Page 1 before the iowa industrial commissioner ____________________________________________________________ : GERALD L. KUHL, : : Claimant, : : vs. : : File No. 821068 IOWA MEDICAL CLASSIFICATION : CENTER, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Gerald L. Kuhl, claimant, against Iowa Medical Classification Center and the State of Iowa, as defendants, to recover benefits as a result of an alleged injury of January 31, 1986. The record in this case consists of the testimony of claimant; John Brewer, Ph.D.; James Ernst; John Baldwin; Rusty Rogerson; claimant's exhibits 1 through 8, inclusive, and Defendants' exhibits 1 through 7(n), inclusive. The matter came on for hearing before the undersigned deputy industrial commissioner May 15, 1990. issues In accordance with the hearing assignment order and the prehearing report, the following issues are presented for resolution: 1. Whether claimant sustained an injury on January 31, 1986, which arose out of and in the course of his employment; 2. Whether the alleged injury is causally connected to the disability on which claimant now bases his claim; 3. Whether claimant is entitled to temporary total disability benefits or healing period benefits or permanent partial disability benefits; and 4. Whether claimant is entitled to medical benefits as provided by Iowa Code section 85.27. findings of fact The undersigned deputy industrial commissioner, having heard the testimony and considered all of the evidence, Page 2 finds that: Claimant began employment with the State of Iowa in 1965 after obtaining a degree in religion with a minor in psychology and sociology from the University of Iowa. Claimant held a variety of social service positions with the state until approximately 1971 when he became the financial manager with the Linn County Social Service Agency. (Although this position was with Linn county, it was still considered state employment.) Claimant had a limited background to qualify for this position, but took evening classes in business and accounting and subsequently took an educational leave in 1975 to take additional courses. In approximately October of 1974, claimant was promoted to the position of business manager at the Riveview Release Center in Newton, Iowa. In this position, claimant worked closely with the superintendent of the facility and decisions on such things as the budget were based on the team approach. Claimant received evaluations which were well above satisfactory (four or five on a scale of one to five). In June of 1984, claimant sought and received the position of business manager at the Iowa Medical Classification Center (IMCC) in Oakdale. Claimant was responsible for the business office with a staff of six and oversaw the facility's maintenance and dietary functions. Claimant felt that initially things went reasonably well and he received a satisfactory probationary performance evaluation in September of 1984. However, while claimant had had a close working relationship with his supervisor at Riverview, and had interacted regularly with this supervisor, he found the superintendent at Oakdale to be aloof, inaccessible, often absent, and eventually hostile with a style of management that was vastly different from the team approach taken at the Newton facility. In March of 1985, John Baldwin, deputy director of the Department of Corrections, met with the claimant and expressed general dissatisfactions with the management of the facility business operations, including several technical deficiencies and skill/capability inadequacies (Claimant's Exhibit 1, page 25). A special performance evaluation was done for the period covering September 16, 1984 to May 24, 1985, which resulted in an overall score of 1.95 and another special evaluation was to be performed four months later. Claimant objected to the manner in which the evaluation was done, characterizing it as "autocratic" and responded with a seven page letter (Cl. Ex. 1, pp. 46-52) expressing his dissatisfaction and disagreement with the evaluations comments. Claimant's response was never discussed personally with any supervisor. In September of 1985, claimant was scheduled for another evaluation. However, before it was given to him, the scores were "leaked" and claimant wrote a memo to the superintendent asking that such a problem be corrected. The evaluation score which claimant eventually received was lower than the score that had been "leaked" and claimant believed the evaluation was rewritten and lowered in Page 3 retribution for calling the leak to the superintendent's attention. At this time, claimant chose to initiate the agency grievance policy and his grievance was eventually heard by Marrie Murray, chief of Bureau of Personnel and Training and Paul Grossheim, deputy director of the Division of Institutions. After the grievance was heard, the agency response stated: [I]t is apparent that there must be better communication between yourself and your supervisor for the working relationship to have a chance of success. You must initiate more opportunities for understanding expectations and through sources other than just the Superintendent. The Superintendent should perhaps make less assumptions about your previous experience, which would affect your knowledge, e.g. JCAH accreditation, and direct you to appropriate resources. Both participants must communicate better when the supervisor's style is to utilize limited communication. Finally, the issue of training is also a joint responsibility. Basic skills which you should possess to satisfactorily assume the position are your responsibility as well as the training to establish those skills. The Employer is responsible for providing the training to enhance your performance or to expand your areas of responsibility. The Employer's responsibility to provide the training is balanced by you are corresponding responsibility to seek out learning opportunities. You are to be commended for taking some coursework on your own, and the resulting work performance improvements speak for themselves. In summary, this working relationship may have deteriorated to the point where it will never be positive and you will never be evaluated as a successful performer. The undersigned feel [sic] strongly that you should seriously improve your performance in the areas of leadership, intrainstitution relationships, and budget administration. The Superintendent should seriously review his ratings on this revised Section B against the ratings first given for this rating period; adjustment of one or more ratings would seem appropriate. (Claimant's Exhibit 1, pages 98-99) The superintendent declined to change claimant's ratings on the evaluation and claimant's appeal to the merit employment department was denied for lack of jurisdiction. (See Cl. Ex. 1, p. 112). Claimant, at this time, began to feel trapped and that he had nowhere to go to redress his grievances. In January 1986, claimant had another unsatisfactory Page 4 performance evaluation which he did not feel was either fair or objective. On January 31, while talking to a personnel assistant in Des Moines, claimant reported his plan to have a "car accident" to "do away" with himself. Claimant was referred to the state's employee assistance program, took sick leave from work and eventually came under the care of the Psychiatric Clinic at the University of Iowa Hospitals. In the social history taken from claimant's wife, Francis Valainis, social worker, wrote: REFERRAL INFORMATION:....Reason for referral is a self-referral for symptoms of stress relating to work and home.... .... PRESENT CONDITION: The wife states that the patient was seen in our emergency clinic for an evaluation about a week ago. She stated that at that time she did not know her husband was being seen and only found out afterwards. She states that her husband has been having problems at work since he started this present job about a year or a year and a half ago. Prior to that time, according to the wife, he did not report having any type of stressful situation at work which he could not handle. She states that she has not observed any depressive symptoms nor any symptoms of anxiety or delusions or hallucinations. The only major depressive symptom that she was able to identify is decrease in his concentration. But this has not been getting any worse. She noticed this decrease in concentration for the last year or so. Last week was the first time that he told her that he felt like driving into a telephone pole. She is not able to identify any particular patterns in regards to his stress at work. She does know that he had been having difficulty with his boss almost from the first day that he started his job. She describes this situation in terms of lack of communication with the boss and that no one tells him what the procedures are in the office. It is her understanding that his present boss wants him to leave the job but doesn't give any particular reasons. The other present problem relates to a discipline problem in school with one of their youngest son. She states that she and the two children did not want to move from their last place of residence in Newton. It has been a difficult time adjusting to the move for both her and the two children. The other problem relates to an increased complaint of headaches for the last couple of months.... .... BACKGROUND INFORMATION:....She describes his usual personality as one who has no sense of humor and is "straight laced", one who likes to be by Page 5 himself more than with others and who is generally a "dull" person. .... IMPRESSION:....The primary diagnosis will be an adjustment disorder and rule out major depressive disorder. The other problems relate to his work situation as well as difficulty in their marriage relationship which has been ongoing for some time. The other problem relates to the adjustment and discipline problem of their youngest son. (Cl. Ex. 4, pp.3-6) After diagnostic evaluation, claimant was referred for counseling and he began seeing Mr. Valainis on a regular basis. On March 17, 1986, claimant was admitted to the University of Iowa Hospitals and Clinic for evaluation of increased hypertension, tachycardia, tremors and insomnia. It was thought that claimant's symptoms were secondary to an adverse reaction of nortriptyline and therefore he was advised to discontinue use of the antidepressant but to continue with his counseling sessions. Claimant remained off work for approximately three months during which time a question arose as to whether he had accepted a voluntary demotion from business manager to correctional officer. Claimant did eventually return to work on May 15, 1986 as a correction officer but was reinstated as business manager with limited responsibilities on May 22, 1986. By the time claimant had returned to work, a new superintendent had been appointed and claimant felt intense pressure to leave. A memo from the superintendent dated June 9, 1986 stated: Last week I informed you that I felt I must impose some time frames concerning your employment at this facility. On May 29, 1986, you and I had a lengthy conversation concerning your employment status. We both agreed that you could not remain as Business Manager at this facility. We also both agreed that it would be impossible for you to successfully perform your duties considering all that has happened. At that meeting I informed you that I did not feel you had the skills necessary to manage a budget in excess of seven million dollars. We both agreed that IMCC's current situation is not totally your fault, but you deserve part of the blame. Taking all of this into consideration, you agreed that you would actively seek another job. However, I feel we must establish a time frame for this to be resolved, as I cannot allow this to be a long process. I feel that to be fair I will give you 60 days to locate another job. This facility needs a Business Manager very soon. Page 6 During this 60 day period I will begin the documentation process, which I will utilize to terminate you, if you have not resigned. I feel I have been fair and honest with you and now it your turn to be fair with me. Let's work together to resolve this situation. (Cl. Ex. 1, p. 143) Claimant applied for other jobs but was unsuccessful until he secured a position as a correctional counselor at Oakdale. Claimant took a voluntary demotion to work in this classification although his salary remained the same as that of a business manager for one year. Claimant held that position for two and one-half years during which time he worked on a certified public accountant review course and prepared for the CPA examination. By May of 1988, claimant passed all phases of the exam but was unsuccessful in his search for employment to fulfill the two year apprenticeship. On February 1, 1989, claimant became the director of finance at Four Oaks, a home for "emotionally disturbed children" which employment he resigned on or about May 15, 1990, when it was determined that claimant could not be retained. The position which claimant held was a new position at the facility and the executive director determined that the person who performed the job had to be able to work independently. Claimant was unable to meet that qualification because of the amount of supervision he continually needed. Claimant had a "relapse" of depression as the demands of his employment at Four Oaks increased. In May 1986, claimant began an accounting practice in his home. An internal investigation task force was formed May 7, 1986 to assess the fiscal and staff management of the Iowa Medical Classifications Center. Among the conclusions and recommendations of the task force were: 1. It is clear to the task force that good budget development, presentation, implementation, decision making, and monitoring processes did not occur on a regular basis at IMCC.... 2. In the opinion of the Task Force, the business manager is a very key staff member to the total institution. There was substantial evidence presented that the superintendent and central office had serious doubts about the ability of the business manager to perform his duties satisfactorily. Whether or not the business manager was competent or incompetent is not a judgement of this Task Force. Institutional superintendents who do not have complete confidence in the business manager should either quickly take steps to enhance the business manager's performance or designate an immediate replacement. Consideration should be given to having the business manager serve at Page 7 the pleasure of the superintendent or warden to expedite removal if necessary. .... 6. The business manager of an institution as mentioned previously is a key employee. Evidence was presented that the business manager was denied authority to be able to do his/her duties in a complete manner. A detailed system of responsibilities needs to be established and monitored so inappropriate management practices do not occur. (Cl. Ex. 1, pp. 135-136) J. D. Brewer, Ph.D, clinical psychologist, began treating claimant on a "frequent basis" June 6, 1988. Claimant related to Dr. Brewer a history of depression with treatments since 1986, discouragement, irritability, low energy, poor concentration, memory and difficulty with decision making. Dr. Brewer found nothing significant about claimant's family life determining that claimant had a supportive wife and "normal" concerns with regard to his sons. Dr. Brewer originally diagnosed major depression in partial remission and treated claimant with supportive psychotherapy but changed the diagnosis to major depression recurrent after claimant's experience at Four Oaks since claimant went back into a full blown depression. Dr. Brewer, in the two plus years he has treated claimant, has never seen claimant without depression although he has seen progress and regression throughout this period of time. On December 28, 1988, Dr. Brewer opined: It appears that Mr. Kuhl's difficulties were precipitated by stress he experienced at the work place. Much of the stress appears to be related to his personality features of doing a job perfectly and in control. Increased role conflicts of being responsible for outcomes without the authority to follow through intensified his difficulties. During the time I have worked with Mr. Kuhl, it has been increasingly apparent that he will not be able to return to his previous occupational job. After he took a voluntary demotion, while it minimized some of the stress, it also had attendant with it an increased feeling of frustration for not being able to use his talents and skills as a business manager. Mr. Kuhl has shown some stabilization and some improvement in the area of self-esteem, although he still experiences considerable emotional turmoil regarding his work setting. (Cl. Ex. 5) Claimant was seen by Robert B. Wesner, M.D., Assistant Page 8 Professor of Psychiatry, at the University of Iowa College of Medicine, Department of Psychiatry, on February 14, 27, March 13, and 20, 1986. Dr. Wesner summarized claimant's treatment in a letter dated January 5, 1989, stating: Mr. Kuhl presented for diagnostic evaluation on February 14, 1986. At that time he complained of low energy, persistent fatigue, and difficulty with work performance. At that time, he reported a history of depressive symptoms that dated back to October 1985. In October 1985 he began to notice a decrease in energy with decreased motivation, terminal insomnia, increased irritability, social withdrawal and difficulty concentrating on his work. At the time of his diagnostic evaluation, Mr. Kuhl reported numerous psychosocial problems. At the time of this evaluation he was working for the Oakdale Security Facility as a business manager. He described many difficulties with his work position including numerous problems with his superior. He had also been given three notifications that his work was not up to standards and just prior to his diagnostic evaluation, he was told to leave for three weeks for medical leave to obtain treatment. In addition to the depressive symptoms mentioned above, Mr. Kuhl also expressed symptoms of hopelessness and helplessness stating that he felt trapped in his current situation and saw no way out.... Our assessment at the time of initial evaluation was adjustment disorder with depressed mood, rule out major depressive disorder. Mr. Kuhl did not clearly meet criteria for major depressive disorder at the time of his initial evaluation; however, it could not be entirely ruled out. Because of that we tried him on Nortriptyline. .... Our impression at the time of his second visit was the same as the first visit. We were still unable to make a clear diagnosis of adjustment disorder with depressed mood vs major depressive disorder....[T]he patient was referred to one of our social workers for counseling. Mr. Kuhl was seen for the third time in our clinic on March 13, 1986. At that time he was taking Nortriptyline 75 mg. at bedtime and had been at that dose for approximately 10 days. Although he reported a short period of improvement over those 10 days, he again complained of low mood, poor energy, poor concentration, and poor sleep. Despite his persistent depressive complaints he had been able to continue with some college courses that he was taking and achieved a C+ on an exam in an accounting course....I Page 9 informed Mr. Kuhl that based on our observations there was no reason why he could not return to full time work at that time. I saw Mr. Kuhl for the last time on March 20, 1986....Mr. Kuhl related to me at that time that since he had had a poor reaction to antidepressant treatment he did not wish to try any further medication at that time. He elected to continue to see our social worker for further counseling and to my knowledge he did follow-up on that. Again I was unable to make a clear diagnosis and his assessment remained adjustment disorder with depressed mood vs. major depressive disorder.... ...Patients diagnosed with adjustment disorder with depressed mood tend to have a very benign, self-limited course and for the most part did not require medical treatment. Although they may have typical depressive symptoms they, in general, do not have a recurrent illness that patients with major depressive disorder do. Patients with major depressive disorder on the other hand tend to have a recurrent depressive illness that may be relatively mild or severe. Patients with major depressive disorder are good candidates for medical treatment and it is these treatments that antidepressants are the most useful for. He was only on the antidepressants for a short period of time so it is unclear whether or not further improvement might have been obtained if higher doses or other antidepressants were tried. As for prognosis, I am unable to make a judgement about prognosis since I was unable to make a diagnosis in the first place. Additionally, since I was unable to make a clear diagnosis on Mr. Kuhl, I am unable to make a judgement as to whether or not his working conditions either caused or was a significant contributing factor to the problem that brought him to our clinic. (Cl. Ex. 6) Claimant was seen by Robert E. Smith, M.D., at the request of defendants on January 25, 1989. Prior to the assessment as part of the interpretation of the evaluation, previous medical records, including those from the University of Iowa Hospitals and Clinics and reports from Dr. Wesner and Brewer, were reviewed. Dr. Smith diagnosed: Axis I: Major Depressive Disorder, probable second episode, resolving. Axis II: Obsessive-Compulsive Personality Disorder. Dr. Smith wrote on March 9, 1989: Mr. Kuhl clearly has overwhelming evidence to support a diagnosis of Obsessive-Compulsive Personality Disorder. A personality disorder is defined as enduring patterns of perceiving, relating to, and thinking about the environment and oneself with resultant functional impairment Page 10 and subjective distress. Mr. Kuhl's behavioral traits include significant perfectionism; a degree of preoccupation with details, organizations, and lists; an insistence upon others performing tasks or obligations by his rules and orders; a tendency to be excessively devoted to work and productivity; and a degree of inflexibility concerning moralistic and ethical values. These behavioral traits are essentially life-long in duration and clearly cluster in other family members. It appears that Mr. Kuhl experienced his first episode of depression while he was a college student, leading him to seek care at the Student Health Clinic. The severity of his illness was moderate and the patient appeared to respond with minimal intervention. The second episode of depression appears to have occurred in 1985 with continuing residual symptoms. The presence of the Obsessive-compulsive Personality Disorder places an individual at significantly increased risk for depressive episodes and this clinical observation must be taken into consideration in the evaluation of Mr. Kuhl's depressive episode. .... The relationship between the onset of Mr. Kuhl's depression in the work setting must be evaluated in the context of his Obsessive- Compulsive Personality Disorder. The presence of the endearing traits of perfectionism, insistence, and adhering to rules and regulations, and his insistence in having things performed "his way" placed him in great conflict with his supervisors as well as his employees within his department. As these conflicts escalated, an episode of endogenous, biochemical depression occurred. Mr. Kuhl was predisposed to the occurrence of a biochemical depression and, in all probability, had already had a previous episode. His personality traits fueled the fire of increasing stress within the work setting. As the stresses and conflicts increased, the balance was tipped and an endogenous depression occurred. It is my opinion that if the Obsessive- Compulsive Personality Disorder were not present then the level of stress and the level of conflict in the job setting would have been markedly less and, in all likelihood, a depressive episode would not have occurred. Clearly the demands of the work place cannot be excluded as a factor in understanding the onset of the depression, but their significance is partial at best and cannot be viewed as the prime causation for the Page 11 depressive episode. (Defendants' Exhibit 5) reasoning and conclusions of law An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe 246 Iowa 402, 68 N.W.2d 63. The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63. The claimant has the burden of proving by a preponderance of the evidence that the injury of January 31, 1986, is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). Expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The first issue for resolution is to determine whether claimant's psychological problems constitute an injury which arose out of and in the course of his employment. The standard for determining whether a mental injury arose out of and in the course of employment was discussed in the case of Ohnemus v. John Deere Davenport Works (Appeal Decision filed February 26, 1990). The industrial commissioner, in that case, wrote: Page 12 In order to prevail claimant must prove that he suffered a non-traumatically caused mental injury that arose out of and in the course of his employment. This matter deals with what is referred to as a mental-mental injury and does not deal with a mental condition caused by physical trauma or a physical condition caused by mental stimulus. The supreme court in Schreckengast v. Hammer Mills, Inc., 369 N.W.2d 809 (Iowa 1985), recognized that issues of causation can involve either causation in fact or legal causation. As stated in footnote 3 at 369 N.W.2d 810: We have recognized that in both civil and criminal actions causation in fact involves whether a particular event in fact caused certain consequences to occur. Legal causation presents a question of whether the policy of the law will extend responsibility to those consequences which have in fact been produced by that event. State v. Marti, 290 N.W.2d 570, 584-85 (Iowa 1980). Causation in fact presents an issue of fact while legal causation presents an issue of law. Id. That language was the basis of the language in Desgranges v. Dept. of Human Services, (Appeal Decision, August 19, 1988) which discussed that there must be both medical and legal causation for a nontraumatic mental injury to arise out of and in the course of employment. While Desgranges used the term medical causation the concept involved was factual causation. Therefore, in this matter it is necessary for two issues to be resolved before finding an injury arising out of and in the course of employment - factual and legal causation. Proving the factual existence of an injury may be accomplished by either expert testimony or nonexpert testimony. As in Ohnemus, attention is first turned to the matters of factual and legal causation. J. D. Brewer, Ph.D., clinical psychologist, reported that it "appears" that claimant's difficulties were precipitated by stress he expressed at the work place and opined that the psychosocial stress of the work environment caused claimant's depression. Robert D. Wesner, M.D., Assistant Professor of Psychiatry at the University of Iowa Hospitals and Clinics, was unable to make a clear diagnosis of claimant's condition and therefore was also unable to make a judgment as to whether or not claimant's working conditions are the cause or were a significant contributing factor to his problems. Robert E. Smith, M.D., opined that claimant suffers Page 13 from an obsessive compulsive personality disorder and if the personality disorder were not present then the level of stress and the level of conflict in the job setting would have been markedly less and a depressive episode would not have occurred. In addition, Dr. Smith stated that while the demands of the work place cannot be excluded as a factor in understanding the onset of the depression, their significance is partial at best and cannot be viewed as the prime causation for the depressive episode. Finally, Francis Valainis, licensed social worker, related claimant's problems to his work situation as well as difficulty in the marriage relationship and to the adjustment and disciplinary problems of claimant's youngest son. In Ohnemus, the commissioner went on to state: It should be noted that the discussion here is not whether there is a causal connection between an injury and an alleged disability. The proof of the causal connection between an injury and an alleged disability is dependent upon medical opinion. That medical opinion cannot only be the opinion of a psychologist. See Saunders v. Cherry Burrell Corp., II Iowa Industrial Commissioner Report 333 (Appeal Decision 1982) and Palmer v. Norwalk Community School District, II Iowa Industrial Commissioner Report 302 (Appeal Decision 1981). A psychologist is not a physician. See Iowa Code section 135.1(5). If the issue of whether there was a causal connection between claimant's alleged injury and his alleged disability were to be decided in this case, claimant's claim would be denied because there is no opinion of causal connection given by a physician. Dr. Brewer, who clearly would have established the factual causal connection necessary, is only a psychologist. It is interesting to note, however, that Dr. Brewer did not begin treating claimant until June 1988, almost three years after the onset of his symptoms. Francis Valainis is a licensed social worker. Dr. Wesner, a psychiatrist, does not render an opinion. Dr. Smith, also a psychiatrist, appears to be somewhat equivocal in his opinion in light of his statements with regard to the obsessive compulsive personality disorder. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. Blacksmith v. All American, Inc., 290 N.W.2d 348, 354 (Iowa 1980). While it is clear that the work environment cannot be excluded as a cause of claimant's problems, the undersigned cannot conclude that the medical opinions in this case show that the work was a substantial factor in bringing about the result. A review of the only physician rendering an opinion in this case leaves to the conclusion that the work was not Page 14 a substantial factor in bringing about the result although the work place cannot be excluded as a factor. Therefore, it is concluded that claimant has failed to establish his work was the factual cause of his mental injury. However, even if claimant had proved that the work was the factual cause of his mental condition, claimant must also prove that it was the legal cause. The standard for making this determination is whether claimant proved that the mental condition resulted from his situation of greater dimensions than day-to-day mental stresses and tensions which all employees must experience. Williams Kostelac v. Feldman's, Inc., (Appeal Decision filed June 13, 1990). The undersigned cannot conclude claimant has shown that the work stresses placed upon him were of greater dimensions than the day-to-day mental stresses and tensions which all employees must experience. In Swiss Colony v. Department of ICAR, 240 N.W.2d 128 (Wisconsin 1976), the court noted that "out of ordinary work stresses must be shown in order for claimant to recover." Id. at 240 N.W.2d at 132. The expectation of a supervisor that an individual in a responsible position perform to the fullest extent of that responsibility cannot be deemed out of ordinary work stress. With the transfer from Riverview to IMMC came increased responsibility. Claimant was aware of this if, for no other reason, than the size of the facility. Different managers have different management styles as well as skills. It was not reasonable for claimant to expect his supervisors to conform to his own working style. Further, claimant was clearly not equipped to handle the responsibility of business manager. In a phrase, claimant was "in over his head" and the stress he felt was not out of the ordinary considering those circumstances. As well, budget deficit situations exists and are clearly stressful. But such situations are stressful for all employees. The undersigned cannot dispute claimant felt this stress for even Dr. Brewer acknowledged that all employees would feel stress. However, Dr. Brewer went on to state that whether all employees would get depressed is another question. It is undisputed that claimant also failed at subsequent employment with Four Oaks. He had essentially the same complaints there as with IMMC. This leaves the undersigned to conclude that claimant's problems were more internal than the result of external forces. Therefore, claimant has also failed to establish legal causation and consequently has failed to prove he sustained an injury that arose out of and in the course of his employment. Claimant shall take nothing from these proceedings. order Page 15 Based on the conclusions of law previously stated, it is ordered, therefore, that claimant shall take nothing as a result of these proceedings. Defendants shall pay the costs of this action, pursuant to 343 IAC 4.33. Signed and filed this ____ day of July, 1991. ______________________________ DEBORAH A. DUBIK DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr William D Martin Attorney at Law 420 Paramount Bldg Cedar Rapids IA 52401 Mr. Thomas M Wertz Attorney at Law 4089 21st Ave SW Ste 114 Cedar Rapids IA 52404 Page 16 Mr Greg Knoploh Ms Joanne Moeller Assistant Attorneys General Tort Claims Hoover Building Des Moines IA 50319 1800; 2204 Filed July 18, 1991 Deborah A. Dubik before the iowa industrial commissioner ____________________________________________________________ : GERALD L. KUHL, : : Claimant, : : vs. : : File No. 821068 IOWA MEDICAL CLASSIFICATION : CENTER, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1800; 2204 Claimant alleged mental/mental injury arising out of stress from his relationship with his supervisor. Claimant was a living example of the "Peter Principle." Claim for benefits denied. Page 1 before the iowa industrial commissioner ____________________________________________________________ : CAROLINA PRICE, : : Claimant, : : vs. : : File No. 821082 CHEROKEE MENTAL HEALTH : INSTITUTE, : : R E V I E W - Employer, : : R E O P E N I N G and : : D E C I S I O N STATE OF IOWA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in review-reopening brought by Carolina Price, claimant, against her employer, Cherokee Mental Health Institute, and the State of Iowa, as defendants. The matter came on for hearing before the undersigned deputy industrial commissioner on March 4, 1992, at Storm Lake, Iowa. Claimant offered exhibits A through R, to which defendants objected due to non-compliance with the fifteen day rule as set out in the hearing assignment order, which was filed on August 21, 1991. Claimant argues that the exhibit list and witness list were placed in the mail on February 18, 1992, fifteen days prior to the hearing date. Defendants submit the envelope containing the witness and exhibit lists which has a postmark date of February 19, 1992. The undersigned has carefully considered the argument from both parties, and admits the evidence. Specifically, the proof of service stamps on both the witness and exhibit lists certifies that a copy was served upon each attorney of record on February 18, 1992. This is the last day that would comply with the fifteen day rule as set out in the hearing assignment order, and claimant's exhibits A through R are received. Claimant's exhibits S, T, U were not admitted as they were served less than 15 days prior to the hearing. Claimant's exhibits V, W and X were admitted during the hearing. Page 2 findings of fact Claimant, Carolina Price, was injured while working as a custodial worker at the Mental Health Institute in Cherokee, Iowa. As claimant was helping a coworker move a scrubbing machine, she fell backwards onto a pile of lumber. The scrubbing machine fell on top of her and claimant sustained an injury to her upper back. Claimant was initially treated by Don Coser, M.D. He retired in May of 1986, and referred claimant to Patricia Harrison, M.D., for further care (Claimant's Exhibit A). Dr. Harrison treated claimant from 1986 through the present. In February of 1989, claimant entered into an agreement for settlement regarding her work-related injuries due to the accident on April 3, 1986. The settlement allowed claimant to receive an additional 50 weeks of benefits based on a 10 percent functional impairment to the body as a whole (Defendants' Exhibit 1). The testimony of the vocational rehabilitationist was considered. Defendants were aware of her involvement and could have taken steps to secure information. In March of 1989, claimant had an acute flare-up of her back and neck condition and was referred by Dr. Harrison to a radiologist for an MRI. The results of the MRI showed a previously undiscovered herniated disc at C5-6 (Cl. Ex. G). Claimant was referred to Quentin J. Durward, M.D., a neurosurgeon. He recommended a disc fusion operation, and diskectomy was performed on May 1, 1989 (Def. Ex. 2, pp. 3- 9). During the next several months, claimant continued treatment with Dr. Durward and was eventually admitted to the Marion Health Center in Sioux City, Iowa, for a cervical myelogram due to persistent neck and bilateral shoulder pain. The results of the myelogram showed excellent nerve root, decompression and no underlying lesions (Def. Ex. 2, pp. 13-15). Claimant continued to complain of pain in the neck and shoulders area and in the upper and lower back. From September 1989 through 1990, claimant has undergone physical therapy, isokinetic therapy, myofascial pain blocks and a plain clinic program to help her cope with the pain. None of the programs have provided long term relief (Def. Exs, 4, 6 and 7). Claimant also continued to receive follow-up care from Dr. Harrison (Cl. Ex. C). In March of 1990, Dr. Durward formed the following opinion: My current diagnosis of Mrs. Prices' condition is that she has myofascial pain disorder causing chronic neck pain. This was preceded by a cervical disk degeneration and rupture which has been successfully treated with surgical fusion. Page 3 Objectively I can find no reason why Mrs. Price cannot return to work in the custodial department of the Cherokee Mental Health Institute. However, she has complains of such severe pain that she says she cannot return to work because of that. She also says that even sitting at a desk bent forward gives her severe neck pain so she cannot write. I objectively do not understand why she has such persistent severe ongoing pain. I felt that it would be reasonable to refer her to the pain clinic at the University of Nebraska for their opinion regarding diagnosis and consideration of treatment in the pain clinic program. As far as having a permanent partial impairment rating, I would feel that she qualifies for a 20% impairment rating according to the scale of the American Academy of Orthopedic Surgeons. (Def. Ex. 2, p. 22) In October of 1990, Dr. Durward revised his opinion: She has been going through various psychological and physical therapeutic measures to help deal with this and accept it. She feels she cannot return to any type of job. She feels she has no stamina at all, and with any activity which she is at for more than 15 minutes she gets severe pain, e.g., cleaning windows. .... My own feeling is that nothing further surgically can be done to help her. I think she does have a permanent partial impairment rating of 15%, according to the AMA guidelines of the body as a whole. I think probably she is not going to be able to find any occupation that does not exacerbate this pain and may not be able to work again. (Def. Ex. 2, p. 23) Dr. Harrison was also of the opinion that claimant would be unable to return to any type of work due to chronic pain (Cl. Ex. E). In May of 1991, Dr. Harrison concluded that claimant had a permanent disability due to a diagnosis of myofascial syndrome, and that claimant was unable to perform any lifting, pushing, or repetitive movements of the upper extremities (Cl. Ex. F). Claimant has not worked since her operation in May of 1989. analysis and conclusions of law The first issue to be addressed is whether claimant is Page 4 entitled to additional permanent partial disability benefits. In a review-reopening proceeding, the claimant has the burden of establishing that he has suffered an additional impairment or lessening of his earning capacity as a proximate result of the original injury, subsequent to the date that the agreement for settlement which is now under review was entered into. Deaver v. Armstrong Rubber Co., 170 N.W.2d 455, 457 (Iowa 1969). One cause for allowance of additional compensation is when it is shown that facts relative to an employment-connected injury existed, but were unknown and could not have been discovered by the exercise of reasonable diligence. Gosek v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968). Review-reopening has been allowed where the employee did not improve as much as had been anticipated. Meyers v. Holiday Inn of Cedar Falls, Iowa, Iowa App., 272 N.W.2d 24 (1978). In this case, claimant settled her case based upon any initial diagnosis of a cervical strain with a final diagnosis of cervical myofascial syndrome. The terms of the settlement provide that claimant was entitled to 50 weeks of permanent partial disability benefits based on a 10 percent permanent partial disability to the body as a whole. Shortly after the agreement for settlement was signed, claimant encountered an acute flare-up of her condition, and was subsequently diagnosed with a herniated disc at the C5-6 level. She underwent surgery to correct the same, and has not had any type of employment since the surgery. The herniated disc had not been diagnosed at the time the agreement for settlement was signed, and there is no showing in the record that claimant knew she would need cervical surgery. The identification of the previously undiagnosed cervical condition is clearly a sufficient change of condition to warrant review-reopening and reconsideration of claimant's award. Claimant testified and it is corroborated by the medical evidence that she continued to experience neck pain. Both Dr. Harrison and Dr. Durward relate claimant's need for the diskectomy to her April 1986 work accident. It is therefore determined that there has been a change of condition which was proximately caused by the April 3, 1986 injury and that this change was not discoverable in the exercise of reasonable diligence at the time the settlement was entered into in February 1989. Claimant's condition is part of the injury which arose out of and in the course of her employment on April 3, 1986. As claimant has an impairment to the body as a whole, her industrial disability will be analyzed. 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, expe rience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, Page 5 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disabil ity. This is so as impairment and disability are not syn onymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial dis ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, l985). At the time of the hearing, claimant was 58 years of age, nearing retirement age. Although it is speculative to determine whether claimant would retire at age 62 or 65 or any other particular age, retirement at some point in the future is probable. Claimant completed the eighth grade in school, and retraining of any type would not be practical. The medical evidence supports the conclusion that claimant's physical condition has deteriorated, and this was observed at the hearing. However, Dr. Durward, who Page 6 performed the diskectomy, could find no objective reasons why claimant continued to have the severe limiting pain. He did, however, increase her functional impairment from the 10 percent at the time of the agreement for settlement to 15 percent. Due to the restrictions imposed by Dr. Harrison, claimant has sustained a substantial loss of access to the employment market. However, claimant has not shown a great amount of motivation to re-enter the labor market. After considering all of the pertinent factors of industrial disability, it is found that claimant has sustained an additional 30 percent permanent partial disability. This entitles her to receive 150 weeks of compensation. Defendants also raise the issue of whether claimant is entitled to additional medical benefits pursuant to Iowa Code section 85.27. According to the prehearing report submitted by the parties prior to the hearing, defendants argue that medical expenses incurred were not reasonable and necessary, that the medical expenses were not causally connected to the work injury, and that the expenses were unauthorized. The undersigned finds no merit in any of these arguments. Specifically, Dr. Harrison, who was claimant's authorized treating physician at the time of the agreement for settlement, continued in that capacity once the agreement was signed. Additionally, Dr. Harrison referred claimant to Dr. Durward, but in so doing did not relinquish her care of claimant. Likewise, each and every physical therapist or institution which provided claimant with some type of service was authorized based on Dr. Harrison's or Dr. Durward's referral. The medical evidence supports a finding that the treatment given claimant was to provide her with relief for the cervical neck problem. Therefore, it is concluded that claimant is entitled to medical benefits. order THEREFORE, it is ordered: That defendants shall pay claimant forty-four point four two nine (44.429) weeks of healing period benefits at the rate of one hundred fifty-four and 09/100 dollars ($154.09) per week beginning April 24, 1989, as stipulated to at the hearing. That defendants shall pay claimant one hundred fifty (150) weeks of permanent partial disability benefits at the rate of one hundred fifty-four and 09/100 dollars ($154.09) per week beginning March 1, 1990. That defendants shall pay the costs of claimant's medical treatment, as provided by Iowa Code section 85.27. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. Page 7 That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall pay the costs of this action, pursuant to rule 343 IAC 4.33. That defendants shall file an activity report upon payment of this award as required by this agency, pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of April, 1992. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr John D Loughlin Attorney at Law 231 W Maple St P O Box 398 Cherokee IA 51012 Ms Shirley Steffe Assistant Attorney General Tort Claims Hoover Building LOCAL 5-1803 Filed April 23, 1992 Patricia J. Lantz before the iowa industrial commissioner ____________________________________________________________ : CAROLINA PRICE, : : Claimant, : : vs. : : File No. 821082 CHEROKEE MENTAL HEALTH : INSTITUTE, : : R E V I E W - Employer, : : R E O P E N I N G and : : D E C I S I O N STATE OF IOWA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803 Claimant, on review-reopening, showed change of condition not contemplated at the time of the original agreement for settlement. Claimant underwent a diskectomy of the cervical spine. She has an eighth grade education and few transferable skills. She was awarded 30% industrial disability based on age 58 and other relevant factors. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ELIZABETH ROMINE, Claimant, File No. 821106 vs. A R B I T R A T I O N JOB SERVICE OF IOWA, D E C I S I O N Employer, F I L E D and JAN 27 1989 STATE OF IOWA, IOWA INDUSTRIAL COMMISSIONER Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Elizabeth Romine, claimant, against Job Service of Iowa, an agency of the State of Iowa, self-insured, for workers' compensation benefits as a result of an alleged injury on April 10, 1986. On June 22, 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 Bill Griencewic, claimant's former supervisor. The exhibits received into the evidence at the hearing are listed in the prehearing report. According to the prehearing report, the parties have stipulated to the following matters: 1. On April 10, 1986, claimant received an injury which arose out of and in the course of her employment. 2. The injury is a cause of temporary and permanent disability. 3. Claimant's rate of weekly compensation in the event of an award of weekly benefits from this proceeding shall be $234.15 per week. 4. Claimant is entitled to healing period benefits for at least a period from April 10, 1986 through July 6, 1986 except for a two week period beginning on June 2, 1986 through June 13, 1986. This two week period is in dispute. 5. All requested medical benefits have been or will be paid by defendants. ISSUE The only issue submitted by the parties for determination in this proceeding is the extent of claimant's entitlement to weekly benefits for disability and for additional benefits for an alleged unreasonable non-payment of any permanent disability benefits prior to the hearing. SUMMARY OF THE EVIDENCE Pursuant to an order of the undersigned, each party was to prepare and file a "Statement of Facts Relied Upon" to simplify the writing of this decision. Apparently, the parties misunderstood the directive. Claimant submitted a listing of legal and factual points relied upon. Defendant submitted a proposed findings of facts. At any rate, the entire record was reviewed independently and considered in arriving at this decision. The following is a brief overview of the more pertinent evidence. Conclusions contained in the following summary should be treated as preliminary findings of fact. Claimant is 55 years of age and a high school graduate. At the time of the injury, she was working as a job service interviewer and she continues in this employment at the present time. This job is mostly office type work and involves sitting for prolonged periods of time. On April 10, 1986, claimant accidentally collided with an exceptionally large fellow worker and fell to the floor fracturing her right upper femur just below the femur head. The femur head forms the ball of the "ball and socket" hip joint. Claimant was hospitalized and underwent immediate reduction surgery which included the insertion of supportive screws into the femur to secure the bone for proper healing. After release from the hospital, claimant underwent a six week convalescent period using a walker and later a cane. Claimant's primary treating physician was Mark Wheeler, M.D., an orthopedic surgeon. Dr. Wheeler released claimant to return to work on Tuesday, May 27, 1986 with restrictions against prolonged standing, walking, bending or lifting. Claimant testified that she returned to work at that time but after a full eight-hour day she was exhausted. She said that she then attempted to call Dr. Wheeler but due to his absence from the office she discussed the matter with his associate. Claimant said that she was told by the associate that she "over did" her return to work and to "take it easy" by working half days if she could. Claimant then worked half days on the following Wednesday and Thursday but failed to report for work on Friday. Claimant then left on a trip to North Carolina with her husband and some friends to attend a two week "PTL" convention which claimant stated had been planned since January, 1986. Claimant said that she called Dr. Wheeler's office on Monday from North Carolina complaining that her work activity the week before had overly fatigued her. After this message was relayed to Dr. Wheeler he took claimant completely off work until the end of the month. Claimant returned from North Carolina on June 13, 1986. Claimant testified that she had discussed this North Carolina trip with Dr. Wheeler before leaving and that Dr. Wheeler approved of the plans because she would ride in the rear of the van which had a bed available for resting. When told of claimant's travel activities by defendant, at first Dr. Wheeler stated that he was unaware of such activity and would not have extended her medical leave had he known. There had been no mention of such a trip in any of Dr. Wheeler's prior office notes. However, in his deposition taken in May, 1988, Dr. Wheeler said that after talking with claimant he now remembers discussing a trip of some sort with claimant before June, 1986 and that claimant's account of the incident is substantially correct. Contrary to what he has stated in writing earlier, Dr. Wheeler said that the knowledge of claimant's travel activities on June 2, 1986 would not have changed his mind concerning the leave extension. He states that claimant had returned to work too quickly after major surgery. He added that being on a trip to North Carolina would still be restful and a part of the healing process. Claimant returned to work half days on July 7, 1986 and to full duty without restrictions on August 8, 1986. Claimant continues to work in the same job as before for Job Service. Claimant's supervisor testified that claimant made no complaints to him at any time that her job was difficult for her to physically perform. Dr. Wheeler originally opined that claimant had a 10 percent permanent partial impairment to the body as a whole from the fractured hip but later changed his opinion to include a 10 percent rating to the lower extremity after consulting the AMA Guides. Claimant was also evaluated by John J. Dougherty, M.D., another orthopedic surgeon, who likewise rated claimant's impairment at five percent of the lower extremity but states that Dr. Wheeler's 10 percent rating is reasonable but "a little bit high." Neither doctor found any arthritis or necrosis problems following the healing of the fracture. Dr. Wheeler explained his impairment rating in his deposition. Dr. Wheeler testified that although the fracture was to the femoral neck just below the head, his impairment rating was based upon a loss of range of motion to the hip joint. He stated that he observed radiographic changes to the hip and states in his deposition as follows on page 31 beginning on line 9: A. Yes. Most likely the loss of motion is due to scarring from the surgery from the fracture in that hip joint from where that break occurred in the top of the femur or the femoral head. Claimant testified that her past employment primarily consisted of office clerical work and a responsible position as an assistant branch manager of a bank. Although claimant's age and lack of formal education beyond high school would indicate a limited potential for vocational rehabilitation, no such rehabilitation is necessary as claimant has returned to work in the same job as she was performing at the time of the injury. APPLICABLE LAW AND ANALYSIS The first issue is whether the injury is to the body as a whole or whether the injury is limited to the schedule for an injury to the leg or lower extremities. It is settled that a hip joint is not included in the leg schedule of Iowa Code section 85.34(2)(o). Lauhoff Grain v. McIntosh, 395 N.W.2d 834, 839 (Iowa 1986). Involvement of the femur head which forms the ball of the "ball and socket" hip joint is an injury to the body as a whole under Iowa Code section 85.34(2)(u). In the case sub judice, the statements of Dr. Wheeler in his deposition clearly relate an injury to the hip joint with scarring involvement of the femur head resulting in a loss of motion or rotation of the hip joint. Therefore, claimant has clearly established an injury to the body as a whole, not an injury to the lower extremity despite the ratings of the physicians in this case. 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; 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 v. Goodyear Service Stores, 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. She had no functional impairments or ascertainable disabilities other than chronic ear infections which occasionally affected her hearing. Claimant was able to fully perform the physical tasks of her work involving repetitive light lifting, bending, twisting, walking, stooping and prolonged standing and sitting. Claimant's treating physician, Dr. Wheeler, has given claimant a significant permanent partial impairment ratings. Dr. Wheeler gives a 10 percent permanent partial impairment rating to the lower extremity but fails to convert this to the body as a whole. Dr. Dougherty likewise rates claimant's disability as five percent loss to the lower extremity. Dr. Wheeler's views are given the most weight due to the fact that he is the treating physician and has the most clinical involvement with claimant. He testified that he used the AMA Guidelines in arriving at the rating. Using these guidelines, the undersigned finds that a 10 percent loss of use to the lower extremity converts to a four percent impairment to the whole person. Claimant's physicians have not significantly restricted claimant's work activities and she has returned to work without difficulty. Claimant's current employment is suitable and stable. Claimant has not suffered a loss of actual earnings. However, a showing that claimant has no loss of actual earnings does not preclude a finding of industrial disability. See Michael v. Harrison County, Thirty-fourth Biennial Report, Iowa Industrial Commissioner 218, 220 (Appeal Decision 1979). After examination of all the factors, it is found as a matter of fact that claimant has suffered a ten percent loss of her earning capacity from the work injury. Based upon such finding, claimant is entitled as a matter of law to 50 weeks of permanent partial disability benefits under Iowa code section 85.34(2)(u) which is four 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, claimant is entitled to weekly benefits for healing period under Iowa Code section 85.34 from the date of injury until claimant returns to work or until she is medically capable of returning to substantially similar work she was performing at the time of the injury. The only dispute with reference.to healing period is the two week period claimant attended the PTL conference in North Carolina. Defendant has not paid benefits for this period of time. The undersigned believes that defendant is correct in not paying such benefits. Although Dr. Wheeler was very supportive in his deposition comments with reference to how restful attending a convention can be, the undersigned simply cannot ignore the fact that claimant rather too conveniently became so fatigued that she could not work in any capacity at the same time she was on her way to a two week convention trip to North Carolina. Claimant was simply not credible in this matter. Therefore, on the whole record claimant has failed to demonstrate that she was incapable of returning to work in any capacity from June 2, 1986 through June 13, 1986 and healing period benefits are denied for this period of time. Claimant seeks additional benefits for failure to pay any amount of permanent disability benefits prior to hearing despite the opinions of two physicians that claimant suffered some degree of permanent partial impairment. As set forth above, functional loss does not equate to industrial loss or loss of earning capacity. This claim for additional benefits must be denied. It is reasonable to take the position in industrial cases such as the one at bar that claimant suffered no loss of earning capacity when claimant returned to work without restrictions to the same job with no loss of earnings. FINDINGS OF FACT 1. From her appearance and demeanor while testifying, claimant was not found credible on the events leading up to her trip to North Carolina to attend a PTL conference when she claimed that she was so fatigued that she could not work in any capacity or for any length of time. 2. The work injury of April 10, 1986, consisting of a fracture to the femoral neck of the right femur was a cause of a period of total disability from work beginning on April 10, 1986 and ending on July 7, 1986 except for a brief return to work from May 27 through May 29, 1986 and a two week period from June 2, 1986 through June 13, 1986. 3. The work injury of April 10, 1986, was a cause of a four percent permanent partial impairment to the body as a whole due to a loss of range of motion to the right hip joint. The surgery performed to prepare the fracture caused scar tissue to develop on the femoral head effecting its capacity to rotate within the hip socket and therefore the hip joint is a part of the injury process in this case. 4. The work injury of April 10, 1986, and the resulting permanent partial impairment was a cause of a ten percent loss of earning capacity. Claimant has a significant impairment but has no loss of earnings and no significant work restrictions and is able to perform her current work. However, claimant has suffered a loss of mobility to her hip which effects her capacity to perform other more physically demanding occupations. CONCLUSION OF LAW Claimant has established under law entitlement to the specific disability benefits awarded below. ORDER 1. Defendant shall pay to claimant fifty (50) weeks of permanent partial disability benefits at the rate of two hundred thirty-four and 15/100 dollars ($234.15) per week from July 7, 1986. 2. Defendant shall pay to claimant healing period benefits from April 10, 1986 through July 6, 1986 at the rate of two hundred thirty-four and 15/100 dollars ($234.15) per week except for the period from May 27 through May 29, 1986 and from June 2 through June 13, 1986. 3. Defendant shall pay accrued weekly benefits in a lump sum and shall receive a credit against this award for weekly benefits previously paid. 4. Defendant shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 5. Defendant shall pay the cost of this action pursuant to Division of Industrial Services Rule 343-4.33. 6. Defendant 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 27th day of January, 1989. LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Harry H. Smith Attorney at Law P. 0. Box 1194 Sioux City, Iowa 51102 Mr. Robert D. Wilson Assistant Attorney General Hoover State Office Bldg. Des Moines, Iowa 50319 1802; 1803.1 Filed January 27, 1989 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER ELIZABETH ROMINE, Claimant, vs. File No. 821106 JOB SERVICE OF IOWA, A R B I T R A T I 0 N Employer, D E C I S I 0 N and STATE OF IOWA, Insurance Carrier, Defendants. 1802; 1803.1 It is found, due to the fact that the treating physician found involvement of scar tissue in the operation of the femoral head of the hip joint, a body as a whole injury was found to exist and claimant's disability was evaluated industrially. However, only ten percent industrial disability was awarded as claimant has returned to her former job. Healing period benefits were denied to claimant when she obtained an extension of her healing period when she attended a PTL convention in the State of North Carolina. At the time claimant had called her doctor while in North Carolina complaining that she was too fatigued to return to work, but at the same time felt perfectly able to travel by automobile to North Carolina to attend a two week convention. Claimant failed to show that she was not capable of returning to work during the two week period and healing period benefits were denied. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ELIZABETH ROMINE, Claimant, vs. File No. 821106 JOB SERVICE OF IOWA, O R D E R Employer, and STATE OF IOWA, Insurance Carrier, Defendants. As pointed out by defense counsel, a typographical error appears in the arbitration decision filed on January 27, 1989 on page 5, 6 lines from the bottom. The decision is modified to read, "which is ten percent of 500 weeks." Signed and filed this 17th day of February, 1989. LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Harry H. Smith Attorney at Law P. O. Box 1194 Sioux City, Iowa 51102 Mr. Robert D. Wilson Assistant Attorney General Hoover State Office Bldg. Des Moines, Iowa 50319 BEFORE THE IOWA INDUSTRIAL COMMISSIONER DAVID SCOTT RIDER, File No. 821297 Claimant, A R B I T R A T I O N vs. D E C I S I O N D.M. CLARK ENGINEERING, F I L E D Employer, JUN 27 1989 Defendant IOWA INDUSTRIAL COMMISSIONER This is a proceeding in arbitration brought by David Rider, claimant, against D.M. Clark, employer, to recover benefits under the Iowa Workers' Compensation Act for an alleged injury of December 12, 1985. This matter was to come on for hearing June 13, 1989, at 3:00 p.m., in the county courthouse located in Sioux City, Iowa. An examination of the industrial commissioner's file reveals an original notice and petition was filed June 19, 1986 and no answer was filed by defendant thereto. On November 3, 1986, defendant was ordered to show cause within twenty days of the filing of the order as to why the record should not be closed to further activity or evidence by defendant pursuant to Division of Industrial Services Rule 343-4.36. No response was filed to the order and on December 10, 1986 an order was entered closing the record in such a manner. A prehearing conference was held December 28, 1988 with claimant's counsel participating and the matter was set for hearing as stated above. On June 9, 1989, the department received correspondence from claimant's counsel which stated, in part: I have just received a letter from David Rider asking that I retire as his attorney inasmuch as he wants to turn his case over to another attorney. While this matter has not been finalized as yet, it is essential that the compensation hearing be rescheduled for a later time inasmuch as evidently he does not want me to represent him at this hearing. This should not be a problem as D. M. Clark has never filed an appearance nor responded to any of the previous hearings. I am sending a copy of this to David Rider at the address he gave me, which is c/o Virgil Rider, Rt. #1, Box 76, Westfield, Iowa 51062. Claimant's motion to continue was denied on June 12, 1989, on the basis that: "Claimant [sic] desire to obtain new counsel immediately prior to hearing is insufficient reason to continue this matter." The undersigned was present at the scheduled hearing time. Claimant's counsel was present to renew his motion to continue and to move that the allegations of the petition and pleadings be admitted. There was no appearance on behalf of defendant. Claimant has the burden of proving by a preponderance of the evidence that he received an injury which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976). Claimant failed to present any evidence in support of the allegations found in his original notice and petition. WHEREFORE, it is found: 1. Neither claimant nor defendant appeared at the scheduled time and place of hearing. 2. The undersigned deputy industrial commissioner was present and prepared to proceed to hearing. 3. Counsel for claimant appeared to renew a motion to continue which had previously been denied and to move that the allegations presented in the original notice and petition be deemed admitted. 4. Claimant failed to present any evidence to support allegations of a compensable work injury. THEREFORE, it is concluded: Claimant has failed to meet his burden of proof that he sustained an injury which arose out of and in the.course.of his employment. THEREFORE, it is ordered: Claimant take nothing from this proceeding. Costs are assessed against claimant pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 27th day of June, 1989. DEBORAH A. DUBIK DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Ronald E. Runge Attorney at Law 236 Davidson Bldg. Sioux City, IA 51101 D M Clark Engineering 2188 SE Spruce St Hillsboro, OR 97123 51400; 51402 Filed June 17, 1989 Deborah A. Dubik BEFORE THE IOWA INDUSTRIAL COMMISSIONER DAVID SCOTT RIDER, Claimant, File No. 821297 vs. D.M. CLARK ENGINEERING, A R B I T R A T I 0 N Employer, D E C I S I 0 N Defendant 51400; 51402 Claimant failed to appear at hearing. No evidence in support of allegations of a compensable work injury was presented and claimant therefore failed to meet his burden of proof. Page 1 before the iowa industrial commissioner ____________________________________________________________ : GERALDINE L. PRATT, : : Claimant, : : vs. : : File No. 821303 JIM RATLIFF and MARK CODEY : d/b/a HARVEST INN a/k/a : A R B I T R A T I O N THUMBS RESTAURANT, : : D E C I S I O N Employer, : : and : : U.S.F. & G., : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration upon the petition of claimant, Geraldine L. Pratt, against her employer, Jim Ratliff and Mark Codey, d/b/a Harvest Inn a/k/a Thumbs Restaurant, and their insurance carrier, U.S.F. & G., defendants. The case was heard in Council Bluffs, Iowa on May 3, 1990. The record consists of the testimony of claimant, the testimony of claimant's spouse, Alfred J. Pratt, as well as the testimony of Paula Freeman, rehabilitation specialist. The record also consists of joint exhibits 1-70 and claimant's exhibit A. issues The issues to be determined are: 1) whether claimant is entitled to temporary disability/healing period benefits or permanent partial disability benefits; and 2) whether claimant is entitled to medical benefits pursuant to section 85.27. findings of fact The deputy, having heard the testimony and considered all the evidence, finds: At the time of the hearing, claimant was 55 years old and married. She commenced her employment at the Thumbs Restaurant in 1982. On March 8, 1986, the date of the work injury, the defendants owned the business establishment. Claimant slipped on water as she was exiting from the kitchen. She tried to catch herself, twisted her back and "did the splits." Following her injury, claimant sought the services of numerous Page 2 medical practitioners. First, she sought chiropractic treatment from J. Jeffrey Mallory, D.C. He treated her for lumbosacral problems. Then she sought care from Anil K. Agarwal, M.D., an orthopedist. He diagnosed claimant as having "[t]rochanteric bursitis, left hip. Asymptomatic L3-L4 disc - unrelated to the accident...." Dr. Agarwal opined that claimant did not have any permanent impairment. He also opined claimant could return to work as of July 2, 1986. Dr. Agarwal additionally opined: The etiology of this trochanteric bursitis: any strain, trauma, or sometimes without trauma, can lead to inflammation of the trochanteric bursa. It would be very speculative to say whether this was the result of Mrs. Pratt's fall or not. Claimant sought treatment from her internist, David A. Jasper, M.D. He had treated claimant for an auto accident in 1982. In November of 1986, he treated claimant for this accident. Dr. Jasper opined in December of 1986: We feel that Geraldine Pratt's trochanteric bursitis was not caused by the accident. One could make some argument for the fact that she has a significant back problem and has to favor her back. This may have caused her to perhaps walk differently and sustain the trochanteric bursitis, but this would only be speculative. We believe the trochanteric bursitis is not related to her accident. There should be no permanent damage from this problem and she should finish treatment for this at the beginning of January. Later, Dr. Jasper changed his diagnosis to acute post-traumatic back strain. He also noted claimant was having problems with her face, neck, back, left leg and left foot. He opined claimant had a 15 percent permanent partial impairment. In November of 1986, claimant was seen by another orthopedist, Timothy C. Fitzgibbons, M.D. The orthopedist diagnosed claimant as having: 1. Post-traumatic lumbosacral strain, with questionable left lower extremity radiculopathy. 2. Probable bilateral chronic trochanteric bursitis. Dr. Fitzgibbons causally related claimant's symptoms to her work injury of March 8, 1986. Dr. Edward Schima, M.D., a neurologist, conducted an EMG. With respect to the left lower extremity, the results were normal. On February 27, 1987, Dr. Fitzgibbons injected both trochanteric bursae with Xylocaine, Marcaine, and Depo-Medrol. No long-term effects were evidenced. He rated claimant as having a five percent permanent partial impairment to the body as a whole. Claimant then sought the services of a neurosurgeon, Maurice P. Margules, M.D. A myelogram was performed. The results were negative. Dr. Margules diagnosed claimant as having "post-traumatic neuralgia of the lateral cutaneous nerve of the thigh, left." As a result of that diagnosis, claimant had a decompression of the lateral cutaneous nerve of the thigh, left. As of September 24, 1987, Dr. Margules determined claimant had Page 3 reached maximum medical improvement. Initially, Dr. Margules rated claimant as having a five percent permanent partial impairment. Later, Dr. Margules modified his rating to reflect a 10-15 percent body as a whole rating. Dr. Margules also restricted claimant to sedentary-type of employment. She was not to return to waitress work. Pursuant to a referral to Leonard E. Weber, M.D., neurologist, electrical testing was conducted. Dr. Weber opined claimant suffered from: 1. Partial injury of the left lateral femoral cutaneous nerve of the left thigh. 2. Persistent pain and sensory change on the lateral aspect of the left thigh, secondary to (1). 3. Mild discomfort of left sacroiliac joint origin. 4. Functional overlay on sensory testing in the left lower extremity from the knee down (but the lateral femoral cutaneous territory sensory changes are likely organic). Dr. Weber rated claimant as having an eight percent permanent impairment to the left lower extremity. He released claimant for training, on the job training, or work activity. However, Dr. Weber restricted claimant from bending or prolonged walking more than an hour. He also indicated that if claimant underwent a left lateral femoral cutaneous neurectomy, claimant would have no limitations on her activities. Claimant refused the neurectomy. Finally, claimant began experiencing difficulties with her left foot, left first and second toes. Collagen vascular disease and arthritis were ruled out as causing the problems. The original foot complaints predated the date of the injury. After Dr. Margules released claimant for retraining, Paula K. Freeman, of Quality Rehabilitation Services, was hired by defendant insurance carrier to provide vocational rehabilitation. Ms. Freeman made numerous requests of claimant and her attorneys to provide rehabilitation. Ms. Freeman's efforts were unsuccessful. At the time of the hearing, claimant had not returned to work. conclusions of law The right of a worker to receive compensation for injuries sustained which arose out of and in the course of employment is statutory. The statute conferring this right can also fix the amount of compensation to be paid for different specific injuries, and the employee is not entitled to compensation except as provided by the statute. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). An injury to a scheduled member may, because of after effects (or compensatory change), result in permanent impairment of the body as a whole. Such impairment may in turn form the basis for a rating of industrial disability. Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). Soukup, 222 Iowa 272, 268 N.W. 598 (1936). An injury to a scheduled member which, because of after-effects (or compensatory change), creates impairment to the body as a Page 4 whole entitles claimant to industrial disability. Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). Daily, 233 Iowa 758, 10 N.W.2d 569 (1943). An injury is the producing cause; the disability, however, is the result, and it is the result which is compensated. Barton, 253 Iowa 285, 110 N.W.2d 660 (1961); Dailey, 233 Iowa 758, 10 N.W.2d 569 (1943). If a claimant contends he has industrial disability he has the burden of proving his injury results in an ailment extending beyond the scheduled loss. Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964). Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. This is so as impairment and disability are not synonymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportion ally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifi cations 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 arriv ing 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, moti vation - 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 Page 5 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, l985). For example, a defendant employer's refusal to give any sort of work to a claimant after he suffers his affliction may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). Similarly, a claimant's inability to find other suitable work after making bona fide efforts to find such work may indicate that relief would be granted. McSpadden, 388 N.W.2d 181 (Iowa 1980). In the case before this deputy, claimant has proven by a preponderance of the evidence that she has sustained a permanent partial disability to the body as a whole and not just a permanent impairment to the left lower extremity. Claimant has injured her left leg, her hip is affected and her lumbosacral spine, as well. When Dr. Margules performed his decompression of the lateral cutaneous nerve of the thigh, he performed the following: A linear vertical incision was placed, centered over the anterior and superior iliac spine. The incision was carried through the superficial layer until the bony structures of the anterior and superior iliac spine was exposed. The lateral cutaneous nerve of the thigh was then exposed after blunt dissection and the nerve was well visualized as it came out of the pelvis onto the thigh, covered by ligament which was completely transected. The lateral insertion of the inguinal ligament was then completely transected and the nerve was well decompressed and well exposed. (Emphasis added) More than just the left lower extremity was affected. The above quotation illustrated that. Additionally, claimant was treated by several medical practitioners for acute lumbosacral strain following her work injury and for chronic trochanteric bursitis which Dr. Fitzgibbons causally related to claimant's work injury. Permanent partial impairment ratings have been assessed from 3 percent to 15 percent. Additionally, claimant is restricted from returning to her position as a waitress. She is also restricted to sedentary employment. Claimant is to refrain from prolonged bending and walking. Claimant dropped out of high school in the ninth grade. She has no GED. Claimant's age of 56 is working against her. She has few transferable skills. She was fired from the Thumbs Restaurant. Claimant is not the best candidate for retraining. Nor is claimant especially motivated to accomplish vocational rehabilitation. She was less than cooperative with Ms. Freeman. Claimant has not made a concerted effort to seek employment. After reviewing all of the above, it is the determination of the undersigned that claimant has an industrial disability. She has Page 6 a permanent partial disability of 30 percent. It is also the determination of the undersigned that as of September 24, 1987, claimant had reached maximum medical improvement per Dr. Margules. Therefore, she is entitled to healing period benefits from April 14, 1986 to September 24, 1987. This is a period of 75.571 weeks at the stipulated rate of $194.78 per week. Finally, there is the issue of medical benefits and mileage pursuant to section 85.27. Claimant is entitled to the following which are causally related to her work injury: 3-15-87 Jennie Edmundson Hospital $2,575.05 4-10-87 Jennie Edmundson Hospital 37.50 Radiology Consultants 100.00 12-30-88 Drs. Gross etc. (knee & lateral) 105.00 Walgreen's 169.74 Total $2,987.29 She is also entitled to medical mileage at $.21 per mile for 1101 miles. This totals $231.21. order Defendants are to pay one hundred fifty (150) weeks of permanent partial disability benefits at the rate of one hundred ninety-four and 78/l00 dollars ($194.78) per week commencing on September 25, 1987. Defendants are to pay seventy-five and five-seven-one (75.571) weeks of healing period benefits from April 14, 1986 to September 24, 1987, at the stipulated rate of one hundred ninety-four and 78/l00 dollars per week. Defendants are to pay medical bills in the sum of two thousand nine hundred eighty-seven and 29/l00 dollars ($2,987.29) and two hundred thirty-one and 21/l00 dollars ($231.21) in medical mileage. Defendants shall receive credit for all benefits previously paid and not credited. Interest shall be paid pursuant to section 85.30. Costs of the action shall be assessed to defendants pursuant to rule 343 IAC 4.33. Defendants shall file a claim activity report as requested by this division pursuant to rule 343 IAC 3.l. Signed and filed this ____ day of January, 1991. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Page 7 Copies To: Mr. F. J. Kraschel Attorney at Law 403 lst Federal Savings & Loan Council Bluffs IA 51501 Mr. Thomas L. Root Attorney at Law 306 lst Federal Savings & Loan Bldg P O Box 1502 Council Bluffs IA 51502 Mr. W. Curtis Hewett Attorney at Law P O Box 249 Council Bluffs IA 51502 5-1803.1 Filed January 28, 1991 MICHELLE A. McGOVERN before the iowa industrial commissioner ____________________________________________________________ : GERALDINE L. PRATT, : : Claimant, : : vs. : : File No. 821303 JIM RATLIFF and MARK CODEY : d/b/a HARVEST INN a/k/a : A R B I T R A T I O N THUMBS RESTAURANT, : : D E C I S I O N Employer, : : and : : U.S.F. & G., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803.1 Claimant was awarded a 30 percent permanent partial disability.