1200 Filed July 21, 1988 DEBORAH A. DUBIK BEFORE THE IOWA INDUSTRIAL COMMISSIONER BARBARA GRAY, Next of Friend, of Candice Tincher, A Minor Claimant, File No. 830216 vs. D E C I S I O N CASTLEROCK CONSTRUCTION, O N Employer, E Q U I T A B L E and A P P O R T I O N M E N T AETNA CASUALTY AND SURETY, Insurance Carrier, Defendants. ------------------------------- BRIGITTE TINCHER, Individually and on Behalf of ANGELO DAVID SITZMAN and MARLON LEE SITZMAN, vs. BARBARA GRAY, Next Friend of Friend of CANDICE A. TINCHER, A Minor, CASTLEROCK CONSTRUCTION COMPANY, employer and THE AETNA CASUALTY AND SURETY COMPANY, 1200 In a proceeding to determine the apportionment of compensation benefits payable as a result of the death of Lyle Tincher which arose out and in the course of his employment, it was determined that his natural child and surviving spouse were conclusively presumed dependants under Iowa Code section 85.42. In addition, decedent lived with his surviving spouseOs two children who were found to have been principally supported by decedent and also found to have been conclusively dependent on decedent under Iowa Code section 85.42. Therefore, it was determined that the surviving spouse and the natural child were each entitled to a 30 percent share of the weekly compensation payable and the two step-children were each entitled to a 20 percent share. BEFORE THE IOWA INDUSTRIAL COMMISSIONER BARBARA GRAY, Next of Friend, of Candice Tincher, A Minor Claimant, File No. 830216 vs. D E C I S I O N CASTLEROCK CONSTRUCTION, O N Employer, E Q U I T A B L E and A P P O R T I O N M E N T AETNA CASUALTY AND SURETY, Insurance Carrier, Defendants. ------------------------------ BRIGITTE TINCHER, Individually and on Behalf of ANGELO DAVID SITZMAN and MARLON LEE SITZMAN, vs. BARBARA GRAY, Next Friend of CANDICE A.TINCHER, A Minor, CASTLEROCK CONSTRUCTION COMPANY, employer and THE AETNA CASUALTY AND SURETY COMPANY, STATEMENT OF THE CASE This is a proceeding to determine the apportionment of compensation benefits payable as a result of the death of Lyle E. Tincher which arose out of and in the course of his employment. This matter came on for hearing before the undersigned deputy industrial commissioner July 7, 1988. The record was considered fully submitted at the conclusion of the hearing. The record in this matter consists of the testimony of Barbara Ellen Gray, now Lewis, Candice Ann Tincher, and Brigitte Tincher; and joint exhibits 1 through 30, inclusive. ISSUES The issues in this matter are how the benefits resulting from the death of Lyle Tincher should be apportioned, at what rate, and whether interest on the benefits is to be awarded. GRAY V. CASTLEROCK CONSTRUCTION PAGE 2 FACTS PRESENTED Barbara Ellen Gray, now Lewis, testified the decedent, Lyle Tincher, was her first, of four, husbands. She explained she and Lyle were married January 27, 1973 and had one child, Candice Ann Tincher, born March 19, 1973. Barbara explained the two separated in approximately November 1973 and a decree of dissolution of marriage between she and Lyle was entered June 25, 1974. By stipulation of settlement filed by the Ida County District Court on the same date, Lyle was required to pay child support for Candice Ann Tincher in the amount of $60 per month. Barbara's second and current husband is Ricky Lewis with whom she has one child that resides with Barbara's mother who, in return for her care, is paid $100 per month by Ricky and $60 per month by Barbara. Barbara explained she and Candice currently reside with Mr. Lewis at his home but do not contribute to any house payments. She testified their funds are not co-mingled with Ricky's stating "what's his is his and what's mine is mine." Barbara, who has work experience as a bartender, waitress, nurse's aide and unit secretary, testified she is currently employed at Casey's as pizza manager and brings home approximately $450 per month. She offered that from this amount she pays approximately 80 percent of the grocery bill for the household, the utility bills (electric, phone, water, sewer, etc.), all car expenses on her 1982 Chevrolet S10 pickup truck including the car loan, health insurance and her own personal student loan. She explained that prior to Candice's receipt of social security benefits, funds were also expended for Candice but that funds were so limited that few, if any, "extras" could be provided. She testified there is no money left at the end of the month. Up until the time of her current marriage, Barbara explained she received approximately $58 per month in social security benefits. She testified Candice now receives approximately $280 per month in social security benefits, all of which is used for Candice's expenses and if anything remains, it is placed in a savings account which has a current balance of $580. She explained Candice has medical problems with her bladder, menstrual cycle, back and nerves, and needs special corrective glasses that have required changing approximately,every six months at a cost of between $218 to $250 each time they are changed. Barbara acknowledged that Lyle was not prompt in making child support payments and that the payments were, at best, erratic and that as a consequence she received ADC payments at certain periods of time. She felt the relationship after the divorce was friendly and that Lyle maintained contact with Candice. Although she acknowledged she never tried, through a legal proceeding, to increase the amount of child support payments, Barbara explained that approximately three weeks prior to Lyle's death they had agreed on an increase in the amount of support although no figure was mentioned. Candice Ann Tincher testified she is currently 15 years old and about to enter her sophomore year of high school where she is an average student. She expressed an ambition to attend college and eventually to work as a counselor for the hearing impaired. GRAY V. CASTLEROCK CONSTRUCTION PAGE 3 Candice explained she has a learning disability with regard to reading and comprehension and that she has health problems with her bladder, menstrual cycle, back, nerves and eyes. Brigitte Tincher testified she met David Sitzman while he was in the army in West Germany, that they were married in 1975, had one son, Angelo, currently age 12, and that she and David divorced in 1979. David was to pay $275 per month in child support payments but never did and Brigitte explained that that amount was modified to $100 per month plus $50 per month back support in 1984. She acknowledged these payments, as modified, are current. Brigitte has another son, Marlon, age seven, to whose father she was not married and whose paternity was established by court action. She testified she receives $90 per month in child support for Marlon and acknowledged these payments, too, are current. Brigitte stated she married Lyle March 17, 1985, after they cohabited for a period of seven or eight months. She explained that since the time of their marriage, all funds have been co-mingled and jointly used for all household and personal expenses of herself, Lyle, Angelo and Marlon, including rent, vehicle loans, educational and medical expenses, food and utilities. Brigitte testified that she opened a checking account which was intended to be jointly held, but because Lyle was often gone from home and it was difficult to get his signature, only her name is printed on the checks. Brigitte explained that Lyle, most often, would have sent her his entire paycheck or partial check if he had to keep some of the money for expenses and that upon receiving the check she would deposit the sums into the account from which she paid all bills and expenses. Brigitte, who works as a nurse's aide part time, and has experience working in a packing plant, also deposited her salary into the same account. Brigitte and Lyle filed joint tax returns and claimed only Angelo and Marlon as dependents. Candice was not claimed. Brigitte, Angelo and Marlon each receive $280 per month in social security benefits. Joint Exhibit 30 establishes that at the time of Lyle Tincher's death, Aetna claims representative, Larry Camp, calculated decedent's rate of compensation to be $329.25 per week. Based upon a proportionment share of child support payments to gross weekly wages, $9.19 per week was paid to the benefit of Candice Tincher and the remaining amount of $320.06 per week was paid to Brigitte Tincher. Benefits, as prorated, were timely commenced. Benefits were so paid until September 15, 1987, when Deputy Industrial Commissioner Helen Jean Walleser ruled that the sums due on account of the death of Lyle Tincher be held by defendants in escrow for the benefit of interested persons. Pursuant to the order, defendants held the benefits due in escrow in the vault at the law firm of Duncan, Jones, Riley and Finley. In response to a request that funds be placed in an interest bearing account, counsel for defendants filed an application to escrow funds on or about April 1, 1988. That application was granted but the issue of interest was held in abeyance pending hearing on the matter. Thereafter, defendants attempted to contact counsel for claimants who could not or would not reach an agreement that accruing of funds in any interest bearing account would eliminate any further claim for interest beyond that accruing in the account. Since April 29, 1988, all weekly indemnity checks have been timely issued and made jointly payable to Mrs. Brigitte Tincher and the clerk of court for GRAY V. CASTLEROCK CONSTRUCTION PAGE 4 Woodbury County on behalf of Candice Ann Tincher. APPLICABLE LAW Iowa Code section 85.43 provides: If the deceased employee leaves a surviving spouse qualified under the provisions of section 85.42, the full compensation shall be paid to the surviving spouse, as provided in section 85.31; provided that where a deceased employee leave a surviving spouse and a dependent child or children the industrial commissioner may make an order of record for an equitable apportionment of the compensation payments. If the spouse dies, the benefits shall be paid to the person or persons wholly dependent on deceased, if any, share and share alike. If there are none wholly dependent, then such benefits shall be paid to partial dependents, if any, in proportion to their dependency for the periods provided in section 85..31. If the deceased leaves dependent child or children who was or were such at the time of the injury, and the surviving spouse remarries, then and in such case, the payments shall be paid to the proper compensation trustee for the use and benefit of such dependent child or children for the period provided in section 85.31. Iowa Code section 85.42 provides, in part: The following shall be conclusively presumed to be wholly dependent upon the deceased employee: 1. The surviving spouse .... .... 2. A child or children under eighteen years of age, and over said age if physically or mentally incapacitated from earning, whether actually dependent for support or not upon the parent at the time of the parent's death. An adopted child or children shall be regarded the same as issue of the body. A child or children, as used herein, shall also include any child or children conceived but not born at the time of the employee's injury, and any compensation payable on account of any such child or children shall be.paid from the date of their birth. A stepchild or stepchildren shall be regarded the same as issue of the body only when the stepparent has actually provided the principal support for such child or children. Iowa Code section 85.31 provides, in part: 1. When death results from the injury, the employer shall pay the dependents who were wholly dependent on the earnings of the employee for support at the time of the injury, during their lifetime, compensation upon GRAY V. CASTLEROCK CONSTRUCTION PAGE 5 the basis of eighty percent per week of the employee's average weekly spendable earnings, commencing from the date of death as follows: a. To the surviving spouse for life or until remarriage, provided that upon remarriage two years' benefits shall be paid to the surviving spouse in a lump sum, if there are rio children entitled to benefits. b. To any child of the deceased until the child shall reach the age of eighteen, provided that a child beyond eighteen years of age shall receive benefits to the age of twenty-five if actually dependent, and the fact that a child is under twenty-five years of age and is enrolled as a full-time student in any accredited educational institution shall be a prima facie showing of actual dependency. Iowa Code section 85.44 provides: In all other cases, a dependent shall be one actually dependent or mentally or physically incapacitated from earning. Such status shall be determined in accordance with the facts as of the date of the injury. In such cases if there is more than one person, the compensation benefit shall be equally divided among them. If there is no one wholly dependent and more than one person partially dependent, the compensation benefit shall be divided among them in the proportion each dependency bears to their aggregate dependency. Iowa Code section 85.49 provides: When a minor or mentally incompetent dependent is entitled to weekly benefits under this chapter, chapter 85A or 85B, payment shall be made to the clerk of the district court for the county in which the injury occurred, who shall act as trustee, and the money coming into the clerk's hands shall be expended for the use and benefit of the person entitled to it under the direction and orders of a district judge. The clerk of the district court, as trustee, shall qualify and give bond in an amount as the district judge directs, which may be increased or diminished from time to time. If the domicile or residence of the minor or mentally incompetent dependent is within the state but in a county other than that in which the injury to the employee occurred the industrial commissioner may order and direct that weekly benefits be paid to the clerk of the district court of the county of domicile or residence. If the domicile or residence of such minor or mentally incompetent dependent be outside the state of Iowa the industrial commissioner may order and direct that benefits to such minors or incompetents be paid to a guardian, conservator, or legal representative duly qualified under the laws of the jurisdiction wherein GRAY V. CASTLEROCK CONSTRUCTION PAGE 6 the minors or incompetents shall be domiciled or reside. Proof of the identity and qualification of such guardian, conservator, or other legal representative shall be furnished to the industrial commissioner. Iowa Code section 85.30 provides: Compensation payments shall be made each week beginning on the eleventh day after the injury, and each week thereafter during the period for which compensation is payable, and if not paid when due, there shall be added to the weekly compensation payments, interest at the rate provided in section 535.3 for court judgments and decrees. ANALYSIS Of primary concern is which parties are entitled to share in benefits payable as a result of the death of Lyle Tincher. Under Iowa Code section 85.42, the surviving spouse and children under 18 years of age, whether actually dependent for support or not upon the parent at the time of the parent's death are conclusively presumed dependents. This provision is thus applicable to Brigitte Tincher as the surviving spouse and Candice Ann Tincher as decedent's child. A more difficult question arises with regard to Angelo David Sitzman and Marlon Lee Sitzman. Pursuant to the industrial commissioner's decision in Ostwinkle v. M. P. Kluck & Sons, 33 Biennial Report of the Industrial Commissioner 12 (1977), Angelo and Marlon would not be entitled to benefits so long as there are other dependents receiving benefits unless it is shown Iowa Code section 85.42 is also applicable to them. To make such a determination, it is necessary to focus on the situation at the time of decedent's death. Kramer v. Tone Bros., 198 Iowa 1140, 199 N.W. 985 (1924). Angelo and Marlon can be conclusively dependent under Iowa Code section 85.42 "only when the stepparent has actually provided the principal support..." Brigitte receives approximately $240 per month in child support payments for the support of Angelo and Marlon. She, herself, contributed little to no income to the household in 1985 and less than one-half of the income during 1986 (which was her largest income year as a result of temporary employment with the Hormel plant as a strike replacement worker). All funds in the Tincher household (i.e. Lyle and Brigitte) were co-mingled and used to pay all household and personal expenses of all household members regardless of family origin. This included Marlon's and Angelo's medical and educational expenses. Clearly, these Sitzman children relied on the wages of Lyle Tincher as neither the child support payments nor Brigitte's wages met the expenses Brigitte established the family had. Decedent had gross weekly wages of $557.83. Savings were minimal at the time of his death. It cannot reasonably be disputed that the principal source of support for this family came from decedent's wages. Therefore, it is accepted decedent was providing the principal support for the Sitzman children at the time of his death and that they, too, are entitled to share in the benefits. The focus now turns to how the benefits will be GRAY V. CASTLEROCK CONSTRUCTION PAGE 7 apportioned. Brigitte Tincher, as surviving spouse, will be awarded 30 percent of the weekly benefits. This amount shall not change until such time as Candice Ann Tincher is no longer eligible to receive benefits at which time Brigitte will be entitled to a 60 percent share. Candice Ann Tincher will also receive a 30 percent share with no change in that percentage to occur as long as she is eligible to receive benefits. Angelo David Sitzman and Marlon Lee Sitzman will each receive a 20 percent share. The parties have stipulated to a gross weekly wage of decedent of $557.83 and that his marital status was married at the time of his death. What is an issue then is the allowable number of exemptions. Decedent's tax records establish that a joint tax return was filed and that two exemptions, Angelo and Marlon, were claimed. Decedent did not claim Candice as a dependent. However, testimony also establishes that Barbara did not claim Candice as a dependent. The industrial commissioner addressed a problem similar to that presented herein in Biggs v. Charles Donner, Appeal Decision filed April 22, 1982. In Biggs, claimant was living with his second wife and her two children. He had three biological children from the previous marriage whom he was under court order to support although he was not doing so. The commissioner found claimant could claim his natural children as exemptions for rate purposes thus concluding that claimant was entitled to a rate calculated on a marital status with five GRAY V. CASTLEROCK CONSTRUCTION PAGE 8 exemptions. Therefore, with Biggs as precedent, benefits will be awarded computed on a marital status of married with three exemptions. The final issue to be determined is whether or not any interest is to be awarded on these benefits. A review of the evidence presented by defendants on this issue establishes defendants have made every effort to pay the benefits when they were due and that for a substantial period of time the defendants were unable to receive the appropriate documentation and information from any representative of Brigitte Tincher when she refused to speak with defendants directly. in addition, efforts made by defendants to communicate with claimant's original counsel proved fruitless. For 33 weeks, the checks were held in escrow pursuant to an order of a deputy industrial commissioner. Subsequent to that time, all checks have been issued jointly payable in order to assure that no party's interests were prejudiced. Iowa Code section 85.30 provides that interest on compensation is appropriate if the benefits are not paid "when due." It is clear in this case that defendants have made every effort to and have issued all checks timely and have made every effort to deliver them to the appropriate persons. Claimants, themselves, have not been able to properly cooperate with defendants and defendants should not be penalized for claimants' inaction. Concomitantly, claimants should not be rewarded. Therefore, no interest will be awarded. FINDINGS OF FACT Wherefore, based on all the evidence presented, the following findings of fact are made: 1. Lyle Tincher's death on August 14, 1986 arose out of and in the course of his employment. 2. Brigitte Tincher was married to Lyle Tincher at the time of his death. 3. Brigitte Tincher has two children, Angelo David Sitzman and Marlon Lee Sitzman, who were not biological children of decedent but who lived with decedent and Brigitte Tincher in the same household. 4. Brigitte Tincher received child support payments from the biological fathers of her children. 5. Brigitte Tincher and Lyle Tincher filed joint tax returns and claimed Angelo and Marlon as dependents thereon. 6. Brigitte Tincher and Lyle Tincher co-mingled all funds and from these amounts paid all household and personal expenses of all household members regardless of family origin. 7. Lyle Tincher provided the principal support for Angelo and Marlon Sitzman. 8. Prior to his marriage to Brigitte, decedent was married to Barbara Ellen Gray, now Lewis. GRAY V. CASTLEROCK CONSTRUCTION PAGE 9 9. The issue of the marriage between decedent and Barbara is Candice Ann Tincher, who currently resides with her mother in Correctionville, Woodbury County, Iowa. 10. The decedent's support of Candice Ann Tincher was erratic. 11. Decedent had gross weekly wages of $557.83. 12. Defendants have made every effort to pay benefits when due. CONCLUSIONS OF LAW Wherefore, based on the principles of law previously stated, the following conclusions of law are made: 1. Brigitte Tincher, Candice Ann Tincher, Angelo David Sitzman, and Marlon Lee Sitzman are conclusively presented to be dependents of decedent under Iowa Code section 85.42. 2. The proper rate of compensation in this matter is $342.53. 3. An award of interest is not proper in this case. ORDER THEREFORE, IT IS ORDERED: Defendants are to pay unto Brigitte Tincher weekly benefits equal to thirty percent (30%) of the rate of compensation or one hundred two and 76/100 dollars ($102.76) per week for as long as she is eligible to receive benefits with no change that percentage to occur until such time as Candice Ann Tincher is no longer eligible to receive benefits at which time Brigitte Tincher will be entitled to a sixty percent (60%) share of the benefits. Defendants are to pay unto the clerk of the district court for Woodbury County, acting trustee, for Candice Ann Tincher weekly benefits equal to thirty percent (30%) of the appropriate rate of compensation or one hundred two and 77/100 dollars ($102.77) per week until such time as she is no longer eligible to receive benefits. Defendants are to pay unto the clerk of the district court for Wapello County, acting trustee, for Angelo David Sitzman, weekly benefits equal to twenty percent (20%) of the appropriate rate of compensation or sixty-eight and 50/100 dollars ($68.50) per week until such time as he is no longer eligible to receive benefits. Defendants are to pay unto the clerk of the district court for Wapello County, acting trustee, for Marlon Lee Sitzman, benefits equal to twenty percent (20%) of the appropriate rate of compensation or sixty-eight and 50/100 dollars ($68.50) per week until such time as he is no longer eligible to receive benefits. GRAY V. CASTLEROCK CONSTRUCTION PAGE 10 Should Brigitte Tincher remarry or should a child no longer be eligible to receive benefits, those benefits shall be equally divided among those individuals still eligible to receive benefits at that time. Costs in this matter are assessed equally against the petitioners pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 21st day of July, 1988. DEBORAH A. DUBIK DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. James M. Cosgrove Attorney at Law 1109 Badgerow Bldg P 0 Box 1828 Sioux City, IA 51102 Ms. Lorraine J. May Attorney at Law 404 Equitable Bldg Des Moines, IA 50309 Mr. Fredd J. Haas Attorney at Law 5001 SW 9th St Des Moines, IA 50315 BEFORE THE IOWA INDUSTRIAL COMMISSIONER DELORES A. MORTIMER, Claimant, File No. 830334 vs. A R B I T R A T I O N KEOKUK CONVALESCENT CENTER, D E C I S I O N Employer, F I L E D and MAR 28 1989 LIBERTY MUTUAL INSURANCE CO., INDUSTRIAL SERVICES Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Delores A. Mortimer, claimant, against Keokuk Convalescent Center, employer, and Liberty Mutual Insurance Company, insurance carrier, defendants, for benefits as the result of an injury that occurred on August 9, 1986. A hearing was held in Burlington, Iowa, on February 17, 1989, and the case was fully submitted at the close of the hearing. The record consists of the testimony of Larry E. Mortimer, claimant's husband, Robby Brewer, claimant's son, Delores A. Mortimer, claimant, Leona Varner, employer's administrator and joint exhibits 1 through 12. Defendants ordered a transcript of the hearing and offered to provide the original copy for the industrial commissioner's file. Both attorney s submitted excellent briefs. PRELIMINARY MATTER At the hearing, defendants presented a fax copy of form 2A, supplemental claim activity report and a fax copy of form 2B, supplemental rate information and rate agreement. Both of these forms showed that they were prepared on February 15, 1989. Neither form had been filed in the industrial commissioner's file at the time of the hearing. The parties stipulated that, (1) both forms contained correct data, (2) could be added to the industrial commissioner's file as of the date of the hearing, and (3) could be used in the determination of this case. These two sheets are attached to and made a part of the prehearing report and order approving same dated February 17, 1989. STIPULATIONS The parties stipulated to employer-employee relationship; injury arising out of and in the course of employment; causal connection of both temporary and permanent disability; that claimant's entitlement to temporary disability benefits was not in dispute at this time; that the type of permanent disability was industrial disability; that the commencement date of permanent partial disability benefits is December 1, 1988; that the rate of compensation is $92.26 per week; that medical benefits are no longer in dispute; that defendants make no claim for credit for nonoccupational group health plan benefits prior to hearing; that defendants are entitled to a credit for 118 weeks and 3 days of workers' compensation benefits paid prior to hearing at the rate of $92.26 per week and that there are no bifurcated claims. It was further stipulated that claimant had been paid healing period benefits for 1 week and 2 days from August 10, 1986 to August 18, 1986, and 16 weeks and 1 day of additional healing period benefits for the period from September 10, 1986 through December 31, 1986, and that claimant had been paid 101 weeks of permanent partial disability benefits based upon a 20 percent impairment of the body as a whole. ISSUES The sole issue presented for determination at the time of the hearing was whether claimant is entitled to permanent partial disability benefits, and if so, the amount of benefits to which she is entitled. SUMMARY OF THE EVIDENCE Of all of the evidence that was introduced, the following is a summary of the evidence most pertinent to this decision. Claimant is age 32, married and the mother of three children ages 11, 8 and 5. She graduated from high school in 1974. She graduated from cosmetology school in 1975 and received a certificate to be a beautician, but was never licensed or practiced. She has worked as a waitress. Claimant was in the United States Navy in 1976 for a period of time, but received a general discharge due to family hardship at that time. Claimant attended South Iowa Community College and received a certificate as a nurse's aide in May of 1985. She denied any back problems prior to this injury (exhibit 12; transcript pages 18, 19, 28, 29, 32, 33 & 34). Claimant testified that she was employed by employer as a nurse's aide on August 9, 1986. On that date she injured her back while helping a 150 pound patient get out of bed. The patient's legs gave out, the patient slipped and began to fall. Claimant tried to hold on to the patient as she fell to the floor. Claimant testified that something snapped in her back when she tried to prevent the patient from falling. Claimant reported the injury to employer. She first saw William Schulte, M.D., and was then referred to Dr. John Lee. Claimant was then referred to Rouben Mirbegian, M.D., an orthopedic surgeon, who performed surgery on her back (ex. 12, tr. pp. 18-21). Claimant testified that she returned to work after the surgery in January of 1987 and continued to work as a nurse's aide until May 1, 1987, when she quit because the work was too hard for her back. Claimant testified that after she returned to work she was not able to work a five-day week. She would call in sick on the third or fourth day due to her back (tr. pp. 21 & 22). Claimant testified that she continued to receive physical therapy from Dr. Mirbegian even after she terminated her employment with employer. Claimant said that she last saw Dr. Mirbegian in September of 1988. She has not seen any other doctor since then for anything. She testified that she takes pain pills prescribed by Dr. Mirbegian approximately two times a week. Claimant testified that she has not returned to work as a nurse's aide since she quit. Claimant related that she continues to have problems standing, driving or even riding in a car for a long period of time. She can no longer shovel walks, lift heavy items, work in the garden, bowl, wear tie shoes, wear blouses that button in the back, move furniture, paint, remodel, perform manual labor, mow the grass or wash windows (tr. pp. 23-28). Claimant said that Dr. Mirbegian imposed a 50 pound weight lifting restriction but her own self-imposed weight restriction was 30 pounds. Claimant testified that she has an exercise bike and exercises when she can. After the laminectomy, a postsurgery MRI showed that she has two remaining bulging discs. Claimant testified that she has tried to get jobs in stores, restaurants and through job service. Claimant's answers to interrogatories only specify one job application for a sales clerk job (ex. 12). Claimant denied that she told employer that she quit to care for her mother and denied that she ever cared for her mother after she quit employer. Claimant admitted that she had a 15 year history of depression, since she was approximately age 17. She has not taken any nerve medication for a year. When she has a bout of depression she gets moody and wants to get away from people for a day or so. The periods of depression last for approximately a day or so. Claimant acknowledged that in 1987 and 1988, she had been depressed seven or eight times. She admitted that depression does interfere with her working "a little". She quickly added however, that it was her back and not her depression that kept her from working (tr. pp. 35-39). Claimant denied that either Dr. Mirbegian or defendants' evaluating physician, David J. Boarini, M.D., told her to lose weight. Claimant granted that she had gained about 30 pounds since the injury in 1986. Claimant testified that she is now 5 foot 8 inches tall and weighs 197 pounds (tr. pp. 39 & 40). Claimant testified that at the present time she is a homemaker and that she is raising three small sons (tr. p. 41). Larry E. Mortimer, claimant's husband of eight years, testified that since the injury, claimant cannot bowl, ride a bicycle, clean the house all at one time and she gets upset with the children easily. She cannot shovel the walk, garden, fast dance, or sit in hard chairs. He admitted that claimant was hospitalized at St. Vincent's Hospital in Toledo, Ohio, in June and July of 1980 for chronic depression. She was also hospitalized a second time at St. Charles Psychiatric Floor in Toledo, Ohio, in July and August of 1982 for chronic depression. He testified that she still gets depressed, but not often. He conceded that her depression would affect her ability to perform housework, garden, bowl and dance. Robby Brewer, claimant's son, age 11, testified that since the injury his mother is not able to play baseball with him in the yard, change a tire on an automobile or move the toy shelf. He said that he was born on March 19, 1977, and was 8 years old at the time of the injury. Leona Varner testified that she was employer's administrator on August 9, 1986. She started to work for employer in April of 1986 and left in November of 1986 due to a change in management. She testified that she knew claimant at the time of the injury. Claimant returned to work after the injury in January of 1987 and continued to work performing nurse's aide work for approximately four months until May of 1987. Varner testified that claimant stated, to her and another employee, that she was going to quit to take care of her mother and did not say anything about her back. Claimant then resigned within a week after she made that statement. The witness did not recall how many days per week claimant worked after she returned to work in January of 1987. A summary of the medical evidence is as follows: There are no specific medical reports from Dr. Schulte or Dr. Lee. Dr. Mirbegian admitted claimant to Keokuk Area Hospital on September 15, 1986. A lumbar metrizamide myelogram was done on September 24, 1986. It disclosed a large extradural defect eccentric to the left at the L4-5 interspace which markedly compressed and effaced the exiting nerves on the left and mildly effaced the exiting nerves on the right. A metrizamide enhanced CT scan performed three and one-half hours later revealed a large soft tissue mass at L4-5 which effaced the dural sac and it was markedly eccentric to the left. The L5-S1 and L3-4 interspaces were unremarkable. The radiologist, R.L. Kimmell, M.D., said that his impression was herniated soft disc L4-5 eccentric to the left (ex. 3, pages 5 & 6). Dr. Mirbegian performed a L4, L5 decompression and laminectomy on September 25, 1986 (ex. 3, pp. 8 & 9). He said that claimant recovered quite well and that she could return to work at the beginning of 1987 (ex. 4, p. 15; ex. 2, p. 4). Dr. Mirbegian gave a deposition of April 26, 1988 (ex. 7). He stated that he was a licensed orthopedic surgeon (p. 3). Claimant was referred by her family physician with quite a bit of low back pain going down both legs (p. 4). Diagnostic tests disclosed a big ruptured disc at L4, L5. He did a complete diskectomy on September 25, 1986 (p. 5). Claimant had some recurring back ache and pain and he continued to see her in 1987 and he prescribed physical therapy up to January of 1988 (pp. 6, 7 & 9). Dr. Mirbegian's office notes on October 21, 1986, November 18, 1986, December 16, 1986 and March 12, 1987, show that claimant did well after the surgery. On December 16, 1986, he said she could return to work at the beginning of January of 1987. On March 12, 1987, he said she was doing well, had lost weight, was keeping up her exercises, walked good, had no pain, tingling or weakness in her lower extremities, range of motion was excellent, scar was well healed and he discharged claimant, but said he would like to see her at the end of one year (ex. 2, p. 4). Dr. Mirbegian's next office note is on May 20, 1987. He reported that claimant had called him two or three weeks earlier complaining that her back hurts, mostly on the right buttock. Claimant reported that she experienced pain on the job and had quit her job. The doctor saw claimant in follow-up visits on June 2, 1987, June 30, 1987, July 9, 1987 and August 17, 1987 (ex. 4, P. 14). A magnetic resonance imaging report (MRI) completed by radiologist C.G. Wagner, M.D., on May 21, 1987, reported extradural defects at all three lumbar levels. He found perhaps slight bulging of the annulus at L3, L4 and slight protrusion of the disc material at L5, S1. The defect at L4, L5 could be due to postsurgical scarring and "buckling" of the posterior longitudinal ligament (ex. 4, p. 13). On July 23, 1987, Dr. Mirbegian wrote to the insurance carrier that claimant had a recurrence of her low back pain. She had quit her job and was receiving anti-inflammatory medications and physical therapy again. He said an MRI was performed at St. Mary's Hospital at Quincy, Illinois. It disclosed two additional bulging discs at L3, L4 and L5, S1 which were not visualized on the myelogram in September of 1986 prior to the surgery. Dr. Mirbegian said that he felt that she had acquired these new bulges and the degeneration of disc material since the operation. He did not feel comfortable operating on her, but was treating claimant with physical therapy, anti-inflammatory medications and epidural corticosteroid injections and that she was responding quite well to this treatment. He concluded as follows: Regarding her future disability, due to involvement of the three discs levels and the loss of normal range of motion of her lower back, I strongly believe that this lady definitely will have a 25% permanent impairment of her back. Our plan is to continue her on a nonoperative treatment as long as possible and this will be based on follow up [sic] examination and patient response to the treatments. (ex. 4, p. 12) Continuing on with his deposition, Dr. Mirbegian said that he thought that claimant had a 25 percent impairment of her back which is the same as 25 percent of the whole person using the AMA Guidelines (ex. 7). He said that this 25 percent includes the removal of one disc and two others that showed up on further studies (pp. 10 & 11). He said the injury was consistent with helping patients at the convalescent center (p. 7). His restrictions were not lifting any heavy objects and continuing her exercises to keep her back muscles in shape (p. 8). He felt she could return to work at the beginning of 1987 (p. 9). He had not seen her for several months, since January of 1988, and did not know if she was taking medications or not (pp. 12 & 13). Dr. Mirbegian testified in this deposition that the other two ruptured discs would have been caused by the same event. He explained that they did not show up earlier because the MRI was more precise than the metrizamide lumbar myelogram. He did not believe that she had suffered an intervening accident (pp. 13 & 14). These other two discs did not require surgery (p. 14). Claimant was examined and evaluated by David J. Boarini, M.D., on June 6, 1988, at the request of defendants. He gave a report on June 10, 1988. He said claimant gave a history of feeling her back snap while assisting a patient whose legs had gone out. He traced the history of the treatment for this injury. He added that she does occasional back exercises and takes Darvon when the pain is bothering her. He said claimant was slightly obese and had rather poor muscle tone. Her gait was normal, she could walk on her heels and toes without difficulty and she could squat and rise without problems. The surgical incision was nicely healed. She had normal range of motion of the lower back in all directions. Neurological examination showed normal strength in all muscle groups in the lower extremities. There was a very slight amount of residual L5 hypesthesia on the left side. Reflexes at the knees and ankles were symmetric and physiological. Straight leg raising was negative bilaterally. Dr. Boarini said that claimant had no significant neurological deficit. In fact, her examination was quite normal. A more vigorous exercise program is the only treatment that he could recommend. He gave claimant a 5 to 6 percent permanent partial impairment rating based on the lumbar laminectomy with no neurological deficit. He did not think she could tolerate extremely heavy lifting on a repetitive basis, but he did feel that she could return to work as a nurse's aide (ex. 11, dep. ex. 2). Dr. Boarini gave a deposition on November 3, 1988 (ex. 11) in which he stated that he is a board certified neurosurgeon (p. 4). His curriculum vitae is impressive (ex. 11, dep. ex. 1). He testified that claimant was not very physically fit for someone her age because she does not get enough exercise and is a bit overweight (p. 6). He summarized his physical examination findings in the deposition as described in the foregoing paragraph (pp. 7 & 8). Dr. Boarini said that claimant had no problem from the other two discs based upon his clinical observations because claimant only had back discomfort but no problem in her legs (pp. 8 & 9). He said it was common for a person who has had back surgery to continue to have back pain. He said that he told her that he thought her trouble was that she was overweight and was not pursuing her back exercises (p. 9). Dr. Boarini said that the 5 to 6 percent rating was based on the AMA Guidelines. The Guides suggest a 5 percent impairment rating for a laminectomy with no radicular and no neurological findings. He said that he added 1 percent for the low back pain (p. 11). Dr. Boarini said that he did not restrict her from nurse's aide work. He said that she could do it if she would improve her physical condition, lose some weight and do some regular back exercises (p. 12). The only restrictions that he would impose would be to lose weight and exercise before doing any sort of labor at all. Second, it would not be prudent for her to perform heavy lifting with repetitive bending in factory line work where she has to bend and lift parts. She could lift 100 pounds if she uses the proper lifting techniques, but she could not do it repetitively or while bending over (pp. 15 & 16). Dr. Boarini felt that the impairment evaluation guide published by the American Academy of Orthopedic Surgeons might rate this injury at 10 percent because their rating scale is about twice the AMA Guidelines, (p. 16). The doctor said that he refers to the American Academy of Orthopedic Surgeons guidelines, but doesn't use them when he rates patients because it is concentrated only on orthopedic injuries and does not take into consideration other conditions that need to be rated. As a result it tends to give a higher rating for orthopedic injuries. The orthopedic ratings are not consistent with the whole spectrum of medical illnesses that have to be rated (p. 18). He further stated that the AMA Guides take into account objective findings combined with pain; whereas the orthopedic manual has a specific rating suggested for pain with no objective findings (ex. 19). Donald W. Blair, M.D., examined claimant on August 12, 1987, and October 28, 1987 (ex. 2, pp. 2 & 3). He thought it would be advisable for claimant to consider some other type of work which did not include heavy and repetitive lifting and bending activities. He felt that claimant's residual disability was related to her postoperative status for removal of the ruptured disc at L4, L5 level. He did not think additional surgery was indicated. He concluded, "A permanent functional impairment based on the information which we have reviewed at this time would not be expected to exceed 20% of the body as a whole and with the recommendation that she change to a lighter type of physical work to lessen the possibility of recurrences." (ex. 2, p. 2). Dr. Blair's qualifications to rate claimant were not placed in evidence. Dr. Blair did not comment on whether the L3, L4 or the L5, S1 irregularities were caused by the initial injury on August 9, 1986, or not. APPLICABLE LAW AND ANALYSIS The claimant has the burden of proving by a preponderance of the evidence that the injury of August 9, 1986, is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 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). 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." 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). Initially, Dr. Mirbegian said on July 23, 1987, that he believed this patient had acquired the two new bulges (L3, L4, L5, S1) and the degeneration of the disc material since the operation (ex. 4, p. 12). Then, in his deposition Dr. Mirbegian said that the two new bulges would be caused by the same event, but were not detected by the lumbar myelogram in September of 1986, but were detected by the MRI on May 21, 1987 because the MRI is more precise (ex. 7, p. 13). It should be noted that the CT scan in September of 1986 also failed to pick up the two bulges in question. It would appear that Dr. Mirbegian's later testimony is in conflict and contradicts his earlier medical report. No explanation was given for this inconsistency. Dr. Blair did not address whether the L3, L4 and L5, S1 conditions were caused by the injury of August 9, 1986. He did say claimant's residual disability was related primarily to the postoperative status for removal of the ruptured disc at L4, L5. Dr. Boarini said that he found no clinical evidence for a L3, L4 and L5, S1 condition because claimant had no leg pain. Therefore, claimant did not sustain the burden of proof by a preponderance of the evidence that the defects uncovered by the MRI in May of 1987 were caused by the injury that occurred on August 9, 1986. The evaluation of Dr. Mirbegian and the evaluation of Dr. Blair took into consideration the disc problems at all three levels (ex. 4, p. 12; ex. 7, pp. 7 & 11; ex. 2, p. 3). As a result, the rating of Dr. Mirbegian of 25 percent of the body as a whole and the rating of Dr. Blair of 20 percent to the body as a whole take into account the bulges showing on the MRI at,L3, L4 and L5, S1 and these two opinions must be discounted accordingly as to the percentage of impairment applicable to this injury. Dr. Boarini's rating is more accurate in rating the proven permanent impairment in this case. In addition, Dr. Boarini gave the most satisfactory explanation for his rating. He explained that the Guides to the Evaluation of Permanent Impairment, second edition, published by the American Medical Association suggests a 5 percent rating for anyone who has had a laminectomy with no radicular symptoms and no neurological findings. Dr. Boarini said he added 1 percent for pain and continued discomfort that sometimes follows a lumbar laminectomy (ex. 7, pp. 11 & 12, dep. ex. 1, p. 2). Dr. Boarini's evaluation also is compatible with the evaluation given by other physicians for lumbar laminectomies in other cases. Agency expertise may be employed in determining industrial disability (Iowa Administrative Procedure Act, section 17A 14(5)]. For these reasons Dr. Boarini's opinion is preferred over that of Dr. Mirbegian and Dr. Blair. Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985). Furthermore, a doctor's board certification and other factors contained in a curriculum vitae may accord his testimony greater weight. Reiland v. Pelco, Inc., Thirty-second Biennial Report of the Industrial Commissioner 56, 1975; Dickey v. I.T.T. Continental Baking Co., Thirty-fourth Biennial Report of the Industrial Commissioner 89 (1979). Claimant had not seen Dr. Mirbegian for several months prior to the hearing and was not taking any medication except an occasional Darvon for pain. Claimant did return to work at the convalescent home and performed the job of nurse's aide for approximately four months, from January to May of 1987. Claimant testified that she worked short weeks of only three or four days due to back pain. Varner said this was possible, but she was not aware of it from her observation and recollection. Dr. Boarini thought claimant could perform the nurse's aide job. Dr. Mirbegian never indicated that she could not or should not perform this job. On the contrary, he released her to return to work in the beginning of 1987 without any restrictions, limitations or reservations. Dr. Blair suggested different work without heavy, repetitive lifting and bending. Claimant's job as nurse's aide does require lifting patients and probably bending while lifting them. However, whether a nurse's aide does this on a repetitive basis would depend upon the facts in each case. Claimant did not testify how often she bent and lifted patients in a given day or on the average. Claimant may have been wise to abandon the nurse's aide work in view of the one lumbar laminectomy and the fact that she has two other defects which, while not having developed clinical symptoms, are still detectable on the MRI scan. Nevertheless, claimant did not sustain the burden of proof by a preponderance of the evidence that it was medically necessary to quit her job due to this injury. Apprehension or fear of a possible future injury, unsupported by objective medical evidence, cannot be the basis for impairment or actual disability. This is analogous to the statement that pain, not substantiated by clinical findings is not a substitute for impairment. Waller v. Chamberlain Mfg., II Iowa Industrial Commissioner Report 419, 425 (1981). Varner testified that claimant said that she quit to take care of her mother. Varner testified that claimant did not say that she quit due to her back injury. Claimant did not testify that she told Varner or employer that she quit due to her back injury. Defendants clearly raised the possibility that a portion of claimant's disability is due to her weight and failure to exercise regularly as recommended by both Dr. Mirbegian and Dr. Boarini. Claimant testified that she rode an exercise bicycle sometimes, but she did not say how much. She did not testify as to any other exercise that she was engaged in. She testified that she has gained 30 pounds since 1986 when this injury occurred. She said that she is 5 foot 8 inches tall and weighed 197 pounds at the time of the hearing. Claimant is 32 years old. She is a high school graduate, a graduate of cosmetology school and a graduate of Southeast Iowa Community College with a certificate as a nurse's aide. She has demonstrated that she can learn new areas of endeavor. As a mother of three small children, she employs numerous skills from hard labor to effective people management skills several times daily. At age 32 claimant is young enough to enter a complete new field of endeavor. The feasibility of retraining is a consideration involved in the determination of industrial disability. Conrad v. Marquette School, Inc. IV Iowa Industrial Commissioner Report 74, 78 (1984). It cannot be said that claimant's method of earning a living, that she was performing at the time of the injury and in the past, has been foreclosed to her. Michael v. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218, 220 (app. dec. January 30, 1979). Dr. Mirbegian released her to return to work in January of 1987 and she did perform the work for approximately four months, from January to May of 1987. Dr. Boarini testified that claimant could still return to work as a nurse's aide in his deposition given on November 3, 1988, if she prepared with the proper body conditioning. Claimant testified that she went to job service and inquired about employment at a few places, but did not testify to or demonstrate a determined effort to secure employment. She did not give details on who she had contacted or where she had made job applications. An employee making a claim for industrial disability will benefit by showing a sincere attempt to find work. Hild v. Natkin & Company, I Iowa Industrial Commissioner Report 144 (app. dec. 1981) ; Beintema v. Sioux City Engineering Co. , II Iowa Industrial Commissioner Report 24 (1981); Cory v. Northwestern States Portland Cement Co., Thirty-third Biennial Report of the Industrial Commissioner 104 (1976). Claimant's testimony about her restrictions and limitations in everyday life are not supported by the medical evidence of any of the three physicians who gave evidence in this case, Dr. Mirbegian, Dr. Blair or Dr. Boarini. Dr. Schulte and Dr. Lee did not submit medical reports. Industrial disability can be equal to, less than, or greater than functional impairment. Lawyer and Higgs, Iowa Workers' Compensation--Law & Practice, 13-5, p. 116 and 1988 supplement, page 21. Wherefore, based upon the foregoing considerations and all of the factors used to determine industrial disability, it is determined that claimant has sustained an industrial disability of 20 percent of the body as a whole. FINDINGS OF FACT Wherefore, based upon the evidence presented, the following findings of fact are made. That claimant injured her back while assisting a patient at work on August 9, 1986. That the injury was the cause of a lumbar laminectomy on September 25, 1986. That claimant sustained a 6 percent permanent partial impairment of the body as a whole due to the injury and the resulting lumbar laminectomy. That claimant can return to work and perform her former employment as a nurse's aide if she performs the proper body conditioning and loses some weight. That claimant can be retrained to learn other areas of endeavor. That claimant has sustained a 20 percent industrial disability of the body as a whole. CONCLUSIONS OF LAW WHEREFORE, based upon the evidence presented and the principles of law previously discussed, the following conclusions of law are made. That the injury of August 9, 1986, was the cause of permanent impairment. That claimant is entitled to 100 weeks of permanent partial disability based upon a 20 percent industrial disability to the body as a whole. That defendants are entitled to a credit for 100 weeks of permanent partial disability benefits paid prior to hearing. ORDER THEREFORE, IT IS ORDERED: That no additional amounts are owed by defendants to claimant as a result of this injury. That the costs of this action are charged to claimant pursuant to Division of Industrial Services Rule 343-4.33, except the cost of the transcript, which defendants ordered and offered to pay for at the time of the hearing. 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 28th day of March, 1989. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. James P. Hoffman Attorney at Law PO Box 1066 Middle Road Keokuk, IA 52632-1066 Mr. Walter Johnson Attorney at Law 111 W 2nd St. PO Box 716 Ottumwa, IA 52501 1401, 1402.40, 1703, 1803, 2907 Filed March 28, 1989 WALTER R. McMANUS, JR. BEFORE THE IOWA INDUSTRIAL COMMISSIONER DELORES A. MORTIMER, Claimant, File No. 830334 vs. A R B I T R A T I O N KEOKUK CONVALESCENT CENTER, D E C I S I O N Employer, and LIBERTY MUTUAL INSURANCE CO., Insurance Carrier, Defendants. 1402, 1402.40, 1703, 1803, 2907 The sole issue was entitlement to permanent partial disability benefits. Claimant was awarded 20 percent industrial disability, but had been paid 20 percent industrial disability prior to hearing so netted out nothing and was ordered to pay the costs of this action. BEFORE THE IOWA INDUSTRIAL COMMISSIONER EDWARD E. MILLER, Claimant, File No. 830383 vs. A R B I T R A T I O N HOODS SUPER VALU, D E C I S I O N Employer, and AMERICAN FAMILY INSURANCE GROUP, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Edward E. Miller, claimant, against Hood's Super Valu, employer, and American Family Insurance Group, insurance carrier, defendants, for benefits as a result of an alleged injury on August 15, 1986. On August 23, 1988, this case was heard by the undersigned in Storm Lake, Iowa. The case was considered fully submitted at the completion of the hearing. The record consists of the testimony of claimant, the testimony of Stanley Thorpe, a vocational specialist, the testimony of John Hood, claimant's exhibits 1-3, employer's exhibit A and joint exhibits 1-6. ISSUES The issues presented by the parties at the time of the prehearing and hearing are whether claimant received an injury which arose out of and in the course of employment; whether there is a causal relationship between the alleged injury and the disability; whether claimant is entitled to temporary disability/ healing period benefits and/or permanent partial disability benefits. FACTS PRESENTED Claimant was employed as a meat cutter in the meat department at defendant's place of business from May 20, 1985 through August 15, 1986, the date of the alleged injury. On that date, claimant was unloading and stocking boxes of chuck roasts. The boxes were piled four or five high. Claimant was lifting an 80 pound box when he felt a sharp pain, like a pin prick, in his back. The next day claimant reported the injury to his supervisor, Dave Nelson, manager of the meat market. Claimant was assigned light duty for that day. Claimant testified his condition worsened over the weekend and he reported his injuries to John Hood, store owner and manager. With the knowledge and consent of defendant, claimant went to the Christensen Chiropractic Center for 13 treatment sessions. claimant returned to work for four or MILLER V. HOODS SUPER VALU PAGE 2 five days after the treatment sessions. However, claimant revealed he was advised by the chiropractor not to return to work. Later claimant was requested by defendants to see Joseph Temple, M.D. Claimant eventually had surgery for a herniated disk. Claimant was refused subsequent employment by defendant, once claimant obtained a release from his physician. John Hood testified claimant had presented work restrictions to him from claimant's physician but there was no position available. APPLICABLE LAW An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(l). Claimant has the burden of proving by a preponderance of the evidence that he received an injury on August 15, 1986 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 IOwa 402, 68 N.W.2d 63 (1955). "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979); McClure, 188 N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). The claimant has the burden of proving by a preponderance of the evidence that the injury of August 15, 1986 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 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, 261 Iowa 352, 154 MILLER V. HOODS SUPER VALU PAGE 3 N.W.2d 128 (1967). The right of a worker to receive compensation for injuries sustained which arose out of and in the course of employment is statutory. The statute conferring this right can also fix the amount of compensation to be paid for different specific injuries, and the employee is not entitled to compensation except as provided by the statute. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). An injury is the producing cause; the disability, however, is the result, and it is the result which is compensated. Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). Functional disability 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, 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 later to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial disability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and MILLER V. HOODS SUPER VALU PAGE 4 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). In Parr v. Nash Finch Co., (Appeal Decision, October 31, 1980) the industrial commissioner, after analyzing the decisions of McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) and Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980), stated: Although the court stated that they were looking for the reduction in earning capacity it is undeniable that it was the "loss of earnings" caused by the job transfer for reasons related to the injury that the court was indicating justified a finding of "industrial disability." Therefore, if a worker is placed in a position by his employer after an injury to the body as a whole and because of the injury which results in an actual reduction in earning, it would appear this would justify an award of industrial disability. This would appear to be so even if the worker's "capacity" to earn has not been diminished. For example, a defendant employer's refusal to give any sort of work to a claimant after he suffers his affliction may justify an award of disability. McSpadden, 288 N.W.2d 181 (Iowa 1980). Similarly, a claimant's inability to find other suitable work after making bona fide efforts to find such work may indicate that relief would be granted. McSpadden, 288 N.W.2d 181 (Iowa 1980). ANALYSIS Claimant is a 49 year old high school graduate who has been primarily employed in the grocery and meat industries. During the course of his employment at defendant's establishment, claimant was required to carry boxes of meat, cut roasts, and chickens, clean and wrap meat, and to engage in meat counter work while standing all day. Claimant earned $6.00 per hour at the time of his injury. He worked at least 40 hours per week. After claimant's injury, he was treated by a number of physicians, physical therapists and chiropractors. In January of 1987, claimant was evaluated by Gene Swanson, M.D., an orthopedic surgeon in Blue Earth, Minnesota. Dr. Swanson performed an . L4-L5 diskectomy on February 13, 1987. Claimant was hospitalized for approximately one week. Four months after the surgery, claimant was experiencing low back pain. He saw Dr. Swanson three times after the surgery. Dr. Swanson in his letter of July 8, 1988 writes: It is my impression that Mr. Miller sustained the herniation of the lumbar disc in a work-related injury on August 15th of 1986. I have previously reviewed and rated his disability level according to the standards applicable for the state of Minnesota. This has resulted in an 11 percent permanent partial impairment rating. It is my understanding that AMA guidelines differ somewhat and result in a somewhat lower rating, MILLER V. HOODS SUPER VALU PAGE 5 however, my impression would be that this individual was involved in a work-related injury in the state of Minnesota, and therefore, the ratings under the Workers' Compensation Permanent Partial disability schedule effective November of 1985 are in force for this individual and would be appropriate. Because of claimant's lack of progress, defendants requested claimant to see J. Michael Donohue, M.D., for purposes of examination, evaluation and possible treatment at the Back Rehabilitation Clinics of America. Claimant was first seen by Dr. Donahue on June 1, 1987. Dr. Donahue recommended treatment in the isokinetic rehabilitation program for a period of six to eight weeks because of weaknesses in the extensor muscles of the lumbar spine. Claimant participated in the therapy program per Dr. Donohue's recommendation. On August 12, 1987, Dr. Donahue evaluated claimant for the fourth time. Dr. Donahue, by way of deposition, testified that as of the above date, he noted: A. What I noted here that -- that -- I put in my note that the patient had been neglecting instructions on warming up and cooling down, which is what we feel an important part of the rehabilitation program, and that also he had moderate variations with respect to peak torque values on the trunk extension-flexion unit. Q. What -- These moderate variations, what did that lead you to believe, if anything? A. Again, that confirmed in my mind that the patient was not giving a maximal effort. And, for an example, the variation present on one of the areas tested between 8-10 and 8-12, which is only two days, was almost 35 percent. Q. What area, Doctor? A. That would be testing and rehabilitating the muscles that flex and extend the spine. This was present in two of the three speeds that he was tested. And again the conclusion when there is greater than a 10 percent variation in a -- in a short period of time like this is that the individual i!3 not giving a maximal effort. Q. Did you begin to discuss the amount of effort he was putting into the program with Mr. Miller on August 12? A. Yes, I did. After examining him again, I noted that -- I reviewed his discrepancies [sic] and related the difficulty that he would have in improving the situation with his current attitude. I also documented that the patient discussed with me that he had a poor attitude with respect to his recovery and admitted that this may be impairing his ability to participate in the program. We were at the point from when we attempted the program of a little over seven weeks with no significant improvement. And based on this as well as my observations during my personal examinations of the patient, I didn't feel that any further rehabilitation MILLER V. HOODS SUPER VALU PAGE 6 would -- would improve his -- his situation. (Joint Exhibit 4, page 24, line 17 to page 26, line 2) Dr. Donahue opined claimant "would have an 80 percent probability of significant improvement if he would have given a maximal effort." (Jt. Ex. 4, page 32, lines 23-24) Dr. Donahue also believed claimant exaggerated his subjective symptoms. Dr. Donahue based his opinion on the positive pain responses he received after he performed Waddell tests for non-organic signs of low back pain. (Jt. Ex. 4, page 33). Dr. Donahue did not believe claimant was a candidate for further surgery. During his deposition, Dr. Donahue was asked under cross-examination to provide an impairment rating. He testified: ... I can give a ballpark -- I would anticipate Mr. Miller's permanent rating to be in the 6 or 7 percent person based on previous lumbar surgery with residuals. Q. Okay. You still felt -- Let me ask it this way: Even if your program would have been 100 percent successful, which apparently it is in some situations, you would not completely have eradicated the physical impairment that Mr. Miller suffered. Is that a fair statement? A. That's correct. Q. So your best hope was to improve it, not to eliminate it. A. That's correct. Q. Even with the optimal result, he'd still have permanent partial impairment as a result of the injury he sustained at the freezer at work. A. That's correct. (Jt. Ex. 4, p. 55, lines 4-21) During redirect examination, Dr. Donahue testified: Q. Mr. Fitzgibbons asked you what the whole body disability rating would be in your opinion as of August -- A. 12th. Q. --12, 1987. Doctor, are you able to express the same opinion had Mr. Miller given a maximal effort to your rehab program? A. Yes. By the AMA guidelines, an individual --That's why I bring the book. On page 57 of the AMA guidelines, "intervertebral disk lesions," operated, disk removed without residuals, 5 percent. So, in other words, as I was saying before, an excellent result after disk surgery carries a 5 percent permanent impairment rating, whereas in Minnesota it's 9 percent for the identical situation. (Jt. Ex. 4, pp. 58-59, lines 21-10) MILLER V. HOODS SUPER VALU PAGE 7 The opinion of Dr. Donahue as to claimant's functional impairment is accorded great weight. While he was not the surgeon in the case at hand, he did examine and treat claimant on four separate occasions. Dr. Donohue's associate, Sue Stave, a physical therapist, saw claimant three times a week for approximately eight weeks. During this time frame, Ms. Stave held weekly conferences with Dr. Donahue concerning the progress of their patients. Various objective tests were given to claimant to determine the extension/flexion of the trunk, as well as five Waddell tests to determine subjective factors. Dr. Swanson, concurred with the rehabilitation which claimant was receiving from Dr. Donahue. Once claimant was seen by Donahue, Dr. Swanson served only a secondary role. Dr. Swanson did write in his letter of September 29, 1987: Mr. Miller was re-evaluated in the office on September 23, 1987. He states that he took the work restriction slip which was given to him by Dr. Donahue as well as by myself a month ago, or so, to his supervisor at the grocery store and the supervisor just laughed at him and told him there was no way that he could come back to work with those types of limitations. To review those limitations, he was limited to 25 or 30 pounds of lifting and not to have to do repetitive bending, stooping, etc. I would feel that it is only reasonable that Mr. Miller be returned to a lighter type of job MILLER V. HOODS SUPER VALU PAGE 8 activity initially, although I anticipate that he may well be able to work into 50 to 60 pound weight restriction eventually. I do not think that is appropriate to do right at the initial onset of his return to work. Secondly, he states that he still has some discomfort in his back, particularly if he stands for a long period at one time or else if he rides in the car for any distance. In my opinion, he remains unable to return to his completely normal work activity, but I do think he could return to work activity of a somewhat lighter nature. In my opinion, further, he would be classified under 5223.0070, Subpart 1, Lumbar spine, B. Herniated intervertebral disc, (2) condition treated by surgery:, (b) average results such as mild increase in symptoms with bending and lifting, mild to moderate restriction of activities related to back and leg pain resulting in an 11% permanent partial disability level. I will be happy to review again in the future as seems necessary and he was scheduled for a functional capacities evaluation in order to put some hard numbers on his exact limitations. Even claimant testified that as far as a release for work, Dr. Swanson reported he would defer to Dr. Donahue. Claimant revealed he had not seen Dr. Swanson since September 29, 1987. Therefore, much weight is given to the seven percent functional impairment rating which was provided by Dr. Donahue. Claimant asserts he has an industrial disability which exceeds any functional impairment rating. At the time of the injury, claimant was earning $6.00 per hour. There is no question defendants refused to place claimant back to work on a light duty basis. Mr. John Hood, in his deposition stated: Q. Now, am I -- is it still your position you would not be willing to have Mr. Miller back to work until he could return to work without any medical restrictions? A. Yes, sir. .... Q. ...Do you really feel that Mr. Miller quit work? A. We felt that there -- after he was in in August, that there probably just was a separation at that time. (Jt. Ex. 6, p. 18, lines 22-25, p. 19, lines 12-14) Neither have defendants offered any type of vocational rehabilitation or counseling to claimant. In anticipation of litigation, claimant hired Stanley Thorpe, a vocational specialist to render an opinion as to claimant's employability. Mr. Thorpe opined there were severe limitations as to claimant's employability in his area of skill. According to Mr.Thorpe, there are now less jobs available to claimant based upon claimant's severe physical limitations in his skill area, and upon the general hesitancy of employers to hire employees with MILLER V. HOODS SUPER VALU PAGE 9 prior back problems. Mr. Thorpe also indicated claimant's lack of education is a hinderance as far as obtaining employment outside of physically demanding occupations. Claimant testified since June of 1988, he has been employed on a part-time basis at Central Graphics in Blue Earth, Minnesota. There he has bundled books and stacked them on pallets for $4.00 per hour. Claimant has been working approximately 60 hours per month for Central Graphics. Claimant also testified he has been employed as a seasonal worker at Green Giant. This is only for a short period of time processing the sweet corn harvest. Claimant stated he has completed several applications for employment. He commenced his job search before Christmas of 1987. His search includes applications at Jack and Jill Grocery Stores, Winnebago Drainage, Olson's Meat Market, Door to Door Grocery, Rodge and Els Red Owl, and Jupper's Super Valu. Claimant may not be as motivated as possible to secure other employment. Claimant, under cross-examination, did reveal that since the date of his injury, he has paneled his mothers living room, pulled weeds, climbed a ladder and supervised a roofing project. Claimant also reported the only medication he is currently taking is an over-the-counter analgesic. In the case at hand, claimant has met his burden of proving that he has an industrial disability greater than the seven percent functional impairment of the body as a whole. Claimant has an industrial disability of 30 percent. Claimant has established there is a loss of earning capacity attributable to the back injury. Claimant has shown there has been a loss of earnings since the 1986 back injury. Claimant is not educated beyond the high school level. He is 49 years old. He has been away from the academic setting. It would be difficult for claimant to begin a college career in order to obtain a sedentary position. Claimant has few skills which can carry over to a sedentary position. FINDINGS OF FACT AND CONCLUSIONS OF LAW WHEREFORE, based on the evidence presented and the principles of law previously stated, the following findings of fact and conclusions of law are made: FINDING 1. Claimant sustained injuries arising out of and in the course of his employment on August 15, 1986. FINDING 2. As a result of the August 15, 1986 injury, claimant had back surgery on February 13, 1987. CONCLUSION A. As a result of the August 15, 1986 injury, claimant has a functional impairment of seven percent of the body as a whole. FINDING 3. Claimant is a 49 year old high school educated man who has limited experience outside of physically demanding employment. FINDING 4. As a result of his August 15, 1986 injury, claimant has only been able to secure part-time temporary MILLER V. HOODS SUPER VALU PAGE 10 employment. CONCLUSION C. Claimant has met his burden of proving he has a 30 percent permanent partial disability. FINDING 5. Claimant was in the healing period from August 15, 1986 to September 28, 1987. CONCLUSION D. Claimant is entitled to 54 weeks of healing period benefits at the rate of $150.00 per week. ORDER THEREFORE, defendants are to pay unto claimant one hundred fifty (150) weeks of permanent partial disability benefits at a rate of one hundred fifty and no/100 dollars ($150.00) per week. Defendants are to pay unto claimant fifty-four (54) weeks of healing period benefits at the rate of one hundred fifty and no/100 dollars ($150.00). Payments that have accrued shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. Costs of this action are assessed against the defendants pursuant to Division of Industrial Services Rule 343-4.33. Defendants shall file a final report upon payment of this award. Signed and dated this 24th day of October, 1988. MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Joseph L. Fitzgibbons Attorney at Law 108 N. Seventh St. P. O. Box 496 Estherville, Iowa 51334 Mr. Bradley B. Howe Attorney at Law 1823 Highway Blvd. P. O. Box 1032 Spencer, Iowa 51301 1803 Filed October 24, 1988 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER EDWARD E. MILLER, Claimant, File No. 830383 vs. A R B I T R A T I O N HOOD'S SUPER VALU, D E C I S I O N Employer, and AMERICAN FAMILY INSURANCE GROUP, Insurance Carrier, Defendants. 1803 Claimant awarded 30 percent industrial disability subsequent to injury of claimant's back. 1802,1803,1086,2207 Filed May 10, 1990 DAVID E. LINQUIST before the iowa industrial commissioner ____________________________________________________________ : DENNIS SANBORN, : : Claimant, : : vs. : : File No. 732672 GRISSEL COMPANY, INC., : 830408 : Employer, : A P P E A L : and : D E C I S I O N : ROYAL INSURANCE COMPANY and : IOWA CONTRACTORS WORKERS' : COMPENSATION GROUP, : : Insurance Carriers, : Defendants. : ___________________________________________________________ 1802, 1803, 1806, 2207 Claimant experienced back problems dating back to 1968. On May 20, 1983 and October 8, 1984, claimant suffered two distinct and separate injuries which resulted in his current condition. Claimant was able to return to defendant's employ following the May 20, 1983 injury. However, the injury resulted in a decline of earning capacity. Following claimant's October 23, 1984 injury claimant had a laminectomy and has experienced difficulties sitting and studying for an extended period. Claimant's lack of motivation adversely impacted upon his overall rating. Claimant's preexisting condition resulted in ten percent permanent partial disability. Claimant's May 20, 1983 injury resulted in twenty percent permanent partial disability and October 8, 1984 injury resulted in thirty percent permanent partial disability. Claimant's industrial disability is 60 percent. The error in computation of healing period was corrected.