BEFORE THE IOWA INDUSTRIAL COMMISSIONER KENNETH CHRISTENSEN, Claimant, File Nos. 816946 703098 vs. A R B I T R A T I O N FARMLAND FOODS, A N D Employer, R E V I E W - and AETNA CASUALTY & SURETY R E O P E N I N G COMPANY, D E C I S I O N Insurance Carrier, Defendants. F I L E D AUG 16 1989 IOWA INDUSTRIAL COMMISSIONER STATEMENT OF THE CASE This is a proceeding in review-opening and arbitration brought by Kenneth Christensen, claimant, against Farmland Foods, employer, and Aetna Casualty & Surety Company, insurance carrier, to recover additional benefits under the Iowa Workers' Compensation Act as a result of an injury which arose out of and in the course of his employment on May 18, 1982, and to seek benefits as a result of an alleged injury of February 22, 1986. This matter came on for hearing before the undersigned deputy industrial commissioner November 16, 1988, and was considered fully submitted at the close of the hearing. The record in this case consists of the testimony of claimant and joint exhibits 1 through 57, inclusive. ISSUES Pursuant to the prehearing report and order submitted and approved November 16, 1988, the issues presented for resolution in file No. 703098 are: 1. Whether claimant has had a change of condition which would entitle him to additional compensation benefits; and 2. The extent of claimant's entitlement, if any, to additional permanent partial disability benefits. The issues presented for resolution in file No. 816946 are: 1. Whether claimant sustained an injury which arose out of and in the course of his employment; 2. Whether claimant's alleged injury is the cause of the disability on which he now bases his claim; 3. Claimant's entitlement to weekly disability benefits, including temporary total disability/healing period and permanent partial disability benefits; 4. Claimant's entitlement to medical benefits pursuant to Iowa Code section 85.27; and 5. Whether claimant's claim is barred pursuant to Iowa Code section 85.26. FACTS PRESENTED Claimant sustained an injury which arose out of and in the course of his employment on May 18, 1982, when he received an electric shock and fell approximately five feet landing on his head and shoulders. An agreement for settlement was approved by the industrial commissioner's office on July 10, 1984 which stipulated and found that claimant had sustained a 15 percent industrial disability to the body as a whole giving consideration to "factors of functional disability, age, motivation, education, ability to find suitable employment, past and present wages, work experience, qualifications, ability after the injury to engage in employment for which claimant is fitted, and medical condition and that all of these items are considered in determining it." Attached to the agreement for settlement was a report from D. J. Soll, M.D., dated August 13, 1983, which stated: Kenneth Christensen has recovered about as much as he will. He has been seen by several specialists and he still does have problems but is able to work. He has been on medication including Tylenol and Aspirin plus he is taking some Triavil. He still has pain when he turns his head from side to side and when he does flex his neck, he, I feel, does have a permanent partial disability of about 25%, because of this injury. Also attached to the agreement for settlement was a report from Marvin S. Rosenfeld, D.O., who conducted an orthopedic evaluation on December 20, 1983 and concluded: Impression: Soft tissue trauma to the cervical spine with equivocal [sic] radiculitis. It was my recommendation he continue with present medications. I feel he has reached maximum medical improvement except for some expected gains in motion and mild decrease in symptoms, however I feel these symptoms will continue into the indefinite future. Dr. Rosenfeld rated claimant as having a 7 percent impairment to the body as a whole and opined that claimant could continue his present occupation at Farmland Foods with episodes of reoccurrence of pain requiring some time off and physical therapy in the future to be expected. Claimant testified he returned to work in March 1983, and that after working light duty for two or three weeks he began working at his regular jobs which he described as pulling guts, skinning hogs, running a high puller, and tongueing and cheeking hogs. Claimant recalled that at the time he returned to work, as well as when he entered into the agreement for settlement, he was experiencing pain all the time in his neck and shoulders and severe pain when he did repetitious work. Claimant testified that since returning to work he has not missed work on account of his shoulder, outside of medical appointments, and that the pain in his shoulder continually "seems to get a little worse." Claimant offered that in 1986 the pain he had been experiencing transferred "kind of" to the left side and that his left shoulder began bothering him "as bad or worse" as the right side had been. Claimant testified that prior to 1986 repetitious work had not affected the left side but subsequent to 1986 it did. Claimant could not recall a specific time in 1986 that this began to happen but was satisfied with approximately February 1986. Claimant described his present complaints as severe pain in the left shoulder and neck, that if he uses his right arm wrong it becomes immobile (whereas in 1984 his muscles "did not quit"), that he cannot now work above shoulder height which was not true in 1984 and that he now cannot do constant;repetitious work. On cross-examination, claimant revealed he has had some training as a computer programmer, doing electrical work, in basic mechanical skills, as well as some supervisory experience, and that approximately one year ago he changed jobs with defendant employer which resulted in a salary increase. Claimant acknowledged he was paid benefits for an injury in April 1987 involving a problem with his left arm which he described as a "muscle pulled loose from the elbow," that in January 1987 he alleged a problem with his right arm and in September of 1988 a problem with his right shoulder. Claimant testified he thought claims for the neck and shoulder were the same claims as made in his last law suit against defendants. Claimant denied any recollection of a doctor telling him in 1982 he should not return to work with defendant employer. Claimant admitted he had been advised by physicians that, as a result of his condition, he could expect flare-ups from time to time. Medical records since July 1984 (the time of the agreement for settlement) reveal that Dr. Rosenfeld's prediction that claimant's symptoms would continue into the indefinite future and that claimant could expect episodes of reoccurrence of pain was true. Claimant continued seeing a variety of physicians for cervical strain and underwent in September of 1985 therapeutic paravertebral blocks which claimant reported improved his pain considerably. On April 10, 1986, claimant saw Dr. Soll with reference to a "strain" of the left shoulder and forearm. Claimant, at this time, was released to return to work without restriction but, on April 21, 1986, when claimant saw Dr. Soll for a "strain of left forearm musculature," claimant was released to return to work with the instructions to avoid lifting more than 20 pounds and no pushing or pulling with the left arm. In June of 1986 claimant was released to return to work without restriction. Claimant was seen by Dr. Soll July 8, 1986 for arthritic pain in the neck and released to return to work without restriction. On May 18, 1987, claimant was seen for examination and evaluation by Horst G. Blume, M.D., Ph.D., because of: ...neck-shoulder-arm pain on both sides, as well as occipital headaches accompanied by pressure sensation, dizziness nad [sic] occasional nausea. The patient also was complaining of periodic pain into the left hand, especially on the back of the hand and in the second, third and fourth fingers of the left hand. The patient further reports low back pain which he described as being in the L5 region, as well as thoracic pain which he described as constant. (Joint Exhibit 47, pp. 1) Dr. Blume concluded: After doing a complete physical and neurological examination and reviewing many reports, it is my opinion that the patient has sustained an injury to the cervical spine with suspect of injury to the cervical disc with lower cervical nerve root irritation most likely at C6 primarily, left more than right. The patient may also have had an injury to the C2/C3 level of the cervical spine.... There is no doubt that the patient has a permanent partial disability to the body as a whole as a result of the work related injury sustained on May 18, 1982, but is difficult for me to make a statement without having the opportunity to see the myelographic films, however, Dr. Soll gave the patient a disability rating of 25% which in my opinion would be an accurate rating, even without having seen the films, and I would agree with him on this rating. (Jt. Ex. 47, p. 2) In response to an interrogatory asking: "State whether or not you have any difficulties in performing said job and, if so, state the nature of those difficulties and why you have them," claimant, on February 13, 1984, answered: The tongue cutting job has given me the least amount of trouble of any of the jobs I have done. The other jobs, especially the cutting of shackle marks, cause my neck and shoulder to tighten up and cause me severe pain. I still have some tightening and mild pain while doing this job. I also get headaches quite frequently during the day and late at night or early morning. Any time I have to use my arms so that the upper bicep portion of my arm is extended away from my side or I have to use a forceful motion with my arm it creates severe pain after an hour or so of continuous work. (Jt. Ex. 56, p. 2) Claimant, on July 7, 1986, described his present complaints as: Pain in shoulders, neck and upper back (spine) area. Lack full movement of head turning from one side to the other. Have pain and lack full movement of head from tilting sideways movement. Occasional numbness in fingers. Headaches. (Jt. Ex. 54, p. 3) 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(1). The claimant must prove by a preponderance of the evidence that his injury arose out of and in the course of his employment. Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). In the course of employment means that the claimant must prove his injury occurred at a place where he reasonably may be performing his duties. McClure v. Union, et al., Counties, 188 N.W.2d 283 (Iowa 1971). Arising out of suggests a causal relationship between the employment and the injury. Crowe v. DeSoto Consolidated School District, 246 Iowa 402, 68 N.W.2d 63 (1955). The first issue to be addressed is whether claimant has met his burden of proving he sustained an injury "on or about February 22, 1986" which arose out of and in the course of his employment as a result of "repetitious motion of job." Medical records do not reveal that claimant either sought or received any medical care for pain in his left shoulder, arm and hand in February 1986. Claimant was treated in April 1986 for a left shoulder and forearm strain and acknowledged that he was treated for epicondylitis in April 1987 and received compensation benefits therefor. (This claim forms the basis of another industrial commissioner file.) Medical records do reveal that claimant's complaints with reference to his left extremity date back to 1979. Dr. Blume relates all of claimant's complaints to the 1982 injury and no mention is made of any injury occurring in 1986. The Iowa Supreme Court in the case of McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985) addressed the issue of cumulative trauma and held that where an injury is cumulative, the date the injury occurs when the claimant, because of pain or physical activity, can no longer work. Id. at 374. Claimant has failed to show that in February of 1986 or on or about February 22, 1986, he was unable because of pain or physical inability to continue working. Claimant candidly acknowledged that with the exception of medical appointments, he has not missed any work on account of any injury. It is concluded that claimant has failed to show he sustained an injury on or about February 22, 1986 which arose out of and in the course of his employment; therefore, the other issues presented for resolution need not be addressed and claimant shall take nothing as a result of these proceedings. Claimant next asserts an entitlement to additional benefits as a result of the injury of April 18, 1982. The case law relating to review-reopening proceedings is rather extensive. The opinion of the Iowa Supreme Court in Stice v. Consolidated Ind. Coal Co., 228 Iowa 1031, 1035, 291 N.W. 452 (1940) stated "that the modification of...[an] award would depend upon a change in the condition of the employee since the award was made." The court cited the law applicable at that time which was "if on such review the commissioner finds the condition of the employee warrants such action, he may end, diminish, or increase the compensation so awarded" and stated at 1038: That the decision on review depends upon the condition of the employee, which is found to exist subsequent to the date of the award being reviewed. We can find no basis for interpreting this language as meaning that the commissioner is to re-determine the condition of the employee which was adjudicated by the former award. The court in Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957) cited prior decisions and added a new facet to the review-reopening law by stating at page 69: But it is also true that unless there is more than a scintilla of evidence of the increase, a mere difference of opinion of experts or competent observers as to the percentage of disability arising from the original injury would not be sufficient to justify a different determination by another commissioner on a petition for review-reopening. Such is not the case before us, for here there was substantial evidence of a worsening of her condition not contemplated at the time of the first award. In a somewhat analogous vein, the Iowa Court of Appeals held in Meyers v. Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24, 25 (Iowa App. 1978) that a review-reopening petition may allow a change in compensation when a claimant has failed to improve to the extent initially anticipated. A major pronouncement came in the case of Gosek v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968). The opinion there, at 732, stated that "[o]n a review-reopening hearing claimant has the burden of showing by a preponderance of the evidence his right to compensation in addition to that accorded by a prior agreement or adjudication." The opinion went on to discuss the common understanding that "if a claimant sustained compensable injuries of which he was fully aware at time of prior settlement or award, but for some unexplainable reason failed to assert it, he cannot, for the first time on subsequent review proceedings, claim additional benefits." The opinion continued at 733 "[b]ut according to the apparent majority view, if a claimant does not know of other employment connected injuries or disability at time of any prior agreement or adjudication, he is not ordinarily barred from later asserting it as a basis for additional benefits." The court went on to hold at 735 that "cause for allowance of additional compensation exists on proper showing that facts relative to an employment connected injury existed but were unknown and could not have been discovered by the exercise of reasonable diligence, sometimes referred to as a substantive omission due to mistake, at time of any prior settlement or award." Each of these cases rests upon some disparity between claimant's actual or anticipated physical condition at the time of the previous assessment and the physical condition which exists at the time of the review-reopening proceeding. Thus, the question initially becomes has claimant established a change in his physical condition since the time of the agreement for settlement. At the time claimant entered into the agreement for settlement, claimant had functional impairment ratings ranging from 7 percent from Dr. Rosenfeld to 25 percent from Dr. Soll. Subsequently, Dr. Blume agreed with Dr. Soll and rated claimant as having a 25 percent "disability." Dr. Blume did not see claimant prior to May of 1987 and did not know what claimant's condition was at the time he entered into the agreement for settlement. Further, because Dr. Blume agrees with Dr. Soll, who rendered his opinion in August 1983, it would not be unreasonable to surmise that claimant's functional impairment has not necessarily changed. However, even if that conclusion was not reached, under the court's reasoning in Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957), the fact that two experts have now agreed on the 25 percent rating is not determinative of the issues. The only evidence of any change in claimant's physical condition is his testimony that he now has pain in his left shoulder and has difficulty working overhead. However, the question arises as to whether claimant's problems actually stem from this injury or the injury in April 1987 which specifically involves the left extremity. Claimant presented no evidence outside of his own testimony on the April 1987 injury and consequently this question remains open. Claimant has also alleged problems in January 1987 with his right arm and in September 1988 with his right shoulder. Claimant has failed to establish just how much of this is causally connected to the injury of May 18, 1982. The required change of condition to satisfy the requirements of review-reopening need not rest solely upon a change of physical condition if economic hardships causally related to a compensable injury but not contemplated within the initial award or agreement are demonstrated. An increase in industrial disability may occur without a change in physical condition. A change in earning capacity subsequent to the original award which is proximately caused by the original injury also constitutes a change in condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). The question thus secondarily becomes whether or not claimant's industrial disability has changed. Clearly, claimant's age has changed since the time he entered into the agreement for settlement. However, age cannot have been something which was not contemplated by the parties at the time the settlement was agreed to. Claimant appears to remain motivated to continue working as evidenced by his employment record. Claimant has received increases in salary and has been able to maintain his employment without interruption. Although the undersigned may have initially determined claimant's industrial disability to be different from that agreed to, it is inappropriate pursuant to Stice v. Consolidated Ind. Coal Co., 228 Iowa 1031, 291 N.W. 452 (1940), to redetermine, at this state, the condition of claimant at the time he entered into the agreement for settlement. The undersigned cannot conclude that claimant has established either a change in his physical condition or his industrial disability and, accordingly, claimant shall take nothing further as a result of these proceedings. FINDINGS OF FACT Wherefore, based on of the evidence presented, the following findings of fact are made: 1. Claimant sustained an injury which arose out of and in the course of his employment on May 18, 1982, when he received an electric shock and fell approximately five feet landing on his head and shoulders. 2. Claimant entered into an agreement for settlement which was approved by the industrial commissioner's office on July 10, 1984, which stipulated and found that claimant sustained an industrial disability of 15 percent to the body as a whole. 3. Since he entered into the agreement for settlement, neither claimant's physical condition nor his industrial disability has changed so as to allow him an entitlement to additional weekly benefits. 4. Claimant alleged he sustained an injury on or about February 22, 1986 as a result of repetitious motion on the job. 5. Medical records do not reveal that claimant either sought or received any medical treatment for pain in the left shoulder, arm and/or hand at or about the time he alleged he sustained an injury. 6. Claimant continued working for defendant employer and did not cease work due to any pain or inability to continue working. 7. Claimant failed to show he sustained an injury arising out of and in the course of his employment on or about February 22, 1986. CONCLUSIONS OF LAW Therefore, based on the principles of law previously stated, the following conclusions of law are made: 1. Claimant failed to show any change of condition which would entitle him to further benefits as a result of the injury of May 18, 1982, since he entered into the agreement for settlement which was approved in July 1984. 2. Claimant failed to meet his burden of proof that he sustained an injury on or about February 22, 1986 which arose out of and in the course of his employment. ORDER THEREFORE, it is ordered: Claimant shall take nothing as a result of these proceedings. Costs are assessed against defendants pursuant to Division of Industrial Services Rule 343-4.36. Signed and filed this 16th day of August, 1989. DEBORAH A. DUBIK DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Harry H. Smith Attorney at Law P.O. Box 1194 Sioux City, IA 51102 Ms. Judith Ann Higgs Attorney at Law 200 Home Federal Bldg. P.O. Box 3086 Sioux City, IA 51102 5-2905; 5-1100 1402.30 Filed August 16, 1989 Deborah A. Dubik BEFORE THE IOWA INDUSTRIAL COMMISSIONER KENNETH CHRISTENSEN, Claimant, File Nos. 816946 703098 vs. A R B I T R A T I O N FARMLAND FOODS, A N D Employer, R E V I E W - and R E O P E N I N G AETNA CASUALTY & SURETY COMPANY, D E C I S I O N Insurance Carrier, Defendants. 5-2905 Claimant failed to show a change of condition in a review-reopening proceeding subsequent to an agreement for settlement which was approved in July 1984 5-1100; 1402.30 Claimant failed to establish he sustained an injury arising out of and in the course of his employment in February of 1986 when claimant sought no medical care, did not miss any work, and other claims for benefits with different injury dates involved the same body part. No award of benefits was made. BEFORE THE IOWA INDUSTRIAL COMMISSIONER DENNIS OHNEMUS, Claimant, File No. 816947 VS. A P P E A L JOHN DEERE DAVENPORT WORKS, D E C I S I 0 N Employer, Self-Insured, Defendant. STATEMENT OF THE CASE Defendant appeals from an arbitration decision awarding temporary total disability benefits and medical expenses as a result of an alleged mental injury on April 11, 1986. The record on appeal consists of the transcript of the arbitration hearing; claimant's exhibits 1 through 11; and defendant's exhibits A through K. Both parties filed briefs on appeal. ISSUES The issues on appeal are whether the deputy erred in allowing hearsay testimony and whether claimant suffered a mental injury which arose out of and in the course of his employment. REVIEW OF THE EVIDENCE The arbitration decision filed October 18, 1988 adequately and accurately reflects the pertinent evidence and it will not be reiterated herein. Additional evidence necessary for the analysis and findings of fact will be discussed as appropriate. APPLICABLE LAW The citations of law in the arbitration decision are appropriate to the issues and evidence. ANALYSIS The first issue raised by the defendant can be dealt with summarily. Defendant alleges that the deputy erred in allowing OHNEMUS v. JOHN DEERE DAVENPORT WORKS Page 2 one of claimant's witnesses to offer hearsay testimony. The Iowa Supreme Court, in interpreting Iowa Code section 17A.14, has held "that administrative agencies are not bound by technical rules of evidence, and that generally hearsay evidence is admissible at administrative hearings." McConnell v. Iowa Dept. of Job Service, 327 N.W.2d 234, 237 (Iowa 1982). The deputy did not err in allowing a witness for claimant to offer hearsay testimony. However, hearsay evidence is not given great weight. The second issue on appeal is whether claimant suffered an injury that arose out of and in the course of his employment. Claimant is seeking temporary total disability benefits for a psychological injury. Claimant clearly had a preexisting psychological condition. Therefore, the question to be answered in this case is whether as a result of a work incident claimant suffered an aggravation of a preexisting psychological condition that resulted in a temporary disability. The alleged injury date is April 18, 1986. That date is the date on which claimant was accused of improper work performance which lead to his firing on April 23, 1986. There is virtually no evidence that whatever may have happened on April 18, 1986 was the cause of claimant's symptoms. The parties, as well as this discussion, focus on events that occurred on April 11, 1986. The events on that day were as follows. Claimant's supervisor for four years, Jon Ball, was looking for claimant in order to discuss claimant's work performance. Claimant was responsible for set up, a task that was necessary for other workers to do their jobs. Claimant testified that he was feeling nervous because two coworkers wanted set ups and that he felt pressured when two set ups were needed at one time. Ball approached claimant to talk to him because his work performance was allegedly not satisfactory. Claimant had returned to work April 8, 1986 after six days absence because of a non-work injury and apparently his work performance was expected to improve and it did not. A confrontation between claimant and Ball followed in which claimant told Ball that Ball could put the work performance standards "up his ass" and Ball asked claimant three times if claimant was "losing it." Claimant unsuccessfully asked to see a union steward and eventually went to the company nurse. A week later an incident involving an improper set up occurred which resulted in claimant being fired. Claimant testified that the April 11, 1986 incident was one of many and that he felt Ball harassed him. He also testified that this harassment took place over six to eight months. Claimant admitted on cross-examination that he felt he had been harassed or picked on by two other supervisors he had with defendant. Claimant and one of those supervisors was involved in a situation where claimant felt pressure to do set ups when more OHNEMUS v. JOHN DEERE DAVENPORT WORKS Page 3 than one was needed at a particular time. That situation was very similar to the incident on April 11, 1986 except for the confrontation between claimant and his supervisor. Following claimant's firing he consulted his counsel in this matter and that counsel referred him to Thomas P. Dhanens, Ph.D., a clinical psychologist. Dr. Dhanens evaluated claimant and treated him through December 1986. Claimant was evaluated by Carl S. Davis, Ph.D., clinical psychologist, at defendant's request. In order to prevail claimant must prove that he suffered a non-traumatically caused mental injury that arose out of and in the course of his employment. This matter deals with wha is referred to as a mental-mental injury and does not deal with a mental condition caused by physical trauma or a physical condition caused by mental stimulus. The supreme court in Schreckengast v. Hammer Mills, Inc., 369 N.W.2d 809 (Iowa 1985), recognized that issues of causation can involve either causation in fact or legal causation. As stated in footnote 3 at 369 N.W.2d 810: We have recognized that in both civil and criminal actions causation in fact involves whether a particular event in fact caused certain consequences to occur. Legal causation presents a question of whether the policy of the law will extend responsibility to those consequences which have in fact been produced by that event. State v. Marti, 290 N.W.2d 570, 584-85 (Iowa 1980). Causation in fact presents an issue of fact while legal causation presents an issue of law. Id. That language was the basis of the language in Desgranges v. Dept of Human Services, (Appeal Decision, August 19, 1988) which discussed that there must be both medical and legal causation for a nontraumatic mental injury to arise out of and in the course of employment. While Desgranges used the term medical causation the concept involved was factual causation. Therefore, in this matter it is necessary for two issues to be resolved before finding an injury arising out of and in the course of employment - factual and legal causation. Proving the factual existence of an injury may be accomplished by either expert testimony or nonexpert testimony. Two psychologists gave opinions as to factual causation. Dr. Dhanens treated claimant but his opinion was dependent upon the harassment perceived by claimant. The evidence in this case indicates that claimant's perception of harassment is subjective. Given claimant's preexisting psychological condition, the description of claimant's poor coping ability given by Dr. Dhanens and of his difficulties in interpersonal relationships OHNEMUS v. JOHN DEERE DAVENPORT WORKS Page 4 given by Dr. Davis, and claimant's own testimony regarding his perceptions (more thoroughly set out below), claimant's perception of harassment is, to say the least, suspect. While Ball may have been an insensitive supervisor, there is no objective evidence of harassment. Therefore, Dr. Dhanens' opinion can be given little weight as it is based upon claimant's unreliable perception. It was Dr. Davis, opinion, which was not based upon claimant's perception, that claimant's work did not exacerbate his preexisting condition. Because claimant's perception is unreliable, his testimony can be given little weight in determining the factual existence of this mental injury. Claimant has not proved that his work was the factual cause of a mental injury that was a material aggravation of his preexisting mental condition. It should be noted that the discussion here is not whether there is a causal connection between an injury and an alleged disability. The proof of the causal connection between an injury and an alleged disability is dependent upon medical opinion. That medical opinion cannot only be the opinion of a psychologist. See Saunders v. Cherry Burrell Corp., II Iowa Industrial Commissioner Report 333 (Appeal Decision 1982) and Palmer v. Norwalk Community School District, II Iowa Industrial Commissioner Report 302 (Appeal Decision 1981). A psychologist is not a physician. See Iowa Code section 135.1(5). If the issue of whether there was a causal connection between claimant's alleged injury and his alleged disability were to be decided in this case, claimant's claim would be denied because there is no opinion of causal connection given by a physician. Not only must claimant prove that his work was the factual cause of his mental injury, claimant must also prove that the legal cause of his injury was his work. In order to prove this legal causation claimant must prove that his temporary mental condition "resulted from a situation of greater dimensions than the day to day mental stresses and tensions which all employees must experience." Swiss Colony v. Department of ICAR, 240 N.W.2d 128, 130 (Wisc. 1976). Claimant alleges that he had been harassed for six to eight months. However, in the three months preceding April 11, 1986 claimant missed a significant amount of work. Claimant missed 30 days of work between January 1, 1986 and April 11, 1986 and had worked only six days from March 11, 1986 to April 11, 1986. The later time period claimant was recovering from a non-work injury. Claimant's absenteeism mitigates against great mental stress. He simply was not at work enough to have suffered an extended period of mental stress. Both Dr. Dhanens and Dr. Davis indicate that claimant has a long standing personality disorder that makes it unlikely he is able to distinguish between actual harassment and perceived harassment. It is impossible to tell at any time if claimant's OHNEMUS v. JOHN DEERE DAVENPORT WORKS Page 5 condition was due to the work environment or the normal progress of claimant's mental condition. The occurrences on April 11, 1986 do not constitute mental stress out of the ordinary stresses and tensions which employee must experience. Claimant was responsible for the task of set up. That task had to be performed in a timely and correct manner in order for work in the plant to be performed in an efficient and safe manner. Claimant's supervisor was attempting to see that claimant performed his job correctly. After the confrontation between claimant and his supervisor had begun, the supervisor did not handle the situation well and was, to say the least, insensitive. But all employees are from time to time required to cope with a supervisor who is insensitive and unable to handle confrontation. Two things are particularly revealing here. One is that claimant had almost an identical problem with another supervisor on a prior occasion in a very similar circumstance. There is no indication that the former supervisor was as insensitive as supervisor Ball was. But the confrontation resulted in both situations because claimant was unable to handle a normal requirement of his job. It is assumed that same job was performed by other workers who worked different shifts and who performed claimant's job during his absences. The second revealing thing is claimant's own testimony about his feelings of harassment by persons who supervised him. Claimant testified on cross-examination: Q. Were you on probation at the Des Moines plant of John Deere before you came to Davenport? A. On probation? Q. Yes. A. Not that I know of. Q. Is that what you told Dr. Dhanens? A. I don't think I was, but it's a possibility that that was wrote down. I had a problem with one of the foremen there. I had two foremen at the time that I worked at John Deere, and one of the foremen and I, we got along just perfect. I did the exact same work as I did the other one, but the other one just didn't like me, and I had a hard time getting along with him. Q. Did he harass you, too? OHNEMUS v. JOHN DEERE DAVENPORT WORKS Page 8 Copies to: Mr. Peter M. Soble Attorney at Law 505 Plaza Office Bldg. Rock Island, IL 51201 Mr. Thomas N. Kamp Attorney at Law 600 Davenport Bank Bldg. Davenport, Iowa 52801 1108.20 - 2204 Filed February 26, 1990 David E. Linquist BEFORE THE IOWA INDUSTRIAL COMMISSIONER DENNIS OHNEMUS, Claimant, File No. 816947 VS. A P P E A L JOHN DEERE DAVENPORT WORKS, D E C I S I 0 N Employer, Self-Insured, Defendants. 1108.20 Nonexpert testimony could be used to establish whether a mental injury arose out of and in the course of employment. A psychologist is not a physician and is not qualified to give opinion as to whether there was a causal connection between an event and an alleged disability. 2204 Claimant had a preexisting psychological condition that made it difficult for him to deal with authority figures and made claimant's perception of events suspect. The standard for proving a mental-mental injury from nontraumatic events was discussed. Wisconsin rule followed the principle that claimant must prove both factual and legal causation before it can be found that an injury arose out of and in the course of employment was discussed. It was held that claimant had not prove factual nor legal causation, thus no mental injury arose out of or in the course of his employment. BEFORE THE IOWA INDUSTRIAL COMMISSIONER EDWARD L. BRIGGS, Claimant, File No. 817016 vs. A R B I T R A T I O N DELAVAN, INC., D E C I S I O N Employer, and F I L E D AETNA CASUALTY & SURETY COMPANY, FEB 01 1988 Insurance Carrier, IOWA INDUSTRIAL COMMISSIONER Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Edward L. Briggs, claimant, against Delavan Corporation, employer, and Aetna Casualty & Surety Co., insurance carrier, to recover benefits under the Iowa Workers' Compensation Act for an alleged injury occurring on or about December 6, 1985. This matter was to come on for hearing January 29, 1988 at the Industrial Commissioner's office in Des Moines, Iowa. The undersigned was present. Neither claimant nor defendants appeared. Claimant failed to present any evidence in support of the allegations found in his original notice and petition. Neither an agreement for settlement nor a request for continuance are on file. Claimant has the burden of proving by a preponderance of the evidence that he sustained an injury which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976). WHEREFORE, it is found: 1. Neither claimant nor defendants appeared at the scheduled time and place of hearing. 2. The undersigned deputy industrial commissioner was present and prepared to proceed to hearing. 3. Neither an agreement for settlement nor a request for continuance is on file with the industrial commissioner. 4. Claimant failed to present any evidence to support allegations of a compensable work injury. THEREFORE, it is ordered: Claimant has failed to meet his burden of proof that he sustained an injury which arose out of and in the course of his employment. Claimant take nothing from this proceeding. Costs are taxed to the claimant. Division of Industrial Services Rule 343-4.33. Signed and filed this 1st day of February, 1988. DEBORAH A. DUBIK DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Harry Dahl Attorney at Law 974 73rd St, Suite 16 Des Moines, Iowa 50312 Ms. Lorraine May Attorney at Law 4th Floor Equitable Bldg. Des Moines, Iowa 50309 1400; 1402 Filed 2-1-88 Deborah A. Dubik BEFORE THE IOWA INDUSTRIAL COMMISSIONER EDWARD L. BRIGGS, Claimant, File No. 817016 vs. DELAVAN, INC., A R B I T R A T I 0 N Employer, D E C I S I 0 N and AETNA CASUALTY & SURETY COMPANY, Insurance Carrier, Defendants. 1400; 1402 Neither claimant nor counsel appeared at the hearing. No evidence in support of allegations of a compensable work injury was presented and claimant therefore failed to meet his burden of proof. 5-1803; 5-1803.1 Filed September 28, 1989 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER RICHARD A. PAYER, Claimant, File No. 817170 832186 & 857754 vs. A R B I T R A T I O N ARMOUR FOOD CO., D E C I S I O N Employer, and F I L E D THE HARTFORD INSURANCE CO., SEP 28 1989 Insurance Carrier, IOWA INDUSTRIAL COMMISSIONER Defendants. INTRODUCTION These are proceedings in arbitration brought by Richard A. Payer, claimant, against Armour Food Company, employer, and The Hartford Insurance Company, insurance carrier, defendants. The cases were consolidated and heard by the undersigned on August 29, 1989, in Mason City, Iowa. The record consists of the testimony of claimant. The record also consists of the testimonies of Fred Barlow and Laura Payer. The record additionally consists of claimant's exhibits 1-21, 23, 24 and defendants' exhibit D. ISSUES As a result of the prehearing report and order submitted on August 29, 1989, the issues presented by the parties are: 1. Whether claimant is entitled to permanent partial or total disability benefits; and, 2. Whether 86.13 notice was properly given to claimant. STIPULATIONS The parties stipulated to the following: 1. The existence of an employer-employee relationship between claimant and employer at the time of the alleged injury; 2. That claimant sustained progressive and cumulative injuries on November 5, 1985, August 28, 1986, and July 13, 1987, which arose out of and in the course of employment with employer; 3. That the alleged injuries are causes of temporary disability during periods of recovery; that the work injuries are a cause of permanent disability; 4. That entitlement to temporary total disability or healing period benefits is inapplicable; 5. In the event of an award of weekly benefits, the rate of weekly compensation is stipulated to be: 817170 $203.09 832186 $207.27 857754 $207.97 6. That all requested medical benefits have been or will be paid by defendants; 7. That defendants paid claimant as follows: 817170 120 weeks $24,370.80 7.857 weeks 1,595.68 13.571 weeks 2,757.34 Total $28,723.82 832186 3.714 weeks $ 769.80 857754 79.429 weeks $16,518.64 FACTS PRESENTED Claimant is 28-years-old. He is married and three children reside in his home. Claimant has his GED but no additional education. He began his employment with Armour on December 19, 1983, where he was hired as a stuffer in the fresh sausage department. Currently, claimant works part-time selling light bulbs. He has earned a total of $900.00 in gross wages since he began this position. Claimant also works full time as a salesman at Slumberland in Mason City, Iowa. He has held this position since April 24, 1989. Claimant is paid on a salary plus commission basis. He averages $4.75 per hour but he works approximately 49 hours per week. Claimant testified during the hearing that prior to the fall of 1985, he was in good condition except he was overweight. However, during that fall claimant stated, he felt cracking and popping in his right shoulder. He also testified he felt a loss of strength in the shoulder. Claimant was initially examined by A. J. Wolbrink, M.D., an orthopedic surgeon who was the company physician. On March 11, 1986, Dr. Wolbrink performed surgery on claimant's right shoulder. The physician diagnosed claimant as having: "Arthroscopy of the right shoulder with shave of tags of glenoid labrum and then open excision of the distal clavicle, right shoulder." Claimant was released to return to work on May 20, 1986. However, Dr. Wolbrink placed restrictions upon claimant's return. Claimant was restricted from reaching overhead or from engaging in repetitive lifting. In July of 1986, claimant testified he began experiencing problems with his left shoulder. Claimant attributed the problems to the fact that he switched the hose he was using at work from the right hand to the left hand. Dr. Wolbrink began treating claimant for a left shoulder condition as well as for a right shoulder condition. In August of 1987, Dr. Wolbrink diagnosed claimant as having: "Degenerative arthritis AC joint and fraying of rotator cuff left shoulder." Dr. Wolbrink performed an arthroscopic shaving of the rotator cuff and open excision of the distal clavicle, left shoulder. Claimant also testified he began experiencing numbness in both his left and right hands. Claimant testified he could not grip the hose with his hand. Claimant also testified the inside of his hand swelled. On February 12, 1988, K. B. Washburn, M.D., a partner of Dr. Wolbrink, performed a stellate ganglion block on claimant's right extremity. Dr. Washburn noted in his progress notes for that day: IMPRESSION: I am beginning to doubt my diagnosis of shoulder-hand syndrome, since he has neither responded to the corticosteroids or the sympathetic blocks. I believe there is a great deal of psychogenic overlay here. However, before we begin to treat him from a more psychological standpoint, I believe that he should be seen once again by Dr. Wolbrink for repeat surgical evaluation. I will recheck him in 1 month. Incidentally, I took some time, actually to read out of a book called "Soft Tissue, Rheumatic Pain", about the problem of reflex sympathetic dystrophy. He agrees that the symptoms in the book are very similar to his symptoms. I especially read to him to make him understand that I have given all of the treatments available for this particular situation and I have nothing further personally to offer him. I have told him that I do not use narcotic pain medication. There is no reason to switch anti-inflammatory medications and, therefore, I have nothing further to offer him to relieve his pain at this particular time. In August of that year, Dr. Wolbrink opined the following relative to claimant's right hand: DISPOSITION: I think this is a tendinitis that has developed in his right hand also a bit. May have very slight early carpal tunnel syndrome. Think he will be okay to write and it was a combination of using the screwdriver the day before as well that aggravated things, so no specific change in programs at present, but will let him proceed as he is. He is taking the NAPROSYN and the ORUDIS and talked about using some warm-ups on his hands. Keep appt. otherwise as scheduled. In May of 1988, Dr. Wolbrink opined claimant sustained a functional impairment as follows: In my opinion, Mr. Payer has a permanent impairment of eight percent of the left upper extremity due to loss of motion in the shoulder and five percent due to surgical excision of the distal clavicle. This combines for a permanent impairment of thirteen percent of the left upper extremity. This is equivalent to eight percent of the whole person. This percentage can be combined with the nine percent of the whole person for the right shoulder to be total impairment of sixteen percent of the whole person due to the problems with his shoulders. As per our phone conversation, we are not one year from the time of surgery and so there may be slight improvement in function of his left shoulder, but I do not anticipate a significant change in permanent impairment. Also per our phone conversation, the problem with Mr. Payer's left arm is only about three months since surgery. We have seen improvement with various therapeutic modalities in recent weeks. Therefore, I anticipate that there will continue to be improvement in this status for at least another three months. Therefore, I am not able to give a permanent impairment rating to his left upper extremity for this recent tendinitis problem until at least three months from now. One year later, Dr. Wolbrink modified his findings. He opined: At the present time, it is my opinion that Mr. Payer also has an additional permanent impairment of 3 percent of the upper extremity due to residual weakness from his problem in that hand. Claimant was also examined on one occasion by John R. Walker, M.D. The examination took place on February 18, 1987. While Dr. Walker did not assess a functional impairment rating, he did determine the following: We have taken AP & lateral, right, left, oblique views, forward flexion, dynamic extension views of the cervical spine and we note; a definite loss of the normal cervical curve on the neutral, upright, lateral. There is no evidence [sic] of bone or joint disease. The disc space and intra-neural foramina are well-preserved. Various views of the right shoulder with internal and external rotation and some abduction show, of course, well, the nicely resected distal end of the clavicle again, measuring approximately a good 1 cm. I see no particular calcification in the capsule at this time. AP & lateral and abducted and internally and externally rotated views of the left shoulder reveal a rather large exostosis, difficult to really measure but appearing to be 2.5 cm. by 2 cm.. This involves the surgical neck of the humerus medially. There appears to be some subluxation of the acromioclavicular joint. The clavicle appears to be superior and not well articulated with the acromium process. On the left shoulder we also note some tiny excrescences and calcifications in the acromioclavicular joint on the left itself. Peter D. Wirtz, M.D., also examined claimant. In his report of February 23, 1989, Dr. Wirtz wrote: Diagnosis: 1. Status postop bilateral distal clavicle excision. 2. Shoulder stiffness bilateral. ... The patient's right shoulder has lost 10 degrees of forward flexion which is a 3% impairment of the upper extremity, the abduction has lost 10 degrees which is a 3% impairment of the upper extremity, and internal rotation has lost 10 degrees which is a 2% impairment of the upper extremity culminating in the right upper extremity having a disability of 8%. The left shoulder loss of motion in forward flexion is 20 degrees which is a 6% impairment of the upper extremity, the abduction loss of 10 degrees is a 3% impairment of the upper extremity, and the internal rotation loss of 10 degrees is a 2% impairment of the upper extremity culminating in an 11% impairment of the left upper extremity. There is no other condition in the upper extremities such as neurological or loss of motion to relate to any further impairment. This patient's shoulder conditions to include the entire upper extremity bilaterally will not require further medical management on a specific basis. This patient is capable of employment within his physiologic strength and dexterity and with the minimal loss of motion in both shoulders, would be limited to a minor degree in over-shoulder-heighth [sic] activities. He is capable of over-shoulder-heighth [sic] activities within his physiologic strength and dexterity which would be frequent in nature but not repetitive over an extended period of time. Claimant testified during his hearing that in May of 1988, a functional capacity test was performed. Claimant was restricted from lifting or carrying more than 20 pounds. Claimant was also precluded from frequently reaching above shoulder level. Furthermore, claimant was restricted from working in the damp and cold. After the functional capacity test was conducted, claimant was to return to work. However, he received a telephone call from Mr. Darrell Johnson, an employee of defendant. Mr. Johnson informed claimant there was no job available to him within the entire plant. APPLICABLE LAW An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960), and cases cited. The right of a worker to receive compensation for injuries sustained which arose out of and in the course of employment is statutory. The statute conferring this right can also fix the amount of compensation to be paid for different specific injuries, and the employee is not entitled to compensation except as provided by the statute. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). 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, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. This is so as impairment and disability are not synonymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial disability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial disability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985). For example, a defendant employer's refusal to give any sort of work to a claimant after he suffers his affliction may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). Similarly, a claimant's inability to find other suitable work after making bona fide efforts to find such work may indicate that relief would be granted. McSpadden, 288 N.W.2d 181 (Iowa 1980). Permanent partial disabilities are classified as either scheduled or unscheduled. A specific scheduled disability is evaluated by the functional method; the industrial method is used to evaluate an unscheduled disability. Martin v. Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 887 (Iowa 1983). ANALYSIS The first issue to address is the nature and extent of claimant's right shoulder injury. This injury involves file number 817170. The injuries, while progressive and cumulative, are all separate and distinct. Dr. Wolbrink assess a nine percent functional impairment to the body as a whole because of the initial injury to the right shoulder. Dr. Wirtz concluded the right shoulder had an eight percent functional impairment to the right upper extremity. This translated to a five percent impairment rating to the body as a whole. It has been stipulated that the claimant suffered a permanent partial disability. The physicians listed above disagree whether claimant's impairment is limited to the upper extremity or whether it extends to the body as a whole. It is found claimant sustained an injury to his shoulder which constitutes an injury to the body as a whole. Nazarenus v. Oscar Mayer & Co., II Iowa Industrial Commissioner Report 281 (Appeal Decision 1982). See also Snyder v. Firestone Tire & Rubber Company, (834049 Filed October 26, 1987). The mere fact that a rating pertains to a scheduled member does not mean the disability is restricted to a scheduled member. Snyder, supra, citing Pullen v. Brown & Lambrecht Earthmoving, Incorporated, II Iowa Industrial Commissioner Report 308 (Appeal Decision 1982). Dr. Wolbrink, who was the treating physician and who operated on the shoulder, rated the claimant as stated above. Much weight is accorded to his opinion. However, functional impairment is but one factor used to determine industrial disability. Prior to the time of claimant's right shoulder injury, he was relatively free of injuries. After the right shoulder injury, claimant was restricted from engaging in repetitive activities, although he was able to return to his employment at his former rate of pay. Claimant had always engaged in manual labor prior to his right shoulder injury. He was unable to perform at the same level. It is the determination of the undersigned that claimant sustained a permanent partial disability of 15 percent for industrial purposes because of claimant's right shoulder injury. The next issue to address is the nature and extent of claimant's injury to his left shoulder. Again, functional impairment ratings had been prepared by both Dr. Wolbrink and Dr. Wirtz. Once claimant had surgery on his left shoulder, he was precluded from working in the damp and in the cold, and from lifting and carrying more than 20 pounds. It was at this time when claimant was informed by defendant there was no job available to him within the entire plant. Claimant had always worked in a position where manual labor was required. Claimant is 28-years-old with a GED. He has no education beyond the high school level. Neither does claimant have any transferable job skills. Currently, claimant is employed in sales. He holds down two jobs, although one position is only part-time. Claimant's earning capacity in sales is somewhat tenuous since he has been on a salary plus commission basis. The guaranteed salary is $1,000.00 for the next two months. It will then be lowered to $635.00 per month. The most claimant has earned from his full time sales position is $1,123.00. This has been a one time occurrence. The total gross wages which claimant has earned from his part-time sales position is $900.00. Again, claimant's earnings are tenuous from this source. Clearly, claimant's income has decreased. His capacity to earn has been hampered as a result of his injury. Based upon the foregoing and based upon: 1) the personal observation of claimant; 2) agency expertise, (Iowa Administrative Procedures Act 17A.14(s); and, 3) claimant's testimony, the undersigned finds the claimant has a 35 percent industrial disability. Because the first injury is the cause of 15 percent of the industrial disability, the injury to the left shoulder is responsible for 20 percent of the industrial disability. The third issue to discuss is the injury to the right hand. Claimant is right handed. He testified the hand cramps. He also testified the hand swells on occasion and that his condition worsens when he writes. Dr. Wolbrink assessed an additional three percent functional impairment rating to the right upper extremity because of the hand problems. This equals a three percent impairment rating to the hand. Dr. Wolbrink indicated the impairment rating was given because of residual weakness of the hand. An injury to the hand is a scheduled member injury. No other medical practitioner provided a functional impairment rating. Therefore, in light of the above, it is found that claimant's third injury, file number 857754, results in a three percent loss of a hand as scheduled under section 85.34(1) of the Iowa Code. This totals 5.7 weeks of weekly benefits. The final issue to address is whether claimant is entitled to penalty benefits under section 86.13 of the Iowa Code. Section 86.13 provides in relevant portion: ... If an employer or insurance carrier fails to file the notice required by this section, the failure stops the running of the time periods in section 85.26 as of the date of the first payment. If commenced, the payments shall be terminated only when the employee has returned to work, or upon thirty days' notice stating the reason for the termination and advising the employee of the right to file a claim with the industrial commissioner. ... If a delay in commencement or termination of benefits occurs without reasonable or probable cause or excuse, the industrial commissioner shall award benefits in addition to those benefits payable under this chapter, or chapter 85, 85A, or 85B, up to fifty percent of the amount of benefits that were unreasonably delayed or denied. On February 23, 1989, defendant insurance carrier sent the following letter to claimant: This letter is to advise that as result of the shoulder injury of November 5, 1985 we have been paying you permanent partial disability payments. We are at this time terminating those payments as of March 21, 1989 and at that time we will have paid you 120 weeks of permanent partial disability payments. Yours very truly, Ed Mohler Senior Claim Supervisor Then on March 23, 1989, defendant tendered a letter to claimant relative to file number 857754. The letter stated in relevant portion: As a result of your work injury of 07-13-87, we have been paying compensation benefits to you. Because of the reason or reasons checked below, your compensation will be terminated on 04-20-89. _X__ Lack of sufficient medical information to support continued disability. ... You may submit evidence or documents disputing the termination of your benefits to us for reconsideration of our position or you may petition for a Review Reopening of your case through the Iowa Industrial Commissioner's Office, 507 10th, Des Moines, Iowa 50309. Sincerely, Edwin L. Mohler Senior Claim Supervisor The premier case on this issue is Auxier v. Woodward State Hospital-School, 266 N.W.2d 139, 142 (Iowa 1978). In that case, the Supreme Court held: ... [O]n the basis of fundamental fairness, due process demands that, prior to termination of workers [sic] compensation benefits, except where the claimant has demonstrated recovery by returning to work, he or she is entitled to a notice which, as a minimum, requires the following:  the contemplated termination,  that the termination of benefits was to occur at a specified time not less than 30 days after notice,  the reason or reasons for the termination,  that the recipient had the opportunity to submit any evidence or documents disputing or contradicting the reasons given for termination, and, if such evidence or documents are submitted, to be advised whether termination is still contemplated,  that the recipient had the right to petition for review-reopening under 86.34. There is no question defendant insurance carrier did not tender a 30 day notice in either its letter of February 23, 1989, (26 day notice), or its letter of March 23, 1989, (28 day notice). Likewise, with respect to file number 817170, defendant did not notify claimant that he had an opportunity to submit any evidence disputing or contradicting the reasons for termination. Additionally, claimant was not notified he had the right to petition to the industrial commissioner for a determination. The purpose of the notice is to provide claimant with an opportunity to obtain additional benefits or else to get his life in order. See Sparks v. Herberger Construction Co., (File No. 712561 October 21, 1983). Since defective notice was tendered to claimant in both file number 817170 and in file number 857754, claimant is entitled to additional benefits under section 86.13 for each of the two cases. For file number 817170, claimant is entitled to two weeks of additional benefits, ("up to fifty percent of the amount of benefits that were unreasonably delayed or denied."). With respect to file number 857754, claimant is entitled to one week of additional benefits. Here, the notice under Auxier, was less than 30 days, but claimant was advised of his rights to contradict or challenge the termination. FINDINGS OF FACT AND CONCLUSIONS OF LAW FINDING 1. Claimant sustained a right shoulder injury arising out of and in the course of his employment on November 5, 1985, which resulted in a functional impairment of eight to nine percent. FINDING 2. Claimant sustained a left shoulder injury arising out of and in the course of his employment on August 28, 1986, which resulted in a functional impairment of eight to 11 percent. FINDING 3. Claimant sustained a right hand injury arising out of and in the course of his employment on July 13, 1987, which resulted in a functional impairment of three percent of the hand. FINDING 4. Prior to November 5, 1985, claimant was in good health. FINDING 5. Claimant had surgeries on his right and left shoulders. FINDING 6. Claimant is 28-years-old and he has a GED. FINDING 7. Claimant was released to return to work with restrictions after his left shoulder surgery. FINDING 8. In May of 1988, claimant was advised by defendant employer there were no positions available in the plant. FINDING 9. Claimant is currently employed in sales. CONCLUSION A. Claimant has met his burden of proving he has a 15 percent permanent partial disability as a result of his injury on November 5, 1985. CONCLUSION B. Claimant has met his burden of proving he has a 20 percent permanent partial disability as a result of his injury on August 28, 1986. CONCLUSION C. Claimant has met his burden of proving he has a three percent scheduled member disability to the hand as a result of the injury on July 13, 1987. FINDING 10. With respect to file number 817170, defendants did not tender proper notice regarding termination of benefits. FINDING 11. With respect to file number 857754, defendants did not tender proper notice regarding termination of benefits. CONCLUSION D. With respect to file number 817170, claimant has met his burden of proving he is entitled to additional benefits under section 86.13. CONCLUSION E. With respect to file number 857754, claimant has met his burden of proving he is entitled to additional benefits under section 86.13. ORDER THEREFORE, with respect to file number 817170, defendants are to pay unto claimant seventy-five (75) weeks of permanent partial disability benefits at the stipulated rate of two hundred three and 09/100 dollars ($203.09) per week as a result of the injury on November 5, 1985. Defendants, with respect to file number 832186, are to pay unto claimant one hundred (100) weeks of permanent partial disability benefits at the stipulated rate of two hundred seven and 27/100 dollars ($207.27) per week as a result of the injury on August 28, 1986. Defendants, with respect to file number 857754, are to pay unto claimant five point seven (5.7) weeks of permanent partial disability benefits at the stipulated rate of two hundred seven and 97/100 dollars ($207.97) per week as a result of the injury on July 13, 1987. Defendants, with respect to file number 817170, are to also pay additional benefits unto claimant for two (2) weeks of section 86.13 benefits at the stipulated rate of two hundred three and 09/100 dollars ($203.09) per week. Payments that have accrued shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. Defendants are to be given credit for all benefits previously paid to this claimant for any of the three consolidated files. Costs of this action, including costs set in claimant's exhibit 21 are assessed against the defendants pursuant to Division of Industrial Services Rule 343-4.33. Defendants shall file a claim activity report upon payment of this award. Signed and filed this 28th day of September, 1989. MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert S. Kinsey, III Attorney at Law 214 N. Adams P. O. Box 679 Mason City, Iowa 50401 Mr. Marvin E. Duckworth Attorney at Law Terrace Center, STE 111 2700 Grand Ave. Des Moines, Iowa 50312 5-1803; 5-1803.1 Filed September 28, 1989 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER RICHARD A. PAYER, Claimant, File Nos. 817170, vs. 832186 & 857754 ARMOUR FOOD CO., A R B I T R A T I 0 N Employer, D E C I S I 0 N and THE HARTFORD INSURANCE CO., Insurance Carrier, Defendants. 5-1803 Claimant was awarded 35 percent industrial disability because of two injuries to his right and left shoulders. 5-1803.1 Claimant awarded three percent scheduled member disability to the hand because of a work injury. before the iowa industrial commissioner ____________________________________________________________ : TIMOTHY D. STOEVER, : : Claimant, : : vs. : : File No. 817316 LEE HOLT MOTORS, : : A P P E A L Employer, : : D E C I S I O N and : : UNIVERSAL UNDERWRITING GROUP, : : Insurance Carrier, : Defendants. : ___________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed May 24, 1991 is affirmed and is adopted as the final agency action in this case. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of October, 1991. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Dick H. Montgomery Attorney at Law P.O. Box 7038 Spencer, Iowa 51301 Ms. Judith Ann Higgs Attorney at Law P.O. Box 3086 Sioux City, Iowa 51102 9998 Filed October 21, 1991 Byron K. Orton EAN before the iowa industrial commissioner ____________________________________________________________ : TIMOTHY D. STOEVER, : : Claimant, : : vs. : : File No. 817316 LEE HOLT MOTORS, : : A P P E A L Employer, : : D E C I S I O N and : : UNIVERSAL UNDERWRITING GROUP, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 9998 Summary affirmance of deputy's decision filed May 24, 1991. Page 1 before the iowa industrial commissioner ____________________________________________________________ : TIMOTHY D. STOEVER, : : Claimant, : : vs. : : File No. 817316 LEE HOLT MOTORS, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : UNIVERSAL UNDERWRITING GROUP, : : Insurance Carrier, : Defendants. : ___________________________________________________________ This is a proceeding in arbitration brought by Timothy D. Stoever (claimant) commenced with the filing of a petition on March 15, 1990 against Lee Holt Motors (Lee Holt), employer and Universal Underwriters Group (Universal) (collectively defendants), Lee Holt's insurer for worker's compensation benefits, as a result of an alleged injury to claimant's knee occurring on February 18, 1986. On January 16, 1991, the matter came on for hearing in Storm Lake, Iowa. The parties appeared as follows: the claimant in person and by his counsel, Dick Montgomery of Spencer, Iowa and defendants by their counsel, Judith Ann Higgs of Sioux City, Iowa. The record in this proceeding consisted of the following: 1. The live testimony of the claimant, Kim Stoever and John Holt 2. Joint exhibits 1-3. At the close of all evidence, the case was deemed fully submitted. stipulations The parties stipulated to the following matters at the time of the hearing: An employer-employee relationship existed between claimant and employer at the time of the alleged injury. The claimant sustained an injury on February 18, 1986, which arose out of and in the course of employment. The time off work is stipulated to be from December 26, Page 2 1989 until April 3, 1990. Claimant worked half time from April 3, 1990 to April 17, 1990. The type of permanent disability, if the injury is found to be a cause of permanent disability, is a scheduled member disability to the right lower extremity. The commencement date for permanent partial disability, is April 3, 1990. The rate of compensation, in the event of an award, is $236.42 per week. Claimant is married and has one child. He is entitled to two exemptions.(1) The fees charged for medical services are fair and reasonable and the expenses were incurred for reasonable and necessary medical treatment. The causal connection of the expenses to treatment for a medical condition upon which claimant is now basing his claim is admitted but that the causal connection of this condition to a work injury remains an issue to be decided in these proceedings. The amount of costs to be taxed have been stipulated. Issues The issues for resolution are as follows: 1. Whether a causal relationship exists between claimant's claimed injuries and the claimed disability and the nature and extent of any entitlement to benefits, if any. 2. Whether claimant is entitled to medical benefits, including a determination of causal connection to the work injury and the causal connection of this condition to a work injury. FINDINGS OF FACT After considering all of the evidence and the arguments of counsel, the undersigned makes the following findings of fact and conclusions of law. 1. At the time of the hearing, claimant was 31 years old. He is a mechanic employed by Lee Holt. Lee Holt is in the business of selling and servicing automobiles in Spencer. Claimant is a high school graduate and successfully completed a course of training at the Dunwoody Institute of Auto Mechanics located in Minneapolis. Claimant completed this course of study in 1979. Afterwards, claimant returned to the Spencer area and worked as an auto mechanic. 2. In 1982, claimant began to work for Lee Holt as an auto mechanic. Claimant's job required him to work on automobiles brought to the dealership for service. In order to accomplish this task, claimant was required to lift, bend, squat, kneel and crawl in and around automobiles. (1). Even though parties stipulated to three exemptions, the evidence shows that at the time of the injury claimant was entitled to two exemptions since his son had not been born yet. His son was born in 1989. The rate agreed to by the parties is a rate for a married person with two exemptions. See Iowa Industrial Commissioner, Workers' Compensation Benefit Schedule, at 37 (July 1, 1985) Page 3 3. Prior to February 18, 1986, claimant had no problems with his right knee. On February 18, 1986, claimant was going out to the dumpster at work and slipped on some ice. His right knee twisted, he felt a pop, and he was unable to straighten his knee. Thereafter, claimant saw William Follows, M.D.,an orthopedic surgeon in Spencer. 4. Dr. Follows examined claimant's knee and noted severe effusion. Claimant had an arthroscope to rule out internal derangement of the right knee, loose bodies and a fresh fracture. (Exhibit 1, page 34). During the course of the arthroscope, Dr. Follows first drained fluid from claimant's knee. Then, Dr. Follows tried to remove a loose fragment from claimant's knee but it was lost as it was brought through the soft tissues. This was an old fragment. There were also a couple of small cracks found in the patella just through the articular cartilage and required minimal debridement. Dr. Follows also found extensive osteocartilaginous damage(2) to the lateral portion of the lateral femoral condyle, extending around the lateral side of the condyle. He found that is was not affecting the weight bearing surface very much however. He also removed a large cartlaginous fragment. (Ex. 1, p. 33). 5. Claimant was seen by Dr. Follows until April of 1986 when he was released from his care. Dr. Follows wrote to Universal on April 29, 1986 and advised that as a result of the first procedure, claimant had no functional disability. He went on to note that claimant had a defect on the lateral femoral condyle and this could develop symptoms related to that (Ex. 1, p. 151). Toward the end of 1987, claimant indicated to his family physician, Jeff Peterson, D.O., that he was having continuing problems with right knee. He was subsequently referred to Alan Pechacek, M.D., for evaluation and treatment. 6. Dr. Pechacek saw claimant on January 20, 1987. In the history given, claimant told Dr. Pechacek that after the first arthroscope, his knee did not seem to improve. It was weak and felt as though it would buckle going up and down stairs or occasionally on standing his right knee would hyperextend as though it was going to buckle. He had no recurrent swelling, locking or catching. He was not aware of any rubbing, crackling, snapping or popping in the right knee. After the examination, Dr. Pechacek found that claimant had a fragment in the soft tissue of anteromedial joint line. He also had patello-femoral maltracking with possibly some articular cartilage damage on the lateral side of the femur. Dr. Pechacek recommended arthroscopic surgery to remove the fragment and re-evaluate claimant's knee because he felt that claimant may have suffered some intra-articular damage as a result of his injury. However, he felt most of the symptoms were attributable to the retained fragment in claimant's knee. 7. On January 30, 1987, claimant underwent a second arthroscopic surgery on his right knee. This time Dr. Pechacek was able to remove the subcutaneous fragment. After that procedure was completed, he examined the joint. He found that the patellar surface was quite good. There (2). Dr. Wirtz defined this damage as wearing out or degenerative arthritic condition. This condition was located on the thigh bone and to the lateral side of the thigh bone in the patellar area. (Ex. 3, pp. 9, ll. 14-20). Dr. Wilkerson indicated that this condition is a classic indicator for patellar dislocation. Page 4 was a small area of chondromalacia in the central raphe. The medial margin of the patella was satisfactory. The remainder of the patella was normal. Dr. Pechacek found the area of damage Dr. Follows had seen and noted that there was some very superficial cratering, otherwise the tissues were smooth and the articular margin appeared satisfactory. The remainder of the femur was normal. The medial compartment was examined and the articular surface of the femur and tibia were normal. The meniscus was anatomically intact. Inspection of the lateral compartment showed the articular surfaces to be normal. There was some scar tissue at the anterior central attachment of the meniscus. Dr. Pechacek thought that this may have been torn loose and healed back. On extension other scar tissue was released down the lateral wall of the suprapatellar pouch. 8. On June 1, 1987, Dr. Pechacek communicated with Universal and advised that he was assigning a five percent functional impairment rating to claimant's knee. His impairment was based primarily on claimant's range of motion in the joint. There were no other specific intra-articular disorders for which any additional impairment could be given. Claimant was released from Dr. Pechacek's care to return as needed. 9. Sometime after claimant was released by Dr. Pechacek, in 1987, he had a complete physical with his family physician, Dr. Peterson. His only complaint at that time was tenderness in his back and over the kidney area. He did not complain that his knee was giving out or that he was having falling episodes because his knee was giving way. The only other medical record between 1987 and December of 1989 is an entry regarding claimant's allergies in August of 1989. (Ex. 1, P. 45). There is no other medical record describing claimant's complaints regarding his knee until December of 1989. 10. On December 26, 1989, claimant was walking in his garage and his knee hyperextended and he collapsed to the floor. Claimant's knee popped when his knee hyperextended. He did not trip or slip. Claimant had swelling and pain immediately after the incident. In the history given to Dr. Peterson at the Spencer Municipal Hospital, claimant indicated that he had had discomfort with the joint for the last three to four years. He reported discomfort over the medial joint space and spontaneous hyperextension of the right knee at least two to three times per month. Claimant's knee was painful but there was no swelling with these episodes. The last time claimant had experienced such swelling, effusion, and discomfort was three to four years ago. Claimant had not seen a doctor for the discomfort or the spontaneous hyperextensions because his son was sick in 1989, he did not like doctors and had simply decided to live with the condition. Claimant's knee was x-rayed and there was no evidence of fracture or dislocation. 11. Claimant was next seen by Rick Wilkerson, D.O., an orthopaedic surgeon on December 27, 1989. Claimant gave a Page 5 history of his knee injury (Ex. 1, p. 51). This time he indicated his knee had been giving way about twice to three times per month. After an episode sometimes claimant's knee would swell. After the initial examination and before surgery, Dr. Wilkerson concluded that claimant had loose bodies in his knee resulting from recurrent dislocation of the patella caused by the injury in 1986 (Ex. 1, pp. 52, 53, 165). Surgery was the recommended treatment modality. At the time of claimant's surgery, Dr. Peterson did a complete physical examination of claimant and found that claimant was suffering from recurrent patellar subluxation of the right knee with ligamentous and tendinous injury. On January 2, 1990, Dr. Wilkerson did a diagnostic arthroscopy for the removal of loose bodies from the lateral femoral condyle and patella, an open lateral release and VMO plasty, with an oblique tibial tuberosity osteotomy. When the arthroscopy was performed, Dr. Wilkerson found a significant fracture off the lateral edge of the lateral femoral condyle containing articular cartilage. The rest of the procedure was performed and claimant's right knee repair was completed. 12. Thereafter, claimant was seen by Dr. Wilkerson for follow-up on the knee repair. Even after a satisfactory recovery period, claimant's knee still had limited range of motion. On March 28, 1990, claimant had a fourth arthroscopy to release scar tissue in order to increase flexion in the claimant's right knee (Ex. 1, pp. 64-65). During the history taken before the fourth arthroscopy, claimant indicated that he had one child, one year old, in good health (Ex. 1, p. 144). Claimant continued to see Dr. Wilkerson until May 30, 1990. At that point he was released and advised to return on an as needed basis. 13. Dr. Pechacek had contact again with Universal on February 26, 1990 in response to its inquiry regarding claimant's knee. (Ex. 1, p. 29) Universal sent Dr. Pechacek the operative report prepared by Dr. Wilkerson (Ex. 1 pp. 27-28). Dr. Pechacek felt claimant had certain anatomic findings in his right knee that would possibly lead to problems such as chronic recurrent lateral patellar instability with either subluxation or possibly dislocations. The history given in 1987 did not lead Dr. Pechacek to the conclusion that claimant had suffered a patellar dislocation. He suffered an intra-articular fracture involving the patella. Claimant did not have any other history compatible with previous patellar dislocations. Dr. Pechacek indicated that the episodes of recurrent patellar dislocation occurred after he last saw claimant in May of 1989. Dr. Pechacek also concluded that with the description of the hemarthrosis as well as the fragments being found in the joint, these findings were fresh or acute. Dr. Pechacek concluded that claimant had sustained a recent or an acute patellar dislocation resulting in the hemarthrosis and intra-articular fractures. 14. On October, 2, 1990, Dr. Wilkerson was asked to Page 6 evaluate a report obtained by defendants from Peter Wirtz, M.D. Dr. Wilkerson felt that claimant did not have a congenital subluxation of his knee since he had no prior problems with his right knee until the incident in 1986. Dr. Wilkerson concluded that the injury in 1986 caused a patellar dislocation with subsequent osteochondral fracture. Then he went on to state: He (claimant) did quite well until 1989 when he had a second injury at work causing another patellar dislocation and resulting in the above described operation. THis [sic] is obviously a WC case and I have explained this to Mr. Montgomery. He will plan on contacting us to set up a deposition in the future. 15. On August 22, 1990 Dr. Wirtz, an orthopedic surgeon gave his assessment of claimant's knee condition. Dr. Wirtz reviewed the following information: a. Dr. Follows' report of February 18, 1986. b. Dr. Follows' report of the arthroscopy performed on February 19,1986. c. Dr. Pechacek's report dated January 20, 1987 including a history of the injury and summary of the procedure proposed by Dr. Pechacek d. Dr. Pechacek's operation report dated January 30, 1987. e. Dr. Wilkerson's report of December 27, 1989 and Dr. Peterson's report of arthrocentesis of traumatic bloody fluid from right knee. f. Dr. Wilkerson's surgical report of January 2, 1990 indicating the arthroscopic examination revealing hemarthrosis and employing VMO plasty, lateral release and tibial tubercle osteotomy. g. Dr. Wilkerson's report of the manipulation and release of adhesions dated March 28, 1990. Based on this information and a review of the x-rays taken of claimant's knee, Dr. Wirtz concluded that claimant had a congenital subluxation of his patella that may or may not have had dislocations. The subluxation is evidenced by the finding of Dr. Follows during the initial arthroscopy of degeneration in the lateral femoral condyle and the patellar area. Dr. Wirtz also concluded that with each episode of subluxation or dislocation being temporary in nature, the ultimate result would be arthritis in the joint. The arthritic condition is the natural progression of the subluxation. Finally, Dr. Wirtz found that claimant's injury of 1986 is at such a distance from the surgery in 1990 that the injury did not cause the falling incident in 1989. Rather, claimant's 1989 injury was caused by the natural degeneration of the articular surface on claimant's right knee. Dr. Wirtz did not personally examine claimant. Page 7 Dr. Wirtz did agree however, that the arthritis was aggravated by the injury on February 18, 1986. 16. On December 18, 1990, Dr. Wilkerson performed an examination to assess claimant's functional impairment. Dr. Wilkerson assigned a functional impairment rating of 19 percent to claimant's knee with four percent attributable to a 10 degree loss of flexion and 15 percent for patellar femoral arthritis. Dr. Wilkerson relied on the AMA Guides to the Evaluation of Permanent Impairment, edition unknown, for his rating. Dr. Wilkerson indicated that the 15 percent is a very subjective rating. He could not apportion the arthritis between the injury in 1986 and the injury in 1989. 17. Claimant is seeking payment of the following medical bills: Diagnostic Radiologic Imaging $ 86.00 Medical Arts X-Ray 66.00 Spencer Family Practice 423.25 NW Ia. Anesthesia Associates 472.00 Spencer Municipal Hospital 5,645.48 Spencer Therapy and Rehab 1,860.00 Dr. Wilkerson 5,318.00 Moore Medical Service 1,300.00 Miscellaneous Medical Expenses 159.75 TOTAL: $15,330.48 conclusions of law 1. Whether a causal relationship exists between claimant's claimed injuries and the claimed disability and the nature and extent of any entitlement to benefits, if any. Claimant has urged that the injury of February 18, 1986 was the cause of claimant's subsequent fall and surgical treatment in 1989 on the theory that it is a compensable consequence flowing directly and naturally from the injury claimant suffered when he slipped and twisted his knee. Defendants contend that the injury of 1989, the precipitating factor for further surgery and other medical services is not only to remote from the original injury to be causally connected but the 1986 injury is not the cause of claimant's injury of 1989. Rather a natural condition and degeneration of the joint was the cause of the 1989 injury. The claimant has the burden of proving by a preponderance of the evidence that the injury of February 18, 1986, is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 133 N.W.2d 867, 868 (Iowa 1965); Lindahl v. L. O. Boggs, 18 N.W.2d 607,613-14 (Iowa 1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa 1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 101 N.W.2d 167,171 (Iowa 1960). Page 8 Expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 73 N.W.2d at 738. The opinion of the experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974). Moreover, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag, 220 N.W.2d at 907. Finally, 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 material circumstances. Bodish, 133 N.W.2d at 870; Musselman v, Central Telephone Co., 154 N.W.2d 128, 133 (Iowa 1967). The Supreme Court has also observed that greater deference is ordinarily accorded expert testimony where the opinion necessarily rests on medical expertise. Sondag, 220 N.W.2d at 907. Where there are competing medical opinions, the fact finder is not necessarily compelled to give more weight to the treating physician's testimony and less weight to the testimony of an evaluating physician who examines claimant only in anticipation of litigation. Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985). Factors such as education, compensation, experience, the date of the examination and certification may go to the value of an individual physician's testimony as a question of fact, not law. A physician's experience may accord his or her testimony greater weight. Reiland v. Palco, Inc., 32nd Biennial Report of the Iowa Industrial Commissioner 56 (1975). Finally, where a work injury has been established, the employer is liable for all consequences that naturally and proximately flow from the original accident. Oldham v. Scofield & Welch, 222 Iowa 764, 266 N.W. 480 (1936). That is to say, naturally occurring sequelae of an original injury are compensable. This is true if the injury aggravated a dormant preexisting condition. To be a preexisting condition, an actual health impairment must exist, even if it is dormant. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 76 N.W.2d 756, 760-61 (Iowa 1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 115 N.W.2d 812, 815 (Iowa 1962). The facts in this case support a conclusion that the injury suffered by claimant on December 26, 1989 was not a direct and natural consequence of the injury suffered on February 18, 1986. The greater weight of the evidence shows that Dr. Pechacek and Dr. Wirtz concluded that the claimant had certain anatomic anomalies that would lead to problems such as chronic recurrent lateral patellar instability with either subluxation or possibly dislocations and arthritis. Page 9 Dr. Wilkerson is the only doctor who concluded that claimant had recurrent dislocations due to the work injury rather than claimant's bone and muscle structure and a natural degeneration of the knee joint. In weighing the evidence of the last treating physician and a prior treating physician and an evaluating physician, the undersigned considered the experience, education, compensation, and the dates of the examination by each physician. Dr. Wilkerson concluded at the end of his first examination of claimant on December 27, 1989 that claimant had suffered recurrent dislocations since the first injury suffered on February 18, 1986. Moreover, Dr. Wilkerson was under the impression that claimant's 1989 injury had occurred at work. (Ex. 1, P. 165). This impression was never clarified during Dr. Wilkerson's deposition. Dr. Wilkerson made his diagnosis of recurrent patellar dislocation without the benefit of an arthroscopic examination. Dr. Wilkerson later confirmed this diagnosis when he operated. While Dr. Wirtz had the additional benefit of Dr. Wilkerson's post operative report to consider when he gave his opinion, both doctors were looking at essentially the same information when they made their initial diagnosis. That is both doctors were looking at the history of the injury as described by Dr. Follows and Dr. Pechacek and x-ray films of claimant's knee. These doctors reached opposite conclusions regarding the cause of claimant's knee problems. The only other doctor who looked at claimant's knee arthroscopically and gave an opinion in this case is Dr. Pechacek. Dr. Pechacek examined claimant's knee in 1987, noted the area of osteocartilaginous damage, noted the history of the old bone fragment, noted cratering on the patella and other anatomical anomalies that Dr. Wirtz found. Dr. Pechacek concluded in February of 1990 that there was no patellar dislocation at the time of claimant's 1986 injury. His opinion thus tips the scale against the claimant. Additionally, there is insufficient evidence in the record that shows that claimant had a continuing problem with his knee. Claimant testified that he had a dislocation 2 to 3 times per month from the time of his release from Dr. Pechacek until the time of his 1989 injury. Yet, claimant did not seek medical attention for this condition for nearly three years to correct the problem. This, in light of the fact that he had a new son he was afraid to hold because his knee might give way and he would fall with the baby in his arms. Finally, one of the reasons claimant did not seek medical attention for his knee between 1987 and 1989 was because his son was having health problems. However claimant's son was not born until 1989 and claimant gave a history in March of 1990 that his son was in good health. Given these factors in addition to the conclusions by Dr. Wirtz and Dr. Pechacek regarding anatomical anomalies, the claimant has failed to sustain his burden of proof regarding the causal nexus between the injury in 1986 and the injury in 1989 and will take nothing from this proceeding. Page 10 2. Whether claimant is entitled to medical benefits, including a determination of causal connection to the work injury and the causal connection of this condition to a work injury. The claimant has the burden of demonstrating that the medical services obtained were related to the injury in order to have the expenses reimbursed or paid. Auxier v. Woodward State Hospital, 266 N.W.2d 139, 144 (Iowa 1978). In this instance, there is insufficient evidence in the record to support a finding of causal nexus between claimant's injury in 1989 and the work injury in 1986. Consequently, claimant will not be awarded medical benefits for the medical services he used for the 1989 injury. Order THEREFORE, it is ordered: 1. Timothy Stoever, claimant shall take nothing further from these proceedings. 2. The costs of this action shall be assessed to Lee Holt Motors and Universal Underwriters Group pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of May, 1991. ________________________________ ELIZABETH A. NELSON DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Dick H Montgomery Attorney at Law 316 11th Street SW Plaza PO Box 7038 Spencer Iowa 51301 Ms Judith Ann Higgs Attorney at Law 701 Pierce St Ste 200 PO Box 3086 Sioux City Iowa 51102 5-1402.30 - 5-2600 File May 24, 1991 ELIZABETH A. NELSON before the iowa industrial commissioner ____________________________________________________________ : TIMOTHY D. STOEVER, : : Claimant, : : vs. : : File No. 817316 LEE HOLT MOTORS, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : UNIVERSAL UNDERWRITING GROUP, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1402.30 Claimant, suffered a knee injury in 1986 at work. Claimant had two arthroscopic surgeries in 1986 and 1987 to repair the damage to his knee. He was assigned a 5 percent impairment rating in 1987 and released from medical care. Claimant did not seek medical attention for his knee until December 1989 when his knee hyperextended and he fell. There was insufficient evidence in the record to establish a causal connection between the knee injury in 1986 and the knee injury in 1989. Claimant took nothing from the proceeding. 5-2600 The evidence of a prior treating physician and an evaluating physician was given more weight that the evidence given by the last treating physician. The prior treating physician and the evaluating physician independently agreed that the claimant had certain anatomical anomalies that would lead to recurrent patellar dislocations. These doctors also agreed that claimant did not suffer a patellar dislocation at the time of his 1986 injury. The last treating physician indicated that claimant had suffered a patellar dislocation at the time of the first injury. Additionally, the last treating physician was under the impression that the second injury occurred at work and this impression was never clarified during this doctor's deposition. BEFORE THE IOWA INDUSTRIAL COMMISSIONER TIMOTHY J. KELLEY, Claimant, File No. 817722 vs. A R B I T R A T I O N SUKUP MANUFACTURING COMPANY, D E C I S I O N Employer, F I L E D and OCT 20 1989 U.S.F. & G., INDUSTRIAL SERVICES Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Timothy J. Kelley against his former employer, Sukup Manufacturing Company, and its insurance carrier, U S F & G. The case was heard and fully submitted at Waterloo, Iowa on February 14, 1989. The record in.this proceeding consists of testimony from Steven Lambert, Nils Robert Varney, Hilda J. Hanney, Robert N. Varney, John Swanson, James Meehan, and Patty Kelley. The record also contains claimant's exhibits 1 through 69, 72, 74, 75, and 80-through 93. Exhibit 94 is in the record as an offer of proof only. The record also contains defendants' exhibits A through I, K through N, and R. ISSUES The issues presented by the parties for determination are whether claimant sustained an injury on or about March 2, 1986 which arose out of and in the course of employment with Sukup Manufacturing Company and if so, a determination of claimant's entitlement to compensation for healing period, permanent disability and medical expense entitlement under Iowa Code section 85.27. In the event of an award, the employer seeks credit for sick pay or disability income payments. 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. The record in this case is extensive and no attempt is made in this decision to refer to each article of evidence or even to each source of the evidence that was received. The failure to make reference to any particular bit of evidence in this decision is not an indication that the evidence was not considered when deciding the case. On March 2, 1986, just before midnight, Timothy J. Kelley was driving a Sukup Manufacturing truck eastbound on Interstate 80 near Iowa City. At several places in the medical records, the history is given that he had experienced a severe headache while driving that night. As Kelley approached the Iowa River bridge, the truck moved into the median of the interstate, struck the guardrail and then returned to the traveled portion of the roadway. The truck continued eastbound, crossing the bridge and both eastbound lanes of traffic and came to a stop on the south shoulder of the road approximately 100 feet beyond the east edge of the river bridge. Investigating officer Steven Lambert stated that he found the claimant in the truck, behind the wheel, attempting to drive the tractor out of the ditch and that the trailer was turned sharply and extended onto the traveled portion of the roadway as shown in exhibit 81. Lambert identified exhibit D as a photo of the area which does not show the damage. Lambert stated that the median was fairly wet and muddy and that there were tracks in the median which showed a gradual path of tire tracks leaving the interstate and running to the guardrail where a portion of it was ripped and twisted from the posts. Lambert stated that the truck had obviously been in an accident, but that the damage was very light and appeared to be on the driver's side. He felt that the truck could probably have been driven. He did not notice the guardrail posts to be displaced. Lambert stated that when interviewing claimant, claimant reported having had a headache earlier in the day, but made no other pain complaints and that there were no visible signs of injury. John Swanson, shipping foreman for Sukup Manufacturing, stated that following claimant's accident, he retrieved the truck. Swanson stated that exhibit C are photographs which were taken in late 1988 and that the light, grill and bumper shown on the truck are the same ones that were on it at the time of the accident. Swanson stated that when he picked up the truck, there was damage at the outside corner of the bumper and a crease about one foot in from the driver's side corner which had not been there prior to the accident. Swanson identified a dent in the side of the fuel tank as having not been there prior to the accident. Swanson stated that in the accident the chrome lug nut covers were stripped off the lug nuts and that the outside rear tires on the driver's side of the tractor were damaged and needed to be replaced. Swanson stated that the only repairs made before taking the truck back to the business office were to replace the tires and rims on the tractor and to repair damage done on the rear of the trailer. Swanson stated that the front bumper on the tractor is made of light-weight aluminum and that the wheels on the tractor were also aluminum and were permanently replaced. Exhibit E shows the repair costs for those repairs made at Coralville, Iowa to have been $291.33. Following those repairs, Swanson drove the truck back to the company offices at Sheffield, Iowa. Swanson stated that the truck had been carrying a light load, that the load had not shifted and that the load sustained only minor damage. Exhibit 85 shows the weight of the loaded tractor-trailer unit to have been 39,383 pounds at the time of the accident. Exhibits 82, 83 and 90 demonstrate the repairs made to the guardrail and bridge following the accident. It demonstrates that one 13 1/2 foot section of guardrail, six posts and a bridge endrail were replaced. Robert N. Varney, a physics professor, testified concerning the forces and impact which would have been involved when the truck struck the guardrail. Varney assumed that the truck was traveling 65 miles per hour, hit the rail at a 30 degree angle and that the rail moved only one foot. Professor Varney stated that he computed the force of the impact which claimant, as the driver of the truck, would have experienced to be 35 times the force of gravity. Professor Varney stated that Navy pilots black out at a force of 4 times the force of gravity and that crash tests have been done where individuals have been able to survive up to 9 times the force of gravity. Professor Varney agreed that the truck was moving quickly after it struck the rail and might not have lost much velocity or decelerated much in striking the rail. Professor Varney also stated that his G-force computations assumed the vehicle came to a complete stop at the guardrail, yet his computations also showed the vehicle to have retained 87 percent of its velocity after striking the guardrail, which indicates that it would have lost only approximately 10 miles per hour in velocity. He stated that if the angle of impact was less than 30 degrees, the amount of deceleration would also be reduced. Varney testified that he has not previously performed consulting work with motor vehicle accident reconstruction, although he did testify in a one-car collision case dealing with determining who was driving the vehicle. James Meehan, a licensed professional engineer, testified regarding reconstruction of the accident. Meehan testified that he has been involved in over 100 litigated cases in the last 10 years and currently has 12 reconstruction cases in his office. Meehan examined photographs of the truck, the investigating officer's report, considered statements from the claimant and several other matters when evaluating the case. Meehan assumed that the initial velocity of the truck had been 55 miles per hour. Meehan testified that from his evaluation of the known factors, the deceleration that occurred when the truck struck the guardrail was in the range of normal braking and that the forces were not sufficient to cause a head injury under recognized studies and standards. Following the accident, claimant was observed to be acting abnormally and was taken to Mercy Hospital at Iowa City, Iowa where he was admitted. The primary treating physician was neurologist R. F. Neiman, M.D. A CT scan indicated hemorrhage in the basal ganglia region of claimant's brain. When a repeat CT scan showed a 40 percent increase in the size of the hemorrhage and claimant began developing bradycardia, he was transferred to the University of Iowa Hospitals and Clinics under the care of John Van Gilder; M.D., head of the neurosurgery department (exhibit 7). The claimant in this case has been extensively tested and evaluated by a number of physicians, psychiatrists and psychologists (exhibits 17, 31, 32, 33, 36, and 62). The evaluators have generally concluded that claimant is disabled due to brain injury. The diagnoses include mixed organic brain syndrome with features of organic affective syndrome and organic personality syndrome (exhibit 31). Dr. Van Gilder stated that claimant had a hemorrhage in the right frontal lobe of his brain which had produced sufficient pressure to cause midline shift of brain tissue. Claimant underwent a right frontal craniotomy and evacuation of an intracerebral hematoma (exhibit 39; exhibit F, pages 17-24). Dr. Van Gilder explained that claimant suffered brain damage from two sources, that blood from the hematoma destroyed brain tissue and that the pressure caused by the hematoma also destroyed brain tissue. He explained that the reactive changes or bruising found by the pathology department indicate damage from the blood clot itself and are not an indication of the cause of the hematoma (exhibit F, pages 25-30). Dr. Van Gilder expressed the opinion that the hematoma resulted from a small arterial venous anomaly which destroyed itself at the time of hemorrhage and resulted in the blood clot. He opined that it occurred prior to the time that the truck accident occurred. Dr. Van Gilder stated that all of the brain damage and symptoms which claimant has exhibited are consistent with the damage done by the bleed, clot and surgery and that they are not due to external trauma. He stated that the damage was spontaneous (exhibit F, pages 34-38, 41, 42, 50, 51, 73-75 and 90-95). Psychologist Douglas A. Stevens, Ph.D., evaluated claimant. Stevens agreed that claimant has organic personality disorder that is consistent with the basal ganglia bleed and surgery. He stated that the symptoms and deficits which claimant exhibited are consistent with the cerebral vascular accident and are not an indication of external trauma. He stated that the deficits are more consistent with damage from a stroke than from trauma (exhibit K, pages 18, 19, 20, 34, 35 and 49). Stevens agreed that anosmia is a symptom of orbital frontal damage, but that it can exist without the presence of other symptoms where there has been external trauma. Stevens explained that claimant's anosmia did not necessarily occur at the time of the truck accident (exhibit K, pages 130 and 131). Nils Robert Varney, a clinical neuropsychologist, explained that claimant has three problems, the basal ganglia stroke, orbital frontal damage, and seizure disorder. Varney stated that the orbital frontal damage is almost always a result of mechanical trauma such as whiplash or hitting the windshield of a vehicle. Varney stated that the existence of anosmia establishes that claimant's brain damage is not limited to that which was caused by the basal ganglia bleed. Varney testified that the basal ganglia bleed did not cause claimant to be permanently and totally disabled, but that the permanent total disability resulted from the frontal lobe syndrome which occurred due to trauma sustained in the truck accident. Varney agreed that the damage from the hematoma could have caused anosmia, however (exhibit I, pages 111-113). Claimant's deposition indicates that he was not aware he had anosmia until it was discovered by Dr. Varney (exhibit B, pages 41-44). APPLICABLE LAW AND ANALYSIS Claimant has the burden of proving by a preponderance of the evidence that he received an injury on or about March 2, 1986 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The "arising out of" requirement is satisfied by showing a causal relationship between the employment and the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The claimant has the burden of proving by a preponderance of the evidence that the injury on or about March 2, 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). The greater weight of the evidence is that the intracranial bleed or stroke was a spontaneous event due to a congenital defect in a small blood vessel in claimant's brain. The excitement and increase in blood pressure associated with an event such as the accident could cause the rupture of a previously weakened blood vessel, although in this case the evidence of a headache prior to the time of the accident is relied upon by Dr. Van Gilder and others in determining that the intracranial bleed had occurred prior to the time of the accident (exhibit F, pages 13, 32-33, 99; exhibit I, page 115; exhibit 6; exhibit 7; exhibit 20; exhibit 60). The record contains no opinion evidence to the contrary. Since the intracranial bleed or stroke was a spontaneous event, any damage which resulted from it did not arise out of claimant's employment and the employer is not responsible for it. The injury arose out of a risk personal to the claimant. It is sometimes called an idiopathic condition. In order for any compensation to be awarded for the results of an idiopathic condition, it is necessary that the employment place the employee in a condition which aggravates the effects of the idiopathic injury. O'Rourke v. Northstar Chemicals, Inc., 281 N.W.2d 192, 194 (Minn. 1979); 1 Larson Workmen's Compensation Law, sections 12.00 et seq. In this case, claimant's employment placed him behind the wheel of a tractor-trailer truck. That vehicle left the traveled portion of the roadway and was involved in a collision. If the claimant sustained additional injury in that collision, then the employer is liable. The primary issue in this case is whether or not the damage which currently afflicts Timothy J. Kelley is a result of the consequences of the stroke or whether trauma from the accident has played some material part in bringing about his current state of disability. Claimant has been awarded Social Security disability compensation and there appears to be little bona fide dispute regarding the claim that he is totally disabled. The extent of injury which results from trauma is often related to the severity of the trauma. In this case there is a major discrepancy between the assessment of the forces which would have impacted upon claimant when the truck struck the guardrail. Of the two experts who testified, namely Robert N. Varney and James Meehan, Meehan certainly has greater experience in the field of vehicular accident reconstruction. Meehan's assessment of the case is also much more consistent with the extent of the damage which the truck sustained in the accident. It is noted that most of the damage is found on the driver's side of the truck. Very little damage is apparent on the front of the truck. The location of the damage indicates that the truck scraped against the guardrail rather than impacting upon it directly with the front of the truck. The limited damage to the front of the truck is strong evidence that there was no abrupt deceleration. The further fact that the truck returned to the traveled surface of the road and crossed the bridge before coming to a stop is further evidence that little deceleration occurred from striking the guardrail. When all the evidence in the case is considered, it is determined that little deceleration occurred when the truck scraped against the guardrail and that claimant's head and body were not subjected to forces substantially greater than those experienced during normal braking. The assessment of the case as described by James Meehan is accepted as being correct. If the truck had struck with the forces described by Robert N. Varney, the undersigned would have expected a tremendous amount of damage to the truck, more damage than was noted on the front of the truck, and much more extensive damage to the guardrail. Of all the physicians, psychiatrists and psychologists who have been involved in this case, the undersigned notes that Dr. Van Gilder is an experienced neurosurgeon and is the head of the neurosurgery department at the University of Iowa Hospitals and Clinics. The undersigned considers those credentials to be superior to the credentials of any of the other physicians or psychologists who have presented evidence in this case. It is important to note that the existence of anosmia in the claimant cannot be shown to have had its origin at the time of the truck accident. Since the claimant was not aware of the anosmia until it was found by neuropsychologist Varney, it is as likely that it existed prior to the time of the truck accident as it is that it had its origin with the truck accident. The record of this case clearly shows that claimant had experienced head traumas prior to the time of the truck accident. The assessment of claimant's condition and the causes for that condition as explained by Dr. Van Gilder is accepted as correct. It is therefore determined that Timothy J. Kelley has failed to prove, by a preponderance of the evidence, that he sustained any injury of any type whatsoever as a result of the truck accident in which he was involved on or about March 2, 1986. Even if the burden of proof in this case were considered in such a manner as to place the burden upon the employer to prove that the accident did not cause any injury to claimant, the undersigned considers the evidence sufficient to conclude that the employer has in fact carried that burden of proving that no significant injury resulted from the truck accident. Since claimant has failed to prove, by a preponderance of the evidence, that he sustained injury which arose out of employment and that the injury caused permanent disability, the burden of proof for apportioning disability does not shift to the employer. Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984). Even if the burden of proof in this case were to be held to have shifted to the employer as a result of the limited trauma that occurred when the truck left the roadway and scraped the guardrail, the evidence is sufficiently strong that the undersigned would still find that no injury or disability resulted from the truck accident and that all of claimant's disability is a direct result of the stroke. FINDINGS OF FACT 1. Timothy J. Kelley experienced a severe headache while driving a truck for his employer, Sukup Manufacturing Company, on or about March 2, 1986. 2. The headache was a symptom of an intracranial bleed in the basal ganglia region of his brain. 3. While driving, with the ongoing bleed apparently being considered to merely be a headache by the claimant, the truck moved into the median of Interstate 80 and scraped against a guardrail located at the Iowa River bridge near the Coralville interchange. 4. The reconstruction of the accident as explained by James Meehan is correct and Kelley was not subjected to any forces of deceleration in the accident which were substantially greater than the forces experienced during normal braking. 5. The assessment of this case as made by Dr. Van Gilder is accepted as correct with regard to the cause of the symptoms which claimant has exhibited. It is determined that all of claimant's residual symptoms are consistent with the type of damage which resulted from the hematoma and corrective surgery. 6. The anosmia which has been found in claimant's right nostril has not been shown to have had its origin with the truck accident and could possibly have either preexisted or have resulted from the damage caused by the hematoma. 7. Claimant has failed to introduce evidence which shows it to be probable that the results of the intracranial bleed were affected by the fact that claimant was driving or by the accident itself. In fact, medical treatment may have been further delayed if the accident had not occurred and brought claimant to the attention of local law enforcement officials. 8. The intracranial bleed in the basaL ganglia region of claimant's brain is not shown by the evidence to have been caused, aggravated, accelerated or altered in any manner by the activities which claimant performed for the employer on or about March 2, 1986. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. Timothy J. Kelley has failed to prove, by a preponderance of the evidence, that he sustained any injury that arose out of and in the course of his employment on or about March 2, 1986. 3. Claimant's employer, Sukup Manufacturing Company, and its insurance carrier have no liability under the provisions of the Iowa workers' compensation laws. ORDER IT IS THEREFORE ORDERED that claimant take nothing from this proceeding. IT IS FURTHER ORDERED that the costs of this action are assessed against claimant pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 20th day of October, 1989. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. W. H. Gilliam Attorney at Law 722 Water Street Court 2nd Floor Waterloo, Iowa 50703 Mr. David R. Mason Mr. Mark W. Fransdal Attorneys at Law 315 Clay Street P.O. Box 627 Cedar Falls, Iowa 50613 1108.50, 1402.30, 1806 Filed October 20, 1989 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER TIMOTHY J. KELLEY, Claimant, vs. File No. 817722 SUKUP MANUFACTURING COMPANY, A R B I T R A T I 0 N Employer, D E C I S I 0 N and U.S.F. & G., Insurance Carrier, Defendants. 1108.50, 1402.30, 1806 Claimant, who suffered a stroke while driving the employer's truck, failed to prove that he sustained any injury as a result of a collision in which the truck was subsequently involved. It was held that where the claimant fails to prove injury arising out of and in the course of employment and that some disability resulted from that injury, the burden of proof does not shift to the employer under the rule applied when disability is to be apportioned. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JUDY TASLER, Claimant, vs. File No. 817750 ARC/POLK COUNTY, A R B I T R A T I O N Employer, D E C I S I O N and EMPLOYERS MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Judy Tasler against ARC/Polk County, her former employer, and Employers Mutual Insurance Company, the insurance carrier for the employer. The case was heard and fully submitted at Des Moines, Iowa on December 29, 1987. The record in this proceeding consists of testimony from Judy Tasler, testimony from Sandy Thornberg and joint exhibits 1 through 14. ISSUES The only issue presented for determination was the nature and extent of permanent disability which resulted from the claimant's injury that occurred on October 24, 1985. It was stipulated on the record that the claimant had sustained an injury on October 24, 1985 which arose out of and in the course of employment; that all compensation due for healing period had been paid; and, that the healing period had ended on March 18, 1987. It was further stipulated that compensation for permanent disability would become payable on March 19, 1987 and that all such compensation payable to the date of hearing had been paid. It was indicated that the employer was voluntarily paying compensation for a 15% permanent partial disability of the body as a whole. REVIEW OF THE EVIDENCE The following is a summary of evidence presented in this case. Only the evidence most pertinent to this decision is discussed, but all of the evidence received at the hearing was considered in arriving at this decision. Conclusions about what the evidence showed are inevitable with any summarization. The conclusions in the following summary should be considered to be preliminary findings of fact. Judy Tasler is a 49-year-old lady who currently resides with TASLER V. ARC/POLK COUNTY PAGE 2 Sandy Thornberg and Sandy's husband. Claimant is a 1957 graduate of Roosevelt High School in Des Moines, Iowa and has attended the Des Moines Area Community College for one to one and one-half years. She has studied psychology and attended seminars and retreats through her employment with ARC. Claimant has performed clerical work for insurance companies in the past, including keypunch operation. In approximately 1974, she was employed by the Polk County Health Department where she worked as an interviewer and investigator in the field of communicable disease control. Claimant testified that, in the position, she typically would spend two hours a day in a car and the balance at a desk. In 1973, she was hospitalized at Broadlawns Hospital on two occasions where she was treated for a personality disorder that was diagnosed as passive-aggressive personality--passive dependent type (exhibit 1, pages 13 and 25). On November 20, 1974, claimant was rear-ended in an automobile accident. She was treated by Arnis B. Grundberg, M.D. (exhibits 2 and 3). Claimant testified that she had no back problems prior to that accident, but that, since the accident, she has had problems and discomfort with her low back, but they did not prevent her from working or from having a complete life prior to the 1985 injury (exhibit 13, pages 28 and 29). Claimant recalled injuring her back while moving furniture when she lived in Las Vegas during 1975 or 1976. She testified that, when she moved back to Des Moines in 1976, she was off work for a considerable period of time due to her back problems (exhibit 13, pages 29-32). Sandy Thornberg testified that she has known claimant for more than 30 years and is aware of claimant's 1974 car accident and the recent injury at ARC. Thornberg stated that, following the car accident in 1974, claimant had problems with her back and, for a while, often lay on the floor, but she eventually recovered completely from it. Thornberg stated that, prior the ARC injury, claimant was not restricted in any manner and did normal things such as dancing. Thornberg stated that, since the ARC injury, claimant has become completely immobile and that, for the first year following the injury, claimant was hardly able to get out of bed. Thornberg stated that she went to claimants home to help her and performed activities such as cleaning. Thornberg testified that, at the present time, claimant cannot bend in order to reach down, but that she can reach upward. Thornberg stated that claimant commonly stands, leaning against a wall and often lies on the floor. Thornberg stated that claimant can sit for only fifteen or twenty minutes and that, at times closer to the actual date of injury, claimant was unable to sit at all. Thornberg could recall no difference in claimant's behavior when she came back to Des Moines in 1976 than she had exhibited immediately prior to moving to Las Vegas. Thornberg was not aware that claimant had any permanent problems as a result of the 1974 automobile accident. Claimant testified that, following the injury, she continued to work until March, 1986, but that she eventually discontinued work because her condition had worsened. In her deposition, claimant testified that she slowly improved after the injury and that she was better at the time she was deposed than she was in TASLER V. ARC/POLK COUNTY PAGE 3 October of 1985 or in March of 1986 (exhibit 13, pages 48 and 49). Upon further questioning, however, claimant stated that she was worse at the time of being deposed than she had been in October, 1985 and that the exercises which she had been performing had damaged her (exhibit 13, page 62). Exhibit 10 is claimant's personnel file with ARC. The records indicate that claimant was hired on March 22, 1978 (page 172). The application asked the following question: "Do you have any physical limitations you think we should know about?" Claimant responded "No." (page 171). Claimant testified that she told of her 1974 accident when she was hired at ARC, but that she had no restrictions at that time (exhibit 13, page 34). When testifying at hearing, claimant stated that, when she applied at ARC, she wrote on the application concerning the back injury, but upon examining exhibit 10, she was unable to locate any such writing and indicated that it was on a different form. Claimant testified that she was employed at ARC as a work supervisor and that her job was to make the clients as independent as possible. The clients are adults who are mentally retarded and often have other physical infirmities. Claimant stated that ARC is a workshop, rather than a residential facility. Claimant stated that she taught money skills and social skills. She also dealt with businesses who would contract to have the clients perform services. Claimant stated that she sometimes drove a pickup truck to deliver the contract work and sometimes handled boxes of paper. Claimant stated that the female supervisors normally did not handle boxes. Claimant testified that a typical work day involved approximately three hours of paperwork and approximately five hours of work with the clients. She stated that the paperwork was performed sitting at a desk while work with clients was generally performed while standing or walking. Claimant testified that, prior to the 1985 injury, she had no difficulty performing the work and had no time when she or the clients needed to lie down and rest. Claimant stated that part of the job involved being close to the clients as they respond to touching and hugging. She stated that the hardest part of the work was that it left her emotionally drained because she had to work with parents of some of the clients and that some of the clients died at a young age. Claimant testified that, on October 24, 1985, she had a group of clients on a walk at East Fifth and Grand Avenues when one of the clients suffered a grand mal seizure. Claimant stated that she took the client's glasses and grabbed the client from behind in order to prevent her from falling. In the process of doing so, she felt pain in her right buttock. Claimant testified that she continued to work the rest of the day and that, over the next several days, she had pain in her right buttock and pains in her right thigh and muscle spasm. She stated that she continued to work and that when she got home, her daughter would take care of her. Claimant stated that the more she was up, the more the pain increased. Claimant testified that, when the pain did not go away, she sought treatment from William Jagiello, D.O., her personal physician and that she was treated with exercise, pain pills and muscle relaxers. Claimant stated that she continued to work after seeing Dr. Jagiello and that she lay in her car at TASLER V. ARC/POLK COUNTY PAGE 4 lunchtime and quit going up the stairs to the staff lounge. She stated that her injury ultimately forced her clients to become extremely independent. Claimant stated that the treatment from Dr. Jagiello was not effective and that, in March, he took her off work because she was unable to endure the pain. Claimant stated that, by that time, her pain level had worsened. Claimant testified that she was examined by Robert F. Breedlove, M.D., who took her off work and told her that she had arthritis in her pelvis. Claimant was eventually sent to the Mercy Pain Center under the direction of James Blessman, M.D. At the pain center, claimant attended four weeks of therapy, exercise and other treatment. She stated that a lift that was placed in her left shoe by a therapist has helped. Claimant used a TENS unit for a time, but the pain clinic treatment seeks to have the patient avoid relying upon pills or braces. The records from the Mercy Pain Center indicate that claimant improved dramatically while she was in the program (exhibit 8, pages 86, 87, 100, 102, 103 and 115). Claimant testified that, after leaving the pain center, she continued to have follow-up care from Dr. Blessman and that it was planned that she would return to work in August, commencing with two hours per day (exhibit 7, page 82). Claimant testified that, at ARC, it is not uncommon for clients to have seizures. She stated that she had dealt with clients having seizures thirty to fifty times, but was not injured on any of the occasions except for October 24, 1985. Claimant testified that, during the return to work, one of the clients became violent and that two men had to hold the client down for two hours. Claimant testified that she felt unable to do her job as she would be unable to restrain clients and was afraid of being injured. Claimant eventually resigned in October, 1986 (exhibit 10, page 190). Claimant testified that the most she was able to work during the time when she tried to resume employment was three hours per day and that her pain had increased during the time she had attempted the return to work. Claimant testified that she discussed employment possibilities with Shelby Swain, a rehabilitation counselor, and with Dr. Blessman and that a plan was developed for her to engage in home-bound work such as child care. Claimant related that she ran newspaper ads and also sought other types of at-home work, but was unsuccessful until an ad was located for performing respite care through Lutheran Social Services. Claimant stated that the work involved caring for retarded children who were not aggressive or violent and who were between the ages of five and.ten years. Claimant testified that she could take up to three children per day and would be paid $10 or $20 per day per child, but that work was not available every day. Claimant stated that, in the six months she performed respite care, her income varied from $140 to $290 per month. She stated that she had no choice with regard to how much work she would be able to have since it was arranged by a social worker. Claimant testified that she was unable to keep up the payments in her home and was compelled to sell it. She stated that, since selling the home, she has no place in which to perform the respite care, but that she would like to be able to move into her TASLER V. ARC/POLK COUNTY PAGE 5 own apartment where she could resume the activity. Claimant testified that she occasionally receives $150 in back child support. She related that sue currently has a Social Security Disability claim pending, but that it has previously been turned down on two occasions. In a report dated March 19, 1987, Dr. Breedlove has indicated that claimant has degeneration of her facet joints which are a result of the prior automobile accident. Dr. Breedlove stated that she has a five percent permanent impairment due to a decreased range of motion (exhibit 5, pages 64 and 65). Dr. Blessman has agreed that a five percent permanent impairment rating is not unreasonable. He felt that claimant should follow restrictions of no mole than 35 pounds of lifting and that she avoid repetitive bending and stooping. Dr. Blessman felt that claimant's back had been aggravated by the episode that occurred at ARC (exhibit 7, page 74). Dr. Jagiello indicated that claimant had pain which had been present intermittently since her automobile accident. He diagnosed her current condition as acute lumbar strain secondary to the work-related injury and that she also had a history of chronic back pain. Dr. Jagiello indicated that claimant will be unable to return to her former employment where lifting and patient care were involved (exhibit 4, page 50). Claimant testified that, if she sits, her pain level elevates. She stated that standing with the heel of her right foot placed on the toe of her left foot is the most comfortable position for her other than lying on her side with a pillow under her waist and another pillow between her legs. Claimant stated that she commonly lies on the floor or in bed. Claimant stated that she can sit or drive up to 15 minutes, but that, if she tries to do it longer, the pain accelerates and it then takes days for it to go away. She stated that, in order to travel farther, she needs to lie down on the seat. Claimant stated that she takes Extra Strength Tylenol for pain relief as Drs. Blessman and Jagiello do not want her on prescription medications. She stated that she does not perform exercises because they elevate the pain. She stated that she does not use a back support because the doctors have recommended against it as it would allow her muscles to weaken. Claimant stated that she can walk approximately one-half of a block before her pain elevates. She stated that she has no social life, no parties, no dancing, no movies and no work. She stated that she does not do anything where she has to sit. She stated that she can dress herself, but that it takes quite a while and that shoes and socks are a particular problem. Claimant related that she can do dishes, but that any bending over such as to use the oven or to vacuum hurts. Claimant testified that she performs grocery shopping using a cart, but that she is unable to pick things up from the bottom shelf. She stated that she is unable to hold her grandchildren. Claimant stated that her pain interferes with her ability to concentrate and that she did not feel mentally sharp at the time of hearing due to the pain. APPLICABLE LAW AND ANALYSIS In view of the stipulations made by the parties in the TASLER V. ARC/POLK COUNTY PAGE 6 pre-hearing report and at time of hearing, the only issue for determination in this case is the degree of claimants permanent disability. Claimant urges that she is totally disabled and relies upon the odd-lot doctrine. Since the injury is to claimant's back, it is not a scheduled member and the disability is to be evaluated industrially. As a claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional disability is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 257 (1963). Industrial disability or loss of earning capacity is a TASLER V. ARC/POLK COUNTY PAGE 7 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. Permanent disability means a disability that is lasting for an indefinite an undeterminable period. It does not require absolute perpetuity. Wallace v. Brotherhood, 230 Iowa 1127, 1130 (1941). The test of whether a person is permanently and totally disabled in the workers' compensation setting has long been established and may be summarized as follows: When the combination of the factors considered in determining industrial disability precludes the worker from obtaining regular employment which enables the person to be self-supporting, the disability is total disability. Guyton v. Irving Jensen Co.,373 N.W.2d 101, 103 (Iowa 1985); McSpadden v. Big Ben Coal Co., 282 N.W.2d 181, 192 (Iowa 1980): Diederich v. Tri-City R. Co., 219 Iowa 587, 594, 258 N.W. 899, 902 (1935). In order to rely upon the odd-lot doctrine, the claimant must demonstrate that reasonable efforts have been made to secure employment as part of the prima facie showing of total disability which causes the burden of proving employability to shift to the employer. Emshoff v. Petroleum Transportation Services, file number 753723, Appeal Decision March 31, 1987. There are few individuals in our society whose earning capacity is zero. There are numerous examples of individuals with severe physical impairments who are able to produce some level of earnings. The test for permanent total disability is whether or not the person has the ability to earn a living for himself or herself. From the standpoint of workers' compensation, a person who does not have the ability to be self-supporting is totally disabled. At the time of injury, claimant was earning an annual salary of $16,579.94 (exhibit 10, page 189). The most she has earned since that injury is $290 during one month when she was performing respite child care. Two hundred ninety dollars per month is not a sufficient level of income to enable an individual to be self-supporting. There is ample evidence in the record to establish that claimant did have some preexisting disability in her back as a result of the 1974 automobile accident. Dr. Breedlove attributes his five percent impairment rating to degeneration which has resulted from that accident. While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962). TASLER V. ARC/POLK COUNTY PAGE 8 When an aggravation occurs in the performance of an employer's work and a causal connection is established, claimant may recover to the extent of the impairment. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960). The Iowa Supreme Court cites, apparently with approval, the C.J.S. statement that the aggravation should be material if it is to be compensable. Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's Compensation section 555(17)a. An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960), and cases cited. The employer is responsible for the full disability that results when a preexisting condition is aggravated unless the employer sustains the burden of proving the extent of disability that preexisted the compensable aggravation. Becker v. D & E Distributing Co., 247 N.W.2d 727, 731 (Iowa 1976). When an injury produces total disability, there is no basis for apportionment since the totally disabled are, by definition, unable to be self-supporting and it would be contrary to the beneficial intent and purpose of the workers, compensation laws to require a waiting period or some other means of deducting out the preexisting level of disability. There is no practical way to take such a deduction without interrupting or reducing benefits at a time when the benefits are needed for sustenance. The perplexing part of this case is that the medically determinable findings as indicated by the various physicians who have examined or treated the claimant do not provide a reasonable explanation for the level of pain of which the claimant complained at the time of hearing. The highest impairment rating is a five percent rating from Dr. Breedlove. The physical restrictions that have been recommended by Drs. Jagiello and Blessman are much less restrictive than those which the claimant imposes upon herself. Claimant has indicated that sitting is one of her greatest problems, yet it is not mentioned as a problem in her medical restrictions. Claimant's testimony regarding whether her condition has worsened or improved since the injury occurred in 1985 and since March of 1986 has vacillated. The record clearly shows a great deal of improvement while she was in the pain center program, but a relapse subsequent thereto. The record of claimant's 1973 hospitalization at Broadlawns contains references to a personality disorder and allegations that she may sometimes act sick in order to gain attention, but the recent psychological evaluations, as the one imposed by Dr. Hines at Broadlawns, found no psychological overlay or psychological component to the claimant's current condition (exhibit 8, pages 86 and 87). Claimant's testimony that she has continued to worsen is inconsistent with the normal physiological process of healing. On the other hand, it is quite understandable and prudent that the claimant avoid types of employment which would subject her to a risk of injury to her back. It was not inappropriate for her to cease employment at ARC. Claimant has had the services of a very skilled rehabilitation consultant, yet the TASLER V. ARC/POLK COUNTY PAGE 9 best possible employment that was able to be arranged was respite care of retarded children which did not provide a level of income which would enable her to be self-supporting. A great deal of the result of this case depends upon the credibility and reliability of the claimant's testimony regarding her physical complaints. If they were given full and complete credibility, the claimant would be entitled to an award of total disability. There are too many inconsistencies, however, to permit an award based upon the claimants uncorroborated complaints. Her level of discomfort is not supported by the medical evidence in the record. The course of her recovery, or lack thereof, is not what is normally expected or seen. There is no explanation in the record for her purported worsening, rather than improving. It is found that claimant does suffer from chronic pain. In accordance with the evidence from Dr. Jagiello and Dr. Blessman, it is found that the injury of October 24, 1985 did aggravate a preexisting condition in claimant's low back. Claimant is now 49 years of age. She is effectively required to enter into a new occupational field. Entry level wages in most occupations are well below her level of earnings with ARC. The vocational consultant was not particularly successful in finding gainful employment for her, although this can perhaps be attributed to the restrictions which the claimant imposed upon herself. In any event, however, it is determined that the claimant does have a quite substantial degree of permanent. disability as a result of the injury that occurred on October 24, 1985. When all the pertinent factors of industrial disability are considered, it is determined that claimant has a 50% permanent partial disability as a result of the injury that she sustained on October 24, 1985. FINDINGS OF FACT 1. Judy Tasler injured her low back when assisting a client of ARC who had a seizure on October 24, 1985. 2. The injury was an aggravation of a preexisting condition that had resulted from a 1974 automobile accident. 3. Claimant's testimony is generally accepted as being correct except that the degree of her symptoms is determined to be exaggerated. 4. Claimant is, as a result of the October 24, 1985 injury, restricted in her ability to bend, stoop, lift, sit, stand and walk. 5. Claimant should not resume employment in an occupation which subjects her to further injury to her back. 6. Claimant, at the age of 49, will be required to enter into a new occupational field in order to obtain gainful employment. 7. Claimant has sustained a 50% loss of her earning capacity as a result of the October 24, 1985 injury. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of TASLER V. ARC/POLK COUNTY PAGE 10 this proceeding and its parties. 2. The injury claimant sustained on October 24, 1985 is a proximate cause of the permanent disability with which she is currently afflicted. 3. Claimant has a 50% permanent partial disability in industrial terms which entitles her to receive 250 weeks of compensation payable at the stipulated rate of $192.55 per week commencing March 19, 1987 under the provisions of Iowa Code section 85.34(2)(u). 4. Claimant has made a prima facie showing of total disability when the evidence is considered in the light most favorable to the claimant. 5. Upon considering all the evidence in the record, and giving it the weight to which it is entitled, the claimant has failed to carry the burden of proving that she is permanently and totally disabled. 6. Through the inconsistencies and weight given to the evidence, the employer's burden of persuasion with regard to the claimant being employable has been met. ORDER IT IS THEREFORE ORDERED that defendants pay claimant two hundred fifty (250) weeks of compensation for permanent partial disability at the stipulated rate of one hundred ninety-two and 55/100 dollars ($192.55) per week payable commencing March 19, 1987. IT IS FURTHER ORDERED that defendants receive credit for all payments previously paid and pay any accrued but unpaid amounts in a lump sum together with interest pursuant to Iowa Code section 85.30. IT IS FURTHER ORDERED that the costs of this proceeding are assessed against defendants 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 17th day of October, 1988. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Channing L. Dutton Attorney at Law West Towers Office Complex 1200 35th Street, Suite 500 TASLER V. ARC/POLK COUNTY PAGE 11 West Des Moines, Iowa 50265 Mr. Larry D. Spaulding Attorney at Law 1100 Des Moines Building Des Moines, Iowa 50309-2464 1402.40, 1803, 1804 1806, 2206, 4100 Filed October 17, 1988 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER JUDY TASLER, Claimant, vs. File No. 817750 ARC/POLK COUNTY, A R B I T R A T I O N Employer, D E C I S I O N and EMPLOYERS MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. 1402.40, 1803, 1804, 1806, 2206, 4100 Claimant had a preexisting back problem as a result of an automobile accident. The fact of her compensable injury was admitted and the only issue in the case was the degree of permanent disability. The claimant's self-imposed complaints and restrictions were much more restrictive than the restrictions that had been imposed by her physicians. her post-injury earnings were not capable of supporting her. She had not found any regular employment even though the services of a vocational consultant had been provided. The claimant quite appropriately left the employ of her employer where she was exposed to a risk of further injury to her back. In view of the likelihood that the future held little better than minimum wage jobs for her, she was awarded 50% permanent partial disability. Her odd-lot claim was rejected in view of the disparity between her complaints and the level of disability found by the medical practitioners. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JUDY TASLER, Claimant, File No. 817750 vs. D E C I S I O N ARC/POLK COUNTY, Employer, and EMPLOYERS MUTUAL INSURANCE CO. Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding brought by Judy Tasler, claimant, against ARC/Polk County, employer, and Employers Mutual Insurance Co., insurance carrier, seeking the enforcement of Iowa Code section 85.39. This matter comes on before the undersigned deputy industrial commissioner based on a "Report To the Industrial Commissioner" filed December 20, 1988. FINDING OF FACT The parties report defendant will "allow" claimant to have the independent medical examination requested. CONCLUSION OF LAW Claimant sustained an injury which arose out of and in the course of her employment on October 24, 1985 for which defendants are liable. Pursuant to Iowa Code section 85.39, claimant is entitled to be reimbursed by the employer the reasonable fee and reasonably necessary transportation expenses incurred for the examination. ORDER THEREFORE, IT IS ORDERED: Defendants shall reimburse claimant the reasonable fee and reasonably necessary transportation expenses pursuant to Iowa Code section 85.39. Signed and filed this 22nd day of December, 1988. DEBORAH A. DUBIK DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Channing Dutton Attorney at Law West Towers Office Complex 1200 35th St, Ste 500 West Des Moines, IA 50265 Mr. Larry D. Spaulding Attorney at Law 1100 Des Moines Building Des Moines, IA 50307 2502 Filed December 22, 1988 Deborah A. Dubik BEFORE THE IOWA INDUSTRIAL COMMISSIONER JUDY TASLER, Claimant, File No. 817750 vs. D E C I S I O N ARC/POLK COUNTY, Employer, and EMPLOYERS MUTUAL INSURANCE CO. Insurance Carrier, Defendants. 2502 Claimant sustained an injury arising out of and in the course of her employment for which defendants are liable. Claimant entitled to independent medical examination. BEFORE THE IOWA INDUSTRIAL COMMISSIONER MICHAEL A. ROCKHOLD, Claimant, File Nos. 817760 823219 vs. 827962 FISHER CONTROLS INTERNATIONAL A R B I T R A T I O N Employer, D E C I S I O N and F I L E D CIGNA MAR 30 1989 Insurance Carrier, Defendants. INDUSTRIAL SERVICES INTRODUCTION This is a proceeding in arbitration brought by Michael A. Rockhold, claimant, against Fisher Controls International, employer, and Cigna, insurance carrier, defendants, for benefits as the result of three alleged injuries which occurred on, (1) February 27, 1986, (file no. 817760), (2) May 15, 1986, (file no. 823219) and (3) July 16, 1986, (file no. 827962). A hearing was held in Des Moines, Iowa, on December 20, 1988, and the case was fully submitted at the close of the hearing. The record consists of the testimony of Michael A. Rockhold, claimant, Glenn Hillygus, payroll supervisor, Frank Kolbe, union representative, Kenneth Karns, foreman, Ron Allen, loss prevention director, joint exhibits 1 through 28 and defendants' exhibit 1. The deputy ordered a transcript of the hearing. Both attorneys submitted excellent briefs. STIPULATIONS The parties stipulated to the following matters: That an employer-employee relationship existed between claimant and employer at the time of all three alleged injuries. That claimant had been paid one week of temporary disability benefits for the alleged injury of February 27, 1986; 6/7 weeks of temporary disability benefits for the injury of May 15, 1986, and approximately five and 4/7 weeks of temporary disability benefits for the injury of July 16, 1986; and that causal connection or entitlement to temporary disability benefits are no longer disputed issues to be addressed by the decision in this case. That the type of permanent disability, if the injuries are found to be the cause of permanent disability, is industrial disability to the body as a whole. That the rate of compensation, in the event of an award of benefits, for the alleged injury of February 27, 1986, is $381.86 per week; for the alleged injury of May 15, 1986, it is $381.86 per week and for the alleged injury of July 16, 1986, it is $359.89 per week and that the loss in this case, if any, occurred after the third injury. That claimant's entitlement to medical benefits is no longer in dispute. That defendants make no claim for credit for employee nonoccupational group health plan benefits or for workers' compensation permanent partial disability benefits paid prior to hearing. That there are no bifurcated claims. ISSUES The parties submitted the following issues for determination at the time of the hearing. Whether claimant sustained an injury on February 27, 1986, May 15, 1986, and July 16, 1986, which arose out of and in the course of employment with employer. Whether any of these injuries were the cause of permanent disability. Whether claimant is entitled to permanent disability benefits for any of these injuries. SUMMARY OF THE EVIDENCE Of all of the evidence presented, the following is a summary of the evidence most pertinent to this decision. Claimant was 38 years old at the time of his alleged injuries and 41 years old at the time of the hearing. He is married and has three children, ages 14, 12 & 9. Claimant has worked for employer for approximately 14 1/2 years. Prior to this employment, he managed retail shoe stores. Prior to that he was a field radio operator in the United States Marine Corps. He served in Viet Nam for 13 months. He graduated from high school, but has not been involved in any higher education after high school. Claimant started to work for employer in 1974 as an assembler. He started to work on the large multiple drill in approximately 1978 (transcript pages 86 & 87). The large multiple drill is generally considered to be heavy work. The job description states that the parts range from three to 414 pounds, but the normal range is approximately 40 to 100 pounds. An air hoist is available for heavy weights (exhibit 21; tr. p. 106). Claimant testified that he first injured his back on February 27, 1986, while operating the large multiple drill. He felt a sharp pain in his right lower back when he tried to take a part out of the jig. He reported the injury to his foreman and was sent to see the nurse. C.G. Wuest, M.D., the in-house plant physician, examined claimant and allowed him to go see a chiropractor of his own choice. Claimant was off one week, returned to work, light duty, for a couple of weeks and then returned to work on the large multiple drill (tr. pp. 30-35, 88-91; ex. 19, p. 9). Claimant injured his back again on May 15, 1986, while operating the large multiple drill, lifting a 60 pound jig with his arms extended in front of him. All of a sudden he felt a sharp pain again. He went immediately to the nurse's office. He saw Dr. Wuest who again gave him permission to see a chiropractor of his own choice. Claimant was off five days to one week, returned to light duty for approximately two weeks and then resumed his regular duties on the large multiple drill again (tr. pp. 35-37, 91 & 92; ex. 19, p. 8). Claimant injured his back a third time on July 16, 1986, while machining holes in six inch bonnets with the large multiple drill. He was bent over positioning a bonnet which weighed approximately 72 to 74 pounds, pulling it, when he felt a very sharp pain in his back in the exact same place in his right lower back. He saw the nurse, Dr. Wuest and a chiropractor of his own choice again. Dr. Wuest then sent claimant to see Carl O. Lester, M.D., an orthopedic surgeon (tr. pp. 37-42, 92-94; ex. 19, p. 6). Dr. Lester took x-rays and a CT scan which showed protrusion of a disc in his lower back (tr. pp. 42 & 43). Claimant was off work for approximately five days. He then returned to work, light duty in the tool crib, from approximately July of 1986 to January of 1987. He never did return to his job on the large multiple drill. Claimant was then assigned to a job working on small machines. He was working on this job at the time of the hearing. He was not able to return to the large multiple drill because Dr. Lester restricted him from prolonged standing, prolonged sitting, twisting, bending and lifting more than 20 pounds. Dr. Lester prescribed that he was to perform a job where he could take some walks and move around (tr. pp. 43-47). In this new job assignment he operates miscellaneous small machines that mill, drill, taper and debur. This job does not require heavy lifting (tr. pp. 98-102). Claimant testified that he plans to work in this department indefinitely (tr. p. 109). Claimant was allowed to continue working on the first shift (days), even though normally he would have been assigned to the second shift (evenings), because a psychiatrist verified that working on second shift would cause claimant to have severe depression (tr. pp. 47-49). Claimant testified that he had been grandfathered in to a grade nine position on the large multiple drill prior to his injuries in 1986. The new position which employer has provided to claimant in order to give him employment within Dr. Lester's restrictions, is a grade three position. When claimant was on light duty from July of 1986 to January of 1987, he received his normal grade nine pay (tr. pp. 50-56). The employer's records indicate that claimant was permanently reassigned on January 27, 1987 (tr. p. 55). On January 1, 1987, grade nine pay became $6.89 per hour. It became $6.99 per hour on August 17, 1987. Grade three pay was $6.18 per hour on January 1, 1987. Grade three pay was $6.28 per hour on August 17, 1987. In August of 1988, grade nine pay was $7.09 per hour and grade three pay was $6.38 per hour (tr. pp. 56-60). When employer converted from incentive pay to a gain sharing plan claimant received an additional $2.80 per hour in red circle pay. When claimant transferred from the large multiple drill classification, grade nine, to the miscellaneous small machines, grade three, on January 27, 1987, he lost the red circle pay (tr. pp. 60-63, 129 & 130). Claimant calculated that he also lost bonus income. Grade nine bonus on February 22, 1987, was $.36 per hour and grade three bonus was $.32 per hour. On March 1, 1987, grade nine bonus was $.60 per hour and grade three bonus was $.54 per hour. These figures and several other bonus figures from February 22, 1987 to August 8, 1988, are illustrated on joint exhibit 28. According to claimant's calculations, he lost varying amounts of bonus ranging between $.01 per hour and $.19 per hour at different times during this period (jt. ex. 28; tr. pp. 63-70). Claimant summarized that he lost earnings three ways, (1) regular hourly wage, (2) red circle pay and (3) bonus income (tr. pp. 70-72, 102 & 104). Glenn Hillygus, employer's payroll supervisor, corroborated claimant's testimony and verified that claimant's testimony concerning his pay before and after these injuries was essentially correct (tr. pp. 117-132). In his deposition, Hillygus testified that claimant's total pay on February 27, 1986, in grade nine, was $6.89 per hour, regular hourly wage, $5.28 cost of living supplement and $2.80 per hour red circle pay. The same pay rates applied to the alleged injury of May 15, 1986, and July 16, 1986. His deposition explained red circle pay and gave claimant's pay rates for grades nine and three and their respective increases. His deposition generally paralleled his hearing testimony and corroborated and verified claimant's testimony (ex. 23). Frank Kolbe, a 20 year company employee and 14 year union representative, corroborated claimant's testimony on regular pay, red circle pay and bonus (tr. pp. 134-149). He further explained the history and rationale for red circle pay, gain sharing pay as well as bonus (tr. pp. 132-140). He testified that red circle pay would be negotiated again in August of 1989. He did not expect a buy out of red circle pay by the company from those employees who were still eligible for it (tr. pp. 140 & 141). Claimant conceded that he had suffered two previous back injuries. One occurred on August 27, 1982, and the other occurred on October 4, 1984. He received one special case settlement for both of these injuries. Both injuries occurred while working on the large multiple drill (tr. pp. 72-74 & 83). Claimant received $7,436.25 in this settlement (tr. pp. 116 & 117). Claimant testified that since his injuries in 1986, he currently has pain from his back that goes down his left leg to his left foot all of the time. He testified that he did not have this pain before these three injuries. Claimant testified that he also saw Todd Hines, Ph.D. and Alfredo Socarras, M.D. He testified that he is still under Dr. Lester's care. He no longer sees the chiropractors or the psychiatrists (tr. pp. 74-78 & 84). Dr. Socarras found no evidence of peripheral nerve or radicular involvement. He diagnosed chronic lumbosacral strain. From the neurological standpoint he found no functional impairment (ex. 1). Defendants' counsel elicited that claimant had seen his personal physician on August 29, 1977, when he experienced severe low back pain to dress his daughter (ex. 2, p. 2). C.D. Bendixen, M.D., reported pulled midback muscles on October 27, 1982 (ex. 2, p. 1). Claimant admitted that he saw his personal physician again on May 23, 1983, for back pain that prevented him from prolonged standing and sitting (ex. 2, p. 1). He also granted that he saw Dr. Bendixen for back pain as early as December 10, 1974 (ex. 2, p. 2; tr. pp. 77-81). Claimant further agreed that he weighed approximately 186 pounds at the time of the hearing, but that he weighed approximately 200 pounds at the time of these back injuries in 1986 (tr. p. 81). Claimant could not recall what time of day he incurred the injury on February 27, 1986 (tr. p. 88), or the time of day he incurred the injury on May 15, 1986 (tr. p. 92). Kenneth Karns, testified that he is a 36 year employee of employer. He has been claimant's foreman since his transfer on January 26, 1987. He testified that claimant was a dependable performer, a steady worker, a self-starter and he communicated well. He does a fine job except for his limitations of needing to move around, not lifting more then 20 pounds and the fact that he is not able to operate one of the machines called a snow drill. The snow drill was equipped with a micro switch instead of a foot pedal actuator in an attempt to accommodate this machine for claimant to operate, but he still could not operate it. Claimant works all of the machines except for the snow drill. Claimant has been offered overtime on Saturday, but he has turned it down which is his right to do. Allowing claimant to move around, walk and stand slows him down, but he gets the job done (tr. pp. 150-158). Ronald Allen, loss prevention director for employer, testified that there were three other jobs which came up with employer on which claimant could have submitted a bid, but claimant did not do so. Allen said that red circle pay will be a matter of negotiation when the current contract ends on August 20, 1989. He added that fewer people qualify for it as time goes by due to retirements and transfers from the job the employee was performing at the time the red circle pay was negotiated. Allen said that he made a work study and determined that if claimant had worked one day of overtime on Saturday, his gross wages in grade three would have exceeded his former wages in grade nine (tr. pp. 159-165). Allen related that the employer had purchased portable power tools to accommodate claimant's condition on the large multiple drill. He has been given latitude of movement in his present job. They revised the actuator on the snow drill from a pedal to a button for him. Allen testified that claimant's job was secure and that he would be working in it indefinitely (tr. pp. 165-171). It was brought out that one of the jobs that claimant could have bid on was grade seven, but it was on the second shift. Another one of the jobs was grade seven, but it too was on the second shift. The third job was grade 11, but it also was on the second shift. Defendants' exhibit 1, showed claimant had two weeks in which he made more in grade three than he would have made in grade nine, but the witness was forced to admit that if he had worked in grade nine the same number of hours he would have made even more (tr. pp. 171-176). Allen's deposition testimony parallels his testimony at the hearing and corroborates claimant's testimony on his wage figures (ex. 25). Claimant testified in rebuttal that he watched the bid board everyday and that no jobs have come up that he has the seniority to obtain within the restrictions placed on him by Dr. Lester and the psychiatrist, David L. Bethel, D.O. There is a large quantity of evidence relating to the emotional and mental problems that claimant has been treated for over a number of years (exs. 3, 4, 6, 9, 15-18). On November 13, 1979, Dr. Bendixen said that claimant needed at least every other weekend off work for his mental well being (ex. 8). Dr. Bethel stated on November 4, 1986, that claimant would decompensate if compelled to change job shifts. He predicted it would cause hospitalization and absenteeism (ex. 9, p. 2). On September 11, 1986, Dr. Lester said that a CT scan showed a bulging disc, but not a herniated disc. He said that it could be treated without surgery (ex. 13, p. 6). Later, Dr. Lester admitted claimant to the hospital and a myelogram and CT scan, on March 10, 1986, showed only a very small bulging at L4, L5 with no actual herniation or rupture of the disc. Nerve roots were clean bilaterally. Surgery was not indicated. Motrin and physical therapy were prescribed (ex. 12, pp. 4, 12 & 13). Claimant's diagnosis was chronic lumbosacral strain and was negative neurologically (ex. 12, p. 6). On October 2, 1986, Dr. Lester said to employer's plant physician that claimant should be retrained and refitted with another type of job other than the large multiple drill that appears to be aggravating his back problem (ex. 14, p. 6). On October 14, 1986, Dr. Lester said that.a job change is in order. The new job should follow the following restrictions, (1) no lifting of almost any weight, but particularly no lifting in excess of 10 to 20 pounds at arms length in front of him, (2) lifting and twisting at the same time and (3) avoid standing or sitting in one place for prolonged period of time. If claimant can sit occasionally and move occasionally it will be helpful (ex. 14, p. 5). On April 13, 1987, Dr. Lester told claimant's attorney that claimant had 0 percent of permanent partial disability, however, the restrictions placed on him were permanent (ex. 14, p. 3). On May 13, 1987, Dr. Lester explained to claimant that in spite of his discomfort, claimant did not have a permanent partial disability because he did not meet certain definite criteria (ex. 14, p. 2). The company medical records confirmed that these three injuries occurred as claimant testified. They further indicate that claimant has received a great deal of treatment by the company at work for these injuries and other complaints (ex. 19). Dr. Lester testified by deposition on November 21, 1988, that he is a licensed orthopedic surgeon. Claimant has been his patient since 1975. He saw claimant for the back complaints from these three injuries on August 25, 1986. A CT scan on September 10, 1986, revealed a small central protrusion at L4, L5 as well as mild bulging at L5, S1 (ex. 27, p. 11). He said claimant gave a history of hurting his back three times at work and was off each time for approximately one week. He testified that he recommended that claimant be fitted for another job to prevent a full blown ruptured disc (ex. 27, p. 8). The doctor said that no one knows the etiology of a bulging disc, but it is common among working people. Dr. Lester testified that based on the history that claimant gave and the findings he made, that the cause of claimant's bulging disc was one of the episodes of injury that he had when he hurt himself at work (ex. 27, p. 13). The doctor related that he ordered a follow-up myelogram and CT scan on March 10, 1987, which again showed minimal central disc herniation at L4, L5 without evidence of nerve root compression (ex. 27, pp. 14 & 15). He reconfirmed that claimant had 0 percentage of permanent partial disability. The restrictions he imposed on claimant are permanent (ex. 27, p. 16). Dr. Lester testified that he placed these restrictions on claimant because of the symptoms he was having for over a year. As to whether the restrictions were imposed due to the job injury or the underlying condition, Dr. Lester testified that claimant had something wrong to begin with, but the job injury aggravated it (ex. 27, p. 17). The doctor agreed that claimant's subjective complaints outweighed his objective findings (ex. 27, p. 17). Claimant does, however, have complaints of pain and actual pain (ex. 27, pp. 15 & 23). Claimant also has persistent stiffness in his back, but it does not restrict his normal range of motion (ex. 27, pp. 19 & 23). The following colloquy transpired between claimant's counsel and Dr. Lester: Q. Doctor, if I understand you correctly, you've indicated that the disk bulging that you found in September of '86 and March of '87, in your opinion, arose out of these injuries--you may have the dates--but the dates were February 27, '86; 5-15 of '86; and 7-16 of '86; is that a correct statement? A. Yes. That's a correct statement. (ex. 27, p. 20) Dr. Lester said that the bulge is probably not causing claimant's complaints or symptoms (ex. 27, p. 23). However, he repeated that the restrictions that he imposed were to prevent a ruptured disc (ex. 27, pp. 21 & 22). He explained that when he said that claimant had 0 percent of permanent partial disability, he meant that claimant had no measurable impairment according to the Guides to Evaluation of Permanent Impairment, second edition, published by the American Medical Association (ex. 27, p. 22). 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(1). Claimant has the burden of proving by a preponderance of the evidence that he received injuries on February 27, 1986, May 15, 1986, and July 17, 1986, which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The claimant has the burden of proving by a preponderance of the evidence that the injuries of February 27, 1986, May 15, 1986, and July 16, 1986, 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.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, 261 Iowa 352, 154 N.W.2d 128. While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756, 760-761 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). When an aggravation occurs in the performance of an employer's work and a causal connection is established, claimant may recover to the extent of the impairment. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 (1960). The Iowa Supreme Court cites, apparently with approval, the C.J.S. statement that the aggravation should be material if it is to be compensable. Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's Compensation section 555(17)a. As a claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 257 (1963). Claimant did sustain the burden of proof by a preponderance of the evidence that he sustained injuries on February 27, 1986, May 15, 1986, and July 16, 1986, which arose out of and in the course of employment with employer. On each of these occurrences, claimant described the event or incident which injured his back, he reported the injury to employer, was treated by the plant nurse and Dr. Wuest, the in-house plant physician. Dr. Wuest eventually referred claimant to Dr. Lester. Neither Dr. Wuest nor Dr. Lester ever suggested any other cause for claimant's three back injuries other than the job duties he was performing at the time he experienced the back pain and reported these injuries. Dr. Lester unequivocally testified that the disc bulging was caused by one of the episodes of injury that claimant had when he hurt his back at work (ex. 27, pp. 13 & 20). Therefore, it is determined that claimant sustained three injuries on the foregoing dates which arose out of and in the course of his employment with employer. The three injuries are the cause of claimant's disability. Dr. Lester, is not only the treating physician in this case, but also he has been claimant's personal physician since 1975. Dr. Lester testified that bulging discs are common among working people. Even though Dr. Lester testified that claimant had 0 percent of permanent functional impairment, based upon the standards used in the AMA Guides, he nevertheless placed severe restrictions on claimant's work activities because of the symptoms he was having for over a year. Dr. Lester granted that even though claimant had a preexisting or underlying condition to begin with, nevertheless, the job injury aggravated it (ex. 27, p. 17). He said the bulge was caused by one of the injuries (ex. 27, pp. 13 & 20). Dr. Lester said he imposed the restrictions to prevent a full blown ruptured disc from happening due to claimant's work (ex. 27, pp. 21 & 22). If claimant had not had these three injuries in 1986, and if claimant had not seen Dr. Lester for treatment of these injuries, then these restrictions would never have been imposed. Even though the bulge was not the cause of claimant's current complaints and symptoms (ex. 27, p. 23), nevertheless, the work injury was the cause of the bulge and was the reason that Dr. Lester imposed the permanent restrictions. Dr. Lester made it clear that the restrictions which he imposed are permanent (ex. 27, p. 16; ex. 14, p. 3). Therefore, it is determined that these injuries were the cause of permanent disability. Claimant is 41 years old, has 14 1/2 years of employment with employer and his job seems to be reasonably secure. Claimant testified that he planned to keep this job indefinitely. Two employer representatives testified that they plan to keep claimant in this job indefinitely. Employer has accommodated claimant in several ways. First, employer made some efforts to enable claimant to continue to operate the large multiple drill. When that did not work, employer provided claimant with a job on light machines which he could do. Employer has further accommodated claimant by not requiring him to operate the snow drill, which is one of the machines in his department that is too difficult for him to operate. Employer has further accommodated claimant by allowing him to work standing, sitting or moving around at his own personal discretion, even though it takes him longer to do his work under these circumstances. Claimant was granted further accommodation in that he was exempted from company procedures that required him to work on the second shift when he left the large multiple drill and went to a new department. Employer accommodated claimant's long term and severe emotional problems for which he has been hospitalized and received extensive psychiatric treatment for many years. There was no evidence that claimant's employment caused or aggravated his emotional problems. Two employer representatives testified that claimant's job was secure and that he could work in it indefinitely. Claimant is further protected by what appears to be a strong and active union representation. At the same time, claimant is foreclosed from performing .his best paying job, the large multiple drill job, which is a grade nine hourly wage with red circle pay and he now receives less bonus. The large multiple drill was generally classified as heavy work. Dr. Lester said that claimant should no longer perform this particular heavy work as early as October 2, 1986. on October 14, 1986, Dr. Lester said that claimant should be retrained or refitted for a job other than the large multiple drill job that appears to be aggravating his back problem (ex. 14, p. 6). The doctor imposed the severe permanent restrictions on October 14, 1986. He said claimant is to avoid almost any weight, but particularly in excess of 10 to 20 pounds at arms length in front of him. Twisting and lifting at the same time are to be avoided. Claimant cannot sit or stand for prolonged periods of time (ex. 14, p. 5). On April 13, 1987, the doctor said it would be foolish to put claimant back on a heavy lifting job where recurrence of the pain or reinjury is likely (ex. 13, p. 3). In conclusion, heavy work, work on the large multiple drill, which entitled claimant to grade nine pay, red circle pay and higher bonuses, has been foreclosed to him. Michael v. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218, 219 (1979); Rohrberg v. Griffen Pipe Products Co., I Iowa Industrial Commissioner Reports 282 (1981). Claimant has suffered the loss of regular pay from grade nine to grade three in the approximate amount of $.60 per hour to $.71 per hour. At the present time, he has lost $2.80 per hour in red circle pay. He has lost somewhere between $.01 per hour and $.19 per hour in bonus pay. This is a significant loss of earning capacity. The evidence established that it is permanent. Claimant's counsel estimated in argument that claimant has sustained an approximate 25 percent loss of earnings permanently. Red circle pay is to be renegotiated in August of 1989. The evidence tended to show that red circle pay will either be renewed or some other form of consideration such as possibly a buy out might be arranged with the declining number of employees who are still eligible for red circle pay. At the same time, it must be considered that claimant has 0 percentage of impairment based upon the American Medical Association's Guides to the Evaluation of Permanent Impairment. Also, the bulge has not herniated. No surgery was required and none is anticipated. Claimant lost.minimal time from work due to each of these respective injuries. Conservative treatment has been successful for each of these injuries. Employer has been very accommodating, both with respect to the back injuries and their resulting restrictions, which are work related, as well as with claimant's extensive mental health condition which is not job related. Claimant's job appears to be secure, but, his actual earnings and his earning capacity have both been significantly reduced as a result of these injuries. Therefore, based upon the foregoing considerations and all of the factors used to determine industrial disability, it is determined that claimant has sustained a 15 percent industrial disability to the body as a whole. The effective date of claimant's transfer, from the large multiple drill to miscellaneous small machines, was January 26, 1987. His last day of grade nine pay, red circle pay and related bonuses was January 26, 1987. The first day of grade three pay, loss of red circle pay and reduced bonuses began on January 27, 1987. FINDINGS OF FACT Therefore, based upon the evidence presented, the following findings of fact are made. That claimant sustained injuries on February 27, 1986, May 15, 1986, and July 16, 1986, which arose out of and in the course of his employment, when he strained his back while working on the large multiple drill. That Dr. Lester testified that these injuries were the cause of and the reason for him to impose permanent restrictions which foreclose claimant permanently from doing the heavy work on the large multiple drill. That as a result of these restrictions, claimant's regular pay was reduced from grade nine to grade three, he suffered the total loss of red circle pay and has received reduced bonus pay due to the restrictions caused by these injuries. That claimant has sustained a 15 percent industrial disability of the body as a whole. CONCLUSIONS OF LAW WHEREFORE, based upon the evidence presented and foregoing principles of law, the following conclusions of law are made. That claimant sustained three injuries arising out of and in the course of his employment on February 27, 1986, May 15, 1986, and July 16, 1986. That these three injuries were the cause of permanent disability. That claimant is entitled to 75 weeks of permanent partial disability benefits. That the commencement date for permanent partial disability benefits is January 27, 1987, the first day of claimant's reduced pay. ORDER THEREFORE, IT IS ORDERED: That defendants pay to claimant seventy-five (75) weeks of permanent partial disability benefits at the rate of three hundred fifty-nine and 89/100 dollars ($359.89) per week in the total amount of twenty-six thousand nine hundred ninety-one and 75/100 dollars ($26,991.75) commencing on January 27, 1987. That this amount is to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That defendants are charged with the costs of this proceeding pursuant to Division of Industrial Services Rule 343-4.33. That defendants file claim activity reports pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 30th day of March, 1989. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Theodore Hoglan Attorney at Law 34 S 1st Ave. Marshalltown, IA 50158 Mr. E.J. Giovannetti Attorney at Law Terrace Center, STE 111 2700 Grand Ave. Des Moines, IA 50312 1106, 1108.50, 1401, 1402.20, 1402.30, 1402.40, 1402.40, 1803 Filed March 30, 1989 WALTER R. McMANUS, JR. BEFORE THE IOWA INDUSTRIAL COMMISSIONER MICHAEL A. ROCKHOLD, Claimant, File Nos. 817760 vs. 823219 827962 FISHER CONTROLS INTERNATIONAL A R B I T R A T I 0 N Employer, D E C I S I 0 N and CIGNA, Insurance Carrier, Defendants. 1106, 1108.50, 1401, 1402.20, 1402.30, 1402.40 Claimant proved injury arising out of and in the course of employment from three back strains at work. 1402.40, 1803 Treating physician found no impairment for a bulging disc based on criteria used in AMA Guides. Nevertheless, claimant was awarded 15 percent permanent partial disability because permanent restrictions necessitated a permanent job change with same employer which substantially reduced claimant's income. Employer made several employment accommodations which mitigated claimant's loss.