimant was owed $8,387.61 in unpaid weekly compensation for permanent partial disability. Interest on that amount from December 19, 1987, to January 26, 1988, (5 4/7 weeks) is $89.86. the amounts due claimant on January 26, 1988, were therefore $513.88 of interest and $8,387.61 of compensation for a total of $8,901.49. Payment of $8,410.00 on January 26, 1988, left $491.49 unpaid and subject to interest. From January 27, 1988, to June 4, 1992, is 227 and 2/7 weeks. Interest accrued during that period is $214.82. On June 4, 1992, the total owed to claimant for weekly compensation and interest is $706.31. If weekly compensation is not paid when due and is unreasonably delayed or denied, a penalty of up to 50 percent of the amount which was unreasonably delayed or denied can be assessed under the provisions of Code section 86.13. The test is whether or not the claim is fairly debatable. Stanley v. Wilson Foods Corp., File No. 753405 (App. Decn., August 23, 1990). The debate may be either a matter of fact or law. In this case, the only significant delay is the delay in payment of permanent partial disability for the claimant's right knee. In October of 1986, Dr. Mead had indicated that he expected a 25 percent permanent impairment of the leg, but that it would be at least three or four months before the amount of impairment could be determined with certainty (joint exhibit 1, page 25). It was stipulated by the parties that the healing period ended November 28, 1986. Under Code section 85.34(2), compensation for permanent partial disability is payable commencing at the end of the healing period. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986). The duty to pay Page 10 permanent partial disability, even for a scheduled member, is not conditioned upon having a precise, final impairment rating. In this case, the claimant's knee injury was sufficiently severe that some degree of permanency would have been apparent even in the absence of any impairment rating. The simple removal of the lateral meniscus at the time of the initial surgery would have warranted a rating of some impairment. The fracture of the tibial plateau is also an injury which typically leaves some permanent impairment. The nature of a claim for penalty under the fourth unnumbered paragraph of section 86.13 is not a direct claim for injury. It is a claim based upon claim handling practices and is similar to the first party bad faith failure to pay tort recognized in Dolan v. Aid Ins. Co., 431 N.W.2d 790 (Iowa 1988). It is a separate and distinct claim from the underlying injury claim. It is a claim which may arise years after the original injury, depending upon the claim handling practices which were followed. In October of 1986, the only indications in the record were that a 25 percent impairment of the leg was to be expected. A 25 percent impairment of the leg under Code section 85.34(2)(o) entitles the employee to 55 weeks of permanent partial disability compensation benefits. It might have been reasonable for defendants to take a conservative approach and plan to pay only 20 percent permanent partial disability voluntarily and then await the final impairment rating, which was to be expected in three or four months after October of 1986, before making their final determination on the claim. It should be noted that four months after October 1, 1986, would be February 1, 1987. Even by June 2, 1987, less than 27 weeks of permanent partial disability benefits were due and payable. In Dr. Mead's supplemental medical report dated June 2, 1987, the indication with regard to permanent disability was "undetermined at present." (Joint exhibit 1, page 46). It was not until Dr. Mead was specifically asked to provide an impairment rating that he did so. The claims representative for Allied did not ask for that rating until January 13, 1988 (joint exhibit 1, page 51). After receiving the request, the doctor promptly responded and the permanent partial disability compensation was then paid. It is important to note that the impairment rating given by Dr. Mead in January was based upon his last office call with the claimant which occurred on September 14, 1987 (joint exhibit 1, page 56). It therefore stands to reason that, if the insurance carrier had seen fit to ask the doctor for an impairment rating following that September 14, 1987, office call, an impairment rating could have been given at that time. It also stands to reason that the rating would have been 25 percent if it had been given in September of 1987, just as Page 11 it was when it was finally given in January of 1988. Nothing prohibited the doctor from being asked for a rating sooner than January. Under these circumstances the failure to pay promptly was entirely unreasonable. Defendants should have promptly commenced permanent partial disability payments and paid a conservative estimate of what the impairment was likely to be. Such a conservative estimate would have run through September of 1987. If they had asked for the rating sooner, defendants could have received the final rating in late September or early October of 1987, and should have then been in a position to pay the balance in a timely fashion. This was not done. Awaiting a final impairment rating is not a justifiable cause for failing to pay any permanent partial disability compensation. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986). The duty of an adjuster is to adjust the claim based upon the information that is available at the time when decisions regarding the claim must be made. One and three-sevenths weeks of permanent partial disability had been paid in December of 1986. Therefore, the remaining 53 and 4/7 weeks were not timely paid and the failure to pay in on a timely basis was without probable cause or excuse. In view of all the foregoing, it is determined that it was unreasonable not to have paid at least a 20 percent permanent partial disability voluntarily, despite the absence of a final impairment rating. Twenty percent equates to 44 weeks of compensation. It is determined that a penalty in an amount which is approximately equal to 50 percent of 40 weeks would be appropriate. The penalty is therefore assessed at $3,000. ORDER IT IS THEREFORE ORDERED that, in file number 814422, defendant employer and Allied Insurance Company pay Harvey Hugo forty-six and one-seventh (46 1/7) weeks of compensation for healing period at the rate of one hundred fifty-six and 57/100 dollars ($156.57) per week payable commencing January 10, 1986. IT IS FURTHER ORDERED that, in file number 814422, defendant employer and Allied Insurance Company pay Harvey Hugo fifty-five (55) weeks of compensation for permanent partial disability affecting his right leg at the rate of one hundred fifty-six and 57/100 dollars ($156.57) per week payable commencing November 29, 1986. IT IS FURTHER ORDERED that, after credit for all payments previously paid to the claimant in file number 814422, defendant employer and Allied Insurance Company pay claimant the additional sum of seven hundred six and 31/100 dollars ($706.31) representing four hundred ninety-one and 49/100 dollars ($491.49) in weekly compensation and two hundred fourteen and 82/100 dollars ($214.82) in interest. IT IS FURTHER ORDERED that, in file number 814422, Page 12 defendant employer and Allied Insurance Company pay claimant the sum of three thousand and 00/100 dollars ($3,000.00) as a penalty under the provisions of the fourth unnumbered paragraph of Code section 86.13. IT IS FURTHER ORDERED that, in file number 814422, defendant employer and Allied Insurance Company pay Harvey Hugo two hundred sixteen and 30/100 dollars ($216.30) for transportation expenses under the provisions of Code section 85.27. IT IS FURTHER ORDERED that, in file number 916719, no award of any type is due to the claimant from the defendant employer and its insurance carrier. IT IS FURTHER ORDERED that, in file number 916718, defendant employer and Bituminous Casualty Company pay Harvey Hugo thirteen and 44/100 dollars ($13.44) for transportation expenses and thirty-five and 00/100 dollars ($35.00) for expenses of treatment incurred with Dr. Edling. IT IS FURTHER ORDERED that, in file number 916720, defendant employer and Bituminous Casualty Company pay Harvey Hugo eighty-seven and 99/100 dollars ($87.99) for transportation expenses, thirty and 00/100 dollars ($30.00) for expenses of treatment with Dr. Edling, and fifty-two and 92/100 dollars ($52.92) for prescription medication. IT IS FURTHER ORDERED that, in file number 916717, claimant receive no recovery. IT IS FURTHER ORDERED that the costs of this proceeding are assessed against the defendant employer and its insurance carrier in file numbers 814422, 916718 and 916720. The costs in file numbers 916717 and 916719 are assessed against the claimant. All witness fees are assessed against the defendant employer and Allied Insurance Company in file number 814422. The costs in each file are seventy-one and 60/100 dollars ($71.60), except for 814422 where the amount is one hundred forty and 54/100 dollars ($140.54). IT IS FURTHER ORDERED that defendant employer and its respective insurance companies shall each file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ______ day of ____________, 1992. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Page 13 Mr. Mark S. Soldat Attorney at Law 714 East State Street Algona, Iowa 50511 Mr. Brian L. Campbell Attorney at Law 801 Grand Avenue, Suite 3700 Des Moines, Iowa 50309-2727 Mr. Rustin T. Davenport Attorney at Law 30 4th Street NW P.O. Box 1953 Mason City, Iowa 50401 Mr. Stephen W. Spencer Attorney at Law Suite 300, Fleming Building P.O. Box 9130 Des Moines, Iowa 50306-9130 1402.40; 2101; 2209; 3800 4000.2 Filed June 4, 1992 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ HARVEY HUGO, Claimant, File Nos. 814422 916717 vs. 916718 916719 WILBERT HASSEBROEK, d/b/a 916720 HASSEBROEK TRUCKING and J & J LIVESTOCK, A R B I T R A T I O N Employers, D E C I S I O N and ALLIED INSURANCE COMPANY, BITUMINOUS CASUALTY, and GREAT WEST CASUALTY COMPANY, Insurance Carriers, Defendants. ____________________________________________________________ 2209 Claimant brought five cases against the employer. A cumulative injury claimant was denied where the last day of work before being fired was the date of alleged injury. 1402.40 Two were minor injuries where medical expenses were awarded but no temporary or permanent disability was found. A fourth involved injuries so minor that no recovery was awarded. The first injury in time severely injured claimant's knee and produced nearly a year of healing period and permanent partial disability. 3800 Permanent partial disability was delayed over one year and then a lump sum was paid. Where partial payments are paid, they are applied first to accrued interest and the balance reduces the amount of unpaid weekly compensation. The unpaid balance then accrues interest until the next payment. 4000.2; 2101 Lack of a final impairment rating does not excuse failure to pay some reasonable amount of permanent partial disability where the condition typically results in permanency and an expected final rating has been given by the doctor.