BEFORE THE IOWA INDUSTRIAL COMMISSIONER BEVERLY J. FOSTER, Claimant, vs. File No. 821588 PLAZA RESTAURANT AND LOUNGE, A R B I T R A T I 0 N Employer, D E C I S I 0 N and CONTINENTAL WESTERN, F I L E D Insurance Carrier, FEB 27 1989 and INDUSTRIAL SERVICES SECOND INJURY FUND OF IOWA, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Beverly J. Foster against her former employer, Plaza Restaurant and Lounge, Continental Western Insurance Company, the employer's insurance carrier, and the Second Injury Fund of Iowa. Claimant seeks additional compensation for healing period, permanent partial disability, penalty benefits and Second Injury Fund benefits as the result of the bilateral carpal tunnel syndrome which she developed as a result of her work activities for the employer, Plaza Restaurant and Lounge. The issues to be determined include the duration of claimant's healing period, the extent of permanent partial disability attributable to the employer, the liability, if any, of the Second Injury Fund, the rate of compensation and claimant's entitlement to benefits under the fourth unnumbered paragraph of Code section 86.13. The case was heard at Mason City, Iowa on May 27, 1988 and was fully submitted. The record in the proceeding consists of testimony from Beverly J. Foster, Lionel Foster and Jill Larson. The record also contains claimant's exhibits 1 through 20 and defendants' exhibits A through J. Official notice was taken of agency file number 681881, a prior claim made by this same claimant against a different employer. SUMMARY OF EVIDENCE The following is a summary of evidence presented in this case. Of all the evidence received at the hearing, only that considered most pertinent to this decision is discussed. Conclusions about what the evidence showed are inevitable with any summarization. The conclusions in the following summary should be considered to be preliminary findings of fact. Beverly J. Foster is a 47-year-old married lady who lives in Mason City, Iowa. Her education is limited to completion of the tenth grade. She has a limited work history. Claimant was employed at Donutland as a counter waitress from October, 1980 through August, 1981. She was next employed at the Madonna Inn during February through April of 1983 where she performed laundry. Claimant testified that, during 1985, she performed babysitting for which she earned approximately $40 per week. She admitted that she did not report her income from babysitting on her income tax returns. Claimant commenced employment at Plaza Restaurant and Lounge on August 8, 1985. Claimant testified that she understood that the work would be full-time. She stated that she started working approximately six hours per day, but that after three weeks, her hours were cut to five hours per day. She stated that she worked Monday through Friday and was paid $3.50 per hour. Claimant testified that she also worked some Saturdays. Claimant stated that her employment duties were washing dishes by hand, helping the cooks, bussing tables and general cleanup for breakfast and lunch. Claimant testified that she began to experience pain and, swelling in her wrists and numbness in her hands which caused her to drop things in November or early December. She denied having had similar complaints of symptoms prior to that time. Claimant's exhibit 3 shows that, on December 31, 1985, claimant consulted her family physician, Robert A. Breitenbach, M.D., for complaints of wrist and hand numbness and pain. Dr. Breitenbach felt that claimant exhibited early carpal tunnel syndrome and prescribed medication for treatment of her symptoms. When seen again on January 8, 1986, claimant indicated some improvement of her symptoms. On January 16, 1986, her symptoms had increased and a steroid injection of the right carpal tunnel was performed. The note of February 6, 1986 notes that bilateral wrist splints were employed. The note dated February 18, 1986 indicates that claimant was taken off work for one week and that an appointment was scheduled with Thomas F. DeBartolo, M.D., an orthopaedic surgeon for March 5, 1986 (claimant's exhibits 3 and 4). Electromyography confirmed the diagnosis of bilateral carpal tunnel syndrome (claimant's exhibit 5). On March 24, 1986, claimant underwent decompression of the right median nerve at the wrist and, on April 30, 1986, she underwent decompression of the left median nerves of the wrist (claimant's exhibits 7 and 9). On May 22, 1986, Dr. DeBartolo indicated that from a medical standpoint, claimant could return to the type of work she had been performing as a dishwasher (claimant's exhibit 1, page 9). On June 13, 1986 and again on August 13, 1986, Dr. DeBartolo noted that claimant had some achy discomfort and reduced strength, but that she had no median nerve paresthesias. He indicated that he would not rate permanent impairment until approximately 12 months following the date of surgery (claimant's exhibit 1, pages 9 and 10). On March 25, 1987, Dr. DeBartolo performed an extensive examination of the function of claimant's hands. Dr. DeBartolo concluded that claimant had a 14% impairment of her right hand and 13% of her nondominant left hand (claimant's exhibit 12, page 2). Dr. DeBartolo indicated that claimant's dishwashing activities for her employer "most certainly may have been a major component" for her development of carpal tunnel syndrome (claimant's exhibit 13). Claimant was evaluated by Peter D. Wirtz, M.D., a Des Moines orthopaedic surgeon. Dr. Wirtz indicated that claimant's healing period should have extended for four weeks following surgery (defendants' exhibit E, page 12). Dr. Wirtz agreed that claimant's activities as a dishwasher caused her to develop carpal tunnel syndrome (defendants' exhibit E, page 21). He rated her as having a two percent permanent impairment of each hand as a result of the carpal tunnel syndrome condition (defendants' exhibit E, page 13). Dr. Wirtz recommended that claimant avoid strenuous or repetitive use of her hands and wrists as such would aggravate her condition (defendants' exhibit E, pages 23 and 24). Claimant testified that, when she was released to return to work by Dr. DeBartolo on May 22, 1986, a new owner had taken over the Plaza Restaurant and Lounge and that she was not rehired. She sought other employment, but without success. Claimant stated that she has regularly sought work since May of 1986, but has not found any. Claimant testified that she had worked on February 18, 1986, but was then taken off work for eight days by Dr. Breitenbach. She stated that she then resumed work until March 15 when the business closed. Claimant testified that her surgery was successful. She no longer has pain and numbness, but stated that she still has a lot of aching in her hands and wrists and that her wrists are weak. She stated that she still has trouble with dropping things. She expressed difficulty performing activities such as ironing or dishwashing at home. She denied experiencing any new injuries to her hands or wrists since late 1985. Claimant related her past medical history. She stated that, in approximately 1975 or 1976, she had low back surgery and that her back still bothers her on occasion. She denied having problems with her legs, but stated that she is restricted from heavy lifting or bending. Claimant was involved in a motor vehicle accident in approximately 1978 which affected her neck. She stated that she occasionally still has symptoms from that incident. Claimant testified that, while employed by Donutland, she developed tendonitis of her right elbow for which she filed a workers' compensation claim. Claimant stated that she currently has no problem with her right elbow other than an occasional shooting pain which runs through it. Pages 1 through 3 of claimant's exhibit 1 contain the records of claimant's treatment by Norman W. Hoover, M.D., for that condition. The records show that she was taken off work in November, 1981 and remained off work for the condition until August 9, 1982. Dr. Hoover had released claimant to perform light work in February, 1982, but none was provided. Claimant's workers' compensation claim from that incident was settled by a special case settlement for which she was paid $1,800.00. The settlement did not establish the existence or extent of any permanent disability (Second Injury Fund exhibit J). Dr. Hoover was deposed on July 13, 1982 at which time he stated that the condition of epicondylitis would likely go away of its own accord with the passage of time (claimant's exhibit 11, page 13). However, only two weeks later, Dr. Hoover in his progress note of July 27, 1982 stated that claimant had a painful shoulder which was not physically limiting, but which was occupationally disabling. He placed that disability at 25% of the upper extremity, an amount equal to 15% o f the whole person. Dr. Hoover also stated: I emphasized to the patient that this is not a rating of physical impairment but rather of occupational disability and that it is an expression of the pain that she reports to me and the limitation of tolerance of work as she has described it. It is not based on evidence of physical functional loss. (Claimant's exhibit 1, page 4) When Dr. Wirtz examined claimant, he found no evidence of epicondylitis or any residual impairment from such a condition (defendants' exhibit E, pages 16, 17 and 27). Claimant testified that she had not received any medical treatment for her right elbow since July, 1982. Claimant's husband, Lionel Foster, testified that, after 1982, claimant periodically complained of her right elbow, particularly after strenuous activity. He stated that she currently complains of both hands and forearms bothering. He stated that she has numbness and drops things at times. He stated that these complaints also seem to follow strenuous activity. Claimant testified that the list of wage payments shown in defendants' exhibit A is not complete and that she was also paid in cash for some work. Jill Larson, the employer, agreed that claimant was paid in cash for some work as evidenced by notes which were received into evidence as defendants' exhibit I. Claimant testified that the total earnings of $2,040.44 reported on defendants' exhibit C accurately shows the total of cash and regular wages which were paid to her by the employer, Jill Larson, doing business as Plaza Restaurant and Lounge. Jill Larson, the owner of Plaza Restaurant and Lounge at the time claimant was employed, testified that claimant was hired to work part-time, five or six hours per day. She stated that claimant's work hours were not always stable. Larson stated that $49 was paid to claimant in cash during 1985 and that the balance of the cash payments were paid in 1986. APPLICABLE LAW AND ANALYSIS The first issue to be determined is the rate of compensation. In our society, a 40-hour work week is considered to be the norm for full-time employment. In some occupations, the norm may be a few hours more or a few hours less than 40. It is quite unusual for jobs which involve less than 30 hours of work per week to be considered "full-time." Federal laws dealing with pension plans consider work of less than 30 hours per week to be part-time. This agency has, however, on one occasion termed the job of a school bus driver to be "full-time." The decision characterized school bus driving as an industry in which the hours of work are typically relatively few. Lang v. Humboldt Community School, IV Iowa Industrial Commissioner Report, 220 (App. Decn. 1984). The rationale given was that the definition of "full-time" work includes those employees who work in industries which operate exclusively through the use of employees who work a number of hours which would normally or typically be indicative of part-time work. In the Lang case, school bus drivers were not considered to be a segment of the broader transportation industry which includes chauffeurs, passenger bus drivers and truck drivers. It is quite common for school bus drivers to also hold other "full-time" employment in which they work a full 40 hours per week. A similar situation exists with newspaper carriers who work only one or two hours per day as a newspaper carrier, but also work eight or more other hours per day in some other full-time occupation. Lang apparently rejected the concept that there can be some jobs, occupations or industries which exist only on a part-time basis. Lang did not consider the remuneration provided by employment or the ability of an individual to be self-supporting from the wages earned as considerations in determining whether any particular job is full-time or part-time. One could characterize Beverly Foster as a full-time employee if one were to accept the proposition that dishwashers who work only the breakfast and lunch shift, without working the evening shift, are a separate industry. There is little difficulty in distinguishing such dishwashers from other restaurant employees such as cooks or waitresses, if one follows the rationale used in distinguishing school bus drivers from other types of vehicle drivers. The undersigned does not accept the proposition that a dishwasher in a restaurant who works only the breakfast and lunch shifts is a full-time occupation. The occupation of dishwasher is simply one occupation in the restaurant industry. The restaurant industry operates 24 hours per day, seven days per week. Many restaurant industry employees work 40 hours per week or more. In the restaurant industry, it is also common to use part-time employees at the times when business is most heavy, such as meal times. Part-time cooks, waitresses and dishwashers are common. The fact that they are common does not, however, transform their employment to full-time employment. It is therefore determined that Beverly Foster was not a full-time employee and that she earned less than the usual weekly earnings of the regular full-time adult laborer in the restaurant industry in the Mason City, Iowa locality. It can be reasonably urged that claimant's rate of compensation should be determined under the provisions of Code section 85.36(10). The record also reflects, however, that claimant was paid by the hour. Accordingly, it could be reasonably urged that claimant's rate of compensation should be computed under the provisions of Code section 85.36(6). Nothing in Code section 85.36 restricts subsections (1) through (9) to full-time employment. In fact, the definition of weekly earnings contained in 85.36 states: Weekly earnings means gross salary, wages or earnings of an employee to which such employee would have been entitled had the employee worked the customary hours for the full pay period in which the employee was injured, as regularly required by the employee's employer for the work or employment for which the employee was employed, ... (Emphasis added]. It is clearly stated.in the first paragraph of Code section 85.36 that the weekly rate of compensation should be based upon the employee's customary earnings. This agency has recognized and followed that concept in cases where the rate was determined under Code section 85.36(6) by excluding weeks which were not representative of typical or customary earnings. Lewis v. Aalf's Manufacturing Co., I Iowa Industrial Commissioner Report, 206, 207 (App. Decn. 1980); Schotanus v. Command Hydraulics, Inc., I Iowa Industrial Commissioner Report, 294, 298 (1981). It is well recognized that Code section 85.36(10) provides an unrepresentative wage if it is applied to an employee who has not been in the labor force for the full preceding 12 months. Lawyer and Higgs, Iowa Workers' Compensation Law and Practice, section 12-8. The gross weekly earnings when computed under those circumstances are obviously only a fraction of the customary earnings. Code section 85.36(7) provides a statutory exception to the 13-week rule provided by section 85.36(6). The agency has ruled that where no evidence is presented with regard to the hours of work the employee would have earned if the employee had been employed for the full 13 calendar weeks immediately preceding the injury, the proper method of computing the gross weekly earnings is to simply divide the total earnings by the number of weeks actually worked. Barker v. City Wide Cartage, I Iowa Industrial Commissioner Report, 12, 15 (App. Decn. 1980). The Iowa Supreme Court has consistently held that the workers' compensation law be construed liberally to benefit the injured employee and that its beneficient intent should not be defeated by reading something into the statute which is not there or by a narrow and strained construction. Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503, 506 (Iowa 1981); Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298, 299 (Iowa 1979); Disbrow v. Deering Imp. Co., 233 Iowa 380, 392, 9 N.W.2d 378, 384 (1943). Any construction of section 85.36 which provides a result that is inconsistent with the stated intent, namely of basing the rate of compensation upon customary earnings, is at an irreconcilable conflict with the directives expressed by the Supreme Court. The undersigned is unable to come up with any rational explanation with regard to why a part-time employee who has recently entered the work force should have the rate of compensation be based upon only a fraction of the customary earnings while a full-time employee who has recently entered the work force is compensated based upon the entire customary earnings. It could be urged that the beneficient purpose of the workers' compensation statutes would be served by applying whichever subsection of section 85.36 that provided the highest rate of compensation. Such would also, under some circumstances, however, provide a rate which would be greatly in excess of a rate that would be based upon the customary earnings. The undersigned concludes that the rate of compensation should be based upon the employee's customary earnings as is stated in the first unnumbered paragraph of Code section 85.36. When the computation under one of the subparagraphs of 85.36 is obviously in conflict with that stated intent, some alteration must be made. In this case, where the employee was not in the work force for the full preceding 12 months, and the occupation was not a seasonal occupation, the customary earnings should be determined by dividing the total earnings of the employee by the number of weeks that the employee had worked prior to the injury. This method of computation is consistent with the agency precedent established in Barker v. City Wide Cartage, I Iowa Industrial Commissioner Report, 12, 15 (App. Decn. 1980). In order to determine the rate of compensation, the date of injury must be established. The prehearing report contains a stipulation of the parties that the injury occurred on December 31, 1985. The date is consistent with the date when claimant first sought treatment for the injury, although it is not entirely consistent with the means of determining the injury date for cumulative trauma injuries in accordance with McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). Under the cumulative trauma rule, the date of injury would be February 18, 1986 when Dr. Breitenbach took claimant off work for a week. McKeever sets the latest possible date of injury under the discovery rule by holding a person to recognize the seriousness of their condition at the time that the condition causes them to be disabled from work. It does not prohibit an earlier injury date from being established in appropriate cases. In view of the facts and circumstances of this case and the stipulation made by the parties, that earlier date of December 31, 1985 will be used. Exhibits A and I show claimant to have earned $1,677.94 in regular earnings plus $49.00 in cash for a total of $1,726.94. Claimant had testified that she commenced employment on August 8, 1985 and no contrary evidence appears in the record. The earnings for the first week which ended August 11, 1985 were less than the typical earnings of the following weeks indicating a short week. Accordingly, 20 4/7 weeks is determined to be the period of time in which claimant worked prior to her injury. When divided by 20.571, the result is $83.95 per week. Such is found to be fairly representative of the claimant's customary weekly earnings. It was stipulated that claimant was married and entitled to six exemptions. When $84 per week is applied under the July 1, 1985 benefit schedule, the result is $77.93 per week as the rate of compensation. For purposes of comparison, if an injury of February 18, 1986 were used, the rate would be $69.71 per week. It should be noted that the rate of compensation applies not only to healing period, but also to permanent partial disability, despite the fact that permanent disability impacts upon the employee's ability to work in full-time employment as well as part-time employment. Claimant's earnings from babysitting, or lack thereof, are immaterial since such are not earnings from employment for an employer. Winters v. Te Slaa, I Iowa Industrial Commissioner Report, 367 (App. Decn. 1981); Code section 85.61(2). Further, the evidence with regard to any such alleged injuries is too uncertain to be relied upon since no such earnings were reported on claimant's income tax return. Her testimony of having such earnings is rebutted by the statements made, under penalty of law, in her tax returns. The next issue to be determined is healing period entitlement. Dr. Breitenbach took claimant off work for one week commencing February 19, 1986. Claimant is accordingly entitled to recover healing period for that week. She is also entitled to recover healing period for the span of March 16, 1986 through May 22, 1986, a span of nine and five-sevenths weeks. The total healing period is therefore ten and five-sevenths weeks. The healing period is based upon the one week she was off work as directed by Dr. Breitenbach, the cessation of work on March 15, 1986, Dr. Breitenbach's statement that she was disabled from February 18, 1986 as shown in claimant's exhibit 8A and Dr. DeBartolo's release on May 22, 1986. When claimant was released to resume work in May, 1986, it was not reasonably certain whether she would have permanent impairment. Compensation for permanent partial disability is due and payable commencing at the end of her healing period. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986). It should be noted that this date establishes liability for interest since interest is merely an allowance for the time value of money. It is not an indication of any wrongdoing or misconduct. The impairment rating arrived at by Dr. DeBartolo is somewhat higher than ratings which are typically seen in workers' compensation cases where the claimant's complaints are similar to those made in this case. The ratings made by Dr. Wirtz are typical for ratings commonly given by the employer-chosen independent examining physician, but are lower than the ratings typically given by treating physicians. The treating physician is generally more knowledgeable about the employee's actual condition and symptoms. Accordingly, greater weight is given to Dr. DeBartolo's rating than is to the rating from Dr. Wirtz. However, neither is entirely accepted. Claimant is determined to have a ten percent impairment of function of each hand. Such is equivalent to a nine percent impairment of each upper extremity which in turn is equivalent to a five percent impairment of the whole person. When the impairments from each upper extremity are combined, the result is a ten percent impairment of the whole person which entitles claimant to receive 50 weeks of compensation under the provisions of Code section 85.34(2)(s). Code section 86.13, unnumbered paragraph 4, provides that the industrial commissioner "shall" award additional benefits where commencement of benefits is delayed without probable cause or excuse. Dr. DeBartolo rated claimant in March, 1987. It was not unreasonable for defendants to seek a second opinion. The span of from March until June, when claimant was seen by Dr. Wirtz, approaches the limits of a reasonable time. Dr. Wirtz's report was issued on July 27, 1987. No benefits were paid as a result of that report until December, 1987. The lengthy delay is determined to have been unreasonable. At a minimum, defendant employer and insurance carrier should have paid at least ten weeks of compensation for permanent partial disability, in accord with Dr. Wirtz's rating. They also should have paid the one week of compensation for when claimant was off work commencing February 19, 1986. Such payments should have been paid well I prior to December, 1987. Accordingly, it is determined that the failure to pay at least those eleven weeks prior to December of 1987 was an unreasonable delay. Accordingly, a penalty in the amount of $400, an amount slightly less than 50% of the amount which was unreasonable delayed, is awarded. Claimant seeks compensation from the Second Injury Fund. The evidence from Dr. Wirtz and the deposition of Dr. Hoover fail to establish that the right elbow epicondylitis was a permanent condition or that it provided permanent disability. The report from Dr. Hoover issued July 27, 1982 clearly expresses that the rating is based upon subjective symptoms rather than actual functional impairment. Claimant's own testimony negates the existence of any substantial or identifiable permanent impairment or permanent disability in her right arm prior to the bilateral carpal tunnel injuries. Accordingly, claimant is not entitled to receive any benefits from the Second Injury Fund of Iowa. FINDINGS OF FACT 1. Claimant received an injury in the nature of bilateral carpal tunnel syndrome on the stipulated date of December 31, 1985, which injury occurred as a result of her employment activities as a dishwasher for Plaza Restaurant and Lounge. 2. Following the injury, claimant was medically incapable of performing work in employment substantially similar to that she performed at the time of injury from February 19, 1986 through February 25, 1986 and again from March 16, 1986 through may 22, 1986, a total span of ten and five-sevenths weeks. 3. Claimant's work as a dishwasher was part-time, nonseasonal work. 4. Claimant had been out of the work force for a substantial amount of time prior to August 8, 1987 when she was hired to work at Plaza Restaurant and Lounge. 5. During the 20 and 4/7 weeks that claimant worked at Plaza Restaurant and Lounge prior to December 31, 1985, she earned a total of $1,726.94 which provides gross average weekly earnings of $83.95. 6. The sum of $83.95 per week is fairly representative of the earnings which claimant would have earned had she worked the customary hours for the full pay period in which she was injured, as regularly required by her employer. 7. Claimant has a ten percent permanent partial impairment of each hand as a result of the residuals of her carpal tunnel syndrome. The rating made by Dr. DeBartolo is more accurate than the rating from Dr. Wirtz, but neither is totally accepted. 8. Defendants unreasonably delayed payment of weekly compensation to claimant by waiting until December, 1987 to pay compensation for any permanent partial disability and also by failing to timely pay compensation for the one week of healing period compensation which was due commencing February 19, 1986. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. Where the rate of compensation for a part-time employee is to be computed under the provisions of Code section 85.36(10), but the employee has not been in the work force for the entire preceding 12 months, and the work is not seasonal, the gross weekly earnings upon which the compensation is to be based are determined by dividing the total earnings by the number of weeks actually worked prior to injury. Claimant's gross weekly earnings in this case are $83.95. Her rate of compensation is $77.93. 3. Claimant is entitled to receive ten and five-sevenths weeks of compensation for healing period and 50 weeks of compensation for permanent partial disability. 4. Claimant is awarded a penalty under the provisions of Code section 86.13 in the sum of $400, representing an amount slightly less than 50% of the amount that was unreasonably denied or delayed. 5. Claimant is entitled to recover 50 weeks of compensation for permanent partial disability under the provisions of Code section 85.34(2)(s). 6. Claimant is entitled to receive 4 and 2/7 weeks of compensation under the second paragraph of Code section 86.13. 7. Claimant is not entitled to recover any benefits from the Second Injury Fund of Iowa. ORDER IT IS THEREFORE ORDERED that defendants pay claimant ten and five-sevenths (10 5/7) weeks of compensation for healing period at the rate of seventy-seven and 93/100 dollars ($77.93) per week with one (1) week thereof payable commencing February 19, 1986 and with the remaining nine and five-sevenths (9 5/7) weeks thereof payable commencing March 16, 1986. IT IS FURTHER ORDERED that defendants pay claimant fifty (50) weeks of compensation for permanent partial disability at the rate of seventy-seven and 93/100 dollars ($77.93) per week payable commencing May 23, 1986. IT IS FURTHER ORDERED that defendants pay claimant four hundred and 00/100 dollars ($400.00) under the fourth unnumbered paragraph of Code section 86.13 for their unreasonable delay in paying at least ten (10) weeks of compensation for permanent partial disability and one (1) week of healing period payable commencing February 19, 1986. IT IS FURTHER ORDERED that defendant employer and its insurance carrier pay claimant four and two-sevenths (4 2/7) weeks of compensation at the rate of seventy-seven and 93/100 dollars ($77.93) per week payable commencing May 23, 1986 under the provisions of the second unnumbered paragraph of Code section 86.13. IT IS FURTHER ORDERED that defendants pay all past due amounts in a lump sum together with interest at the rate of ten percent (10%) per annum computed from the date each payment came due, but with full credit for all amounts previously paid. IT IS FURTHER ORDERED that the costs of this action are assessed against defendants Plaza Restaurant and Lounge and Continental Western Insurance Company pursuant to Division of Industrial Services Rule 343-4.33. IT IS FURTHER ORDERED that claimant take nothing from the Second Injury Fund of Iowa. IT IS FURTHER ORDERED that defendants shall file Claim Activity Reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 27th day of February, 1989. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert S. Kinsey III Attorney at Law 214 North Adams P.O. Box 679 Mason City, Iowa 50401 Mr. Marvin E. Duckworth Attorney at Law Suite 111, Terrace Center 2700 Grand Avenue Des Moines, Iowa 50312 Mr. Craig Kelinson Assistant Attorney General Tort Claims Division Hoover State Office Building Des Moines, Iowa 50319 3001, 3002, 3202, 4000, 4002 Filed February 27, 1989 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER BEVERLY J. FOSTER, Claimant, vs. File No. 821588 PLAZA RESTAURANT AND LOUNGE, A R B I T R A T I 0 N Employer, D E C I S I 0 N and CONTINENTAL WESTERN, Insurance Carrier, and SECOND INJURY FUND OF IOWA, Defendants. 3001, 3002, 3202, 4000, 4002 Where a part-time employee has been in the work force less than 12 months preceding the date of injury, the rate of compensation is to be computed under section 85.36(10), but the gross weekly earnings are to be determined by dividing the total earnings by the number of weeks the employee has been employed, rather than by 50 weeks. Defendants ordered to pay 30 days of compensation where the healing period ended, but the claimant did not return to work and permanency benefits were not immediately commenced. A penalty of slightly less than 50% of the amount unreasonably delayed was assessed where the claimant was not paid for one week of healing period in February, 1986 and where permanency benefits were not paid until more than eight months after a rating was made by the treating physician and more than four months after a rating was made by the employer-selected independent examining physician. BEFORE THE IOWA INDUSTRIAL COMMISSIONER THOMAS ALLAN ZOCH, File Nos. 821611 & 804579 Claimant, A R B I T R A T I O N VS. D E C I S I O N WILSON FOODS CORPORATION, F I L E D Employer, JAN 16 1990 Self-Insured, Defendant. IOWA INDUSTRIAL COMMISSIONER INTRODUCTION These are arbitration proceedings brought by Tommy Allan Zoch, claimant, against Wilson Foods Corporation, self-insured employer, defendant. The cases were heard by the undersigned in Storm Lake, Iowa on November 21, 1989. The record consists of the testimony of claimant. The record also consists of the testimony of Bill Jo Zoch, wife of claimant. Finally, the record is comprised of joint exhibits 1-14. STIPULATIONS Prior to the hearing, the parties entered into a number of stipulations. The stipulations are as follows: 1. The existence of an employer-employee relationship between claimant and employer at the time of the alleged injuries; 2. That claimant sustained injuries on both September 16, 1985 and May 3, 1986 which arose out of and in the course of employment with employer; 3. That the alleged injuries are a cause of temporary disability during a period of recovery; 4. The extent of entitlement to weekly compensation for temporary total disability or healing period, if defendant is liable for the injury, is stipulated to be from September 17, 1985 to October 27, 1985 and from October 29, 1985 to November 24, 1985; 5. That the type of permanent disability, if the injury is found to be a cause of permanent disability, is stipulated to be an industrial disability to the body as a whole; with the commencement date for permanent partial disability, in the event such benefits are awarded, is stipulated to be the 25th day of November, 1985;, 6. In the event of an award of weekly benefits, the rate of weekly compensation is stipulated to be $266.22 per week; and, 7. Defendant paid claimant 9.714 weeks of compensation at the rate of $266.22 per week prior to hearing. ISSUE 1. Whether claimant is entitled to permanent partial disability benefits. FACTS PRESENTED Claimant testified he is 35 years old, married and he has two children. Claimant indicated he commenced his employment with defendant in 1975 and that he is currently employed there. The records establish claimant was scooping meat when he experienced a pull in the left shoulder area. Claimant sought medical treatment on September 16, 1985. He was initially treated by Keith Garner, M.D. Dr. Garner, in turn, referred claimant to Thomas Ferlic, M.D. Dr. Ferlic, on November 7, 1985, diagnosed claimant's condition as: Sometimes degenerative disc disease of the cervical spine will present his rhomboid tendinitis. I see no evidence at this point that this is what this gentlemans [sic] problem is. I feel that he has an isolated rhomboid tendinitis,.much like seeing [sic] in the military brace syndrome. I suggested that he might use something over the skin such as an analgesic balm of some sorts. He is reticent to have any more steroid injections. I see no evidence of disability on a permanent basis for this. He man [sic] return to work as he is able. I see nothing that should keep him from work at this point. Claimant also testified during direct examination that he sustained a second injury to his left shoulder on May 3, 1986. At that time, claimant stated he was tearing down pipes and a wrench slipped from a nut. Claimant indicated he hit the machine with his back and left shoulder. A report was made to claimant's foreman. However, claimant reported he did not require medical treatment at the time. Claimant was later referred to Scott B. Neff, D.O., another orthopedic specialist. Dr. Neff, in his letter of November 2, 1987, wrote: Two previous EMG studies have been normal. Clinically, this patient has normal range of motion of his neck. His grip and upper extremity muscle tone seems to be excellent. He has a positive Roos sign for thoracic outlet syndrome. He certainly has a history compatible with thoracic outlet syndrome. He says when he turns his neck away that makes the tingling in the left arm worse. He has muscle soreness in the upper back consistent with a scapular syndrome or a rhomboid tendonitis or a cervical-thoracic myofascial syndrome which ever [sic] name you prefer. I think evaluation by a thoracic surgeon is warranted to see if he does have symptoms consistent with a thoracic outlet syndrome. I wonder if MRI study of his neck should be done also to rule out an occult cervical disc. Certainly, he has excellent motion. If he can be restricted to use of the arm at and below shoulder height, he has not [sic] impairment or disability. Claimant's medical records reveal he had an MRI of the cervical spine on December 3, 1987. The MRI was normal with no evidence of a disc herniation. Per Dr. Neff's opinion, claimant was then referred to a thoracic surgeon. William H. Fleming, M.D., examined claimant. Dr. Fleming opined: So far as thoracic outlet syndrome, he has full range of motion of the left shoulder as compared to the right shoulder and his Adson maneuver is negative. He has a good pulse throughout his full range of motion. I do not detect any nerve deficit in the left hand or arm, but he does say that sleeping with the arm over his head makes the arm go to sleep on either side. Dr. Garner, I feel confident that this is not a thoracic outlet syndrome and that an operation to remove the first rib would not help the man. I have a lot less confidence about what the actual problem is although I think it must be muscular or fascial in origin with a possibility of some skeletal component. I would defer to your orthopedic consultants for management of this problem. Additional medical records for claimant show that on May 11, 1989, claimant was examined by Pat Luse, D.C., B.S. Dr. Luse opined: On 5-6-89 an examination was performed on Tom Zoch and the results are as follows: Neurological Examination - Reflex +2. - Grip strength normal. - Decreased sensation to Wartenburg pinwheel at left T4 rhomboid area.. - Decreased sensation to pin prick at left T4 rhomboid area. - Decreased sensation to Wartenburg pinwheel to C6 & C8 dermatomes left arm. - Decreased sensation to pin prick C6 & C8 dermatomes left arm. Orthopedic Examination - Cervical ROM - pain with left rotation and flexion. - Left shoulder snaps with movement. - Pain with palpation of left rhomboid. - Abduction of left arm for one minute caused paresthesia of the left arm and hand. - Myospasm and trigger points left rhomboid and trapezius. Radiological Examination Radiology reports and Dr. Neff's notes indicated a small bulge at C5-6 & C6-7. After hearing the history, reviewed the doctor's notes and examining the patient, it is my opinion these injuries were the result of the work injuries on 7-3-85 and 5-13-86. It is also my opinion given the length of time since the injuries occurred and the treatments given to this patient, this patient is at his MMI. His impairment rating is 5% to the whole man. This evaluation was done using the Guides to the Evaluation of Permanent Impaiment, [sic] Third Edition. It is my opinion Mr. Zoch should not do heavy, repetitive lifting or work above his shoulders. If you have any further questions, please feel free to contact me. During the hearing, claimant stated he last saw a medical practitioner in May of 1989 when he was evaluated by Dr. Luse. However, claimant testified he has pain when he is working. His hand becomes cold and numb and it is difficult to grasp objects with his left hand. Additionally, claimant testified he has pain in his shoulder blade, down his arm and in back of his shoulder. APPLICABLE LAW Claimant has the burden of proving by a preponderance of the evidence that he received injuries on September 16, 1985 and May 3, 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). 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 (1963) 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 (1955). 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 (1955). "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). The opinions of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). An opinion of an expert based upon an incomplete history is not binding upon the commissioner, but must be weighed together with the other disclosed facts and circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867 (1965). The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. Burt, 247 Iowa 691, 73 N.W.2d 732 (1955). In regard to medical testimony, the commissioner is required to state the reasons on which testimony is accepted or rejected. Sondag, 220 N.W.2d 903 (1974). The claimant has the burden of proving by a preponderance of the evidence that the injuries of September 16, 1985 and May 3, 1986 are causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the,domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). An injury is the producing cause; the disability, however, is the result, and it is the result which is compensated. Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); Dailey v. Pooley Lumber Co., 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 proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial disability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial disability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985). For example, a defendant employer's refusal to give any sort of work to a claimant after he suffers his affliction may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d. 181 (Iowa 1980). Similarly, a claimant's inability to find other suitable work after making bona fide efforts to find such work may indicate that relief would be granted. McSpadden, 388 N.W.2d 181 (Iowa 1980). ANALYSIS The sole issue to address here is whether claimant is entitled to any permanent partial disability benefits, and if so, the amount to which claimant is entitled. There are few objective findings which would support any permanency. Glenn VanRoekel, M.D., a radiologist, determined claimant had a normal radiological report. Claimant's later MRI was also normal. Dr. Luse found a functional.impairment. He was not a treating physician. Dr., Luse only performed a chiropractic examination for purposes of evaluation. He saw claimant on one occasion. Dr. Ferlic found no evidence of a permanent functional impairment. Dr. Fleming could find no indication of thoracic outlet syndrome, although he did acknowledge there was a problem of some sort. On the other hand, Dr. Neff found good range of motion but he did place claimant under restrictions. Dr. Neff opined, "If he can be restricted to use of the arm at and below shoulder height, he has not [sic] impairment or disability." One month later, Dr. Neff opined there was: "[A] small posterior bulge at the C5-6 level." He opined: "Because there are no specific abnormalities peripherally, I don't see any. reason for an orthopaedic surgical procedure at this time." Claimant's current condition involves changes in the temperature of his left hand. Claimant has been able to return to work, although he has returned to a different position. There is no evidence claimant has been refused employment at defendant's business because of his injury and because of his restrictions. There is no evidence claimant has sustained a loss of earnings at defendant's establishment with respect to the family business. Claimant has failed to prove he sustained a loss of earnings and a loss of earning capacity attributable.to claimant's injury. While the family business has switched from wood cutting to wedding flowers, the undersigned is not convinced any economic loss is due to claimant's work injuries. It appears the loss of income is attributable to other factors. Therefore, in light of the foregoing, it is the determination of the undersigned that claimant has a total permanent partial disability of 4 percent. Two percent of the disability is attributable to the injury of September 16, 1985 and two percent of the disability is allocated to the injury of May 3, 1986. This finding of a four percent disability is based upon 1) the aforementioned considerations; 2) based upon the restrictions imposed on claimant; 3) based upon personal observation of claimant; 4) based upon claimant's testimony at the hearing; and, 5) based upon agency expertise (Iowa Administrative Procedures Act 17A.14(s). 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: Finding 1. Claimant sustained work injuries to his left shoulder on September 16, 1985 and May 3, 1986. Finding 2. As a result of the work injuries on September 16, 1985 and May 3, 1986, claimant was placed under permanent restrictions. Finding 3. Claimant was off work due to his injury of September 16, 1985 from September 17, 1985 to October 27, 1985 and from October 29, 1985 to November 24, 1985, a period of 9.714 weeks. Finding 4. Claimant was able to return to work at defendant's establishment with medical restrictions. Conclusion A. Claimant has met his burden of proving he is entitled to 9.714 weeks of healing period benefits due to his work injury of September 16, 1985. Conclusion B. Claimant has met his burden of proving he has a two percent permanent partial disability as a result of his injury of September 16, 1985. Conclusion C. Claimant has met his burden of proving he has a two percent permanent partial disability as a result of his work injury on May 3, 1986. ORDER THEREFORE, defendant is to pay unto claimant ten (10) weeks of permanent partial disability benefits due to the work injury of September 16, 1985 at the stipulated rate of two hundred sixty-six and 22/100 dollars ($266.22) per week. Defendant is to also pay unto claimant ten (10) weeks of permanent partial disability benefits due to the work injury of May 3, 1986 at the stipulated rate of two hundred sixty-six and 22/100 dollars ($266.22) per week. Defendant is to also pay unto claimant nine point seven-one-four (9.714) weeks of healing period benefits at the rate of two hundred sixty-six and 22/100 dollars ($266.22) per week as a result of the work injury on September 16, 1985 Payments that have accrued shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. Defendant is to be given credit for all benefits previously paid to claimant. Costs of the action are assessed against defendant pursuant to Division of Industrial Services Rule 343-4.33. Defendant shall file a claim activity report upon payment of this award. Signed and filed this 16th day of January, 1990. MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Harry H. Smith Attorney at Law 632-640 Badgerow Bldg P 0 Box 1194 Sioux City, IA 51102 Mr. David L. Sayre Attorney at Law 223 Pine St. Cherokee, IA 51012 BEFORE THE IOWA INDUSTRIAL COMMISSIONER DENNIS E. WATERS, Claimant, File No. 821618 VS. A R B I T R A T I 0 N DOUG URIE CONSTRUCTION CO., D E C I S I 0 N Employer, Uninsured, Defendant. INTRODUCTION This is a proceeding brought by Dennis E. Waters against Doug Urie Construction Company seeking temporary total disability compensation and section 85.27 benefits. The agency file contains proof of service of the original notice and petition filed in this proceeding by certified mail upon Doug Urie Construction Company at Craig, Colorado. The date of mailing is shown as may 13, 1986 and the receipt was signed May 19, 1986. The proof of service also shows service of the original notice and petition on the employer having been made by certified mail which was received on May 14, 1986 at the Super 8 Motel at Council Bluffs, Iowa. On June 4, 1986, a letter was received by this agency which purports to bear the signature of Douglas Urie and which denies employing Dennis Waters at any time. The address shown for Doug Urie Construction on that letter is 1602 16th Avenue, Council Bluffs, Iowa. Thereafter, mailings from this agency to Doug Urie Construction Company at 1602 16th Avenue, Council Bluffs, Iowa and also at Box 702, Craig, Colorado were returned marked "unclaimed." On June 8, 1988, the employer was ordered to provide this agency with a current address and telephone number. The notation on the order indicates that it was sent to Doug Urie Construction Company by regular and certified mail. On July 18, 1988, the record was closed to further evidence or activity by the employer and a copy of that order was mailed by certified and regular mail to the employer. The file contains a notice of taking deposition directed to the employer. It is therefore determined that the employer, Doug Urie Construction Company, was given due, timely and legal notice of this proceeding. The record in this proceeding consists of claimant's exhibit 1, a statement in the amount of $90.00 for services performed by Bernard L. Kratochvil, M.D., and claimant's exhibit 2, the deposition of the claimant taken November 17, 1988. WATERS V. DOUG URIE CONSTRUCTION CO. Page 2 SUMMARY OF EVIDENCE The following is a summary of evidence presented in this case. of all the evidence received at the hearing, only that considered most pertinent to this decision is discussed. . Conclusions about what the evidence showed are inevitable with any summarization. The conclusions in the following summary should be considered to be preliminary findings of fact. Through his deposition, Dennis E. Waters, who is apparently a convicted felon since he is confined at the Iowa State Men's Reformatory in Anamosa, Iowa, testified that he was hired by Doug Urie on April. 25, 1986 at the Super 8 Motel construction site in Council Bluffs, Iowa. Claimant testified that, while working on April 27, 1986, he tripped and dropped an air conditioning unit which he was carrying and that the unit fell on his ankle causing the onset of pain. Claimant testified that Doug Urie assisted him in leaving the work site and, on the following day, took him to the office of Dr. Kratochvil. Claimant stated that x-rays were taken, he was told that he had a chipped bone in his ankle, and a temporary cast was placed on his ankle. Waters testified that he continued to see Dr. Kratochvil for return visits every week for approximately three months, that he achieved maximum recovery approximately six months after the injury and that he was unable to walk for a period of time following the injury. Waters stated that he has recovered completely and makes no claim for permanent disability. Waters testified that he was to be paid $7.00 per hour under his arrangement with Doug Urie, but that in view of the injury and its treatment, he was never actually paid. Waters stated that, whenever he or his attorney attempted to contact Urie following the accident, Urie simply failed to respond. Exhibit 1 shows charges for an orthopaedic evaluation and x-rays of claimant's ankle totalling $90.00 for services performed on April 28, 1986. APPLICABLE LAW AND ANALYSIS Claimant has the burden of proving by a preponderance of the evidence that he received an injury on April 26, 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). No witnesses were called to corroborate claimant's testimony of the injurious incident. His apparent status as a convicted felon certainly impairs his credibility. Claimant's testimony, however, that Urie ignored his requests is certainly consistent with the response Urie made to the requests and directives from this agency. In view of the same, it is determined that WATERS V. DOUG URIE CONSTRUCTION CO. Page 3 Waters' testimony regarding the injurious incident that occurred on April 27, 1986 is correct. It is therefore determined that Dennis E. Waters did sustain an injury which arose out of and in the course of his employment with Doug Urie Construction Company at Council Bluffs, Iowa on April 27, 1986. Claimant seeks compensation for temporary total disability. Under Iowa Code section 85.33, compensation is payable until the claimant either returns to work or is medically capable of returning to employment substantially similar to that in which he was engaged at the time of injury. Claimant testified that he continued to see Dr. Kratochvil weekly for three months, but did not return to work for six months following the injury. It is recognized that these dates are imprecise. When considering the nature of the injury, it would seem that three months would be an appropriate amount of recuperation time for most fractures when agency expertise and experience is applied. Six months would be an exceedingly long amount of time. Claimant did not submit copies of any records from his physicians to clarify his recovery. Accordingly, claimant will be allowed 12 weeks of compensation for temporary total disability. The fees charged by Dr. Kratochvil as shown in exhibit I are within the range of fees commonly charged for similar services in the Council Bluffs, Iowa area, as determined by agency experience. It is determined that the fees are fair and reasonable and were incurred in providing reasonable services to the claimant which were necessitated as a result of the injury to claimant's ankle which arose out of and in the course of his employment with Doug Urie Construction Company. The only remaining issue is claimant's rate of compensation. There was no evidence regarding the number of hours per day that claimant worked. Forty hours per week is a norm for full-time employment. According to claimant's deposition, he is married and has three children which would entitle him to five exemptions. Therefore, based upon $280.00 per week gross income and five exemptions, the rate of compensation would be $188.67 per week. FINDINGS OF FACT 1. Doug Urie Construction Company was served by certified mail with original notice and petition of this action on May 13, 1986 and thereafter filed an answer with this agency in the form of a letter which denied having an employer-employee relationship with Dennis Waters. 2. Dennis E. Waters was in fact hired by Doug Urie at the Super 8 Motel construction site in Council Bluffs, Iowa on April 25, 1986. 3. Waters fractured a bone in his ankle when he dropped an air conditioning unit on it on April 27, 1986 while performing WATERS V. DOUG URIE CONSTRUCTION CO. Page 4 services for Doug Urie Construction Company at the Super 8 Motel site in Council Bluffs, Iowa. 4. Waters received reasonable medical treatment from Bernard Kratochvil, M.D., for which services fair and reasonable charges in the amount of $90.00 were made. 5. After recuperating for 12 weeks following the injury, claimant was medically capable of returning to employment substantially similar to that in which he engaged at the time of injury. 6. Claimant was to have been paid $7.00 per hour for his services with Doug Urie Construction Company and would have worked a normal 40-hour week if he had not been injured. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. Dennis E. Waters sustained an injury on April 27, 1986 at Council Bluffs, Iowa which arose out of and in the course of his employment with Doug Urie Construction Company. 3. Claimant is entitled to recover 12 weeks of compensation for temporary total disability payable commencing April 28, 1986. 4. The employer is responsible for payment of claimant's medical expenses with Dr. Kratochvil in the amount of $90.00. 5. Claimant's rate of compensation is $188.67 per week. ORDER IT IS THEREFORE ORDERED that Doug Urie Construction Company pay Dennis E. Waters twelve (12) weeks of compensation for temporary total disability at the rate of one hundred eighty-eight and 67/100 dollars ($188.67) per week payable commencing April 28, 1986. IT IS FURTHER ORDERED that Doug Urie Construction Company pay Bernard L. Kratochvil, M.D., ninety and 00/100 dollars ($90.00) for services rendered to Dennis E. Waters under the provisions of Iowa Code section 85.27. IT IS FURTHER ORDERED that Doug Urie Construction Company pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. WATERS V. DOUG URIE CONSTRUCTION CO. Page 5 IT IS FURTHER ORDERED that Doug Urie Construction Company file a first report of injury in accordance with Iowa Code section 86.11 not later than July 25, 1989. IT IS FURTHER ORDERED that Doug Urie Construction Company file claim activity reports as requested by this agency pursuant to Division of Industrial Service Rule 343-3.1. Signed and filed this 30th day of June, 1989. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Kenneth Sacks Attorney at Law 215 South Main Street Council Bluffs, Iowa 51502 Doug Urie Construction Company Box 702 Craig, Colorado 81625 REGULAR AND CERTIFIED MAIL Doug Urie Construction Company 1602 16th Avenue Council Bluffs, Iowa 51501 REGULAR AND CERTIFIED MAIL 51402.10, 51402.20, 51402.30 51402.40, 51801, 52300 Filed June 30, 1989 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER DENNIS E. WATERS, Claimant, File No. 821618 VS. A R B I T R A T I 0 N DOUG URIE CONSTRUCTION CO., D E C I S I 0 N Employer, Uninsured, Defendant. 52300 Where the defendant employer appeared pro se by writing a letter which denied the existence of an employer-employee relationship, such was held sufficient to provide personal jurisdiction over the employer. 51402.10, 51402.20, 51402.30 Claimant's testimony, although impaired by felony conviction, was deemed sufficient to establish the fact of employment and of injury arising out of and in the course of employment. 51402.40, 51801 Claimant's testimony that it required six months to recover from a fracture was rejected in light of other evidence in the record wherein claimant had stated that he saw the physician weekly for three months. Agency expertise was relied upon to conclude that three months would be adequate healing time for most fractures. BEFORE THE IOWA INDUSTRIAL COMMISSIONER MARVIN COX, Claimant, File No. 821620 VS. A R B I T R A T I 0 N JOHN MORRELL & COMPANY, D E C I S I 0 N Employer, Self-Insured, Defendant. STATEMENT OF THE CASE This is a proceeding brought by Marvin Cox, claimant, against John Morrell & Company (Morrell), a self-insured employer, for benefits under chapter 85B, Code of Iowa. A hearing was held in Storm Lake, Iowa, on February 3, 1987 and the case was submitted on that date. The record consists of the testimony of claimant, Laura Cox, and Harold Selberg; claimant's exhibits A through G; and defendant's exhibit 1. Both parties filed a brief. The exhibit list given to the hearing deputy at time of hearing reads as follows: RE: Marvin Cox vs. John Morrell & Company - File #821620 Plaintiff's Exhibits: A. Physical exam given workman for employment with John Morrell & Company - employed 11-15-56. B. Noise level survey conducted at the John Morrell plant in Estherville by OSHA. C. Noise level survey conducted at the John Morrell plant in Estherville by John Morrell & Company. D. Report of C. B. Carignan, M.D. dated 12-15-86. E. Report of C. B. Carignan, M.D., P.C. dated 10-11-86. F. Letter and hearing report dated 5-16-86 from R. David Nelson, M.A., Audiologist. G. Photograph of claimant. Defendant's Exhibits: Report of Daniel L. Jorgensen dated 10-22-86. (Deposition Exhibit included in Defendant's Exhibit 1.) 1. Deposition of Daniel L. Jorgensen, M.D. dated. 1-29-87. The parties stipulated that claimant's weekly rate of compensation is $203.47 and that any weekly benefits awarded would commence on April 27, 1985. ISSUES The contested issues are: 1) Whether this action is barred by Iowa Code section 85.23 because the employer herein was not given notice of, nor did this employer have actual knowledge of, claimant's alleged occupational hearing loss; 2) Whether this action is barred by Iowa Code section 85.26 because it was not timely filed; 3) Whether claimant sustained an occupational hearing loss under chapter 85B, Code of Iowa; that is, whether claimant is entitled to occupational hearing loss benefits under chapter 85B, Code of Iowa; 4) Nature and extent of disability; that is, the number of weeks of permanent partial disability benefits owing; and 5) Whether defendant shall pay the cost of a hearing aid or aids pursuant to Iowa Code section 85B.12. SUMMARY OF THE EVIDENCE Claimant testified that he is 55 years old and that he entered the U.S. Navy in 1951. At the time he entered the navy he had no hearing problem. He was discharged in 1955 and had no hearing problem at the time. He started work for Morrell in December 1956 and was given a physical examination which determined he had no hearing problem. See exhibit A. In 1956, claimant initially worked on the loading dock at the pork plant. He went to the "conversion room" after the loading dock; it was noisy in this room where he worked from about 1974 through 1980 "boning out loins, hams, and picnics." He also constructed cardboard boxes for eighteen years at Morrell. In 1982 or 1983, hearing protection devices were furnished by Morrell. Claimant talked to a plant nurse about his hearing loss at some point, but no hearing test was administered; he did not talk with a foreman about his hearing loss. In the conversion room it was almost impossible to carry on a conversation. Claimant testified that his wife mentioned his hearing loss problem in the late 1970's. Claimant had ringing in his ears after working at Morrell and still has ringing in his ears; however, he has not noticed a change in his hearing since the plant closed in April 1985. Dr. Jorgensen told claimant that he needs a hearing aid. On cross-examination, claimant acknowledged that in the navy he handed ammunition to another person while stationed on a destroyer; he wore rubber earplugs at the time. He stated that the "conversion room" he last worked in at Morrell was about one-half the size of the first "conversion room" he worked in at morrell. COX V. JOHN MORRELL & COMPANY Page 3 Claimant first noticed a hearing problem in the late 1970's. His hearing stopped getting worse after he got out of the Morrell plant, but it did not get better. Laura Cox testified that she has been married to claimant for thirty-six years and that he had no hearing problem when he started working for Morrell. He also had no hearing problem when he came home from the navy. In the mid-1970's to the late 1970's, she noticed that claimant had a hearing problem. He would complain about ringing in his ears when he came home from work. His hearing has gotten a little worse between April 1985 and time of hearing. Harold Selberg testified that he worked for Morrell from 1958 until the plant closed in 1985. He met claimant in 1958 and claimant had no hearing problem at that time. He worked with claimant in the "conversion room." The noise in the conversion room made it difficult to talk. Exhibit D, page 1 (dated December 15, 1986), is authored by C. B. Carignan, Jr., M.D., and reads in part: In view of the report and the history and examination of Mr. Cox I feel that with reasonable medical certainty that Mr. Cox's hearing impairment occurred as a result of his continued exposure to high noise environment at his workplace at the John Morrell packing plant at Estherville, Iowa. Exhibit E, page 1 (dated October 11, 1986), is authored by Dr. Carignan and reads in part: Employed by Morrell packing plant December of 1955. Initially worked on loading dock for 18 years, states noise level was not extreme at this job. Then was moved to a job in the conversion room and boning room where he worked with and near very noisy saws cutting bone, etcetera. No ear protection was provided. Noticed hearing loss and tinnitus after working in this area of high noise environment. He denies any history of other noise exposure. Does not hunt or shoot guns, etc.. Denies any ear trauma or infection. No other family members have a hearing problem and all have normal hearing. OSHA measured noise levels in the plant area in which he osired [sic] since 1974 and found noise levels of average of 92 to 93 decibels. His hearing became impaired with tinnitus and loss of acuity after working in this high noise environment [sic] at the Morrell plant. He now has trouble understanding speech as described in Complaint, [sic] above. He denies any exposure to Alotoxic drugs or chemicals. Exhibit E, page 2, describes a binaural hearing impairment of 19. 4 percent. Exhibit I is the deposition of Daniel Jorgensen, M.D., taken on January 29, 1987. Dr. Jorgensen is an otolaryngologist. He has a soundproof booth and an audiometer. He has a person with a master's degree in audiology do the audiograms. Dr. Jorgensen COX V. JOHN MORRELL & COMPANY Page 4 examined claimant on October 20, 1986 and took a history. Deposition exhibit 1 describes an audiogram performed on October 20, 1986. On page 9, Dr. Jorgensen stated that claimant's binaural hearing loss is 8.9 percent, and on pages 9-10, he explained why this percentage is lower than Mr. Nelson's percentage. On page 12, Dr. Jorgensen stated a causal connection opinion favorable to claimant. On page 13, he stated that claimant's loss is permanent and also stated the cost of a hearing aid. APPLICABLE LAW AND ANALYSIS I. Does Iowa Code section 85.23 apply to occupational hearing loss cases? It is concluded that section 85.23 does apply to this class of case as it is not inconsistent with chapter 85B. See Iowa Code section 85B.14. The Iowa Supreme Court stated in Dillinger v. City of Sioux City, 368 N.W.2d 176, 179 (Iowa 1985 ): I. Notice under section 85.23. In pertinent part, section 85.23 requires the employee to give the employer notice within 90 days after the occurrence of the injury "unless the employer or his representative shall have actual knowledge of the occurrence of an injury.O Consequently, an employee who fails to give a timely notice may still avoid the sanction of section 85.23 if the employer had "actual knowledge of the occurrence of the injury." The discovery rule delays the commencement of a limitation period, for bringing a cause of action or for giving notice, until the injured person has in fact discovered his injury or by exercise of reasonable diligence should have discovered it. Orr, 298 N.W.2d at 257. The agency has determined that the notice/actual knowledge provision of section 85.23 is an affirmative defense and that a defendant has the burden of proof on this issue. In this case claimant testified that his wife mentioned his hearing loss problem in the late 1970's. Claimant had ringing in his ears after working at Morrell. His hearing has not worsened after his separation from Morrell. Claimant's wife testified that claimant complained of ringing in his ears when he came home from work. She also testified that claimant had a hearing problem in the mid-1970's to the late 1970's. Chapter 85B became effective on January 1, 1981. Claimant herein knew or should have known the compensable nature of his hearing loss when chapter 85B became effective given the testimony described above. However, claimant did not have a cause of action until April 27, 1985 or arguably until six months after April 27, 1985. He was not required to satisfy section 85.23 until he had a cause of action. Defendant obtained actual knowledge of the compensable nature of claimant's hearing loss prior to the "triggering event" of April 27, 1985, see section 85B.8, because claimant talked to a plant nurse about his occupational hearing loss in 1982 or 1983. The notice/actual knowledge requirement of section 85.23 may be satisfied prior to the "occurrence of an injury." Dillinger, 368 N.W.2d at 180. The injury "occurred" in this COX V. JOHN MORRELL & COMPANY Page 5 case when the plant closed. Claimant's cause of action accrued at that time or arguably six months after the plant closure. In sum, this action is not barred because of the application of section 85.23. II. Is this claim time barred by Iowa Code section 85.26? Section 85B.8 provides in part: A claim for occupational hearing loss due to excessive noise levels may be filed six months after separation from the employment in which the employee was exposed to excessive noise levels. The date of the injury shall be the date of occurrence of any one of the following events: 1. Transfer from excessive noise level employment by an employer. 2. Retirement. 3. Termination of the employer-employee relationship. (Emphasis supplied.) Claimant in this case separated from his Morrell employment on April 27, 1985 and as stated above his cause of action accrued at that time or perhaps six months later. His petition was filed on May 9, 1986. The Iowa Supreme Court held in Chrisohilles v. Griswold, 260 Iowa 453, 461 150 N.W.2d 94, 100 (1967) that a statute of limitations "cannot commence to run until the cause of action accrues." Claimant filed his petition within two years of April 27, 1985. This claim is not time barred. In accordance with Iowa Code section 85B.8 claimant waited until six months after his separation from Morrell to file this action. Claimant's cause of action did not accrue until April 27, 1985 or arguably he did not have a cause of action until six months after April 27, 1985. III. The question of whether claimant sustained an occupational hearing loss, by definition, includes the question of whether a causal relationship exists between claimant's industrial noise exposure and his current hearing loss. Section 85B.4(l) provides: Occupational hearing loss means a permanent sensorineural loss of hearing in one or both ears in excess of twenty-five decibels if measured from international standards organization or American National standards institute zero reference level, which arises out of and in the course of employment caused by prolonged exposure to excessive noise levels. In the evaluation of occupational hearing loss, only the hearing levels at the frequencies of five hundred, one thousand, two thousand, and three thousand Hertz shall be considered. Section 85B.4(l) requires that a claimant's hearing loss COX V. JOHN MORRELL & COMPANY Page 6 both be a permanent sensorineural loss in excess of 25 decibels and that it arise out of and in the course of his employment because of prolonged exposure to excessive noise levels. 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); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Section 85B.6 provides maximum compensation of 175 weeks for total occupational hearing loss with partial occupational hearing loss compensation proportionate to total hearing loss. Claimant has established by the greater weight of the evidence that he sustained hearing loss from his work at Morrell. It is also determined that all his hearing loss is attributable to his Morrell employment. IV. A treating physician's testimony is not entitled to greater weight as a matter of law than that of a physician who later examines claimant in anticipation of litigation. Weight to be given testimony of physician is a fact issue to be decided by the industrial commissioner in light of the record the parties develop. In this regard, both parties may develop facts as to the physician's employment in connection with litigation, if so; the physician's examination at a later date and not when the injuries were fresh; the arrangement as to compensation; the extent and nature of the physician's examination; the physician's education, experience, training, and practice; and all other factors which bear upon the weight and value of the physician's testimony may be considered. Both parties may bring all this information to the attention of the factfinder as either supporting or weakening the physician's testimony and opinion. All factors go to the value of the physician's testimony as a matter of fact not as a matter of law. Rockwell Graphic Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985). As a factual matter, it is concluded that the audiogram conducted at Dr. Jorgensen's office is more accurate than the test conducted by Mr. Nelson because Dr. Jorgensen has a soundproof booth. It is, therefore, unnecessary to construe Iowa Code section 85B.9 as urged by the parties. Claimant is entitled to 15.575 weeks (8.9 percent of 175 weeks) of permanent partial disability benefits commencing on April 27, 1985 at a rate of $203.47. V. Claimant is entitled to the least expensive hearing aid provided by Dr. Jorgensen or another provider, at the cost of the defendant. FINDINGS OF FACT 1. Claimant is 55 years old. 2. Claimant started working for Morrell in Estherville, Iowa, in December 1956. COX V. JOHN MORRELL & COMPANY Page 7 3. Claimant has sustained hearing loss and all of claimant's hearing loss was caused by his Morrell employment. 4. Morrell had actual knowledge of claimant's occupational hearing loss prior to April 27, 1985. 5. Claimant's binaural hearing loss is 8.9 percent. 6. Claimant's stipulated weekly rate of compensation is $203.47. CONCLUSIONS OF LAW 1. Claimant has established entitlement to fifteen point five seventy-five (15.575) weeks of permanent partial disability benefits commencing on April 27, 1985 at a rate of two hundred three and 47/100 dollars ($203.47). 2. Claimant has established entitlement to the cost of the least expensive hearing aid or aids. ORDER IT IS THEREFORE ORDERED: That defendant pay the benefits described above. COX V. JOHN MORRELL & COMPANY Page 8 That defendant pay accrued benefits in a lump sum and pay interest pursuant to section 85.30, The Code. That defendant pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33, formerly Industrial Commissioner Rule 500-4.33. That defendant shall file claim activity reports, pursuant to Industrial Services Rule 343-3.1(2), formerly Industrial Commissioner Rule 500-3.1(2), as requested by the agency. Signed and filed this 17th day of March, 1987. T.J. McSWEENEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. E. W. Wilcke Attorney at Law P.O. Box 455 826 1/2 Lake St Spirit Lake, Iowa 51360 Mr. Dick H. Montgomery Attorney at Law P.O. Box 7038 Spencer, Iowa 51301 2208 Filed 3-17-87 T. J. McSweeney BEFORE THE IOWA INDUSTRIAL COMMISSIONER MARVIN COX, Claimant, File No. 821620 VS. A R B I T R A T I 0 N JOHN MORRELL & COMPANY, D E C I S I 0 N Employer, Self-Insured, Defendant. 2208 Held in occupational hearing loss case as follows: 1) That Iowa Code section 85.23 applied in occupational hearing loss cases; 2) That claimant's action is not barred by Iowa Code section 85.23 because defendant had actual knowledge of claimant's alleged occupational hearing loss within ninety (90) days of claimant discovering its compensable nature; 3) That claimant's action is not barred by Iowa Code section 85.26 because this action was filed within two years of the accrual of claimant's cause of action, which accrued when the Morrell plant closed on April 27, 1985; 4) That claimant established by a preponderance of the evidence that he sustained some hearing loss and that all of this loss was attributable to his Morrell employment; and 5) That claimant is entitled to the cost of a hearing aid.