before the iowa industrial commissioner ____________________________________________________________ : VICKI DENEKAS, : : Claimant, : : vs. : : File Nos. 794353 AALFS MANUFACTURING COMPANY, : 823077 : Employer, : A R B I T R A T I O N : and : D E C I S I O N : THE HARTFORD INSURANCE : COMPANY and EMPLOYERS MUTUAL : COMPANIES, : : Insurance Carriers, : : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : ____________________________________________________________ statement of the case These are proceedings in arbitration upon claimant's petitions filed June 26, 1986 (794353) and October 21, 1986 (823077). In file number 794353, claimant allegedly sustained an injury to her wrist (carpal tunnel syndrome) on May 7, 1985 and now seeks benefits under the Iowa Workers' Compensation Act from her employer, Aalfs Manufacturing Company, and its insurance carrier at that time, Employers Mutual Insurance Company. In case number 823077, claimant sustained an injury to her shoulder on April 14, 1986 and seeks benefits under the Iowa Workers' Compensation Act from Aalfs and its then insurance carrier, The Hartford Insurance Company. In addition, she seeks Second Injury Fund benefits from the Second Injury Fund of Iowa. Hearing on these consolidated matters was had in Sioux City, Iowa, on March 1, 1990. In addition to claimant's testimony, the record consists of joint exhibits 1 through 77 [including a videotape deposition marked 76(a)], claimant's exhibits 8 and 10 and Second Injury Fund's exhibits A and B. Claimant also offered exhibits 5 and 6 subject to objection; ruling was reserved. The objections Page 2 are now overruled and claimant's exhibits 5 and 6 received into evidence. Official notice is hereby taken of the pleadings, orders, motions and prehearing conference notes contained in the legal file. The parties have not been given an opportunity to object, but it is hereby found that fairness to the parties does not require such an opportunity. Iowa Code section 17A.14(4). issues Pursuant to the prehearing report in case number 794353, the parties have stipulated: that an employment relationship existed between claimant and Aalfs at the time of the alleged injury; that claimant seeks temporary total disability or healing period benefits from May 8 through October 28, 1985; that the proper rate of weekly compensation is $111.53; that affirmative defenses are waived; that defendants paid 17 weeks, 5 days of compensation at the stipulated rate prior to hearing. Issues presented for resolution in case number 794353 include: whether claimant sustained an injury arising out of and in the course of her employment on May 7, 1985; whether the alleged injury caused temporary or permanent disability, the extent of each and the nature of the latter; the extent of claimant's entitlement to medical benefits (it being stipulated that the fees charged for medical services or supplies are fair and reasonable, and that the providers would testify in the absence of contrary evidence that the treatment was reasonable and necessary, but causal connection to the work injury and authorization by defendants are disputed); taxation of costs. Pursuant to the prehearing report in case number 823077, the parties have stipulated: that claimant sustained an injury arising out of and in the course of her employment with Aalfs on April 14, 1986; that the injury caused temporary and permanent disability; that the appropriate rate of weekly compensation is $117.04; that defendants paid $11,611.97 denominated as temporary or healing period benefits, $1,437.13 denominated permanent partial disability benefits and $7,033.00 in medical benefits prior to hearing. Issues presented for resolution in case number 823077 include: the extent of claimant's entitlement to compensation for temporary and permanent disability and the nature and commencement date of the latter; the extent of claimant's entitlement to medical benefits (it being stipulated that the fees charged for medical services or supplies are fair and reasonable, but it is disputed whether those expenses were incurred for reasonable and necessary treatment, whether they are causally connected to the work injury or whether they were authorized by defendants); Second Injury Fund liability; taxation of costs. Page 3 It has long been held that defendants cannot deny liability on the claim and also guide the course of treatment or assert authorization as a defense. Barnhart v. MAQ, Inc., I Iowa Industrial Commissioner Report 16 (1981). In case number 794353, defendants have never conceded liability. It is therefore held that they are not entitled to assert a defense based on lack of authorization. In case number 823077, defendants filed an answer specifically denying an injury arising out of and in the course of employment. Defendants Aalfs and Hartford continued to deny liability until the prehearing conference held on August 2, 1989, at which time they conceded that claimant had sustained an injury arising out of and in the course of employment. It is held that those defendants are not entitled to assert the defense of lack of authorization from the date of injury through August 1, 1989. Defendant Second Injury Fund of Iowa continued to deny that claimant sustained an injury arising out of and in the course of employment, but has no liability for medical expenses in any event. findings of fact The undersigned deputy, having heard the testimony and considered all of the evidence, finds: Claimant was born on June 1, 1946 and was 43 years of age on the date of hearing. She completed the ninth grade and part of tenth grade. Claimant has worked as a dime store clerk, a waitress, a sandwich maker for a fast food enterprise, a parts solderer for an electronics firm, a bar maid, a cook's helper, a baby-sitter, and a seamstress for two enterprises, including Aalfs intermittently since 1965. Her seamstress work with Aalfs is the highest level of vocational functioning in claimant's work history. She is apparently of average to low average intelligence and upon vocational testing (GATB-VG test) by the Iowa Division of Job Service, was shown to score in the following percentiles: Job Family I (set-up; supervisory) -- 21; Job Family II (feeding; offbearing) -- 6; Job Family III (professional; supervisory) -- 31; Job Family IV (clerical; skilled trades) -- 17; Job Family V (semi-skilled) -- 9. However, Secretary I Kay F. Christiansen of Job Service wrote on July 6, 1989 that many people can successfully perform on the job even with low Job Family scores. Claimant has suffered numerous injuries during her lifetime. She was thrown through an automobile windshield in a collision at age 5. She seriously injured her hip at about age 12, resulting in a hip replacement in 1960 repeated in 1983. She underwent a meniscectomy to the left knee in 1984, broke her large toe in an automobile accident in 1989, damaged her knee when she fell from a retaining wall eight or nine years ago, and injured her left foot when she accidentally caught it in a loop of rope, then got in a car and the other end of the rope was caught as the car Page 4 moved away. In addition, claimant has alleged the work injuries now under review. Beginning in early 1985, claimant began developing feelings of numbness and tingling in the right arm and wrist. On May 7 of that year, her hand slipped while she was cleaning a machine and she struck her index and middle finger and knuckles. She developed pain and a knot between those joints described as the size of a pencil eraser. Claimant was first seen by Thomas L. Duncan, M.D., who treated her with a splint and physical therapy, eventually referring her to Mark Wheeler, M.D. In a supplemental report dated October 2, 1985, Dr. Duncan reported that claimant was able to work part-time October 1 and full-time October 8, 1985. He anticipated no further duration of disability unless further problems occurred, but in another supplemental report of November 5, 1985, referred the question of permanent disability to Dr. Wheeler. Dr. Wheeler, a board-certified orthopaedic surgeon, testified by deposition taken May 5, 1988. He first saw claimant in March 1985 upon referral for evaluation of left hip and knee pain and then in July for right hand complaints. Following additional nerve conduction tests, he diagnosed carpal tunnel syndrome and performed a surgical release on August 1, 1985. It is unclear whether Dr. Wheeler himself returned claimant to work as opposed to Dr. Duncan. In any event, Dr. Wheeler wrote on October 30 that claimant had been seen again on October 28 when she began getting paresthesias in the index finger after she felt something pop while using her hand heavily at work, so she had obviously returned to work sometime before. Claimant was given a new work release to full duty employment effective October 29, 1985. Dr. Wheeler's chart notes of August 12, 1985 reflect that claimant's wound was healing well with almost complete resolution of symptoms and that she was given a no-work slip stating: "May not return to work for 4 wks." Dr. Duncan's report of July 8, 1985 notes his view that claimant's carpal tunnel syndrome happened at work, working with fingers and hands. No physician has expressed a contrary view. No physician has indicated that claimant sustained permanent disability by reason of her carpal tunnel release. Claimant testified that her hands still bothered her through April 1986, although she was able to continue performing her job. Fingers became numb or tingly if she had to stretch fabric. On February 17, 1986, claimant complained to Dr. Duncan of tenderness in the right shoulder and anti-inflammatories were prescribed at that time. Claimant had suffered intermittent shoulder problems for approximately one year. Page 5 During the three weeks prior to April 14, claimant's shoulder symptoms became worse as she continued to work. On April 14, she suffered an incident when a cart stacked with blue jeans began to roll away and claimant grabbed it with her right arm, suffering immediate sharp pains to the right shoulder radiating to the hand. D. E. Doorenbos, M.D., an associate of Dr. Duncan, saw claimant on that date. In a surgeon's report dated May 23, he indicated his belief that his diagnosis of rotator cuff tendonitis was work related. Dr. Doorenbos released claimant for light duty on June 6 and discharged her on June 26 (a surgeon's report of that date also expressed his view that tendonitis of the right shoulder was caused or aggravated by machine operation) and believed her prognosis good, although lifting should be limited to less than ten pounds on a repetitive basis. On April 30, 1986, claimant saw Dr. Wheeler for her shoulder pain. He testified that claimant had been off work for two weeks, but that symptoms returned when she attempted to resume employment. Pain was localized to the tip of the shoulder. Over the next several months, Dr. Wheeler continued to see claimant, although he was following her more for hip complaints at that time. In January 1987, claimant began complaining more again of the right shoulder and, at this time, of her neck. An arthrogram performed on May 4, 1987 showed a tear of rotator cuff muscles, following which Dr. Wheeler performed surgery on June 23, 1987. The surgical procedure was described as repair of rotator cuff with anterior acromioplasty and resection of coracoacromial ligament based on pre- and post-operative diagnoses of right shoulder rotator cuff tear. Dr. Wheeler's surgical report reflects that the acromion was beveled back from the anterior aspect posteriorly and laterally and the coracoacromial ligament was resected. Rotator cuff muscles at the supraspinatus insertion were pulled back 2-3 centimeters. Clearly, the surgical procedure extended beyond the upper extremity and into claimant's body as a whole. Claimant's shoulder was immobilized for a time, but physical therapy was eventually prescribed. On March 3, 1988, Dr. Wheeler's chart notes reflect that claimant could return to work as of the next week with no lifting greater than 20 pounds and no working above shoulder level. On March 4, a written work release was sent to claimant permitting her to return to work as of March 7 with no lifting greater than 20 pounds with the right arm and no working above the shoulder. In addition, restrictions that applied to her hip as to no prolonged standing or walking still applied and were permanent in nature. It is not claimed that the hip problems relate to the injury under review. However, due to the range of restrictions imposed, Aalfs did not accept claimant back as an employee. Dr. Wheeler's chart notes of April 30, 1986 reflect his Page 6 view that claimant's right shoulder pain was associated with her work, which called for reaching and lifting. However, he understood that she had no history of previous such problems beyond the past several weeks. On March 10, 1988, Dr. Wheeler wrote claimant's attorney that she lacked some motion of the shoulder and pursuant to American Medical Association guidelines had a five percent permanent partial impairment of the upper extremity. Dr. Wheeler's chart notes of March 20, 1989 reflect that claimant's shoulder was doing very well with minimal complaints of pain. Most of her complaints were with the neck, which had been going on for several years and gradually getting worse. She had limited motion of the neck in all directions and x-rays showed significant C5-6 disc degeneration. In a letter dated September 11, 1989, Dr. Wheeler noted that claimant's previous total hip replacement prevented her from prolonged walking, standing or carrying greater than 15-20 pounds on a regular basis and that the rotator cuff repair limited her ability to work above shoulder level or to do heavy lifting greater than 10-20 pounds with that arm; repetitive use of the shoulder was likely to aggravate symptoms. He further noted that claimant had been followed for degenerative disc disease which caused a nerve impingement into the arm and some weakness. Claimant would have difficulty with work calling for flexion or extension of the neck. He wrote: Ideally, the work which she would be suited for would be a sedentary desk job. Stooping, climbing, kneeling and crawling are out of the question. Work environment handling objects does not enter into this. Her primary restrictions are also in lifting and carrying. She should essentially do none of this or expect to do prolonged standing or walking. In a letter dated February 13, 1990, Dr. Wheeler expressed his view that claimant's neck pain was the result of disc degeneration at C5-6 and not related to her employment. Alfredo D. Socarras, M.D., a neurologist, performed a neurological examination of claimant on February 5, 1990. He found motions of the shoulders to be essentially normal and motions of the neck essentially normal, but claimant resisted extreme flexion. He could not find any objective evidence of radicular involvement and opined that claimant's symptoms were on a muscle skeletal basis. From the neurological standpoint, he found no impairment and did not feel that mild degenerative changes at C5 and C6 were the cause of claimant's symptomatology. Dr. Socarras did not express a view as to whether the "muscle skeletal" symptoms were related to the subject work injury. Claimant was seen at the University of Iowa Hospitals Page 7 and Clinics, Department of Neurology. Chart notes of John R. Absher, M.D., dated April 27, 1989 reflect (as best as can be told given some difficult handwriting) that one and one-half months before, claimant had looked around at a lecture and complained of subsequent neck pain. On May 6, 1989, Dr. Absher wrote that EMG/NCV testing reflected no evidence of neurological impairment and that the cause of claimant's pain was less likely to be due to a neurologic problem than a musculoskeletal problem and that claimant's lower extremity symptoms could be related to radiculopathy. Claimant was also evaluated by Michael J. Morrison, M.D. Dr. Morrison wrote on December 22, 1988 that cervical x-rays revealed degenerative disc disease at C5-C6. Based on his impression of (1) degenerative disc disease, C5-C6, (2) status postop left total hip replacement, (3) status postop carpal tunnel release, right, (4) status postop rotator cuff repair, right shoulder, and (5) status postop total lateral meniscectomy, left knee, Dr. Morrison recommended restrictions against prolonged walking or standing due to the hip replacement along with jumping or running, avoidance of frequent use of the arm overhead due to the right shoulder surgery, and expressed the view that claimant had sustained a 5-10 percent impairment of the right upper extremity. Claimant was also seen for evaluation by Gene Montgomery, M.D., on November 22, 1985. Dr. Montgomery wrote on December 14 of that year of his impression: (1) degenerative disc disease C5, C6 region; (2) status post lateral meniscectomy of left knee; (3) status post left total hip replacement and revision; (4) status post carpal tunnel release on the right wrist; (5) status post rotator cuff repair right shoulder; (6) left pes anserine bursitis; (7) myofascial pain syndrome. He assigned a 5-10 percent whole body disability impairment for the right shoulder and recommended restrictions against prolonged walking or standing, running or jumping due to the hip, against squatting or repetitive climbing of stairs or ladders and crawling by reason of the pes anserine bursitis, against frequent repetitive overhead lifting or lifting of any significant weights over five pounds due to the right shoulder, and against bending with the neck and head forward due to her cervical problems. In addition, he felt that any activities which would require claimant to work with the arms in a forward extended position would have significant tendency for exacerbation of the triggers in the parascapular region and felt that seamstress work would exacerbate those symptoms significantly. In particular, he believed that claimant would not be able to work for any prolonged period greater than 7-10 minutes with the head tilted or the arms in an extended position. Dr. Montgomery did not express a view as to whether claimant's cervical problems bore any relationship to the work injury. Claimant has also undergone rather substantial Page 8 vocational rehabilitation evaluation. However, this evidence is of limited value in the present case because so many of claimant's restrictions do not relate to the shoulder injury as opposed to her hip replacement and cervical problems. Claimant also seeks certain medical bills under Iowa Code section 85.27 as set forth in her exhibit 8. Wayne R. Meylor, D.C., submitted bills totalling $1,536.84 for numerous spinal adjustments, electrical stimulations, hydrocolator packs, examinations and ultrasound treatments along with various braces and devices during 1988. It is impossible to determine from Dr. Meylor's billings what portion thereof relates to the shoulder injury. James T. Rogers, M.S., submitted a bill of $530.00 for his vocational rehabilitation evaluation and services associated therewith. This is not a medical bill. Dr. Montgomery submitted a bill of $100.00 for his evaluation. Dr. Morrison submitted a bill of $150.00, $100.00 of which related to examination and x-rays and $50.00 of which was for his report. Dr. Wheeler submitted a bill of $50.00 for his letter rating claimant's impairment. West Dodge Neurologic Clinic submitted a bill of $200.00 for NCV and EMG testing on August 12, 1988. The record does not reflect what physician ordered this testing or for what purpose. conclusions of law Claimant has the burden of proving by a preponderance of the evidence that she received injuries on or about May 7, 1985 and April 14, 1986 which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. School 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 v. DeSoto Consol. School Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The words "in the course of" refer to the time and Page 9 place and circumstances of the injury. McClure v. Union, et al., Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. School Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The supreme court of Iowa in Almquist v. Shenandoah Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) discussed the definition of personal injury in workers' compensation cases as follows: While a personal injury does not include an occupational disease under the Workmen's Compensation Act, yet an injury to the health may be a personal injury. [Citations omitted.] Likewise a personal injury includes a disease resulting from an injury....The result of changes in the human body incident to the general processes of nature do not amount to a personal injury. This must follow, even though such natural change may come about because the life has been devoted to labor and hard work. Such result of those natural changes does not constitute a personal injury even though the same brings about impairment of health or the total or partial incapacity of the functions of the human body. .... A personal injury, contemplated by the Workmen's Compensation Law, obviously means an injury to the body, the impairment of health, or a disease, not excluded by the act, which comes about, not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee. [Citations omitted.] The injury to the human body here contemplated must be something, whether an accident or not, that acts extraneously to the natural processes of nature, and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. The claimant has the burden of proving by a preponderance of the evidence that the injuries on or about May 7, 1985 and April 14, 1986 are causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hosp., 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 Page 10 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. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). File number 794353 will be first discussed. Defendants deny that claimant sustained an injury arising out of and in the course of her employment. However, the record is absolutely clear that claimant was diagnosed and underwent a surgical release for carpal tunnel syndrome on the right side. Claimant's testimony that she struck her hand and developed a knot between two fingers on May 7, 1985 is credible and unrefuted. Dr. Duncan has opined that claimant's injury occurred at work. No contrary medical evidence exists in this record. It is held that claimant has met her burden of proof in establishing an injury, carpal tunnel syndrome, arising out of, in the course of and causally connected to her employment on May 7, 1985. No expert evidence in this record establishes that claimant sustained permanent disability resulting from her surgical release. Accordingly, none is awarded. Pursuant to Iowa Code sections 85.32 and 85.33, temporary disability extending beyond fourteen days is compensable until the employee has returned to work or is medically capable of returning to substantially similar employment, whichever first occurs. Claimant was released to return to work October 1, 1985. Therefore, she is entitled to temporary total disability benefits from May 7 through October 1, 1985, totalling 21 weeks, 1 day. The record does not reflect that the medical bills for which claimant seeks an award are related to her carpal tunnel syndrome as opposed to her shoulder injury. Therefore, no medical benefits are awarded in case number 794353. In case number 823077, the parties have stipulated that claimant sustained an injury arising out of and in the course of employment that caused both temporary and permanent disability, although the extent of each remains disputed. Under Iowa Code section 85.34(1), healing period is compensable beginning on the date of injury and until the employee has returned to work, it is medically indicated that significant improvement from the injury is not anticipated, or until the employee is medically capable of returning to substantially similar employment, whichever first occurs. Page 11 Claimant has not returned to work and the evidence shows that she is not expected to ever become medically capable of returning to substantially similar employment. Therefore, her healing period must be held to end at such time as it is medically indicated that significant improvement from the injury is not anticipated. Claimant was essentially off work from April 14, 1986, underwent a surgical repair on June 23, 1987 (following an arthrogram on May 4 of that year) and was released to return to work with certain restrictions on March 3, 1988. On March 10 of that year, Dr. Wheeler assessed claimant as having sustained a five percent permanent partial impairment of the upper extremity, which implies that maximum healing had been attained, since otherwise an impairment rating is premature. This apparently relates back to the March 3 release. It is therefore held that claimant is entitled to healing period benefits from June 26, 1986 through March 3, 1988, totalling 88 weeks, 1 day. The parties dispute the nature of claimant's permanent disability, whether it be a scheduled member disability or a disability to the body as a whole. The surgical treatment of claimant's shoulder extended beyond the arm into the body as a whole. Her remaining symptoms include a loss of range of motion and pain in the body. Claimant's injury is to the body as a whole and not merely the arm; it must be compensated industrially rather than as a scheduled member injury. Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986); Roach v. Firestone Tire & Rubber Co., file number 806034 (App. Decn., August 24, 1989). Section 85.64 of The Iowa Code provides, in pertinent part: If an employee who has previously lost, or lost the use of, one hand, one arm, one foot, one leg, or one eye, becomes permanently disabled by a compensable injury which has resulted in the loss of or loss of use of another such member or organ, the employer shall be liable only for the degree of disability which would have resulted from the latter injury if there had been no pre-existing disability. Claimant's injury has been found to affect the body as a whole and not "another such member or organ" as set forth in the statute. Therefore, no Second Injury Fund liability is triggered on this claim. Many of claimant's symptoms and medical restrictions relate to her cervical complaints. There is a conflict in the medical record as to whether those complaints are neurological or musculoskeletal in nature. Dr. Wheeler, the treating surgeon, has opined that claimant's cervical problems do not relate to her employment. While two neurologists have opined that claimant's cervical problems relate to musculoskeletal problems as opposed to neurological impairment, neither relate those symptoms to Page 12 the subject work injury. Therefore, regardless of whether those symptoms be deemed neurological or musculoskeletal in nature, claimant has failed to meet her burden of proof in establishing that they bear a causal relationship to the subject work injury. It is also significant that the first complaints of cervical pain are far removed in time from the initial injury. 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, 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 Page 13 ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985). Claimant's hip and lower extremity problems and cervical problems do not relate to the subject work injury. However, claimant has substantial medical restrictions that do relate to her shoulder injury. Dr. Wheeler's work release restricted her to lifting no more than 20 pounds with the right arm and no working over the shoulder. He also believed that claimant had sustained a five percent permanent partial impairment of the upper extremity pursuant to the American Medical Association Guides to the Evaluation of Permanent Impairment. Table 3 of that publication shows that this is the equivalent of a three percent impairment of the whole person. In September 1989, Dr. Wheeler suggested that claimant's rotator cuff repair limited her ability to work above shoulder level, do heavy lifting greater than 10-20 pounds, and noted that repetitive use of the shoulder was likely to aggravate symptoms. Dr. Morrison suggested a restriction against frequent use of the arm overhead and felt that claimant had sustained a 5-10 percent impairment of the right upper extremity. Dr. Montgomery found that claimant had sustained a 5-10 percent impairment of the body as a whole and restricted frequent repetitive overhead lifting or lifting of any significant weights over five pounds. He also felt that activities which would require claimant to work with the arms in a forward extending position would have significant tendency for exacerbation of triggers in the parascapular region; thus, seamstress work would significantly exacerbate her problems. It seems clear that claimant will not be able to return to her work as a seamstress irrespective of her other limitations relating to the hip and cervical spine. Aalfs has refused to provide claimant further employment due to her medical restrictions, which of itself shows increased industrial disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). Claimant has only a ninth grade education and has worked primarily as a seamstress during her career. Restrictions against working with her arms in front of the body would interfere with her ability to work as a sandwich maker or a parts solderer, and perhaps to some extent as a cook's helper, bar maid, dime store clerk or waitress. Restrictions against lifting more than five or ten pounds clearly interfere with her ability to work as a baby sitter and obviously limit to a very significant degree claimant's ability to find employment in numerous fields of endeavor, particularly given her limited education. Considering these factors in specific and the record in general, it is held that claimant has sustained a permanent partial disability related to her shoulder injury equivalent to 65 percent of the body as a whole. Any additional industrial disability has not been established as causally related to the subject work injury. Accordingly, claimant shall be awarded 325 weeks of permanent partial disability Page 14 commencing March 4, 1988. Claimant also seeks certain medical bills under Iowa Code section 85.27. It is impossible to determine what portions of Dr. Meylor's total billing is related to the subject injury as opposed to other complaints. It would be unduly speculative to award any of these medical expenses. Mr. Rogers submitted a bill for a vocational rehabilitation evaluation, which is not a medical bill and not compensable under Iowa Code section 85.27. However, $150.00 of this bill can be awarded as court costs for an expert witness, see Iowa Code section 622.72. Bills from Drs. Mongtomery, Morrison and Wheeler are not assessable under Iowa Code section 85.27 because they are for evaluations as opposed to treatment. Section 85.39 (evaluations) was not listed as a hearing issue on the hearing assignment order and is not presented for determination. However, $50.00 of Dr. Morrison's bill is related to his report and all of Dr. Wheeler's bill of $50.00 is for his report. These items can be assessed as costs because they are equivalent to expert witness fees. The bill from West Dodge Neurological Clinic has not been proven to be causally related to the work injury or reasonable and necessary. Accordingly, no medical expenses are awarded, but costs shall be treated as set forth above. order THEREFORE, IN FILE NUMBER 794353, IT IS ORDERED: Defendants Aalfs Manufacturing Company and Employers Mutual Insurance Companies shall pay unto claimant twenty-one point one four three (21.143) weeks of temporary total disability benefits commencing May 7, 1985 at the stipulated rate of one hundred eleven and 53/100 dollars ($111.53) per week and totalling two thousand three hundred fifty-eight and 08/100 dollars ($2,358.08). Defendants shall have credit for all payments made voluntarily prior to hearing. As all benefits have accrued, they shall be paid in a lump sum with interest pursuant to Iowa Code section 85.30. The costs of this action shall be assessed to defendants pursuant to 343 IAC 4.33. Defendants shall file claim activity reports as requested by this agency pursuant to 343 IAC 3.1. FURTHER, IN CASE NUMBER 823077, IT IS ORDERED: Claimant shall take nothing from defendant Second Injury Fund of Iowa. Page 15 Defendants Aalfs Manufacturing Company and The Hartford Insurance Company shall pay unto claimant eighty-eight point one four three (88.143) weeks of healing period benefits commencing April 14, 1986 at the stipulated rate of one hundred seventeen and 04/100 dollars ($117.04) per week and totalling ten thousand three hundred sixteen and 26/100 dollars ($10,316.26). Those defendants shall also pay unto claimant three hundred twenty-five (325) weeks of permanent partial disability benefits commencing March 4, 1988 at the stipulated rate of one hundred seventeen and 04/100 dollars ($117.04) per week and totalling thirty-eight thousand thirty-eight and 00/100 dollars ($38,038.00). Defendants shall have credit for all payments made voluntarily prior to hearing. All accrued benefits shall be paid in a lump sum with interest pursuant to Iowa Code section 85.30. The costs of this action shall be assessed to defendants pursuant to 343 IAC 4.33. Defendants shall file claim activity reports as requested by this agency pursuant to 343 IAC 3.1. Signed and filed this ______ day of ____________, 1990. ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Thomas J. Hoffman Attorney at Law 19 First Avenue NW P.O. Box 528 Le Mars, Iowa 51031 Mr. James M. Cosgrove Attorney at Law 1109 Badgerow Building P.O. Box 1828 Sioux City, Iowa 51102 Mr. Brian L. Campbell Attorney at Law 1100 Des Moines Building Des Moines, Iowa 50309 Ms. Shirley Ann Steffe Page 16 Assistant Attorney General Tort Claims Division Hoover State Office Building Des Moines, Iowa 50319 1803; 2906 Filed December 14, 1990 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : VICKI DENEKAS, : : Claimant, : : vs. : : File Nos. 794353 AALFS MANUFACTURING COMPANY, : 823077 : Employer, : A R B I T R A T I O N : and : D E C I S I O N : THE HARTFORD INSURANCE : COMPANY and EMPLOYERS MUTUAL : COMPANIES, : : Insurance Carriers, : : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : ____________________________________________________________ 2906 Official notice of legal file taken without notice to parties. Iowa Code section 17A.14(4). 1803 Claimant failed to prove permanent disability in scheduled member claim (carpal tunnel syndrome). Forty-three-year-old claimant with ninth grade education and work history mostly as a seamstress was awarded 65 percent body as a whole following rotator cuff repair (held to be body as a whole injury, not arm). Medical restrictions limited lifting to 10 pounds, no working over shoulder height and limited repetitive motion of shoulder and working with the arms in a forward, extended position. Defendant failed to provide continued employment. However, claimant failed to prove that her cervical problems were related to the shoulder injury. Page 1 before the iowa industrial commissioner ____________________________________________________________ : CHARLES KIMM, : : Claimant, : : vs. : File No. 823137 : AMANA REFRIGERATION, INC., : A P P E A L : Employer, : D E C I S I O N : and : : LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed April 3, 1990, is affirmed and is adopted as the final agency action in this case, with the following additional analysis: Defendants argue that Dr. LaMorgese's opinion that claimant fell 3-4 feet is mere speculation to which no weight should be given. We disagree. Where no one witnessed an event and the claimant has no recall of the event, the doctor is in the best position to offer opinion testimony as to the likely cause of the trauma that claimant received. Both Dr. LaMorgese and Dr. Caraway speak of a likely fall. Dr. LaMorgese speaks of a fall of from 3-4 feet; Dr. Caraway of a fall from 4-6 feet. Claimant was found at the bottom of the stairs with his broom leaning on the east side of the steps. The position of the broom and the proximity of claimant's body to the steps also support a finding that claimant had placed the broom at the steps, began to ascend the stairs and, in the course of doing so, fell. Defendants argue claimant would not have sustained any loss of earnings had his employer not discharged him for reasons unrelated to the work injury. Had claimant remained employed with defendant employer, that fact might have had some bearing on claimant's ultimate industrial disability. Certainly, defendants' willingness to retain claimant post-injury is commendable. Actual earnings and loss of earning capacity are not equivalent, however. An employer's willingness to tolerate a less than 100 percent capable employee after an injury and an employee's willingness to Page 2 work with some discomfort after an injury may well reduce actual loss of earnings where an employee remains in an employer's employ subsequent to an injury. That fact, while entitled to due consideration, does not obviate the reality that claimant's ability to compete favorably in the open labor market has been reduced as a result of his work injury. The employee's inability to compete as favorably subsequent to an injury as the employee could compete prior to an injury is the loss of earning capacity for which fair compensation is awarded. The record supports the deputy's finding that conditions unrelated to claimant's work injury have impacted on his post-injury loss of earning capacity. The record also supports the deputy's finding that the work injury and its residuals, when coupled with claimant's education, training, experience and inherent abilities, have of themselves produced a loss of earning capacity equal to the 25 percent of the body as a whole awarded. Defendants shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of December, 1991. ______________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Thomas J. Currie Attorney at Law 3401 Williams Blvd. SW P.O. Box 998 Cedar Rapids, Iowa 52406-0998 Mr. Greg A. Egbers Attorney at Law 600 Union Arcade Building 111 East Third Street Davenport, Iowa 52801 9999 Filed December 4, 1991 BYRON K. ORTON MGT before the iowa industrial commissioner ____________________________________________________________ : CHARLES KIMM, : : Claimant, : : vs. : File No. 823137 : AMANA REFRIGERATION, INC., : A P P E A L : Employer, : D E C I S I O N : and : : LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 9999 Summary affirmance of deputy's decision filed April 3, 1990, with short additional analysis. BEFORE THE IOWA INDUSTRIAL COMMISSIONER CHARLES KIMM Claimant, VS. File No. 823137 AMANA REFRIGERATION, INC., A R B I T R A T I 0 N Employer, D E C I S I 0 N and LIBERTY MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Charles Kimm against his former employer, Amana Refrigeration, Inc., and its insurance carrier, Liberty Mutual Insurance Company. The case was heard and fully submitted at Cedar Rapids, Iowa on December 19, 1989. The record in the proceeding consists of testimony from Charles Kimm, Dennis Frimml and Sharon Jones. The record also contains claimant's exhibit A and defendants' exhibits 1 through 38. ISSUES The issues presented by the parties for determination are whether claimant sustained an injury on May 14, 1986 which arose out of and in the course of his employment with his employer; determination of claimant's entitlement to compensation for temporary total disability, healing period or permanent partial disability; and costs. SUMMARY OF EVIDENCE All the evidence referred to in the Introduction, as well as the demeanor of those who testified at hearing, was considered when deciding this case. The lack of a reference to any particular part of the record does not indicate that it was overlooked. KIMM v. AMANA REFRIGERATION, INC. Page 2 Charles Kimm is a 31-year-old divorced man with two dependent children who lives at Belle Plaine, Iowa and has lived in the Belle Plaine-Marengo area all of his life. Kimm completed the tenth grade and then quit school. He has no further formal education or specialized training. Kimm's work history includes work in a cement plant, work in a meat packinghouse, farming, roofing, his manufacturing jobs with Amana Refrigeration, Inc., and his current job for a seed corn company. Kimm's health history is remarkable for automobile accidents and a stab wound. He had been in an automobile accident in April 1986 wherein he suffered some fractured ribs. Claimant denies injuring his head in that accident and there is no direct evidence in the record which indicates that he injured his head in any manner in that accident. May 14, 1986 was Kimm's first day back at work following recuperation from the April automobile accident. Kimm apparently performed his assigned duties throughout most of the day without any incident or problem. At approximately the time of the afternoon break, he was assigned to go outside and clean up a dock area. Claimant stated that he started sweeping and the next thing he remembers is coming to on a stretcher. He denied having been on the stairs. Kimm was found lying face down, on the cement near the bottom of a set of stairs. There was a small pile of sweepings noted. The broom which he had apparently been using was found leaning on the east side of the steps. When the person who found claimant lying on the cement returned from summoning assistance, claimant was up and moving around. He then had claimant sit down while waiting for the nurse to arrive (exhibit 2). The nurse who examined claimant found him to be alert and oriented, though a bit fuzzy. She observed a laceration on the top of his left ear, abrasions and swelling above his left ear and at the left temporal area of his scalp (exhibit 3). Claimant did not know how the injury had occurred (exhibit 4). Dennis Frimml, a supervisor, stated, that approximately 40 minutes after claimant was placed on a stretcher to be taken from the plant, he went back to the dock area where claimant was found and could not locate any object which could have hit claimant. Claimant was transported by ambulance to a Cedar Rapids hospital where he was treated by neurosurgeon James KIMM v. AMANA REFRIGERATION, INC. Page 3 LaMorgese, M.D. X-rays of claimant's skull revealed a left fronto-parietal skull fracture. A CT scan of his head revealed intracranial hemorrhage on the left side of the head (exhibit 15, page 5). Claimant underwent emergency craniotomy surgery for an epidural hematoma. During the surgery, the fracture of the fronto-temporal region of his skull was noted. A large epidural hematoma was found and evacuated. O ozing type of bleeding from the meningeal artery was observed at several points. The impression noted on the operative report is acute traumatic epidural hemorrhage over the left frontal temporal parietal area (exhibit 24). Claimant did relatively well post-operatively, though there was a complication. He was discharged from Mercy Hospital on May 25, 1986. The final diagnosis noted is as follows: (1) closed head injury with cerebral concussion; (2) hemorrhagic contusion to the tip of the left temporal lobe; (3) left epidural hemorrhage involving the frontal, parietal and temporal regions; (4) scalp laceration over the left ear; (5) contusion of the right shoulder; and, (6) status post-left fronto-parietal temporal craniotomy with evacuation of subdural hematoma. After a period of recuperation, Kimm was released to return to work effective September 22, 1986 (exhibit 30). According to supervisor Dennis Frimml, claimant never voiced complaints of dizziness, headaches or any other complaints following his return to work. Frimml stated that claimant performed his job as a second-class welder and was generally a good employee, as he had been prior to the accident. Sharon Jones, plant nurse, testified that when claimant returned to work following recuperation from his injury, he told her that he had no headaches or dizziness. She stated that if he had come to first aid for headaches or dizziness, a report would appear in the records. Claimant continued to work at Amana Refrigeration until August 17, 1987 when he was terminated for being absent without leave for five consecutive days due to being incarcerated. After extensive litigation the Employment Appeal Board held that claimant was discharged for misconduct and was disqualified from receiving unemployment benefits (exhibits 5, 6, 7, 8, 9, 10 and 11). Following his discharge from Amana Refrigeration, claimant obtained work with Cecil Gorsh & Sons, Inc., performing roofing. The records reflect that he earned $5.50 per hour in that employment (exhibit 12). KIMM v. AMANA REFRIGERATION, INC. Page 4 In August of 1988, claimant was hired by Funk Seeds International where he performs a variety of duties. Claimant stated that when he applied at Funks, he denied having disability because he knew that the job did not require physical labor. At the time of hearing claimant had been made a permanent employee, earned $5.05 per hour and worked 40 50 hours per week. Ever since the injury, claimant has made complaints regarding his right shoulder, hand and arm. He stated that at the present time, his right hand is weaker than the left and tingles. He stated that his balance is impaired and that he has lost coordination and speed. Kimm stated that he experiences headaches and that his neck aches. He stated that his memory is impaired and his speech is not as clear as it was prior to the time of the injury. Kimm stated that his symptoms are always present, but can be exacerbated by activity. He stated that his condition is essentially unchanged from what it was two years prior to hearing. Claimant denied having any problem with blackouts or epilepsy or any similar problems prior to May 14, 1986. In view of claimant's arm and shoulder complaints made while he was initially hospitalized, he was evaluated by Cedar Rapids orthopaedic surgeon Warren Verdeck, M.D., who felt that claimant simply had a contusion and possible muscle strain (exhibit 15, page 1). Further subsequent diagnostic tests were indicative of either a cervical radiculopathy or brachial plexopathy (exhibit 31; exhibit 15, page 2). Dr. LaMorgese issued a report on March 28, 1988 which in pertinent part states: Mr. Kimm was admitted to Mercy Hospital in Cedar Rapids, Iowa, on May 14, 1986, due to a severe head injury while at work. The circumstances under which he fell while at work are unclear to me but he apparently did fall probably from a height of three or four feet. . . . Prior to surgery the patient was awake and was indicating pain in his right shoulder area. . . . The patient has been seen on multiple occasions in my office after discharge from the hospital. The major symptom that was noted as an out-patient was some pain in his neck, shoulder, and arm area on the right. He also indicated that there was some KIMM v. AMANA REFRIGERATION, INC. Page 5 tingling in the thumb and index finger that seemed to improve with time. The patient also has some periodic dizziness that was mild to moderate in nature and apparently also improved. An EMG nerve conduction study done in June of 1986 for evaluation of the shoulder problem was compatible with a brachial plexus injury from his previous fall or a cervical disk problem involving the C6 and C7 nerve roots. My last appointment with the patient was on October 20th 1987. The patient at that time had been doing fairly well. He still was having some discomfort in the neck and right shoulder area. I found no focal neurologic deficits. He indicated that the tingling in the thumb and index finger was becoming less prominent. He was on no medications for his head or neck injury at that point. (Exhibit 36) Dr. LaMorgese rated claimant as having a 12 percent permanent partial disability of the body as a whole of which half is due to the residual symptoms from the brain injury and the remainder due to injuries to the cervical area (exhibit 37). EMG's conducted in January, 1989 were interpreted as being normal. The discussion notes as follows: "It is possible to compress a nerve in a manner sufficient to cause symptoms yet insufficient to cause axonal degeneration or conduction problems. In such a circumstance, the electrophysiology remains normal." (Exhibit 38, page 7). EMG's conducted April 4, 1988 were also interpreted as being normal, other than for a possible right carpal tunnel syndrome which would likely not be a result of the fall (exhibit 38, page 5). APPLICABLE LAW AND ANALYSIS Claimant has the burden of proving by a preponderance of the evidence that he received an injury on May 14, 1986 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of" refer to the cause or source of the injury. McClure v. Union County, 188 N.W.2d 283, 287 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The "arising out of" requirement is satisfied by showing a causal relationship between the KIMM v. AMANA REFRIGERATION, INC. Page 6 employment and the injury. Sheerin v..Holin Co., 380 N.W.2d 415, 417 (Iowa 1986). 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 v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). Claimant was on the employer's premises during work hours and apparently performing his assigned duties at the time of the injury. He was therefore acting in the course of his employment at the time of the injury. It is clear that something struck Kimm's head causing his skull to fracture, the hemorrhage and the hematoma. He could have been hit by an object, it could have occurred merely by falling on the concrete. There are several points in the record where a fall of three or four feet is indicated (exhibits 22 and 23). Dr. LaMorgese, in his March 28, 1988 report, indicates that claimant probably fell from a height of three of four feet. Claimant's own testimony denies having been on the stairs, but he also did not recall anything of being up and about, trying to resume sweeping or sitting on a bucket. He suffered a severe head injury and some memory loss is certainly not unexpected. Idiopathic falls are those which occur as a result of some personal risk or weakness which is peculiar to the individual employee. Idiopathic falls are sometimes distinguished from unexplained falls. An unexplained fall is one for which there is no apparent cause, either personal to the employee or otherwise. The general rule of law is, however, that with a fall which is totally unexplained, a great many jurisdictions award compensation on a general "but for" theory similar to res ipsa loquitur. It is more likely than not that the employment was a cause. The results of an idiopathic fall are not generally compensable because the source does not rest in the employment. An idiopathic fall can be compensable, however, if the employment places the employee in a position which increases the injury which results from the idiopathic fall. 1 Larson Workmen's Compensation Law, section 12.11. That same view has been adopted in our neighboring state of Minnesota. O'Rourke v. North Star Chemicals, Inc., 281 N.W.2d 192 (Minn. 1979). Falls from a height of two or three steps have been held to be sufficiently contributory to producing more serious injury in order to render all the injuries which result compensable. If the correct rule of law is that the injuries from an idiopathic fall become compensable if the employment contributed to the seriousness KIMM v. AMANA REFRIGERATION, INC. Page 7 of the injuries, then it is clear that injuries from an unexplained fall should certainly be compensable if the employment increased the seriousness of the injuries resulting from the fall. Charles Kimm experienced a severe trauma to his head it was sufficiently severe to fracture his skull and produce intracranial bleeding. Dr. LaMorgese stated that it was probable that he had fallen from a height of three or four feet. The severity of Kimm's injury is greater than those which commonly occur when an individual falls on a level surface without striking any object as he falls. There is no indication in the record of this case that the intracranial bleeding resulted from anything other than the trauma of the fall. It is therefore determined that the fall in this case is unexplained. It is further determined that the more likely scenario is that Kimm was on the stairs when he fell thus accounting for the severity of his injuries. His memory concerning the injury cannot be relied upon. The statement from Dr. LaMorgese concerning a probable fall from a height of three or four feet is determined to be a much more reliable indicator of what actually occurred. Kimm could have slipped, tripped or merely lost his balance, any one of which would result in compensability. Since he fell from a height and sustained a serious injury, rather than a minor injury which would be expected from a fall on a level surface, the results of the injury are compensable. It is therefore determined that Charles Kimm's injuries that were sustained on May 14, 1986 arose out of and in the course of his employment with Amana Refrigeration, Inc. Even if the fall were totally unexplained, the result would be the same. When all possible scenarios which can be imagined are considered, it is more likely than not that the employment was a cause. There is no evidence whatsoever to support any defense under section 85.16. Dr. LaMorgese related the injuries to trauma. This is not a case where the evidence indicates an intracranial bleed caused a loss of consciousness, which caused the employee to fall and fracture his skull. The parties stipulated to the extent of the healing period entitlement, namely running from May 15, 1986 through September 21, 1986, a span of 18 4/7 weeks. If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: KIMM v. AMANA REFRIGERATION, INC. Page 8 "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability, to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). Industrial disability or loss of earning capacity is a concept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment of physical capacity creates an inference of lessened earning capacity. The basis element to be determined, however, is the reduction in value of the general earning capacity of the person, rather than the loss of wages or earnings in a specific occupation. Post-injury earnings create a presumption of earning capacity. The earnings are not synonymous with earning capacity and the presumption may be rebutted by evidence showing the earnings to be an unreliable indicator. Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 34th Biennial Report, 218 (1979); 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. Claimant is afflicted with some loss of use of his right arm, headaches, dizziness and other residuals from the injury. The loss of his employment at Amana Refrigeration is not shown to have been a result of the injury and his entire reduction in actual earnings cannot be attributed to the injury. Claimant is, nevertheless, somewhat impaired in his mental and physical capabilities. His testimony and demeanor indicate some impairment of his mental abilities, although that is not corroborated by medical practitioners. His complaints of headaches and dizziness seem well founded. Claimant's educational background is such that intellectual pursuits were probably never a likely.occupation for him. The loss of use of his right hand and arm though small, is made more important by the lack of opportunity for intellectual type employment. The EMG's conducted in April 1988 and January 1989, which were interpreted as being normal, do not conclusively exclude the existence of permanent injury. The discussion notes as follows: "It is possible to compress a nerve in a manner sufficient to cause symptoms yet insufficient to cause axonal degeneration or KIMM v. AMANA REFRIGERATION, INC. Page 9 conduction problems. In such a circumstance, the electrophysiology remains normal." (Exhibit 38, page 7). When all the pertinent factors of industrial disability are considered, it is determined that Charles Kimm experienced a 25 percent reduction in his earning capacity as a result of the injuries he sustained on May 14, 1986 when he fell at his place of employment. FINDINGS OF FACT 1. Charles Kimm fell on May 14, 1986 from a cause which is completely unexplained and unknown. 2. The injuries are consistent with a fall from a height of three or four feet as indicated by Dr. LaMorgese. They are more severe than what would normally be expected from a fall on a level surface. It is more likely than not that Kimm fell from he stairs. His testimony that he was not on the stairs is not reliable. 3. Falling from a height of three or four feet onto the cement slab increased the severity of the injuries Kimm sustained when he fell in comparison to those which would have been likely if he had fallen on a level surface. 4. Kimm was performing the duties of his employment at the time he fell. 5. The injury includes not only brain injury, but also injury to his cervical spine and brachial plexus, all as diagnosed by Dr. LaMorgese. 6. The injury has left claimant with residual symptoms and a 12 percent permanent impairment of the body as a whole, all as assessed by Dr. LaMorgese. 7. Charles Kimm's earning capacity has been reduced by 25 percent as a result of the injuries he sustained in the fall that occurred on May 14, 1986. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. The head, neck and shoulder injuries which Charles Kimm sustained on May 14, 1986 arose out of and in the course of his employment with his employer Amana Refrigeration, Inc. KIMM v. AMANA REFRIGERATION, INC. Page 10 3. Claimant is entitled to recover 125 weeks of compensation for permanent partial disability as a result of the injuries sustained on May 14, 1986. ORDER IT IS THEREFORE ORDERED that defendants pay Charles Kimm eighteen and four-sevenths (18 4/7) weeks of compensation for healing period at the stipulated rate of two hundred twenty-two and 97/100 dollars ($222.97) per week payable commencing May 15, 1986. IT IS FURTHER ORDERED that defendants pay claimant one hundred twenty-five (125) weeks of compensation for permanent partial disability at the stipulated rate of two hundred twenty-two and 97/100 dollars ($222.97) per week payable commencing September 22, 1986. IT IS FURTHER ORDERED that defendants are entitled to credit for all weekly compensation previously paid for healing period and permanent partial disability in the total amount of seventy-eight and four-sevenths (78 4/7) weeks as stipulated in the prehearing report. IT IS FURTHER ORDERED that defendants pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33 including thirty-five and 00/100 dollars ($35.00) for a medical report from Dr. LaMorgese, ten and 00/100 dollars ($10.00) for medical reports from IMC, and thirty-one and 00/100 dollars ($31.00) for the transcript of the Charles Kimm deposition. IT IS FURTHER ORDERED that defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 3rd day of April, 1990. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER KIMM V. AMANA REFRIGERATION, INC. Page 11 Copies To: Mr. Thomas J. Currie Attorney at Law 3401 Williams Blvd. SW P.O. Box 998 Cedar Rapids, Iowa 52406-0998 Mr. Greg A. Egbers Attorney at Law 600 Union Arcade Building 111 East Third Street Davenport, Iowa 52801 1108.50, 1402.30 5-1803 Filed April 3, 1990 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER CHARLES KIMM, Claimant, File No. 823137 vs. A R B I T R A T I O N AMANA REFRIGERATION, INC. D E C I S I O N Employer, and LIBERTY MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. 1108.50, 1402.30 Claimant fell and suffered severe head and shoulder injury. The cause of the fall could not be identified. It was held that falls which are totally unexplained are deemed to arise out of the employment under a "but for" or res ipsa loquitur type of theory. There was no evidence that the fall was idiopathic, that being one which occurred due to some peculiar conditon of the employee. 5-1803 Claimant awarded 25 percent permanent partial disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER YOLON J. GIBBS, Claimant, File No. 823371 vs. KIMBERLY SMORGASBORD, A R B I T R A T I 0 N Employer, D E C I S I 0 N and F I L E D FIREMAN'S FUND INSURANCE MAY 25 1988 COMPANY, IOWA INDUSTRIAL COMMISSIONER Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Yolon J. Gibbs, claimant, against Kimberly Smorgasbord, employer, and Fireman's Fund Insurance Company, insurance carrier, to recover benefits under the Iowa Workers' Compensation Act as a result of an alleged injury sustained May 15, 1986. This matter came on for hearing before the undersigned deputy industrial commissioner April 28, 1988. The record was considered fully submitted at the close of the hearing. The record in this case consists of the testimony of claimant, Debra Van Blaricom and Don Anderson; joint exhibits 1 through 7, inclusive; and, defendants' exhibits A and B. ISSUES Pursuant to the prehearing report and order submitted and approved April 28, 1988, the following issues are submitted for determination: 1. Whether the claimant sustained an injury on May 15, 1986 which arose out of and in the course of her employment; 2. Whether claimant's alleged work injury is the cause of the disability on which she now bases her claim; and, 3. The nature and extent, if any, of claimant's entitlement to permanent partial disability benefits and the commencement date thereof. FACTS PRESENTED Claimant, who began working for defendant employer in April 1985, performed various jobs including vacuuming, cleaning tables, serving coffee, preparing condiments, cleaning the food line, and busing tables. Claimant described the employer's use of "tubs" to bus tables which, when filled, weighed in her estimation approximately 50 to 60 pounds and that she would carry the filled tubs to be placed on rollers which required she lift the tubs about chest high. Claimant explained that in about March or April 1986, she noticed that her arm,and hand began hurting and swelling particularly when she was busing tables and that when she complained of pain, the owner (Don Anderson) helped her bus the tables. Claimant recalled that on May 15, 1986, she was very busy busing tables and, because of pain and swelling in her arm and hand, left work early, telling her manager she was unable to complete her work. Claimant testified that on May 16, 1986, her arm hurt so that she could not lift it and therefore went to see Herbert R. Wood, D.C., whom she had seen before for lower back problems. Claimant explained that Dr. Wood took x-rays and told her that she had a shoulder dislocation. Claimant testified that she saw C.L. Peterson, D.O., on approximately three occasions on the request of the insurance company. Claimant maintained, however, that Dr. Peterson was rough on her when he was adjusting her arm and that it became worse rather than better and therefore she returned to see Dr. Wood. Claimant explained that she saw William R. Irey, M.D., an orthopedic surgeon, and Hugh MacMenamin, M.D., for an evaluation. Claimant described that her shoulder bothers her when she uses her arm to any extent such as the action of ironing. She described that if she irons too much her arm aches. Claimant testified that she cannot bowl, golf, and that lifting bothers her arm "extremely." Claimant, who is currently employed with the McDonalds Company, testified that, for example, three days after mopping at McDonalds her arm will ache. Debra Van Blaricom explained that she is a senior claims adjuster with defendant insurance carrier and was responsible for the administration of claimant's claim. She explained that claimant was sent to Dr. Irey and when his report was received advising him that claimant could return to work with a 25 pound lifting restriction, she contacted defendant employer's owner who indicated work would be made available to claimant under those restrictions. Ms. Van Blaricom explained that she had sent a letter to claimant's counsel (defendants' Exhibit B) with regard thereto but received a reply. Don Anderson testified that he, along with his family, owns Kimberly Smorgasbord and that he was willing to return claimant to work after he received notification from the insurance carrier that claimant had been released with a 25 pound lifting restriction. He acknowledged, however, that it is not he who does the scheduling for the Kimberly Smorgasbord. Hugh MacMenamin, M.D., orthopedic surgeon, testified he saw claimant on one occasion on July 22, 1987 and that at that time claimant had a normal neck range of motion and lacked approximately 20 degrees of range of motion of the right shoulder. Dr. MacMenamin explained that claimant may have had a partial rotator cuff tear or a possible labral tear but that neither was a solid diagnosis. Dr. MacMenamin opined that claimant had a three percent permanent partial impairment of the upper right extremity but he placed no restrictions on claimant's employability and, a review of x-rays previously taken, disclosed no evidence of a shoulder dislocation. The medical reports of Herbert R. Wood, D.C., revealed that after claimant was seen on May 16, 1986, he rendered a diagnosis of cervicalgia with brachial radiculitis, lumbalgia and muscle spasm, and strain/strain of the right shoulder and subluxation of the right shoulder. At that time, Dr. Wood advised that treatment was in the conservative nature with mild manipulations and right shoulder and arm exercises. On February 2, 1987, Dr. Wood opined that claimant suffered a five percent permanent impairment of the right shoulder joint due to ligamentous restrictions. Dr. Wood recommended further treatment but only for maintenance purposes to prevent degeneration. On November 9, 1987, Dr. Wood reiterated his opinion that claimant suffered a five percent impairment that is causal to her injury of May 15, 1986, while employed at Kimberly Smorgasbord. The medical report of William R. Irey, M.D., dated August 5, 1986, states: I told her that I thought it was unlikely that she had dislocated her shoulder but in fact, probably had a tendinitis or bursitis which could certainly be related to her work, especially if she had an especially busy day. This could well be an acute imposed on a chronic condition. .... I also told her that I thought it would be reasonable to return to partial duty work with approximately a 25 lb. weight restriction. I told her if the company would not allow this, then I simply couldn't do anything about that, that I did feel that she was ready for lifting weights up to 50 lbs. APPLICABLE LAW An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). The claimant has the burden of proving by a preponderance of the evidence that the injury of May 15, 1986 is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 7 2 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). 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 (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). Permanent partial disabilities are classified as either scheduled or unscheduled. A specific scheduled disability is evaluated by the functional method; the industrial method is used to evaluate an unscheduled disability. Martin v. Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 950, 98 (1960); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 887 (Iowa 1983). 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). Iowa Code section 85.34(2)(m) provides: The loss of two-thirds of that part of an arm between the shoulder joint and the elbow joint shall equal the loss of an arm and the compensation therefor shall be weekly compensation during two hundred fifty weeks. ANALYSIS The parties have neither stipulated that claimant's injury arose out of and in the course of her employment nor that the disability on which she now bases her claim is causally connected to the work injury. However, defendants admit that neither of these issues are "hotly disputed." The claimant must prove by a preponderance of the evidence that her injury arose out of and in the course of her employment. Musselman, 261 Iowa 352, 154 N.W.2d 128. In the course of employment means that the claimant must prove her injury occurred at a place where she reasonably may be performing her duties. McClure v. Union, et al., Counties, 188 N.W.2d 283 (Iowa 1971). Arising out of.suggests a causal relationship between the employment and the injury. Crowe v. DeSoto Consolidated School District, 246 Iowa 402, 68 N.W.2d 63 (1955). Based upon claimant's testimony as well as the medical evidence submitted, it is determined that claimant sustained an injury which arose out of and in the course of her employment on May 15, 1986. Although claimant may have had symptoms of arm and hand pain prior to that date, claimant maintained and established to the satisfaction of the undersigned that her actions in busing tables on May 15, 1986, caused a personal injury which arose out of and in the course of her employment. A person who has sustained a permanent impairment by the very meaning of the phrase, can never return to the same physical condition she or he had prior to the injury. Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa 1981). Again, based upon the medical evidence presented in conjunction with claimant's own testimony as subjective symptoms and complaints, it is accepted claimant, as a result of the work injury on May 15, 1986, can never return to the same physical condition she was in prior to this injury and it is, therefore, the cause of a permanent impairment and is the cause of the disability on which claimant now bases her claim. What is truly at issue in this case is the nature and extent of claimant's permanent partial disability and the commencement date thereof. Claimant asserts her disability is centered around problems with her shoulder and argues that an industrial disability is appropriate in this case. However, it is found that claimant has failed to establish the disability extends beyond the upper extremity, a scheduled injury under Iowa Code section 85.34(2)(b) which is evaluated by the functional method. In the case of Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986), the Iowa Supreme Court vacated a court of appeals decision and, although primarily dealing in that case with a hip joint, indicated that the court will look in each instance now at shoulder injuries based upon the "extent of the injury." No longer does the court make a blanket determination that a shoulder injury should not be treated as a scheduled injury but rather as a body as a whole injury. The court in the Lauhoff case has ruled that the extent of the injury in each case will be examined and will be treated as a body as a whole injury only if the extent of the injury extends beyond the schedule. All of the medical professionals who either evaluated or treated claimant's injury has rated claimant as having a permanent partial impairment of the upper right extremity. While it is acknowledged that claimant was initially treated because of shoulder problems, the record clearly establishes that the residuals of claimant's impairment are centered on the upper extremity and do not extend to the body as a whole. It is interesting to note that claimant, throughout the course of her testimony, continually referred to problems with her right arm and that she, at no time, indicated any problems as a result of this injury extending beyond the arm. Since it is the disability that is compensated and not the injury itself and claimant's disability surrounds the upper extremity, claimant has a scheduled injury and has not sustained her burden of establishing that the injury extends beyond the schedule into the body as a whole. Dr. MacMenamin rates claimant as having a three percent permanent partial impairment of the upper right extremity. Dr. Wood, claimant's treating chiropractor, rates her as having a five percent impairment of the right shoulder joint. Although Dr. Wood's impairment rating is somewhat confusing, Dr. Wood does base his impairment rating on various specific "numbers" with regard to range of motion and grip strength and, therefore, the opinion of Dr. Wood is given greater weight that the opinion of Dr. MacMenamin and claimant is found to have a five percent impairment of the upper right extremity which entitles her to 12.5 weeks of permanent partial disability benefits. The final issue for resolution is the appropriate commencement date for claimant's permanent partial disability benefits. Since Dr. Wood indicates in his letter of February 2, 1987 that claimant has reached a permanent and stationary condition, it is determined that claimant's permanent partial disability benefits shall commence February 2, 1987. FINDINGS OF FACT Wherefore, based on all of the evidence presented, the following findings of fact are made: 1. Claimant began working for Kimberly Smorgasbord in April 1985 and was responsible for busing tables which required she lift tubs weighing approximately 50 to 60 pounds. 2. In approximately March or April 1986, claimant began to experience pain and swelling in her right arm and hand. 3. On May 15, 1986, a particularly busy day for claimant, claimant had to leave work early because of pain in her arm and did not continue performing her job responsibilities. 4. Claimant sought treatment for the pain. 5. Claimant continues to experience pain in her arm with use. 6. Claimant has a permanent partial impairment as a result of the incident of May 15, 1986. 7. The residuals of claimant's impairment are centered on the upper right extremity and do not extend to the body as a whole. 8. Claimant has a permanent partial disability of five percent to the upper right extremity. CONCLUSIONS OF LAW Wherefore, based on the principles of law previously stated, the following conclusions of law are made: 1. Claimant sustained an injury which arose out of and in the course of her employment May 15, 1986. 2. Claimant has established that the work injury is the cause of the disability on which she now bases her claim. 3. Claimant has established the work injury is the cause of a permanent partial impairment of five percent to the upper right extremity entitling her to 12.5 weeks of permanent partial disability benefits. ORDER THEREFORE, IT IS ORDERED: That defendants are to pay unto claimant twelve point five (12.5) weeks of permanent partial disability benefits at the stipulated rate of seventy-seven and 23/100 dollars ($77.23) per week commencing February 2 That defendants shall receive full credit for all permanent partial disability benefits previously paid. That payments that have accrued shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. That claim activity reports shall be filed upon payment of this award. That costs of this action are assessed against defendants pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 25th day of May, 1988. DEBORAH A. DUBIK DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. William J. Bribriesco Attorney at Law 2407 18th Street Suite 202 Bettendorf, Iowa 52722 Mr. James C. Huber Attorney at Law 1000 Des Moines Building Des Moines, Iowa 50309-2462 1803.1 Filed May 25, 1988 Deborah A. Dubik BEFORE THE IOWA INDUSTRIAL COMMISSIONER YOLON J. GIBBS, Claimant, File No. 823371 vs. KIMBERLY SMORGASBORD, A R B I T R A T I 0 N Employer, D E C I S I 0 N and FIREMAN'S FUND INSURANCE COMPANY, Insurance Carrier, Defendants. 1803.1 Claimant sustained an injury to her shoulder which arose out of and in the course of her employment. Claimant was responsible for busing tables for defendant employer and experienced pain in her arm and hand after a particular busy day of busing tables on May 15, 1986. Although claimant argued she was entitled to an industrial disability, the residuals of claimant's impairment were found to be centered on the upper extremity and not extending to the body as a whole. Claimant's sole complaint was that her arm was sore. Claimant awarded 5% permanent partial disability benefits to the upper right extremity.