BEFORE THE IOWA INDUSTRIAL COMMISSIONER DEBRA J. ESPEY, Claimant, File No. 817763 vs. A R B I T R A T I O N LUCKY STORES, D E C I S I O N Employer, and F I L E D NATIONAL UNION FIRE INSURANCE, MAR 30 1990 Insurance Carrier, IOWA INDUSTRIAL COMMISSIONER Defendants. INTRODUCTION This is a proceeding in arbitration brought by claimant, Debra Espey, against Lucky Stores, employer, and National Union Fire Insurance, insurance carrier, defendants, to recover benefits as a result of an alleged injury sustained on February 8, 1986. This matter came on for hearing before the deputy industrial commissioner in Davenport, Iowa, on March 22, 1990. The record consists of the testimony of the claimant, Nancy Jones; and Joint Exhibits 1 through 7. ISSUES The issues the parties set out in the prehearing report for resolution are: 1. Whether claimant's permanent disability is causally connected to her injury of February 8, 1986; and 2. The nature and extent of claimant's disability. REVIEW OF THE EVIDENCE Claimant testified she is a high school graduate and began working for defendant employer at age 16 in the year 1976 or 1977. Claimant said she has worked at no other employment. Claimant stated she has had various back strains and muscle injuries when she participated in basketball and track in high school. She indicated that after a massage, she was sent home and eventually all was okay. Claimant testified that at the time of her fall at defendant employer's on February 8, 1986, she was approximately eight months pregnant, felt good and had no back problems. Claimant related she fell hard on her butt after slipping in a puddle of water while walking at the inside front of defendant employer's store on February 8, 1986. Claimant stated her ankle was twisted and pain developed on the side of her leg. Claimant said her hip and back became sore shortly thereafter. Claimant said she continued to work that day but the longer she worked the sorer she got. Claimant described the medical treatment she sought. Claimant's second child was born around April 1986. Claimant went back to work for defendant employer on May 20, 1986. Claimant stated she was not pain-free, but told the doctor she felt better since giving birth and he told her to go back to work if she is able. Claimant adamantly disagrees with the doctor's May 20, 1986 records if it indicated claimant is symptom-free. Claimant acknowledged she basically worked steady from May 20, 1986 until her third child was born on December 4, 1987. Claimant admitted she saw no doctor during this period for her medical condition resulting from her February 8, 1986 fall because the doctor told her her condition was something she had to live with and it may get better with time. Claimant related she had back, hip and ankle aches and couldn't sleep well at night during this period because of the pain. Claimant said she was in her basement doing laundry in March 1988 when she reached to pick up a sock and her back caught and she could not get up. Claimant said this type incident occurred before but not as intensive. Claimant said she then sought other medical help and was referred to Eugene E. Herzberger, M.D., an orthopedic specialist. Claimant said Dr. Herzberger performed tests like the CT scan and bone scan, which had not previously been performed by any other doctor. Claimant also related the doctor checked her kidney function to see if that had any cause relating to her back condition. Claimant indicated the doctor told her nothing was able to be done surgically. Claimant said she was not satisfied and eventually went to Iowa City. During this time, claimant said she had lost 30 pounds. Claimant related her visits to Iowa City were cut short by defendant employer's letter to her that they were not authorized and would not be paid. Claimant said defendants recommended Richard A. Roski, M.D., who first saw claimant in August 1988. Claimant acknowledged Dr. Roski said in December 1988 she should try to work again. Claimant said she did go back to work on January 16, 1989 and has worked 30 hours per week since that time to the present. Claimant denied she told Dr. Roski she fell in defendant employer's parking lot. She also emphasized that the Iowa City medical records notation of a fall in the parking lot is a misunderstanding and was not correct. Claimant said she currently works six hours per day, five days per week, at $9.50 per hour. She stated her job requires standing and running the cash register with one fifteen minute break, reaching to grab merchandise to run through the scanner, and bending to place the merchandise in the customer's sack. Claimant testified her work hours and income now are the same as they.were at the time of her injury and that she is at the maximum hourly wage for her type of work with defendant employer. She acknowledged she would be making the same income she is making today even if she had not been injured. Claimant mentioned she inquired of her employer several times before her 1986 injury as to whether she could work 40 hours per week. Claimant explained the pay is the same per hour but one gets two fifteen minute breaks instead of one and there is a one hour break for lunch. Claimant acknowledged she hasn't attempted or requested to work 40 hours per week since her injury because she has had a hard time working 30 hours. Claimant said she hurts so bad after two hours of work that she wishes she could go home. She said another person lower in seniority to her was given a 40 hour work week over her in March 1988. Claimant agreed that no doctor told her or restricted her from working more than 30 hours per week. Claimant agreed that she has enough seniority to work 40 hours if she wishes. Claimant said she saw Dr. Robb in October of 1989 at her attorney's suggestion to evaluate claimant. Claimant acknowledged no doctor has recommended surgery. Claimant said she returned to work on or around January 16, 1989, after the March 1988 incident in her basement while doing the laundry,. Claimant's attention was called to Joint Exhibit 6, page 3, in which Dr. Herzberger's records reflect claimant hurt her back lifting a sack of laundry. Claimant adamantly denied saying that and indicated she went to pick up a sock. She explained she called her attorney and told the doctor of the error on her next visit. Claimant said she has no future appointments with the doctors as there is nothing further they can do. Nancy Jones testified she has worked for defendant employer for eighteen years as of September 1990. She said she knows a person with less seniority than claimant was given a 40 hour job in March 1988. She stated she and claimant were both upset. She emphasized both she and claimant wanted to work a 40 hour week. University of Iowa Hospitals and Clinics records reflect on August 31, 1988 that claimant MR was reviewed and revealed a "small bulge of L5-S1, however, the foramina are opened bilaterally. There is no evidence of nerve root impingement. This bulge may or may not be an incidental findings. (Jt. Ex. 1, p. 4) Mercy Hospital Radiology Department records on,November 25, 1988 reflect that a lumbar radiculopathy was done on that date. The findings showed: "There is no evidence of nerve root cutoff or extradural defect to suggest herniated disc." (Jt. Ex. 3, p. 6) Claimant then was given a CT scan. "CT scan following myelography appears normal. No evidence of herniated disc can be seen." (Jt. Ex. 3, p. 6) Richard A. Roski, M.D., a neurologist, has referred to claimant's long-standing problems with her low back dating back to 1986. Dr. Roski wrote on April 21, 1989: I saw Debra Espey back for follow up on 4-20-89. Ms. Espey has been followed by me for some time with complaint of low back and right hip pain. We have undergone extensive evaluation and so far failed to find any correctable lesion in her low back or hip that would relieve her symptoms. We had a long discussion about certain aspects of her job. I think it is difficult to pinpoint a specific activity that clearly exacerbates her symptoms. I think the stress of her job is reasonably well handled by her at this point. I therefore find it difficult to come up with specific job changes that I think will have a dramatic effect on her pain. I think the best long term course for Debra is for her to continue with her activities and continue to deal with the symptoms as best as possible. I think most of her difficulty at this time is related to external stresses and not so much the back and hip pain itself. She has asked me to submit to you an impairment rating for her problem. According to the AMA Guidelines for Evaluation of Permanent Impairment, I would rate her as 5% of the whole person for her low back injury. If I can be of further help in this matter, please feel free to let me know. (Jt. Ex. 4, p. 2) On November 13, 1989, his office notes reflect: The patient's recent flare up is almost completely resolved. There is no other change on neurologic exam. I plan to have her continue the Voltaren,and Flexeril and then start tapering off of both. If symptoms do not remain under reasonable control over the next few weeks, she can contact me for re-evaluation. (Jt. Ex. 4, p. 1) G. L. York, M.D., of Medical Associates, saw claimant beginning with the date of her fall at defendant employer on February 8, 1986. She treated with the doctor for a considerable length of time and he kept her off work from February 9, 1986 until she returned to work on May 20, 1986 (Jt. Ex. 5, p. 10). On March 15, 1988, Dr. York wrote a note which was received by defendant employer indicating claimant was "under my care unable to work for probably 1 wk." (Jt. Ex. 5, p. 14) Eugene E. Herzberger, M.D., a neurologist, wrote on March 31, 1988, that claimant was to "remain off of work until seen again on April 4, 1988." (Jt. Ex. 6, p. 1) On March 31, 1988, Dr. Herzberger wrote: The bone scan shows that the compression of L1 is an old one and not a recent one. The patient tells me that she fell in 1986 and as she was pregnant, no x-rays were taken. It is quite possible that the fracture occurred at that time. It is also quite possible that enough scar tissue was developed in conjunction with the compression fracture so that the patient is more prone to develop lumbosacral strains because of that. In any case, the back pain that she has at this time is due most probably to a lumbosacral strain. I suggested medication, Tylenol #3, as well as Valium 5 mg. three times daily and bedrest. The patient will see me again in a few days time. In the meantime she will have also an intravenous urogram. (Jt. Ex. 6, p. 2) On November 11, 1988, Dr. York's office notes reflect: "Under my care for her back. Still unable to return to work for at least 2 wks." (Jt. Ex. 5, p. 13) On October 5, 1989, W. J. Robb, M.D., wrote: DIAGNOSES: 1). Strain with some tearing, scar adductor muscles right hip. 2). Musculoligamentous strain lumbosacral spine, with secondary contracture paravertebral muscles and ham string muscles of both legs. 3). Intermittent irritation first sacral root, right. DISCUSSION: I think Debra incurred a substantial strain of the adductor muscles and capsule of the right hip when she fell and performed the "splits" at the Eagle's Store. This was attended by healing, but with scar tissue and it is essentially the scar tissue when it comes under stress with certain motions of the hip that produces the pain in the right groin. I anticipate that some of this soreness will remain, although it may improve over its present performance. I would estimate she will have a 5% permanent impairment of function of the right hip as a result of the injury to the capsule and muscular structures and her sensitivity to any extensive motion. The recent trochanteric bursitis I would not attribute to the accident of 1986. Over the past 2 1/2 years she has not carried out any exercise program to maintain good muscle tone and to retain good mobility of her back. As a result, she has developed a contracture of the muscles of the lumbar spine and also to a certain extent of the ham string muscles that travel from the pelvis, along the back of the leg, to behind the knee. This accounts for her increased loss of bending forward and in comparison to the observations noted by Dr. Newton when he examined her on 8/10/88. We have not been able, by the appropriate x-ray studies, to demonstrate any protrusion of the intervertebral disc or encroachment on the nerve root, but the MRI did show some degenerative changes at L5-S1. This could account for some degree of low back pain and also the referred pain to the right hip and sciatic notch. I think a program of exercises such as swimming done on a gradual basis over a period of months will result in restoration of much of her mobility and may even appreciably lessen her pain. I think it is imperative that she begin with some type of exercise program, otherwise the contracture now evident is apt to remain and accompanied by considerable functional impairment. I would term her temporary partial impairment of function of the back as 15%, however I don't consider this permanent. A final value would be somewhere between 7% and 10% of the body as a whole. (Jt. Ex. 7, p. 5) APPLICABLE LAW AND ANALYSIS The claimant has the burden of proving by a preponderance of the evidence that the injury of February 8, 1986 is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." The opinion of the supreme court in Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251 (1963), cited with approval a decision of the industrial commissioner for the following proposition: Disability * * * as defined by the Compensation Act means industrial disability, although functional disability is an element to be considered....In determining industrial disability, consideration may be given to the injured employee's age, education, qualifications, experience and his inability, because of the injury, to engage in employment for which he is fitted. The opinion of the supreme court in Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251 (1963), cited with approval a decision of the industrial commissioner for the following proposition: Disability * * * as defined by the Compensation Act means industrial disability, although functional disability is an element to be considered....In determining industrial disability, consideration may be given to the injured employee's age, education, qualifications, experience and his inability, because of the injury, to engage in employment for which he is fitted. Iowa Code section 85.34(1) provides that if an employee has suffered a personal injury causing permanent partial disability, the employer shall pay compensation for a healing period from the day of the injury until (1) the employee returns to work; or (2) it is medically indicated that significant improvement from the injury is not anticipated; or (3) until the employee is medically capable of returning to substantially similar employment. A healing period may be interrupted by a return to work. Riesselman v. Carroll Health Center, III Iowa Industrial Commissioner Report 09 (Appeal Decision 1982). Claimant is a 30-year-old high school graduate. She started working for defendant employer at age 16, while still in high school, and continued to work for them to the present. Claimant has not worked anywhere else. Claimant participated in basketball and track during high school and suffered various back strains associated with basketball and muscle strains associated with track. Claimant said she always recovered after massages. On February 8, 1986, claimant fell hard on her butt after doing the splits as a result of her slipping on a wet floor at defendant employer. As a result of this fall, claimant developed pain in her ankle, hip and back. Claimant was approximately eight months pregnant at this time. Claimant continued to work but said the longer she worked the sorer she got. The parties stipulated that claimant has a healing period beginning February 9, 1986 up to and not including May 20, 1986 at which time she returned to work. There is no issue as to the causal connection except that defendants contend there is no causal connection to any permanent disability beyond the 10 percent they have already paid, nor is there a causal connection between claimant's injury and an alleged second healing period beginning March 15, 1988 through January 15, 1989. The medical evidence is convincing that claimant has suffered a back injury as a result of this fall. She has had several tests which indicated no herniated disc. She continues to complain to the present. Dr. Herzberger, in 1988, indicated claimant's bone scan showed an old compression of L1. He indicated it is quite possible that the fracture occurred at that time. He further stated that it is also quite possible that enough scar tissue has developed in conjunction with the compression fracture so that the patient is more prone to develop lumbosacral strains because of that (Jt. Ex. 6, p. 2). Since claimant had no back problems before his February 1986 fall, the evidence is convincing that the old injury referred to is, in fact, the February 1986 injury. Dr. Robb referred to claimant's scar tissue as contributing to her problem. Dr. Roski said he failed to find any correctable lesions in her low back. This seems to indicate she may have lesions but none that were surgically correctable. No doctor suggested surgery as an answer. Dr. Roski opined a 5 percent permanent impairment to claimant's body as a whole per the AMA Guides for her low back injury. Dr. Robb opined a 15 percent temporary partial impairment of the function of claimant's back but indicated a final value would be 7 to 10 percent of claimant's body as a whole. Dr. Robb's evaluation was in October 1989 (Jt. Ex. 7, p. 5). Dr. Robb seems to indicate claimant has not carried out an exercise program to maintain good muscle tone to retain good mobility in her back. Dr. Robb indicated a program of swimming done on a graduated basis will result in restoration of much of the mobility and may even lessen claimant's pain. Of course, this is speculative. The undersigned observed claimant often during her testimony and at times when she was off the witness stand and on occasions when she did not likely know she was being observed. Claimant appeared to be in considerable pain and discomfort. The undersigned believes her pain is real and considerable. It is understandable that a person in extreme pain does not have the incentive to fight pain to do recreational activities, particularly with no guarantee of relief. It doesn't appear the scar tissue will disappear and the doctor seems to indicate this is a causation of pain. Claimant appears very active now, working 30 hours per week, caring for three children, and obviously needing to work to help support the family along with her husband. Claimant emphasized she wanted to work 40 hours per week before her injury but can hardly stand to work her current 30 hours. Defendants contend claimant injured her back picking up a sack of laundry in March 1988. Claimant testified she was having problems with her back catching. Claimant said she was doing laundry work on March 15, 1988 when she bent down to pick up a sock and her back caught and she was unable to get back up. Dr. Herzberger mentioned in a March 24, 1988 letter (Jt. Ex. 6, p. 3) that claimant said she was lifting a sack of laundry when she experienced pain and could not straighten out. Claimant denied she was lifting a sack but said she was picking up a sock. The undersigned finds this is of no real significance as claimant had been having trouble from her original February 1986 injury and this March event was the result of her February 1986 low back injury. The Medical Associate records on March 15, 1988 (Jt. Ex. 5, p. 8) reflect this same instance and reflects "this is a recurrence of her old injury." When claimant was testifying, the undersigned had to ask a question for clarification. In other words, did claimant say sack or sock. This was before the undersigned knew of the ultimate contentions of defendants, which was later brought out in the cross-examination. The undersigned believes claimant's version of this March 15, 1988 incident. Claimant was off work again beginning March 15, 1988 through January 15, 1989. The undersigned finds claimant incurred the above second healing period as a result of her February 8, 1986 injury. The final question for resolution is the extent of claimant's permanent partial disability. The doctors' opinions as to the extent of impairment have been discussed, in part, above. The undersigned cannot speculate as Dr. Robb, an orthopedic surgeon, did in speculating on October 5, 1989 that claimant's present 15 percent impairment of her back could be reduced to 7 to 10 percent with a program of exercise. The undersigned must accept claimant's current impairment. Dr. Roski, a neurosurgeon, in April 1989, opined a 5 percent impairment to claimant's body as a whole. The undersigned believes the most recent opinion of Dr. Robb is the most accurate considering all the evidence in this case. The undersigned finds claimant has a 15 percent impairment to her body as whole which was caused by her February 8, 1986 work-related injury. Claimant has no real marketable skills other than the skills of a check-out clerk in a department store. Claimant has worked fourteen years in the department store atmosphere since age 16. She has seniority as long as she stays with defendant employer. It is obvious it is to her benefit financially and medically to continue working for defendant employer as long as she can. Claimant is at the top of her income level. It appears with her skills or lack of skills, she can rise no higher in position or income with defendant employer unless there are inflationary increases that may come in time. Defendant employer is to be congratulated for retaining claimant as a worker. It is in their best self-interest to continue to employ claimant as this has a substantial effect on the extent of claimant's industrial disability. Claimant is motivated. She must work to help support her children. The nature of her job is not conducive to helping her get relief from pain. Claimant is on her feet at work 6 hours a day, five days a week with only a 15 minute break each day. Claimant's job requires her to reach and pick up items to run through a scanner and sack. With the seniority claimant has and the income she is at, claimant is a captive employee of this type of industry or merchandising. Claimant's age is in her favor. Claimant had no material medical problems prior to her fall on February 8, 1986. As previously discussed, her March 1988 incident was also the result of her condition resulting from her February 8, 1986 fall. Claimant is making as much money now as she was at the time of her fall. She desired to work 40 hours per week prior to her February 1986 fall but defendant employer did not provide this opportunity. Although there may be a possibility claimant could work 40 per week now, or sometime in the future, claimant contends she is not able to increase her hours due to her injury. Claimant contends that after two hours of work she finds her job becomes unbearable due to pain. It appears a 40 hour week opening came up in March 1988 and claimant was passed over. This belief was supported by Nancy Jones. The undersigned believes this occurrence to be true. Obviously, in March 1988, when this opportunity apparently arose, claimant was not given the opportunity. Claimant was again in the healing period at that time. Loss or no loss of income is one criteria in determining claimant's industrial disability. Taking into consideration all the evidence and criteria to determine claimant's industrial disability, including the criteria specifically discussed above and the other criteria not specifically discussed, the undersigned finds claimant's industrial disability is 25 percent. FINDINGS OF FACT 1. Claimant received a low back injury as a result of her slipping on a wet floor at her place of employment on February 8, 1986. 2. Claimant received a 15 percent permanent partial impairment to the body as a whole as a result of her work-related low back injury on February 8, 1986. 3. Claimant incurred a healing period beginning February 9, 1986 up to May 20, 1986, and a second healing period beginning March 15, 1988 up to and including January 15, 1989, as a result of her work-related injury on February 8, 1986. 4. Claimant has a loss of earning capacity as a result of her February 8, 1986 work-related injury. CONCLUSIONS OF LAW Claimant's low back injury arose out of and in the course of claimant's employment on February 8, 1986. Claimant's 15 percent permanent partial impairment to her body as a whole is causally connected to her work-related injury on February 8, 1986. Claimant incurred a healing period beginning February 9, 1986 up to May 20, 1986, and a second healing period beginning March 15, 1988 up to and including January 15, 1989, as a result of her work-related injury on February 8, 1986 at a weekly rate of one hundred seventy and 47/100 dollars ($170.47). Claimant has a 25 percent industrial disability. ORDER THEREFORE, it is ordered: That defendants shall pay unto claimant healing period benefits at the weekly rate of one hundred seventy and 47/100 dollars ($170.47) for the periods beginning February 9, 1986 up to May 20, 1986, encompassing fourteen point four two nine (14.429) weeks, and the second period beginning March 15, 1988 up to and including January 15, 1989, encompassing forty-three point eight five seven (43.857) weeks, for a total healing period amounting to fifty-eight point two eight six (58.286) weeks. That defendants shall pay unto claimant one hundred twenty-five (125) weeks of permanent partial disability benefits at the rate of one hundred seventy and 47/100 dollars ($170.47) per week beginning January 16, 1989. That defendants shall pay the accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. Defendants have previously paid eighteen thousand forty-eight and 19/100 dollars ($18,048.19) toward healing period benefits and permanent partial disability benefits. That defendants shall pay interest on the benefits awarded herein as set for in Iowa Code section 85.30. That defendants shall pay the costs of this action, pursuant to Division of Industrial Services Rule 343-4.33. That defendants shall file an activity report upon payment of this award as required by this agency, pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 30th day of March, 1990. BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Michael W. Liebbe Attorney at Law 116 E 6th St P 0 Box 339 Davenport, IA 52805 Mr Thomas N. Kamp Attorney at Law 600 Davenport Bank Bldg Davenport, IA 52801 5-1803; 5-1802 Filed March 30, 1990 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER DEBRA J. ESPEY, Claimant, File No. 817763 vs. LUCKY STORES, A R B I T R A T I 0 N Employer, D E C I S I 0 N and NATIONAL UNION FIRE INSURANCE, Insurance Carrier, Defendants. 5-1803 Claimant awarded 25% industrial disability 5-1802 Disability and a second healing period. Page 1 before the iowa industrial commissioner ____________________________________________________________ : MARY VAN SYOC, : : Claimant, : : File Nos. 818013/860684 vs. : 905128/905129 : 905130 FURNAS ELECTRIC COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE : COMPANY and NORTHBROOK : INSURANCE COMPANY, : : Insurance Carriers, : Defendants. : ___________________________________________________________ On March 3, 1989, Mary Van Syoc (claimant) filed five separate petitions for arbitration as a result of the following injuries: File No. Injury Date Carrier 818013 Back 11-9-84 Northbrook 905128 Hands Arms Shoulders 3-13-86 Northbrook 860684 Back, Shoulders 7-8-87 Northbrook 905130 Back, Shoulders 2-23-88 Liberty 905129 Back 5-10-88 Liberty Furnas Electric (Furnas) was identified as employer and Northbrook Insurance Company (Northbrook) and Liberty Mutual (Liberty) were identified as the workers compensation insurers for Furnas (collectively defendants). On October 1, 1991 these matters came on for hearing in Des Moines, Iowa. The parties appeared as follows: the claimant in person and by her counsel Steven Jayne of Des Moines, Iowa and Furnas and Northbrook by their counsel, Jeff Margolin of Des Moines, Iowa and Furnas and Liberty by their counsel, Jon Hoffmann of Des Moines, Iowa. The record in this proceeding consisted of the following: 1. The live testimony of the claimant,and Kathy Adcock. 2. Joint exhibits 1-23. Page 2 3. Claimant's exhibits 1-17. 4. Northbrook Exhibit A. stipulations The parties stipulated to the following matters for all of the files in issue: a. An employer-employee relationship existed between claimant and employer at the time of the alleged injuries. b. The rate of compensation, in the event of an award for each file is as follows: File Gross Weekly Wage Rate 818013 $229.00 $144.06 860684 $332.07 $203.42 905130 $291.20 $179.84 905129 $291.20 $179.84 905128 $275.65 $169.38 For all of these injuries, claimant was single and entitled to one exemption. c. The parties have stipulated that if the providers of medical services testified, the providers would testify that the fees charged were reasonable and defendants are not offering contrary evidence. d. Northbrook is claiming a credit for the following amounts: File No. Rate Total 818013 $144.06 $3601.50 860684 $203.42 $1627.36 e. The parties agree on the amount of costs in these files. The parties have stipulated to the following additional facts in connection with each individual file: 818013, 905128, 860684 The parties agree that if the providers of services testified, they would state that the treatment was reasonable and necessary treatment of the alleged work injuries and the defendants are not offering contrary evidence. Page 3 905129, 905130 If the injuries are found to be the cause of permanent disability, the parties agree that the injuries are injuries to the body as a whole. Issues The issues for resolution in all files are as follows: 1. Whether claimant sustained injuries on the various dates alleged which arose out of and in the course of her employment with Furnas. 2. Whether a causal relationship exists between dmant's claimed injuries and the claimed disability and the nature and extent of any entitlement to benefits, if any. 3. Whether claimant is entitled to medical benefits. 4. Which carrier bears the liability for each injury. Defendants, Northbrook and Furnas have raised an affirmative defense of untimely claim under Iowa Code section 85.26 for file numbers 818013 and 905128. 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 59 years old. At the time of the first injury on November 9, 1984, claimant was 52. At the time of the second injury on March 13, 1986, claimant was 53. At the time of the third injury on July 8, 1987, claimant was 54. Claimant was 55 at the time of the last two injuries. Claimant left high school in the middle of the eleventh grade. She obtained a GED in 1967. Claimant has also taken other course work which includes bookkeeping, typing, sewing, telecommunications operator procedures and emergency medical training. 2. Claimant's work history includes the operation of a general merchandise store in Milo, Iowa between 1965 and 1970, farming with her husband between 1970 and 1978, telecommunications operator for the Decatur County Sheriff Department, and part time work in a locker. Claimant has also operated a sewing machine in a factory setting. In September of 1980 claimant began to work for Furnas as an assembly fabricator. Claimant was laid off from this position in 1981 for economic reasons. She was rehired in 1983. When claimant was recalled she was promoted to the position of inspector. Claimant's job duties included testing switches with various tools requiring her to twist her arms, and hands frequently and repetitively. Additionally, claimant's job duties required her to walk from her work station to the line to pick up and deliver audit lots. The parts that claimant carried weighed about a pound or less. When claimant moved boxes, generally she moved about ten pounds or less. Claimant was also allowed to sit and stand as she needed to perform her work. Page 4 Claimant believed she was in good health when she started to work for Furnas. She said that she was having no problems with her back or knees at the time she started. This testimony is inconsistent with the medical records from Dr. Toriello however. 3. Claimant has suffered prior injuries. In 1953, she was struck by a car and fractured her right wrist, cracked her pelvis and twisted her back. In 1974, a bale of hay fell on claimant's head and neck which resulted in head and neck strain. Claimant was treated in the emergency room and by her family physician. The diagnosis at that time was acute synovitis of the joints of the neck and myositis. Claimant was admitted for cervical traction but there were no long term residuals from that injury. Claimant's medical history includes various surgeries, and childbirths. 4. Claimant suffers from other significant health problems. Claimant had treatment from Dante Toriello, D.O. beginning in 1979 for obesity and arthritis that had been plaguing her for 27 years. In the period between 1979 and November of 1984, claimant was variously diagnosed as having spinal dysfunction, arthritis in her feet, hands, back and neck, degenerative joint disease in the dorsal spine, chronic sinusitis, osteoarthritis throughout claimant's entire body, numbness in her right hand, and degenerative joint disease in the major and minor joints. Claimant also had accompanying pain complaints in her elbows, chest, the dorsal spine, the thoracic spine at T10, shoulders bilaterally, lower extremities bilaterally, the cervical spine, knees, hips bilaterally, and low back. A radiological evaluation of claimant's spine in 1980 and 1981 showed that claimant had degenerative changes of the thoracic spine, calcific density in the region of the upper left lobe which represented either a granuloma or a body island within the clavicle. As a result of these conditions claimant missed work in 1981. During the time period, claimant was treated on a fairly regular basis with acupuncture and medication. Claimant was able to work during the time period except as noted above. 5. On May 30, 1984, claimant reported to Dr. Toriello that she had stumbled while carrying a box of heavy switches and sustained a back injury. This injury is not the subject of any of the files in this dispute. Dr. Toriello treated claimant's pain complaints with medication and acupuncture. Claimant, during the summer of 1984, complained of joint pain and pain all over her body. After treatment, Dr. Toriello concluded that claimant had somatic dysfunction of the cervical, dorsal, and lumbar spine, cephalgia and osteoarthritis in her whole body. Dr. Toriello concluded that there was no permanent disability resulting from the May 1984 injury. Claimant continued acupuncture treatments through the end of August and into September. By October, Dr. Toriello felt that claimant was much improved. Claimant was working during this time period and had received a wage increase in October. 6. On November 9, 1984, claimant suffered the first of the injuries in issue here. Claimant stepped in a hole near Page 5 the back door of the plant and fell and had severe pain in her knee and pain in her back. The injury was reported to Furnas and an accident report was completed. On November 16, Dr. Toriello reported that claimant was released from care for the May 1984 injury. He indicated that claimant had been doing well until the re-injury on November 9, 1984. He found that the injury in November had caused an exacerbation of claimant's cervical, dorsal and lumbar spine with somatic dysfunction and myofascial pain. He also noted that claimant had degenerative joint disease of the major and minor joints. Claimant then began a new course of acupuncture treatment with Dr. Toriello. Claimant was off work for the rest of the night after her injury but her attendance record shows that she lost no time from this injury. At that time, claimant was making $6.69 plus a $.22 shift differential. 7. Claimant continued to treat with Dr. Toriello during 1985 even though she had returned to work. She was complaining of pain in her low back with radiation down her legs. She also indicated that her left knee hurt. Dr. Toriello continued his treatment with medication and acupuncture. His diagnosis remained the same; an exacerbation of the cervical, dorsal and lumbar spine, somatic dysfunction with myofascial pain and degenerative joint disease in the major and minor joints. Claimant had continuous treatment from Dr. Toriello into April of 1985. He noted that claimant was still complaining of fairly constant pain and recommended an orthopedic or neurological evaluation. By August, Dr. Toriello concluded that claimant had improved by 75%. Claimant did not return to see Dr. Toriello until April 14, 1986. 8. In August of 1985, claimant was examined by Thomas A. Carlstrom, M.D. Dr. Carlstrom did a complete workup on claimant and found that she had spurring at the C5-6 interspace. He noted that there was some calcifications of the anterior longitudinal ligament in the low thoracic spine. He found calcification of the aorta and that claimant had an abnormal fifth lumbar vertebra. Dr. Carlstrom concluded that claimant had diffuse musculoskeletal pain syndrome which partially probably relates to the fall in November of 1984. He also found that claimant had degenerative arthritis which he felt was most likely responsible for most of claimant's extremity complaints. Dr. Carlstorm recommended a course of physical therapy treatment for claimant which was effective in reducing claimant's pain and improving her mobility. At the conclusion of the treatment Dr. Carlstrom assigned half of claimant's disability to the injury and the other half to degenerative arthritis. Dr. Carlstrom found that claimant had a mildly diminished range of motion in her back with mild muscle spasms and a normal neurological exam. At that time, Dr. Carlstrom gave claimant a permanent partial impairment rating of between three and four percent to the body as a whole for the injury of November 4, 1984. 9. On March 13, 1986, claimant suffered her second injury. The accident report filed by claimant indicated that she was putting a switch on a fixture to test it and she had trouble Page 6 with her left arm, fingertips and shoulder. Claimant was seen by Dr. Toriello on April 14, 1986, complaining of bilateral numbness and tingling in her arms, hands and shoulders. Dr. Toriello noted that by history, claimant had indicated that the onset of this condition had been gradual for the past year. At the conclusion of this examination, Dr. Toriello's impression was that claimant was still suffering from an exacerbation of the cervical, dorsal and lumbar spine, somatic dysfunction with myofascial pain and degenerative joint disease in the major and minor joints. Claimant again resumed acupuncture treatment. After the treatment, claimant felt better. In July, claimant saw Dr. Toriello again with increasing complaints of bilateral arm, hand and wrist pain. Dr. Toriello noted that claimant had had these symptoms on and off since March 13, 1986. Claimant could not remember any specific event which brought on an acute episode of pain in the left and right wrist. Dr. Toriello repeated his diagnosis of July 14, 1987 and continued the acupuncture treatment. On July 16, claimant had a statement taken by Carol Oltjen from Overland Park, Kansas where claimant's hand injury and her job duties were discussed at length. Claimant herself made a connection to her job and the injury of March 13, 1986. 10. Through the summer claimant had other pain complaints in her ankles, feet, legs and low back. On October 27, Dr. Toriello did a review of claimant's condition. He noted that she had improvement in her pain, spasms, edema and the restricted range of motion to the upper extremities. The October visit revealed that she was feeling the best she had felt for a long time. On November 12, 1986, Dr. Toriello concluded that claimant primary problems were degenerative joint disease of the bilateral upper and lower extremities, exacerbation of the somatic dysfunction of the cervical, dorsal and lumbar spine and cervical, dorsal and lumbar myofascial pain syndrome. 11. Claimant did not return to see Dr. Toriello until February of 1987. At that time, claimant was suffering from hypertension and glucose intolerance. Dr. Toriello reported on February 26, that claimant was suffering from exogenous obesity, essential hypertension and degenerative joint disease. In this report, there was nothing new regarding claimant's neck, back, knees, shoulders, hands or wrists. For the first half of 1987, claimant did not have treatment for her back, neck or knees from Dr. Toriello. Claimant worked through the period and transferred to the day shift in March. She received a wage increase of $7.06. 12. On July 8, 1987, claimant was taking switches from the packing area for her inspection audit. As she was pulling boxes of switches that were sitting on a skate packing table, she felt pain between her shoulders. This is the third injury suffered by claimant. She went to the Clarke County Hospital where she reported pain in her low back but more significant pain in her neck. Claimant had spasms in her neck and she was diagnosed as having an upper back Page 7 strain. Claimant was taken off work as a result of this injury by Dr. Fotiadis. Dr. Fotiadis then referred claimant for physical therapy at the Clarke County Hospital. 13. Claimant's physical therapy treatment began on July 9, 1987 and continued to July 21, 1987. When claimant returned to work on July 23, 1987 she was not complaining of any marked discomfort after the return. Dr. Fotiadis examined claimant and found that she had full range of motion in her upper back with tenderness upon full extension of the shoulder. He concluded that she was suffering from back pain without radiation and had a medical history of degenerative joint disease. Dr. Fotiadis indicated that claimant could do no heavy lifting or stretching but could return to work. Claimant was off work again for this injury on July 28 and 29. She returned to work on August 1, 1987. 13. On August 24, 1987, claimant saw Dr. Toriello for obesity and hypertension. Claimant complained about her back pain but indicated that she was doing well and was having no problems with her medication. Claimant was seen again by Dr. Fotiadis on September 16, 1987 regarding continuing neck and shoulder spasms. On examination, Dr. Fotiadis noted that her muscle spasms had been minimized and her neurological exam was normal. Claimant was released from Dr. Fotiadis' care on that date. At the end of September, claimant transferred to the third shift and was paid $7.06 per hour with a $.31 per hour shift differential. On October 23, 1987, Dr. Fotiadis concluded in a report on October 23, 1987, that lifting boxes at work on July 8, 1987, probably was the producing cause of claimant's injury. 14 On October 27, 1987, claimant was seen by Dr. Borini regarding the complaints of pain in her arms and wrists and traveling up to her shoulders. Claimant gave a description of her job which included repetitive duties. Claimant told Dr. Borini that her hands had become worse in March of 1986. After his examination, Dr. Borini concluded that claimant musculoskeltal pain was not related to carpal tunnel syndrome. He noted that claimant had longstanding myofascial pain. He thought that claimant had not suffered a permanent functional impairment in her hands at the time of this examination. 15. During the balance of 1987, claimant saw Dr. Fuller, Dr. Toriello and Dr. Fotiadis. Dr. Fuller gave treatment to claimant to relax spasms. Dr. Toriello gave claimant treatment for blood pressure and body tumors on her arms and hips. Finally, Dr. Fotiadis gave treatment for her back and neck discomfort. Dr. Fotiadis ordered spine films on December 8, 1987 and these films showed degenerative spurs on the thoracic spine. Dr. Fotiadis concluded that claimant had evidence of degenerative joint disease in the upper spine and exacerbation of back pain. He referred her to Dr. Toriello for acupuncture treatment as an attempt at chronic pain management. Claimant began treatment with Dr. Toriello for her back pain on December 14, 1987. The treatment regime he recommended was medication and acupuncture. The Page 8 treatment continued through the end December and then through the end of January, 1988. Dr. Toriello attributed claimant's current complaints to the injury in July of 1987. He found that she had post traumatic somatic dysfunction in the cervical and dorsal spine and he recommended continuation of the acupuncture treatment. Claimant continued her treatment with Dr. Toriello during February even though claimant returned to work on February 1, 1988. 16. On February 23, 1988, Dr. Toriello saw claimant before she went to work. He noted she was feeling better overall and that her neck was less painful. His assessment was that claimant was still suffering from a post traumatic somatic dysfunction in the cervical and dorsal spine for the injury suffered on July 8, 1987. He gave her an acupuncture treatment. On February 25, Dr. Toriello's notes reflect that on February 23, claimant had lifted a heavy bundle at work and this had hurt her back again. Claimant was off work from February 24, 25 and 26. Claimant was released to return on February 29, with a restriction of no heavy lifting. Dr. Toriello's impression was that claimant was suffering from spasm and triggerpoint in the left trapezius muscle to the dorsal spine and with tenderness from L2 to L5 attributable to the July 8, 1987 injury. 17. On May 10, 1988, claimant reported suffering chest pains while she was at work. She was diagnosed after having a series of cardiac test at Des Moines General that she had anterior chest wall syndrome. It was also noted that claimant had danced over the weekend. X-rays were taken at the time of her admission to Des Moines General for cardiac assessment. The films revealed that claimant had spondylotic changes with anterior bridging osteophytes in her spine. 18. Claimant was off work from May 16 through May 23. Dr. Toriello agreed with the diagnosis that claimant was suffering from anterior chest wall syndrome. Dr. Toriello found that she had an acute exacerbation of her previous injury of July 8, 1987. Claimant was off work from May 16 through May 24, 1988 as a result of this incident. Claimant was also off work on June 2 through the June 5 as a result of this injury. She was released to return to work on June 6, 1988. Dr. Toriello attributed claimant's time off to a recurrence of the injury suffered on July 8, 1988 19. On June 15, 1988, Dr. Toriello removed claimant from work in order the maximize the benefit from the acupuncture treatment. Claimant was off work on June 16 and then stayed off work through June 20. Claimant was again off on June 29, 30, July 1, with a return on July 5, 1988. All of this time off, Dr. Toriello attributed to the July 8, 1987 injury. Dr. Toriello explained his conclusions in a letter to Robin Henderson on July 25, 1988. He reported that the etiological basis for claimant's recurring complaints to date was the injury of July 8, 1987. He notes that she was injured on February 23, 1988, but this did not cause any new or different complaints. Dr. Toriello felt that claimant's Page 9 care would have continued without the event of February 23, 1988. Dr. Toriello reached the same conclusion regarding the event of May 10, 1988. 20. On September 19, 1988, Liberty Mutual denied claimant's claim. Liberty Mutual believed that claimant's problems were related to her original injury in 1987. Liberty Mutual was not on the risk at that time. Liberty's coverage period began November 1, 1987. Northbrook's coverage period ended on October 31, 1987. Claimant continued to treat with Dr. Toriello through October and into November of 1988. On November 12, 1988, Dr. Toriello noted that claimant was again having pain in her hands, arms, shoulder and neck while she was working at her job. His impression remained the same and the treatment regimen also remained the same. On November 21, 1988, Dr. Borini prescribed bilateral wrist splints for claimant to relieve pain in her wrists. 21. In 1989, claimant began to see Dr. Toriello on a monthly basis. By March, claimant was reporting she felt terrible. She hurt from her neck to her knees and was having difficulty sleeping. Claimant was given a release to return to work on March 7, 1989, with a restriction of avoiding excessive walking. Dr. Toriello did not attribute this condition to claimant's prior work injuries. In June, claimant was seen by Dr. Fotiadis who recited a history of rheumatoid arthritis and suggested a lupus type disorder. He noted that claimant was still having trouble with her joints and had tenderness and stiffness throughout the major and minor joints. Claimant reported having pain in her hips and her knees. Dr. Fortiadis concluded that claimant was suffering rheumatoid arthritis that was mildly symptomatic. 22. Since the acupuncture treatments were not being successful, claimant was referred to Dr. Kenny who saw claimant on June 20, 1989 and July 13, 1989. He recited a history of joint swelling and tenderness with a severe bout in 1987. He noted that claimant has a 47 year history of intermittent swelling, inflammatory joint disease for seven years with involvement of her hands, elbows, shoulder, neck, hips, ankles and feet. After his examination, his impression was that claimant was suffering from inflammatory arthropathy, seronegative rheumatoid arthritis, hypertension, high cholesterol, high triglycerides, and osteoarthritis of the hands and thoracic spine. 23. At the end of June, Dr. Toriello directed a letter to Furnas Electric which gave a date of June 10, 1989 as the beginning date of claimant's chief complaint of pain involving bilateral lower extremities and the cervical, dorsal and lumbar spine. He noted that claimant was suffering from exacerbation of pain in her knees. Claimant was given a restriction of no excessive walking for this condition. This condition was not linked to any of the injuries at issue here, however. 24. Claimant continued to treat with Dr. Toriello through August and September. Claimant began to complain regularly about her left knee on September 26. She noted that her Page 10 knee was popping and giving way. Dr. Fortiadis examined her knee and found that there was left knee pain resulting from an arthritic process. He felt that claimant was suffering from degenerative joint disease in the knee. 25. In October of 1989, claimant again hurt her upper back at work while she was using a torque wrench. Since this incident claimant has been in constant pain. However, this injury has not been identified as part of the complex of injuries that claimant is complaining about in the files in issue here. Claimant was taken off work for a short period of time due to pain in her upper back. She was seen by Dr. Honeywell and Dr. Fortiadis. Dr. Fortiadis concluded that claimant had a back strain with a recent exacerbation at work. Dr. Honeywell concluded that she had acute somatic musculoskeletal dysfunction of the spine and a torn dorsal ligament. Claimant returned to work on October 16, 1989. 26. On November 22, 1989, Dr. Honeywell gave claimant a restriction of lifting no more than 15 pounds above her head. Claimant was returned to work with a gradual increase in her work hours during December. On December 22, 1989, Dr. Honeywell took claimant off work indefinitely due to the ongoing problem in her spine. 27. Beginning in January 1990, claimant was reporting pain in her left knee. Dr. Honeywell concluded that claimant's left knee problem was now causing a total disability. X-ray films showed that claimant was suffering from osteoarthritic degenerative changes in the left knee. This condition eventually resulted in a total left knee replacement at Mayo Clinic. However, no physicians have causally connected this injury to claimant's work. When claimant was evaluated at Mayo Clinic, the initial impression was muscular back pain, degenerative disease in the knee, with claimant's obesity considered a huge factor in the degenerative knee disease and probably a factor in the muscular back pain and hypertension. 28. On February 1, 1990, Dr. Johnson did an evaluation of claimant's low back pain, left knee pain and right arm pain. He recited claimant's history of injuries including the 1984 injury where claimant reported that she fell and hurt everywhere. At the conclusion of his examination, Dr. Johnson concluded that claimant was suffering from myofascial pain and degenerative joint disease of the left knee. Dr. Johnson did not assign any functional impairment ratings to claimant's conditions and he did not attribute any of claimant's current problems to any work injuries. 29. In the meantime, claimant's counsel sent a letter to Dr. Carlstrom regarding the summary of a conference that Mr. Jayne had with Dr. Carlstrom. Dr. Carlstrom concluded that based on his last examination in August of 1985, claimant had a five percent permanent partial impairment to the body as a whole as a result of the incident on November 9, 1984. Dr. Carlstrom prepared his own letter on May 10, 1990 and concluded the 1984 incident should be considered the cause of her current discomfort. He felt that claimant had Page 11 sustained a five percent partial impairment. 30. Claimant returned to Mayo Clinic on September 25, 1990 with complaints of chronic neck and back pain. She indicated that she had improved and that she was ready for a work capacity evaluation. Her work capacity evaluation was performed on September 27, 1990. The work capacity evaluation indicated that claimant had low endurance, decreased tolerance for weight handling, decreased postural tolerance for sitting and standing and decreased body mechanics for heights below 24 inches. Claimant could work for four hours per day alternating sitting and standing activities and gradually increase her work time. She could tolerate occasional weight handling of between five and ten pounds and she was unable to work below 24 inches from the floor due to back and knee problems. Claimant's work level was sedentary and she was unable to twist, squat, and climb stairs. None of these restrictions were causally connected to injuries that claimant suffered at work by any of the physicians at Mayo Clinic. 31. In 1991, claimant was evaluated by Dr. McGuire. Dr. McGuire concluded that claimant had obvious degenerative changes that have existed for ten years. Dr. McGuire found that claimant's pain history had an unclear etiology. From his review from the medical records, Dr. McGuire could find no physician that had specifically identified the source of claimant's ongoing pain. He felt that claimant was out of condition and placed minimal restrictions on her and would assign minimal disability ratings since pain was the primary complaint. 32. On July 15, 1992, claimant was given a release to return to work by Dr. Honeywell. In the meantime, claimant had arranged to have her right knee replaced due to osteoarthritic changes and was currently off work due to that surgery at the time of the hearing in October. 33. Claimant has identified various medical bills that remain outstanding as a result of the injuries she has suffered. These amounts are reflected in claimant's exhibit 17. 34. Currently, claimant is better than she was in 1987 and no doctor has recommended surgery for her back. Claimant has not had any problems with her chest pains since May of 1988. The symptoms in her upper extremities have also improved. Claimant is still able to dance and she dances at least once a week for at least 2-3 hours. Claimant likes to travel and can travel by car and has done so. Claimant plans to work until retirement age and she has not looked for other work. The hardest work claimant does now is checking the torque on some screws to bringing them up to a 50 inch pound minimum. Claimant uses a torque gun to do this work. Claimant is able to do most of her jobs currently and she has no plans to take on any different duty or a different job in the plant. Claimant was considered a good employee and Furnas has accommodated claimant regarding her restrictions and her continuing employment with Furnas. Page 12 Claimant is still a Furnas employee. 34. Claimant bid for several other jobs during the time between November 1984 and March 10, 1989. She was not awarded any of these other positions. The reasons that claimant was not given any of these positions are not related to her disability resulting from the work injuries. CONCLUSIONS OF LAW , 1 Iowa Industrial Comm'r Dc. No. 3, 529, 534-535 (1985). In this instanc, claimant has sustaind vry littl industrial loss attributabl to ths injuris. Aftr both incidnts, and th rcurrncs, claimant was abl to rturn to th sam job ithr at th sam rat of pay or with an incras. Th vidnc is not complling on th point that claimant's disabilitis prvntd hr from sking othr work in th plant. Furnas accommodatd claimant's rstriction of no havy lifting. Morovr, Furnas has continud to accommodat claimant's ongoing halth problms to prmit claimant's continud mploymnt. Claimant has not lookd for othr work outsid Furnas and intnds to rturn to Furnas aftr sh rcovrs from hr scond kn surgry. Morovr, claimant's most significant rstrictions hav occurrd aftr th injuris in issu hr. Th mdical vidnc suggsts that claimant's othr halth problms wr not attributabl to hr work injuris. Dr. Kinny found that claimant's ovrriding condition was attributabl to inflammatory arthropathy, srongativ rhumatoid arthritis, hyprtnsion, high cholstrol, high triglycrids, and ostoarthritis of th hands and thoracic spin. Th xacrbation suffrd on Octobr 2, 1989 and th subsqunt kn surgry rsultd in significant rstrictions from Mayo Clinic and Dr. Honywll and a rating of som sort from Dr. Fotiadis. Non of claimant's trating physicians linkd ths conditions to th work injuris in issu hr howvr. This viw was confirmd by Dr. McGuir who flt that claimant had minimal disability as a rsult of th work rlatd injuris. Basd upon th forgoing factors, all of th factors usd to dtrmin industrial disability, and mploying agncy xprtis, it is dtrmind that claimant sustaind a fiv prcnt industrial disability for th injury suffrd on Novmbr 9, 1984 and claimant suffrd a fiv prcnt industrial disability for th injury suffrd on July 8. 1987 and th rcurrncs of th injury in Fbruary 23, 1988. B. Haling Priod Haling priod bnfits may b charactrizd as that priod during which thr is a rasonabl xpctation of improvmnt of a disabling condition and nds whn maximum mdical improvmnt is rachd. Armstrong Tir and Rubbr Co. v. Kubli, 312 N.W.2d 60, 65 (Iowa Ct. App. 1981). In discussing th concpt of haling priod as contmplatd by Iowa Cod Sction 85.34(1) (1991) th Kubli Court obsrvd that rcupration rfrs to that condition in which haling is complt and th xtnt of th disability can b dtrmind. Kubli, 312 N.W.2d at 65. Th haling priod gnrally trminats at th tim th attnding physician dtrmins that th mploy has rcovrd as far as possibl from th ffcts of th injury. Kubli, 312 N.W.2d at 65. Whn a prmannt rating is givn, it indicats that th physician dos not xpct th claimant to improv and this conclusion mts th critria of Iowa Cod sction 85.34(1) and Thomas v. William Knudson & Sons, Inc., 349 N.W.2d 124, 126 (Iowa App. 1984). A haling priod will also nd whn claimant rturns to work. S, Iowa Cod Sction 85.34(1)(1991). A haling priod can b intrmittnt. Risslman v. Carroll Halth Cntr, III Iowa Industrial Commissionr Rports 209 (App. 1982); Mir v. Cran Siding & Roofing Co., IV Iowa Industrial Commissionr Rports 242 (App. 1984).For th injury of Novmbr 9, 1984, claimant missd no work according to hr attndanc rcord. Consquntly sh is not ntitld to any haling priod bnfits. Claimant is ntitld to haling priod bnfits for th injury suffrd on July 8, 1987. Claimant had a priod of haling aftr this injury, thn sh rturnd to work. Thraftr, with th rcurrncs, claimant had rcupration priods and work priods. Ths priods rprsnt intrmittnt haling priods sinc th injury causd claimant to suffr a prmannt disability. Th dats and tim for th haling priod bnfits ar as follows:July 9-1987 to July 23, 1987 2 wksJuly 28-29, 1987 2 daysDc. 28, 1987-Jan. 31, 1988 4.8571 wksFb. 4, 1988 1 dayFb. 24-28, 1988 4 daysMay 16-24, 1988 1.1428 wksJun 1-Jun 6, 1988 6 daysJun 15-16, 1988 2 daysJun 29-July 4, 1988 5 daysTOTAL: 10.8570 wksD. Commncmnt dat of prmannt bnfits. For th injury suffrd on Novmbr 9, 1984, th commncmnt dat of prmanncy bnfits is Novmbr 9, 1984. Claimant lost no tim from work for this injury so prmanncy bnfits bgin on Novmbr 9, 1984. For th injury suffrd on July 8, 1987 th convrsion dat is th nd of claimant's first haling priod and a rturn to work on August 1, 1987. S, Iowa Cod Sction 85.34(1)(1991). 3. Whthr claimant is ntitld to mdical bnfits, including a dtrmination of causal connction to th work injury and th causal connction of this condition to a work injury. Claimant contnds that sh is ntitld to mdical bnfits for th injuris suffrd btwn Novmbr 4, 1984 to May 10, 1988. Dfndants contnd that th mdical car was not rlatd to th work injury in fils 818013, 905128 and 860684 and that th statut of limitations has run rgarding any claims in fil numbr 905128. Dfndants also argud in fils 905129 and 905130 that th xpnss incurrd for mdical tratmnt wr not rasonabl and ncssary to trat th work rlatd condition. Dfndants also urg in fils 818013, 905128, and 860684 that claimant's mdical car was not authorizd. Th claimant has th burdn of dmonstrating that th mdical srvics obtaind wr rlatd to th injury in ordr to hav th xpnss rimbursd or paid. Auxir v. Woodward Stat Hospital, 266 N.W.2d 139, 144 (Iowa 1978). Morovr, th claimant has th burdn of showing that th mdical srvics obtaind wr rasonabl and ncssary to trat th work rlatd injury. Car is rasonabl if it includd car that is ncssary to diagnos th condition, vn though th diagnosis ultimatly shows th complaint to b non work rlatd. Pot v. Mickow Corporation, Fil No. 694639, Slip op. (Iowa Ind. Comm'r Rv-Ropn Jun 17, 1986). If th claimant offrs tstimony that a disputd mdical bill is rlatd to th tratmnt of a work injury and th tstimony is unrfutd, th mdical bill will b allowd. Dowll v. Waglr, Fil No. 880145, Slip Op. (Iowa Ind. Comm'r App. Novmbr 26, 1991). Rgarding th statut of limitation qustion in fil numbr 905128, as it applis to mdical bnfits, Iowa Cod 85.26 provids that an action must b commncd within two yars of th injury dat to obtain bnfits undr Chaptr 85 and Chaptr 86. Iowa Cod Sction 85.26 gos on to provid howvr, that if th mployr fails to fil a dnial of liability within 6 months of th injury dat, thr is no statut of limitations for a claim for mdical bnfits. Consquntly, vn though claimant cannot rcovr wkly bnfits for hr injury of March 13, 1986, claimant can rcovr mdical bnfits if sh is abl to show that th injury aros out of and in th cours of hr mploymnt with Furnas and Furnas faild to fil a dnial of liability with th Commissionr within 6 months of th injury. Th points of law rgarding causation ar st out in an arlir part of this dcision and ar qually applicabl hr. In this instanc, it is clar from th mdical rcords of Dr. Torillo, and Dr. Boarini that thy flt that claimant's carpal tunnl syndrom was probably rlatd to hr work. Claimant did rptitiv work in hr job as an inspctor. A rviw of th fil and th vidnc offrd by th dfndants shows that no dnial of liability was fild for this claim until th answr was fild in 1989, wll aftr th tim Furnas was rquird to dny liability for th work injury. Consquntly, Furnas is rsponsibl for th bills rlatd to this injury. Ths bills includ th bill for Psychiatry Associats and Hains Prosthtics, Inc. Th bill for th East Ds Moins Clinic covrs a priod of narly thr yars from Dcmbr 14, 1987 to Sptmbr 30, 1989. Th tratmnt from Dcmbr 14, 1987 through August 20, 1988 wr rlatd to th July 8, 1987 injury and th rcurrncs of th injury on Fbruary 23, 1988 and May 10, 1988. Dr. Torillo clarly links this tratmnt in his nots and lttrs during this tim priod and in th priodic billings h prpard for dfndants. Th cost of ths tratmnts will b allowd. Th xpnss with Ds Moins Gnral and Havy Mdicin wr for tsts rlating to claimant's chst pains in May of 1988. This is an instanc whr th tsts wr don to pinpoint th sourc of claimant's complaints and to dtrmin if th injury was work rlatd, dfndants ar liabl for th cost of th tsts. Pot v. Mickow Corporation, Fil No. 694639, Slip op. (Iowa Ind. Comm'r Rv-Ropn Jun 17, 1986). Aftr th tsts wr compltd, it was dtrmind that th chst pains wr rlatd to claimant's injury on July 8, 1987 and th dfndants ar liabl for ths bills. Aftr August 20, 1988 claimant had tratmnt with Dr. Torillo through April 1, 1989. Dr. Torillo did not indicat what th tratmnt was for or that it was rlatd to any of claimant's prior injuris. Consquntly, claimant has faild to carry hr burdn rgarding ths chargs with th East Ds Moins Clinic. On Jun 10, 1989, claimant again sought tratmnt for bilatral lowr xtrmitis pain and pain in th crvical dorsal and lumbar spin from th East Ds Moins Clinic. Dr. Torillo did not rlat ths conditions to a work rlatd injury. Claimant did not providd any tstimony that th tratmnts aftr Jun 10, 1989 wr rlatd to hr work injury. Consquntly sh has faild to sustain hr burdn of proof for th rmaining tratmnt rcivd from Jun 10, 1989 to Sptmbr 30, 1989 and ths xpnss will not b allowd. Dfndants hav also raisd an issu of authorizd tratmnt in fils 818013, 905128, and 860684. An mployr has no right to dirct car whn th mployr dnis liability for th claim. Picktt v. Davnport Luthran Hom, Fil No. 760739, Slip Op. Iowa Ind. Comm'r App. Octobr 30, 1987) (Dfndants may not dny liability and dirct th cours of claimant's mdical tratmnt); Kindhart v. Fort Ds Moins Hotl, I Stat of Iowa Industrial Commissionr Dcision 611 (Appal Dcision 1985)(Whr th mployr dnis liability for a work-rlatd injury, th mployr loss th right to slct th car which th injurd workr rcivs). In this instanc, dfndants did not admit liability for any of th injuris in issu and put th qustion in issu for dcision at th tim of th haring. Dfndants cannot scap liability for mdical xpnss now by urging that claimant was not authorizd to sk tratmnt. 4. Which carrir bars th liability for ach injury. In allocating th burdn of loss for ach of th carrirs, th mdical vidnc and th dats of thir covrag will control vnts of initial injury, aggravation or rcurrnc of th arlir injury. S, 4 A. Larson, Workmn's Compnsation Law, Sction 95.11 (1990). In this instanc, thr of th injuris occurrd during th priod of Northbrook's covrag. Th chang in covrag occurrd on Octobr 1, 1987. By virtu of its covrag priod, Northbrook has th risk for th first thr injury dats. Librty contnds that Northbrook has th risk on th last two injuris as wll. Th mdical vidnc supports this contntion. Librty dnid covrag on th last two injuris basd on information containd in Dr. Torillo's mdical rcords. Dr. Torillo indicatd in a lttr to Robin Hndrson on July 25, 1987 that th original insult of th accidnt of July 8, 1987 was th tiological basis for claimant's rcurring complaints. Dr. Torillo wnt on to not that whil claimant r-injurd hr back following havy physical activity on Fbruary 23, 1988, this incidnt had not causd any nw and or diffrnt complaints. Claimant had an xacrbation to hr xisting complaints of pain, spasm and painful rang of motion involving th crvical and dorsal spin and hr shouldrs and arms. Dr. Torillo also concludd that claimant's car would hav continud without th vnt of Fbruary 23, 1988. Thr is no contrary mdical vidnc to suggst that th injury was an aggravation of a prxisting condition. Consquntly, claimant suffrd a rcurrnc of th injury of July 8, 1987 and th loss associatd with th incidnt of Fbruary 23, 1988 will b assssd to Northbrook. Dr. Torillo rachd th sam conclusion with th injury of May 10, 1988. His mdical rcords rflct that on Jun 13, 1988, basd on history givn by claimant and th subjctiv and objctiv information h obtaind in th physical xamination that this chst pain was an acut xacrbation of hr prvious injury of July 8, 1987. Th billing statmnt snt on Jun 14, 1988 indicatd that all of th tratmnt that claimant had rsultd from th injury of July 8, 1987. Dr. Torillo considrd this incidnt as a rcurrnc of th injury of July 8, 1987. Northbrook has not pointd to any othr vidnc in th rcord whr a physician concludd that claimant had suffrd a nw injury on May 10, 1988. Claimant had an acut xacrbation of th July 8, 1987 injury. As a rsult, Northbrook is liabl for th compnsation and mdical bnfits associatd with this injury. ordrTHEREFORE, IT IS ORDERED:1. Furnas and Northbrook shall pay to claimant th amounts of haling priod bnfits at th rat of two hundrd and thr and 42/100 dollars ($203.42) pr wk for th tim priods as thy appar blow:July 9, 1987 to July 23, 1987 2 wksJuly 28-29, 1987 2 daysDc. 28, 1987-Jan. 31, 1988 4.8571 wksFb. 4, 1988 1 dayFb. 24-28, 1988 4 daysMay 16-24, 1988 1.1428 wksJun 1-Jun 6, 1988 6 daysJun 15-16, 1988 2 daysJun 29-July 4, 1988 5 daysTOTAL: 10.8570 wksAs ths bnfits hav accrud, thy shall b paid in a lump sum togthr with statutory intrst thron pursuant to Iowa Cod sction 85.30 (1991).2. Furnas and Northbrook shall pay to claimant prmannt partial disability bnfits in th amount of fiv prcnt (5%) for th injury to claimant's back and lg occurring on Novmbr 4, 1984 at th rat of on hundrd forty-four and 6/100 dollars ($144.06) pr wk with paymnt commncing on Novmbr 4, 1984. Additionally, Furnas and Northbrook shall pay to claimant prmannt partial disability bnfits in th amount of fiv prcnt (5%) for th injury to claimant's back occurring on July 8, 1987 togthr with subsqunt rcurrncs on Fbruary 23, 1988 and May 10, 1988, at th rat of two hundrd and thr and 42/100 dollars ($203.42) pr wk. As ths bnfits hav accrud, thy shall b paid in a lump sum togthr with statutory intrst thron pursuant to Iowa Cod sction 85.30 (1991).3. Furnas and Northbrook shall hav a crdit in th amount of fiv thousand two hundrd twnty-ight and 86/100 dollars ($5,228.86) against any amounts owd. 4. Claimant is ntitld to th paymnt of all th mdical bills idntifid in Exhibit 17, xcpt for th tratmnts rndrd by th East Ds Moins Clinic aftr August 20, 1988.5. Librty Mutual and Furnas shall hav no liability for any of th injuris includd in this dcision.6. Th costs of this action shall b assssd to Furnas and Northbrook pursuant to rul 343 IAC 4.33.7. Furnas and Northbrook shall fil claim activity rports as rquird by rul 343 IAC 3.1.Signd and fild this ____ day of Dcmbr, 1992.________________________________ELIZABETH A. NELSONDEPUTY INDUSTRIAL COMMISSIONERCopis To:Mr Stvn C JaynAttorny at Law5835 Grand AvnuSuit 201Ds Moins Iowa 50312Mr Hlmut A MullrAttorny at LawRR 5Oscola Iowa 50213Mr E J KllyMr Jff MargolinAttornys at LawTrrac Cntr St 1112700 Grand AvnuDs Moins Iowa 50312Mr Richard G BookAttorny at Law500 Librty BuildingDs Moins Iowa 50309 Page 1 5-1106;5-1402.30;5-1402.60 5-1802;5-1803;2402;2505 Filed December 23, 1992 ELIZABETH A. NELSON before the iowa industrial commissioner ____________________________________________________________ : MARY VAN SYOC, : : Claimant, : : File Nos. 818013/860684 vs. : 905128/905129 : 905130 FURNAS ELECTRIC COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE : COMPANY and NORTHBROOK : INSURANCE COMPANY, : : Insurance Carriers, : Defendants. : ___________________________________________________________ 5-1106, 5-1402.30 Claimant proved by a preponderance of the evidence that she suffered five injuries while at work. Three injuries represented a primary injury and then two recurrences of the injury. 5-1402.60 Claimant proved that all of the medical treatment that she received except for treatment after August 20, 1989 was related to her work injuries. 5-1802 Claimant was awarded intermittent healing period benefits for the time periods that she was off work. 5-1803 Claimant, a 59 year inspector for Furnas, with a 47 year history of swelling in the joints, obesity, hypertension, degenerative joint disease in the major and minor joints was awarded five percent industrial disability for an injury on November 4, 1984 and five percent industrial disability for an injury on July 8, 1987 and recurrences on February 23, 1988 and May 10, 1988. Claimant had a .5 to 1 percent functional impairment and no restrictions from the first injury. She returned to the same job with the same pay or Page 2 an increase. Claimant had no functional impairment as a result of this injury and the recurrences. Claimant did have a restriction of no heavy lifting after the injury on July 8, 1987. She returned to work after each incident to the same job for the same or increased wage and her employer accommodated her restriction. Claimant has a high school education and a varied employment history. 2402 Defendants raised a statute of limitations defense regarding a cumulative trauma injury on March 13, 1986. Claimant did not file her petition until March 3, 1989. Defendants made no payments of benefits on this injury. Claimant filed an injury report on March 13, 1986, and the condition was diagnosed as carpal tunnel syndrome on October 27, 1988. Claimant clearly knew the condition was work related as early as March 13, 1986 and she herself was making the linkage after she sought treatment for the condition in July of 1986. Relying on Oscar Mayer Foods Corp. v. Tasler, 483 N.W.2d 824, (Iowa 1992) and the medical records from Dr. Toriello, claimant's condition manifested itself on April 14, 1986, when she first sought treatment for the condition. Claimant failed to file a timely petition and she is not entitled to weekly benefits for this injury. 2505 Claimant is entitled to medical benefits for the injury on March 13, 1986 since Furnas failed to file a denial of liability within 6 months of the date of the injury. The denial was filed with the answer to the petition in 1989. BEFORE THE IOWA INDUSTRIAL COMMISSIONER DARRELL L. LEAMING, Claimant, FILE NO. 818155 VS. A R B I T R A T I 0 N TOM BORNHOLTZ d/b/a SIOUX SALES COMPANY, D E C I S I 0 N Employer, and CITIZENS SECURITY MUTUAL INSURANCE, Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Darrell L. Leaming, claimant, against Tom Bornholtz d/b/a Sioux Sales Company, employer (hereinafter referred to as Sioux Sales), and Citizens Security Mutual Insurance, insurance carrier, for workers' compensation benefits as a result of an alleged injury on February 27, 1986. On January 20, 1988, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. Oral testimony was received during the hearing from claimant and the following witnesses: Judith Leaming and Harry Bornholtz. The exhibits received into the evidence at the hearing are listed in the prehearing report except as otherwise stated below. According to the prehearing report, the parties have stipulated to the following matters: 1. On February 4, 1986, claimant received an injury which arose out of and in the course of his employment with Sioux Sales. (February 27, 1988 was first date of disability). 2. Claimant's rate of weekly compensation in the event of an award of weekly benefits from this proceeding shall be LEAMING V. TOM BORNHOLTZ d/b/a SIOUX SALES COMPANY Page 2 $264.58. 3. Claimant is only seeking temporary total disability or healing period benefits from March 1, 1986 through August 12, 1986; August 22, 1986 through March 1, 1987; and, March 3, 1987 through May 11, 1987. Defendants agree that claimant was not working during these periods of time. 4. If the injury is found to have caused permanent disability, the type of disability is an industrial disability to the body as a whole. 5. The medical bills submitted by claimant at hearing were fair and reasonable and causally connected to the medical condition upon which the claim herein is based but that the issue of their causal connection to any work injury remains an issue to be decided herein. Taken under advisement at hearing were objections to exhibits 7A and defense exhibit A. Defendants object to the opinion letter of Richard Adams, M.D., exhibit 7A, on the grounds of lack of foundation, competency, relevancy and, under Chapter 17A, Code of Iowa, as not being the type of evidence a reasonably prudent person would rely upon in the conduct of his/her important affairs. This objection is overruled. The heresay nature of the evidence was overcome by claimant's compliance with agency rules regarding service of such evidence upon defendants before the hearing. Defendants had ample opportunity to cross-exam Dr. Adams prior to hearing. With reference to competency and foundation, it must be noted that the evidence of Dr. Adams' background and qualifications to render a pathology report was lacking but that it is also noted that Dr. Adams is a pathologist at the Iowa Methodist Medical Center in Des Moines, Iowa. Dr. Carlstrom, whose LEAMING V. TOM BORNHOLTZ d/b/a SIOUX SALES COMPANY Page 3 qualifications as a neurosurgeon were not questioned by defendants, is a staff doctor at the Iowa Methodist Medical Center in Des Moines, Iowa. In Dr. Carlstrom's deposition testimony he found no problem with Dr. Adams' qualifications in giving weight to his opinions. Furthermore, written reports from staff pathologists certainly are the type of evidence that physicians rely upon in the course of their treatment of patients at the Iowa Methodist Medical Center and certainly the type of evidence permissible under Iowa Code section 17A.14. Therefore, exhibit 7A is received into the evidence. Claimant objects to defense exhibit A on the same grounds raised by defendants in their objections to exhibit 7A. However, this objection is sustained and exhibit A will be excluded from the evidence. The exhibit appears to be nothing other than a summarization or paraphrasing of some of the medical evidence in this case. As it is not complete as to all of the medical evidence, it frankly is not reliable and should be excluded for the reasons stated by claimant in his objections. Therefore, exhibit A is excluded from the evidence. However, despite being excluded from the formal evidence, the content of the exhibit was reviewed and considered in the same manner as would be "argument" in the same fashion as defendants' post-hearing brief and summarization of evidence was considered in arriving at this decision. ISSUES The parties submitted the following issues for determination in this proceeding: I. Whether there is a causal relationship between the work injury and the claimed disability; II. The extent of weekly disability benefits to which claimant is entitled; and, III. The extent of claimant's entitlement to medical benefits under Iowa Code section 85.27. LEAMING V. TOM BORNHOLTZ d/b/a SIOUX SALES COMPANY Page 4 SUMMARY OF THE EVIDENCE The following is a summary of evidence presented in this case. For the sake of brevity, only the evidence most pertinent to this decision is discussed. Whether or not specifically referred to in this summary, all of the evidence received at the hearing was considered in arriving at this decision. As will be the case in any attempted summarization, conclusions about what the evidence offered may show are inevitable. Such conclusions, if any, in the following summary should be considered as preliminary findings of fact. Claimant testified that he has worked for Sioux Sales since 1984 as a traveling salesman of law enforcement equipment and goods. Claimant continues in this work activity at the present time. Claimant resides in Des Moines and each week he drives his automobile to all areas of the state and adjacent areas of bordering states in the course of his sales work. Claimant testified that he is successful in this work and to date he earns approximately the same amount of money he earned at the time of the work injury in this case. Claimant's supervisor, the owner of Sioux Sales, testified that claimant has been a good salesman for his company and remains to be so at the present time. The facts surrounding the work injury are not in real dispute. Claimant testified that on February 4, 1986, he was on the road in the course of his sales activity. Claimant testified that on the evening of February 4, 1986, while walking from his motel room to the motel office to cash a check prior to going out for evening supper, he slipped and fell on ice on the motel sidewalk striking the upper left side of his forehead, cutting his scalp just above the left eyebrow. Claimant said that he did not lose consciousness and sought assistance from motel employees who suggested that he seek medical attention. Claimant said that he then took a cab to the local hospital and received four stitches or sutures to close the wound in his head. Claimant said that after this treatment he returned to the motel without further incident. However, claimant stated that he did not work the following day due to head pain from the incident. In his deposition testimony of 1986, claimant stated that he could not recall any further problems at the time his family doctor removed the sutures a week later. However, in his deposition of December, 1987, claimant stated that he did have headaches after the incident and took aspirin for the pain. At hearing claimant testified that he continued to have head pain after the fall but he continued to work. Claimant underwent a physical examination for insurance purposes a couple of weeks after February 4, 1986, conducted by his family physician and no problems were noted. Claimant testified that he had no subsequent falls to his knowledge after the February 4, 1986 incident and no significant falls or head problems before that time. Approximately 20 days later while on another road trip in the Glenwood, Iowa area, claimant testified that he awoke on a Wednesday morning feeling flu-like symptoms. He said that he returned to bed the rest of the day. The next day he stated that he continued to feel ill and personnel at the motel suggested that he seek medical attention. Claimant said that he refused to do so at that time because he did not think the LEAMING V. TOM BORNHOLTZ d/b/a SIOUX SALES COMPANY Page 5 problem was serious and he telephoned his wife that evening. Claimant testified that he could not remember the events of Friday. Claimant's wife testified that she received a call from Sioux Sales on Friday that claimant had not been heard from and that the motel employees were concerned about claimant. ClaimantOs wife then traveled to the motel in Glenwood and found claimant in his room talking incoherently. She transported claimant home and that night she found claimant in the living room of their house picking up dimes off the floor complaining that a cat had knocked them off a table. Claimant's wife explained that they had no cat in the house. Claimant was then transported by his wife to Charter Memorial Hospital and he was admitted for neurological symptoms consisting of gait difficulty, balance and equilibrium disturbances, cognitive defects and generalized weakness. Claimant was then immediately transferred to Mercy Hospital on March 2, 1986. Upon a diagnosis of bilateral endoparenchymnal hemorrhage with subjural hemotoma in the left front of his brain extending across to the right front of his brain, emergency surgery called a bifrontal craniotomy was performed by Stuart R. Winston, M.D., a board certified neurosurgeon. In his report, Dr. Winston stated that he removed excess blood and damaged brain tissue in the front left and right sides of claimant's brain. On March 18, 1986, claimant was able to walk but still experienced gait and memory problems. At that time, claimant was transferred to Younkers Rehabilitation Center at Iowa Methodist Medical Center and placed under the care of William D. degravelles, M.D., and his rehabilitation staff. Between March 18, 1986 and April 11, 1986, claimant underwent occupational, speech, psychological and physical therapy. Claimant said that he could only remember the last day at Mercy Hospital in March, 1986. After his release from Iowa Methodist Medical Center, claimant was treated solely by Steven R. Adelman, D.O., a neurologist. In May, 1986, claimant was expecting to be released to return to work but while talking to a restaurant owner on May 17, 1986, he lost consciousness and fell to the floor and was immediately transported back to Mercy Hospital. Claimant was initially treated at the hospital by Dr. Bakody for what he felt was a toxic level of Dilantin in claimant's blood stream. Claimant had been taking Dilantin, an anti-seizure drug, since his brain surgery. However, Dr. Winston and Dr. Adelman felt that claimant had a "break through" brain seizure as a result of his brain hemorrhage and corrective surgery. Claimant then could not return to work due to a state rule of the Department of Transportation that persons cannot be permitted to drive an automobile within six months of a brain seizure. In August of 1986, claimant again experienced difficulties. On August 22, 1986, after claimant had returned to work only 10 days he again lost consciousness while making some phone calls at a Casey's store in Mt. Pleasant, Iowa. Claimant was transported to the hospital but only stayed a few hours and he drove home by himself. Dr. Adelman at that time felt that claimant had another brain seizure and again to claimant's dismay, he prohibited driving for another six months. Claimant then remained unemployed during the six months except for a brief period of time he worked as a supply room clerk in a business operated by a friend. Claimant at one time requested Sioux Sales to allow either his wife or his daughter to drive him to his sales routes but this arrangement was refused by Sioux Sales for insurance LEAMING V. TOM BORNHOLTZ d/b/a SIOUX SALES COMPANY Page 6 reasons. Finally, on May 12, 1987, claimant returned to full duty at Sioux Sales and currently remains so employed. Claimant testified that he struck his head and back when he fell to the floor in his two post-operative seizures. On March 9, 1987, claimant was hospitalized for chronic low back strain when he experienced severe low back pain after arising from bed one morning while on a road trip to Waterloo, Iowa. Claimant denied any heavy activity which could have precipitated this back pain and attributed the pain to the falls as the result of the May and August, 1986 seizures. The only physician to render an opinion as to the precise nature and cause of claimant's back problems was Michael A. Disbro, M.D. According to Dr. Disbro, claimant suffers from a compression fracture of the Ll-L2 levels of his spine. Dr. Disbro also believes that it is unlikely that these fractures occurred immediately prior to the March, 1987, hospitalization. However, x-rays taken of claimant's spine after his last seizure fall in August, 1986, were normal and due to these normal x-rays Dr. Disbro opines that the compression fractures in claimant's spine occurred sometime between August 23, 1986 and claimant's hospitalization in March, 1987. Claimant did not report any seizure falls during this period of time to his physicians or at hearing. Claimant denies any back problems prior to the Waterloo incident. The fighting issue in this case was the alleged causal connection between claimant's fall on February 4, 1986 and claimant's brain hemorrhage and corrective surgery. The neurosurgeon who performed the corrective brain surgery,, Dr. Winston, has opined that he does not believe that the fall was related to the events leading up to the surgery. However, upon closer scrutiny in his deposition testimony, Dr. Winston's views were very unclear. He stated that he believes that the condition was caused by trauma from some recent falls but the only history given to him by claimant prior to the surgery was the February 4, 1986 fall. Dr. Winston states as follows in his deposition: A. It was my opinion, based upon the surgical findings, that the fall of 2/4/86 had nothing to do with my surgical findings of the day I operated on the patient, had nothing whatever to do with any of that other information, had strictly to do with what I was looking at. When asked if it were his opinion that there was no causal connection between the fall and the brain hemorrhage, Dr. Winston states as follows: A. Well, I think that's stretching it a point. Because we're talking about several things here, so I'm not sure I can answer your question. It was given -- I was given the impression and made the speculation in my letter of May 12th, 1986 to Doctor Hostetter and sent a copy to Doctor Shreck that if there was in some hematologic mechanism, which I am not an expert in, some kind of traumatic incident that occurred three or four weeks before, and that this set off an abnormality, that then there might have been some credence to having what occurred then three to four LEAMING V. TOM BORNHOLTZ d/b/a SIOUX SALES COMPANY Page 7 weeks later to Mr. Leaming -- that that, in fact, might have been the case. The letter that I reviewed at the request of counsel seemed to indicate that this indeed was the case, and therefore my letter agreeing with that opinion is based on my agreement with someone who has expertise in the area of hematology, which I do not have. Robert R. Schreck, M.D., a hemologist, to which Dr. Winston refers to in the above passages, had examined claimant when he first arrived at Mercy prior to the brain surgery. Blood tests at that time indicated to Dr. Schreck that claimant had a borderline level of factor IX in his blood, a clotting agent. Claimant also had a prior diagnosis of Christmas disease, a form of mild hemophilia from a factor IX deficiency. Dr. Schreck opined initially that the February 4, 1986 fall combined with claimant's blood disorder precipitated the hemorrhage and surgery. Dr. Winston defers to Dr. Schreck as to the effect of claimant's blood disorder on the hemorrhage later in the month of February. However, what was confusing to Dr. Winston was that Dr. Schreck has most recently opined that claimant does not have such a blood disorder. However, despite his change of opinion as to the condition of claimant's blood, Dr. Schreck still maintains that there is a causal relationship between the fall early in February and the events later in February leading up to the brain surgery. He explains in his deposition that there is simply no other possible cause given his medical school training but that he definitely would defer to neurosurgeons on the matter. Claimant's treating neurologist, Dr. Adelman, D.O., clearly opines that the February 4, 1986 fall caused the hemorrhaging in claimant's brain which necessitated the emergency surgery in March, 1986. He also opines that claimant's loss of consciousness in May and August of 1986 were "break through" seizures caused by the original fall and the necessary corrective surgery. Thomas A. Carlstrom, M.D., another board certified neurosurgeon, also issued a causal connection opinion in this case. Dr. Carlstrom testified that he did not examine claimant but he did not feel it necessary to do so to render an opinion in this case. Dr. Carlstrom felt that Dr. Winston's reported surgical findings contained in his records are consistent with a fall several weeks prior to the surgery and that it was his opinion that the February 4, 1986 fall was a cause of the hemorrhaging and brain surgery later in the month. Finally, in December, 1987, Richard Adams, M.D., a pathologist at the Iowa Methodist Medical Center, issued a report of his examination of tissue samples taken from claimant's brain during the March, 1986, surgery. According to Dr. Adams, he found not only evidence of fresh hemorrhage but also "reactive gliosis" which was a finding compatible with a trauma injury several weeks prior to the acute hemorrhaging episode. Claimant testified that although he continued to perform very well in his current sales work at Sioux Sales, he states LEAMING V. TOM BORNHOLTZ d/b/a SIOUX SALES COMPANY Page 8 that he is slower mentally then before and must spend more time on each sales call. Claimant's wife testified that claimant has lost emotional response and that "he does not care about things as much as he did before." The only physician to opine as to any permanent defects from the brain injury was Dr. degravelles who opined from psychological testing that claimant has a 20 to 25 percent permanent partial impairment to the body as a whole under AMA Guidelines as a result of his deficits in affect, behavior, thinking and his potential for restoration. Dr. Adelman states that claimant will likely be on anti-seizure medication all of his life and that it is likely that he will have another seizure in the future. Dr. Adelman explains that if he does have another seizure, he will again be prohibited from driving for a six month period. Claimant continues to complain of back problems and of an inability to lift over 25 pounds. However, he admits that heavy lifting is not a major part of his sales work. Claimant testified that his past employment primarily consisted of sales work over the last 25 years. Before that, claimant was engaged in many jobs primarily of a physical nature such as construction but that he worked for a short period of time as a bartender. Claimant stated at hearing that he is 50 years of age. Claimant did not graduate from high school but received his GED in the navy. LEAMING V. TOM BORNHOLTZ d/b/a SIOUX SALES COMPANY Page 9 The owner of Sioux Sales testified that he is satisfied with claimant's current performance as a salesman and that he has not noticed any change in claimant's ability to do his work since his work injury. Claimant's appearance and demeanor at the hearing indicated that he was testifying truthfully. APPLICABLE LAW AND ANALYSIS I. The claimant has the burden of proving by a preponderance of the evidence that the work injury is a cause of the claimed disability. A disability may be either temporary or permanent. In the case of a claim for temporary disability, the claimant must establish that the work injury was a cause of absence from work and lost earnings during a period of recovery from the injury. Generally, a claim of permanent disability invokes an initial determination of whether the work injury was a cause of permanent physical impairment or permanent limitation in work activity. However, in some instances, such as a job transfer caused by a work injury, permanent disability benefits can be awarded without a showing of a causal connection to a physical change of condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). The question of causal connection is essentially within the domain of expert medical opinion. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion of experts need not be couched in definite, positive or unequivocal language and the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). The weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Furthermore, if the available expert testimony is insufficient alone to support a finding of causal connection, such testimony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish compensability, the injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith, 290 N.W.2d 348, 354. In the case of a preexisting condition, an employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). In the case sub judice, with reference to claimant's brain hemorrhage difficulties, the evidence clearly establishes that he has suffered a permanent impairment to the body as a whole from the hemorrhage and brain surgery in the latter part of February LEAMING V. TOM BORNHOLTZ d/b/a SIOUX SALES COMPANY Page 10 and the first part of March, 1986. The views of Dr. deGravelles were uncontroverted. Defendants take issue with the doctor's use of the AMA Guides but this deputy commissioner is not about to question the doctor's use of the Guides without a contrary medical opinion. Also with reference to claimant's brain hemorrhage, the greater weight of evidence shows the requisite causal connection between the fall of February 4, 1986 and the permanent partial impairment found by Dr. degravelles. The opinions of Dr. Winston were certainly important as he was indeed the surgeon. However, his opinions were not consistent with the facts. He believes that claimant's problems were due to the fall but no other history of a fall was given other than the fall on February 4, 1986. Claimant appeared to be credible when he indicated he had no other falls. Also, the doctor was very unclear in his deposition when he tried to explain his views. Likewise, Dr. Schreck's views were somewhat suspect due to his change in opinion as to the claimant's blood disorders. However, the views of Dr. Carlstrom and Dr. Adams were very convincing and consistent with claimant's credible testimony. Of critical importance was the pathology report from Dr. Adams which was entirely consistent with a fall several weeks prior to the hemorrhage. Dr. Winston's views were apparently made without the benefit of this pathology report. With reference to claimant's back problems, the requisite causal connection could not be found. The only medical opinion offered to support the causal connection theory was that of Dr. Disbro and he opined that the compression factors occurred during a period of time in which there were no seizure falls. It is within the specialized experience of this deputy commissioner in deciding hundreds of workers' compensation cases-over the last several years, that compression fractures need not be caused by trauma and can be the result of simply belated muscle spasms from a prior work injury. However, without supportive medical opinion in this case basing a causal connection finding simply on such speculation by this deputy commissioner would be wholly improper. II. Claimant must establish by a preponderance of the evidence the extent of weekly benefits for permanent disability to which claimant is entitled. As the claimant has shown that the work injury was a cause of a permanent physical impairment or limitation upon activity involving the body as a whole, the degree of permanent disability must be measured pursuant to Iowa Code section 85.34(2)(u). However, unlike scheduled member disabilities, the degree of disability under this provision is not measured solely by the extent of a functional impairment or loss of use of a body member. A disability to the body as a whole or an "industrial disability' is a loss of earning capacity resulting from the work injury. Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A physical impairment or restriction on work activity may or may not result in such a loss of earning capacity. The extent to which a work injury and a resulting medical condition has resulted in an industrial disability is determined from examination of several factors. These factors include the employee's medical condition prior to the injury, immediately after the injury and presently; LEAMING V. TOM BORNHOLTZ d/b/a SIOUX SALES COMPANY Page 11 the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985). Claimant's medical condition before the work injury was excellent and he had no functional impairments or ascertainable disabilities. Claimant was fully able to intellectually handle his job. Claimant's pace is now slowed and he does not function as well as before. Also, his wife is believed and this deputy commissioner accepts her view that claimant is now somewhat emotionally impaired. However, as pointed out by the defendants pain and suffering and the loss of emotional response is not compensable under workers' compensation law if it does not result in a loss of earning capacity. only those injuries which affect directly a person's ability to be employed can be compensated. Claimant, in this case, has shown considerably resiliency and is functioning quite well as a result of his serious injuries. Claimant is not restricted at the present time from driving or other physical tasks. Apart from his lost earnings during his healing period which will be compensated by healing period benefits, claimant has not suffered a significant permanent loss in actual earnings as a result of his disability. However, a showing that claimant had no loss of actual earnings does not preclude a finding of industrial disability. See Michael v. Harrison County, Thirty-Fourth Biennial Report of the Iowa Industrial Commissioner 218, 220 (1979). Given the above, however, claimant is still in a precarious situation. He remains significantly functionally impaired. Dr. Adelman has opined that it is likely that claimant will experience another seizure in the future. The probability that claimant will suffer such seizures in the future severely effects his employability. Claimant remains functionally impaired to a considered amount according to his rehabilitation physicians. Therefore, despite his currently suitable and stable employment, claimant remains significantly industrially disabled. After examination of all the factors of industrial disability, it is found as a matter of fact that claimant has suffered a 20 percent loss of his earning capacity from his work injury. Based upon such a finding, claimant is entitled as a matter of law to 100 weeks of permanent partial disability benefits under Iowa Code section 85.34(2)(u) which is 20 percent of 500 weeks, the maximum allowable number of weeks for an injury to the body as a whole in that subsection. As claimant has established entitlement to permanent partial disability benefits, claimant is entitled to weekly benefits for healing period under Iowa Code section 85.34 from the date of LEAMING V. TOM BORNHOLTZ d/b/a SIOUX SALES COMPANY Page 12 injury until he returns to work, until he is medically capable of returning to substantially similar work to the work he was performing at the time of injury, or until it is indicated that significant improvement from the injury is not anticipated, whichever occurs first. Although claimant did return to work briefly before his last seizure in August, 1986, it was apparent that he had not reached maximum healing because of this seizure. Claimant could not reach maximum healing and return to his work at Sioux Sales until he had been seizure free for at least six months. This did not occur until his return to work on May 17, 1986. Consequently, permanent partial disability benefits will begin at that time. Claimant will be entitled to healing period benefits prior to that time. III. Pursuant to Iowa Code section 85.27, claimant is entitled to an order directing the defendants to pay reasonable medical expenses for treatment of the work injury. Claimant is entitled to an order of reimbursement only for those expenses which he has previously paid. Krohn v. State, N.W.2d (Iowa 1988) Supreme Court decision filed March 16, 1988. As the back condition was not found work related, the following charges were excluded from the list attached to the prehearing report. Mercy Hospital 3-9-87 $3,754.09 Dr. Adelman 3/9/87 - 3/18/87 635.00 Tylenol III Drugs 3-7-87 7.87 Total $4,396.96 Defendants will be directed to pay the balance of the bills listed in the prehearing report either directly to the physicians or medical providers if the bill is unpaid or to claimant or his group insurance carrier if the bill has been paid. The suit costs requested in the prehearing report by claimant will be awarded to claimant except that it is the policy of this agency that report fees should not exceed an amount that a physician would be paid if he were to testify orally in a deposition or at hearing. Therefore, there is a maximum limit of $150.00 per report. FINDINGS OF FACT 1. Claimant was a credible witness. 2. Claimant was in the employ of Sioux Sales at all times material herein. 3. On February 4, 1986, claimant suffered an injury to the head which arose out of and in the course of his employment with Sioux Sales. While on a road sales trip, claimant slipped and fell injuring his head and other parts of his body requiring medical attention in the form of stitches to close a head wound. The injury set up a mechanism which eventually led to extensive brain hemorrhaging on the left and right frontal areas of claimant's head leading to seizures, loss of balance, gait and LEAMING V. TOM BORNHOLTZ d/b/a SIOUX SALES COMPANY Page 13 loss of mental functions. This condition required emergency brain surgery to remove excess blood and damaged brain tissue. 3. The work injury of February 4, 1986, was a cause of a period of disability from work beginning on March 1, 1986 through August 12, 1986; from August 22, 1986 through May 11, 1987, at which time claimant returned to work and reached maximum healing. Although claimant was hospitalized and unable to work due also to nonwork related back problems in March, 1987, his brain injury remained to be a significant factor in causing his inability to return to work during all of these periods of time. 4. The work injury of February 4, 1986, was a cause of a 20 to 25 percent permanent partial impairment to the body as a whole as a result of claimant's brain deficits in affect, behavior, thinking and potential for restoration. It is likely that claimant will suffer brain seizures in the future. 5. The work injury of February 4, 1986 and resulting permanent partial impairment is a cause of a 20 percent loss of earning capacity. Claimant is not able to mentally perform the job as before. Claimant has not suffered a loss of earnings as he is making the same as before in suitable and stable employment. However, his sales work has been adversely affected by his inability to perform as fast as before and the risk of future seizures is significant must be taken into account to measure his loss of earning capacity. Claimant's loss of emotional response has no immediate impact on his loss of earning capacity. Claimant does have potential for rehabilitation in LEAMING V. TOM BORNHOLTZ d/b/a SIOUX SALES COMPANY Page 14 other sales and sedentary work which would not require driving. 6. The medical expenses listed in the prehearing report requested by claimant were incurred by claimant for reasonable and necessary treatment of his brain condition as a result of the work injury on February 4, 1986, except for the expenses relating to his back condition which total $4,396.36. CONCLUSIONS OF LAW Claimant has established by a preponderance of the evidence entitlement to permanent partial disability benefits, healing period benefits and medical benefits as awarded below. ORDER 1. Defendants shall pay to claimant one hundred (100) weeks of permanent partial disability benefits at the rate of two hundred sixty-four and 58/100 dollars ($264.58) per week from May 12, 1987. 2. Defendants shall pay to claimant healing period benefits from March 1, 1986 through August 12, 1986, August 22, 1986 through March 1, 1987 and March 3, 1987 through May 11, 1987 at the rate of two hundred sixty-four and 58/100 dollars ($264.58) per week. 3. Defendants shall pay the medical expenses listed in the prehearing report except for those identified in the Analysis section of this decision ($4,396.96) as relating to claimant Is back problems. This payment shall be made either to claimant or his group insurance carrier if the bill has been paid or to the medical service provider directly if the bill is unpaid. 4. Defendants shall pay accrued weekly benefits in a lump sum and shall receive a credit against this award for all benefits previously paid. 5. Defendants shall receive credit for previous payment of benefits under a nonoccupational group insurance plan, if applicable and appropriate under Iowa Code section 85.38(2). 6. Defendants shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 7. Defendants shall pay the costs of this action pursuant to Division of Industrial Commissioner Rules 343-4.33 and specifically the costs delineated requested by claimant in the prehearing report except that the defendants shall only pay the sum of one hundred fifty and no/100 dollars ($150.00) for the charges of Dr. Schreck to prepare his report. 8. Defendants shall file activity reports on the payment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 20th day of April, 1988. LEAMING V. TOM BORNHOLTZ d/b/a SIOUX SALES COMPANY Page 15 LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. William R. King Mr. William W. Schwarz Attorneys at Law 2300 Financial Center Des Moines, Iowa 50309 Mr. Harry Dahl Attorney at Law 974.73rd Street Suite 16 Des Moines, Iowa 50312 1803 Filed April 20, 1988 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER DARRELL L. LEAMING, Claimant, FILE NO. 818155 VS. A R B I T R A T I 0 N TOM BORNHOLTZ d/b/a SIOUX SALES COMPANY, D E C I S I 0 N Employer, and CITIZENS SECURITY MUTUAL INSURANCE, Insurance Carrier, Defendants. 1803 It was found that claimant suffers from a 20 percent industrial disability as a result of permanent effects from a brain injury caused by a slip and fall while claimant was on a road sales trip. Claimant is back to work but is significantly mentally impaired and has a risk of future brain seizure. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JAMES K. SMITH, Claimant, VS. File Nos. 818171/844441 SUPER VALU, A P P E A L Employer, D E C I S I 0 N and LIBERTY MUTUAL, Insurance Carrier, Defendants. STATEMENT OF THE CASE Defendants appeal from an arbitration decision awarding permanent partial disability benefits as the result of alleged injuries on July 17, 1985, and March 4, 1986. The record on appeal consists of the transcript of the arbitration hearing; joint exhibits 1, 2 and 3; and claimant's exhibits 1 and 2. Both parties filed briefs on appeal. ISSUE Defendants state the following issue on appeal: "Does the evidence presented in this matter support the deputy industrial commissioner's decision that as a result of the 15 percent functional impairment that claimant has sustained an industrial disability of 40 percent to the body as a whole." REVIEW OF THE EVIDENCE The arbitration decision adequately and accurately reflects the pertinent evidence and it will not be set forth herein. APPLICABLE LAW The citations of law in the arbitration decision are appropriate to the issues and the evidence. SMITH V. SUPER VALU Page 2 ANALYSIS The analysis of the evidence in conjunction with the law is adopted. FINDINGS OF FACT 1. Claimant sustained injuries arising out of and in the course of his employment. 2. As a result of the March 4, 1986 injury, claimant had back surgery on September 9, 1986. 3. Claimant is a 30 year old college educated man who has limited experience in his field of education. 4. As a result of his injury, claimant has only been able to secure a commissioned sales position which paid him $3,500.00 over a period of nearly six months. CONCLUSIONS OF LAW As a result of the March 4, 1986 injury, claimant was still in the healing period from May 5, 1986 through September 9, 1986, and from February 11, 1987 through April 1, 1987. As a result of the March 4, 1986 injury, claimant has a functional impairment of 15 percent of the body as a whole. Claimant has met his burden of proving he has an industrial disability of 40 percent. WHEREFORE, the decision of the deputy is affirmed. ORDER THEREFORE, it is ordered: That defendants are to pay unto claimant twenty-five and three-sevenths (25 3/7) weeks of healing period benefits at a rate of three hundred thirty and 57/100 dollars ($330.57) per week. That defendants are to pay unto claimant two hundred (200) weeks of permanent partial disability benefits at a rate of three hundred thirty and 57/100 dollars ($330.57) per week. That defendants shall receive credit for benefits previously SMITH V. SUPER VALU Page 3 paid. That payments that have accrued shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. That the costs of this action are assessed against the defendants pursuant to Division of Industrial Services Rule 343-4.33. That defendants file claim activity reports on the payment of this award as requested by this agency pursuant to Division of Industrial services Rule 343-3.1. Signed and filed this 28th day of April, 1989. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. Dennis L. Hanssen Attorney at Law 2700 Grand Ave., Suite III Des Moines, Iowa 50312 Mr. Joseph S. Cortese, II Attorney at Law 500 Liberty Building Des Moines, Iowa 50309 51800 Filed April 28, 1989 DAVID E. LINQUIST BEFORE THE IOWA INDUSTRIAL COMMISSIONER JAMES K. SMITH, Claimant, VS. File Nos. 818171/844441 SUPER VALU, A P P E A L Employer, D E C I S I 0 N and LIBERTY MUTUAL, Insurance Carrier, Defendants. 51800 Deputy's determination that claimant was 40 percent industrially disabled was affirmed on appeal. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JAMES K. SMITH, Claimant, File Nos. 844441 & 818171 vs. A R B I T R A T I O N SUPER VALU, D E C I S I O N Employer, and LIBERTY MUTUAL, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding brought by James K. Smith, claimant, against Super Valu, employer, and Liberty Mutual Insurance Company, insurance carrier, defendants. These cases come upon petitions for arbitration for benefits as a result of alleged injuries occurring on July 17, 1985 and March 4, 1986. The cases were heard by former Deputy Industrial Commissioner Garry D. Woodward. The cases were fully submitted at the completion of the hearing. On July 13, 1988, the cases were transferred to the undersigned by David E. Linquist, Industrial Commissioner. The record consists of the testimony of James K. Smith and Shelby Swain. The record also consists of joint exhibits 1, 2 and 3, as well as claimant's exhibits 1 and 2. The parties stipulated that the claimant sustained injuries on February 11, 1985 and March 4, 1986 which arose out of and in the course of his employment with defendant employer. The parties also stipulated that the 1985 injury was a temporary injury in nature, that no permanent disability resulted from the 1985 injury and that all healing period benefits owed as a result of the 1985 injury had been paid. Further, the parties stipulated that all permanent partial disability entitlements, if any, were the result of the 1986 injury. ISSUES The issues presented by the parties are as follows: 1. Whether the claimant is entitled to additional healing period benefits from May 5, 1966 through September 9, 1986 and from February 11, 1987 through April 1, 1987; and, 2. Whether the claimant is entitled to additional permanent partial disability benefits beyond the 15 percent functional disability rating. SMITH V. SUPER VALU PAGE 3 FACTS PRESENTED Claimant was nearly 30 years old on the date of the hearing. Claimant testified he had received a bachelor of arts degree in secondary education with teacher certifications in physical education and driver's education. Claimant reported he had attempted to locate a teaching position. He was unsuccessful in securing the same. Consequently, claimant commenced his employment with defendant. Claimant accepted a position with defendant as a grocery order clerk at its warehouse in Des Moines. Claimant was required to lift nearly 5,000 pounds per hour as part of his job duties. Claimant sustained back injuries on several occasions during the duration of his employment. Claimant was treated by William R. Boulden, M.D. Back surgery was performed in September of 1986. Following surgery, claimant received physical therapy treatments from Thomas W. Bower, L.P.T. Later, claimant was sent to the Sports Medicine Clinic at the Iowa Methodist Medical Center for work hardening and strengthening of his lower back. He was released from this program on April 1, 1987. Once claimant had secured his position with Super Valu, he did not actively seek employment in the field of education until after his injury. Claimant was refused employment by Super Valu after the injury, and after he had been released to return to work. Employer claimed since claimant was prohibited from bending, twisting or lifting, there was no available position in the warehouse. Employer also maintained there was no other position open to claimant. In October of 1986, Mr. Shelby Swain was retained by the insurance carrier to perform job development for claimant. Mr. Swain counseled claimant concerning long-term employment goals, applications for graduate school, proper resume preparation and the pursuit of employment opportunities in marketing, sales, insurance or education. Mr. Swain assisted claimant until May 4, 1987. Despite Mr. Swain's inability to secure a position for claimant, Mr. Swain was advised by the insurance carrier to discontinue all services. Claimant, without the assistance of Mr. Swain, finally secured a position with Iowa Realty in December of 1987. At the time of the hearing, claimant had earned $3,500 in commissioned sales but he had no benefits in his employment package. APPLICABLE LAW An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(l). Claimant has the burden of proving by a preponderance of the evidence that he received injuries on July 17, 1985 and March 4, 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). If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 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." The opinion of the supreme court in Olson v. Goodyear SMITH V. SUPER VALU PAGE 3 Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963) cited with approval a decision of the industrial commissioner for the following proposition: Disability * * * as defined by the Compensation Act means industrial disability, although functional disability is an element to be considered . . . In determining industrial disability, consideration may be given to the injured employee's age, education, qualifications, experience and his inability, because of the injury, to engage in employment for which he is fitted. * * * * 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, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257. 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 reference is to loss of earning capacity and in the later to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial disability include the employees 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). SMITH V. SUPER VALU PAGE 4 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 which work may indicate that relief would be granted. McSpadden, 388 N.W.2d 181. ANALYSIS Claimant has met his burden in proving that he is entitled to additional healing period benefits from May 5, 1986 through September 9, 1986, the date of back surgery, and from February 11, 1987 to April 1, 1987, the date maximum recovery occurred. Medical records establish that the claimant was receiving treatment through these periods in hopes of achieving maximum recovery. The record indicates the healing period continued beyond the May 5, 1986 date. Dr. Boulden, in his letter of December 29, 1987 writes: Therefore, in reality, the healing period did continue past the May of 1986 date, since this patient did have surgery. Therefore, in conclusion of this matter, as of May of 1986, his healing period had ended as far as conservative management, but more improvement was to be gained with further surgery that was carried out, and this extended his healing period. The record also indicates that claimant was involved in a healing period from February 11, 1967 through April 1, 1987. In Dr. Boulden's letter of January 8, 1987 he advises John Tapp, D.O.,: Therefore, I feel now that it is imperative that we get him into the final rehabilitation, and at the Sports Medicine Clinic, via your association with them. Mr. Thomas W. Bower, L.P.T., in his letter of February 5, 1987 writes: We would feel that this patient could return to any type of vocation that would fit within these restrictions that we have given. He has also been re-evaluated by Dr. Boulden. I have advised Dr. Boulden that I feel we have reached our plateau point and hopefully a permanency rating will be coming shortly. Per Dr. Boulden's instructions, claimant did seek additional rehabilitation at the Sports Medicine Centre at Iowa Methodist Hospital. Claimant received therapy from February 25, 1987 through April 1, 1987. The work hardening program at Iowa Methodist was authorized by Raymond Webster, M.D. Claimant testified the therapy at Iowa Methodist was three times a week from eight o'clock in the morning to noon. SMITH V. SUPER VALU PAGE 5 On April 1, 1987 Dr. Webster writes in his progress notes: This is a follow up for this former Super Valu warehouse employee who underwent back surgery in September and has been followed for work hardening and strengthening of his lower back. He has done very very well in the program and he is [sic] reached the maximum of benefit that we can do for him. As such we are releasing him from the work hardening program and allowing him to persue [sic] further job opportunites [sic] at this point in time. With respect to the issue of permanent partial disability, Dr. Boulden determined "claimant had sustained a 15 percent impairment of the back as a whole rating." Claimant was released to return to work, but a position at Super Valu was not open to him. As a result, claimant was without full time employment through December of 1987. His wages were drastically reduced. Claimant was unsuccessful in securing a full time teaching position. Mr. Swain, upon direct examination from the employer's attorney testified that the claimant "had a lot of job opportunities available to him because of his college education." Mr. Swain opined the fact claimant had a college degree was much more important than the areas in which claimant majored. Mr. Swain did not believe a physical education major would limit the claimant in obtaining employment in sales, marketing or promotion. Nevertheless, Mr. Swain was unable to secure a position for claimant. however, very little weight is given to Mr. Swain's testimony as he was unable to secure a position for claimant or even find job interviews for claimant. The employer refused employment to claimant and defendants ceased vocational counseling prior to claimant obtaining full time employment. Claimant has limited work experience outside of warehousing and is restricted as far as his lifting, bending and twisting activities are concerned. It would be difficult teaching physical education. Claimant has acquired a commissioned sales job in the area of real estate and has no guaranteed salary. Such a position does not require a college degree. Claimant has had reduced earnings. After nearly six months of employment, claimant has only earned $3,500 in 1988. In the case at hand, claimant has met his burden in proving that lie has an industrial disability greater than the 15 percent functional impairment of the body as a whole. Claimant has an industrial disability of 40 percent. Claimant has established there is a loss of earning capacity. Claimant has shown there has been a loss of earnings since the date of his 1986 injury. Even though claimant is well educated, he has had a a difficult time securing employment in an area in which he has been trained. FINDINGS OF FACT AND CONCLUSIONS OF LAW WHEREFORE, based on the evidence presented and the principles of law previously stated, the following findings of fact and conclusions of law are made: SMITH V. SUPER VALU PAGE 6 FINDING 1. Claimant sustained injuries arising out of and in the course of his employment. FINDING 2. As a result of the March 4, 1986 injury, claimant had back surgery on September 9, 1986. CONCLUSION A. As a result of the March 4, 1986 injury, claimant was still in the healing period from May 5, 1986 through September 9, 1986 and from February 11, 1987 through April 1, 1987. CONCLUSION B. As a result of the March 4, 1986 injury, claimant has a functional impairment of 15 percent of the body as a whole. FINDING 3. Claimant is a 30 year old college educated man who has limited experience in his field of education. FINDING 4. As a result of his injury, claimant has only been able to secure a commissioned sales position which paid him $3,500.00 over a period of nearly six months. CONCLUSION C. Claimant has met his burden of proving he has a 40 percent permanent partial disability. ORDER THEREFORE, defendants are to pay unto claimant twenty-five and one-fifth (25 1/5) weeks of healing period benefits at a rate of three hundred thirty and 57/100 dollars ($330.57) per week. Defendants are to pay unto claimant two hundred (200) weeks of permanent partial disability benefits at a rate of three hundred thirty and 57/100 dollars ($330.57) per week. Defendants shall receive credit for benefits previously paid. Payments that have accrued shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. A final report shall be filed upon payment of this award. costs of this action are assessed against the defendants pursuant to Division of Industrial Services Rule 343-4-33. Defendants shall file a final report upon payment of this award. Signed and filed this 12th day of September, 1988. MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Dennis L. Hanssen Attorney at Law SMITH V. SUPER VALU PAGE 7 Suite 111 2700 Grand Ave. Des Moines, Iowa 50312 Mr. Joseph S. Cortese, II Attorney at Law 1000 Des Moines Bldg. Des Moines, Iowa 50309 1803 Filed September 12, 1988 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER JAMES K. SMITH, Claimant, File Nos. 844441 & 818171 vs. A R B I T R A T I O N SUPER VALU, D E C I S I O N Employer, and LIBERTY MUTUAL, Insurance Carrier, Defendants. 1803 Claimant awarded 40 percent permanent partial disability subsequent to injury resulting in functional impairment of the back as well as an industrial disability.