5-1108.50; 5-1804; 2906; 5-3202 Filed March 17, 1993 Byron K. Orton MGT BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ GARY FINNEMAN, Claimant, vs. File Nos. 834479/913590 WILSON FOODS CORPORATION, A P P E A L Employer, Self-Insured, D E C I S I O N and SECOND INJURY FUND OF IOWA, Insurance Carrier, Defendants. _________________________________________________________________ 5-1108.50 Claimant's work activities and his treating physician's opinion were relied upon to find that claimant had sustained separate injuries to his right arm and his left arm. The injuries were a result of repetitive use of the arms. 5-1804 Claimant sustained five percent disability to each arm. 2906 Claimant failed to amend his petition to include occupational disease as a theory of recovery as directed to do so at the prehearing. Claimant was precluded from asserting the theory of occupational disease against the employer. 5-3202 A forty year old claimant with impairment of five percent to each arm was found to have a cumulative industrial disability of 10 percent. Second Injury Fund was liable for 25 weeks of benefits. Claimant's repetitive injury was not an occupational disease. Page 1 before the iowa industrial commissioner ____________________________________________________________ : GARY FINNEMAN, : : Claimant, : : File Nos. 834479 vs. : 913590 : WILSON FOODS CORPORATION, : A R B I T R A T I O N : Employer, : D E C I S I O N Self-Insured, : : and : : SECOND INJURY FUND, : : Defendants. : ____________________________________________________________ statement of the case This decision concerns two proceedings in arbitration brought by Gary Finneman against his former employer, Wilson Foods Corporation, and against the Second Injury Fund of Iowa. File number 834479 is based upon an alleged injury of May 28, 1986 to Finneman's right arm. File number 913590 deals with an alleged injury of December 21, 1988 to his left arm. Claimant seeks compensation for additional permanent partial disability, either from the employer or from the Second Injury Fund of Iowa. Claimant had attempted to rely upon the theory of occupational disease against the employer, but was denied the opportunity due to a procedural technicality. The Second Injury Fund of Iowa, however, was allowed to use occupational disease as a defense of the claim. The primary issues to be determined are whether claimant sustained injury which arose out of and in the course of employment in each file; whether the condition upon which the claim is based is an occupational disease under chapter 85A of The Code rather than an injury compensable under chapter 85 of The Code; and, determination of the claimant's entitlement to permanent partial disability compensation. The case was heard at Storm Lake, Iowa, on July 1, 1991. The evidence consists of testimony from Gary Finneman and jointly offered exhibits 1 through 84. findings of fact Having considered all the evidence received, together with the appearance and demeanor of the witness, the following findings of fact are made. Gary Finneman is a 40-year-old high school graduate who had been employed by Wilson Foods Corporation since Page 2 graduating from high school in 1968 up until March 30, 1991, when he resigned. Gary started in the hide cellar for approximately one year, performed night sanitation work for approximately one year, loaded boxes of meat on the loading dock for approximately eight years and then moved into the boning room. Gary boned hams, picnics, loins and butts. He was required to work at a competitive speed according to established standards. The hog kill operation at the plant was terminated and Gary then was assigned to cut meat which was purchased from other packers. He described the meat as being colder, stiffer and requiring more strenuous exertion. Gary began noticing pain in his arm before the hog kill process was terminated. Gary feels that his arm problems started when he worked in the boning room. On May 28, 1986, Gary began treating with Keith O. Garner, M.D., the Wilson plant physician, for complaints of pain in his right elbow. After conservative treatment was unsuccessful, Gary was referred to orthopaedic surgeon Oscar M. Jardon, M.D., and underwent surgery in the form of release of the right common extensor tendon of his right elbow, removal of the lateral epicondyle bursa and reinsertion of the common extensor tendon into the lateral epicondyle (exhibit 58, page 1; exhibit 59). The surgery was performed on April 22, 1987. Up to that point in time, only Gary's right arm had been symptomatic (exhibits 71, 74, 75, 77, 79 and 81). After recuperating approximately five months, Gary returned to work. He bid to a job where he was not required to use a knife and the demands on his right arm were reduced. During late 1988, Gary began to experience problems in his left elbow which were similar to what he had previously experienced on the right. December 21, 1988 is the date entered on the accident report, although it appears as though the report was actually made on February 15, 1989 (exhibits 40, 81 and 82). The record does not show how the date of December 21, 1988 was arrived at or determined to be a date of injury. It is noted that, with regard to the right elbow problem, the date of injury on the employer's records is May 28, 1986, even though disability did not begin until September 26, 1986. It appears as though May 28, 1986 was the last work day which was two months prior to the date that the accident was entered on the accident report, namely July 30, 1986 (exhibit 79). Apparently the parties have used the estimated date of onset of symptoms as the date of injury. The record reflects that Gary did not miss work on account of his left elbow until April 3, 1989, when he was hospitalized for surgery (exhibit 41). It appears as though December 21, 1988 may have been the last day of work which was two months prior to the date that the injury was reported. On April 3, 1989, Dr. Jardon performed lateral epicondyle release on Gary's left elbow (exhibit 27; exhibit Page 3 30, page 32). Dr. Jardon released claimant to return to work effective July 31, 1989 and he did so return (exhibits 14, 39 and 41). Effective August 17, 1987, he was released to work without restriction (exhibit 51). Gary worked with few absences, but had continuing symptoms and problems (exhibits 5 and 81). In a report dated November 27, 1990, Dr. Jardon recommended that claimant reduce the use of his left arm with regard to repetitive backhand motions. He even suggested that it might be advantageous for claimant to get into a different line of work which did not require the motions of the meat packing industry (exhibit 2). Dr. Jardon originally assigned a five percent impairment rating for claimant's right arm following the 1987 surgery (exhibit 49). Once claimant's left arm also became affected by the condition, he raised his impairment to ten percent of each arm (exhibits 2, 4, 8, 9 and 12). The increase was due to the fact that both of claimant's arms were impaired. At hearing, Gary quite credibly testified that Drs. Jardon and Garner had both suggested that he seek a different type of work. He resigned from his employment on March 30, 1991. At hearing, he expressed a desire to return to school to get into a line of work which required less use of his hands. Gary also has had back problems and shoulder problems, but the record does not show either of those problems to contribute significantly to his disability. In response to a questionnaire from the Second Injury Fund of Iowa, Dr. Jardon agreed that Gary's physical complaints involving his arms were a result of repetitive use of his hands, wrists and arms while working at Wilson Foods Corporation, that the bilateral condition had a direct causal connection with claimant's employment at Wilson Foods, and that the condition followed as a natural incident to that employment and not independent of the employment. Dr. Jardon further agreed that the condition falls under the broad category of "overuse syndrome," that there was not any single traumatic incident at work that caused the condition, and that the problems were simultaneously developing bilaterally, but became manifest in each arm on different occasions. Dr. Jardon also agreed that claimant used his arms more extensively at work than would an individual in the general population (exhibit 1). In a report dated March 12, 1990, Dr. Jardon confirmed that the lateral epicondylitis occurred as a result of repetitive motion which Gary performed while he was at work at Wilson Foods (exhibit 4). It is found that the lateral epicondylitis which Gary Finneman developed on both of his elbows occurred as a direct consequence of the repetitive work activities he performed at Wilson Foods. The assessment of this case as made by Dr. Jardon is accepted and found to be correct. conclusions of law Page 4 The Iowa Supreme Court has long stated that pleadings in workers' compensation proceedings should not be judged by the standards of strictness and technical rules of procedure that are applied in other legal proceedings. Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); Yates v. Humphrey, 218 Iowa 792, 255 N.W. 639 (1934). The Iowa Rules of Civil Procedure have been adopted by this agency, except to the extent that they are irreconcilable with agency rules of procedure. Rule 343 IAC 4.35. Rule 343 IAC 4.36 permits closure of the record to further activity or evidence or a dismissal of a claim as a sanction for failure to comply with an order entered by the agency. Rule of Civil Procedure 67 abolishes technical forms of pleading and goes on to state that the form and sufficiency of all pleadings shall be determined by the rules, construed and enforced in order to secure a just, speedy and inexpensive determination of all controversies on their merits. A petition is required to allege facts showing that the pleader is entitled to relief. Iowa R. Civ. P. 69(a). The rule does not require that specific theories be pled in the petition. It is not necessary to set out the legal theory on which the claim is based. Pendergast v. Davenport, 375 N.W.2d 684 (Iowa 1985); Tigges v. City of Ames, 356 N.W.2d 503 (Iowa 1984); Lamantia v. Sojka, 298 N.W.2d 245 (Iowa 1980); Christensen v. Shelby County, 287 N.W.2d 560 (Iowa 1980). It has been held that, in the district court, the terms of the pretrial order (the equivalent of the agency hearing assignment order) operatively amend the pleadings. Gray v. Schlegel, 265 N.W.2d 156 (Iowa 1978). The agency precedent is that a decision should not be restricted to the particular theory of injury pled by the claimant and that an award of benefits should be based on the evidence presented and not turn on the technicalities of pleading. McCoy v. Donaldson Co., file number 752670 (App. Decn. 1989). It has been held unnecessary to plead chapter 85A of The Code as a theory if it is entered on the hearing assignment order. Filip v. Cedar Glass, Inc., Vol. 1, No. 1 State of Iowa Industrial Commissioner Decisions 54 (Arb. Decn. 1984). The record does not disclose the reason why, at the prehearing conference, the claimant was ordered to amend his petition since the normal rules of pleadings applicable in the courts would not require the legal theory of occupational disease to be pled if the proceeding were one which were being litigated in the district court. He inadvertently failed to make a formal amendment. The order to amend is not on the hearing assignment order. It is noted on the prehearing deputy's notes. It is clear that the lack of a formal amendment was not prejudicial since all parties to the proceeding were aware that the claimant was relying on the occupational disease law in support of his claim against the employer and that the Second Injury Fund was relying upon it as a defense to avoid liability. While Page 5 the requirement for amending the pleading to assert the theory was not necessary to inform the parties of the issues, the failure to do so was ruled by the prehearing deputy to deny the claimant the opportunity to rely upon occupational disease as a theory of recovery, even though chapter 85A was listed as an issue on the hearing assignment order and the prehearing deputy allowed the Second Injury Fund to rely upon occupational disease as a defense. If claimant's theories of recovery had not been limited, he would be entitled to have his disability evaluated industrially under the Second Injury Fund if the condition was treated as an injury compensable under chapter 85 of The Code or as an occupational disease under chapter 85A of The Code. While there is some precedent within the agency which states that occupational diseases which affect only scheduled members are to be compensated according to the schedule found in Code section 85.34(2), that argument must fail since no compensation is payable until the threshold of disablement is reached as defined in Code section 85A.4. Disablement is an industrial disability standard. To apply the schedule would require payment of permanent partial disability compensation where disablement had not been reached. It is recognized that payment of permanent partial disability compensation according to loss of earning capacity is a more fair and accurate means of compensating a loss than the schedule system and that the schedule system exists primarily because of its simplicity and consistency. Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983). Likewise, the Iowa Supreme Court has stated that disability under Code chapter 85A is to be determined by considering the factors of industrial disability. Doerfer Div. of CCA v. Nicol, 359 N.W.2d 428, 438 (Iowa 1984); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 190 (Iowa 1980). While both of those cases involve disease affecting the body as a whole, it is apparent that the scheduled injury system of compensation is irreconcilable with section 85A.4. The first paragraph of section 85A.5 provides that benefits for occupational disease are to be the same as those for injury, except as otherwise provided. The contrary provision is found in the second paragraph of section 85A.5 and 85A.4 which provide an industrial disability standard is to be used when compensating occupational disease. Since the outcome of this case depends greatly upon whether the conditions are occupational diseases rather than injuries, it is necessary to make that determination. The proper method of analysis of whether any particular condition is the result of an injury rather than an occupational disease is not well defined. 1B Larson Workmen's Compensation Law, section 41.00, et seq. The definitions used are somewhat circuitous. Code section 85.61(5)(b) states that injury ". . . shall not include an occupational disease as defined in section 85A.8." Section 85A.8 states: Page 6 Occupational diseases shall be only those diseases which arise out of and in the course of the employee's employment. Such diseases shall have a direct causal connection with the employment and must have followed as a natural incident thereto from injurious exposure occasioned by the nature of the employment. Such disease must be incidental to the character of the business, occupation or process in which the employee was employed and not independent of the employment. Such disease need not have been foreseen or expected but after its contraction it must appear to have had its origin in a risk connected with the employment and to have resulted from that source as an incident and rational consequence. A disease which follows from a hazard to which an employee has or would have been equally exposed outside of said occupation is not compensable as an occupational disease. The supreme court has held that to prove causation of an occupational disease, the claimant need only meet the two basic requirements imposed by the statute, namely, that the disease is causally related to the exposure to harmful conditions in the field of employment and that those harmful conditions are more prevalent in the employment concern than in everyday life or other occupations. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 190 (Iowa 1980); 1B Larson Workmen's Compensation Law, sections 41.31 through 41.33. Prior to 1973, the Iowa Occupational Disease Law listed specific diseases and processes which would be considered occupational diseases. In 1973, the legislature broadened the definition of occupational disease by eliminating the list of specific diseases and, at the same time, narrowed the definition of "injury" to specifically exclude occupational diseases. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 190 (Iowa 1980). It is therefore apparent that any condition which constituted an occupational disease under the pre-1973 statute must continue to be an occupational disease today. The tenth item listed in the pre-1973 statute was bursitis, synovitis or tenosynovitis resulting from any process or occupational involving continued or repeated pressure on the parts affected. It appears to list conditions now commonly referred to as overuse syndromes. Epicondylitis is such a condition. 1B Larson Workmen's Compensation Law, section 41.42. The proper analysis to be used when determining whether a condition is 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 in evidence in the particular case. Some ailments can be either an occupational disease or an injury depending upon the causative factors and the factual circumstances of the particular case. If the condition fits within the definition of an occupational disease, then Code Page 7 section 85.61(5)(b) specifically prohibits the condition from being treated as an injury under chapter 85 of The Code. If it is excluded from chapter 85, 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 must be noted that when performing the legal analysis, the definition of "injury" specifically excludes "occupational disease," while the definition of "occupational disease" does not specifically exclude "injury." The only exclusion is found in section 85A.14 which prohibits a recovery under chapter 85A "for which compensation is recoverable on account of injury under the workers' compensation law." An employer's or insurance carrier's action of paying benefits purportedly on account of "injury," when the condition is actually an occupational disease, does not prohibit this agency from correctly analyzing the case and ordering benefits under chapter 85A, rather than under chapter 85. The mistake of fact or law made by a party to a proceeding does not compel this agency to continue to commit that same error. The employer is, of course, entitled to credit for those erroneous payments. It does not entitle the claimant to a double recovery or a windfall. Wilson Food Corp. v. Cherry, 315 N.W.2d 756 (Iowa 1982). When the definition of occupational disease as found in the current statute is considered in light of the judicial precedents and the previous version of the statute, it is concluded that the evidence from Dr. Jardon, particularly that found in exhibits 1 and the characterization of the onset of the condition as "typical" as found in exhibit 35, establishes that Gary Finneman's bilateral lateral epicondylitis is the result of an overuse syndrome type of condition and is an occupational disease. The condition was caused by the process in which he worked. It resulted from repeated pressures on his arms which were required by the processes. Secondly, those repeated activities, stresses and pressures on his arms were more prevalent in Finneman's occupation as a packinghouse worker than in everyday life or other occupations. He was required to meet certain production standards. Dr. Jardon has recommended either that he find positions with Wilson Foods which avoid the repetitive pressure on the affected parts of his arms or that he seek other employment which avoids repetitive activities (exhibit 2). It is common knowledge that many occupations do not involve or require repetitive use of the hands and arms. It is likewise within the expertise of this agency to recognize that many packinghouse positions do in fact require continued, repetitive use of the hands and arms. There is a direct causal connection with the employment and the epicondylitis followed as a natural incident from the injurious exposure to the pressure of repetitive activity on claimant's arms which was occasioned by the nature of the employment. Finneman's epicondylitis Page 8 was incident to the character of the business, in particular the process in which he was employed. 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 such repetitive activity is not one to which Finneman would have been equally exposed outside of his occupation. There are no production standards to meet in non-employment life. 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 always clear. There is likewise no clear distinction between the terms "cumulative trauma" or "repeated pressure on the parts affected." 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 the 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. It is therefore found and concluded that Gary Finneman's bilateral epicondylitis is an occupational disease for which he is entitled to receive compensation under chapter 85A of The Code. Since Finneman was able to return to his employment with Wilson Foods following both surgeries, it is clear that he had not reached the point of disablement as defined in section 85A.4 and was not entitled, at those times, to recover any compensation for permanent partial disability. If he were not prohibited from asserting his occupational disease claim against his employer due to the procedural technicalities, it would be appropriate to make a determination regarding whether he has now met the standard of disablement and, if so, the extent of his entitlement to recover permanent partial disability. In view of the procedural ruling, however, there is no need to make that analysis. Since the claimant's condition has been determined to be an occupational disease, the Second Injury Fund of Iowa has no liability to Finneman. Liability of the Fund is conditioned only upon injury. Hoffman v. Second Injury Fund of Iowa, file numbers 831136 and 869798 (Arb. Decn., August 10, 1990); Iowa Code section 85.64. It is therefore concluded that Gary Finneman is not entitled to any additional recovery on account of injury in these cases. In fact, his claims were premature. The threshold of disablement, if it ever occurred, did not occur prior to Finneman's resignation from Wilson Foods on March 30, 1991 since he remained employed by the same employer Page 9 working at substantially the same level of earnings as he had experienced prior to the onset of the condition. order IT IS THEREFORE ORDERED that Gary Finneman take nothing from this proceeding. IT IS FURTHER ORDERED that the costs of this proceeding are assessed against the employer pursuant to rule 343 IAC 4.33. IT IS FURTHER ORDERED that the employer file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ______ day of ____________, 1991. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Steve Hamilton Attorney at Law 606 Ontario Street P.O. Box 188 Storm Lake, Iowa 50588 Mr. David L. Sayre Attorney at Law 233 Pine Street P.O. Box 535 Cherokee, Iowa 51012 2203; 2906; 3202 Filed October 2, 1991 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : GARY FINNEMAN, : : Claimant, : : File Nos. 834479 vs. : 913590 : WILSON FOODS CORPORATION, : A R B I T R A T I O N : Employer, : D E C I S I O N Self-Insured, : : and : : SECOND INJURY FUND, : : Defendants. : ____________________________________________________________ 2203 Development of bilateral epicondylitis by a packinghouse production worker held to be an occupational disease under the evidence introduced in the case. 3202 Since the condition was determined to be an occupational disease, the Second Injury Fund was held to have no liability. 2906 Even though 85A was listed as an issue on the hearing assignment order, the claimant was not allowed a recovery under chapter 85A because the notes of the prehearing conference indicated that the claimant had been ordered to amend his petition to assert the legal theory of occupational disease within thirty days and claimant had not done so. The prehearing deputy therefore imposed the sanction of not allowing a recovery under chapter 85A as a result of the failure to amend after having been ordered to do so. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JOHN AMODEO, File Nos. 834562 986903 Claimant, A R B I T R A T I O N vs. D E C I S I O N IOWA POWER AND LIGHT COMPANY, Employer, Self-Insured, Defendant. ___________________________________________________________ STATEMENT OF THE CASE These are proceedings in arbitration upon the petitions of John Amodeo, claimant, against his self-insured employer, Midwest Power, f/k/a Iowa Power, Inc., defendant. The cases were heard on June 30, 1993 at the Polk County Courthouse in Des Moines, Iowa. The record consists of the testimony of claimant. The record also consists of the testimony of Mark White, manager of the Two Rivers Electrical Station; and the testimony of Linn Christensen, vocational rehabilitation specialist. Finally, the record is comprised of claimant's exhibits A-L, 18, 19, 20 and defendant's exhibits 1, 2, 3, 4(1-18), 5 and claimant's exhibits 14, 15, 16. ISSUE The sole issue to be determined is the nature and extent of claimant's permanent partial disability, if any. FINDINGS OF FACT The deputy, having heard the testimony and considered all the evidence, finds: Claimant is 42 years old. He is the divorced father of two children. He is a 1969 graduate of Dowling High School in West Des Moines. Claimant has had no formalized training since leaving high school. Subsequent to his graduation from school, claimant worked at Crescent Electric for 9 months. He was employed to stock shelves and to deliver goods. In February of 1970, claimant commenced his employment with defendant. He has worked for this employer continually, with the exception of when claimant was off work due to any work injuries. At the time of the hearing, claimant was still in the employ of defendant. Initially, claimant was hired at $4.00 per hour to work as a laborer. Throughout the course of his employment, claimant has received regular increases in his wage rate. In 1981, claimant was earning $15.00 per hour. In 1989, claimant earned approximately $18.50 per hour. Claimant has held a variety of positions within the company. Some of the other positions which he has held are: yard maintenance person, underground utility person, truck driver, lineman apprentice, storesman, apprentice cable splicer, journeyman cable splicer, and foreman of journeymen splicers. During his tenure as a foreman, claimant engaged in hands on activities. He was what is commonly known as a working foreman. The parties have stipulated that claimant sustained two work-related injuries. The first one occurred on September 15, 1986. The second injury occurred on April 18, 1991. Both injuries involved claimant's back. When claimant sustained his first work-related injury, he was working as a foreman of journeymen splicers. He supervised a crew consisting of 2-5 employees. His duties included directing, maintaining, and installing cables in the downtown area of Des Moines. The job required claimant to use ladders in order to climb into manholes. He engaged in heavy lifting, bending, stooping, kneeling, standing, including standing on ladders for extended periods of time, sitting, twisting, and reaching above his head. Prior to his 1986 work injury, claimant was capable of performing the daily tasks which were assigned to him. He voiced no complaints to his supervisors relative to the job duties he was required to perform. After the 1986 work injury, claimant was treated by Robert Hayne, M.D., the company designated surgeon. He diagnosed claimant as having an acutely herniated disk at the 5th lumbar interspace, right side. On January 6, 1987, Dr. Hayne performed a lumbar laminectomy. (Exhibit page 441) Claimant's condition vastly improved after the surgery. He described his recovery as "miraculous." The undersigned deputy quite agrees; the recovery was "miraculous." According to Dr. Hayne, claimant reached maximum medical improvement three months after the surgery. Initially, Dr. Hayne released claimant to return to work but with restrictions. The physician restricted claimant from lifting greater than 35 pounds. He also placed some reasonable restrictions on claimant with respect to his work duties. Claimant was precluded from bending forward in a repetitious manner and from twisting his back repetitively. (Ex. pp. 523-524) Dr. Hayne later rescinded the restrictions he had placed upon claimant. Claimant had specifically requested a release without restrictions so he could return to his former position. He informed the surgeon that he was capable of performing his work. As of May 21, 1987, claimant was released to return to work with no restrictions. (Ex. p. 491) Claimant returned to his position as a foreman journeyman splicer. Claimant testified that he had a few aches and pains upon his return to work. However, he testified he had no problems performing his job. Dr. Hayne testified that claimant had not been in for medical treatment between July of 1988 and May 3, 1991. Dr. Hayne opined that as of November 27, 1987 claimant had sustained a permanent impairment of eight to nine percent. Defendant paid claimant 45 weeks of permanent partial disability benefits. The date the last payment was made was October 17, 1988. While claimant continued to work as a foreman of the journeymen splicer, he did encounter some personnel problems with his then supervisor, Mark White. Some of the problems were related to miscommunications between claimant and Mr. White over claimant's physical capabilities to perform the jobs of a foreman. Other problems dealt with situations unrelated to claimant's work injury. Nevertheless, claimant continued in the same position. On April 18, 1991, claimant sustained another work-related injury to his back. Claimant sought a medical opinion from David Berg, D.O., company physician. Dr. Berg's office notes of the day reflected that: This 40 year old male who works for Iowa Power comes in with low back pain with radiation into both inguinal areas and down the posterior aspect of his right leg. I took care of John at Sports Medicine. At that time he had herniated disk. I believe it was L5-S1 and he had surgery by Dr. Haine [sic] and has gotten along fairly well since then. He denies any injury to his back. States he was doing nothing unusual at work, woke up this morning with severe pain in his low back and radiation to his right leg and bilateral groin aeas [sic]. He states that he had a similar incident last Thursday wherehe [sic] woke up with severe pain in his back without any apparent injury, although at that time he had no radiation to his inguinal areas, stayed at home an (sic) rested in bed, the next day he woke up and was pain free and returned back to work. EXAMINATION: Alert, cooperative white male in mild to moderate acute distress. Exam of the low back there is no tenderness over the lumbar spine, disk spaces, or soft tissues. ROM of the lumbar spine is decreased in forward flexion. He has normal side bending, rotation, and extension. Straight leg raising is positive on the right at approximately 30o, positive on the left at approximately 45o. DTRs are +2/4 and symmetrical. He can walk on his heels and toes with pain in his back. Sneezing and coughing does increase his back pain and right radiculopathy. X-ray of the lumbar spine reveals decreased disk space between L4-5 and L5-S1 with evidence of degenerative disk disease at these levels. (unreadable) IMPRESSION: 1. Acute myofascial back strain. 2. Possible L4-5 lumbar disk herniation. (Ex. pp. 402-403) X-rays were taken on the same day. The radiologist, Michael A. Disbro, M.D., opined: "Lower lumbar disc degeneration, without acute abnormality." (Ex. p. 404) Claimant returned to Dr. Hayne in May of 1991. The treating physician ordered a MRI. Dr. Hayne ordered a myelogram. The myelogram indicated that claimant had a central disk protrusion at the L4-5 level. (Ex. p. 513) Subsequent to receiving the results of the myelogram, Dr. Hayne advised claimant not to lift more than 40 or 50 pounds and not to engage in repetitive bending. (Ex. p. 509) As of July 8, 1991, Dr. Hayne released claimant to return to his regular duties. No restrictions were imposed upon claimant. (Ex. p. 508) On November 12, 1991, Dr. Hayne issued an opinion relative to claimant's condition. He opined that: John Amodeo has been seen by me in the past. He underwent a laminectomy in January, 1987, for a herniated disc at L5/S1 on the right. He injured his back again at work on April 17th at which time he picked up a heavy street light and developed pain in the right leg which increased in severity. A myelogram was carried out on June 10th, and this shows a large deformity at L4/5 consistent with a central disc protrusion. He has been treated conservatively, and with this treatment, he has improved. I feel that he has sustained an additional nine percent total impairment as a result of his recent injury. (Ex. p. 452) Claimant returned once again to his position as a foreman of the journeymen splicers. The record indicated that during the early part of 1992 claimant was treated by the company physician, James Blessman, M.D. Dr. Blessman treated claimant for "chronic back pain." (Ex. p. 421) In early 1992, claimant was also seen By Daniel McGuire, M.D., the company authorized physician. In his office note of January 23, 1992, Dr. McGuire opined that: PLAN: Based on what I have seen, I would not recommend surgical intervention to him. Based on what he is telling me, it seems that he should be able to continue doing his job with Iowa Power. I would not prevent him from doing his current job. I realize that he has some aches and pains. I realize that in the future he may twist again and have an increase in his aches and pains, but I see no specific reason to keep him from doing his current job. (Ex. p. 397) In his report of February 27, 1992, Dr. McGuire determined the following: It appears that he has had the one surgery. He has had two or three problems with episodes of problems since that time as is documented by some further diagnostic studies. On review, I do not see any acute changes at that L4-5 level. I do not believe that anyone has offered him surgical intervention.... I see no reason to assign any disability, impairment or restrictions as pertains to the incident from 1991. I think Mr. Amodeo is to be congratulated for continuing to work and for continuing to do his job. (Ex. p. 399) Claimant continued in his position as a cable splicer foreman until June of 1992 when claimant was medically disqualified from that job. Claimant's medical disqualification was unrelated to any of claimant's back injuries. His medical disqualification was the result of claimant's inability to wear a respirator as required by the Division of Labor Services under administrative rules governing occupational safety and health. He was medically disqualified because it was determined in 1992 that claimant had a deviated septum and he was unable to breathe properly when wearing a respirator. After his medical disqualification, claimant was forced to accept a position pursuant to the collective bargaining agreement which was in effect. Claimant "bumped into" the position of storesman. His rate of pay went from $20.43 per hour down to $14.93 per hour. Claimant experienced some stress over the change in his rate of pay. He testified in his deposition that: Q. If it had not been for a respirator restriction, you would continue to be working as a cable splicer foreman? A. Probably. (Ex. p. 337) Later in his deposition, claimant testified that: Q. And if it hadn't been for the difficulty with your nose and the respirator, you would be still be working as cable splicer foreman right now? A. That's correct, probably. (Ex. pp. 326-325) Claimant did not return to Dr. Hayne's office for follow-up back care until September 17, 1992. By October of 1992, claimant's condition showed a marked improvement. (Ex. p. 471) Dr. Hayne's examination on January 20, 1993, revealed that: The new job, he said, does not pay as much, and the examination was such that it showed the reflexes to be 1+. Forward motion of the lumbar spine was mildly limited, and impression at that time following the examination was that he was to continue to be careful in assessing for himself the lifting that he was doing as to whether it was such as to exceed his tolerance, in other words, just to be careful. (Ex. p. 477) Dr. Hayne, as of January 20, 1993, opined that claimant would be able to handle the position as a storesman. (Ex. p. 472) The storesman's position required any employee to: Performs duties in connection with receiving, inspecting, recording, storing and issuing new, returned and reclaimed stores materials, tools, supplies, and equipment in the storeroom and other designated areas. Salvages and reclaims materials and supplies and makes minor repairs on tools and equipment. Operates material handling equipment and vehicles; loads, unloads, crates and handles materials and supplies and delivers to designated locations and picks up material as required.... (Ex. p. 463) At his hearing, claimant testified that he is physically capable of handling the position of storesman. He also testified that when he is required to move materials, he uses carts and equipment to assist him or else he requests assistance from co-employees. Claimant also testified at the hearing that he does not lift more than 40 pounds at any one given time. On rebuttal, claimant testified that he operates a computer for 50 to 60 percent of his work time. Mark White testified that the storesman position is more physically demanding than is the position of cable splicer foreman. Mr. White based his opinion on the fact that there is the requirement of handling material from a shelf, placing material onto a device, and loading material onto a truck. Mr. White also testified that if restrictions had been imposed upon claimant, he would not be able to work as a storesman. Linn Christensen, a vocational rehabilitation specialist testified on behalf of defendant. According to the specialist, the position of cable splicer foreman involved walking and standing on concrete from 2 to 4 hours per day. Sitting was also required for 4 to 6 hours per day. According to the witness, the position also required an employee to lift and carry from 2 to 202 pounds, and to lift and carry on a daily basis from 12 to 14 times per day. In addition, the expert testified that the job involved climbing, stooping and bending, pushing and pulling. With respect to the position of storesman, the vocational expert testified that walking and standing was involved for 5 to 6 hours per day, that sitting was involved for 2 to 3 hours per day, and that lifting up to 300 pounds was involved. The witness testified that the cable splicer foreman's position was in the medium to heavy job category. CONCLUSIONS OF LAW The claimant has the burden of proving by a preponderance of the evidence that the injuries are a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 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 the employee is fitted. Olson v. Goodyear Serv. 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. Impairment and disability are not synonymous. The degree of industrial disability can be much different than the degree of impairment because industrial disability references to loss of earning capacity and impairment references 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 the healing period; the work experience of the employee prior to the injury and after the injury and the 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. Likewise, an employer's refusal to give any sort of work to an impaired employee may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). 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. 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 as well as general and specialized knowledge to make the finding with regard to degree of industrial disability. See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 529 (App. March 26, 1985); Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 654 (App. February 28, 1985). Compensation for permanent partial disability shall begin at the termination of the healing period. Compensation shall be paid in relation to 500 weeks as the disability bears to the body as a whole. Section 85.34. There is sufficient evidence to conclude that the work injuries on September 15, 1986 and on April 18, 1991 both resulted in permanent conditions to claimant's back. There are objective findings to substantiate each work injury. The treating physician, Dr. Hayne causally relates claimant's condition to the two work injuries. He opines there is a permanent impairment to claimant's low back as a result of the first injury in the amount of 8 to 9 percent. He also opines there is an additional 9 percent functional impairment as a result of the second injury. His opinion is accorded a great deal of weight since he has been the treating physician for more than 7 years. He has had numerous opportunities to examine, evaluate, and re-evaluate claimant. He is the surgeon who has performed the surgery on claimant's low back condition. He has ordered and reviewed many diagnostic tests relevant to claimant's condition. His familiarity with the case is unquestionable. Dr. McGuire, on the other hand is not as familiar with the case as is Dr. Hayne. Dr. McGuire has admitted in writing that he needed to review claimant's records several times in order to have an overall picture of claimant's medical profile. (Ex. p. 399) He holds the opinion there is no permanency as a result of the second injury. His opinion is directly contrary to the opinion of Dr. Hayne, another authorized treating physician. However, Dr. McGuire has only examined claimant on a few occasions. He is not the surgeon who has performed the surgery. In addition, Dr. McGuire does not have the same number of years of experience which Dr. Hayne has. Claimant has established the requisite burden of proof that he has sustained permanent impairments to his low back as a result of both work injuries in question. Claimant alleges that he has sustained an industrial disability as a result of the two work injuries. There is no question there are objective findings to support his permanent condition. As mentioned several times before, claimant has recovered from his surgery. His progress is quite remarkable. He has been motivated to rehabilitate himself and to return to work. He has exhibited a strong desire to return to his former condition. After having reached maximum medical improvement from the first work injury, claimant returned to work. At that time, restrictions were lifted from him. Dr. Hayne has acknowledged there are some restrictions which are inherent to claimant's job. For example: Dr. Hayne has testified, claimant is not allowed to lift more than 50 pounds or to engage in repetitive bending. (Ex. p. 522) Since the restrictions are outside of the job, claimant can return to work. He had returned to the same job at the same rate of pay. Claimant had performed his job duties in a satisfactory manner and without incident from May 21, 1987 through the date of the second injury, April 18, 1991. It is the determination of the undersigned that as a result of the work injury on September 15, 1986, claimant has sustained a permanent partial disability in the sum of 10 percent. He is entitled to 50 weeks of permanent partial disability benefits at the stipulated rate of $687.00 per week and commencing on April 6, 1987. Claimant has also proven by a preponderance of the evidence that he has sustained an industrial disability as a result of the work injury on April 18, 1991. This deputy recognizes that even after the second work injury, claimant had returned to his former job. Claimant once again exhibited outstanding motivation. Defendant is commended for returning claimant to his same position at the same rate of pay. Claimant had continued in the job of foreman ofjourneymen splicers until he was medically disqualified from it. The medical disqualification had not been due to any work injuries. Rather the disqualification was for reasons other than the back condition. The disqualification had resulted because claimant could not wear a respirator which is required by the Division of Labor Services. Once claimant had been medically disqualified from his position as a cable splicer foreman, he then "bumped into" his current position of storesman. He is now compensated at a lesser rate of pay. Initially, the reduction in wages had nothing to do with the back condition. However, as of January 20, 1993, Dr. Hayne opined that claimant is to avoid lifting greater than 35 to 40 pounds; he is to avoid the frequent climbing of ladders;, and he is to alternate between sitting, standing, and walking. (Ex. p. 501-502) His current restrictions are the result of the second work injury. Consequently, claimant is precluded from working at his former position. Now his back condition prevents him from ever returning to the position of cable splicer foreman which pays $20.43 per hour. (Ex. pp. 500-501) He has experienced a loss of earning capacity and an actual loss of wages. He can no longer perform the same duties. His work injuries prevent him from engaging in the same positions, even if he is able to wear a respirator. It is the determination of the undersigned that claimant has sustained a 10 percent permanent partial disability as a result of the work injury on April 18, 1991. Claimant is entitled to 50 weeks of benefits commencing on June 14, 1991 and payable at the stipulated rate of $785.00 per week. ORDER THEREFORE, it is ordered: With respect to file number 834562, defendant shall pay unto claimant fifty (50) weeks of permanent partial disability benefits at the stipulated rate of four hundred two and 49/l00 dollars ($402.49) per week and commencing on April 6, 1987. With respect to file number 986903, defendant shall pay unto Claimant fifty (50) weeks of permanent partial disability benefits at the stipulated rate of four hundred forty-three and 34/l00 dollars ($443.34) per week and commencing on June 14, 1991. Defendants shall take credit for all permanent partial disability benefits previously paid to claimant as a result of file number 834562. Accrued benefits are to be paid in a lump sum together with statutory interest at the rate of ten percent (10%) per year. Costs are taxed to defendant pursuant to rule 343 IAC 4.33 and as set forth in claimant's request for costs. Defendant shall file a claim activity report as requested by this division and pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of August, 1993. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Thomas J. Reilly Attorney at Law 4900 University STE 200 Des Moines, Iowa 50311 Mr. Cecil L. Goettsch Attorney at Law 801 Grand Avenue Suite 3700 Des Moines, Iowa 50309 5-1800 Filed August 27, 1993 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JOHN AMODEO, File Nos. 834562 986903 Claimant, A R B I T R A T I O N vs. D E C I S I O N IOWA POWER AND LIGHT COMPANY, Employer, Self-Insured, Defendant. ___________________________________________________________ 5-1800 Claimant sustained two work related injuries which each resulted in 10 percent permanent partial disabilities. These were classic low back conditions. Claimant had returned to work at defendant's business establishment. BEFORE THE IOWA INDUSTRIAL COMMISSIONER AMY Y. SCHULTE as Administrator of the Estate of GERALD W. SCHULTE, File No. 834668 Claimant, D E C I S I O N vs. O N BOYER VALLEY COMPANY, INC., E Q U I T A B L E Employer, A P P 0 R T I O N M E N T and LIBERTY MUTUAL, Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding to determine the apportionment of compensation benefits payable as a result of the death of Gerald Schulte which arose out of and in the course of his employment. This matter came on for hearing before the undersigned deputy industrial commissioner August 31, 1988. The record was considered fully submitted at the conclusion of the hearing. The record in this matter consists of the testimony of Amy Schulte, Christine Ellis, and Susan Schulte; and exhibits 1 through 6, inclusive. ISSUE The sole issue presented for resolution is how the benefits resulting from the death of Gerald Schulte should be apportioned. FACTS PRESENTED Decedent, Gerald W. Schulte, died on October 6, 1986 as a result of personal injuries arising out of and in the course of his employment with Boyer Valley Company, Inc., at Denison, Iowa. At the time of his death, decedent was married to Amy Y. Schulte and with her had two children, Cody William Schulte, born November 27, 1984, and Taya LaRae Schulte, born June 13, 1986. Decedent was previously married to Christine Ellis and the issue of that marriage is Susan Marie Schulte, born February 13, 1976. The marriage between Gerald and Christine ended on May 9, 1977 when a decree of dissolution was entered in the District Court of Iowa in and for Carroll County, the terms of which provided that decedent pay child support in the amount of $125 per month. Decedent was current in this obligation at the time of his death. Amy Schulte, Cody Schulte, and Taya Schulte each receive $358 per month in social security benefits. Amy testified that the family's average expenses at the time of decedent's death were $1,875 per month including the child support obligation to SCHULTE V. BOYER VALLEY COMPANY, INC. PAGE 3 Susan Marie Schulte. (See Exhibit 5) Amy did not work outside the home and she testified the family was wholly dependent upon decedent's earnings. In 1985, decedent had earnings of $28,632 and in 1986 he had earnings of $23,916. Christine Ellis testified that up until the time of decedent's remarriage, decedent regularly exercised visitation with Susan, that he provided, in addition to the child support payments, food and clothing, that he had input on how Susan was raised, and Christine characterized their overall relationship as generally good." Christine explained she is currently married to Mr. Ellis who paid for their home without the necessity of financing, who will turn 62 in October 1988, who is a self-employed dairy owner, and who earns approximately $14,000 per year. Christine, who has another child about to turn two years old, does not work outside the home. Christine stated that Susan has a savings account with a balance of $2,162 which consists of the workers' compensation benefits she has received thus far and that Susan also receives $358 per month in social security benefits. Christine estimated Susan's estimated expenses to be $449.16 which, when considering the amount of social security benefits she receives, leaves a monthly deficit of $91.16. Susan Schulte testified she is currently 12 years old and that she went on trips with her late father to such places as Kansas City, Omaha and Texas, and that he gave her gifts and brought her food. Susan resides with her mother and stepfather. APPLICABLE LAW Iowa Code section 85.43 provides: If the deceased employee leaves a surviving spouse qualified under the provisions of section 85.42, the full compensation shall be paid to the surviving spouse, as provided in section 85.31; provided that where a deceased employee leave a surviving spouse and a dependent child or children the industrial commissioner may make an order of record for an equitable apportionment of the compensation payments. If the spouse dies, the benefits shall be paid to the person or persons wholly dependent on deceased, if any, share and share alike. If there are none wholly dependent, then such benefits shall be paid to partial dependents, if any, in proportion to their dependency for the periods provided in section 85.31. If the deceased leaves dependent child or children who was or were such at the time of the injury, and the surviving spouse remarries, then and in such case, the payments shall be paid to the proper compensation trustee for the use and benefit of such dependent child or children for the period provided in section 85.31. Iowa Code section 85.42 provides, in part: The following shall be conclusively presumed to be wholly dependent upon the deceased employee: 1. The surviving spouse .... .... 2. A child or children under eighteen years of age, and over said age if physically or mentally SCHULTE V. BOYER VALLEY COMPANY, INC. PAGE 3 incapacitated from earning, whether actually dependent for support or not upon the parent at the time of the parent's death. An adopted child or children shall be regarded the same as issue of the body. A child or children, as used herein, shall also include any child or children conceived but not born at the time of the employee's injury, and any compensation payable on account of any such child or children shall be paid from the date of their birth. A stepchild or stepchildren shall be regarded the same as issue of the body only when the stepparent has actually provided the principal support for such child or children. Iowa Code section 85.31 provides, in part: 1. When death results from the injury, the employer shall pay the dependents who were wholly dependent on the earnings of the employee for support at the time of the injury, during their lifetime, compensation upon the basis of eighty percent per week of the employee's average weekly spendable earnings, commencing from the date of death as follows: a. To the surviving spouse for life or until remarriage, provided that upon remarriage two years' benefits shall be paid to the surviving spouse in a lump sum, if there are no children entitled to benefits. b. To any child of the deceased until the child shall reach the age of eighteen, provided that a child beyond eighteen years of age shall receive benefits to the age of twenty-five if actually dependent, and the fact that a child is under twenty-five years of age and is enrolled as a full-time student in any accredited educational institution shall be a prima facie showing of actual dependency. Iowa Code section 85.49 provides: When a minor or mentally incompetent dependent is entitled to weekly benefits under this chapter, chapter 85A or chapter 85B, payment shall be made to the clerk of the district court for the county in which the injury occurred, who shall act as trustee, and the money coming into the clerk's hands shall be expended for the use and benefit of the person entitled to it under the direction and orders of a district judge. The clerk of the district court, as trustee, shall qualify and give bond in an amount as the district judge directs, which may be increased or diminished from time to time. If the domicile or residence of the minor or mentally incompetent dependent is within the state but in a county other than that in which the injury to the employee occurred the industrial commissioner may order and direct that weekly benefits be paid to the clerk of the district court of the county of domicile or residence. If the domicile or residence of such minor or mentally incompetent dependent be outside the state of Iowa the industrial commissioner may order and direct SCHULTE V. BOYER VALLEY COMPANY, INC. PAGE 4 that benefits to such minors or incompetents be paid to a guardian, conservator, or legal representative duly qualified under the laws of the jurisdiction wherein the minors or incompetents shall be domiciled or reside. Proof of the identity and qualification of such guardian, conservator, or other legal representative shall be furnished to the industrial commissioner. ANALYSIS Under Iowa Code section 85.42, the surviving spouse and children under 18 years of age, whether actually dependent for support or not upon the parent at the time of the parent's death, are conclusively presumed dependents. It is without dispute that Amy, Cody, Taya and Susan are conclusively presumed dependents of decedent and are thus entitled to a share in the benefits. Unfortunately, perhaps, the statute does not determine how the benefits shall be apportioned but leaves it to the discretion of the industrial commissioner or his deputy to determine what is equitable in the matter. To do so, one must look beyond the fact that all are dependents and what is, in fact, equitable for equitable cannot and does not connote that each must receive an equal or, the same, share. Amy, Cody and Taya have established they were wholly dependent upon the earnings of decedent for their support. Amy does not work outside the home and the evidence fails to establish there was any other outside source of income for this family. Clearly, Susan has not established the same point since, up until the time of his death, Susan received $125 per month in child support from her father and had expenses estimated at almost $450 per month. Likewise, even with the receipt of $358 per month in social security benefits, Susan's monthly expenses will exceed her monthly financial resources. While there was no direct testimony of how the financial resources of Mr. Ellis, Susan's stepfather, are used in the household, it is reasonable to assume that some of his financial resources are available to Susan since neither Susan nor Christine work outside the home. In addition, Susan has placed all of her funds from the workers' compensation benefits received to date into a savings account and appears not to have had to resort to them for any of the list of expenses. Susan, with the receipt of social security benefits, estimates a monthly deficit of $91.16 while Amy, Cody and Taya have an estimated monthly deficit of $678 after considering each receives $358 per month in social security benefits. Each, it cannot be disputed, has their own hopes and dreams for the future which will undoubtedly require some financing necessitating some ability to save and therefore to have some financial resources over and above expenses. To be equitable, in the opinion of the undersigned, each then should be able to meet their expenses and still have something left for their savings. Accordingly, it is determined that Amy, Cody and Taya Schulte are entitled to 85 percent of the weekly benefits or $239.97 per week and that Susan Schulte is entitled to 15 percent of the weekly benefits or $42.35 per week. This allows each family unit to meet their expense deficit and still be able to save almost equal amounts for their future. SCHULTE V. BOYER VALLEY COMPANY, INC. PAGE 5 FINDINGS OF FACT Wherefore, based on all the evidence presented, the following findings of fact are made: 1. Gerald Schulte's death on October 6, 1986 arose out of and in the course of his employment. 2. At the time of his death, decedent was married to Amy Y. Schulte and had two children, Cody William Schulte, and Taya LaRae Schulte. 3. Decedent was previously married to Christine Ellis and during this marriage fathered Susan Marie Schulte. 4. The marriage to Christine was dissolved May 9, 1977 and decedent was required to pay $125 per month in child support payments. 5. At the time of his death, decedent was current on his child support payments. 6. Amy, Cody, Taya and Susan each receives $358 per month in social security benefits and Amy, Cody and Taya were wholly dependent on decedent's wages having no other source of income at the time of decedent's death. 7. The family expenses for decedent, Amy, Cody and Taya at the time of decedent's death were $1,875 and remain about the same to date. 8. Susan's monthly expenses are $449.16 including a $50 housing allowance although she lives with her mother and stepfather in a home which is paid for. CONCLUSIONS OF LAW Wherefore, based on the principles of law previously stated, the following conclusions of law are made: 1. Amy, Cody, Taya and Susan Schulte are conclusively presumed dependents of decedent and are entitled to a share in the benefits payable as a result of the death of Gerald Schulte which arose out of and in the course of his employment. 2. Amy, Cody and Taya Schulte are entitled to 85 percent of the weekly benefits payable or $239.97 per week. 3. Susan Marie Schulte is entitled to a 15 percent share of the benefits or $42.35 per week. ORDER THEREFORE, IT IS ORDERED: Defendants are to pay unto Amy Y. Schulte for herself and for the benefit of Cody William Schulte and Taya LaRae Schulte weekly benefits equal to eighty-five percent (85%) of the rate of compensation or two hundred thirty-nine and 97/100 dollars ($239.97) per week for as long as each is eligible to receive benefits. Defendants are to pay unto the Clerk of District Court for Woodbury County, Acting Trustee, for Susan Marie Schulte weekly SCHULTE V. BOYER VALLEY COMPANY, INC. PAGE 6 benefits equal to fifteen percent (15%) of the appropriate rate of compensation or forty-two and 35/100 dollars ($42.35) until such time she is no longer eligible to receive benefits. Should Amy Schulte remarry or should a child no longer be eligible to receive benefits, those benefits shall be equally divided among those individuals still eligible to receive benefits at that time. Costs in this matter are assessed against defendants pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 9th day of September, 1988. DEBORAH A. DUBIK DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Joseph B. Reedy Attorney at Law 227 S Sixth St Council Bluffs, IA 51501 Mr. Jack R. Gray Attorney at Law 423 Court Street Rockwell City, IA 50579 Mr. James M. Cosgrove Attorney at Law 1109 Badgerow Bldg P.O. Box 1828 Sioux City, IA 51102 1200 Filed September 9, 1988 Deborah A. Dubik BEFORE THE IOWA INDUSTRIAL COMMISSIONER AMY Y. SCHULTE as Administrator of the Estate of GERALD W. SCHULTE, File No. 834668 Claimant, D E C I S I O N vs. O N BOYER VALLEY COMPANY, INC., E Q U I T A B L E Employer, A P P O R T I O N M E N T and LIBERTY MUTUAL, Insurance Carrier, Defendants. 1200 In a proceeding to determine the apportionment of compensation benefits payable as a result of the death of Gerald Schulte which arose out of and in the course of his employment, it was determined the surviving spouse and decedent's children from his current marriage were entitled to an 85% share and the child from his previous marriage was entitled to a 15% share. 5-1108.50 Filed June 28, 1991 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : JAMES LANCASTER, : : Claimant, : File No. 834731 : vs. : A R B I T R A T I O N : ARA/SMITH, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ____________________________________________________________ 5-1108.50 Claimant proved neck injury was causally related to work, but not other symptoms. before the iowa industrial commissioner ____________________________________________________________ : DOROTHY GORMAN, : : Claimant, : : vs. : : File No. 834841 WESTERN INTERNATIONAL, INC., : : A P P E A L Employer, : : D E C I S I O N and : : THE HARTFORD, : : Insurance Carrier, : Defendants. : ___________________________________________________________ The record before the deputy has been reviewed de novo on appeal. The decision of the deputy granting defendants' motion for summary judgment is affirmed and is adopted as the final agency action in this case. Claimant shall pay all costs of this proceeding. Signed and filed this ____ day of November, 1990. ________________________________ CLAIR R. CRAMER ACTING INDUSTRIAL COMMISSIONER Copies To: Mr. Timothy J. Walker Mr. Thomas Henderson Attorneys at Law 1300 First Interstate Bank Bldg. Des Moines, Iowa 50309 Mr. Jeff M. Margolin Attorney at Law 2700 Grand Ave., Suite 111 Des Moines, Iowa 50312 9998 Filed November 28, 1990 DRR Clair R. Cramer before the iowa industrial commissioner ____________________________________________________________ : DOROTHY GORMAN, : : Claimant, : : vs. : : File No. 834841 WESTERN INTERNATIONAL, INC., : : A P P E A L Employer, : : D E C I S I O N and : : THE HARTFORD, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 9998 Summary affirmance of deputy's ruling on motion for summary judgment. Page 1 before the iowa industrial commissioner ____________________________________________________________ : DUANE BEVINS, : : Claimant, : : vs. : : File Nos. 834865/881784 FARMSTEAD FOODS, : 877458/888705 : Employer, : : A P P E A L and : : D E C I S I O N EMPLOYERS MUTUAL COMPANY, : : Insurance Carrier, : : and : : SECOND INJURY FUND OF IOWA,: : Defendants. : ___________________________________________________________ Subsequent to the filing of the appeal and cross-appeal, claimant and defendants entered into a full commutation settlement that was approved by this agency. The sole remaining issues on appeal concern the liability of the Second Injury Fund of Iowa. The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy is affirmed and is adopted as the final agency action in this case, with the following additional analysis: The liability of the Second Injury Fund is not limited to cases where the prior loss is confined to a "scheduled" member. The list of body members mentioned in Iowa Code section 85.64 differs from the schedule of members set forth in Iowa Code section 85.34(2). A prior loss for purposes of section 85.64 must result in the loss or loss of use of a hand, arm, foot, leg or eye. It is also established in the law that a prior loss that affects a member enumerated in section 85.64 will trigger fund liability even if the loss extends to the body as a whole. In such a case, a determination must be made as to the disability caused by the prior loss. Second Injury Fund v. Neelans, 436 N.W.2d 355 (Iowa 1989); Second Injury Fund v. Braden, 459 N.W.2d 467 (Iowa 1990); Second Injury Fund v. Mich Coal Co., 274 N.W.2d 300 (Iowa 1979). The deputy determined that, as a result of his two injuries on February 15, 1988, claimant had a 55 percent industrial Page 2 disability. In the commutation proceedings, claimant and defendants stipulated that as a result of the work injury of February 15, 1988, claimant had an industrial disability of 56 percent. The Second Injury Fund of Iowa was not a party to the stipulation, and is therefore not bound by it. Similarly, since the Second Injury Fund of Iowa was not a party to the commutation proceedings, it is not bound by the approval of the commutation. Although the determination of 56 percent industrial disability as a result of the February 15, 1988, injuries is binding on the defendants and claimant, claimant's disability from those injuries for purposes of determining the amount of offset or credit the fund is entitled to in this appeal will be determined anew. The deputy's findings of fact and conclusions of law concerning claimant's industrial disability subsequent to his February 15, 1988 injuries is also adopted herein. That is, claimant's total overall industrial disability as a result of the combined effect of his injuries does not exceed the disabilities from his various injuries when viewed in isolation. Claimant's total present industrial disability is fully compensated by the awards against defendants for the prior losses and the February 15, 1988 injuries. The Second Injury Fund is not obligated to pay claimant any further benefits. Interest accrues from the onset of permanency in arbitration cases. For case number 834865, claimant's right elbow injury on September 17, 1986, claimant's healing period ended on November 10, 1986. Claimant's permanency began at that time, not when it was rated over a year later by the physician. Interest on unpaid benefits for this injury shall accrue from November 10, 1986. Defendants and claimant shall jointly pay the costs of the appeal, including the preparation of the appeal transcript, in equal shares. Signed and filed this ____ day of November, 1991. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. James M. Peters Attorney at Law 1200 MNB Bldg. Cedar Rapids, Iowa 52401 Mr. E. J. Giovannetti Attorney at Law 2700 Grand Ave., Suite 111 Des Moines, Iowa 50312 Page 3 Mr. Robert D. Wilson Assistant Attorney General Tort Claims Division Hoover State Office Bldg. Des Moines, Iowa 50319 3202; 3800 Filed November 26, 1991 Byron K. Orton BJO before the iowa industrial commissioner ____________________________________________________________ : DUANE BEVINS, : : Claimant, : : vs. : : File Nos. 834865/881784 FARMSTEAD FOODS, : 877458/888705 : Employer, : : A P P E A L and : : D E C I S I O N EMPLOYERS MUTUAL COMPANY, : : Insurance Carrier, : : and : : SECOND INJURY FUND OF IOWA,: : Defendants. : ___________________________________________________________ 3202 Deputy's award of permanent partial disability affirmed. However, deputy's statement that Second Injury Fund was not liable because the injury to claimant's arm extended to the body as a whole was corrected in appeal decision. Under Neelans, Braden, and Mich Coal, even an injury to the body as a whole may qualify for Second Injury Fund benefits as long as a member enumerated in 85.64 is affected. The deputy must ascertain the industrial disability attributable to that injury to determine the "credit" the fund receives for that injury. 3800 Deputy's determination of interest accrual changed on appeal. Interest on unpaid benefits accrues from the onset of permanency (end of the healing period) and not from the date claimant was given a permanency rating by his doctor. Page 1 before the iowa industrial commissioner ____________________________________________________________ : ROBERT HOBBS, : : Claimant, : : vs. : : File No. 834874 WRIGHT TREE SERVICE, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : UNITED STATES FIDELITY AND : GUARANTY COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in arbitration upon claimant's petition filed June 30, 1987. Claimant sustained an injury arising out of and in the course of his employment with defendant Wright Tree Service on September 16, 1986, while lifting a log or branch. He now seeks benefits under the Iowa Workers' Compensation Act from Wright Tree Service and its insurance carrier, United States Fidelity and Guaranty Company. Hearing on the arbitration petition was had in Des Moines, Iowa, on September 14, 1989. The record consists of joint exhibits 1 through 13 and defendants' exhibit C along with the testimony of the following witnesses: claimant, Robert Burris and James Zaugg. In addition, claimant's exhibit 14 and defendants' exhibits A and B were offered over objection, ruling being reserved for this decision. Defendants' objection to claimant's exhibit 14 is overruled and the exhibit is hereby received. Claimant's objection to defendants' exhibit A is sustained as to the first two pages (8 and 9) for the reason that those pages have not been shown to relate to claimant as opposed to an unrelated individual by the same name; accordingly, they are not relevant to any issue in this case. However, claimant's objection to the last three pages of that exhibit (10, 11 and 12) is overruled and those pages are hereby received. Claimant's objection to defendants' exhibit B is overruled and the exhibit is hereby received. issues Pursuant to the prehearing report, the parties have Page 2 stipulated: that claimant sustained an injury arising out of and in the course of his employment with Wright Tree Service on September 16, 1986; that if the injury caused temporary disability, claimant is entitled to healing period or temporary total disability from September 17 through November 23, 1986; that if claimant has sustained permanent disability, it is an industrial disability to the body as a whole; that affirmative defenses are waived; that medical benefits are no longer at issue. Issues presented for resolution include: whether the work injury caused either temporary or permanent disability and the extent of the latter; claimant's rate of compensation (his gross weekly earnings at the time of injury are stipulated as $436.05, but claimant's marital status and entitlement to exemptions is in dispute); whether defendants are entitled to credit for payments made prior to hearing; whether claimant is entitled to penalty benefits under Iowa Code section 86.13; taxation of costs. findings of fact The undersigned deputy, having heard the testimony and considered all of the evidence, finds: Claimant was born on June 29, 1944, being 46 years of age at time of hearing, and attended the tenth grade. He is unable to read or write. His work history includes employment as a roofer, a carpenter, in an auto body repair shop, in construction and in the tree removal business in self-employment and for at least two companies, including defendant. Since the injury, claimant has worked as a laborer and driver for an asphalt company primarily engaged in parking lot construction, and with an enterprise known as Freeman's Decorating, where claimant is currently employed on a full-time basis with some overtime. Claimant has been married three times. He was briefly married in 1961 and again in 1963. The second marriage lasted until dissolved in approximately 1976 to 1983 (claimant's testimony at hearing and in his deposition of November 22, 1988 varied widely on this point). The marriage produced four children, none of whom claimant supports or claims as exemptions. The third marriage, to Penny Hobbs, is at the root of the rate dispute. They were formally married in approximately May, 1987, but cohabited prior to that. Penny had four minor children aged 7 through 12 in 1986. Claimant was not the natural or adoptive father of any of these children. However, claimant supported Penny and the children during the times they cohabited (claimant's brief concedes that the relationship "was a rocky one," frequently punctuated by periods of separation). Penny apparently used claimant's last name before the formal wedding, at least at times, and during some of the times that she and claimant lived together (in claimant's words, "as man and wife") for five years before 1987. Penny herself was not called to testify as to whether and when she intended that a marital relationship existed or whether she Page 3 was cohabiting with claimant on the injury date. Claimant's memory as to dates and sequences of events has been shown to be flawed in many instances and is not reliable. When claimant visited the Des Moines General Hospital emergency room on September 22, 1986 (the first medical treatment he sought post-injury), admissions records reflect that no spouse was named and that claimant's mother was the nearest relative. No other emergency contact was named. Claimant's marital status was listed as "divorced." Generally, it cannot be said that claimant has established as fact that he was cohabiting with Penny Hobbs on or about September 16, 1986, continuously or otherwise, that claimant (or Penny Hobbs) intended to be then married, or that there was any holding out to the public in general that any such marriage existed. Although claimant no doubt provided some voluntary support to Penny and her children from time to time during the years around 1986, claimant did not list the children as dependents for Internal Revenue Service purposes or for payroll deductions and retained no records of what support he has provided for the children. The work injury occurred on September 16 or 17, 1986, while claimant was trying to lift a heavy log (variously described as from 75-300 pounds in claimant's deposition and medical histories) and felt a "pop" in his back with immediate pain. Claimant finished the day, but on the next day was unable to get out of bed. When claimant presented to Des Moines General Hospital on September 22, he had exquisite tenderness in the paravertebral area and diffuse paravertebral spasm and straight leg raising was markedly restricted by back pain. Claimant's treating physician was David McClain, D.O., who was first seen on September 24. Claimant at that time continued to complain of pain in the back and legs. His lumbar spine revealed a positive tilt to the right and claimant had paraspinal muscle spasms with right flexors decreased. Dr. McClain's impression was of acute lumbosacral strain and claimant was advised not to work. When claimant complained of increased pain on September 30, he was readmitted to Des Moines General Hospital. Dr. McClain's final diagnosis after discharge on October 4 was of acute lumbosacral strain. Claimant was also followed at this time for an unrelated cardiac problem. He was eventually given an unrestricted return to work by Dr. McClain on November 20, 1986, effective November 24. On February 12, 1987, Dr. McClain wrote that claimant's lumbosacral strain had been resolving in November and that claimant was to return in six weeks for reexamination, but apparently did not do so. Claimant "most probably did not sustain a permanent impairment from the September 16, 1986 trauma." Radiographic studies at the time of claimant's hospitalization were essentially normal. Claimant was also seen by neurologist Michael J. Stein, D.O., who did not find objective signs but suspected that claimant might have a disc syndrome because of his gait and reported pain. Page 4 Claimant was seen for consultation on October 3, 1986 by J. Doro, D.O. Dr. Doro noted claimant's history of back injury while lifting a heavy log and described his impression as acute lumbosacral injury, but did not believe claimant suffered radiculopathy. He recommended conservative treatment and anticipated that the condition would slowly resolve. Claimant was also seen by Thomas Carlstrom, M.D., in 1988. Magnetic resonance imaging was read by Robert Mc Cleeary, M.D., on April 27, 1988. Dr. Mc Cleeary's impression was of mild diffuse bulging of L4-5 without definite displacement of the neural elements. Dr. Carlstrom wrote on May 5 that the small bulging disc was not clinically significant and recommended further conservative treatment, possibly including an exercise program and "semi-permanent" job restrictions of unspecified type. Dr. Carlstrom believed that claimant had suffered a permanent impairment caused by the work injury of about 10 percent of the body as a whole based upon significant diminished range of motion of the lower back. Dr. Carlstrom further opined that claimant probably reached maximum benefits of healing around the summer of 1987. Claimant began his employment with Wright Tree Service on August 28, 1980. The work was seasonal in nature and he was laid off every year for the winter, generally about Christmas time by his recollection. Claimant was first laid off on October 30, 1981. In 1982, he worked from May until July 31; in 1983, from October until November 25; in 1985, from June until the week of December 28. In 1986, when claimant returned with his medical release, he was not rehired. He was advised by supervisor Ross Huney that there was insufficient work available, but Huney also made a reference to claimant's age and other crews were busy at that time. Huney testified by deposition on December 11, 1988. He is now self-employed, but certainly has reason to remember defendant fondly, since Wright Tree Service helped set him up in business when the residential tree service division he had supervised was shut down. While emphasizing that claimant was not rehired because of a lack of work, he conceded that he did not wish to rehire claimant because of dissatisfaction with his job performance. Unfortunately, defendants' attorney instructed Huney to refuse testimony on numerous relevant issues on the spurious grounds that discovery as to penalty benefits is improper if that issue is tried with the other issues in the case. She persisted in this instruction even after claimant's attorney properly specified the relevance of his questions on the issue of industrial disability. However, it seems fair to infer that where a party has the power to produce explicit and direct evidence and elects not to, that evidence would lay open deficiencies in its case. Crosser v. Iowa Dep't of Public Safety, 240 N.W.2d 682 (Iowa 1976). It is so inferred. Defendants' refusal to rehire claimant when he was medically released was in part due to his work injury and age Page 5 combined. Claimant's job with defendant was the most highly paid position he has ever held at an hourly rate of $9.69 and an average of 45 hours per week. Claimant next worked for Double T Asphalt from August 12 through December 19, 1987 before being laid off, and again from March 17 through August 19, 1988. This position involved heavy work shoveling asphalt and concrete and paid $7.00 per hour. Claimant proved able to do the entire job and did not complain of back problems, even working some overtime. Although claimant missed a lot of work (20 days in 1987 and 19 in 1988), it was generally reported as for family illness, not his own. Although claimant alleges that he eventually quit the job due to increasing back pain, Double T Asphalt was informed that he was leaving due to a pneumonia infection. Claimant had not disclosed his back injury on the job application. In fact, it should be noted that claimant had a long history of back injuries predating the subject work injury, although there is no indication that he suffered permanent impairment or that medical restrictions had been imposed. After quitting that job, claimant worked on odd jobs and as a mechanic before his next regular employment. Claimant testified that he averaged $100-$200 a week on these odd jobs, but kept no records for tax purposes or otherwise. Asked about his gross earnings from this self-employment, claimant conceded that he had kept some records at home in a box and that he had failed to turn these over to defendants in response to a request for production of documents. It seems also fair to infer that production of these documents would have laid open deficiencies in claimant's case, and it is therefore concluded that his self-employment earnings were substantially higher than claimant indicated in testimony. Claimant was next employed by Freeman Decorating as a laborer, commencing employment on January 24, 1989. Although that employer considers him "part-time," he works about 48 hours per week, earning $5.50 per hour. Claimant was off work from February 20 through September 11, 1989 by reason of a broken leg sustained in that employment. He was returned to work without medical restrictions. James Zaugg, Freeman's general manager, testified that the job involves much lifting and manual labor and that claimant has performed the work without complaint. Claimant was still employed in that position as of the date of hearing, but testified to his uncertainty as to how long the relationship will continue, since he failed to report his real reason for absence on the hearing date. conclusions of law The parties stipulate that claimant sustained an injury arising out of and in the course of his employment, but dispute whether the injury caused temporary or permanent disability. The record overwhelmingly establishes that the injury caused temporary disability. Dr. McClain, Dr. Doro Page 6 and Dr. Carlstrom have all opined to the existence of the required causal nexus. No contrary evidence appears of record. It is held that claimant has sustained his burden of proof on the issue of entitlement to healing period benefits. Under Iowa Code section 85.34(1), healing period is compensable beginning on the date of injury and until the employee has returned to work, it is medically indicated that significant improvement from the injury is not anticipated, or until the employee is medically capable of returning to substantially similar employment, whichever first occurs. Dr. McClain, the treating physician, returned claimant to work without restrictions effective November 24, 1986. Therefore, the first of the factors set forth above ended the healing period on November 23, 1986, when claimant was medically capable of returning to substantially similar employment. As claimant first missed work on September 17th, he is entitled to healing period benefits of 9 weeks, 5 days, minus one day that he actually worked. The parties further dispute whether the work injury caused permanent disability. While Dr. McClain believed it "probable" that no permanent impairment would result, he last saw claimant while the problem was still resolving and his opinion is actually in the nature of a prediction. Dr. Carlstrom, on the other hand, objectively found significant limitations in claimant's range of motion that he causally related to the work injury. There is no contrary medical opinion of record as to claimant's status in 1988, or at any time after Dr. McClain expected complete resolution of the lumbosacral sprain. It is held that claimant has established that he suffers a permanent impairment causally related to the work injury. Yet, physical impairment does not directly and unfailingly establish industrial disability. 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, expe rience 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 disabil ity. This is so as impairment and disability are not syn onymous. 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. Page 7 Factors to be considered in determining industrial dis ability 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 dis ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, l985). Claimant has had no permanent medical restrictions imposed because of the subject work injury. He is capable of performing the same work in the tree trimming business as he could prior to his injury. However, claimant does have a not insubstantial physical impairment resulting from the injury in that his range of motion has been reduced. Further, claimant is to some degree less attractive to potential future employers because of this history of back injury (of course, the extent of this reduction in attractiveness as a prospective employee has not been tested to date, since claimant has not informed his subsequent employers of the defect). Also, defendants severed the employment relationship at least in part due to the work injury and its combined effect with claimant's age. Claimant has suffered a reduction in his actual earnings, as he has worked in less remunerative employment. Claimant continues to suffer pain, although it must be said that he has demonstrated the ability to maintain full employment over a substantial time in heavy manual labor, even including substantial overtime. Considering the record in general and these factors in particular, it is held that claimant has established a permanent partial disability of 15 percent of the body as a Page 8 whole, or 75 weeks. The commencement date of permanent partial disability liability is November 24, 1986, or the day after claimant's healing period ended. A lump sum payment of permanent partial disability benefits was made after Dr. Carlstrom's opinion in 1988. Claimant correctly points out that interest accrues on permanent partial disability benefits as they accrue from the end of the healing period. Good or bad faith in refusing earlier payment of permanency benefits is irrelevant, since interest is not a penalty. Benson v. Good Samaritan Center, file number 765734 (App. Decn., October 18, 1989). Claimant also alleges entitlement to penalty benefits under Iowa Code section 86.13. Such benefits may be recovered if a delay in the commencement of benefits occurs without reasonable or probable cause or excuse. In this case, healing period benefits were promptly paid totalling 9 weeks, 4 days. The commencement date was September 17 and the termination date was November 23. It was noted that claimant worked September 22, and the evidence in this case establishes that claimant continued to work on September 16. Healing period benefits are a substitute for income and should not be considered payable on full days that claimant actually worked. It is held that there was no improper delay in the payment of healing period benefits and no entitlement to penalty benefits based thereon. Defendants did not pay permanent partial disability benefits until 1988. Of course, it was only in 1988 that there appeared any medical basis for believing claimant to be permanently disabled. Dr. McClain released claimant without restrictions and in the expectation of a complete recovery. There was no unreasonable delay in making this voluntary payment. Claimant also asserts that the voluntary payment was unreasonable in that his actual disability was much greater than his impairment rating. This observer believes otherwise and notes that defendants could quite reasonably believe claimant's industrial disability to be minimal in that he had no medical restrictions and did continue to work heavy manual labor for a substantial period after he discontinued seeing Dr. McClain. There is no suitable basis for an award of penalty benefits. The remaining issue is claimant's rate of compensation. The parties agree that his average gross weekly wage totalled $436.05. The disagreement is to claimant's marital status and entitlement to exemptions. Although claimant eventually married Penny Hobbs, the formal ceremony had not yet been performed at the time of injury. A common law marriage can be established by proof of intent and the agreement in praesenti to be married by both parties combined with continuous cohabitation and a public declaration that the parties are husband and wife. In re Marriage of Winegard, 278 N.W.2d 505 (Iowa 1978). There is no public policy favoring common law marriage in Iowa. In re Marriage of Reed, 226 N.W.2d 795 (Iowa 1975). Where Page 9 cohabitation is illicit initially, affirmative proof of a present intent to rechange the relationship to a marital one is required. In re Marriage of Boyington, 157 Iowa 467, 137 N.W. 949 (1912). The burden of proof is on the party asserting the marriage to establish its existence by a preponderance of the evidence. In re Marriage of Grother, 242 N.W.2d 1 (Iowa 1976). Claimant has failed to establish the existence of a marital relationship by a preponderance of the evidence. When he sought hospitalization, he listed his mother as closest relative and made no mention of Penny (Hobbs?). He listed his marital status as "divorced." Although claimant resided with Penny for some time on an intermittent basis, he agreed that they were not married in 1984 or 1985 and there is no showing of any subsequent present intent to change the relationship to a marital one. Penny herself did not offer testimony as to her intent (or on whether cohabitation existed at the time of the work injury, continuous or otherwise). While claimant may have intermittently provided support for Penny and her children, he had no legal obligation to do so. His rate must be calculated on the basis of a single individual with entitlement to one exemption. The Guide to Iowa Workers' Compensation Claim Handling published by this office and effective July 1, 1986, reflects that an individual so situated is entitled to a weekly rate of $251.49. order THEREFORE, IT IS ORDERED: Defendants are to pay unto claimant nine point five seven one (9.571) weeks of healing period benefits at the rate of two hundred fifty-one and 49/100 dollars ($251.49) per week commencing September 17, 1986 and totalling two thousand four hundred seven and 01/100 dollars ($2,407.01). Defendants shall pay unto claimant seventy-five (75) weeks of permanent partial disability at the rate of two hundred fifty-one and 49/100 dollars ($251.49) per week commencing November 24, 1986 and totalling eighteen thousand eight hundred sixty-one and 75/100 dollars ($18,861.75). Defendants shall have credit for all healing period and/or permanent partial disability benefits voluntarily paid to claimant to date. As all benefits have accrued, they shall be paid in a lump sum together with statutory interest thereon 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 claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Page 10 Signed and filed this ______ day of ____________, 1990. ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. W. Michael Murray Attorney at Law 2323 Grand Avenue Des Moines, Iowa 50312 Ms. Iris J. Post Attorney at Law 2222 Grand Avenue P.O. Box 10434 Des Moines, Iowa 50306 1803, 3700, 4000.2 Filed September 4, 1990 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : ROBERT HOBBS, : : Claimant, : : vs. : : File No. 834874 WRIGHT TREE SERVICE, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : UNITED STATES FIDELITY AND : GUARANTY COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 3700, 1803 Where defense attorney instructed deposition witness not to answer questions relevant to industrial disability on the spurious grounds that discovery could not be had on 86.13(4) issues not bifurcated, it was inferred that production of the evidence would "lay open deficiencies in its case." Crosser v. Iowa Dep't of Public Safety, 240 N.W.2d 682 (Iowa 1986). 4000.2 Where first physician to find impairment did so two years after the injury (treating physician predicted no permanency), there was no unreasonable delay. It was also not unreasonable at that time to pay the rating, without any industrial "multiplier."