Page 1 before the iowa industrial commissioner ____________________________________________________________ : BASIL SKIDMORE, : : Claimant, : : vs. : : File No. 844542 ALTER TRADING CORP., : : A P P E A L Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE : COMPANIES, : : Insurance Carrier, : Defendants. : ____________________________________________________________ STATEMENT OF THE CASE Claimant appeals from an arbitration decision awarding permanent partial disability benefits as a result of an injury sustained on January 27, 1987. The record on appeal consists of the transcript of the arbitration hearing; claimant's exhibits 1 through 3; and joint exhibits A through G. Both parties filed briefs on appeal. issues Claimant states the issue on appeal is the nature and extent of claimant's disability. review of the evidence The arbitration decision filed March 14, 1991 adequately and accurately reflects the pertinent evidence and it will not be reiterated herein. applicable law The citations of law in the arbitration decision are appropriate to the issues and evidence. analysis The analysis of the evidence in conjunction with the law in the arbitration decision is adopted with the following addition. Claimant has an 18 percent of the body as a whole impairment as a result of his injury. Claimant has a substantial loss of earnings, in that claimant was making in excess of $26,000 per year, and now has no earnings. Claimant's present occupation is as a self-employed Realtor. Although it would be speculation to predict whether claimant's Page 2 business will be profitable in the future, the record shows that to date claimant has not been able to replace the earnings he enjoyed at the time of his injury. Claimant has shown good motivation to work, having applied for over 200 jobs, and engaged in retraining to obtain his real estate license. Claimant is not totally unemployable, however. Claimant has skills within his restrictions that he can offer an employer. The defendant employer did make some initial effort to accommodate claimant's injury, but the end result was that claimant cannot work for defendant employer because of his impairment, and defendant employer has not found a position for him to accommodate his restrictions. Defendants' eleventh hour statement that a job might be found for claimant is far outweighed by the many months claimant has been unemployed since his injury. Based on claimant's age, education, impairment, past work experience, and all the other factors of industrial disability, it is determined that claimant has an industrial disability of 45 percent. findings of fact The findings of fact contained in the arbitration decision of March 14, 1991 is adopted herein. conclusions of law The conclusions of law contained in the arbitration decision of March 14, 1991 is adopted herein, except the conclusion of law as to claimant's percentage of industrial disability. Claimant's industrial disability as a result of his work injury is 45 percent. WHEREFORE, the decision of the deputy is affirmed and modified. order THEREFORE, it is ordered: That defendants pay to claimant two hundred twenty-five (225) weeks of permanent partial disability benefits at the stipulated rate of three hundred twenty-seven and 72/100 dollars ($327.72) commencing January 14, 1989. That defendants pay accrued weekly benefits in a lump sum and receive credit against the award for weekly benefits previously paid. That defendants shall pay interest on the benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall pay the costs of this action including the cost of the transcription of the hearing proceeding. That defendants receive a credit of five hundred fifty-two and 00/100 dollars ($552.00) advanced to claimant for real estate school. That defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of October, 1991. Page 3 ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. James M. Hood Attorney at Law 302 Union Arcade Bldg. Davenport, Iowa 5280l Mr. Greg A. Egbers Attorney at Law 600 Union Arcade Bldg. 111 E. 3rd St. Davenport, Iowa 52801 9999 Filed October 31, 1991 Byron K. Orton JMI before the iowa industrial commissioner _____________________________________________________________ : BASIL SKIDMORE, : : Claimant, : : vs. : : File No. 844542 ALTER TRADING CORP., : : A P P E A L Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE : COMPANIES, : : Insurance Carrier, : Defendants. : ____________________________________________________________ _____ Short form affirmance of deputy's decision with additional analysis, modifying industrial disability award of 20 percent. Claimant, age 45, had an impairment rating of 18 percent of the body as a whole. Claimant was making $26,000 at the time of his injury, but is now unemployed. Claimant had shown good motivation to find work, and had retrained to become a real estate agent. Claimant had not made a profit in this occupation at the time of hearing. Claimant was awarded industrial disability of 45 percent. Page 1 before the iowa industrial commissioner ____________________________________________________________ : BASIL SKIDMORE, : : Claimant, : : vs. : : File No. 844542 ALTER TRADING CORP., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE : COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Basil Skidmore, claimant, against Alter Trading Corporation, employer, and Liberty Mutual Insurance Companies, insurance carrier, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained on January 27, 1987. This matter came on for hearing before the undersigned deputy industrial commissioner on February 27, 1991. The claimant was present and testified. Also present and testifying was John W. Gentzkow, Vice President of Alter Trading Corporation. The record in this case consists of joint exhibits A-G and claimant's exhibits 1-3. The case was considered fully submitted at the close of the hearing. issues Pursuant to the prehearing report and order, the parties have stipulated as follows: 1. That an employer-employee relationship existed between claimant and employer at the time of the alleged injury; 2. That claimant sustained an injury on January 27, 1987, which arose out of and in the course of employment with employer; 3. That the alleged injury is a cause of temporary disability during a period of recovery; 4. That the work injury is a cause of permanent disability; 5. That claimant is entitled to healing period Page 2 benefits from July 31, 1987 through June 11, 1987 and from March 5, 1988 through January 13, 1989; 6. That the permanent disability is an industrial disability to the body as a whole; 7. That the commencement date for permanent partial disability, in the event such benefits are awarded, is January 14, 1989; 8. That in the event of an award of weekly benefits, the rate of weekly compensation is $327.72 per week; 9. That all requested medical benefits have been or will be paid by defendants; and, 10. That defendants are entitled to a credit for healing period benefits paid to claimant from January 31, 1987 through June 11, 1987 and from March 5, 1988 through January 13, 1989 and for permanent partial disability benefits which have been paid and continue to be paid since January 14, 1989 at the rate of $327.72 per week and for $552.00 in tuition money paid to claimant for real estate school. The only issue remaining to be decided is the extent of permanent disability, if any. findings of fact The undersigned has carefully considered all the testimony given at the hearing, the arguments made and the evidence contained in the exhibits herein, and makes the following findings: Claimant was born on August 14, 1945 and graduated from high school in 1963. He completed a home study correspondence course in electricity in 1971-1972 and attended Muscatine Community College for one year. He studied management supervision but did not graduate from the program. He worked at various times as a service station attendant, assembler, warehouseman, fire fighter and construction/maintenance electrician. In May 1986, he com menced employment with Alter Trading Corporation and worked as a maintenance electrician. This work included preventive maintenance, installation of new equipment, replacing and changing defective and burnt out motors and general trouble shooting. He described this work as heavy in exertional level with lifting requirements of 15 to 500 pounds. As to his medical problems prior to January 27, 1987, claimant testified that he has had since 1979 a history of facial pain diagnosed as trigeminal neuralgia for which he underwent seven surgical procedures and missed about 2 1/2 years of work. His last surgery was in 1983 and since that time his facial pain has not been severe or debilitating. He stated he has had no other medical problems which have left him with permanent defects or physical restrictions. As to the January 27, 1987 injury, claimant testified Page 3 that he was standing on a conveyor belt changing a light bulb when another employee inadvertently turned on the belt and he fell injuring his left shoulder and suffering massive contusions and bruises. He has treated by various physicians and considers Robert J. Chesser, M.D., his treating physician. He was off work January 31, 1987 through June 11, 1987 when he was released to return to light duty by John M. Hoffman, M.D. He testified that it was his intention to gradually ease into heavier work. However, in November 1987, his pain became worse and by March 1988, it became so severe that Dr. Hoffman took him off all work activity. He testified that although he received no salary from the company after March 1988, he remained on the payroll until January 1990. Claimant further testified that his treatment has been primarily conservative consisting of physical therapy, heat packs, TENS unit and Cortisone injections. Claimant further testified that he was released to return to work in December 1989 with restrictions imposed by Dr. Chesser which included no overhead lifting or repetitive lifting in excess of two pounds. He was given an impairment rating of 30 percent of the left upper extremity. In January 1990, he spoke with Mr. Hough at Alter Trading Corporation and asked whether they had any employment which would accommodate his restrictions. He testified that he was told that no employment existed at the company for him in view of his physical limitations. Prior to this time, he attended real estate school and successfully completed the program and obtained his license in January 1990. He has been an independent real estate agent since January 1990 but has made no money in this business. In 1990, he suffered a loss of $1,500. Claimant testified that his left shoulder impingement severely incapacitates him from performing activities requiring bilateral manual dexterity and therefore he is unable to perform any of his past work activity. He cannot use his left arm above waist level and cannot lift more than a gallon of milk. Mr. Gentzkow testified that it was his understanding that when claimant approached Mr. Hough in January 1990, he was already established in the real estate business. In any event, he agreed that no jobs existed at Alter at that time which could accommodate the restrictions imposed on claimant by Dr. Chesser. However, he also testified that since January 1991, a possibility of employment with Alter exists for claimant in their recycling operation. He emphasized that before offering any job to claimant, he would have to undergo a complete physical evaluation. The pertinent medical evidence of record reveals that on January 27, 1987, the claimant presented to Paul Hartmann, M.D., with complaints of back, left shoulder and neck pain after being struck by a conveyor belt during the course of his duties while at work. On examination, he was noted to have extremely limited range of motion of the left shoulder and tenderness over the C7 spinous process. Page 4 Initial x-rays were negative. His shoulder was placed in a sling and he was prescribed pain medication and physical therapy. He was reevaluated by Dr. Hartmann on March 13, 1987 and 50 percent improvement was noted (Exhibit B). On April 23, 1987, claimant was evaluated by Dennis L. Miller, an orthopedist. He presented with complaints of pain in the anterior aspect of the left shoulder. Due to an inability to tolerate anti-inflammatory medications, he was taking Tylenol #3 at this time. On examination, Dr. Miller noted no bruising or abrasions about the shoulder area or definite muscle atrophy. Full range of motion of the neck, including full rotation and lateral bending was observed. There was no tenderness over the upper thoracic spine. There was no tenderness along the scapula. He had fairly generalized tenderness to palpitation over the anterior and superior aspect of the left shoulder. He had full activity range of motion although he did the motion with considerable grimacing. No crepitus was evident. Most of his discomfort seemed to be going from about 90-120 degree elevation. Dr. Miller did not think there was any definite muscle weakness in the upper extremity nor was there any sensory loss to light touch. He also made films of the shoulder in the AP, lateral projections. These were within normal limits. Dr. Miller could make no definite diagnoses other than contusion to the shoulder. He was advised to take plain Tylenol and to continue with physical therapy (Ex. E). Dr. Miller reexamined claimant on May 8, 1987 and noted that "[h]e has full active and passive range of motion. The ranges are nice and symmetrical. There is no atrophy of the upper arm circumference or the forearm circumference compared to the opposite arm. There is tenderness about the shoulder but it's fairly generalized. He really had good strength of abduction at 90o." (Ex. E, page 3) Again, Dr. Miller indicated that he could not make a specific diagnosis but ruled out rotator cuff tear. He urged claimant to try to increase his activity. On May 22, 1987, Dr. Miller reexamined claimant and found his condition essentially unchanged from the previous two examinations. He noted that his responses to palpitation were somewhat hyperactive and inappropriate. It was his opinion that his symptoms were out of portion to the physical findings (Ex. E, p. 4). Claimant returned to Dr. Hartmann on June 2, 1987 and he felt that a second opinion was warranted. He therefore referred claimant to John M. Hoffman, an orthopedist. Dr. Hoffman initially saw claimant on June 9, 1987. Dr. Hoffman's clinical impression was of a shoulder impingement syndrome. He gave claimant a subacromial bursa injection and recommended that he be off work for one week and then return to work. Claimant returned to work and saw Dr. Hoffman on June 18, 1987 for follow-up evaluation. His examination was essentially unchanged with good motion and strength but positive shoulder impingement. To rule out a rotator cuff tear, an arthrogram was performed on July 1, 1987. The test was negative. Claimant was then seen by Dr. Hoffmann on July 21, 1987. Since he had been unresponsive to physical therapy and anti-inflammatory medications, another cortical steroid injection was tried. He was Page 5 restricted from performing heavy work activity and overhead work using the left upper extremity. Dr. Hoffman subsequently saw claimant on September 3, 1987, November 24, 1987 and March 8, 1988. On all occasions, his symptoms had not changed but examination revealed full range of motion and full strength. An x-ray of the AC joint taken on March 3, 1988, did not show any osteolysis or degenerative joint changes in that area. Nevertheless, in view of his discomfort, a steroid injection was performed to which the claimant had an unusual reaction. On March 8, 1988, Dr. Hoffman prescribed Tylenol with Codeine and Tolectin (Ex. C). Claimant was then referred by Sara Jones, rehabilitation nurse, to the Franciscan Rehabilitation Center in Rock Island, Illinois for evaluation. He was seen by Robert J. Chesser, M.D., on March 24, 1988 for evaluation. He diagnosed chronic bursitis and recommended physical therapy. To rule out any carpal tunnel entrapment, Dr. Chesser recommended NCV studies. On April 5, 1988, EMG and nerve conduction studies were performed and were within normal limits. There was nothing to indicate any peripheral denervation or entrapment of the carpal tunnel. Dr. Chesser then recommended a work hardening program and a psychological assessment. He stated that "I am unable to find much objective to account for the extent of his pain symptoms, but continue to feel that there may be an underlying bursitis or tendinitis contributing to his symptoms." (Ex. A, p. 10) Claimant was referred by Dr. Chesser on April 7, 1988, for a Work Fitness Evaluation. A two day evaluation was conducted and a physical capacity evaluation report stated that "Mr. Skidmore's stated level of discomfort was not noted to be consistent with observed pain behavior or pain relief techniques." (Ex. G, p. 15) The validity of the results was questionable due to Mr. Skidmore's self-limiting performance. On May 6, 1988, Dr. Chesser released claimant to return to work with restrictions placing him on a "30 lb. weight limit and no overhead lifting." (Ex. A, p. 16) On May 11, 1988, claimant began participation in a work hardening program. On May 20, 1988, Dr. Chesser reported that "I continue to find little to account for his ongoing symptoms." (Ex. A, p. 18) Claimant's symptoms persisted and when seen on June 3, 1988 by Dr. Chesser, he noted a very consistent drop-off inflection at about 90 degrees on isokinetic testing. He felt this warranted further study, namely, an arthroscopy (Ex. A, p. 21). On June 3, 1988, claimant was evaluated by Thomas L. VonGillern, orthopedist. It was his impression that claimant had an impingement with chronic subacromial bursitis and mild acromioclavicular joint narrowing. An arthrogram was recommended to rule out rotator cuff tear. This was performed on July 8, 1988 and showed no definite rotator cuff tear but did show evidence of a definite impingement syndrome. His shoulder was injected with Depo-Medrol without reaction. Dr. VonGillern reexamined claimant on November 16, 1988 and noted evidence of marked Page 6 cogwheeling and overreaction with marked grimacing with any attempted range of motion exercises. It was his opinion that claimant's symptom complex is far in excess of his physical findings. A second opinion from Dr. Jersild was obtained and he was in concurrence with this assessment (Ex. F, p. 3). Claimant's shoulder symptoms persisted and Dr. Chesser felt that another orthopedic evaluation was warranted. On December 2, 1988, he indicated that claimant would be limited to primarily one-handed activities with a two pound left hand lifting limit and no repetitive or overhead lifting. He anticipated these to be only temporary restrictions and referred him to the Mayo Clinic for further evaluation (Ex. A, p. 38). Claimant was evaluated at the Mayo Clinic from January 8 through 9, 1989. Cervical spine and shoulder films were performed on January 12, 1989 and revealed hypertrophic changes of the cervical spine but no abnormalities of the left shoulder. An MMPI was normal. An electromyography of the left upper extremity was normal with no evidence of radiculopathy. A consultation in the Department of Orthopedics revealed post-traumatic mild left shoulder rotator cuff tendinitis. Continued physiotherapy and other conservative modalities was recommended. An orthopedic biomechanics laboratory evaluation on the Cybex showed good reproducible torque curves and a 60 percent strength reduction of all major shoulder muscle groups as compared with other normative data for his age. Surgery was not indicated from this evaluation. It was concluded that he could not return to heavy work activity and future work should be at the sedentary to light level, that is, ten to 20 pounds with the restriction of overhead activities. At this time there was no evidence of any permanency (Ex. D, pp. 26-27). On March 2, 1989, Dr. Chesser reported that "[a]t this time, treatmentwise, I feel there is little more to offer him." (Ex. A, p. 43). On November 29, 1989, Dr. Chesser reported that claimant's MRI was normal and failed to reveal any specific abnormality. He reported, "I continue to feel that his symptoms are due to a shoulder impingement and that he has reached maximal medical improvement. Based on his ongoing pain symptoms and limited range of motion I feel that there is a 30% impairment to the left upper extremity. Although I would expect ongoing symptoms, I would not expect this to be a progressive disorder." (Ex. A, p. 44). conclusions of law An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of his employment. Section 85.3(1). The parties have agreed that on January 27, 1987, claimant sustained an injury which arose out of and in the course of his employment which caused a temporary total disability/healing period from January 31, 1987 through June 11, 1987 and from March 5, 1988 through January 13, 1989. Page 7 At issue is whether claimant's injury resulted in permanent disability and, if so, the extent thereof and, additionally, whether claimant is an odd-lot employee under Guyton v. Irving Jensen Co., 373 N.W.2d 101, 105 (Iowa 1985). In Guyton v. Irving Jensen Co., 373 N.W.2d 101, 103 (Iowa 1985), the Iowa court formally adopted the "odd-lot doctrine." Under that doctrine a worker becomes an odd-lot employee when an injury makes the worker incapable of obtaining employment in any well-known branch of the labor market. An odd-lot worker is thus totally disabled if the only services the worker can perform are "so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist. The burden of persuasion on the issue of industrial disability always remains with the worker. However, when a worker makes a prima facie case of total disability by producing substantial evidence that the worker is not employable in the competitive labor market, the burden to produce evidence of suitable employment shifts to the employer. If the employer fails to produce such evidence and the trier of fact finds the worker does fall in the odd-lot category, the worker is entitled to a finding of total disability. Id. Even under the odd-lot doctrine, the trier of fact is free to determine weight and credibility of evidence in determining whether the worker's burden of persuasion has been carried, and only in an exceptional case would evidence be sufficiently strong to compel a finding of total disability as a matter of law. Id. In Guyton, the court also stated the following regarding determination of a worker's industrial loss. The question is more than the one posed by the commissioner concerning what the evidence shows Guyton "can or cannot do." The question is the extent to which the injury reduced Guyton's earning capacity. This inquiry cannot be answered merely by exploring the limitations on his ability to perform physical activity associated with employment. It requires consideration of all the factors that bear on his actual employability. See New Orleans (Gulfwide) Stevadores v. Turner, 661 F.2d 1031, 1042 (5th Cir. 1981) (are there jobs in the community that the worker can do for which he could realistically compete?) Id. In determining whether claimant is an odd-lot employee, it must first be determined whether claimant has made a prima facie case of total disability by producing substantial evidence that he is not employable in the competitive job market. Although the undersigned cannot dispute that claimant has obstacles to employment, it clearly has not been shown that he is unemployable. Claimant returned to the competitive job market in January 1990, when he commenced a real estate sales practice. Therefore, the evidence does not establish that the only services he can perform are so limited in quality, dependability or quantity that a reasonable stable market Page 8 for them does not exist. Claimant does, however, have a permanent partial disability. Dr. Chesser opined that claimant's injury represents a 30 percent functional impairment. This converts to 18 percent body as a whole under the AMA Guidelines. There are no other impairment ratings in the record. 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 disabil ity. This is so as impairment and disability are not syn onymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial dis Page 9 ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, l985). Claimant is 45 years old and a high school graduate. His work activity has been primarily manual heavy labor. For the past 15 years he has worked as an electrician. His impairment precludes him from performing his past relevant work activity. Despite the paucity of clinical and laboratory findings, and based primarily on claimant's subjective complaints, Dr. Chesser imposed significant lifting limitations on claimant's use of his left upper extremity including no overhead work or repetitive lifting in excess of two pounds. A 30 percent functional impairment rating to the left upper extremity was given on November 29, 1989. This rating was given despite the fact that every physician who treated and/or examined the claimant found his symptoms to be out of proportion to the objective findings. No physician has recommended surgery in view of the negative clinical and laboratory findings. In any event, claimant has made numerous attempts to find work to accommodate his limitations and eventually successfully completed a real estate sales program and obtained his license in the state of Iowa and Illinois. He opened his own business in January 1990 and testified that he works between 40-50 hours a week in this occupation. This job accommodates his limitations. However, claimant has experienced a significant loss of earnings since starting his own business and because of the nature of the job, he is neither assured of the substantial hourly wage nor the benefits he received from working at Alter Trading Corporation. It is evident that his impairment restricts him from the large variety of heavy laboring occupations that he could otherwise have entered if he was not so restricted. Such heavier labor occupations often are significantly more lucrative than jobs classified in the sedentary-light weight category, especially those jobs which do not require significant educational background. It is evident that claimant's loss of earning capacity on account of his injury is significant, but not overwhelmingly so. Therefore, considering all of the elements of industrial disability, including claimant's age; education; past relevant work; successful vocational retraining resulting in new employment; a 30 percent functional impairment rating to the left upper extremity which converts to 18 percent body as a whole impairment under the AMA Guidelines; loss of earnings and earning capacity; and minimal clinical and laboratory findings which support claimant's complaints; the undersigned concludes that claimant has sustained a permanent partial disability of 20 percent for industrial purposes, entitling him to 100 weeks of permanent partial disability benefits commencing on January 14, 1989. order THEREFORE, IT IS ORDERED: Page 10 That defendants pay to claimant one hundred (100) weeks of permanent partial disability benefits at the stipulated rate of three hundred twenty-seven and 72/l00 dollars ($327.72) commencing January 14, 1989. That defendants pay accrued weekly benefits in a lump sum and receive credit against the award for weekly benefits previously paid. That defendants shall pay interest on the benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall pay the costs of this action, pursuant to rule 343 IAC 4.33. That defendants receive a credit of five hundred fifty-two and no/l00 dollars ($552.00) advanced to claimant for real estate school. That defendants file claim activity reports as required by this agency. Signed and filed this ____ day of March, 1991. ______________________________ JEAN M. INGRASSIA DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. James M. Hood Attorney at Law 302 Union Arcade Bldg Davenport IA 52801 Mr. Greg A. Egbers Attorney at Law 600 Union Arcade Bldg 111 E 3rd St Davenport IA 52801 1803; 4100 Filed March 14, 1991 JEAN M. INGRASSIA before the iowa industrial commissioner ____________________________________________________________ : BASIL SKIDMORE, : : Claimant, : : vs. : : File No. 844542 ALTER TRADING CORP., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE : COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1803; 4100 Only issue in this case is the extent of permanent disability, if any. Claimant, a 45 year old male with a high school education and relevant work as an electrician, injured his left upper extremity diagnosed as left shoulder impingement syndrome. His subjective complaints of pain and dysfunction appear out of proportion to clinical and laboratory findings. A functional impairment rating of 30% to the left upper extremity was given by claimant's treating physician. He imposed 10 to 20 pound lifting restriction with no overhead activity. Claimant found not to be an odd-lot employee as he retrained and earned his real estate sales license and opened his own business. He was found to have a 20% industrial disability and entitled to 100 weeks of permanent partial disability benefits. 5-2500; 5-1803 Filed August 30, 1990 CLAIR R. CRAMER before the iowa industrial commissioner ____________________________________________________________ : CANDACE HOLMES, : : Claimant, : : vs. : : File Nos. 844544 GLENWOOD STATE HOSPITAL : 861984 SCHOOL, : : A P P E A L Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-2500 Medical benefits awarded where one doctor gave a definitive opinion as to causal connection to the work injury, and second doctor's statement was ambiguous as to causal connection. 5-1803 Claimant, 39 years old, with ratings of permanent partial impairment of 15 percent and 20-25 percent of the body as a whole, lifting restriction of 40 pounds, high school education, and two years of college, work experience in insurance, residential treatment, and as an obstetrics aide and medication aide, but who had not sought alternative employment, awarded 40 percent industrial disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER CANDACE HOLMES, Claimant, File Nos. 844544 861984 vs. A R B I T R A T I 0 N GLENWOOD STATE HOSPITAL-SCHOOL, D E C I S I 0 N Employer, F I L E D and SEP 5 1989 STATE OF IOWA, INDUSTRIAL SERVICES Insurance Carrier, Defendants. INTRODUCTION This decision concerns two proceedings in arbitration brought by Candace Holmes against the Glenwood State Hospital-School. The case was heard and fully submitted at Council Bluffs, Iowa, on January 31, 1989. The record in the proceeding consists of testimony from Candace Holmes, Jeannine McKay, Jacqueline Holmes, and Franklin Robert Huff. The record also contains joint exhibits 1 through 23 and defendants' exhibits 1 through 4. ISSUES Claimant seeks additional compensation for healing period and permanent partial disability. During the introductory portion of the hearing, it was stipulated by the parties that all of claimant's permanent partial disability was due to the November 3, 1986 injury. Upon that stipulation being made, claimant dismissed file number 861984. It was further stipulated that claimant had been paid healing period compensation for the period of January 27, 1987 to January 26, 1988. Additional healing period was claimed for the period commencing August 1, 1988 to November 24, 1988. The parties stipulated that in the event the employer is liable for the second surgery which claimant underwent, the amount of healing period compensation sought is correct. The issues identified for determination are whether claimant's second surgery and its resulting healing period and medical expenses were proximately caused by the November 3, 1986 injury and also determination of claimant's entitlement to permanent partial disability compensation. SUMMARY OF EVIDENCE The following is a summary of evidence presented in this case. Of all the evidence received at the hearing, only that considered most pertinent to this decision is discussed. 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. Candace Holmes is a 39-year-old single lady who graduated from high school in 1968 and attended two years of college on a part-time basis. Candace stated that her grades were mostly "A's" and "B's." Candace is a Certified Medication Aide. Claimant had worked at the Glenwood State Hospital-School (hereinafter referred to as GSHS) during high school as an assistant child care worker. After high school, she held a variety of positions. She has worked for Hartford Insurance Company and Western Electric. She has been an obstetrical technician at Bergen Mercy Hospital. In 1981 and 1982, she was in the advertising business. In 1983, she returned to Iowa and resumed employment at GSHS. In 1971, claimant was involved in an automobile accident in which she suffered a severe brain contusion which resulted in paralysis on the left side of her body. Claimant stated that she eventually recovered from the incident, except for slight residual spasticity in her left hand. Claimant also related a 1979 automobile accident in which she injured her cervical and thoracic spine. Claimant stated that she had never consulted a physician for her low back prior to the time she returned to Iowa in 1983. Claimant testified that, in January of 1983, she returned to Iowa in order to resume work with the mentally retarded at GSHS. She stated that due to a hiring freeze, she was not able to commence work until December of 1983. She was hired to be a Resident Treatment Worker. Claimant stated that the duties of a Resident Treatment Worker include providing all of the daily needs of clients including getting them up, bathing them and subduing behavior problems. Some patients are not ambulatory. Claimant stated that, on November 3, 1986, she was working with Jeannine McKay lifting a client onto a toilet when she felt a searing pain down her leg and in her low back. Claimant reported the incident to her supervisors and obtained treatment from her family physician. Claimant stated that the doctor took her off work and gave her pain medications, but that she was sent back to work, despite the fact that she was still in pain. Claimant testified that she worked to the best of her ability, but required assistance from coworkers. Claimant stated that she worked until January 27, 1987 wearing a longline bra and back brace. She was then referred to R. Schuyler Gooding, M.D., by her family physician. Diagnostic tests were interpreted by Dr. Gooding as showing a herniated disc at the L4-L5 level and a minimal bulging of the L5-S1 disc which was not felt to be surgically significant (exhibit 18). Claimant testified that she requested that Dr. Gooding perform surgery on both of the discs, but that he performed surgery only at one level. On February 5, 1987, Dr. Gooding performed a left L4-5 interlaminal discectomy (exhibit 16). Claimant testified that she initially felt better following the surgery, but that her condition then worsened. She gained some weight. The hospital admission from February 3, 1987 showed her weight to be 183 pounds (defendants' exhibit 2, pages 1 and 5). Claimant entered a weight loss program wherein her weight was reduced from 194 pounds to 143 pounds. Claimant stated that while Dr. Gooding felt her pain complaints were due to the excess weight which she was carrying, the weight loss did not cause the pain to go away. Claimant stated that she returned to work in February, 1988 as a Resident Treatment Worker on the late night shift. Claimant stated she worked one hour into her shift and was doing her job, but was then sent home. She stated that she has not been recalled to work despite a number of inquiries which she made to the employer. Claimant testified that she still had sharp spasm in her low back and pain down her left hip when she attempted to return to work. She stated that the pain interfered with her daily activities. Claimant eventually sought further medical treatment from Leslie Hellbusch, M.D., in August, 1988 at the recommendation of a friend. After further diagnostic tests were conducted, claimant underwent further surgery which was performed by Dr. Hellbusch on August 2, 1988 (joint exhibits 5 and 6). The surgery was described as a partial hemilaminectomy at L4,5 on the left and a micro-lumbar discectomy at L5,S1 on the left. Claimant testified that following the second surgery, she felt fine for approximately six weeks, but that her condition then worsened and that it is now the same as it was prior to the time of the second surgery. Claimant denied sustaining any other injuries or incidents between the time of the November 3, 1986 injury and the time she first saw Dr. Hellbusch. Claimant stated that she has constant pain that continues even when she lies down. Claimant stated that she was quite physically active prior to her injury, but that she is now unable to dance, garden or engage in intimate relationships. She stated that her walking is limited to one and one-half blocks and that bending causes a shooting pain in her hip. Claimant testified that she is currently in a vocational rehabilitation program conducted in Omaha, Nebraska, where she is training to become a chemical dependency counselor. Claimant stated that she attends class two days per week and that graduation is not expected until 1991. Claimant expressed uncertainty with regard to whether or not she will be able to work as a counselor. She stated that many of the jobs require driving, an activity which severely aggravates her symptoms. Claimant has sought to return to work at GSHS at lighter positions, but none have been offered to her. It was claimant's understanding that she was still on a recall list and that she knew of no one with less seniority who had been called to fill any of those positions in lieu of her. Claimant stated that she considers herself to be disabled now and that she did in the spring of 1988, despite the fact that she listed her health as good when applying for the lighter positions. Jeannine McKay, a Resident Treatment Worker at GSHS, recalled the incident of November 3, 1986 of which claimant testified. McKay confirmed claimant's description of the duties of a Resident Treatment Worker. McKay recalled when claimant returned to work for a few days following the injury. McKay stated that claimant frequently complained of pain and wore a back support and longline bra. Jacqueline Holmes, claimant's 64-year-old mother, is also a retiree from GSHS and was severely injured and beaten by a patient at GSHS. Jacqueline stated that Candace liked her work at GSHS. Jacqueline stated that claimant initially felt better following the surgery performed by Dr. Gooding, but that she then worsened again. Jacqueline described a similar scenario following the surgery performed by Dr. Hellbusch. Jacqueline does not know of any other low back injury which claimant has sustained, except the one that occurred on November 3, 1986. She stated that prior to that injury, claimant was very active, but that now she is limited and unable to perform activities such as vacuuming, scrubbing, waxing, yard work and housekeeping. Jacqueline stated that when claimant returns from attending the classes at Omaha, she has difficulty getting out of the car. She stated that she normally spends the following day in bed. Jacqueline stated that claimant is not capable of working as a Resident Treatment Worker. Franklin Robert Huff, claimant's cohabitant, stated that prior to this injury claimant was active and engaged in things such as camping, bowling, swimming and travel. He stated that she could do anything she desired and could perform her work well. Huff stated that, since the injury, claimant is in pain and unable to engage in hobbies. He stated that he does most of the housekeeping. He stated that Candace is unable to do the work of a Resident Treatment Worker. Huff stated that claimant's current problems are about the same as they were prior to the time of her first surgery. He stated that her walking is limited and that she never walked for more than a mile to his knowledge except for in the time shortly after surgery. Huff stated that he works afternoons at GSHS. Huff confirmed that claimant showed marked improvement following both surgeries, but then in a month or six weeks, began to deteriorate. On February 1, 1988, Dr. Gooding rated claimant as having a 15 percent permanent impairment of the body as a whole. He recommended that she limit her activities, in particular lifting, to a 40-pound maximum weight and that she avoid regular lifting of more than 25 pounds (joint exhibit 10). Dr. Gooding subsequently issued a comprehensive report in which he stated that he found no objective or subjective evidence that any problem at claimant's L5-S1 disc level was a result of the original on-the-job injury (joint exhibit 21; defendants' exhibit 2). Dr. Gooding stated that when he released claimant in early 1988, it was his impression that claimant's complaints and neurological examination did not suggest a medical problem other than that she was continuing to recover satisfactorily from the L4-5 disc surgery. He found nothing to indicate that she had a significant L5-S1 disc abnormality. Dr. Hellbusch expressed the opinion that the surgery which he performed was required due to the November 3, 1986 injury (joint exhibit 3). Dr. Hellbusch eventually rated claimant as having a 20-25 percent permanent partial disability of the body as a whole. He assigned a 20-pound lifting restriction and recommended that she avoid repetitive low back bending (joint exhibit 1). APPLICABLE LAW AND ANALYSIS The first issue to be addressed is that of causation. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. Blacksmith v. All-American, Inc., 290 N.W.2d 3348, 354 (Iowa 1980). The situation which is presented is that of an individual who had no known back problems prior to November 3, 1986, sustained an incident of injury and has since had continuing back problems with two surgeries. There are no known intervening traumas. Claimant's burden of proof is a preponderance of the evidence. It is therefore determined that the opinion of Dr. Hellbusch regarding causation is accepted due to the fact that claimant's symptoms had their onset on November 3, 1986, have not resolved, and there has been no known intervening trauma. The diagnostic studies conducted under the direction of Dr. Gooding did show an abnormality at two levels of claimant's spine. Defendants are therefore responsible for the additional stipulated healing period running from August 1, 1988 to November 24, 1988 and for the costs of medical treatment which were incurred in connection with the second surgery. As claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 257 (1963). Industrial disability or loss of earning capacity is a concept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment of physical capacity creates an inference of lessened earning capacity. The basic element to be determined, however, is the reduction in value of the general earning capacity of the person, rather than the loss of wages or earnings in a specific occupation. Post-injury earnings create a presumption of earning capacity. The earnings are not synonymous with earning capacity and the presumption may be rebutted by evidence showing the earnings to be an unreliable indicator. Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 34th Biennial Report, 218 (1979): 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. The opinions, ratings and restrictions issued by Drs. Gooding and Hellbusch are not at great variance. Claimant and the witnesses she called have indicated that her condition is not appreciably different since the second surgery. When all the evidence is considered, it is determined that the second surgery had little, if any, overall effect upon claimant's ultimate disability. Her physical condition was not appreciably changed by the second surgery with regard to her symptoms and capabilities. Claimant appears to be intelligent. She has a diverse work background. Nevertheless, her injury was sufficiently severe to foreclose her from portions of the labor market which were previously available to her. It has made her unable to perform the duties of a Resident Treatment Worker. Claimant went from February until August of 1988 on a hiring list for lighter jobs, but was not offered any by GSHS. There is nothing in the record to indicate that any lighter jobs were offered to her by the employer during the time that she was under medical treatment for the second surgery or up to the time of hearing. This illustrates the difficulty that claimant will likely have in obtaining employment at a level of earnings comparable to those which she enjoyed as a Resident Treatment Worker. When all the material factors of industrial disability are considered, it is determined that Candace Holmes sustained a 40 percent permanent partial disability as the result of the injuries which she suffered on November 3, 1986. FINDINGS OF FACT 1. The November 3, 1986 injury to claimant's low back was a substantial factor in producing the need for the surgery and other medical treatment which claimant received under the direction of Dr. Leslie Hellbusch. 2. Candace Holmes has experienced a 40 percent loss of her earning capacity as a result of the physical impairment and limitations which were produced by the November 3, 1986 injury. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. The injury of November 3, 1986 was a proximate cause of the surgery and treatment provided to Candace Holmes by Dr. Leslie Hellbusch and the period of recuperation following surgery and medical expenses incurred in the course of that treatment. 3. Defendants are responsible for the costs of medical treatment incurred under the direction of Dr. Hellbusch. 4. Defendants are responsible to pay healing period compensation to claimant for the period of August 1, 1988 to November 24, 1988, a period of 16 4/7 weeks. 5. Claimant is entitled to recover 200 weeks of compensation for permanent partial disability under the provisions of Code section 85.34(2)(u). ORDER IT IS THEREFORE ORDERED that defendants pay claimant sixteen and four-sevenths (16 4/7) weeks of healing period compensation at the stipulated rate of one hundred eighty-two and 73/100 dollars ($182.73) per week payable commencing August 1, 1988. IT IS FURTHER ORDERED that defendants pay claimant two hundred (200) weeks of compensation for permanent partial disability at the stipulated rate of one hundred eighty-two and 73/100 dollars ($182.73) per week payable commencing January 27, 1988. The permanent partial disability compensation is to be interrupted by the sixteen and four-sevenths (16 4/7) weeks of healing period payable commencing August 1, 1988 and then resumed to be paid commencing November 25, 1988 until the entire amount is fully paid. IT IS FURTHER ORDERED that defendants pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33 in the amount of one hundred twenty and 00/100 dollars ($120.00) as shown in items B and C of the cost statement submitted by claimant. 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 5th day of September, 1989. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Sheldon M. Gallner Attorney at Law 803 Third Avenue P.O. Box 1588 Council Bluffs, Iowa 51502 Mr. Robert D. Wilson Assistant Attorney General Tort Claims Division Hoover State Office Building Des Moines, Iowa 50319 51108.50, 51402.30, 51803 Filed September 5, 1989 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER CANDACE HOLMES, Claimant, File Nos. 844544 861984 vs. A R B I T R A T I 0 N GLENWOOD STATE HOSPITAL-SCHOOL, D E C I S I O N Employer, and STATE OF IOWA, Insurance Carrier, Defendants. 51108.50, 51402.30, 51803 Where the medical opinions differed on causation, the scenario of the onset of symptoms and lack of any intervening trauma was found to be sufficient to find that the second low back surgery was also proximately caused by the original injury. Claimant awarded 40 percent permanent partial disability based upon a functional impairment of 15-20 percent and lifting restrictions in the range of 25 pounds. She was unable to resume her original job and the employer had not made other employment available to her. BEFORE THE IOWA INDUSTRIAL COMMISSIONER LISA J. CARTER, Claimant, File Nos. 844568 & 825649 vs. A R B I T R A T I O N PURETHANE, INC., D E C I S I O N Employer, and F I L E D AETNA COMMERCIAL INSURANCE NOV 17 1989 LIFE & CASUALTY, IOWA INDUSTRIAL COMMISSIONER Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by claimant, Lisa Carter, against Purethane, Inc., employer, and Aetna Commercial Insurance Life & Casualty, insurance carrier, defendants, to recover benefits as a result of alleged injuries sustained on May 16, 1986 and January 14, 1987. This matter came on for hearing before the deputy industrial commissioner in Cedar Rapids, Iowa on October 17, 1989. The record consists of the testimony of the claimant, Dr. Steve Hammerstrom, Kenny Carter, Bill Schlabach and Pat O'Neil; claimant's exhibits 1 through 34 and defendants' exhibits 1 through 17. ISSUES The issues the parties set out in the hearing report for resolution are: 1. Whether claimant's injuries arose out of and in the course of her employment; 2. Whether claimant's disability is causally connected to her injuries; 3. The nature and extent of claimant's disability; and, 4. Whether claimant is entitled to benefits under 85.27. REVIEW OF THE EVIDENCE Claimant testified she is a 1981 high school graduate and has no other formal post high school education. Claimant described her various jobs before becoming employed with defendant employer around the end of July 1985. Claimant's jobs involved school maintenance; teachers' and lunchroom aide; various other cleaning jobs; and, loading and unloading and cleaning trucks. Claimant indicated these jobs involved heavy work and lifting. Claimant contends she never had back problems prior to her Purethane job but had bruised her wrist and backside of her elbow resulting in numbness and tingling in 1983, but they were treated and healed. Claimant said she never lost time from work as a result of these injuries. Claimant described her duties at defendant employer as preparing inserts; moving and lifting 40 to 50 pound trays of production parts; carrying 28 to 43 pound boxes of products to load on pallets; and working the trimming line using a scalpel and clippers to cut excess foam off the products in the manufacturing process. Claimant said all the jobs involved lifting and repetitious motion. Later claimant said the heaviest weight she lifted was 63 pounds which involved a metal tray containing all steel arm rests. Claimant indicated she first noticed low back pain the first part of May 1986 resulting from carrying trays. Claimant said the pain became more severe affecting her arms, legs and causing numbness and tingling. Claimant emphasized she never had gone to a chiropractor until she went to Steve Hammerstrom, D.C., on June 6, 1986. Claimant said he moved her vertebra and worked on her arms and legs. Claimant indicated she has gone to Dr. Hammerstrom 310 times since her first visit in 1986. Claimant said she feels better after her treatments, but the pain never completely goes away. Claimant related that the length and nature of the treatments depend on whether her vertebra is to the left or right or feels bruised. Claimant stated she sees the chiropractor for services one to two times a week. Claimant said a letter was sent to Purethane by the chiropractor and defendant employer agreed to lighter duty for the claimant. Claimant said she then was moved around and complained that her job was too strenuous. Claimant was then moved in April of 1987 to the job of trimming and cutting Omega arm rests. Claimant contends the pain became worse and existed seven to eight hours of her working day. July 4, 1987 was claimant's last day of work at Purethane. Claimant said she missed approximately 47 days of work between the summer of 1986 and 1987. She stated the employer would no longer place her in a position where she would not get injured anymore. Claimant testified that prior to June of 1986, she participated in volleyball, boating, horseback riding and bike riding 10 to 15 miles per day. Claimant contends she has not ridden her personal bike since April of 1986. Claimant said in 1981 to early 1982, she was involved in martial arts and advanced to the green belt rank. Claimant indicated she was also involved in weight lifting in 1982 and could bench press 65 pounds. Claimant said Dr. Hammerstrom gave her the okay to return to work on February 17, 1988. Claimant said she went to work for Casey's in February 1988 and worked until July 1988 and has not worked anywhere else since. Claimant acknowledged that her chiropractor found she had Scheuermann's disease in her back. Claimant said this disease is caused by lack of calcium and causes the bones to degenerate. Claimant stated her hand and wrist pain became severe in January of 1987. Claimant emphasized her wrist or hand did not bother her prior to that time, at least no electrical shocks ran through her hand. Claimant said her hand was drawn into a claw position and through chiropractic treatment she can extend it now. Claimant says she presently tries ice massage and sits on ice during the day and sleeps on ice in the evening. She also said she sits in a hot tub during the day. Claimant admitted she takes no medicine, but takes vitamin supplements. Claimant said she takes powdered calcium and iron pills. Claimant purchases these vitamin supplements from Dr. Hammerstrom. Claimant said she saw James B. Worrell, M.D., at defendants' request in August of 1986 and February 1989. Claimant indicated the 1989 appointment lasted 20 minutes. Claimant said the doctor was willing to prescribe medicine but she emphasized she did not want to take prescription drugs as they were not good for the body. Claimant said they did not discuss any litigation or workers' compensation decision. Claimant said she has not found work but wants to work. Claimant contends she cannot work full time because of her pain. Claimant acknowledged she does not anticipate going back to full time work and does not known when she thinks she will try to work. Claimant revealed she has not looked for work since quitting Casey's and has pursued no other education or grants. Claimant said she is living off an inheritance resulting from her mother's death in March of 1987. Claimant said she did not try to work at defendant employer's again. On cross-examination claimant admitted to certain injuries which she did not tell her chiropractor or David W. Beck, M.D., or Dr. Worrell. These injuries were namely: stiff joints, knees and fingers (Polyarthritis at age 17); November 1980, back pain when a boy jumped on her back; right hand injury in 1982; hurt her elbow in 1982; and, contusion to her elbow and twisting her right wrist in February 1983. Claimant did not recall visiting the University of Iowa emergency room on June 12, 1986 and having x-rays taken and being told her back pain was due to Scheuermann's disease. Claimant revealed that she had a candida yeast infection in 1983 resulting in her eating every two hours and sleeping a lot. Claimant said she gained 43 pounds more than her weight when she left defendant employer in July of 1987. Claimant stated she now weighs 108 pounds versus 178 in November of 1987 when she was put on a diet by the chiropractor. Claimant emphasized the weight loss was not recommended due to Scheuermann's disease but was because of her candida condition. Dr. Hammerstrom testified his first contact with the claimant was June 6, 1986. He indicated claimant had multiple subluxation (misaligned vertebra) and concluded claimant's pain was due to lack of motion in her spine. He emphasized that people respond slowly and over long-term with that condition. Dr. Hammerstrom said he determined claimant had Scheuermann's disease when he was sent her x-rays. He described it as a congenital disease causing early degeneration in the mid-back or thoracic vertebra. Vertebra growth is subdued causing arthritis like condition and less motion. He indicated spurs show up and the borders of the vertebra are affected and the vertebra are shortened. Dr. Hammerstrom revealed claimant has a 40 year old spine in a 20 year old body and this causes lack of motion. Dr. Hammerstrom emphasized that all the back is affected because the cervical and lumbar vertebra must take over and receive additional stress since the thoracic vertebra had become less mobile. Dr. Hammerstrom said he could not tell when she first contracted the disease, but is limited by stopping or going into regression. Dr. Hammerstrom said it never reverses itself. He emphasized her back will never get younger. Dr. Hammerstrom recommended claimant not lift weights over 20 pounds; no repetitive sitting all day, and, no heavy or repetitious lifting. Dr. Hammerstrom acknowledged that he went by only what complaints claimant gave him which involved no problems prior to her work at defendant employer's. He indicated claimant made some progress but nothing past the spring of 1989. Dr. Hammerstrom disputed Dr. Worrell's rating and lack of testing and time to arm his conclusions. Dr. Hammerstrom opined a 45 percent disability to claimant's body as a whole as a result of all of claimant's injury at Purethane to her low back. He indicated his intent was to relate it to job disability as it applies to his spinal disability book. The doctor acknowledged that his letter of July 1, 1988 (Claimant's Exhibit 20) opined a maximum healing on that date which is inconsistent with his testimony today indicating the healing period was reached in the spring of 1989. In a letter to claimant's attorney in July of 1988, Dr. Hammerstrom said: "...I feel she plateaued in her care on 06-23-88." (Cl. Ex. 21). Dr. Hammerstrom acknowledged he had never been in defendant employer's plant to see what in fact claimant was lifting or doing, nor had he reviewed the University of Iowa emergency room's report of June 1986, which diagnosed claimant's condition as Scheuermann's disease. Dr. Hammerstrom was questioned extensively as to certain insurance form exhibits. Dr. Hammerstrom acknowledged the inconsistencies and contradictions on the forms as they relate to his testimony and other exhibits. The doctor rationalized some inconsistencies as typographical errors or actions by his insurance clerk, even though he acknowledged that he actually signed the form. Dr. Hammerstrom indicated that if they were not filled out as they were, he would not have received payments from the medical insurance company since the workers' compensation insurance carrier would not recognize his coverage. There was extensive cross-examination concerning the same forms relating to the original injury or reinjuring and the confusion or inconsistencies of the form versus Dr. Hammerstrom's testimony. The doctor admitted that the preexisting Scheuermann's disease itself is unrelated to work at defendant employer's. The doctor said that if it were not for the Scheuermann's disease, claimant could have done the work at Purethane. The doctor said there was no permanent impairment of claimant's right wrist. Kenny Carter testified he is claimant's brother and that he worked at Purethane in the mid 1986's to early 1987 at the same assembly line as the claimant. He said the claimant was active in bike riding and horseback riding, but these activities stopped after the Purethane incident. He stated he lived with the claimant during this period and saw claimant resting on the sofa with ice. He said that he could not tell whether claimant was in pain. Bill Schlabach testified he is claimant's fiance and they live together. He said he could tell claimant is in pain by the way she sits and moves. He said she does not ride a bike nor go speed boating anymore. Pat O'Neil testified he has worked for defendant employer for five years and has worked on the production floor and was made production supervisor in the winter of 1987. He said he is familiar with claimant during 1985, '86 and '87. Her work was not piece work but done on an hourly basis. He stated that the company went on a share plan in the fall of 1987. He acknowledged that claimant's work record included no quality of work or amount of work complaint. He testified defendant employer tried to accommodate claimant. He indicated the heaviest tray claimant would lift was 50 pounds. University of Iowa records on June 11, 1986, reflect: "Diagnosis: 1. Back pain due to Scheuermann's disease 2. Upper back and arm numbness." (Cl. Ex. 1, page 2) The University of Iowa Radiology report reflects: "CHANGES SUGGESTIVE OF MILD SCHUEURMANN'S [sic] DISEASE, AS EVIDENCE BY MULTIPLE SCHMORLS [sic] NODES AND WEDGING OF A MID THORACIC VERTEBRAL BODY. NO ACUTE ABNORMALITY." (Cl. Ex. 2) Dr. David W. Beck, M.D., Assistant Professor of Neurosurgery at The University of Iowa, wrote on June 17, 1936: It is my impression that Lisa's pain is from all the lifting she does at work. I think she is experiencing cervical and upper thoracic muscle spasms. I told her that I think all her pain would go away if she laid off work for awhile, but if that is not feasible it would be helpful if she tried different positions of her head and neck at work. I also think that if the chiropractic manipulations are helpful that she ought to continue those. (Cl. Ex. 4) The Department of Roentgenology, Palmer College, reflects: IMPRESSIONS: 1. Essentially negative osseous study, with the exception of residual deformity from healed Scheuermann's disease. 2. Early degenerative changes involving the thoracic spine. 3. Minimal thoracic scoliosis. (Cl. Ex. 5) Dr. Hammerstrom signed a form on June 9, 1986, for Prudential Insurance Company that reflects: 10. WAS CONDITION RELATED TO: A. PATIENT'S EMPLOYMENT YES X NO Thoracic radicalgia with degenerative joint disease from healed Scheuermann's disease with minimal thoracic scoliosis complicated by myofascitis and neurospinal compression syndrome of T1, T6 and T8 (Cl. Ex. 7, p. 3) On a standard surgeon's report form Dr. Hammerstrom wrote: "Acute carpal tunnel syndrome w/associated rotation subluxation of T1. Objective findings: paresthesis [sic] of rt. 4 & 5 digits, rt. bicep 56% weaker than..." (Cl. Ex. 11) On medical claim forms to Principal Financial Insurance dated June 4, 1987 and September 20, 1987, the claimant signed and checked that the illness began April 8, 1987 and was not work related. Page 5 of claimant's exhibit 13 reflects: "Lisa hurt her low back while helping a friend lift a fishing boat out of the lake on April 8, 1987. She was not injured at work which should explain why we did not file for worker's compensation." (Cl. Ex. 13, p. 5) Dr. Hammerstrom's letter of August 3, 1987 reflects: Because of the chronic degenerative condition of Lisa Carter's spine caused by the Scheuermann's [sic] Disease I instructed Lisa to quit her job at Purethane, Inc. Lisa's job required her to do extremely repetitive lifting at sometimes odd angles which in turn created an acute inflammatory neuro-musculo skeletal [sic] problem. This caused her extreme pain which resulted in excessive sleep loss. Because of this work, I found it impossible to make any rehabilitative progress with Lisa. In fact, her condition continued to regress. Therefore, I found it necessary to have her quit her job. Her current diagnosis is acute thoraco-lumbar [sic] pain with rotation subluxation of L5, L1 and T8. (Cl. Ex. 15) On claimant's exhibit 16 dated August 6, 1987, Dr. Hammerstrom indicated, "[b]oth injuries were definitely caused by the work she was doing" and opined temporary 16 to 20 percent disability and a guess of permanent disability of 8 to 12 percent. Dr. Hammerstrom's oral testimony appears he means disability rather than impairment. Of course it is the undersigned's sole responsibility to determine disability as a matter of law. The medical opinions should only go to impairment. On March 28, 1988, Dr. Hammerstrom wrote: Again, after doing some repetitive lifting of items such as gallons of milk, eight packs of pop and other grocery items, her lower back at the L1-T12 vertebral levels flared up. It becomes more and more clear that permanent damage to her spine has occurred. It seems that anytime she does any physical activity her vertebrae become inflamed. How much of this is caused by the Scheurmann's [sic] Disease and how much is caused by her injury at Purethane, Inc. has yet to be determined. One thing is certain. Both contributed to this condition. (Cl. Ex. 19) On July 1, 1988, Dr. Hammerstrom wrote: Enclosed is a complete spinal impairment rating report on Lisa Carter. Her whole body disability came out to 58%. I feel she plateaued in her care on 06-23-88. I would estimate that her disability during acute care would be 70-80%. (Cl. Ex. 21) The undersigned believes the doctor means impairment in claimant's exhibit 21 because later on in a letter, he corrected the 58% and reduced it to 45% impairment. On or around July 28, 1988, claimant and Dr. Hammerstrom signed documents (Cl. Ex. 22) and indicated either the injury represented was a "...reinjury 2-1-88 of a condition first reported on August 17, 1987 and not due to an accident or occupational illness." The form signed by the claimant stated: "IT IS A CRIME TO FILL OUT THIS FORM WITH INFORMATION YOU KNOW IS FALSE OR TO LEAVE OUT FACTS YOU KNOW ARE IMPORTANT." Claimant's exhibits 23, 24, 26, 28 & 29 are similar to claimant's exhibit 22 except they refer to August 24, 1988, December 2, 1988, March 8, 1989, February 7, 1989 and February 9, 1989 dates respectively. Dr. Hammerstrom wrote to claimant on November 1, 1988 (Cl. Ex. 25), "Ms. Carter injured dorso-lumbar area on 08-17-87 and reinjured area again on 02-01-88." On May 8, 1989, Dr. Hammerstrom corrected his opined impairment ruling of 58 percent to 45 percent. (Cl. Ex. 31) On February 23, 1989, Dr. James B. Worrell, M.D., wrote: I note a complete impairment rating dictated by Dr. Hammerstrom on July 1, 1988. I don't understand all of the manipulations and findings that he outlined but I think an impairment rating of 58% of the whole body is absolutely absurd. Lisa Carter has a myofascial pain disorder which I am convinced is at least partially aggravated by the litigation, the chronic anxiety associated with that. She has absolutely no objective findings on neurological examination. She has no sign of any degenerative or progressive neurological disease. Even the chiropractic radiologist indicated on her spinal x-rays that there were no major findings except for some old healed Scheuermann's disease. Their impression was essentially negative osseous study. I do think it would be reasonable to assign an impairment rating in her case and have this situation settled and behind us all. I think an impairment rating of 5% to 7% of the body as a whole is more than reasonable and appropriate. She can then get along with her life and try to find suitable employment. (Defendants' Ex. 16, pp. 2 & 3) APPLICABLE LAW Claimant has the burden of proving by a preponderance of the evidence that she received injuries on May 16, 1986 and January 14, 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 claimant has the burden of proving by a preponderance of the evidence that the injuries of May 16, 1986 and January 14, 1987 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 Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). A treating physician's testimony is not entitled to greater weight as a matter of law than that of a physician who later examines claimant in anticipation of litigation. Weight to be given testimony of physician is a fact issue to be decided by the industrial commissioner in light of the record the parties develop. In this regard, both parties may develop facts as to the physician's employment in connection with litigation, if so; the physician's examination at a later date and not when the injuries were fresh; the arrangements as to compensation; the extent and nature of the physician's examination; the physician's education, experience, training, and practice; and all other factors which bear upon the weight and value of the physician's testimony may be considered. Both parties may bring all this information to the attention of the fact finder as either supporting or weakening the physician's testimony and opinion. All factors go to the value of the physician's testimony as a matter of fact not as a matter of law. Rockwell Graphic Systems, Inc. v. Prince, 366 N.W.2d 187; 192 (Iowa 1985). 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, 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.2nd 756, (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, (1962). When an aggravation occurs in the performance of an employer's work and a causal connection is established, claimant may recover to the extent of the impairment. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, (1960). The Iowa Supreme Court cites, apparently with approval, the C.J.S. statement that the aggravation should be material if it is to be compensable. Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's Compensation section 555(17)a. An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler, 252 Iowa 613, 620, 106 N.W.2d 591 (1960), and cases cited. An employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960). See also Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). ANALYSIS Claimant is 26 years old. Her longest period of employment has been with this defendant employer. Claimant contends her May 16, 1986 back injury and her January 14, 1987 right wrist injury were the result of the nature of her repetitive work. Claimant downplayed, forgot or could not recall some of her medical problems she had prior to her alleged injuries. Claimant appeared to be active in repetitive strenuous activity before her alleged injuries. These activities involved bike riding, weight lifting, volleyball, horseback riding, martial arts, kicking, punching and complete destruction technics. Claimant contends she can no longer do these activities and solely blames it on her alleged work related injuries. Dr. Hammerstrom originally concluded claimant has Scheuermann's disease as did the University of Iowa in June of 1986 when claimant was taken there on an emergency basis. Dr. Hammerstrom described Scheuermann's disease as congenital and not caused by claimant's work. He said that claimant has a 40-year-old spine in a 20-year-old body. Claimant did not give Dr. Hammerstrom all of her medical history and her doctor only went on the history claimant gave him, as incomplete as it was. It is obvious that Dr. Hammerstrom rendered his opinions based on incomplete medical history, but he is also basing his opinions on the belief that claimant's work aggravated a preexisting condition. There are several forms signed by the claimant and/or Dr. Hammerstrom that indicate claimant's condition is not work related. These exhibits also indicate different injuries or reinjuries. The undersigned believes exhibit 19 dated March 28, 1984, reflects a true status of the confusion and the failure of claimant to establish causal connection. This exhibit indicates that claimant had an injury approximately three weeks prior to March 28, 1988, while working at Casey's, yet it refers to the fact that Dr. Hammerstrom does not know how much of this injury is caused by the Scheuermann's disease and how much is caused by her injury at Purethane. Additional confusion results from claimant's exhibits 23, 24, 26, 28 and 29, which are various forms signed by either the claimant or Dr. Hammerstrom. Dr. Hammerstrom's oral testimony seemed to downplay part of the confusion as attributing the manner in which the questions were answered as errors, mistakes or the insurance clerk filling out the form incorrectly. It is obvious that if the form was filled out any differently then they were, Dr. Hammerstrom would not have been paid for his chiropractic services rendered to the claimant and, therefore, he would have had to look to the workers' compensation carrier who denied liability. The undersigned expects insurance forms to be filled out correctly and reflect an expected degree of honesty. Dr. Hammerstrom acknowledges that his signatures were on those forms and there is no testimony that disputes the claimant's signature on the respective forms. Claimant contends she cannot work, at least not the whole day. It appears she is determined at this time to make no effort to find any work. She has done nothing since she quit working at Casey's in July of 1988. It is obvious claimant is content at the present and for an undetermined time into the future to live off her mother's inheritance. Claimant has no motivation at this time. She continued to have weekly chiropractic treatment. It is clear claimant seeks these treatments to maintain her spine stability affected by her Scheuermann's disease condition and that she will not improve. The undersigned believes claimant's condition is the result of her preexisting Scheuermann's disease condition which was not caused by nor materially aggravated or worsened by her work. The undersigned further believes that her condition is the result of a natural building up of a body process coupled with a degenerating congenital disease that occurred notwithstanding her work. If in fact claimant's work had any bearing or acceleration of her current condition, claimant's nonwork activity had as much, if not greater, affect in accelerating her preexisting condition resulting in her current disability. Claimant's exhibit 13, page 5 reflects claimant hurt her low back April 8, 1987, while helping a friend lift a fishing boat out of the lake. This nonrelated injury adds further confusion to the record. The undersigned feels sorry for the claimant. Sympathy is not the rule of law. Claimant needs to motivate herself and maybe the end of this litigation may give claimant some impetus. The defendant employer is to be congratulated for attempting to accommodate this claimant. It would be fortunate if some work could be found for this claimant. The record indicates defendant insurance company paid 30 weeks of disability payments to the claimant. This is not acknowledgement of liability on the part of the defendant. Such action is praised rather than held against the defendants. Likewise, this type of action prevents the possible application of 86.13 if it is later found that defendants unduly withheld delayed payments and if that becomes an issue in a case. It is unnecessary to further set out inconsistencies, problems or contradictions in the medical evidence. There is little evidence on the claimant's alleged right wrist injury. In a report (Cl. Ex. 11) it appears it is tied in with the claimant's T-1. The report indicates, "...carpal tunnel syndrome w/associated rotation subluxation of T1...." Of course this T-1 problem is the area affected by the Scheuermann's disease. The undersigned believes this right wrist condition is not the result of a work injury but is contributed to as much, if not more, to claimant's nonwork activity. There is no impairment rating by any doctor as to claimant's wrist. The undersigned finds that claimant's injuries on May 16, 1986 and January 14, 1987 did not arise out of or in the course of her employment. That claimant's disability to her right wrist or to her low back is not causally connected to her alleged injuries above. The above findings make any other issues moot. Claimant takes nothing from the pleadings. FINDINGS OF FACT 1. Claimant failed to prove that her May 16, 1986 back injury is a result of her employment. 2. Claimant failed to prove that her January 14, 1987 right wrist injury is the result of her employment. 3. Claimant's back impairment and disability is not the result of a work related injury on May 16, 1986. 4. Claimant has no right wrist impairment as a result of a work related injury on January 14, 1987. 5. Claimant has a congenital degenerating Scheuermann's disease which preexisted her May 16, 1986 injury and was not materially aggravated or worsened by any work related injury on May 16, 1986. 6. Claimant is not motivated to work. CONCLUSIONS OF LAW Claimant's May 16, 1986 injury did not arise out of or in the course of her employment. Claimant's January 14, 1987 injury did not arise out of or in the course of her employment. Claimant's back disability is not causally connected to her alleged injury of May 16, 1986. Claimant's right wrist alleged disability is not causally connected to her alleged injury on January 14, 1987. Claimant is entitled to no benefits as a result of her two alleged injuries. ORDER THEREFORE, IT IS ORDERED: That claimant takes nothing from these proceedings. That defendants shall pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 17th day of November, 1989. BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Davis L. Foster Attorney at Law 920 5 Dubuque P O Box 2000 Iowa City, IA 52244 Mr. Craig A. Levien Ms. Therese M. Botts Attorneys at Law 600 Union Arcade Bldg 111 E Third St Davenport, IA 52801 5-1108; 5-1400 Filed November 17, 1989 BERNARD J. O'MALLEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER LISA J. CARTER, Claimant, File Nos. 844568 & 825649 vs. A R B I T R A T I O N PURETHANE, INC., D E C I S I O N Employer, and AETNA COMMERCIAL INSURANCE LIFE & CASUALTY, Insurance Carrier, Defendants. 5-1400; 5-1108 Held claimant's degenerating Scheuermann's disease which preexisted both her back injury and wrist injury was the cause of her disability. Doctor testified claimant had a 40-year-old spine in her 20-year-old body. Claimant awarded no benefits.