Page 1 before the iowa industrial commissioner ____________________________________________________________ : CAROLYN LOFFREDO, : : Claimant, : : vs. : File Nos. 843434 : 979207 HY-VEE FOOD STORES, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL COMPANIES, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in arbitration upon an October 11, 1988 petition for Iowa Workers' Compensation benefits filed by claimant Carolyn Loffredo against her employer, Hy-Vee Food Stores, and its insurance carrier, Employers Mutual Companies. Claimant alleges injuries to both arms and her neck on October 16, 1986. This cause came on for hearing in Des Moines, Iowa, on October 17, 1990. The record consists of joint exhibits 1 through 5 and the testimony of claimant, Lawrence Loffredo, James Scott and Eric Willson. issues The parties have stipulated to the existence of an employment relationship between Carolyn Loffredo and Hy-Vee Food Stores at all times relevant and that defendants are entitled to credit totalling $2,215.00 under Iowa Code section 85.38(2). It was further stipulated that claimant's rate should be calculated based on average weekly earnings of $243.00 ($8.10 times 30 hours), a marital status of married and entitlement to two exemptions. The Guide to Iowa Workers' Compensation Claim Handling published by this office and effective July 1, 1986 provides that an individual so situated is entitled to a weekly benefit rate of $160.18. Issues presented for resolution include: 1. Whether claimant sustained an injury (or multiple injuries) arising out of and in the course of her employment with Hy-Vee Food Stores. 2. Whether there exists a causal relationship between the injury and any subsequent temporary or permanent disability; Page 2 3. The nature and extent of claimant's disability, if any; 4. Whether claimant is entitled to medical benefits under Iowa Code section 85.27; and, 5. Whether all or part of this claim is barred by untimely notice under Iowa Code section 85.23 or the statute of limitations under Iowa Code section 85.26. findings of fact The undersigned deputy industrial commissioner, having heard the testimony and considered all of the evidence, finds: Carolyn Loffredo, 44 years of age at hearing, commenced working for Hy-Vee Food Stores in February 1978, this being her first employment. Hy-Vee operates a chain of supermarkets. Claimant was hired as a bakery wrapper, but was promoted to a position as cake decorator about one year later. This position placed substantial demands on her hands and forearms, particularly squeezing pastry bags, stirring frosting and mixing colors. The job also required stocking shelves. Ms. Loffredo underwent a surgical release for carpal tunnel syndrome in February 1985 and returned to the same employment in May of that year. She was paid temporary total disability and medical benefits, but no permanent partial disability benefits. Claimant believed she made a full recovery and the record contains no contrary evidence. On or about October 15, 1986, claimant attempted to remove several cardboard cake boxes from a tightly-packed stack by pulling with the first two fingers of her dominant right hand inserted into perforations, but something noticeably "popped" in her wrist when she did so. She described the sensation as similar to an electrical shock from the elbow to the fingertips, followed immediately by numbness of the entire hand for some 10 or 15 minutes. Her immediate supervisor was not present, but claimant promptly notified one Tom Johnson, second in charge of the bakery at the time. Claimant is herself unclear as to the date of this traumatic incident, even as to whether it happened in October or September (as the history of Dr. Wirtz has it). However, a first report of injury contained in the litigation file and bearing the filing date of January 28, 1987 was prepared on November 21, 1986 and reflects a reported injury date of October 15. Official notice of that first report is hereby taken under Iowa Code section 17A.14(4); it is held that fairness to the parties does not require an opportunity to contest notice of this fact. Claimant continued to work, but found that pain Page 3 gradually increased over the next month. She eventually presented to Marshall Flapan, M.D., on November 6, 1986. Dr. Flapan, who performed the 1985 carpal tunnel release, is an orthopaedic surgeon who testified by deposition on August 30, 1990. Dr. Flapan's chart notes of November 6, 1986 reflect that claimant presented with complaints of a recurrent aching sensation in the right hand and arm since the "popping" incident, especially associated with repetitive movements of the wrist and digits while decorating cakes. There is no indication of complaints of left wrist or neck pain. Claimant had full range of motion of the wrist and all digits and no evidence of wasting, weakness or atrophy. Initial assessment was of synovitis of the right wrist secondary to extensive use of that hand. However, Dr. Flapan did not recommend that she leave work, but suggested frequent wrist rest and the use of power-assisted cake decorating equipment (the record does not indicate whether or not such equipment exists). Claimant continued to work, but frequently switched hands when she found pain intolerable on the right side. She returned to Dr. Flapan on January 16, 1987, complaining of discomfort in both hands, forearms and wrists. On an assessment of bilateral chronic tenosynovitis of the forearm muscles and wrist, Dr. Flapan recommended rest and restricted claimant from working. She was apparently off work for eight weeks through March 12, 1987. Claimant does not seek healing period or temporary total disability benefits for these weeks. Claimant was seen by Dr. Flapan again on January 30 and February 20, but chart notes do not disclose that complaints of neck pain were made. However, on May 17, 1987, complaints were made of discomfort in both upper extremities, present constantly, but aggravated by work, and of soreness in the elbows and forearms along with tingling and soreness in both hands, but not following any definite nerve distribution pattern. For the first time, claimant complained of neck discomfort, particularly of morning stiffness. Cervical spine range of motion was without limitation, and x-ray views showed cervical spondylosis at C6-7, but otherwise within normal limits. Assessment at this time was of painful upper extremities, etiology undetermined. In his deposition testimony, Dr. Flapan described cervical spondylosis as meaning arthritic spurs which he specified were degenerative as opposed to work related. Dr. Flapan last saw claimant on August 20, 1990. He testified that she had minimal, if any, objective findings to substantiate any permanent impairment, but believed that claimant suffered pain and discomfort in the upper extremities which functionally incapacitated her. He refused to rate impairment for lack of objective evidence of incapacity, but specified that claimant's current problem with both upper extremities was work related. He noted that tenosynovitis tends to aggravate a carpal tunnel problem, but maintained the view that cervical complaints were Page 4 unrelated to employment. In the meantime, defendants referred claimant to Peter D. Wirtz, M.D., a board-certified orthopaedic surgeon who testified by deposition on September 13, 1990. Dr. Wirtz first saw claimant on April 8, 1987. Chart notes of that date reflect that claimant had begun developing more pain in the left hand following July 1986 after returning to work following carpal tunnel surgery. Dr. Wirtz also made note of the "popping" incident, making specific reference to the tendon structures in the distal forearm on the right. There is no indication that claimant mentioned cervical problems. Dr. Wirtz is the only physician to whom claimant was referred by defendants. He was unaware that claimant alleged a neck injury until the date of his deposition, although he had seen claimant again on August 30, 1990. Dr. Wirtz testified that he found no objective signs with respect to problems in the arms or hands bilaterally. He found no objective restriction of function, but diagnosed (in 1990) upper extremity overstress syndrome, which he referred to as tendonitis and a temporary condition caused by stress, in particular work as a cake decorator. That work was cited as a cause of overstress syndrome to a probability. However, he further specified that symptoms caused by overstress should recur periodically and be temporary only, expected to resolve within from two hours to two days. He felt claimant's cervical condition was a natural degenerative process not caused by work, although degenerative disc disease may be temporarily aggravated with certain continuous positions of the neck, including 30 minutes of more stooping over a work table, such as would be the case while cake decorating. Claimant was also seen (on her own behest) by her family physician, Dennis C. Zachary, M.D. Dr. Zachary is a board-certified family practitioner who testified by deposition on July 30, 1990. He first saw claimant on May 13, 1988 with complaints of chronic pain in the wrists and hands, following which claimant was apparently taken off work on or about May 23, 1988 (the record in this case is most unsatisfactory as to the dates claimant missed work, but she seeks healing period or temporary total disability benefits from that date until June 8, 1989). Although claimant initially presented with complaints of chronic pain in the wrists and hands, she apparently subsequently made complaints of neck pain, following which Dr. Zachary performed an extensive evaluation of the cervical region, including x-rays and magnetic resonance imaging. The latter showed mild diffuse left-sided C5, C6 disc protrusion with encroachment of the left intravertebral neural foramen without signs of herniation or compression, a mild central noncompressive C6-7 disc protrusion and a reversal of the normal cervical lordosis. EMG showed no evidence of radiculopathy on either side and probable mild bilateral carpal tunnel syndrome. On September 13, 1988, Dr. Zachary wrote defendant Employers Mutual that neck and hand problems were aggravated and precipitated by the work. In particular, the loss of normal cervical curve was secondary to a long history of looking downward while decorating Page 5 cakes. Also, for reasons unclear to this observer, Dr. Zachary felt that the "pop" in claimant's wrist was "probably the disk protrusion that she developed." This letter is the first record indication of notice to defendants that cervical symptoms might be work related. Physical therapy included testing on a machine known as a biodex, which was interpreted by Dr. Zachary as excluding any psychological overlay, malingering or faking on claimant's part with respect to bilateral arm complaints. Dr. Zachary reached this conclusion because test results, although self-reported by the testee, are extremely difficult to fake (although Dr. Wirtz, who also saw the biodex results, was unimpressed and had no opinion due to the subjectivity of this test). Dr. Zachary specified that claimant's bilateral hand problems were aggravated and precipitated by her work and, using American Medical Association guidelines, assessed a 14 percent impairment to each arm, even though he also testified that the right arm was worse than the left as to strength, and suggested that the 14 percent impairment rating "must be based on the average of the two [arms]." Claimant was also seen by S. Randy Winston, M.D., a neurosurgeon. In a letter of November 15, 1988 addressed to Dr. Flapan, he noted that claimant had been seen on November 14. He found no "surgical" disease related to cervical root compression, but found very mild bilateral carpal tunnel syndrome which seemed out of proportion to symptomatology complained of. Carolyn Loffredo testified both at hearing and by deposition of July 2, 1990. She indicated that her neck had been bothering her for years and "it seemed to get progressively worse and worse the longer I worked, especially lifting over your head." She further indicated that neck stiffness became progressively worse after her short period of temporary disability on Dr. Flapan's instructions. The neck also bothers her under any stress conditions, notably driving in traffic. The first person in authority that she told of neck problems was bakery manager Ron Graham. She did not know for certain when Mr. Graham was so informed, but specified that she made only passing comments such as that her neck was stiff or aching and never advised anyone she was unable to work due to the neck condition. It was her conclusion that neck stiffness was causally related to work. She currently complains of pain in the wrist on lifting anything at all or in motions such as tooth brushing, weakness in the wrists, swelling in the hands (but not the arms) and numbness in the fingers on occasion. She is currently limited to 15 pounds lifting or against lifting overhead, but has been described by defense witnesses as a good employee. conclusions of law The parties have stipulated to the existence of an employment relationship at all times relevant, but dispute Page 6 whether claimant sustained an injury arising out of and in the course of that employment on October 16, 1986. The words "arising out of" refer to the course or source of the injury. McClure v. Union, et al., Counties, 188 N.W.2d 283 (Iowa 1971). This requirement is satisfied by showing a causal relationship between the employment and the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986). The parties have tried this case on the theory that claimant sustained a single injury which afflicts her arms bilaterally and her neck. Actually, the record suggests at least two and possibly three alleged injuries. Claimant experienced a traumatic "popping" incident in the right arm on October 15, 1986. However, she was not taken off work and did not accrue medical expenses prior to seeing Dr. Flapan in January 1987. Thus, the right arm problem did not become compensable for workers' compensation purposes until then. The left arm problem was apparently a cumulative injury related to her many years of work as a cake decorator, and especially after she began using the left hand to a greater degree in compensation for problems on the right side. Similarly, complaints of cervical problems appear to be cumulative in nature. In cases of cumulative injury, the injury date is deemed to occur when, due to pain or physical inability, a claimant is no longer able to work. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). Claimant did not lose work due to the left hand until taken off work by Dr. Zachary on a date unclear of record, but apparently alleged to be May 23, 1988. Although claimant did not at that time specifically complain of cervical pain, at least more than had been the case in the past, it was while off work at Dr. Zachary's order that treatment for cervical problems commenced. Claimant has not otherwise left work specifically due to cervical complaints, and especially not after May 23, since she was then already off work. It is accordingly held that the appropriate injury date for claimant's cervical problems is, on the best evidence available, May 23, 1988. Defendants have asserted an affirmative defense of limitations under Iowa Code section 85.26, which requires commencing an action within two years from the date of the occurrence of the injury if no weekly benefits are voluntarily paid, and within three years of the last payment if weekly benefits have been paid. This action was commenced on October 11, 1988, which is within two years of the injury date of October 15, 1986. The limitations defense fails. Defendants also assert a notice defense under Iowa Code section 85.23, which provides: Unless the employer or the employer's representative shall have actual knowledge of the occurrence of an injury received within ninety days from the date of the occurrence of the injury, or unless the employee or someone on the employee's behalf or a dependent or someone on the dependent's behalf shall give notice thereof to Page 7 the employer within ninety days from the date of the occurrence of the injury, no compensation shall be allowed. Defendants specified that the notice defense is not asserted as to the incident of October 15, 1986. As has been seen, claimant gave verbal notice to second in command of the bakery Tom Johnson on the same day as that incident. Giving formal notice is unnecessary if the employer has actual timely notice of the occurrence of the injury. That is, defendants have actual notice when an appropriate representative has information both that the employee suffered an injury and that the injury might be work related. Robinson v. Dep't of Transp., 296 N.W.2d 809 (Iowa 1980). While claimant may have made offhand remarks as to neck stiffness or aching before she saw Dr. Zachary, the record fails to show that these comments were anything other than routine conversations entered into by fellow employees to pass the time of day, at least as to whether the injury was alleged to be work related. The purpose of a notice requirement is to give the defendants an opportunity to timely investigate the injury. Id. Lawyer and Higgs suggest in Iowa Workers' Compensation--Law and Practice, (1984) that if an employee tells a supervisor of incidental back pain without relating that it was caused by a work incident, the fact finder may conclude that the employer did not have adequate notice. The test of whether an employer has actual knowledge is based on whether a "reasonably conscientious employer" could conclude from the information at hand that a workers' compensation claim may be in existence. Robinson, supra; Farmers Elevator Co., Kingsley v. Manning, 286 N.W.2d 174 (Iowa 1979). Claimant's offhand remarks concerning her neck stiffness or aching do not serve to notify a reasonably conscientious employer that a workers' compensation claim may be in existence. On this record, the very first actual knowledge given to defendants of a claim for possible work-related cervical difficulties is contained in Dr. Zachary's letter to Employers Mutual under date of September 13, 1988. Since the injury date of claimant's cervical problems, if one exists at all (it will be recalled that the medical testimony on this issue is very much in dispute), is May 23, 1988, notice is untimely. Accordingly, the portion of this claim related to alleged cervical problem is barred by failure to give notice under section 85.23. Claimant was seen by Dr. Wirtz on April 8, 1987, complaining then of bilateral upper extremity pain. Dr. Wirtz was a company doctor and should be considered a "representative" of the employer for notice purposes. Hensley v. Swift Indep. Packing Co., I-4 State of Iowa Industrial Commissioner Decisions 881 (1985). Given the totality of Dr. Wirtz's deposition testimony, and given the April 8 chart note to the effect that claimant continued to note symptoms with activities and that the left had become Page 8 more painful since November 1986, it is held that defendants had adequate notice of left upper extremity symptomatology as being potentially work related more than a year before the injury actually accrued for compensation purposes (by claimant being forced to leave work). Thus, the notice defense fails in this specific. It must be determined whether claimant sustained bilateral upper extremity injuries arising out of and in the course of employment. Dr. Zachary is certain that she did. Dr. Flapan diagnosed tenosynovitis, and found claimant incapacitated in the upper extremities. Dr. Wirtz finds no permanent disability, but also is of the view that continued stress will continue to cause continued disability. The claimant has the burden of proving by a preponderance of the evidence that her injuries are causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). 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 recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). The preponderance of the evidence establishes that claimant's upper extremity problems have at minimum been aggravated, accelerated, worsened or lighted up. Although Dr. Wirtz denies permanent disability, this opinion is inconsistent with his concession that claimant would continue being symptomatic upon continued stress. Under Iowa Code section 85.34(1), healing period is Page 9 compensable beginning on the date of injury and continuing until the employee has returned to work, it is medically indicated that significant improvement from the injury is not anticipated, or until the employee is medically capable of returning to substantially similar employment, whichever first occurs. Claimant does not seek further healing period or temporary total disability benefits except from May 1988 through June 1989. As has been seen, the record is unclear as to when Ms. Loffredo actually left work, but May 23, 1988 is accepted. However, the healing period from that date is not only indefinite as to duration, but as to cause. That is, the record does not disclose when claimant might have returned to work if only left upper extremity symptomatology be considered as opposed to cervical symptomatology, clearly a major factor in that lengthy delay (and too, those limitations imposed upon claimant's return to work and under which she still labors). It is accordingly held that claimant has failed to satisfactorily establish entitlement to healing period benefits for the injury to her left arm of May 23, 1988. Injuries to the arm are compensated pursuant to Iowa Code section 85.34(2)(m) during 250 weeks. Dr. Zachary is the only physician to have rated impairment, and he suggests 14 percent of each arm (Dr. Wirtz finds zero impairment, but as has been seen, his testimony is internally inconsistent). Since claimant's left arm symptomatology has not been shown to be a sequela of the right arm injury (and thus part and parcel of the same injury), each arm shall be compensated separately on the basis of 14 percent of 250 weeks, or 35 weeks. Permanent partial disability benefits with respect to the right arm shall commence March 5, 1987 (Dr. Flapan released claimant to light duty effective that date) and, with respect to the left arm, on May 23, 1988. The 1987 injury will be compensated at the weekly rate of $160.18 as set forth in the issues section of this decision. The 1988 injury will be compensated pursuant to the Guide to Iowa Workers' Compensation Claim Handling then in effect, or $160.54. As the evidence does not disclose claimant's earnings during the 13 weeks prior to May 23, 1988, it will be presumed that earnings are identical. Claimant also seeks medical benefits pursuant to Iowa Code section 85.27. A summary of medical payments and mileage was presented at hearing. Except for the biodex test at a cost of $75.00, it is impossible to determine the extent to which those costs related to the compensable arm injuries as opposed to the alleged cervical injury which is barred by defendants' notice defense. The biodex test was not paid by claimant personally, so she cannot be directly awarded that expense. Caylor v. Employers Mutual Casualty Co., 337 N.W.2d 890 (Iowa App. 1983). The parties have stipulated that defendants are entitled to credit totalling $2,215.00 under Iowa Code section 85.38(2). It has been found that claimant sustained Page 10 separate injuries to each upper extremity. Based on this record, it is not possible to determine to which upper extremity injury this credit should apply. The 85.38(2) credit in the amount of $2,215.00 shall therefore be divided equally between the two injuries. order THEREFORE, IT IS ORDERED: This Division shall establish a separate file number and litigated file (claim number 979207) pertaining to claimant's left arm injury of May 23, 1988. Defendants shall file a first report of injury as to that injury within thirty (30) days of the filing hereof. As regards file number 843434: Defendants shall pay unto claimant thirty-five (35) weeks of permanent partial disability benefits (right hand) at the rate of one hundred sixty and 18/100 dollars ($160.18) per week commencing March 5, 1987 and totalling five thousand six hundred six and 30/100 dollars ($5,606.30). As regards file number 979207: Defendants shall pay unto claimant thirty-five (35) weeks of permanent partial disability benefits (left hand) at the rate of one hundred sixty and 54/100 dollars ($160.54) per week commencing May 23, 1988 and totalling five thousand six hundred eighteen and 90/100 dollars ($5,618.90). As regards both files: Defendants shall have credit under Iowa Code section 85.38(2) in the sum of two thousand two hundred fifteen and 00/100 dollars ($2,215.00) which shall be divided and each half applied equally toward file numbers 843434 and 979207. All accrued weekly benefits shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. The costs of this action shall be assessed to defendants pursuant to rule 343 IAC 4.33. Defendants shall file claim activity reports as regards both files as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ______ day of ____________, 1991. ______________________________ DAVID RASEY Page 11 DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Ronald A. Baybayan Attorney at Law 5609 Douglas Avenue Des Moines, Iowa 50310 Mr. D. Brian Scieszinski Attorney at Law 801 Grand Avenue, Suite 3700 Des Moines, Iowa 50309 Page 1 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JUDY McKILLIP, Claimant, File No. 843449 vs. A P P E A L SHELLER-GLOBE CORPORATION, D E C I S I O N Employer, Self-Insured, Defendant. ____________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed June 19, 1990, is affirmed and is adopted as the final agency action in this case. Defendant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of _____________, 1992. ______________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Thomas M. Wertz Attorney at Law 4089 21st Avenue SW Suite 114 Cedar Rapids, Iowa 52404 Mr. Harry W. Dahl Attorney at Law 974 73rd Street Suite 16 Des Moines, Iowa 50312 9998 Filed June 29, 1992 BYRON K. ORTON BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JUDY McKILLIP, Claimant, File No. 843449 vs. A P P E A L SHELLER-GLOBE CORPORATION, D E C I S I O N Employer, Self-Insured, Defendant. ____________________________________________________________ 9998 Summary affirmance of deputy's decision filed June 19, 1990. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JUDY McKILLIP, Claimant, File No. 843449 VS A R B I T R A T I 0 N SHELLER-GLOBE CORPORATION, D E C I S I 0 N Employer, Self-Insured, Defendant. INTRODUCTION This is a proceeding in arbitration brought by Judy McKillip, claimant, against Sheller-Globe Corporation, employer and self-insured defendant, for benefits as the result of an injury which occurred on January 16, 1987. A hearing was held in Cedar Rapids, Iowa on August 1, 1989 and the case was fully submitted at the close of the hearing. Claimant was represented by Thomas M. Wertz. Defendant was represented by Barry Moranville. The record consists of the testimony of Judy McKillip, claimant; Audrey Buchmeyer, coworker and union representative; Keith McKillip, claimant's husband; Alice Kasper, plant nurse; Rick Innes, human resources manager; Jerry Ford, area manager; joint exhibits A through G; claimant's exhibits H through L; and, defendant's exhibits 1 through 6. Defendant ordered a copy of the transcript and supplied a copy for the industrial commissioner's file. Both attorneys submitted excellent post-hearing briefs. STIPULATIONS The parties stipulated to the following matters: That an employer-employee relationship existed between claimant and employer at the time of the injury; That claimant sustained an injury on January 16, 1987 which arose out of and in the course of employment with employer; That the injury was the cause of temporary disability; that claimant was paid temporary disability benefits; and, McKILLIP v. SHELLER-GLOBE CORPORATION Page 2 that temporary disability benefits are no longer a disputed matter in this case at this time; That the type of permanent disability, if the injury is found to be a cause of permanent disability, is industrial disability to the body as a whole; That the commencement date for permanent disability benefits, if such benefits are awarded, is February 22, 1988; That the rate of compensation, in the event of an award, is $264.58 per week (transcript, page 155); That the providers of medical.services and supplies would testify that the amounts charged are fair and reasonable and were for reasonable and necessary medical treatment; That defendant makes no claim for employee non-occupational group health plan benefits paid to claimant prior to hearing; That defendant paid claimant 33 and 3/7 weeks of temporary disability benefits intermittently from January 17, 1987 through February 21, 1988 at the rate of $250.88 per week prior to hearing, but that defendant did not pay claimant any permanent disability benefits prior to hearing; and, That there are no bifurcated claims. ISSUES The parties presented the following issues for determination at the time of the hearing: Whether the injury was the cause of permanent disability; and, Whether claimant is entitled to permanent disability benefits, and, if so, the extent of benefits to which she is entitled; Whether claimant is entitled to certain medical benefits, more specifically a hospital emergency room and EKG charge for $79.75 and a charge of $37.50 for two x-rays of her foot and ankle; and, Whether claimant is entitled to penalty benefits under Iowa Code section 86.13(4). McKILLIP v. SHELLER-GLOBE CORPORATION Page 3 FINDINGS OF FACT CAUSAL CONNECTION -- PERMANENT DISABILITY It is determined that the injury was the cause of permanent disability. Claimant sustained a traumatic injury. Claimant testified that: [A] hydraulic hose busted, spraying oil all over our line. . . . . . . . It was shooting up over the machine and down on our line and on the cure line or the finish line. And I went over, I walked off the board, the platform that I was working on, to shut off the emergency button that was over approximately six feet from where I was standing, and as I stepped off of the platform onto the cement floor, both of my feet went out from underneath me and I just slammed down on the floor on the back of my head and my shoulders, my back. (Transcript, page 52, line 16 through page 53, line 4) Claimant testified that she did not lose consciousness, but was shaking uncontrollably (transcript, page 53). On the following day, claimant saw Susan Goodner, M.D., and later Charles Skaugstad, M.D., but was eventually directed by employer to see William R. Pontarelli, M.D., an orthopaedic surgeon. On February 18, 1987, Dr. Pontarelli rioted that claimant fell on January 16, 1987, striking the back of her head and neck causing severe head, neck and arm pain and numbness in the right hand and also low back pain. His physical examination disclosed a decrease in range of motion of the neck and back, loss of C-6 reflex and C-6 radiculopathy. Dr. Pontarelli diagnosed: "Probable muscle spasms secondary to flexion injury of the neck. Muscle spasm also in the lumbar spine. No apparent disc or vertebral injury. Possible entrapment of C-6 nerve on the right with flexion injury." (Joint exhibit A, page 8) X-rays showed spurring at the anterior and posterior aspect of C5-C6 and some old narrowing of the disc space at L5-Sl. She was treated conservatively with medications, a soft neck collar and a lumbar corset and was returned to work in August of 1987. On August 14, 1987, Dr. Pontarelli stated: "I think she had a severe acute cervical strain, which is McKILLIP v. SHELLER-GLOBE CORPORATION Page 4 resolving.. Her back is probably a superimposed strain on her chronic lower back disc problem." (Joint exhibit A, page 4) Dr. Pontarelli also authorized claimant to resume bowling at that time. She was released to return to work on August 14, 1987 (joint exhibit A, page 4; joint exhibit B). A few days earlier, claimant was examined by Rouben Mirbegian, M.D., on or about July 3, 1987. Cervical spine films shows minimal degenerative change in the cervical spine with a single early marginal osteophyte along the inferior anterior aspect of the C-5 vertebral body. Intervertebral disc space height was well maintained. There was normal cervical lordosis. The neural foramina were normal in appearance. The impression was minimal degenerative changes of the cervical spine. Dr. Mirbegian also ordered flexion/extension views of the cervical spine which demonstrated that the cervical vertebral bodies remained in normal alignment during flexion and extension (defendant's exhibit 1). Dr. Mirbegian was surprised that the patient had been off work for five months and that the only treatment had been traction and continuous excuses from work. He was also surprised that the only diagnostic test was plain x-rays and that a CT scan, myelogram or MRI had not been performed. He stated: "This raises the questions if indeed she has legitimate complaints or maybe her main complaints have a psychological background." (Defendant's exhibit 2, page 2) He found that her subjective complaints were not consistent with the fall and neck injury. Objective findings disclosed no further pathologies. Dr. Mirbegian stated: "I believe that this patient will not have any permanent impairment." (Defendant's exhibit 2, page 2) He said claimant could return to work, but it would be difficult because she had a negative attitude about her work areas and even resuming her work. Dr. Mirbegian concluded: "I think the diagnosis is advanced deep fibrocytis of cervical spine bases [sic] on original simple sprain of the cervical spine and I do not believe she needs any further physical therapy." (Defendant's exhibit 2, page 2) Stedman's Medical Dictionary, 24th Edition, page 529 defines "fibrositis" as: "1. Inflammation of the fibrous tissue.. 2. Muscular rheumatism; term used to denote aching,.soreness, or stiffness in the absence of objective abnormalities." Cervical fibrositis was defined as post-traumatic neck syndrome. Dr. Mirbegian did not believe that claimant could have any permanent impairment from her fall without compromising her neurovascular structure, but her x-rays demonstrated only degenerative changes. McKILLIP v. SHELLER-GLOBE CORPORATION Page 5 Claimant testified that Dr. Mirbegian's examination was very brief. She described it as follows: A. I walked in, he lifted both my arms, he read a piece of paper that -- I don't know where he got it. I don't even know what it was. He lifted my arms, he come over and he tested my reflex on both arms, both legs, and left. (Transcript, page 58, lines 20 through 24) Claimant said that she then returned to work at her regular job of pour-head operator for approximately four months, but her condition became steadily worse in her head, neck, shoulders, back, arms and legs. She applied for a supervisor's job which would have been less physically demanding, but she did not get it. Claimant was off work again in December of 1987 and returned to work again on January 10, 1988 with certain restrictions that had been imposed by Dr. Pontarelli. Dr. Pontarelli reported to the insurance carrier on January 8, 1988 that claimant still suffered from chronic severe neck, arm, back and leg pain. He said: Her present state of pain really relates to her 1/16/87 accident. Even though Judy has had previous trouble with her low back before, she had been functioning well and working with very little discomfort. The fall on 1/16/87 caused a severe whiplash mechanism to her cervical spine causing her to have chronic severe neck pain and headaches. (Joint exhibit A, page 11) Dr. Pontarelli continued: Her activation of low back pain has been a consistent lateral trochanteric area of pain, radiating down the lateral thigh as well as pain in the low back. Once again her fall aggravated the pre-existing condition in that.regard. I would say her current diagnosis would be a Chronic Cervical Strain with Chronic Lumbar Strain. (Joint exhibit A, page 11) McKILLIP v. SHELLER-GLOBE CORPORATION Page 6 Dr. Pontarelli then returned claimant to work with these restrictions: I don't think she is capable of doing her regular duty without having severe pain. I think ideally for Judy to return to work, which she desires to do, she should be allowed a job which would provide an opportunity for changing positions which means no standing or sitting in one spot for prolonged periods of time, that is hours at a time; ideally a job where she is walking for periods of time, sitting for periods of time, standing for periods of time, would be ideal. No working in a prolonged bent over posture. No repetitive lifting, especially if the objects weigh more than five pounds. Her work week should be restricted to 40 hours per week and no more than 8 hours in a day. I think she could be restored to her previous work status. (Joint exhibit A, page 11) Dr. Mirbegian commented again on February 1, 1988. He said claimant's complaints did not go along with any type of pathological organic disease. She had full range of motion in her neck, upper extremities and lower extremities. She had no weakness in the upper or lower extremities. An intervening CT scan of the lumbar spine showed only scarring from a previous operation in 1984 and ruled out any spinal stenosis. Dr. Mirbegian concluded: "The findings were not suggestive of any acute pathology and I don't think she really has [sic] to have any specific limitations for her regular work." (Defendant's exhibit 2, page 1) He did indicate, however, that Dr. Pontarelli's restrictions might be reasonable for a three-month preconditioning. He concluded his report as follows: I think this is my personal opinion that even if she is returned to the light work she will continue to complain the way she is complaining now for the rest of the life and I do not believe that she really can be helped by any further orthopedic evaluation. (Defendant's exhibit 2, page 1) Claimant testified that she returned to work and was assigned a light-duty job called "rework" which was very easy for one and one-half days. However, for the second half of the second day back to work, she was reassigned to the pour-head job by her foreman. She protested that she McKILLIP v. SHELLER-GLOBE CORPORATION Page 7 was not supposed to be doing that job and the foreman allegedly replied: "Judy, I have my orders." (Transcript, page 66) Claimant then contacted Dr. Pontarelli's office. He was on vacation. She understood the nurse would call the employer and tell them that claimant was not able to work. Dr. Pontarelli's records do not show that his nurse, Vicki, told claimant to go home and go to bed when she was unable to work in January of 1988 when Dr. Pontarelli was on vacation (transcript, page 67; joint exhibit A). She testified she also told her attorney about the situation and he allegedly said that he "would take care of it." Claimant testified that after that she thought she was on medical leave (transcript, pages 67, 68, 72 and 73). Claimant then ceased to call in to employer because she thought that the matter had been taken care of by Vicki, Dr. Pontarelli's nurse, and by her attorney and that she would not have to return to work until the doctor approved it (transcript, page 74). Shortly after that, she received a notice stating that she had voluntarily quit her job because she violated one of the employment contract rules of failing to call in for three consecutive days (transcript, page 75). Dr. Pontarelli stated in a letter dated June 23, 1988: "To my knowledge this is all related to her injury on January 6, 1987 [sic]." (Joint exhibit A, page 13) The doctor added that he referred claimant to J. B. Worrell, M.D., to confirm his diagnosis of chronic severe strain and to rule out cervical disc rupture which might necessitate surgery (joint exhibit A, pages 13 and 14). Dr. Pontarelli wrote a letter to the Disability Determination Services on August 26, 1988 in which he stated: An injury in January, 1987 lead [sic] to chronic neck pain and chronic low back pain for which she was off work for a period of many months. AN attempt to return to work in August, 1987 failed. She was suffering too much pain to be able to cope with her work and has been off work since. Because of her education, work experience, as well as her chronic pain which requires daily medication and frequent rest where,she lies down, I doubt Judy can be able to maintain employment. (Joint exhibit A, page 15) In response to a questionnaire by defendant's attorney, Dr. Pontarelli stated on July 22, 1988 that claimant does have a permanent impairment to both the lumbar spine and McKILLIP v. SHELLER-GLOBE CORPORATION Page 8 cervical spine, both of which are connected to the injury of January 16, 1987 and that she sustained a five percent impairment to the lumbar spine and a five percent impairment to the cervical spine. In his deposition, Dr. Pontarelli said he was a board-certified orthopaedic surgeon who first saw claimant and performed low back surgery for her in 1984. He treated claimant for the injury of January 16, 1987 beginning on February 18, 1987 until July of 1988, seeing her approximately 17 times during this interval. He had no objection to her bowling in the fall of 1987 if she were able to do it and did not overdo it (joint exhibit F, pages 9-12). He stated his final diagnosis the last time he saw her: "Would be just what I said, moderate to severe degenerative disc disease in the cervical spine and lumbar spine." (joint exhibit F, page 13) He confirmed that he gave her a permanent partial impairment rating of five percent of the whole body as the result of her neck condition and five percent of the body as a whole as a result of her low back condition using the Manual for Orthopaedic Surgeons, section 1A and 3A and based solely on her subjective complaints and symptoms (joint exhibit F, pages 14-16). Dr. Pontarelli confirmed that "those impairment ratings that have been mentioned, 5 percent whole body for the neck, 5 percent whole body for the lumbar spine, pertain to the impairment as a result of her work injury in 1987." (Joint exhibit F, page 19) He reiterated it was his decision to give her leeway to try to bowl in the fall of 1987 (joint exhibit F, pages 20 and 21). He explained that the five percent permanent impairment rating to the low back was in addition to his previous rating that he gave claimant after the back surgery in 1984 (joint exhibit F, pages 4 and 24). He clarified that claimant's degenerative disc disease was not related to work, but, "The disks themselves, if they're, you know, vulnerable to an injury of this type creating a disability, chronic pain. I think that changes, obviously, had occurred before the fall. But the fall certainly aggravated the condition to the point where it became very symptomatic." (Joint exhibit F, pages 25 and 26) He found the worsening of her condition after she returned to work in August of 1987 as consistent with her injury (joint exhibit F, page 26). He said the restrictions he suggested on January 8, 1988 were to describe a setting for her to return to work in which she was able to change position, which meant no standing or sitting in one spot for prolonged periods of time (joint exhibit F, pages 26 and 27). McKILLIP v. SHELLER-GLOBE CORPORATION Page 9 With.respect to subsequent foot and ankle x-rays, Dr. Pontarelli testified that falling would be consistent with her injury and that she did fall sometimes. He said, "Yeah, I can see how she could fall and injure herself, yes." He could see a relationship for treatment to whatever subsequent injury took place (joint exhibit F, pages 29 and 30). He said it was possible she turned her ankle and he insisted on x-rays. He believed this was the situation the last time he saw her, but he did not have a note of it at the time of his deposition (joint exhibit F, pages 31 and 32). James B. Worrell, M.D., testified by deposition on September 29, 1988 that he is a board-certified neurologist who first treated claimant in 1984 at the time of a chymopapain injection and subsequent lumbar disc surgery. He next saw claimant in December of 1987 when he performed an EMG at the request of Dr. Pontarelli which resulted in a normal study of the muscles of both arms. Dr. Pontarelli then referred claimant to him for treatment on May 27, 1988 (joint exhibit G, pages 2-5). Claimant related that while camping she reached to get something, felt something snap in her neck and developed acute pain. Dr. Worrell diagnosed myofascial syndrome which is an acute cervical strain or muscle spasm, a ligamentous problem in the neck. He determined she did not have an acute cervical disc or that myelography or anything that aggressive.was warranted. He did not examine her low back at that tine (joint exhibit G, pages 5-7). Dr. Worrell saw claimant one more time on September 1, 1988. The doctor opined that, if she could bowl on December 11, 1987, then she could have lifted between 5 and 20 pounds, twisted, stooped and bent at work. He did not perceive any major change in her condition on September 1, 1988. Basically, she was no better and no worse (joint exhibit G, page 10). Dr. Worrell found no objective findings on his neurological examination for the symptoms in her neck or low back, except for the ankle jerk which was absent due to the previous 1984 surgery. Dr. Worrell rated claimant with a five percent body as a whole rating for,her back and a four percent body as a whole rating for her:neck. The neck rating was based on subjective symptoms. The back rating was based upon her previous surgery in 1984 for a person who ruptured a disc and had an operation. He said the camping episode would not have caused any permanent partial impairment in her neck. It was just a fortuitous happening over the course of her problems. The doctor then reduced McKILLIP v. SHELLER-GLOBE CORPORATION Page 10 his impairment rating on the neck to two percent of the body as a whole because of her demonstrated ability to bowl (joint exhibit G, pages 10-12). With respect to causal connection, Dr. Worrell stated: "I did not write down the exact events that happened. But it is my understanding that she did fall and sort of snap her neck which is consistent then with this type of thing you're getting at with this neck injury." (Joint exhibit G, page 23) Her complaints were consistent with his diagnosis. The doctor reiterated that his impairment rating on the back related to the previous injury in 1984 and that his current two percent permanent partial impairment to the cervical area, given at the time of his deposition, relates to the work injury of 1987 (joint exhibit G, pages 24 and 25). In conclusion, Dr. Worrell felt that, if claimant were to return to work, she would need a build-up period where the amount of weight that she lifts is limited and he would prescribe periods of rest in between repetitive types of work (joint exhibit G, pages 25 and 26). In summary, Dr. Mirbegian did not believe that the injury would be the cause of permanent impairment or disability. Dr. Worrell, who administered an EMG on one occasion and treated her on two other occasions, found that her complaints were consistent with the fall injury which she described that occurred at work. Dr. Pontarelli, the treating physician, who saw claimant approximately 18 times over a period of one and one-half years, clearly and unequivocally stated on a number of occasions to both claimant's counsel and defendant's counsel that this injury was the cause of permanent impairment to both her cervical spine and her lumbar spine. Dr. Pontarelli's opinion, which is supported by Dr. Worrell's opinion is preferred over the opinion of Dr. Mirbegian. Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985). Furthermore, Dr. Pontarelli is a board-certified orthopaedic surgeon, whereas the credentials of Dr. Mirbegian, other than being an orthopaedic surgeon, are not a matter of record. A doctor's expertise and board-certification may accord his testimony greater weight. Dickey v. ITT Continental Baking Co., 34th Biennial Report of the Industrial Commissioner 89 (1979); Reiland v. Palco, Inc., 32nd Biennial Report of the Industrial Commissioner 56 (1975). It is determined that the injury of January 16, 1987 was the cause of permanent impairment and disability to claimant's cervical spine and lumbar spine. McKILLIP v. SHELLER-GLOBE CORPORATION Page 11 ENTITLEMENT -- PERMANENT DISABILITY The parties stipulated that the type of permanent disability is industrial disability to the body as a whole. Dr. Mirbegian assessed zero impairment, Dr. Worrell determined there was a two percent impairment to the cervical spine, and Dr. Pontarelli awarded claimant a five percent permanent impairment of the cervical spine and a five percent permanent impairment of the lumbar spine. Five percent and five percent combine to ten percent on the combined values chart, page 246, Guides to the Evaluation of Permanent Impairment, Third Edition, published by the American Medical Association (1988). Claimant, born August 28, 1942, was 44 years old at the time of injury and 46 years old at the time of hearing. She completed high school, she completed a two-month course and received a certificate to be a nurse's aide, and she completed one quarter toward obtaining the designation of registered nurse. Past employments include nurse's aide, nursing assistant, waitress, laundry worker, and production worker for business forms. Claimant worked as a pour-head operator for employer on three occasions prior to her current employment. She worked a few months in 1966, then she worked for approximately a year and a half from 1974 to 1976, and a year and a half again beginning in 1978. The current period of employment began in 1981 and ended in February of 1988. Her various jobs included pour-head operator, salvage operator, finish operator, preparation operator, and injection molding operator (claimant's exhibit I, pages 1-5). Claimant had some supervisory experience for two and one-half years as a group leader (transcript, pages 37 and 38). Claimant was a pour-head operator at the time of the injury on January 16, 1987 (transcript, page 40). The job is performed standing. "When you become experienced enough, you can sneak a sit in now and then." (Transcript, page 41) You turn and sometimes walk a few steps and obtain parts and then put them through one of various production processes. A pour-head operator inserts a skin into a mold which is filled with plastic foam and produces the arm rests for the door of an automobile. The job requires a great deal of physical activity, most of which is performed standing (transcript, pages 41-45). Claimant was earning $9.45 per hour when her employment terminated (transcript, page 47; claimant's exhibit K, page 2). Claimant denied and there is no medical evidence of residual problems, other than the impairment rating after McKILLIP v. SHELLER-GLOBE CORPORATION Page 12 the back surgery in 1984 (transcript, page 52). She testified she planned to be a pour-head operator for employer until she retired (transcript, page 75). She currently takes medications for this injury (transcript, page 75). She described herself as an avid bowler since she was 16 years old, served as secretary for 23-24 years, and has bowled any number of leagues (transcript, pages 75 and 76). She stopped bowling from the time of her injury until September of 1987 and resumed again at that time (transcript, pages 76-77). Her bowling ball weighs ten pounds (transcript, page 78). Bowling differs from pour-head operator because when bowling you may bowl only 18 or 20 minutes for an entire game, but a pour-head operator works seven and one-half hours steadily and strenuously in an eight-hour shift, five days a week (transcript, pages 78 and 79). Dr. Pontarelli told claimant to try to bowl (transcript, page 79). Claimant's bowling record shows that she bowled 5,659 pins in 37 games (joint exhibit E, page 10; defendant's exhibit 4, page 2). According to defendant's counsel she earned several bowling honors (transcript, pages 97 and 98). The only employment which claimant has performed since the injury is self-employment as a baby-sitter caring for five children in her home and earning approximately $190 per week gross income (transcript, pages 83 and 84). She has continued pains in her neck and back associated with increased activity and sitting or standing too long. The injury has.restricted her ability to clean house, swim, drive for long periods of time, start the lawn mower, or wash windows. Claimant did not believe that she was able to perform the duties of a pour-head operator at this time (transcript, pages 85-87). Claimant acknowledged that the heaviest thing a pour-head operator would lift would be a ten-pound lid of a mold (transcript, page 90). She acknowledged that the job did not require her to stand in one spot all of the time or sit in one spot all of the time. She could walk around, but the job required a considerable amount of bending (transcript, pages 94-96). Claimant acknowledged that she engaged in bowling activities from September of 1988 through April of 1989. She was secretary of the bowling league, estimated that she bowled 60 or 70 games, and had an average of 141. Claimant testified that she works from approximately 7:00 a.m. to 5:00 p.m. babysitting and that she occasionally picks up a 6-month old child and a 10-month old child and sometimes picks up a 14-month old child (transcript, pages 98 and 99). Claimant also reported her termination to her attorney and a union representative, but did not know if any further action had been taken about it (transcript, pages 102 and 103). McKILLIP v. SHELLER-GLOBE CORPORATION Page 13 Claimant had not sought any vocational rehabilitation training and employer had not furnished any vocational rehabilitation training (transcript, page 105). Audrey Buchmeyer, a co-employee and union steward, testified that she was familiar with Dr. Pontarelli's restriction letter and that claimant's foreman ordered her to perform the pour-head job pursuant to orders from his superior and she believed that the pour-head job was more of a strain than was reasonable according to the restriction letter (transcript, pages 111 and 112). She talked to the foreman, but the foreman told Buchmeyer he already had his orders from his superior and there was nothing he could do. Claimant did perform the job the second half of the shift on the second day back to work, but she looked tired, in pain, and was bent to one side (transcript, pages 112 and 113). The witness said the pour-head operator job requires you to be on your feet the whole time (transcript, page 114). She added that there was no comparison of the physical activity in the pour-head operator job and bowling (transcript, page 115). Buchmeyer testified, "Reading the letter, I never figured that she would be able to run the pour-head." (Transcript, page 117) The witness said that no grievance was filed (transcript, page 117). Keith McKillip, claimant's husband of 22 years, testified that Dr. Mirbegian's examination lasted approximately three minutes. "He checked her reflexes and lifted her arm and I believe that's about it." (Transcript, page 121) He said he has back problems, but is able to bowl (transcript, page 122). He said that claimant could no longer paint rooms in their home, is limited to riding 30 minutes in a car, walks less and fatigues easily. She lies down more often and her sleep at night is awakened due to pain (transcript, page 123). Alice Kasper, R.N., the industrial nurse for employer and the person who is responsible for workers' compensation, testified that Dr. Pontarelli's nurse, Vicki, told the witness that she, Vicki, had told claimant that Dr. Pontarelli was gone and therefore she, Vicki, could not give claimant permission to be off work (transcript, pages 133 and 134). Rick Innes testified that he is human resources manager for employer, that he did not receive a call-in from claimant, and that the company's regular call-in record did not reflect a call from claimant for more than three days. Therefore, pursuant to the labor contract, if there are three consecutive days without reporting their absence, the employee is deemed to have voluntarily quit. He added that McKILLIP v. SHELLER-GLOBE CORPORATION Page 14 no grievance was filed by claimant or the union as a result of this employer action. He also testified that he did not talk with claimant's attorney about this matter (transcript, pages 135-140). On rebuttal by claimant, Kasper testified that she did not make a record of her telephone conversation with Dr. Pontarelli's nurse, Vicki (transcript, page 150). Claimant's age of 44-46 years old is considered to make claimant's disability worse than for a younger or older employee because she was at the peak of her earning capacity. McCoy v. Donaldson Co., file numbers 782670 and 805200 (App. Decn., April 28, 1989); Walton v. B & H Tank Corp., II Iowa Industrial Commissioner Report 426 (1981); Becke v. Turner-Busch, Inc., 34th Biennial Report of the Industrial Commissioner 34 (App. Decn. 1979). Claimant has the benefit of a high school education, is certified as a nurse's aide, and has completed one quarter of a year toward an RN designation. Claimant has performed a variety of jobs for this employer and prior employers. Thus, she has demonstrated her adaptability for retraining for other employment which is a consideration in the determination of industrial disability. Conrad v. Marquette School, Inc., IV Iowa Industrial Commissioner Report 74, 78 (1984). Claimant's potential is good, but retraining will be expensive and claimant is further limited by her restrictions imposed by Dr. Pontarelli. Claimant has not sought vocational rehabilitation, but this is understandable since she has found self-employment within her own actual and perceived limitations as a baby- sitter grossing approximately $190 per week. At the same time, it is noted that defendant did not offer vocational rehabilitation, possibly for the same reason that claimant did not seek it. Since claimant has not actively sought employment in the competitive labor market, her true potential has not been tested or demonstrated. Schofield v. Iowa Beef Processors, Inc., II Iowa Industrial Commissioner Report 334, 336 (1981). Based on what occurred, claimant appears to be foreclosed from performing the pour-head operator job which is the job where she has the most experience and training since approximately 1972. Rohrberg v. Griffin Pipe Products Co., I Iowa Industrial Commissioner Report 282 (1984); Michael v. Harrison County, 34th Biennial Report of the Industrial Commissioner 218, 220 (App. Decn., January 30, McKILLIP v. SHELLER-GLOBE CORPORATION Page 15 1979). At the same, claimant did demonstrate that she could perform the job and actually returned to work in August of 1987 and worked approximately four months until she was taken off work again because of a progressive deterioration of her condition. This progressive deterioration and worsening of her condition is inconsistent with the normal physiological healing process and as suggested by Dr. Mirbegian may indicate a psychological problem. There is no evidence presented by any of the doctors to sustain a psychological injury in this case, other than the suggestion of Dr. Mirbegian. Dr. Pontarelli imposed restrictions temporarily and felt that claimant would regain the ability to perform the pour-head job. Both Dr. Mirbegian and Dr. Worrell concurred that claimant was entitled to a period of preconditioning. However, employer did not honor these recommendations of all three doctors. The body as a whole impairment ratings of the doctors are as follows: Dr. Mirbegian -- zero percent; Dr. Worrell -- two percent; Dr. Pontarelli -- ten percent. Claimant did not establish that she was fired from this job, but she did prove that employer attempted to make her employment so difficult that it would be impossible to perform it in light of Dr. Pontarelli's suggested restrictions. Claimant and Buchmeyer testified that claimant was given only one and one-half days of light duty after she returned to work in January of 1988 on the rework job. Even Dr. Mirbegian said she was entitled to three months of preconditioning in January of 1988. Claimant testified that she also could have been given the job that services the line or she could have been continued on the rework job. She also testified that she was interviewed for a supervisory position and initially it was indicated that she would get the job, but eventually she was rejected for it. Both claimant and Buchmeyer, the union steward, testified that the foreman told them that he was acting under orders from his superior when they protested that claimant was being told to perform the pour-head job in violation of Dr. Pontarelli's restrictions. Defendant did not controvert this testimony. Therefore, even though it cannot be stated that employer actually fired claimant, it is clear that employer either (1) did not have any duty that claimant could perform within Dr. Pontarelli's restrictions or (2) they chose not to provide it for her if they did. Claimant testified they had work within her restrictions, but refused to give it to her. This testimony was not McKILLIP v. SHELLER-GLOBE CORPORATION Page 16 controverted by defendant. It is irreconcilably inconsistent for employer to argue that there is no work for claimant within the doctor's restrictions and at the same time claim that her disability is not serious. II Larson Workmen's Compensation Law, section 57.61(b) at pages 10-173 and 10-176. If employer had absolutely no work that claimant could perform, then it is determined that claimant's industrial disability is significant. Wherefore, based upon the foregoing considerations and all of the factors used to determine industrial disability, it is determined that claimant has sustained a 20 percent industrial disability to the body as a whole and is entitled to 100 weeks of permanent partial disability benefits. MEDICAL BENEFITS Claimant seeks to recover a hospital bill in the amount of $79.75 for emergency room care and an electrocardiogram at Mercy Hospital in Iowa City on June 3, 1989 (claimant's exhibit L, page 2). Claimant testified that she had admitted her mother to the hospital for pneumonia and that she herself was having chest pains which were very painful. Claimant testified that Dr. Goodner, who knew her and treated her for this injury, told her that this medical treatment was for the injury to her neck (transcript, page 80). Claimant's testimony of the hearsay statement of Dr. Goodner is not sufficient to sustain the burden of proof on the ultimate issue of the causal connection of this treatment to her injury. 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). Claimant's testimony is not supported by any professional medical testimony or evidence. Therefore, it is determined that claimant is not entitled to recover for this medical bill in the amount of $79.75. Claimant testified that she incurred a bill in the amount of $37.50 from Towncrest X-ray for ankle and foot x-rays performed on July 22, 1988. Claimant testified that, after the injury of January 16, 1987, her leg would go out periodically when she was walking. In July of 1987, this occurred and she fell down and thought she sprained or broke her ankle. Claimant testified that Dr. Pontarelli ordered these x-rays (transcript, page 80). The bill does show that the referring physician was W. R. Pontarelli, M.D. (claimant's exhibit L, page 4). Dr. Pontarelli testified that he did not recall the specific occasion, but did say, "Oh, I can't remember exactly when that was but, yeah, it McKILLIP v. SHELLER-GLOBE CORPORATION Page 17 happened often enough that I remember it, yeah." (Joint exhibit F. page 29) On cross-examination, he admitted that he did not make a note of the situation, but recalled that this occurred the last time he saw her (joint exhibit F, page 31). This colloquy transpired between defendant's counsel and the doctor: Q. Do you remember her giving a history of this fall? A. Yes, I do. Q. And what was that history? A. She was simply walking and the ankle turned on her. (Joint exhibit F, page 31, line 23 through page 32, line 1) Wherefore, from the foregoing evidence, it is determined that claimant has furnished not only her own testimony, but the testimony of Dr. Pontarelli to support her claim and claimant is entitled to recover $37.50 for these x-rays. PENALTY BENEFITS Claimant requests penalty benefits under Iowa Code section 86.13(4). Penalty benefits are authorized by this section of The Code for a delay in commencement or for termination of benefits without reasonable or probable cause or excuse. H owever, a penalty is not appropriate if there is a legitimate dispute on whether there is a causal connection of the injury to permanent disability, even if there is a subsequent award of benefits. Austin v. Neeley Mfg. Co., file number 848293 (Arb. Decn., December 15, 1988); Peterman v. American Freight System, file number 747931 (Arb. Decn., August 10, 1988); Cooke v. Iowa Meat Processing, file numbers 724392 and 727578 (Arb. Decn., February 8, 1985); Just v. Hygrade Food Products Corp., IV Iowa Industrial Commissioner Reports 190 (App. Decn., January 30, 1984). In this case, Dr. Pontarelli determined on July 22, 1988 that claimant had a five percent permanent impairment to the lumbar spine and a five percent permanent impairment to the cervical spine caused.by this injury. However, on July 3, 1987, Dr. Mirbegian stated that he did not believe there was any permanent impairment nor would there be any permanent impairment from this injury (defendant's exhibit 2, pages 2 and 3). McKILLIP v. SHELLER-GLOBE CORPORATION Page 18 On February 1, 1988, Dr. Mirbegian adhered to this decision (defendant's exhibit 2, page 1). Wherefore, defendant has demonstrated that there was a legitimate dispute as to both causal connection and whether there was any entitlement to permanent disability benefits. CONCLUSIONS OF LAW Wherefore, based upon the evidence presented and the foregoing principles of law, it is determined: That the injury of January 16, 1987 was the cause of permanent disability to claimant's cervical spine and lumbar spine. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962); Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960); Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756 (1956); Lindahl v. L. 0. Boggs Co., 236 Iowa 296, 18 N.W.2d 607 (1945). That claimant sustained a 20 percent industrial disability to the body as a whole. 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); Peterson v. Truck Haven Cafe, Inc., Vol. 1, No. 3, State of Iowa Industrial Commissioner Decisions 654, 658 (App. Decn., February 28, 1985); Christensen v. Hagen, Inc., Vol. 1, No. 3, State of Iowa Industrial Commissioner Decisions 529 (App. Decn., March 26, 1985); Iowa Administrative Procedure Act 17A.14(5). That claimant is entitled to 100 weeks of permanent partial disability benefits. Iowa Code section 85.34(2)(u). That claimant did not prove that the emergency room and EKG expense in the amount of $79.75 on June 3, 1989 was caused by this injury and therefore claimant is not entitled to recover this medical bill. That claimant did sustain the burden of proof by a preponderance of the evidence that the bill from Towncrest X-ray in the amount of $37.50 for foot and ankle x-rays on July 12, 1988 was caused by this injury and claimant is entitled to recover this amount of medical expense. Iowa Code section 85.27. That claimant did not sustain the burden of proof by a preponderance of the evidence that she is entitled to penalty benefits under Iowa Code section 86.13(4). See cases previously cited. McKILLIP v. SHELLER-GLOBE CORPORATION Page 19 ORDER THEREFORE, IT IS ORDERED: That defendant pay to claimant one hundred (100) weeks of permanent partial disability benefits at the rate of two hundred sixty-four and 58/100 dollars ($264.58) per week in the total amount of twenty-six thousand four hundred fifty-eight and 00/100 dollars ($26,458.00) commencing on February 22, 1988 as stipulated to by the parties. That these workers' compensation weekly benefits are to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That defendant pay to claimant or the provider of medical services thirty-seven and 50/100 dollars ($37.50) for foot and ankle x-rays performed by Towncrest X-ray on July 12, 1988. That the costs of this action, including the cost of the transcript, are charged to defendant pursuant to Division of Industrial Services Rule 343-4.33. Claimant is further entitled to costs attached to the prehearing.report in the amount of fifty-five and 59/100 dollars ($55.59) as follows: Certified mailings $ 3.34 Copy of deposition of Dr. Pontarelli 36.75 Witness fee -- Audrey Buchmeyer 5.00 Mileage fee -- Audrey Buchmeyer 10.50 Total $55.59 That defendant file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 19th day of June, 1990. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER McKILLIP v. SHELLER-GLOBE CORPORATION Page 20 Copies To: Mr. Thomas M. Wertz Attorney at Law 4089 21st Avenue SW Suite 114 Cedar Rapids, Iowa 52404 Mr. Harry W. Dahl Attorney at Law 974 73rd Street Suite 16 Des Moines, Iowa 50312 5-1401, 5-1402.40, 5-1402.60, 5-1803, 5-1807, 5-2206, 5-2501, 5-2700, 5-2907, 5-4000 Filed June 19, 1990 WALTER R. McMANUS, JR. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JUDY McKILLIP, Claimant, File No. 843449 VS. A R B I T R A T I 0 N SHELLER-GLOBE CORPORATION, D E C I S I 0 N Employer,. Self-Insured, Defendant. 5-1401, 5-1402.40, 5-1402.60, 5-2206 Claimant proved the injury caused permanent disability opinion of treating physician was preferred over one-time evaluator. 5-1803, 5-1807 Impairment ratings ranged from zero to 10%. It was determined that employer did not fire claimant, but forced her to leave the job by requiring her to work contrary to the restrictions imposed by the doctor. Defendant's proposition that claimant was not seriously hurt was inconsistent with their inability to employ her within her restrictions when there was evidence that they probably could have done so if they wanted to. Claimant awarded 20% industrial disability. 5-1402.60, 5-2501, 5-2700 Claimant did not prove she was entitled to a later emergency room treatment and EKG. She did prove that she was entitled to a subsequent bill for her foot and ankle x-rays. 5-4000 Claimant did not prove entitlement to penalty benefits because there was a bona fide controversy as to whether there was causal connection and entitlement to permanent disability benefits. 5-2907 Claimant awarded costs that were requested. BEFORE THE IOWA INDUSTRIAL COMMISSIONER FREDA TOLZIN, Claimant, VS. File No. 843945 LUNDELL MANUFACTURING CO., A R B I T R A T I 0 N Employer, D E C I S I 0 N and IOWA SMALL BUSINESS EMPLOYERS, Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by claimant Freda Tolzin against defendant employer Lundell Manufacturing Company and defendant insurance carrier Iowa Small Business Employers to recover benefits under the Iowa Workers' Compensation Act as the result of an injury of January 13, 1987. This matter came on for hearing before the undersigned in Storm Lake, Iowa, on January 12, 1989. The matter was considered fully submitted at the close of hearing. The record in the proceeding consists of joint exhibits 1 through 16, inclusive, along with the testimony of claimant, Richard Tolzin and Stephen Paulsen. ISSUES Pursuant to the pre-hearing report submitted by the parties and approved by the undersigned deputy, the parties have stipulated as follows: That an employer-employee relationship existed between claimant and employer at the time of the injury; that claimant sustained an injury on January 13, 1987 which arose out of and in the course of that employment; that the alleged injury caused temporary disability from January 19, 1987 through February 28, 1988; that if the injury . be found to be a cause of permanent disability, the injury is an industrial disability to the body as a whole and the commencement date for permanent partial disability, if awarded, is February 29, 1988; that the appropriate rate of weekly compensation benefits is $135.62; that various affirmative defenses are waived; that all requested medical benefits have been or will be paid by defendants; that defendants do not seek credit for payments under any nonoccupational group plan; that defendants paid claimant 74 weeks (54 weeks as temporary total disability and 20 weeks as permanent partial TOLZIN V. LUNDELL MANUFACTURING CO. Page 2 disability) of compensation at the stipulated rate; and, that the parties waive taxation of costs. The only issue presented for resolution is claimant's entitlement to and extent of industrial disability. REVIEW OF THE EVIDENCE Claimant was married and without dependents at the time of hearing. She was born on June 28, 1924 and is 64 years of age. Claimant graduated from high school with good grades and has since had additional education through taking a keypunch operator course in 1978. However, she is unable to function as a keypunch operator because she lost the tips of two fingers in an unrelated industrial accident in 1979. She has had no further education or specialized training. Claimant has held a number of employment positions throughout her working career. She originally worked for a short time as a switchboard operator with West Iowa Telephone Company, then was employed as an assistant postmaster from 1943 through 1955. Her responsibilities in that job included sorting mail, preparing reports and like duties. Claimant testified that she then managed a county farm for indigents with her first husband from 1955 until 1962. Her duties included cleaning, cooking and the like. Thereafter, claimant accepted a position for about one year in a nursing home providing direct patient care. This included heavy lifting. Thereafter, she was employed for two to three years at Sioux Valley Hospital where she had a minimum wage job in the office. Her duties included typing, admissions and-the like. She subsequently accepted a position with the Cherokee County Treasurer's Office as a clerk. Claimant began her employment with defendant Lundell Manufacturing Company on March 9, 1973. Lundell Manufacturing Company is a manufacturer of farm equipment. Claimant testified that up until her employment with defendant Lundell Manufacturing Company, she had only one serious illness and had suffered no major accidents. She characterized her health as excellent. From 1973 to 1980, claimant was employed in fabrication with Lundell Manufacturing. This included bending and cutting steel. She lost two fingers in an accident on April 5, 1979, and returned to work in September of that year. Because of this injury, she was returned to work in the parts room. Her duties included answering telephones and taking and assembling orders for customers of Lundell Manufacturing Company. One of her duties included periodically filling the furnace with pellets using a scoop shovel. This was a fairly heavy job. In fact, claimant testified that she was required to lift up to 70 or even more pounds on occasion while working in the TOLZIN V. LUNDELL MANUFACTURING CO. Page 3 parts room. Claimant testified that she suffered the industrial injury that is the subject matter of this dispute while filling the furnace. When lifting the shovel over her head, she felt a "tearing" sensation in her right side. She had no history of prior problems afflicting that part of her body. She continued to work in pain for the rest of the day and treated herself that night by soaking in a tub. She appeared for work the following morning, and upon making complaint of her pain, was referred by the company to a general practitioner, Keith Garner, M.D. Dr. Garner advised claimant not to immediately return to work, provided some medications and prescribed rest. After two more visits during the next week, claimant was referred by defendant Iowa Small Business Employers to Patricia Harrison, M.D. Dr. Harrison treated claimant with pain medication and prescribed physical therapy intermittently until May 27, 1987. Dr. Harrison's medical records reflect that claimant was last seen on June 22, 1987. Claimant was next referred to J. Michael Donohue, M.D., an orthopaedic specialist. After providing care that will be detailed separately, Dr. Donohue returned claimant to "light duty" in January, 1988. However, the employer had none available. Claimant was released to return to work as having reached maximum recuperation on February 18, 1988. This was when claimant last saw Dr. Donohue or any physician for this injury. Dr. Donohue placed permanent restrictions on claimant in two respects: A 30-pound weight limit for lifting and avoidance of the use of her right upper extremity above chest level. However, he verbally advised claimant of two additional restrictions: Proscribing the wearing of heels and prolonged standing. These restrictions do not appear to have been reduced to written form. Claimant further testified that she took her return to work with restrictions to Stephen Paulsen, secretary/treasurer of Lundell Manufacturing Company. She testified that Mr. Paulsen advised her that no work was available that met her physical restrictions, agreed to call her if such work came up, but has not done so in the 11 months since that conversation. Claimant has not returned to work with Lundell Manufacturing Company. Since this employment ceased, claimant has received 26 weeks of job insurance benefits, applying for work with at least two employers during each of those weeks. However, she proved unable to secure employment, believing that her main problem consisted of her restrictions, including the verbal restriction against prolonged standing. Claimant further testified that, but for her injury, it had been her intent to continue working "as long as I could." She began receiving Social Security Benefits at age 62, but TOLZIN V. LUNDELL MANUFACTURING CO. Page 4 continued to work. on occasion, this entailed reduced Social Security benefits due to her earnings. Claimant married Richard Tolzin, a farmer, on November 23, 1984 and assists on the farm. At one time, she did such physical duties as driving a tractor and feeding cattle, but is now unable to do so. Her assistance now is primarily with bookwork. Claimant testified that her pain is now intermittent and "dull" although it is exacerbated if she spends a lot of time on her feet. While claimant feels physically capable of accepting a "paperwork" position, she is of the view that her restrictions disable her from any of the positions she has held during her working life. Even the courthouse and hospital clerical jobs require far too much standing, although she agreed on cross-examination that similar hospital jobs now are typically performed while sitting. It is undisputed that defendants have made no effort to assist claimant in finding new employment or in undergoing vocational rehabilitation. Claimant testified that she intends to continue seeking full-time employment and that her receipt of Social Security benefits is not and has not been a factor in her work history. She earned $6.50 per hour at the time of her separation from Lundell Manufacturing Company. Although this was a full-time position, there have been periods of layoff. For example, much of 1976 was characterized by slow business and claimant took many Fridays off work by mutual consent of her and the employer. Richard Tolzin testified as to his work as a self-employed farmer and part-time employment measuring land and bins. He confirmed claimant's testimony that she has certain nonvocational limitations at home, such as vacuuming, window washing, or picking up her grandchildren to play. Stephen Paulsen testified that he is secretary/treasurer of Lundell Manufacturing Company, and is responsible for office management, including personnel duties. Lundell Manufacturing employs a varying number of employees, right now approximately 25 or so. He agreed that claimant accurately described her position and characterized her as a competent, intelligent worker with good communication skills. He agreed that claimant is not a lazy individual. Mr. Paulsen testified that he knew of claimant's 30-pound lifting restriction, but did not know of restrictions against prolonged standing. In any event, she was unable to return to her former parts department position with the lifting restriction. He testified further that no lighter duty work was available to claimant within the parameters of her work restrictions. Lundell Manufacturing has hired no office workers since at least January 1, 1988. He agreed that defendants had made no effort to retrain claimant or to assist her in obtaining other work. TOLZIN V. LUNDELL MANUFACTURING CO. Page 5 The records of Dr. Garner reflect that he diagnosed a pulled or torn muscle with unknown prognosis. He was unable at the early stage of his care to estimate permanent disability. Dr. Harrison diagnosed strain of the lower abdominal muscles and last noted that claimant continued to be disabled but improving. She did not express an opinion as to the permanency of claimant's condition. Dr. Donohue diagnosed chronic myofascial strain, right lateral abdominal wall and latissimus dorsi musculature. From September 18, 1987 through February 22, 1988, he noted that claimant significantly improved with respect to her subjective discomfort, noting that claimant displayed an excellent attitude and anticipated further improvement in her condition. His final diagnosis was abdominal strain--improved. As noted, Dr. Donohue gave claimant a 30-pound lifting restriction and advised her to permanently avoid the use of her right upper extremity above chest level. He felt that claimant had suffered a permanent partial impairment of four percent of the body as a whole. His letter to claims adjuster Jan Johnson of February 22, 1988 set forth those restrictions and noted that claimant had sustained a permanent injury with respect to her trunk musculature. He specified that this permanent impairment was attributable to the work injury. APPLICABLE LAW AND ANALYSIS The parties have stipulated to most issues, leaving unresolved the question as to whether claimant is entitled to an award for permanent partial disability, and if so, the extent of her disability. It has been stipulated that claimant suffered an injury arising out of and in the course of her employment and that it caused at least temporary disability. The parties were unable to agree that there exists a causal connection between the work injury and claimant's alleged permanent disability. Of course, claimant has the burden of proving by a preponderance of the evidence that this causal relationship exists. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). Establishing whether that causal connection exists is an issue essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). Only one physician has expressed a view as to the existence of a permanent impairment and as to whether there exists a causal relationship between the work injury and that impairment. That is Dr. Donohue. Dr. Donohue's report is uncontradicted and shows his belief that a permanent impairment exists and that the impairment is causally related to the work injury. Claimant has met her burden of proof on this issue. TOLZIN V. LUNDELL MANUFACTURING CO. Page 6 Therefore, what remains to be resolved is the extent to which claimant's impairment constitutes an industrial disability, since the injury is stipulated to be a "body as a whole" injury. Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. This is so as impairment and disability are not synonymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial disability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to TOLZIN V. LUNDELL MANUFACTURING CO. Page 7 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 was a credible witness. Even though Dr. Donohue did not reduce to writing his restriction against prolonged standing, this deputy accepts claimant's testimony as establishing that Dr. Donohue verbally restricted her. Although claimant is hardworking and well motivated, it is nonetheless the case that she could not perform any of the jobs which she has so far held during her working life. Of course, at least one of those jobs has apparently changed since claimant filled it: A clerk in the admissions area of a hospital, which claimant concedes is now essentially a "sit down" job. It appears that claimant would be able to hold such a job as it presently exists. Of course, this was a minimum wage job at the time claimant held the position, and there is no showing that a similar position would be greatly more remunerative at the present date. Claimant has worked for defendant Lundell Manufacturing Company since 1973. Due to her work injury, she is no longer qualified to hold the position she has filled since 1979, in the parts room. Lundell Manufacturing Company has not had a position available for claimant since her injury that would meet her work restrictions. It has been held that a defendant employer's refusal to provide any sort of work to a claimant after the work injury may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). Similarly, failure to offer vocational rehabilitation by the employer or insurance carrier may result in an enhanced industrial disability. Schelle v. Hygrade Food Products, 33rd Biennial Report of the Industrial Commissioner, 121 (1977). Of course, because of claimant's age, she is not necessarily a good candidate for extensive retraining. While she indicated an intent to continue working as long as possible, it must be recognized that her anticipated working life is of a lesser duration than would be the case if she were younger. Claimant gave every indication as a witness of having the intelligence and presence to be a valuable employee in a clerical or other reasonably sedentary occupation. Nonetheless, she has had little success in seeking further employment, very probably as she suggests due to her work restrictions. A claimant's inability to find other suitable work after making bona fide efforts to do so is an indicia of industrial disability. McSpadden, supra. Given the record made by the parties and the above considerations in particular, this deputy finds and concludes that claimant has, by reason of her work-related injury, suffered an industrial disability of 25% of the body as a whole, the commencement date for permanent partial disability having been stipulated to be February 29, 1988. TOLZIN V. LUNDELL MANUFACTURING CO. Page 8 FINDINGS OF FACT THEREFORE, based on the evidence presented, the following ultimate facts are found: 1. As stipulated, claimant was an employee of defendant employer on January 13, 1987. 2. That claimant sustained a work injury on January 13, 1987 while filling a furnace with fuel pellets. 3. That claimant's injury caused her to be disabled for a healing period stipulated by the parties to be from January 19, 1987 through February 28, 1988. 4. That claimant's injury was abdominal strain. 5. That claimant's injury has been stipulated to be an industrial disability to the body as a whole. 6. That claimant's rate of weekly compensation has been stipulated to be $135.62. 7. That claimant's work injury has caused her permanent disability and a diminution to her earning capacity. 8. Claimant was a credible witness. 9. Claimant has been given physical limitations by reason of her injury that include no lifting over 30 pounds, permanent avoidance of the use of the right upper extremity above chest level and against prolonged standing. CONCLUSIONS OF LAW WHEREFORE, based on the principles of law previously stated, the following conclusions of law are made: 1. Claimant suffered an injury arising out of and in the course of her employment on January 13, 1987. 2. Claimant's injury was an injury to the body as a whole. 3. Claimant's injury directly caused a healing period from January 19, 1987 through February 28, 1988 (58 weeks) and permanent partial disability. 4. Claimant has established a permanent partial disability of 25% of the body as a whole, the commencement date being February 29, 1988. TOLZIN V. LUNDELL MANUFACTURING CO. Page 9 ORDER THEREFORE, IT IS ORDERED: Defendants are to pay unto claimant fifty-eight (58) weeks of healing period benefits at the stipulated rate of one hundred thirty-five and 62/100 dollars ($135.62) per week totalling seven thousand eight hundred sixty-five and 96/100 dollars ($7,865.96). Defendants are to pay unto claimant one hundred twenty-five (125) weeks [twenty-five percent (25%) of five hundred (500) weeks] of permanent partial disability benefits at the stipulated rate of one hundred thirty-five and 62/100 dollars ($135.62) per week totalling sixteen thousand nine hundred fifty-two and 50/100 dollars ($16,952.50). Defendants shall be entitled to credit for seventy-four (74) weeks of compensation at the stipulated rate which was paid prior to hearing, totalling ten thousand thirty-five and 88/100 dollars ($10,035.88). Those benefits which have accrued as of the date of this decision shall be paid in a lump sum together with statutory interest pursuant to Iowa Code section 85.30. Defendants shall file a Claim Activity Report as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 23rd day of January, 1989. DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Harry H. Smith Attorney at Law P.O. Box 1194 Sioux City, Iowa 51102 Mr. G. Daniel Gildemeister Attorney at Law 400 lst National Bank Building P.O. Box 1768 Sioux City, Iowa 51102 1803 Filed January 23, 1989 DAVID RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER FREDA TOLZIN, Claimant, VS. File No. 843945 LUNDELL MANUFACTURING CO., A R B I T R A T I 0 N Employer, D E C I S I 0 N and IOWA SMALL BUSINESS EMPLOYERS, Insurance Carrier, Defendants. 1803 Claimant awarded 25% industrial disability in wake of injury to trunk musculature. BEFORE THE IOWA INDUSTRIAL COMMISSIONER KIM WHITE, Claimant, File No. 843993 vs. A R B I T R A T I O N CHEMICAL CORP., D E C I S I O N Employer, F I L E D and FEB 07 1990 HOME INSURANCE COMPANY, INDUSTRIAL SERVICES Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Kim White against her former employer Witco Chemical Corporation and its insurance carrier Home Insurance Company. The case was heard and fully submitted at Storm Lake, Iowa on May 23, 1989. The record in this proceeding consists of joint exhibits 1 through 27 and testimony from Kim White, Sarah Schnell, Charles White, Jr., Robert Alderman, Delores Sennert, and Phyllis Richardson. ISSUES The issues identified by the parties for determination are whether Kim White sustained an injury which arose out of and in the course of her employment, causation between any injury and any disability, determination of claimant's entitlement, if any, to temporary total disability or healing period compensation, and determination of claimant's entitlement to recover medical expenses. Claimant contends that a Job Service decision conclusively establishes that the claimant sustained an injury which arose out of and in the course of employment and that issue preclusion or res judicata prevent relitigation of that issue and compel a finding favorable to claimant. No claim was made for permanent partial disability compensation as claimant asserted the position that adequate treatment has not been afforded and that her treatment has not been completed in order to permit a determination of the degree of any permanent partial disability. It was stipulated by the parties that in the event of an award, claimant was entitled to recover temporary total disability compensation for the period running from March 6, 1987 through April 28, 1987. This is 7 5/7 weeks. It was also stipulated that the rate of compensation is $130.10 per week. It was further stipulated that the providers of medical services would testify that the fees charged for their services were reasonable, that the services were provided for treatment of the alleged work injury and that the defendants have no evidence to the contrary. It was further stipulated that under Iowa Code section 85.38(2), defendants are entitled to credit in the amount of $74.00 against any medical expense award. SUMMARY OF EVIDENCE The following is a summary of evidence presented in this case. Only the evidence most pertinent to this decision is discussed, but all of the evidence received at the hearing was considered in arriving at this decision. Conclusions about what the evidence showed are inevitable, with any summarization. The conclusions in the following summary should be considered to be preliminary findings of fact. Kim White is a 33-year-old married woman who lives at Terril, Iowa with her husband Charles White, Jr., and their three children. Kim, who is of an Oriental ethnic background, testified that she was born and educated in South Korea and that she does not read English well. She stated that she usually has someone else read anything which she is required to sign. Kim stated that she met her husband while he was in the service. Kim feels that she speaks English well now, although the undersigned did have some difficulty understanding her. Kim stated that she was required to demonstrate that she was able to read and speak English in order to be allowed to marry her husband. Kim testified that her husband accompanied her when she applied for work at Witco. She stated that he read the employment application form to her and read the employee handbook to her. In June, 1985, Kim was hired to work at Witco on an assembly line where she assembled grease guns. Claimant stated that she would handle 100-200 per hour and that the number varied according to the function which she performed. Kim stated that the work required a lot of grasping, holding, and compressing of springs. She stated that the job required turning of the wrist and squeezing the fingers. Kim stated that she worked 40 hours per week and all overtime which was offered to her. Kim testified that at times her arms would swell and become painful, but that she did not seek medical treatment and continued to do her job. Kim stated that she used alcohol and ice packs at her home to treat the condition. She denied ever having a problem with her right arm swelling before she started work at Witco. She stated that she did not make complaint about the problem at work because she wanted to keep her job. Kim stated that she did, however, make use of elastic bandages which were available at work. Kim testified that while working on March 3, 1987 she bend down to pick up a part and while lifting it up, bumped her right wrist. She stated that it hurt, she dropped the part, and shook her hand. She stated that it did not bleed, but did get very red. Kim stated that the incident happened in the morning, but that she kept working. She stated that her arm developed some swelling and that she treated it at home that night with an ice pack, a warm soak and aspirin cream. Kim testified that on Wednesday, March 4, 1987, she reported to work to her normal job. She stated that she had difficulty using her right hand and went to first aid where she reported bumping the arm on the preceding day and had it wrapped with an elastic bandage. Kim stated that she was also provided ice packs during breaks and over the noon hour. Claimant stated that she worked nine hours on March 4 and nine hours again on March 5. Claimant stated that she continued to wear the Ace wrap on her arm and to use ice during breaks. She stated that the arm was still swollen, but that she took no pain medication. Kim stated that at the end of the day, the pain in the arm was getting worse. Kim reported to work on Friday morning and continued to work. She stated that the pain in her arm worsened and that she eventually talked to her supervisor, Delores Sennert. Kim testified that Delores told her to take a half day vacation, rest over the weekend and come back to work on Monday. Claimant stated that she went home, put ice packs on her arm and lay on the couch to watch TV. Kim stated that a friend stopped by, looked at her hand and convinced her to go to the doctor. Claimant was seen by Richard M. Brown, M.D. Dr. Brown took claimant off work and issued a slip to excuse claimant from work. He placed a cast on her arm and scheduled a return visit for March 16. Claimant returned to Witco and turned in the work excuse to Delores Sennert. Claimant testified that Delores looked at the slip and made a statement that she would see her on the 16th. Claimant's husband had recently been reemployed as an over-the-road truck driver following an extended layoff. He obtained a run to the east coast. They decided that claimant would accompany him since she had been taken off work. A friend, Sarah Schnell, watched their children while they were gone. Sarah Schnell stated that she first became aware of Charles White, Jr.'s, truck driving job on Friday. Claimant stated that her husband obtained the truck driving job on the Friday that she left work. On Monday, March 9, 1987, Delores Sennert investigated claimant's injury claim. She stated that she checked work schedules and talked with coworkers. She stated that she was told of a statement made by Phyllis Richardson wherein claimant allegedly told Richardson that she had injured her arm while arm wrestling with her son. A representative of Witco contacted Dr. Brown and he then issued a release to allow claimant to return to work effective March 9, 1987. His report states that her wrist was in a cast and that she should not engage in lifting or grasping with the right hand. His diagnosis was DeQuervain's tenosynovitis, inflammation of the wrist tendons attributed to strenuous grasping done repetitively (exhibit 1, page 2). The original slip which Dr. Brown had provided to claimant was not included in the exhibits. Robert Alderman, the plant manager, acknowledged that it was missing even though it was referred to at page 81 which is found in exhibit 12, records maintained by Witco. Alderman stated that at the time of conducting the investigation on March 9, 1987, he had no knowledge of any claim regarding a March 3, 1987 injury. Alderman stated that it is company policy to provide restricted employment to employees who are injured on the job, but that they do not provide restricted employment for those who have nonemployment related conditions. He stated that they would have had a position for claimant consistent with the release. Alderman did not dispute claimant's description of the work which she had performed. He stated that in a day's time, claimant would have handled parts to approximately 6,000 grease guns. Alderman stated that claimant had missed too many days from work. He stated that the process the company uses when dealing with absenteeism is to initially give a verbal warning, which is then followed by a written warning. He stated that the third step in the process is a three-day suspension and that the final step is then termination. Alderman stated that in the course of the investigation which he had directed on Monday, March 9, the statement from Phyllis Richardson which attributed claimant's arm problem to arm wrestling with her son was made. Delores Sennert stated that she writes down injury complaints and has none from claimant during the week of March 3, 1987. Sennert was then shown exhibit 13, page 94, a dispensary record dated March 4, 1987 which Sennert acknowledged was made in her own handwriting. Sennert testified that when claimant reported the swollen arm on Friday of that week, she suggested that claimant go to the company doctor, but that claimant declined and stated that she would take care of it herself. Sennert stated that approval was obtained for claimant to take vacation for the remainder of the day and that at the end of the day claimant brought in a slip from Dr. Brown. Sennert stated that claimant was in a hurry, and would not wait, so nothing further was done that day regarding the doctor's excuse. Sennert testified that she phoned claimant during the week of March 9 and told claimant that they would talk when claimant returned from the trip with her husband. Sennert stated that when claimant came to the plant following her return, claimant's husband accompanied her to the plant. Sennert stated that claimant's husband requested to be present when claimant met with Witco officials, but that his request was denied and he became angry. Mr. White then waited in the lobby while the termination notice, exhibit 12, page 73, was read to claimant and presented to claimant for her signature. Sennert testified that claimant seemed to be able to read the written work schedule at the plant because claimant got to her work-station. Sennert agreed that claimant's description of the movements which were involved in claimant's work was generally correct. Sennert stated that claimant was a good worker. Phyllis Richardson testified that she has known claimant for two years and has been employed at Witco for 13 years. Richardson stated that on March 2, 1987 claimant rode to work with her and that during the trip claimant reported injuring her arm while arm wrestling with her son. Richardson testified that she told claimant to get it wrapped and that it was wrapped that evening when they went home. Richardson stated that on Tuesday, claimant told her that she would begin driving again by herself and that they then no longer rode to work together. Richardson said that she did not see claimant's arm while they were going to work on Monday, but that she did see it at,the 9:30 a.m. break. Richardson stated that any employee was free to make use of elastic bandages without consulting a supervisor or first aid person. Richardson stated that claimant had complained of her arms prior to March 3, 1987, but that such complaints were not unusual. Richardson stated that she is afflicted with tendonitis from a prior job. Richardson stated that she observed claimant to have the arm wrapped on Tuesday and that it was on Tuesday when claimant told her that her husband had been recalled to work. Kim White testified that she had been at home over the weekend preceding March 3, 1987. She stated that she did not injure her arm on that weekend. She stated that she did not injure her arm during the evening of March 1, 1987. Claimant stated that she has never arm wrestled with any of her children. Claimant described her height as 5 feet, 1 inch and her weight as 115 pounds. She stated that her oldest son is bigger than she is. Claimant denied telling Phyllis Richardson that she had hurt her arm while arm wrestling. Claimant also denied being offered the services of the company doctor by Delores Sennert. Claimant testified that when she went with her husband to the east coast, her arm was in a sling. She stated that when she returned, she went to the plant on the 17th and was called into the office where she was fired, effective as of March 9, 1987. Claimant stated that her husband had requested to accompany her, but that the request was denied. She stated that she was unable to read what was written on the paper, but signed it anyway. Kim testified that Dr. Brown removed the cast from her arm, but that the swelling was not gone so.she was referred to William Follows, M.D. When Dr. Follows released her to return to work on April 28, 1987, she did not return to Witco, but applied for and received unemployment. Claimant stated that it was her understanding of the company rule that it was necessary to be able to perform 100 percent of the work. She did not know of any one-arm job at Witco or of any authorization by a doctor for a one-arm job. Claimant stated that she phoned home every night while she was gone and during one of the calls was informed that Delores Sennert wanted to talk with her. Claimant testified that she continues to have difficulty with her arm in the form of pain and swelling. Sarah Schnell, claimant's neighbor and friend, testified that she sees claimant on an almost daily basis and that they are often in each other's homes. Schnell stated that she has never seen claimant arm wrestle, scuffle or roughhouse with her children. Schnell stated that prior to March 3, 1987, she had noticed claimant to have swelling in her hands following working at Witco. Schnell stated that she had not observed any swelling in claimant's hands prior to the time she started work at Witco. Schnell stated that the swelling was intermittent. Schnell testified that on March 6, 1987, she found claimant on the couch with an ice pack on her arm and the arm swollen. Schnell stated that she told claimant to go to a doctor and that claimant then agreed and did so. Charles White, Jr., claimant's husband, stated that he has never seen her arm wrestle or roughhouse with their children. He denied engaging in arm wrestling himself due to a shoulder injury which he has suffered. Charles White, Jr., testified that he has observed swelling in claimant's right wrist and fingers prior to March 1, 1987 and that she treated it herself with ice or an Ace wrap. He stated that early in the week her wrist was swollen and that he helped her with supper. He stated that he had told her to stay home, but that she got up and went to work. Claimant's husband testified that on Friday of that week he obtained a run with the truck. He stated that they decided to have Kim go along on the trip. Claimant's husband stated that he phoned Dr. Brown and obtained approval for her to go on the trip. Charles testified that his wife's reading ability is approximately that of a child and that she cannot read well. Claimant was treated by orthopaedic surgeon William Follows, M.D. In a note dated March 31, 1987, he states, "It appears to me that this is a work related condition in all probability judging by the nature of her work." Notes from the Spencer Family Practice Center dated March 6, 1987 state: Much strenuous grasping effort required at work, blow to radial aspect distal R forearm 3 March '87 apparently on-the-job, developed much swelling and discomfort initially, swelling has slowly subsided but still present, now has discomfort radial aspect distal R forearm radiating into thumb. (Exhibit 10, page 50) The termination of employment notice is dated March 10, 1987 and informs claimant that she has missed 52 days of work due to illness and 23 days for other reasons and that she has been warned verbally and in.writing. The notice goes on to state that her claim of a work injury was unwitnessed and was contradicted by a statement from another employee (exhibit 12, page 73). APPLICABLE LAW AND ANALYSIS Claimant has the burden of proving by a preponderance of the evidence that she received an injury on March 3, 1987 which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "arising out of" refer to the cause or source of the injury. McClure v. Union County, 188 N.W.2d 283, 287 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The "arising out of" requirement is satisfied by showing a causal relationship between the employment and the injury. Sheerin v. Holin Co., 380 N.W.2d 415, 417 (Iowa 1986) . "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The decision entered in this case turns largely upon findings of credibility of the various witnesses. There are clearly irreconcilable differences between the testimony offered by Kim White, Sarah Schnell and Charles White, Jr., and that which was offered by Phyllis Richardson. It is recognized that the legal principles of preclusion of res judicata do apply in administrative proceedings. Board of Supervisors, Carroll County v. Chicago & Northwestern Transp. Co., 260 N.W.2d 813 (Iowa 1977). At first glance it may appear that preclusion would be appropriate, but Iowa Code section 96.6 places the burden of proving misconduct on an employer in Job Service Division proceedings. In order for Witco to prevail in that proceeding, which it did not, it was necessary for Witco to carry the burden of proving that claimant was not injured in the course of her employment. It was not necessary for claimant to affirmatively prove that she was injured arising out of and in the course of employment. The undersigned's interpretation of the Job Service decision is that the employer lost because it failed to carry the burden of proving misconduct. This difference in the burden of proof prevents the offensive use of issue preclusion in this case. Bascom v. Joseph Schlitz Brewing Co., 395 N.W.2d 879 (Iowa 1986); Hunter v. City of Des Moines, 300 N.W.2d 121 (Iowa 1981); Restatement (Second) of Judgments, section 68.1. It is therefore clear that the occurrence of injury arising out of and in the course of employment is not established through issue preclusion. When presiding at the hearing, the undersigned observed the appearance and demeanor of all witnesses who testified. Based upon those observations, it is determined that the testimony from Kim White, Sarah Schnell and Charles White, Jr., is credible and that the testimony from Phyllis Richardson is not. The undersigned does not understand why the employer sought a restricted work release from Dr. Brown when it apparently had determined to terminate her employment due to excessive absenteeism or making a false claim of a work-related injury. The undersigned further does not understand why a considerable amount of effort was made to introduce testimony that light-duty work was available to the claimant when it was apparent that she would not be allowed to work because her employment was being terminated. The undersigned recognizes a major difference between simply being able to read and being able to read proficiently. The employer's action in preventing Charles White, Jr., from accompanying his wife and explaining things to her is difficult to understand. Kim could have casually asked a coworker to direct her to work assignments. When all the evidence in the case is considered and credibility given to that which the undersigned finds to be credible, it is determined that Kim White did strike her arm as she alleged on March 3, 1987. It is further found that the diagnoses made by Drs. Brown and Follows are consistent and correct. Claimant therefore, has proven by a preponderance of the evidence that she sustained an injury on March 3, 1987 which arose out of and in the course of her employment with Witco Chemical Corporation. Claimant's entitlement to compensation for temporary total disability is established by stipulation at 7 5/7 weeks payable commencing March 6, 1987. Use of the term "temporary total disability" is not intended to indicate that there was no permanent partial disability as such issue is not before the undersigned for consideration. Claimant's medical expenses are set out in exhibit 27. Upon reviewing the same, it is found that defendants are responsible for payment of claimant's treatment with Physical Therapy Services, P.C., in the amount of $705.00. The treatment was ordered by Dr. Follows as shown in exhibit 5 and was provided between the dates of March 20, 1987 and May 11, 1987, the time when claimant was under his active treatment. It is also determined that defendants are responsible for payment of claimant's charges with Dr. Follows in the amount of $120.00, that expense having been incurred from March 17, 1987 to May 13, 1987. Defendants are also responsible for payment of $61.00 of claimant's expenses at North Iowa Medical Clinic. The treatment provided to claimant on March 6, 1987 for which $45.00 was charged and treatment provided on March 16, 1987 for which $16.00 was charged are the specific charges for which defendants are responsible. FINDINGS OF FACT 1. Kim White, Sarah Schnell and Charles White, Jr., are fully credible witnesses and their testimony is given weight over any conflicting testimony in the record from other witnesses. 2. Kim White injured her right arm through repetitive movement and also from striking it on March 3, 1987 in the manner in which she testified. 3. Claimant incurred the following charges in obtaining treatment for that injury: Physical Therapy Services, P.C. $705.00 William Follows, M.D. 120.00 North Iowa Medical Clinic 61.00 Total $886.00 CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. Kim White sustained an injury on March 3, 1987 which arose out of and in the course of her employment with Witco Chemical Corporation. 3. Kim White is entitled to recover 7 5/7 weeks of compensation for temporary total disability payable at the stipulated rate of $130.10 per week commencing March 6, 1987. 4. Claimant is entitled to recover from defendants the following medical expenses: Physical Therapy Services, P.C. $705.00 William Follows, M.D. 120.00 North Iowa Medical Clinic 61.00 Total $886.00 Defendants are entitled to credit under Iowa Code section 85.38(2) in the amount of $74.00 as stipulated by the parties. ORDER IT IS THEREFORE ORDERED that defendants pay claimant seven and five-sevenths (7 5/7) weeks of compensation at the stipulated rate of one hundred thirty and 10/100 dollars ($130.10) per week payable commencing March 6, 1987. The entire amount thereof is past due and owing and shall be paid in a lump sum together with interest pursuant to Iowa Code section 85.30. IT IS FURTHER ORDERED that defendants pay the following medical expenses less credit for seventy-four and 00/100 dollars ($74.00) previously paid under the group medical insurance plan: Physical Therapy Services, P.C. $705.00 William Follows, M.D. .120.00 North Iowa Medical Clinic 61.00 Total $886.00 IT IS FURTHER ORDERED that defendants pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. IT IS FURTHER ORDERED that defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 7th day of February, 1990. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Joseph L. Fitzgibbons Mr. Ned A. Stockdale Attorneys at Law 108 North Seventh Street P.O. Box 496 Estherville, Iowa 51334 Ms. Dorothy L. Kelley Attorney at Law 500 Liberty Building Des Moines, Iowa 50309 1402.20, 1402.30, 2901 3700 Filed February 7, 1990 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER KIM WHITE, Claimant, vs. File No. 843993 WITCO CHEMICAL CORP., A R B I T R A T I 0 N Employer, D E C I S I 0 N and HOME INSURANCE COMPANY, Insurance Carrier, Defendants. 1402.20, 1402.30 The case was essentially a credibility contest between claimant and her two witnesses versus a former coemployee. Claimant and her two witnesses were found to be credible rather than the former coemployee. Claimant's testimony regarding the manner in which she was injured was accepted as being correct. 2901, 3700 A prior Job Service proceeding determined that the employer had failed to prove misconduct in the form of claimant falsifying an on-the-job injury. It was held that issue preclusion and res judicata do not apply since the burden of proving misconduct is on the employer under Iowa Code section 96.6 in the Job Service proceeding while the burden of proving injury arising out of and in the course of employment is on the claimant in proceedings before this agency. BEFORE THE IOWA INDUSTRIAL COMMISSIONER MARK D. TUFTE, Claimant, File No. 844293 VS. TAMA MEAT PACKING CORP., 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. INTRODUCTION This is a proceeding in arbitration brought by the claimant, Mark D. Tufte, against Tama Meat Packing Corporation, employer, and Kemper Group, insurance carrier, to recover benefits as a result of an alleged injury sustained on February 19, 1987. This matter came on for hearing before the deputy industrial commissioner in Des Moines, Iowa on September 21, 1989. The record consists of the testimony of the claimant; Jeff Slegle and Karen Skala; and joint exhibits A through G. ISSUES The issues the parties set out in the prehearing report for resolution are: 1. Whether claimant's injury arose out of and in the course of his employment. 2. Whether claimant's disability is causally connected to his injury. 3. The nature and extent of claimant's disability. 4. Claimant's entitlement to 85.27 medical benefits. REVIEW OF THE EVIDENCE Claimant testified he is a 1977 high school graduate and obtained a two year general studies science degree from Marshalltown Community College in 1979 and a degree in agronomy from Iowa TUFTE V. TAMA MEAT PACKING CORP. Page 2 State University in 1981. Claimant said he basically farmed full or part time until 1986 when he quit due to financial problems. Claimant related various other jobs he had before becoming employed February 5, 1987 in the boning room at defendant employer. These other jobs involved supervising children and maintenance work as a ranger at a Texas Boy Scout camp, painting houses, remodeling bathrooms, and testing grain. Claimant described his work at defendant employer as physically demanding, especially when he would have to put a 100 pound quarter of beef or pig back on a hook after it fell off. Claimant said he was required to stand all the time. His work shift was 2 p.m. to 10:30 or 11 p.m.. Claimant testified that on February 19, 1987 his department was short of help by 50 percent and people were missing the hooks or the quarter of beef or pig were falling off the hooks. Claimant said he had to pick up the quarter of meat by himself to replace on the hooks. Claimant acknowledged that usually two people are there to pick up the fallen meat, but on this date, the other helper had gone to the bathroom and all the other people present did not help. Claimant said his leg became stiff and sore and he was also having arm trouble. Claimant stated his leg became worse the next week and his arm bothered him. Claimant said he notified the supervisor who told him to see the nurse. Claimant emphasized he is making no arm injury claim. Claimant stated his leg became sore and stiff night and day and started tingling. Claimant said he told the company nurse that his leg hurt. Claimant testified he quit defendant employer on February 26, 1987 because he was hired by Donaldson Company of Grinnell, Iowa for more money and was to begin March 19, 1987. Claimant acknowledged his interview was February 6, 1987, the day after he began the Tama Packing job. Claimant indicated he quit two weeks early so that he could get well. Claimant said his leg started to get worse and when he stooped over, pain would shoot into his back. Claimant then sought medical help from James R. Paulson, M.D., who prescribed muscle relaxers. Claimant said he eventually had therapy and hot packs. Claimant stated he then was referred to Ronald R. Reschly, M.D., an orthopedic surgeon, who performed a CAT scan on the claimant. Claimant said the CAT scan showed problems and surgery was performed one week later. Claimant related that on the week before surgery, he was walking in a bent over position and was in extreme pain. Claimant said the pain and numbness went away within two weeks of his surgery and he was able to return to work in late 1987. Claimant said he did not begin work with Donaldsons as planned due to his surgery. Claimant stated he was a salesman of livestock feed late 1987 until March 1988 making $150 per TUFTE V. TAMA MEAT PACKING CORP. Page 3 week on a commission basis including mileage. Claimant related that he did not sell much and never did sales work before. Claimant said he began work with American Turf as a turf specialist in March 1988. Claimant emphasized he liked this job which involves measuring lawns, mixing 50 pound bags of fertilizer, aerating, seeding, running machines across lawns, consulting as to lawn disease and signing up customers. Claimant testified he made $21,000 this year. Claimant said he is getting along good and has no back pains, but at the end of the work day he is a little stiff. Claimant indicates he is careful now about what and how he lifts. Claimant emphasized he has had no intent to return to farming but he said he couldn't do the type of farm work he had done before because of the lifting requirements. Claimant acknowledged that he agrees with Dr. Reschly that claimant has made a great recovery. Jeff Slagle testified he has been employed nine years with defendant employer and the last five as supervisor over 140 people. He acknowledged that in February 1987, there was a new night shift of 45 to 50 people. Slagle disputes claimant's testimony that claimant picked up meat alone that fell off the hook. He contends four or five people would be in the area and it would require two people to pick up the fallen meat. Slagle did acknowledge that meat has fallen on the floor, but it doesn't slip off the hook. He also contends that once the quarter of beef is hooked, it rarely falls off the hook. Slagle emphasized that an injury report form is always filed, even if it involves a hangnail. He stated there was no report in claimant's file. Slagle insisted he couldn't recall any claimant injury and if there were an injury, claimant would have been sent to Dr. Mallory. Slagle testified that less than 50 percent of the workers on the night shift in February 1987 were on probation and not qualified yet. Slagle does not recall getting claimant a bandaid for his hand, but if he did, he would have made a report. Karen Skala testified she is a registered nurse and has worked for defendant employer approximately six and one half years. She said her duties include providing for all first aid cases, emergency care, dressing changes, paper work, attendance records, nurses notes, processing workers' compensation and insurance papers, and helping pre-employment physicals. Skala emphasized she keeps a record of every worker who comes to her office on an injury. She indicated her records show a 2-24 and 2-26-87 "right arm sore" notations. Her notes on February 5, 1987 indicate claimant had hand problems at the time of his employment. Skala said her first notice of claimant's alleged leg pain was April 22, 1987. She contends that if claimant came to her, she would have noted it in the record. She said she doesn't ever remember seeing claimant or recalls wrapping his arm. She insists that she would have made notations on claimant's records, and since there are no notations, conversations did not occur. TUFTE V. TAMA MEAT PACKING CORP. Page 4 Dr. Reschly's records on April 2, 1987 in part reflect: This patient has an obvious disc herniation at L5-Sl on both physical' examination and on CT scan. He has remarkable lateral shift which apparently is protective for him. I do not really detect strength losses, but these are hard to quantitate in the fact of his significant pain. I think it would be wise to go ahead and get EMG's of him to verify what muscles are involved and to go ahead and get a myelogram since there is some question on CT scan of some additional problems at L4-5. We have scheduled the myelogram and EMG as an inpatient for 4/7/87 and on 4/8/87 we are planning to go ahead and do the diskectomy at L5-Sl. I have talked with the patient about expectations of back surgery, and limitations afterwards, and in fact of the limited expectation of back surgery. The patient understands this, but clearly understands that he cannot really keep on going the way he is and wishes to proceed on with the surgery. (Joint Exhibit D, Page 21) On June 16, 1987 Dr. Reschly's records reflect: The patient returns today doing quite well. He has no complaints of pain, he is able to touch his toes, lateral bending is benign, straight leg raising is negative. With the patient's excellent improvement at the present time, I am going to turn him over to a prn basis. The patient does wish to go to work as a salesman, and he would be lifting a few 50 pound bags of feed a day. This would be okay,-- as far as I am concerned, especially considering the patient's size, and I will allow him to return to work without restriction other than common sense ones which I have enumerated to him, and he would return to work on 6/22/87. He will see me in follow up prn. (Jt. Ex. A, P. 2) On December 5, 1988 Dr. Reschly wrote: Mark Tufte had a discectomy at L5-Sl for a right sided herniated disc at L5-Sl with a right Sl radiculitis. His prognosis apparently is good based on his clinical course to date as I understand it. TUFTE V. TAMA MEAT PACKING CORP. Page 5 ...[I]n the history that the patient has given to me, it was quite clear to me that the patient had incurred his problems while working for Tama Meat Packing Company. He related that to me from the time that I first saw him, although I have incompletely documented this in my clinical notes. To my memory, the patient in fact had quit at the Tama Packing Company because of the recurring injuries that he had there. He was able to signify that one of the injuries was more severe than the others. The patient was thoroughly clear at the time in indicating that his problems have not come from Donaldson's. ... [T]o a reasonable degree of medical certainty, the patient was disabled until 6-16-87. He was disabled from the time that I first saw him, and for an unknown amount of time prior to that. I had perceived very little residual to the patient but also cognizant of the fact that the patient did have a remarkably herniated disc at L5-Sl, I have assigned 5% permanent/partial whole body impairment to the patient because of the ruptured disc at L5-Sl. . This is in accordance with the American Medical Association "Guide to the Evaluation of Permanent Impairment" second edition. I have placed on Mr. Tufte several restrictions, including "common sense ones". Basically, I informed the patient that he should not do repetitive bending at the waist. He should not do repetitive or prolonged "reaching activities", and that he should lift 50 pounds only a few times a day, as long as it was close towards him. He would be able to be on his feet indefinitely, although he probably would do better at a job that allows him to do some sitting along with mostly standing and walking. (Jt. Ex. A, P. 3) Dr. J. R. Paulson's records on February 12, 1987 reflect: a physical exam was given to claimant as a Donaldson's, Inc. pre-employment requirement. This.exam gave claimant a good health report other than being somewhat overweight and a borderline blood pressure condition..' Claimant's back screening was good in every one of the six categories tested. (Jt. Ex. C, P. 10) On August 16, 1988 Dr. Paulson wrote: Mr. Tufte's shift probably occurred between 3/9/87 and 3/24/87. usually this is a gradual shifting. It was certainly noticeable by the time I saw him back on the 27th. TUFTE V. TAMA MEAT PACKING CORP. Page 6 The back surgery was necessitated because of the lumbar disk disease, one of the manifestations of which may be lumbar lateral shift. The herniated disk, L5-Sl, was probably the underlying etiology of the shift and in retrospect explained the pain in the right ham string area. (Jt. Ex. C, P. 12) Dr. W. Hunter, a roentgenologist at Grinnell General Hospital, reported on April 7, 1987: "CONCLUSION: Large herniated disc fragment identified at L5-Sl. There is a mild to moderate anterior bluging of the disc at L4-L5 as well." (Jt. Ex. D, P. 30) Dr. Hunter on May 18, 1987 reported: "Alignment of the vertebra is satisfactory. The bones and intervertebral discs are basically normal in configuration. CONCLUSION: Satisfactory alignment of the vertebral noted in the post-operative status as described above." (Jt. Ex. D, P. 31) APPLICABLE LAW Claimant has the burden of proving by a preponderance of the evidence that he received an injury on February 19, 1987 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The claimant has the burden of proving by a preponderance of the evidence that the injury of February 19, 1987 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone TUFTE V. TAMA MEAT PACKING CORP. Page 7 Co., 261 Iowa 352, 154 N.W.2d 128 (1967). As a claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." The opinion of the supreme court in Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963) at 1121,____, cited with approval a decision of the industrial commissioner for the following proposition: Disability * * * as defined by the Compensation Act means industrial disability, although functional disability is an element to be considered . . . In determining industrial disability, consideration may be given to the injured employee's age, educational qualifications, experience and his inability, because of the injury, to engage in employment for which he is fitted. * * * * ANALYSIS Claimant is 30 years old and has a degree in agronomy plus a two year community college degree in general studies and associate science. Claimant farmed full and part time for several years until he could no longer financially survive. This was heavy work and appears claimant could not go back to this type of work due to his February 19, 1987 injury. Claimant has no desire to return to farming, but appears it would not be advisable anyway. There is some initial confusion as to whether the alleged injury occurred on February 19, 1987 or possibly on one or few days earlier or later. It is obvious that the etiology from which claimant's complaint arose occurred on or around February 19, 1987. This is not important under the circumstances and the status of this record. The undersigned finds the injury occurred on or about February 19, 1987. Defendant contends claimant's injury did not arise out of and in the course of his employment. The greater weight of evidence shows claimant had a physical exam on February 12, 1987 in anticipation of obtaining a better paying job at Donaldsons. This physical basically showed claimant in good health including his back. TUFTE V. TAMA MEAT PACKING CORP. Page 8 Defendants employer's supervisor doesn't believe claimant could have injured himself, especially from picking up a quarter of beef alone. He doesn't believe any meat fell off the hook. Of course, Mr. Slagle wasn't there so he is obviously upholding the defendant employer's position of no injury. The company nurse had no record of a reported injury. She contends the defendant employer and herself are infallible when it comes to keeping records on employee's injuries. The testimony is so diverse in this area, that it comes down to who is telling the truth. Taking the evidence as a whole and considering the circumstances surrounding the event and the events occurring just before and shortly thereafter, the undersigned finds claimant's testimony is the most credible. The undersigned finds that claimant incurred an injury at work to his low back area on or around February 19, 1987 while lifting a quarter of beef. There is no other credible evidence that claimant's herniated disc at L5-Sl occurred other than on around February 19, 1987. It is found that claimant's low back injury is causally connected to his work injury on or around February 19, 1987. The evidence shows claimant made remarkable recovery from his lumbar laminectomy and right L5-Sl diskectomy on April 8, 1987. Claimant is employed and making as much or more than he has ever made per year. Claimant has a 5 percent permanent partial impairment to his body as a whole because of the ruptured disc as opined by Dr. Reschly. (Jt. Ex. A, P. 3) The doctor advised claimant not to do repetitive or prolonged "reaching activities and that he should lift 50 pounds only a few times a day, as long as it was close towards him. He would be able to be on his feet indefinitely, although he would do better in a job that allows him to do some sitting along with mostly standing and walking periods." (Jt. Ex. A, P. 3) Claimant reached maximum healing on June 22, 1987 at which time claimant's back surgeon indicated claimant could return to work. Claimant's healing period is February 19, 1987 up to and including June 21, 1987 which totals 17.571 weeks. Claimant is young, intelligent and seems motivated. He has been fortunate to recover as well as has from back surgery. Although surgery has been successful, claimant has some restrictions and has a back unlike a normal back. Claimant has a loss of earning capacity but not as great as it could have been. Claimant's age helped. It is obvious in the market place that a person with a good back who has had no back surgery has a greater earning capacity than one who has had back surgery, even if the surgery was successful. Taking into consideration claimant's age, intelligence, motivation and all other factors that are to be considered to be determining industrial disability, the undersigned finds claimant's has 10 percent industrial disability. TUFTE V. TAMA MEAT PACKING CORP. Page 9 The sole remaining issue is whether claimant's is entitled to have his medical bills which total $7,642.60 (Jt. Ex. G), paid by defendants under 85.27. Defendants denied any liability for claimant's injury. Defendants had an opportunity to seek its own medical doctor. By denying liability, defendants are in no position to raise 85.27 in good faith. The medical care provided claimant was good, reasonable and necessary. In fact, claimant had remarkable recovery. Defendants cannot find fault with the medical care provided claimant. Defendants shall pay claimant's medical as set out in joint exhibit G. FINDINGS OF FACT Claimant incurred an herniated L5-Sl disc on or around February 19, 1987 while lifting a quarter of beef at Tama Meat Packing. Claimant incurred a 5 percent permanent partial impairment to his body as a whole as a result of his work injury to his L5-Sl disc on or around February 19, 1987. Claimant incurred a healing period beginning February 19, 1987 to and including June 21, 1987 totaling 17.571 weeks at the weekly rate of $136.85. Claimant has restrictions of not doing repetitive or prolonged reaching activities, not lifting 50 pounds more than a few times a day, as long as it is close towards him. As a result of his work related injury on or around February 19, 1987. Claimant incurred a lumbar laminectomy and right L5-Sl discectomy as a result of his work related on or about February 19, 1987. Claimant has a reduction in earning capacity. Claimant is entitled to have his medical bills incurred as a result of his injury on or around February 19, 1987 totaling $7,642.60 paid by the defendants. CONCLUSIONS Claimant's lumbar back injury of L5-Sl arose out of and in the course of claimant's employment on or around February 19, 1987. Claimant's herniated L5-Sl disc and resulting surgery and 5 percent permanent partial impairment is causally connected to claimant's work injury on or around February 19, 1987. Claimant has a 10 percent industrial disability. TUFTE V. TAMA MEAT PACKING CORP. Page 10 Claimant is entitled to healing period benefits from February 19, 1987 to and including June 21, 1987 totaling 17.571 weeks at the rate of $136.85. Defendants shall pay claimant's medical bills set out in joint exhibit G which total $7,642.60. ORDER THEREFORE it is ordered: That defendants shall pay unto claimant healing period benefits at the rate of one hundred thirty six and 85/100 dollars ($136.85) for the period beginning February 19, 1987 to and including June 21, 1987 totaling seventeen point five seven one weeks (17.571). That defendants shall pay unto claimant fifty weeks (50) of permanent partial disability benefits at the rate of one hundred thirty five and 85/100 dollars ($135.85) per week beginning June 22, 1987. That defendants shall pay the accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid, if any. That defendants shall pay claimant's medical expenses that are set on joint exhibit G which currently total seven thousand six hundred forty two and 60/100 dollars ($7,642.60). That defendants shall pay interest on benefits awarded herein and set forth in Iowa Code section 85.30. That defendants shall pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. That defendants shall file an activity report upon payment of this award as required by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 27th day November, 1989. BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER TUFTE V. TAMA MEAT PACKING CORP. Page 11 Copies To: Mr. David D. Drake Attorney at Law West Towers Office Complex 1200 35th Street, Ste. 500 West Des Moines, Iowa 50265 Mr. Joseph S. Cortese II Attorney at Law 1000 Des Moines Bldg. Des Moines, Iowa 50309 51100-51108-51803 Filed November 17, 1989 BERNARD J. O'MALLEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER MARK D. TUFTE, Claimant, File No. 844293 VS. TAMA MEAT PACKING CORP., 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. 5-1100 5-1108 5-1803 Claimant awarded 10 percent Industrial Disability for back injury resulting in herniated L5-Sl disc. Claimant had surgery and remarkable recovery. Doctor opined 5 percent permanent partial impairment. Claimant working at new job making as much or more as prior job. BEFORE THE IOWA INDUSTRIAL COMMISSIONER LAWRENCE A. McDONALD, File No. 844345 .Claimant, A R B I T R A T I 0 N VS. D E C I S I O N IOWA BEEF PROCESSORS, INC., Employer, Self-Insured, Defendant. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Lawrence A. McDonald, claimant, against IBP, Inc., employer (hereinafter referred to as IBP), a self-insured defendant, for workers' compensation benefits as a result of an alleged injury on November 6, 1986. On March 23, 1990, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. Oral testimony and written exhibits were received during the hearing from the parties. The exhibits offered into the evidence are listed in the prehearing report. According to the prehearing report, the parties have stipulated to the following matters: 1. An employee/employer relationship existed between claimant and IBP at the time of the alleged injury. 2. Claimant is not seeking temporary total or healing period benefits. 3. If the injury is found to have caused permanent disability, the type of disability is an occupational hearing loss under Chapter 85B of the Iowa Code. 4. Claimant's rate of weekly compensation in the event of an award of weekly benefits from this proceeding shall be $225.62. McDONALD V. IOWA BEEF PROCESSORS, INC. Page 2 ISSUES The parties submitted the following issues for determination in this proceeding pursuan to the prehearing report. I. Whether claimant received an occupational hearing loss as defined by Chapter 85B. II. The extent of claimant's entitlement to benefits under Chapter 85B. FINDINGS OF FACT Having heard the testimony and considered all the evidence, the deputy industrial commissioner finds as follows: Claimant is a 40 year old meat packer who was employed by IBP at the Denison plant from 1967 until November 6, 1986. Claimant performed various meat packing jobs for IBP such as boner, cheeker, head chisel, dropped heads, wash heads, and down and up puller, including operation of an electric Wizard knife. Claimant was exposed to plant noise in the Denison plant. A plant noise program was implemented in 1976 after which employees were issued and required to wear earplugs. Claimant wore these plugs after that time and claimant indicated that the plugs worked "fairly well." When claimant was hired he had good hearing. However, after working at the Denison plant for five years, claimant began to develop a ringing noise in his ears which is medically termed "tennitus." This condition progressively worsened after that time. This tennitus condition is aggravated by background noise and at times it is hard for claimant to comprehend conversations. Testing of claimant's hearing loss under the direction of William Wilder, M.D., a board certified otolaryngologist, indicates that claimant has normal hearing at the following frequencies: 250, 500, 1000, 2000 and 3000 Hertz. Claimant has moderately severe sensorineural hearing loss at the 4,000, 6,000 and 8,000 Hertz frequency levels. This hearing loss is permanent. There is no treatment recommended by any physician for claimant's hearing loss and use of a hearing aid would only marginally improve his ability to communicate. This finding is based upon the uncontroverted opinion of Dr. Wilder in his report of January 23, 1987. Claimant believes that a hearing device called "miracle ear" could help but he offered no medical evidence to support his belief. McDONALD V. IOWA BEEF PROCESSORS, INC. Page 3 Claimant was in the National Guard from 1967 until 1973. In conjunction with his guard duties, he was required to shoot a 90 mm. recoilless rifle a few times each year at summer camp. Claimant owns his own motorcycle which he drives once or twice a week. Claimant has been a pheasant hunter since age 15. Claimant returned to work in a meat packing plant in December 1989. Claimant says that this is not a high noise area. CONCLUSIONS OF LAW Iowa Code section 85B.4(l) defines occupational hearing loss as follows: [A] permanent sensorineural loss of hearing in one or both ears in excess of twenty-five decibels if measured from international standards organization or American national standards institute zero reference level, which arises out of and in the course of employment caused by prolonged exposure to excessive noise levels. This definition further states as follows: In the evaluation of occupational hearing loss, only the hearing levels at the frequencies of five hundred, one thousand, two thousand, and three thousand Hertz shall be considered. With reference to employer liability for hearing aids in occupational hearing loss situations, Iowa Code section 85B.12 states, in part, as follows: An employer who is liable for occupational hearing loss of an employee is required to provide the employee with a hearing aid unless it will not materially improve the employee's ability to com- municate. In the case sub judice, given the findings that claimant has normal hearing at the four frequency levels considered under Chapter 85B, claimant has no occupational hearing loss claim. Also, given the finding that claimant's hearing will only marginally improve his ability to communicate, he likewise has no claim for a hearing aid. Even if we assume that claimant's hearing loss is causally connected to work, claimant is not entitled to benefits. Therefore, there is no need to deal with the issue of the cause of claimant's noncompensable upper frequency hearing loss. McDONALD V. IOWA BEEF PROCESSORS, INC. Page 4 ORDER 1. Claimant's petition is hereby dismissed. 2. Claimant shall pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 14th day of June, 1990. LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert Kohorst Attorney at Law 602 Market St Bldg Harlan IA 51537 Mr. Marlon D. Mormann Attorney at Law P 0 Box 515 Dept #41 Dakota City NE 68731 5-2208 Filed June 14, 1990 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER LAWRENCE A. McDONALD, File No. 844345 Claimant, A R B I T R A T I 0 N VS. D E C I S I 0 N IOWA BEEF PROCESSORS, INC., Employer, Self-Insured, Defendant. 5-2208 - Nonprecedential Claimant failed to show loss of hearing at compensable frequency levels. BEFORE THE IOWA INDUSTRIAL COMMISSIONER KENNETH L. CROUSE, Claimant, vs. File No. 844402 S & H TRANSPORTATION, A P P E A L Employer, D E C I S I O N and CNA INSURANCE CO., Insurance Carrier, Defendants. STATEMENT OF THE CASE Defendants appeal from an arbitration decision awarding benefits based upon a rate of compensation or $564.00. The record on appeal consists of the transcript of the arbitration hearing and the exhibits received into evidence at the hearing listed in the prehearing report. Both parties filed briefs on appeal. ISSUE The sole issue on appeal is the rate of compensation. REVIEW OF THE EVIDENCE The arbitration decision adequately and accurately reflects The pertinent evidence and it will not be reiterated herein. APPLICABLE LAW A previous appeal decision by this agency stated: The issue of appropriate rate of compensation for owner/operator truck drivers is an issue that has perplexed decision makers in this agency as well as courts from other jurisdictions. A recent appeal decision by this agency offers guidance in resolving the issue. In Dale A. Christensen v. Hagen, Inc., file No. 643433, March 26, 1985, it was determined that the method of determining the appropriate weekly CROUSE V. S & H TRANSPORTATION Page 2 earnings of independent truck operators was to divide by three the net revenue of their truck. It was also determined that the fuel surcharge was not included in the net revenue of the truck and the average weekly salary of the husband and wife as co-drivers was equal. The general method used in Christensen will also be used in the instant case. Because of the facts of the instant case certain modifications in making the calculation of the weekly earnings is appropriate to arrive at the revenue generated from the operation of the truck and to arrive at the decedent's weekly earnings. The revenue generated from the operation of the truck will be referred to as the revenue of the truck and will be the basis for calculating the rate in this case. Tuttle v. The Mickow Corporation, Appeal Decision, December 20, 1988. The Tuttle decision also discussed that a method of determining rate based upon what might be described as net income or profit of operation should not be used because it could result in absurd or impractical results. ANALYSIS The determination of claimant's rate of compensation should, in this case, like Tuttle, use the revenue of the truck in the thirteen weeks preceding claimant's injury. One-third of the revenue of the truck is claimant's gross weekly earnings. Claimant was paid by his output and pursuant to Iowa Code section 85.36(6) the thirteen week period prior to the injury should be used in determining the basis of compensation. In the time period April 12, 1986 through July 5, 1986 claimant's revenue from the truck was $24,519.04. See claimant's exhibit 7. (There is no evidence in the record to indicate that the adjustments made in Tuttle need be made to the total cf $24,519.04 in this case to arrive at the revenue of the truck.) One-third of the revenue of the truck represents claimant's gross weekly earnings for the thirteen weeks preceding his injury. While claimant testified that persons who drive for him full time receive 30 percent of the gross weekly payment, it is appropriate that claimant's weekly earnings should be based on one-third of the revenue of the truck. Claimant's testimony indicates that his payment to persons who work full time for him based on 30 percent was an attempt to treat those persons fairly. His testimony is not taken to mean that the 30 percent is the amount an owner-operator should consider as the gross weekly earnings for the owner-operator. There is a distinction between an individual who merely drives a truck and one who drives a truck as an owner-operator. Claimant's gross weekly earnings is $628.69 [1/3 of ($24,519.04 divided by 13)]. Claimant's rate of compensation is $366.49. CROUSE V. S & H TRANSPORTATION Page 3 FINDINGS OF FACT 1. On July 8, 1986 claimant received an injury at work. 2. At the time of the injury claimant was married and entitled to two exemptions. 3. Claimant's gross weekly earnings in the thirteen weeks prior to his injury was $628.69. 4. Claimant's rate of compensation is $366.49. CONCLUSION OF LAW Claimant has proved by the greater weight of evidence that his rate of compensation is $366.49. WHEREFORE, the decision of the deputy is affirmed and modified. ORDER THEREFORE, it is ordered: That defendants shall pay to claimant twenty-two (22) weeks of permanent partial disability benefits at the rate of three hundred sixty-six and 49/100 dollars ($366.49) per week from July 8, 1986. That defendants shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall pay the costs of this action including costs of transcription of the arbitration hearing pursuant to Division of Industrial Services Rule 343-4.33. That defendants shall file activity reports on the payment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 26th day of January, 1989. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER BEFORE THE IOWA INDUSTRIAL COMMISSIONER KENNETH L. CROUSE, Claimant, FILE NO. 844402 vs. A R B I T R A T I O N S &H TRANSPORTATION, D E C I S I O N Employer, F I L E D and JAN 26 1988 CNA INSURANCE CO., IOWA INDUSTRIAL COMMISSIONER Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Kenneth L. Crouse, claimant, against S & H Transportation, employer (hereinafter referred to as S & H), and CNA Insurance Company, insurance carrier, defendants, for workers' compensation benefits as a result of an alleged injury on July 8, 1986. On December 11, 1987, a hearing was held on claimant's petition and the matter considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. Oral testimony was received during the hearing from claimant. The exhibits received into the evidence at the hearing are listed in the prehearing report. According to the prehearing report, the parties have stipulated to the following matters: 1. On July 8, 1986, claimant received an injury which arose out of and in the course of his employment with S & H. (The independent contractor defense was waived at the time of hearing.) 2. Claimant is not seeking temporary total disability or healing period benefits in this proceeding. 3. Claimant is entitled to 22 weeks of permanent partial disability benefits for a 10 percent loss of use of a leg as a result of the work injury. 4. Claimant's entitlement to medical benefits is no longer in dispute. 5. At the time of the work injury claimant was married and entitled to two exemptions for purposes of determining rate of compensation. 6. No benefits have been paid. ISSUES The only factual issue presented by the parties for determination in this proceeding was the amount of claimant's gross weekly rate of compensation at the time of the work injury. SUMMARY OF THE EVIDENCE The following is a summary of evidence presented in this case. For the sake of brevity, only the evidence most pertinent to this decision is discussed. Whether or not specifically referred to in this summary, all of the evidence received at the hearing was considered in arriving at this decision. As will be the case in any attempted summarization, conclusions about what the evidence offered may show are inevitable. Such conclusions, if any, in the following summary should be considered as preliminary findings of fact. Claimant is a truck driver and the owner and operator of a trucking entity called Kenneth Crouse Trucking. At the time of the work injury claimant owned two trucks. Claimant drove one of these trucks and employed his son to drive the other. In his trucking operation claimant leased his trucks to S & H under a written lease agreement, Exhibit 10. Under this agreement claimant was to use the leased trucks to haul, transport, unload and deliver freight at the direction of S & H. In consideration for such activity, claimant received a percentage of the gross monies received by S & H from customers for the loads handled by claimant and his drivers. Under the agreement claimant was required to pay his own expenses such as compensation to drivers, fuel and other expenses to maintain his trucks. Each year of operation claimant treated his trucking operation for tax purposes as a sole proprietorship and filed a schedule C in his income tax returns to report his net profit and/or loss. In 1985, claimant's tax return revealed that claimant had gross receipts from his trucking operation of $250,690, expenses of $217,222 with a net profit of $33,468. In 1986, claimant's tax return indicates a gross of $179,652, expenses of $136,995 and a net income of $42,657. Claimant testified that he pays his son a regular weekly amount and pays himself from $300 to $400 a week. Claimant testified that his draw amounts to roughly 30 percent of the gross which represents approximately the amount left over after cash expenses. The amount of claimant's draw from the operation varied from week to week. The exhibits offered into the evidence indicate that over the 13 week period prior to the work injury claimant received under the lease contract with S & H a total sum of $24,519 or an average of $1,886.08 per week. Claimant's appearance and demeanor at the hearing indicated that he was testifying in a candid and truthful manner. APPLICABLE LAW AND ANALYSIS Defendants argue claimant's expenses to operate his trucking operation should be taken into account for purposes of calculating his rate of compensation for workers' compensation benefit purposes. Shortly before the hearing in this case, the industrial commissioner issued a decision which stated as follows in a case involving an injured owner/operator truck driver: The appropriate rate in this case is computed by utilizing claimant's gross average earnings of $995 per week for the 13 weeks prior to his injury. This figure is used despite the fact that claimant paid for maintenance and other expenses out of this weekly amount. The statutory scheme of rate calculation is specific and it was designed to ease the process of calculation. It would be an impossible task to determine rate if employee paid expenses were taken into account. Taking into account such expenses would lead to absurd results. For example, in this case, claimant would not be entitled to any rate of compensation despite the fact he was gainfully employed at the time of his injury as he had a net operating loss for tax year 1983. Sperry v. D & C Express, Inc., Appeal Decision, filed December 10, 1987. This language is determinative of the issue in this case. It will be found that claimant's gross weekly earnings were $1,886.08. The amount of exemptions and marital status are not important as claimant has surpassed the gross amount to show entitlement to the maximum rate of compensation allowable for the injury under chapter 85. According to the commissioner's rate book schedule for an injury on July 8, 1986 published by this agency, the maximum rate of compensation for permanent partial disability benefits is $564.00 per week. FINDINGS OF FACT 1. Claimant was a credible witness. 2. On July 8, 1986, claimant was an owner/operator truck driver under a lease agreement with S & H wherein he received a percentage of the gross receipts received by S & H for loads delivered by claimant and his drivers. Under this arrangement, claimant was to assume the costs of the drivers, truck fuel, truck maintenance and other operating expenses. 3. In the 13 week period prior to July 8, 1986, claimant received from S & H the total sum of $24,519 or an average of $1,886.08 per week for the loads delivered by him and his drivers at the direction of S & H. CONCLUSIONS OF LAW Claimant has established by a preponderance of the evidence entitlement to weekly rate of compensation in the amount of $564.00. ORDER 1. Defendants shall pay to claimant twenty-two (22) weeks of permanent partial disability benefits at the rate of five hundred sixty-four and no/100 dollars ($564.00) per week from July 8, 1986. 2. Defendants shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 3. Defendants shall pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. 4. Defendants shall file activity reports on the payment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 26th day of January, 1988. LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. James P. Hoffman Attorney at Law Middle Road P. 0. Box 1066 Keokuk, Iowa 52632-1066 Mr. Elliott R. McDonald, Jr. Attorney at Law P. 0. Box 2239 Davenport, Iowa 52807 3001 Filed January 26, 1988 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER KENNETH L. CROUSE, Claimant, vs. FILE NO. 844402 S & H TRANSPORTATION, A R B I T R A T I 0 N Employer, D E C I S I 0 N and CNA INSURANCE CO., Insurance Carrier, Defendants. 3001 Applied agency precedent in calculating gross weekly earnings for an owner/operator truck driver which did not consider employee paid expenses.