BEFORE THE IOWA INDUSTRIAL COMMISSIONER JOYCE WERTH, Claimant, VS. File No. 828324 DOUGLAS-LOMASON COMPANY, A R B I T R A T I 0 N Employer, D E C I S I 0 N and AMERISURE COMPANIES, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Joyce Werth against her former employer, Douglas-Lomason Company, and its insurance carrier, Amerisure Companies. The case was heard and fully submitted at Council Bluffs, Iowa on February 1, 1989. The record in this proceeding consists of testimony from Joyce Werth, John Werth, Beverly Conner, Lynn Easterday, John Mullenix, Lyle Schaaf, Carol Miller, and Shelly Skahill. The record also contains jointly offered exhibits 1 through 34. ISSUES Claimant seeks compensation for permanent total disability as the result of an injury that she sustained on November 22, 1985 and the cumulative effects of continuing to work subsequent to that injury until April 1, 1986. Claimant also seeks to recover medical expenses under the provisions of Code section 85.27. The crucial issue in this case is whether the injury of November 22, 1985, and the following day-to-day work activities, were a proximate cause of the back condition which affected claimant and which is responsible for the level of disability which she currently experiences. In the event that defendants are held liable for the condition of claimant's back, the nature and extent of her permanent disability is to be determined. Claimant relies upon the odd-lot doctrine to establish her claim of total disability. SUMMARY OF EVIDENCE The following is a summary of evidence presented in this case. Of all the evidence received at the hearing, only that WERTH V. DOUGLAS-LOMASON COMPANY Page 2 considered most pertinent to this decision is discussed. Conclusions about what the evidence showed are inevitable with any summarization. The conclusions in the following summary should be considered to be preliminary findings of fact. Joyce Werth is a 50-year-old, married lady who lives at Red Oak, Iowa. Her education ended when she completed the eighth grade. Since that time, she has been a housewife and has worked a variety of jobs. She worked for Union Carbide making batteries on an assembly line for approximately five years ending in 1984. Claimant had worked for Douglas-Lomason in the late 1960's or early 1970's. Claimant was rehired by Douglas-Lomason on November 15, 1985 to work as a general laborer. On November 22, 1985, claimant was operating a press which had the activating palm buttons mounted on a stand as shown in exhibits 17 and 18. A forklift operator brought claimant a resupply of parts and while backing away, caught a line which runs to the palm button stand with the forklift. The stand was pulled over striking claimant in the abdomen just below her waistline. Claimant stated that she fell backwards completely to the floor and that the forklift operator, John Mullenix, helped her get up and then went to get a foreman. Claimant stated that the wind was knocked out of her, but that she thought she would be alright as soon as she caught her breath. Claimant testified that she was then placed on a different machine, but that after operating it for approximately thirty minutes, she was having severe pain in her stomach at the location where the palm button stand had struck her. Claimant reported the pain to the foreman and was taken to Montgomery County Hospital where she saw the company doctor, Redmond Smith, M.D. Claimant stated that the doctor examined her, but did not take any x-rays (exhibit 3, page 200). The emergency room record indicates that claimant denied back pain, but did complain of nausea. Contusions on her lower abdomen were observed (exhibit 4, page 254). Claimant stated that she was then sent back to work on light duty and worked the rest of her shift, approximately six hours, despite the fact that she was sick to her stomach and had pain in her stomach. Claimant testified that when she returned home at the end of the shift, she told her husband what had happened and showed him the scrape on her stomach. She stated that the accident happened on a Friday and that after resting over the weekend, she began to feel better and returned to work on Monday. Claimant stated that she worked Monday through Wednesday, but was then off until the following Monday for Thanksgiving. Claimant related that she continued to have problems over the Thanksgiving break and because of the problems, did not go to her family Thanksgiving gathering. Claimant testified that, on the Monday following Thanksgiving, she went to work, but was still not over the incident. She WERTH V. DOUGLAS-LOMASON COMPANY Page 3 stated that her legs started aching, but that she attributed it to standing on concrete. Claimant stated that the discomfort where her stomach was bruised went away. Claimant stated that, in December, she had severe leg aches and some backache and that her husband would rub Icy Hot ointment on her back and legs. Claimant testified that, prior to the time of her injury, she engaged in activities such as sewing, fishing, volunteer work, and her church. She stated that she and her husband went out to supper and dancing nearly every Saturday night. Claimant related that, after November 22, 1985, they still went out to eat, but that they did not go dancing. She stated that she ceased vacuuming and performed no heavy household work. Claimant stated that, on the evening of December 30, 1985, she fell on ice leaving the Eagles Club injuring her face and left wrist. She was seen at the hospital and a splint was placed on her left arm. The emergency room record indicates that claimant was seen by the physician at 1900 (7:00 p.m.) (exhibit 4, page 255). The records show no complaints regarding claimant's back. Claimant stated that she returned to work on January 3, 1986 as scheduled and on February 10 was changed to the first shift, 7:00 a.m. to 3:30 p.m. Claimant stated that, while working nights, she had operated a spin riveter machine and carried buckets of rivets weighing 15-20 pounds once each shift. She also operated a Warco machine which involved moving boxes of parts which were on rollers. Claimant also performed some painting activities which required reaching up and bending down. At times she carried a bucket of water and used a putty knife and rags to clean machines. She handled weights of 8-10 pounds while working on the riser pipeline. After changing shifts, she worked in the riser pack area where she handled one riser in each hand, each weighing 10-12 pounds, and packed them into boxes. She also worked on the paint line for a couple of weeks. Her job was to remove cushions weighing 15-20 pounds from the line and place them into boxes. While on the paint line, claimant also had to wipe excess paint from seats. She stated that the work involved a lot of bending. Claimant testified that her back and legs bothered and that her condition kept getting worse, but that she kept working because she did not want to miss work. She stated that the only time she missed work was for the flu. Claimant testified that, by the end of March, 1986, she was working on the paint line wiping excess paint. She stated that on a Wednesday, she got up and was unable to bend down to tie her shoes so her husband tied them for her. She stated that he tried to get her to stay home from work. Claimant went to work, but stated that she was unable to perform and that when she cried, a coworker went for a foreman. Claimant testified that she experienced pain which was located 6-8 inches WERTH V. DOUGLAS-LOMASON COMPANY Page 4 above her tailbone and extended through to her stomach. She stated that she also had terrible leg aches. Claimant stated that the fall that occurred on December 30, 1985 was the only other thing that happened to her after November 22, 1985. Commencing on April 1, 1986, claimant was seen by Edward Piller, M.D., and hospitalized. She was also seen by Kevin Quinn, M.D. A number of tests and treatments were performed. Claimant stated that she was unsure if she told Dr. Quinn at that time about the November 22, 1985 work incident. The history recorded by Dr. Piller indicates that claimant had been admitted in December, 1983 for what was apparently a kidney stone and that she then began to have pain on Thursday of the preceding week (March 27, 1986). The pain was noted to be in the right lower quadrant, an area where she had undergone previous abdominal surgery. The note indicates that she was unable to work because motion irritated the pain, but that normally, the pain was not irritated by motion. It was felt that the pain may be radiating from her back, but x-rays of her lumbar spine showed no abnormalities other than some hypertropic spurring (exhibit 4, pages 258, 260 and 261). Claimant was also seen in consultation by Glenn M. Skallerup, M.D., whose report indicates that claimant told him that she had experienced similar pain over the past two years and that while there was some back pain, the most severe discomfort had always been in her abdomen. His report contains the following statement: In discussion with the patient, mention was made of the possibility of a disc, although abnormal & high, it was following this that the auto suggestion of the same produced some complaints of pain now radiating in her leg. Dr. Skallerup indicated that there was a possibility that mild skeletal factors may be responsible for claimant's complaints (exhibit 4, page 262). Claimant was discharged from the hospital on April 6, 1986 with a final diagnosis of lumbar back pain and osteoarthritis of the lumbar spine (exhibit 4, page 257). The discharge summary indicates that while claimant was hospitalized, the abdominal pain resolved (exhibit 4, page 257). Kevin Quinn, M.D., an internist who practices with Dr. Piller, indicated on May 2, 1986 that claimant had been totally disabled by lumbar pain since April 1, 1986 (exhibit 3, pages 149 and 150). Claimant was referred to H. Randall Woodward, M.D., an Omaha orthopaedic surgeon. Dr. Quinn's report dated June 26, 1986 indicates that claimant had low back pain for approximately three months (exhibit 3, page 161). A subsequent report of November 19, 1986 states that claimant's problems began in April of 1986 (exhibit 3, page 162). WERTH V. DOUGLAS-LOMASON COMPANY Page 5 Dr. Woodward's notes indicate that claimant noted onset of right low back and thigh discomfort on March 27, 1986 when she got up from bed and had no problems prior to that (exhibit 3, page 168). His initial impression was that claimant had musculoligamentous strain with a possible right L5 facet irritation (exhibit 3, pages 168 and 175). A myelogram and CT scan were performed on May 27, 1986 which showed degenerative changes with a prominent anterior bulge and defect at the L4-5 level. It was also noted that claimant appeared to have a slight spondylolisthesis at the L4-5 level. On June 9, 1986, a discogram was performed which showed the L5-S1 level to be normal, but the L3-4 and L4-5 levels were degenerated. On June 30, 1986, bilateral excision of the L4-5 disc was performed. Claimant initially showed a good response to surgery, but she continued to have back pain. On August 15, 1986, x-rays showed narrowing of the L3-4 and L4-5 levels, but the L5-Sl level was still normal. On December 3, 1986, claimant underwent a posterolateral spine fusion of L3, L4 and L5. A note of February 12, 1987 indicates that claimant continued to make gradual improvement, but subsequent notes from April and June, 1987 indicate that claimant complained of pain with increased activity. By September, 1987, claimant indicated to Dr. Woodward that she felt no better than she had prior to the first surgery. By December 17, 1987, Dr. Woodward indicated that claimant had reached maximum medical improvement (exhibit 3, pages 168-199). On December 21, 1987, Dr. Woodward issued a report to defense counsel in which he stated that claimant had reached her maximum healing and that she had a permanent partial impairment of 30 percent of the whole man [sic]. He recommended that she avoid lifting more than an occasional 20 pounds and also that she avoid twisting, turning, pushing and pulling. He recommended that she be able to change positions from standing to sitting and limit the amount of walking which she performed (exhibit 3, page 200). On May 2, 1986, the same date as Dr. Quinn's statement that claimant was disabled (exhibit 3, pages 149 and 150) due to lumbar pain, claimant indicated on a group insurance form that her condition was not related to her employment (exhibit 25). At hearing, claimant explained that she was not certain if the problem was her back so she indicated it was not employment related. It is noted that she had already seen Dr. Woodward for her back and was under his treatment on May 2, 1986. After the second surgery was unsuccessful, claimant applied for and received Social Security disability benefits (exhibit 1). Claimant receives $344 per month. Claimant stated that. she has not looked for work and would be unable to perform eight hours of work. She stated that if she were hiring, she would not hire herself for a job. Claimant testified that she is in pain for which she takes muscle relaxers, Tylenol WERTH V. DOUGLAS-LOMASON COMPANY Page 6 and uses a TENS unit. She was hospitalized for eight days in the summer of 1988 following attempting to vacuum her home. Claimant has been evaluated by Patrick W. Bowman, M.D., an Omaha orthopaedic surgeon, who has indicated that patients with claimant's problem typically have intractable pain and that the only treatment would be symptomatic. He indicated that her prognosis is fairly poor and that she will certainly continue to have major problems with her back (exhibit 3, pages 146-148). Claimant testified that she underwent a physical capacity assessment which lasted one and one-half to two hours. She stated that when it was over, she was hurting so badly that she was unable to bend over to tie shoes. Claimant testified that she declined to participate in work hardening because there were no promises that it would be successful and she did not want to endure the pain that would be involved. Claimant stated that she does a little driving in town, but is unable to drive a distance of as much as seven miles. She stated that she is unable to carry groceries such as a gallon of milk, but that she could lift five pounds, though not continuously. Claimant stated that extended sitting bothers and that she lies down each morning and afternoon. Claimant testified that she would be unable to perform any job she has previously held. She attributes all of her problems to the November 22, 1985 incident and the work that she performed following that incident. Claimant stated that she had received a preemployment physical by Dr. Smith which found no physical problems. Claimant testified that she did not complain at work because she had been on a 90-day probation and did not want to lose her job. She stated that she had pain prior to the day that it became severe on March 27, 1986. She denied the occurrence of any particular incident on that day. John Werth, claimant's husband of five years, testified that prior to claimant's injury she was active and engaged in activities such as gardening, dancing and attending garage sales. He stated that she was primarily responsible for the housework in their home. John stated that claimant was in good physical condition when claimant commenced employment at Douglas-Lomason. He was not aware of her having any back problem prior to that time. John Werth stated that claimant told him about the accident that occurred on November 22, 1985. He described her as nervous and upset. He observed bruises under her navel. Claimant's husband testified that the Saturday and Sunday following the incident, she just lay around. He stated that following that, she had a lot of back and leg pains and that he began to help WERTH V. DOUGLAS-LOMASON COMPANY Page 7 with the housework and vacuuming. He stated that when she would come home from work, she would wake him up and that he would rub her back and legs with Icy Hot. Claimant's husband confirmed that during that period of time, they ceased doing everything except going to work. John Werth stated that, in early 1986, he tried to get claimant to go to a doctor, but she refused. He stated that she was afraid she would be fired or laid off. He stated that during part of the time, she had not yet completed 90 days of employment. He described her condition as worsening to the extent that on one morning in late March, he had to help her put her shoes on. He stated that he was surprised when she went to the doctor on April 1, 1986. He stated that she finally gave up. John Werth testified that, prior to that date, her complaints had become more frequent and more serious. John Werth testified that claimant has not recovered since her surgeries. He stated that she continues to complain of pain and performs little in the way of housework. He stated that she has not looked for work because she would be unable to perform a job. Beverly Conner, claimant's sister who is also employed at Douglas-Lomason, stated that claimant was very active prior to the fall of 1985. Conner was aware of claimant's November 22, 1985 accident and observed bruises on claimant's abdomen. Conner confirmed that claimant had complained of her back, legs and abdomen. Conner stated that claimant ceased many of her activities after that accident. Conner testified that claimant is not a complainer and can endure a lot. She stated that claimant had been reluctant to go to a doctor in the past and that she did not consider it unusual if claimant would not have complained to her employer or to have refrained from going to a doctor in regard to this matter. Conner stated that claimant is limited in driving, walking, shopping, carrying and performing household chores. She stated that claimant is in a lot of pain. Conner stated that claimant is unable to work. Kevin Quinn, M.D., is a physician who is board certified in internal medicine. When deposed, he stated that claimant was initially hospitalized with abdominal complaints which were later determined to be referred pain from her back (exhibit 11, pages 5 and 6). Dr. Quinn stated that claimant has a history of abdominal problems since 1981 (exhibit 11, page 40). He stated that claimant is unable to take aspirin and some aspirin-like or anti-inflammatory medications (exhibit 11, pages 19 and 20). He stated that she has been prescribed a TENS unit (exhibit 11, page 21). He felt that she has genuine pain, but that nothing has been successful in controlling it (exhibit 11, WERTH V. DOUGLAS-LOMASON COMPANY Page 8 pages 22 and 38). Dr. Quinn expressed the opinion that claimant is unequivocally, totally disabled (exhibit 11, page 35). Dr. Quinn further stated that he is fairly certain that claimant's condition is work related. He felt that it was a culmination of her work activities and the November 22, 1985 incident. He stated that it is possible that the November 22,1985 incident caused the back problem without the cumulative effect from her other work activities (exhibit 11, pages 33, 34, 47, 48, 51 and 52). Michael J. Morrison, M.D., an Omaha orthopaedic surgeon, reviewed the medical records generated by Dr. Woodward and the other medical and hospital records regarding the claimant. Dr. Morrison felt that there was no causal connection between the back problem and the incident that occurred on November 22, 1985 because no record was made of any complaints regarding claimant's back or of radiculitis at the time of the incident. He stated that if claimant had symptoms and sought medical care following the November 22, 1985 incident, his answer would be different from the one that he has given (exhibit 29, pages 6, 7, 12 and 13). Claimant was tested for flexibility and strength by Mark Brandt, a physical therapist, on November 10, 1988. Brandt indicated that claimant manifested pain. He stated that he found her to have a very limited range of motion of her lumbar spine, increased muscle tone of the lumbar and thoracic paraspinal muscles, decreased lumbar curve, resistance to passive movement of the hip and low back, and that she was deconditioned. Brandt stated that work hardening provides a possibility of improving claimant's functional capacities. He stated that, if motivated, patients generally benefit from work hardening by increasing their flexibility, endurance and range of motion, but that they do not necessarily experience less pain (exhibit 9, pages 20-24, 26 and 34-36; exhibit 33). Mark Adamson indicated that work hardening would be appropriate for claimant (exhibit 33). Craig Ferguson, a vocational evaluation specialist, evaluated claimant. He indicated that she is not feasible for competitive employment because her pain would cause her to be unproductive. He disagreed with a determination made by Lynn Easterday which had indicated that claimant would be available for light or sedentary work (exhibit 10, pages 16 and 18). Ferguson relied upon the medical reports from Drs. Bowman and Quinn (exhibit 10, pages 6-9 and 18). Lynn Easterday, a rehabilitation specialist, evaluated claimant. Easterday initially indicated that claimant would be available for light or sedentary work, but when deposed, WERTH V. DOUGLAS-LOMASON COMPANY Page 9 Easterday agreed that, at the current time, claimant was unable to perform light or sedentary work, but that there was a possibility she could, in the future, become capable of performing some types of work through a program such as work hardening (exhibit 8, pages 24-26 and 38-40; exhibit 30; exhibit 31). APPLICABLE LAW AND ANALYSIS The incident that occurred on November 22, 1985 and the nature of claimant's work for Douglas-Lomason following that date are all well established. The work which claimant performed involved some activities in the nature of bending and reaching, but it was not heavy work. The real issue in this case is whether that incident or the work, or some combination of the two, produced the lumbar abnormalities for which claimant was treated. The dispute regarding the "injury date" in this case is somewhat academic since an injurious event clearly occurred on November 22, 1985, but claimant did not miss any work (even allegedly) due to that incident until April 1, 1986. For purposes of this case, it is determined that the correct date of injury is November 22, 1985 since there was a specific trauma on that date. No physician has attributed claimant's back problems solely to the cumulative effect of her work subsequent to November 22, 1985. This is a case where either November 22, 1985 or April 1, 1986 could be used as a date of injury. Claimant has the burden of proving by a preponderance of the evidence that she received an injury on November 22, 1985 and/or April 1, 1986 which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979); McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The "arising out of" requirement is satisfied by showing a causal relationship between the employment and the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986). The incident of November 22, 1985 and the activities claimant engaged in thereafter at her work all clearly were performed WERTH V. DOUGLAS-LOMASON COMPANY Page 10 in the course of her employment and any injury which resulted therefrom clearly occurred in the course of employment. The "arising out of" requirement is the critical issue in this case. The claimant has the burden of proving by a preponderance of the evidence that the work injury is a cause of the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co. , 261 Iowa 352, 154 N.W.2d 128 (1967). Dr. Quinn relates claimant's back problems and resulting disability to her employment, while Dr. Morrison does not. Dr. Woodward, the treating orthopaedic surgeon did not address the issue of causation. Dr. Quinn has treated claimant for other conditions in the past and is more familiar with her and her individual personality than is Dr. Morrison. On the other hand, Dr. Morrison is an orthopaedic surgeon. It is interesting to note, however, that Dr. Morrison bases his opinion upon the time at which claimant's symptoms began. Simply stated, it was his opinion, that if the onset of symptoms occurred on November 22, 1985, then a causal connection existed between that incident and her back problems, but if the onset occurred later, then there was no causal connection. Claimant, her husband, and her sister all testified as to the existence of symptoms beginning following the November 22, 1985 incident and worsening thereafter. Having observed the appearance and demeanor of the claimant and her two witnesses, they are determined to be generally credible. This finding recognizes the inconsistencies that appear in the record of this case. Claimant's statement that the pain became severe or unbearable on March 27, 1986 is accepted as a plausible explanation for why the medical practitioners used March 27, 1986 as the time for the onset of her symptoms. Claimant's explanation regarding exhibit 25, the group insurance application, is not, however, reconcilable. She clearly would have known that the condition for which she WERTH V. DOUGLAS-LOMASON COMPANY Page 11 was off work was her back since she had already seen Dr. Woodward for her back by the time that she signed the application form. A major inconsistency in the case is that claimant and her husband testified that he rubbed Icy Hot on her back and leg during the time that she continued to work, but when she was admitted to the hospital, her primary complaint was abdominal. Claimant had experienced abdominal complaints for years prior to the time she commenced employment at Douglas-Lomason. The irrefutable evidence in this case is, however, that claimant was physically active and capable of engaging in many activities prior to the time of the November 22, 1985 incident, that the incident, while seemingly relatively minor, did involve trauma at approximately the level of claimant's body where the spinal condition was located, and that the back condition was objectively medically diagnosed. The record of this case contains no other trauma which would be a likely source of the back condition. There is nothing to indicate that the December 30, 1985 fall affected claimant's back. In spite of all the inconsistencies, the testimony from claimant, her husband, and her sister is determined to be credible and is relied upon to establish that claimant's symptoms did in fact commence with the incident of November 22, 1985. Therefore, the opinion expressed by Dr. Quinn is accepted as being correct. Claimant's demonstrated reluctance to seek medical treatment is accepted as an explanation for why she did not do so sooner. 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). Industrial disability or loss of earning capacity is a concept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment of physical capacity creates an inference of lessened earning capacity. The basic element to be determined, however, is the reduction in value of the general earning capacity of the person, rather than the loss of wages or earnings in a specific occupation. Post-injury earnings create a presumption of earning capacity. The earnings are not synonymous with earning capacity and the WERTH V. DOUGLAS-LOMASON COMPANY Page 12 presumption may be rebutted by evidence showing the earnings to be an unreliable indicator. Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 34th Biennial Report, 218 (1979): 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. Claimant seeks an award of permanent total disability. She asserts the odd-lot doctrine. The Iowa Supreme Court has ruled that whenever an injured employee makes a prima facie showing of total disability, the burden of proving that work within the employee's capabilities is available shifts to the employer. The case adopts the odd-lot doctrine. Guyton v.Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985). The agency has held that the only way an injured employee can make a prima facie showing of total disability is by conducting a bona fide good faith search for employment without finding any. The agency has held that without conducting the search for work, the burden of proof does not shift to the employer. Collins v. Friendship Village, Inc., file number 679258 (App. Decn. 1988); Emshoff v. Petroleum Transp. Services, file number 753723 (App. Decn. 1987). The undersigned is obliged to follow agency precedent. Claimant therefore cannot avail herself of the odd-lot doctrine and its burden shifting provisions since she has not sought employment. The lack of ability to rely upon the odd-lot doctrine does not, however, necessarily prevent an award of total disability. Total disability under workers' compensation law is not utter and abject helplessness. The ability to earn some wages creates a presumption that the person has earning capacity commensurate with those wages, but the presumption is rebuttable. 2 Larson Workmen's Compensation Law, section 52.21(d). The test of permanent total disability in a workers' compensation setting has long been established and may be summarized as follows: When the combination of the factors considered in determining industrial disability precludes the worker from obtaining regular employment in which he or she can earn a living, the disability is total disability. Guyton v. Irving Jensen Co., 373 N.W.2d 101, 103 (Iowa 1985), McSpadden v. Big Ben Coal Co., 282 N.W.2d 181, 192 (Iowa 1980); Diederich v. Tri-City R. Co., 219 Iowa 587, 594, 258 N.W. 899, 902 (1935). Permanent disability means a disability that is lasting for an indefinite and undeterminable period. It does not require proof of absolute perpetuity. Wallace v. Brotherhood, 230 Iowa 1127, 1130, 300 N.W. 322 (1941). There are few individuals in our society whose earning capacity is absolutely zero. There are numerous examples of individuals with severe physical impairments who are able to produce some level of earnings. Even if claimant were capable of performing some types of part-time employment and earning some wages, such would not compel a finding that she is not totally disabled. The test of total disability is whether the person has the ability to be self-supporting. Normally, that cannot be done from part-time work. In this case, Dr. WERTH V. DOUGLAS-LOMASON COMPANY Page 13 Quinn, Lynn Easterday and Craig Ferguson have all indicated that claimant is totally disabled and is not capable of engaging in competitive employment. Dr. Bowman confirmed the seriousness of her physical condition. When claimant's education is considered together with her work history, there is nothing to indicate that she is qualified to perform most types of clerical or sedentary employment. The only conclusion which can be reached in this case is that Joyce Werth is permanently and totally disabled. Since claimant has been found to be totally disabled, there is no need to determine the end of the healing period, although it would appear from the evidence found at exhibit 11, page 35 and exhibit 3, page 200 that it ended approximately one year after her second surgery. The only real issue with regard to the medical expenses which claimant seeks to recover as set forth in exhibit 2 is that of the employer's liability. Defendants are therefore responsible for payment of the medical expenses as summarized at exhibit 2, pages 97 and 98 in the total amount of $37,202.31. FINDINGS OF FACT 1. On November 22, 1985, Joyce Werth was a resident of the state of Iowa employed by Douglas-Lomason Company in the state of Iowa. 2. On November 22, 1985, Joyce Werth injured her back when a palm button stand was pulled against her abdomen. Thereafter and until April 1, 1986, claimant continued to perform duties in her employment which aggravated the injury that had been caused on November 22, 1985, although those subsequent work activities were not independently injurious. 3. Following the injury, claimant continued to work until April 1, 1986 at which time it was medically indicated that she was incapable of performing work in employment substantially similar to that which she performed at the time of injury. Claimant has not been capable of performing substantially similar to that which she performed at the time of injury at any time since April 1, 1986. 4. Claimant reached the point that it was medically indicated that further significant improvement from the injury was not anticipated on December 21, 1987. 5. Claimant, John Werth and Beverly Conner are credible witnesses with regard to their descriptions of the onset of claimant's symptoms and the progression of those symptoms up to the time claimant actually sought medical treatment on April 1, 1986. 6. The accident that occurred on November 22, 1985 injured claimant's abdomen and lumbar spine. WERTH V. DOUGLAS-LOMASON COMPANY Page 14 7. The accident that occurred on November 22, 1985, and the injuries sustained in that accident, are a substantial factor in producing the abnormality in claimant's lumbar spine for which surgery was performed and the resulting disability which currently affects claimant due to the condition of her lumbar spine. 8. Joyce Werth does not have sufficient residual earning capacity, due to the limitations which her back condition has produced, which would enable her to engage in gainful competitive employment. She does not have sufficient residual earning capacity to earn sufficient wages with which she could be self-supporting. 9. All medical expenses listed in exhibit 2, totalling $37,202.31 were incurred in obtaining reasonable care for the injury to claimant's back which occurred on November 22, 1985. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. The current condition of claimant's lumbar spine was proximately caused by an injury which arose out of and in the course of her employment with Douglas-Lomason Company on November 22, 1985. 3. Claimant is permanently and totally disabled as a result of that November 22, 1985 injury within the meaning of Code section 85.34(3). 4. Defendants are responsible under the provisions of Code section 85.27 for payment of the expenses of medical treatment in the amount of $37,202.31 as itemized in exhibit 2. ORDER IT IS THEREFORE ORDERED that defendants pay claimant weekly compensation for permanent total disability at the rate of one hundred sixty-one and 44/100 dollars ($161.44) per week payable commencing April 1, 1986 and continuing for the balance of claimant's life. IT IS FURTHER ORDERED that defendants pay the following medical expenses: .Immanuel Medical Center $17,453.96 Diagnosis & Internal Medicine 521.00 Midwest Medical Imaging Center, Inc. 1,013.50 National Medical Homecare 74.40 Orthopaedic Surgery, Inc. 6,284.00 Northwest Anesthesia 1,917.00 WERTH V. DOUGLAS-LOMAS0N COMPANY Page 15 Red Oak Internal Medicine Clinic 1,427.50 Montgomery County Memorial Hospital 5,850.25 Keystone Pharmacy-Medicine Chest 404.08 Orthotic & Prosthetic Center, Omaha 115.00 Drs. Gross, Iverson, Kratochvil & Klein 115.00 Foster Medical Corporation 1,059.40 Nebraska-Iowa Radiology Consultants, Inc. 357.00 Dr. Glenn Skallerup 110.00 Pathology Center 32.70 Total $36,734.79 IT IS FURTHER ORDERED that defendants pay claimant mileage expense in the amount of four hundred sixty-seven and 52/100 dollars ($467.52). IT IS FURTHER ORDERED that all past due amounts of weekly compensation shall be paid to claimant in a lump sum together with interest from the date each payment came due computed at the rate of ten percent (10%) per annum until the date of actual payment pursuant to Code section 85.30. IT IS FURTHER ORDERED that defendants pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. IT IS FURTHER ORDERED that defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 26th of September, 1989. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Gary Gee Attorney at Law 112 South Elm Street P.O. Box 177 Shenandoah, Iowa 51601 Mr. Philip Willson Attorney at Law 35 Main Place, Suite 300 P.O. Box 249 Council Bluffs, Iowa 51502 1108.50, 1804, 2209, 4100 Filed September 26, 1989 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER JOYCE WERTH, Claimant, VS. File No. 828324 DOUGLAS-LOMASON COMPANY, A R B I T R A T I 0 N Employer, D E C I S I 0 N and AMERISURE COMPANIES, Insurance Carrier, Defendants. 1108.50 Claimant's medical experts attributed her back condition to what had initially been a seemingly minor injury that occurred approximately four months before she ceased work. Claimant, her husband and her sister all testified to the effect that her symptoms had started with that injurious incident and had progressively worsened subsequently until they became unbearable and she sought medical care. Those witnesses were found to be credible. Defendants' medical expert expressed the opinion, based on the lack of medical treatment for approximately four months, that the original incident was not a cause of claimant's back condition, but he also stated that if her symptoms had started at that time, then it would be his opinion that the original. incident was the cause of her back problems. A causal connection was therefore found to exist. 2209 There was an issue in the case with regard to whether the injury date was the date of the original trauma or the date claimant ceased working. Claimant's medical evidence indicated that the back problem was a culmination of the original trauma and the continued work activities. Where the work activities appeared to be at most moderate in exertion, it was found that the initial trauma was the precipitating factor and therefore the injury date was found to be the date of the initial trauma, rather than the date claimant ceased work. WERTH V. DOUGLAS-LOMASON COMPANY Page 2 1804, 4100 The consensus of the opinions from the medical practitioners and vocational consultants was that claimant was totally disabled. Permanent total disability was awarded. BEFORE THE IOWA INDUSTRIAL COMMISSIONER STEVEN W. MINNER, Claimant, File No. 828393 vs. A P P E A L ADM, D E C I S I O N Employer, F I L E D and NOV 29 1989 OLD REPUBLIC INSURANCE CO., IOWA INDUSTRIAL COMMISSIONER Insurance Carrier, Defendants. STATEMENT OF THE CASE Defendants appeal from an arbitration decision awarding claimant healing period benefits and permanent partial disability benefits based on an industrial disability of 40 percent. The record on appeal consists of the transcript of the arbitration hearing; joint exhibits A and B; claimant's exhibits 1 and 2; and defendants' exhibits 1 through 4. Both parties filed briefs on appeal. ISSUES The issues on appeal are whether there is a causal connection between claimant's alleged work injury and the alleged permanent disability and the extent of claimant's permanent disability, if any. REVIEW OF THE EVIDENCE The arbitration decision filed August 30, 1988 adequately and accurately reflects the pertinent evidence and it will not be reiterated herein. APPLICABLE LAW The citations of law in the arbitration decision are appropriate to the issues and evidence. ANALYSIS The analysis of the evidence in conjunction with the law in the arbitration decision is adopted. FINDINGS OF FACT 1. Claimant began work for defendant employer in 1971. 2. Claimant received one to two chiropractic treatments per year for lower neck and upper back problems from 1976 to 1985. 3. Claimant, from,nonwork activities, had lower cervical, upper thoracic strain in July 1984 and had upper cervical strain in August 1984. 4. Claimant received chiropractic treatment from Elvin Lessenger, D.C., from January 1986 to June 21, 1986. 5. Claimant sought chiropractic treatment for pain in the upper back as a result of heavy lifting at home on June 18, 1986. 6. Claimant received a treatment and a follow-up check from Dr. Lessenger on June 19, 1986 and was treated by Francois LeRoux, D.C., on June 26 and 27, 1986. 7. Dr. Lessenger indicated that claimant was experiencing symptoms related to his right arm on June 19, 1986. 8. On June 29, 1986 claimant was shoveling corn mush at work when he felt pain in the upper neck on the right side. 9. Claimant reported the incident of June 29, 1986 to the employer and finished work that day and worked the following four days at which time he took a week of vacation. 10. Claimant was seen by Eugene Herzberger, M.D., a neurosurgeon on July 15, 1986. Dr. Herzberger diagnosed disc herniations at C6-7 and C5-6. 11. When seen by Dr. Herzberger claimant complained of pain in the right shoulder and right upper extremity. 12. The history given to Dr. Herzberger did not include the incident on June 18, 1986, did not include claimant's prior back problems, and indicated that the symptoms started immediately with the incident on June 29, 1986. 13. On December 29, 1987 claimant was examined by William Robb, M.D., a board certified orthopedic surgeon. 14. Dr. Robb reviewed the medical records of claimant and pertinent depositions and offered an opinion as to causal connection. 15. It was Dr. Robb's opinion that heavy lifting was not a causal factor but did aggravate claimant's condition. 16. Dr. Robb thought that the lifting episode on June 18, 1986 would have aggravated claimant's condition if that incident were the only traumatic event. 17. Dr. Robb thought that the onset of the disc herniations preceded claimant's July 18, 1986 surgery by at least six weeks, possibly two or three months. 18. Claimant's condition was materially aggravated by the June 29, 1986 incident. 19. Dr. Robb could not quantify the degree of herniations prior to and subsequent to the June 29, 1986 incident. 20. As a result of claimant's athletic endeavors and work- outs he was in excellent physical condition at all times material herein. 21. At no time prior to June 29, 1986 did any injury cause claimant a loss of work or a substantial reduction in functional activity. 22. The incident on June 29, 1986 was a substantial factor in claimant's need for fusion surgery to relieve pain. 23. The incident on June 29, 1986 was the cause of a seven to ten percent permanent impairment to the body as a whole and of permanent restrictions consisting of avoidance of repetitive lifting. 24. Claimant was 36 years of age on the date of the work injury. 25. Claimant appears to possess above average intelligence. 26. Although claimant returned to work after surgery and was able to perform the work, claimant had to modify his work activities to avoid pain and continue working. 27. At the time of the arbitration hearing claimant was unemployed but was attending college. 28. The work injury of June 29, 1986 was the cause of a 40 percent loss of earning capacity. CONCLUSIONS OF LAW Claimant has proved that there is a causal connection between the alleged work injury on June 29, 1986 and his permanent disability. Claimant has proved that the work injury of June 29, 1986 was the cause of an industrial disability of 40 percent. WHEREFORE, the decision of the deputy is affirmed. ORDER THEREFORE, it is ordered: That defendants pay to claimant two hundred (200) weeks of permanent partial disability benefits at the rate of three hundred forty-one and 79/100 dollars ($341.79) per week from March 14, 1987. That defendants (as stipulated) pay to claimant healing period benefits from June 16, 1986 through March 13, 1987 at the rate of three hundred forty-one and 79/100 dollars ($341.79) per week. That defendants pay accrued weekly benefits in a lump sum and receive a credit as stipulated in the prehearing report for past payment of benefits. That defendants pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. That defendants pay the costs of this action including the costs of transcription of the arbitration hearing pursuant to Division of Industrial Services Rule 343-4.33. That defendants file activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 29th day of November, 1989. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. John J. Wolfe, Jr. Attorney at Law 402 6th Ave. S Clinton, Iowa 52732 Mr. Matthew J. Brandes Attorney at Law 1200 MNB Building Cedar Rapids, Iowa 52401 1803 Filed November 29, 1989 DAVID E. LINQUIST BEFORE THE IOWA INDUSTRIAL COMMISSIONER STEVEN W. MINNER, Claimant, vs. File No. 828393 ADM, A P P E A L Employer, D E C I S I 0 N and OLD REPUBLIC INSURANCE CO., Insurance Carrier, Defendants. 1803 Deputy's award of 40 percent industrial disability was affirmed on appeal. Claimant had a history of upper back problems but did not miss work nor require extensive care until work injury. Claimant had disc herniations at two levels and fusion surgery. Potential success of claimant's educational pursuits was not a factor to be considered in assessing claimant's current industrial disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER STEVEN W. MINNER, Claimant, vs. File No. 828393 ADM, A R B I T R A T I O N Employer, D E C I S I O N and OLD REPUBLIC INSURANCE CO., Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Steven W. Minner, claimant, against ADM Corn Sweetners, employer (hereinafter referred to as ADM), and Old Republic Insurance Company, insurance carrier, for workers' compensation benefits as a result of an alleged injury on June 29, 1986. On May 2, 1988 a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. Oral testimony was received during the hearing only from claimant. The exhibits received into the evidence at the hearing are listed in the prehearing report. According to the prehearing report the parties have stipulated to the following matters: 1. There was an employer-employee relationship between claimant and ADM at the time of the alleged injury; 2. Claimant's rate of weekly compensation in the event of an award of weekly benefits from this proceeding shall be $341.79 per week; 3. If defendants are held liable for the injury, claimant is entitled to healing period benefits from July 16, 1986 through March 13, 1987; 4. If the injury is found to have caused permanent disability, the type of disability is an industrial disability to the body as a whole; 5. If permanent disability benefits are awarded, they MINNER V. ADM PAGE 2 should begin as of March 14, 1987; and, 6. All requested medical benefits have been or will be paid by defendants. ISSUES The parties submitted the following issues for determination in this proceeding: I. Whether claimant received an injury arising out of and in the course of his employment; II. Whether there is a causal relationship between the work injury and the claimed disability; and, III. The extent of weekly disability benefits to which claimant is entitled. SUMMARY OF THE EVIDENCE The following is a summary of evidence presented in this case. For the sake of brevity, only the evidence most pertinent to this decision is discussed. Whether or not specifically referred to in this summary, all of the evidence received at the hearing was considered in arriving at this decision. As will be the case in any attempted summarization, conclusions about what the evidence offered may show are inevitable. Such conclusions, if any, in the following summary should be considered as preliminary findings of fact. Claimant testified that he worked for ADM from May 7, 1971 until August 11, 1987 in the corn milling division of ADM Corn Sweetners in Clinton, Iowa. Claimant said that most of the mailing processes are automatic but there are frequent breakdowns which spills cracked corn onto the floor. When this occurs the wet corn slurry must be scooped off the floor with a large aluminum scoop shovel. Claimant said that this was very heavy work and required lifting from 35 to 50 pounds on a regular basis. Claimant stated at hearing that he left his employment at ADM, to receive schooling primarily because of his life-long hearing loss problem and to change his life direction. Claimant has a congenital 80 percent loss of hearing in the right ear. Claimant is currently enrolled in the business department at the University of Iowa. Claimant said that he hopes to graduate in December, 1989 with a degree in business marketing. The facts surrounding the work injury are not in real dispute. Claimant testified that while shoveling wet slurry corn on the alleged date of injury, he felt a sharp pain in his upper back and neck. Claimant described the pain as feeling like a needle had been stuck in his neck. Claimant reported to the foreman and to the plant nurse and was sent back to work with an ice pack. Claimant said that he continued to feel a stinging sensation in his neck the rest of the day. The next day claimant sought medical attention and was referred to Dr. Roode (first name unknown) with complaints of pain and weakness in the right arm. Dr. Roode referred claimant to Dr. Barnes (first name unknown). Dr. Barnes diagnosed a strain of the right trapezius and prescribes strengthening exercises with a return to work. After becoming alarmed by upper arm weakness and atrophy, MINNER V. ADM PAGE 3 claimant on his own went to a physical therapy department at a local hospital where he had been previously treated for a thumb ailment. These therapists referred claimant to Eugene Herzberger, M.D., a board certified neurosurgeon. After his examination on July 15, 1986 and following tests consisting of a myelogram and a CT scan, Dr. Herzberger diagnosed that claimant suffered from a disc herniation at the C5-6 and C6-7 levels of claimant's upper spine. Dr. Herzberger then performed surgical surgery on the spine by removal of the two damaged discs and a fusion of the intervertebral spaces. Claimant testified that he improved quickly after surgery. Claimant said that he regained most of the function of his right arm. Claimant said that he returned to work after Dr. Herzberger released him on March 14, 1987. Claimant said that although the work release from Dr. Herzberger contained no specific activity restriction, Dr. Herzberger wanted him to return only to light duty. Dr. Herzberger said in his deposition that he knew claimant would be compelled to return to heavy work eventually but that claimant risked pain in his arms and shoulders when he performed such activity because of severe damage to his nerve roots subsequent to the surgery. Claimant stated that he was careful when he returned to work and used a smaller shovel in his activities. Dr. Herzberger also states in his deposition that he knew claimant was soon going back to school and that he felt it was a very good idea. Dr. Herzberger opined that claimant suffered from a 10 percent permanent partial impairment as a result of the June 29, 1986 injury. At hearing, claimant admitted that he was having back problems before June 29, 1986. According to Dr. herzberger, claimant did not mention this to him. The medical evidence in this case indicates that claimant first sought medical attention for a lower neck and upper back problem in October, 1976, from Richard Droste, D.C. Upon a diagnosis of lower cervical and upper thoracic syndrome, Dr. Droste treated claimant on and off with chiropractic adjustments until October, 1985. Dr. Droste stated that he treated claimant for episodes of pain once or twice a year. These episodes would require three to five adjustments before the pain was relieved. According to Dr. Droste the problem stemmed from claimant's lifting and shoveling at work. In October, 1984, claimant was also treated for a neck problem following a fall at home. Beginning in January, 1986 claimant was regularly treated by Elvin Lessenger, D.C., until June 21, 1986. Again claimant's lower cervical and upper back was involved. Claimant had approximately six treatments during this time. Two of these treatments occurred following a lifting incident at home on June 19, 1986. On June 26, 1986, Dr. Lessenger sought a second opinion from Francois LeRoux, D.C., as claimant was not improving as expected. Dr. LeRoux treated claimant twice on the 26th and 27th of June, only a few days before the work injury in this case. At hearing claimant explained that although he had regular treatment for back problems before June 29, 1986, he felt that the problems were not extensive and that he usually recovered after a few days. Claimant attributes most of these back problems to his heavy work over the years at ADM although he admitted to falling at home in 1984 and lifted at home only 10 days before the alleged work injury. Claimant points out that he was always able to return to work during these prior episodes of back pain even after the June 19, 1986 incident until the shoveling incident at the time of the alleged work injury in this MINNER V. ADM PAGE 4 case. Two medical doctors, namely Dr. Herzberger, a board certified neurosurgeon, and William Robb, M.D., a board certified orthopedic surgeon, rendered causal connection opinions in this case. Dr. Herzberger testified in his deposition that although he was unaware of the prior back problems, such prior problems did not change his causal connection opinion that the most recent event at work was the probable cause of the herniation. He explained that claimant could not have continued activity for very long with such a large herniation. In his deposition, Dr. Robb stated that he personally examined claimant as well as reviewed the records of Dr. Herzberger and all of the records of the three chiropractors. It was his opinion that claimant's herniation was a combination of a long series of traumas to the two discs over many years beginning in 1980. He stated that neither the incident of June 29 nor the lifting incident at home on June 19, 1986 was the cause but both were only contributing factors to this continuing injury process. He placed some significance on the June 29, 1986 incident by stating as follows with reference to shoveling at work: "The mechanics of what he was doing would be more apt to trip it off than walking down the street or ... just standing and looking straight ahead and lifting." Claimant also testified that prior to June 29, 1986 he was quite athletic and participated in long distance running and physical fitness programs. He stated that he regularly runs today but less extensively and works out with only 25 pound weights. Claimant testified that his only past employment other than at ADM was as a car wash attendant. Claimant had earlier attended college in 1980 with the assistance of a state vocational rehabilitation agency. Claimant stated at the hearing that he is 38 years of age. Jan Paulson of a state rehabilitation agency submitted a letter which indicated that a neck problem would be significant for claimant who needs to rotate his head to avoid being totally dependent upon lip redoing. However, Dr. Herzberger testified that the location of claimant's fusion would not restrict his neck rotation, only his flexion and extension movements. Claimant's appearance and demeanor at the hearing indicated that he was testifying truthfully. APPLICABLE LAW AND ANALYSIS 1. Claimant has the burden of proving by a preponderance of the evidence that claimant received an injury which arose out of and in the course of employment. The words "out of" refer to the cause or source of the injury. The words "in the course of" refer to the time and place and circumstances of the injury. See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). An employer takes an employee subject to any active of dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited therein. MINNER V. ADM PAGE 5 It is not necessary that claimant prove his disability results from a sudden, unexpected traumatic event. It is sufficient to show that the disability developed gradually or progressively from work activity over a period of time. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1965). The McKeever court held that the date of injury in gradual injury cases is the time when pain prevents the employee from continuing to work. In McKeever the injury date coincides with the time claimant was finally compelled to give up his job. In the case sub judice, claimant obviously had difficulty with reliance upon the opinions of Dr. Herzberger as that doctor was not fully aware of claimant's past history of back problems. The undersigned would disagree that this is evidence of a so-called intentional deception on the part of the claimant. Claimant's contention that the incident of June 29, 1986 was significantly different than anything he had experience in the past is borne out by his actions. Never before had he missed work or reported a work injury and never before had the problem been so extensive and lasted so long. The views of Dr. Robb, who was fully aware of claimant's past history, support the finding of a work injury on June 29, 1986 under the theory of cumulative trauma. Although the June 29 incident was not the only factor which precipitated surgery and the impairment, it was a substantial contributing factor. This is ail that is requires to make the disability compensable despite a long series of both work related and not work related traumas. Claimant was not absent from work until after the June 29, 1986 incident and he left work soon thereafter. If we were to place a highly technical application of the McKeever rule to the facts of this case, the injury date probably should be a few days later when claimant actually left work. However, the plead injury date is very close in time to the actual time of leaving work and use of such a date would not be a material deviation front the McKeever rule. Therefore, claimant has shown by a preponderance of the evidence a work injury on June 29, 1986. II. The claimant has the burden of proving by a preponderance of the evidence that the work injury is a cause of the claimed disability. A disability may be either temporary or permanent. In the case of a claim for temporary disability, the claimant must establish that the work injury was a cause of absence from work and lost earnings during a period of recovery from the injury. Generally, a claim of permanent disability invokes an initial determination of whether the work injury was a cause of permanent physical impairment or permanent limitation in work activity. However, in some instances, such as a job transfer caused by a work injury, permanent disability benefits can be awarded without a showing of a causal connection to a physical change of condition. Blacksmith v. All-American, Inc.,Co, 290 N.W.2d, 288 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 288 N.W. 2d 181 (Iowa 1980). The question of causal connection is essentially within the domain of expert medical opinion. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion of experts need not be couched in definite, positive or unequivocal language and the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). The weight to be given to such an opinion is for the finder of fact, and that may be MINNER V. ADM PAGE 6 affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Furthermore, if the available expert testimony is insufficient alone to support a finding of causal connection, such testimony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. Aase Haugen Homes, Inc. 259 Iowa 1065, 146 N W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish compensability the injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith, 290 N.W.2d 348, 354. In the case of a preexisting condition, an employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). In the case at bar, the uncontroverted views of Dr. Herzberger and Dr. Robb establishes that claimant suffered a 7 to 10 percent permanent partial impairment to the body as a whole as a result of the June 29, 1986 work injury and resulting surgery. III. Claimant must establish by a preponderance of the evidence the extent of weekly benefits for permanent disability to which claimant is entitled. As the claimant has shown that MINNER V. ADM PAGE 7 the work injury was a cause of a permanent physical impairment or limitation upon activity involving the body as a whole, the degree of permanent disability must be measured pursuant to Iowa Code section 85.34(2)(u). However, unlike scheduled member disabilities, the degree of disability under this provision is not measured solely by the extent of a functional impairment or loss of use of a body member. A disability to the body as a whole or an "industrial disability" is a loss of earning capacity resulting from the work injury. Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A physical impairment or restriction on work activity may or may not result in such a loss of earning capacity. The extent to which a work injury and a resulting medical condition has resulted in an industrial disability is determined from examination of several factors. These factors include the employee's medical condition prior to the injury, immediately after the injury and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985). Claimant has been given a significant permanent impairment rating to the body as a whole. However, more importantly from an industrial disability standpoint are his activity restrictions which would restrict the type of work he could perform and affect his earning capacity. What is somewhat unclear in this case is claimant's actual functional limitations apart from any percentage of impairment. Dr. Herzberger imposed no specific work restrictions. Claimant testified that Dr. Herzberger was aware that he was to return to light duty work. Claimant also testified that he modified his work at ADM after the return to work so that he was able to remain on the job. Dr. Herzberger indicates that claimant was at risk of reinjury and pain from heavy work due to the damage to his nerve roots. Consequently, Dr. Herzberger encouraged claimant's decision to seek further schooling in an effort to change vocations. Such evidence supports a finding that claimant probably could but should not return to heavy duty work in the future to avoid back pain and reinjury. Claimant is 38 years of age and should be at the prime of his work career. However, due to the work injury he is now attempting to launch a new career late in life which may or may not be successful. At the present time his economic future is highly uncertain and depends largely upon his ability to retrain himself. Claimant is motivated to better himself and his attending college. Defendants argue that it is likely that claimant's earning capacity will increase upon completion of his college education. However, this agency has decided that an assessment of future success of retraining is improper in an industrial disability case. Such an assessment is too speculative. It is only claimant's present earning capacity which is measured in awarding permanent disability benefits. At this point in time, MINNER V. ADM PAGE 8 it is too much to assume that claimant will complete college and obtain suitable high paying employment upon a completion of this education. See Stewart v. Crouse Cartage Co., Appeal Decision filed February 20, 1987; Umphress v. Armstrong Rubber Co., Appeal Decision filed August 27, 1987. Therefore, claimant's present industrial disability will be fully compensated. Certainly if claimant's educational efforts eventually prove successful, this agency is available upon proper petition by defendants to review this award at a later time. After examination of all the factors, it is found as a matter of fact that claimant has suffered a 40 percent loss of earning capacity from his work injury. Based upon such a finding, claimant is entitled as a matter of law to 200 weeks of permanent partial disability benefits under Iowa Code section 85.34(2)(u) which is 40 percent of 500 weeks, the maximum allowable number of weeks for an injury to the body as a whole in that subsection. Claimant is entitlement to healing period benefits as resolved by stipulation of the parties. FINDINGS OF FACT 1. Claimant was a credible witness. 2. On June 29, 1986 claimant suffered an injury to his neck which arose out of and in the course of his employment with ADM. The injury consisted of a herniated disc at two levels in the cervical spine. The events of June 29, 1985, consisting of a sharp pain upon shoveling wet cracked corn, was a combination of a long series of minor traumas and cumulative injuries over several years dating back to 1980. These injuries involved the neck and upper back and right arm, most of which were a result of lifting at ADM, along with other non-work related injuries such as a fall at home in 1984 and a lifting incident on June 19, 1986. However, at no time prior to June 29, 1986 did any injury cause a loss of work or a substantial reduction in functional activity. The shovel incident on June 29, 1986 was a trigger and a substantial precipitating factor leading to the need for fusion surgery to relieve pain and regain loss of function to the neck and to the right upper extremity. 3. The work injury of June 29, 1986 was a cause of a seven to ten percent permanent partial impairment to the body as a whole and of permanent restrictions consisting of an avoidance of repetitive heavy lifting. 4. The work injury of June 29, 1986 and resulting permanent partial impairment was the cause of a 40 percent loss of earning capacity. Claimant is 38 years of age and appears to possess above average intelligence. Although claimant returned to work and was able to perform the work, claimant had to modify his work activities to avoid pain and continue working. Given his fusion surgery, claimant should restrict his future employment to light work to avoid risk of reinjury and recurrence of pain due to permanent nerve damage. Claimant is currently unemployed but is attending college in an attempt to retrain himself. He expects to graduate with a business degree in December, 1989 but his graduation and success in locating suitable work is not assured. MINNER V. ADM PAGE 9 CONCLUSIONS OF LAW Claimant has established by a preponderance of the evidence entitlement to the permanent partial disability benefits awarded below. ORDER 1. Defendants shall pay to claimant two hundred (200) weeks of permanent partial disability benefits at the rate of three hundred forty-one and 79/100 dollars ($341.79) per week from March 14, 1987. 2. As stipulated, defendants shall pay to claimant healing period benefits from June 16, 1986 through March 13, 1987 at the rate of three hundred forty-one and 79 dollars ($341.79) per week. 3. Defendants shall pay accrued weekly benefits in a lump sum and shall receive a credit as stipulated in the prehearing report for past payment of benefits. 4. Defendants shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 5. Defendants shall pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. 6. Defendants shall file activity reports upon payment of this award as requested by this agency pursuant to Division of industrial Services 343-3.1. Signed and filed this 30th day of August, 1988. LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. John J. Wolfe, Jr. Attorney at Law 230 4th Ave. S. Clinton, Iowa 52732 Mr. Matthew J. Brandes Attorney at Law 1200 Merchants National Bank Bldg. Cedar Rapids, Iowa 52401 1803 Filed August 30, 1988 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER STEVEN W. MINNER, Claimant, vs. File No. 828393 ADM, A R B I T R A T I O N Employer, D E C I S I O N OLD REPUBLIC INSURANCE CO., Insurance Carrier, Defendants. 1803 Claimant awarded a 40 percent industrial disability. It was held pursuant to agency precedent that speculation as to the success of claimants educational pursuits was not a factor to be considered in assessing claimant's current industrial disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JOHN DALE SHEEHY, Claimant, File No. 828483 VS. DUBUQUELAND DRYWALL, INC., A R B I T R A T I 0 N Employer, D E C I S I 0 N and AETNA CASUALTY & SURETY, Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by the claimant, John Dale Sheehy, against his employer, Dubuqueland Drywall, Inc., and its insurance carrier, Aetna Casualty & Surety, to recover benefits as a result of an injury sustained on July 17, 1986. This matter came on for hearing before the undersigned deputy industrial commissioner in Dubuque, Iowa, on December 1, 1988. The record in the proceeding consists of the testimony of the claimant, John Dale Sheehy, and of joint exhibits A through 0, and defendants' exhibit 1. Pursuant to the prehearing report, the parties stipulated that an employer-employee relationship exists; the injury arose out of and in the course of employment; if an injury is found to be causally connected, it is stipulated to be an industrial disability to the body as a whole; that the date of injury is July 17, 1986; that all requested medical benefits have been paid; and that there will be credit for benefits already paid for 10 3/7 week healing period totaling $3,152.27, and 25 weeks of permanent partial disability benefits totaling $7,556.50 which have been based on a rate of $302.26 although as shown thereafter, the rate is in dispute. ISSUES The issues remaining for resolution are: 1. Whether there is a causal connection to the disability; 2. The extent of temporary total disability/healing period. SHEEHY V. DUBUQUELAND DRYWALL, INC. Page 2 3. The extent of any permanent partial disability and the commencement date; and,. 4. The rate of compensation (the dispute involves the determination of gross wages upon which to apply the rate). REVIEW OF THE EVIDENCE Claimant testified that he was injured on July 17, 1986 while employed by defendant. Claimant indicated that while claimant and a co-worker were lifting 240 pounds of drywall sheets off defendant's forklift, claimant felt a tear and burning sensation in his back. Claimant said that the next morning he could not get out of bed and had severe pain in his low back. He then went to the Mercy Hospital emergency room that day. Claimant stated he was off work because of this injury from July 18, 1986 through October 6, 1986 when Dr. Cairns released claimant for light duty work with restrictions. The claimant testified that he was also off work from April 3, 1987 through sometime in September 1987 due to a layoff. Claimant testified that he then went to work for a full service contractor doing more variety of construction work than with defendant. Claimant stated he still had pains and was not able to do much bending upon his return to work, but acknowledged that he was working as much, as hard, and even doing more variety of construction work since his return to work in 1987 to the October 1988 injury. Claimant testified that he was allowed to use some of the employer's tools and materials on other types of jobs not connected with defendant after his regular daily hours of employment with defendant.' Claimant estimated the value of the materials used at $140 and the use of the tools at $30 during the seven months prior to the injury on July 17, 1987. Claimant acknowledged that his typical day before his October 1988 injury and since he returned to work in September 1987 involved "significant bending and twisting, but he was in pretty good shape at the end of the day." In October 1988, claimant said that he was injured and has filed a workers' compensation action and is receiving workers' compensation benefits through his employment with Tri-North Builders. Claimant said this new injury is also in the low back but to a different disc. Claimant is not presently working and hasn't since this new October 1988 injury. Claimant has been paid at the rate of $302.26 for 10 3/7 weeks healing period resulting from his July 17, 1980 injury amounting to $3,152.27, and 25 weeks of permanent partial disability amounting to $7,556.50. SHEEHY V. DUBUQUELAND DRYWALL, INC. Page 3 R.Scott Cairns, M.,D.,.first treated claimant from July 21, 1986 until July 7, 1987. Dr. Cairns stated that the findings upon which he based claimant's rating of impairment at 5 percent were "he had objective evidence of mechanical difficulties in his back, and I have evidence of sciatic nerve irritation, and with the passage of time I have developed radiological findings of deterioration of one of the disks and measurable atrophy were the permanency findings upon which I based my determination." He opined, "I think more likely the injury was an injury to the disk, the L-4, 5 disks." Cairns opined the condition of claimant was caused by the injury of July 17, 1986. Dr. Cairns couldn't recall but he thought he eventually lifted the weight restrictions but did not have that reflected in his notes. Dr. Cairns testified that: Certainly people who have had a disk injury, I would generally tell them to ' avoid heavy lifting on a permanent basis, but most employers would not be very happy taking someone back who has some specific restrictions placed on them on any permanent basis, so I don't know what I can really actually testify to exactly what I did in this case. (Cairns Deposition; Joint Exhibit N, page 10) Dr. Cairns said by heavy lifting, he meant "to limit their lifting to fifty pounds or less." The doctor recommended that claimant "avoid occupations which require repetitive bending, twisting or lifting" and that these recommendations be permanent. APPLICABLE LAW AND ANALYSIS Iowa Code section 85.34(l) provides that if an employee has suffered a personal injury causing permanent partial disability, the employer shall pay compensation for a healing period from the day of the injury until (1) the employee returns to work; or (2) it is medically indicated that significant improvement from the injury is not anticipated; or (3) until the employee is medically capable of returning to substantially similar employment. By the very meaning of the phrase, a person with a "permanent disability" can never return to the same physical condition he or she had prior to the injury .... See, 2 A. Larson, The Law of Workmen's Compensation section 57.12 (1981). The healing period may be characterized as that period during which there is reasonable expectation of improvement of the disabling condition," and ends when maximum medical improvement is reached. Boyd v. Hudson Pulp & Paper Corp., 177 So.2d 331, 330 (Fla.1965). That is, it is the period "from the time of the injury until the employee is as far restored as the permanent SHEEHY V. DUBUQUELAND DRYWALL, INC. Page 4 character of his injury will permit. "Winn Drilling Company v. Industrial Commissioner, 32 Ill.2d 144, 145-6, 203 N.E.2d 904,905-6 (1965). See also W. Schneider, Schneider's Workman's Compensation, section 2308 (1957). Thus, the healing period generally terminates "at the time the attending physician determines that the employee has recovered as far as possible from the effects of the injury. Winn, 203 N.E. at 906 . Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60, 65 (Iowa 1981). Iowa Code section 85.34(2) provides that compensation for permanent partial disability shall begin at the termination of the healing period. Iowa Code section 85.34(2)"u" provides that compensation for a nonscheduled or body as a whole injury shall be paid in relation to 500 weeks that the disability bears to the body as a whole. Claimant was off work from the July 17, 1986 injury from July 18, 1986 through October 6, 1986 when he returned to light duty and defendants paid claimant 10 3/7 weeks of healing period benefits amounting to $3,152.27. There is a dispute as to the period of time between April 3, 1987 to sometime in September 1987 in which the claimant seeks a second healing period. The claimant alleges that the employer laid the claimant off because the defendants heard claimant was going to file a claim for workers' compensation benefits. This evidence is not only weak hearsay, but, in fact, claimant was able to work and had been released by Dr. Cairns for light work on September 22, 1986. Claimant had gone back to work and was actively working again for defendant on October 6, 1986 until his layoff in April 1987. An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(l). As a claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." The opinion of the supreme court in Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963) at 1121, , cited with approval a decision of the industrial commissioner SHEEHY V. DUBUQUELAND DRYWALL, INC. Page 5 for the following propcsition: Disability * * * as defined by the Compensation Act means industrial disability, although functional disability is an element to be consid-ered . . . In determining industrial disability, consideration may be given to the injured employee's age, education, qualifications experience and his inability, because of the injury, to engage in employment for which he is fitted. * * * * Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. This is so as impairment and disability are not synonymous Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial disability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation;.the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of SHEEHY V. DUBUQUELAND DRYWALL, INC. Page 6 total, motivation five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial disability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985 , Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985). Dr. Cairns determined claimant had a 5 percent impairment to the body as a whole. Claimant is a 32 year old high school graduate whose employment over the years since graduation has been in the construction field. He is a carpenter and drywaller by trade. He also has performed his trade as a self-employed person. During some of his eleven years of employment with the defendant, claimant did odd jobs in his field after his normal workday hours with the defendant. When Dr. Cairns released claimant on September 22, 1986 for light duty, with a 50 pound or less weight restriction, claimant went back to work and discovered he was able to lift 60 pounds which was one-half of a normal piece of sheetrock drywall. Prior to his injury, he could lift one piece of sheetrock weighing 120 pounds. Claimant's weekly gross earnings were similar to his earnings prior to his injury. Dr. Cairns testified that claimant should avoid heavy lifting and limit his lifting to 50 pounds or less and avoid occupations which require repetitive bending, twisting or lifting, on a permanent basis. The claimant did in fact return to an occupation with another employer which involved the same type of work claimant performed for defendant, plus more variety in carpentry construction. Claimant performed his work until he was again injured on October 13, 1988 and has not worked since this date. Taking all the evidence into consideration, claimant has an industrial disability in the amount of 20 percent. Claimant's healing period is July 18, 1986 through October 6, 1986. Claimant has not carried his burden of proof that there was sufficient other monetary income or its equivalent received from defendant employer that would increase the rate of $302.26. The parties agreed that notwithstanding this dispute, the amount in question would be diminutive for the most part. SHEEHY V. DUBUQUELAND DRYWALL, INC. Page 7 FINDINGS OF FACT 1. Claimant was injured while.working for defendant employer on July 17, 1986. 2. As a result of his July 17, 1986 injury, claimant has a permanent impairment. 3. Claimant has incurred a loss of earning capacity of 20 percent as a result of his injury. 4. Claimant's healing period ended when he returned to work on October 7, 1986. 5. The weekly benefit rate is $302.26. CONCLUSIONS OF LAW THEREFORE, it is concluded: Claimant's injury of July 17, 1986 arose out of and in the course of his employment. Claimant has sustained an industrial disability of 20 percent to the body as a whole as a result of his injury of July 17, 1986. Claimant's healing period ended October 6, 1986. Claimant is entitled to healing period benefits for the period commencing July 18, 1986 through October 6, 1986. ORDER THEREFORE, it is ordered: Defendants shall pay claimant eleven and four-sevenths (11 4/7) weeks of healing period benefits at the rate of three hundred two and 26/100 dollars per week. Defendant shall pay claimant one hundred (100) weeks of permanent partial disability benefits at the rate of three hundred two and 26/100 dollars ($302.26) per week from October 7, 1986. Defendants shall be given credit for ten and three-sevenths (10 3/7) weeks of healing period benefits for the period July 18, 1986 through September 28, 1986 in the amount of three thousand one hundred fifty-two and 27/100 dollars ($3,152.27) and twenty-five (25) weeks of permanent partial disability in the total amount of seven thousand five hundred fifty-six and 30/100 ($7,556.30) already paid, SHEEHY V. DUBUQUELAND DRYWALL, INC. Page 8 Defendants shall pay medical travel expense reimbursement in the amount of six and 16/100 dollars ($6.16). Defendants shall pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. Defendants shall file an activity report upon payment of this award as required by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 14th day of February, 1989. BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Francis J. Lange Mr. Paul J. Kaufman Attorneys at Law 750 Cycare Plaza Dubuque, IA 52001 Mr. Larry L. Shepler Attorney at Law Ste 102, Executive Sq. 400 Main St Davenport, IA 52801 1802; 1803 Filed February 14, 1989 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER JOHN DALE SHEEHY, Claimant, File No. 828483 VS. DUBUQUELAND DRYWALL, INC., A R B I T R A T I 0 N Employer, D E C I S I 0 N and AETNA CASUALTY & SURETY, Insurance Carrier, Defendants. 1802; 1803 Claimant injured his back while lifting 240 pounds of drywall sheets with his coworker. Doctor opined a 5% impairment to the body as a whole and recommended avoiding heavy lifting (50 pounds or less) and avoid occupations which require repetitive bending, twisting or lifting on a permanent basis. Twenty percent disability found. Page 1 before the iowa industrial commissioner ____________________________________________________________ : DANIEL ARNEY, : : Claimant, : : vs. : : File No. 828511 FISHER CONTROLS, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CIGNA, : : Insurance Carrier, : Defendants. : ____________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration upon claimant's petition filed June 16, 1988. Claimant allegedly sustained an injury to his back on October 17, 1985 while picking up leaves at work. He now seeks benefits under the Iowa Workers' Compensation Act from defendant employer Fisher Controls and defendant insurance carrier Cigna. Hearing on the arbitration petition was had in Des Moines, Iowa, on July 21, 1989. The record consists of claimant's exhibit 1, joint exhibits 1 through 19 and the testimony of the following witnesses: claimant, Colleen Arney, James Arney, Gary Howard, Camella Smith and Larry Jones. issues Pursuant to the prehearing report, the parties have stipulated: that an employment relationship existed between claimant and Fisher Controls at the time of the alleged injury; that if claimant has sustained permanent disability from a work injury, it is an industrial disability to the body as a whole and the commencement date for permanent partial disability benefits is October 21, 1986; that the appropriate rate of weekly compensation is $374.59; that defendants are entitled to credit under Iowa Code section 85.38(2) in the sum of $1,873.30. Issues presented for resolution include: whether the claimant sustained an injury arising out of and in the course of his employment on October 17, 1985; whether the alleged injury caused permanent or temporary disability and the extent of each; the extent of claimant's entitlement to compensation for medical benefits; whether this claim is Page 2 barred under affirmative defenses set forth under Iowa Code sections 85.23 and 85.26; taxation of costs. findings of fact On October 17, 1985, claimant was working in a boiler house. Some of his duties included picking up leaves in a small bucket. Claimant has a history of back complaints for which he has sought treatment. Claimant has a history of surgery to the cervical spine. In any event, while cleaning leaves, claimant apparently suffered some sort of an incident that he described as involving a sharp pain like an ice pick in his back. Although claimant did not immediately report the incident, he advised company nurse Camella Smith on November 14, 1985, that he had sustained such an incident on October 17. Ms. Smith agreed in her testimony that she was aware on this date that the incident occurred while claimant was at work. Defendant's absentee records reflect that claimant was .3 of an hour tardy on October 18 and absent on October 23 and 30, November 2 (4 hours), and November 12, and again on December 14 (3.8 hours), and December 18, 1985, in addition to numerous occasions through July 15, 1986. Claimant alleges that most of these absences were due to back pain he relates to the leaf-gathering incident, but conceded that he gave different excuses when calling in sick. Claimant was treated by Joel A. Beane, D.C., with spinal adjustments on October 18 and November 13 and 22, 1985. Although Dr. Beane's chart notes of October 18, 1985 do not mention any work incident, subsequent entries of November 29, 1985 and January 22, 1986, indicate that Dr. Beane was aware of the leaf incident at the time. Claimant advised his wife when he returned home on October 17 that he had injured his back while bending and lifting leaves (as per the testimony of Colleen Arney, although she may have actually been told on the following day since they worked different shifts). Based on the foregoing, it is found that claimant did suffer some nature of incident involving sharp pain to his back while picking up leaves in the course of his employment with Fisher Controls on October 17, 1985. Claimant saw Robert A. Hayne, M.D., on July 15, 1986. Dr. Hayne is a board-certified neurosurgeon and testified by deposition taken December 3, 1988. Claimant presented with a serious back problem which resulted in a lumbar laminectomy on July 31, 1986. However, claimant did not mention the October incident in his history, complaining to Dr. Hayne only of recurrent pain with symptoms on this occasion dating back three weeks to when he was carrying a tractor part with four other people, following which pain radiated to the back of his upper thighs and persisted. Dr. Hayne opined that claimant's current condition of disability resulting from back surgery was causally related Page 3 to the incident of carrying a tractor part, that opinion being within a reasonable degree of medical certainty. Dr. Hayne specified that claimant did not give history of the leaf incident in July, 1986. Dr. Hayne indicated that his opinion as to causation was based on the history of July 15 and the "absence at that time of any history of strain of his back other than that." He thought it was significant that claimant had sustained such a severe herniation because, given that severity, it was natural that the patient would seek medical treatment in a short period after onset of pain (this being some nine months after the work incident). It was only in September, 1986 that claimant contacted Dr. Hayne to allege that pain developed during the leaf incident, but even then this was described as occurring about three weeks before the tractor lifting incident. A review of Dr. Beane's notes did not convince Dr. Hayne otherwise. Rather, he found the history of frequent treatments in 1986 would confirm his own theory of causation. Claimant testified that he discussed his history in depth with Dr. Hayne, agreeing that he had lifted a plastic sprayer tank at Gary Howard's shop, but denied that he had actually hurt himself on this occasion, indicating he felt no pain when he actually lifted a sprayer tank (weighing some 75-100 pounds) in conjunction with three or four other people. Similarly, Gary Howard and James Arney testified that, while claimant carried a sprayer tank with three or four others, he did not then give any indication that he had hurt himself and Colleen Arney claimed never to have heard of that incident. What remains unexplained is the question of why claimant, after having suffered a back injury severe enough to require major surgery, gave Dr. Hayne a history of injuring himself while carrying a tractor part (at a time consistent with when he did carry the sprayer tank) which he now claims resulted in no pain or injury at all, yet did not mention the work incident which he now claims caused his injury. The clear answer to this observer is that claimant in fact injured himself while lifting a tractor part or sprayer (whether he did or did not contemporaneously advise his friend, brother and wife) as he advised Dr. Hayne. Any testimony now to the contrary is without credibility. The seriousness of his injury and the likelihood that such an individual would seek prompt treatment is consistent with the history claimant gave and inconsistent with the claim that the injury actually occurred some nine months earlier (and not reported to the employer until the next month). conclusions of law Claimant has the burden of proving by a preponderance of the evidence that he received an injury on October 17, 1985 which arose out of and in the course of his employment. Page 4 McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The claimant has the burden of proving by a preponderance of the evidence that the injury of October 17, 1985 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 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). It has been found as fact that claimant suffered some sort of an incident on October 17, 1985. However, due to his lack of credibility as a witness, he has failed to establish any causal nexus between that incident and any temporary or permanent disability. The only medical opinion as to causation is that claimant's condition of disability relates to an incident when he lifted a tractor part (or, as claimant says, perhaps a sprayer tank) several weeks before July 15, 1986. Whatever incident claimant may have sustained in October 1985 has not been proven to be a compensable work injury. Claimant has not shown either temporary or permanent disability causally related to that incident. Defendants have also asserted affirmative defenses under Iowa Code sections 85.23 and 85.26. Although unnecessary to the resolution of this matter, those defenses will be briefly discussed for the parties' benefit. Under Iowa Code section 85.23, notice of the occurrence of an injury must be given within 90 days from the date of that injury. Although claimant did not allege at the time that he had sustained a compensable injury, it is clear that he gave notice of the work incident to Camella Smith on November 14, 1985. This constitutes sufficient notice under section 85.23. Iowa Code section 85.26 requires commencement of an Page 5 action based on a work injury within two years from the date of the occurrence. Since this action was commenced on June 16, 1988, it is clearly untimely. However, the "discovery rule" has been adopted with respect to the two-year statute of limitations in workers' compensation cases. Orr v. Lewis Cent. School Dist., 298 N.W.2d 256 (Iowa 1988). That is, the two-year period in which to file a claim does not start running until the worker should know his injury is both serious and work connected; in making that determination, the agency should apply a reasonable-person standard and take into account the intelligence and education of the claimant. Robinson v. Dep't of Transp., 296 N.W.2d 809 (Iowa 1980). Claimant attributes much lost work to the claimed back injury. His wife testified that claimant constantly complained and was so severely impaired that he would even fall to the ground if he sneezed. If these allegations were to be accepted as factual, any reasonable person of at least average intelligence (claimant seemed to be of no less) would believe the injury to be serious. Since this was a traumatic incident that occurred at work, a reasonable person would also conclude it was work connected. Therefore, the discovery rule is not applicable to avail claimant. The two-year bar under section 85.26 is a valid defense. order THEREFORE, IT IS ORDERED: Claimant shall take nothing from this proceeding. Costs of this action shall be assessed to claimant pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this ______ day of ____________, 1990. ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Theodore R. Hoglan Attorney at Law 34 South First Avenue Marshalltown, Iowa 50158 Mr. E. J. Giovannetti Attorney at Law Suite 111, Terrace Center 2700 Grand Avenue Des Moines, Iowa 50312 Page 6 1402.30 Filed August 20, 1990 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : DANIEL ARNEY, : : Claimant, : : vs. : : File No. 828511 FISHER CONTROLS, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CIGNA, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 1402.30 Claimant had a minor lifting incident at work, but lost no time and did not report it until one month later. Nine months later, he presented to a physician with a severe back injury (one which would prompt most people to seek medical care quickly) and gave history of a recent non-work incident, which he later denied in his testimony. Held: claimant lacked credibility and failed to establish compensable work injury causally related to his disability.