BEFORE THE IOWA INDUSTRIAL COMMISSIONER DUANE ARNHOLD, Claimant File Nos. 825923 861959 vs. A R B I T R A T I O N CITY OF DES MOINES, D E C I S I O N Employer, Self-Insured, Defendant.. F I L E D N O V 30 1989 INDUSTRIAL SERVICES INTRODUCTION This is a proceeding in arbitration brought by Duane Arnhold, claimant, against City of Des Moines, employer and self-insured defendant, for benefits as the result of an injury to the back and neck on February 25, 1986 (file no. 861959) and another injury to the back and neck on June 9, 1986 (file no. 825923). A hearing was held in Des Moines, Iowa, on January 24, 1989, and the case was fully submitted at the close of the hearing. The records consist of the testimony of Duane Arnhold, claimant; Michael E. Peterson, workers' compensation administrator; joint exhibits 1 through 4 and proposed claimant's exhibits A and B. The admissibility of claimant's exhibits A and B is to be ruled upon in this decision. A transcript of the hearing was ordered by the deputy. Both attorneys submitted excellent posthearing briefs. STIPULATIONS The parties stipulated to the following matters at the hearing: As to both the injury of February 25, 1986 and the injury of June 9, 1986, the parties stipulated: That an employer-employee relationship existed between claimant and employer at the time of both injuries. That claimant did sustain an injury on February 25, 1986 and again on June 9, 1986, which arose out of and in the course of employment with employer. That the type of permanent disability, if the injury is found to be a cause of permanent disability, is industrial disability to the body as a whole. That the commencement date for permanent disability benefits, if such benefits are awarded, is May 19, 1987. That the rate of compensation, in the event of an award, is $263.24. That medical benefits are no longer in dispute. That defendant claims no credit for workers' compensation permanent disability benefits paid prior to hearing. That there are no bifurcated claims. As to the injury of February 25, 1986, the parties stipulated that claimant lost no time from work, no temporary disability benefits were paid and claimant's entitlement to temporary disability benefits was not a disputed matter in this case at this time. As to the injury of June 9, 1986, the parties stipulated that claimant was paid 1 1/7 weeks of temporary workers' compensation benefits prior to hearing and that entitlement to additional temporary disability benefits is not a disputed matter in this case at this time. ISSUES The parties submitted the following issues for determination at the time of the hearing. Whether the injury of February 25, 1986 or the injury of June 9, 1986 was the cause of permanent disability. Whether claimant is entitled to permanent disability benefits as the result of the injury of February 25, 1986 or the injury of June 9, 1986, and if so, the nature and extent of benefits. PRELIMINARY MATTERS Defendant objected to claimant's proposed exhibits A and B. The hearing deputy reserved ruling on these two objections until the decision of the case. The deputy, after considering the arguments of both attorneys on both exhibits, now rules as follows on these two objections: Defendant objected to claimant's proposed exhibit A for the reason it was not served 15 days prior to hearing pursuant to paragraph six of the hearing assignment order. Claimant admitted it had not been served. Therefore, defendant's objection to claimant's exhibit A is sustained. Claimant's exhibit A is not admitted into evidence and will not be considered in the determination of this case. It will remain with the record for purposes of appeal. Defendant objected to claimant's proposed exhibit B for the same reason. Claimant contended it was rebuttal to the testimony of Michael Edward Peterson. Claimant's exhibit B is admitted into evidence over the objection of defendant. SUMMARY OF THE EVIDENCE Claimant, age 51, completed the sixth grade and later obtained a G.E.D. certificate in 1955 while in the army. Claimant served in the army from 1954 to 1957 as a tank operator, tank gunner and tank mechanic. He then served in the navy from 1958 until 1962 as a boiler tender and machinist mate. Claimant also completed a one year course of industrial maintenance which entailed the operation of boilers and air conditioners and operation and repair of heating and cooling systems. He received a certificate and obtained a Minnesota stationary engineer's license. He also holds a first class operating engineer's license for the city of Des Moines. Past employments include farming and factory work. He was self-employed as a tree trimmer and also as a service station operator and automotive repairman. He performed stationary engineer work various places operating, repairing and maintaining heating and cooling systems. A two page, 26 point list of his skills is in evidence (exhibit 4, pages 92 & 93; transcript page 70). In his past employments he lifted up to 100 and 150 pounds. Claimant performed duties as an equipment operator for employer and as a stationary engineer. At the time of these injuries, claimant was custodial supervisor for the convention center setting up and tearing down the facilities needed by the various users or exhibitors for meetings, dinners, dances and exhibitions. He supervises anywhere from one to twelve employees. It is hard work. He might move 50,000 to 60,000 pounds of weight to build a set or set up 2,000 chairs in very short periods of time. He works with staging risers, wall panels and tables which weigh up to 100 pounds or more. He is also responsible for the safety and security of his workers and customers during his shift from 3:00 p.m. until 12:00 a.m. Claimant testified that prior to these two injuries he could perform all of the physical aspects of his job without difficulty. Prior to the two injuries under consideration claimant was injured in a nonwork-related automobile accident on November 26, 1985. The injuries were to his neck and left arm. Claimant eventually received a $20,000 settlement for this accident which included property damage on his automobile, lost wages, medical expenses and other out of pocket expenses. Then on February 25, 1986, claimant was injured in a work-related automobile accident. Claimant was enroute to C.P.R. class when his vehicle was rear ended by another vehicle. This accident injured his midback and his right arm became numb and he dropped things. He was examined after this accident at Lutheran Hospital and has been treated by Kelly Bast, M.D., for this injury. Claimant said he reported this injury to employer from the hospital and then went home, went to bed for three days and then returned to work (tr. p. 50). Claimant contended that the back pain from this injury has never gone away (tr. p. 54). The parties stipulated that claimant is not entitled to any temporary disability benefits for this injury. Claimant was injured again while working at the convention center on June 9, 1986, while setting wall panels. While pushing a wall panel, his feet slipped out from underneath him, his chest crashed into the side of the wall panel and he fell down on his left shoulder on the floor. This accident injured his midback again and right leg. Claimant tried to work on June 10, 1986 and June 11, 1986, but had so much trouble that he eventually reported to the employee health clinic on June 12, 1986 (ex. 2). Claimant testified that prior to these injuries he had always been very strong and durable. He prided himself on his strength and stamina. He said these injuries had a bad effect on his diabetes and he found it difficult to eat, sleep or concentrate. Claimant said he has not improved since these accidents. He has to be very careful about lifting, pushing and pulling. When he is tired, his left toe catches in the carpet at home when he walks. He suffers from diabetes, irregular heart beat, a slightly enlarged heart and wears glasses. He felt he had recovered from his neck and left arm complaints from the off duty nonwork-related auto accident that occurred on November 26, 1985. However, the pain in his midback from the two work injuries has never gone away. Claimant said he can still supervise, but finds it difficult to perform the manual labor tasks involved in his job. However, he has not reported to any of his superiors that he is no longer capable of performing the duties of his job of custodial services supervisor (tr. pp. 78 & 79). Defense counsel demonstrated to claimant that on December 3, 1985, he reported midback and midchest pain prior to these work injuries (ex. 1, p. 59). Also, that he was having numbness and dropping things with his left hand on February 20, 1986 (ex. 1, p. 59). Both of these doctor notes preceded the two work injuries under consideration in this case. She also demonstrated to claimant that he complained of left arm and hand complaints after the February 25, 1986 car accident, but that he testified this accident affected his right arm (tr. p. 85; ex. 1, p. 45). Claimant could not explain why Dr. Bast's notes did not record the automobile accident of February 25, 1986 and his complaints as a result of that accident until November 12, 1986 and then only cursorily when Dr. Bast's notes did reflect the automobile accident of November 26, 1985 in quite some detail (tr. pp. 87-90). Defense counsel demonstrated that Dr. Bast thought claimant's complaints were due to the auto accident of November 26, 1985 (tr. p. 108). Claimant conceded that he has been doing his same job for the same salary for two years since these injuries, but he no longer lifts and twists (tr. pp. 103, 130, 131). Claimant said he has not applied for employment with any other employers (tr. p. 104). Dr. Bast's notes showed claimant had delegated more of his duties to subordinates (tr. p. 105). Michael Edward Peterson testified that he is the safety director for the city of Des Moines. He said employees are to report accidents immediately and seek treatment from the employee health clinic. He testified that claimant never has formally reported an injury as a result of the automobile accident of February 25, 1986 to the city and has never sought treatment for it at the employee health clinic. He added that claimant never contacted him for approval of any treatment for this accident. Claimant did, however, report the automobile accident to his supervisor within 24 hours of when it happened (tr. pp. 110, 114). Peterson testified that the injury of June 9, 1986, was reported to the city, an injury report was completed and claimant was treated by the employee health clinic. The witness related that neither the clinic nor claimant ever communicated to him that claimant was unable to portions of his work. He said claimant has never requested a job transfer because he could not perform portions of his work (tr. pp. 109-113). Peterson agreed that the supervisors do not always report everything to him that the employees report to them. Claimant testified that he was often required to work long hours; and to work 7, 14 and 21 days in a row without a day off, in spite of the restrictions from the doctor that claimant was not to work overtime, lift repetitively, and not lift over 30 pounds. Peterson said he was aware of the restrictions, but he was not aware of what hours and days that claimant was required to work. At this point, claimant offered claimant's exhibit B which shows his hours and days of work from January 12, 1987 to May 10, 1987. It was claimant's contention that working the long hours and lengthy days without a day off caused his injuries to become permanent (tr. p. 124). The city of Des Moines police report for the accident of November 26, 1985, shows claimant as being injured (ex. 2, p. 1). Dr. Bast indicates that he saw claimant at Methodist Hospital emergency room for weakness of the arm and fingers (ex. 1, p. 59). On December 3, 1985, Dr. Bast diagnosed posttraumatic radiculopathy involving the C-7 and 8 nerve root distribution (ex. 1, p. 59). On December 1, 1985, Dr. Bast noted claimant had midchest and midback complaints. He diagnosed that claimant had thoracic spondylosis causing radiculopathy and chest pain (ex. 1, p. 59). On February 20, 1985, Dr. Bast recorded left arm discomfort with weakness of the left hand, numbness is present sometimes, he drops things. His diagnosis was left arm radiculopathy from probably cervical spondylosis (ex. 1, pp. 5, 58, & 59). All of these symptoms were diagnosed and being treated prior to the work-related automobile accident of February 25, 1986. Dr. Bast sent claimant to David J. Boarini, M.D., for consultation on March 11, 1986, and claimant saw Dr. Boarini on March 17, 1986. Dr. Boarini found that claimant had a diffuse plexus injury to the left arm. His cervical spine showed some degenerative arthritis. Pain in his left heel was thought to be an early sign of his diabetic polyneuropathy. An EMG on February 26, 1986 was negative. Dr. Boarini concluded, "At this point, I don't think we need to do anything more except to follow him." (ex. 1, p. 60). It should be noted that the EMG and Dr. Boarini's examination all took place after the work-related automobile accident at this point in time, but that accident is not mentioned in his report (ex. 1, pp. 58061). It should be noted that the EMG and Dr. Boarini's examination all took place after the work-related automobile accident at this point in time, but that accident is not mentioned in his report (ex. 1, pp. 58-61). On Tuesday, May 20, 1986, Dr. Bast's treatment shifts from the cervical area and the left arm to the thoracic area and the right arm, but still there is no mention of the work-related accident that occurred on February 25, 1986. On the contrary, Dr. Bast recorded; (1) posttraumatic myofascitis of the spine, probably permanent concerning the length of time this problem has persisted from November 26, 1985 and (2) paresthesias of the right arm, exact etiology unknown. Dr. Bast stated he was considering whether the underlying neuropathy was "diabetic vs. posttraumatic." (ex. 1, p. 58). On May 23, 1986, Dr. Bast noted that a TENS unit was improving his symptoms since the car accident (ex. 1, p. 57). On June 19, 1986, Dr. Bast recorded the injury of June 9, 1986, while moving panels, but his diagnosis changed without explanation to low back strain (ex. 1, p. 57). Dr. Bast did not see claimant from June 11, 1986 until October 7, 1986, when he stated "normal examination except for obesity", and indicated other doctors were now treating claimant's persistent back pains (ex. 1, p. 56). It wasn't until November 12, 1986, that Dr. Bast made a brief pencil note in his records which states "soreness and stiffness in back-MVA last Feb."..Also on November 12, 1986, the doctor commented that considering the length of time elapsed that low back syndrome may become a permanent problem (ex. 1, p. 56). Dr. Bast last saw claimant on February 1, 1988 and concluded: (1) diabetes mellitus type II, (2) hypertension; (3) previous back injury consistent with compression fractures of T12 and (4) decreased range of motion of the right hip which was questionably arthritis in the right hip versus radiculopathy causing increased pain on rotation of the hip (ex. 1, p. 55). The Lutheran Hospital Emergency Department recorded that claimant was seen there on February 25, 1986, shortly after his automobile accident on that date, with pain in his back between his shoulder blades and numbness in his left arm and hand. He was diagnosed with sustaining thoracic and cervical myofascial strain and paresthesias and hypesthesias of the left arm. He was instructed to rest, take aspirin for pain and to see K. Cunningham, M.D., if he was not improved in two or three days. X-rays of the cervical and thoracic spine were negative except for degeneration (ex. 1, p. 45). The x-ray report itself indicates the cervical spine is negative, but the thoracic spine showed slight anterior wedging of the body of T12 and hypertrophic and degenerative changes of the lower thoracic spine, not acute (ex. 1, p. 46). There is no evidence that claimant saw Dr. Cunningham or anyone else for followup treatment after this injury. Claimant did receive extensive treatment from various doctors at the city health clinic after the injury of June 9, 1986, extensive physical therapy and a consultation with Senesio Misol, M.D., an orthopedic surgeon. After visits to the city health clinic on June 12, 1986 and June 13, 1986, Ken Schulthesis, D.O., diagnosed that claimant was locally tender with spasm at the right middorsal spine (ex. 1, p. 2). Claimant was off work from June 12, 1986 to June 20, 1986 (one week and one day) and then returned to supervisory work only starting on Monday, June 23, 1986 (ex. 1, p. 7). The physical therapist started claimant on Williams Flexion Exercises and a weight reduction program. He weighed 230 pounds and the goal was to reduce to 180 pounds (ex. 1, p. 8). Thoracic spine x-rays demonstrated degenerative changes at T8-9, 9-10 and 10-11. The transverse process of L-1 had an appearance compatible with a fracture of indeterminate age which might represent a remote injury. The impression stated, "(1) except for mild degenerative changes of lower thoracic spine, essentially normal thoracic spine, (2) probable fracture of transverse process of L-1 on the left, age indeterminate" (ex. 1, p. 12). A bone scan on July 7, 1986 was recorded as showing, "minimal scattered degenerative changes. No evidence to suggest acute process particularly @ L1 level - Dr. Henderson" (ex. 1, p. 13). Vik Wall, M.D., noted on July 16, 1986, that claimant related his back problems to moving the wall panels. Claimant notes the automobile accident of last year, but this is the first time he hasn't felt well." (ex. 1, p. 13). On August 29, 1986, James Blessman, M.D., noted claimant's conflicts with his supervisors and recorded, "Anger and hostility almost more of a problem now than back strain." (ex. 1, p. 16). On September 8, 1986, Dr. Blessman recorded claimant was to work on light duty with restrictions of no lifting over 30 pounds, no repetitive lifting and no overtime (ex. 1, p. 18). Dr. Misol saw claimant on September 17, 1986 and reported claimant gave a history of moving the wall panels for his problems rather than the automobile accident of February of 1986 (ex. 1, p. 21). On September 29, 1986, Dr. Misol reported that an EMG was normal and the patient continued to work. He described an unhappy job situation and concluded as follows: We will arrange for outpatient CAT scanning. I told Mr. Arnhold that no matter what it shows, I think we had better solve his work situation. It sounds like he had better be working for another job and that I will not do any surgery until this is the case because I am pretty sure that even after the surgery he is not going to be able to work six or seven days a week and do bending and lifting like he is required to do. (ex. 1, p. 24) The CT examination on October 2, 1986 from L3 through S1 showed the L3-4, L4-5 and L5-S1 spaces were normal. There was evidence of minimal facet joint arthropathy, but no evidence of foraminal narrowing or subarticular narrowing. The impression was no evidence of disc degeneration, minimal facet joint arthropathy (ex. 1, p. 26). Dr. Misol dictated a followup report on October 10, 1986 in which he stated CT scan and x-rays failed to reveal evidence of permanent damage. He said claimant was released, discharged and able to return to work (ex. 1, p. 27). A second CT scan on November 18, 1986, of the thoracic spine showed no evidence of a bulging disc at any level, no pathologic bone lesions, no evidence of extradural defect deforming the thecal sac. The scan did show a slight compression fracture of the T12 vertebral body. The radiologist was unable to distinguish between an L1 transverse process fracture, remote, versus a hypoplastic transverse process and rib (ex. 1, p. 31). Claimant was allowed to continue to work light duty with the restrictions even though Dr. Misol said he could return to work. Dr. Misol saw claimant again on May 5, 1987. On this occasion, Dr. Misol interpreted that claimant attributed his back problems to the automobile accident on February 25, 1986, rather than pushing the walls on June 9, 1986. He recommended that claimant would benefit from having weekends off. Dr. Misol concluded as follows: Any how, this does not appear to be an orthopedic surgery problem whatsoever, rather something that he has to work on the job with his supervisor, again patient would like to have some time off. He thinks that he is being forced to work so many hours to make it difficult enough that he has to quit. I have not scheduled any follow up appointments. (ex. 1, p. 39) Dr. Blessman then required claimant to return to work on May 11, 1987 with no restrictions (ex. 1, p. 40). Dr. Blessman made a written report on May 19, 1987 to Peterson in which he summarized claimant's injury and the care and treatment that claimant had received for it. Dr. Blessman concluded, "At this time it appears that he has reached the point of maximum improvement. It is my opinion that there is no permanency involved in the above-mentioned medical problems." (ex. p. 43). On April 6, 1988, Ronald K. Bunten, M.D., reported to claimant's counsel as follows: I believe Mr. Arnhold has degenerative disc disease in his low dorsal spine, and that this became symptomatic after aggravations sustained in accidents of February 25, 1986 and June 9, 1986 while working. I believe he has reached a steady state and has a 10% permanent partial impairment of his total body function based on the condition of his spine. I would assign 5% of this impairment to the aggravations of these work-related incidents. (ex. 1, p. 64) There is evidence that claimant was involved in still a third automobile accident, this one not work related, on July 17, 1987. The police report does not show the claimant to be injured and there is no other evidence that he was injured or sought medical treatment as a result of this accident (ex. 2, pp. 8 & 9). APPLICABLE LAW AND ANALYSIS The claimant has the burden of proving by a preponderance of the evidence that the injuries of February 25, 1985 and June 9, 1986 are causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756, 760-761 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). As claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 257 (1963). Claimant has sustained the burden of proof by a preponderance of the evidence that he sustained a permanent injury which was caused by or aggravated by the accidents that occurred on February 25, 1986 and June 9, 1986. It would appear, however, that all or most of the permanency arises out of the injury of June 9, 1986 for the reason that the only evidence of record is that claimant was treated at Lutheran Hospital and released as a result of the motor vehicle accident on February 25, 1986. Claimant said he stayed in bed three days at home and then returned to work. There is no medical evidence of any further treatment for this accident. Dr. Bast did not mention this accident until November 12, 1986 and only cursorily. Claimant was to see a Dr. K. Anderson if he had further difficulty, but there is no evidence he ever saw Dr. K. Anderson. Claimant saw Dr. Boarini after the February 25, 1986 accident and it is not mentioned in his report. For reasons unknown, claimant resurrected it when he saw Dr. Misol on May 5, 1987, but Dr. Misol appeared to disregard claimant's allegation. Dr. Wall recorded that claimant told him about an auto accident, but said he felt well until the pushing walls accident on June 9, 1986 (ex. 1, p. 13). By comparison, claimant was treated extensively for the injury of June 9, 1986 by the city health clinic and its staff of doctors who were quite numerous. They took his complaints seriously and extended him every possible reasonable treatment medality. He received extensive physical therapy and used a TENS unit He was seen by Dr. Bast and was treated by him. Claimant was examined and evaluated by Dr. Misol for the injury of June 9, 1986. Even though from his records, there is no evidence that Dr. Bast knew about the work-related auto accident of February 25, 1986 until November 12, 1986; and even though from his records it appears that he treated claimant not only for the injuries to his neck and left arm from the nonwork-related auto accident of November 26, 1985, but also for the thoracic spine and right arm problems from the pushing walls accident on June 9, 1986; and even though he treated claimant for lumbar or low back pains of unknown origin; Dr. Bast indicated that claimant had a permanent injury because his complaints persisted so long. Dr. Bast's testimony stands for the fact claimant may have sustained a permanent injury, but his evidence is weakened by the fact that he may not have had all of the facts and that he himself did not know if the underlying neuropathy was diabetic or posttraumatic. Dr. Bast did say on two occasions though that he felt claimant had a permanent condition (ex. 1, pp. 56 & 58). Dr. Boarini did not see claimant after the injury of June 9, 1986 and furthermore, he did not address the point of permanency in his one letter. Even though Dr. Misol did not find objective evidence of injury and returned claimant to work, he, nevertheless, recognized claimant's inability to continue to work six or seven days a week and do the bending and lifting he is required to do. He said that claimant had a work problem no matter what the proposed CT scan showed. In other words, irrespective of what objective tests were to reveal, and irrespective of whether claimant had surgery for anything that the objective tests might disclose, he said claimant was not able to do the job that he was expected to do by employer. He attributed this to the injury of pushing walls on June 9, 1986 by the history that he relied upon (ex. 1, p. 29). So even though the x-rays and CT scan did not show evidence of permanent damage (ex. 1, p. 27), Dr. Misol, nevertheless, anticipated that claimant still had some impairment that would make it unlikely that he could do his present job and he recommended that claimant look for other work (ex. 1, pp. 29 & 30). Dr. Blessman, who is also an employee of the defendant employer in this case, concluded that there was no permanency in claimant's medical problem. Nevertheless, he provided claimant with light duty work from September 8, 1986 until May 11, 1987, with restrictions of either supervisory work only, or no repetitive lifting, no lifting over 30 pounds and no overtime work. Claimant testified to numerous bodily complaints. His testimony might be considered to be subjective and also self-serving, however, it enjoys some corroboration by the fact employer's own physician and physicians felt that claimant should work under these severe restrictions for almost a year after the injury of June 9, 1986. At the same time, this is evidence that defendant's gave claimant the benefit of the doubt, saw him and treated his complaints at the city health clinic quite frequently, provided him with extensive physical therapy, consultation with an orthopedic surgeon on three occasions and all of the objective tests that were recommended by the orthopedic specialist in addition to all of the tests that defendant's doctors themselves had ordered. Many of claimant's symptoms predated the two injuries that defendant has admitted. The slight compression fracture of T12, remote, and the possible deformity fracture of the transverse process of L1 of undetermined date were not linked to the auto accident injury of November 26, 1985, since there is no evidence that claimant sustained any serious injury in the automobile accident of February 25, 1986. It was established several times over that claimant has a degenerative condition of the thoracic (dorsal) spine. It was also suggested that claimant's diabetes mellitus II was or could be the cause of polyneuropathy. In spite of the difficulties that claimant has had in performing his job duties, and even though he has delegated lifting and twisting tasks to subordinates, the fact remains that he has been able to perform the same job in some manner at the same pay ever since one week and one day after the injury of June 9, 1986. At the same time, if claimant were forced to seek new employment, as he may well have to do, either because of his physical condition or the amount of conflict that exists between claimant and employer, the fact that claimant has sustained a back injury and filed a litigated workers' compensation claim, coupled with his age, education, diabetic condition, heart condition, and hypertension condition will greatly reduce his employability in the competitive labor market. Claimant appropriately cites Deputy Industrial Commissioner Barry Moranville in the case of Hartwig v. Bishop Implement Company, IV Iowa Industrial Commissioner Report 159 (Appeal Decision June 28, 1984). In that case, claimant was 59 years old and had two years of high school and some training in employer sponsored schools. Deputy Moranville stated: ...His wages have not been lowered as a result of the injury, and he continues to work for the employer. The employer's testimony, quoted above, is taken to mean that claimant's disability is tolerated well in his current employment, but that does not mean any toleration would transfer to another job. Claimant's present job situation, then, is good but the elements of age, education and impairment work against claimant's ability to compete in the job marketplace.... Claimant again aptly cites then Deputy Industrial Commissioner David E. Linquist in the case of Todd v. Department of General Services, Buildings and Grounds, IV Iowa Industrial Commissioner Report 373 (1983). In that case, claimant had a permanent functional impairment rating of 8 to 10 percent of the body as a whole. Then Deputy Linquist wrote as follows: Claimant is 59 years old and has an eighth grade education. Claimant's work life has been spent as a carpenter. As a result of his neck injury claimant has some restrictions. None of claimant's prior neck problems resulted in permanent impairment. Claimant also has other medical problems unrelated to this neck injury which may affect the length of time claimant will be able to work. The greater weight of evidence reveals that [sic] claimant has returned to the same job he had at the time of his injury, but his employer has allowed claimant to ease up on the work he performs and has limited his heavy work. This injury has not appeared to have affected claimant's ability to keep the job he presently has. Therefore, his actual earnings may not be reduced in proportion to his injury. On the other hand claimant would not find other new employers so gracious with his restrictions. Based on all the evidence presented it is determined that claimant has an industrial disability of fifteen percent as a result of his injury of December 17, 1980. There is evidence from Dr. Blessman and Dr. Misol that conflicts between claimant and his supervisors may be as influential on his physical condition as anything else. There is evidence of a great deal of bitter dispute between claimant and employer and his superiors. It is not the purpose of the workers' compensation law to resolve these disputes no matter how aggravated they may appear to be or to engage in any reward or punishment for or against either party on account of them. Dr. Bunten, a reputable orthopedic surgeon, gave a balanced opinion. He said that even though claimant had degenerative disc disease in his low dorsal spine, it did not become symptomatic until after the aggravations sustained on February 25, 1986, and June 9, 1986. He found claimant had reached a steady state. He said claimant had a 10 percent permanent partial impairment of his total body function. He assigned 5 percent of this permanent impairment to the aggravations of these two work-related incidents (ex. 1, p. 64). Claimant is versatile. He performed skilled jobs in both the army and the navy. He has earned a stationary engineer's certificate and an operating engineer's license. He can operate, repair and maintain automotive equipment, heating equipment and cooling equipment. Claimant never received surgery and surgery was never recommended or seriously considered by any of the physicians that treated him. Wherefore, based upon the evidence presented, the foregoing principles of law, all of the foregoing mentioned considerations, all of the factors used to determine industrial disability, and employing agency expertise [Iowa Administrative Procedure Act 17A.14(5)], it is determined that claimant has sustained a 10 percent industrial disability to the body as a whole. FINDINGS OF FACT Wherefore, based on the evidence presented the following findings of fact are made. That Dr. Bunten testified that the injuries of February 25, 1986 and June 9, 1986 caused claimant's degenerative thoracic spine disease to become symptomatic. That Dr. Bunten's opinion is the most balanced, reasonable and reliable opinion in light of all of the evidence in the case. That Dr. Misol did not find any permanent impairment by finding a degree of permanent functional impairment, but did find that claimant should seek other work because irrespective of the findings of objective tests, and irrespective of whether claimant had surgery for anything the objective tests might reveal, he believed that claimant was not able to perform the tasks required by his employment or work the days and hours required by the employment. That Dr. Blessman did not find any permanent functional impairment, yet his handling of the case, as well as the handling by the other city doctors, demonstrates that they considered claimant suffered a very serious work-related injury. That Dr. Blessman, as an employee of the city health clinic, was an employee of defendant employer as well as a treating physician of claimant. That Dr. Bunten's view is the most factually correct, balanced, reasonable and reliable view based on all of the evidence. That claimant has sustained a 5 percent permanent functional impairment of the body as a whole. That claimant is age 51, has a sixth grade education with a G.E.D. obtained in the army and suffers from diabetes mellitus II, heart condition, hypertension, slight compression fracture of T12, and possible fracture deformity of the left L1 transverse process. That claimant has returned to the same job at the same pay and performed the work since one week and one day after the injury of June 9, 1986, but worked under protective restrictions for one year after the injury and claims that he delegates the most strenuous parts of his tasks to subordinates now. That although claimant has been able to perform, in some manner, the job he was performing at the time of these injuries that claimant's employability in the competitive labor market is reduced if he were forced to find new employment. That claimant has a wide and varied employment background and that he has skills as an automotive repairman and as an engineer. That claimant has sustained a 10 percent industrial disability to the body as a whole. . CONCLUSIONS OF LAW Wherefore, based upon the evidence presented and the foregoing principles of law, the following conclusions of law are made: That the injuries of February 25, 1986 and June 9, 1986 were the cause of permanent disability. That claimant has sustained an industrial disability of 10 percent to the body as a whole. That claimant is entitled to 50 weeks of permanent partial disability benefits. ORDER THEREFORE, IT IS ORDERED: That defendant pay to claimant fifty (50) weeks of permanent partial disability benefits at the rate of Two Hundred Sixty-three and 24/100 Dollars ($263.24) per week in the total amount of Thirteen Thousand One Hundred Sixty-two Dollars ($13,162) commencing on May 19, 1987 as stipulated to by the parties. That defendant pay this amount in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That defendant is charged with the costs of this action pursuant to Division of Industrial Services Rule 343-4.33, including the cost of the transcript of the hearing. That defendant file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 30th day of November, 1989. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Michael L. Jankins Attorney at Law 2323 Grand Ave. Des Moines, Iowa 50312 Ms. Anne Clarke Assistant City Attorney City Hall Des Moines, Iowa 50307 1401; 1402.40; 1402.60; 1803; Filed November 30, 1989 WALTER R. McMANUS, JR. BEFORE THE IOWA INDUSTRIAL COMMISSIONER DUANE ARNHOLD, Claimant, File Nos. 825923 861959 vs. A R B I T R A T I O N CITY OF DES MOINES, D E C I S I O N Employer, Self-Insured, Defendant. 1402; 1402.40; 1402.60 Claimant's testimony, report of employers' evaluating physician and report of claimant's evaluating physician combined to establish that these injuries were the cause of permanent disability. Employer's evaluating physician found no permanent impairment, but did find that claimant was not able to perform the job duties that employer expected claimant to do. Claimant's evaluating physician found permanent impairment because these injuries caused claimant's degenerative back condition which was dormant to become symptomatic. 1803 Employer's treating physician found no permanent impairment, however, he was also an employee of defendant employer. Employer's evaluating physician found no permanent impairment, but said that the injuries prevented claimant from performing the job that defendant expected him to do. Claimant's evaluating physician determined that claimant's permanent impairment was 10 percent of the body as a whole, 5 percent of which was made symptomatic by these injuries. Claimant did return to work a week and one day after the second and most serious injury and worked with restrictions of: (l) no lifting over 30 pounds; (2) no repetitive lifting; and (3) no overtime work for a period of one year and then performed the job after the restrictions were lifted. Claimant contended he delegated the heavy work to subordinates. It was found: (l) that claimant's tolerance to perform this job was not necessarily transferable to other jobs in the competitive labor market and (2) that claimant's earnings had not been reduced in proportion to his injury. New employers might not be so gracious with claimant's limitations of symptomatic degenerative spine, diabetes mellitus II, heart condition, hypertension, age of 51, and sixth grade education with G.E.D. Claimant's injury was basically strain and spasm. Objective tests were negative for disc injury. No surgery was performed, recommended or even suggested. Claimant awarded 10 percent industrial disability. Page 1 before the iowa industrial commissioner ____________________________________________________________ : KENNETH D. ARRICK, : : Claimant, : File No. 826544 : vs. : : A R B I T R A T I O N GRIFFIN PIPE COMPANY, : : D E C I S I O N Employer, : Self-Insured, : Defendant. : ___________________________________________________________ introduction This is a proceeding in arbitration brought by Kenneth D. Arrick, claimant, against Griffin Pipe Products Company, employer and self-insured defendant, for benefits as the result of an alleged injury which occurred on June 20, 1986. A hearing was held in Council Bluffs, Iowa, on June 22, 1989, and the case was fully submitted at the close of the hearing. Claimant was represented Shelden M. Gallner. Defendant was represented by W. Curtis Hewett. The record consists of the testimony of Kenneth D. Arrick, claimant; Teri Arrick, claimant's wife; Bert W. Scott, Jr., coemployee; John W. Greene, Jr., rehabilitation counselor; Gene Maaske, claimant's witness; Erick Alverio, licensed physical therapist; and Gary Lee Mace, claimant's rebuttal witness; joint exhibits 1 through 87 and defendant's exhibits 88 through 91. With the prehearing report, claimant submitted claimant's description of disputes; a list of 13 medical expenses with bills attached; and a statement of expenses with bills attached, which is interpreted to be claimant's request for costs. Defendant submitted a description of disputes, a joint exhibit list, defendant's objections to claimant's exhibits and an affidavit for court costs for the deposition of Patrick Bowman, M.D., in the amount of $900. The deputy ordered a transcript of the hearing. Defendant's attorney submitted an excellent posthearing brief. Claimant's attorney did not submit a posthearing brief. stipulations The parties stipulated that the alleged injury was the cause of temporary disability during a period of recovery and that the times off work for which claimant now seeks temporary disability benefits is from June 20, 1986 to February 4, 1988; and that the commencement date of permanent partial disability benefits, in the even such benefits are awarded, is February 4, 1988. issues Page 2 The parties submitted the following issues for determination at the time of the hearing: Whether claimant sustained an injury on June 20, 1986, which arose out of and in the course of employment with employer. Whether the injury was the cause of permanent disability. Whether claimant is entitled to temporary or permanent disability benefits, and if so, the extent of benefits to which claimant is entitled. Whether claimant is entitled to medical benefits. findings of fact injury It is determined that claimant did sustain an injury on June 20, 1986, which arose out of and in the course of employment with employer. Claimant testified that on June 20, 1986, he went up some steps to shut off a valve, turned around, his feet went out from under him and he went down on his buttocks (transcript page 189). More particularly, he testified that he slipped on the top step, which was rough cement, and slipped and fell on the steel grating steps below on his buttocks (tr. p. 160). He further testified that the rough concrete and the steel steps were slippery from cement dust which had gathered on them. They appeared to be dry, but were actually wet (tr. p. 65). There were no eye witnesses, however, Bert W. Scott, Jr., a coemployee, testified that even though he did not witness the accident, he heard about it that day (tr. pp. 29 & 36). He further verified that the area where claimant fell is slick and slippery from cement, that it was slippery the day of the injury and that he almost fell there the same day (tr. p. 39). A photograph of the rough cement and steel grating steps is in evidence (ex. 88). Teri Arrick, claimant's wife, testified that the employer called her to report that her husband was injured and was on the way to the hospital. She met the ambulance at the hospital and found him in severe pain (tr. p. 202). A medical information form completed by the office of Ronald K. Miller, M.D., shows that claimant was injured on June 20, 1986, and was first treated on that day by R. Schuyler Gooding, M.D., on the same day at Mercy Hospital from an injury where he fell down stairs (exhibit 26). Claimant testified that he was taken by stretcher to the front gate and then by ambulance to Mercy Hospital (tr. p. 67). Claimant testified that Dr. Gooding transferred his care to Patrick W. Bowman, M.D. (tr. p. 70; ex. 6). On September 24, 1986, Dr. Bowman recorded that the, Page 3 "Patient fell at work down some stairs on 20 June 1986." He determined that claimant had a grade II spondylolisthesis of L5 which had been present over the past three years with no change based on previous x-ray studies. He found that L5 was slipping forward on both L4 and S1 and, "[I]t's literally being popped out between." (ex. 5). Even though claimant had this condition, for at least three years prior to this injury, and even though Dr. Gooding had performed a previous partial L4, complete L5, and partial S1 decompressive laminectomy on January 14, 1985, for a prior injury (ex. 30), nevertheless, Dr. Bowman, a board certified orthopedic surgeon, testified that the injury of June 20, 1986, either aggravated or accelerated the preexisting condition for which he treated claimant (ex. 87, p. 41). Dr. Bowman's statement on causal connection of the employment to the injury is not controverted, contradicted, rebutted or refuted by any other opposing medical evidence. The statement of Dr. Gooding, on June 6, 1985, that claimant's spondylolysis with spondylolisthesis was caused 50 percent by congenital abnormality, 35 percent by the type of work which claimant performs and 15 percent by the fall he encountered back on December 17, 1984 (ex. 31) is not material. After that injury, claimant was examined several times by Dr. Gooding and Bernard L. Kratochvil, M.D., for a second opinion and claimant was released to return to work and did return to work on January 6, 1986. Claimant testified that he worked at his old job as a material handler operating a fork lift truck without any medical treatment and without any time off from work until this injury occurred on June 20, 1986 (tr. pp. 63 & 189). Claimant testified that he lifted stringers, stacked pipe, operated the manual arm to dump hoppers, lifted small trucks onto the fork truck and could climb into and out of large and small trucks. He added that he worked nine hours a day sometimes, and some Saturdays, without any complaints of back pain to employer and that he saw no doctors for treatment during this period of time (tr. pp. 190 & 191). Claimant's wife testified that he recovered well from the injury which occurred on December 17, 1984 (tr. p. 206). Claimant passed a preemployment physical examination before the started to work for employer which included a lumbar x-ray (tr. p. 51). From the foregoing evidence, and from other evidence in the record which contributes to this finding, it is determined that claimant sustained an injury on June 20, 1986, which arose out of and in the course of employment with employer when he slipped and fell on some steps at work and injured his back. causal connection-entitlement-healing period benefits The parties stipulated that the injury of June 20, 1986, was the cause of temporary disability; that the times off work for which claimant now seeks healing period benefits is from June 20, 1986 to February 4, 1988; and that Page 4 the commencement date for permanent partial disability is February 4, 1988. On February 4, 1988, Dr. Bowman stated, "It is my opinion that the patient has reached maximum medical improvement." (ex. 12). Wherefore, it is determined that claimant is entitled to healing period benefits from June 20, 1986 to February 4, 1988, a period of 84.857 weeks. causal connection-entitlement-permanent disability It is determined that claimant has sustained a 50 percent industrial disability to the body as a whole caused by the injury of June 20, 1986. The parties stipulated that the type of permanent disability is industrial disability. Dr. Bowman testified that claimant sustained a 20 percent permanent impairment to the body as a whole and that this impairment rating is limited to the injury of June 20, 1986, and that this would be in addition to any prior impairment that may have existed for other reasons (ex. 87, p. 42). Dr. Bowman's causal connection opinion and impairment rating opinion is not controverted, contradicted, rebutted or refuted by any other medical evidence. The doctor testified that he performed a bilateral mass fusion of L4 to the sacrum with Luque instrumentation which is a rectangular metal device to fix the back above and below and hopefully prevent further slippage while the fusion was maturing in his back (ex 87, pp. 17 & 18). Dr. Bowman testified that his back is solid, his fusion is stable and no activity should jeopardize his fusion (ex. 87, p. 33). Dr. Bowman did not impose any specific restrictions, but it is his practice to only give general guidelines. He told claimant to be active; don't be a couch potato. Avoid things that bother you, but not to the exclusion of all activity. He encouraged claimant to walk, swim, be active, but avoid heavy lifting, bending or stooping (ex. 87, p. 36). Dr. Bowman seemed to leave the question of whether claimant could return to his former employment or other employments up to claimant and vocational rehabilitation specialists. He stated that claimant is not permanently and totally disabled from gainful employment from an orthopedic point of view (ex. 87, p. 30). He testified that claimant did have fear about his ability to return to work and that he did manifest pain magnification. He stated claimant's motivation was impaired, but not absent. He felt claimant would be doing something in the future (ex. 87, p. 38). He indicated that claimant should pick up the ball and determine his own employability (ex. 87, p. 34). Claimant, born August 25, 1944, was 41 years old at the time of the injury and 44 years old at the time of the hearing (ex. 83, p. 2). Claimant's disability is more serious for the reason that it occurred during his peak earning years. Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report of the Industrial Commissioner 34 (Appeal Page 5 Decision 1979); Walton v. B & H Tank Corp., II Iowa Industrial Commissioner Report 426 (1981); McCoy v. Donaldson Company, Inc., IAWC Decisions of the Iowa Industrial Commissioner 400 (1989). Claimant testified that he graduated from high school in 1962 with average grades (tr. pp. 45 & 46). Claimant is intelligent and capable of training for other occupations if he becomes motivated to do so. Dr. Bowman felt that claimant would do something new or different in the future (ex. 87, p. 39). Vocational rehabilitation counselors suggested a number of interests claimant might pursue. The feasibility of retraining is one of the considerations used in the determination of industrial disability. Conrad v. Marquette School, Inc., IV Iowa Industrial Commissioner Report 74, 89 (1984). Claimant's past employments have been farm laborer, warehouse worker, bill collector, truck driver delivering wholesale fruits and vegetables, and shoe store manager (tr. p. 46). Claimant started to work for this employer on October 17, 1974, and performed almost every job in the plant, such as; laborer, scale operator, material handler, transfer car and side fork operator, and the shipping job (tr. p. 52). Based on claimant's subjective complaints, his employability is extremely limited. Claimant contends that his sitting, standing, walking, bending, and stooping are extremely limited. He further contends that he has to lie down three or four times a day for approximately 20 minutes rest. He also maintains that on his bad days he is not able to work at all. These limitations are not supported by any medical evidence, in particular, Dr. Bowman, his treating physician, who seemed to imply that claimant's limitations were self-imposed. He encouraged claimant to be active and do as much as possible (ex. 87, p. 36). Jack T. Rogers, a vocational rehabilitation consultant, determined that claimant was unemployable due to his physical complaints (ex. 74, p. 3). Rogers was hired by claimant for an evaluation. John W. Greene, Jr., a certified rehabilitation counselor, was hired by defendant. Greene set up a physical therapy and work hardening program, but claimant discontinued the program. Erick Alverio, a licensed physical therapist, said that claimant was frequently late, wore the wrong clothing contrary to instructions and testified that claimant was uncooperative and noncompliant (tr. pp. 40 & 41). Previously, however, another physical therapist, Stephen V. Benson, did not think that work hardening would increase claimant's physical capacities beyond what they were at the time that he gave claimant a physical capacity examination (ex. 77, p. 4). Gene Maaske, claimant's friend, hired claimant to clean cruise control parts in his auto parts business, but claimant only worked less than half a day and was not able to continue even though it was only light duty work (tr. pp. 222 & 223). Page 6 Claimant testified that he can no longer fish, hunt, golf or bowl. Claimant's wife testified that he can't dance, play cards, or walk more than a block. He walks with a cane and sometimes falls (tr. pp. 207 & 208). At the beginning of the hearing, claimant walked to demonstrate that his left leg limped while walking (tr. p. 42). At the same time, defendant took surveillance pictures, exhibits 89, 90 and 91, which showed claimant working with other men installing a cement sidewalk and steps in front of his house. Claimant, his wife, and a friend, Gary Mace, testified that claimant did no physical work that day, but rather the other men did the physical work. Claimant only brought buckets of water to clean the tools (tr. pp. 90, 214, 267, 270 & 292). The photographs do not actually show claimant engaged in work, but only being present. Claimant testified that he earned $10 per hour after 12 years of employment with employer (tr. p. 82). Greene testified that claimant was capable of doing sedentary work according to Dr. Bowman (tr. p. 117). Greene specified that claimant could do clerical work, such as a claims clerk, receptionist, classified ad clerk, coding clerk, invoice control clerk, and computer programmer. Benson also felt that claimant could perform sedentary work (tr. p. 123; ex. 77). Greene indicated that claimant could start at $4 to $5 an hour performing office work and possibly $8 to $9 an hour doing programming (tr. p. 135). Claimant testified that he looked for employment, but he told the prospective employers that he had to lie down three or four times a day and that on his bad days he would not be able to work at all (tr. pp. 93-96). Furthermore, claimant admitted that he only applied for work at places who were not looking for applicants at the time and he did not seek the assistance of either of the vocational rehabilitation counselors that had talked with him, more specifically, Greene or Rogers. The full, true, and accurate extent of claimant's permanent disability is difficult to determine because claimant has not seriously looked for work, sincerely applied himself to the vocational rehabilitation and work hardening programs that were made available to him and has not displayed any interest in any kind of retraining. Schofield v. Iowa Beef Processors, Inc., II Iowa Industrial Commissioner Report 334, 336 (1981). Employers are responsible for the reduction in earning capacity caused by the injury. They are not responsible for a reduction in actual earnings because the employee resists returning to work. Williams v. Firestone Tire and Rubber Co., III Iowa Industrial Commissioner Report 279 (1982). Furthermore, pain that is not substantiated by clinical findings is not a substitute for impairment. Waller v. Chamberlain Mfg. Co., II Iowa Industrial Commissioner Report 419, 425 (1981). At the same time, Dr. Bowman pointed out that claimant suffered a substantial legitimate spine disability, that he has suffered depression which is common to long-term disability patients, and suffered from a subjective chronic Page 7 pain management problem. Wherefore, based upon (1) the foregoing evidence; (2) all of the factors used to determine industrial disability, Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 State of Iowa Industrial Commissioner Decisions 654, 658 (Appeal Decision February 28, 1985); Christensen v. Hagen, Inc., vol. I, no. 3, State of Iowa Industrial Commissioner Decisions 529 (Appeal Decision March 26, 1985); and (3) applying agency expertise [Iowa Administrative Procedure Act 17A.14(5)]; it is determined that claimant has sustained a 50 percent industrial disability to the body as a whole and is entitled to 250 weeks of permanent partial workers' compensation benefits. Claimant did not sustain the burden of proof by a preponderance of the evidence that he is totally and permanently disabled. Diederich v. Tri-City R. Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). Claimant contended he is an odd-lot employee. The odd-lot theory was not pleaded in the petition, was not raised at the prehearing conference, and was not designated an issue on the hearing assignment order. If odd-lot had been designated a hearing issue, claimant did not sustain the burden of proof by a preponderance of the evidence that he is entitled to the odd-lot doctrine because he did not make a bona fide search to find employment in the area of his residence. Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985); Emshoff v. Petroleum Transportation Services, Inc., file 753723 (Appeal Decision 1987); Hingtgen v. Goodman, IAWC Decisions of the Iowa Industrial Commissioner (1988); Collins v. Friendship Village, Inc., IAWC Decisions of the Iowa Industrial Commissioner 151 (1988). medical expenses The parties stipulated in the prehearing report that the provider of medical services would testify that their fees were reasonable and that the treatment was reasonable and necessary treatment of the alleged work injury and that defendant was not offering contrary evidence. Claimant did prove injury arising out of and in the course of employment with employer. Therefore, it is determined that claimant is entitled to the medical expenses shown on his list of medical expenses with the exception of the Continental Airlines ticket to Denver for the consulting opinion prior to his bilateral lumbar fusion of L4 through S1 in the amount of $260. A second opinion is a reasonable medical expense prior to such extensive surgery, however, it is not reasonable to go from Council Bluffs, Iowa, to Denver, Colorado, for such an opinion when it could be obtained from reliable doctors in the Council Bluffs-Omaha area. Eliminating the airline ticket, the expenses total $21,004.18. Claimant is entitled to the payment of these expenses to either himself or the provider of medical services. Defendant's argument that the medical was not authorized is without merit. Defendant denied liability for the injury in its answer and also denied liability for an injury at the time of hearing. Claimant's cannot deny Page 8 liability and at the same time direct the course of medical treatment. Barnhart v. MAQ, Inc., I Iowa Industrial Commissioner Report 16 (Appeal Decision 1981); Kindhart v. Fort Des Moines Hotel, Vol 1, no. 3, State of Iowa Industrial Commissioner Decisions 611 (Appeal Decision 1985). The fact that employer made some payments after the injury, is not construed as an admission of liability by the defendant. Iowa Code section 86.13. conclusions of law Wherefore, based upon the foregoing and following principles of law, these conclusions of law are made: That claimant sustained an injury to his back on June 20, 1986, which arose out of and in the course of employment with employer. Iowa Code section 85.3(1); 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); Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956); Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). That the injury was the cause of temporary disability during a period of recovery. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945). That claimant is entitled to healing period benefits from June 20, 1986 to February 4, 1988. A period of 84.857 weeks. Iowa Code section 85.34(1). That the injury was the cause of permanent disability. Bodish, 257 Iowa 516, 133 N.W.2d 867; Lindahl, 236 Iowa 296 18 N.W.2d 607. That claimant sustained an 50 percent industrial disability to the body as a whole. Lawyer and Higgs, Iowa Workers' Compensation--Law and Practice, section 13-5. That claimant is entitled to 250 weeks of permanent partial disability benefits. Iowa Code section 85.34(2)(u). That injury was the cause of claimant's medical expenses. Iowa Code section 85.27. That claimant is entitled to $21,004.18 in medical expenses as itemized in the list attached to the prehearing report, with bills attached, which covers all of the amounts claimed except $260 for air fare to Denver round trip. order THEREFORE, IT IS ORDERED: That defendant pay to claimant eighty-four point eight five seven (84.857) weeks of healing period benefits at the stipulated rate of three hundred five and 50/100 dollars ($305.50) per week for the period from June 20, 1986 to February 4, 1988, in the total amount of twenty-five Page 9 thousand nine hundred twenty-three and 81/100 dollars ($25,923.81) commencing on June 20, 1986. That defendant pay to claimant two hundred fifty (250) weeks of permanent partial disability benefits for a fifty (50) percent industrial disability at the stipulated rate of three hundred five and 50/100 dollars ($305.50) per week in the total amount of seventy-six thousand three hundred seventy-five dollars ($76,375) commencing on February 4, 1988. That defendant is entitled to a credit for one hundred fifty-six (156) weeks of workers' compensation benefits paid to claimant prior to hearing at the rate of three hundred five and 50/100 dollars ($305.50) per week in the total amount of forty-seven thousand six hundred fifty-eight dollars ($47,658). That all accrued benefits are to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That defendant pay to claimant or the provider of medical services twenty-one thousand four and 18/100 dollars ($21,004.18) in medical expenses as shown in claimant's list of medical expenses attached to the prehearing report. That the costs of this hearing are charged to defendant, including the cost of the attendance of the court reporter at the hearing and the transcript of the hearing provided to the deputy. Iowa Code section 86.19; rule 343 IAC 4.33(1)(2). Claimant also submitted nineteen (19) items of costs attached to the prehearing report which total one thousand two hundred thirty and 10/100 dollars ($1,230.10). Most of these costs are not allowable. The following costs are allowed and are charged to defendant at this time: 1. Of the MRC, Inc., evaluation dated November 25, 1987, in the amount of $345, claimant is allowed $150 as an expert witness fee. Rule 343 IAC 4.33(4). 2. The follow-up report was made by James Rogers on August 17, 1988, in the amount of $100 is allowed as a medical report. 3. Midlands Rehabilitation Consultants' medical report on February 1, 1989, in the amount of $80 is allowed as claimant's second medical report. Rule 343 IAC 4.33(6). 4. Claimant is allowed $27.54 for the court reporter charges for the deposition of Ronald K. Miller, M.D. Claimant is limited to two medical reports and the numerous other medical reports cannot be allowed. The court reporter expenses for three depositions from claimant, in the amount of $103.86, $54.30, and $80 are not allowed. These are considered trial preparation expenses. Claimant Page 10 personally testified at the hearing at quite some length and the introduction of three depositions in addition to his testimony was neither reasonable nor allowable as a proper cost of the hearing. That defendant file any claim activity reports requested by this agency pursuant to rule 343 IAC 3.1, in addition to a form 2a showing the amount of workers' compensation benefits paid to claimant prior to hearing. Signed and filed this ____ day of February, 1991. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Shelden Gallner Attorney at Law PO Box 1588 Council Bluffs, Iowa 51502 Mr. W. Curtis Hewett Attorney at Law PO Box 249 Council Bluffs, Iowa 51502 Page 1 51100 51401 51402.20 51402.30 52206 51802 51108.50 51402.40 51803 52501 52700 52907 53701 54100 Filed February 28, 1991 Walter R. McManus, Jr. before the iowa industrial commissioner ____________________________________________________________ : KENNETH D. ARRICK, : : Claimant, : File No. 826544 : vs. : : A R B I T R A T I O N GRIFFIN PIPE COMPANY, : : D E C I S I O N Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 51100 51401 51402.20 51402.30 52206 Claimant proved injury. He fell on rough cement onto some steel grated steps on his buttocks and aggravated his preexisting spondylolysis with spondylolisthesis. 51802 Claimant awarded 84.857 weeks of healing period for dates stipulated to by the parties for claimant's time off work. 51108.50 51402.40 51803 Claimant awarded 50 percent industrial disability. Only doctor to testify on causal connection said this injury aggravated and accelerated claimant's preexisting condition. The same doctor, the treating physician, awarded claimant a 20 percent permanent impairment rating. Claimant could do sedentary work, possibly more if he tried, but he made no serious effort to find work, to cooperate with extensive rehabilitation that was offered, or to engage in any retraining of any kind. Claimant had a bilateral fusion of L4 through S1 with restrictions to be careful about heavy lifting, bending and stooping. 52501 52700 Claimant awarded some $21,000 in medical expenses defendant had refused to pay. 52907 Claimant awarded some costs and denied others. Page 2 53701 Surveillance photos did not show claimant actually engaged in physical work, but he was present with workers installing a new sidewalk and steps in front of his home. He became very flustered on cross-examination from the photographs and from the questions asked. 54100 Claimant presented a case for odd-lot, but it was not addressed because he did not allege it in the petition or at the prehearing conference. before the iowa industrial commissioner ____________________________________________________________ : CHARLES T. GRAVER, : : Claimant, : : vs. : : File No. 826626 LUCKY STORES, INC., d/b/a : EAGLES DISCOUNT SUPERMARKET,: : A P P E A L Employer, : : D E C I S I O N and : : NATIONAL UNION, : : 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 July 18, 1990, is affirmed and is adopted as the final agency action in this case. Defendants shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of November, 1991. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Ms. Mary M. Schumacher Attorney at Law 491 West 4th Street Dubuque IA 52001 Mr. Thomas M. Kamp Attorney at Law 600 Davenport Bank Building Davenport IA 52801 9998 Filed November 22, 1991 BYRON K. ORTON WRM before the iowa industrial commissioner ____________________________________________________________ : CHARLES T. GRAVER, : : Claimant, : : vs. : : File No. 826626 LUCKY STORES, INC., d/b/a : EAGLES DISCOUNT SUPERMARKET,: : A P P E A L Employer, : : D E C I S I O N and : : NATIONAL UNION, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 9998 Summary affirmance of deputy's decision filed July 18, 1990. Page 1 before the iowa industrial commissioner ____________________________________________________________ : CHARLES T. GRAVER, : : Claimant, : : vs. : : File No. 826626 LUCKY STORES, INC., d/b/a : EAGLE DISCOUNT SUPERMARKET, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : NATIONAL UNION FIRE INS. CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ INTRODUCSTION This is a proceeding in arbitration brought by Charles T. Graver, against Lucky Stores, Inc., d/b/a Eagle Discount Supermarket, employer and National Union Fire Insurance Company,, insurance carrier, defendants, for benefits as the result of an injury which occurred on June 26, 1986. A hearing was held in Dubuque, Iowa, on June 27, 1990 and the case was fully submitted at the close of the hearing. Claimant was represented by Mary M. Schumacher. Defendants were represented by Thomas N. Kamp. The record consists of the testimony of Charles T. Graver, claimant; Judy M. Stengel, rehabilitation specialist; claimant's exhibit A; and defendants' exhibits 1 through 6. The deputy ordered a transcript of the hearing. Both attorneys submitted excellent posthearing briefs. stipulations The parties stipulated to the following matters at the time of the hearing: That an employer-employee relationship existed between claimant and employer at the time of the injury. That claimant sustained an injury on June 26, 1986, which arose out of and in the course of employment with employer. That the injury was the cause of temporary disability; that claimant is entitled to temporary disability benefits from June 26, 1986 to August 18, 1987; that claimant was paid temporary disability benefits for this period of time; and that temporary disability benefits are no longer a disputed matter in this case at this time. That the injury was the cause of permanent disability. Page 2 That the commencement date of permanent disability benefits, in the event such benefits are awarded, is August 18, 1987. That the rate of compensation is $240.35 per week. That claimant's entitlement to medical expenses have all been paid or will be paid by defendants. That defendants make no claim for credit for benefits paid pursuant to an employee nonoccupational group health plan prior to hearing. That defendants paid claimant 59.5 weeks of temporary disability benefits prior to hearing and 65 weeks of permanent partial disability benefits prior to hearing at the rate of $240.35 per week in the total amount of $29,975.25. That there are no bifurcated claims. issues The parties submitted the following issues for determination at the time of the hearing: Whether the injury was the cause of scheduled member disability to the right arm or industrial disability to the body as a whole. Whether claimant is entitled to permanent disability benefits, and if so, the extent to which he is entitled. findings of fact scheduled member or industrial disability It is determined that claimant has sustained an injury to the body as a whole and is entitled to industrial disability. Claimant testified that he slipped on a grape, fell and injured his right shoulder. He reported it to the office girl and went to see Joseph G. Garrity, M.D. (transcript pages 15 & 16). Claimant reported this history to Dr. Garrity who diagnosed a right shoulder contusion and referred claimant to Scott C. McCuskey, M.D., an orthopedic surgeon (exhibit C, pages 1 & 2). Dr. McCuskey recorded that claimant slipped and fell at work and jammed his right shoulder. An arthrogram demonstrated a rotator cuff tear of moderate degree. Dr. McCuskey diagnosed a rotator tear of the right shoulder and performed an open rotator cuff repair of the right shoulder with partial acromionectomy on July 16, 1986. "The incision was outlined over the acromion and on the anterior shoulder area." (ex. 4, p. 7). Body parts involved in the surgical procedure included the deltoid, acromion, acromioclavicular joint, and biceps tendon. Exposure of the shoulder joint disclosed a large transverse rotator cuff tear. Page 3 Dr. McCuskey reported that four days after the surgery, claimant stumbled and reinjured his right shoulder and he performed a second arthroscopy on November 28, 1986 (ex. 2, p. 9). This arthroscopy confirmed a rupture of his rotator cuff repair (ex. 2, p. 7). A second repair of the rotator cuff, right shoulder, was performed on December 5, 1986 in the same areas as the previous surgery (ex. 4, p. 3). A third arthrogram was performed by Dr. McCuskey on March 26, 1987. ...it shows leakage of dye through the rotator cuff repair and indeed it appears that he has again partial pulling apart of his second rotator cuff repair. While this is improvement over the first one, it leaves him with a shoulder that he cannot physically do any lifting, grabbing, reaching overhead or active use. (ex. 2, p. 5) Dr. McCuskey then referred claimant to Mayo Clinic to be seen by an orthopedist who specializes only in shoulders and does a lot of shoulder type repairs. (ex. 2, p. 6; tr. p. 16). Brian F. Kavanagh, M.D., an orthopedic surgeon at Mayo Clinic, performed a fourth arthrogram which confirmed, "...a small tear, probably in the musculotendinous junction of the cuff or over the biceps in the interval between the supraspinatus and subscapularis;... (ex. 1). Claimant was examined on July 27, 1988, by Matthew J. Kirkendall, M.D., for a social security disability determination. The examination was focused on claimant's right shoulder and the disability to the right shoulder (ex. 6, pp. 1 & 2). Claimant testified that he also consulted David Fields, M.D., who rendered an evaluation that he was disabled so that claimant could invoke the waiver of premium coverage for disability on his life insurance policy (tr. pp. 58-60). Claimant testified that Dr. Fields verified that he was entitled to waiver of premium coverage for disability. There is no medical report from Dr. Fields -- only claimant's testimony on this point. The dividing line between the arm, which is a scheduled member, and the body as a whole, is the glenohumoral joint in the shoulder. This is commonly known and the ball and socket joint of the shoulder. Body parts distal to this joint are considered part of the arm. Body parts proximal to this joint are considered parts of the body as a whole. Most of the body parts described by the doctor, the acromion, the clavicle, the acromioclavicular joint, the supraspinatus and the subscapularis, and portions of the deltoid are all parts of the body as a whole. The biceps tendon is part of the body as a whole as well as the arm. Therefore, all of the medical evidence describes an injury to the shoulder parts which are portions of the body as a whole rather than the arm. Furthermore, shoulder injuries, Page 4 are considered to be injuries to the body as a whole. Rotator cuff injuries are injuries to the body as a whole. Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 (1949); Nazarenus v. Oscar Mayer & Co., II Iowa Industrial Commissioner Report 281 (1982); Godwin v. Hicklin GM Power, II Iowa Industrial Commissioner Report 170 (1981); Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986). Even though, the impairment to the shoulder is measured by the functioning of the arm, and even though the disability is manifested by the use of the arm, nevertheless, the injury, the surgery, the derangement, the disability is to the right shoulder and right shoulder parts which are portions of the body as a whole (tr. p. 17). This case is distinguishable from Hike v. IBP, Inc. and Webster Construction, Co., file numbers 764571 and 776652 filed November 3, 1989, for the reasons discussed above and because this injury is predominantly, if not entirely, to the shoulder whereas in Hike, the injury was near the glenohumeral joint and not predominantly to parts of the body as a whole. Therefore, it is determined that claimant has sustained an injury to the body as a whole and is entitled to industrial disability. entitlement to permanent disability benefits Throughout claimant's treatment by Dr. McCuskey he complained of popping, grinding, and gritting sensations in his right shoulder. He also complained of weakness and pain (ex. 2, pp. 5-12). When Dr. Kavanagh saw claimant on May 21, 1987, he recommended against further surgery. He found that claimant has excellent active use of the arm without objective findings to indicate significant weakness or other disability. He told claimant he could lift up to 10 pounds (ex. 1, p. 1). Dr. Kavanagh's finding of excellent use of the arm is irreconcilably inconsistent with his finding that claimant can only lift ten pounds. Dr. McCuskey stated that claimant's clinical improvement was not as good as Dr. Kavanagh's letter would indicate because of clinically demonstrated loss of motion, loss of strength and popping in the shoulder. Dr. McCuskey reminded that his third arthrogram still disclosed a small tear even after the two surgeries. He said, "...I'd be very hesitant to have him stress this shoulder very much. Therefore, while I am not considering it a good shoulder, I would agree that the limitation of no lifting than greater than 10 pounds above shoulder height would be appropriate." (ex. 2, p. 2; tr. p. 16). One year after the second surgery, Dr. McCuskey agreed to make an evaluation. He found a scar over the anterior right shoulder, loss of muscle bulk along the deltoid, and significant reduced range of motion. Dr. McCuskey concluded, "His physical impairment as opposed to his Page 5 disability is calculated using standard tables to be that of 26% of the upper extremity or 16% of the whole person." (ex. 2, p. 1). Dr. Kavanagh did not give an impairment rating; nor did Dr. Kirkendall (ex. 1, p. 1 & ex. 6, p. 2). Dr. Kirkendall concluded, "...the patient demonstrated what is probably a significant limitation secondary to pain and weakness at the shoulder. With his current symptoms, it is difficult to see how he would function at his previous occupation." (ex. 6, p. 2). Dr. McCuskey performed a functional capacity examination on July 28, 1987 which showed that claimant could lift and carry up to 10 pounds frequently but, he could never lift or carry over 10 pounds. He should never reach above shoulder level. He stated claimant could work sitting, standing, or walking for eight hours per day. Claimant could simple grasp, firm grasp or fine manipulate with both hands. Dr. McCuskey put a question mark in answer to the question whether claimant could return to his former job; but did indicate that he could return to other work according to the restrictions defined above and that he was able to work full time (ex. 2, pp. 3 & 4). From the foregoing information, it is determined that claimant has a 16 percent impairment to the body as a whole, that he is permanently prohibited from lifting or carrying over 10 pounds; and that he is not to work with his right arm over shoulder level. The right arm is the dominant arm (tr. p. 17). Claimant testified, and his testimony was reasonable and not contradicted, that Dr. Fields found that he was entitled to waiver of premium coverage of his life insurance because of his disability due to his shoulder. Claimant testified that he is not even able to lift an eight-pound gallon of milk with his right arm (tr. p. 17). Dr. McCuskey's notes indicate that claimant complained that he could not even lift five pounds. Claimant further testified that his condition was getting worse in that he was very sensitized to cold temperatures (tr. pp. 20 & 32) and the slight bumps that he receives while driving or riding in an automobile. He testified that he avoids driving or riding in an automobile (tr. pp. 18, 28 & 29). Claimant further testified that it is very difficult for him to write legibly with his right hand (tr. p. 23). Even though these complaints are not supported by the medical evidence, nevertheless, this testimony is reasonable and consistent with the other evidence in this case and there is no opposing medical or nonmedical evidence. Therefore, claimant's testimonial statements are accepted as true. Claimant added that simply pulling up the covers in bed can hurt his right shoulder. It is also painful if he rolls over on it in his sleep (tr. p. 31). Claimant stated that he was last treated by Dr. McCuskey in December of 1987 (tr. pp. 16 & 58). He does not take prescription drugs, but takes three or four ibuprofen tablets a day (tr. p. 32). If he swings his arm while walking it hurts (tr. pp. 33 & 34). Page 6 Claimant has sustained a very serious and disabling physical injury. Claimant's right shoulder was invaded four times for arthroscopies (three times by Dr. McCuskey and one time by Dr. Kavanagh) his right shoulder was operated on twice for rotator cuff tears, and as of the last arthroscopy claimant still has a tear in the right rotator cuff. Claimant's primary employment prior to the injury was as a stock person in a grocery store. Over the years he has performed every job in the grocery store except meat cutting (tr. p. 20).. Claimant explained in detail job by job why he was no longer able to perform the various jobs he had previously performed in the grocery store. Dr. McCuskey stated several times that claimant could no longer perform his former job in the grocery store, "Finally, I don't feel that with the kind of job that he has had in the past and his current situation with his shoulder that he is going to be able to return to that job level." (ex. 2, p. 6). Most of claimant's jobs in the grocery store required the use of both hands and arms, the use of the right arm over shoulder height, and the use of the right arm to lift more than 10 pounds (tr.pp. 20-23). Claimant also contended that many of the jobs require him to write legibly which he can no longer do (tr. pp. 23, 25, 27, 30 & 60). Therefore, from the foregoing evidence it is determined that claimant is foreclosed from performing his former employment as a grocery store stock clerk. Rohrberg v. Griffin Pipe Products Co., I Iowa Industrial Commissioner Report 282 (1984); Michael v. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218, 220 (Appeal Decision January 30, 1979). Claimant was examined by Ross K. Lynch, Ph.D., a rehabilitation psychologist, on August 2, 1988, at the request of claimant's attorney. Dr. Lynch determined that claimant's academic skills would not bode him well for any type of formal vocational retraining. Claimant did not test well for assembly line work. He determined that claimant was suited only for sedentary work of an unskilled nature. His clerical aptitude was well below competitive standards. Dr. Lynch felt that he would be discriminated against by prospective employers because of his age and disabilities as a result of this injury. He determined claimant sustained a significant vocational handicap as a result of the limitations imposed by the impairment of his right upper extremity. He found that over 90 percent of claimant's potentially available labor market had been compromised because of the loss of light and median jobs. Dr. Lynch said that basically claimant was limited to work that requires verbal skills, seeing, hearing and only occasional use of the hands and fingers. He pointed out that claimant was earning $9.50 per hour after 35 years of employment essentially with this employer in a grocery clerking capacity of one kind of another. However, in the jobs that were now available to claimant he could earn an average of possibly $4.64 per hour. This constitutes approximately a 50 percent loss of earnings. He stated that Page 7 claimant's primary marketable asset, his physical ability, had been compromised and that he would not be able to compete with the numerous able bodied, better qualified applicants for most positions. Dr. Lynch's final conclusion was that claimant's earning capacity had been diminished by approximately 55 to 65 percent from his preinjury able bodied status. (ex. A). Judith M. Stengel, a rehabilitation specialist, with a bachelor's degree in social work, and with 11 years of experience of working with injured workers, and who is a qualified certified rehabilitation counselor (C.R.C.), examined claimant at the request of defendants' attorney on April 23, 1990 (tr. pp. 70-75). Ms. Stengel submitted a written report on May 1, 1990 (ex. 5) and testified at the hearing in person. She determined that claimant was capable of light work even though light work means lifting up to 20 pounds. She asserted that the jobs could be screened for conformance with the 10 pound lifting restriction. She pointed out that there was nothing wrong with claimant's left upper extremity and claimant had not seriously attempted to compensate with the left arm for the loss of the right arm. She also pointed out that claimant had some management experience as head stock man for two years when he was third in charge of the store. At one time he was assistant store manager and had essentially the same duties as the manager of the store and was often in charge of the store. Furthermore, he managed his own store in Galena, Illinois for five months and four days in 1968 before he determined that the venture would be unprofitable. In addition, Ms. Stengel pointed out that claimant became active in union activities where he served for about 20 years as a steward and in executive positions. He was president of approximately a 700 member union for five or six terms for a period of approximately 10 years and was first vice-president of the ten-member executive board serving about 1,500 members for an additional six or seven years. In her written report, Stengel concluded that claimant is precluded from returning to work as a stock clerk; that claimant is employable; and that claimant is placeable. She identified 10 jobs that claimant could perform primarily in management and sales. She did concede that his employment opportunities were reduced. She stated that his job profile after his injury would match 46 percent fewer workers presently in the local work force. However, the jobs that he did qualify for would not result in any loss of wage earnings based upon national statistics. (ex. 5, pp. 1-9). At the hearing, Ms. Stengel testified that she differed with Dr. Lynch in his determination that claimant could only perform sedentary unskilled work (tr. p. 89). She felt that he could perform light work with accommodations from employers and compensation with the left hand on his part. She pointed out that Dr. Lynch ignored claimant's management experience and focused on his stock clerk experience. She pointed out that other workers, such as amputees, learn to compensate out of necessity. Stengel said that Dr. Lynch Page 8 proceeded on aptitudes as the result of tests whereas she proceeded on aptitudes as a result of demonstrated abilities. She disagreed that his right upper arm was not usable. She pointed out that no physician has placed any medical restrictions on his right hand or fingers and that she felt that he could be trained to use a computer with his wrists on an arm rest (tr. pp. 78-94). She conceded that even though there is a lot of light work available, it occasionally requires lifting 20 pounds (tr. p. 97). She agreed that the loss to his right upper extremity was a significant disability (tr. p. 102), but that he had not received any occupational therapy nor had he tried to compensate sufficiently when he did not obtain success when he first tried (tr. p. 103). She agreed that age was a factor in employment, but it was less of a factor in order to obtain supervisory work whereas, in those situations it might be a benefit (tr. p. 104). In conclusion, she agreed that claimant was precluded from returning to his former employment of 35 years as a grocery clerk primarily, but she maintained that he was employable and placeable at a different occupation. His access to the labor market was reduced because of his work restrictions, however, he should experience no loss of wage earnings in the jobs that he is able to do. She said that claimant's employability would be increased by vocational counseling, job seeking skills training and job development and placement assistance. (ex. 5, p. 9). Claimant testified that when he was released to return to work in 1987 that employer told him that he was not eligible for any of the jobs at their place of employment due to his restrictions. Claimant agreed that it was the company's policy not to accept any workers with any disabilities (tr. pp. 19, 42, 43 & 61). Employer's inability to find any employment for a 35-year employee with some management experience is some indication of the gravity and seriousness of claimant's injury and disability. It is inconsistent for defendants to assert that claimant does not have a serious disability and at the same time they are unable to find any employment which he can perform. 2 Larson, Workmen's Compensation Law, section 57.61(b) at pages 10-173-76. At the same time, claimant has remained active in his unemployment, walking three miles a day in the mall, riding a bicycle (tr. p. 43), cooking for himself and his wife and mowing the grass and training a dog (tr. p. 44). He has not been able to hunt like he used to, garden or clean the house (tr. pp. 35 & 57). Claimant acknowledged that he applied for social security disability after he was not able to return to work in 1987. He was awarded benefits in January 1989 and back pay to December of 1986 (tr. p. 35). He testified that his social security check is $804 per month and that his union pension is $729 per month for a total income of $1,533. When he was injured he was earning $380 per week and working approximately four weeks and three days per month, which results in earnings of $1,634. By comparison, he was receiving only about $100 less income per month then when he was working full time. If he were to return to full-time Page 9 active employment he would lose both of these disability pensions for practically no gain, especially after tax considerations. Claimant, however, testified that this is not the retirement he had visualized, because he cannot do many of the things that he likes to do, and he cannot fulfill his ambition of traveling around the country in a motor home (tr. p. 34). Claimant conceded that he had made absolutely no job search and had not tried to find a job through Job Service because he did not feel that there was any work that he could do (tr. p. 34). He did contact the Job Training Partnership Act people through Job Service and they tested him for employability and never contacted him again (tr. pp. 63-65). It is difficult to determine the full extent of claimant's actual industrial disability because of the fact that he has made no attempt to find any work of any kind, even though both rehabilitation evaluators determined that there were certain types of work that claimant could do. Schofield v. Iowa Beef Processors, Inc., II Iowa Industrial Commissioner Report 334, 336 (1981). Claimant acknowledged that he did some supervision for employer, but he did not like management work, requested to be relieved of it, and became active in union activities instead. Claimant has, nevertheless, demonstrated significant leadership abilities and management abilities through his executive positions in the union for approximately 20 years (tr. pp. 47-55). Claimant had not sought out any vocational rehabilitation assistance from the State of Iowa or any other resource and defendants had not offered claimant any vocational rehabilitation either (tr. p. 63). Claimant testified that he is no longer active in the union. He was forced to resign because he is no longer employed (tr. pp. 62 & 63). He insisted that he cannot write with his right hand or pour from a pitcher or milk carton with his right hand because of the shakiness, pain and discomfort in his right shoulder. He is able to feed himself with his right hand at home, but at restaurants if the tables are high he has to use his left hand (tr. pp. 66-70). Claimant was 53 years old at the time of the injury and 57 years old at the time of the hearing (tr. p. 15). He has a high school education without any additional formal education or training (tr. p. 51). His very first employment was as a turret lathe operator in a machine shop; subsequently, he served in the army ordering ordnance supplies (tr. p. 46). All of his other experience has been as a grocery store clerk of one kind of another with some management and supervisory experience (tr. p. 48). Claimant's loss of earning capacity in the middle 50's is worse for him then it would be for a younger or older employee. McCoy v. Donaldson Company, Inc., file numbers 782670 & 805200 (Appeal Decision April 28, 1989); Walton v. B & H Tank Corp., II Iowa Industrial Commissioner Report 426 Page 10 (1981); Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report of the Industrial Commissioner 34 (Appeal Decision 1979). An injured employee's ability for retraining is one of the considerations used in the determination of industrial disability. Conrad v. Marquette School, Inc., IV Iowa Industrial Commissioner Report 74, 89 (1984). At claimant's age and based upon his tests performed at Job Service and with Dr. Lynch, it is determined that claimant is not a good candidate for retraining or re-education other than on-the-job training. Even though claimant was not planning on retiring or thinking about retirement, nevertheless, as he puts it, he was forced to retire, and his forced retirement income must be considered in his motivation for making absolutely no job search of any kind. An employee's possibility of retirement is one of the considerations used to determine industrial disability. Houseman v. Mid-American Lines, Inc., Vol. I No. 4 Iowa Industrial Commissioner Decisions 888 (Appeal Decision 1985); McDonough v. Dubuque Packing Co., Vol I. No. 1 Iowa Industrial Commissioner Decisions 152 (1984); Card v. H & W Motor Express Co., Vol. II No. 1 Iowa Industrial Commissioner Decisions 292 (1984); Fogle v. Dixon's Wholesale Meats, Inc., Vol. II No. 1 Iowa Industrial Commissioner Decisions 324 (1984). Employers are responsible for the reduction in earnings capacity caused by the injury. They are not responsible for a loss of actual earnings because the employee resists or refuses to return to work. Williams v. Firestone Tire and Rubber Co, III Iowa Industrial Commissioner Report 279 (1982). This decision agrees with the principles set forth in Ryan v. University of Northern Iowa, file number 805629 filed June 29, 1989. This case has some similar features such as claimant's lack of motivation to seek employment and distinguishing features such as claimant's permanent restrictions to not lift more than 10 pounds. This decision disagrees with the argument in defendants' brief to the effect that claimant's industrial disability should be based on his actual income loss. Industrial disability is based on loss of earning capacity. In conclusion, (1) based upon the foregoing factors; (2) based on all of the factors used to determine industrial disability, Christensen v. Hagen, Inc., vol. I, no. 3, State of Iowa Industrial Commissioner Decisions 529 (Appeal Decision March 26, 1985); Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 State of Iowa Industrial Commissioner Decisions 654, 658 (Appeal Decision February 28, 1985); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); and (3) based upon agency expertise [Iowa Administrative Procedure Act 17A.14(5)]; it is determined that claimant has sustained a 45 percent industrial disability to the body as a whole and is entitled to 225 weeks of permanent partial disability benefits. Claimant is Page 11 not permanently and totally disabled as contended by claimant. conclusions of law Wherefore, based on the evidence presented and the legal authorities previously mentioned, the following conclusions of law are made: That claimant sustained an injury to the body as a whole and is entitled to industrial disability benefits. Iowa Code section 85.34(2)(u). That claimant has sustained a 45 percent industrial disability to the body as a whole and is entitled to 225 weeks of permanent partial disability benefits. order THEREFORE, IT IS ORDERED: That defendants pay to claimant two hundred twenty-five (225) weeks of permanent partial disability benefits at the rate of two hundred forty and 35/100 dollars ($240.35) per week in the total amount of fifty-four thousand seventy-eight and 75/100 dollars ($54,078.75) commencing on June 18, 1987 as stipulated to by the parties. That all accrued benefits are to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That defendants are entitled to a credit for sixty-five (65) weeks of permanent partial disability benefits paid to claimant at the rate of two hundred forty and 35/100 dollars ($240.35) per week in the total amount of fifteen thousand six hundred twenty-two and 75/100 dollars ($15,622.75) as agreed to by the parties in the prehearing report. That the costs of this action, including the cost of the transcript, are charged to defendants pursuant to Division of Industrial Services Rule 343-4.33. 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 ____ day of July, 1990. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Ms. Mary Schumacher Attorney at Law 491 W. 4th St Page 12 Dubuque, Iowa 52001 Mr. Thomas N. Kamp Attorney at Law 600 Davenport Bank Bldg Davenport, Iowa 52801 Page 1 1803.10; 1803 Filed July 18, 1990 Walter R. McManus, Jr. before the iowa industrial commissioner ____________________________________________________________ : CHARLES T. GRAVER, : : Claimant, : : vs. : : File No. 826626 LUCKY STORES, INC., d/b/a : EAGLE DISCOUNT SUPERMARKET, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : NATIONAL UNION FIRE INS. CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1803.10 The rotator cuff injury was found to be body as a whole and industrial disability was awarded. 1803 Claimant awarded 45 percent industrial disability. He was determined not to be permanently and totally disabled even though he was awarded social security disability and was accorded waiver of premium on his life insurance for disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER WILLIAM GILBERT, Claimant, File No. 826659 vs. A R B I T R A T I O N SECOND INJURY FUND OF THE D E C I S I O N STATE OF IOWA, F I L E D Defendant. SEP 29 1989 INDUSTRIAL SERVICES STATEMENT OF THE CASE This is a proceeding in arbitration brought by claimant William Gilbert against defendant employer Snyder Construction Company, defendant insurance carrier General Casualty Companies, and defendant Second Injury Fund of Iowa to recover benefits under the Iowa Workers' Compensation Act as the result of an alleged second injury sustained on July 1, 1986. On September 15, 1987, a deputy industrial commissioner approved an agreement for settlement between claimant and defendants employer and insurance carrier, leaving only claimant's cause against the Second Injury Fund of Iowa. The matter came on for hearing before the undersigned deputy industrial commissioner in Mason City, Iowa, on December 19, 1988. The matter was considered fully submitted at the close of hearing. The record in the proceeding consists of the testimony of claimant, claimant's exhibits 1 through 16, and defendant's exhibits A and B. ISSUES Pursuant to the prehearing report submitted by the parties and approved by the deputy, the issues presented for resolution include whether a causal relationship exists between claimant's stipulated work injury, liability of the Second Injury Fund, interest and costs, and the commencement date for permanent partial disability if awarded. REVIEW OF THE EVIDENCE Claimant testified to a severe injury suffered to his right arm on June 9, 1977. When he started a concrete saw inn operation, the blade shattered and a piece struck him across the right forearm, nearly severing the arm. Despite the terrible severity of this injury, claimant has been fortunate to regain a great deal of function in that arm. Of course, he has limited movement with reduced strength and dexterity. Claimant also testified to the second injury that is the subject matter of this dispute. On July 1, 1986, claimant was employed by Snyder Construction Company. While wheeling a large I-beam on two dolly carts, a wheel shifted on one cart. The cart shot out and struck claimant's left hand where he was holding the I-beam. The result was a severe crushing injury primarily to claimant's long and ring fingers. Claimant underwent surgery on two occasions: July 3, 1986 and February 19, 1987. While both surgical procedures were to the fingers, bone was harvested from claimant's left wrist in the 1987 surgery to fuse the left ring finger. Claimant currently complains that both fingers hurt upon gripping or in the cold. He has restrictions against climbing and heavy lifting. Claimant is concerned that he now lacks any good hand and must be very careful about what jobs he can do. For example, he does not trust himself in heights because of his inability to trust his grip strength if he were to slip. In general, claimant stated that he believes he has approximately one-half strength in each hand. Although his left hand is the dominant hand, he has problems performing chores such as turning screws because the ring finger does not fully flex. For the same reason, claimant is unable to work carpentry jobs using a hammer. The record contains extensive medical records as to claimant's left hand injury of July 1, 1986. Radiologist Martin W. Schularick reported on that date that there was a comminuted fracture involving the diaphysis and distal epiphysis of the middle phalanx bone of the ring finger. Upon presentation at St. Joseph Mercy Hospital, claimant was evaluated by the emergency room physician and referred to T. DeBartolo, M.D. Dr. DeBartolo's surgical notes of July 1, 1986 show a preoperative diagnosis of crush injury to left hand with extensive bony and soft tissue injury to the ring and long fingers. Operative procedure was described: Exploration, left long finger with flexor profundus disrupture. Zone II repair of profundus, left ring finger. The patient had a severely comminuted distal middle phalanx fracture with avulsion of his flexor profundus tendon. The distal middle phalanx fracture was stabilized with two 045 K-wires. The flexor tendon was not repaired. Dr. DeBartolo's notes of January 6, 1987, show that approximately six months post-injury claimant had full passive flexion of the long finger and flexion of the proximal interphalangeal joint of the long finger to approximately 95 degrees with full extension of the distal interphalangeal joint. Active flexion, however, was at most 0-10 degrees. Claimant had full flexion of the proximal interphalangeal joint of the long finger. He also showed an angular deformity at the area of the comminuted fracture of the distal aspect of the middle phalanx, which eventually led to further surgery. Dr. DeBartolo performed that further surgery on February 19, 1987. The operation was described as tenolysis of the left long finger and corrective osteotomy bone grafting percutaneous fixation of middle phalanx fracture, right finger with insertion of continuous median nerve block. On May 12, 1987, Dr. DeBartolo noted that claimant was essentially released from where he would have to guard his activities and noted that he could truly be engaged in activities as tolerated. On July 14, 1987, Dr. DeBartolo summed up claimant's status as follows: William had a severe crushing injury to his left hand. That injury resulted in extensive bony and soft tissue injury to his ring and long fingers. The injury occurred on the 1st day of July of 1986. The patient returns to the office for his disability determination. He has had a previous severe injury to his right upper extremity and has received a work comp impairment for that particular problem. The patient's radiographs today show that he has solidy [sic] united his middle phalanx fracture long finger in which he has also effused distal interphalangel [sic] joint. He had a complete evulsion of the profundus tendon from that finger. Superficialis is intact. On the long finger he had flexor tendon repair then tenolysis and his hand function, given the severity of his injury, is really quite good. ROM right side palmar flexion 57 degrees, dorsiflexion 49 degrees; left side palmar flexion 70 degrees, dorsiflexion 75 degrees. The patient's left long finger's proximal interphalangeal joint motion is from -15 degrees to 83 degrees, distal and phalangeal joint motion from full extension to 37 degrees. The ring finger's distal interphalangeal joint is fused in 0 degrees of the extension. PIP joint is from 0 to 65 degrees. His grip strength is 50, 46, 44, kg. on the left side, right side 32 kg. He does not have a [sic] an extension lag, he has a flexion lag because of the distal interphalangel [sic] joint effusion on the ring where it's approximately 4 1/2 cm from the distal palmar crease and on his long finger he's able to get it directly down into the palmar crease. The patinet's [sic] permanent partial impairment then will be secondary to loss of motion of his long and ring fingers. According to the AMA Guide, taking the long finger first, his distal interphalangeal joint motion loss would be 19% of the long finger, PIP joint motion. The loss would be 24% of the long finger using the combined value chart that's 39% which is 8% of the hand. The ring finger distal interphalangel [sic] joint fusion 45% of the finger PIP joint motion 21% of the finer [sic] Combined values chart, 57% which is 6%o [sic] of the hand. That leaves him with a 14% of the hand. (Emphasis supplied). APPLICABLE LAW AND ANALYSIS As has been noted, Second Injury Fund of Iowa is the only remaining defendant in this case. The Second Injury Compensation Act is set forth in Iowa Code section 85.63 et seq. The language of Iowa Code section 85.64 is crucial to the determination of this case: 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, . . . . There is no issue whatsoever as to whether claimant suffered a first injury to one arm. The determinative question in this case is whether claimant's injury of July 1, 1986 resulted in the loss or loss of use of "another such member or organ." This language refers back to the following, and only the following specific scheduled members: Hand, arm, foot, leg or eye. That is to say, did the crushing injury to claimant's fingers constitute a loss or loss of use of the hand? In Simmons v. Black Clawson Hydrotile, 34th Biennial Report of the Iowa Industrial Commissioner, 313 (App. Decn. 1979), the industrial commissioner addressed the issue of whether one of claimant's injuries was to the hand when the situs of the injury and the subsequent surgeries were confined to the fingers. In that case, the commissioner found that claimant's disability extended into the hand when it was shown that the flexion of the MP or knuckle joints (metacarpal-phalangeal) was reduced. Since claimant's motion in the right hand had been impaired as the result of the injury, the commissioner found the Fund liable. In the intervening years, any number of cases have found that the second injury must be to one of the specified scheduled members set forth in Iowa Code section 85.64. See, for example, Stanek v. Iowa Pork Industries, file number 800365, (Arbitration Decision filed July 2, 1988) ("Had the legislature intended the Second Injury Fund Act.to be triggered by the loss of the thumb or another digit, it would have so stated."). An analysis of the medical documentation in this case discloses that claimant's loss of motion afflicts his fingers. There is no independent evidence indicating that the ailment extends to the hand. In Kellogg v. Shute & Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964), the Court in a different context (whether a leg injury extended into the body as a whole) noted that claimant had the burden of showing that while the trauma was limited to his leg, there resulted "an ailment extending beyond the scheduled loss" of his leg or the use thereof. It appears to the undersigned that one must distinguish between an ailment extending into a greater scheduled member and a functional deficit that also affects the greater scheduled member. In this case, the ailment does not extend into the hand. Obviously, the function of the hand has been substantially reduced. Claimant very credibly testified that he now has only approximately half the grip strength in that hand as he had previously. It can scarcely be gainsaid that grip strength is dependent upon the fingers. The undersigned is of the view that the relationship between fingers and the hand is so intrinsically intertwined that a functional deficit analysis can be of no benefit. The Legislature has seen fit to list fingers and hands as separate scheduled members and compensate loss accordingly. By the same token, the loss of a hand obviously has tremendous impact upon the functional usefulness of an arm or the loss of a foot upon the leg, but the Legislature has again chosen to schedule those members separately. Many cases have dealt with the extension of a traumatic injury into a greater member or the body as a whole. Typically, this has been where an injury to one member has actually created a related ailment to the greater member or body, such as where the limp caused by a foot injury directly causes an injury to the back. See, e.g., Garrison v. Sheesley Plumbing & Heating Co., I Iowa Industrial Commissioner Report, 85 (App. Decn. 1980); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). It is also worthy of note that claimant's February, 1987 surgery did extend into the hand, in that the action of tendons was examined and bone was harvested for the fusion. Yet, there does not appear to be independent disability resulting from this surgical invasion. It has been held that a skin graft from the hip to the hand did not convert an injury from a scheduled member to the body as a whole. Lauden v. Walker Mfg. Co., I Iowa Industrial Commissioner Report, 202 (1981). It might also be noted that Dr. DeBartolo assessed claimant's disability in terms of the fingers, although that disability rating was converted to the hand. This is essentially a mixed question of fact and law. While the physician is not competent to make a legal determination as to whether this injury extended into the hand, it is noteworthy that he conceptualized the injury as a finger injury as opposed to a hand injury. Based upon all of the foregoing, it is held that claimant's injury of July 1, 1986 was to the long and ring fingers and not to the hand. Because the long and ring fingers do not constitute "another such member" as contemplated in Iowa Code section 85.64, there is no Second Injury Fund liability resulting from the injury. FINDINGS OF FACT THEREFORE, based on the evidence presented, the following ultimate facts are found: 1. Claimant suffered a severe injury to his right arm on June 9, 1977. 2. Claimant sustained a crushing injury primarily to his long and ring fingers while employed by Snyder Construction Company on July 1, 1986. 3. Although claimant has sustained substantial disability to his long and ring fingers by reason of the July 1, 1986 injury, the ailment does not extend into the hand. CONCLUSIONS OF LAW WHEREFORE, based on the principles of law previously stated, the following conclusions of law are made: 1. Claimant's July 1, 1986 work injury to his long and ring fingers was not to the hand, and therefore did not result in the loss or loss of use of "another such member or organ" as set forth in Iowa Code section 85.64. 2. Because claimant's injury was not to one of the specified scheduled members set forth in Iowa Code section 85.64, the provisions of the Second Injury Compensation Act were not triggered. ORDER THEREFORE, IT IS ORDERED: Claimant shall take nothing from this proceeding. The costs of this action shall be assessed to claimant pursuant to Iowa Code section 85.30. Signed and filed this 29th day of September, 1989. DAVID RASEY 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. Greg Knoploh Assistant Attorney General Tort Claims Division Hoover State Office Building Des Moines, Iowa 50319 3202 Filed September 29, 1989 DAVID RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER WILLIAM GILBERT, Claimant, File No. 826659 vs. A R B I T R A T I O N SECOND INJURY FUND OF THE STATE OF IOWA, D E C I S I O N Defendant. 3202 Crush injury to two fingers did not constitute injury to hand, so "another such member" requirement of 85.64 was not met. Harvest of bone from wrist for graft did not extend injury into hand, since disability was limited to fingers. Even though the hand's function, especially grip strength, was reduced, the injury and disability was to the fingers. Since the relationship of the fingers and hand is so interdependent, a functional analysis was rejected in favor of determining whether the injury or ailment itself extended to the greater member.