BEFORE THE IOWA INDUSTRIAL COMMISSIONER JAMES SHELTON, Claimant, File No. 833568 vs. A R B I T R A T I 0 N CITY OF DES MOINES, D E C I S I 0 N Employer, Self-Insured, Defendant. INTRODUCTION This is a proceeding in arbitration brought by James Shelton against the city of Des Moines, his self-insured employer. The case was heard and fully submitted on September 15, 1987 at Des Moines, Iowa. The record in this proceeding consists of testimony from James Shelton and Michael Peterson and joint exhibits 1, 2 and 3. ISSUES The only issue presented by the parties is the extent of claimant's permanent disability. All other pertinent parts of the case were established by stipulation. The rate of compensation is stipulated to be $235.67 per week. It was stipulated that claimant's entitlement to compensation for temporary total disability or healing period commenced August 27, 1986 and ran through November 16, 1986 and has been fully paid. It was stipulated that any permanent disability should be compensated industrially and that, if awarded, it should commence on November 16, 1986. SUMMARY OF EVIDENCE The following is a summary of evidence presented in this case. Only the evidence most pertinent to this decision is discussed, but all of the evidence received at the hearing was considered in arriving at this decision. Conclusions about what the evidence showed are inevitable with any summarization. The conclusions in the following summary should be considered to be preliminary findings of fact. James Shelton is a 45-year-old divorced man. He completed the ; ninth grade in school, but has no further formal education or vocational training. Since high school, claimant has performed a variety of jobs, most of which have involved moderate or heavy physical exertion. Claimant was initially employed by the city of Des Moines in approximately 1965 as a casual laborer. He became full time in approximately 1974 or 1975. Throughout his term of full-time employment, he has been classified as either a truck driver or a SHELTON V. CITY OF DES MOINES Page 2 laborer (exhibit 2, pages 10-55). Claimant testified that he has engaged in a variety of activities including operating an endloader, mowing, trimming trees, shoveling snow and dirt and, in general, a lot of lifting and carrying. Claimant's evaluation reports show that he was consistently graded as performing satisfactorily overall, but there were a few instances where it was indicated that improvement was needed (exhibit 2, pages 56-73). Shelton testified that, on August 26, 1986, he was riding a lawn mower, mowing in the cemetery, when a tire hit a hole and the mower flipped over. Claimant testified that he twisted the lower part of his back and experienced pain. Claimant testified that he reported the incident to his supervisor, John Lowe, and was then sent to the health clinic. Claimant testified that he underwent x-rays and was treated for a time at the health clinic, but was then referred to Scott Neff, D.O. Claimant testified that Dr. Neff told him his back was deteriorating and sent him to therapy, but that the therapy did no good. Claimant testified that he continues to experience pain in his back that is sometimes sharp. He stated that activities such as lifting aggravate his back. He has had no other medical treatment since last seeing Dr. Neff. Claimant testified that he was released to return to light-duty work in November, 1986. He related that he went back for three or four nights driving a dump truck, patrolling a cemetery. Claimant testified that truck driving did not violate Dr. Neff's restrictions and that the roads in the cemetery are asphalt. He related that he would sometimes stop the truck, sit, or get out and walk around if he felt the need. He stated that the sitting and bouncing made his back worse. Claimant testified he reported to his supervisor and to the health clinic that he was unable to do that job. Claimant related that nothing happened with regard to his employment after that and that, since he could not work, he resigned in January, 1987. Claimant denied having any back injuries prior to the time he commenced employment with the city. However, claimant recalled having back problems off and on prior to hitting the hole with the mower. He stated that, while with the city, he had.back injuries in 1975 and 1980 which affected the same general area of his back, but that, on each occasion, he missed a week or ten days of work and was able to return to work without restriction. Claimant testified that this injury is a lot worse than the others. He stated that he is unable to lift and that his back starts to hurt if he walks as much as three blocks. Claimant testified that he has applied for Social Security disability, but has not yet received a ruling. He related that he has not applied for unemployment because he was told he was ineligible. Claimant testified that he does not think he could do any job which he has held in the past. He stated he is unable to sit or stand for very long and that he lies down for a while every day. Claimant related that he has no office skills and that he SHELTON V. CITY OF DES MOINES Page 3 has not kept records or supervised others. Claimant related that he never inquired about or bid on any other jobs with the city of Des Moines because he did not think he would be able to do them. He stated that he has not been to a physician since he quit driving the dump truck. He feels there is nothing a doctor can do for him. Claimant testified that he has not asked to be seen by a different physician. He stated that he has not looked for work because he feels he is unable to perform any work. Michael E. Peterson, safety and training administrator for the city of Des Moines, testified that, on or about October 10, 1986, a light-duty release for claimant to return to work was received from Dr. Neff. Peterson stated that claimant was assigned to work as a truck driver for a couple of days performing security work since there had been a problem with vandals at the cemetery. Peterson stated that, on October 31, Dr. Neff and James Blessman, M.D., released claimant to light-duty work and a light-duty job was prepared which would enable claimant to simply sit at the park entrance without doing any driving, but that claimant never tried the job. Peterson testified that he also tried to get claimant light-duty work painting park barrels, but that claimant never tried the job. Peterson stated that claimant was authorized sick leave and vacation leave which provided pay through January 13, 1987 at which time he was given an additional sixty days leave with benefits. Peterson stated that, on January 15, 1987, claimant resigned. Peterson testified that it is the policy of the city of Des Moines to place injured employees in positions they can physically handle and that they have a good success rate in placing injured employees. Peterson felt that it became apparent claimant did not.want to return to employment. In rebuttal, claimant testified that he was not informed of the availability of a job painting park barrels or of changing the patrol job so it would not require driving. The primary portion of claimant's medical care was provided by Dr. Neff, an orthopedic surgeon. On October 27, 1986, Dr. Neff indicated that claimant has degenerative disc disease, but that it is not related to anything that happened at work. He indicated that it was simply the aging process and that claimant had no permanent impairment which was due to his work. He recommended, however, that claimant perform only light work (exhibit 1, pages 4 and 8). On October 20, 1986, Dr. Neff indicated that, while claimant does have degenerative disc disease and should avoid heavy work, he was not disabled from all gainful employment (exhibit 1, pages 3 and 7). In December, 1986, claimant was evaluated by Thomas Bower, a licensed physical therapist. Bower indicated that claimant did not put forth good effort and that the results of the test do not appear valid. He indicated that there were indications claimant was magnifying his symptoms substantially (exhibit 1, pages 12-17). SHELTON V. CITY OF DES MOINES Page 4 APPLICABLE LAW AND ANALYSIS It was stipulated that claimant sustained an injury on August 26, 1986 which arose out of and in the course of his employment and that his entitlement to compensation for temporary total disability, or healing period, runs from August 27, 1986 through November 16, 1986. The primary issue of this case is whether that injury produced any degree of permanent disability. The supreme court of Iowa in Almquist v. Shenandoah Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934), discussed the definition of personal injury in workers' compensation cases as follows: While a personal injury does not include an occupational disease under the Workmen's Compensation Act, yet an injury to the health may be a personal injury. [Citations omitted.] Likewise a personal injury includes a disease resulting from an injury .... The result of changes in the human body incident to the general processes of nature do not amount to a personal injury. This must follow, even though such natural change may come about because the life has been devoted to labor and hard work. Such result of those natural changes does not constitute a personal injury even though the same brings about impairment of health or the total or partial incapacity of the functions of the human body. .... A personal injury, contemplated by the Workmen's Compensation Law, obviously means an injury to the body, the impairment of health, or a disease, not excluded by the act, which comes about, not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee. [Citations omitted.] The injury to the human body here contemplated must be something, whether an accident or not, that acts extraneously to the, natural processes of nature, and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. 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.2d 756, 760-761 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). The claimant has the burden of proving by a preponderance of the evidence that the injury of August 26, 1986 is causally related to the disability on which he now bases his claim. SHELTON V. CITY OF DES MOINES Page 5 Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. 0. 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). According to Dr. Neff, claimant's problem is a degenerative condition which is due to aging. Claimant has been extensively tested and the diagnostic tests failed to disclose any basis for his complaints other than the degenerative process, which Dr. Neff has indicated is due to aging. There is no direct medical evidence in the record which relates claimant's current level of complaints to the August 26, 1986 injury. It is only claimant's own complaints of an increased level of discomfort which support his claim. Having observed claimant's demeanor as he testified and having considered the evidence from Dr. Neff and Mr. Bower, claimant's testimony regarding the degree of his symptoms is found to be unreliable. There is no reliable evidence in the record which shows the injury to have been anything other than a temporary aggravation of a preexisting degenerative condition. It is therefore found and concluded that claimant has failed to prove by a preponderance of the evidence that the injuries he sustained on August 26, 1986 produced any degree of permanent functional physical impairment or any permanent physiological change in his body. The employer offered claimant work that was within the medically imposed restrictions, yet claimant failed to show up for work or to make any bona fide efforts to retain his employment. The records show that, when he saw Dr. Neff on October 1, 1986, he indicated that he had already applied for Social Security disability. Summarily stated, in a period of approximately five weeks, he went from being gainfully employed to a point that he apparently considered himself totally disabled. Claimant attempts to relate that change to what appears to be a relatively minor incident of trauma that occurred on August 26, 1986. The evidence simply does not support claimant's contentions. It is therefore found and concluded that claimant has failed to prove by a preponderance of the evidence that there has been any permanent change in his earning capacity as a result of the August 26, 1986 injury. SHELTON V. CITY OF DES MOINES Page 6 FINDINGS OF FACT 1. On August 26, 1986, James Shelton was a resident of the state of Iowa employed by the city of Des Moines, Iowa. 2. Shelton was injured on August 26, 1986 when a mower he was operating struck a hole. 3. Shelton has failed to introduce evidence to show that the injuries he sustained on August 26, 1986 were a substantial factor in producing any permanent physical impairment in his body, any permanent change in his physical health or any permanent change in his earning capacity. 4. Having observed claimant's appearance and demeanor as he testified and considering it in relation to the other evidence in the record, his testimony is found to be unreliable. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. The injury of August 26, 1986 produced only temporary disability and claimant has been fully compensated for that temporary disability. 3. Claimant has failed to prove by a preponderance of the evidence that he sustained any permanent disability that was proximately caused by the injuries he sustained on August 26, 1986. 4. Claimant has failed to prove any entitlement to any additional benefits under Chapter 85 of the Iowa Code. 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 claimant pursuant to Division of Industrial Services Rule 343-4.33. IT IS FURTHER ORDERED that the defendant file Claim Activity Reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3. Signed and filed this 22nd day of March, 1988. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: SHELTON V. CITY OF DES MOINES Page 7 Mr. David Drake Attorney at Law West Towers Office Complex 1200 35th Street, Suite 500 West Des Moines, Iowa 50265 Ms. Anne L. Clark Assistant City Attorney City Hall East lst & Locust Des Moines, Iowa 50307 1108, 1402.40, 1803 Filed March 22, 1988 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER JAMES SHELTON, Claimant, File No. 833568 vs. A R B I T R A T I 0 N CITY OF DES MOINES, D E C I S I 0 N Employer, Self-Insured, Defendant. 1108, 1402.40, 1803 Claimant's claim for permanent partial disability was not supported by a medical opinion providing a causal connection between any disability and the injury which the employer admitted. Claimant's appearance and demeanor was observed and he was found to be an unreliable witness. It was held that claimant had failed to prove by a preponderance of the evidence that he sustained any degree of permanent disability whatsoever in the injury which was the subject of the action. BEFORE THE IOWA INDUSTRIAL COMMISSIONER MAURICE A. EVERS, Claimant, File No. 833656 vs. A R B I T R A T I O N BLUE STAR FOODS, INC., D E C I S I O N Employer, and F I L E D MARYLAND CASUALTY COMPANY, JAN 23 1989 Insurance Carrier, IOWA INDUSTRIAL COMMISSIONER Defendants. INTRODUCTION This is a proceeding in arbitration brought by claimant, Maurice A. Evers, against Blue Star Foods, Inc., employer and Maryland Casualty Company, insurance carrier, to recover benefits as a result of an injury sustained on September 20, 1986. This matter came on for hearing before the undersigned deputy industrial commissioner in Council Bluffs, Iowa, on November 14, 1988. The record consists of the testimony of claimant, Maurice A.Evans, Mike Ahlers, certified vocational evaluation specialist from Career Design, Inc.; joint exhibits 1 through 23b (medical), 24 through 27 (vocational rehabilitation), and 28 through 30 (tax returns); and the deposition of Edward M. Schima, M.D. ISSUES Pursuant to the prehearing report, the parties stipulated that: 1. Claimant's rate of weekly compensation is $358.77; 2. Claimant did receive an injury arising out of and in the course of his employment; 3. An injury occurred on September 20, 1986; 4. If permanent disability is found, claimant's injury is to the body as a whole and should be rated industrially. 5. Claimant's entitlement to medical benefits under section 85.27 is not in dispute; and, 6. There is to be credits of $3,901.40 healing period benefits and $9,336.00 permanent partial disability benefits (5%). The remaining issues for resolution are whether claimant is entitled to any additional healing period benefits and the extent of any permanent partial disability . REVIEW OF THE EVIDENCE Claimant suffered an injury on September 20, 1986 while driving a truck and trailer as an over-the-road driver for defendant Blue Star Foods, Inc. Claimant testified that the truck hit a bump in the road at a bridge construction site and claimant was bounced up and down in the truck cab. Shortly thereafter, claimant noticed headaches and numbness in his right hand, differing in degree depending on what activities claimant may be doing, which have continued since the injury to present. Claimant sought medical help September 21, 1986 and was referred by a medical doctor to a neurosurgeon, Behrouz Rassekh, M.D., who diagnosed a C5 and C6 vertebra injury and suggested surgery. Dr. Anil K. Agarwal's diagnosis on claimant's September 24, 1986 exam suggested therapy. Claimant returned to work for two weeks in October 1986, but claimant's complaints increased. Dr. Rassekh then did a myelogram on October 27, 1986 which showed herniated disc at C5-C6. On October 29, 1986, claimant underwent anterior interbody fusion of C5-C6 vertebra and removal of extruded disc surgery. After surgery claimant testified he continued to have similar but milder complaints, except for the starting of numbness in his left hand. Dr. Rassekh wrote on November 7, 1986 that claimant's prognosis after his October 29, 1986 surgery was good. Claimant stated that Dr. Rassekh released him on December 5, 1986 to return to work with no work restrictions. Claimant testified his return to work on December 29, 1986 increased his prior complaints of pain in his lower neck, numbness in his right and left hand, and caused him difficulty in adjusting truck visor by reaching above his head. Claimant indicated these complaints continued through his last work trip November 19, 1987. Claimant's job with defendant employer ended on November 21, 1987 when claimant delivered Dr. Rassekh's three hours driving restrictions to defendant employer. Claimant stated he then saw Edward M. Schima, M.D., who recommended no lifting above the head and three to four hours driving limit. Since November 21, 1987 claimant has made attempts to find employment. Claimant said he was receiving unemployment benefits for seven months and needed two job contacts per week. Claimant acknowledges no other material accidents or injuries other than the September 1986 incident. Claimant testified he graduated from high school and went for two very short periods of time (a semester or less) to Iowa Western College in 1985 and 1987. Claimant indicated that in 1987, he went to college to further his education and to better train himself for a greater variety of jobs. Claimant stated he depended on financing in order to go to school. Claimant acknowledged that additional training and education would still be desirable and that this also was suggested by Mr. Mike Ahlers, the vocational consultant. Claimant said his prior government loan default would prevent the necessary borrowing required for school just as it did in 1987 when claimant was unable to complete a semester as the result of funds being terminated. Edward M. Schima, M.D., testified that the injury claimant suffered on September 20, 1986 has caused claimant's permanent impairment. This doctor opined that claimant's physical functional impairment is 10 percent of the whole man. Dr. Schima testified that he did not think claimant will be able to drive long distances, and that strenuous work with both arms or working with his arms above his head or shoulder area will also exacerbate claimant's difficulties. Dr. Schima stated that claimant will require future treatment for the medical problems he is experiencing which may be in the form of medication, muscle relaxants, analgesics, non-steroidal agents or even physical therapy, but he did not foresee any surgical intervention to alleviate claimant's problems. Behrouz Rassekh, M.D., wrote: When seen at the office on September 25, 1987, he was released to return to his occupation as of October 05, 1987. He telephoned the office on three occasions stating he still had neck pain. The patient returned to the office on November 21, 1987, and continued to complain of neck pain and some occipital pain, especially after driving for long period of time. As you know, this patient underwent anterior interbody fusion for disc herniation. Usually after this surgery, there is some change in the motion of the cervical spine after the fusion of two vertebrae which puts more stress on the disc space above that. Also, the constant driving would be an aggravating factor to his problem. The patient was advised it would be preferable if he did not do long periods of driving which will cause him to have more recurrent headache and neck problem and could also possibly accelerate some of the disc degeneration above the fusion. (Joint Exhibit 23, page 11) When Dr. Rassekh re-evaluated claimant on August 16, 1988, he wrote: This patient still has occasional headache and some discomfort in the neck but no longer has any radicular pain. He does have slight residual numbness. The patient states that driving and riding will increase the headache. .... On examination today, the patient has slight limitation of neck motion, especially to the Right on extension; but, no neurological deficit. Reflexes are symmetrical. ...[T]he partial permanent functional disability was estimated at 5% as a whole body due to some discomfort in cervical region and some limitation of neck motion. I do believe the patient had reached maximum recovery from the September 1986 injury and I do not anticipate any further improvement of the neck motion and believe the disability of 5% remains the same. As far as the injury of September 1987, I do not believe the patient has any partial permanent functional disability as a result of that injury to the lumbar region. Charles Edwards, M.D., examined claimant on behalf of the Division of Vocational Rehabilitation Services, Council Bluffs, and wrote on April 20, 1988 that claimant "should be able to do all activities of daily living. Functional limitation would be limited by his extreme obesity." Mr. Ahlers determined in his evaluation of claimant that claimant could perform a variety of jobs considering the 20 pounds or less weight lifting restriction. At the time of the hearing, Ahlers testified that he.was not aware of claimant's current restrictions, namely: Not lifting over 75-100 pounds and an eight hour driving limit. Ahlers opined that claimant should have been able to obtain employment after his recovery from the injury, notwithstanding claimant's additional problems of excessive weight--300 pounds, his felony conviction in 1982, and long sideburns. Ahlers stated that, pursuant to his most recent evaluation of claimant, claimant has a 40 percent loss of earning potential. He suggested that claimant could anticipate an annual income of $11,960 ($5.75 per hour) to $16,640 ($8.00 per hour). Claimant's income at the time of injury was approximately $27,000.00. It would appear from the exhibits and testimony that Ahlers is making a decision of industrial disability on actual loss of earnings rather than loss of earning capacity. If not, the deputy cannot determine how Ahlers is considering the various factors on how he arrived at loss of earnings capacity. For that reason, Ahlers' opinion as to earning capacity is given little weight. APPLICABLE LAW AND ANALYSIS If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 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). A treating physician's testimony is not entitled to greater weight as a matter of law than that of a physician who later examines claimant in anticipation of litigation. Weight to be given testimony of physician is a fact issue to be decided by the industrial commissioner in light of the record the parties develop. In this regard, both parties may develop facts as to the physician's employment in connection with litigation, if so; the physician's examination at a later date and not when the injuries were fresh; the arrangements as to compensation; the extent and nature of the physician's examination; the physician's education, experience, training, and practice; and all other factors which bear upon the weight and value of the physician's testimony may be considered. Both parties may bring all this information to the attention of the fact-finder as either supporting or weakening the physician's testimony and opinion. All factors go to the value of the physician's testimony as a matter of fact not as a matter of law. Rockwell Graphic Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985). Iowa Code section 85.34(l) provides that if an employee has suffered a personal injury causing permanent partial disability, the employer shall pay compensation for a healing period from the day of the injury until (1) the employee returns to work; or (2) it is medically indicated that significant improvement from the injury is not anticipated; or (3) until the employee is medically capable of returning to substantially similar employment. The healing period may be characterized as that period during which there is reasonable expectation of improvement of the disabling condition," and ends when maximum medical improvement is reached. Boyd v. Hudson Pulp & Paper Corp., 177 So.2d 331, 330 (Fla. 1965). That is, it is the period "from the time of the injury until the employee is as far restored as the permanent character of his injury will permit. "Winn Drilling Company v. Industrial Commissioner, 32 Ill.2d 144, 145-6, 203 N.E.2d 904,905-6 (1965). See also W. Schneider, Schneider's Workman's Compensation, section 2308 (1957). Thus, the healing period generally terminates "at the time the attending physician determines that the employee has recovered as far as possible from the effects of the injury. Winn, 203 N.E. at 906. Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60, 65 (Iowa 1981). Claimant has been paid 10.87 weeks healing period benefits totaling $3,901.40 for the period September 24, 1986 through October 5, 1986, October 9, 1986 through October 11, 1986, and October 24, 1986 through December 28, 1986. Dr. Rassekh, claimant's original treating neurosurgeon, opined a functional disability to 5 percent of the body as a whole. Although this doctor used the word "disability," from the total record, the undersigned believes he meant "impairment." Dr. Schima, a neurosurgeon who first became involved with the claimant on March 31, 1988 and had a follow-up November 7, 1988, opined a functional impairment of 10 percent to the body as a whole. Mike Ahlers, a vocational rehabilitation evaluation specialist, opined a 40 percent loss of earning potential. Ahlers testified he anticipated claimant's annual income potential at $5.75 per hour or $11,960 to $8.00 per hour or $16,640 per year compared to claimant's approximate $27,000 annual income at the time of the injury on September 20, 1986. This 40 year old claimant lacks motivation although an injury of this nature can contribute to this attitude. Ahlers seemed surprised that claimant has not found work at this time under any scenario. Claimant has a felony record. This was not dwelled upon by claimant for obvious reasons, but it seems obvious that this contributes to the unemployability of the claimant. Claimant's weight and sideburns effect on employability has been alluded to in the testimony and records. Nothwithstanding suggestions to claimant to modify his sideburns and lose weight, claimant seems by his actions not be concerned about these two items or at least chooses not to take hint from the doctors or vocational rehabilitation specialist as to the possibility that these conditions may add to his employment difficulties that already exist. Claimant's attitude in regards to his weight and sideburns demonstrates his lack of motivation. Also contributing to the claimant's non-injury problems is his government-guaranteed loan default which cut off his rights to financial aid in the middle of the school semester in 1987. This default is not contributing to claimant's attempts to better himself. This problem is no fault of the employer. Prior to his injury on September 20, 1986, claimant testified he had a number of jobs, some usually lasting for less than a year except for two lasting a little over one year. Claimant indicated his work experience is mostly as a truck driver and a majority of that experience as a long haul, over-the-road driver in which he experiences eight to ten hours of driving at a time. Taking all the evidence into consideration, the claimant has an industrial disability in the amount of 25 percent. FINDINGS OF FACT WHEREFORE, it is found: 1. Claimant was injured while working for defendant employer on September 20, 1986. 2. As a result of his September 20, 1986 injury, claimant has permanent impairment. 3. Claimant has not worked since November 21, 1987. 4. Claimant has incurred a loss of earning capacity of 25 percent as a result of his injury. 5. Claimant's healing period ended when he returned to work on December 29, 1986. CONCLUSIONS OF LAW THEREFORE, it is concluded: Claimant has sustained an industrial disability of 25. percent to the body as a whole. Claimant's healing period ended December 29, 1986. ORDER THEREFORE, it is ordered: That claimant is entitled to one hundred twenty-five (125) weeks of permanent partial disability benefits at the rate of three hundred fifty-eight and 77/100 dollars ($358.77) per week. That claimant is entitled to healing period benefits for the period September 24, 1986 through October 5, 1986, October 9, 1986 through October 11, 1986, and October 24, 1986 through December 28, 1986. That defendants shall pay accrued weekly benefits in a lump sum, and shall receive credit against the award for weekly benefits previously paid. That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. That defendants shall file an activity report upon payment of this award as required by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 23rd day of January, 1989. BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. John M. McHale Attorney at Law 233 Pearl St P.O. Box 1078 Council Bluffs, IA 51502 Mr. Philip Willson, Attorney at Law 370 Midlands M11 Council Bluffs, IA 51502 1802; 1803 Filed January 23, 1989 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER MAURICE A. EVERS, Claimant, File No. 833656 vs. BLUE STAR FOODS, INC., A R B I T R A T I 0 N Employer, D E C I S I 0 N and MARYLAND CASUALTY COMPANY, Insurance Carrier, Defendants. 1802; 1803 Claimant suffered a back injury while driving a truck. Claimant, who was a convicted felon, met burden of proof and was awarded 25 percent permanent partial disability to the body as a whole. Motivation was a factor. Claimant's injury resulted in a fusion of C5-C6 vertebrae. BEFORE THE IOWA INDUSTRIAL COMMISSIONER CAROLYN J. BREWER f/k/a CAROLYN J. BROWN, Claimant, vs. File No. 833703 ROLSCREEN COMPANY, A R B I T R A T I 0 N Employer, D E C I S I 0 N and EMPLOYERS MUTUAL COMPANIES, Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Carolyn J. Brewer, f/k/a Carolyn J. Brown, claimant, against Rolscreen Company, employer, hereinafter referred to as Rolscreen, and Employers Mutual Companies, insurance carrier, defendants, for workers' compensation benefits as a result of an alleged injury on September 15, 1986. On June 2, 1988, a hearing was held on claimant's petition and the matter was considered fully submitted upon the close of this hearing. The parties have submitted a pre-hearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. Oral testimony was received during the hearing from claimant and David Plumb. The exhibits received into evidence at the hearing are listed in the pre-hearing report. According to the pre-hearing report, the parties have stipulated to the following matters: 1. If defendants are liable for the alleged work injury, claimant is entitled to temporary total disability or healing period benefits from September 15, 1986 to October 8, 1987; 2. If the injury is found to have caused permanent disability, the type of disability is an industrial disability to the body as a whole; 3. If permanent disability benefits are awarded herein, they shall begin as of October 8, 1987; 4. With reference to claimant's rate of weekly BREWER V. ROLSCREEN COMPANY PAGE 2 compensation in the event of an award of weekly benefits from this proceeding, claimant was single and entitled to two exemptions at the time of the alleged injury; and, 5. With reference to the medical bills listed in the pre-hearing report and requested at the hearing, it is agreed that the provider would testify that the applicable charges were fair and reasonable and defendants are not offering contrary evidence. Also, it is agreed that these expenses are causally connected to the back condition upon which the claim is based, but that the issue of their causal connection to any work injury remains an issue to be decided herein. ISSUES The parties submitted the following issues for determination in this proceeding: I. Whether claimant received an injury arising out of and in the course of employment; II. Whether there is a causal relationship between the work injury and the claimed disability; III. Whether the claim is barred by a failure to give notice under Iowa Code section 85.23; IV. The extent of claimant's entitlement to weekly benefits for disability; V. Claimant's gross weekly earnings; and, VI. The extent of claimant's entitlement to medical benefits. SUMMARY OF THE EVIDENCE Pursuant to order of the undersigned, both parties have submitted a "Summary of Facts Relied Upon." These summaries are attached and made a part hereof. Whether or not specifically referred to in these summaries, or in the undersigned's very brief overview of the facts, all of the evidence received at the hearing was independently reviewed and considered in arriving at this decision. Briefly, claimant is a 41-year-old worker who was employed as an assembly operator in a manufacturing plant operated by Rolscreen for almost 10 years. Rolscreen manufactures windows and screens. Before this claim, claimant had two prior compensable injuries to her left wrist and elbow from overuse syndrome during operation of a power screwdriver for which she received compensation. As a result of those injuries, her physicians imposed a 15-pound lifting restriction in 1985. BREWER V. ROLSCREEN COMPANY PAGE 3 Claimant bases her claim in this proceeding upon a low back condition which allegedly occurred gradually from cumulative trauma at work. The injury date alleged coincides with claimant's last day at work at Rolscreen. Claimant testified that, although her work was for the most part not heavy, it was very rapid, repetitive work. However, she stated that at times she would be required to lift in excess of her 15-pound restriction to perform her assigned duties. Claimant now has similar restrictions imposed due to her current back condition. Claimant has not worked in any capacity since leaving Rolscreen on September 15, 1986 upon the advice of her physicians. Claimant, however, is currently volunteering her time to acquire secretarial and receptionist skills which she hopes will lead to future employment. The dispute in this case involving gross weekly earnings consists of whether or not the annual Christmas bonus should be included in the rate. Claimant testified that the bonus was regular and guaranteed for all employees at Rolscreen. APPLICABLE LAW AND ANALYSIS Claimant has the burden of proving by a preponderance of the evidence that claimant received an injury which arose out of and in the course of employment. The words "out of" refer to the cause or source of the injury. The words "in the course of" refer to the time and place and circumstances of the injury. See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited therein. The claimant has the burden of proving by a preponderance of the evidence that the work injury is a cause of the claimed disability. A disability may be either temporary or permanent. In the case of a claim for temporary disability, the claimant must establish that the work injury was a cause of absence from work and lost earnings during a period of recovery from the injury. Generally, a claim of permanent disability invokes an initial determination of whether the work injury was a cause of permanent physical impairment or permanent limitation in work activity. However, in some instances, such as a job transfer caused by a work injury, permanent disability benefits can be awarded without a showing of a causal connection to a physical change of condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). The question of causal connection is essentially within the domain of expert medical opinion. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion of experts need not be couched in definite, positive or unequivocal language and the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag v. Ferris BREWER V. ROLSCREEN COMPANY PAGE 4 Hardware, 220 N.W.2d 903 (Iowa 1974). The weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Furthermore, if the available expert testimony is insufficient along to support a finding of causal connection, such testimony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. Asse Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966) Such evidence does not, however, compel an award as a matter of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish compensability, the injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith, 290 N.W.2d 348, 354. In the case of a preexisting condition, an employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). In the case sub judice, claimant asserts that her back condition in September, 1986 was the result of her work at Rolscreen. Two physicians have rendered opinions on this matter. Robert C. Jones, M.D., a neurosurgeon who treated claimant in late 1986 and in 1987, opines that claimant has a ten percent permanent partial impairment due to her back problem and states as follows: "[O]f course, this has to be related to her industrial capacity." The doctor's choice of words in this statement is confusing. The statement can be interpreted to mean either that the impairment is related to her work or that the impairment affects her capacity to perform her job. Unfortunately, Dr. Jones provided no further explanation in the record. J. N. Weinstein, M.D., an orthopaedic surgeon representing the Spine Diagnostic and Treatment Center in the Department of orthopaedic Surgery at the University of Iowa Hospitals and Clinics, opines that claimant has a six percent permanent partial impairment and relates this impairment to her work. However, the report dated October 7, 1987 from Dr. Weinstein states in part as follows: Your back condition was not present prior to the injury on September 15, 1986. In this sense, the injury has caused your condition. In an earlier report of August 12, 1987, Dr. Weinstein reports that claimant stated to him that "she was injured in August, 1986 while lifting and reaching a sliding glass storm window." There is no way of knowing from the above statements whether or not the University of Iowa clinic staff was basing their opinion upon a history of a single, sudden traumatic event or upon a gradual or cumulative onset of symptoms culminating in the event of September, 1986. These opinions are being made against a backdrop of a history of chronic back problems beginning in May, 1986 with complaints of right-sided upper and lower back pain. Also, claimant has a history of back pain and leg pain BREWER V. ROLSCREEN COMPANY PAGE 5 complaints as early as May, 1980, according to the health records at Rolscreen. As stated in the McKeever case, a gradual injury theory is established primarily by supportive medical opinion. Unfortunately, clear supportive medical opinions are lacking in this case. Claimant's own testimony indicates that she did not perform heavy work at Rolscreen. Also, there is no particular incident that stands out as a causative, precipitating factor. Therefore, the lay facts alone in this case are insufficient to set up the cumulative trauma theory. Given her prior history of pain, this agency must rely heavily upon the opinions of experts. In this case, both experts were confusing in their opinions to the extent that claimant has not carried her burden of proof to show that her back problem was caused by work activity rather than as a natural consequence of the aging process. Claimant likewise has not shown that her work worsened or "lighted up" the underlying back condition. Claimant has only shown that she experienced various pain and strains during work activity between May and September, 1986, leading to a loss of her job. Although this may be sufficient to demonstrate a series of repetitive injuries, unless it is shown that those injuries led to permanent impairment rather than simply a symptom of pain from an aggravation of a naturally occurring, underlying condition, any ensuing permanent disability is not compensable. However, any loss of work to recover from the temporary aggravation and any medical expenses to treat and evaluate the temporary injury would be compensable. In this case, the most recent work activity in September, 1986 clearly caused temporary disability for the period of time stipulated in the pre-hearing report. It is necessary in the treatment of any injury to undergo extensive diagnostic evaluations. Therefore, the medical expenses requested will be awarded to claimant. Defendants have raised the issue of lack of notice of the work injury within 90 days from the date of the occurrence of the injury under Iowa Code section 85.23. Lack of such notice is an affirmative defense. DeLong v. Iowa State Highway Commission, 229 Iowa 700, 295 N.W. 91 (1940). In Reddick v Grand Union Tea Co., 230 Iowa 108, 196 N.W. 800 (1941), the Iowa Supreme Court has held that, once claimant sustains the burden of showing that an injury arose out of and in the course of employment, claimant prevails unless defendant can prove, by a preponderance of the evidence, an affirmative defense. Although an employer may have actual knowledge of an injury, the actual knowledge requirement under Iowa Code section 85.23 is not satisfied unless the employer has information putting him on notice that the injury may be work-related. Robinson v. Department of Transp., 296 N.W.2d 809, 811 (Iowa 1980). The time period for notice of claim does not begin to run until claimant as a reasonable person should recognize the nature, seriousness and probable compensable character of the injury or disease. Robinson, Id. An employee may provide information to an employer at the time of injury which would satisfy the actual knowledge notice requirement under Iowa Code section 85.23 without nullifying its right to benefits under the discovery rule. Dillinger v. City of Sioux City, 368 N.W.2d 176, 180 (Iowa 1985). In the case sub judice, defendants have not shown that they BREWER V. ROLSCREEN COMPANY PAGE 6 lacked timely notice. The most recent work activity relating to temporary total disability and medical expenses was September 15, 1986 and the first report of injury to this agency was filed by defendants on September 30, 1986. Defendants finally contend that claimant's gross weekly wages should not include the Christmas bonus. The employment brochure submitted into evidence indicates that the bonus is regular and guaranteed as long as the worker remains employed at Rolscreen.. This is not an irregular bonus excluded from the definition of gross earnings under Iowa Code section 85.61(12). It was agreed that claimant was working 45 hours per week at the time of the work injury and claimant was single and entitled to two exemptions on the date of injury. Given claimant's hourly rate with a bonus of $10.42 per hour, claimant's gross weekly earnings calculate to the sum of $468.90 on the date of injury. Claimant's rate of compensation according to the commissioner's rate book for this injury is $274.15 per week. FINDINGS OF FACT 1. On September 15, 1986, claimant suffered an injury to the low back which arose out of and in the course employment with Rolscreen. The injury, however, was shown to be only a temporary aggravation of a preexisting low back condition. Claimant failed to show that this or any of the prior injuries consisting of pain and sprains while working at Rolscreen between May and September, 1986 resulted in permanent impairment. Claimant's work at Rolscreen was for the most part light assembly work involving lifting of materials less than 15 pounds, but on a repetitive basis. 2. The work injury of September 15, 1986 was a cause of the medical expenses listed in the pre-hearing report which total $10,113.40 plus mileage expenses in the amount of $619.50. CONCLUSION OF LAW Claimant has established by a preponderance of the evidence entitlement to the disability and medical benefits awarded below. ORDER 1. Claimant's claim for permanent disability benefits is denied. 2. Defendants shall pay to claimant temporary total disability benefits from September 15, 1986 through October 7, 1987 at the rate of two hundred seventy-four and 15/100 dollars ($274.15) per week. 3. Defendants shall pay claimant the medical expenses including mileage expenses listed in the pre-hearing report. This payment shall be made directly to the provider unless claimant demonstrates that she has paid the expenses. However, claimant's attorney shall have a lien upon such monies collected herein for his fees which shall be prior to any direct payment to providers. BREWER V. ROLSCREEN COMPANY PAGE 7 4. Defendants shall receive credit for previous payments of benefits and other payments under a nonoccupational group insurance plan pursuant to Iowa Code section 85.38(2) as stipulated in the pre-hearing report. 5. Defendants shall pay interest on the weekly benefits awarded herein as set forth in Iowa Code section 85.30. 6. Defendants shall pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. 7. Defendants shall file Claim Activity Reports on the payment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 17th day of November, 1988. LARRY P.WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Harold B. Heslinga Attorney at Law 118 North Market Street Oskaloosa, Iowa 52577 Mr. William L. Dawe Attorney at Law 1100 Des Moines Building Des Moines, Iowa 50309 1802, 1803 Filed November 17, 1988 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER CAROLYN J. BREWER f/k/a CAROLYN J. BROWN, Claimant, vs. File No. 833703 ROLSCREEN COMPANY, A R B I T R A T I 0 N Employer, D E C I S I 0 N and EMPLOYERS MUTUAL COMPANIES, Insurance Carrier, Defendants. 1802, 1803 Due to a lack of clear, supportive medical opinion, claimant failed to carry her burden of proof and was denied permanent partial disability benefits. However, claimant did show at least a temporary aggravation of her prior existing condition and temporary total disability and medical benefits were awarded accordingly.