9998 Filed September 17, 1991 Byron K. Orton BJO before the iowa industrial commissioner ____________________________________________________________ : THOMAS HOVEY, : : Claimant, : : vs. : : File No. 854004 QUAKER OATS COMPANY, : : A P P E A L Employer, : : D E C I S I O N and : : TRANSPORTATION INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 9998 Summary affirmance of deputy's decision filed April 26, 1990. BEFORE THE IOWA INDUSTRIAL COMMISSIONER THOMAS HOVEY, Claimant, VS. File No. 854004 QUAKER OATS COMPANY, A R B I T R A T I O N Employer, D E C I S I O N and TRANSPORTATION INSURANCE CO., Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by the claimant, Thomas Hovey, against Quaker Oats Company, employer, and Transportation Insurance Co., insurance carrier, defendants, to recover benefits as a result of an injury occurring on May 18, 1987. This matter came on for hearing before the deputy industrial commissioner in Cedar Rapids, Iowa, on February 28, 1990. The record consists of the testimony of the claimant, claimant's wife, Darlene Hovey, Ron Glawe and Kevin Crist; claimant's exhibits la through g, 2a and b, 3, and 6 through 8; and defendants' exhibits 1 through 7, 11 and 12. ISSUES The issues for resolution are: 1. The extent of claimant's permanent disability and any apportionment of claimant's permanent partial disability between her prior February 25, 1985 injury and her May 18, 1987 injury. 2. Whether claimant is entitled to have defendants pay the costs for claimant's copy of an original deposition of a witness taken by defendants. REVIEW OF THE EVIDENCE Claimant testified he graduated only from the eighth grade. He said he farmed with his father and worked one year in the construction work until he began working for defendant employer in the shipping department in 1956. He described his duties as involving unloading, driving a fork lift, assembly work, and many HOVEY V. QUAKER OATS COMPANY Page 2 other jobs until the last seven or eight years when he was involved in operating the palletizer machine, loading and feeding pallets into the machine and driving a fork lift. Claimant described his February 1985 injury in which he hurt his back. He said the nurse was busy that day and he was told to come back later, so he went back to work. Claimant stated he grabbed a fork lift and his back went out all the way. He said he could hardly walk. Claimant related he then had surgery and was off four and one-half months. Claimant testified he returned to his same job as a palletizer in June 1986. Claimant described his present May 18, 1987 injury which occurred when an air cylinder broke in the machine causing some pallets to jam. Claimant said he was leaning over to release a piece of metal (dog) to take out a pallet when his back went out. Claimant sought medical help and was put on light duty for three days. Claimant said he was sent to James R. LaMorgese, M.D., for a CT scan since his back was not getting any better. He was then sent to the hospital for a myelogram which indicated he needed surgery again. Claimant emphasized this was a new injury and separate from the 1985 injury. Claimant related the therapy and exercises at home made his pain worse. Claimant then had surgery on June 10, 1987, and returned to work on October 12, 1987. The claimant indicated the doctor let the claimant impose his own restriction; in other words, do what he thinks he can do. Claimant said the doctor did not think restrictions meant a lot. Claimant said the doctor restricted him to eight hours per day, thereby, preventing claimant from working overtime four additional hours per day. Claimant acknowledged he could work Saturdays for overtime but not a 12 hour day. Claimant said November 9, 1987 was the first time since his injury that he worked a full eight hour day. Claimant said no doctor put lifting restrictions on him. Claimant related he has to adjust to his job as a palletizer and on occasions asks for help in doing his job. He said he must now rest from time to time. He stated if he walks too far or is on his right leg too long, his right leg gets sore. Claimant indicated his back gets sore after he does a lot of activity. He said he takes Advil every day. Claimant indicated his pain is worse after his 1987 injury. Claimant related his pain did not bother him as much after his 1985 injury when he walked. He said he then could continue to keep going. Claimant indicates he now has to periodically rest. Claimant contends the fact he can't work overtime is a restriction. Claimant emphasized he worked overtime for several years prior to his 1987 injury and looked forward to it. HOVEY V. QUAKER OATS COMPANY Page 3 Claimant acknowledged he signed a workers' compensation settlement agreement regarding his 1985 injury agreeing to a 12.5 industrial disability. Claimant compared the pain difference between his 1985 injury versus his 1987 injury. Claimant admitted he is more careful now after his 1987 injury. Claimant said he has self-imposed a 50 pound lifting limit. Claimant acknowledged 1988 and 1989 were unusual overtime periods. He said he would like to retire at age 65 if he can afford it. He is fifth in seniority out of 100 to 120 workers. He stated this is a slow time of the year and there have been some layoffs. Claimant admitted he lost no work in 1988, 1989 or 1990 due to his back. Claimant acknowledged he has never complained to defendant employer as to any task he could not do. Claimant agreed if he asked for help, he always got it. Claimant acknowledged that the total overtime offered to a worker is not the number of overtime hours actually worked. He said he has not been to Dr. LaMorgese for one and one-half years and hasn't talked to the doctor about reconsidering the restrictions regarding overtime. He said the other employees, like himself, who worked overtime made $9,000 more per year than he did. Claimant said he has always worked overtime on weekends before and after his injury when given the opportunity. Darlene Hovey, claimant's wife, testified claimant's activities changed after his 1987 injury. She said they no longer go for drives after work, claimant cannot work in the garage repairing things for other people, and claimant cannot work on the furnace or water heater. She said claimant has other people to help him now. She related that claimant won't go shopping now because his right leg klunks as he walks due to numbness in his foot. She acknowledged claimant does mow the lawn with a riding mower and removes snow with a farm tractor. Ron Glawe testified he has been a supervisor of defendant employer's shipping department for 20 years this July and has been claimant's supervisor for 15 years. He said claimant is a good worker and they always maintained daily contact in the morning. Glawe related that claimant never complained of back problems any more since his 1987 injury than he did before his injury. He emphasized claimant has not done any substandard work and claimant's work behavior has not reflected an injury. Glawe said he also supervises others and claimant's' requests are asking for help, but he indicated claimant has not requested help any more frequently than he did before his 1987 injury; in other words, not more than once or twice a week. Glawe indicated he has seen no difference in claimant's productivity since claimant's 1987 injury and he sees no reason why claimant cannot continue his job in the future. Glawe said that unless the palletizer is malfunctioning, claimant has time to sit and watch the machine 25 percent of the HOVEY V. QUAKER OATS COMPANY Page 4 time. He stated that claimant can take 30 to 60 second rests or breaks but he has never seen claimant taking them. Glawe admitted claimant never refused overtime work on weekends or other days, if offered, except for the third shift. He said he was not aware of any special accommodations given claimant that was not given to others. Kevin Crist, safety and health manager for defendant employer for the last four years, testified at the hearing and by way of a deposition taken September 14, 1989, that he does not know claimant personally but is familiar with the company's production level. Crist stated the overtime offered to employees doubled during the 1988-1989 oat bran craze. Crist testified regarding Exhibit 12, defendant employer's payroll records which reflect overtime information. He explained that every employee in a department is offered overtime when available on an equitable basis, but the amount actually worked by the particular employee may be different. He also emphasized that if four hours is offered and refused, the record would reflect six hours offered because of time and a half pay for overtime. (If a weekend, time is double, four hours equal eight hours.) Crist related the oat bran craze has not continued into 1990 and defendant employer is expecting a 15 percent reduction in volume from 1989 production levels. Crist predicted a five.day week and a return to the 1987 level. He testified there have been layoffs in the last 60 days and that there have been 300 laid off this year. Crist agreed that claimant is unable to obtain the overtime offered during the day because of claimant's eight hours per day restriction. At the time of his deposition on September 14, 1989, Crist said claimant had 700 hours of overtime available to him as of August 1, 1989. He said this includes the one and one-half or double of the straight time hours and does not mean a person worked those hours, only that a person was offered them. Cindy Thul, manager of the financial accounting for defendant employer, testified by way of deposition taken October 18, 1989. She said she graduated from University of Northern Iowa in 1986 with an accounting degree and upon graduation began working for defendant employer. She said she currently works overseeing the payroll. Nothing else from her deposition testimony need be set out as it does not affect the outcome of this decision. The Iowa Musculoskeletal Center, P.C., records of claimant reflect claimant had surgery on March 22, 1985 for a lumbar laminectomy at L4, 5 on the right (Defendants' Exhibit 5, page 2, 9 and 10). These records on April 8, 1986 additionally show claimant was still complaining of neck and low back pain and Dr. LaMorgese gave claimant a 15 percent body as a whole permanent partial impairment. HOVEY V. QUAKER OATS COMPANY Page 5 On June 2, 1986, William John Robb, M.D., an orthopedic surgeon, opined claimant has a 30 percent impairment of the strength in the dorsal flexion of the right foot and some moderately.diminished sensation on the medial side of the right foot. He opined a 10 percent impairment to claimant's body as a whole. On May 26, 1987, the records reflect claimant began treatment for recurrent pain in his right leg as a result of a May 18, 1987 work injury. These records show claimant had a full hemilaminectomy at L5 with removal of some disc fragments and scar tissue on June 10, 1987 (Def. Ex. 5, p. 4 and 42). On December 14, 1987, the company medical records indicate: "Still no O.T. - next appt in 3 mos. Having hip pain for which meds are ordered - On vacation and doing alot of hunting." (Def. Ex. 5, p. 24) On December 23, 1987, the record indicates claimant was told he is not to work overtime but could work up to eight hours a day on Saturday and Sunday if need be. This restriction was continued per claimant's recheck visits on March 8, 1988 and July 12, 1988, at which time claimant was still complaining of right leg pain and numbness in the toes of the right foot. Claimant indicated he was still developing the pain when standing on his feet for a long time or doing a lot of walking. Claimant was to be seen again in six months. The record reflects no more visits to the doctor by claimant after July 12, 1988. (Def. Ex. 5, p. 5). Mercy Hospital records on May 5, 1988 show claimant was admitted that day due to right leg discomfort. The medical impression was: IMPRESSION: 1. Phlebothrombosis, right calf, probable, with resulting sympto- matology. Consider, but doubt a musculoskeketal [sic] type phenomenon, such as a muscle pul. 2. Arteriosclerotic cardiovascular disease with hypertension, not in good control. 3. Exogenous obesity, complicating the above. 4. History of L5-Sl disc in the right side, also with cervical disc sympto- matology. (Def. Ex. 5, p. 17) James R. LaMorgese, M.D., a neurologist, wrote: I feel that this patient suffered a new injury to his low back as a result of the May 18., 1987, injury. HOVEY V. QUAKER OATS COMPANY Page 6 The injury resulted in irritation of the Sl nerve root on the right. The irritation was caused by extrusion of new fragments underneath the posterior longitudinal ligament combined with adhesions from his previous surgery tethering the nerve root to the L5 body. I feel that the patient has suffered a new injury separate from his preexisting back injury at the L4,5 innerspace. (Def. Ex. 5, p. 47) On February 6, 1989, Dr. LaMorgese wrote to defendants, attorney, as follows: I am writing you in regard to your letter of February 1,, 1989, concerning Mr. Thomas Hovey. You asked me several questions in your letter concerning Mr. Hovey's 2nd surgery. You also mentioned the letter of June 22, 1987, that I sent to Cyndra Gratias of Crawford And Company. I believe my letter stands by itself in explaining my position in Mr. Hovey's case that led up to his 2nd surgery and my opinions as to why this surgery was performed. I feel that the degenerative changes noted on CT scanning of May 29, 1987, in the lower lumbar spine did not account for the patient's symptoms at that time and did not lead to his surgery. I felt that the new disk extrusion at L4,5 as a result of a new injury precipitated his surgery. I feel that Mr. Hovey has suffered a permanent impairment to the body as a whole of 5 per cent related to his new injury. You asked another question as to whether Mr. Hovey is restricted to a 40 hour work week or simply to a 8-hr-day with no restriction on the number of days worked. I believe my notes indicate that the patient was restricted to an 8-hr-day without restriction as to the number of days that he could work on an 8-hr-basis. I feel that this 8-hr work day restriction is a permanent one at the present time. (Def. Ex. 5, p. 63) On June 5, 1989, John R. Walker, M.D., wrote: At the present time I believe he has suffered a permanent, partial impairment amounting to an additional 10% which must be charged up to his last injury and which resulted in his last surgical procedure. This 10% should be added to his original permanent, partial impairment which apparently has already been awarded following his 1985 problems. As far as treatment is concerned, I certainly think he HOVEY V. QUAKER OATS COMPANY Page 7 should lose some 40 to 50 lbs. and believe at this time that there is certainly no surgical indication., (Claimant's Exhibit bit lc, pp. 7-8) Defendants' exhibit 3 reflects claimant's answer to defendants' interrogatory which shows claimant had back problems from 1985 to the date of his accident (May 18, 1987). Claimant's tax returns show claimant's 1986 income as $29,370.25, 1987 as $20,098.43, 1988 as $33,633.00, and 1989 as $35,658.83 (Def. Ex. 7). APPLICABLE LAW AND ANALYSIS 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). If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." The opinion of the supreme court in Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251 (1963), cited with approval a decision of the industrial commissioner for the following proposition: Disability * * * as defined by the Compensation Act means industrial disability, although functional disability is an element to be considered.... In determining industrial disability, consideration may be given to the injured employee's age, education, qualifications, experience and his inability, because of the injury, to engage in employment for which he is fitted. Functional impairment is an element to be considered in determining industrial disability which is the reduction.of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). HOVEY V. QUAKER OATS COMPANY Page 8 Apportionment of disability between a preexisting condition and an injury is proper only when there was some ascertainable disability which existed independently before the injury occurred. Varied Enterprises, Inc. v.Sumner, 353 N.W.2d 407 (Iowa 1984) The burden of showing that disability is attributable to a preexisting condition.is, of course, placed upon the defendant. If evidence to establish a proper apportionment is absent, the defendant is responsible for the entire disability that exists. Varied Enterprises, Inc., 353 N.W. 2d 407; Becker v. D & E Distributing Co., 247 N.W.2d 727, 731 (Iowa 1976); 2A Larson Workmen's Compensation Law, SS 59.22; 22 Am.Jur.2d SS 122; 2 Damages & Tort Actions SS 15.34[l](a). Claimant is a 54-year-old grade school graduate. He began working for defendant employer in 1956 in the shipping department and has done various types of jobs within that department. For the last seven or eight years claimant has been operating the palletizer machine, loading and unloading pallets into the machine, and driving a fork lift. There is no dispute that claimant was injured on May 18, 1987. The main dispute is the extent of claimant's industrial disability. Claimant incurred a work-related low back injury on February 25, 1985, resulting in surgery. He settled that case on his own and the agreement awarded claimant a 12.5 percent industrial disability. The medical evidence at the time showed Dr. LaMorgese opined a 15 percent permanent impairment to claimant's body as a whole and Dr. Robb opined a 10 percent permanent impairment of function to claimant's body as a whole. Dr. Robb also referred to a 30 percent impairment of strength in the dorsiflexion of claimant's right foot and some moderate diminished sensation on the right medial side of claimant's right foot. Claimant apparently contends his current problems basically arise from his new injury on May 18, 1987, and that his right foot problems are much worse. Claimant was admitted to the hospital for right leg discomfort in May 1986. It would appear claimant is down-playing the residual pain that resulted from his first injury in 1985. The records indicate claimant was having some pain problems in his back and leg up to his 1987 injury. This is not a surprise as claimant had previously agreed to industrial disability of 12.5 percent for his first low back injury. Claimant contends he has a loss of earning capacity because he is prevented from doing overtime of four hours per day on weekdays. This last overtime work limit was continued for claimant as a result of a July 12, 1988 visit to Dr.LaMorgese (Def. Ex. 5, p. 5). Claimant was limited to working eight hours per day instead of eight hours plus four hours overtime, if available. Claimant could work eight hours on a Saturday and Sunday if he wanted overtime. Claimant related his desire to work all the overtime he could as he was paid time and a half or HOVEY V. QUAKER OATS COMPANY Page 9 double time. Claimant indicated that prior to his May 18, 1987 injury, he tried to work all the overtime he was offered except for the third shift. Mr.Glawe testified that claimant worked all the weekends and overtime he could prior to May 1987. Claimant acknowledged he has no lifting restrictions imposed by a doctor. He said he is more careful now than he was after his first injury. Claimant said the eight hours restriction is still existing. Defendants' Exhibit 5, page 5 indicates claimant was told on July 12, 1988 that he was to come back to Dr. LaMorgese in six months (January 12, 1989). The record shows claimant has not been back to the doctor since his July 12, 1988 visit (Def. Ex. 5, p. 5) It appears the doctor was monitoring claimant's condition every three to six months on whether to continue the "no overtime-on-weekdays" restriction. The questions looms whether that would be the restriction today, 21 months later, or would the doctor have discontinued this restriction if claimant had kept his appointment on or around January 1989. Claimant testified he may be more careful now of course, there is a limit usually as to how consistent one can work twelve hours a day with a 12.5 percent permanent partial impairment. The medical records (Def. Ex. 5, p..24) indicate on December 14, 1987 that claimant was doing a lot of hunting. Whether claimant's filing his petition on August 9, 1988 affected his returning to the doctor concerning his overtime restriction, is also a question. It is basically to claimant's advantage while litigation is pending to not seek a more current medical opinion at defendants' expense to see if the overtime restriction is still valid. The evidence shows claimant's income was $29,370.25 in 1986, $20,098.43 in 1987 (the year of the injury and several months of healing period), $33,663.00 in 1988, and $35,658.83 in 1989. Claimant testified he feels he has lost up to $9,000 per year overtime. Mr. Crist, the safety and health manager of defendant employer, testified that the oat bran craze resulted in doubling the overtime offered to workers in 1988 and 1989. It is obvious this craze caught the defendant employer by surprise. Likewise, he said the craze is now lessening and defendant employer anticipates a 15 percent reduction in 1990 and has already laid off a number of workers. We see unusual swings in many industries and short-lived crazes and commercial phenomenons, many of which cannot be predicted. It is common sense that an industry would not pay overtime consistently for years on a widespread basis when they can save half or double the amount of money by hiring regular time workers. In looking over the income evidence, it appears claimant contends he has now lost as a result of his May 1987 injury substantial overtime income and that his loss will apparently exist indefinitely, or at least until claimant is 65. The undersigned finds this is pure speculation. One could speculate that the current downtrend Mr. Crist related could result in no overtime. The evidence supports HOVEY V. QUAKER OATS COMPANY Page 10 the fact that the last two or three years have been unusual. Claimant's weekly rate adequately reflects claimant's situation at the time of his 1987 injury. Claimant agreed to a 12.5 industrial disability based upon a 10 to 15 percent permanent partial impairment to his body as a whole as a result of his 1985 injury. Dr. Walker opined a 10 percent permanent partial impairment to claimant's body as a whole due to claimant's second injury, May 18, 1987 and Dr. LaMorgese opined a 5 percent permanent partial impairment to claimant's body as a whole. If one wanted to draw a comparison between claimant's two injuries, one could conclude that claimant has a 7.5 percent industrial disability incurred from his May 18, 1987 injury. Defendants have offered to confess judgment for a 7 percent industrial disability. It appears defendants may have used the comparison to arrive at its 7 percent industrial disability for which it confessed judgment. It is important to remember that the determination of industrial disability is an evaluation concerning many factors and is not a mathematical calculation. The undersigned finds claimant has incurred a 7 percent permanent partial impairment to his body as a whole. After considering all the evidence of claimant's prior injury resulting in a 12.5 industrial disability, his income before and after the injury, his age, his education, motivation, ability to engage in the employment for which he is fitted and has been employed for 35 years, the nature of his injury and surgery, and all the other criteria to be considered in determining claimant's industrial disability, the undersigned finds claimant has incurred an additional industrial disability of 10 percent as a result of claimant's May 18, 1987 work-related low back injury. Claimant's total current disability from both injuries is 22.5 percent. Claimant withdrew his 86.13 issue after the parties were allowed to orally argue or discuss their case after all the evidence was presented. The court reporter had already,.been excused. Therefore, the withdrawal of this issue is not otherwise on the record. The final issue for resolution is whether claimant is entitled to be reimbursed by defendants for costs of claimant's own copy of an original deposition taken by defendants of a potential witness. This needs no lengthy discussion. Any party desiring a copy of an original deposition taken by another party is to consider.the expense as a cost of doing business. A party, in this case the defendants, is responsible for the payment of the original deposition the defendants took, plus defendants' own copy for litigation purposes. Claimant is to pay for his own copy of the original deposition, if claimant desires to order his own copy for trial preparation. HOVEY V. QUAKER OATS COMPANY Page 11 FINDINGS OF FACT 1. Claimant incurred a work-related low back injury on May 18, 1987, which resulted in a full hemilaminectomy of L5 with removal of some disc fragments on June 10, 1987. 2. Claimant incurred a lumbar laminectomy of L4-5 on the right on March 22, 1985, as a result of a February 25, 1985 low back injury which resulted in a 12.5 percent industrial disability to claimant, which industrial disability preexisted claimant's May 18, 1987 injury. 3. Claimant has a 12.5 preexisting industrial disability as a result of claimant's February 25, 1985 low back injury. 4. Claimant's work-related injury on May 18, 1987 resulted in an additional 7 percent permanent impairment to claimant's body as a whole. 5. Claimant is working full-time at the same job he had at the time of his May 18, 1987 work injury and is making more money now than he was at the time of that injury. 6. Claimant has a 10 percent loss of earning capacity as a result of his May 18, 1987 injury. 7. Claimant is responsible for his own copy of the original copy of a deposition taken of a witness. CONCLUSIONS OF LAW Claimant's work-related low back injury on May 18, 1987 caused an additional 7 percent permanent partial impairment to claimant's body as a whole. Claimant has a 12.5 percent preexisting industrial disability caused by his February 25, 1985 work-related low back injury. Claimant has an additional 10 percent industrial disability caused by his May 18, 1987 work-related low back injury. Claimant has a 22.5 percent industrial disability of which 12.5 percent is preexisting his May l8, 1987 injury. ORDER THEREFORE, it is ordered: That claimant is entitled to fifty (50) weeks of permanent partial disability benefits at the weekly rate of three hundred HOVEY V. QUAKER OATS COMPANY Page 12 twenty-nine and 34/100 dollars ($329.34) beginning December 23, 1987. 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 previously paid all healing period benefits which have been stipulated and agreed to by the parties plus five percent (5%) permanent partial disability benefits. That claimant shall pay for his own copy of the witness' deposition taken by defendants. 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 26th day of April, 1990. BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Robert R Rush Mr Matthew J Nagle Attorneys at Law 526 2nd Ave SE P 0 Box 2457 Cedar Rapids IA 52406 Mr James E Shipman Mr James M Peters Attorney at Law 1200 MNB Bldg Cedar Rapids IA 52401 5-1803; 5-1806 Filed April 26, 1990 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER THOMAS HOVEY, Claimant, File No. 854004 VS. A R B I T R A T I O N QUAKER OATS COMPANY, D E C I S I O N Employer, and TRANSPORTATION INSURANCE CO., Insurance Carrier, Defendants. 5-1806 Claimant had a 12.5 preexisting industrial disability which claimant himself settled. In this prior injury, claimant's medical doctors opined a 10-15% permanent partial impairment to claimant's body as a whole. Apportionment applied in current decision. 5-1803 Claimant awarded 10% additional industrial disability. Claimant incurred a 7% permanent partial impairment to his body as a whole. The preexisting industrial disability and additional industrial disability equaled 22.5%. Page 1 before the iowa industrial commissioner ____________________________________________________________ : PATRICIA LAVOIE, : : Claimant, : : vs. : : File No. 854432 DES MOINES BALLET, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration upon the petition of claimant, Patricia LaVoie, against her employer, Des Moines Ballet, and its insurance carrier, Liberty Mutual Insurance, defendants. The case was heard on January 11, 1990, in Des Moines, Iowa at the office of the industrial commissioner. The record consists of the testimony of claimant and the testimony of Lynn Andlauer, education director at the Des Moines Ballet, Margaret LaVoie, mother of claimant, and Dorothea Albert, executive director. Additionally, the record consists of joint exhibits 1-19. issues The only issues to be determined are: 1) whether claimant is entitled to temporary total disability or healing period benefits; 2) whether claimant is entitled to medical benefits; and, 3) whether claimant is entitled to penalty benefits under section 86.13. The issue of permanency has been bifurcated. findings of fact The deputy, having heard the testimony and considered all the evidence, finds: Claimant, at the time of the hearing, was 29 years old. From August of 1985 to June of 1987, claimant was employed as a ballet dancer with defendant-employer. Claimant was hired each year pursuant to a written contract. On May 30, 1987, claimant was engaged in rehearsing for a company production. She felt pain in her right foot after coming down from a jump during a rehearsal. Claimant was sent to William Boulden, M.D. Dr. Boulden Page 2 ordered a bone scan of the right foot. The bone scan revealed a stress fracture at the base of the second metatarsal. Dr. Boulden restricted claimant from ballet dancing for six weeks. He also prescribed swimming and after several weeks a stationary bicycle. Claimant informed Dr. Boulden she would be returning to New Hampshire for the summer and Dr. Boulden agreed to send his reports to the physician. Upon her return home, claimant sought treatment from M. Dennis Wachs, M.D., an orthopedic surgeon. He diagnosed claimant as recovering from a stress fracture and as having a spur in the base of her first metatarsal at the metatarsal-tarsal joint. Dr. Wachs ordered physical therapy which claimant had from August of 1987 through September of 1987. On November 25, 1987, claimant returned to Dr. Wachs for follow up care. The office notes for that date reflect the following: Has been rebuilding her lower extremities to get back to ballet, she has began doing small & bit leaps, started doing some toe dances & got into discomfort in her left foot. She did have some swelling for a short while, & it has quieted down, begun to be more active again & is building up slowly. EXAM: no tenderness, no swelling, no heat, no tendonitis that is palpable, no crepitus,no [sic] thickening of the joint, ROM is more than full. IMP: Reaction of her body reaccomdating [sic] to what she does & is not a stress fx.I [sic] think it is an inflammatory reaction P/ Continue on with her training, we discussed training. RECK . PRN Claimant was then referred by Dr. Wachs to William G. Hamilton, M.D., an orthopedic surgeon who had an expertise in injuries sustained by ballet dancers. Dr. Hamilton diagnosed claimant's condition as of February 17, 1988: FEBRUARY 17, 1988 A 27 year old female with documented stress fracture base of the right second metatarsal in May of '87. It subsequently healed. She was dancing this Fall, totally asymptomatic; when she went into toe shoes in December she had some mild recurrence of her pain. On physical exam today, though, she is not very painful. X-rays, which she brought with her, are normal. Before we work this up I want to make sure that we do have a problem here, so I have recommended that Page 3 she go very slowly in some toe shoes and see if the discomfort she is having wasn't just the discomfort you might expect when getting back into toe shoes after being off for several months. She is going to take some classes with Tina Bernal and call me next week. If she is persistently symptomatic then we'll get another bone scan and a CAT scan to see if she has any unrecognized pathology. Later Dr. Hamilton indicated the aforementioned incident in December of 1987, was a continuation of claimant's work injury of May 30, 1987. It was not a separate or new injury. Dr. Hamilton prescribed physical therapy three times per week for claimant's right foot. She had physical therapy treatments on: March 14, 1988, April 7, 1988, April 13, 1988, April 20, 1988, April 27, 1988, May 4, 1988, May 11, 1988, May 18, 1988, May 31, 1988 and June 7, 1988. Claimant testified she could only afford therapy once a week as her benefits had been terminated by defendant insurance carrier. Claimant also obtained a medical opinion from Robert H. Feldman, M.D. On his report of April 28, 1988, Dr. Feldman opined: This is to certify that the above captioned is a patient under my care. Ms. Lavoie is suffering from chronic myofasciitis [sic] of the right foot, and is status post stress fracture. She has not been able to function as per her previous capacity and may not resume her dancing until further notice. In November of 1988, Dr. Feldman opined: "Patricia LaVoie is disabled resulting from employment as a ballet dancer." As of November of 1988, claimant sought employment with the American Red Cross as a telemarketer. She earned $513.00 in gross wages for 1988. Claimant did not begin teaching dance on a regular basis until September of 1989. Defendants terminated claimant's benefits as of January 4, 1988. conclusions of law An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). Claimant is requesting temporary total disability benefits from May 30, 1987 to November 30, 1988, and temporary partial disability benefits from November 30, 1988 through December 31, 1989. Claimant is also requesting a running award for temporary total or temporary partial disability benefits. Defendants argue claimant was paid Page 4 30.857 weeks of temporary benefits. Section 85.33(1) governs the payment of temporary total disability benefits. It provides: Except as provided in subsection 2 of this section, the employer shall pay to an employee for injury producing temporary total disability weekly compensation benefits, as provided in section 85.32, until the employee has returned to work or is medically capable of returning to employment substantially similar to the employment in which the employee was engaged at the time of injury, whichever occurs first. Section 85.33(2) deals with temporary partial disability benefits. It provides as follows: "Temporary partial disability" or "temporarily, partially disabled" means the condition of an employee for whom it is medically indicated that the employee is not capable of returning to employment substantially similar to the employment in which the employee was engaged at the time of injury, but is able to perform other work consistent with the employee's disability. "Temporary partial benefits" means benefits payable, in lieu of temporary total disability and healing period benefits, to an employee because of the employee's temporary partial reduction in earning ability as a result of the employee's temporary partial disability. Temporary partial benefits shall not be considered benefits payable to an employee, upon termination of temporary partial or temporary total disability, because the employee is not able to secure work paying weekly earnings equal to the employee's weekly earnings at the time of injury. Claimant has been engaged in a highly competitive field where employment is sporadic. Even for healthy dancers, the market is slim and dancers are forced to audition by the "cattle call method." Employment is not often regular and it is quite common for dancers to "moonlight." Claimant has been temporarily and totally disabled because of her work injury from May 30, 1987 through November 30, 1988. Defendants argue the incident in November or December of 1987 where claimant sustained pain and inflammation to her right foot was unrelated to claimant's work injury. However, Dr. Hamilton has determined claimant's condition as of February 11, 1988, was related to the injury of May 30, 1987. Claimant testified that she was unable to seek work as a dancer or as an instructor until December of 1988. Claimant received physical therapy treatments through June of 1988. She would have liked additional therapy, but she was financially unable to continue. Had defendants offered additional physical therapy sessions, claimant may have been Page 5 able to seek a position in dance prior to December of 1988. As of December of 1988, claimant was able to return to a position substantially similar to the employment in which claimant was engaged. She was actively seeking employment in the dance field. Moreover, in January of 1989, claimant did obtain a position with the Londonderry Dance Academy as a dance instructor. She was to start in the fall of 1989. Claimant commenced her employment. At the time of the hearing, claimant was still employed by the Academy. Therefore, it is the determination that defendants are liable for temporary total disability benefits for the period from May 30, 1987 to November 30, 1988. As of December 1, 1988, claimant was able to engage in substantially similar employment. The period involves 78.714 weeks at the stipulated rate of $134.62. The next issue to address is medical benefits. Section 85.27 deals with these. The section reads: The employer, for all injuries compensable under this chapter or chapter 85A, shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing ambulance and hospital services and supplies therefor and shall allow reasonably necessary transportation expenses incurred for such services. The employer shall also furnish reasonable and necessary crutches, artificial members and appliances but shall not be required to furnish more than one set of permanent prosthetic devices. ... For purposes of this section, the employer is obliged to furnish reasonable services and supplies to treat an injured employee, and has the right to choose the care. The treatment must be offered promptly and be reasonably suited to treat the injury without undue inconvenience to the employee. If the employee has reason to be dissatisfied with the care offered, the employee should communicate the basis of such dissatisfaction to the employer, in writing if requested, following which the employer and the employee may agree to alternate care reasonably suited to treat the injury. If the employer and employee cannot agree on such alternate care, the commissioner may, upon application and reasonable proofs of the necessity therefor, allow and order other care. In an emergency, the employee may choose the employee's care at the employer's expense, provided the employer or the employer's agent cannot be reached immediately. In the case at hand, defendants denied payment of any medical expenses incurred after January 4, 1988. They cannot now argue the charges were unauthorized. See Holbert v. Townsend Eng'r. Co., Thirty-Second Biennial Rep., Iowa Page 6 Indus. Comm'r 78, 80 (Review Dec. 1975). Therefore, it is the determination that claimant is to be reimbursed for out of pocket medical expenses which she has incurred. These are: 2-17-88 Dr. Hamilton $100.00 4/88 thru 6/88 East Side P.T. 500.00 4/88 Dr. Ieidman 180.00 4/89 Dr. Wachs 32.00 Total $812.00 Claimant is also entitled to reasonable and necessary future medical expenses. Under section 85.27, these include reasonable and necessary physical therapy treatments for claimant's right foot which are related to her May 30, 1987 work injury. It appears, given claimant's geographical location, that Dr. Wachs is a proper physician to direct the care and therapy. Finally, there is the issue of section 86.13 penalty benefits. Claimant alleges she is entitled to the same. Page 7 Section 86.13 of the Iowa Code provides in relevant portion: If a delay in commencement or termination of benefits occurs without reasonable or probable cause or excuse, the industrial commissioner shall award benefits in addition to those benefits payable under this chapter, or chapter 85, 85A, or 85B, up to fifty percent of the amount of benefits that were unreasonably delayed or denied. Under section 86.13, benefits are not awarded for medical expenses. The section 86.13 benefits are only applicable to weekly compensation benefits. Zahn v. Iowa State Men's Reformatory, IV Iowa Industrial Commissioner Report 409 (1983). If it is alleged that an employer wrongfully withholds weekly compensation benefits from a claimant, the claimant must establish the benefits were withheld unreasonably in order for the claimant to receive additional benefits under section 86.13. Curtis v. Swift Independent Packing, IV Iowa Industrial Commissioner Report 88 at 93 (1984). In a previous decision before the Division of Industrial Services, a hearing deputy has ruled that it was reasonable for an employer to withhold benefits when the employer was not alerted to occurrences which would notify a reasonable person that benefits would be due or when there was no work time lost. McCormack v. Sunsprout, I-l Iowa Industrial Commissioner Decisions 142 at 144 (1984). In a separate decision before the Division of Industrial Services, the same deputy industrial commissioner awarded benefits under section 86.13. Here there was an unreasonable delay since there were no contradictions in the claimant's claim. Willis v. Ruan Transport Corporation, IV Iowa Industrial Commissioner Report 395 at 396 (1984). In the Willis case at 396 the deputy wrote: ...Reports and letters from the doctor are consistent with claimant's statements regarding his injury. There were no ambiguities and inconsistencies in claimant's claim. Withholding benefits was arbitrary and unreasonable. The five percent award based on Iowa Code section 86.13 will be attached to healing period only. Although the evidence presented clearly relates claimant's permanent impairment to his injury, defendants will be given the benefit of the doubt as to whether or not a failure to pay permanent disability also was unreasonable. Claimant had prior back troubles and conceivably some portion of his impairment might have been related to those difficulties or to a preexisting arthritis rather than to his injury. See also Walter L. Peterman v. American Freight System, File No. 747931 (Arbitration Decision August 10, 1988). Page 8 Claimant has met her burden of proving that defendant Liberty Mutual did unreasonably withhold her weekly compensation benefits. Initially, it would not have been unreasonable for defendant Liberty Mutual to deny weekly compensation. Dr. Wachs believed that claimant could return to dancing in December of 1987 or January of 1988. However, once defendants learned from Dr. Hamilton that claimant was still having difficulties because of her work injury, defendants should have reinstituted the weekly benefits. It appears defendant-insurance carrier did little in the way of investigation once claimant moved out of state. It is the determination of the undersigned that defendants are liable for ten (10) weeks of 86.13 penalty benefits. order THEREFORE, IT IS ORDERED: Defendants are to pay temporary total disability benefits for the period from May 30, 1987 through November 30, 1988, a period of seventy-eight point eight-five-seven (78.857) weeks at the stipulated rate of one hundred thirty-four and 62/l00 dollars ($134.62) per week. Defendants shall receive credit for all benefits previously paid and not credited. Payments that have accrued shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. Defendant Liberty Mutual is to also pay unto claimant ten (10) weeks of section 86.13 penalty benefits at fifty percent (50%) of the stipulated rate of one hundred thirty-four and 62/l00 dollars ($134.62) with interest from the date of this decision. Defendants are to reimburse claimant for out-of-pocket medical expenses in the sum of eight hundred twelve and no/l00 dollars ($812.00). Defendants are to provide reasonable and necessary future medical expenses including physical therapy. Costs of the action shall be assessed to defendants pursuant to Division of Industrial Services Rule 343-4.33. Defendants shall file a claim activity report upon payment of this award. Signed and filed this ____ day of September, 1990. ______________________________ Page 9 MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Harry W. Dahl Attorney at Law 974 73rd St Suite 16 Des Moines IA 50312 Mr. Joseph A. Happe Attorney at Law 500 Liberty Bldg Des Moines IA 50309 1801; 4000.2 Filed September 13, 1990 MICHELLE A. McGOVERN before the iowa industrial commissioner ____________________________________________________________ : PATRICIA LAVOIE, : : Claimant, : : vs. : : File No. 854432 DES MOINES BALLET, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1801 Claimant was a ballet dancer. She injured her right foot when she was jumping during a rehearsal. Claimant was awarded 78.857 weeks of temporary total disability benefits as she could not return to substantially similar employment until that time. 4000.2 Claimant was also awarded 10 weeks of section 86.13 penalty benefits. Defendant-insurance carrier terminated benefits after a period of time. The company refused to reinstitute the benefits after a physician had determined claimant's condition was causally connected to her work injury. before the iowa industrial commissioner ____________________________________________________________ : KAREN HAMILTON, : : Claimant, : File Nos. 854465/877068 : vs. : A P P E A L : COMBINED INS. OF AMERICA, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed February 21, 1991 is affirmed and is adopted as the final agency action in this case. Defendant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of October, 1991. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Steven C. Jayne Attorney at Law 5835 Grand Ave., Ste 201 Des Moines, Iowa 50312 Mr. Helmut Mueller Attorney at Law Rural Route 5 Osceola, Iowa 50213 Mr. Harry W. Dahl Attorney at Law 974 73rd St., Ste 16 Des Moines, Iowa 50312 9998 Filed October 31, 1991 Byron K. Orton DRR before the iowa industrial commissioner ____________________________________________________________ : KAREN HAMILTON, : : Claimant, : File Nos. 854465/877068 : vs. : A P P E A L : COMBINED INS. OF AMERICA, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 9998 Summary affirmance of deputy's decision filed February 21, 1991. Page 1 before the iowa industrial commissioner ____________________________________________________________ : KAREN HAMILTON, : : File Nos. 854465 Claimant, : 877068 : vs. : A R B I T R A T I O N : COMBINED INS. OF AMERICA, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ____________________________________________________________ statement of the case The above captioned matters were consolidated by an Order filed August 10, 1988. File number 854465 is a proceeding in arbitration upon claimant's petition filed June 14, 1988. Karen Hamilton alleges that she sustained injuries to her back and leg when she suffered a fall while getting out of her car in the course of employment as an insurance salesperson for defendant self-insured employer Combined Insurance Company of America. She now seeks benefits under the Iowa Workers' Compensation Act. File number 877068 is also a proceeding in arbitration upon a petition of June 14, 1988. Claimant alleges that, due to weakness in one hip and dizziness related to a medication prescribed for treatment of her earlier injury, she fell into an iron railing on November 3, 1987, causing severe injuries to her face and neck. She also seeks benefits for this injury under the Iowa Workers' Compensation Act from defendant Combined Insurance Company of America. Hearing on the arbitration petitions was had in Des Moines, Iowa, on May 30, 1990. Witnesses at the hearing included claimant, Earl Hamilton, Ronald Musselman, Jeff Johnson, Donald Reck and Kathleen Runyan. Claimant's exhibits 4, 6, 7 and 8 were received into evidence. Claimant's exhibits 1, 2 and 3 were offered, but excluded upon objection. Claimant's exhibit 5 was offered and objections taken under advisement. Defendant's objection is now overruled and claimant's exhibit 5 received. Joint exhibits A through N, inclusive, were admitted, except that certain objections interposed during the course of deposition exhibits C, G, M and E were taken under advisement. All such objections are now overruled. The writer also discovered that pages 17-19 of exhibit E were omitted. Upon notification, defendant subsequently filed an Page 2 unresisted Motion to Reopen the Record so as to offer those pages. The motion is hereby sustained. Attorneys for both parties submitted articulate and helpful briefs. issues In file number 854465, the parties have stipulated: that claimant sustained an injury arising out of and in the course of her employment with Combined Insurance Company of America on April 17, 1987; that the injury caused temporary disability; that if the injury caused permanent disability, it is an industrial disability to the body as a whole; that the proper rate of weekly benefits is $175.66; that defendant paid 16 and 3/7 weeks of compensation at the rate of $152.97 prior to hearing. Issues presented for resolution in file number 854465 include: the extent of claimant's entitlement to temporary total disability or healing period; whether the work injury caused permanent disability and the extent and commencement date thereof; the extent of claimant's entitlement to medical benefits (it is stipulated that the fees and expenses charged for medical services or supplies are fair and reasonable and incurred for reasonable and necessary medical treatment, but causal connection to the work injury is disputed); taxation of costs. In file number 877068, the parties have stipulated: that an employment relationship existed between claimant and employer at the time of the alleged injury; that the proper rate of weekly benefits is $175.66. Issues presented for resolution in file number 877068 include: whether claimant sustained an injury arising out of and in the course of her employment on November 3, 1987 (or, more to the point, whether the injury claimant undoubtedly suffered on that date is a sequela of the first work injury); whether the injury caused temporary or permanent disability, the extent of each and the nature and commencement date of the latter; the extent of entitlement to medical benefits (it being again stipulated that the fees and expenses charged for medical services or supplies are fair and reasonable and incurred for reasonable and necessary medical treatment, but it is disputed whether those expenses are causally related to the work injury); taxation of costs. In each file, defendant has asserted lack of authorization as a defense to medical benefits under Iowa Code section 85.27. An employer's obligation to furnish medical treatment under Iowa Code section 85.27 carries with it the privilege of selecting the care. Boyce v. Consumers Supply Dist. Co., II Iowa Industrial Commissioner Report 50 (App. Decn., 1981). However, defendant cannot deny liability on the claim and also seek to guide the course of treatment. Barnhart v. MAQ, Inc., I Iowa Industrial Page 3 Commissioner Report 16 (1981). In file number 877068, defendant has never admitted liability. In file number 854465, defendant's answer filed July 1, 1988 admitted "that the claimant have [sic] had an episode of some kind getting out of a car on the date alleged," but subsequently referred to that injury as "alleged" and prayed that the commissioner dismiss the petition. In a first amendment to answer filed July 26, 1989, defendant admitted that claimant sustained injury getting out of her car, but it was unclear whether this was intended to constitute an admission that the injury arose out of and in the course of employment. This was clarified at the prehearing conference held January 23, 1990, when defendant asserted that "arising out of" remained an issue to be determined at hearing. Only on the day of hearing, May 30, 1990, did defendant concede that the April 17, 1987 injury arose out of and in the course of employment. This late-breaking admission of liability does not operate to retroactively confer upon defendant the right to control medical treatment. The authorization defense is frivolous and shall not be further considered. findings of fact The undersigned deputy industrial commissioner, having heard the testimony and considered all of the evidence, finds: Karen Hamilton, 39 years of age at the time of hearing, proved to be an entirely credible witness. She has lived on a farm in the Weldon, Iowa area since the age of two. She is a 1969 high school graduate and also attended courses requisite to state licensure for insurance sales. Claimant's work history includes being a nurse's aide for a short time following graduation from high school, several months' employment as a bookkeeper for a local newspaper, several months of employment as a sales clerk for a department or dime store, one to two years of clerical work for a bank, several months of employment as a legal secretary, approximately one year as a factory employee running a drill press, approximately ten years out of the labor market while raising her children, short part-time employment as a bookkeeper for a realty company, part-time employment as a salesperson for a cosmetics business and employment beginning in March 1986 as an insurance salesperson of accident and sickness policies for Combined. During this time, claimant has also performed many chores on the acreage where she lives, including caring for livestock. Prior to beginning work with Combined, claimant had no history of psychiatric care, no history of dizzy spells or faintness, and no history of medical treatment to the lower back or hips, although she does have a history of chiropractic treatment to the thoracic spine (between the shoulder blades). Claimant's job as an insurance salesperson included making many rural sales visits, both on referral from Page 4 existing customers and as "cold" calls. On April 17, 1987, while making a sales call, claimant caught her foot while getting out of her car and fell, causing pain to the lower back and legs. She immediately sought treatment from her previous treating chiropractor, C. E. Tindle, D.C. She underwent further manipulative therapy for what Dr. Tindle diagnosed as a "vertebral subluxation" on April 17, 20, 24, 28 and May 1, 4 and 8. Dr. Tindle apparently thereafter left on vacation and claimant began seeing James E. Audlehelm, D.C., who testified by deposition on May 3, 1990. The initial history given to Dr. Audlehelm on May 12, 1987 was of a fall injuring the back and left knee and with headaches and pain in the right hip thereafter, mostly at night. Dr. Audlehelm treated claimant with chiropractic manipulation and ultrasound therapy, apparently effective enough in relieving pain that claimant has continued to see him to date. Dr. Audlehelm felt that claimant had suffered muscle spasm, which he testified he could feel as a treating physician. Muscle spasm was reported in the lumbar spine and the cervical spine (which he felt was causally related to reported headaches). He opined that these spasms were directly caused by the April fall. Claimant was also seen by D. D. Wilken, M.D., on June 13 and June 23, 1987. A CT scan of the lumbar spine was taken and reported normal. Thereafter, claimant was referred to Peter D. Wirtz, M.D. Dr. Wirtz, who first saw her on July 1, 1987, is a board certified orthopaedic surgeon and testified by deposition on September 15, 1989. His initial diagnosis was of a healed contusion to the left knee and muscular strain to the right lower back area, which at that time disabled her from employment. Claimant and Dr. Wirtz have markedly different recollections as to what occurred on July 1, 1987. Claimant testified: Q. Do you recall your first appointment with Doctor Wirtz? A. Yes, I do. Q. We, of course, have his deposition, and we, of course, have his medical records, and can you describe for us his examination? A. He told me to lean forward, and I told him that was as far as I could go, and he proceeded to force me to go over farther, and then he asked me to see how far I could bend to the right, and I would tell him that's -- he told me to bend as far until it hurt, and I did, and then it wasn't far enough, he'd give me a little push over, and the Page 5 same with the left side, and then he told me to bend back and he pulled me back farther than what I could take. Q. Was this painful to you, these movements? A. Yes, I left there in tears. Q. Before he pushed you or pulled you or bent you in the fashion that you described, did you tell him that you had bent as far as you could? A. Yes, I did. Q. Did you tell him that he had hurt you? A. Yes, I did. Q. How did you feel physically after you left his office as compared with before you got there that day? A. I felt really bad. In fact, I drove to Osceola and went to Doctor Audlehelm because I just couldn't -- I was really in a lot of pain. (Transcript, page 48, line 7 through page 49, line 12) On the other hand, Dr. Wirtz testified: A. She had a routine examination of 7-1-87 to examine the range of motion and neurologic condition, and her condition was that no change in her physical status occurred after the exam as compared to when she was seen before the exam. Q. In the original examination on July 1, 1987, did she complain to you at all about the way the examination was being conducted? A. No. (Dr. Wirtz deposition, page 6, lines 9 through line 17) Dr. Audlehelm testified that claimant reported a situation which he understood to have occurred on July 27 wherein she reported that Dr. Wirtz performed a twisting procedure causing her back to "pop," and that she complained of extreme pain in the lower back and neck. Dr. Audlehelm's chart notes are not in evidence. However, claimant's submission of medical expenses indicates that each physician was seen both on July 1 and July 27, 1987. It seems likely that Dr. Audlehelm meant to refer in his testimony to events of July 1 and not July 27. In any event, claimant's recitation of events is found credible. As shall be seen, Dr. Wirtz's testimony has not been accepted where it conflicts with other medical and lay Page 6 testimony. It is hugely improbable that claimant as early as July 1, 1987 would have had any inkling that Dr. Wirtz would later give testimony almost wholly favorable to defendant. There was thus no reason for her at that time to take steps to undermine that physician's future credibility. No doubt the reason why she immediately left (in tears) to seek treatment from Dr. Audlehelm was the pain inflicted by Dr. Wirtz's attempt to test the outer limits of her passive range of motion. Dr. Wirtz's denial of this incident lacks credibility. In any event, Dr. Audlehelm testified that claimant's condition regressed after July 27, 1987. He continued to see claimant through the summer, a total of nine times during September and October. In early August, claimant attempted to return to work, but was only able to work several half days due to worsening back and leg pain. She saw Dr. Wirtz again on August 27 on defendant's referral, although with reluctance. However, she brought her sister with her to the appointment and testified that she did not feel ill treated. Dr. Wirtz evaluated the CT scan taken in June and interpreted it to show bulging at L4-5 and L5-S1 without evidence of herniation or nerve impingement. His diagnosis was back pain of disc etiology, but opined that claimant's original condition relating to the April fall had cleared and that new symptoms were causally related to brief work activity in early August. Based on x-ray examination, Dr. Wirtz believed claimant's bulging disc condition to have preexisted the x-rays (the date of which is unclear) by at least 6 or 12 months. Claimant was given restrictions as to bending, sitting and driving, and was prescribed a back brace and a medication known as Flexeril, 10 milligrams twice or thrice per day with open refills for six months. Thirty milligrams per day of Flexeril is in the range of three-quarters of a maximum dose for adults. The 1989 edition of Physician's Desk Reference, a source used and relied upon by Dr. Wirtz in his everyday practice, notes that the most common adverse reactions reported with respect to Flexeril include drowsiness, dry mouth and dizziness (in clinical studies, 11 percent suffer dizziness, but only 3 percent in a surveillance program). Flexeril is indicated as an adjunct to rest and physical therapy for relief of muscle spasm associated with acute, painful musculoskeletal conditions. Improvement is manifested by relief of muscle spasm and associated signs and symptoms, including pain, tenderness, limitation of motion and restriction in daily activities. Physician's Desk Reference states: FLEXERIL (Cyclobenzaprine HCl, MSD) should be used only for short periods (up to two or three weeks) because adequate evidence of effectiveness for more prolonged use is not available and because muscle spasm associated with acute, painful Page 7 musculoskeletal conditions is generally of short duration and specific therapy for longer periods is seldom warranted. (Emphasis in original). Claimant does not recall being given any precautions concerning Flexeril, although Dr. Wirtz had originally prescribed a drug known as Talwin, which was discontinued when claimant complained of resulting hallucinations. In any event, she continued to take Flexeril pursuant to the open prescription. Right from the beginning, claimant felt that Flexeril caused side effects of tiredness, dullness, weakness and dizziness. On one occasion prior to the November injury, while walking with her husband, she began feeling dizzy and weak and "kind of slouched down, you know, kind of dizzy," but was prevented from falling because she was able to hold her husband, Earl. He confirmed her complaints of light-headedness and grogginess. However, claimant did not complain to Dr. Wirtz and ask for a change in medication. This proved to be a terrible mistake. On November 3, 1987, claimant awoke at approximately 6:30 a.m. and took a hypothyroid medication (as she had been doing for years). Her husband (a railroad worker and acreage farmer) was home on vacation and her mother came over for breakfast. About an hour after getting up, she took her first dose of Flexeril and after breakfast walked out to the car when Earl took her mother home. After filling a horse trough with water, claimant returned the short distance to her double-wide mobile home on a smooth and level sidewalk, only a short distance. She became lightheaded and dizzy ("you know, like I had been feeling when I took my Flexeril, you know. It was like I didn't have control when I was falling.") and her weaker right leg or hip "gave out." This occurred very close to the steps to the mobile home, equipped with a cast iron railing. Claimant's left knee hit the ground first and she threw up her hands to protect her face from the rail or sidewalk, but failed: Q. What is the next thing that you remember after you fell into the rail? A. My face hanging off. My face was like -- everything was hanging there in my hand. (Transcript, page 65, lines 17 through 20) Claimant's facial injury, as aptly described by Dr. Wilken in his November 3, 1987 chart note, was a "horrendous laceration." The laceration was full thickness, meaning that a large portion of her face was literally torn away. Claimant was treated for her facial laceration by Page 8 Eugene Peterson, M.D. Dr. Peterson specializes in otolaryngology (the specialty includes facial plastic surgery) and testified by deposition on April 25, 1990. He described the injury thusly: Q. What was the extent of her injuries, at least upon your gross examination? A. In the ear, nose and throat area the primary injury was to the face. She had an extensive laceration that extended from the right side of the upper lip up across the nose and then into the substance of the left cheek area down to the lower aspect of the mandible or chin area. The overall laceration was 17 and a half sonometers in length, or approximately 7 inches. This was a through-and-through laceration, meaning it extended not only through the skin, but through the muscle and into the mouth, as well as into the nose and down into deeper bone in the cheek area and the jaw area. She also had weakness as far as movement of the left upper lip and the left lower lip and chin area consistent with the through-and-through laceration, also cutting the branches or filaments of the nerve to the face, called the facial nerve. That provides function or movement to the face. (Dr. Peterson deposition, page 7, line 6 through page 8, line 1) Dr. Peterson performed immediate surgery to clean and repair the lacerations, but it proved impossible to identify nerve branches. During the first procedure, claimant's eyes were damaged by disinfectant leaving her totally blinded for several days. Fortunately, sight was restored. He performed more or less extensive revision surgery (including to the nose and breathing passages) on October 3, 1988, June 9 and October 9, 1989 and January 22, 1990. More surgical revisions are planned. Claimant has not healed especially well. There is facial asymmetry. She has formed a keloid, or extra scar tissue, especially on the upper aspect of the dorsum of the nose. Dr. Peterson believes that weakness to the upper and lower lips is a permanent functional impairment and assesses a 3 percent impairment to the whole person based on facial nerve damage and a 15 percent body as a whole impairment based on skin damage, which he combined to reach a 20 percent impairment to the body as a whole. However, the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, (Dr. Peterson also used the AMA guide) combined values chart shows that 3 percent and 15 percent whole person impairments constitute a combined 18 percent whole person impairment. Although Dr. Peterson intends further surgery, he anticipates that claimant will continue to have prominent facial scarring. He has repeatedly opined that his patient is incapacitated from work requiring public exposure. Page 9 Under delicate probing on cross-examination, both Earl and claimant's uncle (to whom she has been extremely close since the death of her father at age 15) denied that she is ugly. This observer concurs. Claimant's disfigurement is not repulsive, but it cannot be camouflaged. Claimant's diction has also suffered. Paying close attention, this observer was able to understand all of her testimony, except for some problems when she spoke very softly. But, although it does not appear on the transcript, the court reporter at hearing had great difficulty understanding claimant and frequently asked her to repeat testimony. The reporter did not have similar problems with other witnesses. Obviously, at least some people can now (and for the foreseeable future) be expected to have difficulty understanding claimant's speech. In any event, it is clear to this observer that claimant has suffered an overwhelming and debilitating blow to her self-esteem. By all accounts, she was cheerful, friendly and outgoing before November 3, 1987. Now, she is withdrawn and reclusive. When Karen Hamilton applied for work with Combined, she set forth on the application that she wanted to work with the public and considered it a strong point in her background. Now, she will scarcely be seen at all in public and even avoids family reunions due to embarrassment at her disfigurement. She feels that people are horrified and stare at her. In February 1990, claimant was given a psychological evaluation by Kenneth Hayes, M.A. A blind interpretation of her Minnesota Multiphasic Personality Inventory by Mr. Hayes was of a pathological profile: Persons with profiles similar to this often experience problems with depression, lack of energy, apathy, and lowered self esteem. They tend to feel helpless and hopeless with a negative view of themselves and of their future, and the world around them. Since one of the most important components of their personalities is denial, they often have a difficult time facing up, or examining their dysphoric ideas and feelings. They tend to have a perceptual style that screens out data that relates to their difficulties. They tend to be dependent, and will often deny the press of problems relating to their social and marital adjustment. Often persons with profiles similar to this have given up, and have resigned themselves to living with their unhappiness and their pain. Mr. Hayes found claimant's intellectual functioning to be in the low average to average range. Her estimated score of 84 placed her only in the 15th percentile compared to other adults. In summary, Hayes felt that claimant was currently experiencing a depressive exacerbation of an Page 10 underlying dysthymic personality secondary to a severe disruption in her life plan and self image. He felt this exacerbation was such that she was no longer able to cope with that underlying dysphoria, and that the fact that claimant had been able previously to overcome dysphoria and experience job success in spite of it further emphasized the importance of her injury loss. He wrote: Existentially, she feels her life plans as they relate to her life goals, have been derailed by the assault on her and physicality and it has made her angry and bitter with an underlying feeling of helplessness in relation to herself, the world, and the future. Much of her self image is tied into her view of herself as a physical, active socially outgoing person, and the injuries have severely limited her relation to this view of her strengths. . . . . Nonetheless it is quite evident that this will take a lot of physical and psychological intervention, and most likely quite a bit of time to accomplish. Claimant's demeanor and testimony was consistent with this evaluation. She indicated that she felt useless and, if her looks did not improve over the rest of her life, she did not know what she would do. Ms. Hamilton's face is numb from the right side of her mouth on the bottom over her entire chin and cheek up to the incision and over the nose to the incision on the right upper lip. When outside, even on a warm day, she feels the breeze almost cutting through this numb area to the mouth. Nonetheless, defendant wrung from her the concession that there were "still a lot of places" on her face where she could feel kisses from family members. Following the November fall, claimant continued to suffer lower back pain, but now cervical pain as well. She continued to see Dr. Audlehelm. Although chiropractors are not licensed to prescribe drugs, Dr. Audlehelm testified to making an effort to familiarize himself with various medications so as to know what effects might be present for purposes of his own practice. In his experience, other of his patients have suffered dizziness and drowsiness while taking Flexeril. He opined that taking Flexeril "contributed greatly" to claimant's November fall and resulting injury. Dr. Audlehelm continued to see claimant throughout 1987 and until February 29, 1988. He did not see her again until May, apparently the 14th. Claimant complained of having seen a Des Moines doctor on May 13 (Dr. Wirtz) who had "pulled on her neck" causing increased stiffness and what Dr. Audlehelm regarded as a regression. He has continued Page 11 performing maintenance treatment and believes that claimant has progressed as far as she may be expected to with the back condition. He believes claimant to be suffering from cervical and lumbar myofascitis and recurring subluxations of the cervical and lumbar spine. He would not recommend that claimant engage in repetitive lifting, bending, stooping or twisting because repetitive motions will irritate and exacerbate her condition. The same is true of prolonged sitting, standing and driving. He recommended a maximum weight limitation of 20-25 pounds on an occasional basis. He testified to finding muscle spasm in the lumbar and cervical spine areas, which he considered as objective evidence of impairment. Claimant was seen again on May 13, 1988 by Dr. Wirtz. His history was that claimant stated that her hip had given out causing the November fall. He agreed that it was "possible" that Flexeril had made claimant dizzy or lightheaded and may have been involved in the fall, but later testified that he uses "possible" as synonymous with "unlikely." However, his testimony as to that point on cross-examination was somewhat evasive, grudging and hostile. Dr. Wirtz felt that claimant had no permanent impairment resulting from the April 1987 injury and no permanent restrictions. Because claimant was dissatisfied with Dr. Wirtz's treatment, she requested referral to another physician from defendant. She was thereafter seen beginning January 11, 1988 by Scott B. Neff, D.O. Dr. Neff is an orthopaedic surgeon and a Diplomate of the American Board of Orthopaedic Surgery, a Fellow of the American Academy of Orthopaedic Surgeons and a Fellow of the International College of Surgeons in Orthopaedic Surgery. Following the first appointment, he recommended repeat CT scan or MRI study and noted that "neurologic involvement of the leg or sudden pain can certainly make the leg buckle." Thereafter, magnetic resonance imaging did not show pathology with reference to the lumbar spine and he saw no disc rupture or degenerative disc disease of significance. He believed that claimant had a myofascial syndrome and referred her to Karen Kienker, M.D., in Dr. Neff's phrase, a physical medicine "expert." He gave no opinion as to permanent impairment and left the question of a return to work up to Dr. Kienker. In a March 21, 1988 letter to claimant's attorney, Dr. Neff expressed the following view: Flexeril is a difficult medication. Many patients who use it for "muscle relaxation" report significant sedation, dizziness, and even sometimes act as if they are unsteady on their feet. If, for example, Flexeril were to be used with a pain medication, the affects [sic] of these two would definitely be added. It certainly is possible that this medication did indeed cause her Page 12 to be light headed enough or "wobbly" enough to fall and it is unfortunate that she had this significant injury to her face. Obviously, I don't know the details of her fall and it may have been due to something else. If she were simply walking on an even surface and did not trip or stumble on something and she says it was because she was light headed or unstable, then Flexeril would likely be implicated. I have not checked her blood pressure. The only other medical reason that I can think of immediately to cause that type of a symptoms [sic] would be either an irregular heart beat or what is called ortho-static hypotension. Assuming that those are not present, then the Flexeril would be implicated. The record does not indicate that claimant has a history of irregular heart beat or ortho-static hypotension. On January 11, 1988, Dr. Wilken wrote that he had no way of knowing whether the November fall was in any way related to the earlier back injury. Thus, Dr. Wirtz finds it unlikely that the April back injury (which, in his view, had cleared up prior to the attempted August return to work) or dizziness relating to Flexeril was causally related to the disastrous fall claimant suffered in November 1987. Dr. Wilken has no way of knowing. Dr. Audlehelm feels that Flexeril is clearly indicated, but as a chiropractic physician, the effects of prescription medications are largely outside his sphere of expertise. Given that claimant does not suffer irregular heart beat or hypotension, Dr. Neff feels that Flexeril "would likely be implicated." Dr. Wirtz's testimony and opinion must be discounted. His self-interest is at stake in this litigation, since it is at least arguable that he may have personal liability by exacerbating claimant's condition during evaluations in July 1987 and May 1988 and by giving claimant an open prescription for Flexeril over a six-month time span in contravention of Physician's Desk Reference recommendations. In addition, he did not testify candidly concerning whether claimant reported pain on July 1, 1987 when she left his office in tears on her hurried way to a chiropractor. A reading of his deposition testimony indicates overtones of hostility and evasiveness. Given then the testimony of Dr. Audlehelm and Dr. Neff, given further claimant's history of dizziness when taking Flexeril and her credible testimony as to feeling dizzy and having her right leg give way when she fell and given also that Dr. Kienker has found a trigger point in the right buttock, all of which are consistent with the theory that claimant's November 1987 fall was causally related both to ongoing leg or hip symptomatology residual to the April incident and light-headedness related to Flexeril prescribed because of that incident, it is held that the November fall Page 13 and resulting injuries bear a substantial causal relationship to the previous injury and medical treatment provided by reason of that injury. As has been seen, Dr. Neff referred claimant to Karen Kienker, M.D., who saw Karen Hamilton first on July 12, 1988. Dr. Kienker is a physiatrist, board certified in physical medicine and rehabilitation, and testified by deposition on May 3, 1990. Dr. Kienker diagnosed claimant as suffering myofascial pain syndrome involving the low back, right buttock and neck. She noted that myofascial pain results from damage to the soft tissue or muscle damage and that there are some characteristic physical findings consistent with myofascial pain syndrome, particularly including trigger points or tender nodules in the muscle. If pressed, they cause pain and if pressed hard enough, will often shoot or refer pain some distance. She specifically found a trigger point in claimant's right hip. She also believed claimant suffered muscle spasm to the back. Dr. Kienker prescribed a combination of ultrasound and stretching which did result in improving claimant's range of motion of the neck and flexibility in the upper body, but had a negative effect lower. In a report dated April 17, 1990, Dr. Kienker rated claimant's impairment as 15 percent of the body as a whole based on impairment to the lumbar spine and 14 percent of the body as a whole based on impairment to the hip. Although Dr. Kienker apparently believed there was also impairment to the neck, she did not rate impairment of the cervical spine. Dr. Kienker causally related these impairments to the original work injury in April 1987. Recommended restrictions were: The patient should be capable of employment which is within her physical restrictions. She needs a job which will allow her to alternate sitting, standing and walking at will. She needs a variety of light duties allowing a variety of light positions. She may lift up to ten pounds on an occasional basis. She should avoid any bending, tilting head forward over her work, tilting her head backwards, working with arms unsupported out in front of her, working in cold places and repetitive shoulder movements. She should have only occasional squatting, rotating of the head, side bending of the head, or reaching above shoulder level. These are expected to be permanent restrictions. Combined Insurance Company of America does not have a policy favoring accommodation of disabled employees. On November 18, 1987, claimant was discharged because of her disability. The discharge was made retroactive to November 3, 1987, the date of claimant's disastrous fall. Defendant Page 14 first learned of this fall on November 17, 1987, the day prior to discharge. Kathleen Runyan, administrative assistant, testified that it was "coincidence" that the discharge was backdated to November 3. That assertion lacks credibility. Jeff Johnson, a certified rehabilitation counselor retained for evaluation and opinion only, testified that there were several jobs claimant could perform given her educational and vocational history and the physical restrictions imposed by Dr. Kienker. However, all of these positions would require selective placement so as to allow claimant to alternate her position at will. These positions include cashier, secretary, sales clerk, bookkeeper, office or accounting clerk and hand packager. He noted that Dr. Peterson's restriction would eliminate those jobs involving public exposure, such as cashier and sales clerk. He further noted that job applicants far outnumbered openings for bookkeeper, accounting clerk or hand packager in claimant's geographical locale during calendar year 1989, pursuant to Job Service of Iowa statistics. conclusions of law The parties have stipulated that the April 17, 1987 injury arose out of and in the course of employment. However, they very much dispute whether the November 3, 1987 injury arose out of or is causally connected to employment. Where treatment rendered with respect to a compensable injury itself causes further injury, the subsequent injury is also compensable. Yount v. United Fire & Casualty Co., 256 Iowa 813, 129 N.W.2d 75 (1964). Determination of that necessary causal nexus is essentially within the domain of expert medical testimony, although expert testimony that a mere possibility of a causal relationship may be sufficient if coupled with non-expert testimony that no preexisting condition was involved. Bradshaw v. Iowa Methodist Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). Claimant's November 1987 fall came about through a combination of her right leg giving way, probably related to continuing weakness and the trigger point in her buttock, and because of dizziness. Karen Hamilton had no history of dizziness prior to beginning a regimen of Flexeril. Dizziness is a known side effect of Flexeril, and a condition claimant had regularly experienced while using that medication, beginning from the first use. Dr. Audlehelm saw a causal relationship between Flexeril and dizziness, although this is somewhat beyond his area of expertise. Dr. Neff felt the relationship was likely, given no preexisting history of irregular heart beat or hypotension. Claimant has no such history. A possibility that a causal nexus exists is insufficient to meet claimant's burden of proof; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The opinion of experts, however, need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). The only contrary medical evidence is that of Dr. Wirtz, and as has been seen, his testimony is Page 15 self-interested. The opinion of Dr. Neff is more persuasive. Claimant has met her burden of proof in establishing that the November fall and resulting injuries are causally related as a sequela to the work injury of April 17, 1987. Defendant asserts that claimant's facial injuries must be compensated as a scheduled member disability under Iowa Code section 85.34(2)(t). However, claimant's disfigurement and resulting psychological damage are a sequela of the April injury which is concededly to be compensated industrially. As a sequela, the November fall must be treated as part of the original injury. If a worker were to receive an injury causing disability to the back and one finger, it is not the case that the finger is to be separately compensated pursuant to the schedule. Rather, the entire injury is compensated industrially. It makes no sense to treat claimant's injuries in any different fashion. In determining compensation, those injuries should be viewed as a unified whole. 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, expe rience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disabil ity. This is so as impairment and disability are not syn onymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. Page 16 There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial dis ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985). Claimant was previously employed as a nurse's aide. A ten-pound lifting restriction imposed by Dr. Kienker clearly bars that work and many other potential jobs. Work as a bookkeeper or secretary is probably barred by restrictions against hunching forward and would require a very accommodating employer indeed to allow claimant to alter her position at will. Claimant might well be able to physically withstand a job as a sales clerk if given an accommodating employer who would let her sit, stand and walk at will, but her facial disfigurement would without question be distracting to some members of the public and can reasonably be expected to impair her effectiveness and also her attractiveness to potential employers. Witness, for example, the conduct of Combined Insurance Company of America: discharging claimant retroactive to the very day of her disfigurement. Dr. Kienker's other restrictions are very severe. In addition, it must not be forgotten that claimant has suffered a devastating blow to her psyche. The damage is industrially disabling. Where once claimant was warm and outgoing, she is now shy and withdrawn. Given the gravity of this physical insult, it would be harsh indeed to demand that Karen Hamilton, unable even to face her family reunion, go out and cheerfully greet the public as a sales clerk (or insurance salesperson) is required to do. Dr. Peterson did not believe his patient capable of facing the public, and this opinion is backed up by the psychological evaluation performed by Kenneth Hayes. It is even more convincingly demonstrated by claimant's demeanor and testimony. It is to be hoped that one day Ms. Hamilton will find it within herself to overcome this tragedy and regain her spirit. Perhaps further healing will permit employment. If so, review-reopening is available to defendant. As of now, claimant is totally disabled and can be expected to remain so for the foreseeable future. A permanent disability is one that is expected to last for an indefinite or indeterminable period and does not require proof of absolute perpetuity. Wallace v. Brotherhood, 230 Iowa 1127, 300 N.W. 322 (1941). Page 17 Claimant also seeks medical benefits under Iowa Code section 85.27. Defendant concedes the costs are reasonable and the services were themselves reasonably related to claimant's condition. Causal connection to the subject injuries has been established as per the foregoing analysis. order THEREFORE, IT IS ORDERED: In file number 877068, claimant shall take nothing. In file number 854465: Defendant shall pay unto claimant permanent total disability benefits at the stipulated rate of one hundred seventy-five and 66/100 dollars ($175.66) per week commencing April 17, 1987 and continuing during such time as she shall remain totally disabled. Defendant shall have credit for all voluntary payments. All accrued benefits shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. Defendant shall pay claimant medical benefits pursuant to her hearing submission of disputed medical costs. The costs of this action shall be assessed to defendant pursuant to rule 343 IAC 4.33. Defendant shall file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ______ day of ____________, 1991. ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Steven C. Jayne Attorney at Law 5835 Grand Avenue Suite 201 Des Moines, Iowa 50312 Mr. Helmut A. Mueller Attorney at Law RR 5 Osceola, Iowa 50213 Page 18 Mr. Harry W. Dahl Attorney at Law 974 73rd Street Suite 16 Des Moines, Iowa 50312 1804 Filed April 30, 1991 PATRICIA J. LANTZ before the iowa industrial commissioner ____________________________________________________________ : DOROTHY FLEMING, : : Claimant, : : vs. : : File No. 854592 BLACK HAWK COUNTY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : UNITED STATES FIDELITY AND : GUARANTY COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1804 Claimant sustained an injury to her neck which resulted in surgery and a permanent impairment of 22 percent. The surgery provided less than stellar results, and claimant developed severe psychological problems, which three psychiatrists related to the original neck injury. At the time of the hearing, claimant had been admitted for psychiatric observations on six (6) occasions. She produced seven of eight prescription drugs used to treat her psychiatric disorder. Claimant found permanently, totally disabled. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JOHN C. MAYER, File No. 854997 Claimant, A R B I T R A T I O N vs. D E C I S I O N ALUMINUM COMPANY OF AMERICA, F I L E D Employer, SEP 28 1989 Self-Insured, Defendant. INDUSTRIAL SERVICES STATEMENT OF THE CASE This is a proceeding in arbitration brought by claimant John C. Mayer against self-insured defendant employer Aluminum Company of America to recover benefits under the Iowa Workers' Compensation Act as the result of an injury sustained on April 10, 1987. This matter came on for hearing before the undersigned deputy industrial commissioner in Davenport, Iowa, on September 22, 1989. The matter was considered fully submitted at the close of hearing. The record consists of joint exhibits 1 through 5 and 7 through 10 and the testimony of the following witnesses: Claimant, Jack Peterschmidt, George Pratt and Margaret Kundel. ISSUES Pursuant to the prehearing report submitted and approved at hearing, the parties have stipulated: To the existence of an employment relationship at the time of the injury; that claimant seeks healing period or temporary total disability benefits from April 10, 1987 through June 1, 1987; that if permanent disability benefits are awarded, the commencement date is June 1, 1987; that if a permanent disability is found to be causally connected to a work-related injury, claimant has suffered a scheduled member disability to the leg; that the appropriate amount of weekly compensation is $330.32; that affirmative defenses have been waived; that all requested medical benefits have been or will be paid by defendant; that defendant is entitled to credit under Iowa Code section 85.38(2) in the sum of $1,762.29. Issues identified as requiring resolution include: Whether claimant sustained an injury on April 10, 1987, arising out of and in the course of his employment; whether the alleged injury caused temporary or permanent disability; the extent of claimant's entitlement to compensation for temporary total disability, healing period and/or permanent disability; taxation of costs. REVIEW OF THE EVIDENCE Claimant testified to being a long-term employee of defendant. On the day of his injury, he worked the day shift. Following work, claimant went by himself to the defendant-owned parking lot where he parked. While walking through the lot, he turned a corner, stepped in a pothole and fell when his knee "popped." He got up, drove home and saw a physician later that day. Claimant testified that he did call to advise the employer of his fall. However, he denies relating his story as it was written down on April 16, 1987 in the injury and illness record constituting exhibit 1. Claimant testified that he was referred by defendant to J. R. Lee, M.D. He testified that he advised Dr. Lee how the injury occurred, and specifically that he told the physician about the hole in the parking lot, although this was not noted in Dr. Lee's medical report. Claimant further testified that he had suffered no prior problems to his left knee before the accident, and had never been advised of an arthritic or degenerative condition, although the medical records reflect that claimant did suffer from advanced degenerative problems in the knee. He had seen orthopaedic physicians twice before, once for his elbow and once for his arm. On cross-examination, claimant testified that he spoke to George Pratt concerning the incident, but was unsure whether he had specifically mentioned the existence of the pothole. He did not recall Mr. Pratt asking if there was such a defect in the parking lot. However, claimant later in that cross-examination specified that he in fact had told Pratt that he fell in a hole. Further, he insisted that he told the medical department on April 16 about the parking lot pothole. Claimant also noted that he has a hearing loss and occasionally misses words in telephone conversations. Claimant also testified that he has not been assigned medically-imposed restrictions or physical limitations resulting from his injury, and that he is able to climb 57 steps and go down 10 rungs to a crane he operates at work up to four times per day without problems and that this substantial climbing does not cause pain. Jack Peterschmidt testified that he also is a long-term employee of Alcoa and that he normally commutes to work with claimant, although he did not on the day of the injury. He further specified that the Alcoa parking lot was afflicted with potholes at the time of this injury and further advised that claimant had described the injury within a day or so as having occurred when he stepped in a pothole. Mr. Peterschmidt also indicated that he had advised claimant to consider filing a workers' compensation claim by reason of this injury. George Pratt testified that he had responsibilities in the fields of safety, health, environment and workers' compensation in 1987. Mr. Pratt indicated that he had telephoned claimant on April 16, 1987, and that claimant had advised that he was walking around a car and that his knee "gave out." Mr. Pratt described himself as specifically questioning claimant as to whether he had slipped, tripped, or caught his foot in a hole (although he later testified only to being "almost positive" concerning the pothole inquiry). He described claimant as denying any of the above and repeating that his knee just gave out. Pratt further testified that in this conversation he specifically told claimant that if there was nothing wrong with the parking lot that defendant would treat the incident as "personal," meaning not a workers' compensation injury. Pratt agreed that he did not keep notes of this telephone conversation, but made notes approximately one month later. On examination by defense attorney, Mr. Pratt specified that if claimant had mentioned a slip in a pothole, he would have caused the parking lot to be checked out for safety problems. Further, he noted that claimant did not attempt to convince him of the work-relatedness of this injury even after he advised claimant that it would be treated as personal. Pratt also believed that he and claimant were adequately communicating and understanding one another during this conversation. Margaret Kundel testified to being a registered nurse who had worked for defendant some 16 years. She described the injury and illness record as a normal business record in which all personal illness contacts with employees are noted. If employees claim a work injury, a different report (injury, illness and incident report) is prepared. She noted that the regular illness report was prepared in this instance. Ms. Kundel testified that claimant stated that he felt his knee "pop" as he was walking around a car and that she would normally have asked claimant if he had fallen or suffered any direct trauma to the knee. The implication, of course, is that claimant made no such claim in the April 16 telephone conversation. Kundel further testified that her duties with regard to charting include setting forth as accurately as possible what an employee states. However, on cross-examination, Ms. Kundel agreed that the injury, illness and incident report is used only when an application is made in person. Further, she admitted to being unsure whether claimant had been specifically asked during the telephone conversation whether he had suffered direct trauma to the knee. The illness and injury record prepared on April 16, 1987, stated in pertinent part: Empl's call transferred from Jonell (Safety) to Medical. Empl said someone at Alcoa told him to file Worker's Comp re: injury to left knee occurred on April 10th. States he was walking around a car in Alcoa parking lot after work & felt his knee 'pop'. He could not even get out the car & was seen by Dr. Cassel that day by 4PM. Denies any direct trauma or injury to his knee. J. R. Lee, M.D., prepared a medical report on December 27, 1988. Dr. Lee notes that claimant's history was that of hurting his left knee in the parking lot after work. The report does not make mention of any pothole incident. Dr. Lee also noted that claimant denied any history of giving way or effusion. Dr. Lee diagnosed degenerative arthritis of the left knee and torn medial meniscus treated by menisectomy. He concluded that the torn meniscus was most likely a work-related injury, but stated that the degenerative change was a preexisting condition. Dr. Lee concluded that claimant would have a 10 percent functional deficit to the left knee. Claimant was also seen by Charles T. Cassel, M.D. Dr. Cassel first saw claimant on the date of injury and performed surgery to the left knee four days later. His original notes state: The patient called in today because of acute locking and pain in the left knee. The patient is a 57 year old laborer who states he was walking across the parking lot today when he fell and heard a pop in his knee with pain along the medial and anterior medial aspect of the knee. After surgery, Dr. Cassel diagnosed varus knee with severe degenerative osteoarthritis, medial compartment and significant severe patellofemoral chondrosis. In a letter to claimant's attorney of March 23, 1988, Dr. Cassel noted that claimant did not have any history of problems prior to his twisting or falling episode in the parking lot and that the fall or twisting episode was the acute cause of the locked knee, swelling and displaced meniscus tear. In another letter of March 28, 1989, Dr. Cassel stated: With regard to his impairment rating, I would give him a 10% impairment of his left lower extremity for loss of his medial meniscus. He does have extensive degenerative changes in the medial compartment and the patellofemoral joint which have been visualized at the time of arthroscopy and I would give him a 20% impairment of his left lower extremity based on the arthritic changes of the patellofemoral joint and medial compartment. Combining these two would give him a 30% impairment of his left lower extremity which would equal 12% impairment of his whole person. One could argue that because of his mild varus deformity some of the degenerative changes may have been present prior to his fall and displaced meniscus tear, but certainly the fall and the further tearing of his meniscus has accelerated the degenerative changes in his medial compartment and possibly his patellofemoral joint. Mr. Mayer appears to be functioning at a fairly high level with some aching discomfort with prolonged standing and walking. I feel that as he gets older he may experience more difficulty with his knee and I feel that he will probably someday come to a total joint replacement of his knee. APPLICABLE LAW AND ANALYSIS An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979); McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The concepts of "arising out of" and "in the course of". employment are separate and distinct; each must be established for claimant to prevail. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). Claimant's fall occurred in a parking lot operated by defendant. In Shipley v. Barker Products Corp., I Iowa Industrial Commissioner Report, 306 (1981), claimant was injured in a fall in the employer's parking lot after work, the same as is here the case. Pursuant to Iowa Code section 85.61, injuries arising out of and in the course of employment are defined as including injuries to employees whose services are being performed on, in or about premises which are occupied, used or controlled by the employer. Citing Frost v. S. S. Kresge, 299 N.W.2d 646 (Iowa 1980) for the proposition that the Workers' Compensation Act provides coverage when the injury is closely connected in time, location and employee usage to the work itself, it was held that claimant's injury arose in the course of employment. The evidence in this case is undisputed that claimant suffered his injury in a fall following work in a parking lot controlled by defendant employer. It is held that this injury occurred in the course of claimant's employment. Yet, was the injury arising out of that employment? An idiopathic fall (one caused by obscure or unknown factors) is not compensable because it does not arise out of the employment relationship. However, it is generally agreed that if the fall occurs because of claimant being placed in a position by his employment which aggravates the effects of the fall or increases the risk of a fall, the opposite result obtains. Masbruch v. John Deere Dubuque Works, 1-3 Industrial Commissioner Decisions, 628 (1985). Therefore, the controlling issue in determining whether claimant's fall arose out of his employment relates to whether the risk of a fall was increased by the claimed defect in the employer's parking lot on April 10, 1987. This is essentially a question of credibility. Claimant testified unequivocally that he fell because he stepped into a pothole. That testimony is corroborated by Jack Peterschmidt, who testified directly that claimant stated he had stepped in a hole only a day or two after his injury. While it might be pointed out that claimant has an incentive to manufacture a pothole without which there can be no recovery, the same is not true of Peterschmidt. While Peterschmidt is obviously on friendly terms with claimant, having commuted with him for so many years, he is also still employed by defendant and presumably wishes to maintain that employment relationship. It is specifically found that Peterschmidt is a credible witness, and that claimant likewise was credible in his description of the fall. It does not appear that claimant made known exactly how he fell to medical practitioners, since the pothole is not mentioned in medical records. Similarly, claimant did not mention the pothole when he called the medical department six days after his injury. However, there is no particular reason to believe that claimant would have been aware at that early date the significance of a defect in the parking lot that would have increased his risk of falling, and for that reason, it would not be appropriate to conclusively imply the absence of a pothole from his failure to mention it. George Pratt was also a credible witness. It is disconcerting that claimant did not mention the pothole to him. While Mr. Pratt was "almost positive" that he had specifically asked about a hole or other defect, he is not absolutely positive that he did so, and his notes of the conversation were not made until approximately one month later. Although the question is close, it is held that claimant's fall was caused by stepping into a pothole, said pothole having increased the risk of injury. The fall was not idiopathic, and arose out of the employment relationship. The claimant has the burden of proving by a preponderance of the evidence that the injury of April 10, 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). The medical evidence is undisputed that a causal relationship exists between claimant's fall and his claimed disability, although the evidence is in dispute as to the extent of that disability. Claimant has met his burden of proof in establishing that causal relationship. While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962). When an aggravation occurs in the performance of an employer's work and a causal connection is established, claimant may recover to the extent.of the impairment. Ziegler v. United States. Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960). The Iowa Supreme Court cites, apparently with approval, the C.J.S. statement that the aggravation should be material if it is to be compensable. Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's Compensation section 555(17)a. An employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 (1960). See also Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist.v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). Dr. Lee found a 10 percent functional deficit to the left knee based on claimant's torn meniscus. However, he found the degenerative change in claimant's knee to be a preexisting condition. On the other hand, treating surgeon Dr. Cassel also found a 10 percent impairment of the left lower extremity for loss of the meniscus, but found an additional 20 percent impairment due to the extensive degenerative and arthritic changes of the patellofemoral joint and medial compartment. Dr. Cassel was of the view that while some of the degenerative changes "may have been present prior to" the fall, the fall and tearing of claimant's meniscus accelerated those degenerative changes. As the case law cited above indicates, claimant can recover for an aggravation of a preexisting injury which results in disability that previously did not exist. However, it is unclear what additional disability claimant has actually suffered at the present time. Speculation as to such future problems as potential knee replacement is simply that: speculation. As such it is not compensable at this time. What is significant is that claimant has absolutely no medically imposed restrictions and clearly has very good use of his knee, as shown by his ability to climb extensive numbers of stairs and ladder rungs on a daily basis. That is to say, there does not appear to be further disability to any measurable extent. As both physicians agree that claimant has a 10 percent functional deficit by reason of his torn meniscus, he shall be awarded 10 percent of the leg as a scheduled member injury. Healing period under Iowa Code section 85.34(1) runs from the date of injury until the employee has returned to work or it is medically indicated that significant improvement is not anticipated or until the ability to return to substantially similar employment is attained, whichever first occurs. Claimant was released to return to work on May 27, 1987, which ended his healing period. FINDINGS OF FACT THEREFORE, based on the evidence presented, the following ultimate facts are found: 1. On April 10, 1987, claimant was employed at Aluminum Company of America in the state of Iowa. 2. On that date, claimant fell in a parking lot controlled by defendant employer immediately after work. 3. Claimant's fall was caused by stepping into a pothole in the parking lot, which directly increased his risk of injury. 4. Claimant suffered a 10 percent functional deficit and impairment to the left lower extremity by reason of his work-related fall. 5. Claimant was disabled from April 10, 1987 until he was released to return to work on May 27, 1987 (6 weeks, 6 days). 6. Claimant's proper rate of weekly compensation has been stipulated to be $330.32. CONCLUSIONS OF LAW WHEREFORE based on the principles of law previously stated, the following conclusions of law are made: 1. Claimant suffered an injury arising out of and in the course of his employment on April 10, 1987. 2. Claimant's injury was an injury to his left leg, a scheduled member. 3. Claimant's injury directly caused a healing period from April 10, 1987 through May 27, 1987 (6 weeks, 6 days). 4. Defendant is entitled to credit under Iowa Code section 85.38(2) in the sum of $1,762.29. 5. Claimant has established a permanent partial disability of 10 percent of the left,leg, the commencement date being May 28, 1987. ORDER THEREFORE, IT IS ORDERED: Defendant is to pay unto claimant six point eight five seven (6.857) weeks of healing period benefits at the stipulated rate of three hundred thirty and 32/100 dollars ($330.32) per week payable commencing April 10, 1987 and totalling two thousand two hundred sixty-five and 00/100 dollars ($2,265.00). Defendant is to pay unto claimant twenty-two (22) weeks of permanent partial disability benefits at the stipulated rate of three hundred thirty and 32/100 dollars ($330.32) per week payable commencing May 28, 1987 and totalling seven thousand two hundred sixty-seven and 04/100 dollars ($7,267.04). Defendant shall receive credit under Iowa Code section 85.38(2) in the sum of one thousand seven hundred sixty-two and 29/100 dollars ($1,762.29). Because all benefits have accrued as of the date of this decision, they shall be paid in a lump sum together with statutory interest pursuant to Iowa Code section 85.30. Costs of this action are assessed to defendant pursuant to Division of Industrial Services Rule 343-4.33. Defendant shall file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and.filed this 28th day of September, 1989. DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Michael W. Liebbe Attorney at Law 116 East 6th Street P.O. Box 339 Davenport, Iowa 52805 Mr. Thomas N. Kamp Attorney at Law 600 Davenport Bank Building Davenport, Iowa 52801 1104, 1402.30 Filed September 28, 1989 DAVID RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER JOHN C. MAYER, Claimant, File No. 854997 vs. A R B I T R A T I O N ALUMINUM COMPANY OF AMERICA, D E C I S I O N Employer, Self-Insured, Defendant. 1104, 1402.30 Knee injury caused by stepping in pothole after work in employer-maintained parking lot arose out of employment because the pothole increased the risk of injury.