Page 1 before the iowa industrial commissioner ____________________________________________________________ : FRANCES M. CARNES, : : Claimant, : : vs. : : File No. 836644 SHEAFFER EATON, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : AETNA CASUALTY & SURETY : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in arbitration upon claimant's petition filed May 18, 1987. Claimant was injured through exposure to toxic substances on October 21, 1986 and now seeks benefits under the Iowa Workers' Compensation Act from Sheaffer Eaton, her employer, and Aetna Casualty & Surety Company, its insurance carrier. Hearing on the arbitration petition was had in Burlington, Iowa, on August 2, 1990. The record consists of joint exhibits 1 through 36 (many of which are duplicates and some of which are relevant to the issues to be decided) and the testimony of the following witnesses: claimant, Roy Carnes, Terry Butler, Barbara Thomas and Phyllis Fox. issues Pursuant to the prehearing report, the parties have stipulated: that claimant sustained an injury arising out of and in the course of her employment with Sheaffer Eaton on October 21, 1986; that the injury caused temporary disability; that if claimant has sustained permanent disability, it is an industrial disability to the body as a whole and the commencement date is November 11, 1986; that the appropriate rate of weekly benefits is $185.70; that defendants paid five weeks, five days of compensation at the stipulated rate prior to hearing. Issues presented for resolution include: whether the work injury caused permanent disability; the extent of claimant's entitlement to compensation for temporary and permanent disability; the extent of claimant's entitlement to certain specified medical benefits (it is stipulated that fees and expenses were fair and reasonable and incurred for reasonable and necessary treatment, but it is disputed Page 2 whether those expenses are causally connected to the work injury or authorized by defendants); taxation of costs. findings of fact The undersigned deputy, having heard the testimony and considered all of the evidence, finds: Claimant, age 63 at hearing and with a history of smoking about one pack of cigarettes per day for 30 years, worked as a factory production worker for Sheaffer Eaton for about seven years prior to October 21, 1986. Claimant had a medical restriction against lifting in excess of 25 pounds for years prior to the injury, but worked on an off-and-on basis when jobs could be made available for her within those restrictions. Many of the positions claimant worked involved exposure to various fumes. On October 21, 1986, claimant was engaged in silk screening advertisements onto pens manufactured by Sheaffer Eaton, and had been doing so for approximately one year. The process included mixing and using paint and paint thinner. At lunch that day, claimant was "hit" with symptoms of dizziness, a "burning" in the chest, swollen lips, headache and eye ache. Claimant continued working, but felt ill by the end of the day. Claimant sought treatment from Robert M. Pogue, M.D., a specialist in general practice and internal medicine. Dr. Pogue testified by deposition on April 14, 1988. She was admitted to Burlington Medical Center by Dr. Pogue on October 24 and discharged on November 6, 1986. On October 30, Dr. Pogue wrote that claimant was a heavy smoker and her underlying chronic obstructive pulmonary disease (COPD, also known as emphysema) was a result of smoking and not the fumes at work, but that the fumes aggravated her condition and possibly resulted in her initial asthma attack. He suggested that at least two weeks of claimant's anticipated six weeks of sick leave was work related and the rest smoking related. He also wrote that Shan Bedi, M.D., a pulmonary specialist, also agreed with the opinion. Dr. Pogue's discharge notes reflected that disability for the lung condition was probably not indicated, although claimant should avoid paint fumes at work in the future. He anticipated returning claimant to work on December 1, 1986. Discharge diagnosis was: (1) asthmatic bronchitis; (2) chronic anxiety state with possible associated depression; (3) mild chronic obstructive pulmonary disease. Claimant was seen for consultation upon Dr. Pogue's referral by B. G. Pineda, M.D. That physician adopted Dr. Pogue's diagnoses, but added generalized anxiety disorder and recommended increasing medication and teaching claimant relaxation techniques through hypnosis so as to quit smoking. Claimant apparently returned to work for one day on Page 3 December 1, 1986, but was thereafter laid off on the next day in a general temporary layoff. Given claimant's lifting restrictions, restrictions against breathing fumes and level of seniority, she has not been recalled to work. In his deposition testimony, Dr. Pogue noted that his initial determination was that claimant suffered from asthma complicated by an infection at the time of her hospital admission. He presumed that claimant's asthma was aggravated from paint fumes at her place of employment. He did not anticipate that claimant would have any permanent impairment so long as she was not re-exposed to such agents as paint thinners and cleaning fluids. Dr. Pogue noted that one of the hallmarks of an asthma condition such as claimant's was that it is episodic in nature, that it comes on in discrete attacks. One need not be currently suffering from symptomatic asthma in order to have an asthmatic reaction to a particular irritant. The doctor testified: Q. If Mrs. Carnes had not returned to work but contends that she has breathing difficulties and that general feeling of lack of energy and malaise at the present time--assume that for the moment--would the fact that she might still have those type of complaints but never have gone back to any prolonged exposure at Sheaffer, suggest anything to you in terms of whether there might be other causes for her condition? A. Certainly. Q. And I take it, the fact that she would have those symptoms without exposure to the antigen or the offending irritant might cause you to question whether the irritant was the original cause or not? A. Yes. (Dr. Pogue deposition, page 19, lines 12 through line 25) And: Q. Doctor, I do have a couple more questions. The fact that-- If she, in fact, has continued to have some problems, you've been asked whether or not that would suggest maybe there is some other combination of causes or cause. Could it also suggest that she's had permanent damage as a result of what we've talked about? A. Yes, I think it could. Q. In fact, if there was permanent damage, you would expect her to continue to have some type of problem, would you not? A. Yes. Page 4 (Dr. Pogue deposition, page 21, lines 6 through 16) But, on examination by defense counsel: Q. When he indicates that the continued symptoms that Mrs. Carnes has today might be a sign of permanent damage, without having examined her recently or having seen her for a good number of months, is it almost impossible for you to say whether her current symptoms would be caused by some permanent damage from the exposure to these paint fumes as opposed to the development or progression of, for example, a chronic obstructive pulmonary disease? A. That's right. (Dr. Pogue deposition, page 22, line 21 through page 23, line 5) Claimant currently complains of shortness of breath upon exertion, a lack of energy, and a sensitivity to other fumes and smoke, including cleaning fluids and various aerosol products. Claimant seeks compensation for a hospital bill totalling $233.80 (for a mammogram test), Dr. Pineda's bill of $51.72, a bill from Dr. Bedi, totalling $111.94, and a bill from Heritage Park Pharmacy totalling $29.13. conclusions of law The claimant has the burden of proving by a preponderance of the evidence that the injury of October 21, 1986 is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The parties stipulate that claimant sustained a work Page 5 injury as alleged that caused temporary disability. Since this decision finds that claimant has not established entitlement to permanent disability, this is compensable as temporary total disability under Iowa Code sections 85.32 and 85.33. Even though Dr. Pogue indicated that only two weeks of claimant's temporary disability was related to the work injury as opposed to her underlying asthmatic condition, it is true that the work injury at least aggravated or lighted up the underlying condition on a temporary basis, thus rendering that entire period of disability compensable. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962). Pursuant to sections 85.32 and 85.33, compensation for temporary total disability extending beyond fourteen days is payable from the date of injury until the employee has returned to work or is medically capable of returning to substantially similar employment, whichever first occurs. Claimant first returned to work on December 1, 1986. Given that she first missed work on October 22, she is entitled to five weeks, five days of temporary total disability benefits. As defendants voluntarily paid this amount to claimant, there is no further liability for temporary total disability. Claimant's weight lifting restriction preceded the subject work injury. The only restriction related to the work injury is an injunction against exposure to irritating fumes. Pursuant to Dr. Pogue's opinion, claimant's complaints of shortness of breath and lack of energy are as probably related to her underlying conditions of asthma and emphysema as they are to her exposure to paint or thinner fumes at work. Thus, it is necessary to determine whether that restriction was placed on claimant because of the subject work injury or as a result of the underlying condition. This deputy has previously determined that such a restriction is causally related to the work injury only if claimant proves that the injury itself has caused some physiologic change so as to make her more sensitive to irritating substances than was previously the case. Kuehn v. Fisher Controls Int'l, file number 814538 (Arb. Decn., 1990). That is also the case here. Claimant has been advised to avoid toxic or irritating fumes, but the record does not establish that this restriction relates to her injury as opposed to her preexisting conditions of asthma and emphysema. Claimant has a 30 pack-year history of smoking unfiltered cigarettes (she smokes filtered cigarettes since the incident) and resides with at least one smoker, her husband. The record simply does not contain evidence to establish that claimant has any heightened sensitivity to fumes or such substances resulting from her exposure at work as opposed to the underlying condition. Accordingly, she has no compensable permanent disability. Claimant's hospital bill for a mammogram has not been shown to be related to the work injury. Dr. Pineda has been shown to have seen claimant on referral from Dr. Pogue. While Dr. Pogue was not initially seen as an authorized Page 6 physician, defendants have acquiesced in his care. Referral from an authorized physician renders the subsequent physician authorized for purposes of awarding medical benefits. Munden v. Iowa Steel & Wire, Thirty-third Biennial Report of the Industrial Commissioner 99 (1977). Therefore, Dr. Pineda's bill of $51.72 shall be reimbursed to claimant. Dr. Bedi's has not been shown to be authorized. Defendants' obligation to furnish medical treatment carries with it the privilege of selecting the care. The authorization defense succeeds as to Dr. Bedi. Boyce v. Consumers Supply Dist. Co., II Iowa Industrial Commissioner Report 50 (App. Decn., 1981). The record does not show that the Heritage Park Pharmacy bill is causally related to the subject work injury. order THEREFORE, IT IS ORDERED: Defendants shall reimburse claimant fifty-one and 72/100 dollars ($51.72) for Dr. Pineda's bill under Iowa Code section 85.27. The costs of this action shall be assessed to defendants pursuant to rule 343 IAC 4.33. Signed and filed this ______ day of ____________, 1991. ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. James P. Hoffman Attorney at Law Middle Road P.O. Box 1066 Keokuk, Iowa 52632 Mr. Thomas N. Kamp Mr. Thomas J. Shields Attorneys at Law 600 Davenport Bank Building Davenport, Iowa 52801 1108.30; 2205 Filed February 7, 1991 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : FRANCES M. CARNES, : : Claimant, : : vs. : : File No. 836644 SHEAFFER EATON, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : AETNA CASUALTY & SURETY : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 1108.30; 2205 Claimant suffered asthmatic reaction to paint and paint thinner fumes, causing temporary disability. She was thereafter medically restricted from working around fumes. However, claimant did not prove that the work injury caused any heightened sensitivity or that the restrictions were causally related to the exposure as opposed to preexisting sensitivity and history of COPD. Page 1 before the iowa industrial commissioner ____________________________________________________________ : LEO WATERS, : : Claimant, : : File No. 803244 vs. : 837030 : AUTO CONVOY COMPANY, : A R B I T R A T I O N : Employer, : A N D : and : R E V I E W - : LIBERTY MUTUAL INSURANCE : R E O P E N I N G COMPANY, : : D E C I S I O N Insurance Carrier, : Defendants. : ___________________________________________________________ statement OF THE CASE This case came on for hearing on October 22, 1990, in Des Moines, Iowa. Claimant brought both of these proceedings as review-reopening but based on the facts of the cases, the September 5, 1986 injury is actually an arbitration case and should have been brought as such. There is no record of any settlement or agreements with the industrial commissioner nor any agreement for settlement which has been approved by the industrial commissioner. The undersigned deputy will proceed in this decision as if the March 4, 1985 case is a review-reopening and the September 5, 1986 case as an arbitration case. There is no prejudice to the parties by proceeding in this manner. Claimant seeks permanent partial disability benefits regarding an injury to his right shoulder on March 4, 1985 which the parties agree is a body as a whole injury. Claimant further seeks permanent partial disability benefits as a result of a September 5, 1986 injury to his left shoulder concerning a dispute as to whether that injury is to the body as a whole or a scheduled member injury. The record in the proceeding consists of the testimony of claimant, Mike Raymond and Gerald Goll; and joint exhibits 1, 2, 3, 5 and 7. issues The issues for resolution are: 1. Regarding the March 4, 1985 right shoulder injury, the extent of claimant's permanent disability and entitlement to disability benefits; and, 2. Regarding the September 5, 1986 left shoulder injury, the nature and extent of claimant's permanent disability and entitlement to disability benefits, and whether claimant's left shoulder injury is a body as a whole or scheduled member injury. findings of fact Page 2 The undersigned deputy having heard the testimony and considered all the evidence, finds that: Claimant is a 58-year-old high school graduate. Claimant went through trade school for the purposes of learning the barber's trade. Claimant related his prior work history before beginning work with the current employer or his predecessor beginning in 1974. This prior experience involved serving in the national guard, working as a county surveyor, a cosmetology salesman, a salesman of FM radio equipment background music and rustoleum paints, a bar operator, consumer protection investigator, and semi tractor-trailer driver. Claimant contends that prior to 1974 he had no physical problems. Claimant has been transporting motor vehicles to various dealers for approximately the last seventeen years. Defendant employer is the successor to former predecessors of this business. The parties have stipulated as to both injuries arising out of and in the course of claimant's employment. Because of the limited issues in this case, there is no need to elaborate on certain facts. Claimant was off work as a result of the March 4, 1985 right shoulder injury beginning March 5, 1985 to and including January 12, 1986, for which time claimant was paid all healing period benefits which amounted to 45 weeks at the rate of $505.95. Claimant was off work from his left September 5, 1986 left shoulder injury beginning September 6, 1986 through May 17, 1987 and was also paid all healing period benefits for that period which amounted to 36.286 weeks at the rate of $369.91. Claimant currently operates a semi tractor truck which hauls new vehicles on a specialized trailering system. This trailer holds as many as nine vehicles on two levels. The company for which claimant works now is called Allied Systems, which is a successor of defendant employer. As a part of claimant's job, he is required to both load and unload the vehicles from the trailer unit as well as tie down the vehicles to the trailer. Claimant described how he has to climb on top of the truck using either a separate ten foot ladder or a pull down ladder and how he has to hold on with one arm, how he has to tie down the vehicles and put the skids into place. The undersigned noted that claimant moved his arms with a fluent and unrestricted motion as he explained his procedure. Trips are assigned by seniority. Once his truck is loaded, he then drives to the various destinations which may be anything from two to seven stops. Joint Exhibit 5 indicates the manner in which claimant was paid. His pay was based on the number of miles driven, loading and unloading, and drop-off pay. Joint Exhibit 5, page 20, reflects claimant's earnings in 1984 through year to date 1990 (September 27, 1990). Assuming claimant's monthly average for 1990 was consistent for the remainder of the year, it appears claimant's income for 1990 would be approximately $37,300, which would be at least 10 percent more than in 1989 and over 40 percent more than he made in 1986. Claimant described the problems he was having in January 1986 in trying to climb the ladders using his legs and arms to hold on to the trailer. Page 3 Because of his right arm injury, he indicated he had to use his left arm instead due to fatigue. It was on January 13, 1986 that he had returned to work from his March 4, 1985 injury. He acknowledged he returned to work without restrictions. On June 18, 1985, Scott B. Neff, D.O., performed surgery on claimant which consisted of acromionectomy, coracoacromial ligament release, and a repair of the supraspinautus tendon. Claimant explained the nature of his work injury that occurred on September 5, 1986. Claimant said he had surgery October 25, 1986 on his left shoulder. The medical records are very poor as to this surgery or its description. It would appear that he had similar surgery on the left as he did on the right. Karen Kienker, M.D., Physical Medicine & Rehabilitation, Iowa Methodist Medical Center, had that impression when she wrote in a report dated June 18, 1990: Impression: 1) Myofascial syndrome, status post rotator cuff repair bilaterally. (Jt. Ex. 3, p. 85) Claimant took off his shirt and exhibited the extensive scars over his shoulders. It appeared that there was a scar approximately two inches from the left front of the shoulder beginning in front of the shoulder and over the top shoulder cap and down to approximately five inches to the end of claimant's clavicle. The right shoulder scar from the surgery resulting from the 1985 injury was basically the same but possibly went down further on the body. Dr. Neff, who performed the surgeries, wrote in a July 18, 1988 report (Jt. Ex. 3, p. 1): "As you know, the patient underwent rotator cuff surgery back on June 18, 1985 and also had an impingement and mumford procedure performed on his left shoulder on November 25, 1986." At that time, the doctor opined a percent of permanent impairment indicating that the right shoulder had a body as a whole impairment since it involved the rotator cuff and that the left shoulder was an upper extremity permanent impairment since it did not involve the rotator cuff. It is obvious the doctor at that time felt that since the left shoulder did not involve the rotator cuff, it should be rated on an extremity rating. The undersigned acknowledges that this is an area often difficult from the medical standpoint and the deputy has to determine whether a shoulder injury is to the body as a whole or to an upper extremity. The undersigned does have a difficult time in seeing where Dr. Neff is arriving at his premises when you look at the point of surgery on each shoulder and the scars that are left. The undersigned cannot imagine that an incision on the left shoulder would occur at the point that is evidenced currently on the claimant's body if it wasn't intended to reach some point of claimant's body and shoulder in the immediate area of the incision. On October 1, 1990, Dr. Neff wrote a report (Jt. Ex. 3, p. 42) in which he further evaluated claimant and noted some additional inconsistent glenohumeral joint crepitation bilaterally. Thomas W. Bower, L.P.T., who is closely associated with Dr. Neff, wrote on October 1, 1990: Page 4 In the past, the rating was derived from the 2nd edition and the current rating today is being utilized with the 3rd edition. The basic rating is approximately the same as what was arrived at previously, however, we have now added the joint crepitation and glenohumeral crepitation noted. Basically, the left upper extremity has sustained a 12% impairment to the left upper extremity, but with the addition of the 6% accountability for the glenohumeral joint crepitation, combines to a 17% impairment to the left upper extremity. Right sided motions account for a 13% impairment to the right upper extremity, again with the crepitation noted in, combines to an 18% impairment to the right upper extremity. We do not believe that the numbness the patient is experiencing over the last two digits of the left hand are a result of his shoulder and may be from an ulnar nerve entrapment and perhaps needs to be further evaluated. (Jt. Ex. 3, pp. 42 & 43) The undersigned believes the above impairment ratings also have the blessing of Dr. Neff in light of the fact that the previous evaluation and rating that was referred to by Mr. Bower referred to Dr. Neff's and Mr. Bower's July 18, 1988 report (Jt. Ex. 3, pp. 1 & 2) which was signed by both Dr. Neff and Mr. Bower and was actually on the stationary of the Physical Therapy Consultants, of which Mr. Bower is a licensed physical therapist. The undersigned notes that claimant, in his answer to interrogatory No. 16, indicated: I have constant pain in my right shoulder and into my neck. I can't sleep at night, particularly when I have exercised during the day or roll over onto the shoulder. The increased intensity of the pain awakens me. I can't lift my arm higher than shoulder level at the side, can't put a belt on, and can't put my hand into my right back pocket. My shoulder and right pectoral muscle strength is substantially decreased. My left heel nerve is permanently damaged. It is always numb, and hurts when I do a lot of walking. (Jt. Ex. 3, p. 20) This answer by claimant was sworn to on November 5, 1989. There is no mention as to any left shoulder problem at that time. It could be that since interrogatory No. 15 referred to the March 1985 injury, that claimant may have been answering only as to that injury, but he seems not to be holding back on his complaints and bringing everything he could possibly think of as to the residue of his injury, especially when he testified in court. Interrogatory No. 3, in addition to the heading of the interrogatories, obviously is intended to cover both the March 1985 and the September 1986 injuries. In claimant's answer to interrogatory No. 20, he contends he was still in the healing period. Taking the interrogatories as a whole, it would appear that he was still in the healing period from his 1985 injury. Of course, this is not the fact and is contrary to the medical Page 5 evidence. The undersigned does believe that claimant has overexaggerated the extent of his medical problems. Claimant filed a review-reopening as to the March 4, 1985 injury. On September 16, 1987, Deputy Industrial Commissioner Mike Trier rendered a decision in which the parties set out as the sole issue, "whether or not the state of Iowa has subject matter jurisdiction over this claim." In fact, in the Order, it not only resolved the jurisdictional question, but did set out the healing period of March 5, 1985 to and including January 12, 1986, involving 44.857 weeks that the defendants should pay. There was no determination of any permanent disability and, likewise, there should be no inference that there was no permanent disability anticipated. The undersigned takes said decision as strictly referring to the healing period stipulated by the parties which happens to be the same healing period stipulated to by the parties in this current decision and to which the parties are not disputing. Therefore, any change of circumstances that would be an issue in this current decision would be as to whether there is, in fact, any permanent partial disability. The claimant contends he has a substantial loss of income, anywhere from 46 percent to 50 percent. Claimant contends that he could be or would be earning around $62,000 to $67,000 per year if it wasn't for his injuries. Claimant contends that this loss of income is primarily the result of his March 4, 1985 injury. It appears that defendant employer closed the Des Moines terminal in September 1984 which resulted in work changes. It appears that the loads then were assigned from Kansas City, Missouri. This affected one's income. It appears that it is beneficial to have longer hauls so that more miles in a shorter period of time can be accumulated which would increase pay. Although one is apparently paid for loading and unloading, the less loading and unloading that occur on a trip results in greater pay by building up more driving miles in a lesser period of time. It appears claimant has elected to live here in Des Moines and says that he now does not get the benefit of longer hauls, thereby making less per mile and having to load and unload more. The evidence indicates that claimant has elected on a number of occasions not to bid on loads that require him to travel longer distances which would enable him to make more money. It appears that he has not bid on certain other positions which have become available since the April 23, 1987 hearing. Mr. Goll, the terminal manager for Allied Systems, testified that it is the responsibility of the employee to bid on various loads and new employment positions within the company. He indicated that to the best of his knowledge claimant has not bid on any employment positions since his original injury in 1985. Mr. Goll indicated that there were some people with less seniority than claimant who were working in positions in which claimant could bump, at least at the time of the bidding. Mr. Goll indicated claimant was a good employee and was able to do the job. He said it was alright if he worked slower if it prevented him from getting hurt. Mr. Goll said that if claimant Page 6 transferred to Kansas City, the opportunities would be greater. Of course, there is no requirement that claimant transfer to Kansas City but, likewise, the mere fact that the Des Moines terminal closed was not due to claimant's injuries but just happened to be a circumstance that would affect all workers regardless of injury or no injury when a particular terminal closes. Regarding the March 4, 1985 injury, file No. 803244, the only issue is the extent of claimant's permanent disability. The parties have agreed that this right shoulder injury did, in fact, result in a body as a whole Impairment. The October 1, 1990 report of Thomas Bower, L.P.T., which the undersigned also finds has the blessings of Dr. Neff, opined an 18 percent impairment to claimant's right upper extremity. The parties agreed that this 18 percent would, in fact, convert to 11 percent impairment to the body as a whole. Claimant is in an industry in which the use of the arms, shoulder and back are very important. The undersigned believes that claimant does have an impairment which results in pain and has affected his ability to work. Claimant contends he drives less miles because he take shorter hauls and, therefore, must load and unload thereby reducing the amount of miles he can accumulate and yet he doesn't want to bid into long hauls whereby he wouldn't have to load and unload as much. It would seem that the loading and unloading would be effected by the extent of his impairment and injury. One's earning capacity for industrial disability is affected by many items, one of which is loss of income. Likewise, the general history of one's income as it affects one's earning capacity should be taken into consideration. Claimant's contends that he is losing approximately $30,000 per year because of his injury or injuries. This is completely contradictory to his income picture historically. There is no evidence that claimant has made an attempt to get out of his $34,000 income level and it appears there have been opportunities for him to at least make an attempt to see how he would be able to perform certain other jobs. He has not attempted to drive the long hauls. Claimant is basically doing the same type of work now as he was at the time of either of his injuries and is using the transferable skills that he has had as a truck driver and auto hauler for the last seventeen years. Taking into consideration claimant's age, his medical history, his work history, his income, impairment, extent of motivation, and the other criteria that are used to determine the extent of one's industrial disability, the undersigned finds that claimant has a 20 percent industrial disability as a result of his March 5, 1985 injury and that there has been a change of circumstances, namely, that it is now determined that claimant does have a permanent impairment and industrial disability which is a change of circumstances from the status of claimant's March 1985 injury as it existed at the time of the decision of Deputy Michael Trier on September 16, 1987. Attention now will be diverted to the September 5, 1986 injury to claimant's left shoulder. The parties again stipulated Page 7 that there was an injury on that date that arose out of and in the course of claimant's employment. Defendants contend that it was an upper extremity injury and any benefits would be based on a scheduled injury. Claimant contends that this left shoulder injury also went to the body as a whole. Dr. Neff seemed to attempt to explain that this left shoulder injury is to be rated as an upper extremity and not as a body as a whole. Taking the medical evidence as a whole, it appears that this conclusion is weak and that the doctor, himself, may have had doubts. Taking the medical history and testimony as a whole, this agency's expertise as to these type of injuries, and visibly looking at the point of incision and the scar on claimant's left shoulder and body area, the undersigned finds that claimant's September 5, 1986 left shoulder injury did, in fact, go into claimant's body as a whole. Claimant contends that the mere fact that defendants paid 63 weeks of permanent partial disability benefits would indicate that they thought it was a body as a whole injury since the application of the impairment rating times the scheduled injury number of weeks would be substantially less than the 63 weeks the defendants paid. It is true that voluntary payments are not admission of liability, but defendant insurance company is not known to this agency to be overly generous. Mike Raymond, the claims supervisor for defendant insurance company, did a poor job of defending his reasoning of why the difference in the alleged overpayment. Mr. Raymond acknowledged that the amount of permanent partial disability benefits paid was greater than the amount of physical impairment. He further acknowledged that defendant insurance company does not usually overpay on scheduled members. Mr. Raymond gave the impression he had little knowledge of the file but this is questionable, particularly since he is a claims supervisor for defendant insurance company and obviously knew he was going to be testifying. The parties agreed that the 17 percent impairment to the left upper extremity as opined by Mr. Bower and as found by the undersigned to have the acquiescence of Dr. Neff, would, in fact, be the equivalent of 10 percent impairment to the body as a whole if it was found there was a body as a whole impairment. Claimant now has an impairment to both shoulders that are body as a whole impairments. Although claimant is still working and performing his duties with the appearance of no effect of the impairments, it is obvious that claimant does have pain and is affected by the impairment but is able to perform his work. The employer is satisfied with his work and if claimant feels it is necessary to slow down so he will not further injure himself, they have allowed him to do so. Claimant, of course, contends that he has substantially slowed down to his financial detriment. The income situation of the claimant has been previously discussed herein as related to claimant's March 4, 1985 injury, but the same discussion and conclusions can be had concerning claimant's employment history and what financial effect has resulted from claimant's September 5, 1986 injury. Taking into consideration claimant's age, work history, medical history, prior injuries, transferable skills, impairment, Page 8 healing period, and the other criteria that are used to determine one's industrial disability, the undersigned finds that claimant has incurred a 15 percent industrial disability as a result of his September 5, 1986 injury. conclusions of law The expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). An injury to a scheduled member may, because of after effects (or compensatory change), result in permanent impairment of the body as a whole. Such impairment may in turn form the basis for a rating of industrial disability. Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). An injury to a scheduled member which, because of after-effects (or compensatory change), creates impairment to the body as a whole entitles claimant to industrial disability. Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). Daily v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term `disability' to mean `industrial disability' or loss of earning capacity and not a mere `functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." The opinion of the supreme court in Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251 (1963), cited with approval a decision of the industrial commissioner for the following proposition: Disability * * * as defined by the Compensation Act means industrial disability, although functional disability is an element to be considered....In determining industrial disability, consideration may be given to the injured employee's age, education, qualifications, experience and his inability, because of the injury, to engage in employment for which he is fitted. * * * * The mere fact that the rating pertains to a scheduled member does not mean the disability is restricted to a schedule. Pullen v. Brown & Lambrecht Earthmoving, Incorporated, II Iowa Industrial Commissioner Reports 308 (Appeal Decision 1982). The case law relating to review-reopening proceedings is Page 9 rather extensive. The opinion of the Iowa Supreme Court in Stice v. Consolidated Ind. Coal Co., 228 Iowa 1031, 1035, 291 N.W. 452 (1940) stated "that the modification of...[an] award would depend upon a change in the condition of the employee since the award was made." The court cited the law applicable at that time which was "if on such review the commissioner finds the condition of the employee warrants such action, he may end, diminish, or increase the compensation so awarded" and stated at 1038: That the decision on review depends upon the condition of the employee, which is found to exist subsequent to the date of the award being reviewed. We can find no basis for interpreting this language as meaning that the commissioner is to re-determine the condition of the employee which was adjudicated by the former award. Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson, 255 Iowa 1112, 125 N.W.2d 251. Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. This is so as impairment and disability are not synonymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial 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 Page 10 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 to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial disability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, l985). It is further concluded that: Claimant sustained a work-related injury to his right shoulder on March 4, 1985 which caused a 11 percent permanent physical impairment to claimant's body as a whole. Claimant incurred a healing period as a result of his March 4, 1985 injury, beginning, as stipulated by the parties, March 5, 1985 to and including January 13, 1986, which involved 44.857 weeks at the rate of $505.95. Claimant returned to work on January 13, 1986, after his March 4, 1985 injury to his right shoulder. Claimant has a 20 percent industrial disability as a result of his March 4, 1985 injury. Claimant has a change of condition since his April 1987 hearing which determined a jurisdictional question and set out only a healing period. Claimant incurred a work-related injury to his left shoulder on September 5, 1986 which caused claimant to incur permanent physical impairment to his left shoulder which extended into his body as a whole and resulted in a 10 percent permanent partial impairment to claimant's body as a whole. Claimant incurred a healing period as a result of his September 5, 1986 injury, as stipulated by the parties, beginning September 6, 1986 to and including May 17, 1987, and which involved 35.286 weeks. Claimant incurred a 15 percent industrial disability as a result of his September 5, 1986 work-related injury. order THEREFORE, it is ordered: Regarding the March 4, 1985 injury: That defendants shall pay unto claimant forty-four point eight five seven (44.857) weeks of healing period benefits for the period beginning March 5, 1985 to and including January 12, 1986, as stipulated by the parties, at the stipulated rate of five hundred five and 95/100 dollars ($505.95) per week, which amount has already been paid by defendants. That defendants shall pay unto claimant one hundred (100) weeks of permanent partial disability benefits at the stipulated rate of five hundred five and 95/100 dollars ($505.95) per week Page 11 beginning at the stipulated date of January 13, 1986. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. In addition to the above healing period credit previously referred to, defendants shall also receive credit for seventy-nine point eight five seven (79.857) weeks of permanent partial disability benefits already paid by defendants, as stipulated by the parties. That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. Regarding the September 5, 1986 injury: That defendants shall pay unto claimant healing period benefits for the periods stipulated by the parties beginning September 6, 1986 to and including May 17, 1987, involving thirty-six point two eight six (36.286) weeks at the rate of three hundred sixty-nine and 91/100 dollars ($369.91). Defendants have already paid the healing period benefits, as stipulated by the parties. That defendants shall pay unto claimant seventy-five (75) weeks of permanent partial disability benefit at the rate of three hundred sixty-nine and 91/100 dollars ($369.91) beginning with the stipulated date of May 18, 1987. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. In addition to the healing period credit previously referred to, the defendants have also paid sixty-three (63) weeks of permanent partial disability benefits, as stipulated by the parties, at the rate of three hundred sixty-nine and 91/100 dollars ($369.91) for which they shall be given credit. That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall pay the costs of these actions, pursuant to Rule 343 IAC 4.33. That defendants shall file activity reports upon payment of these awards as required by this agency, pursuant to Rule 343 IAC 3.1 Signed and filed this _____ day of December, 1990. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Dennis Hanssen Page 12 Attorney at Law Terrace Ctr Ste 100 2700 Grand Ave Des Moines IA 50312 Mr W C Hoffmann Attorney at Law 500 Liberty Bldg Des Moines IA 50309 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DALE BURKHARDT, Claimant, vs. File No. 837042 RALSTON PURINA COMPANY, A R B I T R A T I O N Employer, Self-Insured, D E C I S I O N Defendant. ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Dale Burkhardt as a result of injuries to his left and right upper extremities incurred on October 17, 1986. The defendant admitted liability for the injury and presented the issue of permanent disability for determination. This case was heard and fully submitted at Davenport, Iowa on January 24, 1995. The record in the proceeding consists of claimant exhibits A through G; defendant exhibits 1 through 4, 6 & 7; and testimony from Dale Burkhardt, Donald Dugan and Valerie Schissel. Claimant was represented by William J. Bribriesco, Attorney at Law. The defendant was represented by Deborah A. Dubik, Attorney at Law. ISSUE The issue presented for determination is the extent of permanent disability caused by the October 17, 1986 bilateral simultaneous upper extremity injury. FINDINGS OF FACT Having heard the testimony of the witnesses and having considered all of the evidence in the record, the deputy industrial commissioner finds: Dale Burkhardt began work for the employer in October of 1986. He worked as a production worker and as a maintenance worker during his 34 years with this employer. On October 17, 1986, claimant sustained an injury commonly known as bilateral carpal tunnel syndrome and bilateral ulnar nerve entrapment. Claimant received multiple surgeries for the work-related injury. Claimant was returned to work without restriction the last time on or about March 4, 1991. Claimant then voluntarily terminated his employment and took early retirement on or about July 31, 1991. Claimant was returned to work without restriction by his treating physician in March of 1991. Claimant found subsequent part-time employment as a truck driver. Multiple opinions concerning permanent impairment have been solicited by the parties. First, Michael Cullen, M.D., a neurologist and Fellow of the American Academy of Disability Evaluating Physicians, opined on August 12, 1993 that claimant sustained 24 percent permanent partial impairment to the body as a whole as a result of the work injury. Dr. Cullen later changed the rating to 23 percent by means of a letter dated April 17, 1994. The change was due to a typographical error (Claimant Exhibit A4). Richard Ripperger, M.D., an orthopedic surgeon, opined on January 10, 1992 that claimant sustained 10 percent permanent partial impairment to the body as a whole as a result of the work injury. Dr. Ripperger later changed his impairment rating to 17 percent to the body as a whole as a result of a November 5, 1992 examination (Clmt. Ex. B, p. 25). The change in the impairment was not due to claimant's condition but instead due to a change in the American Medical Association's Guides to Permanent Impairment. Robert W. Milas, M.D., a neurosurgeon, opined on May 26, 1992 that claimant sustained 55 percent permanent partial impairment to the body as a whole as a result of the work injury (Clmt. Ex. C). Richard Roski, M.D., opined on February 14, 1992 that claimant sustained 8 percent permanent partial impairment to the body as a whole as a result of the work injury. Dr. Roski's report was very short and did not give detailed explanation as to the reason for giving 8 percent permanent partial impairment. Objective testing concerning the grip strength in claimant's upper extremities was performed during physical therapy. It was found that claimant suffered a significant loss of grip strength (Clmt. Ex. D, p. 2). It is found that the injury of October 17, 1986 did not result in permanent total disability. Claimant was not given permanent work restrictions as a result of the bilateral simultaneous hand and upper extremity injuries. To the contrary, claimant was returned to work by his treating doctor without restriction. Claimant did return to work at his regular job and then voluntarily terminated the employment without receiving the advice of a treating physician. Claimant's work after leaving Ralston Purina also indicates that he is not permanently and totally disabled as a result of the October 17, 1986 injury. Therefore, it must be found that claimant is capable of gainful employment notwithstanding the severe bilateral condition of the upper extremities. REASONING AND CONCLUSIONS OF LAW The issue presented is the extent of permanent disability sustained as a result of the October 17, 1986 bilateral upper extremity injury. Benefits for permanent partial disability of two members caused by a single accident is a scheduled benefit under section 85.34(2)(s); the degree of disability must be computed on a functional basis with a maximum benefit entitlement of 500 weeks. Simbro v. Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983). The right of an employee to receive compensation for injuries sustained is statutory. The statute conferring this right can also fix the amount of compensation payable for different specific injuries. The employee is not entitled to compensation except as the statute provides. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). Compensation for permanent partial disability begins at termination of the healing period. Section 85.34(2). Permanent partial disabilities are classified as either scheduled or unscheduled. A specific scheduled disability is evaluated by the functional method; the industrial method is used to evaluate an unscheduled disability. Simbro v. Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v. Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960). It is held that claimant sustained 23 percent permanent partial disability to the body as a whole pursuant to Iowa Code section 85.34(2)(s) as a result of the October 17, 1986 work injury. The significant loss of grip strength in the upper extremities indicates that claimant sustained a significant functional disability. Dr. Cullen's report must be given somewhat greater weight because of his status as a Fellow in the American Academy of Disability Evaluating Physicians. Furthermore, the examination and report from Dr. Cullen were more recent in time than those received from other doctors. While all of the medical evidence was considered it appears that the functional impairment rating of 23 percent accurately documents claimant's permanent disability caused by the work injury. ORDER IT IS, THEREFORE, ORDERED: Defendant Ralston Purina Company, self-insured, is to pay claimant one hundred fifteen (115) weeks of permanent partial disability benefits at the rate of four hundred eighty-one and 34/100 dollars ($481.34) per week commencing January 10, 1992. It is further ordered that defendant shall receive credit for benefits previously paid. It is further ordered that all accrued benefits are to be paid in a lump sum. It is further ordered that interest will accrue pursuant to Iowa Code section 85.30. It is further ordered that costs of this action are assessed against defendant pursuant to rule 343 IAC 4.33. It is further ordered that defendant file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of January, 1995. ______________________________ MARLON D. MORMANN DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. William J. Bribriesco Attorney at Law 2407 18th St., Ste. 202 Bettendorf, IA 52722 Ms. Deborah A. Dubik Attorney at Law 111 East Third St., Ste. 600 Davenport, IA 52801-1596 5-1808 Filed January 30, 1995 Marlon D. Mormann BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DALE BURKHARDT, Claimant, vs. File No. 837042 RALSTON PURINA COMPANY, A R B I T R A T I O N Employer, Self-Insured, D E C I S I O N Defendant. ___________________________________________________________ 5-1808 It was held that claimant's bilateral simultaneous injury to the upper extremities resulted in 23 percent functional impairment under Iowa Code section 85.34(2)(s). Impairment rating ranged from 8 percent to 55 percent of the body as a whole. BEFORE THE IOWA INDUSTRIAL COMMISSIONER WILLIAM DECKER, File Nos. 837054 865367 Claimant, A R B I T R A T I O N vs. D E C I S I O N WILSON FOODS CORPORATION, F I L E D Employer, Self-Insured, FEB 12 1990 Defendant. INDUSTRIAL SERVICES STATEMENT OF THE CASE These are proceedings in arbitration brought by claimant William Decker against defendant self-insured employer Wilson Foods Corporation as a result of injuries allegedly sustained on August 22, 1986 (837054) and in November, 1987 (865367). This matter came on for hearing before the undersigned deputy industrial commissioner in Storm Lake, Iowa, on December 26, 1989. The matter was considered fully submitted at the close of hearing. The parties subsequently filed briefs. At hearing, claimant expressed an intent to dismiss litigation in file number 865367. That verbal dismissal was accepted by the deputy, although claimant was also directed to submit the dismissal in writing. Although no written dismissal has been filed, this decision orders the petition dismissed as per the verbal dismissal accepted at hearing. The record in this proceeding consists of joint exhibits 1 through 11 and the testimony of claimant. ISSUES Pursuant to the prehearing report submitted by the parties and approved by the deputy at hearing, the following matters have been stipulated: that an employment relationship existed between claimant and defendant at the time of the injury; that claimant sustained an injury in September 1986, arising out of and in the course of that employment; that the injury caused temporary and permanent disability; that claimant is entitled to compensation for healing period from October 10, 1987 through October 15, 1987 and from November 15, 1987 through December 21, 1987; that claimant's disability is a scheduled member disability to the right hand and/or right upper extremity; that the commencement date for permanent partial disability is December 21, 1987; that the appropriate rate of weekly compensation is $225.50, based upon marital status of married, four exemptions and gross weekly earnings of $343.01; affirmative defenses are not at issue; claimant's entitlement to medical benefits is not at issue; in addition to healing period benefits paid for the stipulated dates, defendant paid claimant 5.7 weeks of permanent partial disability benefits at the stipulated rate. The only issue presented for determination is the extent of claimant's entitlement to permanent partial disability. REVIEW OF THE EVIDENCE Claimant testified that he suffered no problems with his right hand or arm before beginning employment with defendant. He is right-hand dominant. His employment with defendant largely involved "pulling guts" on the kill floor. Claimant described the motion as repetitive and gave a brief demonstration. In approximately July, 1986, he was transferred to the ham boning line after developing some tendonitis in his right hand. This position involved making numerous knife cuts to remove a bone from hams. Claimant described himself as beginning to lose his grip and having troubles holding his knife as he continued on the ham boning line. His fingers started to "lock down" on his palm. As a result, claimant had surgical trigger finger releases on his little finger, ring finger and twice on the middle finger of his right hand. Claimant described visiting Oscar M. Jardon, M.D., for treatment. He also saw physicians Scott B. Neff, D.O., A. J. Wolbrink, M.D., and Richard P. Murphy, M.D., for evaluation. Claimant did not believe that Dr. Jardon ever tested his arm, but only his hand. Claimant further testified to a number of activities in which he can no longer participate because of continued hand and arm problems. Claimant demonstrated that as he extends his wrist, his fingers tend to curl inward and generally will not completely straighten. Claimant also demonstrated an inability to supinate his palms except to a very slight degree. Further, claimant demonstrated his hands, stating that he believes his right hand is smaller. This observer was unable to notice any marked difference on casual observation. Claimant also testified that he broke his right arm at approximately age 5, but stated that he suffered no loss of use to the arm. In contrast to his current inability to engage in such activities as bowling, wood cutting, and the like, claimant noted that he is a former state arm wrestling champion. Treating physician Jardon wrote to Keith O. Garner, M.D., on April 24, 1987 to state that he intended to perform a second release of the third finger. He found definite clicking and catching of that finger. Dr. Jardon went on to express the view that claimant did have permanent impairment to the hand from the heavy use of a knife with atrophy of the muscle and inability to obtain adequate rehabilitation, representing a five percent permanent partial disability to the hand. However, Dr. Jardon wrote again on May 27, 1987 to state that his previous impairment rating was in error. In this letter, Dr. Jardon stated that he meant approximately five percent of each finger, which would be a fifteen percent disability to the hand as a whole. Dr. Jardon wrote Dr. Garner yet again on January 14, 1988 to correct himself once more. He stated: As stated in the disability rating for hands, on p. 9 of the AMA example, apparently there is a misunderstanding in my letter. The fingers were added, rather than the disability for the hand as a whole. The appropriate passages that have two or more digits of the hand involved measure separately and record the impairment of each digit, and then record the impairment to the hand as a whole, contributed to by each digit, and then add all the values. The sum of these values represents the impairment to the hand. Thus, if you add three fingers of five percent each, this would be roughly one percent per finger which would represent a 3 percent partial permanent disability to the hand as a whole. I'm sorry for the error. Dr. Neff, a Diplomate of the American Board of Orthopaedic Surgery and Fellow of the American Academy of Orthopaedic Surgeons, saw claimant on July 9, 1987. He noted that claimant was having recurrence of the triggering of his right long finger. Dr. Neff noted that claimant had normal EMG studies. He further noted that claimant had an old injury to the upper extremity from childhood and that claimant had noticed several years before that he was losing supination when he attempted to receive change from a purchase. Claimant supinated to about 10 degrees. Dr. Neff stated that claimant's grip was diminished on the right side and recommended repeat trigger finger release of the right hand. Dr. Neff further stated that further measurements "will allow us to determine a disability or impairment rating. He has received a 15 percent impairment rating." This statement is apparently the source of claimant's belief.that Dr. Neff had assigned him a 15 percent impairment rating. Another letter of July 9, 1987 was apparently prepared by L.P.T. Thomas Bower and countersigned by Dr. Neff. Mr. Bower noted an old supination loss of 100 percent "which is apparently from an old injury and non-related to this particular problem." The letter goes on to find that claimant had full range of motion of the right hand and that Mr. Bower was unable to see any noticeable triggering. However, he noted that claimant complains of intermittent locking and that some puffiness and swelling was noted which certainly could be construed as consistent with that complaint. Grip strengths generally demonstrated a marked decrease on the right side (a 39 percent deficiency as compared to the left). Because claimant had a full range of motion and previous EMG's had shown no nerve deficit, Mr. Bower and Dr. Neff concluded that loss of strength could not be a ratable entity and found no percentage of impairment. This rating "certainly does not take into account that the fingers are still continuing to bother him nor does it take into account the subjective pain." Dr. Wolbrink wrote on October 16, 1987 following an examination for evaluation on the previous day. Dr. Wolbrink noted that claimant gave a history of a fracture of the cervical spine in 1973 with a surgical fusion following that. He noted claimant had deformity and rotational limitation of the right forearm. Dr. Wolbrink found claimant to have a flexion contracture of the MCP joints of the fingers, measuring 10 degrees in the index, 25 degrees in the long, 15 degrees in the ring finger. Nodularity and slight triggering was noted in the long finger. Claimant had normal sensation throughout the hand and grip strength of 36 Kg. in the right hand on two occasions of serial testing (Mr. Bower had measured grip strength on the right of 27 Kg. and on the left 44 Kg.). Dr. Wolbrink found claimant to have tendonitis in the forearm "which has included trigger fingers and release. He had some persistent weakness and transient carpal tunnel syndrome at present." Dr. Wolbrink went on to opine that claimant had a permanent impairment of 18 percent of the right upper extremity due to the persistent tendonitis, "which has resulted in a loss of strength and flexion contracture of the MCP joints." He further noted that claimant would not tolerate excessive stress or overly repetitive use of that hand. Dr. Neff wrote in response to Dr. Wolbrink's letter on January 17, 1988. In pertinent part, he stated: Several things strike me as interesting. This gentleman has indeed had trigger finger tendonitis and that syndrome which has undergone successful surgical release. I have not x-rayed his right forearm, but it is clear that there is absolutely no association whatsoever between supination or pronation loss and trigger finger syndrome. The trigger finger occurs over the first annular pulley at the distal aspect of the palm and involves a small pulley or narrow area through which a tendon slides. Pronation and supination of the arm occurs completely out of the hand primarily at the elbow joint between the radius and the ulna and in the wrist proximal to the hand also between the distal ulna and the wrist joint and distal radius. Fractures or congenital abnormalities in these areas can cause supination and pronation loss, and this is apparently the situation. It is interesting to me that this patient did not relate a very significant and important part of his medical history, and that was a significant injury to his neck which occurred in the past and has resulted in a surgical fusion. EMG studies and conduction studies of the peripheral were done, and these did not show nerve conduction slowing or entrapped nerves in the hand or forearm. EMG studies of the pericervical area were not done because we were not looking toward the patient's neck at all. What I surmise is happening is that this patient is having the residual of his neck injury and subsequent surgical treatment in the neck. This can very definitely cause intermittent tingling and sensation of numbness, based on certain positions or twisting of the neck, and it can also cause a chronic diminution of motor power in the forearm, on the side where one of the cervical roots is trapped or compressed in scar. I agree that he does not have a clinically or EMG evident peripheral neuropathy such as carpal tunnel entrapment, but we have not studied his neck. Commonly patients who have a cervical fusion can develop nerve entrapment and other problems as they get older, as more bone is laid down, scarring occurs, and so forth. Again, this patient has excellent motion of his fingers. According to the guidelines, he would have no impairment strictly related to the trigger finger releases. Clearly he does not have a normal wrist and forearm, based on his motion loss, but this is old from another problem and is absolutely unrelated to the trigger finger releases. Certainly this patient does not probably appreciate the medical significance of his neck injury and the subsequent weakness and symptoms in his arm, but I know that he has been questioned about it before by his operating surgeon and during that post-convalescence period. Claimant was further seen for evaluation by Dr. Murphy, who wrote claimant's attorney on February 12, 1988. In setting forth claimant's history, Dr. Murphy noted claimant's recollection of a "broken bone" in the region of the shoulder as a child, but also noted claimant's history of crush injury when pinched between a bar just above the right elbow years previously. Dr. Murphy is apparently the only physician having benefit of that history. Dr. Murphy found that claimant had audible and palpable triggering with movement of the right long finger. Ring finger and little finger had slight tenderness, but no locking or catching. He further found decreased sensation in the tip of the long finger. Dr. Murphy's diagnostic impressions: 1. Flexor tenosynovitis, right hand - A. Long finger (with residual locking) equals 20% of the finger or 4% of the hand. B. Ring finger - slight tenderness equals 10% of the fingers or 1% of the hand. C. Little finger (slight residual tenderness along the flexor tendon) equals 10% of the finger or 1% of the hand. * * * 3. Possible nerve compression right upper extremity, (although not verified with previous nerve test) equals disability unknown-advise repeat EMG and nerve conduction times). 4. Right forearm limitation of motion - (0 degrees of supination)(forearm deformity probably old fracture) equals 13% of the upper extremity. Dr. Murphy wrote claimant's attorney again on May 19, 1988, after claimant returned for follow-up examination and for EMG and nerve conduction studies of the right upper extremity. Nerve conduction times were completely normal with no evidence of nerve injury. Physical examination revealed full range of motion of the hands without catching or triggering. Diagnostic impression was the same, with the exception of no evidence of nerve compression of the right upper extremity, thus no evidence of disability secondary to nerve compression. Right forearm limitation of motion equalled 14 percent of that extremity. APPLICABLE LAW AND ANALYSIS The sole issue to be resolved is the nature and extent of claimant's permanent impairment to the right hand or upper extremity. Pursuant to Iowa Code section 85.34(2)(1) and (m), compensation for the loss of a hand or arm, respectively, is 190 weeks and 250 weeks. The parties have stipulated that claimant sustained a work injury to the right hand or arm. The first question to be resolved is whether claimant's work-related impairment is to the hand or the arm. Claimant has seen four physicians with respect to his right upper extremity problems. The treating physician, Dr. Jardon, has not discussed impairment to claimant's arm. Dr. Murphy has diagnosed impairment to both fingers and arm (along with the left forearm and lumbosacral regions), but the only language he employed that relates to the issue of whether that impairment is causally related to the work injury is: Right forearm limitation of motion - (0 degrees of supination)(forearm deformity probably old fracture) equals 13% of the upper extremity. The most reasonable and obvious interpretation of this paragraph is that Dr. Murphy attributes claimant's right forearm limitation of motion to his forearm deformity, probably related to old fracture. As has been seen, claimant did suffer a broken right arm at approximately five years of age. Dr. Wolbrink diagnosed claimant as suffering tendonitis of the right forearm, but does not discuss whether this is causally related to the stipulated work injury or any preexisting condition. Dr. Neff, a board-certified specialist, specified that claimant's forearm impairment "is old from another problem and is absolutely unrelated to the trigger finger releases." Dr. Neff also reported that claimant disclosed in his history that he had noticed several years before that he was losing supination when he attempted to receive change from a purchase. Based on the foregoing, the greater weight of the evidence makes clear that claimant's work-related impairment has not been shown to extend into the arm as opposed to the right hand. The right of a worker to receive compensation for injuries sustained which arose out of and in the course of employment is statutory. The statute conferring this right can also fix the amount of compensation to be paid for different specific injuries, and the employee is not entitled to compensation except as provided by the statute. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). With respect to scheduled member injuries, the impairment is the disability. The schedule of losses to members is presumed to include compensation for reduced capacity to labor and earn. Snell v. Central Engineering Co., 232 Iowa 421, 4 N.W.2d 399 (1942). As has been seen, the treating physician, Dr. Jardon, had some difficulty expressing his view as to claimant's impairment. His final estimate was that claimant had sustained a three percent permanent partial disability to the hand. Dr. Murphy noted that claimant had audible and palpable triggering with movement of the right long finger and found decreased sensation in the tip of the long finger. He found this to constitute a four percent impairment of the hand. Dr. Murphy further found slight tenderness to the ring and little fingers, each equalling an impairment of one percent of the hand, or a total of six percent. Dr. wolbrink expressed the view that claimant had sustained an 18 percent impairment to the right upper extremity. Obviously, Dr. Wolbrink was evaluating claimant's impairment to the arm in addition to the hand. Since he did not break down his total impairment to the upper extremity as to how much was attributable to the hand, and given that it has already been found that claimant's work-related disability is limited to the hand, Dr. Wolbrink's evaluation is of no value. Dr. Neff found claimant to have sustained zero percent disability because he had no.loss of range of motion to the digits of his hand, even though claimant had a markedly decreased grip strength on the right. Dr. Neff's view is apparently based on the American Medical Association Guides to the Evaluation of Permanent Impairment. That publication utilizes the loss of range of motion as by far the most important consideration in evaluating impairment. All three of these physicians (excluding Dr. Wolbrink) have given reasonable and relatively close ratings of impairment; although apparently utilizing different considerations or guidelines in reaching their respective opinions. In such circumstances, this office has taken the average of impairment ratings. Caylor v. Lucas County, II Iowa Industrial Commissioner Report 73 (1982). This appears to be an appropriate case for averaging impairment ratings. It is therefore held that claimant has sustained a three percent impairment to his right hand, or 5.7 weeks. Although the parties stipulated that the appropriate rate of weekly compensation is $225.57, they further stipulated that this was based upon gross weekly earnings of $343.01, claimant's marital status of married and four exemptions. A review of the "Guide to Iowa Workers' Compensation Claim Handling"as published by this office and effective July 1, 1986 discloses that the appropriate compensation rate for an individual so situated is $222.68. The parties have stipulated that claimant was paid 5.7 weeks of permanent partial disability on a voluntary basis prior to hearing, but at the rate of $225.57. Therefore, claimant has been paid benefits slightly in excess of those to which he is entitled ($16.47, or the difference between 5.7 weeks at the correct rate and at the stipulated rate). FINDINGS OF FACT THEREFORE, based on the evidence presented, the following ultimate facts are found: 1. Claimant's verbal dismissal in file number 865367 was accepted by the deputy at hearing. 2. As stipulated, claimant sustained an injury in September, 1986, arising out of and in the course of his employment. 3. Claimant's injury was to his right hand, but has not been shown to extend into the upper extremity. 4. Of the three physicians who have issued impairment ratings as to claimant's right hand, one has opined that claimant sustained an impairment of zero percent, one an impairment of three percent, and one an impairment of six percent. This is an appropriate case to average the impairment ratings. 5. As stipulated, claimant had an average gross weekly wage of $343.01, was married and entitled to four exemptions at the time of the stipulated work injury. 6. Defendants paid permanent partial disability of 5.7 weeks on a voluntary basis prior to hearing, but did so at the weekly rate of $225.57. CONCLUSIONS OF LAW WHEREFORE, based on the principles of law previously cited, the following conclusions of law are made: 1. Claimant has met his burden of proof in establishing a permanent partial disability to his right hand of three percent by reason of his stipulated work injury in September, 1986. 2. Claimant's appropriate weekly rate of compensation is $222.68. ORDER THEREFORE, IT IS ORDERED: Case number 865367 is dismissed and claimant shall take nothing. As claimant has been paid in excess of his entitlement in case number 837054, he shall take nothing further. Costs of this action in case number 837054 are assessed to defendants pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 12th day of February, 1990. DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. James A. Schall Attorney at Law 505 Erie P.O. Box 1052 Storm Lake, Iowa 50588 Mr. David L. Sayre Attorney at Law 223 Pine Street P.O. Box 535 Cherokee, Iowa 51012 5-1803, 2901, 3003 Filed February 12, 1990 DAVID RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER WILLIAM DECKER, File Nos. 837054 Claimant, 865367 vs. A R B I T R A T I 0 N WILSON FOODS CORPORATION, D E C I S I 0 N Employer, Self-Insured, Defendant. 5-1803 Impairment ratings of three physicians were averaged to determine disability to hand. 2901, 3003 Stipulation on rate was disregarded as incorrect. Deputy used stipulation as to average wage, marital status and exemptions to determine correct rate.