BEFORE THE IOWA INDUSTRIAL COMMISSIONER FRANCIS R. GILE, SR., Claimant, File Nos. 816148 816149 VS. BARTON SOLVENTS, INC., A R B I T R A T I 0 N Employer, D E C I S I 0 N and THE TRAVELERS Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Francis R. Gile, Sr., claimant, against Barton Solvents, Inc., employer, and The Travelers, insurance carrier, defendants, for benefits as a result of an alleged injury which occurred on April 12, 1984 and was later aggravated again on August 22, 1985. A hearing was held on January 7, 1987 in Davenport, Iowa, and the case was fully submitted at the close of the hearing. The record consists of the testimony of Francis R. Gile, Sr. (claimant), Jerry Collins (branch manager), claimant's exhibits 1 through 9, and defendants' exhibits A, B and C. Both attorneys submitted excellent briefs. STIPULATIONS The parties stipulated to the following matters: 1. That an employer-employee relationship existed between claimant and employer at the time of the alleged injury. 2. That permanent disability is not an issue in this case. 3. That the extent of entitlement to weekly compensation for temporary total disability benefits, if defendants are liable for the injury, is from April 12, 1984 through June 3, 1984. 4. That the rate of weekly compensation, in the event of an award, is $217.43. 5. That the medical expenses are fair and reasonable, GILE V. BARTON SOLVENTS, INC. Page 2 were for reasonable and necessary treatment, and were caused by claimant's hernia problems. 6. That defendants are entitled to a credit under Iowa Code section 85.38(2) for income disability benefits paid prior to hearing under an employee nonoccupational group plan, but that the amount of the credit is in dispute. 7. That there is no claim for credits for workers' compensation benefits previously paid prior to the hearing. 8. That there are no bifurcated claims. ISSUES The issues presented by the parties for determination at the time of the hearing are as follows: 1. Whether claimant sustained an injury on April 12, 1984 which was aggravated again on August 22, 1985 which arose out of and in the course of his employment with employer. 2. Whether the alleged injury was the cause of any disability during a period of recovery from April 12, 1984 through June 3, 1984. 3. Whether claimant is entitled to temporary total disability benefits during a period of recovery from April 12, 1984 through June 3, 1984. 4. Whether claimant is entitled to medical expenses for the alleged injury of April 12, 1984 and the aggravation of the alleged injury on August 22, 1985. 5. Whether claimant gave notice or whether employer had actual notice as required by Iowa Code section 85.23. 6. Whether the amount of the credit under Iowa Code section 85.38(2) is the gross amount paid by the insurance company in the amount of $1,111.89, or whether the credit is the net amount received by claimant of $1,037.39 after the withholding of $74.50 for social security tax. SUMMARY OF THE EVIDENCE All of the evidence was examined and considered. The following is a summary of the pertinent evidence. Claimant is 52 years old, married, and has no dependent children. He started to work for employer in February 1977. He was a warehouseman for six months and then engaged in route sales for two and one-half years. Since then he has been a dock foreman. He is a working foreman. Approximately 50 percent of GILE V. BARTON SOLVENTS, INC. Page 3 his work is supervisory and 50 percent of his work is physical labor as a warehouseman. Employer's plant is located in Bettendorf, but employer distributes chemicals such as solvents, lacquer thinner and alcohol in a five state area. As a warehouseman, claimant's job involved processing 55 gallon drums and loading and unloading trucks. An empty drum weighs about 45 pounds. Sometimes, they weigh up to 100 pounds if they are. not completely empty. Claimant testified that he lifted these drums on a number of occasions. The weight of a full drum depends upon the contents and can vary from approximately 350 pounds to 750 pounds. Claimant testified that sometimes a full drum would be laying on its side and that he would manually lift it up on its rim to a standing position. Processing an empty drum entails taking it off the truck, sucking out the remaining contents by vacuum, scraping, cleaning and testing the drum, repainting it, stenciling it, setting it out to dry, refilling it, and sending it out on a truck again. There are mechanical devices that set the drums on pallets with the employee maneuvering the weight of the load. However, when loading a pickup or a panel truck, you have to load it by hand. The customary method is to balance the drum with the foot, pull the top of the drum toward you, tilt the drum on the edge of the rim, and then roll it into the truck by hand. He testified that he has frequently handled 750 pound drums in this manner. However, now it sometimes gives him pain in the groin. Jerry Collins, branch manager, confirmed claimant's description of his work. Collins stated that he performed the same duties when he began work for the employer twenty-one years ago as a drum cleaner. Collins did not, however, consider it heavy work. He stated that it is all balance. A woman could do it. Claimant testified that he first noticed sharp pain in the abdominal area in approximately November of 1983, but he did not know what it was at that time other than a sharp pain in the groin. Then, when claimant saw Dr. Fesenmeyer (full name unknown), a company doctor, on March 20, 1984 for a physical examination in order to renew his ICC license, Dr. Fesenmeyer informed claimant that he had a hernia and that he should see his own personal physician about it. There is no report in evidence from Dr. Fesenmeyer, Claimant testified that Dr. Fesenmeyer always checks for hernias on his company physical examination. Claimant followed this advice and contacted his personal physician, Mark Hermanson, M.D., on that same day, March 20, 1984. Dr. Hermanson's notes for March 20, 1984 record the following: Pt. comes in after being seen by Dr. Fesenmeyer for a company physical who informed him that he had hernias on both sides, right greater than left. His works [sic] involves a lot of heavy lifting, states there is no such thing as light duty in his job or in that dept. He is a working foreman. (Ex. B, p. 2.) Dr. Hermanson diagnosed bilateral inguinal hernia. He then commented as follows: GILE V. BARTON SOLVENTS, INC. Page 4 Suggested that since he is having no symptoms that he may continue to work if he so desires. Suggested that he should inform his supervisor that he has hernias and that the doctor felt that it would be wise to avoid heavy lifting to delay or prevent symptoms from arising. If he becomes symptomatic will refer to surgeon for repair. (Ex. B, p. 2.) Claimant testified at the hearing that Dr. Hermanson told him on March 20, 1984 that his hernias were probably caused by work when he told the doctor about what he did at work. Claimant testified that this was when he first learned that he had hernias and that they were caused by his work. Claimant testified and Dr. Hermanson's notes reflect that claimant returned to Dr. Hermanson on April 12, 1984 for increasing pain with his inguinal hernias. The hernias were still present and painful to palpation. Dr. Hermanson referred claimant to Daniel P. Congreve, M.D., for an appointment on April 17, 1984 in order to schedule surgery (Ex. B, p. 2). Claimant returned to Dr. Hermanson the following day on April 13, 1984 with increasing pain in the right inguinal region secondary to hernia. Dr. Hermanson ordered bedrest and no lifting at work until after claimant was evaluated and treated by Dr. Congreve on April 17, 1984. On April 20, 1984, Dr. Hermanson recorded that claimant was scheduled for hernia surgery by Dr. Congreve on April 24, 1984 (Ex. B., p. 2). Claimant testified at the hearing that he told either Larry Wedemeyer or Jerry Collins, whoever was his supervisor, about the hernias the same day he learned it from Dr. Hermanson on March 20, 1984. Claimant also testified that he notified Larry Wedemeyer that his hernias were caused by work in April 1984. Exhibit 6 is a weekly indemnity disability notice bearing the letterhead of The Travelers Group Health Claim in the upper right-hand corner. This form shows that it was signed by claimant on April 19, 1984 at the bottom. It is marked "yes" in answer to the question, "is condition work related?" On this form claimant stated that the condition occurred between October and April 1984 at Barton Solvents due to heavy lifting. Claimant further described the condition which kept him from working as his dock man duties which required continual moving of empty 45 pound drums and moving full drums of liquid weighing between 400 and 700 pounds. Collins testified that he first learned that a work-related claim was being made when claimant made out this report on April 19, 1984. Dr. Congreve repaired both hernias on April 24, 1984 (Ex. 2). Claimant admitted that company rules require a speed memo to report all injuries and that he did not make out a speed memo. However, he testified that he told supervisory personnel in person and that he made out a written report to David Akers on GILE V. BARTON SOLVENTS, INC. Page 5 the insurance company's form from The Travelers when he completed the weekly indemnity notice dated April 19, 1984 (Cl. Ex. 6). Claimant testified that he informed employer that he wanted to make a workers' compensation claim at the same time he completed exhibit 6, but he was told he could not apply for workers' compensation for the reason that there was no proof that it was job related. Exhibit 7 is a memo from Jerry Collins to claimant's personnel file with a copy to Travelers dated May 14, 1984. It reads as follows: Per our conversation with Francis R. Gile, Sr. today, we have come to the agreement that he is not sure if his hernia is or isn't work related. All he is sure of is that he had a physical last fall which didn't indicate any problem. (Ex. 7). Claimant was off work from April 13, 1984, when Dr. Hermanson took him off work until June 4, 1984, when Dr. Congreve returned him to work after the surgery. Claimant testified that after he returned to work he had a flareup of his hernia condition in August of 1985. He was moving drums and the cart tipped over. He went down with it and felt a sharp pain. He reported this to Larry Wedemeyer and was sent to see Andrew Edwards, M.D. Dr. Edwards reported that he saw claimant on December 6, 1985 at which time claimant complained of left inguinal pain on lifting. The doctor found a left inguinal area tender to palpation and that there was minimal bulging on valsalva maneuver. He diagnosed probable recurrent hernia and instructed claimant to go back to work, but he was to wear a truss for two to three weeks. If he had further difficulty, Dr. Edwards told him to see Dr. Congreve. Exhibit 8 is a memo dated December 11, 1985 dictated by Collins on the subject "hernia injury on Frank Gile, Sr." That memo reads as follows: Frank informed Jeff Kraft on approximately 8-22-85, that he hurt himself wheeling drums. Possible rupture has been bothering him on and off since then. He went to Dr. Andy Edwards and he recommended Frank wear a truss for one month to the middle of January then reschedule another appointment to check. If this does not work he will need further surgery to correct, putting mesh inside to support tissue. Frank would not be allowed to lift!!! While wearing truss, Frank has been okOd for full time work, per conversation with Dr. Edwards on the phone 12-6-85. (Ex. 8.) Claimant filed this petition for workers' compensation benefits on April 12, 1986 (original notice and petition). He testified that the reason he filed the petition was because the employer told him to pay Dr. Edwards himself. Claimant also testified he talked to Travelers' claim representatives on the telephone earlier and that they denied his workers' compensation claim for the hernia surgery on the telephone. GILE V. BARTON SOLVENTS, INC. Page 6 Exhibit 9 is a list of claimant's medical expenses which show that claimant personally paid $508.20 out-of-pocket for his medical expenses. Exhibit C is an explanation of benefits from Travelers showing that the total income disability available under employers' nonoccupational group plan for income disability was $1,111.89, but they subtracted $74.50 for social security withholding tax, and that the total benefit paid to claimant was $1,037.39. On April 1, 1986, Dr. Hermanson stated: It is my opinion that in view of the type of work, which required a lot of heavy lifting, that there is a very reasonable chance that his herniae resulted from his work. (Ex. 4.) On May 23, 1986, Dr. Hermanson altered those comments to read as follows: It is my opinion that in view of the type of work that the patient is frequently required to do, which involves heavy lifting and rolling of heavy barrels, that within a reasonable degree of medical probability the herniae were caused by his work. (Ex. 1.) Dr. Congreve gave the following opinion to defendants' counsel on April 21, 1986: I first saw Mr. Gile on April 17, 1984 when he stated to me that he was found to have bilateral inguinal hernias by his "company doctor". He was referred to me by Dr. Hermanson for consideration of hernia repair. This was performed on April 24, 1984. Please find enclosed his history and physical, operative report, laboratory data and his path report. Of note, Mr. Gile did not relate a specific incident when these hernias were first noted, but did complain of increasing pressure and discomfort while at work. (Ex. 2.) Dr. Congreve gave a later report on July 7, 1986 in which he stated he saw claimant on June 2, 1986 complaining of pain in both groins. However, he did not have recurrent inguinal herniation on either side at that time. He was given medication for this irritation and failed to keep his return appointment on July 1, 1986 (Ex. A). APPLICABLE LAW AND ANALYSIS An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(l). Claimant has the burden of proving by a preponderance of the evidence that he received injuries on April 12, 1984 and August 22, 1985 which arose out of and in the course of his employment. GILE V. BARTON SOLVENTS, INC. Page 7 McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The Iowa Supreme Court has defined injury very broadly as any impairment to health which comes about not through the natural building up or tearing down of a human body. Almquist v. Shenandoah, Inc., 218 Iowa 724, 254 N.W. 35 (1934). Although many injuries are traumatic in nature, no accident is required. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1116, 125 N.W.2d 251, 254 (1963). Neither does there have to be a special incident or unusual occurrence. Ford v. Goode, 240 Iowa 1219, 1222, 38 N.W.2d 158, 159 (1949). A personal injury may develop gradually over an extended period of time. Black v. Creston Auto Company, 255 Iowa 671, 281 N.W. 189 (1938). It has been held in Iowa that the cumulative injury concept may apply to factually appropriate cases. McKeever Custom Cabinets, Inc. v. Smith, 371 N.W.2d 368 (1985). In that case, the Iowa Supreme Court made a distinction between the discovery rule and the cumulative injury rule at pages 372 and 373: These two rules are closely related, but they are not the same. The discovery rule may apply where a compensable injury occurs at one time but the employee, acting as a GILE V. BARTON SOLVENTS, INC. Page 8 reasonable person, does not recognize its "nature, seriousness and probable compensable character" until later. Orr v. Lewis Central School District, 298 N.W.2d 256, 257 (Iowa 1980). The cumulative injury rule, however, treated by Professor Larson under the heading "gradual injury", may apply when the disability develops over a period of time; then the compensable injury itself is held to occur at the later time. 1B. A. Larson, Workmen's Compensation SS 39.10 (1985). The claimant has the burden of proving by a preponderance of the evidence that the injuries of April 12, 1984 and August 22, 1985 are causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Claimant did sustain the burden of proof by a preponderance of the evidence that he sustained an injury which arose out of and in the course of his employment on two different dates as alleged. Claimant testified that his work as a warehouseman was quite strenuous at times. He handled empty drums weighing 45 pounds. If they were not fully empty, they could weigh as much as 100 pounds. Full drums weigh between 350 and 750 pounds. Sometimes it was necessary to stand a full drum upright that was laying on its side. Other times these drums were maneuvered while using mechanical devices. Other times full drums would be tilted up on their rims and rolled in order to move them from place to place. Claimant testified that sometimes he would lift a freshly painted, empty drum off the ground and set it on top of another drum in order to dry. This testimony by claimant describing the sometimes strenuous nature of his job was not controverted. On the contrary, it was corroborated by Collins except that Collins did not personally classify it as heavy work. Claimant described his work to Dr. Hermanson on March 20, 1984. Claimant said that Dr. Hermanson told him that his hernias were work related. This statement of course is hearsay, but Dr. Hermanson's notes for March 20, 1984 suggest that claimant should inform his supervisor that he has hernias and that it would be GILE V. BARTON SOLVENTS, INC. Page 9 wise to avoid heavy lifting to delay or prevent symptoms from arising (Ex. B, p. 2). Dr. Hermanson stated on May 23, 1986 that the hernias were caused by claimant's work (Ex. 1). Dr. Congreve does not give a definitive statement on causal connection. He said, however, that even though claimant did not relate a specific incident when these hernias were first noticed, he nevertheless did complain of increasing pressure and discomfort at work (Ex. 2). Dr. Edwards did not give a specific opinion on causal connection (Ex. 3). In brief then, claimant testified that he had some groin pain in November 1983, but he did not know what it was. On March 20, 1984, Dr. Fesenmeyer, during the course of a company physical examination, diagnosed right and left hernia even though claimant did not complain of any symptoms at that time. Claimant followed Dr. Fesenmeyer's instructions and saw his own personal physician, Dr. Hermanson, on this same day. On April 12, 1984, claimant did become symptomatic and saw Dr. Hermanson again. On April 13, 1984, Dr. Hermanson took claimant off work due to increasing hernia pain. On April 24, 1984, Dr. Congreve repaired a hernia. Claimant returned to work on June 4, 1984. In summary, Dr. Hermanson says that claimant's hernias are work-related injuries. Dr. Congreve implies that they could be work-related injuries because of increasing pressure and discomfort while at work. Dr. Congreve did not say that the hernias were not work-related injuries. Dr. Edwards gives no opinion on this point. Claimant's testimony indicated that he believes that his hernias were work-related injuries. Collins did not testify that the hernias were not work-related injuries. Defendants did not offer any other cause for these hernias. No other cause other than the job is suggested by any of the testimony, lay or expert. Consequently, it must be concluded and it is now determined that claimant did sustain the burden of proof by a preponderance of the evidence (1) that he did sustain an injury that arose out of and in the course of employment with employer; (2) that the injury caused claimant to be temporarily and totally disabled from April 12, 1984 through June 3, 1984; (3) that claimant is entitled to temporary total disability benefits from April 12, 1984 through June 3, 1984; and (4) that claimant is entitled to $508.22 of unpaid medical expenses for these injuries. Claimant has advanced the cumulative injury theory as enunciated in the McKeever case. It is now determined that this is not a factually appropriate situation for the application of this rule. Claimant did not describe gradually increasing symptoms or several repeated traumas over time. Essentially, claimant testified that he experienced some pain in the groin in November 1983. Then, Dr. Fesenmeyer diagnosed bilateral inguinal hernias on March 20, 1984, but they were not symptomatic at that GILE V. BARTON SOLVENTS, INC. Page 10 time and claimant was not aware that he had them. On April 12, 1984, the hernias became symptomatic. Therefore, it is not possible to determine whether the condition occurred from numerous incidents over a period of time or simply from one or two events. McKeever at 374. It is equally as possible that the condition is a result of one or two events as it is from numerous incidents over a period of time. Consequently, it cannot be determined to be a cumulative injury under the evidence present in this case. The discovery rule does apply to this case. Claimant testified that he first learned that he had hernias and that they were work related on March 20, 1984 from Dr. Hermanson. Therefore, it is determined that claimant recognized the nature, seriousness, and probable compensable character of this condition on March 20, 1984. Orr v. Lewis Central School District, 298 N.W.2d 256, 257 (Iowa 1980). Claimant testified that he to Larry Wedemeyer or Jerry Collins that day. Collins, employer's branch manager, testified that he learned of the condition on April 19, 1984 when claimant filed a claim for income disability based on a work-related injury. Employer, then, both received notice from claimant and had actual knowledge of the injury on April 19, 1984 which is within ninety days of the time it was discovered on March 20, 1984 as required by Iowa Code section 85.23. Failure to give notice is an affirmative defense. DeLong v. Iowa State Highway Commissioner, 229 Iowa 700, 295 N.W. 91 (1940), Reddish v. Grand Union Tea Company, 230 Iowa 108, 295 N.W. 800 (1941). Defendants, therefore, failed to sustain the burden of proof by a preponderance of the evidence that claimant did not give proper notice as provided by Iowa Code section 85.23. Iowa Code section 85.38(2) provides: Credit for benefits under group plans. In the event the disabled employee shall receive benefits, including medical, surgical or hospital benefits, under any group plan covering nonoccupational disabilities contributed to wholly or partially by the employer, which benefits should not have been paid or payable if any rights of recovery existed under this chapter, chapter 85A or chapter 85B, then such amounts so paid to said employee from any such group plan shall be credited to or against any compensation payments, including medical, surgical or hospital, made or to be made under this chapter, chapter 85A or chapter 85B. A literal interpretation of this section would focus on the words "in the event the disabled employee shall receive any benefits" and the words "amounts so paid to said employee." In this case, the employee received and was paid only $1,037.39. It would appear that the purpose of this code section is to put the parties in the same position they would be in if the claim had been administered correctly in the first place. If this claim had been handled correctly in the first place, claimant would have received workers' compensation benefits instead of nonoccupational group plan income disability benefits. Workers' compensation benefits are not subject to social security withholding. It was the choice or determination of the employer or its representatives to pay nonoccupational group plan income disability benefits. Therefore, if employer or its GILE V. BARTON SOLVENTS, INC. Page 11 representatives erroneously paid social security withholding tax to the federal government which was not, in fact, due to the social security administration, then it is incumbent upon employer or its representatives to file an amended return with the social security administration and recoup this $74.50 which was erroneously paid. It is, therefore, determined that defendants are entitled to a credit of $1,037.39, the net amount received by and paid to claimant. According to (1) the testimony of claimant at the hearing, (2) exhibit 8, the memo from Jerry Collins, and (3) exhibit 3, the report of Dr. Edwards, there is no dispute that claimant reported that he reinjured his hernia on August 22, 1985 at work and saw Dr. Edwards, who diagnosed left inguinal tenderness and bulging with the valsalva maneuver. Therefore, it is determined that claimant did sustain a second injury on August 22, 1985 that arose out of and in the course of his employment with employer. FINDINGS OF FACT WHEREFORE, based upon the evidence presented, the following findings of fact are made: That claimant sustained an injury on March 20, 1984 when he was told by Dr. Hermanson that his bilateral inguinal hernias were related to his work as a working dock foreman for employer. That claimant first learned of the nature, seriousness and probable compensable character of the injury on March 20, 1984 when he was so informed by Dr. Hermanson. That the injury caused claimant to be off work from April 12, 1984 through June 3, 1984 for surgery and recuperation. That claimant was off work from April 12, 1984 through June 3, 1984 due to this injury as stipulated. That claimant incurred $508.22 in medical bills that were not paid by employer. That claimant notified employer in writing of his injury on April 19, 1984. That claimant received and was paid $1,037.39 in nonoccupational employee group plan income disability payments. That claimant sustained an injury on August 22, 1984 when he had a recurrence of left inguinal hernia pain. That claimant lost no time from work for the second injury. That claimant is not permanently disabled as stipulated by the parties. CONCLUSIONS OF LAW GILE V. BARTON SOLVENTS, INC. Page 12 WHEREFORE, based upon the evidence presented and the principles of law previously mentioned, the following conclusions of law are made: That claimant did sustain an injury on March 20, 1984 and again on August 22, 1985 that arose out of and in the course of employment with employer. That the injury of March 20, 1984 was the cause of temporary total disability for the period from April 12, 1984 through June 3, 1984. That claimant is entitled to seven point five seven one (7.571) weeks of temporary total disability benefits for the period from April 12, 1984 through June 3, 1984. That claimant is entitled to five hundred eight and 22/100 dollars ($508.22) of medical expenses which claimant paid himself. That claimant did give proper notice of the injury of March 20, 1984 as required by Iowa Code section 85.23 based on the discovery rule. That defendants are entitled to a credit of one thousand thirty-seven and 39/100 dollars ($1,037.39) pursuant to Iowa Code section 85.38(2). GILE V. BARTON SOLVENTS, INC. Page 13 ORDER THEREFORE, IT IS ORDERED: That defendants pay to claimant seven point five seven one (7.571) weeks of temporary total disability benefits at the rate of two hundred seventeen and 43/100 dollars ($217.43) in the total amount of one thousand six hundred forty-six and 16/100 dollars ($1,646.16) for the period April 12, 1984 through June 3, 1984. That defendants pay this amount in a lump sum. That interest will accrue under Iowa Code section 85.30. That defendants pay to claimant five hundred eight and 22/100 dollars ($508.22) in unpaid medical expenses. That defendants are entitled to a credit in the amount of one thousand thirty-seven and 39/100 dollars ($1,037.39) pursuant to Iowa Code section 85.38(2). That defendants will pay the costs of this action in accordance with the provisions of Division of Industrial Services Rule 343-4.33. That defendants are to file first reports of injury for the injuries involved in this case. That defendants are to file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 25th day of August, 1987. WALTER R. McMANUS, JR DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Michael J. Motto Attorney at Law 1002 Kahl Building Davenport, Iowa 52801 Ms. Vicki L. Seeck Attorney at Law 600 Union Arcade Building 111 E. 3rd Street Davenport, Iowa 52801 1106; 1108.50; 1402.20; 1402.30; 1402.40;1402.50; 1402.60; 1403.30; 1801; 2401; 2802; 2803; 2209; 1701 BEFORE THE IOWA INDUSTRIAL COMMISSIONER FRANCIS R. GILE, SR., Claimant, File Nos. 816148 816149 VS. BARTON SOLVENTS, INC., A R B I T R A T I 0 N Employer, D E C I S I 0 N and THE TRAVELERS, Insurance Carrier, Defendants. 1106; 1108.50; 1402.20; 1402.30; 1402.40; 1402.50; 1402.60; 1403.30; 1801; 2401; 2802; 2803 Found that claimant's hernias were injuries that arose out of and in the course of employment, caused temporary total disability for the period stipulated, and that claimant was entitled to compensation and medical benefits as alleged. Discovery rule applied and written notice given by claim form in timely manner. 2209 Evidence did not establish factually appropriate situation for cumulative injury, but discovery rule did apply to an injury of no specified date and no specified incident. 1701 Defendants only allowed ICS 85.38(8) credit for amount claimant actually received and not amount they paid for social security withholding tax because it was not "received by" or "paid to" employee as statute provides. Employer could file amended return with social security and recoup payment erroneously made. BEFORE THE IOWA INDUSTRIAL COMMISSIONER WILLIAM P. MEREDITH, Claimant, File No. 816286 vs. A R B I T R A T I O N BURGER CONSTRUCTION, D E C I S I O N Employer, F I L E D and FEB 7 1989 UNITED STATES FIDELITY & INDUSTRIAL SERVICES GUARANTY COMPANY, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by William P. Meredith against Burger Construction, his former employer, and United States Fidelity & Guaranty Company, the employer's insurance carrier. The case was heard and fully submitted at Cedar Rapids, Iowa on June 3, 1988. The record in the proceeding consists of joint exhibits 1 through 33 and testimony from William P. Meredith and Glen Millard. ISSUES AND STIPULATIONS It was stipulated that claimant sustained an injury on January 28, 1986 which arose out of and in the course of his employment. The only issue for determination is the extent of permanent partial disability that was proximately caused by the injury. SUMMARY OF EVIDENCE The following is a summary of evidence presented in this case. Of all the evidence received at the hearing, only that considered most pertinent to this decision is discussed. Conclusions about what the evidence showed are inevitable with any summarization. The conclusions in the following summary should be considered to be preliminary findings of fact. William P. Meredith is a 37-year-old, married man who lives at Iowa City, Iowa. Meredith is a high school graduate. After high school, he worked briefly in a warehouse, served in the Navy Reserve and then became a union.carpenter. He operated his own business for approximately six years. He also has worked for an employer as a construction manager and as a working foreman. Meredith had lived and worked primarily in the state of Illinois before moving to Iowa City in November, 1983. Meredith had two prior back injuries which had resulted in surgery. The first injury occurred in 1974 and claimant underwent a lumbar laminectomy for herniated disc at the L4-5 level on February 19, 1975 (exhibits 14 and 29). The record contains no evidence of impairment ratings or physical restrictions resulting from the 1974 injury. Claimant testified that, following recuperation from the surgery, he returned to the same type of work as he had performed prior to the injury. Claimant stated that he did not file a workers' compensation claim for the 1974 injury. Claimant was injured again in 1982 and eventually underwent surgery for a protruded disc at the left L5-S1 level of his spine. Following that injury, he was advised to avoid heavy lifting (exhibit 19). Meredith received a workers' compensation settlement under the laws of the state of Illinois which paid $15,000 representing a ten percent impairment of the body as a whole (exhibits 29 and 30). Claimant testifies that, when he moved to Iowa, he already had a job arranged with Burger Construction. He stated that he worked in the cabinet shop due to his back condition for approximately seven or eight months, but then went to the field and worked as a carpenter, usually as a working foreman. Claimant testified that he was injured on January 28, 1986 when a table saw which he was helping to unload slipped off a dolly and he caught all the weight of the machine. Claimant stated that, after the injury, he tried to work, but was unable to do so. He stated that he went home, attempted bed rest and then sought medical treatment. Claimant was hospitalized at Mercy Hospital in Iowa City under the care of William Pontarelli, M.D., an orthopaedic surgeon. Claimant was treated conservatively with bed rest, pain medication and physical therapy. A CT scan showed possible lateral recess stenosis at L4-5 and a possible free disc fragment or rerupture of the disc at that level (exhibit 2). Dr. Pontarelli issued a report dated June 20, 1986 in which he indicated that claimant has constant persistent back and bilateral leg pain which is worse with activity and relieved by rest. Dr. Pontarelli stated that it was unlikely that claimant would ever be able to resume employment as a carpenter. The doctor felt that surgical treatment could not be predicted to provide enough benefit to allow claimant to resume employment as a carpenter and that vocational rehabilitation would be appropriate. Dr. Pontarelli rated claimant as having a 15% permanent impairment of the whole person as a result of the January 28, 1986 injury.(exhibits 4 and 5). In November, 1986, claimant was evaluated at the Mercy Hospital Medical Center Medical Occupational Evaluation Center. Orthopaedic surgeon Joshua Kimelman, D.O., rated claimant as having a 20% permanent partial impairment, of which 10% was preexisting the most recent injury. Dr. Kimelman had no further recommendations for diagnosis or treatment and agreed that working with vocational rehabilitation would be appropriate for claimant. Dr. Kimelman stated that claimant should refrain from activities that require bending, twisting or repetitive lifting in excess of 50 pounds (exhibit 20, page I-3). Exhibit 20 also contains a report entitled "Transfer of Skills" which discusses claimant's vocational outlook. Tests were conducted and claimant performed well above average. The report concluded that vocational rehabilitation, in particular training in the area of computers, would be appropriate. Claimant testified that, after the most recent injury, he realized that he could not continue to work as a carpenter and needed a career change. Claimant enrolled at Kirkwood Community College in the fall of 1986 with the assistance of his state vocational rehabilitation counselor. Claimant stated that initially he took refresher courses as recommended by his vocational rehabilitation counselor since he had to wait to obtain a vacancy in the course of study which he wanted to pursue. At the time of hearing, claimant had completed one year towards a two-year degree as an electronics technician. Claimant stated that his projected graduation date would be June, 1989. Claimant testified that he is currently carrying 20 hours of work and works seriously on his grades because he feels that grades are important. Claimant has nearly a straight "A" average (exhibit 33). In January, 1988, claimant experienced a severe exacerbation of back pain for which he was hospitalized from January 6 through January 12, 1988. He was treated conservatively and with medications. A CT scan taken at that time showed herniation of the L5-S1 disc on the left side (exhibits 11 and 24). Claimant stated that he would like to stay in the Iowa City area because he owns his own home there. He feels that Rockwell Collins and Square D are potential local employers. Glen Millard, the Cedar Rapids Job Service office manager, testified that claimant has the aptitude to become an electronics technician and that there are twice as many electronics technician jobs in the Cedar Rapids-Iowa City area as there are carpenter jobs. Millard stated that entry level wages for electronics technicians are approximately $8.00 per hour and that, at the time of hearing, there were ten openings for electronics technicians at the Rockwell Collins plant. Millard stated that the Kirkwood Community College electronics technician program graduates 30-35 individuals per year and that approximately 28 of them are placed in employment in the field. Millard stated that grades are important and that most top students get jobs in the area which they desire. Millard also stated that an electronics technician has a better chance of advancement than a carpenter as there are more levels of positions. Millard stated that their employment is also more stable since carpenters are usually unemployed two or three months per year. Millard issued reports, exhibits 27 and 28, which are consistent with the testimony provided at hearing. Millard indicated that claimant's decision to become trained as an electronics technician was an appropriate career choice in view of claimant's aptitude and physical restrictions. APPLICABLE LAW AND ANALYSIS The claimant has the burden of proving by a preponderance of the evidence that the injury of January 28, 1986 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 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). Dr. Pontarelli rated claimant as having a 15% permanent impairment that was caused by the January 28, 1986 injury (exhibits 4, 5 and 13). Dr. Kimelman found claimant to have a 10% permanent impairment that was caused by the 1986 injury (exhibit 20). It is not necessary to determine which of the two is correct since they are not greatly divergent. As claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 257 (1963). Industrial disability or loss of earning capacity is a concept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment of physical capacity creates an inference of lessened earning capacity. The basic element to be determined, however, is the reduction in value of the general earning capacity of the person, rather than the loss of wages or earnings in a specific occupation. Post-injury earnings create a presumption of earning capacity. The earnings are not synonymous with earning capacity and the presumption may be rebutted by evidence showing the earnings to be an unreliable indicator. Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 34th Biennial Report, 218 (1979): 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. A claimant's industrial disability is to be evaluated as the claimant exists immediately following recuperation from the injury. It is not to be evaluated as the claimant exists several years following the injury after he has expended years and thousands of dollars rehabilitating himself. His aptitude for rehabilitation, however, is a proper consideration. Stewart v. Crouse Cartage Co., file number 738644 (App. Decn., February 20, 1987). All of claimant's work history has been involved with heavy lifting physical labor. Claimant stated that he had difficulty obtaining even part-time employment since his injury. Clearly, some degree of industrial disability existed following his two prior back injuries, but they were apparently not so severe as to prohibit him from returning to work in his trade as a carpenter. It should be noted that, following the second injury, he was advised to avoid heavy lifting and he apparently got along well while building cabinets and had trouble only when he went to work in the field. This is evidence that some degree of industrial disability preexisted January 28, 1986. It is the January 28, 1986 injury which has necessitated that William Meredith cease working in his trade as a carpenter, retrain himself and seek a new occupation. His chosen course of study to qualify as an electronics technician certainly seems appropriate. He is far enough into the course of study that it appears likely he will be able to successfully complete it. The testimony from Glen Millard and from claimant indicates that there is a good likelihood he will be able to obtain employment as an electronics technician. When all the appropriate factors of industrial disability are considered, it is determined that William P. Meredith sustained a 35% permanent partial disability as a result of the injury he sustained on January 28, 1986. His total industrial disability is somewhat higher than 35%, but the entire disability cannot be attributed to the current employer. FINDINGS OF FACT 1. It is probable that William P. Meredith has the ability to complete his course of study to become an electronics technician and that he will be able to obtain employment in the Linn or Johnson County, Iowa areas upon completion of his course of study. 2. The economic remuneration that claimant will likely earn as an electronics technician will be substantially similar to that which he experienced as a carpenter. 3. William Meredith experienced a 35% reduction in his earning capacity as a result of the injury he sustained on January 28, 1986 when that capacity is evaluated at the end of his healing period. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. Permanent partial disability is evaluated at the end of the healing period based upon the claimant's condition as it exists at that time, taking into account his aptitudes and matters that are reasonably foreseeable. Matters that occur subsequent to the end of the healing period and prior to the time of hearing can be considered in order to determine what is or is not likely to result in the future. 3. William P. Meredith is entitled to recover 175 weeks of compensation for permanent partial disability, representing a 35% permanent partial disability under the provisions of Iowa Code section 85.34(2)(u). ORDER IT IS THEREFORE ORDERED that defendants pay claimant one hundred seventy-five (175) weeks of compensation for permanent partial disability at the rate of two hundred six and 26/100 dollars ($206.26) per week payable commencing June 20, 1986. IT IS FURTHER ORDERED that defendants are entitled to full credit for the one hundred (100) weeks of compensation previously paid and shaLl pay all past due, accrued amounts in a lump sum together with interest pursuant to Iowa Code section 85.30. 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 7th day of February, 1989. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Richard P. Moore Attorney at Law 2720 First Avenue NE P.O. Box 1943 Cedar Rapids, Iowa 52406 Mr. Mark D. Cleve Attorney at Law P.O. Box 2746 Davenport, Iowa 52809 1402.40, 1702, 1803, 2206 Filed February 7, 1989 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER WILLIAM P. MEREDITH, Claimant, vs. File No. 816286 BURGER CONSTRUCTION, A R B I T R A T I 0 N Employer, D E C I S I 0 N and UNITED STATES FIDELITY & GUARANTY COMPANY, Insurance Carrier, Defendants. 1402.40, 1702, 1803, 2206 Claimant awarded 35% permanent partial disability. The claimant had two prior back injuries which had resulted in surgery, but had previously been able to resume work in his trade as a carpenter. The injury under consideration rendered him incapable of resuming work in his trade, but it appeared likely that he would be able to achieve comparable earnings in the field of electronics technology after completing a two-year course of study, of which one year had already been completed with nearly a straight "A" grade average. Page 1 before the iowa industrial commissioner ____________________________________________________________ : LARRY D. DEBOER, : : Claimant, : : vs. : : File No. 816350 DUBUQUE PACKING COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : SENTRY INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ introduction This is a proceeding in arbitration brought by Larry D. DeBoer, claimant, against Dubuque Packing Company, employer and Sentry Insurance Company, insurance carrier, defendants for benefits as the result of an injury which occurred on February 13, 1986. A hearing was held on December 21, 1989, at Sioux City, Iowa, and the case was fully submitted at the close of the hearing. Claimant was represented by Harry H. Smith. Defendants were represented by Paul W. Deck, Jr. The record consists of the testimony of Larry D. DeBoer, claimant; Myron VanBochove, claimant's witness; Carol A. DeBoer, claimant's wife; Cecilia Blaskovich, vocational rehabilitation specialist; and joint exhibits 1 through 32. The deputy ordered a transcript of the hearing. Both attorneys submitted excellent posthearing briefs. issues The parties submitted the following issues for determination at the time of the hearing: Whether claimant is entitled to temporary disability benefits, and if so, the extent of benefits to which he is entitled. Whether claimant sustained a scheduled member injury or an injury to the body as a whole. Whether claimant is entitled to permanent disability benefits, and if so, the nature and extent of benefits to which he is entitled. Whether claimant is entitled to certain medical expenses. preliminary MATTERS Page 2 Defendants' counsel agreed to pay for the 85.39 independent medical examination and claimant then withdrew that issue from the issues to be determined in this case (transcript pages 4 & 5). findings of fact entitlement to temporary disability benefits Claimant is entitled to temporary disability benefits from the date of the injury, February 13, 1986, to the date on which his treating physician issued an impairment rating, October 12, 1987, a period of 86.571 weeks. The parties stipulated that claimant sustained an injury which arose out of and in the course of employment on February 13, 1986 (tr. p. 3; prehearing report p. 1, paragraph 2). Claimant was hospitalized on the date of the injury and never did return to work (transcript pages 30 and 31). Claimant testified that at the time of the injury on February 13, 1986, it felt like an explosion occurred in his left chest, neck and shoulder. His left arm went numb and he experienced extreme pain in the left rib cage. He became lightheaded, warm, sweaty and dizzy. He experienced numbness in the left side of his face, neck and all the way down his left arm to his fingertips. Claimant further testified that he had the same experience on two prior occasions, January of 1983 and May of 1985. He lost four weeks of work the first time and six weeks of work the second time and was paid workers' compensation for both prior injuries (tr. pp. 28-30; exhibit 27, pp. 1 & 2). Claimant's family physician, James E. Powell, M.D., stated at the time of claimant's third office visit on February 28, 1986, "I really think he's going to be on some long-term disability...and may even need to secure some other form of work." (ex. 24, p. 2). On March 21, 1986, Dr. Powell stated, "[H]e needs to stay on disability." (ex. 24, p. 2). Dr. Powell referred claimant to K. Gene Koob, M.D., a neurologist. An electromyelogram and nerve conduction study by Dr. Koob on June 5, 1986, for the left arm was normal. Dr. Koob stated that he felt that claimant had a chronic left sided pain syndrome and, "I have warned the patient and his wife that this is going to be a long term phenomenon." (ex. 24, p. 3). Dr. Koob recommended that claimant see L.M. Gutnik, M.D., an internal medicine doctor, who saw claimant on June 20, 1986, and noted that he had been off work since February 13, 1986. Dr. Gutnik diagnosed thoracic outlet syndrome based upon his personal examination (ex. 28, pp. 1 & 2); x-rays of the cervical spine, chest and left shoulder (ex. 28, p. 6); arterial and venous doppler tests and a thoracic outlet study which showed, "The patient had a thoracic outlet maneuver which showed an abnormal test in the left extremity with hyperabduction to 180 degrees." (ex. 29, pp. 7 & 17). Greg A. Schultz, M.D., a thoracic surgeon recommended by Dr. Gutnik, noted that claimant had been unable to work Page 3 since the injury and that a DSA (digital subtraction angiogram) revealed stenosis of the left subclavian artery with abduction (ex. 4, p. 1). Dr. Schultz diagnosed a left thoracic outlet syndrome and performed a left transaxillary first rib dissection with scalenectomy using an anterior approach on September 10, 1986 (ex. 4, pp. 2 & 3). Prior to the surgery, claimant was unable to use his left upper extremity adequately (ex. 4, p. 4). Claimant was hospitalized from September 9, 1986 until September 15, 1986 (ex. 4, p. 5). The surgery restored the circulation to claimant's left arm and hand, but he continued to have chest pain and left rib cage pain (ex. 4, p. 10; ex. 28, p. 4). Claimant testified that he got the circulation in his left hand, but the pain in his neck, chest and shoulder continued (tr. p. 36). Originally, Dr. Schultz anticipated on July 29, 1986, that claimant would be able to return to work within two to four weeks after the surgery (ex. 5). However, on October 31, 1986, he stated: He does have a chronically weakened left upper extremity as well as chronic symptoms of nerve impairment. He continues to have problems with motion and weakness which is related to his ongoing thoracic outlet problem. He is currently undergoing intensive physical therapy and strengthening of this extremity. I anticipate that he will be able to return to work in three to four months. (exhibit 6) On April 15, 1987, Dr. Schultz stated, "He basically is incapacitated and unable to work due to ongoing pain involving the left upper extremity....We are currently evaluating whether he can return to work in the next two to three months." (ex. 7). Dr. Schultz referred claimant to Myung J. Cho, M.D., a rehabilitation medicine doctor. On October 30, 1987, Dr. Schultz declined to give claimant a permanent impairment rating and referred the insurance carrier to Dr. Cho. He also referred the carrier to Dr. Cho for determination of whether claimant needed additional physical therapy (ex. 8). Dr. Cho first saw claimant on March 6, 1987. Dr. Cho performed an electromyelogram and recorded: IMPRESSION based on clinical, plus electrophysiological data: 1. It appears that this patient has moderate to severe compromise of the left long thoracic nerve, innervating the Serratus Anterior muscle. 2. Otherwise, there is no other peripheral neuropathy. (exhibit 18, page 4) Page 4 Dr. Cho found that claimant had mild disuse atrophy and his range of motion was quite limited in the left shoulder (ex. 18, p. 2). He diagnosed moderate to severe compromise of the left long thoracic nerve and prognosticated some residual deformity and determined. Secondly, he diagnosed myofascial syndrome with more diffuse pain radiation in the neck and shoulder. He recommended a continuous intensive physical therapy program to improve his muscle strength and range of motion along with pain management (ex. 18, p. 3). Dr. Cho gave a detailed impairment rating on October 12, 1987. He said claimant could return to work within the limitations of the functional capacity evaluation (ex. 19, pp. 2 & 3). Dr. Cho specifically stated, however, on October 12, 1987, "In addition, I believe this patient's date of maximum healing is indefinite at this time. I don't believe that he can return to any physically demanding job in the near future." (ex. 19, p. 3). This quoted statement by Dr. Cho is inconsistent with another statement on the same page at which point he states, "Based on my evaluation and his progression in the last six months, I am skeptical about any significant improvement in the near future." (ex. 19, p. 3). Thus, it would appear that in spite of the first quoted statement that maximum healing was indefinite, nevertheless, claimant had attained maximum medical improvement based upon the second quoted statement that he was skeptical of any significant improvement. This conclusion is supported by the report of Dr. Cho on January 13, 1988, in which he states, "[T]he patient did not see any further improvement of muscle strength, even with an intensive exercise program, related to his left upper extremity. This was expected, based on my EMG study." (ex. 20). Terminating the healing period based upon maximum medical improvement on October 12, 1987, is also supported by the statement of Dr. Cho on February 17, 1988, "[T]here has been no significant change for the last three months regarding his overall functional capacity and pain syndrome." (ex. 21). The fact that Dr. Cho continued to recommend physical therapy and a daily pain program, are considered to be more in the nature of maintenance rather than significant improvement based upon the overall interpretation of Dr. Cho's reports and the testimony of claimant to the effect that he will need to exercise daily in the future to retain the functional ability that he did recover. It is further determined that the fact that Peter D. Wirtz, M.D., an orthopedic surgeon, gave an impairment rating on May 27, 1987, and said that claimant could perform light duty work, is not determinative of the end of healing period in this case. Dr. Wirtz was a one-time evaluator hired by defendants for the purpose of an evaluation and had no responsibility for the care and ultimate recovery of claimant (ex. 22). Furthermore, Deanna Harris, R.N., Page 5 reported consistently to the employer and insurance carrier from February 25, 1987 through August 18, 1987, that claimant was unable to work (exs., 10 and 12-15). Harris generated a report from Dr. Schultz on May 23, 1987, which indicated the anticipated date of maximum healing might be another six to 12 months (ex. 11). On July 2, 1987, Harris said the return to work goal was August of 1987 (ex. 14). On August 18, 1987, she said this goal was not achieved because Dr. Schultz would not sign a release. Claimant's next appointment was September of 1987 and the return to work was to be determined at that time (ex. 15). Cecilia Blaskovich, a vocational rehabilitation specialist, took over the case from Harris and testified that on September 23, 1987, she went with claimant to see Dr. Schultz and they showed him a video of a light duty job and Dr. Schultz, "felt that he could return to that job." (tr. p. 127). This job involved packaging and scaling large intestines (tr. p. 128). She stated that Dr. Schultz released claimant to perform that job commencing on September 26, 1987 (tr. p. 129). However, no statement from Dr. Schultz supporting this testimony is found in the evidence of record. Blaskovich had no contact with Dr. Cho who was then the treating physician rather than Dr. Schultz (tr. pp. 131 & 132). On cross-examination, Blaskovich admitted that Dr. Schultz did not sign any document about the package/scaler position (tr. p. 149). Blaskovich further admitted that she was not familiar with union contracts and the fact that any job was subject to employee bidding and that several employees would have seniority over claimant for any job or light duty job that might come into existence at the plant (tr. pp. 150-153). Wherefore, based on the foregoing evidence it is determined that claimant is entitled to healing period benefits from the date of the injury, February 13, 1986 to October 12, 1987, the day that Dr. Cho gave claimant a permanent impairment rating and made other comments indicating that claimant had attained maximum medical improvement. This is a period of 86.571 weeks of healing period benefits. Armstrong Tire and Rubber v. Kubli, Iowa App. 312 N.W.2d 60, 65 (Iowa 1981); Thomas v. William Knudson and Sons, 349 N.W.2d 124, 126 (Iowa App. 1984); Iowa Code section 85.34(1). scheduled member or body as a whole injury It is determined that claimant sustained an injury to the body as a whole. The combined testimony demonstrates that claimant received an injury to his left anterior chest, left side of his face, his left shoulder, his left neck, his left rib cage or thoracic area and his upper back on the left side. Dr. Cho rated the left shoulder and left upper extremity (ex. 19, p. 2). Dr. Wirtz found that his left shoulder blade wings and Page 6 there are scars in the axillary area of the left anterior clavicle, Dr. Wirtz diagnosed (1) status post rib resection, left; (2) rotator cuff stiffness, left; (3) long thoracic nerve paralysis; and (4) serratus anterior muscle weakness. Each of these body parts mentioned by Dr. Wirtz extend beyond the arm and pertain to the body as a whole (ex. 22). Claimant testified that Dr. Wirtz called in a colleague to observe his winged scapula. The colleague commented that he had seen one before, but not that severe (tr. pp. 39 & 40). Claimant further stated that Dr. Wirtz told him he had some major problems and wished him luck (tr. p. 40). Claimant was also rated by Pat Luse, D.C., and his rating was based on the cervical spine, left shoulder, and left upper extremity (ex. 1, p. 3). The fact that Dr. Wirtz phrased his rating in terms of the upper extremity does not mean that the injury is confined to the arm as defined in Iowa Code section 85.34(2)(m) because the Guides to the Evaluation of Permanent Impairment, published by the American Medical Association, include the shoulder as a part of the left upper extremity (Guides, section 3-1G, pages 31-35). For quite some time now, the long-standing precedent of the industrial commissioner, based upon the supreme court cases in this area, is that shoulder injuries are considered to be injuries to the body as a whole. Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 (1949); Nazarenus v. Oscar Mayer & Co., II Iowa Industrial Commissioner Report 281 (1982); Godwin v. Hicklin GM Power, II Iowa Industrial Commissioner Report 170 (1981); Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986). At no point in claimant's testimony, in any of the medical exhibits or in any of the evidence is it suggested that claimant's injury or disability, either one, is limited to his arm. Wherefore, it is determined that claimant has sustained an injury to the body as a whole and is entitled to industrial disability. entitlement-permanent disability It is determined that claimant has sustained a 45 percent industrial disability and is entitled to 225 weeks of permanent partial disability benefits as industrial disability. Claimant, born July 10, 1947, was 38 years old at the time of the injury, 42 years old at the time of the hearing and 43 years old at the time of this decision. Claimant's industrial disability is increased for the reason that this injury and this disability occurred during his peak years of earning capacity and his productive working life. Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report of the Industrial Commissioner 34 (Appeal Decision 1979); Walton v. B & H Tank Corp., II Iowa Industrial Commissioner Report Page 7 426 (1981); McCoy v. Donaldson Company, Inc., IAWC Decisions of the Iowa Industrial Commissioner 400 (1989). In addition, claimant was provided with medical, dental, optical and pharmaceutical medical benefits, vacation pay, holiday pay and a pension plan (tr. p. 53). Claimant has a high school education and four years of college from an athletic scholarship, but needs an additional 12 hours in order to receive a college degree according to Blaskovich (tr. pp. 17-19). Claimant contended it would take two more years to complete college due to curriculum changes (tr. p. 19). It is possible for claimant to return to school and obtain a degree. His previous grades of C's, B's and some A's would indicate that he has the ability to graduate from college. Claimant said that he was in the upper one-half of his graduating class in high school. Claimant could also elect to be retrained in a course that would provide him a skill for the employment market. Retraining is expensive for the reason that the student not only has tuition, books and fees to pay for, but also suffers a loss of income, either in whole or in part, while attending either college or a retraining program for skilled work. Conrad v. Marquette School, Inc., IV Iowa Industrial Commissioner Report 74, 89 (1984). For past employments claimant has served in the army for two years as a medic, an occupational therapist, attained the rank of sergeant E-5 and received an honorable discharge (tr. pp. 19 & 20). He was also trained to be a recreational therapist (tr. p. 78). He worked for farmers performing construction-types of work (tr. p. 20). He has securities sales experience and he was a licensed securities agent for two and one-half years (tr. p. 21) and licensed life insurance agent (tr. p. 82). As a side business, he restored and refinished furniture for about five years. He has also restored old cars. At the time of the injury, claimant's job for employer was dropping tongues. He had done this for the last 10 or 11 years. This job consisted of lifting, carrying, manipulating and handling the head of the animal, which weighed anywhere from 75 to 125 pounds, making several cuts on the head with a knife and making five to seven chops with an axe. Claimant testified he performed this operation every 22 or 23 seconds. It was more difficult in wet weather when the heads were muddy and covered with manure and in the winter when they would freeze up (tr. pp. 24-27). Claimant is a 12 1/2-year career employee of employer. He began work on August 9, 1974, and worked until he was injured on February 13, 1986. He is now foreclosed from performing strenuous work in the meat packing industry. Harris reported that employer does not technically have any light duty work, but they have some jobs which are considered less strenuous (ex. 10, p. 4). Nevertheless, shortly after his third episode of this explosion of pain in his chest, Dr. Powell, his family physician, suggested on February 28, 1986, that claimant would need to secure some other form of work (ex. 24, p. 2). Dr. Cho stated that based on claimant's functional capacity evaluation, "I am Page 8 skeptical, realistically, of whether the patient can have an appropriate job meeting this criteria. Therefore, further vocational training and new job placement would be highly recommended." (ex. 19, p. 3). This corroborates claimant's testimony: All the times I saw Dr. Cho he -- he kept telling me that, you know, I would never work back -- his strongest advise to me was never go back to the packing plant, because I'd do additional damage to myself, and that he was aware of the situations that exist in a packing plant, and that I had hurt myself severely enough, that I'd really -- you know, I'm jeopardizing my total health if I went back and got hurt again. (transcript pages 41 & 42). Dr. Cho told claimant he would never return to packing plants and to look for other areas of vocation (tr. pp. 37 & 103). Claimant also testified that Dr. Schultz told him he should start thinking into some other areas because he didn't think that physically it would be feasible for claimant to return to work for employer without jeopardizing himself or creating more problems physically (tr. p. 98). Even though Dr. Schultz signed the slip that he could return to employer, he, nevertheless, stated at the same time it was entirely up to claimant and the doctor still recommended that claimant not return (tr. p. 98). Thus it is determined that claimant is foreclosed from his previous employment of 12 1/2 years where he performed well and was liked and respected by his employer. Michael v. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218, 220 (Appeal Decision January 30, 1979); Rohrberg v. Griffin Pipe Products Co., I Iowa Industrial Commissioner Report 282 (1984). Three doctors, Dr. Powell, Dr. Schultz and Dr. Cho recommended different employment. It would have been imprudent for claimant to go against the advice of his treating physicians. Although Dr. Schultz did not give an impairment rating on the record, Blaskovich reported on November 30, 1987, that he verbalized that he felt that 20 percent would be an approximate appropriate rating. Claimant testified, "And then she asked him one more time about a rating. She said, well, do you think he is at least 20 percent? And he said, I suppose at least that much, maybe more." (tr. p. 46). Claimant also testified that Dr. Schultz told Blaskovich that his injury was to the body as a whole (tr. p. 46). Since most of claimant's injuries extended beyond the arm, it would appear that he probably intended a rating to the body as a whole, but this is only speculation and there are other definitive impairment ratings given by Dr. Wirtz, Dr. Cho, and Dr. Luse. Dr. Wirtz stated: This patient has lost 90 degs. of forward flexion which is a 9% impairment of the shoulder. The Page 9 external rotation lacks 30 degs. of motion which is a 5% impairment of the shoulder. The muscle weakness of the shoulder blade will cause limitation of pushing activity which is a 5% impairment of the shoulder. *** Summations of these impairments of the loss of motion and loss of strength is a 13% impairment of the upper extremity. (exhibit 22, page 2) It is not immediately clear how 9 percent, 5 percent and 5 percent results in 13 percent. It these ratings were added, the result would be 19 percent. If these ratings were combined using the combined values chart, the result would be 18 percent (Guides to the Evaluation of Permanent Impairment, third edition, American Medical Association, page 246). Dr. Cho, a rehabilitation medicine doctor and treating physician, made detailed measurements of the left shoulder region and measured the abnormal muscle strength of the left upper extremity and determined that claimant has sustained a 29 percent impairment of the whole person or 48.5 percent impairment of the left upper extremity (ex. 19, p. 2). He further found that it was very important for claimant to maintain a proper exercise program on a daily basis to prevent any regression of his disability (ex. 19, p. 3). Dr. Luse, claimant's evaluator, diagnosed (1) long thoracic chronic paralysis with associated muscle wasting and weakness; (2) status post rib section left; (3) chronic cervical sprain/strain with associated loss of motion and hypesthesis; and (4) serratus pain syndrome and trigger points. He stated claimant exhibited weakness in the left arm and shoulder and tenderness in the arm, neck, shoulder and ribs. He also sustained loss of movement of the arm, neck and shoulder. He determined that claimant sustained a 30 percent impairment of the whole man (ex. 1, p. 3). Dr. Luse also gave this prognostic summary: It is my opinion that work or domestic activities could precipitate an aggravation of this condition, because of the weakness and instability caused by this accident. As a result of this injury, the patient will be subject to recurrent problems in the area of the cervical and dorsal spine and left shoulder....I believe it will be necessary for the patient to continue to severely restrict the use of his left arm, shoulder and upper back. (exhibit 1, page 4). Thus, it is apparent that claimant has sustained a very serious injury that has resulted in a substantial amount of physical and functional impairment. Defendants' contention Page 10 that Dr. Luse is not competent to rate any part of the body other than the spine, is not supported by any evidence of any kind (tr. p. 14). Claimant was examined by Ronald A. Cooper, M.D., a neurologist, for defendants on November 14, 1989. Dr. Cooper did not give an impairment rating, as such, but he found that claimant had definite scapular winging on the left side, difficulties raising his arm above the horizontal and that he has obvious weakness of the serratus anterior muscle. There were slight atrophic changes in the upper shoulder region. Dr. Cooper concluded as follows: It is my opinion at this time that his gentleman's major problem is his limited range of motion of the shoulder girdle because of the weakness of the serratus anterior causing problems with rotation of the scapula and thus significant impairment in his ability to raise the arm above the horizontal. This problem has been present for at least three years and I feel at this time it is in fact permanent...Unfortunately, he will always be significantly limited in his ability to lift, carry or do any type of work where he has to hold his arms above the horizontal. (exhibit 3, page 2) Thus, even though Dr. Cooper did not give a numerical rating, he, nevertheless, described a substantial permanent disability. Claimant testified that Dr. Cho recommended a work hardening program, but the insurance carrier refused it (tr. pp. 48 & 49). The physical capacity evaluation, performed at the direction of Dr. Cho, on October 1 and October 2, 1987, indicated that claimant could lift 25 pounds and could carry 20 pounds (ex. 23, p. 1). His major limiting factors were determined to be: 1. Decreased strength in the left upper back, left shoulder girdle and left upper extremity musculature. 2. Increased discomfort in the left upper back, left chest wall, and left upper extremity. 3. Decreased ROM in the left upper extremity, especially in left shoulder flexion and abduction. 4. General loss of endurance in the left upper extremity musculature. (ex. 23, page 3) Thus, claimant is precluded from heavy work which is a large portion of the competitive labor market and provides the highest income for the least amount of skill. Claimant's industrial disability is increased because he is Page 11 foreclosed from performing heavy work and most medium work in the competitive labor market. Thus, the physical capacity examination confirms what the evaluating doctors found, and that is, that claimant has sustained a substantial injury and industrial disability. Claimant testified that he was earning about $9 an hour when he quit and had numerous employee benefits (tr. p. 53). This was further refined by Harris to be $8.70 per hour and that claimant worked 36 to 48 hours per week (ex. 10, p. 4). Claimant took a job as a curator of the local museum at Hawarden, Iowa, on May 1, 1988, cataloging historical items at $5 per hour. On November 1, 1988, he and his wife then borrowed some money and purchased a 20-unit local motel which needed a great deal of renovation and claimant takes a draw of $500 per month from the motel earnings (tr. p. 56). The motel needs a great deal of renovation to put it in first class condition (tr. pp. 59 & 60). Neither the museum job nor the motel operator job can be used to calculate claimant's actual loss of earnings because it was not demonstrated that these were the only jobs that claimant can obtain in the competitive labor market. Rather, these are the jobs that claimant chose to do. Claimant testified he can no longer play baseball, basketball, hunt or refurbish automobiles (tr. p. 61). Previously he was a professional baseball player. Sometimes his sleep is disturbed (tr. pp. 56 & 62). He can no longer remodel his house (tr. pp. 661 & 62). Frequently, when he is pushing, lifting or pulling his shoulder blade will sit up on top of his shoulder which is discomfortable and he needs his wife's assistance to get it down back in place (tr. p. 62). Claimant testified that he takes a lot of aspirin (tr. p. 62). Blaskovich testified that claimant had several marketable, transferable skills, particularly in sales and financial planning based upon his early employment as a securities salesman. She also stated he had leadership ability (tr. pp. 134 & 135). It is not realistic to believe, however, that claimant could step out of 12 1/2 years of employment as a manual laborer in the packing house breaking jaw bones with an axe and step into the management training position with American General Finance at $35,000 in the first year, or a management training position with Prudential Financial Services at $28,000 per year, or a district sales consultant position in the area of $18,000 per year, or several other sales positions in the vicinity of $24,000 per year (tr. pp. 137 & 138). Claimant could qualify for the desk clerk job at $5 per hour recommended by Blaskovich (tr. pp. 138 & 139). Blaskovich recommended that claimant finish his college education and this appears to be a reasonable suggestion for this individual. At the same time it is difficult to determine the full extent of claimant's industrial disability because he has not attempted to find work in the normal everyday competitive labor market. Schofield v. Iowa Beef Processors, Inc., II Iowa Industrial Commissioner Report Page 12 334, 336 (1981). On the other hand, it must be stated that claimant was motivated at all times and was concerned about returning to work he could do in order to make a living and support his family. His employment record with employer was excellent and he was liked and respected by employer. At the same time employer, through Blaskovich, endeavored to find work that claimant could do within his limitations and restrictions at employer's plant, but whether he could obtain these jobs due to the union contract and the bidding process was not rebutted by employer. Ron VanBochove testified that he works for claimant on call occasionally. He has noticed that claimant could not work with ceiling tile without standing on a ladder even though witness could reach them from the ground and that claimant has difficulty in keeping the lawn mower in a straight line because of the weakness in his left arm (tr. pp. 107-110). Carol DeBoer, claimant's wife, testified that she was present when Dr. Cho told claimant that the packing plant was not a good place to be and strongly urged him to look for another line of work for his own good and for his body (tr. pp. 110-112). She said that he has no power or force to lift a gallon milk jug at the table. He can't lift his left arm above shoulder height, cannot hold any significant weight for a prolonged period of time. Many of the activities he does perform, such as mowing the lawn or driving, cause pain and he is frequently required to take aspirins (tr. pp. 113-114). She said that they were justified in purchasing the motel because her husband needed a job, he needed something to do (tr. p. 114). In summary then, the major factors of industrial disability in this case are (1) a male employee, age 42, at or nearing the peak of his earnings career; (2) who is foreclosed from returning to his former, stable, career, long-term 12 1/2-year employment which paid $8.70 per hour and at which he was very successful; (3) who is also foreclosed from all heavy and most medium weight work in the competitive labor market because he cannot lift over 25 pounds or carry over 20 pounds and these jobs are usually the most plentiful and sometimes the most remunerative; (4) who is capable of retraining, but retraining would be an expensive proposition at his age and family commitment in life; (5) who needs to find productive employment for another 20 years or more before normal retirement, but who lives in a small community without many employment opportunities; and (6) who has an approximate 30 percent permanent physical and functional impairment to the body as a whole and cannot lift his left hand and arm above shoulder level and has significant loss of motion and strength, as well as atrophy, in his left upper extremity. The mitigating factors are his intelligence, personality, transferable skills in sales and financial planning and strong motivation to be productive and make a success of his life as an income producer within the substantial limitations caused by this injury. Defendants have suggested that some of claimant's Page 13 disability may be caused by errors caused by the thoracic surgeon, Dr. Schultz. Claimant acknowledged that the surgeon told him after the surgery that his condition was much worse than he had anticipated before the surgery which would necessitate a much longer period of recuperation. Claimant and his wife denied that Dr. Schultz told them he severed a nerve or told claimant's wife that mistakes occurred during surgery (tr. pp. 90 & 91). The surgeon admits that an error occurred during the surgery. Dr. Schultz said, "During the course of the dissection thoracic duct was inadvertently injured." (ex. 4, p. 3). There is no direct evidence, however, that this error has definitely caused any portion of claimant's permanent disability, but there is evidence that it prolonged claimant's period of recovery. In either event, an employer is liable for all consequences that naturally and proximately flow from the work injury. Oldham v. Scofield & Welch, 222 Iowa 764, 767-68 266 N.W. 480, 482 (1936). Defendants are also liable when treatment aggravates or increases disability provided the worker is not negligent in selecting the person who administers the treatment. Lindeken v. Lowden, 299 Iowa 645, 295 N.W. 112 (1940); Cross v. Hermanson Bros., 235 Iowa 739, 741 16 N.W.2d 616, 617 (1944); Humphress v. State, 334 N.W.2d 757, 760 (Iowa 1983). In this case, claimant accepted the medical care providers supplied by defendants and made no personal choice of physicians of his own. Consequently, defendants would be liable for any increased temporary or permanent disability claimant may have incurred due to errors of the surgeon which occurred at the time of the surgery. Wherefore, (1) based on the foregoing evidence; (2) all of the factors used to determine industrial disability, Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 State of Iowa Industrial Commissioner Decisions 654, 658 (Appeal Decision February 28, 1985); Christensen v. Hagen, Inc., vol. I, no. 3, State of Iowa Industrial Commissioner Decisions 529 (Appeal Decision March 26, 1985); and (3) applying agency expertise [Iowa Administrative Procedure Act 17A.14(5)]; it is determined that claimant that claimant has sustained a 45 percent industrial disability to the body as a whole and is entitled to 225 weeks of permanent partial disability benefits. medical expenses The parties stipulated that the provider of medical services would testify that their charges are reasonable and that they were for reasonable and necessary medical treatment and defendants were not offering contrary evidence. It is now determined that these expenses were caused by this injury. It is determined that claimant is entitled to recover the charge of Dr. Schultz in the amount of $22 for an office visit on October 10, 1989. Claimant testified that he is supposed to see Dr. Schultz on a follow-up basis at least once a year for five years following his surgery to make sure everything is going okay and no complications are setting in (tr. p. 50). Claimant's testimony was not Page 14 controverted, contradicted, rebutted or refuted. Claimant is entitled to recover $322.15 in physical therapy expenses (ex. 30). Dr. Cho stated on January 13, 1988, "It is very important to maintain his current physical therapy twice a week. If he shows more exacerbation of symptoms in a month, we may have to consider a more intensive, daily program in Sioux Falls." (ex. 20). Dr. Cho stated again on February 17, 1988, that claimant was receiving physical therapy twice a week and indicated it that it was needed (ex. 21). This evidence is not controverted, contradicted, rebutted or refuted. Employer requested claimant to see Dr. Cooper in Omaha as an independent medical examination for employer under Iowa Code section 85.39. Therefore, claimant is entitled to 301 miles round trip mileage in the amount of $63.21 and his lost time from work in the amount of $55 (ex. 32). This section makes no allowance for the reimbursement of baby-sitters, therefore, this claim for $22 is denied (ex. 32). Defendants have already agreed to pay the bill of Dr. Luse in the amount of $260 for an independent medical examination with a doctor of claimant's own choosing (ex. 31; tr. p. 6). No allowance is made for the 110 miles claimant drove for a deposition on November 9, 1989, or the replacement employee that claimant hired while he was absent from his employment at the motel for the deposition. Deposition expenses are trial preparation expenses and are not allowable as either medical expenses or costs. Iowa Code section 85.27 and rule 343 IAC 4.33. In summary, claimant is entitled to $22 for the charge of Dr. Schultz (ex. 30); $322.15 for the physical therapy charges and $63.21 for round trip mileage to see Dr. Cooper and $55 in wages lost to see Dr. Cooper (ex. 32). This totals $462.36 in allowable medical expenses. conclusions of law Wherefore, based upon the foregoing and following principles of law, these conclusions of law are made: That claimant is entitled to 86.571 weeks of healing period benefits for the period from February 13, 1986 to October 12, 1987. Iowa Code section 85.34(1). That claimant has sustained the burden of proof by a preponderance of the evidence that he sustained an injury to the body as a whole and that he is entitled to industrial disability benefits. Iowa Code section 85.34(2)(u). That claimant has sustained a 45 percent industrial disability to the body as a whole and is entitled to 225 weeks of permanent partial disability benefits. Diederich v. Tri-City R. Co., 219 Iowa 587, 593, 258 N.W. 899 (1935); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d Page 15 251 (1963). That claimant is entitled to $462.46 in medical expenses as described above. order THEREFORE, IT IS ORDERED: That defendants pay to claimant eighty-six point five seven one (86.571) weeks of healing period benefits at the stipulated rate of two hundred thirty-one and 26/100 dollars ($231.26) per week in the total amount of twenty thousand twenty and 41/100 dollars ($20,020.41) commencing on February 13, 1986. That defendants pay to claimant two hundred twenty-five (225) weeks of permanent partial disability benefits for a forty-five percent industrial disability to the body as a whole at the stipulated rate of two hundred thirty-one and 26/100 dollars ($231.26) per week in the total amount of fifty-two thousand thirty-three and 50/100 dollars ($52,033.50) commencing on October 12, 1987. That defendants are entitled to a credit for ninety-nine point five (99.5) weeks workers' compensation benefits paid to claimant at the rate of two hundred thirty-one and 26/100 dollars ($231.26) per week in the total amount of twenty-three thousand ten and 37/100 dollars ($23,010.37) prior to hearing. That all accrued benefits are to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That defendants pay to claimant or the provider of medical services four hundred sixty-two and 36/100 dollars ($462.36) in medical expenses as itemized above. That the costs of this action, including the cost of the attendance of the court reporter at hearing and the cost of the transcript, are charged to defendants pursuant to rule 343 IAC 4.33. That defendants file claim activity reports as may be requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of May, 1991. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Harry H. Smith Page 16 Attorney at Law 632 Badgerow Bldg. Sioux City, Iowa 51101 Mr. Paul Deck, Jr. Mr. Brian Yung Attorneys at Law 635 Frances Bldg. Sioux City, Iowa 51101 Page 1 51802 51803.10 51803 52501 52700 Filed May 13, 1991 Walter R. McManus, Jr. before the iowa industrial commissioner ____________________________________________________________ : LARRY D. DEBOER, : : Claimant, : : vs. : : File No. 816350 DUBUQUE PACKING COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : SENTRY INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 51802 Claimant with thoracic outlet syndrome awarded 86.571 weeks of healing period benefits for a prolonged period of recovery after a not so successful surgery. All of the treating physicians supported the long period of recovery. 51803.10 Injury to the left upper chest, left side of face, left neck, left arm, left thoracic area and left upper back determined to be an injury to the body as a whole. 51803 Claimant awarded 45 percent permanent partial disability benefits as industrial disability based on (1) age 38; (2) foreclosed from packing house work; (3) foreclosed from heavy and medium work; (4) retrainable, but retraining is expensive; (5) approximate 30 percent permanent impairment to the body as a whole; (6) loss of motion and strength, as well as atrophy of the shoulder; and (7) inability to work with left hand and arm above shoulder height. 52501 52700 Claimant awarded several medical expenses that defendants refused to pay without any explanation for not paying them. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JAMES R. WOLBERS, Claimant, File Nos. 816771 829340 vs. A R B I T R A T I O N UNITED PARCEL SERVICE, D E C I S I O N Employer, and F I L E D LIBERTY MUTUAL INSURANCE COMPANY, JAN 30 1990 Insurance Carrier, INDUSTRIAL SERVICES Defendants. STATEMENT OF THE CASE These are proceedings in arbitration brought by claimant James R. Wolbers against defendant employer United Parcel Service and defendant insurance carrier Liberty Mutual Insurance Company to recover benefits under the Iowa Workers' Compensation Act as the result of injuries allegedly sustained on January 27, 1986 (829340: shoulder injury) and February 5, 1986 (816771: hand injury). These matters came on for hearing before the undersigned in Burlington, Iowa, on February 23, 1989. Both matters were considered fully submitted at the close of hearing. The record in these proceedings consists of joint exhibits 1 through 15 and 17 through 22, defendants' exhibits A through J, and the testimony of the following witnesses: claimant, Jeanne Wolbers, Roger Kromphardt, Jim Foote, Jim Robbins, Bob White and Wayne Wasson. ISSUES Pursuant to the prehearing report submitted by the parties and approved at hearing in case number 829340, the parties have stipulated: that an employment relationship existed between claimant and employer at the time of the alleged injury; that if permanent disability be found, claimant has sustained an industrial disability to the body as a whole; that the appropriate rate of compensation is $362.58 per week; that the fees and expenses incurred for medical services, supplies and treatment are fair and reasonable and incurred for reasonable and necessary medical treatment; that defendants are entitled to credit under Iowa Code section 85.38(2) in the amount of $4,810.00 for sick pay/disability income and $5,389.82 for medical/hospitalization expenses; that defendants have paid no compensation prior to hearing. The following issues in case number 829340 are presented for resolution: whether claimant sustained an injury on January 27, 1986, arising out of and in the course of employment; whether the alleged injury caused either temporary or permanent disability; the extent of claimant's entitlement to temporary and permanent disability and the commencement date of the latter; the extent of claimant's entitlement to medical benefits; taxation of costs. In addition, defendants have asserted as an affirmative defense that claimant failed to give notice of his alleged work injury under Iowa Code section 85.23. Claimant has also asserted as an issue his entitlement to penalty benefits pursuant to Iowa Code section 86.13. However, that issue was not listed on the hearing assignment order filed in this case on November 21, 1988. This deputy is without jurisdiction to amend the hearing assignment order. Therefore, the issue will not be considered. The following issues in case number 816771 have been stipulated: that an employment relationship existed between claimant and employer at the time of injury; that claimant sustained an injury on February 5, 1986, arising out of and in the course of that employment; that the injury caused both temporary and permanent disability; that claimant is entitled to healing period benefits from February 6, 1986 through May 6, 1986; that claimant has sustained a scheduled member disability to the arm; that the commencement date for permanent partial disability is May 7, 1986; that the appropriate rate of weekly compensation is $363.27; that all requested medical benefits have been or will be paid by defendants; that defendants paid healing period benefits of 13 3/7 weeks and permanent partial disability benefits of 12.5 weeks of compensation at the stipulated rate prior to hearing. The issue presented for resolution is the extent of claimant's entitlement to compensation for permanent disability. In addition, claimant has claimed an entitlement to penalty benefits under Iowa Code section 86.13. A review of the prehearing order discloses that this issue was not identified as a hearing issue. As the undersigned lacks jurisdiction to amend the hearing assignment order entered by another deputy, the issue shall not be considered. The parties further filed a stipulation that if Paul Sanden were called as a witness by defendants he would testify that he is a resident adjuster for Liberty Mutual Insurance Company, that he received a bill marked as exhibit A from Franciscan Medical Center in the amount of $613.75, that Liberty Mutual issued a check on July 22, 1988 to claimant in error, that the code on that check indicates that it is for vocational rehabilitation, and that when claimant's counsel called defendants' counsel regarding this check, a stop payment order was made on the check and another check was issued to Franciscan Medical Center on August 9, 1988. REVIEW OF THE EVIDENCE Claimant described his injury of January 27, 1986 as occurring in the course of his work as a mechanic. He described his position as on a mechanic's creeper when he was seeking to loosen bolts on a clutch housing, using his feet for leverage. Claimant testified that he was alone at the time with no supervisors around. Claimant indicated that his socket wrench slipped as he pulled with both hands, causing a jarring sensation to his body. Claimant felt something "snap" in both shoulders. Claimant did not report this injury to any supervisors on that date, although he testified he told fellow employee Dick Lambert what had happened. On direct examination, claimant indicated that he did not tell any supervisor because of his practice of making such reports after receiving doctor's bills. Claimant agreed on cross-examination that he was aware that Dick Lambert was not his supervisor or generally a person to whom a work injury should be reported. Claimant indicated that he made an appointment with Shan Bedi, M.D., on the following day, but was unable to get into the office until February 4, 1986. He was treated with cortisone shots to both shoulders and continued seeing Dr. Bedi several more times. However, he had an intervening injury to his wrist on February 5, 1986. Up until that time, he had missed no work from the January 27 injury; claimant testified that he "just kind of limped along." No request was made of defendant employer to refer him to a physician. Claimant agreed that he was aware that accident reports were to be filled out and job injuries reported to his immediate supervisor. He described himself as generally in no big hurry to make out such reports. Claimant conceded on cross-examination that he was immediately aware that he had been injured when his wrench slipped on January 27, 1986. In addition to Mr. Lambert, claimant testified that he advised automotive fleet supervisor Dallas Piper of his injury a few days later. Further, claimant testified that he advised delivery driver supervisor Bob White of the injury in the first part of April, 1986, and that he notified Jim Robbins of the injury in a conversation in late March, 1986 ("I still feel I injured my shoulders when a wrench slipped"). Claimant also indicated that despite the fact that he had filed numerous work injury reports in the past while employed with defendant and was fully aware of reporting requirements that he tell his supervisor and fill out a written report, he did not fill out such a report until the day after he had been advised by a Dr. Howe that the injury was work related. Claimant testified in his deposition: Q. Does UPS have some type of reporting procedure at that time of the day as to what an employee is supposed to do when they've suffered an injury on the job? A. Yes. Q. And what is that procedure? A. Notify a supervisor to make out an accident report. Q. And is it the employee's responsibility to make out the accident report or does the supervisor do that? A. 50-50 probably. Q. Is that something that the employee has to sign? A. Yes. Q. Was your supervisor on duty that night? A. I have no idea. Q. If he was, would you have reported it to him. A. If I talked to him I probably would have. Q. What is your first recollection as to when you reported your injury to anyone at UPS? A. You mean the date? Q. Yes, sir. A. In a -- or how you would put it. I reported or told -- I was in a conversation with Jim Robbins and I said that I'd went to the doctor and he said it was bursitis but I still think it's more than bursitis. I think it happened when a wrench slipped off and hurt my shoulders. And later I told Bob White the same -- we were talking and I told him basically the same thing. Q. Okay. Do you remember approximately when you had this conversation with Jim Robbins? A. Well, probably somewhere near the end of March or so. Q. And who is Jim Robbins? A. He was supervisor of safety for UPS. Q. And can you recall approximately when you would have told Bob White? A. Oh, probably the first part of April or so. Q. Were there any witnesses to your accident. A. No. (Wolbers deposition, page 16, line 4 through page 17, line 25) Claimant also testified in his deposition: Q. Do you ever recall filling out an accident report at UPS for this injury? A. Yes. Q. And do you recall when you did that? A. Was it the 29th of July or something like that. Q. Why did you wait that long to fill out an accident report? A. The doctor told me -- that's when I found out that was wrong when I went to -- went to a doctor that told me that I tore the rotator cups [sic] loose in my shoulders that, you know, that would be considered work related. Q. Is this Dr. Howe that told you this? A. Yes. Q. When you were working with this ratchet on January 27, 1986, and it slipped off and you felt pain in both shoulders, did you realize at that time that you had an injury? A. Well, I was sure I did. (Wolbers deposition, page 18, lines 3 through 22) In his deposition testimony, claimant made no mention of his claimed notification to Dallas Piper a few days following the work injury. Claimant testified further to injuring his wrist while trying to shut off a defective grinder on February 5, 1986. Claimant was driven to the emergency room of a local hospital by driver supervisor Don Hewlitt. Claimant conceded that he did not advise Mr. Hewlitt of the prior shoulder injury. At the hospital claimant was treated by Koert R. Smith, M.D., who had previously treated claimant surgically for a knee injury. Claimant indicated that he had not visited Dr. Smith for his shoulder problems because he was dissatisfied with the earlier care given to his knee. Claimant was treated with a cast for six weeks because of a cut tendon in his wrist. During this time claimant was not using his arms a great deal, so his shoulder symptoms abated. Claimant eventually returned to part-time employment and testified that his shoulders again became symptomatic, so he called Dr. Bedi. Dr. Bedi gave him another injection and advised claimant to see an orthopaedic surgeon; claimant elected to see Dr. Smith. Dr. Smith's notes reflect that claimant first made complaint of his shoulder problems on May 6, 1986. Those chart notes state: Patient states that an additional problem that he has today intermittently since last fall, he has had pain in the R shoulder. He initially saw Dr. Bedi for this in early February. Dr. Bedi injected it with some Deltasone. Seven or eight days later, injected it again. He then got along well, until about 4 weeks ago when he had recurrence of pain in the shoulder. He again saw Dr. Bedi who now approximately 10-12 days ago, injected the shoulder and again 4 days ago injected the shoulder. He presently is taking Feldene and feels that the shoulder is too painful to allow him to return to work. He complains of pain with any overhead types of activity. Claimant testified that Dr. Smith treated him with hot packs, ultrasound, a TENS unit and physical therapy from May through July, 1986. Claimant then saw Gerald W. Howe, M.D., who eventually performed surgery on both shoulders. Claimant testified that Dr. Howe advised him that his injury was work related, so he filed a work injury report with defendant employer on the following day. Defendants' exhibit B, page 15 is the initial written report filed by claimant. It bears the date of July 30, 1986. Claimant submitted a less legible copy of that document. On cross-examination, claimant admitted that he had had numerous telephone conversations with Jim Foote of defendant employer's personnel department. Mr. Foote conversed with claimant by telephone on February 6, 14, 20, 28, March 7, 14, 24, April 4, 14, 16, 29 and May 8, 1986 concerning the February 5 wrist injury. 7 Claimant concedes that he did not advise Mr. Foote of his claimed shoulder injury in any of those conversations. That concession is borne out by Mr. Foote's notes, also in evidence. Jim Foote testified that he was area personnel supervisor in 1986 for defendant United Parcel Service. At that time, company policy in cases of work injury required the employee to immediately notify a direct or other supervisor and to fill out and sign an injury report as soon as possible. Mr. Foote testified to knowing claimant for some six years before the injury and testified further that claimant did not mention his shoulder injury during any of the telephone contacts in the months of February, March, April and May, 1986 concerning his wrist injury. Mr. Foote indicated that had claimant notified any supervisor of the shoulder injury, it should have been written down and the safety department notified. Jim Robbins testified to being employed by defendant UPS for some 22 years. In January, 1986, he was employed in the Omaha region, and transferred to a position as Iowa District Safety Manager in February, 1986. He reiterated that reporting requirements were as described by Jim Foote. Mr. Robbins further testified that claimant did not advise him of his January 27 injury, and specifically denied claimant's testimony of advising Robbins of his shoulder injury in March, 1986. Mr. Robbins indicated that claimant never mentioned a work-related shoulder problem. Mr. Robbins testified further that he discovered Dr. Smith's reference to shoulder problems in chart notes of May 6, 1986, and that this observation prompted him to call Dr. Smith and claimant. Claimant was not home when Robbins called, so he advised claimant's wife that he was unaware of a job-related shoulder injury, and that claimant should call his group health insurance carrier. Mr. Robbins testified on cross-examination that he had no conversations with claimant concerning his shoulder injury prior to May 28, 1988. Jeanne Wolbers testified that she is claimant's wife. She denied receiving the telephone call described by Jim Robbins in his testimony. Robert White testified that he has been employed by defendant UPS for some 21 years and was a supervisor in 1986. He has known claimant for some 10-12 years. He specifically denied that claimant advised him of the January 27 claimed shoulder injury and further specified that claimant did not make any such report in March, 1986. Mr. White indicated that if such a report had been made, he would himself have filed a report of such a notification. He further specified that it would be the responsibility of any supervisor notified of a work injury to help fill out an incident report. White indicated that his first recollection of any notification from claimant is when claimant came in to prepare the injury report eventually filed on July 30, 1986. Wayne Wasson testified to 21 years of service with defendant UPS. He has been a center manager since February, 1986. He also described the injury reporting procedure, specifying that it is to be done as soon as possible. With respect to the employee accident report filed by claimant on July 30, 1986, Mr. Wasson testified that the question on the form as to when and to whom the injury was reported (answered: Jim Robbins on March 1, 1986), was answered only after he had advised claimant of the notice requirement contained in Iowa Code section 85.23, and that claimant mentioned Robbins only thereafter. Mr. Wasson further specified that claimant did not advise him of his claimed shoulder injury until July 30, 1986. On cross-examination, Wasson agreed that he had talked to claimant at a truck stop and that claimant had advised him that he had received medical permission to return to work following recuperation from his wrist injury, but did not intend to return to work because of his shoulder problems. However, Wasson specified that claimant made no indication that he had sustained a work-related injury to his shoulders and did not discuss how the injury occurred. Richard Lambert testified by deposition taken February 14, 1989. He described himself as a porter and washer for United Parcel Service, having been employed since 1971. He did not have any type of supervisory position at the time of claimant's alleged shoulder injury and agreed that he was not an appropriate person to whom injuries should be reported. Mr. Lambert recalled claimant telling him that he had hurt his shoulder changing a tire. Dallas Piper testified by deposition taken February 17, 1989. He testified that he was a fleet supervisor at Davenport, Iowa on January 27, 1986. He described defendants' reporting requirements for injuries much as did the other witnesses to address that question. However, he also added that if no supervisor was present at the time of an injury, an employee should call the Des Moines office to report. Mr. Piper had known claimant for approximately 10 years, but had no recollection of claimant advising him that he had suffered a shoulder injury. However, he further testified that had claimant advised him of the shoulder injury, he would have called claimant's supervisor or manager to inform them that they needed to do something immediately with respect to reporting requirements and that it would then have been that person's responsibility, as well as claimant's, to see that an accident report was prepared and filed. Chart notes of Dr. Bedi are in evidence, and reflect that claimant was seen on February 4, 6, 13, 20, March 3, April 25, and May 2, 1986. Some of the chart notes are in handwriting and some are typed. The writer finds the handwritten portions to be very difficult to read. The notes reflect that claimant was first seen on February 4, 1986. Initial considerations appear to be bursitis and cervical radiculopathy. Pain was described as in both shoulders, more on the left than the right, "and goes to sleep whenever he lifts up heavy stuff above his head." There was some numbness reported in the upper part of claimant's arm. Curiously, there appears to be no mention whatsoever of a claimed work injury in Dr. Bedi's chart notes. Dr. Smith treated claimant for his wrist laceration, but also treated claimant for his shoulder problems after May 6, 1986. His chart notes do not indicate that claimant reported a work injury, only that he had experienced intermittent problems since "last fall" and saw Dr. Bedi in early February, then having recurrence approximately four week prior to May 6. His notes further reflect that he spoke to Jim Robbins from UPS on May 28, 1986 concerning the shoulder injury. However, there is no indication that he was aware at that time of a claimed work injury. The first indication in Dr. Smith's chart notes of any claimed work injury on January 27, 1986 appears on April 19, 1988, when claimant came in for evaluation of both claimed injuries. Dr. Smith also testified by deposition taken February 14, 1989. Dr. Smith testified that when he saw claimant in the emergency room for his wrist injury on February 5, 1986, claimant gave no indication whatsoever that he had suffered any type of injury to either shoulder in January, 1986. Similarly, no complaints of a shoulder injury were made when claimant was seen on February 17, March 18, or April 7, 1986. Dr. Smith indicated that he next saw claimant on May 6, 1986, and at that time released him to return to work with respect to the wrist injury. It was at this time that claimant first advised Dr. Smith that he had been treating with Dr. Bedi since February for shoulder problems. Dr. Smith also indicated that in treating a wrist laceration, it would be important to know whether claimant was suffering any symptoms in the rest of his arm or shoulder. Dr. Smith was "sure" he would have asked claimant if he had injured himself somewhere else or had other significant symptoms, although he agreed that in the emergency room setting he would be more concerned with the acute bleeding problem and that a shoulder injury a week or so prior to that time might not necessarily have come out in the history. Dr. Smith also specified that claimant did not advise him on May 6, 1986 that he had injured his shoulders in a work accident. Dr. Smith testified that he was familiar with the tests given claimant by Dr. Bedi. He indicated that those tests would not typically be given if a patient had given Dr. Bedi a history of a work-related injury, since they were tests designed to look for a systemic disease as a potential cause for the complaints. Dr. Smith assessed claimant's shoulder problems as chronic subacromial bursitis. It was his opinion that claimant's shoulder disability did not arise out of and in the course of employment or occupational disease. Dr. Smith further testified that when he saw claimant for evaluation on April 19, 1988, it was the first time claimant had advised him of a claimed work injury to his shoulders on January 27, 1986. Dr. Howe saw claimant on July 28, 1986. His chart notes reflect that claimant reported injuring his right shoulder on January 27, 1986 while pulling on a heavy wrench. Dr. Smith wrote defendant Liberty Mutual on August 22, 1986 to express his opinion that claimant had recovered from his wrist injury with no permanent impairment. As shall be seen, he later amended that opinion. Dr. Smith noted on April 19, 1988, that claimant lacked 15 degrees of full extension at the left wrist, which rated a three percent upper extremity impairment. Flexion was symmetrical, no impairment. Radial deviation was symmetrical, no impairment. Claimant lacked 10 degrees of full ulnar deviation, rating a two percent impairment. For that reason, Dr. Smith assessed claimant as suffering a five percent impairment to the left upper extremity by reason of the February 5, 1986 work injury. As has been seen, Dr. Smith was the treating physician. Dr. Smith reiterated that rating in his deposition testimony. Claimant was also evaluated for his wrist injury by John Speca, M.D. Dr. Speca wrote on June 2, 1987 that with the present measurements of claimant's wrist, he had sustained a 12 percent disability to the upper extremity (Dr. Speca also assessed claimant's shoulder impairment). Dr. Speca found the following range of motion to the left wrist: Flexion 68 degrees Extension 25 degrees Radial deviation 25 degrees Ulnar deviation 15 degrees Pronation 65 degrees Supination 70 degrees Dr. Speca also testified by deposition taken January 6, 1989. He agreed that he had seen claimant one time only on May 8, 1987. His testimony essentially dealt with claimant's shoulder impairment, but not his wrist impairment. Claimant was also seen for evaluation on December 10, 1986 by William R. Irey, M.D. Dr. Irey noted that claimant sustained an injury to the left wrist, but then stated that the right wrist (an obvious error) showed a scar on the dorsal radial aspect which was oblique and well healed. He had some thickening of this area which would correspond to a healed tendon repair. Dr. Irey measured claimant's range of motion of the right wrist over left as: Dorsiflexion 52/40 Palmar flexion 50/68 Radial deviation 20/20 Ulnar deviation 25/20 Dr. Irey noted that claimant had full range of motion of all digits and the elbow, including pronation and supination. Dr. Irey went on to note that under the American Medical Association Guides to the Evaluation of Permanent Impairment claimant had a three percent impairment due to reduced dorsiflexion and two percent due to ulnar deviation reduction. He found claimant to have sustained a five percent impairment of the upper extremity. APPLICABLE LAW AND ANALYSIS Iowa Code section 85.23 provides: Unless the employer or the employer's representative shall have actual knowledge of the occurrence of an injury received within ninety days from the date of the occurrence of the injury, or unless the employee or someone on the employee's behalf or a dependent or someone on the dependent's behalf shall give notice thereof to the employer within ninety days from the date of the occurrence of the injury, no compensation shall be allowed. Failure to give notice under this section is an affirmative defense. The burden of proof rests on defendant. Mefford v. Ed Miller & Sons, Inc., 33rd Biennial Report of the Iowa Industrial Commissioner 191 (1977). The employer must have notice or actual knowledge of an injury within ninety days of an injurious "occurrence." The purpose of the statute is to give defendant an opportunity to investigate. Robinson v. Dept of Transp., 296 N.W.2d 809 (Iowa 1980). It is sufficient to establish actual notice if the employer's "representative" has knowledge of the injury and that it is work connected. Hobbs v. Sioux City, 231 Iowa 860, 2 N.W.2d 275 (1942). Iowa also has adopted a "discovery rule" with respect to triggering the ninety-day notice period. The ninety-day notice clock begins running at such time as the employee, acting reasonably, should know that his injury is both serious and work connected. Jacques v. Farmers Lumber & Supply Co., 242 Iowa 548, 47 N.W.2d 236 (1951). The standard in determining whether the employee should know that his injury is both serious and work connected is that of a reasonable person with the claimant's education and intelligence. Robinson v. Dept of Transp., supra. In this case, defendant UPS maintained a rule to the effect that an individual suffering a work injury must immediately notify a supervisor and fill out and sign a reporting form. Claimant was well aware of this rule, as he had reported numerous work injuries during his tenure with defendant. Claimant had occasionally filled out the reporting form immediately, but had also on occasion delayed substantially (but not beyond the ninety-day notice period). Assuming that claimant did sustain a bilateral shoulder injury as per his testimony, it is undisputed that he did not file formal written notice with defendant until July 30, 1986. This is obviously far beyond the ninety days provided by statute for notice. Therefore, claimant may avoid the affirmative defense only if it be shown that defendants had actual notice of the injury because of his informal notification to a "representative" (it is undisputed that there were no other witnesses to this claimed event) or if the operation of Iowa's discovery rule delayed commencement of the ninety-day notice period. Claimant testified that he almost immediately notified Dick Lambert of his injury, and this testimony was confirmed by Mr. Lambert. It is also undisputed that Lambert was not a supervisor or generally a person to whom a work injury should be reported. Was he a "representative?" A foreman, superintendent or other agent in charge or control of employees is a representative. Franks v. Carpenter, 192 Iowa 1398, 186 N.W. 647 (1922). Since the purpose of the statute is to give the employer an opportunity to investigate the occurrence while it is reasonably fresh, notification to a mere fellow servant should not be considered to meet the notice or actual knowledge requirement because it cannot reasonably by anticipated that an informal conversation with a fellow employee is likely to give defendant knowledge sufficient to have the opportunity to undertake an investigation. Holding such a nonsupervisory employee to be an adequate "representative" of the employer would go a long way toward rendering the statutory notice requirement an effective nullity. It is held that claimant's notification to Dick Lambert did not operate to give notice or actual knowledge to defendant United Parcel Service. Accord, 3 Larson Workmen's Compensation Law, section 78.31(b)(2). Claimant testified that the next individual to be notified of his claimed injury was Dallas Piper, a few days following the injury. This is inconsistent with claimant's deposition testimony, wherein Dallas Piper was never mentioned. Dallas Piper contradicted claimant's testimony to the extent that he had no recollection of such notification. Mr. Piper also indicated that if he had been advised of the shoulder injury, he would have taken steps to call claimant's supervisor or manager. Since Mr. Piper took no such steps, it appears that his recollection is correct and that claimant made no such notification. Claimant also testified that he advised delivery driver supervisor Bob White of his injury in early April, 1986. Mr. White specifically denied that claimant made any such allegation, and also indicated that if claimant had done so, he would himself have filed a report of the notification. Mr. White's first recollection of any notification is when claimant came in to prepare the injury report filed on July 30, 1986. Claimant further testified that he notified Jim Robbins of the injury in late March, 1986. Robbins specifically denied that testimony and indicated that claimant never mentioned a work related shoulder problem. Interestingly, Mr. Robbins also testified that he raised the subject of a shoulder injury with claimant's wife after reading Dr. Smith's chart notes of May 6, 1986, advising her that since he was unaware of any work connection of the shoulder injury, claimant should contact his group health insurance carrier. Although Jeanne Wolbers denied receiving that conversation, the undersigned finds Jim Robbins' testimony to be more credible. While May 6 is itself more than ninety days from the date of the claimed work incident, the failure of claimant's wife to protest that the injury was work related indicates that claimant was not then pursuing this claim as being work related. Of further interest is that supervisor Don Hewlitt drove claimant to the emergency room of a local hospital after his stipulated work injury to the wrist on February 5, 1986. Although this was only nine days from the claimed shoulder injury, claimant by his own testimony had been "limping along" in pain for all that time. Yet, he made no mention of the shoulder injury while being transported to the hospital for a clearly work connected wrist injury. Also worthy of note is that Jim Foote of defendant's personnel department conversed with claimant by telephone on approximately one dozen occasions in February, March, April and May, 1986 concerning the wrist injury, but claimant failed utterly to even mention the shoulder injury during any of those conversations. It seems to the undersigned unlikely in the extreme that an individual could have so many closely spaced telephone conversations with a personnel officer concerning a work injury without mentioning another claimed work injury sustained so close in point of time. Also of interest is that there is no indication in Dr. Bedi's chart notes that claimant ever alleged he sustained a work injury during any of his visits. Although Dr. Bedi did not otherwise give direct testimony, Dr. Smith reviewed his notes and testified that the types of tests Dr. Bedi performed would not typically be given if a patient had indicated he has sustained a work injury, since they were tests designed to look for systemic disease as a potential cause for the complaints. Also of interest is that claimant treated with Dr. Smith from the date of his wrist injury on February 5 through at least May 6, 1986 when claimant was released to return to work. Claimant was seen also on February 17, March 18, and April 7, 1986. Claimant made no mention of his claimed shoulder injury in the emergency room or until May 6, 1986, even though Dr. Smith was relatively certain that he would have asked claimant in the emergency room if he had sustained any other injuries or had other significant symptoms. And, even when claimant did advise Dr. Smith that he had been suffering shoulder problems, he made no mention of a work injury. In fact, Dr. Smith's chart notes indicate that claimant had reportedly suffered intermittent shoulder problems since the previous fall. The record shows that the first time claimant advised any physician of the claimed work injury of January 27, 1986 was when Dr. Howe was seen on July 28, 1986. For all of these reasons the undersigned considers claimant's testimony to lack credibility. It is held that claimant did not give notice to any representative of defendant within ninety days of his work injury and defendant had no other independent actual knowledge of the alleged injury within those ninety days. But what of the discovery rule? Claimant certainly gave every indication of being of at least average intelligence. In addition, he appears to be quite well versed with workers' compensation claims, as he has sustained a number of work injuries during his lengthy tenure with defendant. Claimant testified that he suffered a traumatic work injury with a snapping sensation in the shoulders bilaterally. The injury was severe enough that he "limped along" for the next nine days, until he sustained a wrist injury. If an injury actually occurred as claimant alleges, it is held that he should have been on notice as a reasonable person given his intelligence and background that he had sustained an injury both work related and serious. After all, nine days is a very substantial time to "limp along" in pain, believing that such pain resulting from a traumatic event to both shoulders is not "serious." Based on the foregoing, it is held that defendants have sustained their burden of proof in establishing the affirmative defense of lack of notice under Iowa Code section 85.23 with respect to claimant's alleged shoulder injuries of January 27, 1986. However, it should be at this time noted that even had the affirmative defense not been established, this deputy would hold that claimant has failed to meet his burden of proof in establishing an injury arising out of and in the course of his employment on that date. This is so because of claimant's lack of credibility as a witness and because the fact of such injury is not borne out by the medical records of Dr. Bedi and Dr. Smith. Rather, the most reasonable conclusion is that claimant had been suffering shoulder problems since at least the previous fall, as he reported to Dr. Smith. With respect to claimant's wrist injury, the parties have stipulated that claimant sustained the injury arising out of and in the course of employment and that it caused temporary and permanent disability. The sole issue presented for resolution is the extent of claimant's entitlement to compensation for permanent disability. In the arena of scheduled injuries, impairment equals disability. Normally, the wrist is considered part of the hand, not the arm. Elam v. Midland Mfg., II Iowa Industrial Commissioner Report 141 (1981). However, all of the physicians in this case have rated claimant's impairment as an injury to the arm or upper extremity rather than the hand. Because ulnar deviation is a factor in evaluating claimant's impairment, and given that all physicians rated the impairment as to the arm, claimant's injury is held to be to his arm (as the parties stipulated) and not the hand. Dr. Smith was the treating physician. Based on a loss of extension and ulnar deviation, he found that claimant had sustained a five percent impairment to the left upper extremity (amending his earlier opinion that claimant had sustained no impairment). Dr. Speca found that claimant had suffered a 12 percent disability to the upper extremity, measuring loss of range of motion fairly close to the loss measured by Dr. Irey. Dr. Irey, using the American Medical Association Guides to the Evaluation of Permanent Impairment, also was of the view that claimant had sustained a five percent loss to the upper extremity or arm. Although Dr. Speca was deposed, he was not asked in depth concerning how he arrived at an impairment rating of 12 percent, more than double the ratings of two other physicians, including the treating physician. It is held that claimant has established an impairment to his arm of five percent as opined by Drs. Smith and Irey. Pursuant to Iowa Code section 85.34(2)(m) compensation is paid for the loss of an arm during 250 weeks. Five percent of 250 weeks is 12.5 weeks. As the parties have stipulated that defendants paid 12.5 weeks of permanent partial disability benefits on a voluntary basis prior to hearing, claimant has received all the benefits to which he is entitled. FINDINGS OF FACT; THEREFORE, based on the evidence presented, the following ultimate facts are found: 1. Claimant was employed by defendant United Parcel Service on January 27, 1986 and February 5, 1986. 2. If claimant did sustain an injury to his shoulders on January 27, 1986, he had knowledge by no later than February 5, 1986, that his injury was both serious and work related. 3. Claimant gave notice of his injury to defendants on July 30, 1986. 4. Claimant lacked credibility as a witness. 5. Claimant has not established that he gave informal notice to any "representative" of employer prior to July 30, 1986. 6. As stipulated, claimant sustained an injury to his arm on February 5, 1986. 7. Claimant has established that he sustained a five percent loss of the use of that arm as a result of that work injury. CONCLUSIONS OF LAW WHEREFORE, based on the principles of law previously cited, the following conclusions of law are made: 1. Defendants have met their burden of proof in establishing the affirmative defense of lack of notice of claimant's alleged shoulder injuries of January 27, 1986, under Iowa Code section 85.23. 2. Claimant has established that he is entitled to permanent partial disability of five percent of the arm as a result of his February 5, 1986 injury (816711), for which he has previously been compensated voluntarily by defendants. ORDER THEREFORE, IT IS ORDERED: Claimant shall take nothing from this proceeding in case number 829340. Claimant shall take nothing further from this proceeding in case number 816771. Costs of this action in case number 829340 are assessed to claimant pursuant to Division of Industrial Services Rule 343-4.33. Costs of this action in case number 816771 are assessed to defendants pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 30th day of January, 1990. DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Steven S. Hoth Attorney at Law 200 Jefferson Street P.O. Box 1105 Burlington, Iowa 52601 Mr. Greg A. Egbers Attorney at Law 600 Union Arcade Building 111 East Third Street Davenport, Iowa 52801 1403.30, 5-1803, 2401 2801 Filed January 30, 1990 DAVID RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER JAMES R. WOLBERS, Claimant, vs. File Nos. 816771 829340 UNITED PARCEL SERVICE, A R B I T R A T I 0 N Employer, D E C I S I 0 N and LIBERTY MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. 1403.30, 2401, 2801 Notice to a nonsupervisory fellow employee is not notice to a "representative" of employer. Claimant who alleged traumatic, "snapping" injury to both shoulders, with immediate bilateral pain, and who then "limped along" for nine days before suffering unrelated injury was held to know that his injury was both serious and work connected. Claimant was intelligent and had extensive experience with reporting prior work injuries. 5-1803 Claimant awarded five percent impairment to arm.