BEFORE THE IOWA INDUSTRIAL COMMISSIONER JIM R. BROWN, Claimant, vs File No. 830840 WEITZ COMPANY, A R B I T R A T I O N Employer, D E C I S I O N and EMPLOYERS MUTUAL CASUALTY F I L E D COMPANY, FEB 14 1989 Insurance Carrier, Defendants. INDUSTRIAL SERVICES STATEMENT OF THE CASE This is a proceeding in arbitration brought by claimant Jim R. Brown against defendant employer Weitz Company and defendant insurance carrier Employers Mutual Casualty Company to recover benefits under the Iowa Workers' Compensation Act as the result of an injury sustained on July 15, 1986 (originally set forth in the petition as August 1, 1986). This matter came on for hearing before the undersigned deputy industrial commissioner in Des Moines, Iowa on February 7, 1989, and was considered fully submitted on that date. Claimant appeared by his attorney, I. John Rossi. Defendants appeared by attorney Brian Campbell. The evidence in this case consists of joint exhibits 1 through 10 and the testimony of claimant. ISSUES Pursuant to the prehearing report approved by the deputy, the following issue remains for determination: The extent of claimant's entitlement to weekly compensation for healing period benefits; a related issue to be determined is the commencement date for permanent partial disability benefits. The parties stipulated to: The existence of an employer-employee relationship at the time of the injury; that claimant sustained an injury on July 15, 1986, arising out of and in the course of that employment; that the injury caused temporary and permanent disability; that claimant is entitled to 55 weeks of weekly benefits for permanent partial disability based upon a 25% loss of the leg; that all requested medical benefits have been or will be paid by defendants; and, that defendants paid claimant 73 weeks of compensation at the stipulated rate. REVIEW OF THE EVIDENCE Claimant testified that he is an iron worker by trade. He was employed by Weitz Company on July 15, 1986 when he was injured. The injury that is the subject matter of this proceeding occurred when the claimant climbed into a hole approximately three feet deep while carrying "rebar," otherwise known as reinforcing steel bar. Claimant testified that his leg "gave out" under him, and that he was thereafter unable to stand. However, he testified to "popping" his left kneecap back into position and thereafter being able to continue work. Claimant further testified that he did not seek medical attention until on or about August 11, 1986, but that his leg continued worsening after July 15. He testified that the kneecap popped out of position on several occasions, but that he was able to reposition it himself up to but not including the last occasion. This is what finally caused him to seek medical treatment. Claimant did not return to work after August 11, 1986. He was very shortly referred to his treating physician, Stephen G. Taylor, M.D. Dr. Taylor's records reflect surgery performed on August 18, 1986, based upon a preoperative diagnosis of: (l) torn medial meniscus, left knee; (2) torn anterior cruciate ligament, left knee. Postoperative diagnosis was of displaced bucket handle tear, medial meniscus, left knee and torn anterior cruciate ligament, left knee. Dr. Taylor released claimant to return to work with restrictions effective December 1, 1986. He was restricted "to only ground work." That is to say, he was restricted from the frequent and extensive climbing that is normally necessary in the iron working trade. Claimant further testified that he was unable to return to work on the basis of the restricted release because the employer had no work available for him with those limitations. He also sought further work through his union hall, but the union was unable to place him because of the restriction. Dr. Taylor's records further reflect that he made no further appointments with claimant after November 25, 1986, but that claimant was to return on a "PRN" basis (that is, as the patient deems necessary). Defendant insurance carrier arranged for claimant to have a follow-up examination on June 11, 1987. Dr. Taylor then wrote to Employers Mutual on June 12, 1987 indicating that claimant had never resumed work since his injury, that he continued to complain of discomfort, and that he had several episodes of his knee giving out. Dr. Taylor's examination revealed a full range of motion and no swelling, but definite anterior cruciate ligament laxity of the left knee. Dr. Taylor stated that claimant's return to work remained questionable, but that it would be inappropriate for claimant to work on construction above the ground due to the possibility of falling. Without specifically commenting as to whether claimant had reached maximum medical recovery, Dr. Taylor opined that claimant had suffered a 35% impairment of the left lower extremity as of June 12, 1987. However, Dr. Taylor changed that rating to a 25% impairment on November 23, 1987, when it came to his attention that he had apparently made an error in referring to the American Medical Association Guides to the Evaluation of Permanent Impairment. Dr. Taylor last saw claimant on January 12, 1988. By this time, claimant had already returned to work in the first week of January, 1988 with another employer. Dr. Taylor's restriction as to ground work only had never been lifted, but claimant did not make that restriction known to his new employer. He continues working as an iron worker as of the date of hearing. APPLICABLE LAW AND ANALYSIS As has been seen, the only issue to be determined is the extent of claimant's entitlement to healing period benefits. Pursuant to Iowa Code section 85.34, where an employee has suffered a personal injury causing compensable permanent partial disability, the employer shall pay to him compensation for a healing period beginning on the date of injury and until the employee has returned to work or it is medically indicated that significant improvement from the injury is not anticipated or until the employee is medically capable of returning to employment substantially similar to the employment in which he was engaged at the time of injury, whichever first occurs. Defendants take the position that claimant ended his healing period on December 1, 1986, when he was given a restricted release to return to work. Defendants further point to the fact that claimant was released on a "PRN" basis, leaving it up to him as to when he might return for further treatment. To begin with, it is noteworthy that the record fails to reflect that Dr. Taylor has at any time specifically expressed an opinion as to when claimant reached a point where significant improvement from the injury was not anticipated. The deputy does not accept that merely releasing a patient on a "PRN" basis should be read as medically indicative that significant improvement is not anticipated. Also, it is clear that claimant was not medically capable of returning to employment "substantially similar to the employment in which the employee was engaged at the time of injury." The employment for which he was released was, in fact, so dissimilar that defendant Weitz Company was unable to put claimant to work. As claimant's testimony has made clear, very little "ground work" is available in the iron working trade. That work includes loading or unloading trucks and installing ground floor foundations. Therefore, it is concluded that the release effective December 1, 1986 did not end claimant's healing period. Claimant takes the position that the healing period ended when he actually did return to work in the first week of January, 1988. No doubt this had the effect of ending the healing period if it was still in existence. However, as shall be seen, the deputy concludes that claimant's healing period had already come to an end on June 12, 1987. As has been seen, defendant insurance carrier caused claimant to return to Dr. Taylor for further evaluation on June 11, 1987. A review of Dr. Taylor's June 12, 1987 letter reflects that he again did not specify that claimant had reached maximum medical recovery, but that he did express an opinion as to the extent of claimant's permanent impairment. It is held that when a treating physician expresses an opinion as to permanent impairment, this opinion implies that claimant has reached maximum medical recovery and that the healing period set forth in Iowa Code section 85.34 terminates. Healing period has been defined by the Iowa Court of Appeals as "that condition in which healing is complete and the extent of the disability can be determined." Armstrong Tire & Rubber Company v. Kubli, 312 N.W.2d 60 (Iowa Appeals 1981). Absent any further indication by the evaluating physician that maximum recovery has been or will be reached at another date, the expression of opinion as to permanent impairment includes the implication that maximum recovery has been reached. Therefore, the healing period in this case ended on June 12, 1987. FINDINGS OF FACT THEREFORE, based on the evidence presented, the following ultimate facts are found: 1. Claimant suffered a work-related injury to his left knee on July 15, 1986. 2. Claimant was released to return to work with limitations effective December 1, 1986. 3. The work to which claimant was released was not substantially similar to the employment in which claimant was engaged at the time of his injury. 4. That following an examination of June 11, 1987, claimant's treating physician expressed an opinion as to claimant's permanent impairment on June 12, 1987. 5. Although claimant's physician later expressed a different opinion as to claimant's impairment, the second opinion was merely to correct an error in the first calculation. 6. Claimant returned to work substantially similar to that in which he was engaged at the time of his injury in the first week of January, 1988. 7. Neither claimant's treating physician nor any other physician has ever expressed a definite opinion as to the date upon which claimant reached maximum medical recovery, or that point at which significant improvement from his injury was not anticipated. 8. As stipulated, claimant has suffered a permanent partial impairment of 25% of one leg. CONCLUSIONS OF LAW WHEREFORE, based upon the principles of law previously cited, the following conclusions of law are made: 1. The expression of an opinion by a physician as to an individual's permanent impairment implies that the individual has reached maximum medical recovery as of the date of the opinion. 2. Claimant's healing period for the subject injury began on August 11, 1986 and ended on June 12, 1987. ORDER THEREFORE, IT IS ORDERED: Defendants are to pay unto claimant forty-three point seven one four (43.714) weeks of healing period benefits at the stipulated rate of two hundred twenty-three and 82/100 dollars ($223.82) per week, totalling nine thousand seven hundred eighty-four and 07/100 dollars ($9,784.07). Defendants are to pay unto claimant fifty-five (55) weeks of permanent partial disability [based upon a twenty-five percent (25%) loss of the use of his leg] at the stipulated rate of two hundred twenty-three and 82/100 dollars ($223.82), totalling twelve thousand three hundred ten and 10/100 dollars ($12,310.10). Defendants shall be entitled to credit for seventy-three (73) weeks of compensation paid at the stipulated rate of two hundred twenty-three and 82/100 dollars ($223.82), totalling sixteen thousand three hundred thirty-eight and 86/100 dollars ($16,338.86). The compensation awarded shall be paid to claimant as a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. That any costs of this action shall be assessed to defendants pursuant to Division of Industrial Services Rule 343-4.33. That defendants shall file a Claim Activity Report upon payment of this award pursuant to Division of Industrial Services rule 343-3.1. Signed and filed this 14th day of February, 1989. DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. I. John Rossi Attorney at Law Skywalk Suite 203 700 Walnut Des Moines, Iowa 50309 Mr. Brian L. Campbell Attorney at Law 1100 Des Moines Building Des Moines, Iowa 50309 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : JIM R. BROWN, : : Claimant, : : vs. : : File No. 830840 WEITZ COMPANY, : : A P P E A L Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL CASUALTY : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE Claimant appeals from an arbitration decision awarding permanent partial disability benefits as the result of an alleged injury on July 15, 1986. The record on appeal consists of the transcript of the arbitration proceeding and joint exhibits 1 through 10. Defendants did not file a brief on appeal. ISSUES The issues as stated by claimant are: 1. Are the facts as found by the Deputy Commissioner in error to the prejudice of the Claimant as they do not include reference to Dr. Taylor's statement to the Claimant on January 12, 1988, recommending the need to (by the Claimant) strongly consider anterior cruciate ligament surgery (Exhibit 8)? 2. Are the facts found by the Deputy Commissioner in error to the prejudice of the Claimant as they do not include reference to the contents of the insurance carrier letter to the Claimant dated July 2, 1987? 3. Does the Deputy Commissioner err as a matter of law to the prejudice of the Claimant in the application of Section 85.34(1) to the facts? 4. Does the Deputy Commissioner err as a matter of law to the prejudice of the Claimant in the application of Section 86.13 to the facts? REVIEW OF THE EVIDENCE Page 2 The arbitration decision adequately and accurately reflects the pertinent evidence and it will not be set forth herein. APPLICABLE LAW The citations of law in the arbitration decision are appro-priate to the issues and the evidence. ANALYSIS Claimant urges that the termination date of the healing period was improperly set. The deputy's arbitration decision set the end of the healing period at June 12, 1987. This was the date, established in Joint Exhibit 6, wherein claimant's physician rated claimant's permanent partial impairment. Although the rating was later changed due to an error in calculation under the AMA Guides to the Evaluation of Permanent Impairment, this was the point in time when claimant's physician was able to gauge the extent of claimant's permanent impairment. As the name implies, permanent impairment is not subject to improvement. A rating of permanent impairment indicates that the healing period has ended and further improvement is not anticipated. This satisfies the requirements of Iowa Code section 85.34(1). Claimant relies on a statement by his physician dated January 12, 1988 recommending that claimant consider undergoing anterior cruciate ligament surgery. The fact that claimant may need to undergo further treatment does not mean that claimant is still in his healing period. Claimant's healing period can end and permanency begin with further treatment anticipated at a later time. Surgery may constitute treatment only. It does not automatically indicate that the surgery is designed to improve the condition. There is no indication in the record that further improvement was anticipated after June 12, 1987. Many times surgery is necessary to maintain a condition. Some injuries necessitate further surgery on a regular basis, in some cases for years, even though such surgeries are not designed to improve claimant's condition but rather to treat it. Anticipation of further surgery does not equate with anticipation of further improvement. Claimant further argues that his benefits were improperly terminated by the insurance carrier. Claimant relies on Joint Exhibit 7, a letter dated July 2, 1987, in which the carrier indicates that benefits being paid after December 1, 1986 would be considered permanency benefits. Section 86.13 requires 30 days notice to a claimant before termination of benefits. In this case, claimant's benefits were not terminated. All that occurred was a designation by the insurance carrier as to how claimant's benefits would be subjectively treated by the carrier. Of course, this subjective determination is not binding on this agency, and indeed the deputy found that the permanency did not begin until later, June 12, 1987. Claimant's benefits Page 3 did not end. All that changed was the label the insurance carrier applied to those benefits. Section 86.13 does not require a notice to claimant in such situations. FINDINGS OF FACT 1. Claimant suffered a work-related injury to his left knee on July 15, 1986. 2. Claimant was released to return to work with limitations effective December 1, 1986. 3. The work to which claimant was released was not substantially similar to the employment in which claimant was engaged at the time of his injury. 4. Following an examination of June 11, 1987, claimant's treating physician expressed an opinion as to claimant's permanent impairment on June 12, 1987. 5. Although claimant's physician later expressed a different opinion as to claimant's impairment, the second opinion was merely to correct an error in the first calculation. 6. Claimant returned to work substantially similar to that in which he was engaged at the time of his injury in the first week of January 1988. 7. As stipulated, claimant has suffered a permanent partial impairment of 25 percent of left leg. 8. Claimant's benefits were not terminated by defendants. CONCLUSIONS OF LAW The expression of an opinion by a physician as to an individual's permanent impairment implies that the individual has reached maximum medical recovery as of the date of the opinion. Claimant's healing period for the subject injury began on August 11, 1986 and ended on June 12, 1987. Claimant's benefits were not terminated under Iowa Code section 86.13 and defendants were not required to give claimant notice of a mere change in designation of benefits. WHEREFORE, the decision of the deputy is affirmed. ORDER THEREFORE, it is ordered: That defendants are to pay unto claimant forty-three point seven one four (43.714) weeks of healing period benefits at the stipulated rate of two hundred twenty-three and 82/100 dollars ($223.82) per week, totalling nine thousand seven hundred eighty-four and 07/100 dollars Page 4 ($9,784.07). That defendants are to pay claimant fifty-five (55) weeks of permanent partial disability [based upon a twenty-five percent (25%) loss of use of his leg] at the stipulated rate of two hundred twenty-three and 82/100 dollars ($223.82), totalling twelve thousand three hundred ten and 10/100 dollars ($12,310.10). That defendants shall be entitled to credit for seventy-three (73) weeks of compensation paid at the stipulated rate of two hundred twenty-three and 82/100 dollars ($223.82), totalling sixteen thousand three hundred thirty-eight and 86/100 dollars ($16,338.86). That the compensation awarded shall be paid to claimant as a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. That any costs of this action shall be assessed to defendants including the transcription of the hearing proceeding pursuant to Division of Industrial Services Rule 343-4.33. That defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this ____ day of March, 1990. ________________________________ DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. I. John Rossi Attorney at Law Skywalk Suite 203 700 Walnut Des Moines, Iowa 50309 Mr. Brian L. Campbell Attorney at Law 1100 Des Moines Bldg. Des Moines, Iowa 50309 1802; 4000.1 Filed March 13, 1990 David E. Linquist before the iowa industrial commissioner ____________________________________________________________ : JIM R. BROWN, : : Claimant, : : vs. : : File No. 830840 WEITZ COMPANY, : : A P P E A L Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL CASUALTY : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1802 Claimant received a rating of permanent partial impairment. A later doctor's report recommended surgery. Claimant argued on appeal that his healing period did not end at the time the rating was given, and that the recommendation for surgery indicated his healing period had not ended. Held that a permanent rating is just that--permanent. The condition was not expected to change. Further surgery could be for treatment or maintenance as well as improvement, and absent a showing that further improvement was expected, the healing period ended at the time the permanent rating was given. 4000.1 Claimant sought 86.13 benefits when insurance carrier retroactively redesignated past payments as permanency benefits rather than healing period after receiving doctor's report. Claimant argued that the insurance carrier was required to give him notice before doing so. Held that 86.13 requires notice only for termination of benefits, and a change in subjective treatment of them by the defendant does not constitute a termination. The ultimate treatment of the benefits paid is determined by the agency, not the defendant. As long as benefits continued to be paid, claimant was not harmed by the label attached to them by the defendant. 1802 Filed February 14, 1989 DAVID RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER JIM R. BROWN, Claimant, File No. 830840 WEITZ COMPANY, A R B I T R A T I O N Employer, D E C I S I O N and EMPLOYERS MUTUAL CASUALTY Insurance Carrier, Defendants. 1802 Healing period held to end when treating physician rendered opinion as to permanent impairment. BEFORE THE IOWA INDUSTRIAL COMMISSIONER TIEP NGUYEN, Claimant File No. 830876 vs. A R B I T R A T I O N LUCKY STORES/EAGLE'S, D E C I S I O N Employer, F I L E D and MAR 29 1989 NATIONAL UNION, INDUSTRIAL SERVICES Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by claimant Tiep Nguyen against defendant employer Lucky Stores/Eagle's and defendant insurance carrier National Union to recover benefits under the Iowa Workers' Compensation Act as the result of an injury sustained on May 11, 1986. This matter came on for hearing before the undersigned deputy industrial commissioner in Davenport, Iowa on November 28, 1988. The matter was considered fully submitted at the close of hearing. The parties thereafter submitted briefs in support of their respective positions. The record in the proceeding consists of the testimony of claimant and Mattelean Nguyen along with joint exhibits 1 through 9, inclusive. ISSUES Pursuant to the prehearing report submitted by the parties and approved by the deputy, the parties have stipulated: That an employment relationship existed at the time of the alleged injury; that if the alleged injury caused disability, claimant is entitled to compensation for temporary total disability or healing period benefits from August 19, 1986 through September 27, 1987; that claimant suffered an industrial disability to the body as a whole; that the rate of weekly benefits is $220.30; that if permanent partial disability benefits be awarded, the commencement date is September 28, 1987; that medical benefits have been or will be paid by defendants; that defendants are entitled to credit for compensation voluntarily paid to claimant at the stipulated rate. The issues to be resolved were identified as: Whether claimant sustained an injury on May 11, 1986 arising out of and in the course of his employment; whether the alleged injury caused temporary or permanent disability; the extent to which claimant is entitled to compensation for permanent disability, if defendants are liable for the injury; taxation of costs. REVIEW OF THE EVIDENCE Claimant testified that he is a high school graduate holding an associate of arts degree who now lives in Oklahoma City, Oklahoma. Although he did not testify as to his age, the documentary evidence shows that he is now approximately 26 years old. Claimant began his employment with defendant Lucky stores/ Eagle's in 1978, well before he graduated from high school. At the time of his injury on May 11, 1986, he worked on a part-time basis, but occasionally worked in excess of 40 hours per week. He testified that he earned $10.50 per hour with various fringe benefits. Defendant operates a grocery store where claimant was employed as a bagger, stocker, order filler and cashier trainee. On May 11, 1986, claimant testified that approximately half way through his shift, he was asked by his lead man to pull an empty bottle cart to the back room. The cart started rolling out of control, the rear wheels turned, and claimant slammed his back against a rail, causing immediate pain. He reported the injury and left work for the day. Claimant saw a chiropractor on the following day and was promptly referred to Charlton H. Barnes, M.D. Dr. Barnes' notes indicate that he first saw claimant on May 14, 1986. Claimant testified that,he returned to work for a few days, still had problems, and reinjured his back at work in June, 1986, at which time Dr. Barnes took him off work. Dr. Barnes released claimant to return to work on light duty, and claimant did work for about one week. He had problems with turning, twisting and lifting, and Dr. Barnes eventually referred him to the University of Iowa Hospitals and Clinics. Claimant testified further that he discussed the possibility of surgery with J. M. Hoffman, M.D., and was advised that the chances of success were only 50/50 or so. Further, he testified that William 0. Shaffer, M.D., of the University of Iowa Hospitals and Clinics, advised him following a myelogram that the chances of successful surgery were approximately 60/40. Claimant testified that he underwent the beginning of a physical therapy program at Franciscan Rehabilitation Center, but found the program too heavy. Finally, claimant asked Dr. Barnes to perform surgery, but the record is unclear as to why surgery was not performed. Claimant has not had surgery on his back at the present time, and is reluctant to do so due to fear of a failed procedure and potential complications, including paralysis. Claimant testified that he still suffers pain about every day. Claimant eventually moved to Oklahoma City to look for work, and has obtained a position as a more-or-less permanent substitute worker for an electronics firm hired through a business known as Manpower. He is paid $8.00 per hour, but has no fringe benefits. This position is what claimant has been trained for with his degree in electronics and he works as a troubleshooter, repairing or getting the bugs out of electronic instruments with the use of such lightweight tools as an oscilloscope, pliers, and soldering iron. He began this job on November 18, 1987. Claimant testified to a 20-pound lifting restriction imposed by Dr. Barnes, and a bending restriction. There is some lifting and bending involved in his work, but he avoids it or asks for help. Claimant testified that he has missed seven or more days of work since he began, but has been promoted since he began work. He believes that other employees earn approximately $11.50 per hour, presumably with other fringe benefits, and hopes eventually to be hired by the electronics firm. However, claimant testified that his lifting restriction is a serious impediment to work in the electronics field. Claimant testified that he last saw a physician for his back injury in November, 1987, that he has avoided the use of pain-killing medications for some three to four months, and that he continues a self-administered physical therapy regimen. Claimant also testified that he quit his educational program when it appeared that he would have a good future with employer, but that he returned to school when Dr. Barnes imposed a lifting restriction. He returned to school in the fall of 1986 and dramatically improved his grades in a 10-hour course, gaining honors for his last school term. Claimant testified further that he has searched extensively for further employment, but has been unsuccessful. He believes that this is due to his injury and resulting limitations. Mattelean Nguyen testified that she is claimant's sister, and that they resided together until approximately one year ago when claimant moved to Oklahoma City. She saw him on a daily basis prior to the May 11, 1986 injury. Mattelean Nguyen further testified that claimant suffered from no physical problems prior to his injury, and was active in various high school sports, including basketball, football, track, jogging and weight lifting. She testified that claimant discontinued those activities after his injury, that he is able to do very little physical work to help with the housework, and that his mood has been depressed since his injury. The medical records of Dr. Barnes, along with his deposition, show that he is an orthopaedic surgeon certified by the Board of Orthopaedic Surgery and is a fellow in the American College of Orthopaedic Surgeons. When he first saw claimant, he interpreted an x-ray examination as revealing a spondylolysis at the L4,5 level which he felt was unusual, as he had never seen one in that vertebra. His office notes show that he wrote to an insurance adjustor on November 19, 1986 and at that time diagnosed claimant as suffering from spondylolisthesis at L-4. Noting claimant's history of athletics and that he had worked for the grocery store for a number of years without difficulty, Dr. Barnes expressed his view that the injury was new and related to the work. A notation of September 12, 1987 observed that claimant now wanted a surgical fusion done, although it is unclear why none was performed. In a letter to claimant's attorney of September 16, 1987, Dr. Barnes suggested a probable success rate for surgery of 70%-80%, but probably 80%-90% successful if claimant kept his weight down. From claimant's appearance at hearing, it is evident that he has done so. That letter also reported a "permanent disability rating" of 20%. A notation in Dr. Barnes' medical notes of September 23, 1987, shows that a 20-pound weight restriction was imposed. In Dr. Barnes' deposition taken June 13, 1988, he noted a diagnosis of spondylolysis of L4-5, which he referred to as a "break" or fracture in the back of the L-4 vertebra. He testified that claimant had a 20-pound weight restriction still in effect and a restriction against twisting and lifting. However, he noted that claimant did not have any "slips," so he could even play high school football if he desired. Dr. Barnes indicated that claimant should not do any heavy laboring job, but that his injury was compatible with a pretty good lifestyle. Claimant had a grade I spondylolysis, which could withstand a fair amount of trauma, and by "grade I" indicated that the vertebra had not slipped, or had only slipped 25% of its width. When asked about possible fusion surgery, Dr. Barnes responded: Well, it's a last resort thing. If he can live with it, fine, live with it. If he can't, then he would probably do fine with it. Included in Dr. Barnes' medical records was the report of J. F. Holl, M.D., following tomograms of the lumbar spine. His impression was spondylolysis of L4 due to a bilateral defect in the pars interarticularis. Clinical notes of the University of Iowa Hospitals dated January 22, 1987, by Drs. Simmons and Shaffer note an x-ray impression of spondylolytic spondylolisthesis at L4-5 with instability of L4-5. Those notes indicated that claimant would probably do well with surgery, including a tension band wiring of the defect or a fusion of L4-5. The notes also report: Plan: we agree that the patient that as long as his pain is not severe he is not indicated for surgical intervention. He would need to be off work any where from 3 months to one year following a surgical fusion or a tension band wiring. It is unlikely however that he will be able to return to work doing heavy lifting and repeat bending. He may be a candidate for vocational rehabilitation. He do [sic] activities as tolerated and avoid heavy lifting. He will return to us on a prn basis if he wishes to consider surgical intervention. A May 12, 1987 radiologic consultation report by an unknown physician (due to illegibility of the exhibit) reflects an impression of a spondylolisthesis. An impression of spondylolysis was reached by radiologist R. Farner following an examination of March 3, 1987. Radiologist T. Gleason did a radiological examination on January 22, 1987, and found instability at the L4-5 level. He stated there was spondylolisthesis in flexion at L4-5, and possible spondylolysis at L4. Dr. Gleason noted no fractures. A discharge summary dated March 4, 1987, and signed by Bobbi Farber, M.D., established a.diagnosis of a spondylolytic spondylolisthesis with bilateral pain defect with right nerve root impingement. Also in the record is a one-page document consisting of the office notes of J. M. Hoffman, M.D. They are dated November 18, 1986. His impression of an x-ray review was significant for a spondylolysis of L4-5, but no spondylolisthesis. His further impression: I feel that the patient's symptoms are indeed consistent with symptomatic spondylolisthesis. The spondylolysis was probably present prior to the injury but it is entirely reasonable for this to have been entirely asymptomatic for the previous 24 years until his most recent injury. The record also contains numerous notes from the Work Fitness Center affiliated with Franciscan Medical Center. Numerous entries in the case notes and progress notes indicate that claimant was a reluctant participant in work hardening and that there were some inconsistencies in his self-imposed limitations. Following testing, a report was issued on July 10, 1987, and suggesting certain restrictions against: Lifting from a full squat position; carrying over 20 pounds more than seven feet; pushing and pulling to a maximum of 10 pounds; bending from the waist; stair climbing more than intermittently and self-paced with no load; walking more than a few miles total per day; static squatting; kneeling; crawling; ladder climbing; jumping and running; standing past one minute. However, the recommendations were based upon test results, and also detailed certain inconsistencies in the test procedure. Claimant also saw Robert J. Chesser, M.D., a physiatrist. Dr. Chesser's notes of August 21, 1987 reflect his analysis of x-rays of the lumbar spine as demonstrating bilateral L4 spondylosis without any evidence of spondylolisthesis. A bone scan performed by C. P. Tillman, M.D., reflected a finding of spondylolysis with no associated spondylolisthesis. Claimant was also seen for evaluation by Anthony D'Angelo, D.O. Dr. D'Angelo is an orthopaedic surgeon. His assessment was of chronic lumbosacral strain/sprain. He opined in a letter to an insurance adjustor on October 5, 1987, that a spinal fusion might or might not be of benefit for control of continued pain. His office notes show that he did not recommend for or against surgery, but that this would best be determined elsewhere. APPLICABLE LAW AND ANALYSIS An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). The claimant must prove by a preponderance of the evidence that the injury arose out of and in the course of his employment. Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967)., In the course of employment means that the claimant must prove his injury occurred at a place where he reasonably may be performing his duties. McClure v. Union, et al., Counties, 188 N.W.2d 283 (Iowa 1971). Arising out of suggests a causal relationship between the employment and the injury. Crowe v. DeSoto Consolidated School District, 246 Iowa 402, 68 N.W.2d 63 (1955). The claimant has the burden of proving by a preponderance of the evidence that the injury of May 11, 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 v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962). Claimant testified credibly to a traumatic event that triggered the onset of pain and his subsequent problems. While the parties identified arising out of and in the course of employment and causal connection as issues to be determined, defendants' post-trial brief essentially conceded that point by noting that "the only real issue in dispute between the parties is the extent of claimant's permanent partial disability." Dr. Barnes and Dr. Hoffman expressed opinions tending to show that a causal connection existed between the traumatic event and claimant's symptomatology. No contrary evidence appears of record. It is held that the incident of May 11, 1986 caused an injury (even if preexisting, the incident at least aggravated or "lighted up" the preexisting condition) and that the injury both arose out of and in the course of claimant's stipulated employment relationship. The extent of temporary total disability/healing period to which claimant is entitled has been stipulated, as has the question of medical benefits. Therefore, permanent disability is the issue that remains to be determined. It is clear that claimant has suffered a permanent injury. He still suffers symptoms nearly three years after the incident and still has a substantial restriction as to lifting and twisting. Since it is clear that claimant does have a permanent disability resulting from his injury, the question is to what extent does this permanent disability extend. It has been stipulated that claimant's injury is an injury to the body as a whole. 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, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. This is so as impairment and disability are not synonymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial disability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial disability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985). Claimant is young enough to be retrained, and in fact has been retrained to the extent of earning an associate of arts degree in electronics. As he was approximately 24 years old at the time of injury, it is probable that he has not reached his prime and most productive earning years. While there may be some electronics positions for which he will be unsuited by reason of the restrictions, it seems that electronics as a field of endeavor is an excellent choice for an individual with a permanent back injury. While the physicians have differed somewhat as to the exact diagnosis, it is sufficient to note that claimant suffers an instability to the L4 vertebra and that the injury appears to be of permanent duration. Claimant is currently working as a temporary or substitute employee, and is earning less money than he earned with defendant Lucky Stores/Eagle's. However, he is hopeful of obtaining permanent employment, and given that he is a degree holder and has shown his aptitude through obtaining a promotion, it is likely that he will eventually find full-time electronics work that will be at least equally remunerative as that of his employment with defendant. Nonetheless, the physical restrictions imposed on claimant will have the effect of barring him from a large number of potential employment opportunities. As the notes from the Franciscan Work Fitness Center indicate, claimant is suited for sedentary work at this time. Claimant has suffered a diminution of his earning capacity by reason of the injury. Defendants note in their brief that surgery might well correct or ameliorate claimant's problems. Even though it appears that claimant overstates the danger of failure, the medical records disclose that no physician has recommended surgery, while both Dr. Barnes and Dr. D'Angelo indicate that it is essentially claimant's choice, and Dr. Barnes indicates that this is a reasonable choice. It is worth noting that defendants claim that claimant's back injury is a mild one, based upon Dr. Barnes' opinion that he would be able to withstand trauma, even such severe trauma as might be occasioned by playing high school football. Of course, there is no indication in the record that claimant intended to become a professional athlete. In any event, the ability to withstand trauma is one consideration, but a 20-pound lifting restriction is yet another, and not indicative of such a mild back problem as defendants believe. It is noteworthy that defendants were unable to keep claimant employed, given his limitations. This is a factor tending to show industrial disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). Given generally the record made by the parties and the above considerations in particular, this deputy finds and concludes that claimant has, by reason of his work-related injury, suffered an industrial disability of 25% of the body as a whole, the commencement date for permanent partial disability having been stipulated by the parties to be September 28, 1987. Although the parties stipulated to a rate of $220.30, this was based on an incorrect injury date of August 19, 1986. The schedule published by this office effective July 1, 1985 must be used, not the schedule effective July 1, 1986. Using the correct schedule, claimant's correct rate is $219.64. FINDINGS OF FACT THEREFORE, based on the evidence presented, the following ultimate facts are found: 1. As stipulated, claimant was an employee of defendant Lucky Stores/Eagle's on May 11, 1986. 2. That claimant suffered a traumatic work injury on May 11, 1986, when he lost control of a cart containing empty bottles. 3. That claimant's injury caused him to be disabled for a healing period stipulated to be from August 19, 1986 through September 27, 1987. 4. That physicians have disagreed as to the appropriate diagnosis, but claimant's injury clearly relates to an instability of the L4 lumbar vertebra. 5. That claimant's injury has been stipulated to be an industrial disability to the body as a whole. 6. That claimant's rate of weekly compensation is $219.64. 7. That claimant's work injury has caused him permanent disability and a diminution of his earning capacity. 8. Claimant was a credible witness. 9. Claimant has been given physical limitations by reason of his injury that include no lifting over 20 pounds and against twisting. Claimant also has difficulty with prolonged standing or sitting, and vocational rehabilitation experts have imposed other restrictions, such as against crawling, climbing ladders, squatting, and the like. CONCLUSIONS OF LAW WHEREFORE, based on the principles of law previously stated, the following conclusions of law are made: 1. Claimant suffered an injury arising out of and in the course of his employment on May 11, 1986. 2. Claimant's injury was an injury to the body as a whole. 3. Claimant's injury directly caused a healing period from August 19, 1986 through September 27, 1987 (57.857 weeks) and permanent partial disability. 4. Claimant has established a permanent partial disability of 25% of the body as a whole, the commencement date being September 28, 1987. ORDER THEREFORE, IT IS ORDERED: Defendants are to pay unto claimant fifty-seven point eight five seven (57.857) weeks of healing period benefits at the rate of two hundred nineteen and 64/100 dollars ($219.64) per week totalling twelve thousand seven hundred seven and 71/100 dollars ($12,707.71) and payable commencing August 19, 1986. Defendants are to pay unto claimant one hundred twenty-five (125) weeks of permanent partial disability benefits at the rate of two hundred nineteen and 64/100 dollars ($219.64) per week totalling twenty-seven thousand four hundred fifty-five and 00/100 dollars ($12,455.00) and payable commencing September 28, 1987. Defendants shall be entitled to credit for all compensation paid to claimant as of the date of this decision. Any benefits which have accrued as of the date of this decision shall be paid in a lump sum together with statutory interest pursuant to Iowa Code section 85.30. The costs of this action shall be assessed to defendants pursuant to Division of Industrial Services Rule 343-4.33. Defendants shall file a Claim Activity Report pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 29th day of March, 1989. DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. John J. Wolfe, Jr. Attorney at Law 402 Sixth Avenue South Clinton, Iowa 52732 Mr. Thomas N. Kamp Mr. John D. Telleen Attorneys at Law 600 Davenport Bank Building Davenport, Iowa 52801 1803 Filed March 29, 1989 DAVID RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER TIEP NGUYEN, Claimant, vs. File No. 830876 LUCKY STORES/EAGLE'S, A R B I T R A T I 0 N Employer, D E C I S I 0 N and NATIONAL UNION, Insurance Carrier, Defendants. 1803 Twenty-six-year-old claimant with associates degree in electronics, who lost his,job with defendant employer due to injury and had a 20-pound lifting restriction due to work-related instability of L-4, was awarded 25% permanent partial disability. Page 1 before the iowa industrial commissioner ____________________________________________________________ : SUZANNE C. HOFFMAN, : : File Nos. 831136 Claimant, : 869798 : vs. : A R B I T R A T I O N : SECOND INJURY FUND OF IOWA, : D E C I S I O N : Defendant. : ____________________________________________________________ statement of the case This is a proceeding in arbitration brought by Suzanne C. Hoffman against Fox River Mills, Inc., her former employer, Hartford Insurance Company, the employer's insurance carrier, and the Second Injury Fund of Iowa. At this time, the only claim is against the Second Injury Fund of Iowa as both claims against the employer have been settled and the settlements approved by the Division of Industrial Services. File number 831136, which alleged an injury of August 15, 1986 resulting from cumulative trauma to claimant's left arm, shoulder and neck, was settled through an agreement for settlement under Iowa Code section 86.13(3). Under the settlement, claimant received compensation for a 9 percent permanent partial disability of her left arm. The agreement for settlement included statements that the claimant has sustained a permanent impairment at 9 percent of the left arm and that she has not suffered any impairment to the body as a whole as a result of the August 15, 1986 injury. The settlement was approved by a deputy industrial commissioner on March 30, 1990. File number 869798 alleges an injury resulting from cumulative trauma occurring on November 23, 1987 affecting claimant's right arm, shoulder and neck. An agreement for settlement was entered into which provided claimant with compensation for a 15.5 percent permanent impairment of the right arm. The settlement documents also contain a stipulation that claimant agrees that her injury of November 23, 1987 did not result in impairment to the body as a whole. That settlement was also approved by a deputy industrial commissioner on March 30, 1990. The only issues in this case deal with the claim against the Second Injury Fund of Iowa. Claimant seeks to have her disability compensated industrially based upon two successive injuries under Iowa Code section 85.64. The Second Injury Fund contends that it is not bound by the settlements with regard to whether or not there was an injury which arose out of and in the course of employment, causation or the extent of permanent disability resulting from any injury. The Second Injury Fund contends that Page 2 claimant's condition is an occupational disease which is covered by Chapter 85A of The Code of Iowa and that claimant has no entitlement to benefits from the Second Injury Fund. The Second Injury Fund also contended that, in the event the condition is the result of injury, it is actually one injury, rather than two separate, distinct traumatic occurrences, namely one general overuse syndrome injury, and that therefore the Second Injury Fund has no liability. The case was heard and fully submitted at Des Moines, Iowa on February 26, 1990. The evidence in the case consists of testimony from Suzanne C. Hoffman, Larry Hoffman, DeAnna Tischer, claimant's exhibits 1 through 13, claimant's exhibit 15 and defendants' exhibits A and B. findings of fact Having considered all the evidence received, together with the appearance and demeanor of the witnesses, the following findings of fact are made. Suzanne C. Hoffman is a 40-year-old married woman who is a high school graduate with some cosmetology training. Hoffman's past work experience includes work as a secretary while in high school, work in grocery stores and her work with Fox River Mills which began in July or August of 1982. Fox River Mills is in the business of manufacturing socks and gloves. Shortly after being hired, claimant moved to a job referred to as "seaming" in which she sewed seams into the toes of socks. The job required repetitive use of her hands and arms. Claimant's pay was determined on a piece rate basis. The normal activity of the work was to put the hand into a sock, fold it, pull it out and sew. Suzanne had no problems with her hands or arms prior to commencing work at Fox River Mills. Eventually, however, her right hand began swelling. Initially, the swelling would resolve overnight, but by January, 1986, the swelling became evident early in the work day. Claimant sought treatment from Mark B. Johnson, M.D., an Osage, Iowa family practitioner. Claimant was taken off work from January 31, 1986 and referred to orthopaedic surgeon Thomas F. DeBartolo, M.D. Dr. DeBartolo diagnosed what he considered to be minor problems affecting each of claimant's upper extremities (defendants' exhibit B, pages 4-7, 51 and 52). Dr. DeBartolo authorized her to return to work on February 27, 1986 with a four-week period of gradually restoring her to full-time work (claimant's exhibit 1). Claimant returned to Dr. DeBartolo on September 17, 1986 with left forearm discomfort. He diagnosed claimant as having a compression of the radial nerve. Conservative treatment proved ineffective at resolving her symptoms and on December 9, 1986 Dr. DeBartolo performed a surgical release of the radial nerve. By March 8, 1987, claimant had returned to work at full duty. On follow-up visits, claimant's result from the left arm surgery appeared quite good. Page 3 Claimant saw Dr. DeBartolo again on November 23, 1987 at which time she exhibited symptoms similar to those which had previously affected her left arm (defendants' exhibit B, pages 27 and 28). Surgery on the right arm to release the radial nerve was performed on February 15, 1988. Recovery from the right arm surgery was more extended than from the left arm surgery. Claimant was released to return to work with restrictions on May 11, 1988, but no suitable work was available. Through work with vocational consultant Cecilia O'Brien, claimant did return to part-time work, working four hours per day in approximately October, 1988. A supervisory position for claimant was discussed, but was never offered to her. On November 15, 1988, her employment was terminated. Since that time, claimant has sought work in department stores and grocery stores. She has applied for secretarial positions, sales clerk positions, a bank teller position and a post office position. She has now started her own business cleaning houses. She earns $6.00 per hour, but is only able to work approximately 24 hours per week due to her problems with her hands and arms. Claimant agreed that the surgery on her left arm was relatively successful, but she still experiences a recurring ache in the arm. She stated that her right arm is similar, but that the pain is more constant and runs through her entire arm into her shoulder and fingers. She stated that she has swelling and loss of grip in her right hand. She voiced other complaints. Claimant's permanent impairment has been rated by Dr. DeBartolo as a 13 percent impairment of her right upper extremity (defendants' exhibit B, pages 36-38). He rated claimant as having zero impairment of her left arm, although he acknowledged that with some sophisticated biomedical equipment, there would probably be some detectable loss or impairment affecting claimant's left arm (defendants' exhibit B, pages 29, 30 and 76-78). Dr. DeBartolo was clearly of the opinion that the repetitive work claimant performed at Fox River Mills had caused her radial nerve compression conditions, the need for surgery and the resulting permanent problems (defendants' exhibit B, pages 20, 37, 55, 56, 65 and 66). As early as November of 1987, Dr. DeBartolo had recommended that claimant change occupations (defendants' exhibit B, page 28, lines 15 and 16). He related that she is unable to perform repetitive hand and arm motions (defendants' exhibit B, page 80). Claimant was also evaluated by Waterloo orthopaedic surgeon John R. Walker, M.D. Dr. Walker, after examining claimant, concluded that she has the residuals of an over-use stress type of syndrome affecting her left and right upper extremities, which conditions have been treated fairly successfully by Dr. DeBartolo. He found her to have a bilateral loss of grip strength due to the syndrome. He rated claimant as having an 18 percent permanent partial Page 4 impairment of the left upper extremity and a 22 percent permanent partial impairment of the right upper extremity due to the syndrome and residuals following treatment. Dr. Walker also found claimant to have permanent partial impairment of her cervical spine. Dr. Walker recommended that claimant avoid repetitive motions which require pinching, squeezing, pronation and supination of the forearms or flexion or extension of the wrists, any type of gripping or knife handling jobs or repetitive work (claimant's exhibit 12). In Dr. DeBartolo's deposition, the following conversation appears: Q. Now, I've heard you use the term overuse syndrome, and I've read it also in a report by Doctor Johnson that Mr. Kinsey referred to. Could you tell us what you mean by overuse syndrome? A. Umm, there is good reproducible data that demonstrates that tendon structures undergo a process of injury manifest clinically by the development of inflammation, scarring, altered circulation, so forth, by repetitive loads, and the factors are -- can be best summarized from a simplicity standpoint in terms of the frequency with which the load is applied and the amount or the force of loading. The worst combination is a high force and a high frequency. The least stressful is a low force and a low frequency. How a particular individual is going to respond, there's -- there's a great -- there's a great variation from individual to individual, so when we talk about cumulative trauma, we talk about some type of force being applied in a repetitive manner to a localized area of the body that then becomes manifest in terms of inflammation causing pain or the side effects of inflammation such as nerve compression or the side effects of altered circulation such as cumulative vibratory trauma that leads to altered circulation, so those are the types of problems that we're dealing with. Q. All right. Would you agree then that the bilateral problems and conditions of Mrs. Hoffman that you diagnosed as a bilateral radial nerve compression would fit under that broad category of overuse syndrome? A. Yes. Q. Would you also agree that the bilateral problems that were reported to you and which necessitated surgery were a result of the repetitive use of both her hands, wrists and arms? A. Yes. Q. Would you also agree that the bilateral Page 5 problems that we have discussed as an overuse syndrome manifest themselves on separate occasions when the patient is subjected to the repetitive type of work activities? * * * A. I don't understand because are you talking about right now or are you talking about on presentation or how it presented in her situation? Q. Well, let me -- let me ask you this. Would you agree that there -- with an overuse syndrome such as we're talking about in this case, that there would be no separate and distinct injury or no actual trauma that was a cause of Mrs. Hoffman's bilateral problems? A. Yes, I would agree with that. Q. Okay. Would you agree that given what you know about Mrs. Hoffman's job activities that she had bilateral problems that were developing simultaneously but yet would or may manifest themselves on different occasions? A. I would agree with that. Q. Would you agree that given what Mrs. Hoffman described to you as her work activities that she used both her hands and arms more so than would an individual in the general population? A. Yes. I feel that she -- she would. Q. And it's my understanding that you have testified that Mrs. Hoffman's bilateral conditions or problems for which she sought your treatment and care had a direct causal connection with her employment at Fox River? A. Yes, I have testified to that. Q. All right. And would you also agree that the bilateral conditions or problems of Mrs. Hoffman followed as a natural incident of her employment and not something not related to her employment? A. It's my feeling that that is the case. That is one of the most difficult issues in cumulative trauma and separating out the epidemiology of people who develop compression of their radial nerve in the forearm that don't do the types of repetitive work that Mrs. Hoffman does. It's my feeling that if she did not do the type of -- the rapid repetition of her forearms, that these symptoms would not have developed. (Dr. DeBartolo deposition, page 85, line 11 through page 88, line 20) Page 6 It is specifically found that the assessment of the case made by Dr. DeBartolo at pages 85 through 88 of exhibit B is correct. It is further found that the claimant has a 15.5 percent permanent impairment of her right arm and a 9 percent permanent impairment of her left arm due to the residuals of her condition. It is specifically found that Suzanne C. Hoffman is afflicted with the occupational disease of overuse syndrome which affects her arms. It is further found that as a result of the occupational disease, Suzanne Hoffman is actually incapacitated from performing her work at Fox River Mills, Inc., and also from earning equal wages in other suitable employment. conclusions of law The first issue to be addressed is whether the settlements are binding on the Second Injury Fund. That issue was determined consistent with the Fund's contention in the case Northrup v. Tama Meat Packing, file number 724196 (App. Decn., March 19, 1990). Deference should be given to bona fide good faith settlements, however, rather than to simply relitigate all issues in every case which involves the Fund. To do otherwise would be contrary to judicial and administrative efficiency. Since the Fund is not a party, however, to settlements, all settlements should be reviewable where the terms affect the Second Injury Fund. The Fund introduced no new evidence on claimant's functional impairment. In this case, the agreed impairments from the settlements are well supported by the evidence introduced and those permanent partial disabilities of each of claimant's arms are accepted as being correct. To adopt a policy of relitigating every issue of fact, even where the original result is fully consistent with the evidence which exists, and whri thme, day after day. It is common knowledge that many occupations do not require or involve repetitive use of the hands and arms. There is a direct causal connection with the employment and the overuse syndrome followed as a natural incident from the injurious exposure in the nature of repetitive activity occasioned by the nature of the employment. Claimant's overuse syndrome disease was incidental to the character of the business, in particular the process in which she was employed, and it did not arise independent of that employment. The condition clearly had its origin in a risk connected with the repetitive activity of the employment. The hazard of repetitive activity is not one to which the claimant would have been equally exposed outside of her occupation. The distinction between injury resulting from cumulative trauma which can be compensable, an occupational disease which can be compensable, and the normal wear and tear incident to a life devoted to hard work which is not compensable is not easily made. If carried to its logical extreme, it can be asserted that every step, motion or impact a person experiences is a single incident of cumulative trauma which plays a part in the breakdown of the person's body. The aging process itself also commonly results in a breakdown of the body. It is only when there is some clearly identifiable stress or cumulative trauma which produces a premature breakdown of the body that there is a right to recover under either the injury or occupational disease law. That situation exists in this case. The proper analysis to be used when determining whether a condition should be treated as an occupational disease or a cumulative trauma injury is to first analyze whether the condition falls within the definition of occupational disease as established by the facts entered into evidence and proven in the particular case. There are some ailments or conditions which can be a result of either an injury or an occupational disease, depending upon the causative factors in the particular case. If the condition falls within the definition of an occupational disease, then Code section 85.61(5)(b) excludes the condition from being treated as an injury. If it is excluded, then no payments are recoverable on account of injury under the workers' compensation law and, therefore, the restriction on liability found in Code section 85A.14 does not become applicable. It should be noted in making the legal analysis that the definition of injury specifically excludes occupational disease while the definition of occupational disease contains no corresponding specific exclusion of injury. The only exclusion is found in section 85A.14 for those cases where workers' compensation benefits are payable Page 9 on account of injury. The erroneous payment of benefits which results from treating a condition as an injury, when it is actually an occupational disease, should not prohibit a recovery under the occupational disease law. The distinction between injury and occupational disease can have a very significant impact upon the benefits that are payable. Injuries which affect only scheduled members entitle the employee to recover benefits under the scheduled member system provided in section 85.34(2)(a) through (t). The compensation for permanent partial disability is payable without regard to the actual impact of the injury on the individual's actual earnings or earning capacity. The disability compensation is paid regardless of whether there is any reduction of actual earnings or earning capacity and also without regard to the extent of any reduction in earnings or earning capacity. Under the occupational disease law, no compensation for permanent disability, partial or total, is paid until such time as the threshold of disablement is reached as defined in Code section 85A.4. That occurs only when the employee is actually incapacitated from performing the employee's work or from earning equal wages in other suitable employment because of the occupational disease. The standard is clearly an industrial disability standard. It is not based upon functional physical impairment. The Iowa Supreme Court has stated, "Disability under Iowa Code chapter 85A is determined by a consideration of age, education, qualification, experience and inability, due to injury, to engage in the employment for which the claimant is fitted." Doerfer Div. of CCA v. Nicol, 359 N.W.2d 428, 438 (Iowa 1984). In the case McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 190 (Iowa 1980), the Iowa Supreme Court also stated that the disability from occupational disease is to be determined industrially. In doing so, the Court stated, "These reasons may not always be directly related to functional impairment. 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. . . . Similarly, a claimant's inability to find other suitable work after making bona fide efforts to find such work may indicate that relief should be granted." The first paragraph of Code section 85A.5 states, "All employees subject to the provisions of this chapter who shall become disabled from injurious exposure to an occupational disease . . . shall receive compensation, reasonable surgical, medical . . . as provided in the workers' compensation law of Iowa except as otherwise provided in this chapter." That statutory provision has been relied upon in some agency cases to state that the scheduled member system found in section 85.34(2)(a) through (t) should be used to compensate permanent partial disabilities which result from occupational disease. Those decisions, however, ignore the last seven words in that first paragraph. The second paragraph of section 85A.5 and section 85A.4 clearly provide the exceptions referred to. The exception is that, if the individual is able to continue working in the employment, compensation for permanent partial disability is not paid since the point of disablement has not been reached. Page 10 Disablement, as found in section 85A.4 is clearly an industrial disability standard. If the scheduled member system were to be applied, there would be cases where permanent partial disability compensation was payable even though the employee had not reached the point of disablement. It is totally illogical and contrary to the beneficent purpose of the workers' compensation statutes to impose a standard of requiring proof of industrial disability through disablement before any recovery for permanent partial disability can be obtained and then compensate the disability according to the amount of functional impairment under the scheduled member system. The industrial disability standard for compensating permanent disabilities clearly provides a recovery which is more consistent with the loss that was actually sustained than does the scheduled member system. The scheduled member system exists only for its simplicity. If avoids the need for determining the loss of earning capacity. In a case dealing with injury, the entire matter can be concluded without determining loss of earning capacity. In an occupational disease case, however, it is necessary to prove loss of earning capacity in order to establish disablement under section 85A.4 before there can be a recovery. It is therefore concluded that compensation for all occupational diseases is determined industrially under Code section 85.34(2)(u), rather than under the scheduled member system found in Code section 85.34(2)(a) through (t). In this case, it is determined that Suzanne Hoffman suffers from one occupational disease, that being bilateral overuse syndrome affecting her arms. The first period of disability which commenced August 15, 1986 did not result in disablement as defined in section 85A.4 because she was able to resume her employment without any loss of earnings. The second period of disability which commenced November 23, 1987 did result in disablement as defined in section 85A.4 because following recovery from the surgery, claimant was actually incapacitated from performing her work and also from earning equal wages in other employment because of the occupational disease. It was at that point that compensation for permanent partial disability became payable. If claimant's condition had been treated as two successive injuries, then she would have been entitled to recover weekly compensation from the Second Injury Fund based upon her loss of earning capacity, with some reduction for scheduled member disability payments paid by the employer and the compensable value of any previously existing scheduled member disability. When the "injury" approach is used, the net effect is that the Second Injury Fund of Iowa, rather than the employer, pays compensation for the loss of earning capacity, despite the fact that the entire loss was proximately caused by the employer. It has often been held that the intent of the Second Injury Compensation Act is to encourage the hiring of the handicapped. Holding the Fund financially responsible for occupational diseases contracted by a previously unimpaired Page 11 employee as a result of work performed for an employer has no bearing whatsoever upon hiring the handicapped. It merely shifts the liability for paying for the results of the occupational disease from the employer in whose employ the disease was contracted to the Second Injury Fund of Iowa. It is also illogical to hold the Fund responsible for paying benefits where the condition is actually an occupational disease rather than an injury. The Fund's liability is conditioned upon the occurrence of an injury. Iowa Code section 85.64. The Second Injury Fund of Iowa pays benefits only in cases which result from injury. It has no liability to pay benefits where the employee's loss of use of one of the specified members is the result of an occupational disease, rather than an injury. The Second Injury Fund of Iowa has no liability to Suzanne C. Hoffman in either of the cases now under consideration. order IT IS THEREFORE ORDERED that claimant take nothing from this proceeding. IT IS FURTHER ORDERED that the costs of this action are assessed against the claimant including seventy-nine and 95/100 dollars ($79.95) for the deposition of Dr. DeBartolo and the charges for the attendance of the court reporter at the hearing conducted in this case, all pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this ______ day of ____________, 1990. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert S. Kinsey III Attorney at Law 214 North Adams P.O. Box 679 Mason City, Iowa 50401 Mr. Marvin E. Duckworth Attorney at Law Suite 111, Terrace Center 2700 Grand Avenue Des Moines, Iowa 50312 Ms. Shirley Ann Steffe Assistant Attorney General Tort Claims Division Page 12 Hoover State Office Building Des Moines, Iowa 50319 1108.40, 2203, 2209 3202 Filed August 10, 1990 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : SUZANNE C. HOFFMAN, : : File Nos. 831136 Claimant, : 869798 : vs. : A R B I T R A T I O N : SECOND INJURY FUND OF IOWA, : D E C I S I O N : Defendant. : ____________________________________________________________ 1108.40, 2203, 2209, 3202 The evidence introduced showed claimant's condition to be an occupational disease under Chapter 85A and that the Second Injury Fund has no liability to pay benefits for losses resulting from occupational disease. The claimant's condition was an overuse syndrome which caused bilateral radial nerve compression in her arms and left her with permanent impairment affecting each arm. Analysis for determining whether a condition is an occupational disease versus injury is to first determine if it meets the definition of occupational disease. If it does, it is then excluded from injury under section 85.61(5)(b). Since it is excluded, no benefits are payable under the workers' compensation laws and the matter must then be treated as an occupational disease. In making the analysis, it was pointed out that permanent partial disability recovery for occupational disease is always based upon loss of earning capacity or industrial disability.