Page 1 before the iowa industrial commissioner ____________________________________________________________ : SANDRA WEISHAAR, : : Claimant, : : vs. : File Nos. 847903/848681 : 848682 SNAP-ON TOOLS CORPORATION, : : A P P E A L Employer, : : D E C I S I O N and : : ROYAL INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE Claimant appeals from an arbitration decision awarding permanent partial disability benefits as the result of an alleged injury on September 3, 1985. The record on appeal consists of the transcript of the arbitration proceeding; joint exhibits 1 through 18; claimant's exhibits 1 through 14; and defendants' exhibits X through FF. Both parties filed briefs on appeal. Claimant filed a reply brief. ISSUES Claimant states the following issues on appeal: I. Did the deputy err by holding that Sandy had alleged only a cumulative injury to her shoulders and back on April 29, 1986? II. Did the deputy err by failing to consider whether the disabilities to Sandy's shoulders were sequelae of the injury to her hands? III. Did the deputy err by failing to consider whether the disabilities to Sandy's elbows were part of the injury to her arms or of the sequelae of the injury to her hands? IV. If the deputy did not err by failing to assign any disability to the shoulders and/or the elbows then did he err by failing to reduce Snap-on's credit for permanent partial disability benefits already paid? V. Did the deputy err by failing to consider Page 2 whether there had been a cumulative injury to Sandy's shoulders which had occurred from approximately April 29, 1986, to the time she was laid off from work on December 29, 1988? VI. Did the deputy err by failing to consider whether there had been an unitary or single cumulative injury and disability to Sandy's arms and shoulders extending to her upper mid back? VII. Did the deputy err by failing to consider whether the odd lot doctrine should be employed in the determination of Sandy's disabilities? VIII. Did the deputy err in failing to consider the extent of industrial disability Sandy had sustained? IX. Did the deputy err by failing to award section 86.13 penalties? X. Did the deputy err by failing to direct the manner in which statutory interest was to be calculated? XI. Did the deputy err by failing to award additional healing period benefits? REVIEW OF THE EVIDENCE The arbitration decision adequately and accurately reflects the pertinent evidence and it will not be completely set forth herein. Briefly stated, claimant first experienced pain in her right hand on September 3, 1985. On December 18, 1985, Thomas F. DeBartolo, M.D., found claimant to have severe right carpal tunnel, and mild carpal tunnel syndrome on the left. On January 3, 1986, claimant underwent carpal tunnel surgery on her right hand. On April 29, 1986, claimant was examined by Dr. DeBartolo, who noted that claimant suffered numbness in her hands when she was engaged in sanding at work. Claimant complained of discomfort in the forearm, wrist, and shoulder areas. Claimant returned to Dr. DeBartolo after five or six months with more complaints of pain in the hands. From August 16-24, 1986, claimant was off work for another injury. On November 4, 1986, claimant complained of pain in her left hand to Dr. DeBartolo, and discomfort in her shoulder. Sometime in November 1986, a file cabinet fell on claimant and struck her neck and shoulder area. Claimant began seeing Michael W. Crane, M.D., in 1987 for shoulder pain. On January 6, 1987, Dr. DeBartolo gave claimant a permanent partial impairment rating of 16 percent of the right extremity; 15 percent of the left extremity, for a combined rating of 29 percent, or 17 percent of the whole Page 3 person. On January 28-29, 1987, claimant complained of right upper mid-back pain. Claimant experienced pain when trying to free a stuck drawer at work. Claimant consulted Stephen D. Richards, D.O., and was off for five weeks, until February 25, 1987. On March 6, 1987, claimant consulted Kenton K. Moss, M.D., concerning an elbow contusion. On March 9, 1987, claimant complained of pain in both upper extremities extending into the shoulders. Claimant was released from work by Jay D. Mixdorf, M.D., for six weeks. Claimant was also noted to be suffering from depression during March and April of 1987. On April 4, 1987, claimant was examined by Dr. Mixdorf, who found normal upper extremities, and no symptoms of carpal tunnel syndrome. Claimant was found to have trigger points in her upper back. On April 20, 1987, claimant returned to work without restrictions. On May 4, 1987, claimant filed a petition alleging a cumulative injury occurring from 1982 to the time of the filing of the petition. Claimant was later ordered to allege specific injury date or dates, and subsequently alleged the following injury dates: September 3, 1985, right wrist (date of first medical treatment, case #847903); April 14, 1986, left wrist (date of first medical treatment, case #848681); and April 29, 1986, shoulders and back (date of first treatment, case #848682). On May 11, 1987, Dr. Mixdorf found claimant's pain in her shoulders to result not from the median nerve, but from a trapezius muscle spasm. Claimant's discomfort in her shoulders resulted simply from using them, and did not restrict her work activity. Dr. Mixdorf imposed restrictions of not lifting over 15 pounds, and rotation in work duties every two hours. On June 22, 1987, claimant was granted a three month leave of absence for educational purposes. The testimony indicated that this length of leave had never previously been granted by the employer. On June 25, 1987, David J. Boarini, M.D., examined claimant, and assigned permanent partial impairment ratings of three to five percent right arm, zero percent left arm. No rating for the shoulders or back was given. Claimant alleges Dr. Boarini did not examine her shoulders. On July 8, 1987, Dr. Moss examined claimant's shoulders, and found them to be better but tender. Dr. Moss advised that claimant should rotate her work duties if she returned to work. On September, 28, 1987, Dr. Moss noted that claimant was back at work for one week and experienced discomfort in her shoulders. On October 20, 1987, C. B. Carignan, Jr., M.D., Page 4 examined claimant and found normal range of motion and strength in both hands, with some residual paresthesia, permanent, both hands. Dr. Carignan assigned claimant a rating of 8.5 percent of the whole person (11.5 percent impairment right arm, 5.5 percent impairment left arm). On November 10, 1987, Robert F. Breedlove, M.D., assigned claimant a 12 percent of the whole person rating, combining both the left and right upper extremities (10 percent and 9.5 percent extremity = 6 percent whole person for each). Dr. Breedlove found no permanent impairment of the shoulders. On January 15, 1988, claimant was seen by Dr. Richards for right upper mid back pain, which began the day before after claimant tried to move a large dye weighing 300-400 pounds. On March 9, 1988, claimant went to her personal physician, Dr. Fuller, who took her off work for five weeks, until April 16, 1988, for irregular heart beat due to work stress. On April 15, 1988, claimant was examined by Michael W. Crane, M.D. Dr. Crane issued a rating, which he indicated was based on subjective findings, of 10 percent right upper extremity; 5 percent left upper extremity; 3 percent for each elbow; 2 percent each shoulder. Dr. Crane's total impairment rating (including pain) was 15 percent of the whole person. However, Dr. Crane noted that he found no abnormalities in the shoulder, and his rating of the shoulder was based strictly on pain. Claimant was diagnosed as suffering from chronic tendonitis of the shoulder girdle, and mild carpal tunnel syndrome. On April 20, 1988, Dr. Richards opined that claimant suffered from overuse tendonitis of both shoulders. On May 4, 1988, Dr. Richards noted that defendants had asked claimant to lift 50 pound boxes at work in violation of her lifting restrictions. Claimant was taken off work until May 19, 1988. On May 18, 1988, claimant was again seen by Dr. Richards. Dr. Richards imposed a lifting restriction of not over 15 pounds, and rotation of work duties every two hours. On June 3, 1988, Dr. Bottjen diagnosed claimant as suffering from chronic tendonitis of the right shoulder. On June 7, 1988, Robert F. Breedlove, M.D., rated claimant's shoulders as zero impairment. Although claimant testified that Dr. Bottjen refused to examine her shoulders and only examined her hands, Dr. Bottjen reported that claimant suffered from tenderness and a positive impingement sign in the shoulders, but had full range of motion in the shoulders. On June 9, 1988, Dr. Crane diagnosed tendonitis, both shoulders, which he described as subjective. He indicated that claimant's tendonitis was simply a muscle pull area at most. Dr. Crane suggested claimant restrict working above Page 5 shoulder level, but keep working. Dr. Crane indicated that of the 25 percent rating of impairment, four percent was applicable to the whole person and 21 percent to the upper extremity. On July 5, 1988, Dr. Crane endeavored to clarify his rating, and indicated that he had factored pain into the calculation. He acknowledged that he could not distinguish between a body as a whole injury and a scheduled injury in the legal sense. He indicated that his rating considered the joint, bone and muscle. On September 19, 1988, claimant was reduced to four hour shifts by Dr. Crane. On September 28, 1988, claimant's lifting restriction was reduced by Dr. Crane to five pounds, with no work over the shoulders, and two hour rotation. Dr. Crane returned claimant to six hour shifts on October 10, 1988. On October 19, 1988, Dr. Crane noted that claimant experiences right shoulder problems after working above shoulder level, and reiterated claimant's restrictions. On December 22, 1988, claimant was told by her employer that unless her restrictions were lifted, she would be laid off, as her restrictions kept her from "bumping" another employee with less seniority under the union contract. On December 29, 1988, claimant was laid off. APPLICABLE LAW The citations of law in the arbitration decision are appropriate to the issues and the evidence. ANALYSIS Claimant correctly notes that the standard of review on appeal to the industrial commissioner is de novo. Defendants' statements in their brief as to whether "substantial evidence" exists are inappropriate. A de novo review will be made of the record. Claimant's first issue on appeal concerns the injury date for her cumulative injury or injuries. Claimant originally failed to specify an injury date in her petitions. Claimant was ordered by this agency to amend the petitions to allege specific injury dates, and claimant then alleged September 3, 1985, as the injury date for her right hand injury; April 14, 1986, as the date of injury for her left hand injury; and April 29, 1986, as the date of injury for her alleged shoulders and back injury. Claimant urges on appeal that a cumulative injury is ongoing, and therefore no specific date of injury can be assigned. Alternatively, claimant urges that the date of injury in a cumulative injury case should be the date on which the symptoms of the cumulative injury first manifest themselves, rather than the date claimant is compelled to leave work. Under McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985), the date of injury occurs when the worker is unable to continue working due to the effects of the work Page 6 injury. McKeever recognizes the ongoing nature of the cumulative injury, but also recognizes the need to establish a definite date of injury for various purposes, such as the statute of limitations. A definite injury date is also necessary for the establishment of claimant's rate. Although the technical rules of pleading have been abolished for workers' compensation actions, there still must be some semblance of specificity in the pleadings to allow defendants to defend, and adjudicators to decide. See Terwilleger v. Snap-On Tools Corp., Appeal Decision, May 24, 1991. The record shows that claimant's left and right carpal tunnel syndromes developed over the same period of time. Under McKeever, the date of injury would be the date on which the condition first compelled claimant to miss work. A single cumulative injury to both arms would result in a single injury date, even if symptoms or treatment began for each arm on different dates. In this case claimant suffered a single bilateral carpal tunnel cumulative injury on September 3, 1985. Claimant next urges on appeal that she has suffered an injury that is not limited to her arms, but to her shoulders and back as well. If a claimant contends he has industrial disability he has the burden of proving his injury results in an ailment extending beyond the scheduled loss. Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964). Alternatively claimant urges that if her injury is not an injury affecting the arms and shoulders as well as the arms, then her present arm and shoulder conditions are sequelae of her arm injuries. An injury to a scheduled member may, because of after effects (or compensatory change), result in permanent impairment of the body as a whole. Such impairment may in turn form the basis for a rating of industrial disability. Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). The medical evidence does not support the conclusion that claimant's bilateral carpal tunnel syndrome has resulted in impairment to her shoulders or back. Claimant first complained of shoulder pain on April 19, 1986. Dr. DeBartolo, claimant's treating physician and the surgeon who performed claimant's carpal tunnel surgery, examined claimant's shoulders on November 4, 1986, and found a full range of motion. Dr. DeBartolo examined claimant again on January 6, 1986, and again found no abnormalities in the shoulders. Dr. Breedlove examined claimant on November 10, 1987, and found the shoulders to be normal. Dr. Mixdorf also found no shoulder or back deficiencies in his examinations. Although claimant made numerous complaints of pain in her shoulders, only one of claimant's physicians gave a rating of permanent partial impairment to her shoulders. All the other doctors that examined claimant found full range of motion in the shoulders. Dr. Richards attributed Page 7 claimant's shoulder pain to overuse tendonitis. Dr. Bottjen also diagnosed chronic tendonitis. Dr. Breedlove rated claimant's shoulder impairment as zero. None of claimant's physicians, except Dr. Crane, assigned permanent impairment to claimant's shoulders. Although Dr. Crane did assign a rating of impairment for claimant's shoulders, he found no abnormalities in claimant's shoulders and clarified that his rating was for pain alone. Dr. Crane also described claimant's shoulder condition as a muscle pull, and stated he had no objective findings of shoulder impairment. Although the majority of claimant's complaints may have revolved around her shoulders, no doctor stated that claimant's carpal tunnel syndrome extended to her shoulders. Similarly, no physician expressed an opinion that claimant's shoulder pain was a sequelae of her carpal tunnel syndrome, nor did any physician opine that claimant's shoulder pain was the result of compensation by claimant as a result of her carpal tunnel syndrome. Claimant bears the burden of proof. Claimant has failed to show that her carpal tunnel syndrome extends to the shoulders or back, either as a part of a cumulative injury or as a sequelae of her cumulative injury. In addition, even if claimant had shown that her alleged shoulder and back pain was caused by her cumulative injury or as a sequelae of her injury, claimant at most has only shown that her shoulder and back conditions result in pain and discomfort. There is no showing of impairment. Although one physician did impose a rating of impairment and a restriction against working above shoulder level, all the other physicians found full range of motion. Even Dr. Crane, the physician assigning the rating and restriction to the shoulders, acknowledged that they were based on subjective complaints of pain alone. Pain that is not substantiated by clinical findings is not a substitute for impairment. Waller v. Chamberlain Manufacturing, II Iowa Industrial Commissioner Report 419, 425 (1981); Godwin v. Hicklin GM Power, II Iowa Industrial Commissioner Report 170 (1981). Pain is not compensable under chapter 85 unless there is an impact on earning capacity. Benton v. Hyman Freightways, Review-Reopening Decision, January 7, 1991. Claimant's shoulder condition appears to be tendonitis, or a "muscle pull." Claimant has not carried her burden to show that her shoulder condition represents permanent impairment. Finally, the record shows that claimant suffered an injury to her upper body in November 1986, when a file cabinet fell on her. Claimant may have suffered another back injury on January 28 or 29, 1987, when she tried to open a stuck drawer. Claimant may have suffered a third injury on January 15, 1988, when she tried to move a 300-400 pound dye. Any of these traumatic incidents are possible causes of claimant's alleged shoulder and back pain. The November 1986, January 28 or 29, 1987, and January 15, 1988 work incidents are not a part of the cases addressed in this decision. Claimant has failed to carry her burden of proof that her work activity resulted in a cumulative injury to her shoulders or back. Page 8 Claimant next urges on appeal that Dr. Crane's rating of impairment to her elbows was not adequately considered. Drs. DeBartolo, Boarini, Carignan, Breedlove, and others rated claimant's upper extremities. The upper extremity includes the elbow. The fact that Dr. Crane chose to rate the elbows and wrists separately does not change the nature of claimant's condition. Absent contrary evidence, it can be assumed that the ratings of impairment to the upper extremities by the other physicians contemplated any impairment to the elbow as well. Claimant has received several ratings of impairment of her upper extremities. Dr. DeBartolo rated claimant's right upper extremity at 16 percent, left upper extremity at 15 percent, for a combined value of 29 percent, which converts to a whole body impairment of 17 percent. However, Dr. DeBartolo apparently misapplied the AMA Guides to the Evaluation of Permanent Impairment. Dr. DeBartolo obtained his ratings of each upper extremity, then utilized the combined values chart, and then converted the combined value to a whole body rating. The AMA Guides contemplate converting the upper extremity ratings to whole body ratings first, then using the combined values chart. Using Dr. DeBartolo's ratings of claimant's upper extremities, claimant's whole body impairment according to Dr. Bartolo's findings would be 18 percent instead of 17 percent. Dr. Boarini examined claimant and found a 3.5 percent impairment of the right upper extremity, and zero impairment of the left upper extremity. Dr. Carignan found 11.5 percent impairment of the right upper extremity, and 5.5 percent of the left upper extremity, for a whole body impairment of 8.5 percent. Dr. Breedlove found 10 percent impairment of the right upper extremity, and 9.5 percent of the left upper extremity, which he converted to whole body impairments of six percent for each upper extremity, for a total of 12 percent. Dr. Crane rated claimant's right upper extremity at 10 percent, left upper extremity at five percent, and added three percent for each elbow and two percent for each shoulder. Dr. Crane rated claimant's whole body impairment at 25 percent. However, Dr. Crane later stated that only four percent of that rating was whole body, and 21 percent represented the impairment of the upper extremities. Dr. Crane's rating of the shoulders is disregarded, in that Dr. Crane indicated this rating was for pain only, and it has been determined that claimant has failed to establish that her impairment extended to the shoulders or back. Dr. Breedlove's rating did not utilize the combined values chart of the AMA Guides to the Evaluation of Permanent Impairment. Rather, Dr. Breedlove merely added the whole body equivalents of the upper extremity impairments he found. If the combined values chart had been used, ratings of impairment of 9.5 percent and 10 percent would yield a combined value of 17 or 18 percent, which would convert to a whole body impairment of 10 or 11 percent. Similarly, Dr. Carignan's ratings do not properly apply the AMA Guides. Apparently, Dr. Carignan averaged his left Page 9 and right upper extremity ratings. When the AMA Guides are properly applied and the combined values chart is used, upper extremity ratings of 11.5 percent and 5.5 percent would yield a combined value of 15-17 percent, which converts to a whole body impairment of 9-10 percent. Dr. DeBartolo was claimant's treating physician, and had more contact with claimant than other physicians. Dr. DeBartolo also performed claimant's surgery, and thus had an opportunity to make an internal examination as well. The medical evidence of Dr. DeBartolo will be given the greater weight. Claimant, as a result of her bilateral carpal tunnel syndrome, has a whole body impairment of 18 percent. At the hearing, claimant stipulated that defendants had previously paid 63.75 weeks of permanent partial disability benefits. On appeal, claimant asserts she erred in so stipulating, and that defendants had paid only 49.75 weeks of permanent partial disability. A stipulation is an agreement by the parties that certain facts are true and need not be litigated. Claimant acknowledges error and now seeks to reduce the amount of credit defendants are entitled to. Claimant should not benefit from lack of preparation before entering into the stipulation. On the other hand, defendants should not enjoy a windfall as a result of a computation error. The amount of benefits previously paid to claimant should be readily verifiable. The parties will be ordered to apply credit for any amounts actually paid against any award of benefits below. Claimant also raises on appeal the question of whether claimant was an odd-lot employee. It has been determined above that claimant's injury did not extend to the body as a whole, and thus a discussion of industrial disability is not required. However, even if claimant had shown entitlement to industrial disability, claimant did not list odd-lot as an issue at the time of hearing. An examination of the hearing assignment order, and the hearing transcript, pages three through six, reveals that odd-lot was not an issue at the time of the hearing. An issue that could have been raised at the time of the hearing cannot be raised for the first time on appeal. Marcks v. Richman Gordman, Appeal Decision, June 29, 198; In re Jack H. Kohlmeyer, Appeal Decision, Feb. 22, 1990. Claimant's odd-lot appeal issue will not be addressed. Claimant on appeal also seeks a penalty for unreasonable delay in payment of healing period and permanent partial disability benefits. A review of the record reveals that there was no dispute between the parties as to the compensability of claimant's right and left arm conditions. The issue of contention between the parties was whether claimant's injury extended to the shoulders and back as well. Dr. DeBartolo gave claimant a rating of 18 percent of the body as a whole as a result of the bilateral carpal tunnel syndrome on January 6, 1987. Dr. Boarini assigned claimant a rating of 3-5 percent on July 6, 1987. Defendants received Dr. Breedlove's report on December 4, Page 10 1987, and paid claimant a lump sum payment of 57.5 weeks of benefits on January 13, 1988, based on Dr. Breedlove's rating. Defendants paid another lump sum of 6.25 weeks on June 23, 1988, representing an average of the ratings given by Dr. Crane and Dr. Breedlove. There was an extensive exchange of letters between the parties concerning defendants' nonpayment of medical appointment bills, which defendants did pay on September 24, 1987. There was also a dispute between the parties on how to calculate claimant's entitlement to healing period. Defendants later accepted claimant's calculation. Defendants were aware of Dr. DeBartolo's rating of claimant's arms almost a full year before paying any permanent partial disability benefits. Even after receiving Dr. Boarini's opinion, it was another six months before payment was made. Defendants, in their appeal brief, justify the delay in paying benefits by pointing out that the claimant's claim for benefits for the shoulders was in dispute, and that various settlement offers were being made to the claimant. The defendants were justified in not paying permanent partial disability benefits for claimant's alleged shoulder injury, as that injury was in dispute and a bona fide argument as to non-compensability existed. However, withholding the payment of benefits for claimant's arm injuries, which were admitted to be compensable, simply because another part of claimant's claim was in dispute, is unreasonable. The fact that settlement negotiations were ongoing does not excuse the delay in payment of benefits that claimant was clearly entitled to. Defendants cannot withhold benefits that are warranted in order to pressure a settlement on other benefits claimed. A penalty under Iowa Code section 86.13 is appropriate. Defendants will be ordered to pay claimant an additional 25 percent of benefits awarded as a penalty. Claimant also urges on appeal that defendants should be ordered to pay interest on unpaid benefits under Iowa Code section 85.30, and that interest should be assessed on the interest itself. Claimant also urges that an injury date other than the injury date for statute of limitations purposes should control for the calculation of interest. Finally, claimant requests this agency to calculate the interest due on each week of unpaid benefits. There is no provision in the workers' compensation law for "interest on interest." McKeever, above, establishes the date of injury and the interest for any unpaid benefits will be calculated according to the principles enunciated in Teel v. McCord, 394 N.W.2d 405 (1986); Dickenson v. John Deere Prod. Eng., 395 N.W.2d 644 (Iowa App. 1986); Farmer's Elevator Co., Kingsley v. Manning, 286 N.W.2d 174 (Iowa 1979); and Benson v. Good Samaritan Center, Ruling on Rehearing, Oct. 18, 1989 Finally, claimant seeks an award of additional healing period benefits for periods of time she was off work for Page 11 shoulder pain occurring after her alleged shoulder injury date of April 29, 1986; specifically, January 15, 1988 to January 18, 1988; May 9, 1987 to May 13, 1987; May 4, 1988 to May 18, 1988; and parts of June 1, 1988; June 7, 1988; June 9, 1988; and June 25, 1988. These dates were not part of the stipulation of the parties as to healing period. They were not listed as issues at the time of the hearing. Claimant bases this appeal issue on evidence introduced into the record by defendants showing that claimant was off work during these periods, and was not compensated. Claimant now seeks additional healing period benefits, as well as penalty and interest. Claimant cannot raise an issue on appeal that was not presented as an issue at the hearing before the deputy. Claimant has waived any claim for additional healing period, penalty or interest by failing to assert these issues at the hearing. It is also noted that these periods of absence from work were related to claimant's shoulder and back pain, which has been found above not to be compensable in the instant proceedings. Claimant is not entitled to a further award of healing period benefits, or penalty or interest thereon. FINDINGS OF FACT 1. Claimant incurred a bilateral carpal tunnel injury as a result of a cumulative single injury on September 3, 1985 to her right and left hands. 2. Claimant has an 18 percent impairment of the whole person as a result of the combined carpal tunnel injury to her left and right hands on September 3, 1985. 3. Claimant failed to prove she received any work-related shoulder or back injury for the injury dates alleged. 4. Claimant's shoulder and back condition is not the result of her bilateral carpal tunnel injury. 5. Claimant's back condition is not a sequelae of her bilateral carpal tunnel syndrome. 6. Claimant's back condition is not the result of claimant compensating for her carpal tunnel syndrome. 7. Claimant experienced possible intervening causes of traumatic back or shoulder injury in November 1986; on January 28 or 29, 1987; and on January 15, 1988. The incidents on these dates are not the subject of the instant proceedings. 8. Defendants unreasonably withheld benefits related to claimant's bilateral carpal tunnel injury. CONCLUSIONS OF LAW Claimant has an 18 percent impairment to her body as a whole as the result of a bilateral carpal tunnel injury Page 12 arising out of and in the course of her employment on September 3, 1985. Claimant's back and shoulder condition did not result from her bilateral carpal tunnel injury. Claimant is entitled to a 25 percent penalty under Iowa Code section 86.13. Claimant is not entitled to additional healing period benefits. WHEREFORE, the decision of the deputy is affirmed and modified. ORDER THEREFORE, it is ordered: That claimant is entitled to ninety (90) weeks of permanent partial disability benefits at the weekly rate of two hundred seventeen and 45/100 dollars ($217.45) beginning January 6, 1987. Claimant is entitled to an additional twenty-two point five (22.5) weeks of benefits as a penalty under Iowa Code Page 13 section 86.13. That defendants shall pay accrued benefits in a lump sum and receive credit against the award for any amounts of permanent partial disability benefits previously paid. 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 including the cost of transcribing the hearing proceeding pursuant to rule 343 IAC 4.33. Page 14 That defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of June, 1991. ________________________________ CLAIR R. CRAMER ACTING INDUSTRIAL COMMISSIONER Copies To: Mr. Mark S. Soldat Attorney at Law 714 E. State St. Algona, Iowa 50511 Mr. Paul C. Thune 218 6th Ave., Suite 300 P.O. Box 9130 Des Moines, Iowa 50306 Page 1 2209 - 1803.1 - 2906 - 2904 4000.2 - 3800 Filed June 28, 1991 Clair R. Cramer BJO before the iowa industrial commissioner ____________________________________________________________ : SANDRA WEISHAAR, : : Claimant, : : vs. : File Nos. 847903/848681 : 848682 SNAP-ON TOOLS CORPORATION, : : A P P E A L Employer, : : D E C I S I O N and : : ROYAL INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 2209 Claimant's argument for a "running injury date" spanning several years for a cumulative injury was rejected pursuant to McKeever. 1803.1 The evidence failed to show that claimant's bilateral carpal tunnel syndrome extended beyond the arm to the body as a whole, either as part of the cumulative injury or as a sequelae of the injury due to claimant compensating because of her injury. Subjective reports of pain in the shoulders without medical corroboration do not extend the injury to the body as a whole. All of claimant's physicians found no impairment of the shoulders except one, and that physician stated his rating of impairment for the shoulders was for pain alone, based on claimant's subjective complaints. In addition, there were three incidents of other traumatic work injuries to claimant's shoulders not involved in these cases that were as likely or more likely causes of any shoulder pain. Claimant failed to carry her burden to show that her injury extended beyond the scheduled member. Page 2 2906 Claimant stipulated to the number of weeks of permanent partial disability previously paid by defendants. On appeal, claimant indicated the stipulation was in error, and claimant alleged a different amount of credit. Held that while claimant should be bound by her stipulation and should not benefit from a lack of adequate preparation, neither should defendants not enjoy a windfall. Since the amount previously paid is readily verifiable, the parties were ordered to apply the amount of payments actually made as a credit. 2904 Claimant attempted on appeal to obtain a finding that she was an odd-lot employee. However, odd-lot had not been raised at the time of the hearing and was not considered on appeal. 4000.2 Claimant sought a penalty for unreasonable delay in payment. The medical evidence clearly established the compensability of claimant's bilateral carpal tunnel condition early on in the case, but there was substantial disagreement between the parties as to the compensability of the alleged shoulder condition. Defendants did pay claimant for the carpal tunnel condition, but not for several months after ratings and causal connection opinions were given both by claimant's physician and defendants' physician. On appeal, defendants sought to justify the delay by pointing out that there was a dispute on the shoulder condition, and settlement negotiations were ongoing. Held that defendants reasonably delayed payment of benefits representing an alleged shoulder condition since there was a bona fide dispute as to that injury, but defendants unreasonably withheld benefits representing the bilateral carpal tunnel condition which was not in dispute. Defendants cannot withhold clearly compensable benefits as a lever to force settlement on disputed aspects of the case. However, defendants did voluntarily pay the undisputed benefits during the pendency of the case, albeit several months late. Defendants assessed 25 percent of benefits awarded as a penalty. 3800 Claimant's arguments for a different injury date for purposes of assessing interest, for interest on interest unpaid, and request that the agency compute the interest due on each and every payment, were rejected. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROBERT McCREEDY, Claimant, VS. File No. 848688 FRUEHAUF CORP., A R B I T R A T I 0 N Employer, D E C I S I 0 N and CNA INSURANCE COMPANY, Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration upon claimant's petition filed August 26, 1987. Claimant sustained an injury arising out of and in the course of his employment on June 22, 1987 when he was involved in a collision while operating a forklift. He now seeks benefits under the Iowa Workers' Compensation Act from defendant employer Fruehauf Corporation and defendant insurance carrier CNA Insurance Company. Hearing on the petition for arbitration was had in Burlington, Iowa, on May 21, 1990. The record consists of joint exhibits 2 through 13 and the testimony of Linda Sage. ISSUES Pursuant to the prehearing report, the parties have stipulated: that claimant sustained an injury arising out of and in the course of his employment with defendant Fruehauf Corporation on June 22, 1987; that the injury caused temporary disability from June 26, through July 5, 1987; that the appropriate rate of compensation is $240.10; that medical benefits are no longer in dispute; that defendants paid one and three-sevenths weeks of compensation at the stipulated rate prior to hearing. McCREEDY v. FRUEHAUF CORP. Page 2 Issues presented for resolution include: whether the work injury caused permanent disability and the extent and nature thereof; taxation of costs. FINDINGS OF FACT The undersigned deputy, having heard the testimony and considered all of the evidence, finds: Claimant was involved in a collision while operating a forklift vehicle on June 22, 1987. He suffered a broken nose in the incident which was adjusted under general anesthesia on June 24, 1987 by Ursula R. Hahn, M.D. In Dr. Hahn's view, claimant sustained no permanent disability, except for possible scarring. However, there is no evidence in this record indicating that claimant did sustain permanent scarring or that such scarring has in any way impaired claimant's future usefulness and earnings in his occupation at the time of injury. In fact, claimant has remained employed in the same position up to and including the date of hearing. On June 25, 1987, claimant complained to Linda Schmidt Jabbari, D.O., of neck pain and numbness at the base of the skull and two painful bumps in the middle of the back. Dr. Jabbari's notes reflect that claimant had full range of motion of the neck and the bumps of the back were normal spinous processes. Her impression was of cervical muscle spasm. On May 31, 1988, claimant complained to David C. Wenger-Keller, M.D., of neck pain which he related to a forklift accident in November, 1987. The record does not indicate that claimant sustained a second such injury in November, 1987. Dr. Wenger-Keller diagnosed chronic muscle pain in the neck related to the November, 1987 injury. No physician has indicated that claimant has sustained any permanent impairment of any kind, nor is there any evidence of any casual relationship to the subject work injury. CONCLUSIONS OF LAW The parties agree that claimant sustained an injury arising out of and in the course of his employment and that he sustained temporary disability as stipulated. The disagreement in this case is as to whether the injury caused any permanent impairment or industrial disability. The claimant has the burden of proving by a preponderance of the evidence that the injury of June 22, 1987 is casually related to the disability on which he now McCREEDY v. FRUEHAUF CORP. Page 3 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 casual 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 casual connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co. , 261 Iowa 352, 154 N.W.2d 128 (1967). Although claimant has complained of neck pain, this record contains no evidence whatsoever indicating that claimant has any permanent impairment, or that any impairment is causally related to the work injury. Claimant has clearly failed to meet his burden of proof in establishing any disability relating to his complaints of neck pain. Pursuant to Iowa Code section 85.34(2)(t), an individual may be compensated for permanent disfigurement of the face or head which impairs the future usefulness and earnings of the employee in his occupation at the time of receiving the injury. Although Dr. Hahn made reference to possible scarring, there is no evidence in the record indicating that claimant actually suffered a permanent facial scar. Claimant did not personally participate in the hearing so as to give this writer an opportunity to view any alleged disfigurement. Claimant has remained in the same job through the date of hearing and has not established any impairment of his earning capacity in his regular occupation. It is held that claimant has failed to meet his burden of proof in establishing permanent impairment by reason of facial disfigurement. Claimant is entitled to compensation for temporary total disability, but he has already received his full entitlement pursuant to the stipulation entered into by the McCREEDY v. FRUEHAUF CORP. Page 4 parties. Therefore, claimant shall take nothing from this proceeding. ORDER THEREFORE, IT IS ORDERED: Claimant shall take nothing from this proceeding. Costs of this action shall be assessed to claimant pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 31st day of 1990. DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. James P. Hoffman Attorney at Law Middle Road P.O. Box 1066 Keokuk, Iowa 52632 Mr. Elliott R. McDonald, Jr. Attorney at Law P.O. Box 2746 Davenport, Iowa 52809 5-1803 Filed May 31, 1990 DAVID RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROBERT McCREEDY, Claimant, VS. File No. 848688 FRUEHAUF CORP., A R B I T R A T I 0 N Employer, D E C I S I 0 N and CNA INSURANCE COMPANY, Insurance Carrier, Defendants. 5-1803 Claimant failed to prove he sustained permanent disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER LARRY D. KERR, Claimant, File No. 848697 VS. A R B I T R A T I 0 N SHELLER-GLOBE CORPORATION, D E C I S I 0 N Employer, Self-Insured, Defendant. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Larry D. Kerr against Sheller-Globe Corporation, his self-insured employer, based upon an alleged injury of June 15, 1987. The issues presented for determination include whether claimant sustained any injury which arose out of and in the course of his employment; determination of his entitlement to compensation for temporary total disability or healing period; determination of his entitlement to compensation for permanent partial or permanent total disability. He asserts the odd-lot doctrine. Section 85.27 benefits were identified as an issue, but no bills were received into evidence. Defendant asserts the lack of notice under section 85.23 of The Code as a defense. The case is complicated by a ruling made on December 19, 1989 which denied claimant's attempt to amend his petition to assert a theory of injury through cumulative trauma. The ruling does not, however, limit claimant's ability to recover for cumulative injury since it is not necessary that a cumulative injury theory be pled. DeHeer v. Clarklift of Des Moines, file number 804325 (App. Decn., May 12, 1989); McCoy v. Donaldson Co., Inc., file numbers 752670 and 805200 (App. Decn., April 28, 1989). In the prehearing report, the parties stipulated that claimant's gross weekly earnings were $328.70 and that he was single with one exemption. According to the 1986 benefit booklet, the rate of compensation should be $198.26 per week, rather than $204.71 per week as stipulated. The case was heard and fully submitted at Cedar Rapids, Iowa on December 20, 1989. The record in the proceeding KERR v. SHELLER-GLOBE CORPORATION Page 2 consists of testimony from Larry D. Kerr, Roger Marquardt and Rick Innis. The record also contains claimant's exhibits 1 through 12 and defendant's exhibit A. Exhibit 13, though marked and referred to, was never offered or received. FINDINGS OF FACT Larry D. Kerr is a 52-year-old single man whose education ended at the eighth grade when he was 15 years of age. Kerr worked at Sheller-Globe for approximately the last ten years. His last day of work was July 1, 1988. He is still technically listed as an employee on medical leave. Kerr has a long history of back problems (defendant's exhibit A, pages 1-5, 6, 8 and 9). X-rays taken in 1973 showed essentially normal disc spaces, but also showed spur formation and abnormalities of the L5 vertebral appendages (claimant's exhibit 11). Claimant agreed that he had back problems in the 1970's, but stated that they were not as severe as they are presently. Claimant testified that in December, 1986 his work involved lifting heavy bales. Claimant stated that his back pain had been increasing during the month of December. When he sought medical treatment on January 4, 1987, he reported that on Christmas Day, 1986 he had experienced a sudden onset of pain running down his left buttock as well as increasing.pain over the prior three weeks (defendant's exhibit A, pages 16, 17 and 17A). Claimant's initial medical treatment was at the University of Iowa Hospitals and Clinics Emergency Room. Kerr was then seen at the Neurosurgery Outpatient Clinic on January 7, 1987. He was diagnosed as having degenerative joint disease and an exacerbation of chronic low back pain. A pars defect was identified at the L5 level of his spine as well as disc space narrowing at L5-Sl. Claimant was prescribed conservative treatment and was kept off work until January 26, 1987 when he was released to return to work (defendant's exhibit A, pages 20-22). When seen for a follow-up visit on April 23, 1987, the records show that claimant denied having any recent low back or leg pain. He had been working (defendant's exhibit A, page 23). Claimant returned to the neurosurgery clinic on June 29, 1987 where he voiced complaints of continued pain, especially after working. He related that his work required a lot of twisting and bending. David W. Beck, M.D., assistant professor of neurosurgery, formed the impression that claimant had chronic low back pain and referred him to KERR v. SHELLER-GLOBE CORPORATION Page 3 physical therapy to obtain a back support to wear while he was working (defendant's exhibit A, page 24). When questioned, Dr. Beck could not recall any history of any particular incident of injury occurring on June 15, 1987. He stated that claimant's chronic pain is due to the spondylolisthesis and general wear and tear on his spine rather than any specific injury. Dr. Beck stated that, when he treated claimant, it had been for an aggravation of the underlying preexisting condition and that the aggravation resolved with claimant regaining his previous level of function (defendant's exhibit A, page 25). Kerr was dissatisfied with Dr. Beck and sought treatment from William R. Pontarelli, M.D. Claimant was first seen by Dr. Pontarelli on July 14, 1987. Dr. Pontarelli determined that claimant had a herniated disc at the L4-5 level on the left and spondylolysis with spondylolisthesis at the L5-Sl level, Grade I. He recommended that claimant avoid work (claimant's exhibit 5; claimant's exhibit 1, page 10). The history Kerr gave to Dr. Pontarelli was that the onset of his problems occurred around Christmas of 1986 (claimant's exhibit 1, pages 5 and 26). Dr. Pontarelli stated that the spondylolisthesis or pars defect was most likely attributable to an injury which was incurred while claimant was an adolescent (claimant's exhibit 1, page 8). He felt that the herniated disc was possibly caused by claimant's work. He went on to state that he felt claimant's condition was work related (defendant's exhibit A, pages 11 and 12). He stated that twisting performed during the April through June, 1987 time span could have aggravated claimant's preexisting condition and he could not rule out the possibility that the injury occurred during the time span of April to June since there were no CT scans or other tests which would have demonstrated whether or not the herniated disc existed when claimant was off work in January, 1987 (claimant's exhibit 1, pages 12 and 18). Dr. Pontarelli stated that claimant has severe limitations and that he has demonstrated a high level of motivation to work. He also stated that he recommended that claimant have spinal surgery, but that claimant declined due to the chance that it might not be successful (claimant's exhibit 1, pages 17-20). Dr. Pontarelli rated claimant as currently having a permanent impairment of ten percent of the body as a whole (claimant's exhibit 1, page 22). KERR v. SHELLER-GLOBE CORPORATION Page 4 Claimant was examined on February 20, 1989 by W. John Robb, M.D. Dr. Robb diagnosed claimant as having chronic recurrent strain of the lumbosacral spine, spondylolisthesis at the L5-Sl level in the first degree and degenerative disc disease at the L3-4 and L5-Sl spinal levels. Dr. Robb stated that claimant has a long-standing history of degenerative disc disease and that he was unable to assign any of the abnormalities in claimant's spine to any particular incident. Dr. Robb assigned significant activity restrictions, though he felt claimant was not motivated to return to work. He rated claimant as having a 15 percent permanent impairment, of which one-half was related to stress and work to which claimant's spine had been subjected over the years (defendant's exhibit A, pages 28-32). Dr. Robb's assessment is accepted as being correct. Roger Marquardt, a qualified vocational rehabilitation counselor, stated that Kerr is limited to very sedentary work, according to the restrictions recommended by Dr. Pontarelli. With claimant's educational level and work history, he was unaware of any type of work which claimant could perform. He stated that claimant needs very sedentary, unskilled work and that claimant's access to that type of employment was nearly nonexistent. Marquardt stated that, in January of 1987 when claimant returned to work, he was able to perform medium work, which constitutes 80 percent of the job market for unskilled and semi-skilled jobs. Marquardt felt that claimant is currently unemployable and has no earning capacity. Marquardt agreed with Dr. Robb's assessment that claimant lacked motivation. Marquardt also stated that, if Dr. Robb's activity restrictions were applied, claimant would be capable of performing light work and would be employable. Rick Innis, the Sheller-Globe human resource manager, stated that, under Dr. Robb's restrictions, claimant could perform a "finish operator" job, a classification which constitutes approximately three-fourths of the 800 jobs in the Iowa City Sheller-Globe plant. Innis stated that, while some of the jobs involved twisting of the torso, a portion of them could be modified to eliminate that activity. Having observed claimant's appearance and demeanor at hearing and considered it together with all the evidence in the case, it is determined that claimant.is not particularly motivated to return to work and that his stated symptoms are somewhat exaggerated, even though they do exist. The fact that he declined a surgical remedy is an indication that his distress is not severe. It is determined that Dr. Robb's assessment of claimant's physical capacities is more KERR v. SHELLER-GLOBE CORPORATION Page 5 accurate than the assessment made by Dr. Pontarelli. It is also determined that claimant's condition did worsen during the time that he resumed working in early 1987. According to vocational consultant Marquardt, claimant is capable of light work under Dr. Robb's restrictions. It is therefore determined that claimant is employable, although he has reduced physical capacities and reduced earning capacity. After returning to work on November 6, 1987, claimant continued to work until July, 1988. The record does not show that any physician recommended claimant cease working in July, 1988. Claimant stated that he presently could not perform the same work which he had performed up to July, 1988. Claimant related that he has applied for two jobs since July of 1988, but was not hired for either. Claimant's attempt to find replacement employment has not been substantial. It is determined that the injury of June 15, 1987 made claimant incapable of performing the medium work which he had performed prior to that time. Rick Innis stated that, when claimant resumed work in November, 1988, he was assigned a light job. Innis could not state if claimant ever left light work prior to July of 1988 when he ceased his employment. The evidence from Drs. Beck, Robb and Pontarelli clearly establishes that claimant sustained a cumulative trauma injury which was proximately caused by his work. It also establishes that the injury was an aggravation of a preexisting condition. CONCLUSIONS OF LAW Claimant has the burden of proving by a preponderance of the evidence that he received an injury on June 15, 1987 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). While a claimant is not entitled to compensation for the results of a preexisting injury.or:disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in KERR v. SHELLER-GLOBE CORPORATION Page 6 disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). The date of injury for injuries resulting from cumulative trauma is the day on which disability commences. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). When dealing with cumulative trauma injuries, there is a separate injury each time the employee is off work long enough to be entitled to recover weekly compensation benefits. Any permanent disability attributable to a prior injury cannot be recovered in a case based on a subsequent injury. Babe v. Greyhound Lines, Inc., No. 89-113 (Iowa Ct. App. March 27, 1990), file numbers 706132 and 790714 (App. Decn., February 29, 1988). The evidence in this case shows two dates of injury, one around Christmas of 1986, and the other being June 15, 1987. Any claim for benefits based upon the 1986 injury is barred by lack of notice under section 85.23 of The Code. That injury was sufficiently serious to cause claimant to be disabled from work for a period of approximately four weeks. The petition was filed on August 25, 1987, well within the requirements of section 85.23 for a June 15, 1987 injury. Claimant returned to work after being released in January, 1987 and continued to work until mid-June. He ceased working June 15, 1987 and was off work until returning in November, 1987. On November 5, 1987, Dr. Pontarelli released claimant to resume working (claimant's exhibit 7). It is concluded that claimant is entitled to recover healing period compensation under Iowa Code section 85.34(l) commencing June 16, 1987 and running through November 5, 1987, a span of 20 and 3/7 weeks. 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." 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 KERR v. SHELLER-GLOBE CORPORATION Page 7 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. When all the material factors of industrial disability are considered, it is determined and concluded that Larry D. Kerr has a 20 percent permanent partial disability which was proximately caused by the June 15, 1987 injury. This entitles him to receive 100 weeks of permanent partial disability compensation payable commencing November 6, 1987 under Iowa.Code section 85.34(2)(u). ORDER IT IS THEREFORE ORDERED that Sheller-Globe Corporation pay Larry D. Kerr twenty and three-sevenths (20 3/7) weeks of compensation for healing period at the rate of one hundred ninety-eight and 76/100 dollars ($198.76) per week payable commencing June 16, 1987. IT IS FURTHER ORDERED that Sheller-Globe Corporation pay Larry D. Kerr one hundred (100) weeks of compensation for permanent partial disability at the rate of one hundred ninety-eight and 76/100 dollars ($198.76) per week payable commencing November 6, 1987. IT IS FURTHER ORDERED that Sheller-Globe Corporation pay interest pursuant to Iowa Code section 85.30 computed from the date each payment came due until the date of actual payment. KERR v. SHELLER-GLOBE CORPORATION Page 8 IT IS FURTHER ORDERED that the costs of this action are assessed against Sheller-Globe Corporation in accordance with Division of Industrial Services Rule 343-4.33. IT IS FURTHER ORDERED that Sheller-Globe Corporation file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 29th day of June, 1990. MICHAEL G.TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Clemens Erdahl Attorney at Law 311 Iowa State Bank Building Iowa City, Iowa 52244 Mr. Harry W. Dahl Attorney at Law 974 73rd Street, Suite 16 Des Moines, Iowa 50312 1402.30, 2206, 2209 2901 Filed June 29, 1990 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER LARRY D. KERR, Claimant, File No. 848697 VS. A R B I T R A T I 0 N SHELLER-GLOBE CORPORATION, D E C I S I 0 N Employer, Self-Insured, Defendant. 1402.30, 2206, 2209, 2901 Claimant, with a long-standing history of degenerative disc disease, was found to have sustained an injury through cumulative trauma which was an aggravation of a preexisting condition. Claimant awarded healing period and permanent partial disability compensation where he was unable to resume the level of activity he had experienced prior to the injury. The evidence showed two injuries by cumulative trauma, approximately six months apart. The first was held barred due to lack of notice where claimant had been off work for approximately a month as a result of that injury and had not made claim. Permanent partial disability awarded only for disability attributable to the recent injury and not for any which existed as a result of the prior injury. BEFORE THE IOWA INDUSTRIAL COMMISSIONER DENNIS MESSERLY, Claimant, File No. 848699 vs. A R B I T R A T I O N CROUSE CARTAGE COMPANY, D E C I S I O N Employer, F I L E D and APR 04 1989 LIBERTY MUTUAL INSURANCE CO., INDUSTRIAL SERVICES Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Dennis Messerly against Crouse Cartage Company, employer, and Liberty Mutual Insurance Company, the employer's insurance carrier. The case was heard and fully submitted on June 13, 1988 at Fort Dodge, Iowa. The record in this proceeding consists of testimony from Dennis Messerly, Sylvia Messerly and Elmer Baardson. The record also contains claimant's exhibits 1 through 14 and defendants' exhibits A and C. ISSUES The issues presented by the parties for determination are whether claimant sustained an injury on May 14, 1987 which arose out of and in the course of his employment with Crouse Cartage Company; determination of claimant's entitlement to compensation for healing period and permanent partial disability; determination of claimant's entitlement to recover medical expenses, transportation expenses and costs. It was stipulated that the rate of compensation is $367.18 per week. 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. Dennis Messerly is a 45-year-old Fort Dodge resident who graduated from high school in 1960. He has been employed by Crouse Cartage Company since 1969. He has worked primarily as a dock worker, but has also worked as a truck driver. Claimant denied having any further education or vocational training beyond high school, except for some training and experience operating radar when he was in the Air National Guard approximately 20 years ago. Claimant has a long history of back problems. He has undergone three laminectomies. The first was performed on August 8, 1978 by Robert Hayne, M.D., a neurosurgeon (exhibit 7, page 25). Following that surgery, Dr. Hayne assigned claimant a nine percent permanent impairment rating and recommended that he limit his lifting to 40 pounds. Dr. Hayne also recommended that claimant change the type of work that he performed (exhibit 7, pages 12, 17, 19 and 23). The herniated disc for which surgery was performed was located at the fifth lumbar interspace on the right side (exhibit 7, page 25). The pathology report showed four grams of disc material to have been removed (exhibit 8, page 24). Messerly again developed back trouble and underwent a second laminectomy, this time for a herniated disc at the fourth lumbar interspace on the left side (exhibit 7, pages 12 and 20; exhibit 8, page 55). Three point five grams of disc material was removed (exhibit 8, page 64). Following that surgery, Dr. Hayne, the surgeon, assigned claimant an eight percent permanent impairment rating due to the second injury and surgery (exhibit 7, page 11). In 1985, claimant experienced an increase in his symptoms for which he again consulted Dr. Hayne. Dr. Hayne treated claimant with conservative measures. Claimant's condition improved and he was released to return to work approximately two weeks thereafter. Dr. Hayne felt that the incident had been a reaggravation of the previous condition and that it did not increase claimant's level of disability (exhibit 7, page 13). Messerly returned to truck driving and dock work at Crouse Cartage following each of the two first surgeries. James Rathke, M.D., had performed a physical examination of claimant on March 22, 1979 and advised that claimant avoid heavy lifting and long periods.of driving (exhibit 9, page 29). Messerly testified that, on May 14, 1987, he was working a job which provided a combination of driving, loading and unloading for which he was paid $13.00 per hour. Claimant testified that, on May 14, 1987, he was painting the undercarriage and fuel tanks on an old straight truck. He stated that he was in a stooping or squatting position when he backed into a steel step located under the side door of the truck. Claimant related that he experienced a sharp pain in his lower back and a burning sensation down his left leg. Messerly stated that he tried to shake it off and talked to Elmer, a coworker. He stated that he cleaned the paint gun, went home and went to bed early. Elmer Baardson, a 25-year employee of Crouse Cartage Company, testified that, on May 14, 1987, claimant had been spray painting the undercarriage, was in a bent-over position, moving backwards and raising up at the same time, and backed into a steel step on the box of the truck. Baardson stated that claimant went down on his knees and then got up and walked around for a few minutes. Baardson testified that claimant stated that he was in a lot of pain, but then resumed spray painting. Baardson testified that he had spoken with claimant prior to the time when claimant started spraying that day and that claimant had made no mention of his back hurting. Baardson was aware of claimant's prior back problems. Baardson stated that he saw claimant occasionally at work, but that claimant had not said anything on prior occasions about back pain. Messerly testified that, on Friday, May 15, 1987, he had a peddle run to Iowa Falls. He stated that his back was sore, but that it was an unusually light run and he was able to complete the day. Claimant stated that he spent the weekend in bed, worked Monday, May 18, 1987, hoping to work it off, but that instead it worsened. Claimant stated that, by Tuesday morning, he was unable to function, reported to George Savery, a supervisor, that he was having trouble walking and needed to see a doctor. Claimant consulted Janet Secor, D.O., who in turn referred claimant to Robert C. Jones, M.D., a neurosurgeon. Diagnostic tests were conducted under Dr. Jones' direction. Dr. Jones diagnosed claimant as having a herniated disc at the third lumbar interspace on the left side. Laminectomy surgery was performed on June 1, 1987 at which time a massive extruded disc was found (exhibit 4, page 24). The disc material which was removed weighed 10.7 grams (exhibit 4, page 28). Dr. Jones was of the opinion that the herniated disc was of recent origin because a person with a fragment that large would likely have severe pain (exhibit 1; exhibit 3, pages 5 and 6). When claimant initially saw Dr. Secor, he apparently did not provide a history of backing into the metal step that was presented at hearing. He did, however, provide that history to Dr. Jones when he first was examined on May 22, 1987 (exhibit 3, page 3). Claimant also provided that same history when he was admitted to the hospital for surgery (exhibit 4, page 7). Dr. Jones expressed the opinion that the herniated lumbar disc for which surgery was performed was related to the work injury which claimant had reported to him (exhibit 1; exhibit 3, pages 18 and 19). Dr. Jones continued to provide follow-up treatment to claimant. He saw claimant on October 5, 1987 at which time he released claimant to perform light work, but not to perform his previous job (exhibit 2; exhibit 3, page 10). Dr. Jones subsequently saw claimant on March 11, 1988 at which time he again indicated that claimant could perform light duty consistent with a lifting limit of 20 pounds and avoidance of any activity which was too repetitive. He suggested that claimant find a job where he could alternately sit or stand (exhibit 2). Dr. Jones indicated that full healing from the type of injury and surgery claimant had undergone usually takes six months from the date of surgery. He stated that claimant's substantial recuperation was not completed in October, 1987, but that it was substantially completed by March, 1988 (exhibit 3, page 20). Dr. Jones testified in his deposition taken May 4, 1988 that claimant also has psychological impairment and depression resulting from his lack of ability to return to work (exhibit 3, pages 12 and 13). Dr. Jones felt that the episode had almost destroyed claimant psychologically and that, if the insurance carrier had not put claimant through so many hassles, the psychological disturbance would not have been as severe (exhibit 3, pages 17 and 18). Dr. Jones stated that claimant has a ten percent permanent impairment as a result of the most recent injury and surgery (exhibit 3, pages 11, 13 and 19). Dr. Jones declined to express an opinion regarding claimant's entire overall physical impairment (exhibit 3, page 19). Claimant has been identified as having a spina bifida occulta, but none of the physicians have commented on whether or not that condition is in any way responsible for any of the three herniated discs which claimant has experienced. Claimant testified that he was not allowed to return to work in a light-duty status and that the employer had no light-duty work, other than for management positions. Claimant has not actively sought work. His wife has recently become employed and claimant now performs some of the housework. Claimant was evaluated by the Iowa Central Community College Assessment Center in early 1988. He was shown to have high aptitudes for general learning and verbal skills. His aptitudes for motor coordination, clerical skills and manual dexterity were low. Tests showed that claimant had a higher aptitude for working with things rather than for working with people. The studies indicated that claimant had the intellectual capacity to successfully complete a two- to four-year college program. The evaluation report suggested that claimant enroll in a one-year drafting program and also that he take a supervision and management course given at the college. Possible job areas which were identified included salesperson, sales representative and pharmacy helper (exhibit 6). Messerly testified that, at the present time, his ability to sit is limited to approximately one-half to one hour and that it affects both of his legs and intensifies the pain that is in his lower back. He indicated that he can stand for approximately 20 minutes. Claimant stated that, after his two prior laminectomies, he was able to return to work at Crouse Cartage Company and to perform his regular duties. He stated that he will not be able to return to work at the present time unless something really changes. Claimant stated that he is taking anti-depressant medications prescribed by Dr. Jones. Claimant testified that he is improving and that there are things he can do now that he could not do three months ago. He stated that he is not receiving physical therapy and that if he performs the exercises recommended by the doctors, it aggravates his condition and he is down for a couple of days. Claimant stated that, in April, 1988, he had a flare-up without any particular identifiable cause. Claimant testified that he has looked for work and has tried to return to work at Crouse Cartage Company. He testified that he has tried to obtain car sales jobs, that he has gone to Job Service and that he also reads the paper looking for job openings. He stated that, when at home, he does dishes, light housework and vacuums some. Messerly testified that he still has a bill outstanding at Mercy Hospital in the amount of $3,609.56 (exhibit 11). Claimant testified that exhibit 12 is mileage incurred in traveling to receive treatment from Dr. Jones at Des Moines, Iowa. Claimant stated that the motel bill is for the first trip to the hospital in Des Moines when he was unable to get in when he arrived and had to stay over until he could,be admitted on the following day. Claimant testified that all of the pharmacy bills shown in exhibit 14 were prescribed by Dr. Jones for his back problems. Claimant testified that he has constant pain in the small of his back and a lot of pain in his left leg, including spasms in his left calf. He stated that he has difficulty walking. Claimant testified that, since May 14, 1987, he and his wife have undergone a role reversal. Claimant indicated that he feels he could do well in drafting and that he thinks drafting jobs are available in the area of his residence. Claimant testified that he has not taken any steps to enroll in further schooling because he has no funds with which to do so. Claimant stated that he does not know if he will have money to go to school. He stated that vocational rehabilitation has not given,him any actual job leads. He had not, however, sought assistance through the Iowa Central Community College financial aid office. Claimant testified that, after the first two surgeries, he had been advised to use his head with regard to lifting, but that strict restrictions have now been imposed by Dr. Jones. Sylvia Messerly testified that, on May 14, 1987, claimant came home walking abnormally. She stated that he told her he had run into a step at work. She raised his shirt and saw a scrape on his lower back. Sylvia testified that claimant lay down that evening and all of the following weekend. She stated that by Tuesday morning of the following week, claimant was in severe pain, called George at work and that she then took him to the doctor. Sylvia Messerly stated that since the most recent surgery, claimant's activities around the home are limited. She stated that he tries to maintain the inside of the house, but that she performs lawn mowing and snow clearing. She stated that she has continued to see improvement in his condition during the last three to six months, but that it is slow. Sylvia testified that claimant's nerves are now touchy and that he was not taking nerve medication or anti-depressants prior to May 14, 1987. Sylvia testified that they have a patio chair at their kitchen table because it is the only one claimant finds to be comfortable since the most recent surgery. She stated that he has lost his sense of humor and lacks self-esteem. She stated that he has trouble sleeping and has recently broken out with red blotches on his face. Sylvia testified that ever since claimant's first surgery, he has had problems with his back and days that were not good. She stated that recovery from the second surgery was very fast and good, but that claimant's recovery from the most recent surgery has been worse than either of the other two. APPLICABLE LAW AND ANALYSIS Claimant has the burden of proving by a preponderance of the evidence that he received an injury on May 14, 1987 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The appearance and demeanor of all the witnesses who testified at hearing was considered. The scenario of injury which claimant and Elmer Baardson described at hearing is corroborated by the history of injury which claimant provided to Dr. Jones and when admitted to Mercy Hospital. While that history is not contained in Dr. Secor's notes, there is likewise no conflicting history. It is therefore determined that Dennis Messerly injured his back on May 14, 1987 by backing into the step of a truck which he was painting for his employer. The claimant has the burden of proving by a preponderance of the evidence that the injury of May 14, 1987 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Claimant testified to a scenario wherein the incident occurred and severe pain followed. Dr. Jones, the treating neurosurgeon, expressed the opinion that the herniated disc for which he performed surgery was caused by claimant's May 14, 1987 injury. The weight of disc material removed was twice as large as that removed in either of the prior surgeries, corroborating Dr. Jones' opinion of recent herniation. The record fails to show any directly conflicting evidence. A compensable injury can be either an original injury or an aggravation of some preexisting condition or weakness. 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 surgery which was performed as a result of this most recent injury was at a level of claimant's spine which had not been previously subjected to surgery and for which no previous injury had been identified. For a cause to be proximate, it must be a substantial factor in producing the result, but it need not be the only cause. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980). It is therefore determined that the incident of May 14, 1987 proximately caused the herniated lumbar disc which Dr. Jones treated by surgery. Claimant clearly had preexisting disability in his lumbar spine as a result of the prior injuries and surgeries. He clearly was not asymptomatic. He had limitations. The evidence shows that, by continuing to work at Crouse Cartage Company, he violated the 40-pound lifting restriction which had been imposed by Dr. Hayne on May 15, 1979 (exhibit 7, page 17). Claimant also disregarded the earlier recommendations from Dr. Hayne that he change into a different line of work. Clearly, some degree of preexisting permanent partial disability was present prior to May 14, 1987. The injury claimant sustained in this case is technically a new injury since it involves a level of his spine which had not previously been identified as having been injured, but it is also an aggravation of a preexisting condition when the spine is considered as a unit. An injured party is not charged with the burden of proving the actual apportionment of damages in a case that deals with aggravation of a preexisting condition. Any burden of that nature must be assumed by the defendant, since the defendant is the party standing to gain by litigating the apportionment issue. If the evidence is not sufficient to apportion the disability, then the defendant is responsible for all the disability that exists. Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984); Becker v. D & E Distributing Co., 247 N.W.2d 727, 731 (Iowa 1976); 2 Damages and Tort Actions, section 15.34(l](a); 22 Am.Jur.2d, section 122. 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. In view of the prior recommendations from claimant's physicians and his two previous surgeries, it is apparent that his earning capacity was impaired prior to May 14, 1987. The evidence in this case is sufficiently strong to make a determination of preexisting industrial disability in order to apportion the entire disability which currently exists. Prior to the May 14, 1987 injury, claimant had undergone laminectomies at two levels of his spine. He experienced pain and discomfort. Physicians had recommended that he restrict his activities. Nevertheless, claimant continued to be gainfully employed by his long-term employer, Crouse Cartage Company. According to his testimony, he was earning approximately $30,000 per year at the time of injury. Under all these circumstances, it is determined that claimant had approximately a 20% industrial disability prior to the time of the May 14, 1987 injury. Since that May 14, 1987 injury, claimant's permanent impairment rating has been increased by an additional ten percent and his recommended physical restrictions have gone from a 40-pound lifting limit to a 20-pound lifting limit. While claimant previously was capable of continuing to perform the type of work he performed at Crouse Cartage Company, he no longer is capable of doing so. In all likelihood, he should not have been performing those activities prior to May 14, 1987, but interestingly enough, the May 14, 1987 injury resulted from striking his back, rather than from lifting. While claimant certainly was performing an occupation which placed him at risk for further injury to his back from heavy lifting and freight handling, this case does not deal with injury resulting from that type of activity. Dennis Messerly has a high school education, but his entire work life has been performed in the trucking industry handling freight and driving. He is now, at age 45, foreclosed from that type of work. Claimant's ability to perform extended sitting, as is required in many white collar occupations, is limited. He is limited in his ability to perform continual or long-term standing as would be required in many assembly or production types of jobs. The recommendations from the Iowa Central Community College Assessment Center indicate that claimant's aptitudes are better for working with things than for working with people, yet drafting is the only one of the suggested job areas which is not highly involved in working with people. Certainly, claimant's efforts to resume employment have been lackluster. He apparently has sufficient intellectual capacity to successfully pursue further academic pursuits. His appearance and demeanor at hearing was not inconsistent with the test results from Iowa Central Community College. Sylvia Messerly testified that claimant has low self-esteem. Dr. Jones testified that claimant is suffering from depression. Under those circumstances, it is not remarkable that claimant would be less than enthusiastically seeking work since he has not been provided any job placement or career planning activities other than that from the college. The fact remains that, even if claimant attends a drafting course or any other two- to four-year courses of college, he will likely be unable to regain the level of earnings which he enjoyed while he was employed at Crouse Cartage Company. Without further retraining, his employment situation is even more bleak. An injured employee's permanent disability is to be determined based upon his condition as it exists at the end of the healing period, taking into account his aptitudes for further training, but without speculating as to his future in one particular job. Stewart v. Crouse Cartage Co., file number 738644, (App. Decn., February 20, 1987); Meredith v. Burger Construction, file number 816286, (Arb. Decn., February 7, 1989). The disability is to be compensated as it exists at the end of the healing period, not as it may exist at some time in the future after the expenditure of several years and several thousands of dollars in obtaining retraining. When all the material factors of industrial disability are considered, it is determined that claimant has an overall loss of earning capacity of 60%, of which 40% is related to the injury of May 14, 1987. Claimant seeks compensation for healing period. Healing period ends at the earlier of the three events identified in Code section 85.34(1). Since claimant has not returned to work and it appears that he will never be medically capable of returning to work substantially similar to that he performed at the time of injury, his healing period ends.at the time when it is medically indicated that further significant improvement from the injury is not anticipated. While many injuries have a long-term recuperation process which can extend for as long as a year or more, the primary and substantial portion of the healing often occurs in a much shorter time. Dr. Jones indicated that claimant attained maximum significant medical improvement at some point between October of 1987 and March of 1988. He stated that six months is the normal recuperation period following the type of injury and surgery. That testimony will be relied upon to fix the end of claimant's healing period as December 1, 1987. Since defendants have been found liable for the injury, they are therefore responsible, under Code section 85.27, for the medical expenses involved in treating that injury. These include: Mercy Hospital Medical Center $3,609.56 Walgreen Pharmacy 292.56 Mileage (1,330 at $.21 per mile) 279.30 Motel expenses 28.95 All the foregoing, which total $4,210.37, are to be paid by defendants to claimant under the provisions of Code section 85.27. According to claimant's testimony, the Teamsters Union insurance program apparently has subrogation rights, but the precise amount thereof cannot be determined. Accordingly, payment should be made to claimant who can then satisfy those subrogation rights. Claimant seeks to recover costs in the total amount of $109.72 as set out in exhibit 13. The items listed are properly assessable as costs under Division of Industrial Services Rule 343-4.33. Since claimant prevails in this case, costs will be assessed against defendants. FINDINGS OF FACT 1. Dennis Messerly injured his back on May 14, 1987 when he backed into a metal step on a truck that he was painting. 2. Following the injury, claimant was medically incapable of performing work in employment substantially similar to that he performed at the time of injury from May 19, 1987 until December 1, 1987, when it was medically indicated that further significant improvement from the injury was not anticipated. 3. Claimant's description of his continuing complaints and physical limitations is accurate and correct. 4. Claimant has not made a comprehensive effort to either obtain retraining or resume employment. 5. If claimant were to make a bona fide good faith effort to regain employment, it is unlikely that he could obtain an earning level which would be as much as 50% of the earning level he experienced with Crouse Cartage Company. 6. Dennis Messerly suffered a 40% loss of his earning capacity as a result of the injuries he sustained on May 14, 1987. He had previously lost a substantial portion of his prior earning capacity. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. Dennis Messerly sustained an injury to his back on May 14, 1987 which arose out of and in the course of his employment with Crouse Cartage Company. 3. Messerly is entitled to recover healing period compensation under the provisions of Code section 85.34(1) commencing May 19, 1987 and running through December 1, 1987, a span of 28 1/7 weeks. 4. Claimant is entitled to recover 200 weeks of compensation for permanent partial disability payable commencing December 2, 1987, representing a 40% permanent partial disability under the provisions of Code section 85.34(2)(u). 5. Defendants are responsible for claimant's medical expenses in the total amount of $4,210.37. ORDER IT IS THEREFORE ORDERED that defendants pay claimant twenty-eight and one-seventh (28 1/7) weeks of compensation for healing period at the stipulated rate of three hundred sixty-seven and 18/100 dollars ($367.18) per week payable commencing May 19, 1987. IT IS FURTHER ORDERED that defendants pay claimant two hundred (200) weeks of compensation for permanent partial disability at the stipulated rate of three hundred sixty-seven and 18/100 dollars ($367.18) per week payable commencing December 2, 1987. IT IS FURTHER ORDERED that defendants pay all past due weekly compensation in a lump sum together with interest pursuant to Iowa Code section 85.30. IT IS FURTHER ORDERED that defendants pay claimant four thousand two hundred ten and 37/100 dollars ($4,210.37) under the provisions of Code section 85.27. IT IS FURTHER ORDERED that the costs of this proceeding are assessed against defendants in the amount of one hundred nine and 72/100 dollars ($109.72) pursuant to Division of Industrial Services Rule 343-4.33. IT IS FURTHER ORDERED that defendants file Claim Activity Reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 4th day of April, 1989. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Monty L. Fisher Attorney at Law Suite 200, Snell Building P.O. Box 1560 Fort Dodge, Iowa 50501 Mr. Tito Trevino Attorney at Law Suite 503, Snell Building P.O. Box 1680 Fort Dodge, Iowa 50501 1402.40, 1403.30, 1803 Filed April 4, 1989 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER DENNIS MESSERLY, Claimant, vs. File No. 848699 CROUSE CARTAGE COMPANY, A R B I T R A T I 0 N Employer, D E C I S I 0 N and LIBERTY MUTUAL INSURANCE CO., Insurance Carrier, Defendants. 1402.40, 1403.30, 1803 Claimant, who was injured, underwent his third lumbar laminectomy, each was at a different level of his spine. Following the first two, claimant was able to return to his same employment, but after the third, that employment was foreclosed to him. It was held that the burden of proof showing apportionment of disability rests on the employer and that, of the claimant's 60% industrial disability, 20% preexisted the most recent injury and 40% was attributable to this most recent injury. Claimant had not resumed employment. He had been a truck driver and dock worker prior to the most recent injury. He appeared to have aptitude for retraining, but also was suffering from depression which resulted from the injury. Claimant awarded 40% permanent partial disability based upon the most recent injury.