BEFORE THE IOWA INDUSTRIAL COMMISSIONER MARGARET J. AUSTIN, Claimant, vs. File No. 848293 NEELY MANUFACTURING CO., A R B I T R A T I 0 N Employer, D E C I S I 0 N and AMERICAN MANUFACTURERS MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by claimant, Margaret J. Austin, against defendant employer, Neely Manufacturing Company, and defendant insurance carrier, American Manufacturers Mutual Insurance Company, to recover benefits under the Iowa Workers' Compensation Act as the result of an injury which allegedly occurred in May, 1987. This matter came on for hearing before the undersigned deputy industrial commissioner on October 26, 1988 in Des.Moines, Iowa, and was considered fully submitted on that date. Claimant appeared by his attorney, Dennis Hanssen. Defendants appeared by attorney Paul Thune. The evidence in this case consists of joint exhibits 1 through 4, defendants' exhibit 5 and the testimony of the following witnesses: Claimant, Mark Ketchum, Phyllis Womble and Darlene McCarty. ISSUES Pursuant to the pre-hearing report approved by the deputy at hearing, the following issues remain for determination: Whether claimant sustained an injury in May, 1987 arising out of and in the course of her employment; whether the alleged injury is causally connected to disability; whether claimant is entitled to temporary total disability or healing period benefits (although it is stipulated that, if so, the entitlement is from May 21, 1987 through February 1, 1988); whether claimant is entitled to permanent partial disability benefits; claimant's entitlement to medical benefits; whether claimant's disability, if any, is to a scheduled member or to the body as a whole; whether claimant is entitled to penalty benefits; taxation of costs. It was stipulated by the parties that claimant's rate for AUSTIN V. NEELY MANUFACTURING CO. PAGE 2 weekly benefits is $93.57; that the commencement date for permanent partial disability if the same be awarded is February 2, 1988; that the fees charged for medical services or supplies are fair and reasonable; that the provider of such services would testify that the treatment was reasonable and necessary treatment of the alleged work injury and that defendants offered no contrary evidence. The record is unclear as to the correct spelling of defendant employer's name. As ONeelyO is used in the petition and answer, it is employed here in lieu of O'Neeley. REVIEW OF EVIDENCE Claimant testified that she was born on October 30, 1935 and that she now lives in Parachute, Colorado. She has an eleventh grade education, although she has also taken a typing course. She types 45 words per minute. Claimant further testified to her employment history since leaving high school. She has worked in a grocery business as a waitress, as a telephone operator, as an inspector of porcelain electronic parts for some six and one-half years, as an inspector for a coffee pot manufacturer, as an "assistant manager" in a cafe (but testified that she had no supervisory duties and did a great deal of cooking and like work), and in approximately five or six locations as a sewing machine operator and as supervisor. Claimant testified that before beginning her lengthy position as a porcelain part inspector she had some history of neck problems, especially when sitting for a long time in the same position, but that she had no history of hand, arm or shoulder ailments. She accepted the position as an inspector in January, 1979. In February, 1987, claimant accepted a.position with Neely Manufacturing Company. She had previously worked for this company, and also for another company under the same ownership, both times as a sewing machine operator. She also had supervisory duties in the earlier position. At the time she accepted this position, she exhibited no physical problems whatsoever. Claimant's position with defendant Neely Manufacturing Company was a piecework job sewing together plastic clothing containers, such as a clothier might use to package a suit or: sport coat after sale. The work was accurately described on a videotape submitted as defendant's exhibit 5, but claimant testified that, in addition to what was shown on the tape, bundles of plastic were placed on her right side folded in thirds and she was responsible for moving the piles of plastic to her left side and unfolding them prior to the sewing procedure. The weight of these bundles was up to 20-25 pounds by her estimate. Because claimant was still a trainee at the time she last worked AUSTIN V. NEELY MANUFACTURING CO. PAGE 3 for Neely Manufacturing Company, she was unable to manufacture sufficient numbers of product to qualify for piece rate and was paid at minimum wage. Claimant first missed work with Neely Manufacturing Company on May 22, 1987; this was also the first date she saw her treating physician, K. A. Garber, M.D. She testified that, approximately three weeks prior to that date, she began having problems with her right upper extremity. At first, she found her hand "going to sleep" and then her shoulder began causing pain. Dr. Garber gave claimant an injection on May 22 and authorized her to return to work on May 26, 1987. Claimant did not do so because of continued pain which she described as causing an inability to lift her arm. She again saw Dr. Garber on May 29, June 24, July 13, July 22, August 5, September 4, October 10 and November 9, 1987. During this time, claimant continued to complain of shoulder and arm problems, testifying that she was unable to lift, extend her arms, sew at home (without resting her arm), or perform such normal duties as folding blankets or hanging laundry. Dr. Garber released claimant to return to work with restrictions on October 7, 1987. His letter to an insurance carrier of that date suggested that she talk to her employer to see if anything was available that would not require abduction or extension of the arm, and noted that if she could do work with her arms in front of her and at waist or chest level, perhaps she could work; however, he also in that letter opined that claimant was "disabled from her previous occupation as a sewing machine operator," but further noted that she was gradually improving and that he anticipated an eventual satisfactory recovery for which he was unable to give a time frame. Dr. Garber also referred claimant to David L. Friedgood, M.D., for neurological consultation. Dr. Friedgood issued a report of June 19, 1987 in which he expressed an impression of cervical strain syndrome with pain in the right arm. Dr. Friedgood found no specific neurological abnormality nor any evidence of radiculopathy or neuropathy. He recommended continuation of physical therapy. While noting that claimant was tender to manipulation of her right shoulder and elbow, no specific abnormality was found. An x-ray report was prepared in June, 1987 (the date is difficult to read, but appears to be either June 29 or 31, 1987). Findings were of minimal disc space narrowing at the C5-6 level, otherwise an unremarkable cervical spine series and normal examination of the right shoulder. The report was prepared by Mary A. Christensen, M.D. Claimant was also seen for evaluation on February 1, 1988 by John A. Grant, M.D. In an orthopaedic report of February 8, 1988, Dr. Grant noted what appeared to be full range of motion of the neck with no particular discomfort in extremes of motion and full passive range of motion of the right shoulder, but with some distress mentioned with active range of motion. There was no indication of muscle weakness, atrophy, reflex abnormality or loss of sensation. Dr. Grant opined: AUSTIN V. NEELY MANUFACTURING CO. PAGE 4 It is my feeling that this woman has evidence of rotator cuff tendinitis that commenced in association with the job she held at Neeley Manufacturing Company. I think it is distinctly possible that the work she describes could be the approximate cause [sic] of her symptoms, or at least certainly would create an aggravating situation with reference to this condition. (Exhibit 1, page 3) Dr. Grant also wrote Mr. Thune on April 26, 1988 as follows: I have reviewed the video tape demonstrating the work Mrs. Austin does and I feel it is possible for her to try resuming that type of employment but perhaps with some modifications. Certainly the repeat activity in the abducted position with the right arm during the sewing procedure probably aggravates what I feel is a chronic tendinitis. I would not place any major permanent restrictions on her activities other than limiting the amount of work she does with the arm in an abducted position. It may be that she will have to modify her activities to some degree if she is to do the same repetitious activity in order to avoid flare of symptoms. Despite the fact that it would help to limit constant arm abduction, I do not think she has any significant permanent functional impairment at this point. I have not other medical management to suggest at this time and I feel that at the time of my examination of her she probably had reached maximum improvement. This is in view of the fact that she had been off work for a period from 5/21/87 to the present time. (Exhibit 1, page 1) Claimant further testified that she is not currently undergoing treatment for her arm or neck and that there has been a substantial improvement in her condition. Nonetheless, she indicated that she continues to have good and bad days, with some pain every day. She does not believe she could return to work with the defendant because of the requirement that she hold her arm up. Claimant agrees that she can work as a supervisor, assistant manager or inspector. However, she is currently not looking for a job, since she and her husband have only one automobile. Claimant testified further that she did not notify defendant employer of her belief that her physical problems were work-related until after being discharged. She indicated that she did not tell Darlene McCarty that she would soon return to work because her injuries were not work-related. She testified that at first she believed her problems were related to arthritis or bursitis and so did not consider the problems to be work-related. During the weeks prior to May 22, 1987, claimant undertook no unusual activities or projects at home and suffered no prior shoulder pain. AUSTIN V. NEELY MANUFACTURING CO. PAGE 5 Phyllis Womble testified that she has been a claim representative or the Kemper Group since March, 1987. She had responsibility for investigating workers' compensation claims, including that of claimant. She testified to the procedure by which preliminary decisions as to liability are made and testified that a decision was made that claimant's injuries had not been shown to be work-related. She noted in her testimony that Dr. Garber's office notes did not mention a work injury and that Dr. Grant's report of February 8, 1988 substantially post-dated the decision to deny this claim. Factors considered in the denial of the claim included doctor's notes, information provided by Neely Manufacturing Company, witnesses (including Ketchum, McCarty and Cheryl Fetters) and claimant's statement. This included McCarty's report that claimant indicated to her that her injuries were no work-related. Darlene McCarty testified that she has worked for Neely Manufacturing Company in payroll and accounts receivable for many years and has known claimant for many years. She testified that she had a general conversation with claimant concerning her injuries in which claimant indicated that she had hurt her arm off work, would remain off work "a few days" and did not believe that she had injured herself while in the course of her employment. APPLICABLE LAW AND ANALYSIS An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(l). 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 supreme court of Iowa in Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934) at 731-32, discussed the definition of personal injury in workers' compensation cases as follows: While a personal injury does not include an occupational disease under the workmen's Compensation Act, yet an injury to the health may be a personal injury [Citations omitted.] Likewise a personal injury includes a disease resulting from an injury .... The result of changes in the human body incident to the general processes of nature do not amount to a personal injury. This must follow, even though such natural change may come about because the life has been devoted to labor and hard work. Such result of those natural changes does not constitute a personal injury even though the same brings about impairment of health or the total or partial incapacity of the functions of the human body. AUSTIN V. NEELY MANUFACTURING CO. PAGE 6 .... A personal injury, contemplated by the Workmen's Compensation Law, obviously means an injury to the body, the impairment of health, or a disease, not excluded by the act, which comes about, not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee. [Citations omitted.] The injury to the human body here contemplated must be something, whether an accident or not, that acts extraneously to the natural processes of nature and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. The claimant has the burden of proving by a preponderance of the evidence that the injury in May of 1987 is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist 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 Co., 261 Iowa 352, 154 N.W.2d 167 (1960). 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). 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 v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960), and cases cited. The evidence in his case establishes that claimant did not suffer from shoulder problems until the several weeks leading up to her visit with Dr. Garber on May 22, 1987. While she had some preexisting neck problems, there is no indication that they AUSTIN V. NEELY MANUFACTURING CO. PAGE 7 caused her to lose work or otherwise seriously interfered with her ability to remain gainfully employed. This deputy believes and holds that claimants tendinitis or rotator cuff problems were at least aggravated or "lighted up" by this employment, and thereby arose out of and in the course of that employment. As has been seen, Dr. Grant has opined that a causal connection existed between the work and the injury, at least as to aggravation. This is the only medical evidence in the record as to the causation issue and is accepted by this deputy, as accurate. Since it is found that claimant has suffered an injury arising out of and in the course of her employment and that the injury is causally connected to disability, the parties' stipulation as to temporary total disability/healing period entitlement comes into play. That entitlement has been stipulated to be from May 21, 1987 through February 1, 1988. The medical evidence in this case shows that claimant has evidence of rotator cuff tendinitis as found by Dr. Grant. Dr. Garber indicated in his report of October 7, 1987 that he originally felt claimant had a bursitendonitis of the shoulder, but never commented as to his diagnosis as of the October 7 letter. However, he did at that time feel that claimant was at least temporarily disabled from her previous occupation. Dr. Friedgood found a cervical strain syndrome with pain in the right arm without specific neurological abnormality. There were no findings on his part as to whether he considered this a permanent AUSTIN V. NEELY MANUFACTURING CO. PAGE 8 condition. Therefore, the only evidence in the record as to permanency of claimant's condition is that of Dr. Grant. While unwilling to place any major permanent restrictions on claimant's activities, he did diagnosis chronic tendinitis and suggested that claimant modify her activities to some degree to avoid repetitive flare-ups. Therefore, the evidence in this record does not establish any permanent disability resulting from the mild narrowing of the C5-6 disc, but does show chronic tendinitis of the right shoulder, and particularly the rotator cuff. The parties disagree as to whether this is a scheduled member disability or a disability to the body as a whole. This office has addressed that issue on numerous occasions, including recent reported decisions holding shoulder injuries to be body as a whole injuries in Shoemaker v. Adams Door Company, II Industrial Commissioner Decisions, 352 (1985) and in Decker v. Wilson Foods Corporation, I Industrial Commissioner Decisions, 781 (1985). It is held that claimant's chronic tendinitis is an injury to the body as a whole and, because of the continued restrictions against repetitive work with the arm in an abducted position, it is a permanent injury. Functional disability 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 later 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 employeeOs 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. AUSTIN V. NEELY MANUFACTURING CO. PAGE 9 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 disability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 8, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985). Even though claimant was still a trainee at the time she discontinued employment with Neely Manufacturing Company, she was discharged from her position because of an inability to perform her job due to the industrial disability. The record does show that there would be at least some sewing positions that claimant would be unable to fill, even though there are perhaps others which she could (for example, her testimony reflects that she spent substantial time sewing lace and shoes and there is. no showing that this could not be done without excessive work with the arm in an abducted position). Defendant employer was unable to make work available to claimant given her limitation, even though that limitation is fairly minor. Even though claimant is not now working, the record does not indicate that she is highly motivated to return to work. It is obvious that many, many people are able to maintain employment even without a personal automobile. Given claimant's age and work experience in sewing, supervision, restaurant work and lower management, given further the restrictions which she is now under relative repetitive work with the arm in an abducted position, given further her minimum wage status at the time of injury, and based further on the facts and analysis set forth in this decision, the deputy finds and concludes that claimant has, by reason of lier work-related injury, suffered an industrial disability of three percent of the body as a whole. Joint exhibit 3 shows total medical bills of $1,479.09, which total is stipulated to be fair and reasonable. The only evidence in the record shows that the treatment was reasonable and necessary and the only dispute is whether the expenses are causally connected to the work injury. A review of the medical bills indicates that each has been incurred by reason of the injury and the injury has already been found to be causally connected to the employment. Therefore, claimant shall be awarded medical expenses of $1,479.09. Similarly, claimant shows mileage expenses of 520 miles. While it seems somewhat suspicious that each trip was for exactly 20 miles, defendants have not chosen to challenge the exhibit. An award shall also be made for mileage expenses. Claimant also seeks penalty benefits under Iowa Code section 86.13. Penalty benefits may be allowed if a delay in AUSTIN V. NEELY MANUFACTURING CO. PAGE 10 commencement of benefits occurs without reasonable or probable cause or excuse. The first medical evidence connecting up the employment and the injury was that of Dr. Grant on February 8, 1988. Prior to that, defendants believed in good faith that claimant did not assert her injuries to be work-connected by reason of her statements to and as reported by Darlene McCarty. It is held that defendants had reasonable cause to believe that there might be no liability on this claim. Therefore, penalty benefits shall not be awarded. FINDINGS OF FACT Therefore, based on the evidence presented, the following ultimate facts are found: 1. Claimant was employed by defendant Neely Manufacturing Company on May 22, 1987. 2. Claimant first missed work on May 22, 1987 after suffering shoulder and upper right extremity pain for approximately three weeks. 3. Claimant's shoulder and arm pain was caused by rotator cuff tendinitis and was either caused, aggravated or "lighted up" by the employment. 4. Claimant was off work for healing purposes from May 21, 1987 through February 1, 1988, at which time she had reached maximum recovery. 5. Claimant's injury of May 22, 1987 resulted in the loss of her job with defendant Neely Manufacturing Company and disability to the extent that claimant is no longer able to perform the same work involving repetitive arm motion in the abducted position. 6. Claimant is not well motivated to seek further employment, although her condition has substantially improved since the date of injury. 7. Claimant's loss of ability to continue repetitive arm motions in the abducted position has caused a diminution of her earning capacity. 8. Claimant's rate of compensation has been stipulated to be $93.57 per week. 9. The commencement date for permanent partial disability has been stipulated to be February 2, 1988. 10. Claimant has sustained medical bills for which the fees charged are fair and reasonable and which were incurred for reasonable and necessary medical treatment causally connected to the work injury in the sum of $1,479.09. 11. Claimant has mileage expenses of 520 miles required for her medical treatment connected to this injury. AUSTIN V. NEELY MANUFACTURING CO. PAGE 11 12. Defendants had reasonable cause to believe that this injury might not be compensable under the Workers' Compensation Act. 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 effective May 22, 1987. 2. Claimant's injury was an injury to the body as a whole. 3. Claimant's injury directly caused a healing period from May 21, 1987 through February 1, 1988 (36 weeks, 3 days). 4. Claimant's injury caused medical expenses of $1,479.09 and mileage expenses for 520 miles. 5. Claimant has established a permanent partial industrial disability of three percent of the body as a whole. 6. Claimant is not entitled to penalty benefits under Iowa Code section 86.13. ORDER THEREFORE, IT IS ORDERED: Defendants are to pay unto claimant thirty-six point four two nine (36.429) weeks of healing period benefits at the stipulated rate of ninety-three and 57/100 dollars ($93.57) per week totalling three thousand four hundred eight and 66/100 dollars ($3,408.66). Defendants are to pay unto claimant fifteen (15) weeks (three percent of 500 weeks) permanent partial disability benefits at the stipulated rate of ninety-three and 57/100 dollars ($93.57) per week totalling one thousand four hundred three and 55/100 dollars ($1,403.55). Defendants shall pay unto claimant medical expenses of one thousand four hundred seventy-nine and 09/100 dollars ($1,479.09) and mileage expenses of one hundred nine and 20/100 dollars ($109.20). This award shall be paid in a lump sum together with statutory interest pursuant to Iowa Code section 85.30. Costs of this action are assessed against defendants pursuant to Division of Industrial Services Rule 343-4.33. Defendants shall file a Claim Activity Report upon payment of this award pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 15th day of December, 1988. AUSTIN V. NEELY MANUFACTURING CO. PAGE 12 DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Dennis L. Hanssen Attorney at Law Suite 111, Terrace Center 2700 Grand Avenue Des Moines, Iowa 50312 Mr. Paul C. Thune Attorney at Law Suite 300, Fleming Building P.O. Box 9130 Des Moines, Iowa 50306-9130 BEFORE THE IOWA INDUSTRIAL COMMISSIONER GENE POUSH, Claimant, VS. File No. 848302 T-L ALLEN COMPANY, A R B I T R A T I 0 N Employer, D E C I S I 0 N and ALLIED MUTUAL INS.CO., Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by the claimant, Gene Poush, against T-L Allen Company, employer, and Allied Mutual Insurance Company, insurance carrier, defendants, to recover benefits as a result of an alleged injury sustained on December 22, 1986. This matter came on for hearing before the undersigned deputy industrial commissioner in Des Moines, Iowa, on January 26, 1990. The record consists of the testimony of the claimant, William John Augustine, Mike Broughton, and Clark Williams; and joint exhibits 1 through 10. ISSUES The issues the parties set out in the prehearing report are: 1. Whether claimant's injury arose out of and in the course of his employment; 2. Whether claimant's alleged disability is causally connected to his injury; 3. The nature and extent of claimant's disability; and 4. Whether claimant is entitled to 85.27 benefits based on lack of causal connection. POUSH V. T-L ALLEN COMPANY Page 2 STATEMENT OF THE CASE Claimant testified both personally and through his deposition taken on April 6, 1988. Claimant said he graduated from high school in 1960 and became an apprentice ironworker in 1963. He stated he has had no other formal education since high school. Claimant described the nature of an ironworker's job. He is a member of the Ironworkers Union. Claimant indicated that he worked out of the union hall and usually there is work approximately nine months out of the year. He testified that usually there is a layoff in December which lasts through March when there is a break in the weather. Claimant described the Jewish Center project on which he worked on and off for several months in 1986. He said he and another person were basically working on this project alone in December trying to finish it. Claimant described the job and the use of block and tackle, come-alongs, and tools to put the iron up as a "bust-your-butt" type of thing. (Jt. Ex. 1, p. 11) Claimant testified that the nature of the work on this Jewish Center project involved a lot of lifting and the detailed ironwork was harder than normal due to the iron being heavier to support the glass incorporated in it. Claimant revealed he strained himself several times during December 1986 while working on this Jewish Center project. Claimant elaborated that everything had to be pulled up by rope or tag line rather than by crane because the project was enclosed and a crane could not be used. Claimant testified that on or around December 22, 1986, he was working with heavy iron and strained his back and the pain would not go away. Claimant said he thought the pain of the strain would go away. Claimant stated he had a few days off for the holidays. Claimant emphasized he had only returned to the job to finish a balcony handrail made of aluminum. Claimant related he notified defendant employer of his injury. Claimant stated that the project was finished immediately after the Christmas holiday and he and defendant employer's owner, Mike Broughton, cleaned up the premises. Claimant testified that the usual layoff occurred at the end of December 1986 when the Jewish Center project was finished. Claimant said that the more he laid around, the worse his back became. Claimant said he filed for and collected unemployment benefits for January and February. The claimant emphasized he did not take his full entitlement to unemployment benefits because he went to the doctor and was unable to work. Claimant acknowledged that he has done supervisory-foreman work since he received his journeyman card in 1967 and has actually worked in that position at least a third of the time. POUSH V. T-L ALLEN COMPANY Page 3 Claimant said he went to Larry D. Hirschy, D.C., on March 2, 1987. Claimant revealed he did not tell defendant employer at the time because claimant did not want to cause his employer any trouble. Claimant thought he was going to be okay. Claimant stated that it appeared matters were worse than he thought so he told defendant employer who told claimant to see a medical doctor. Claimant and defendant employer filled out the report of injury together. Claimant said his business agent referred him to G. L. Elliott, M.D., and claimant described his two weeks of treatment. Claimant testified he then received a call from defendant insurance company and was referred to a Dr. Rasmussen. claimant stated he was sent through therapy for two weeks. Claimant indicated he talked to the insurance company and told the representative that traction was not helping him and he wanted to go back to Dr. Elliott. Claimant said the insurance company indicated to him that Dr. Rasmussen was releasing claimant to go back to work. Claimant explained he was surprised because Dr. Rasmussen hadn't seen him for some time. Claimant related he tried to go back to work at an Osceola project in April or May 1987 and lasted two days. Claimant said this was his first work since the Jewish Center project was completed at the end of December 1986. Claimant said he was unable to do the work and his back bothered him and the pain got worse. Claimant said he then went home. Claimant said he had another job putting up railing in Des Moines in the summer of 1987. Claimant said he finished this job but did not get through it in the best condition. Claimant described other small jobs he was on in 1987. Claimant indicated he was put on an airport job, which was to be an easy job for him. Claimant emphasized the union was trying to get him an easy job, which was to hook up loads of steel to be lifted. Claimant indicated the job involved climbing on the roof and putting up steel rafters. Claimant explained he could not do the work and quit after two hours. Claimant described the October 1987 Centerville job, which was the last job claimant has had since his December 1986 injury. Claimant said he had trouble climbing a ladder and doing precasting and welding. Claimant emphasized these tasks are normally easy for an ironworker. He stated he was on this job one week. Claimant said he worked approximately 28 days in 1987. Claimant explained his back goes out periodically and it feels like a rupture. Claimant related one incident in 1987 in which his back went out and he had to crawl on his knees to the bathroom. Claimant denies any injury hauling firewood. He said his brother brought him a load of wood and they both unloaded it at claimant's residence. Claimant said he had mentioned to Dr. Hirschy that hauling and cutting wood, washing dishes and doing household chores irritated his back. POUSH V. T-L ALLEN COMPANY Page 4 Claimant was asked regarding any prior injuries and he described certain events that were insignificant and have no bearing on this case and will not be related herein. Claimant said he went to David J. Boarini, M.D., in December 1987, which doctor suggested a work hardening course. Claimant revealed defendant insurance company said they would not pay for it. Claimant said the insurance company had Clark Williams, a rehabilitation specialist, contact him. Claimant indicated this resulted in claimant being sent to a low back institute around April 1989, like the one Dr. Boarini suggested two or three months earlier. Claimant indicated his time at the clinic was cut short a week, but he thought he was on his way to recovery. Claimant said he called the union hall for light duty work. Claimant acknowledged he discussed setting up his own business since he wouldn't be able to hold a job. Claimant said he is a certified welder, which is part of his job of being an ironworker. Claimant said he also saw Robert C. Jones, M.D., who suggested a TENS unit, but the insurance company would not pay for it. Claimant emphasized Dr. Jones indicated he couldn't make a diagnosis without a myelogram. Claimant emphasized there are no advantages to him not working. Claimant said he needs approximately six more years to be entitled to union pension retirement. Claimant testified that he has borrowed several thousands dollars from various sources, including his father, son and a friend, in order to survive. Claimant indicated he has been sued for bills incurred since his injury, including nine months of delinquent rent. Claimant described the little welfare help he has received. Claimant said he has lost everything he owned. Claimant acknowledged he went to the University of Iowa Hospitals in September 1989 and was referred to a physical therapist for a $600 treatment program for which claimant could not pay. Claimant said he was to come back to the hospital in December 1989 for an evaluation but there was no money to pay the bill. Claimant contends the last bill was not paid and his credit was wiped out so he couldn't get into the hospital. Claimant understands he needs a myelogram which costs $1500. Claimant said he is currently receiving a disability pension from the union in the amount of $540 per month until he can work. He acknowledged this disability is based on his inability to do ironwork, but not just any job. POUSH V. T-L ALLEN COMPANY Page 5 Claimant emphasized he would like to do something. Claimant related he tried vocational rehabilitation and was told that, with his age and problems, he should file for social security disability. Claimant said he filed for social security disability and was denied. Claimant said the vocational rehabilitation gave him no satisfaction to go on. Claimant said he is doing exercises at home on a stationary bicycle and also with his son's nautilus weight machine. William Augustine testified that he has been an ironworker for 25 years. He said he has known claimant since 1965 and described claimant as a good hard working ironworker with a good reputation. Augustine indicated he worked with claimant one day on the Jewish Retirement Center project in October 1986. Augustine said this job was like any other job. In other words, it involved heavy lifting and putting in detailed ironwork. He said claimant had no complaints of back problems on that particular day. Augustine testified he next worked with claimant in October 1987 at a Centerville DOT maintenance job. He said claimant was having back problems going up and down the ladder and welding. He indicated claimant told him he couldn't do anything more. Augustine testified claimant said his back had been bothering him since he got hurt on the Jewish Center project. Augustine has not worked with claimant since the October 1987 Centerville job. Sam Morris testified he went to school with claimant and they have been long-time friends. He stated he never knew claimant to be out with back problems before October 1986. He said he sees claimant two or three times a week. He indicated claimant has trouble getting up and down. Morris indicated claimant has to sit or lay down when his pain becomes severe. Morris acknowledged he has never worked with claimant and does not know where the problem started. Morris testified he does not know what claimant has done in the last three years, but he does not believe claimant has worked during the last three years. Morris indicated claimant doesn't have a car and he takes claimant to the store. Mike Broughton testified he is the owner of T-L Allen Company, a steel erection company, which was a sole proprietorship until its incorporation on January 1, 1990. Broughton's testimony reaffirmed in many respects claimant's testimony as to the jobs and nature of the jobs claimant performed for him. Broughton acknowledged he personally worked with claimant in December 1986, which basically involved cleaning up the project, picking up the tools and getting out. Broughton admitted claimant told him he hurt his back while working on stairs at the Jewish Center job. Broughton acknowledged claimant moved more POUSH V. T-L ALLEN COMPANY Page 6 slowly and with a limp in December 1986, but he couldn't specifically recall the date. Broughton recalled that on the last two days of December claimant appeared to be getting around with no difficulty, but admitted the work was lighter these two days. Broughton indicated it is common for an ironworker's back to hurt some days more than others after a day of work. Broughton agreed claimant strained his back. Clark Williams, a rehabilitation consultant, said he was referred to claimant by defendants' attorney. Williams said claimant desired to go back to Dr. Boarini and the low back clinic. Williams admitted claimant wanted to go back to be an ironworker as he had three or four years to get a pension. Williams said claimant wanted to stay at the pain center longer than he did. Williams said he thought at that time claimant was feeling fairly decent. He stated claimant didn't know if he could work but wanted to possibly buy a business (muffler shop) or check out a welding job possibility. Williams testified he put matters on hold to let claimant explore opportunities. Williams stated claimant called him in August 1989 and said he had a flare-up and Williams told claimant to go back to the Iowa Methodist Medical Pain Clinic. Williams said that was the last he heard from claimant. Williams described various possible job opportunities in the region that claimant could try. Williams was reluctant to say claimant could go into construction work. Williams thought claimant could go back to work other than ironwork at a wage of $1.00 to $1.25 above minimum wage up to $10.00 per hour. Williams agreed claimant should not lie to an employer about his back condition, but should have a positive attitude. After further questioning, Williams said it could be a truism that if an employer knew claimant's back had gone out, claimant could not get a job. Williams also admitted holding a job once obtained, is also important. Williams emphasized claimant is motivated to be an iron-worker and is intent on getting back to work as an ironworker to solidify his pension. Larry D. Hirschy, D.C., testified by way of deposition on April 12, 1988 that he first treated claimant on March 2, 1987. He said claimant told him he hurt his back in December 1986 while at work and has been off work since that time. Dr. Hirschy also indicated claimant told him that while claimant was working around the house moving a piece of firewood, he suffered a reinjury of his low back injury that occurred in December 1986. (Joint Exhibit 10, Page 3 and 4) POUSH V. T-L ALLEN COMPANY Page 7 Dr. Hirschy described several tests he gave claimant, many of which were positive. He concluded after analyzing a test and seeing claimant's x-rays that claimant had a back injury which would take some time to work with and to allow him to heal. Dr. Hirschy opined claimant's symptoms originated with his December 1986 injury and that his injury could have been exacerbated or aggravated by any type of lifting or working. The doctor acknowledged that the office form on the back referring to whether the injury is from an accident is not filled out. Dr. Hirschy said claimant told him of the wood stacking or cutting incident that occurred approximately one week before his March 2, 1987 exam. He emphasized claimant's condition at the time was acute. Dr. Hirschy was then asked and answered: Q. Would you anticipate that if they were all as a result of something that happened in December that they would still be in an acute stage? A. I would anticipate if the injury was sufficient in December to cause some structural problems that an aggravation of that structural problem would produce an acute exacerbation. (Hirschy Deposition, Joint Exhibit 10, pages 13-14) Robert C. Jones, M.D., a neurologist, testified by way of deposition taken May 15, 1989, that he performed an independent evaluation of claimant in May 1987. He opined at that time claimant had a low back strain which was developing into a chronic low back strain. The doctor said he injected Novocaine and Corticosteriodes in the tender area of claimant's low back on the right side. Dr. Jones said claimant was not able to return to his field of ironwork. The doctor stated he was not certain whether claimant was out of his healing period, but felt claimant might get better with continued treatment. Dr. Jones said he saw claimant in August and October 1988 and claimant continued to have low back complaints. The doctor felt at that time claimant needed to lose weight and find a light job, needed a vocational rehabilitation and exercise program, and a physical capacity evaluation. The doctor felt claimant could not return to work and his general diagnosis was chronic low back pain and concern about chronic pain syndrome. Dr. Jones described chronic pain syndrome as: "This is acute pain that develops into chronic pain whereby the patient may have other effects from the pain such as depression and so forth and deconditioning because of the lack of activity. (Jones Dep., Jt. Ex. 9, p. 8) Dr. Jones said claimant had lost ten pounds by his October 1988 exam. The doctor said on the October 1988 exam he found a 5 degree restriction in forward bending and in left lateral flexion. Dr. Jones estimated a 3 to 5 percent physical impairment. Dr. Jones said this was a somewhat minimal rating. POUSH V. T-L ALLEN COMPANY Page 8 Dr. Jones acknowledged that on the August 16, 1988 exam, all of claimant's range of motion was normal. Dr. Jones further acknowledged that on the May 1987 visit he did not find anything of significance objectively to account for claimant's condition. David J. Boarini, M.D., a neurologist, testified through his deposition taken June 26, 1989 that he first saw claimant in December 1987, at which time claimant complained of low back pain. He said claimant related a work injury in December 1986. Dr. Boarini stated a December 1987 exam revealed an obese individual with normal range of motion in his back, a normal neurological exam and normal.x-rays. Dr. Boarini concluded no impairable problem but thought claimant should get into a work hardening program before going back to regular work. Dr. Boarini testified he next examined claimant in May 1989 at which time he thought claimant's low back pain was brought on by claimant's obesity and probably a bit by his age. He said claimant's examination was normal with no significant loss of weight. He concluded claimant should lift no more than 40 pounds routinely and no more than 80 pounds maximally at least until he finished the work hardening program. He said claimant did not show up for his June 1989 appointment and he did not know the reason why. Dr. Boarini said he looked over the records of the Iowa Methodist Low Back Institute and then stated: Well, they set out that he could work in somewhere between heavy to medium work, defining medium work as maximal occasional lifting up to fifty pounds, frequent lifting of up to twenty-five pounds, on his feet six to eight hours a day, that he can do a little more than that. I would say that is an accurate description of how he was when I saw him on May 1st -- or May llth, rather. I think if he were to lose a substantial amount of weight and continue the exercise program, it might be that we would not have.to have those restrictions on him either. (Boarini Dep., Jt. Ex. 2, pp. 7-8) Dr. Boarini then was asked and answered: Q. Is this much different than it was when you saw him the first time? A. No. Q. Basically the same? POUSH V. T-L ALLEN COMPANY Page 9 A. Yes. Q. The history that you had when you first saw him was that he had been off work for a period of time after a job had concluded in December of 1986? A. That's correct. Q. A person of Mr. Poush's physical stature if he were off work and inactive for a period of months or so, what would his condition be likely to be? A. Worse than if he was active. (Boarini Dep., Jt. Ex. 2, p. 8) The doctor said claimant did not have an impairable problem. Dr. Boarini admitted he had no weight figures of claimant at any time. Dr. Boarini defended his conclusion that claimant's condition was caused by claimant's obesity and his age rather than on-the-job injury by stating: "I don't think there was an injury per se. He told me that he had the gradual onset of low back pain during that job, but that there was no specific injury." (Boarini Dep, Jt. Ex. 2, p. 11) Dr. Boarini was than asked and answered: Q. Your letter states the difficulties began when he was doing some heavy lifting on the job and had the gradual onset of low back trouble; is that correct? A. I don't want to argue about what I said in the letter or didn't say. What I'm telling you is what the patient told me was that he had the gradual onset. My notes say that he was doing some heavy lifting that came on slowly, no injury. He was able to finish the job and was subsequently laid off. .... Q. So you're saying now if he was fat and could lift iron and after he hurt his back he was still fat and could not lift iron, the reason he can't lift iron now is because he is obese? A. That's correct. When someone is forty-seven years old and weighs two hundred and forty-five pounds, they're going to increasingly year after year have more trouble with their low back. It is not because of a lifting incident at one specific time. It's because they're now middle aged, obese and in poor physical POUSH V. T-L ALLEN COMPANY Page 10 condition; and that is what is this gentleman's trouble. Q. So it is mere coincidence that he was doing heavy lifting and he had these difficulties or felt pain related to that heavy lifting? A. It's not a coincidence, but there was no injury done at the time. You become less and less able to do things like heavy lifting when you carry a large amount of weight and get older. Q. If he felt pain after he lifted a piece of iron that was too heavy, are you telling me that pain had nothing to do with his back problem which he now suffers? A. No. I'm telling you that that did not cause an injury which is still causing him to have trouble. Q. Are you telling me that Mr. Poush can perform as an ironworker -- A. I'm not telling you that. Q. Let me finish the question, Doctor. Is it your statement that he can perform as an iron worker if he can lift up to eighty pounds? A. I'm not telling you that either. (Boarini Dep., Jt. Ex. 2, p. 11-13) Dr. Boarini emphasized claimant's condition is brought about by obesity and deconditioning. X-rays taken July 29, 1989 at the Iowa Methodist Hospital, Department of Radiology, reflect: 08-01-89 Computerized axial tomography of the lumbar spine; multiple axial sections were taken from the L3 through Sl level. The L3-4 level shows a moderate generalized disc bulge with compression of thecal sac at this level. Displacement of the exiting four nerve roots bilaterally is suspected. The L4-5 level shows a mild disc bulge with mild canal stenosis associated with ligamentous and articular facet hypertrophy is present. POUSH V. T-L ALLEN COMPANY Page 11 The L5-Sl level shows a midline disc herniated with slight extension to the right suspected and some displacement of the Sl nerve root is suspected although not as clearly defined. No other abnormalities are noted. Impression: The prominent disc bulge at the 3-4 level and the probable disc herniation at the 5-1 level are noted. MRI scanning would be of more help if confirmation of the extent of these two lesions and the involvement of adjacent nerve roots. (Jt. Ex. 8, p. 3) The Iowa Methodist report on May 24, 1989 reflect that the patient is motivated and wants to continue with the strengthening and flexibility program after discharge to continue his improvement. These records further reflect: The patient was encouraged to look at each jobs physical demands that he will encounter and to use good body mechanics and good judgement in not overexerting himself. To use equipment to assist him with any heavy work and to be selective, if possible, in his first jobs so he does not overexert himself in his eagerness to return to his trade. At discharge, patient was not happy to have received a weight limitation of 80 pounds maximum and 40 pounds frequent by you; patient would like to have had no restriction. I informed him that a restriction is for his benefit as it would help him not over exceed his physical abilities and maybe in time he could handle heavier weight but it would depend upon at what range he was handling the materials. The patient would have a difficult time handling heavy weight above his shoulder height and below his knees. (Jt. Ex. 8, p. 12) Iowa Methodist Low Back Institute records on August 15, 1989 reflect: As to Mr. Poush's age and preceding description of prior instances of increasing low back pain which have been becoming more intense and more frequent in occurrence and the radiculopathy discomfort into the left lower extremity, I strongly feel that he has some form of disc involvement or some form of nerve root POUSH V. T-L ALLEN COMPANY Page 12 irritation that would warrant some type of MRI or CT scanning to rule out a disc injury. (Jt. Ex. 8, p. 9) Clark Williams, the rehabilitation consultant, prepared a report dated July 5, 1989, in which one conclusion is of particular note, namely: Mr. Poush impressed this consultant as an individual who has a desire to return to work for his current employer or working out of the Local Ironworkers' Union Hall as he recognizes the fact that his salary is quite good and he realizes that he would have difficulty in earning that salary elsewhere without further training. (Jt. Ex. 8, p. 30) On April 11, 1988, Dr. Boarini wrote a letter stating a zero impairment rating and recommended work hardening and weight loss. On August 7, 1988, he wrote that claimant was back into his office July 26, 1989. He said x-rays showed a "somewhat prominent disc bulge at L-3, 4 and a possible disc herniation at L-5, S-1." He did not think "the present episode is directly related to his previous accident." (Jt. Ex. 8, p. 36) On October 12, 1988, Dr. Jones wrote: I feel this gentleman has a chronic low back strain with symptoms that wax and wane. He needs a very conscious program of weight reduction, vocational rehabilitation and an exercise program. A MRI scan of the low back would be desirable. Because of the length of time this has all been going on he may have developed a chronic pain syndrome. His neurologic findings were normal and I feel that he has a 5 degree restriction in forward bending and 5 degree restriction in left lateral flexion. I would estimate his physical impairment to be in the 3% to 5% range. I have also suggested a TENS unit:to help him with his discomfort and this could help him to become more active. To establish what he can and can't do a physical capacity evaluation could be done and this would give an objective reading as to his capabilities. (Jt. Ex. 8, p. 71) POUSH V. T-L ALLEN COMPANY Page 13 On December 7, 1989, Dr. Jones' medical exam report reflects: As a result of my examination I find the patient to be totally disabled by bodily injury or disease so as to be prevented thereby from engaging in any further employment as an Iron Worker or as any other type of Building Trades Craftsman, and that such disability will be permanent and continuous during the remainder of his life. .... Diagnosis: Chronic recurring low back strain. History: Since hurt back on job. Date Total Disability Started: ... October 187 (Jt. Ex. 11) APPLICABLE LAW AND ANALYSIS Claimant has the burden of proving by a preponderance of the evidence that he received an injury on December 22, 1986 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 December 22, 1986 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. 0. 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 IN.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 POUSH V. T-L ALLEN COMPANY Page 14 516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 N.W.2d 128. If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." The opinion of the supreme court in Olson v..Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251 (1963), cited with approval a decision of the industrial commissioner for the following proposition: Disability * * * as defined by the Compensation Act means industrial disability, although functional disability is an element to be considered.... In determining industrial disability, consideration may be given to the injured employee's age, education, qualifications, experience and his inability, because of the injury, to engage in employment for which he is fitted. * * * * 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). Iowa Code section 85.34(l) provides that if an employee has suffered a personal injury causing permanent partial disability, the employer shall pay compensation for a healing period from the day of the injury until (1) the employee returns to work; or (2) it is medically indicated that significant improvement from the injury is not anticipated; or (3) until the employee is medically capable of returning to substantially similar employment. This 47-year-old claimant is a high school graduate and has been an ironworker for the majority of his adult life. Claimant's current skills are as an ironworker, which includes certification as a welder. It is undisputed that the work as an ironworker is considered heavy duty work. The ability to lift, pull and carry very heavy objects, climb, stand and weld, are very important parts of an ironworkers' job. Claimant was an employee of defendant employer on the alleged date of his injury, POUSH V. T-L ALLEN COMPANY Page 15 December 22, 1986. There has been considerable questioning as to the exact date of the injury. It appears defendants are questioning whether a specific trauma occurred, especially since it appears claimant did continue working additional days in December of 1986 and several days in the spring and summer of 1987. Defendants contend that claimant injured himself while lifting firewood in March 1987 which more than likely resulted in claimant's complaints. The undersigned believes the claimant received a low back injury in December of 1986 while working on the Jewish Center project. The nature of the job and heavy lifting and welding required is undisputed. Defendant employer acknowledged claimant told them he hurt himself in December 1986. December 22 is a Monday. Claimant was off December 23, 24 and 25. Part of this was during the Christmas holidays. It would appear, looking at the records, that claimant normally would not be off December 23, but it is reasonable that claimant was off December 24 and 25 for the holidays and, in fact, returned to work the day after Christmas. Being off the three days helped claimant in his attempt to recuperate. It is undisputed that an ironworker obviously has pains and bruises as a part of his job. Claimant thought his extra strain and lifting steel on December 22, 1986 was another one of those occasions. Claimant tried to work through this hoping, as often in the past, his injury was only a short term sprain. Claimant is motivated. He didn't want to upset the employer with any claim. Claimant continued to work in order to finish the job by the end of December 1986. The usual layoff in January and February and possibly March was again approaching and, in fact, occurred. Claimant attempted to take advantage of this layoff period to recuperate. Claimant obviously isn't a complainer. Claimant continued to live and support himself as a single sole provider. Claimant helped unload some cut wood and twisted wrong, aggravating his already injured back in March 1987. Claimant finally concluded he should seek medical help as he was getting worse. The undersigned finds claimant received a work-related low back injury on December 22, 1986 while lifting, welding and working on a steel stairway at the Jewish Center project and missed work on December 23. Claimant was also off the project because of the holidays on December 25 and possibly December 24. The medical evidence leaves much to be desired. It appears part of the problem is the lack of apparent medical services and continuity, or sufficient follow-up or suggested medical services being done. There is no medical doctor specifically saying claimant's condition is causally connected to a specific injury. It appears the fact claimant didn't seek medical help until March adds to this causation issue. one doctor in particular, Dr. Boarini, leaves a clear impression that since, in his opinion, there is no specific identified single trauma, there is no POUSH V. T-L ALLEN COMPANY Page 16 injury. He blames claimant's obesity and lack of conditioning as a cause of claimant's problem. The undersigned believes the position of Dr. Boarini is contrary to medical reality. (Dr. Boarini's dep., pp 17-23) The longer a person is laid up with an injury and unable to work, the more severe the weight problem and deconditioning can become. The undersigned must completely discount Dr. Boarini's medical conclusions. His medical credibility in this case was further destroyed by his testimony in which he wants the undersigned to believe that, if claimant was fat and could lift iron before December 22, 1986 and was still fat and could not lift iron after claimant hurt his back, the reason claimant can't lift is because he is obese. Dr. Boarini has no record of claimant's weight before his injury or anytime after his injury in December 1986 nor did he take his weight or determine it at any time during his treatment of the claimant. Dr. Robert Jones opined on October 12, 1988 a 3 to 5 percent physical impairment to claimant's low back. Joint exhibit 11 reflects a report from Dr. Jones where he noted claimant was totally disabled from employment as an ironworker or as any other type of building trade craftsman and that this disability would be permanent. Dr. Jones wrote the same or similar diagnosis that he had made in 1987 and 1988, namely, chronic recurring low back strain. It is not unusual for the type of injury claimant incurred to be easily aggravated and/or gradually become worse. It is often hard to define and detect the total nature of type of injury, especially without several tests or procedures including x-rays, myelogram, CT scan and MRI. Although there were x-rays originally taken, there was at least one comment as to their poor quality in some respects. Claimant has been complaining since December 22, 1986 of his low back problem. Claimant has not been performing the normal duties of an ironworker for over two years. There has been nothing materially shown that claimant has received another injury to cause his current condition other than his December 22, 1986 work injury at the Jewish Center project. Any lifting, twisting, sneezing, sitting or sleeping movements can aggravate his condition. These have not caused another injury. The x-ray report (jt. ex. 8, p. 3) indicates a midline herniated disc and a prominent disc bulging at the L3-4 level. No doctor's testimony addresses this as this x-ray was taken after the depositions. No myelogram or MRI was ever taken by the testifying doctors. Dr. Jones' December 7, 1989 report refers to the date claimant's total disability started. It originally had the date of December 27, 1986, and this date was crossed out and October 1987 was inserted. Defendants appear to contend this means a new injury since the December 27, 1986 date is close to claimant's December 22, 1986 injury. Taking the evidence as a POUSH V. T-L ALLEN COMPANY Page 17 whole, it is clear to the undersigned that claimant tried to work and last worked a few hours in Centerville in October 1987. It is obvious this is the reason for the October 1987 date signifying the beginning of claimant's total disability as far as Dr. Jones is concerned. claimant has not worked since that date. The December 1989 report was made by the doctor to support claimant's claim for total disability benefits from the ironworkers disability program. It is the prerogative of the undersigned to determine disability. The doctor determines impairment. The doctor obviously is trying to point out that claimant is not able to perform the duties the doctor understands are necessary to be performed by an ironworker and, therefore, is disabled as to that particular occupation. Taking all of Dr. Jones' testimony and reports into consideration, the undersigned believes Dr. Jones' position at a minimum is that claimant cannot perform his job as an ironworker because of his condition. The undersigned finds claimant's current low back condition is causally connected to his low back injury on December 22, 1986. The undersigned further finds claimant has a permanent impairment. A question looms in the undersigned's mind whether claimant has completely healed and, if so, when the maximum healing was reached or whether claimant is still recovering. Claimant needs more thorough medical attention and tests in a timely manner to be paid for by defendants. The medical personnel should involve persons who are not prejudice due to this decision or their prior conclusions which may have been questioned herein. Claimant has a high degree of motivation to return to ironworker-type work so he can finish his five to six years as an ironworker and be entitled to a reasonable pension. Claimant's good motivation has been referred to several times in the record, including referral by defendants' vocational rehabilitation expert. of particular note was claimant's unhappiness over the reality of his restrictions placed on him by the Iowa Methodist Low Back Institute. (Jt. Ex. 8, p. 12) Claimant wanted to return to his trade. Claimant has many other reasons to be motivated. He is living in very poor conditions and has lost literally every asset he owned at the time of his injury. He is heavy in debt to relatives, friends and others in order to survive. It is not unreasonable for claimant to set his aim on returning to, work as an ironworker rather than an attempt to get any low paying job for the sake of obtaining one. He is receiving $606 per month gross union disability benefits for being disabled as an ironworker. If he obtained a job at $4.00 per hour, which is above minimum wage, he would come out about the same. Defendants' rehabilitation expert indicates he could find claimant a job if given the chance. Obviously, it would be much POUSH V. T-L ALLEN COMPANY Page 18 less than claimant's ironworker wage and would not help claimant to obtain his ironworkers pension. Mr. Williams seemed disappointed that at least one of claimant's work hardening programs did not continue longer as claimant appeared to be making progress. The undersigned believes defendant insurance company pulled the financial carpet out from under claimant as to complete medical care more than once. Mr. Williams, under cross-examination, obviously concluded claimant cannot do the job of an ironworker. As to other jobs, Williams indicated claimant should be positive and not relate or disclose his back problems. Williams emphasized claimant should be honest. Williams isn't facing the reality of the marketplace. Being completely up front prevents many ultimate problems later. Claimant has enough current problems without getting into another predicament and lose his current disability payments even temporarily. The undersigned finds claimant has a permanent partial work-related impairment to his low back which was caused by his December 22, 1986 injury. There is no medical testimony as to the extent of claimant's healing period or when claimant reached maximum improvement, except joint exhibit 11. Claimant appeared to still be in the improving stage or possibility of improving when he went to the Iowa Methodist Low Back Institute. Joint exhibit 8, page 11, reflects a degree of improvement in claimant during his stay in the program up to his completion of the program on May 19, 1989. Claimant attempted a return to work on a few occasions in 1987. Joint exhibit 11 shows Dr. Jones noted claimant's total disability started in October 1987. Claimant has not worked since his Centerville job in October 1987. The undersigned finds claimant's healing period began January 2, 1987 and ended on and including October 15, 1987. Defendants shall be given credit for the 28 days that claimant worked in 1987. Benefits shall be payable at the rate of $244.56 per week. Defendants shall pay all of claimant's medical bills resulting from his December 22, 1986 injury. The greater weight of evidence indicates claimant is not able to perform his former job as an ironworker. There is insufficient evidence to show claimant is not employable at any job considering his skill as a certified welder. Claimant has not proven he is totally disabled. Based on the present record, claimant has lost a substantial earning capacity as an ironworker. Loss of substantial earnings is one thing to be taken into consideration in determining claimant's industrial disability. After considering all those elements in determining one's industrial disability, the undersigned finds claimant has an 80 percent industrial disability. POUSH V. T-L ALLEN COMPANY Page 19 FINDINGS OF FACT WHEREFORE, it is found: 1. Claimant injured his low back on December 22, 1986, as a result of lifting steel at the Jewish Center project of defendant employer. 2. Claimant's low back condition is the result of his injury on December 22, 1986. 3. Claimant has a permanent impairment to his body as a whole as a result of his December 22, 1986 work-related injury. 4. Claimant is no longer able to perform the duties of an ironworker as a result of his December 22, 1986 work injury. 5. Claimant incurred a healing period beginning January 2, 1987 to and including October 15, 1987, which involves 41 weeks against which there is a credit of 5.429 weeks (28 work days) of work. 6. Although defendants provided and paid for some medical services rendered to claimant, defendants failed to provide the necessary and sufficient services and tests to help claimant reduce the ultimate impairment and loss of earning capacity incurred by claimant as a result of his December 22, 1986 injury. 7. Claimant has a substantial loss of earning capacity as a result of his December 22, 1986 work-related injury. CONCLUSION OF LAW Claimant's low back injury on December 22, 1986 arose out of and in the course of claimant's employment. Claimant's low back condition and permanent impairment to his body as a whole is causally connected to his December 22, 1986 work-related injury. Claimant's ability to no longer perform his duties as an ironworker is causally connected to his December 22, 1986 work injury. Claimant incurred a net healing period of 35.571 weeks at the rate of $244.56. Claimant has an 80 percent industrial disability. Defendants shall pay all claimant's medical bills incurred as a result of his December 22, 1986 injury. POUSH V. T-L ALLEN COMPANY Page 20 ORDER THEREFORE, it is ordered: That defendants shall pay unto claimant healing period benefits at the rate of two hundred forty-four and 56/100 dollars ($244.56) for the period beginning January 2, 1987 through October 15, 1987 minus credit for five point four two nine (5.429) weeks claimant worked in 1987, which leaves a total net healing period of thirty-five point five seven one (35.571) weeks. That defendants shall pay unto claimant four hundred (400) weeks of permanent partial disability benefits at the rate of two hundred forty-four and 56/100 dollars ($244.56) per week. That defendants shall pay the accrued weekly benefits in a lump sum. That defendants shall pay claimant's medical expenses incurred as a result of the December 22, 1986 injury That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall pay the costs of 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 21st day of February, 1990. BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Mark Pennington Attorney at Law 218 6th Ave Ste 620 Des Moines IA 50309 Mr Robert C Landess Attorney at Law, Terrace Ctr Ste 111 2700 Grand Ave Des Moines IA 50312 51100; 51108.50; 52500 51803 Filed February 21, 1990 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER GENE POUSH, Claimant, VS. File No. 848302 T-L ALLEN COMPANY, A R B I T R A T I 0 N Employer, D E C I S I 0 N and ALLIED MUTUAL INS.CO., Insurance Carrier, Defendants. 51100 Found claimant's injury arose out of and in the course of his employment. 51108.50 Found claimant's low back condition causally connected to his work injury. 52500 Defendants denied liability; therefore, could not prevail under 85.27. 51803 Claimant found to have an 80% industrial disability.