5-3202 Filed July 30, 1992 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JAMES W. COSPER, : : Claimant, : File No. 855687 : vs. : A P P E A L : SECOND INJURY FUND, : D E C I S I O N : Defendant. : ____________________________________________________________ 5-3202 Claimant's disability from a right arm and shoulder injury and claimant's disability from a left arm and shoulder injury equaled claimant's current cumulative industrial disability. Because claimant's current cumulative industrial disability does not exceed the combined disabilities resulting from the two previous injuries, claimant is not entitled to second injury fund benefits. Page 1 before the iowa industrial commissioner ____________________________________________________________ : JAMES W. COSPER, : : File No. 855687 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N SECOND INJURY FUND, : : Defendant. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by James W. Cosper, claimant, against the Iowa Second Injury Fund, defendant, for workers' compensation benefits as a result of alleged injuries on August 15, 1982 and June 24, 1987. On October 23, 1991, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of con tested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. The oral testimony and written exhibits received during the hearing are set forth in the hearing transcript. issue The only issue submitted by the parties for determina tion in this proceeding is the extent of claimant's entitle ment to disability benefits from the Second Injury Fund. findings of fact Having heard the testimony and considered all the evi dence, the deputy industrial commissioner finds as follows: A credibility of witnesses testifying at hearing did not appear to be an issue in this case. All appeared to be testifying truthfully. Claimant has worked for Rockwell Graphic Systems, or what is commonly referred to as Goss, for over 20 years and continues in this employment at the present time. Claimant has had several jobs at the Cedar Rapids Goss plant but has been in his current job of final assembly for the last sev eral years. This job requires occasional heavy lifting and considerable use of his shoulders and arms in the assembly of large metal equipment. Claimant's current rate of pay is $16.18 per hour and he works a considerable amount of over time. The claim herein involves an alleged arm/shoulder injury beginning in 1982. Claimant's primary treating orthopedic surgeon for all of his shoulder/arm problems has been Fred Pilcher, M.D., who is board certified. Claimant's Page 2 fellow employees at the Goss plant all testified that claimant is considered a good employee in the plant. Claimant first suffered permanent partial impairment to the right arm as a result of right shoulder problems begin ning in 1982. Dr. Pilcher eventually diagnosed the problem as right shoulder impingement syndrome and claimant under went two corrective surgeries. In 1983, Dr. Pilcher per formed a surgical release and excision of the coracoacromial ligament of the right shoulder. When this failed to improve claimant's condition as anticipated, Dr. Pilcher operated again on the right shoulder and performed a partial acromionectomy or an excision of a portion of clavicle including the acromioclavicular joint. As a result of his right shoulder problems and the corrective surgeries, Dr. Pilcher opined in 1983 that claimant suffered a 14 percent permanent partial impairment to the arm or eight percent permanent partial impairment to the body as a whole. In May 1987, claimant began having problems with his left shoulder after performing some drilling work at Goss. This condition was also diagnosed by Dr. Pilcher as impinge ment syndrome. Claimant then underwent a single surgery which, according to Dr. Pilcher, was a combination of those procedures he performed in the two prior surgeries to claimant's right shoulder. In Dr. Pilcher's most recent evaluation of claimant, Dr. Pilcher states that claimant suffers from a 24 percent permanent partial impairment to the arm or a 14 percent permanent partial impairment to the whole body as a result of his left shoulder problem. Dr. Pilcher opines that this is the result of the alleged work injury of June 24, 1987, due to his work at Goss and that this injury caused the permanent partial impairment he found. Another orthopedic surgeon, John Koch, M.D., an associate of Dr. Pilcher, opines that claimant's problems are due to degenerative arthritis aggravated by injury and rates claimant's permanent partial impairment to the left shoulder similar to Dr. Pilcher. Dr. Pilcher also opines in his most recent evaluation that claimant's right shoulder problems have worsened since 1983 and that currently his right shoulder permanent partial impairment is now roughly the same as for the left shoulder impairment. Based upon the views of the primary treating physician, Dr. Pilcher, it is found that claimant suffered an injury and permanent partial impairment to his right arm and shoul der in 1982. According to Dr. Pilcher's most recent deposi tion testimony, this was an injury to both the arm and to the body as a whole. The anatomical structures modified by Dr. Pilcher in his two surgeries on the right shoulder involve structures attached to the humerus or upper arm bone which constitutes the ball of the ball and socket shoulder joint as well as the clavicle and rotator cuff which help to form the socket of the ball and socket shoulder joint. Also, based primarily upon the views of the primary treating orthopedic surgeon, Dr. Pilcher, it is found that the second injury of June 24, 1987, arose out of and in the course of the claimant's employment at Rockwell Graphic Systems and that this injury was a cause of permanent par Page 3 tial impairment to the left arm and to the shoulder or body as a whole. This finding is again based upon the discus sions set forth above as to the nature of the injury to both the right and left shoulder from not only the injury itself but from corrective surgeries. With reference to the issue of loss of earning capacity as a result of both of these injuries, claimant is middle aged. Although he is not a high school graduate, he has earned his GED. Claimant's past employment consists of shipping clerk, ditch digger, sales clerk and machine opera tor. At Goss, he worked in jobs involving steel cutting, painting, forklift operation and materials handling prior to his subassembly and final assembly work. Claimant's physi cal restrictions severely limit the type of work for which he is best suited given his past work experience and educa tion. Claimant's employment circumstances after each of the two injuries in this case are similar in that after recovery he returned to the same job he held at the time of the injury without loss of income. Claimant is left handed and disability caused by the second injury appears much more significant. Also, Dr. Pilcher more strongly today recom mends a change of jobs than he did in 1984 as a result of the left shoulder injury. Therefore, the injury or permanent partial impairment of August 15, 1982, is found to have caused a five percent loss of earning capacity. The injury and resulting perma nent partial impairment of June 24, 1987, is found to have been a cause of an additional 15 percent loss of earning capacity. It is further found that as a result of the combined effect of both injuries and permanent partial impairment referred to above, claimant has suffered to date a 20 per cent loss of earning capacity. According to Dr. Pilcher, claimant is restricted from repetitive overhead use of his arms and shoulders and generally from heavy work. These restrictions clearly are applicable to each of the two injuries individually as a combined effect. Such a restric tion clearly interferes with the work he has performed in the past. However, despite these restrictions and claimant's pain, claimant has been able to remain working at Goss due to accommodations made by his fellow employees and allowed by Goss management. Claimant has not as yet suf fered any loss of earnings or potential earnings from either injury. Claimant has high plant seniority and although Goss has laid off many employees recently, the plant remains in operation today and claimant remains employed. As it will be discussed in the conclusions of law section, it would be improper to speculate at this time what may or may not hap pen in the future should claimant lose his job at Goss. Therefore, claimant has not shown by a preponderance of the evidence that the combined effect of the two shoulder injuries has resulted in a greater loss of earning capacity than the sum of the individual disabilities caused by each injury. Page 4 conclusions of law I. The Fund raises an affirmative defense that the condition complained of is not an injury compensable under Chapter 85 of the Code but an occupational disease under Chapter 85A of the Code. The Fund argues that by defini tion, a compensable injury is not an injury. Iowa Code sec tion 61.5(b). As claimant has not plead occupational disease, the Fund asks that claimant's claim be dismissed. Assuming legal theories, as opposed to operative facts, must be plead before they can be applied by this agency, the undersigned does not feel that 85A is available to the Fund as an affirmative defense. Although the undersigned has ruled in one instance that a particular overuse syndrome qualified as an occupational disease, Atkins v. Monarch Mfg., File No. 816825, Arbitration Decision dated March 27, 1990, it was also held in that case that any condition or injury could qualify under the criteria set forth in McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). It was not held categorically that carpal tunnel syndrome or any other particular condition would always qualify as an occupational disease. Although another fellow deputy commissioner in Hoffman v. Second Injury Fund, File No. 831136 and 869798, Arbitration Decision, August 10, 1990, ruled that Chapter 85A is available as a defense to a Fund claim, this decision is not binding upon the undersigned. Workers' compensation laws are humanitarian in purpose and are to be interpreted liberally in favor of the injured worker. Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503, 506 (Iowa 1981). It would be contrary to the purposes of the workers' compensa tion law to allow defendants to use Chapter 85A as a defense and a means to deny compensation when 85A was not raised as a legal theory by the claimant. The occupational disease provisions of Chapter 85A are solely designed as an addi tional humanitarian benefit to injured workers' or an addi tional theory or means to recover workers compensation bene fits. It cannot be used in a defensive posture by defen dants. Iowa Code section 85A.16 states that the provisions of Chapter 85 so far as applicable and not inconsistent with 85A, shall apply in occupational disease cases. Iowa Code section 85.26(4) clearly states that no claim or proceedings for benefits shall be maintained by any person other than the injured worker. Consequently, a claim under 85A can only be maintained by the injured employee, not any defen dant or the Second Injury Fund. However, even if it was a valid defense, the Fund failed to carry its burden of proof to show that the condi tion herein is peculiar to the industry involved or more prevalent at Goss than in other places of employment, criti cal conditions precedent to any showing of an occupational disease under McSpadden. With reference to the claim of work injury, claimant has the burden of proving by a preponderance of the evidence that claimant received an injury which arose out of and in Page 5 the course of employment. The words "out of" refer to the cause or source of the injury. The words "in the course of" refer to the time and place and circumstances of the injury. See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited therein. In the case sub judice, a work injury in June 1987 was found. This was held to be an injury to both the arm and the shoulder. Consequently, this injury constitutes an injury and permanent impairment to the body as a whole because it involves a loss or loss of use of more portions of the human body than those specifically scheduled in Iowa Code subsections 85.34(2)(a-t). See Farmland Foods, Inc. v. Ten Eyck, Court of Appeals Decision filed January 29, 1986; Blacksmith v. All-American, Inc., 290 N.W.2d 348 (1980); Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 (1949); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). As a result of the work injury of June 1987 and the prior injury in 1982, claimant seeks disability benefits from the Iowa Second Injury Fund under Iowa Code sections 85.63 through 85.69. This Fund was created to compensate an injured worker for permanent industrial disability resulting from the combined effect of two separate injuries to speci fied members of the body. For purpose of such a scheme of compensation was to encourage employers to hire or retain handicapped workers. See Anderson v. Second Injury Fund, 262 N.W.2d 789 (Iowa 1978). There are three requirements under the applicable statutes to invoke second injury fund liability. First, there must be a permanent loss or loss of use of one hand, arm, foot, leg or eye. Secondly, there must be a permanent loss or loss of use of another such mem ber or organ through a compensable subsequent injury. Third, there must be a permanent industrial disability to the body as a whole arising from both the first and second injuries which is greater in terms of relative weeks of com pensation than the sum of the scheduled allowances for those injuries. If there is a greater industrial disability due to the combined effects of the prior loss and the secondary loss than equals the value of the prior and secondary losses combined, then the fund will be charged with the difference. See Second Injury Fund v. Neelans, 436 N.W.2d 355 (Iowa 1989). The Second Injury Fund is furthermore not relieved of liability simply because one or both of the injuries may also extend into the body as a whole. Id. However, when either the first or second injuries extend into the body as a whole, there is to be an apportioning process of the vari ous resulting industrial disabilities and respective liabil Page 6 ities. A determination of industrial disability must be made for each injury individually. The employer at the time of the second injury is liable for the difference, if any, between the industrial disability of the second injury and the industrial disability as a result of the combined effect of both injuries. The fund is then liable for the differ ence less the industrial disability found for the first injury. See Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467, 470-71 (Iowa 1990). In the case sub judice, claimant failed to demonstrate by the greater weight of the evidence that the combined effect of both injuries resulted in a greater industrial disability then the industrial disability caused by the two prior injuries individually. Consequently, there is no lia bility for the second injury fund. In the Findings of Fact, it was stated that it would be improper to speculate what would happen if claimant lost his job at Goss. It has been held by a former industrial com missioner that consideration of a potential job loss is not a proper determinative factor in industrial disability. It is only claimant's present not future earning capacity which is measured in awarding permanent disability benefits. Umphress v. Armstrong Rubber Co., Appeal Decision filed August 27, 1987. While persons may disagree with that deci sion, the decision is a binding agency precedent upon the undersigned deputy commissioner. order 1. The claim against the Second Injury Fund in this matter is denied and the claim is dismissed with prejudice. 2. Claimant shall pay the costs of this action pur suant to rule 343 IAC 4.33. Signed and filed this ____ day of December, 1991. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Benjamin W. Blackstock Attorney at Law 201 Cedar Plaza 385 Collins Rd NE Cedar Rapids IA 52402 Mr. John M. Bickel Attorney at Law Page 7 500 MNB Bldg P O Box 2107 Cedar Rapids IA 52406 Mr. Charles S. Lavorato Assistant Attorney General Tort Claims Division Des Moines IA 50319 5-1803; 2203 Filed December 23, 1991 LARRY P. WALSHIRE before the iowa industrial commissioner ____________________________________________________________ : JAMES W. COSPER, : : File No. 855687 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N SECOND INJURY FUND, : : Defendant. : ___________________________________________________________ 5-1803 Second Injury Fund claim dismissed as there was no showing that the combined effect of the two injuries was more than the two injuries individually. 2203 Held that the occupational disease law, Chapter 85A, is not available as an affirmative defense. Only claimant may raise a claim of occupational disease. Page 1 before the iowa industrial commissioner ____________________________________________________________ _____ : EDWARD J. KOCAL, : : Claimant, : : vs. : : File No. 855809 DEPT. OF NATURAL RESOURCES, : : A P P E A L Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ____________________________________________________________ _____ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The proposed decision of the deputy filed April 30, 1990 is affirmed and is adopted as the final agency action in this case, with the following additional analysis: Defendants assert that Deputy Walshire erred in failing to recuse himself prior to the hearing. A prior agency decision exists which addresses this issue: Defendants filed a motion seeking a recusal of Deputy Walshire from hearing the case. Defendants pointed out Iowa Administrative Code section 343-4.38 (17A), which provides: Any individuals presiding over contested cases before the industrial commissioner shall disqualify themselves from conducting a hearing on the merits or deciding any contested case in which such individual has substantial prior contact or interest or is so related to or connected with any party or attorney thereto so as to give, in the opinion of the person presiding, even the appearance of impropriety for such individual to conduct such hearing or decide such case. Rule 4.38 was cited by defendants in their motion for recusal. However, 4.38 deals with self-disqualification by the hearing officer. By its language, the rule is invoked only when the deputy subjectively concludes that an appearance of impropriety exists. Deputy Walshire concluded that no appearance of impropriety existed. The actual nature of the defendants' motion for Page 2 recusal was a claim of bias. As a motion for involuntary disqualification, defendants' motion should not have been brought under rule 4.38, but under Iowa Code section 17A.17(4). That section states: A party to a contested case proceeding may file a timely and sufficient affidavit asserting disqualification according to the provisions of subsection 3, or asserting personal bias of an individual participating in the making of any proposed or final decision in that case. The agency shall determine the matter as part of the record in the case. When an agency in these circum-stances makes such a determination with respect to an agency member, that determina-tion shall be subject to de novo judicial review in any subsequent review proceeding of the case. Iowa Code 17A.17(4) also refers to a timely affidavit alleging grounds for disqualification. A motion for recusal filed on the morning of the scheduled hearing cannot be viewed as timely, especially in light of the requirement of 17A.17(4) that the agency, presumably someone other than the deputy who is alleged to be biased, determine the matter. Deputy Walshire's union position and activities were known to the defendants well in advance of the date of the hearing. Regardless of the merits of the motion for recusal based on Deputy Walshire's union position, it was not properly raised in this instance, and will not be addressed on appeal. Miller v. Woodard State Hospital School, Appeal Decision, filed May 31, 1990. Next, the defendants contend that the deputy erred in awarding claimant permanent partial disability benefits as a result of his May 26, 1987 work injury. The deputy correctly points out in the statement of the facts that William Catalona, M.D., was claimant's treating physician. The opinions of Dr. Catalona, claimant's treating physician, will be given greater weight. That defendants pay the cost of this action including the costs of transcription of the arbitration hearing. Signed and filed this ____ day of December, 1991. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Edward J. Kocal 1808 North Pine Page 3 Davenport, Iowa 52804 CERTIFIED & REGULAR MAIL Mr. Robert D. Wilson Assistant Attorney General Tort Claims Division Hoover State Office Bldg. Des Moines, Iowa 50319 9999 Filed December 27, 1991 Byron K. Orton LPW before the iowa industrial commissioner ____________________________________________________________ _____ : EDWARD J. KOCAL, : : Claimant, : : vs. : : File No. 855809 DEPT. OF NATURAL RESOURCES, : : A P P E A L Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ____________________________________________________________ _____ 9999 Summary affirmance of deputy's decision filed April 30, 1990, with short additional analysis. BEFORE THE IOWA INDUSTRIAL COMMISSIONER EDWARD J.KOCAL, Claimant, VS. File No. 855809 DEPT. OF NATURAL RESOURCES, A R B I T R A T I 0 N Employer, D E C I S I O N and STATE OF IOWA, Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Edward Kocal, claimant, against the Iowa Department of Natural Resources, an agency of the state of Iowa (hereinafter referred to as DNR), defendant, for workers' compensation benefits as a result of an alleged injury on May 26, 1987. On November 29, 1989, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. Oral testimony and written exhibits were received during the hearing from the parties. The exhibits offered into the evidence are listed in the prehearing report. According to the prehearing report, the parties have stipulated to the following matters: 1. On May 26, 1987, claimant received an injury which arose out of and in the course of employment with DNR. 2. Claimant is not seeking further temporary total disability or healing period benefits. KOCAL V. DEPT. OF NATURAL RESOURCES Page 2 3. If permanent disability benefits are awarded herein they shall begin as of June 9, 1987. 4. Claimant's.rate of weekly compensation in the event of an award of weekly benefits from this proceeding shall be $189.27. 5. All requested medical benefits have been or will be paid by defendant. The prehearing report also contains a stipulation that the parties agreed that the disability is a scheduled member disability to the thumb. This is inconsistent with claimant's expressed views during the hearing wherein he stated that he felt comfortable with the views of his treating physicians which had provided ratings beyond the thumb. He also stated that he should be given more than what was paid by the defendant. As claimant is not represented by counsel, it was felt the written stipulation is not indicative of claimant's views and is rejected. The undersigned will award what the law provides apart from this stipulation. ISSUES The only issue submitted by the parties was the extent of claimant's entitlement to weekly benefits for permanent disability. STATEMENT OF THE FACTS The following is a brief statement highlighting some of the more pertinent evidence presented. Whether or not specifically referred to in this statement, all of the evidence received at the hearing was independently reviewed and considered in arriving at this decision. Any conclusions about the evidence received contained in the following statement shall be viewed as preliminary findings of fact. Claimant is a fishery technician and continues to work in this job at the present time. Claimant injured his left thumb when an outboard motor he was operating came down on his thumb severing the tip of the first phalanx just below the nail. The severed portion of the thumb could not be re-attached to the thumb. Claimant underwent two surgeries as a result of treatment for this injury. The first surgery attached the end of his thumb to his middle or second finger to graft skin on the end of the severed portion. The next surgery detached this thumb from the middle finger and grafted skin from claimant's thigh onto the donor portion of KOCAL V. DEPT. OF NATURAL RESOURCES Page 3 the middle finger. Claimant then underwent physical therapy and was released to return to work on June 9, 1987. Claimant describes his disability to the thumb as a loss of length to the thumb, loss of use of the nail, numbness and sensitivity to cold, bleeding, sensitivity of the skin grafts, and generally a loss of dexterity. Claimant also expresses problems with the graft site of the middle finger due to bleeding or when bumped or strained. He also has a scar on the thigh but stated that he has no problems with the scar other than appearance. Two physicians have rated claimant's disability. The treating physician, William Catalona, M.D., rates claimant under the AMA rating guides as suffering from a 55 percent permanent partial impairment to the thumb due to the amputation of 50 percent of the distal phalange and "hypaesth" of the pulp pad and shortened nail. He also gives a 5 percent permanent partial impairment rating to the donor "index" finger due to bleeding problems. This, Dr. Catalona states, is equivalent to 23 percent of the hand. Anthony D'Angelo, Jr., D.O., also rated claimant's disability from a single examination. Dr. D'Angelo indicates that claimant is suffering from a 60 percent permanent partial impairment to the thumb due to a loss of the tip, cold intolerance, weak pinch strength and occasional pain. Dr. D'Angelo also agrees with the 5 percent rating of Dr. Catalona to the "index" finger for bleeding problems at the donor site. Dr. D'Angelo equates his rating to a 25 percent permanent partial impairment to the hand or to a 23 percent permanent partial impairment to the left arm. Claimant was paid 15 weeks of permanent partial disability benefits prior to hearing. APPLICABLE LAW AND ANALYSIS Claimant must establish by a preponderance of the evidence the extent of weekly benefits for permanent disability to which claimant is entitled. Permanent partial disabilities are classified as either scheduled or unscheduled. A specific scheduled disability is evaluated by the functional method; the industrial method is used to evaluate an unscheduled disability. Martin v. Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 997 (Iowa 1983). When the result of an injury is loss to a scheduled member, the compensation payable is limited to that set forth in the appropriate subdivision of Code section 85.34(2). Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W. 2d. 660 (1961) KOCAL V. DEPT. OF NATURAL RESOURCES Page 4 "Loss of use" of a member is equivalent to 'loss' of the member. Moses v. National Union C.M. Co., 194 Iowa 819, 184 N.W. 746 (1922). Pursuant to Code section 85.34(2)(u) the industrial commissioner may equitably prorate compensation payable in those cases wherein the loss is something less than that provided for in the schedule. Blizek v. Eagle Signal Company, 164 N.W.2d 84 (Iowa 1969). Various impairment ratings have been provided in this case and the question arises as to which among the various schedules are we to use. First, it has long been held that it is the situs of the injury, not the situs of the disability or the effects of the injury, which determines which schedule will be utilized. Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 (1949); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). In this case, the injury is limited to the thumb and the middle or long finger. The finger was involved as a result of the healing process in which the finger was utilized to graft additional skin on the severed stump of the thumb. Why both physicians referred to this finger as the "index" finger rather than the second finger is unknown. In this agency's specialized experience, the first finger is normally referred to as the index finger. Iowa Code section 85.34(n) and Websters Dictionary also refers to the first finger as the index finger. Photographs submitted into evidence clearly show involvement of the middle or second finger in the skin graft process. The opinions of Dr. D'Angelo, the treating physician, will be given the greater weight. Therefore, it will be found that claimant is suffering from a 55 percent permanent partial impairment to the left thumb due to a 50 percent loss of the distal phalange, numbness and sensitivity of the stump, and loss of the nail. Based upon such a finding, claimant is entitled as a matter of law to 33 weeks of permanent partial disability benefits under Iowa Code section 85.34 (2) (a) which is 55 percent of 60 weeks, the maximum allowable number of weeks for a loss of use of the thumb in that subsection. Also, it will be found that claimant suffers from a 5 percent permanent partial impairment to the second or middle finger. Based upon such a finding, claimant is entitled as a matter of law to 1.5 weeks of permanent partial disability benefits under Iowa Code section 85.34(2)(c) which.is 5 percent of 30 weeks, the maximum allowable number of weeks for loss of the second finger in that subsection. Claimant is therefore entitled to a total of 34.5 weeks of permanent KOCAL V. DEPT. OF NATURAL RESOURCES Page 5 partial disability benefits. Why the defendant only paid 15 weeks is not clear in the record. FINDINGS OF FACT 1. The work injury of May 26, 1987 is the cause of a 55 percent permanent partial impairment to the left thumb and a 5 percent permanent partial impairment to the left middle or second finger. The thumb was originally only involved but the middle finger was subsequently injured by necessity to accomplish a skin graft to the thumb. 2. Claimant had no ascertainable functional impairments to these effected portions of the left hand prior to the work injury. CONCLUSION OF LAW Claimant has established under law entitlement to 34.5 weeks of permanent partial disability benefits. ORDER THEREFORE, it is ordered: 1. Defendants shall pay to claimant thirty-four point five (34.5) weeks of permanent partial disability benefits at the rate of one hundred eighty-nine and 27/100 dollars ($189.27) per week from June 9, 1987. 2. Defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for permanent partial disability benefits previously paid. 3. Defendants shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 4. Defendants shall pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. 5. Defendants shall file an activity report upon payment of this award as requested by this agency, pursuant to Division of Industrial Services Rule 343-3.1. KOCAL V. DEPT. OF NATURAL RESOURCES Page 6 Signed and filed this 30th day of April, 1990. LARRY P.WALSHIRE, DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Edward J Kocal 1808 N Pine Davenport IA 52804 CERTIFIED & REGULAR MAIL Mr Robert Wilson Assistant Attorney General Tort Claims Hoover Building Des Moines IA 50319 5-1803 Filed April 30, 1990 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER EDWARD J. KOCAL, Claimant, VS. File No. 855809 DEPT. OF NATURAL RESOURCES, A R B I T R A T I 0 N Employer, D E C I S I 0 N and STATE OF IOWA, Insurance Carrier, Defendants. 5-1803 Extent of permanent disability scheduled member. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ RICHARD OTT, : : Claimant, : : vs. : : File No. 856040 ZILGE APPLIANCE CENTER, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL, : : Insurance Carrier, : Defendants. : ------------------------------------------------------------ STATEMENT OF THE CASE This is a proceeding in arbitration brought by claimant Richard Ott, against his employer, Zilge Appliance Center, and Employers Mutual, insurance carrier. Claimant sustained an injury on June 23, 1987 which arose out of and in the course of his employment. The hearing was held before the undersigned deputy industrial commissioner on September 28, 1994 in Mason City Iowa. The record in this case consists of the testimony of claimant; Linda Ott, claimant's wife; Jeff Johnson, a vocational rehabilitation specialist; and Janet Burnett, service manager for defendant employer; and joint exhibits A through L. The case was considered fully submitted at the close of the hearing. ISSUES The parties submitted the following issue for resolution: The nature and extent of claimant's entitlement to permanent partial disability benefits. FINDINGS OF FACT The undersigned deputy, having reviewed all of the evidence received, finds the following facts: Claimant, Richard Ott, was born on February 14, 1949. At the time of the hearing he was 45 years of age, married with three children, only one of whom resides with him and his wife. Page 2 Claimant dropped out of high school in the ninth grade. In 1970, claimant obtained a GED through a home study course. In 1970 or 1971, claimant took home electronic and TV repair instruction through a correspondence course sponsored by Devry Institute of Technology in Chicago, Illinois. He received a certificate of successful completion in 1976. Claimant also has attended North Iowa Community College in Mason City where he learned refrigeration repair. Claimant's refrigeration repair class lasted approximately six weeks and at the end of the class he received a certificate of successful completion. Claimant has also attended training sessions dealing with general appliance repair sponsored by Amana, Maytag and GE. After leaving high school, claimant worked for approximately one year as a farm hand performing general farm labor. In 1967 claimant went to work for Oliver Tractor Manufacturing as a spray painter of tractor housings. Claimant would spray paint the tractor housing as it came off of the assembly line in the foundry. Claimant left Oliver in 1971, after suffering numerous layoffs, for steadier employment at Mason City Brick and Tile as a kiln setter and general yard worker. Claimant was responsible for loading tile into the kiln to be fired as well as driving a fork lift and general manual labor in the brick yard. After Mason City Brick and Tile closed down in 1977, claimant began his employment with defendant employer as a service technician for home appliances in October of 1977. When claimant began his employment he was responsible for making service calls on customers in their homes. Defendant employer provided claimant with a van to drive from his home to the customer's home. Claimant was responsible for repairing a wide variety of home appliances including, refrigerators, microwaves, window air conditioners, washers and dryers. At the time of his injury claimant was on a service call at a customer's home. He was trying to move an old refrigerator so that he could access the back of the refrigerator in order to repair it. Claimant testified that he was alternately pushing and pulling on the back and front of the refrigerator in order to break the footings loose so that he could push the appliance away from the wall. Claimant was unable to move the refrigerator, so he left the customer's house to go to another service call in Charles City, Iowa. Claimant testified that about 20 to 30 minutes after leaving the customer's home he began to experience pain in his neck and right arm as well as a severe headache. Prior to his injury claimant testified Page 3 that he had no problems with his neck, right shoulder or right arm. Claimant finished the service call in Charles City and returned to the shop at which time he reported his injury to defendant employer. Claimant finished out the rest of the day at the shop but the pain in his right arm, shoulder and neck continued to worsen so the next day, June 24, 1987, claimant sought treatment from James K. Coddington, M.D. Dr. Coddington prescribed pain medication and took claimant off of work for one week. Claimant's pain persisted and Dr. Coddington was unable to discover the source of the pain so he referred claimant to Raymond L. Emerson, M.D. Claimant was first seen by Dr. Emerson on September 8, 1987. Dr. Emerson prescribed physical therapy and a TENS unit in an attempt to diminish claimant's pain. (Joint Exhibit E) Claimant's condition did not improve with physical therapy or the TENS unit. Claimant requested an evaluation by doctors at Mayo Clinic in Rochester Minnesota, which was eventually performed on November 11, 1987. The doctors at the Mayo Clinic were unable to find the source of claimant's ongoing neck, right shoulder and arm pain. (Jt. exs. E, F). Dr. Emerson then arranged for an MRI of claimant's neck which eventually revealed what Dr. Emerson thought was a bulging disc at C5-6. (Jt. Ex. E). Dr. Emerson referred claimant to David W. Beck, M.D., a neurologist, who determined on July 27, 1989 that the MRI revealed a bulging disc at C4-5, especially on the right. (Jt. Ex. C) Dr. Beck prescribed conservative treatment in an attempt to alleviate claimant's pain. Conservative treatment included having claimant wear a cervical collar while he slept and during the daytime. Conservative treatment was unsuccessful and claimant subsequently underwent anterior cervical diskectomy and fusion at C3-4 on August 15, 1989. After the surgery claimant continued to have right arm, right shoulder and neck pain; as well as headaches. (Jt. Ex. C) Eventually, claimant returned to work on February 19, 1990. Since February of 1990 claimant has worked at most 25 to 30 hours per week. (Jt. Ex. B). When claimant returned to work in February 1990, Dr. Beck placed limited work restrictions on his activities. Claimant was not allowed to raise his arms above shoulder level or to engage in repetitive neck motions. (Jt. Ex. C) From February of 1990 until November 2, 1990 claimant had periodic after-care visits with Dr. Beck. (Jt. Ex. C). On November 2, 1990 Dr. Beck concluded that claimant had reached maximum medical improvement and pursuant to the AMA guidelines he determined that claimant had a 10 percent functional impairment rating. Claimant did not visit Dr. Beck again until June 10, 1992. (Jt. Ex. C) Page 4 On August 25, 1992 Dr. Beck believed that claimant could benefit from a pain clinic at the Sister Kenney Institute. Claimant never did attend the pain clinic because the insurance carrier refused to pay for it. After claimant's return to work in February of 1990, he was unable to ever get back to working an eight-hour day. Claimant testified that the most he can work is five hours per day, after those five hours have passed, claimant stated that working is just too painful. Maggie Covey, a rehabilitation consultant, met with claimant soon after his surgery on November 28, 1989 to discuss claimant's return to work. Defendant employer was responsive and adaptable to claimant's gradual return to work. (Jt. Ex I). By June 1, 1990 claimant had progressed to the point were he was able to work four to five hours daily, but he told Maggie Covey that after working four to five hours his energy was "used up." (Jt. Ex. I). Claimant has never been able to return to working more than five hours per day. Beginning in April of 1994 claimant was evaluated by another rehabilitation consultant, Jeff Johnson, in an attempt to increase claimant's work hours up to eight per day. (Jt. Ex. J). Mr. Johnson's report of April 29, 1994 indicates that in 1994 claimant was working without breaks from 8 a.m. to 1 p.m. every day. Defendant employer was willing to accommodate whatever break schedule would be required for claimant to perform an eight-hour day. Claimant has turned down both the opportunity to work every Saturday to increase his work hours and the opportunity to arrive at work at 7:30 a.m. daily to open the store. (Jt. Ex J). On cross-examination claimant admitted that the reason he doesn't want to open the store at 7:30 a.m., even though it would not require any additional physical work for him, is because it would interfere with his driving his daughter to school every day. It also appears that working later than 1:00 p.m. every day would interfere with claimant's picking up his daughter from school. Claimant's physical restrictions in 1994 are those reflected in Dr. Beck's November 2, 1990 report and include: no repetitive flexing of his neck or right shoulder and leaving it up to the claimant as to how many hours he can work. (Jt. Ex. J). On June 15, 1994, Dr. Beck stated that claimant returned to him for a follow-up and he subsequently recommended that "he stay at five hours a day in the shop." (Jt. Ex. C). On July 26, 1994 claimant was evaluated by Thomas A. Carlstrom, M.D., a neurologist. While Dr. Carlstrom agreed with Dr. Beck's 10 percent impairment rating he also stated "I would think that this patient should be able to work full time, though I understand that he can't, and I have no explanation for the discrepancy between my opinion and real Page 5 life." (Jt. Ex. K, p. 2) No medical professional has been able to determine why claimant suffers pain that prevents him from working any longer than five hours. Defendant employer has been very cooperative and accommodating with claimant's attempted return to work. Defendant employer has purchased a mat for claimant to stand on while he works as well as air tools for claimant to use. If claimant is able to increase his hours of work defendant employer has committed to purchasing a pneumatic scissor lift for claimant to use. (Jt. Ex. J). Defendant employer also indicated that they would allow claimant to have a recliner in the shop if it would make it easier for him to take breaks. Claimant currently takes no breaks once he begins his work day, an attempt to increase the length of claimant's work day by mandating that he take a morning break as well as a lunch break was unsuccessful; claimant ended up working less hours than when he wasn't taking a break. Before his injury Claimant was paid $10.70 per hour. Claimant is currently paid $6.00 per hour. Janet Burnett testified that claimant is paid less per hour now than prior to his injury because the employer is not allowed to charge as much for his work since he no longer makes service calls to customers' homes. In claimant's deposition, taken July 8, 1993, he states that defendant employer is keeping his wages low in order to help him settle his workers' compensation claim. (Jt. Ex. A, p. 29). Jeff Johnson estimated that if claimant were to seek alternative employment at this time his hourly wage would be between $6.00 and $7.50 per hour. (Jt Ex. J) Defendant employer has offered to increase claimant's wages if he returns to working full time, that is eight hours per day. When claimant is working in the shop there is always someone who can do any lifting that claimant feels he cannot perform. On some service calls to a customer's home, no lifting would be required of claimant. Janet Burnett explained that on occasion an older customer will need a microwave repaired and the customer doesn't want to bring the microwave into the shop. Claimant refuses to go on service calls of the above nature, even though no lifting would be required because he says driving would be a problem for him. Yet claimant and his wife were able to share driving responsibilities when they drove on vacation to Texas, Las Vegas and Wyoming. Claimant is under no restrictions against driving, he just chose not to go on service calls. On cross-examination claimant admitted that he has no problem performing the work required of him by defendant employer. ANALYSIS AND CONCLUSIONS OF LAW The only issue to be determined is the nature and extent of claimant's entitlement to permanent partial Page 6 disability benefits. The party who would suffer loss if an issue were not established has the burden of proving that issue by a preponderance of the evidence. Iowa R. of App. P. 14(f). 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 the employee is fitted. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. Impairment and disability are not synonymous. The degree of industrial disability can be much different than the degree of impairment because industrial disability references to loss of earning capacity and impairment references 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 the healing period; the work experience of the employee prior to the injury and after the injury and the 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. Likewise, an employer's refusal to give any sort of work to an impaired employee may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. 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 as well as general and specialized knowledge to make the finding with regard to degree of industrial disability. See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 529 (App. March 26, 1985); Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa Page 7 Industrial Commissioner Decisions 654 (App. February 28, 1985). Compensation for permanent partial disability shall begin at the termination of the healing period. Compensation shall be paid in relation to 500 weeks as the disability bears to the body as a whole. Section 85.34. At the time of his injury claimant was 38 years old and he had been employed with defendant employer for almost ten years. Claimant has suffered an actual loss of earnings as a result of his reduction in pay and as a result of his inability to work a 40-hour work week. Claimant's wages have dropped from $10.70 per hour to $6.00 per hour and claimant's hours have dropped from at least 40 hours per week to no more than 25 or 30 hours per week. Some of the reduction in hours is attributable to claimant's refusal to work any additional hours because it would not be convenient for his schedule. It is also apparent that claimant believes that some of his loss of wages is an effort by his employer to aid a settlement of his workers' compensation claim. Claimant has a 10 percent permanent impairment rating from two doctors. However, no doctor has been able to determine why claimant is physically unable to work more than 25 or 30 hours per week. Claimant's current wages are comparable to what he could earn in he were to seek alternative employment. Defendant employer has accommodated claimant's work restrictions and his self-imposed limited hours. Claimant is able to carry out the job responsibilities assigned to him and is still able to work. After considering all of the factors use in determining industrial disability, it is the decision of the deputy industrial commissioner that claimant has sustained a 25 percent industrial disability. ORDER THEREFORE IT IS ORDERED: That defendants shall pay unto claimant one hundred twenty-five (125) weeks of permanent partial disability benefits at the rate of two hundred sixty-three and 39/100 dollars ($263.39) commencing October 23, 1990. That defendants shall be entitled to a credit for benefits previously paid. That defendants shall pay accrued weekly benefits in a lump sum. That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. Page 8 That defendants shall pay the costs of this action pursuant to rule 343 IAC 4.33. That defendants shall file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this __________ day of October, 1994. ______________________________ TERESA K. HILLARY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. H P Folkers Attorney at Law 23 3rd St NW STE 200 Mason City, IA 50401 Mr. Marvin Duckworth Attorney at Law 2700 Grand Ave STE 111 Des Moines, Iowa 50312 51803 Filed October 28, 1994 Teresa K. Hillary BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ RICHARD OTT, Claimant, vs. File No. 856040 ZILGE APPLIANCE CENTER, A R B I T R A T I O N Employer, D E C I S I O N and EMPLOYERS MUTUAL, Insurance Carrier, Defendants. ------------------------------------------------------------ 51803 Claimant underwent surgery for anterior cervical diskectomy and fusion at C3-4. Claimant has returned to work with minimal work restrictions and is able to perform all job responsibilities, except making service calls at customers' houses. Actual loss of earnings because of reduced wages and reduced hours due in part to claimant's refusal to work additional hours and employers reduced earnings for employees work because he would not go on service calls. Claimant awarded 25 percent industrial disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER GLORIA DECKER, File Nos. 856157 & 865851 Claimant, A R B I T R A T I O N vs. D E C I S I O N WILSON FOODS, INC., F I L E D Employer, JUN 11 1990 Self-Insured, Defendant. INDUSTRIAL SERVICES INTRODUCTION This is a proceeding in arbitration brought by Gloria Decker, claimant, against Wilson Foods, Inc., employer and self-insured defendant, for benefits as the result of an alleged injury to the neck, shoulders and upper back which occurred on January 2, 1987 (file number 856851) and an injury to her right hand which occurred on March 18, 1987 (file number 856157). The record consists of the testimony of Gloria Decker, claimant; joint exhibits 1 through 13; claimant's exhibits 1 and 2 and employer's exhibits A through C. Both attorneys submitted excellent briefs. ALLEGED INJURY OF JANUARY 2, 1987 STIPULATIONS The parties stipulated that an employer-employee relationship existed at the time of the alleged injury; that the rate of compensation, in the event of an award, is $232.27; and that claimant's entitlement to medical benefits is not in dispute. ISSUES The parties submitted the following issues for determination at the time of the hearing: Whether claimant sustained an injury,on January 2, 1987, which arose out of and in the course of employment with employer. Whether the injury was the cause of permanent disability. Whether claimant is entitled to permanent disability benefits, and if so, the nature and extent of benefits to which she is entitled. INJURY OF MARCH 18, 1987 STIPULATIONS The parties stipulated to the following matters at the time of the hearing: That an employer-employee relationship existed between claimant and employer at the time of the injury. That claimant sustained an injury on March 18, 1987, which arose out of and in the course of employment with employer. That the injury was the cause of both temporary and permanent disability. That the extent of entitlement to temporary disability benefits has already been paid and is not a matter in dispute between the parties at this time. That the type of permanent disability, if the injury is found to be a cause of permanent disability, is scheduled member disability to the right hand. That the commencement date of permanent partial disability benefits is February 10, 1988. That the rate of compensation, in the event of an award, is $232.27 per week. That claimant's entitlement to medical benefits is not in dispute. That defendant makes no claim for employee nonoccupational group health plan benefits paid to claimant prior to hearing. That defendant has paid claimant 4.75 weeks of permanent partial disability benefits prior to hearing at the rate of $232.27 per week. That there are no bifurcated claims. ISSUES The parties submitted the following issues for determination at the time of the hearing: Whether the injury was the cause of permanent disability. Whether claimant is entitled to permanent disability benefits, and if so, the extent of benefits to which she is entitled. ALLEGED INJURY OF JANUARY 2, 1987 FINDINGS OF FACT Claimant testified that on January 2, 1987, she slipped on a piece of fat and fell on her bottom and jammed her shoulders. She testified that she hurt her low back, shoulders, and neck. She reported the injury to her foreman; saw Keith O. Garner, M.D., the plant physician; was referred to Walter O. Carlson, M.D., an orthopedic surgeon; Mark E. Wheeler, M.D., an orthopedic surgeon; A. J. Wolbrink, M. D., an orthopedic surgeon; and received physical therapy from a licensed physical therapist. She saw Pat Luse, D.C., for an evaluation also. Claimant testified that she still has headache pain, neck pain and hip pain precipitated by lifting and knife work. Strenuous activity either at home or at work also triggers the pain. She has a particularly sharp lower neck pain. The medical records of Dr. Garner verify that claimant did report a fall at work on January 2, 1987 and complained of lower back pain. A week later, on January 9, 1987, she complained of right shoulder muscles being sore and was authorized to see a chiropractor. Claimant continued to complain of neck and shoulder pain in March, April and May according to the entries on the company medical records. Employer referred claimant to Dr. Carlson in April of 1987 and to Dr. Wheeler, at her request, in August of 1987 (exhibit 1, pages 1-4). Dr. Carlson examined and treated the cervical and thoracic regions and found no objective evidence for decreased range of motion or neurologic change in her arms and neck to merit taking her off work. He prescribed medication and a cervical collar. Dr. Carlson gives no opinion on causal connection of the employment to the complaints of injury (ex. 4, p. 1 and ex. 5). on August 11, 1987, he said there was nothing more that he could do for her neck and shoulder and that she was able to work (ex. 7). Dr. Carlson's diagnosis was muscle-ligament strain in neck and shoulder. He indicated gradual improvement should be expected (ex. 10). Dr. Wheeler said that claimant gave a history that she slipped and fell at work, but was uncertain whether the fall actually caused her problems because she had had continued trouble for quite some time. He did find tenderness over the trapezius muscles over C3, C4 and C6 and in both paraspinal muscle groups. She had a full range of motion of the cervical spine and the shoulder. His neurological examination was normal. X-rays of the cervical spine showed no abnormality. Dr. Wheeler diagnosed chronic muscle strain pattern about the shoulders. Dr. Wheeler concluded as follows: I have advised her I have little to offer. I am sure her work is aggravating her condition but I do not feel that leaving her off work for a short period of time is going to solve anything. Have advised her she can work as long as she tolerates the pain. I have not placed her on any medications. She has a zero percent permanent partial impairment rating because of this. She has full range of motion of all joints. (ex. 3) Dr. Wolbrink noted that claimant slipped and fell at work and continued to have pain in the right trapezius area from the cervical spine to the periscapular area and somewhat into the right shoulder. He stated, "In my opinion, Mrs. Decker did suffer mild, cervical strain in the above incident. She has some persistent muscular problems because of this." (ex. 12, p. 2). He expected to see improvement with a good exercise program. His final remark was, "It is also my opinion, that with a good exercise program, she will have a good recovery, and so will not have any permanent impairment due to her cervical spine injury." (ex. 12, p. 2). Dr. Luse, claimant's evaluator, found that claimant did receive an injury as a result of the fall of chronic cervical sprain/strain with myositis and cephalgia (claimant's ex. 1, p. 3). In conclusion, Dr. Carlson gives no guidance on causal connection. Dr. Wheeler said that claimant reported a fall at work, but was not sure whether this actually caused her problems. Dr. Wheeler, like Dr. Carlson, did not give his own personal professional medical opinion on whether the fall at work was the cause of her medical complaints. He did say that her work aggravated her condition. The weight of the evidence, however, does support a work-related injury. The employer's medical records show that Dr. Garner recorded a fall on January 2, 1987,and ensuing shoulder and neck pain shortly thereafter. Dr. Wolbrink clearly states that the fall did cause claimant's cervical and shoulder complaints. Dr. Luse also unequivocally states that the fall caused claimant's cervical sprain/strain, myositis and cephalgia. Therefore, it is determined that claimant sustained an injury to her shoulders, neck and upper back on January 2. 1987 which arose out of and in the course of employment with employer. CAUSAL CONNECTION-ENTITLEMENT-PERMANENT DISABILITY Dr. Carlson found no permanent impairment or disability, but only muscle-ligament strain in the neck and shoulder (ex. 10) and that it did not impair claimant's ability to work (exs. 4, 5 & 7). Dr. Wheeler found that work was aggravating her shoulder and neck condition and probably would continue to do so, but determined, "She has a zero percent permanent partial impairment..." Dr. Wolbrink's cervical spine x-ray reads as follows: The cervical spine is intact with no fractures. Vertebral alignment is normal and intervertebral discs are adequately maintained. No encroachment on intervertebral foraminae can be seen. IMPRESSION: NEGATIVE CERVICAL SPINE. (ex. 11) After careful consideration, Dr. Wolbrink stated, "...that with a good exercise program, she will have a good recovery, and so will not have any permanent impairment due to her cervical spine injury." (ex. 12, p. 2). Dr. Luse found some mild impairments in claimant's left and right lateral.flexion--1 percent on the right and 1 percent on the left, but did not find any particular impairment rating for the cervical spine itself (cl. ex. 1, p. 3). Therefore, it is determined that the injury to claimant's, neck and shoulders and upper back was not the cause of any permanent impairment and claimant is not entitled to any permanent partial disability benefits. It is determined that claimant sustained an injury to the body as a whole, rather than a scheduled member injury. INJURY OF MARCH 18, 1987 CAUSAL CONNECTION-ENTITLEMENT-PERMANENT DISABILITY Following the trigger finger releases performed by Dr. Carlson on June 25, 1987, claimant contended, "...that when she has her fingers wrapped around a knife at work they trigger and snap on her." (ex. 7). Claimant also asserted a lack of grip strength in her right hand (ex. 8). Nevertheless, Dr. Carlson concluded: She had full range of motion of the fingers and patient requested a permanency rating based on grip strength. The patient was advised that there was no information allowing to relate disability to decreased grip strength. It is our opinion that the patient has no permanent partial physical impairment rating related to her injury. She is back to full work duty. (ex. 9) Dr. Wheeler refused to treat the right hand complaint and makes no comment about it (ex. 1, p. 4; ex. 3). Dr. Wolbrink recorded that she still had problems with the right hand, especially if she is using the "whizzer" knife. He further recorded, "weakness of the right hand." He found right hand scars and slight crepitation along the flexor tendons as she flexed her fingers. He felt that she had good relief from the surgery. He recommended an exercise program for her hands, which he found were of just marginal strength, to tolerate the highly repetitive work that she was doing without changing jobs throughout the day. His final impairment rating was worded as follows: In my opinion, in using the Guides to the Evaluation of Permanent Impairment, AMA, 2nd edition, Mrs. Decker has an impairment at the present time, of 10% of the right hand, due to the persistent weakness from her trigger finger and the tendinitis. I do think that she will continue to see improvement, but I think that she will have a permanent impairment of about 5% of the right hand due to this problem. (ex. 12, p. 2) Dr. Luse found that the repetitive motion job which claimant was performing was the cause of her right trigger finger release and paresthesia of the right hand (ex. 1, p. 3). He awarded a 4 percent impairment of the right upper extremity due to loss of function, sensory defect, pain and discomfort and another 4 percent impairment to the right upper extremity for loss of function due to loss of strength. He combines these two ratings and arrives at an 8 percent combined impairment. The impairment is to a scheduled member, however, rather than to the whole person as stated by Dr. Luse. Four percent and 4 percent do combine to 8 percent on the combined values chart of the AMA Guides. In conclusion, Dr. Wolbrink found a 10 percent permanent impairment to the right hand. Dr. Luse's 8 percent of the right upper extremity converts to 7 percent of the hand (table 2, page 19, AMA Guides). There is no evidence that claimant's impairment extends beyond the hand. The wrist has been determined to be a part of the hand. Elam v. Midland Manufacturing, II Iowa Industrial Commissioner Reports 141 (Appeal Decision 1981). Dr. Wolbrink's statement, "...that she will continue to see improvement, but I think she will have a permanent impairment of about 5% of the right hand due to this problem." is speculative in nature. He awarded 10 percent for the condition as he found it. There has been no evidence that the condition improved to 5 percent subsequent to his rating. Claimant testified that her hands and knuckles still swell from using them at work. There is no evidence that either Dr. Wolbrink or Dr. Luse included the tennis elbow which developed subsequent to this injury, in their evaluation or determination of an impairment rating. In conclusion, Dr. Carlson's determination that claimant suffered no permanent impairment as a result of the third and fourth finger releases is out weighed by the testimony of Dr. Wolbrink and Dr. Luse. Therefore, based on claimant's testimony and the evaluations of Dr. Wolbrink and Dr. Luse, it is determined that claimant has sustained a 7 percent permanent partial impairment to the right hand. Iowa Code section 85.34(2)(1). Seven percent of 190 weeks equals 13.3 weeks of entitlement to permanent partial disability benefits. ALLEGED INJURY OF JANUARY 2, 1987 CONCLUSIONS OF LAW Claimant did sustain the burden of proof by a preponderance of the evidence that she sustained an injury to her neck, shoulders and upper back when she fell on January 2, 1987, which arose out of and in the course of employment with employer. Iowa Code section 85.3(1); McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Causal connection to temporary disability and entitlement to temporary disability were not issues in this case because claimant lost no time from work because of this injury. Claimant did not sustain the burden of proof by a preponderance of the evidence that the injury was the cause of permanent disability. Bodish v. Fischer Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945). Claimant, therefore, is not entitled to permanent disability benefits because she did not prove that the injury was the cause of permanent disability. Furthermore, Dr. Carlson, Dr. Wheeler and Dr. Wolbrink determined that claimant had not sustained any permanent impairment from this injury. The injury is determined to be an injury to the body as a whole rather than an injury to a scheduled member. Iowa Code section 85.34(2)(u). INJURY OF MARCH 18, 1987 That claimant did sustain the burden of proof by a preponderance of the evidence that the injury of March 18, 1987, to the right hand, was the cause of permanent impairment. That the parties stipulated that the type of permanent disability, if the injury was found to be a cause of permanent disability, was scheduled member disability to the right hand. Iowa Code section 85.34(2)(1). That claimant sustained a 7 percent permanent impairment and functional disability to the right hand. That claimant is entitled to 13.3 weeks of permanent partial disability benefits. ORDER THEREFORE, IT IS ORDERED: That defendant pay to claimant thirteen point three (13.3) weeks of permanent partial disability benefits at the rate of two hundred thirty-two and 27/100 dollars ($232.27) per week in the total amount of three thousand eighty-nine and 19/100 dollars ($3,089.19) commencing on February 10, 1988 as stipulated to by the parties. That all accrued benefits are to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That defendant is entitled to a credit for four point seven five (4.75) weeks of workers' compensation benefits paid to claimant prior to hearing at the rate of two hundred thirty-two and 27/100 dollars ($232.27) per week in the total amount of one thousand one hundred three and 28/100 dollars ($1,103.28). That the costs of this action are charged to defendant pursuant to Division of Industrial Services Rule 343-4.33. That defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 11th day of June, 1990. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Harry Smith Mr. MacDonald Smith Attorneys at Law 632-640 Badgerow Bldg. PO Box 1194 Sioux City, Iowa 51102 Mr. David Sayre Attorney at Law 223 Pine PO Box 535 Cherokee, Iowa 51012 51107; 51108.50; 51401; 51402.20; 51402.30; 51402.40; 51803; 52209; 51401; 51402.40; 51803 Filed June 11, 1990 Walter R. McManus, Jr. BEFORE THE IOWA INDUSTRIAL COMMISSIONER GLORIA DECKER, Claimant, File Nos. 856157 & 865851 vs. A R B I T R A T I O N WILSON FOODS, INC., D E C I S I O N Employer, Self-Insured, Defendant. 51107; 51108.50; 51401; 51402.20; 51402.30; 51402.40; 51803; 52209 It was determined that claimant did sustain an injury arising out of and in the course of her employment from a fall at work which injured her neck, shoulder and upper back; however, claimant did not prove any impairment or disability. She lost no time from work, had no impairment rating, was performing her old job and had no actual wage loss. 51401; 51402.40; 51803 Treating physician awarded zero impairment. An evaluator awarded 10 percent impairment, but expected it to improve to 5 percent. Another evaluator awarded 7 percent. It was determined the expected improvement was speculative because it had not been proven that the improvement occurred, especially in light of claimant's continued complaints. Claimant awarded 7 percent permanent partial disability to the right hand. BEFORE THE IOWA INDUSTRIAL COMMISSIONER MARK MAUDSLEY, Claimant, VS. : File No. 856330 PIZZA 2-U A R B I T R A T I 0 N Employer, D E C I S I O N and NATIONAL UNION FIRE INSURANCE COMPANY, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by the claimant, Mark Maudsley, against Pizza 2-U, employer, and National Union Fire Insurance Company, insurance carrier, defendants, to recover benefits as a result of an alleged injury sustained on May 25, 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 and Joint Exhibits 1 through 41 and A through L. ISSUES The issues the parties set out in the prehearing report for resolution are: 1. Whether claimant's alleged permanent disability is causally connected to his injury; 2. The nature and extent of claimant's disability; 3. Whether claimant is entitled to Iowa Code section 85.27 medical benefits; and 4. Whether claimant is entitled to Iowa Code section 85.39 medical examination by John R. Walker, M.D. REVIEW OF THE EVIDENCE Claimant testified he had twelve years of primary and secondary education but did not have sufficient credit his MAUDSLEY V. PIZZA 2-U Page 2 twelfth year of school to graduate from high school. Claimant said he obtained his GED from Kirkwood College in 1975. Claimant stated he began working at age 14 or 15 at a food service restaurant. Claimant entered the air force after high school for three years and obtained his general honorary discharge in 1979. claimant said his job in the air force was as a fuel specialist, fueling trucks and aircraft and other duties. Claimant described his work history after leaving the air force. Claimant said it involved jobs such as boning hams at Wilson Foods, warehouse work, washing windows, corn processing, cleaning and maintenance work. In the fall of 1982, claimant became unemployed for approximately one year. Claimant testified he then took a truck driving course at Kirkwood Community College in the fall of 1983 through the spring of 1984 and thereafter obtained a truck driving job with City Deliveries. Claimant related this job was terminated when he drove a 13 foot high truck under a 11 foot high overpass. Claimant said he then applied at every truck driving place in town and finally obtained a job with defendant employer in August 1986. Claimant stated this job paid little more than minimum wage. He said this job involved driving a van equipped with an oven and refrigerator and he delivered the pizza after it was prepared in the van by claimant. Claimant testified he was in an accident on May 25, 1987 while driving his van to deliver a pizza. Claimant described the accident as involving only his vehicle which slid off the roadway on slippery pavement and was a total loss. Claimant related he was taken by ambulance to the hospital. Claimant said he was x-rayed and it was determined he was okay and sent home. Claimant indicated he returned to the hospital that same day because injuries to the back of his legs had not been stitched as required. Claimant said he notified the employer and shortly thereafter defendant insurance company set up an appointment with W. John Robb, M.D., who prescribed an exercise and swimming program for claimant. Claimant indicated the course of treatment prescribed by Dr. Robb was resulting in no progress. Claimant said the doctor would tell him to continue with exercises and swimming and come back again in six to eight weeks. Discouraged with his progress, claimant said he went to his family doctor, Dr. Schulz, who suggested claimant see James W. Turner, M.D., who was Dr. Robb's associate. Claimant stated Dr. Turner took a more aggressive approach, including setting up an aerobics program. Claimant indicated he made some progress in certain areas and more in others. Claimant stated Dr. Turner released him to go to work in June 1988. Claimant indicated he told the doctor he could not do the work but the doctor said to give it a try. Claimant returned to work. Claimant indicated defendant employer bought a Ranger pickup truck rather than the prior type of van. Claimant described the MAUDSLEY V. PIZZA 2-U Page 3 difficulties he had cooking, driving and delivering pizza with the Ranger and the equipment. Claimant said he was burned by pizza landing on him on one occasion. Claimant said he worked about three days in the two week period and then told his supervisor he could not continue to work. Claimant then saw G. Douglas Valentine, D.C., to whom he was referred by a friend to see if he could get some back relief. Claimant said he found no relief and was then referred to Dr. Walker by claimant's divorce attorney. Claimant related Dr. Walker prescribed hospitalization for ten to twelve days which involved traction, therapy, steroids, muscle relaxants and anti-inflammatory drugs. Claimant said Dr. Walker took a more aggressive approach than either Dr. Robb or Dr. Turner. Claimant emphasized he wanted to get well and back to work. Claimant acknowledged he did not have authorization from defendants to see Dr. Valentine or Dr. Walker, but does not recall seeing either of the two letters defendants' attorney wrote indicating claimant had no authorization to see a doctor other than Drs. Robb and Turner. Claimant revealed he did not know he had to get defendants' authorization to see a doctor. Claimant said he began working with vocational rehabilitation in December 1989. Claimant said the reason why he waited so long to contact the vocational rehabilitation personnel was because defendant employer went out of business and he felt his former job was no longer available. Claimant indicated he would have to get a sedentary job as he could no longer do the same work he did before his injury. Claimant considers himself intellectually bright and can get a job with training. Claimant contends he can no longer drive a truck. Claimant said he applied for two jobs in 1990. Claimant admitted he stated in his job application that Dr. Walker limited claimant's lifting, bending and twisting. Claimant said he didn't get the jobs. Claimant stated he would like to continue working with the skill center and find an interesting job comparable with his skills. Claimant indicated he would like to learn a business manager position. Claimant recalled his six visits with Dr. Robb, the last being in May 1988, but could not explain why the doctor didn't mention his neck complaint. Claimant acknowledged Attorney Humphrey referred claimant to Dr. Walker and Valentine and admitted he never told defendant insurance company or adjusting company that he was seeking the services of these two doctors. Claimant said he did not seek the insurance company's authorization to see these two doctors. Claimant indicated he called defendant employer on the day of his oral release by Dr. Turner on March 2, 1988. Claimant indicated defendant employer would not take claimant back until he obtained a written release. The evidence is confusing why claimant was not able to get the doctor's release in writing for two months, but claimant contends he called the doctor several times. Claimant finally returned to work in June 1988 until MAUDSLEY V. PIZZA 2-U Page 4 August 1988. Claimant acknowledged Dr. Turner issued a written release dated June 22, 1988 referring to claimant returning to work May 5, 1988. Claimant could not recall Dr. Turner releasing him more than once. Claimant said he still does not have a release from his own doctor, John Walker. Claimant acknowledged he did not look for nor had he applied for any job between August 1988, upon leaving defendant employer, and January 1990. claimant said he thought about returning to school. Claimant said he went to Job Service in 1990 for the first time. When asked why he didn't ask for defendant employer's permission to see Dr. Walker, claimant stated he didn't know he had to get permission to see a doctor of his choice. Claimant acknowledged he has a lawsuit against Jerry Rambo alleging Rambo was responsible for claimant's vehicle accident on May 25, 1987. Jerry Rambo testified through his telephonic deposition taken February 6, 1990 (Joint Exhibit L) that he has been field support consultant for Pizza Hut since February 1989, but has worked for Pizza Hut for fifteen years. He said he was manager of Pizza 2-U from October 1984 to February 1989. He acknowledged he knew claimant as a driver for defendant employer and described claimant's duties. Rambo testified he was personally involved in claimant's return to work. He said claimant asked him in June 1988 if claimant could return to work. Rambo said he told claimant he would need a written letter from the doctor or a doctor's release and then he could come back to work. Rambo said claimant obtained a written doctor's release and returned to work in June 1988 for two or three weeks at the same duties he had at the time of his May 25, 1987 accident. Rambo related he asked claimant several times how his back was and he said claimant responded he had no problems. Rambo emphasized claimant never indicated to him that claimant was having problems with his back nor did it appear claimant was having any back problems. Rambo acknowledged that claimant was out in the truck and Rambo was in the shop so he could only see claimant after work and had to go on what claimant told him. Rambo said claimant failed to show up for work after two to three weeks and did not talk to anyone as to why. Rambo said he has never talked to claimant as to why he stopped working as claimant had been scheduled to work. Rambo said claimant was not fired but was put on indefinite leave. Shortly thereafter, he said defendant employer received another workers' compensation claim by claimant for back problems. Rambo acknowledged claimant was a good worker, when he worked, and claimant seemed anxious to get back to work. Rambo said claimant's release and return to work Rambo received in June 1988 was the first release he had received and was dated May 1988. Rambo said he was concerned about claimant's back and kept asking claimant about his back since claimant had been in an accident. He acknowledged claimant's job involved some bending, twisting, but no lifting MAUDSLEY V. PIZZA 2-U Page 5 over 30 pounds. Rambo said claimant had a positive attitude both before his injury and when he returned in June 1988. Mercy Hospital x-rays taken shortly after claimant's May 25, 1987 injury showed negative for bone disease or injury.(Jt. Ex. A) The Mercy Family Practice Clinic notes of May through July 1987 indicate claimant had back complaints, and aches and stiffness in the cervical lumbar area of his back. The Mercy Family Practice Clinic notes of November 16 and December 18, 1987, January 5, January 12, January 19, April 27, and December 16, 1988 are medical visits for claimant's Crohn's disease. This is an intestine-ileum problem and has no connection with claimant's injury. The January 5, 1988 note reflects "Crohn's disease, not well under control." (Jt. Ex. B, p. 4) The December 16, 1988 medical notes reflect "Crohn's disease now under control w/Flagyl." (Jt. Ex. B, p. 5) There are certain physical therapy records regarding claimant on February 15, 1988. The Iowa Musculoskeletal Center notes reflect: "Judging by patient's [sic] facial expression and his lack of trying, I felt he was not interested in the program and that lack of interest, I don't think he would benefit at all from the program." (Jt. Ex. 7, p. 4) On February 18, 1988, Dr. Robb indicated to the insurance adjustor that if claimant had followed through with therapy, his condition would probably be resolved by now. (Jt. Ex. 31) Claimant was then given his 30 days notice that benefits were to cease. Claimant saw W.J. Robb, M.D., on July 20, 1987. On July 22, 1987, Dr. Robb wrote: Diagnoses: 1. SPRAIN CERVICAL SPINE, RECOVERED. 2. STRAIN MUSCLES THORACIC LUMBAR SPINE, STILL SYMPTOMATIC. (Jt. Ex. 10, p. 2) Dr. Robb wrote in a letter June 28, 1989 as follows: The objective findings are limited and disproportionate to the subjective complaints. I think there is a significant functional overlay. Psychological factors as they play a role in the adjustment of an individual to injury and could be significant in retarding the performance or providing the individual with capability of handling adjustment to his limitations understanding completely the nature of his problems. PROGNOSIS: I anticipate that after the litigation is resolved that he will engage in much more activity. If adequately performed his impairment of function would be quite MAUDSLEY V. PIZZA 2-U Page 6 limited. I do not feel that this would exceed five percent of the body as a whole. (Jt. Ex. 10, p. D-3) Dr. Robb was asked in a letter and answered on June 28, 1989 as follows: Is any further treatment including surgery indicated? I do not think that further treatment is going to assist or improve this patient's performance until the litigation has been resolved. I think there are certain psychological factors that impact on this case which preclude his complete participation in an aggressive exercise program which is necessary to correct the flexion contracture to which I have referred earlier. The two percent permanent impairment of function would represent the optimistic recovery after the resolution of the litigation. My personal opinion is I do not feel it will exceed five percent of the body as a whole and that is assuming that he does not participate in his exercises more aggressively than he has up to your point. (Jt. Ex. 10-D, p. 3-4) The notes of James W. Turner, M.D., an orthopedic surgeon, a partner of Dr. Robb, reflect on March 8, 1988 On examination today with Mark he appears very inconsistent in movements. He has totally negative straight leg raising. When sitting he raises easily off of the examining table. Exaggerated movements when attempting to bend forward. I have reviewed his x-rays. At this time I feel that he had only soft tissue injury. I think a valid attempt has been made at rehabilitating through therapy. We don't seem to be making significant progress. My recommendation is that the patient attempt to return to work. I don't see that delivering pizzas should significantly give him any great problems. I think that he probably will perceive some pain on an intermittent basis, but would recommend that he attempt to work through this. I will follow him in three months if still symptomatic. (Jt. Ex. 11, p. 2) On March 8, 1988, James W. Turner, M.D., wrote a letter which states, in part: At present it is very difficult to objectively document any permanent impairmency. This patient because of his persistent complaints I would feel he has had a healed muscle sprain and has 2 percent MAUDSLEY V. PIZZA 2-U Page 7 permanent partial impairmency person as a whole. As you can see, I have encouraged him to attempt to return to work. (Jt. Ex. 12) On May 4, 1988, Dr. Turner wrote: The patient again complains of discomfort in his back. He said that his pizza delivering job wasn't available when I released him previously and he hasn't attempted to find any other form of work. Again when walking down the hall, he walks quite well. His movements for forward flexion, side bending become quite exaggerated, but his straight leg raising is negative at 90 degrees and deep tendon reflexes were trace at the knee and trace at the ankle. I tried to explain to the patient that I feel that he undoubtedly does experience some discomfort in his back, but at this point I feel that exercise and activity is treatment that is indicated. I would allow him to work on an as tolerated level. (Jt. Ex. 11, p. 2) Claimant was referred by his attorney to John R. Walker, M.D., around August 22, 1988. Dr. Walker wrote on March 13, 1989: At this point it would appear to me that his temporary, partial impairment is extremely high. I would rate it as follows:; 8% impairment of the body as a whole based on the cervical spine injuries; a 6% permanent, partial impairment as far as the dorsal spine is concerned; as far as the lumbar spine is concerned I would set this at 25 to 30% temporary partial impairment of the body as a whole. It goes without saying, however, that this probably could be reduced with proper treatment and I am thinking pretty much along the surgical lines. When this is all added up, it appears that he will end up somewhere around permanent, partial impairment. (Jt. Ex. 18, p. 1) Dr. Walker wrote on August 18, 1989: He has been treated by Dr. Valentine who seems to be giving him some at least momentary relief and I certainly have no objections if Dr. Valentine can help him. MAUDSLEY V. PIZZA 2-U Page 8 At that point I did not feel he was a surgical patient. Many patients do need surgery but I feel there is no clear indication for any other surgery than the cervical, lumbar or dorsal region at this time, at least. Admittedly, I have not seen him in the past and perhaps another examination might change my mind but I sort of doubt it. At any rate, what we really need is a final evaluation and the whole examination in order to give you a more definite, final opinion. However, it is my feeling at the present time that this patient is pretty badly disabled with a lot of permanent impairment and not capable of doing heavy work such as bending, stooping, twisting or carrying and even long periods of driving will bother him a great deal although it might be that he would be able to carry them out. I would suspect that he could do more sedentary jobs such as perhaps taking tickets at a theater or ushering or something of a more sedentary nature. At this point I am not sure of his education nor his opportunities, but as a final statement, it is my opinion that he has a permanent, partial impairment amounting to 35% of the body as a whole. His industrial disability, however, may be higher than this. (Jt. Ex. 19, p. 2) Claimant was admitted to Covenant Medical Clinic on October 31, 1988 and discharged on November 12, 1988. Claimant received conservative therapy but the records reflect, as noted by Dr. Walker, "[claimant] hasn't gotten too much out of this." (Jt. Ex. 22) The x-rays reflect a negative thoracic spine except for a tiny marker at T8 level (Jt. Ex. E). Claimant was again admitted to Covenant Medical Center on January 10, 1989 for a cervical lumbar myelogram with follow-up CT of C5, C6 and L3 through L5 interspaces. These were negative with no evidence of herniated discs (Jt. Ex. F). The records, reflect a high spinal fluid protein of 63 mg. Claimant was discharged on January 15, 1989 sooner than anticipated because of an emergency at home (Jt. Ex. 27). APPLICABLE LAW AND ANALYSIS The claimant has the burden of proving by a preponderance of the evidence that the injury of May 25, 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. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The MAUDSLEY V. PIZZA 2-U Page 9 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). 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. In Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60, 65 (Iowa 1981), it was noted: By the very meaning of the phrase, a person with a "permanent disability" can never return to the same physical condition he or she had prior to the injury.... See, 2 A. Larson, The Law of Workmen's Compensation, SS 57.12 (1981). The healing period may be characterized as that period during which there is reasonable expectation of improvement of the disabling condition," and ends when maximum medical improvement is reached. Boyd v. Hudson Pulp & Paper Corp., 177 So.2d 331, 330 (Fla.1965). That is, it is the period MAUDSLEY V. PIZZA 2-U Page 10 "from the time of the injury until the employee is as far restored as the permanent character of his injury will permit." Winn Drilling Company v. Industrial Commission, 32 Ill.2d 144, 145-6, 203 N.E.2d 904, 905-6 (1965). See also W. Schneider, Schneider's Workman's Compensation,_SS 2308 (1957). Thus, the healing period generally terminates "at the time the attending physician determines that the employee has recovered as far as possible from the effects of the injury. Winn, 203 N.E. at 906. Iowa Code section 85.34(2) provides that compensation for permanent partial disability shall begin at the termination of the healing period. Iowa Code section 85.34(2)(u) provides that compensation for a nonscheduled or body as a whole injury shall be paid in relation to 500 weeks and the disability bears to the body as a whole. A healing period may be interrupted by a return to work. Riesselman v. Carroll Health Center, III Iowa Industrial Commissioner Report 09 (Appeal Decision 1982). Iowa Code section 85.39 provides, in part: If an evaluation of permanent disability has been made by a physician retained by the employer and the employee believes this evaluation to be too low, the employee shall, upon application to the commissioner and upon delivery of a copy of the application to the employer and its insurance carrier, be reimbursed by the employer the reasonable fee for a subsequent examination by a physician of the employee's own choice, and reasonably necessary transportation expenses incurred for the examination. The physician chosen by the employee has the right to confer with and obtain from the employer-retained physician sufficient history of the injury to make a proper examination. Iowa Code section 85.27 provides, in part: 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 MAUDSLEY V. PIZZA 2-U Page 11 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. Claimant is 32 years old and has a GED. Claimant does not have a history of skilled labor and therefore his transferable skills are very limited. It appears claimant does have some intellectual ability if he receives the proper training and education. Claimant has received the services of several doctors. As happens much too often, the doctors vary widely in their opinions, depending on who hired them. The differences are most disturbing in that the doctors' impairment ratings are 33 percent apart. The doctors vary as to whether tests should be or were given, notwithstanding claimant's complaints and nature of his accident. Certain tests were ultimately given by Dr. Walker and they were basically negative. Dr. Robb opined claimant's body as a whole impairment would not exceed 5 percent if claimant did not do his exercises and 2 percent permanent impairment if claimant followed the doctor's suggested program and recovered as anticipated. Dr. Robb was concerned about claimant's significant functional overlay. He opined claimant's objective findings are limited and disproportionate to claimant's subjective complaints. The doctor seems to question claimant's motivation. Dr. Turner, Dr. Robb's partner, opined a 2 percent permanent impairment to claimant's body as a whole. He encouraged claimant to return to work in March 1988, as reflected in the doctor's March 2, 1988 notes and a letter dated March 8, 1988 to the insurance adjustor. Claimant initially testified that he was released to return to work in June 1988 by Dr. Turner and, in fact, returned to work at his former job. Claimant worked at this job until August 1988 when he decided he could not handle the job any more due to his alleged injuries. claimant could not recall ever being released to return to work prior to that June date and, yet, claimant later testified he called the employer for his old job around March 8, 1988 after Dr. Turner released him to return to work. Claimant related defendant employer would not take claimant back to work without a written release from the doctor. Why claimant could not get a release in writing until June 1988 is a mystery. To further confuse this issue, the written release is dated June 22, 1988 and states claimant can return to work May 5, 1988 (Jt. Ex. 15). It is obvious claimant knew he was released to work in March 1988, otherwise, why did he call defendant employer in March 1988. If claimant was better motivated, the undersigned believes claimant could have made a better effort to get a written release. Why defendant insurance carrier or the insurance adjustor could not have gotten the written release from their own doctor is more questionable. The insurance company used the March 8, 1988 day to send claimant his 30-day notice of MAUDSLEY V. PIZZA 2-U Page 12 termination of benefits. Adding to this is the back dating of the only written return to work release as of May 5, 1988. There is no disagreement that claimant was injured on the job. The extent of claimant's healing period and permanent disability is in dispute. Defendants contend that claimant has no more than a 5 percent disability, obviously taking the highest impairment rating of their doctor, i.e., 5 percent, in determining claimant's 5 percent impairment resulted in a 5 percent industrial disability. Defendants further contend that claimant's healing period is May 26, 1987 through March 21, 1988, the ending date apparently based within a few weeks of Dr. Turner's March 8, 1988 letter to the insurance company adjustor (Jt. Ex. 12). There is no disagreement among the parties as to healing period involving at least this period of time. Dr. Walker is not able to objectively determine what is causing claimant's present problems. He has suspected disc problems but a series of tests that often discover a disc problem were negative. It appears Dr. Walker is hanging his hat on claimant's 63 mg. high blood protein count. This suggested a bulging disc or something hidden or ready to erupt. The undersigned cannot speculate as to what might further happen to this claimant. The law of review-reopening was established to cover the future within the statutory limit. Claimant is lacking the motivation to attempt to overcome his problems. There is no question claimant has an impairment and must work around it. His effort to help himself has been questioned by at least one doctor. The undersigned finds claimant has a 15 percent permanent impairment to his body as a whole. The parties are in disagreement as to the extent of claimant's healing period. This has, in part, been previously discussed. Defendants contend the period, May 26, 1987 to and including March 21, 1988 (43 weeks), is the extent of claimant's healing period. Claimant contends his healing period is still running, or if not still running it should run at least through August 18, 1989 when Dr. Walker opined a 35 percent permanent partial impairment of claimant's body as a whole (Jt. Ex. 19, p. 2) of course, a person can have more than one healing period. Dr. Walker sent claimant to Covenant Medical Center for traction and therapy for thirteen days beginning November 11, 1988. Claimant was again sent by Dr. Walker for various tests at Covenant Medical Center beginning January 10, 1989 to and including January 15, 1989. Nothing definitive was found on either of these admissions except a high protein fluid count on the January 1989 hospitalization. Claimant is found to have incurred an additional healing period of 19 days (13 + 6 = 19) in addition to the 43 weeks minimum healing period to which the parties had agreed at the beginning of the hearing. MAUDSLEY V. PIZZA 2-U Page 13 There are several criteria to consider in order to determine the extent of claimant's industrial disability. Claimant's 15 percent permanent partial impairment to his back is one. Claimant was having no back problems prior to his May 25, 1987 accident nor has he incurred any further injuries since his accident. The location of claimant's injury is in an area which has a great impact on claimant's entire body. Claimant's past history involved jobs in which the use and condition of one's back was integral to the particular job. With claimant's lack of skills, his future opportunities without training will result in opportunities for claimant most likely in the medium to heavy duty work, in which case the condition of claimant's back is very important. Claimant had a rather lengthy healing period. It appears claimant did not take full advantage of the rehabilitation resources available as he could have. The extent of claimant's motivation is questionable. It is not unusual that the nature of one's injury and length of healing period can have an effect on one's attitude and motivation and result in some functional overlay. The undersigned believes claimant can and should try harder. Claimant will have some residue as a result of his permanent impairment. Claimant must motivate himself more. Claimant's age is in his favor. He is young enough to try to work through his problems and not feel sorry for himself. A positive attitude can overcome many difficulties. Claimant is acting as if he is writing off his future work life. Claimant should seek help from available sources to obtain future education and skills. once this litigation is completed, claimant's attitude and motivation hopefully will improve. Claimant has a loss of income because of his lack of work, but motivation has affected this. Claimant has a loss of earning capacity due to his back impairment. The law and the decisions are clear that one can have an impairment to the body as a whole in which the industrial disability can be less than, equal, or more than the impairment rating to claimant's body as a whole. Taking these criteria, in addition to the other criteria considered but not specifically set out or individually discussed, the undersigned finds claimant's industrial disability is 15 percent. The defendants contend Dr. Walker and Dr. Valentine are not authorized. Claimant admitted he did not get defendants' authorization and admitted he did know it was necessary. once defendants understood claimant was seeking these doctors' services, defendants mailed letters to claimant or claimant's representative that these doctors were not authorized. Claimant testified he was not satisfied nor was he obtaining any relief from the services of these defendants-chosen doctors. Iowa Code section 85.27 provides a method of seeking approval over the defendant's objections if the facts warrant it. Claimant did not proceed as provided by statute. It does not appear the help claimant obtained from these doctors helped him nor did it MAUDSLEY V. PIZZA 2-U Page 14 decrease his ultimate impairment. The basic result of Dr. Walker's opinion is a substantially higher impairment rating. This issue is in part entwined with the Iowa Code section 85.39 medical examination issue. Defendants' doctor did render a rating, as provided in Iowa Code section 85.39. Claimant can and did request an evaluation by Dr. Walker. That application was placed for final decision at this hearing. Defendants were not denying liability at the time of the 85.39 application, but it appears defendants were disputing the extent of permanent disability. Claimant is entitled to an 85.39 medical examination and the reimbursement of this cost or direct payment to Dr. Walker. The undersigned finds claimant's 85.39 application is approved and defendants are responsible for that part of Dr. Walker's bill for the medical evaluation. The undersigned cannot determine from the exhibits the exact cost of this plus claimant's mileage. The attorneys should be able to determine this by provisions of the law. The undersigned noted that the application for 85.39 application was not on the proper form. Normally, such applications are denied under the Industrial Services Rule 343-3.1 if the proper application is not used. Since it was not noted at the time of the order setting this issue down at this time for hearing, violation of this rule will not affect the undersigned's decision. In the future, claimant should use the proper form which is available at the Industrial commissioner's office. As to the rest of claimant's bills involving Dr. Walker and Dr. Valentine, claimant is responsible for payment of those bills as the doctors were not authorized by the defendants as previously discussed. Claimant contends more treatment is necessary by Dr. Walker. Since claimant is not satisfied with the doctors provided by defendants, claimant is not prevented from seeking other medical services on his own. Claimant exercised this right with Dr. Walker. Defendants are responsible for the bills of Covenant Medical Center and Radiologists, P.C., and mileage connected therewith. The undersigned finds that the services and tests helped to further determine claimant's condition. Important tests were performed that were not performed by the other doctors. These tests are commonly performed when accidents, injuries, or complaints of this nature occur. There appears to be items on defendants' medical bills that may come under the provisions of costs. Those items that are normally considered costs by the statute will be paid by the parties ordered to pay the costs, in accordance with Division of Industrial Services Rule 343-4.33. FINDINGS OF FACT 1. Claimant incurred a 15 percent permanent partial impairment to his body as a whole as a result of his work-related injury on May 25, 1987. MAUDSLEY V. PIZZA 2-U Page 15 2. Claimant's 15 percent permanent impairment to his body as whole is the result of his work-related May 25, 1987 injury. 3. Claimant incurred a healing period beginning May 26, 1987 to and including March 21, 1988 (43 weeks), October 31, 1988 to and including November 12, 1988 (13 days), and January 10, 1989 to and including January 15, 1989 (6 days), all totaling 45.714 weeks at the rate of $74.89. 4. Claimant needs to make greater effort to help himself and seek the available rehabilitation and training to improve his self-esteem and attitude. Claimant lacks motivation. 5. Dr. Walker and Dr. Valentine were not authorized doctors under Iowa Code section 85.27. Claimant is responsible for their bills except as otherwise provided herein as to Dr. Walker and Iowa Code section 85.39. 6. Defendants are responsible for the costs of Dr. Walker's 85.39 evaluation. 7. Defendants shall pay Covenant Medical Center bills, on behalf of the claimant, in the amount of $3,852.13 and $2,919.93, and Radiologists, P.C., bills in the amount of $600.35, plus claimant's mileage connected therewith. 8. Claimant has a loss of earning capacity as a result of his May 25, 1987 work injury. CONCLUSIONS OF LAW Claimant incurred a 15 percent permanent partial impairment to his body as a whole which arose out of and in the course of his employment on May 25, 1989. Claimant's 15 percent permanent partial impairment to his body as a whole is causally connected to his work-related May 25, 1987 injury. Claimant incurred a healing period beginning May 26, 1987 to and including March 21, 1988 (43 weeks), October 31, 1988 to and including November 12, 1988 (13 days), and January 10, 1989 to and including January 15, 1989 (6 days), all totaling 45.714 weeks at the rate of $74.89. Claimant lacks motivation. Defendants are not responsible for the doctor bills for Dr. Walker and Dr. Valentine except as later set out regarding Dr. Walker and the 85.39 evaluation. Defendants are responsible for the costs of Dr. Walker's 85.39 evaluation. MAUDSLEY V. PIZZA 2-U Page 16 Defendants shall pay Covenant Medical Center bills, on behalf of the claimant, in the amount of $3,852.13 and $2,919.93), and Radiologists, P.C., bills in the amount of $600.35, plus claimant's mileage connected therewith. Claimant has a 15 percent industrial disability. ORDER THEREFORE, it is ordered: That defendants shall pay unto claimant healing period benefits at the rate of seventy-four and 89/100 dollars ($74.89) per week for the periods beginning May 26, 1987 to and including March 21, 1988 (43 weeks), October 31, 1988 to and including November 12, 1988 (13 days), and January 10, 1989 to and including January 15, 1989 (6 days), totaling forty-five point seven one four (45.714) weeks. That defendants shall pay unto claimant seventy-five (75) weeks of permanent partial disability benefits at the rate of seventy-four and 89/100 dollars ($74.89) per week beginning March 22, 1988. That defendants shall pay the accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. Defendants have previously paid forty-three (43) weeks of healing period and twenty-five (25) weeks (5%) of permanent partial disability benefits. That defendants are responsible for that part of Dr. Walker's bill in reference to the 85.39 medical examination and mileage connected therewith. That defendants shall pay Covenant Medical Center bills, on behalf of the claimant, in the amount of three thousand, eight hundred fifty-two and 13/100 dollars ($3,852.13) and two thousand nine hundred nineteen and 93/100 dollars ($2,919.93), and Radiologists, P.C., bills in the amount of six hundred and 35/100 dollars ($600.35), plus claimant's mileage connected therewith. 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. MAUDSLEY V. PIZZA 2-U Page 17 Signed and filed this 28th day of March, 1990. BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Jerry Zimmermann Attorney at Law 129 First Ave SW Cedar Rapids IA 52404 Mr James E Shipman Mr James M Peters Attorneys at Law 1200 MNB Building Cedar Rapids IA 52401 5-1803; 5-2503; 5-2502 Filed March 28, 1990 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER MARK MAUDSLEY, Claimant, VS. File No. 856330 PIZZA 2-U, A R B I T R A T I O N Employer, D E C I S I O N and NATIONAL UNION FIRE INSURANCE COMPANY, Insurance Carrier, Defendants. 5-1803 Claimant awarded 15% industrial disability. 5-2503 Claimant awarded some and denied some 85.27 benefits. 5-2502 Claimant was allowed an 85.39 medical examination.