9999 Filed February 25, 1992 Byron K. Orton MGT before the iowa industrial commissioner ____________________________________________________________ _____ : MICHAEL G. HAIN, : : Claimant, : : vs. : : File No. 850475 GRAIN PROCESSING CORPORATION, : : A P P E A L Employer, : : D E C I S I O N and : : CIGNA INSURANCE, : : Insurance Carrier, : Defendants. : ____________________________________________________________ _____ 9999 Summary affirmance of deputy's decision filed March 26, 1991, with short additional analysis. Page 1 before the iowa industrial commissioner ____________________________________________________________ : MICHAEL G. HAIN, : : Claimant, : : File No. 850475 vs. : : A R B I T R A T I O N GRAIN PROCESSING CORPORATION, : : D E C I S I O N Employer, : : and : : CIGNA INSURANCE, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in arbitration brought by Michael G. Hain based upon an injury that occurred on April 11, 1987. Michael seeks compensation for healing period, permanent disability and payment of medical expenses. The issues to be determined include whether or not the disability related to the claimant's back was proximately caused by the April 11, 1987 injury. The case was heard at Cedar Rapids, Iowa on January 7, 1991. The record in this case consists of testimony from Michael G. Hain, Judy Hain, Jerry Flakne, Nee Leau, Bob Morrison and John Toben. The record also contains claimant's exhibits 1 through 4 and 6 through 11 as well as defendants' exhibits A through G. The record also contains the deposition of Earl Y. Bickel, M.D., taken January 9, 1991. Counsel for both parties blatantly ignored the requirements of paragraph 10(2) of the hearing assignment order. Each party offered its own version of the exhibits. There is very little difference between the claimant's exhibits and the defendants' exhibits, other than the order in which they are arranged and the number or letter designation given to them. Page 2 findings of fact Having considered all the evidence received, together with the appearance and demeanor of the witnesses, the following findings of fact are made. Michael G. Hain is a 45-year-old man who did not complete high school. His work history includes line assembly, foundry work, farming and assembling pallets. He has worked for a grain processing corporation, the defendant employer, for approximately 15 years. Michael has a long history of back problems commencing in approximately 1980 with a fall down the basement stairs at his home. Michael received treatment from the Steindler Orthopaedic Clinic in Iowa City, Iowa. When conservative management did not relieve his symptoms, he underwent laminotomy surgery at the L3-4, L4-5 and L5-S1 levels of his spine with removal of the disc at the L4-5 level on the left (claimant's exhibit 7; defendants' exhibit E). The surgery did not completely resolve Michael's symptoms. A note from December 22, 1981 indicated that he should wear a back support. According to a report dated January 29, 1982 (defendants' exhibit B, pages 1 and 2), claimant did return to work in June 1981, but developed problems and discontinued work on November 9. That report marks the first contact that orthopaedic surgeon Earl Y. Bickel, M.D., had with this claimant. Dr. Bickel saw claimant through May of 1982 and then reinstituted treatment in May and June of 1984 (defendants' exhibit B, pages 3 and 4). Thereafter, claimant did not see Dr. Bickel until August 18, 1987. Claimant's family physician was Steven F. Palmer, M.D. Dr. Palmer's notes indicate that Michael was off work from mid-November 1985 through early January 1986 for an ankle sprain (defendants' exhibit A, pages 1, 2 and 4; claimant's exhibit 3a, pages 2 and 3). According to claimant and his wife, his back was generally pretty good until April 11, 1987 when the flash fire occurred at his place of employment. In that fire, the claimant sustained burns on his left upper extremity, singed eyebrows and minor burns on his face (defendants' exhibit C; claimant's exhibit 11). The emergency room records do not indicate any signs of trauma being apparent on claimant's back. According to claimant, he had fallen while hurrying to leave the location of the fire, landing on his back and shoulder. The first written notation of such a fall is found in Dr. Bickel's records dated August 2, 1988. Dr. Palmer's records dealing with the fire indicate that claimant was having problems with his back. Nevertheless, Dr. Palmer released claimant to return to work on May 4, indicating that he needs to keep working on his back a little bit ( defendants' exhibit A, pages 3 and 4; claimant's exhibit 3a, pages 3 and 4). Claimant did not return to work on May 4, however. Prior to that time, he Page 3 reinjured his left ankle and then remained off work until approximately June 4, 1987. On July 31, 1987, Dr. Palmer issued a report in which he stated that the fire incident had not caused any worsening of claimant's back condition (defendants' exhibit A, page 7; claimant's exhibit 3c). At some undetermined time Dr. Palmer issued a report in which he stated that claimant has been disabled by low back pain since April 11, 1987. None of the notes made by Dr. Palmer subsequent to April 27, 1987 make any reference to claimant having back complaints. According to claimant, his back worsened while he was at work to the extent that he needed to obtain assistance from a coemployee named Bob Morrison in performing his duties. Claimant took vacation in August. He stated that he just laid around because his back was bothering. The vacation was in southwest Missouri. He stated that his back got really bad while walking at Silver Dollar City during that vacation. Following the vacation, he returned to work. He stated that, when he awoke on August 17, 1987, his back was bothering worse than it had been previously. He stated that he went to work that day, despite the fact that his back was really bad. According to Nee Leau, who was a security guard, claimant phoned in on August 18, 1987 and reported that he was not coming to work and that the reason was not related to his employment. On August 18, 1987, claimant again sought treatment from Dr. Bickel. The history given to Dr. Bickel was essentially that the onset of his back pain occurred while putting on boots the previous day (defendants' exhibit B, pages 6, 7, 10, 16, 17 and 23; Dr. Bickel deposition, pages 41, 42, 45 and 46). Bob Morrison, claimant's coemployee, testified at hearing that he had helped claimant perform heavy work, both prior to and after the time the flash fire occurred. Morrison stated that there was no noticeable difference in the amount of assistance he provided to the claimant after the fire in comparison to the amount he had provided before the fire occurred. John Toben, personnel administrator for Grain Processing Corporation, stated that when claimant was off work commencing in August 1987, he was paid sickness and accident benefits rather than workers' compensation benefits because the claimant, at that time, represented that the condition was not work related. According to Toben, the first knowledge he had that claimant was claiming his back condition was work related was when this action was commenced. The agency file shows that the original notice and petition was filed August 22, 1988. Jerry Flakne, safety director for Grain Processing Corporation, stated that he talked with claimant shortly following the fire and that claimant made no statement regarding any injury to his back. Page 4 It is found that claimant did aggravate his preexisting back condition in some manner connected with the April 11, 1987 flash fire. The undated report from Dr. Palmer cannot be given much weight since it is irreconcilable with the fact that Dr. Palmer released claimant to return to work and that the claimant did in fact return to work for a period of approximately two months. No matter when the report was issued, it cannot be reconciled with the fact that the claimant was not disabled by a back problem during the months of June and July 1987. Dr. Bickel was unwilling to attribute the April 11, 1987 incidents to any increase in the claimant's disability (Dr. Bickel deposition, pages 58-60). Dr. Palmer reported that the incident had not produced any permanent worsening of claimant's back condition. Claimant's testimony, and that of his wife, which is to the effect that his condition worsened is directly contradicted by the testimony from Bob Morrison. It is found that the evidence in this case does not show it to be probable that whatever happened in connection with the flash fire on April 11, 1987 was a substantial factor in producing any part of the permanent disability which currently afflicts Michael G. Hain. It is found that the events did aggravate his back, but that the aggravation has not been shown to be anything other than temporary as indicated by the records from Dr. Palmer and the opinions expressed by Dr. Bickel. There is no evidence of any other permanent disability being caused by injuries sustained in the fire. Page 5 conclusions of law The claimant has the burden of proving by a preponderance of the evidence that the injury of April 11, 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 Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Aggravation of a preexisting condition is one form of compensable injury. While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). Claimant has proven, by a preponderance of the evidence, that he sustained temporary injuries in the nature of burns and an aggravation of his preexisting back condition. The best evidence in the record comes from Dr. Palmer who released claimant to return to work effective May 4, 1987 and who subsequently reported that the back injury had not caused any permanent worsening of the claimant's back condition. Dr. Palmer's assessment is corroborated by the orthopaedic surgeon, Dr. Bickel. There is no evidence to indicate that the burns caused any permanent disability. It is therefore concluded that the claimant is entitled to recover temporary total disability compensation commencing April 11, 1987 and running through May 3, 1987, a span of three and two-sevenths weeks. According to paragraph 10 of the prehearing report, claimant has been previously paid all weekly compensation due for that period of time. The employer is responsible for payment of the medical expenses incurred in treating the April 11, 1987 injury. Page 6 The expenses which were proximately caused by that injury are the charges with Palmer Clinic incurred on the dates of April 13, 15, 17, 20 and 27, 1987. Those charges total $116.60. The employer is entitled to credit for the amount paid through its nonoccupational group plan which John Toben described as providing first dollar coverage. order IT IS THEREFORE ORDERED that claimant take nothing from this proceeding as he has previously been paid all weekly compensation and all benefits under section 85.27 of The Code to which he is entitled. IT IS FURTHER ORDERED that the costs of this proceeding are assessed against the claimant pursuant to rule 343 IAC 4.33. Signed and filed this ______ day of ____________, 1991. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Jerry Zimmerman Attorney at Law 129 First Avenue SW P.O. Box 74210 Cedar Rapids, Iowa 52407 Mr. John M. Bickel Attorney at Law 500 MNB Building P.O. Box 2107 Cedar Rapids, Iowa 52406-2107 5-1402.40 Filed March 26, 1991 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : MICHAEL G. HAIN, : : Claimant, : : File No. 850475 vs. : : A R B I T R A T I O N GRAIN PROCESSING CORPORATION, : : D E C I S I O N Employer, : : and : : CIGNA INSURANCE, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 5-1402.40 Claimant, with preexisting back condition, failed to prove that the injury was anything other than a temporary aggravation. Page 1 before the iowa industrial commissioner ____________________________________________________________ : GLORIA BUMPUS, : : Claimant, : : vs. : File No. 850493 : DES MOINES PUBLIC SCHOOLS, : A P P E A L : Employer, : D E C I S I O N : and : : EMPLOYERS MUTUAL COMPANIES, : : Insurance Carrier, : Defendants. : ____________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed April 18, 1990, is affirmed and is adopted as the final agency action in this case, with the following additional analysis: On page 9 of the Arbitration Decision, the deputy identifies Michael J. Taylor, M.D., as the individual who performed a psychological assessment of claimant. This is apparently a mere scrivener's error in that the deputy, at page 5 of the Arbitration Decision, properly identifies Samuel L. Graham, Ph.D., as having performed such psychological assessment. The record by way of the letterhead on Dr. Graham's report reflects that Dr. Graham is an associate of Dr. Taylor. On appeal, claimant contends that the deputy's finding that claimant lacked motivation is not supported by the record. We disagree. The record is replete with instances where attempts were made to assist claimant, both towards further physical rehabilitation and towards finding appropriate employment. The record is also replete with instances where claimant self-selected not to pursue options presented for reasons either not related to her work injury or only subjectively related to her work injury. Claimant chose not to pursue a pain management program through the Iowa Methodist Pain Center. Claimant chose not to accept employment as a lunch room associate, indicating that the hours, approximately 10 per week, were too few for her. Claimant chose not to accept employment as a volunteer transfer associate, indicating that she did not wish to be Page 2 employed outside in the winter. Claimant subjectively decided that she could not accept the associate's position working with kindergartners and first graders. Objective medical evidence suggests that claimant might well have been able to return to work in such a position. Likewise, defendants' answers to interrogatories state that the school district regards the position of educational associate to be primarily a sedentary position with infrequent lifting. Such would appear consistent with the type of job duties that claimant described and that Mr. Ruths described. Claimant, in her deposition, at hearing, and in her conversations with Mr. Ruths, stated she preferred to work part time. In her deposition, she stated she preferred staying at McDonald's part time to returning to the school district. All the above demonstrates that claimant has minimal desire to continue in a wage earning capacity at this point in her life. It is clearly indicative of a lack of motivation to fully rehabilitate and seek full-time gainful employment. Likewise, claimant argues that claimant's restrictions would "place upon this worker an industrial disability far in excess of 5 percent." We again disagree. Claimant's restrictions do not remove her from a sedentary work classification. Claimant's previous work experience has largely been in nonheavy industrial positions. It appears claimant has transferrable skills which she could readily utilize within her restrictions. Likewise, claimant's age of itself has bearing on her actual earning capacity. Clearly, earning capacity is reduced with the approach of the end of the normal span of an individual's employment life. Claimant, who was age 65 at hearing and who had voluntarily retired from her McDonald's position immediately subsequent to her 65th birthday, was clearly at an age where her earning capacity was naturally reduced from that of a younger worker. The deputy's award of five percent permanent partial disability was appropriate. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of December, 1991. ______________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. David D. Drake Attorney at Law West Towers Office Complex Page 3 1200 35th Street, Suite 500 W. Des Moines, Iowa 50265 Ms. Elizabeth Gregg Kennedy Attorney at Law 100 Court Avenue, Suite 600 Des Moines, Iowa 50309-2231 9999 Filed December 16, 1991 BYRON K. ORTON BJO before the iowa industrial commissioner ____________________________________________________________ : GLORIA BUMPUS, : : Claimant, : : vs. : File No. 850493 : DES MOINES PUBLIC SCHOOLS, : A P P E A L : Employer, : D E C I S I O N : and : : EMPLOYERS MUTUAL COMPANIES, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 9999 Summary affirmance of deputy's decision filed April 18, 1990, with short additional analysis. Page 1 before the iowa industrial commissioner ____________________________________________________________ : GLORIA BUMPUS, : : Claimant, : : File No. 850493 vs. : : DES MOINES PUBLIC SCHOOLS, : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : EMPLOYERS MUTUAL COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ INTRODUCTION This is a proceeding in arbitration brought by the claimant, Gloria Bumpus, against Des Moines Public Schools, employer, and Employers Mutual Insurance Companies, insurance carrier, defendants, to recover benefits as a result of an alleged injury sustained on March 30, 1987. This matter came on for hearing before the deputy industrial commissioner in Des Moines, on March 14, 1990. The record consists of the testimony of the claimant and Robert J. Ruths; and Joint Exhibits A through I and 1 through 6. issues The issues the parties set out in the prehearing report for resolution are: 1. Whether claimant's alleged disability is causally connected to her injury; and 2. The nature and extent of claimant's disability. review of the evidence Claimant testified she is a 65-year-old high school graduate and her only other formal education was taking a typing course and receiving a certificate from DMACC in 1988. Claimant related her work history as basically involving working two years as a welder at Solar Aircraft in 1945, as a nurse's aide, as a helper in a mental ward, delivering for Younkers, dormitory maid for Drake, department store elevator operator, working at Joseph's Jewelry, salad maker at Wakonda Country Club and Bishops, working for the Department of Public Safety, and a Blue Cross claims examiner. In 1972, claimant began as an associate employee in the Des Moines Public Schools assigned to the classroom, lunchroom, grounds and hall duty until 1989. It is not necessary to elaborate further on the Page 2 particular duties claimant performed. On March 30, 1987, claimant was rear-ended by a car while she was driving her automobile and taking two special education students on a field trip on behalf of defendant employer. Claimant described the pain that developed that evening and the medical attention she sought. Claimant was off work until August 27, 1987. Claimant said she continued to have pain when she returned to work at the end of August 1987. Claimant then worked until the end of November 1987 and has not returned to work for defendant employer since that time. Claimant said she wanted to work again for defendant employer but could not because of the lifting and bending involved. Claimant related she took a typing test for a school job and did lousy. Claimant said she then took a typing course at DMACC. Claimant said she then inquired again at defendant employer's and there was no position available. Claimant acknowledged she was offered a part-time lunchroom job but refused because of lack of hours. Claimant also indicated she was offered another associate job at another school and was given a chance to observe it to see if she could perform the job. Claimant said she observed one class and concluded it involved the same type of work she was not able to do. Claimant indicated this job involved lifting and bending, also. Claimant said there was discussion by the school administrator as to claimant's volunteering and then later getting the job she wanted. Claimant emphasized she needed the money then and could not work on a voluntary basis. Claimant denied she then told the school administrator she planned to retire in 1987 or 1989. Claimant related she then took a typing test upon applying for a Des Moines Register job. Claimant said she did not pass. Claimant described the jobs she applied for and was finally hired in December 1988 at Mercy Hospital's McDonalds restaurant, working five days a week 10:30 a.m. to 4:00 p.m. Claimant contends she got tired after two and one-half hours of work and her neck and shoulder began bothering her. Claimant said she cut back her hours in February 1990 to three days a week. Claimant said she still has therapy treatments and sees her doctor on a as-needed basis. Claimant emphasized she never had neck or shoulder problems or has she had any accidents prior to March 30, 1987. Claimant did acknowledge she had low back muscle strain in February 1983 at school but missed no work. She also received a burn at McDonalds and missed two days and received workers' compensation for the lost days. Claimant said she currently cannot raise her arms above her shoulders without hurting, cannot carry a phone book, a bag of groceries, has trouble balancing, does not sleep well and gets tired walking. Claimant said her examination with David J. Boarini, M.D., took 30 seconds. She said he didn't examine her like the other doctors did. Claimant admitted she voluntarily quit her McDonalds job in February 1990. Claimant acknowledged she refused to consider the pain Page 3 center and said she will deal with the pain herself. Claimant admitted no doctor put restrictions on her and no doctor said she could not work full-time. Robert J. Ruths, personnel specialist with the Des Moines Public Schools, testified he is involved with workers' compensation claims and transferring people due to physical need. He said he knew claimant and had his first conversation with her in the fall of 1987 concerning returning to the job full-time and having therapy upon returning. Ruths testified to and read Joint Exhibit 1, page 7, which is in his handwriting on August 7, 1989. He said claimant indicated she planned to retire at the end of the year. Ruths testified claimant and her husband came to see him at the beginning of the 1988-89 school year as to a part-time job. He said claimant indicated she wanted to work the next school year and not beyond it. Ruths emphasized he found claimant an associate position which involved no typing and very little lifting and bending and which paid $6.64 per hour. He related claimant met and observed the job and said it involved too much lifting and bending. Ruths agreed the Jefferson School job that claimant observed and refused to take did require stooping and bending. Greg L. Smith, M.D., has treated claimant since her March 30, 1987 accident. On December 15, 1987, he wrote: Unfortunately, she developed difficulties with her cervical strain problem while returning to employment and therefore, felt that it was better to have a failed attempt rather than continue on and injure herself further with working. I would like to point out, however, that very little in the way of physical findings are present when she is having her discomfort and therefore, actual physical examination may never actually point out significant difficulties at that time. (Joint Medical Exhibit 1, page 17) On June 13, 1988, Dr. Smith wrote: It is my feeling, therefore, that management of her difficulties through a pain management center and other such measures is probably worthwhile but I feel that she probably has attained maximal benefit from physical therapy and other such measures. It is therefore my opinion that Gloria should be restricted from heavy lifting and lifting of greater than 25 pounds weight. She additionally, should be restricted from lifting any weight in a repititive [sic] fashion. Further, she should be restricted from frequent bending, stooping or other such activities. These restrictions should be considered permanent. Page 4 (Jt. Med. Ex. 1, p. 15) On February 8, 1988, the x-ray reports of claimant shows: 2/8/88 CERVICAL SPINE: Moderately severe degenerative arthritis and degenerative disc disease are present throughout the neck. The third through the seventh interspaces are narrowed and hypertrophic spurs have developed at all levels. (Jt. Med. Ex. 1, p. 47) On February 19, 1988, David J. Boarini, M.D., an orthopedic surgeon, wrote: This patient has severe cervical spondylosis that has been aggravated by an automobile accident. I recommended she continue her anti-inflammatory treatment. I think she should start getting involved in a vigorous work hardening program at Lutheran. She's certainly going to have some continued aches and pains in her neck permanently due to her underlying condition but hopefully we can get her feeling well enough to return to normal activities with a bit more therapy. (Jt. Med. Ex. 1, p. 45) Thomas W. Bower, L.P.T., wrote on February 24, 1988: Discussion: On the basis of our findings today, we do feel the patient has an extremely poor correlation in perception of her pain rating as opposed to the observed behavior by this examiner. This is further substantiated by a relatively high degree of probability that there is a psychological component to the patient's pain complaints. Body mechanics were really not adequately assessed because the patient performed virtually no work during the course of the exam. At this time, the patient's physical demand level would be certainly classified in the sedentary level. We do not feel that the entire test is valid at this point based on the potential and inadequate pain perception of the patient. (Jt. Med. Ex. 1, p. 38) Samuel L. Graham, Ph.D., wrote on April 6, 1988: As a part of the evaluation, Mrs. Bumpus was administered the Minnesota Multiphasic Personality Inventory. The pattern of validity scales produced by her responses is a marked V, which is suggestive of a naive, religious, and excessively rigid individual who strongly avoids the Page 5 suggestion of psychological components or discomfort in any current problems. The denial and repression appear to be so strong that interpretation of the clinical portion of the MMPI would be inappropriate. Mrs. Bumpus appears to be a frail, highly-guarded, and rigid individual who would likely have significant difficulty adjusting in any group programs. In view of her current personality status, I feel it is highly unlikely that she would benefit from the typical Work Hardening Program. As the patient clearly acknowledges that emotional upset increases her experience of pain, she would appear to be a reasonable candidate for an individual pain management program which could be approached with concurrent individual physical therapy. For physical therapy to be of assistance, I feel it would have to be individual and intensive, and carried out with much higher rates of encouragement and support than are required by the average patient. (Jt. Med. Ex. 1, pp. 35-36) On May 24, 1988, Dr. Borarini wrote: In response to your letter on Gloria Geneva Bumpus, I think in light of both my examination and her functional capacity evaluation and psychological evaluation, that there is no reason why the patient can't return to her previous job. Clearly her pain has a large functional component. I think anti-inflammatory medicines and some sort of an individual pain management program as suggested by the psychologist would be appropriate. I think return to teaching with no heavy duties until this is completed would certainly be reasonable. (Jt. Med. Ex. 1, p. 44) Page 6 On June 6, 1988, Dr. Boarini wrote: In response to your letter on Gloria Bumpus, I would not expect her to have any permanent functional impairment as a result of her injury in March of 1987. (Jt. Ex. 1, p. 43) J. Dan Smeltzer, M.A., Sociologist, wrote on June 30, 1988: I am writing to update you on the status of your patient, Mrs. Gloria Bumpus. As you know, we evaluated Mrs. Bumpus on June 16, 1988. At that time, we felt like she was appropriate for the four-week pain rehabilitation program. Mrs. Bumpus was given the Iowa Methodist Pain Assessment Questionnaire and the MMPI to complete at home and return as soon as possible. She and her husband appeared at the Center on Wednesday, the 29th, and she returned both documents uncompleted. She indicated to me that she is at this time declining any treatment recommendations offered by us. I indicated to her if at some point in the future she or you feel we could help in some way, we would be glad to reevaluate her. (Jt. Med. Ex. 1, p. 31) There are physical therapy treatment records on claimant beginning April 6, 1987 to approximately February 10, 1989. On February 17, 1989, Rick Peterson wrote: Gloria was seen as requested for treatment to the cervical area. On the date of last treatment which was 2-10-89, patient stated that she was continuing to feel about the same but feels that the treatments are of some benefit. Patient has not returned for any additional treatment since that time and further Physical Therapy will be discontinued. If we can be of any further assistance to you or your patients, please let me know. Thank you for this referral. (Jt. Med. Ex. 1, p. 57) applicable law and analysis The claimant has the burden of proving by a preponderance of the evidence that the injury of March 30, 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 Page 7 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). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). The Iowa Supreme Court cites, apparently with approval, the C.J.S. statement that the aggravation should be material if it is to be compensable. Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's Compensation sec. 555(17)a. Our supreme court has stated many times that a claimant may recover for a work connected aggravation of a preexisting condition. Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). See also Auxier v. Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299; Ziegler v. United States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 (1960). An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler, 252 Iowa 613, 620, 106 N.W.2d 591, and cases cited. An employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson, 255 Iowa 1112, 125 N.W.2d 251; Yeager, 253 Iowa 369, 112 N.W.2d 299; Ziegler, 252 Iowa 613, 106 N.W.2d 591. See also Barz, 257 Iowa 508, 133 N.W.2d 704; Almquist, Page 8 218 Iowa 724, 254 N.W. 35. 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." Claimant is 65 years old. She quit her job at McDonalds in February 1990. Defendants contend claimant indicated to the personnel administrator that she was going to retire at the end of 1987 and then later indicated she would retire at the end of the 1988-89 school year. Claimant denied she indicated this. It appears the notation by Robert Ruths was made accurately and contemporaneously to the time he had a conversation with claimant, the first conversation being in August 1987. His notes indicate claimant intended to retire in 1987, and in a later conversation at the end of the 1988-89 school year. There is no dispute that claimant was injured on the job as she described. The parties stipulated claimant was off work for a healing period beginning March 30, 1987 to and including August 27, 1987 and December 1, 1987 to and including July 1, 1988, totaling 51.857 weeks. Claimant contends she has a permanent disability and defendants deny this and say there is no causal connection of any permanent disability to her March 30, 1987 injury. In reviewing the medical evidence, there is no permanent impairment rating by any doctor. Dr. Smith, claimant's regular treating doctor, imposed permanent restrictions in June 1988 of no heavy lifting and no lifting of greater than 25 pounds. He restricted her from lifting any weight in a repetitive manner and no frequent bending, stooping or other such activities (Jt. Med. 1, p. 15). The x-rays taken in February 1988 show moderate, severe, degenerative arthritis and disc disease throughout the neck. Degenerative arthritis isn't caused by an accident, but it is a well-known fact that the symptoms may surface after a traumatic event like a car accident. The evidence shows claimant had no neck or back problems prior to March 30, 1987. The employer takes claimant as she is. The question arises, did the March 30, 1987 accident materially worsen, lighten up and aggravated a preexisting condition? The undersigned finds the greater weight of evidence shows that the answer to this question is yes. There is a disturbing element running through the medical evidence. Claimant has seemed to refuse work hardening or pain management treatment. She admitted she refused to consider the pain center, insisting she would deal with the pain herself. Her doctor, Dr. Smith, recommended in June 1988 that claimant should manage her pain through a pain management center (Jt. Med. Ex. 1, p. 45). Page 9 In February 1988, Dr. Boarini recommended claimant should start getting involved in a vigorous work hardening program at Lutheran Hospital. Dr. Boarini indicated claimant's aches and pains would be permanent but he felt therapy would get claimant back to normal activity (Jt. Med. Ex. 1, p. 45). Mr. Bower observed a psychopathic component to claimant's pain complaints. Michael J. Taylor, M.D., who performed a psychological assessment on claimant, questions claimant's current personality status which affected the interpretation of the clinic portion of the MMPI test. He suggested the pain management program rather than work hardening. Don Smeltzer, a sociologist at the Iowa Methodist Medical Center, reported in June 1988 that claimant returned her pain assessment questionnaire and the MMPI test to them uncompleted and declined treatment. It appears that defendant employer was going to pay for this program. It appears there was never a dispute as to defendant employer's paying for services recommended by the doctors to help claimant. It appears claimant did not return for any further physical therapy treatments after February 10, 1989, so they were discontinued. Again, it appears claimant made the decision, not the defendants, who were paying for the treatments. There is no medical evidence indicating claimant cannot return to work. She obviously is to avoid heavy duties. It appears defendant employer tried to work with claimant. They are to be congratulated for their efforts. Claimant appears to have substantial lack of motivation. She has reached age 65, at which time she was intending to retire, at least from full-time work. Although no permanent impairment rating has been given, claimant does have a prexisting condition which was activated and aggravated by the March 30, 1987 accident. Although the undersigned believes claimant was going to retire from full-time duty at age 65, it doesn't appear she was necessarily going to cease working entirely on a part-time basis, at least that was a viable option to her. Her March 30, 1987 accident appears to have affected claimant's earning capacity by limiting her ability to do part-time work for which she was accustomed and suited considering her skills, her lack of skills, age, injury, education and other criteria used to determine her loss of earning capacity. The undersigned finds claimant has a 5 percent reduction in earning capacity which was caused by her March 30, 1987 work injury resulting from a car accident. findings of fact 1. Claimant received a work injury on March 30, 1987 Page 10 as a result of an automobile accident. 2. Claimant has a cervical spondylolysis that has been materially aggravated, worsened and lighted up by her March 30, 1987 work injury. 3. Claimant has a preexisting moderately severe degenerative arthritis and disc disease throughout the neck that has been materially aggravated, worsened and lighted up as a result of her March 30, 1987 work injury. 4. Claimant refused pain management treatment or a work hardening program, as recommended by medical personnel. 5. Claimant planned to retire from full-time employment at least by age 65. Claimant was 65 on February 25, 1990. 6. Claimant lacks motivation. 7. Defendant employer made good faith attempts to accommodate claimant and her restrictions as a result of the work-related March 30, 1987 injury. 8. Claimant has permanent work restrictions, namely, no heavy lifting or lifting more than 25 pounds; no lifting any weight on a repetitive basis; and no frequent bending, stooping or other such activities. These restrictions are the result of the material aggravation of claimant's preexisting degenerative disc and cervical spondylolysis brought about by the work-related March 30, 1987 injury. 9. Claimant has a 5 percent loss of earning capacity. conclusions of law Claimant's March 30, 1987 injury arose out of and in the course of her employment. Claimant lacks motivation. Claimant has a preexisting cervical spondylolysis and moderately severe degenerative arthritis and disc disease throughout the neck that was materially aggravated, worsened and lighted up by her March 30, 1987 work injury. Claimant has a 5 percent industrial disability. Page 11 order THEREFORE, it is ordered: That claimant is entitled to twenty-five (25) weeks of permanent partial disability benefits at the weekly rate of one hundred twenty-four and 94/100 dollars ($124.94) beginning July 2, 1988. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. Defendants have paid all the healing period benefits agreed to by the parties. No permanent disability benefits have been 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, 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 _____ day of April, 1990. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr David D Drake Attorney at Law West Towers Office 1200 35th St Ste 500 West Des Moines IA 50265 Ms Elizabeth Gregg Kennedy Attorney at Law 100 Court Ave Des Moines IA 50309 5-1803 Filed April 18, 1990 Bernard J. O'Malley before the iowa industrial commissioner ____________________________________________________________ : GLORIA BUMPUS, : : Claimant, : : File No. 850493 vs. : : DES MOINES PUBLIC SCHOOLS, : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : EMPLOYERS MUTUAL COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803 Claimant awarded 25% industrial disability. Page 1 before the iowa industrial commissioner ____________________________________________________________ : MARY A. JONES, : : Claimant, : : vs. : : File No. 850648 3 M COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : NORTHWESTERN NATIONAL : INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Mary A. Jones, (claimant) commenced with the filing of a petition on December 28, 1988 against 3 M Company, (3 M) employer for worker's compensation benefits as a result of an alleged injury to Claimant's back occurring on April 17, 1987. On October 17, 1990, the matter came on for hearing in Des Moines, Iowa. The parties appeared as follows: the claimant in person and by her counsel Harold Heslinga of Ottumwa, Iowa and 3 M and Northwestern National Insurance Company, (Northwestern) by their counsel Joseph A. Quinn of Des Moines, Iowa. The record consisted of the live testimony of the claimant, Connie Husted, Human Resources Coordinator for 3 M, and Jack Reynolds, a Vocational Rehabilitation Counselor. Additionally the parties offered Joint Exhibits 1 through 38. 3 M offered a separate exhibit, Exhibit A. Both parties submitted briefs. At the close of all evidence, the case was deemed fully submitted. ISSUES Pursuant to the prehearing report filed by the parties and approved at the time of hearing, the following issues are presented for resolution: 1. Whether the injury sustained on April 17, 1987 is the cause of a permanent disability. 2. What is the extent of claimant's entitlement to weekly benefits in the event permanency is found. FINDINGS OF FACT Page 2 After considering all of the evidence and the arguments of counsel, the undersigned makes the following findings of fact and conclusions of law. 1. Claimant was 48 years old at the time of the hearing. She was approximately 45 years old at the time of her injury. Claimant began the 9th grade but she did not finish. She does not have a high school equivalency certificate. 2. Claimant has been married for 35 years. Claimant's husband is employed at 3 M as a printer. Claimant and her husband have two sons, one living in Colorado and one living at home. The son at home was severely injured in an automobile accident in January of 1988 result of that accident Claimant's son is mildly retarded and receives Social Security disability benefits. He suffers from confusion and short term memory loss. He is capable of caring for himself but he cannot be left alone for any length of time. 3. Claimant began working outside the home when her youngest child turned 5. She has been employed as a waitress, and a sewing machine operator during the first 10 to 11 years of her working life. Her job duties in these capacities included the operation of a cash register, waiting on tables, clean up and the operation of a sewing machine. Claimant is somewhat deficient in her math abilities. She was employed by 3 M for nine years until her injury on April 17, 1987. 4. Claimant was a tape packer at 3 M. She was responsible for operating an automatic tape packing machine. This machine automatically wrapped various sizes of rolls of tape for final packing in a box for shipment. Claimant's job duties included placing the various rolls of tape on the machine for wrapping, switching the feeder plate for the machine to accommodate various sizes of tape rolls and lifting a full box of tape off the conveyor belt after the box had been filled and sealed. The feeder plate weighed more than 50 pounds and generally required two persons to lift and change the plate. The plates were stored on a shelf approximately 30 to 40 feet away from Claimant's work station. During a "changeover" Claimant and a coworker were required to change the feeder plate to accommodate the next size of tape they were going to pack. Claimant found that she could lift the plate by herself and did so on numerous occasions when her coworker was unavailable to assist in the changeover. 3 M also made available rolling garbage cans for workers to use to transfer the feeder plates from the shelves to the tape packing machine. 5. During a changeover on April 17, 1987, claimant was in the process of carrying a feeder plate over to the storage shelf when, halfway there, she heard a pop in her back. She dropped the feeder plate as she felt pain in her back and her legs felt like rubber. Claimant finished her shift but she did not report the injury to her supervisor. He was not in the plant. Claimant reported the incident a Page 3 few days later. 6. Claimant consulted with chiropractor Dr. B.D. Lange between April 21 and May, 8 1987. Claimant discontinued her treatments with Dr. Lange on or about May 4, 1987. Dr. Lange released claimant for light work on May 4, 1987. Simultaneously, Claimant consulted with Bernard C. Hillyer, M.D., at the Mater Clinic in Knoxville. During her first visit on April 22, 1987, she complained of a sore back from the incident at work. Dr. Hillyer found that she had spasms and tenderness in the lumbosacral musculature and mild scoliosis. Additionally, he found degenerative changes in claimant's back. 7. Claimant's credibility has been tarnished somewhat because of the inconsistent histories she gave various treating physicians. Claimant had previous back problems resulting from an injury to her hip in 1986 that she failed to disclose to Dr. Bashara in 1987. She had been seen by Joseph F. Fellows, M.D., on October 31, 1986 in connection with hip pain and pain in her lower back. Dr. Fellows concluded that claimant was suffering from tendonitis and bursitis of the right iliac crest of the right hip. Claimant was seen at the Mater Clinic in Knoxville in December of 1986 complaining of hip, back and leg pains. She indicated to the treating physician during that visit that, "She has had this [back pain and bilateral hip pain] off and on for a number of years. [The pain is] Worse with bending and stooping, worse after working and worse after walking for long periods." She also reported, upon admission to the Knoxville Community Hospital in May of 1987 that she had had no previous operations, when in fact she had.(1) 8. At the time of the incident in the 3 M plant, claimant was under the care of a cardiologist for a heart condition. In 1983, she was diagnosed as suffering from ventricular tachycardia with episodes of ventricular ectopics from a prolapsed mitral valve. Her treating physician, L. A. Iannone, M.D., gave her a 20 pound weight lifting restriction. The lifting restriction was renewed on an annual basis and was in place on the date of claimant's injury. 3 M was aware of claimant's lifting restriction. As recently as January 1990, claimant was admitted to the hospital with an irregular heart beat, and apparently near cardiac arrest. 9. On May 8, 1987, claimant was admitted to the Knoxville Community Hospital with acute low back pain. Claimant had returned to work on light duty. Apparently, she was doing quite a bit of twisting, stooping and bending and developed an exacerbation of her back pain. A CT scan performed on May 11, 1987 revealed that, "at L4-5 there was minimal diffuse bulging of the disc with this extending to the right neural formanina and next to the nerve rootlet . . . No significant abnormality at L5-S1 is apparent." (1) Claimant had reported to Dr. Bashara on June 4 1987 that she had surgery on her left shoulder in 1959, a hysterectomy in 1980, carpal tunnel releases between 1982 and 1983, arthroscopy of the left knee in 1984, a left breast biopsy in 1986, and a colonoscopy in 1987. Page 4 10. After her hospital stay, claimant's back was improving, however, she was still experiencing pain. She began a course of treatment with various orthopedic specialists, including Jerome Bashara, M.D., and Thomas A. Carlstrom, M.D. 11. Dr. Bashara examined claimant on June 4, 1987. Dr. Bashara's review of the May 11, 1987 CT scan differs markedly from the radiologist's assessment of claimant's disc problem at L4-5 and the assessment by Dr. Carlstrom and Dr. Winston. He indicates that claimant had "marked bulging of the L4-5 disc with what appears to be compromise of the nerve roots bilaterally. He noted that claimant had a small spinal canal at that level." Dr. Bashara suggested a lumbar myelogram and possible laminectomy as the recommended treatment. Dr. Bashara was the only physician to find a bulging disc this early in the course of claimant's back problem and because of that inconsistency his opinion will be accorded little weight. 12. Claimant saw Dr. Carlstrom on July 16, 1987. After his examination, and review of the CT scan obtained on May 11, 1987, he concluded that "a fair amount of" claimant's symptoms were coming from the spinal stenosis at L-4, L-5 and lesser stenosis at L-5, S-1. He further indicated that claimant was improving and he recommended that claimant return to light duty at work. On the next visit, August 13, 1987, claimant was not doing well with pain in both legs and her back. Dr. Carlstrom took claimant off work for a month and gave her an epidural steroid injection for the pain. 13. Dr. Carlstrom indicated in correspondence during October and November of 1987 that he had seen claimant on a number of occasions and that her back was feeling better. He reported that her exams remained largely unchanged. In January 1988, Dr. Carlstrom gave claimant a rating of five-seven percent of functional impairment to the body as a whole. He also indicated that the impairment to the claimant's back should be considered work related. 14. In April of 1988, claimant consulted with S. Randy Winston, M.D. After his examination, a review of the medical assessments, an MRI study and a work evaluation, Dr. Winston agreed with the prior medical and occupational assessments. The MRI study performed on April 20, 1988, indicated that the spinal canal was narrowed and that claimant had mild diffuse bulging at L3-4 and L4-5. 15. Claimant was seen for back pain at the Mater Clinic for a few days in May of 1988. The assessment by the treating physician was spinal stenosis. No connection was made to the work injury. 16. Five months later, on December 13, 1988, claimant returned to the Mater Clinic in Knoxville complaining of back pain. She had been Christmas shopping and walking long distances. A CT scan of the lumbar spine was performed on December 16, 1988 and showed that claimant had a herniated disc. The radiologist observed that: Page 5 At L4-5, there is a protrusion of disc material far laterally on the right side near the exit of the neural foramen. The sections just caudad to the area shows a small bulge of disc material fairly far to the left in the region of the left neural foramen. The cause of the herniation was the extended period of walking claimant had engaged in while Christmas shopping. Claimant had not been back at work since May of 1987. 17. After the herniation, claimant was scheduled for surgery on March 2, 1989. Dr. Carlstrom performed a laminectomy on the left at L4-5. 18. After the surgery, Dr. Carlstrom advised the claimant to avoid standing or sitting in any one position for more than one hour at a time. The claimant was directed to avoid stooping, climbing, kneeling and crawling. Claimant had a lifting and carrying restriction of 20-25 pounds. These restrictions were significantly increased over the prior restrictions dating from January 14, 1988. Claimant at that time only had a lifting restriction of 10-15 pounds on a repetitive basis and an absolute lifting requirement of 30 to 35 pounds. 19. On December 19, 1989, Dr. Carlstrom advised 3 M and Northwestern National that claimant had reached maximum benefits of healing. He increased her functional impairment by five percent. Dr. Carlstrom did not indicate that the cause of this additional rating was related to the incident at work on April 17, 1987 within any degree of medical certainty. 20. Claimant has several disincentives to return to work. Her son living at home requires constant attention. Claimant's husband is fully employed and she benefits from his employment. Claimant has not looked for work since the injury at 3 M even though work at reduced pay and benefits is available in the Knoxville area. Moreover, claimant has not embarked on any program to improve her chances of obtaining new employment. Claimant has not made any effort to obtain her GED or seek new job skills. Claimant's motivation to find work is poor. 21. 3 M has no work for claimant to perform. 3 M has tried to assist the claimant in returning to work by employing a vocational rehabilitation counselor to assist claimant in finding a job within her restrictions. The vocational rehabilitation counselor found light duty sedentary jobs available for claimant in the Knoxville area and the greater Knoxville area. Additionally, claimant has demonstrated a tolerance for light duty sedentary work since she can play bingo for up to three hours at a time and monitor 10 bingo cards simultaneously. 22. Claimant has experienced a loss of earning capacity as a result of her injury at 3 M. The loss of earning capacity attributable to the injury on April 17, 1987 is 20 Page 6 percent. 23. The rate of weekly benefits payable to claimant is $270.51. Claimant has two exemptions. The total amount of costs taxable in this matter equals $343.45. All of claimant's healing period benefits have been paid. The healing periods were between April 22, 1987 and May 3, 1987, May 7, 1987 and January 12, 1988 and March 3, 1989 and December 19, 1989. CONCLUSIONS OF LAW The primary issue for determination in this matter is whether the claimant suffered any permanent disability from the injury of April 17, 1987. The evidence demonstrates that she in fact has. The determination of industrial disability is governed by Iowa Code 85.34 (1989). The claimant has the burden of proving by a preponderance of the evidence that the injury of April 17, 1987 is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 133 N.W.2d 867, 868 (Iowa 1965); Lindahl v. L. O. Boggs, 18 N.W.2d 607,613-14 (Iowa 1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 73 N.W.2d 732,738 (Iowa 1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 101 N.W.2d 167,171 (Iowa 1960). Moreover, 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, 76 N.W.2d 756, 760-61 (Iowa 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., 115 N.W.2d 812, 815 (Iowa 1962). In this instance, the claimant has satisfied her burden of proof by demonstrating that she received an injury at work that caused a permanent impairment of between five percent and seven percent. But that is all the claimant proved. The balance of her injury and her perceived inability to work as a result of the increased functional impairment was never linked either by medical testimony or other credible nonexpert testimony to the incident at work on April 17, 1987. Claimant had not worked since May of 1987. Until claimant walked a long distance while Christmas shopping sometime before December 13, 1988, her condition was considered stable. The January 14, 1988 evaluation by Dr. Carlstrom and the April 1988 MRI study supports that conclusion as does Dr. Winston's assessment in April of 1988. The aggravation that led to the laminectomy and the increased functional impairment was not caused by a work injury. The second issue involves the determination of the extent of weekly benefits the claimant is entitled to as a result of her injury. Page 7 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. The degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial disability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of the total, motivation five percent of the total, work experience thirty percent of the total etc. Neither does a rating of functional impairment directly correlate to the 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 to the body as a whole. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, and general and specialized knowledge to make the finding with regard to the degree of industrial disability. See, Peterson v. Truck Haven Cafe, Inc., File No. 420539, slip op. at 16-17 (Iowa Ind. Comm'r Appeal Dec. February 28, 1985); Christensen v. Hagen, Inc., File No. 643434, slip op. at 22-23 (Iowa Ind. Comm'r Appeal Dec. March 26, 1985) The evidence is uncontroverted that claimant is 48 years old and has an eighth grade education. She can no longer work at her job at 3 M because her job no longer exists. Additionally, because of the restrictions claimant had as a result of her injury (a repetitive lifting restriction of 10 to 15 pounds and an absolute lifting restriction of 30 to 35 pounds), claimant experienced a loss of earning capacity. Claimant was earning a base pay of $8.29 per hour with fringe benefits which included life insurance, health insurance, dental insurance and a stock plan during her tenure with 3 M. There is no evidence in the Page 8 record that reflects the value of the fringe benefits however. Currently, claimant is capable of doing entry level, sedentary light duty work but she has no current intent to seek work, even though claimant is capable of sitting for some length of time and can monitor up to ten bingo cards with no apparent difficulty. Claimant's motivation is poor, attributable in part to self imposed restrictions rather than restrictions resulting from her injury. Claimant's failure to even look for work in the Knoxville area within her restrictions amply demonstrates this factor. Weighing all of these considerations, it is the determination of the undersigned that claimant has a permanent partial disability in the amount of 20 percent attributable to the work injury of April 17, 1987. ORDER THEREFORE, it is ordered: 1. That 3 M and Northwestern National Insurance shall pay unto claimant one hundred (100) weeks of permanent partial disability benefits at the rate of two hundred and seventy and 51/100 dollars beginning December 19, 1989. 2.. That 3 M and Northwestern National Insurance shall pay the accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. 3. That 3 M and Northwestern National Insurance shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30 (1989). 4. That 3 M and Northwestern National Insurance shall pay the costs of this action pursuant to 343 IAC 4.33. 5. That 3 M and Northwestern National Insurance shall file an activity report upon payment of this ward as required by this agency pursuant to 343 IAC 3.1. Signed and filed this ____ day of December, 1990. ________________________________ ELIZABETH A. NELSON DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Harold B Heslinga Attorney at Law 118 N Market Street Oskaloosa IA 52577 Mr Joseph A Quinn Page 9 Attorney at Law 1900 Hub Tower 699 Walnut Des Moines IA 50309 5-1803 Filed December 28, 1990 ELIZABETH A. NELSON before the iowa industrial commissioner ____________________________________________________________ : MARY A. JONES, : : Claimant, : : File No. 850648 vs. : : A R B I T R A T I O N 3 M COMPANY, : : D E C I S I O N Employer, : : and : : NORTHWESTERN NATIONAL : INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803 Claimant, 48 year old factory worker with a 9th grade education had a five to seven percent functional impairment rating for a back injury was awarded 20 percent industrial disability. The further aggravation to her back resulting in an additional five percent functional impairment rating was found not to be casually connected to her work injury. Page 1 before the iowa industrial commissioner ____________________________________________________________ : EDWIN E. SILVER, : : Claimant, : : vs. : : File No. 850694 SULNEL COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : STATE FARM INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Edwin E. Silver, claimant, against Sulnel Company, employer (hereinafter referred to as Sulnel), and State Farm Insurance Company, insurance carrier, defendants, for workers' compensation benefits as a result of an alleged injury on August 10, 1987. On August 22, 1990, a hearing was held on claimant's petition and the matter was consid ered fully submitted at the close of this hearing. The parties have submitted a prehearing report of con tested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. Oral testimony and written exhibits were received during the hearing from the parties. The exhibits offered into the evidence are listed in the prehearing report. According to the prehearing report, the parties have stipulated to the following matters: 1. An employee-employer relationship existed between claimant and Sulnel at the time of the alleged injury. 2. With reference to claimant's rate of weekly compen sation, claimant was married and entitled to three exemp tions at the time of the injury. 3. The medical bills requested by claimant were fair and reasonable but that the issue of their causal connection to a work injury remained in dispute. 4. Claimant has not returned to work since August 10, 1987. issues Page 2 The parties submitted the following issues for determi nation in this proceeding: I. Whether claimant received an injury arising out of and in the course of his employment with Sulnel; II. The extent of claimant's entitlement to disabil ity benefits; III. The extent of claimant's entitlement to medical benefits; and, IV. Claimant's rate of weekly compensation. findings of fact Having heard the testimony and considered all the evi dence, the deputy industrial commissioner finds as follows: A credibility finding is necessary to this decision as defendants place claimant's credibility at issue during the hearing as to the nature and extent of the injury and dis ability. From his demeanor while testifying, claimant is found credible. Although claimant reported incomplete his tories to various physicians in this case, it is found that this is due to a lack of intellectual ability as suggested by a neurologist in this case and a failure to understand certain words such as "prior." Claimant testified that he thought this word meant "after" and not "before." This tes timony is believed. Claimant has only an eighth grade edu cation. Claimant worked for Sulnel as an iron worker only a few hours before the alleged injury which is the subject of this litigation. Claimant previously worked as an iron worker in the state of Wisconsin approximately ten months prior to the alleged injury in this case. At that time he again only worked a few hours before suffering a work injury. Prior to the Wisconsin job, claimant had not worked as an iron worker for approximately eight years. During this time, claimant was receiving Title 19 benefits under the ADC entitlements program due to disability. Claimant and his physicians dur ing this time had regularly certified to ADC administrators that claimant was disabled from work due to chronic leg, back and neck problems. On or about August 10, 1987, claimant suffered an injury which arose out of and in the course of his employ ment at Sulnel. He reinjured his low back and neck from a fall. Claimant's account of the injury was, for the most part, verified by a union steward who observed claimant after the fall and a fellow worker who was operating a crane at the time of the injury. As a result of the injury on August 10, 1987, claimant was totally disabled and absent from his job at Sulnel from August 10, 1987 until June 23, 1988 upon the advice of his physicians. Following the injury, claimant was initially treated by Geoffrey Miller, M.D. Dr. Geoffrey Miller's office notes only report a complaint of low back pain when Page 3 he first saw the claimant but neck pain soon developed in the ensuing weeks. After conservative care did not relieve claimant's symptoms, claimant was referred to an orthopedic surgeon. This evaluation was not completed and claimant was then referred to the Mayo Clinic in June of 1988 for evalua tion. Physicians at the Mayo Clinic diagnosed cluster headaches, cervical degenerative disc disease, spondy lolithesis of the low back, deconditioning and chronic pain syndrome. These physicians felt that claimant's condition had stabilized and they rated claimant as suffering from a five percent permanent partial impairment to the body as a whole and imposed permanent restrictions against the per forming of heavy work. It is found that claimant reached maximum healing on June 23, 1988, the date of the evaluation at the Mayo Clinic. Initially, the Mayo Clinic doctors opined that the permanent partial impairment they had found was due to the work injury because claimant had reported to them no prior back problems. However, after receiving claimant's extensive prior medical history of back problems, this causal connection opinion was retracted. Claimant's prior existing upper and lower back problems began with a fall from a tree in 1972. In January 1978, claimant was involved in an auto accident in which he suf fered an injury of his cervical and lower back and numbness of the left arm and leg. Claimant was off work for several months. Claimant's injury was diagnosed as a sprain with minimal permanent partial impairment. In October 1978, claimant fell from a scaffold at home and suffered a broken ankle. Claimant admitted to back pain as well at this time. In 1978, claimant, with the assistance of his family physi cian at the time, Ronald Miller, M.D., established to state officials that claimant was permanently totally disabled from work due to leg, low back and upper back and neck prob lems. Between 1978 and 1986, claimant received intermittent care from Dr. Ronald Miller. However, claimant's treatment with Dr. Miller ended when claimant was injured while work ing as an iron worker in November of 1986 in the state of Wisconsin. Dr. Ronald Miller stated that he could no longer certify that claimant was disabled when claimant was working as an iron worker out of the state in Wisconsin. The November 1986 injury was later treated by Dr. Geoffrey Miller. The diagnosis at that time was "apparent back injury" with no evidence of pain or discomfort. Between November of 1986 and August 1987, claimant was primarily treated by Dr. Geoffrey Miller for alcohol abuse. Although Dr. Miller stated in his deposition that claimant never reported being free of back pain during this time period, claimant's back and neck problems were not a primary concern to him or claimant. A finding of fact that the work injury of August 10, 1987, was a cause of permanent partial impairment or work restrictions could not be made. Claimant failed to demon strate by the greater weight of the evidence that the work injury significantly contributes to his chronic low back and neck pain or work activity restrictions. Claimant clearly demonstrated that he does have permanent partial impairment and extensive work restrictions. Claimant also has a very pronounced chronic pain syndrome due to his inability to Page 4 cope with the chronic pain. However, claimant failed to show that the isolated work injury of August 10, 1987, after only a few hours on the job, was in any way a cause or a partial cause of his physical or mental problems. Claimant's failure stems from the lack of supportive medical opinion. Claimant's family practice physician, Dr. Geoffrey Miller, stated in his deposition that he felt claimant's increased pain after the fall was due to the fall but that he could not render an opinion that claimant's permanent and chronic pain is due to the fall. The doctor stated that claimant needs further treatment for alcohol abuse and deal ing with his pain at a pain clinic. He also strongly sug gested vocational rehabilitation. Claimant to date, how ever, has refused to participate in such endeavors. Dr. Miller believes that claimant is primarily interested in receiving disability benefits. On the issue of causal connection of claimant's chronic upper and lower back problems to the injury of August 10, 1987, the parties rely primarily on the views of two spe cialists. Claimant retained Richard Neiman, M.D., a neurol ogist and clinical professor of neurology at the University of Iowa Hospitals and Clinics. Dr. Neiman extensively reviewed all of claimant's medical records and after further testing, diagnosed that claimant has congenital stenosis or narrowing of the spinal canal at the C3-4 level of claimant's spine. Dr. Neiman did not feel that this narrow ing was work related but that there was also an extensive bone spur or arthritis placing pressure upon the spinal cord in the narrowed area which has enlarged since testing that was done before August 10, 1987. Dr. Neiman believes that the fall at Sulnel in August of 1987, aggravated the pre existing arthritis and accelerated the formation of the spur. Given the fact that claimant had minimal back and neck problems in the two month period prior to the injury, Dr. Neiman opined that this accelerated spur growth was the source of claimant's upper back problems. Dr. Neiman, however, was troubled by the lack of reported neck problems soon after the injury in the records of Dr. Geoffrey Miller and the fact that claimant had not worked in heavy labor more than a few hours in the eight year period before the injury. Dr. Neiman believes that surgery is necessary soon as there is a risk of further injury and even death from further encroachment upon the spinal cord in the upper back. Dr. Neiman could find no abnormalities to explain claimant's continuing low back problems. Dr. Neiman felt that 50 percent of the upper back problems were due to the work injury. On the other hand, Dr. William Robb, a board certified orthopedic surgeon, was retained by defendants. Dr. Robb also extensively reviewed claimant's medical records and disagrees with Dr. Neiman. He admits that there are changes that have occurred before and after the 1987 injury, but these were due to claimant's life-style, his occupation and prior injuries, his alcoholism, and claimant's nutritional problems and lack of physical fitness. Dr. Robb had previ ously extensively examined claimant before the 1987 injury. Dr. Neiman had only examined claimant once. Page 5 A neurosurgeon, Chad Abernathey, M.D., also evaluated claimant and agrees with Dr. Neiman as to the need to cor rect the narrowing in claimant's spine. However, he does not discuss in his letter report the accelerated spurring theory of Dr. Neiman and only states that it was not possi ble for him to "say with 100% certainty" whether the injury was or was not a cause of this problem. It is unclear how familiar Dr. Abernathey was with claimant's complete medical history. Given such a record, the undersigned is unable to decide which physician, Dr. Neiman or Dr. Robb, holds the most correct view. Both are equally well qualified and equally well informed on claimant's history. Neither physi cian appears to be outside of his specialty. Medical evi dence and opinion must be heavily relied upon in this case as the non-medical evidence by itself fails to show a clear causal connection to chronic pain. The proposition that claimant has been disabled since 1978 and that the events in November 1986 and August 1987, are only temporary aggrava tions of this prior condition is just as plausible as claimant's theory that the work injury added to his prob lems. As claimant has the burden of proof, a finding of fact on the issue of permanent partial impairment in favor of claimant cannot be made. Absent a finding of permanent partial impairment as a result of the work injury, a finding as to a loss of earning capacity is unnecessary. According to the prehearing report, there was to be a listing of requested medical expenses that remain unpaid. No list was submitted. Absent such a list, a specific find ing with reference to medical expenses cannot be made. However, it is found that the medical expenses from the date of injury through the date of the evaluation by the Mayo Clinic are causally connected to the injury and constitute reasonable and necessary treatment of the work injury. With reference to claimant's gross rate of weekly com pensation, it is found that claimant's work week at the time of injury consisted of seven days a week, 12 hours per day. Although defendants offered pay records showing fellow employees with considerably less hours per week, such evi dence failed to demonstrate whether these were customary or usual and whether these employees were performing iron work as opposed to other construction jobs at the construction site. This finding is based upon claimant's testimony and the reports of the vocational counselor in this case. It is also found that claimant's hourly rate was $14.78 per hour. This hourly rate was not disputed by defendants. Therefore, claimant had a gross weekly rate of compensation at the time of injury of $1,241.52. conclusions of law I. Claimant has the burden of proving by a prepon derance of the evidence that claimant received an injury which arose out of and in the course of employment. The Page 6 words "out of" refer to the cause or source of the injury. The words "in the course of" refer to the time and place and circumstances of the injury. See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). 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 therein. In the case sub judice, a work injury was found. However, the real issue in this case is the causal connec tion of this injury to claimant's back and neck problems. II. The claimant has the burden of proving by a pre ponderance of the evidence that the work injury is a cause of the claimed disability. A disability may be either tem porary or permanent. In the case of a claim for temporary disability, the claimant must establish that the work injury was a cause of absence from work and lost earnings during a period of recovery from the injury. Generally, a claim of permanent disability invokes an initial determination of whether the work injury was a cause of permanent physical impairment or permanent limitation in work activity. However, in some instances, such as a job transfer caused by a work injury, permanent disability benefits can be awarded without a showing of a causal connection to a physical change of condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). The question of causal connection is essentially within the domain of expert medical opinion. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion of experts need not be couched in definite, pos itive or unequivocal language and the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). 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 cir cumstances. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Furthermore, if the available expert testimony is insufficient alone to support a finding of causal connec tion, such testimony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. Asse Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish compensabil ity, the injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith, 290 N.W.2d 348, 354. In the case of a preexisting condi tion, an employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an Page 7 aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). In the case sub judice, claimant failed to show by the greater weight of the evidence a causal connection of the work injury to permanent partial impairment and therefore the claim for permanent partial disability will be denied. Pursuant to Iowa Code section 85.33(1), claimant is still entitled to weekly benefits for temporary total disability from the first day of disability after the work injury until claimant returns to work or until claimant is medically capable of returning to substantially similar work to the work he was performing at the time of the injury. However, claimant will never be able to return to iron work. It was found that claimant had not been able to perform iron work since 1978 and whenever he did so, he simply temporarily injured his back. None of the injuries after 1978 added to his disability. Therefore, temporary total disability bene fits end when claimant reached the same condition he was in prior to the August 10, 1987 injury. It was found in this case that this occurred at the time of the Mayo Clinic eval uation on June 23, 1988. Temporary total disability bene fits will be awarded accordingly. III. Claimant is entitled to reasonable medical expenses for treatment of a work injury under Iowa Code sec tion 85.27. As a list of requested expenses was not pro vided, no specific award can be made. IV. Claimant has the burden to establish a rate of compensation. In Iowa, the basis of compensation is the weekly earnings of the injured employee at the time of the injury. Iowa Code section 85.36. Weekly earnings is defined as follows in Chapter 85: Weekly earnings means gross salary, wages, or earnings of an employee to which such employee would have been entitled had the employee worked the customary hours for the full pay period in which the employee was injured, as regularly required by the employee's employer for the work or employment for which the employee was employed. ... Iowa Code section 85.36. This code section also provides various methods of com puting weekly earnings depending upon the type of earnings and employment. If an employee has not worked 13 weeks prior to the injury, you are to turn to similar employees in the similar occupation to arrive at a rate. The evidence presented made this impossible in this case. Therefore, it was found that the claimant's customary weekly pay was based upon claimant's testimony of seven days a week at 12 hours per day. This resulted in a gross weekly rate of $1,241.52. Such a rate entitles claimant to the maximum allowable weekly rate for temporary total disability according to the commissioner's rate booklet for an injury during fiscal year Page 8 1988 - $632.00 per week. Although a permanent partial disability award cannot be made for him, claimant is awarded costs as his claim was arguable and claimant appeared honest at the hearing. Defendants assert the application of Chapter 677 of the Iowa Code with reference to an offer to confess judgment. However, such offers are not to be offered into evidence and this was done in this case as joint exhibit C. In any event, although this decision found in favor of defendants on the issue of permanent partial disability, it found in favor of claimant on the issue of his weekly rate for temporary total disability benefits. No offer to confess judgment was made with reference to the rate issue. order 1. Claimant's claim for permanent partial disability benefits is denied. 2. Defendants shall pay to claimant temporary total disability benefits from August 10, 1987 through June 23, 1988, at the rate of six hundred thirty-two and no/l00 dollars ($632.00) per week. Defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for previous weekly benefits paid. 3. Defendants shall insure that all medical benefits incurred by claimant through the time of the Mayo Clinic evaluation in June 1988 are paid. 4. Defendants shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 5. Defendants shall pay the costs of this action pur suant to Division of Industrial Services Rule 343 IAC 4.33, including reimbursement to claimant for any filing fee paid in this matter. 6. Defendants shall file activity reports on the pay ment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343 IAC 3.l. Signed and filed this ____ day of December, 1990. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Thomas M. Wertz Attorney at Law 4089 21st Ave SW Page 9 Suite 114 Cedar Rapids IA 52404 Mr. James E. Shipman Attorney at Law 1200 MNB Bldg Cedar Rapids IA 52401 5-1803 Filed December 17, 1990 LARRY P. WALSHIRE before the iowa industrial commissioner ____________________________________________________________ : EDWIN E. SILVER, : : Claimant, : : vs. : : File No. 850694 SULNEL COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : STATE FARM INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803 Permanent partial disability benefits were denied for failure to show causal connection to a work injury.