BEFORE THE IOWA INDUSTRIAL COMMISSIONER SAMUEL SCIARROTTA, Claimant, File NO. 838638 VS. DEUTZ-ALLIS CORPORATION, A R B I T R A T I 0 N Employer, D E C I S I 0 N VS. AMERICAN MOTORISTS INSURANCE, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by the claimant, Samuel P. Sciarrotta, against Deutz-Allis Corporation, and American Motorists Insurance, insurance carrier, to recover benefits as a result of an injury sustained on October 27, 1986. This matter came on for hearing before the undersigned deputy industrial commissioner in Des Moines, Iowa, on February 27, 1989. The record consists of the testimony of claimant, joint exhibit 1, and claimant's exhibits 1. ISSUES The issues for resolution are: 1. Whether claimant's disability is causally connected to his injury of October 27, 1986; and 2. The nature and extent of claimant's disability. REVIEW OF THE EVIDENCE Claimant testified that he developed a stress induced depressive condition while working for the employer resulting in claimant leaving his employment on October 24, 1986. Claimant stated that he began employment with defendant employer on April 4, 1980 as a sales finance representative. Claimant indicated his duties mainly involved obtaining retail financing for dealers, informing dealers of changes, supplying dealers with the necessary documents, doing the wholesale audits and checking repossessed equipment. Claimant emphasized that when he first went to work for defendant employer there was no collection SCIARROTTA V. DEUTZ-ALLIS CORPORATION Page 2 of accounts involved in his work. Claimant testified that as the farm economy changed for the worse, his job duties for .the employer changed resulting in claimant spending more time confronting and attempting to collect delinquent customer accounts and dealing with more repossessions by the dealers. Claimant stated that his hours of work increased and his employer was constantly changing the finance programs and rebates every month. Claimant stated that this required more time educating himself and the dealers with a constant changing program as the economy worsened. Claimant emphasized that collections were getting harder as the farmers and dealers were having more equipment repossessed as they had no money to make their payments. The claimant said that he was driving several hours a week, eating late, losing sleep, and working into the evening hours putting in over seventy hours a week. Claimant described various troublesome accounts and ordeals with dealers and some unethical conduct resulting in litigation. Claimant stated that he was personally named in a $100,000 lawsuit brought by a distraught and upset farmer. Claimant stated that his past due accounts increased, he was being threatened by farmers and dealers, in person and on the phone, and pressure was increasing from his employer. Claimant testified that just prior to his last day of work, his employer told him not to come in until claimant collected a $50,000 account which was unsecured or have the debtor-farmer sign over some property and claimant knew the customer could not pay or give up any property. Claimant testified that the stress of his work, loss of sleep and turmoil in the work place was affecting him to such a degree that he could no longer do his job and his last day of work was Friday, October 24, 1986. Claimant was placed off work by his doctor on October 27, 1986. Claimant stated that he had a history of diabetes beginning in 1981 or 1982, and that his work problems resulted in claimant not eating properly. Claimant testified that he had no medical problems prior to his employment with the employer in 1980. Claimant stated that he received a letter from his employer in March 1987 firing claimant as the employer did not think there was sufficient evidence why claimant was not working. Claimant stated that he sought work in October 1987 and worked at a friend's used car lot for two weeks. Claimant indicated that he was not himself these two weeks and had a memory and communication problem and could not continue working. Claimant said his friend was trying to help him and that his friend knew claimant needed,some help. Claimant contended that he was not able to work because of his medical condition and indicated that Dr. Taylor did not relapse him to work until September 1988. SCIARROTTA V. DEUTZ-ALLIS CORPORATION Page 3 On October 27, 1986, Stephen C. Gleason, D.O., wrote a .letter to "To Whom It May Concern":.. According to patient history on repeated visits to this clinic increased stress on his job appears to have resulted in his inability to medically or emotionally continue work at the current level. This patient is suffering from stress related illnesses in addition to diabetes and hypertension. He would benefit by stress reduction, reduction in work load and better diabetic control, including improved compliance with diabetic diet. (Joint Exhibit 1, page 1) Dr. Gleason referred claimant to Jerald L. Catron, Ph.D., a licensed psychologist, who wrote on November 21, 1986: My diagnosis psychologically was that of adjustment disorder with mixed disturbance of emotions and conduct, was [sic] well as psychological factors affecting physical condition. As he seems to have shown improvement in virtually every area of initial symptomatic complaint, it would appear that he has a good prognosis if he can continue minimizing major sources of stress in his life, such as job pressure. However, he has improved to the point that he has decided to consider pursuing a different position which would be less stressful for him, and I regard this as an additional sign of improvement. (Jt. Ex. l,p. 4) Claimant's employer referred claimant to Edward J. Hertko, M.D., who wrote on December 9, 1986: My working diagnosis on Mr. Sciarrotta are as follows: 1) Diabetes Mellitus, Type II, mildly uncontrolled; 2) Arterial Hypertension, treated; 3) Exogenous Obesity; 4) Chronic anxiety and/or agitated depression. In conclusion, I believe that Mr. Sciarrotta is not disabled on the basis of diagnosis 1, 2, or 3. If he is, it is on the basis of number 4, which is causing him difficulties at the present time. I do not consider his diabetes to be that bad at this point, in as much as, his hemoglobin Alc is 8.1, and this is a test that reflects what his blood sugars have been doing for the last two months. The upper limits of normal for this test is 8.0, therefore, SCIARROTTA V. DEUTZ-ALLIS CORPORATION Page 4 it is slightly elevated. In addition, his high blood pressure is somewhat elevated at the present time, but this could have been due to the fact that he was somewhat anxious and nervous when he came into [sic] see me. I believe that his main area of problems is his mental status. If he could receive some treatment or counseling, I believe that he should be able to resume his previous area of employment. (Jt. Ex. 1, p. 6) On March 16, 1987, Dr. Gleason wrote: Because of the work schedule and demands placed upon him, it was impossible for him to maintain a reasonable diet program with respect to his diabetes. It should be noted, however, that his uncontrolled diabetes is not the most critical factor in his recent disability and that the psychosocial aspects of his job are the major reason for his limitations. With adjustments as to the length of work time and modifications in responsibilities so that he would not be under threat of life, limb, or job related civil litigation, I feel Sam Sciarrotta could return to work after completion of treatment for depression. (Jt. Ex. 1, p. 9) On August 5, 1988, Michael J. Taylor, M.D., wrote: Any pressure that would be put on Mr. Sciarrotta, at this point, to return to work, in his current condition, would be, in my opinion, counterproductive to my efforts to get his depression cleared so that he can return to work. The current financial stress that he is experiencing, since his Workers' Comp benefits have been stopped, is certainly not helping the situation either. I continue to be optimistic that, with continued treatment, Mr. Sciarrotta's condition will improve to the point that, in the not too far distant future, he will be capable of returning to his usual and customary work. (Jt. Ex. 1, p. 27) On September 29, 1988, Dr. Taylor wrote: Mr. Sciarrotta has now done very well on the antidepressant medication that he is taking. He is free of depressive symptoms. He is actively seeking employment. Effective today, I released him to resume SCIARROTTA V. DEUTZ-ALLIS CORPORATION Page 5 usual and customary work activities without restriction. (Jt. Ex. 1, p. 29) Dr. Taylor wrote on December 8, 1988: At the time of my September 29, 1988, letter, I saw no evidence of any "permanent impairment" of a psychiatric nature. There are no psychiatric restrictions to Mr. Sciarrotta's work activity. (Jt. Ex. 1, p. 30) On February 8, 1989, Dr. Taylor wrote: I write to inform you that it is my opinion, within a reasonable degree of medical certainty, that between the period of time of November 1, 1986 and September 29, 1988 Mr. Sciarrotta was incapable of doing the work that he had been performing with the Deutz-Allis Corporation. He was unable to work during that period of time because of his Major Depressive Disorder which was, in my opinion, directly causally related to his work experience at Deutz-Allis. Mr. Sciarrotta has also informed me that there is a question as to how long he will need to continue on the antidepressant medications that he is presently taking. I am unable to answer that question with any degree of severity. Generally speaking, I wait until the patient has been asymptomatic for four to five months before beginning a trial of tapering the dose of antidepressant. It is impossible to predict how quickly the antidepressant can be tapered and stopped. (Jt. Ex. 1, p. 31) LAW AND ANALYSIS The claimant has the burden of proving by a preponderance of the evidence that the injury of October 27, 1986 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. SCIARROTTA V. DEUTZ-ALLIS CORPORATION Page 6 Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d.903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Iowa Code section 85.33(l) provides: Except as provided in subsection 2 of this section, the employer shall pay to an employee for injury producing temporary total disability weekly compensation benefits, as provided in section 85.32, until the employee has returned to work or is medically capable of returning to employment substantially similar to the employment in which the employee was engaged at the time of injury, whichever occurs first. In cases involving alleged mental injuries which are not the result of physical trauma, the required showing to establish a compensable mental injury arising out of employment vary from state to state. See Sersland, Mental Disability Caused by Mental Stress: Standards of Proof in Workers' Compensation Cases, 33 Drake L.Rev. 751 (1984). The Iowa Supreme Court has not yet decided what rule applies in this state. The court has only stated that claimant's employment must provide more than a "stage for the nervous injury." Newman v. John Deere Ottumwa Works, 372 N.W.2d 199 (Iowa 1985). This agency has indicated preference for the so-called "objective" or "Wisconsin" rule which was first expressed in School District #1 v. Department of Industry, L. & H.R., 62 Wis.2d 370, 215 N.W.2d 373 (1974) and later in Swiss Colony v. Dept. of ILAR, 72 Wis.2d 46, 240 N.W.2d 128 (1976). See Schreckengast v. Hammermills, Inc., IV Iowa Industrial Commissioner Report 305 (Appeal Decision 1983). However, this agency's decision in Schreckengast was appealed to the Iowa Supreme Court which affirmed the agency on other grounds. Whether or not the ruling from this agency in Schreckengast is binding in this case, the Wisconsin rule appears to be the best approach and is favored by Professor Larson in his treatise on workers' compensation law. See Larson, The Law of Workmen's Compensation, Vol. 1B, p. 7-637 et. seq., section 42.23(b). The rule insures that the claimed emotional difficulty is truly work related given the difficulties surrounding proof of the existence and nature of emotional harm. Furthermore, the rule is consistent with the concept in personal injury cases long recognized in Iowa that damages are more difficult to recover in a case involving only an emotional injury than a case involving a physical injury. Barnhill v. Davis, 300 N.W.2d 104 (Iowa 1981), negligent infliction of emotional harm; SCIARROTTA V. DEUTZ-ALLIS CORPORATION Page 7 Barnett v. Collection Service Co., 214 Iowa 1303, 1312, 242 N.W. 25, 28 (1932), intentional infliction of emotional harm. Under the Wisconsin rule, a nontraumatically caused mental injury is compensable only when the injury "resulted from a situation of greater dimensions than the day-to-day mental stresses and tensions which all employees must experience." Swiss Colony, 240 N.W.2 at 130. In other words, there are two issues which must be resolved before finding an injury arising out of employment--medical and legal causation. The medical causation issue is strictly an examination into the cause and effect relationship between the stresses and tensions at work and the mental difficulties. If the medical causation issue is resolved in favor of the claimant, legal causation is next examined. This determination concerns the issue of whether the work stresses and tensions (viewed objectively, not as perceived by claimant) were "out of the ordinary from the countless emotional strains and differences that employees encounter daily without serious injury." School District #1, 215 N.W.2d at 377. This 49-year-old claimant began working for the employer in 1980 and his work became stressful due to the deteriorating economy, in particular, the farm economy. This claimant was dealing with implement dealers and farmers who were caught in the economic downturn and were not able to pay their bills. This claimant dealt daily with these individuals and fronted for the employer and took verbal and psychological abuse. Claimant was putting in longer hours attempting to please the employer and even became involved personally as a defendant in a lawsuit although he was performing his duty as an employee of defendant employer. Claimant's last day of work.for the employer was October 24, 1986, and upon seeing Dr. Gleason did not return to work and has not returned to defendant employer's business to this date. Claimant has only a high school education and his prior background involves some manual and nonmanual labor. Sixteen years prior to his injury, claimant has been primarily involved in the finance credit industry. Claimant's job with defendant employer was the best job he has ever had as to salary and benefits. The greater weight of evidence indicates that claimant's injury and psychological problems resulted from more than the normal day to day mental stresses and tensions which all employees must experience in their ' employment. Claimant's disabilities were causally related to his job and injury culminating on October 27, 1986. The parties stipulated that claimant was off work beginning October 27, 1986 to September 29, 1988, inclusive. It was during this time that claimant was being treated and the medical evidence indicates that claimant most likely will recover from his condition and be able to return to work. Dr. Taylor released SCIARROTTA V. DEUTZ-ALLIS CORPORATION Page 8 claimant to return to work on the date of his September 29, 1988 letter in which he also stated that he had diagnosed claimant's condition as a major depressive disorder which he felt was causally related to the circumstances of his employment. There were no restrictions attached to the work release. Claimant was temporarily totally disabled beginning October 27, 1986 to and including September 29, 1988. Claimant's disability is causally connected to claimant's injury of October 27, 1986. Dr. Taylor shortly thereafter wrote, "I saw no evidence of any permanent impairment of a psychiatric nature. There are no psychiatric restrictions to Mr. Sciarrotta's work activity." Dr. Taylor had indicated in February 1989 that he did not know how long claimant needed to continue on an antidepressant medication that he was presently taking and could not answer that situation with any degree of severity. He indicated that he would have to wait until the patient has been asymptomatic for four to five months before beginning a trial of tapering the dose of antidepressant. He stated that it was impossible to predict how quickly the antidepressant can be tapered and stopped. The record indicates that claimant had a good medical history prior to working for defendant employer and that his psychological and physical problems began approximately the last year before he left his employment and culminated to such an extent he had to leave his employment on his last day of work on October 24, 1986. The record shows that claimant began looking for work in September 1988. Claimant is seeking a low stress type of job, forty hours per week. Claimant testified that he has enrolled in job service and checks every Friday for state jobs. He indicated that the hourly rate of jobs would be approximately $5.65 per hour plus insurance benefits. Claimant further indicated that if he was working for defendant employer at this time, based on his past history of increases and benefits, he would be making $33,000 with expenses paid plus fringe benefits of pension plan, health insurance, disability, and eye and dental insurance. The record shows that claimant was making approximately $25,513.50 for the ten months he worked in 1986 for defendant employer. Claimant appears not to have began a concerted effor to find employment until Dr. Taylor released him on September 29, 1988. When claimant applied for unemployment compensation in March of 1988, Dr. Taylor responded to the.job service request for a medical report on April 26, 1988 by stating claimant's nature of disability as "major depressive disorder." Dr. Taylor indicated in this report that claimant "could not perform occupation from October 30, 1986 to present." Claimant testified he was looking for a less stressful job. Claimant never requested to return to defendant employer. Claimant indicated he was dissatisfied with defendant employer. SCIARROTTA V. DEUTZ-ALLIS CORPORATION Page 9 It is true that they fired claimant because claimant was not able to do the work. This action by the employer under the circumstances existing then, is understandable. Claimant's lack of requesting the return of his job when he became well and released by his doctor does not enable this deputy to apply the Blacksmith case to the claimant as contended by claimant. Claimant has been released by his doctor with no restrictions. There is no evidence that claimant could not do his former work. He chooses not to seek such employment even though his background has been in the consumer finance business. This choice is claimant's right, but this deputy can not speculate as to whether claimant could perform certain work. Claimant does not have a proven loss of earning capacity. Claimant has no physical impairment. This claimant was temporary totally disabled from October 27, 1986 to and including September 29, 1988. FINDINGS OF FACT WHEREFORE, it is found: 1. Claimant incurred a stress induced depression condition while working for defendant employer which resulted in claimant leaving his job as of October 27, 1986. 2. Claimant's last day of work for defendant employer was October 24, 1986. 3. Claimant was released to return to work with no restrictions on September 29,.1988. 4. Claimant was temporary totally disabled as a result of his injury of October 27, 1986, beginning October 27, 1986 to and including September 29, 1988. 5. Claimant has no loss of earning capacity as a result of his October 27, 1986 injury. 6. Claimant has no functional impairment as a result of his October 27, 1986 injury. 7. Claimant has no current permanent impairment of a psychiatric nature as a result of his injury of October 27, 1986. 8. Claimant needs to continue to take antidepressant medication because of his injury of October 27, 1986. 9. Claimant has not been fully employed since October 24, 1986 . SCIARROTTA V. DEUTZ-ALLIS CORPORATION Page 10 10. Claimant did not seek a return of his employment with defendant employer at any time since claimant left his employment on October 27, 1986. CONCLUSIONS THEREFORE, it is concluded: Claimant's injury arose out of and in the course of his employment on October 27, 1986. Claimant's temporary total disability is causally connected to his injury of October 27, 1986. Claimant was released to return to work with no restrictions on September 29, 1988. Claimant was temporary totally disabled beginning October 27, 1986 to and including September 29, 1986. Claimant did not seek a return to his employment with defendant employer since he left his employment on October 27, 1986. Claimant has no loss of earning capacity. Claimant has no industrial disability. ORDER THEREFORE, it is ordered: Claimant is entitled to one hundred point five seven one (100.571) weeks of temporary total disability benefits for the period beginning October 27, 1986 and ending on September 29, 1988, inclusive, at the rate of three hundred thirteen and 47/100 dollars ($313.47) per week. Defendants shall pay the accrued weekly benefits in a lump sum. Defendants shall be given credit for benefits previously paid. Defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. Defendants shall pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. Defendants shall file an activity report upon payment of this award as required by this agency pursuant to Division of Industrial Services Rule 343-3.1. SCIARROTTA V. DEUTZ-ALLIS CORPORATION Page 11 Signed and filed this 18th day of April, 1989. BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Robert W. Pratt Attorney at Law 1913 Ingersoll Ave. Des Moines, IA 50309 Mr. Joseph S. Cortese II Attorney at Law 500 Liberty Bldg Des Moines, IA 50309 1402.40; 1801; 2204 Filed April 18, 1989 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER SAMUEL SCIARROTTA, Claimant, File NO. 838638 VS. DEUTZ-ALLIS CORPORATION, A R B I T R A T I 0 N Employer, D E C I S I 0 N VS. AMERICAN MOTORISTS INSURANCE, Insurance Carrier, Defendants. 1801; 2204 Claimant was temporary totally disabled for approximately two years due to the unusual day-to-day mental stresses and tensions of his job as a consumer finance bill collector during a time in which the farm economy had substantially deteriorated. Claimant had been physically threatened by customers and also sued for substantial damage by a customer whose debt claimant was trying to collect for the employer. Claimant developed a temporary major depressive disorder. 1402.40 Doctor gave claimant full release without restrictions. Claimant made no attempt to re-enter the consumer finance field in which he had years of experience and the greatest earning capacity. No mental or physical impairment or industrial disability found. BEFORE THE IOWA INDUSTRIAL COMMISSIONER RICK J. FINCHAM, Claimant, File No. 838639 vs. A R B I T R A T I O N CITY OF NEVADA, D E C I S I O N Employer, F I L E D and DEC 8 1989 NORTHWESTERN NATIONAL, IOWA INDUSTRIAL COMMISSIONER Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Rick Fincham, claimant, against city of Nevada, employer, and Northwest National Insurance Company, insurance carrier, to recover benefits under the Iowa Workers, Compensation Law as a result of an injury sustained January,9, 1986. This matter came on for hearing before the undersigned deputy industrial commissioner on August 19, 1988 and was considered fully submitted upon receipt of exhibit IX(B). The record in this case consists of the testimony of claimant and Bill Selby; and joint exhibits I through IX(B), inclusive. ISSUES Pursuant to the prehearing report and order submitted and approved August 19, 1988, the following issues are presented for resolution: 1. Whether the work injury of January 9, 1986 was the cause of temporary psychological problems for the claimant. (The parties have stipulated that the work injury is the cause of a temporary and permanent physical disability and claimant makes no claim for permanent disability as to his asserted psychological problems.); 2. The extent of claimant's entitlement to weekly benefits; and 3. Claimant's entitlement to medical benefits under Iowa Code section 95.27. FACTS PRESENTED Claimant sustained an injury which arose out of and in the course of his employment on January 9, 1986, when, while reading a water meter, he stepped into a window well covered with snow and fell, experiencing immediate back pain. Claimant testified he missed approximately two weeks of work while under the care of Rod R. Rebarcak, D.C., who referred claimant to Mark P. Brodersen, M.D., orthopedic surgeon at the McFarland Clinic in Ames, Iowa. Claimant stated that Dr. Brodersen treated him with medication and exercises and advised him that so long as he was working he would not get better since the work was not conducive to healing a herniated disc. Claimant testified that following his injury he began developing psychological problems in the form of depression for which he sought treatment at the McFarland Clinic. Claimant described feeling so depressed that he could not function as a worker or as a human being and that he was so afraid of "rupturing a disc" at work that he submitted his resignation to the employer. Claimant stated that after he submitted this resignation his depression became worse and he was feeling intense pain in his low back and left leg. Claimant recalled that about this time he was hospitalized for both his back and psychological problems for approximately twelve days. Claimant admitted that by the time of his hospitalization he had had several extramarital affairs which were a "complicating factor" but not the "sole reason" he landed in the hospital. Claimant denied having any psychological.problems prior to January 1986, admitted that after his injury he was drinking heavily "probably to try to alleviate the anxiety" in his life and denied that he had an alcohol problem prior to January 9, 1986, stating that alcohol did not "interfere" with his life or constitute a "major problem." Claimant acknowledged that he had had prior problems with his back for which he sought medical treatment from a chiropractor but maintained that he continued to work and that the problems did not incapacitate him. Claimant stated that he did not look for work after resigning his employment on May 16, 1986 until.he moved to California in July or August 1986 and secured employment as a security guard. Claimant explained that he voluntarily left this employment "to get retrained" and that he took classes in electronic assembly beginning in May 1987. Claimant testified that during this time he began treatment at the Sonoma County Mental Clinic where he worked with Emily Foster, Ph.D., through August 12, 1987. Claimant offered that he has not seen any mental health professionals since then, that he has had no further problems with his depression, and that he is not currently on any medication for either his back or his psyche. Claimant explained that presently he is constantly aware of a dull ache in his back and left leg and foot, that he cannot sit, stand or walk for long periods of time and that he watches how he lifts and moves. Claimant attested to doing low back exercises every day and using muscle relaxers "if [he] has a setback." On cross-examination, claimant acknowledged he did not attempt to secure any other employment with the City of Nevada since he knew he would not be able to and stated that he was hardly in a state of mind to be retrained for any other position with the city at that time. Claimant testified that with the electronics training he has there is no trouble securing and retaining employment. Bill Selby, who identified himself as a 22 year employee with defendant employer responsible for zoning enforcement, safety, and building and inspection, testified claimant was a very good employee, that he was surprised by claimant's ,resignation, and that he would have taken claimant back and found a place for him had such a request been made. Mr. Selby acknowledged there were no posted job openings at the time claimant resigned but maintained he would have found something or created a job for such a good employee. The medical records of Rod R. Rebarcak, D.C., show claimant was treated for lumbosacral strain with associated paraspinal spasticity, radiculitis radiating the trajectory of the right sciatic plexus, acute, moderate, and post-traumatic, secondary to neurospinal compression syndrome at L4-L5 and complicated by spondylolisthesis, discopathy at L4-5 when he was first seen in March of 1984. Dr. Rebarcak's records include an undated letter which reports that he referred claimant to Dr. Brodersen, of the McFarland Clinic, "due to the erratic progress" of his condition. Mark P. Brodersen, M.D., began treating claimant February 14, 1986 and advised claimant's counsel on August 16, 1986 that: [A] CT scan was performed of the lumbar spine which showed that he had a fairly large herniated disc at the L4-5 level extending to the left side. This appeared to be responsible for his symptoms and so an epidural steroid injection was performed on 2/21/86. He has made some progress, but had a flare-up in the late part of March. A second epidural injection was performed on 4/4/86. Because of the aggravation that his job caused his back, he finally gave this up. As I understand, he seems to.be doing better at the present time and is trying to adjust his life to meet the restrictions that his back has placed upon him. I agree with this approach. I have discussed on several occasions, the importance of vocational rehabilitation in trying to find a job that will not stress his back. (Joint Exhibit I(C), Pages 34-35) Dr. Brodersen's office note of May 1, 1986 reflects some concern over claimant's emotional stability and states: Rick returns in regards to his back. He appears to be completely befuddled by his situation. He seems quite depressed. I discussed the options with him. He feels that he emotionally cannot make any decisions at this point in time because of his depression and other psychiatric problems. I discussed this with Larry Marshall. I feel that this man is a danger to himself as he is now in terms of the potential for suicide and inability to handle himself. Larry agrees with me. We ,will have seen by Doctor Dodd in regards to admitting him for his current emotional problems. (Jt. Ex. I(C), p. 31) In a letter dated August 14, 1986, Jack L. Dodd, M.D., reported on claimant's care to claimant's counsel, advising: Mr. Fincham presented for treatment in February of 1986. Upon his presentation, it was noted that he was in fact depressed. He was treated primarily with psychotherapy and his condition slowly worsened and he was admitted to the psychiatric ward of Mary Greeley Medical Center on May 1, 1986 and was treated there until May 13, 1986 for a major recurrent depression....Upon being discharged from the hospital, he has been followed periodically as an outpatient and has shown improvement.....He was last seen on August 6, 1986 and at that time expressed a sense of general improvement in his well being.... Mr. Fincham had complained of back pain with associated sciatic pain prior to coming to the hospital and it did appear to be a complicating factor in his depression. It is not my impression that the back pain represents the sum and total reason that he was depressed, but there is no doubt in my mind that it was a contributing factor because of the time sequence and also because it is known that depression is frequently a sequelae to disabling back injuries. We are encouraging Mr. Fincham to stay on antidepressant medication and to follow up in outpatient treatment for at least a year after his discharge from the hospital. It is my opinion that the patient does have a family history of depression and may experience other depression during his life. (Jt. Ex. I(D), p. 44) Claimant's admission note dated May 1, 1986 from Dirk Scholten, M.D., reflects the history that: Notes that he comes from a family in which there is a fairly strong history of depression as manifest by significant depressive illness in his mother and suicide in his grandfather and an uncle. There has been a dysfunctional marriage for the last couple of years. He has been involved in three affairs. Recently he told his wife about this. There is an effort to salvage the marriage and make some reconciliation. (Jt. Ex. I (E), p. 58) Claimant underwent a psychological evaluation on November 3, 1987 which was conducted by John Watts Podboy, Ph.D., Clinical Psychologist, Kenwood, California. Dr. Podboy concluded a rather lengthy report.by recording this summary and recommendations: RICHARD JOHN FINCHAM is a 36 year old male who attributes considerable back difficulties and psychological problems to an alleged on-the-job injury occurring during January of 1986. However, information which he has provided to various care givers is inconsistent, for example, stating at one point to a physician that he had had a problem for some five to six years prior to 1986, and presenting himself for treatment due to the fact that he had been shoveling some snow and had developed pain in the lower back area. Evidently, after speaking with his sister who encouraged him, according to information presented to this examiner, that he seek compensation for on-the-job difficulties, he thought further about his problems and then, while an inpatient, stated that he had had back problems for some ten years, and in fact, had not only been shoveling snow but had stepped in a hole that had been obscured by the snow. While in the hospital, that is, at the Mary Greeley Medical Center, from a psychological perspective, Mr. Fincham presented as an individual who was rather seriously depressed and was so treated. Thereafter, he recovered very quickly with Jack Dodd, M.D., stating in a letter dated August 14, 1986 to attorney.Dennis Hanssen, in part, "he was last seen on August 6, 1986 and at that time expressed a sense of general improvement in his wellbeing." Setting aside for a moment the inconsistencies in Mr. Fincham's recollection of those events which reportedly contributed to his low back difficulties and psychological problems, it is significant to note that the family history is positive for depression and alcohol abuse with Mr. Fincham, by his own admission reaching a point where he not only abused alcohol, but experimented with a variety of hallucinogenic substances, to the extent where he was eventually advised that he should address his pattern of substance abuse. Finally, it appears as though Mr. Fincham's depression, that is, that which resulted in him being hospitalized in May of 1986, may have been entirely related to his guilt about out his extramarital affairs and the fact that he was abusing a depressant drug, namely, ethanol. It should also be noted that Mr. Fincham, after his hospitalization, was able to mobilize his resources, travel from Iowa to California to locate a new area of the country in which to reside, and complete that move during late October of 1986. This is not the sort of major undertaking which a significantly depressed person can initiate and complete, and this move, in conjunction with Mr. Fincham's ability to complete a training program and seek, secure and maintain employment raises further questions about the extent of his depression. In summary, this examiner is unable to determine that any relationship exists between Mr. Fincham's alleged injury of January 9, 1986 and any subsequent medical, psychological or psychiatric interventions which took place thereafter up to and including the present time. The available records, as well as the material directly elicited from Mr. Fincham during the course of this examination, are replete with inconsistencies contradictions, and deliberate omissions to such an extent that this examiner can find no basis for Mr. Fincham's claim of physical and psychological injuries resulting from [sic] alleged accident while working for the City of Nevada, Iowa. Although there is no pervasive evidence that an on-job injury occurred, if it did occur as alleged by Mr. Fincham, at this time his level of impairment is minimal, consisting of discomfort" but is not disabling. (Jt. Ex. I(I), p. 77-78) APPLICABLE LAW AND ANALYSIS An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). The parties do not dispute that on January 9, 1986 claimant fell in a window well sustaining an injury to his back which arose out of and in the course of his employment and which is the cause of both temporary and permanent disability. Of first concern is a determination of whether claimant's asserted psychological problems, for which claimant requests temporary total disability benefits for the period from January 9, 1986 through August 31, 1987, except for three weeks when he was employed as a security guard, are causally connected to the injury. The claimant has the burden of proving by a preponderance of the evidence that the injury of January 9, 1986 is causally,,related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl vs. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). Expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The undersigned would conclude that the greater weight of evidence would establish that claimant was predisposed to having a major depressive episode. In addition to the physical trauma of this work injury, claimant is positive for a family history of depression and alcohol abuse. Claimant engaged in a number of extramarital affairs which he disclosed to his wife and was going through what he described as "marital difficulties" at the time of his hospitalization at.Mary Greeley in Ames. Claimant reported a "dysfunctional marriage for the last couple of years" to Dr. Scholten. Claimant abused alcohol both before and after the injury although he maintains alcohol abuse was not a "major problem" prior to the injury. Such a statement can only lead to the conclusion that it was still a problem, whether it could be described as major or not. According to Dr. Podboy's report, claimant admitted to the use and abuse of oral amphetamines, hallucinogenic mushrooms, LSD, and psylocybin. In addition, claimant moved to California without any definite,job prospects, a move which was planned but nevertheless the cause of some anxiety. The Iowa Supreme Court in Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980) stated at 354: A cause is proximate.if it is,a substantial factor in bringing about the result. See Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296, 297 (Iowa 1974). It only needs to be one cause; it does not have to be the only cause. See Langford v. Keller Excavating & Grading, Inc., 191 N.W.2d at 670. No reasonable person could deny that claimant's work injury was a cause of his seeking and receiving psychological counseling or that it was not the only cause. The question becomes, as the court stated in Blacksmith, whether or not the work injury was a substantial factor in bringing about the need for treatment. Dr. Podboy concluded that he was unable to determine any relationship existed between claimant's alleged injury of January 9, 1986 and any subsequent medical psychological or psychiatric interventions which took place thereafter. Dr. Podboy, a psychologist, received his degree in rehabilitation psychology and appears to have concentrated in the areas of learning/developmentally disabled and the juvenile delinquent based on the information provided in his curriculum vitae. Dr. Podboy questioned the existence of any injury which is somewhat disturbing in light of the parties' stipulation in this case. Dr. Dodd found claimant's injury to be a "complicating factor in his depression" and that although it was not the only reason claimant was depressed "it was a contributing factor because of the time sequence and also because it is known that depression is frequently a sequelae to disabling back injuries." The opinion of Dr. Dodd, a psychiatrist, certified by the National Board of Medical Examiners and the American Board of Psychiatry and Neurology, is found to be entitled to greater weight than that of the psychologist. Accordingly, it is concluded that the interaction between claimant's injury of January 9, 1986, his inability to continue working at his regular job, and the anxiety caused by leaving that job combined to constitute a substantial factor in causing the need for psychological counseling. Iowa Code section 85.27 provides, in part: The employer, for all injuries compensable under this chapter or chapter 85A, shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies therefor and shall allow reasonably necessary transportation expenses incurred for such services. The employer shall also furnish reasonable and necessary crutches, artificial members and appliances but shall not be required to furnish more than one set of permanent prosthetic devices. As the employer is responsible for furnishing all medical care causally connected to the injury, it is concluded that claimant is entitled to medical benefits for the psychiatric treatment which he received both in Iowa and in California. Claimant does not assert any permanent disability as a result of his psychological problems. It has been stipulated that the injury to claimant's back on January 9, 1986 is the cause of a permanent partial disability to the body as a whole. On August 16, 1986, Dr. Brodersen opined that claimant was "stabilized enough to state that he has a five percent impairment of the person as a whole on the basis of his disc problem." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. This is so as impairment and disability are not synonymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial disability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the. situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are.no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial disability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985). Claimant is 37 years old, is a high school graduate with two years of college completed at the-University of Northern Iowa. He sought and successfully completed a microelectronics training course which has allowed him to embark on a new career in California which demands very little of him physically. Claimant is currently working at a wage scale at $5.40 to $5.94 per hour whereas, while employed with defendant, he was last earning approximately $9.54 per hour. Claimant, however, was neither forced to relocate nor leave his job with defendant on account of his injury. While the undersigned may not dispute claimant was unable to continue in his position of meter reader/laborer due to the residuals of his injury, it is also not subject to dissention that claimant made no effort to secure other employment with defendant, having submitted his resignation to the city without discussing the situation with his supervisor. Mr. Selby maintained and established to the satisfaction of the undersigned that "a place" would have been found for claimant had claimant elected to remain in Iowa. However, what that "place" may have been is a sheer speculation at this stage since no positions were available with the city at the time of claimant's resignation and it is easy for defendant to assert that "a place" would have been found using as security the fact that claimant is now in California. Notwithstanding, claimant's actual earnings and his capacity to earn have been adversely affected as a result of the work injury of JAnuary 9. 1986. Claimant has restrictions on his employability imposed by Dr. Brodersen which include: In general, I would feel that this man should not participate in a job situation that would require the lifting of objects greater than 30 pounds and as well, repetitive lifting, bending, or twisting. It would be to his benefit to be able to change positions from a sitting to a standing position on occasion. (Jt. I(C), p. 35) The record would establish all of claimant's prior experience is essentially as an unskilled laborer. Claimant has work experience on road crews, cleaning and reconditioning cars, as a "stock man" in a factory, as a garbage collector, and in assembly producing frozen baking products. Claimant is currently employed, as indicated above, assembling subassemblies for precision electronic scale equipment, an area of work where there is, according to claimant, "no trouble finding jobs" if properly trained. Claimant acknowledged he is trained for several different aspects of the microelectronics industry and likes what he is doing. Claimant also had employment as a security job once he moved out to California. Claimant left his employment voluntarily to seek retraining and not due to.any ramifications of his injury. Claimant is not currently under any medical care and has not had any treatment for his back since approximately the fall of 1986. Claimant has had a history of back trouble but the record would support the conclusion that such trouble was not disabling until the injury of January 9, 1986. Claimant has not had any impairment rating prior to this injury nor is there any indication that claimant had any impairment, worked under any restrictions or was unable to carry out any function of his employment. The mere fact that claimant had prior medical treatment for his back does not necessitate a conclusion that claimant had a prior disability. Defendants' request for an apportionment in this matter is not appropriate and will not be honored. Considering then all the elements of industrial disability, it is found that claimant has sustained a permanent partial disability of 15 percent for industrial purposes as a result of the injury of January 9, 1986 entitling him to 75 weeks of permanent partial disability benefits. The final issue for resolution is the extent of claimant's entitlement to healing period benefits. Claimant requests benefits from the date of injury up to and including August 31, 1987 except for the period of time when he was employed as a security guard. Iowa Code section 85.34(1) provides that if an employee has suffered a personal injury causing permanent partial disability, the employer shall pay compensation for a healing period from the day of the injury until (1) the employee returns to work; or (2) it is medically indicated that significant improvement from the injury is not anticipated; or (3) until the employee is medically capable of returning to substantially similar employment. A healing period may be interrupted by a return to work. Riesselman v. Carroll Health Center, 3 Iowa Industrial Commissioner Reports 209 (Appeal Decision 1982) Claimant testified that following his injury on January 9, 1986, he probably returned to work the next day and did not leave work until he was advised to do so by Dr. Rebarcak who recommended claimant be excused from all work for two weeks due to low back and leg pain. Claimant then returned to work and worked until his admission to the psychiatric ward for the period of May 1, 1986 through May 13, 1986. On August 14, 1986, Dr. Dodd noted that claimant was last seen on August 6, 1986 at which time claimant "expressed a sense of general improvement in his wellbeing." Claimant was encouraged to follow up in outpatient treatment for one year after his discharge from the hospital. Dr. Dodd did not indicate claimant was not able to work during this period of time. Dr. Brodersen found claimant to be "stable enough" on August 16, 1986. Claimant has not had any subsequent care for his back since his release from Dr. Brodersen's care. Joint Exhibit 3, subdivision B, would show that claimant was paid his regular wages during January of 1986. Therefore, as claimant's psychological condition has been found to be causally connected to his employment, the undersigned would conclude that claimant's healing period ran from May 1, 1986 up to and including August 16, 1986, a period of 15.429 weeks. Although claimant sought additional treatment for his depression while in California, the greater weight of evidence would not establish claimant was in any way disabled from seeking or securing employment during this period of time. Claimant was employed as a security guard and, as previously noted, did not leave this employment due to any inability to work but rather as a result of his desire to be retrained. Claimant sought unemployment insurance benefits and presented himself as available for work and particularly work as a meter reader. Benefits paid during a period of temporary total disability or healing period contemplate an improvement in the worker's condition. Healing period does not continue during a time in which a worker is getting treatment that is maintenance in nature. DeRochie v. City of Sioux City, II Iowa Industrial Commissioner Report 112 (Appeal Decision 1982). Therefore, although defendants are liable for any costs associated with the California treatment (and, according to joint exhibit 2, there do not appear to be any disputed expenses), claimant has not shown any further entitlement to temporary total disability benefits during this period of time as the record fails to support a conclusion that claimant was temporary totally disabled. FINDINGS OF FACT Wherefore, based on the evidence presented, the following findings of fact are made: 1. Claimant sustained an injury on January 9, 1986 which arose out of and in the course of his employment. 2. The parties have stipulated and agreed that this injury is the cause of both temporary and permanent disability. 3. Claimant has sustained a permanent partial impairment as a result of the injury of January 9, 1986. 4. Claimant has prior work experience generally as an unskilled laborer but is a high school graduate and has two years of college education. 5. Claimant has work restrictions on his employability which prohibit him from engaging in much of the work for which he is fitted by experience. 6. Claimant has sought retraining in California and is currently employed in a stable job. 7. Claimant has suffered both a loss of earnings and a loss of earning capacity as a result of the injury of January 9, 1986. 8. The interaction between claimant's injury of January 9, 1986, his inability to continue working at his regular job, and the anxiety caused by leaving that job combine to constitute a substantial factor in causing a need for psychological counseling. 9. Claimant is entitled to medical expenses for the treatment of the psychological counseling. 10. Claimant's healing period ran from May 1, 1986 up to and including August 16, 1986, a period of 15.429 weeks. 11. As a result of the injury of January 9, 1986, claimant has sustained a permanent partial disability of 15 percent for industrial purposes. CONCLUSIONS OF LAW Therefore, based on the principles of law previously cited and discussed, the following conclusions of law are made. 1. As a result of the injury on January 9, 1986, claimant has sustained a permanent partial disability of 15 percent for industrial purposes. 2. Claimant has established that the injury of January 9, was the cause of a temporary psychological disorder. 3. Claimant is entitled to expenses associated with the treatment of the temporary psychological disorder. 4. Claimant is entitled to 15.429 weeks of healing period benefits for the period from May 1, 1986 up to and including August 16, 1986. ORDER THEREFORE, it is ordered: Defendants shall pay unto claimant fifteen point four,two nine (15.429) weeks of healing period benefits for the period from May 1, 1986 up to and including August 16, 1986, at the stipulated rate of two hundred sixty-two and 38/100 dollars ($262.38) per week. Defendants shall pay unto claimant seventy-five (75) weeks of permanent partial disability benefits commencing August 17, 1986, at the stipulated rate of two hundred sixty-two and 38/100 dollars ($262.38) per week. Defendants shall pay all disputed medical expenses for the treatment of claimant's psychological condition. Defendants shall receive credit for all disability benefits previously paid. All benefits that have accrued shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 86.30. Costs are assessed against defendants pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 8th day of December, 1989. DEBORAH A. DUBIK DEPUTY INDUSTRIAL COMMISSIONER. Copies To: Mr. Dennis L. Hanssen Attorney at Law Terrace Center Ste 111 2700 Grand Ave Des Moines, IA 50312 Mr. William D. Scherle Attorney at Law 803 Fleming Bldg Des Moines, IA 50309 51803; 1801; 1402.60 Filed December 8, 1989 Deborah A. Dubik BEFORE THE IOWA INDUSTRIAL COMMISSIONER RICK J. FINCHAM, Claimant, vs. File No. 838639 CITY OF NEVADA, A R B I T R A T I 0 N Employer, D E C I S I 0 N and NORTHWESTERN NATIONAL, Insurance Carrier, Defendants. 51803 Claimant established he sustained a 15% industrial disability for injury to back. 1801; 1402.60 Claimant established causal connection between injury and psychological problems so as to be entitled to temporary total disability and medical benefits. Although claimant had a number of other factors which contributed to his psychological problems, injury was found to be a substantial factor in bringing about the result citing Blacksmith, 290 N.W.2d 348 at 354. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JOSEPH VANSEVEREN, Claimant, VS. File No. 838679 A. C. DELLOVADE, A R B I T R A T I 0 N Employer, D E C I S I 0 N and KEMPER GROUP, Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Joseph Van Severen against A. C. Dellovade, Inc., employer, and Kemper Group insurance carrier, to recover benefits under the Iowa Workers' Compensation Law as a result of an injury sustained on November 13, 1986. This matter came on for hearing before the undersigned deputy industrial commissioner on September 14, 1988 and was considered fully submitted upon receipt of the parties' briefs on December 21, 1988. The record in this case consists of the testimony of claimant and Patricia Conway; claimant's exhibits 1 through 59, inclusive; and defendants' exhibits A through L, inclusive. Claimant's objections to defendants' exhibits A through K are overruled and the exhibits are admitted for their probative value. ISSUES Pursuant to the prehearing report and order submitted and approved September 14, 1988, the following issues are presented for resolution: 1. The extent of claimant's healing period; and 2. The nature and extent of claimant's entitlement to permanent partial disability benefits and the commencement date thereof. VANSEVEREN.V. A. C. DELLOVADE Page 2 Also disputed is claimant's entitlement to benefits under Iowa Code section 85.27. This issue, however, was not listed as an issue on the hearing assignment order and, accordingly, the undersigned is without jurisdiction to consider it. See Joseph Pressood v. Iowa Beef Processors, (Appeal Decision filed November 14, 1986) holding an issue not noted on the hearing assignment order is an issue that is waived. FACTS PRESENTED Claimant sustained an injury which arose out of and in the course of his employment on November 13, 1986 when a stepladder "kicked out" and claimant fell approximately eight to ten feet. Claimant stated he felt pain in his lower back, that he fell on his right knee, and that some material fell on his neck, shoulder and hip. Claimant recalled that after a try at bed rest which prove unsuccessful, he was hospitalized for ten days and when he was released therefrom, he was still in pain and did not feel much better. Claimant explained that he felt pain in his lower back into his right leg and foot, that he could not raise his arm higher than shoulder level, and that his neck and toe hurt. Claimant stated he was originally under the care of Maurice Margules, M.D., but that when defendant insurance carrier would not authorize Dr. Margules' care he was referred to Patrick W. Bowman, M.D., underwent some treatment at a pain clinic and had arthroscopic surgery done on his knee by R. Michael Gross, M.D. Claimant testified that neither of the surgical procedures done on his knee helped and that he last saw Dr. Gross in April of 1988. claimant explained he continued to see Dr. Bowman for pain down the back of his leg and that in May of 1988, he was released by both Drs. Bowman and Gross and told to find a different line of work. Claimant described his current symptoms as a constant pain running down his leg and that his knee goes out on him regularly. Claimant denied any problem with his neck or shoulder. Claimant stated he did not believe he could do ironwork, his regular work, because he could not sustain the constant bending over to work with rods, has difficulties standing for more than 45 minutes, and has difficulty sitting for more than two hours. Claimant testified he has not worked and has not engaged in any activity outside of walking the picket line for "three or four or five weeks" from 6:00 a.m. to 1:00 p.m. Claimant stated that after performing this duty he was "stiff, very stiff" and had to lie down and soak once he got home. Claimant explained he has been an ironworker since 1971 and on November 13, 1986 was earning $15 to $16 per hour with benefits and $13.10 per hour without benefits. Claimant attested to an injury in 1977 when a building collapsed and he suffered a VANSEVEREN V. A. C. DELLOVADE Page 3 "cracked vertebra" and was rated as having a 15 percent permanent partial impairment. Claimant also stated he was injured in 1983 when he twisted his mid, not lower, back. Claimant denied being advised not to return to ironwork after either injury and that each time was able to return to work without restrictions. On cross-examination, claimant revealed he settled the 1977 injury on the basis of a 25 percent industrial disability and the 1983 case on a percent impairment basis in the state of Nebraska. When confronted with information that he had been advised not to return to work as an ironworker after the 1983 injury and with information that restrictions had been placed on his employability, claimant stated he "sort of" recalled such advice "generally." During discovery in this case, claimant was asked in interrogatories: 4. State the dates, places, and general nature of each and every bodily injury sustained by the claimant since birth to date. For the purpose of these Interrogatories, bodily injury, injury, or injuries shall include any personal injury or condition which might be claimed or is claimed to be compensable under the Iowa Workmen's Compensation Act. (Defendants' Exhibit H. page 2) Claimant answered: September 16, 1977 - Compression fractures to L-1 lumbar and dorsal regions. Hospitalized in Bergan Mercy Hospital. On 9/16/77, I fell 10 feet from a scaffold whiled [sic] employed by all purpose utilities. We were subcontractor at the County Home in Sidney, Iowa. In 1983, I strained a muscle in my back. I was lifting a steel bar while doing iron work at the gas building located at 29th & Dodge Streets in Omaha, NE. the pain resolved after a few days and I returned to work. (Def.Ex. H, p. 2) At hearing, claimant acknowledged he was off work for seven months following the 1983 injury and was not given a full release to return to work. In addition, claimant was asked in interrogatory No. 5: 5. If the claimant has ever made claims for compensation or benefits under a nonoccupational insurance plan or brought actions for bodily injuries VANSEVEREN V. A. C. DELLOVADE Page 4 other than for the occurrence alleged herein, state the date and place of each such claim or action, giving the name and address of the employer, nonoccupational insurance carrier, or defendant in each case, as well as the amount of any settlement and the percentage of disability said settlement was based upon, including the specific area of the body which was disabled. (Def.Ex. H, p. 3) Claimant responded with information on the 1977 injury and disclosed no information on the 1983 injury. Claimant asserted, however, that he did not recall any restrictions being imposed and if restrictions were imposed what those restrictions might have been. Patricia Conway, who identified herself as a vocational consultant with Crawford Health and Rehabilitation Services, testified she first met with claimant on May 23, 1988 at the request of defendant insurance carrier and that she last met him for the eighth time on September 7, 1988. Ms. Conway explained she administered a number of tests to claimant and found him to be of average to above average in aptitude and that although she tried to develop a rehabilitation plan with claimant, claimant did not have such a plan at the time of hearing, describing claimant as lacking direction vocationally. Ms. Conway stated that he had a difficult time getting more than one word answers from claimant, that claimant gave no indication of direction and no feedback to any of her suggestions. Ms. Conway asserted claimant had conducted no independent job search and that his ideas of becoming a helicopter pilot or a train engineer were not realistic, both from a vocational standpoint and from an employment standpoint. Ms. Conway opined that in light of the restrictions imposed on claimant following his 1983 injury, he was capable of performing sedentary and light jobs and that the restrictions imposed on him following the most recent injury did not change his position vocationally since he can perform sedentary and light work now, as his medical restrictions are not much different now than they were in 1984. Ms. Conway opined that the injury of November 13, 1986 did not cause any loss of earnings since it did not change claimant vocationally based on his medical restrictions. Patrick W. Bowman, M.D., saw claimant on January 26, 1987 at the request of defendant insurance carrier and on that date reported: HISTORY: Joseph Van Severen is a 35 year old male who suffered an injury on the job on 13 November 1986. He stated VANSEVEREN V. A. C. DELLOVADE Page 5 that he fell off a ladder, falling approximately 8 feet. He landed on his right shoulder and neck. Since that time he has had fairly severe pain in his right knee, right shoulder, at the base of his neck, between his shoulder blades and also his lumbosacral area. He also is describing some radicular pain down his right lower extremity. He was seen by Drs. Miller and Margules. Dr. Margules carried out a lumbar myelogram which was normal. Conservative modalities have been recommended. He feels that he is gradually getting worse. He has been to physical therapy without benefit. His pain is quite mechanical in nature being aggravated by activity. He says nothing eases his pain. He is unable to get comfortable at night. He says he has increased pain with coughing in his leg. He says he is worse at.the end of the day. He is currently taking no medications regularly. He has a history of being completely free of pain prior to this fall. His general health is reasonably good. He does have a history of back problems in the past. He saw Dr. Klein back in 1970 after a fall at work which caused a compression fracture at Ll. He was laced in a Jewett hyperextension brace and was off work approximately 7 months. He said he recovered completely from that and had absolutely no residual symptoms in his mind. PHYSICAL EXAMINATION: Physical examination reveals an alert, cooperative man. He seems quite depressed to me. He walks with a slight limp on the right. His pelvis is slightly low on the left. Forward flexion is limited approximately 50 percent at the lumbosacral juncture. His neck motion is limited approximately 50 percent as well. There is associated muscle spasm in his neck and low back. He has a bicipital tendonitis of the right shoulder with associated pain and restriction of movement. He has no neurologic deficits in his upper or lower extremities. VANSEVEREN V. A. C. DELLOVADE Page 6 He has tenderness of his great toe on the right side with swelling and pain. He has tenderness about the knee on the right side. There is no effusion. He has good range of motion and no instability. There is tenderness about the patella. He has no neurologic deficits in his upper extremities. The pulses are intact above and below. There is no atrophy present. X-RAYS: X-rays of his right shoulder are normal. X-rays of his neck are within normal limits. X-rays of his right great toe show degenerative changes at the metatarsal phalangeal joint. There is a small ossicle off the edge of the joint and generalized narrowing present. Lumbar spine x-rays are essentially within normal limits. His right knee x-rays are within normal limits. IMPRESSION: 1. Bicipital tendonitis, right. 2. Subacute cervical strain. 3. Synovitis, right knee. 4. Degenerative arthritis, right great toe. 5. Status post compression fracture, Ll. 6. Degenerative lumbar disc disease. ..It took him an extended period of time to return to work before, and I am afraid that we are headed that way now unless we can get a handle on all of this. (Claimant's Exhibit 31) VANSEVEREN V. A. C. DELLOVADE Page 7 Dr. Bowman provided claimant with some medication, referred claimant to the spine center for a back conditioning program and injected the right shoulder with a steroid. On May 26, 1987, Dr. Bowman advised defendant insurance carrier on claimant's continued care, stating: As you can see, when I first saw him for this injury of 13 November 1986 on 26 January 1987, his right knee was a source of complaint. It has been aching all along, and I note that on 11 March 1987 I noticed a considerable swelling in the knee. Also, in reviewing my pain chart done initially, the right knee is marked by Joseph as a source of considerable pain for him. According to him, the knee was injured in the fall. Because there were no specific physical findings for torn cartilage, I pretty much ignored this, assuming that it was ligamentous, and anticipating improvement with time. Because of persistent symptoms there, he did undergo arthroscopy on 30 April 1987, and a large area of osteochondritis dissecans was found over the medial femoral condyle. This means that a chunk of cartilage in the knee was found to be loose along with the underlying bone. This is on the weight bearing surface and is unfortunately a fairly serious condition. In our office we are subspecialized, and I asked Dr. Mike Gross who is our arthroscopist to take a look, and it was he who actually did the arthroscopy and removed his fragment. The study was videotaped from beginning to end, and we would be happy to give you access to that if it would be helpful. What this arthroscopy documented was that not only does Mr. Van Severen have legitimate disease in his knee, he has unfortunately a serious problem there. He will be on crutches for at least the next 6 weeks or so, and his weight bearing on this limb will be limited after that for an indefinite period of time. This kind of condition can lead to early arthritic changes in the joint, and I think will seriously jeopardize his prospects for returning to work as a steel worker. I have reviewed the notes and nowhere do I see any reference by Joseph to a problem with his foot. As you know, he had a rather large ossicle over the big toe there which I removed at the same time. This was a rather minor and somewhat incidental thing. I think he should do well with it. Whether it is actually work VANSEVEREN V. A. C. DELLOVADE Page 8 related I do not know. I have talked to him, and he says that he jammed this toe in the course of the fall but simply did not bring it up before. Whether this would constitute being work related or not I think must be strictly based on Joseph's believability. I have no reason not to believe him, but certainly the record does not show any problem with his foot that I can see prior to my talking to him on 20 April 1987. Whether this constitutes a work related injury or not I think is between you and Mr. Gallner. As far as Joe's spine is concerned, I think he does have legitimate disease there. As you know, he has had compression fractures in the past, and I think Dr. Joe Gross has given him 15 percent total body impairment on that several years back. The fall has constituted an aggravation of a pre-existing condition, but I would not judge his actual impairment rating to be any higher than it was before as a result of this fall. I feel badly about all the confusion and hard feelings regarding this case. I can assure you that I have tried to be as honest and straightforward as I possibly could with all parties involved.. (Cl. Ex. 23) Michael Gross, M.D., wrote to claimant's counsel on August 18, 1987 that: Joseph Van Severen was seen by me on 12 August 1987. He had nothing but negative remarks to report with respect to his right knee. He stated that it constantly hurt him and he could not stand on it for any length of time and just by in large did not function adequately for activities of daily living. I had followed up on his therapy and his response to the therapy was poor in all likelihood due to discomfort. For whatever reason, he was just not able to cooperate to his fullest with the therapy. My feelings with this patient are really quite simple. I would certainly agree that he does have an going [sic] problem but I think he has proven to be a poor candidate for surgery and rehabilitation. I am not too keen on suggesting any type of surgery as he has proven at least in my experience that he does not respond too well to surgery. VANSEVEREN V. A. C. DELLOVADE Page 9 In view of the fact that he has problems with his back and problems with his knee, I feel it would be much more reasonable to re-direct his life and get him involved in Vocational Rehabilitation in a type of employment that would not include bending, stooping, lifting, working on his feet all day long or lifting heavy objects. (Cl. Ex. 20) On April 5, 1988, Dr. Gross opined that claimant's "disability rating is 15 percent of the lower extremity. His problem is indeed related to the November 1986 injury." (Cl. Ex. 7) On April 11, 1988, Dr. Bowman wrote to defendants' counsel "to clarify" his position regarding claimant's impairment. Dr. Bowman stated: As I understand it, Dr. Klein has given Mr. Van Severen a 15% total body impairment because of his lumbar spine condition in 1978 or so. Subsequent to that, in 1984, Dr. Friermood of Englewood, Colorado, gave him an additional 5% because of an aggravation of his spinal condition which occurred on the job. This 5%, as I understand it, was an impairment for combination of back injury and tendonitis of the shoulder. It is my opinion that Mr. Joseph VanSeveren did suffer an aggravation of a pre-existing lumbar spine condition when he came under my care in 1987 in January. It would be my judgment at this time that the total impairment that he currently suffers from his spinal condition would not exceed 20%. In view of the fact that Dr. Klein gave him 15% and Dr. Friermood gave him 2 or 3% (depending on how one wants to divide up the 5% he gave for the shoulder and back), that the increased impairment to his lumbar spine that he has sustained as a result of his accident in November of 1986 would be approximately 2 or 3% of the total body. I would essentially agree with Dr. Friermood's restrictions of no lifting greater than 30 pounds on an infrequent basis, no lifting greater than 20 pounds on a frequent basis, no repetitive bending or squatting. I think these limitations will be permanent. I also feel these limitations will absolutely preclude him VANSEVEREN V. A. C. DELLOVADE Page 10 from returning to work as an ironworker in the future. If more definition is needed regarding his permanent functional capacities, then a functional capacity assessment should be obtained. (Cl. Ex. 6) On April 19, 1984, Maggie Rose, R.N., a rehabilitation consultant with Fisher and Associates of Englewood, Colorado, reported: Joe and I met with Dr. Friermood on 4/16 as planned. Dr. Friermood reviewed the results of the CAT Scan, which Joe had undergone the Friday before. He stated that there was no evidence of any disc herniation or nerve impingement in his spinal column. Dr. Friermood stated that he had exhausted all types of treatment he knew of for Joe's condition and indicated he could find no objective findings on examination to warrant any further investigative studies. He did indicate that since Joe was still complaining of discomfort in his shoulder and his back he could not release him to return to work as an iron worker. Dr. Friermood stated that he felt Joe was capable of returning to a job as long as he observed the following restrictions: - no lifting greater than 30 lbs. on an infrequent basis - no lifting greater than 20 lbs. on a frequent basis - No repetitive bending or squatting - No overhead work with his right arm Dr. Friermood indicated that he felt Joe had reached maximum medical improvement as far as he was concerned and would provide the Carrier with a disability rating. (Cl. Ex. 44) APPLICABLE LAW AND ANALYSIS An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(l). As the parties have stipulated and agreed that on November 13, 1986 claimant sustained an injury arising out of and in the course of his employment which is the cause of both a temporary VANSEVEREN V. A. C. DELLOVADE Page 11 and permanent disability, the essential question for resolution is the nature (be it a scheduled injury or an injury to the body as a whole) and the extent of that disability. If a claimant contends he has industrial disability he has the burden of proving his injury results in an ailment extending beyond the scheduled loss. Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964). It is clear claimant has sustained prior injuries from which he suffered permanent disability. Claimant was injured in 1977 after which he was found to have sustained a 25 percent industrial disability. Claimant was again injured in 1983 after which he was found permanently impaired and had restrictions imposed on his employability. Dr. Bowman, who, unlike other physicians who saw claimant after his injury of November 13, 1986, was aware of both of claimant's injuries, opined that, as a result of the injury of November 13, 1986, claimant suffered, in addition to the lower extremity problem, an aggravation of a preexisting lumbar.spine condition. Although claimant has serious questions with regard to his credibility (which issue will later be addressed) the undersigned concludes that claimant has shown his injury extends beyond the schedule and that he is therefore entitled to an evaluation of industrial disability. Dr. Bowman has opined: It would be my judgment at this time that the total impairment that he currently suffers from his spinal condition would not exceed 20%. In view of the fact that Dr. Klein gave him 15% and Dr. Friermood gave him 2 or 3% (depending on how one wants to divide up the 5% he gave for the shoulder and back), that the increased impairment to his lumbar spine that he has sustained as a result of his accident in November of 1986 would be approximately 2 or 3% of the total body. (Cl. Ex. 6) Dr. Gross imposed a "disability rating" of 15 percent of the lower extremity. Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). VANSEVEREN V. A. C. DELLOVADE Page 12 A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. This is so as impairment and disability are not synonymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial disability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial disability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to VANSEVEREN V. A. C. DELLOVADE Page 13 recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). When an aggravation occurs in the performance of an employer's work and a causal connection is established, claimant may recover to the extent of the impairment. Ziegler v..United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 (1960). The Iowa Supreme Court cites, apparently with approval, the C.J.S. statement that the aggravation should be material if it is to be compensable. Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C;J.S. Workmen's Compensation sec. 555(17)a. As the evidence establishes both that claimant suffers from a preexisting condition (from which he sustained a permanent partial disability) and that the injury of November 13, 1986 aggravated that condition, claimant is entitled to recover benefits to the extent of the impairment. Subsequent to the 1983 injury, claimant was advised not to return to ironwork and that he had restrictions on his employability. This deputy finds it impossible to believe either that claimant forgot about Dr. Friermood's recommendations and opinions or that he did not know about them at all. It is clear from the evidence presented that claimant made a deliberate attempt to try to hide this injury. Indeed, medical histories which are replete with references to the 1977 injury are silent with regard to the 1983 injury. Interrogatory answers, answered under oath, are clearly and indisputably false and misleading. Seventeen weeks of healing period can hardly be termed "a few days." Claimant was also not completely candid with the insurance investigator who took his recorded statement immediately after the 1986 injury. Such conduct does not instill confidence in claimant's assertions concerning his abilities or lack thereof. Dr. Bowman, in 1988, does not impose any restrictions on claimant that Dr. Friermood did not impose in 1984. Essentially, Dr. Bowman's restrictions include "no lifting greater than 30 pounds on an infrequent basis, no lifting greater than 20 pounds on a frequent basis, no repetitive bending or squatting." (Cl. Ex. 6) Yet, after Dr. Friermood imposed such restrictions, claimant did return to ironwork. One has to wonder if claimant will do the same in light of the lack of initiative in developing an alternative vocational plan, his desire not to have to work the entire year and his love of ironwork. Claimant, age 36 at the time of hearing, is a high school graduate who was found to be of average to above average in aptitude. Claimant struck the undersigned as also being above VANSEVEREN V. A. C. DELLOVADE Page 14 average in his intellectual capabilities. Claimant was clearly provided with ample opportunity to develop an alternate vocational plan, yet, he has essentially chosen not to do so. Claimant appears to be "going through the motions" by meeting regularly with a vocational consultant. Claimant's lack of progress in this area is somewhat suspect. While claimant argues a loss of earnings based on "earning potential" it is clear claimant has never availed himself of this "earning potential." For the years of 1982, 1983, 1984, 1985 and 1986, claimant earned an average of $15,422.20 per year. Patricia Conway testified that given claimant's current employment restrictions and his current capabilities, claimant could expect to earn $14,000 to $15,000 per year now. The employment available to claimant would admittedly not be competitive with his previous hourly salary but it is competitive with his average annual earnings. The undersigned is not moved by the report of James T. Rogers found at claimant's exhibit 2 which asserts: Joe is not presently a candidate for job retraining or other vocational rehabilitation assistance such as on-the-job training, counseling, direct job placement, etc. and will probably be viewed by rehabilitation personnel, private or public, as uncooperative or barely cooperative. Joe is not presently in a frame of mind to be accepting of such services due to severe family financial and other problems. (Cl. Ex. 2, p. 6) Given claimant's credibility problems, his "frame of mind" appears to be more self inflicted than not. In spite of the above, claimant has sustained a permanent disability as a result of the injury under review. However, this deputy cannot ignore claimant's prior restrictions (whether he chose to live within their bounds or not), his prior impairment, or his prior earnings (whether he chose to rise to his potential or not). Considering then all the elements of industrial disability, it is found that claimant has a permanent partial disability for industrial purposes of 50 percent, 35 percent of which was preexisting and 15 percent of which is as a result of the injury of November 13, 1986. Claimant is thus entitled to 75 weeks of permanent partial disability benefits. The final issue for resolution is the length of claimant's healing period. Claimant argues that it should end on March 31, 1988 while defendants assert it ends on February 9, 1988. Iowa Code section 85.34(l) provides that if an employee has suffered a personal injury causing permanent partial disability, VANSEVEREN V. A. C. DELLOVADE Page 15 the employer shall pay compensation for a healing period from the day of the injury until (1) the employee returns to work; or (2) it is medically indicated that significant improvement from the injury is not anticipated; or (3) until the employee is medically capable of returning to substantially similar employment. The office notes of Drs. Bowman and Gross dated February 9, 1988 state: He is doing very well. He is not asymptomatic but the second surgery really made a big difference. He is happy. His motion is quite good. The knee is not swollen and not hot. The patient was released. Followup p.r.n. (Cl. Ex. 9) As nothing in the record would indicate claimant's condition improved subsequent to February 9, 1988 and claimant was released at this time to return to only on an as-needed basis, it is determined that claimant's healing period ended on February 9, 1988 and permanent partial disability benefits, pursuant to Iowa Code section 85.34, are to commence February 10, 1988. FINDINGS OF FACT Wherefore, based on all of the evidence presented, the following findings of fact are made: 1. Claimant sustained an injury which arose out of and in the course of his employment on November 13, 1986 when he fell approximately eight to ten feet off of a ladder. 2. Claimant's injury affected his back and leg and is an injury extending beyond the schedule. 3. Claimant sustained an injury in 1977 after which he was found to have sustained an industrial disability of 25 percent. 4. Claimant sustained an injury in 1983 after which he was advised not to return to ironwork and had restrictions placed on his employability. 5. Claimant has not been candid about his prior injuries, impairments and work restrictions. 6. Claimant's testimony lacks credibility. 7. Medical experts have reported that as a result of the injury of November 13, 1986, claimant aggravated a preexisting condition of the lumbar spine. VANSEVEREN V. A. C. DELLOVADE Page 16 8. Claimant's current work restrictions are essentially unchanged since those imposed after the 1983 work injury. 9. Claimant returned to ironwork after the 1983 injury. 10. Claimant has been rated as having a 15,percent impairment of the lower-extremity. 11. Claimant's future intentions are suspect in light of his lack of initiative in developing a future vocational plan, his desire not to have to work the entire year, and his love of ironwork. 12. Claimant's capacity to earn an actual earnings has been hampered as a result of the injury of November 13, 1986. 13. Claimant, age 36 at the time of heating, is a high school graduate who is considered to be of above average in his intellectual ability. 14. Claimant has sustained a permanent partial disability of 50 percent for industrial purposes, 35 percent of which is preexisting and 15 percent of which is as a result of the injury of November 13, 1986. 15. Claimant's healing period ended February 9, 1988. CONCLUSIONS OF LAW Therefore, based on the principles of law previously stated, the following conclusions of law are made: 1. Claimant has sustained an injury to the body as a whole. 2. Claimant has permanent partial disability for industrial purposes of 50 percent, 35 percent of which is preexisting and 15 percent of which is a result of the injury on November 13, 1986. 3. Claimant's healing period ended February 9, 1988. 4. Permanent partial disability benefits commence February 10, 1988. ORDER THEREFORE, it is ordered: Defendants shall pay unto claimant sixty-four point eight five seven (64.857) weeks of healing period benefits for the period from November 13, 1986 up to and including February 9, 1988 at the stipulated rate of two hundred eighty-four and 06/100 dollars ($284.06) per week. VANSEVEREN V. A. C. DELLOVADE Page 17 Defendants shall pay unto claimant seventy-five (75) weeks of permanent partial disability benefits commencing February 10, 1988 at the stipulated rate of two hundred eight-four and 06/100 dollars ($284.06) per week. Defendants shall receive credit for all disability benefits previously paid. Benefits that have accrued shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. Costs of this action are assessed against defendants pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 29th day of December, 1989. DEBORAH A.DUBIK DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Sheldon M Gallner Attorney at Law 803 3rd Ave P 0 Box 1588 Council Bluffs IA 51502 Mr. Thomns M Plaza Attorney at Law 701 Pierce St Ste 300 P 0 Box 3086 Sioux City IA 51102 51803 Filed December 29, 1989 Deborah A. Dubik BEFORE THE IOWA INDUSTRIAL COMMISSIONER JOSEPH VANSEVEREN, Claimant, VS. File No. 838679 A. C. DELLOVADE, A R B I T R A T I 0 N Employer, D E C I S I 0 N and KEMPER GROUP, Insurance Carrier, Defendants. 51803 Claimant, age 36, an ironworker, was injured in November 1986 and asserted that as a result thereof could not return to ironwork. Claimant was previously injured in 1977 and again in 1983 after which he returned to work in spite of medical advice to the contrary. After the 1986 injury, claimant's impairment increased by 2 or 3% and his restrictions remained unchanged since the 1983 injury. Claimant found to have an industrial disability of 50%, 35% of which was preexisting and 15% attributable to this injury.