BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : RAYMOND P. DEROSEAR, : : Claimant, : : vs. : File No. 858124 : DEROSEAR ELECTRIC, INC., : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : UNITED FIRE & CASUALTY : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ STATEMENT OF THE CASE Claimant Raymond P. DeRosear seeks benefits under the Iowa Workers' Compensation Act upon his petition in arbitration against his wholly-owned defendant employer DeRosear Electric, Inc., and its insurance carrier, United Fire & Casualty Company. He asserts that he sustained industrial disability in the course of his employment following a fall from the roof of a home owned by his father. This cause was bifurcated and a decision rendered on May 24, 1991, finding that claimant was entitled to coverage under the workers' compensation insurance contract between DeRosear Electric and United Fire & Casualty Company. Remaining issues came on for hearing before the undersigned in Des Moines, Iowa, on December 12, 1991. The following witnesses testified at hearing: Claimant, Paula DeRosear, Robert Warren, Ronald DeRosear, Verle DeRosear, Michael O'Brien, Fred Hoenig, Shawn O'Brien, William Catalona, M.D., Charles Fisher and Kent Muntz. The following exhibits were received: joint exhibits 1 through 31 and 31A; defendants' exhibits A-1, A-2, A-3, B, C, D, E and F; and, claimant's exhibit Z. Page 2 ISSUES The parties have stipulated that claimant's alleged injury caused temporary disability from June 12, 1987, through May 10, 1989, that if permanent disability has been sustained, it is an industrial disability, and that entitlement to medical benefits is not disputed. Issues presented for resolution include: 1. Whether an employment relationship existed between Raymond DeRosear and DeRosear Electric, Inc., on June 12, 1987; 2. Whether claimant sustained an injury on that date arising out of and in the course of such employment; 3. Whether the injury caused permanent disability and the extent thereof; and, 4. The proper rate of compensation. FINDINGS OF FACT The undersigned deputy industrial commissioner finds: Raymond DeRosear, 43 years of age at hearing, was president and owner of DeRosear Electric, Inc., on June 12, 1987, a Friday. Claimant and his wife Paula DeRosear visited his father Verle DeRosear at about 6:00 p.m. that night. Claimant and Verle went up to the roof to install shingles. Paula and claimant's daughter also went up to carry shingles. In addition, Mr. DeRosear's daughter's boyfriend, one Darren Long, appeared and was also allowed to help. About an hour after Long appeared, claimant accidently stepped backwards off the roof and suffered severe injuries in the fall. His recovery has been courageous but incomplete. Raymond DeRosear began working for Verle DeRosear in approximately 1971. Verle at that time operated DeRosear Electric as a sole proprietor. Claimant eventually became a partner to his father and the business was incorporated in 1982. Shortly thereafter, Verle retired and the business was purchased by Ray. The purchase price of $150,000 was to be paid largely in monthly installments. Supposedly, the corporation itself assumed the debt load, rather than Ray. Of course, if the corporation be considered a separate legal entity, it makes no sense for it to assume another's liability (without any consideration whatsoever) merely to finance a change of ownership. As shall be seen, this is but one of many financial irregularities involving the relationship between DeRosear Electric, Inc., and members of the DeRosear family. In any event, the business fell on hard times and discontinued payments to Verle. As of the end of both 1986 and 1987, some $92,000 remained unpaid. In 1987, Verle DeRosear began construction of a new Page 3 home. According to Verle, all necessary materials were purchased through DeRosear Electric, but he had begun stockpiling these as early as the 1960s. The electrical materials he purchased through DeRosear Electric in 1987 were inadequate to rewire a house of that size. However, Verle earlier testified by deposition that he had no supplies of materials on hand to begin, testimony he agreed at trial was incorrect. He explained the discrepancy by indicating that he had meant he had no material on hand prior to starting DeRosear Electric, rather than prior to contracting with DeRosear Electric for assistance in constructing his home. According to Verle, DeRosear Electric (whose only employees are Raymond, his wife Paula and his brother Ron) was compensated for materials and labor supplied. Furthermore, he made payment even though the same corporation owed him a preexisting debt of $92,000. Some of these payments were made in cash directly to Ray so that those funds need not be exposed to creditors through deposit in a bank, Ray being in financial trouble at the time. Verle also has a third son, Jeff. Jeff also worked on the home in 1987, but was paid nothing. Ray and Ron, on the other hand, were supposedly paid their regular hourly wage for this work as employees of the corporation. Ron and Ray, presumably less filially inclined than Jeff, commonly worked nights and weekends. However, payroll records show that neither was paid any overtime in connection with this project. It will be recalled that on the night claimant was injured, he was shingling along with Verle and his daughter's boyfriend, Darren Long. In deposition testimony of March 28, 1989, Raymond testified that his daughter and wife were both up on the roof helping by carrying shingles to the roofers. Page 84 of that deposition is attached to Respondent's Resistance to Claimant's Motion for Partial Summary Judgment filed March 25, 1991. Under Iowa Code section 17A.12(6)(b), the record in a contested case includes all pleadings, motions and intermediate rulings. On March 27, 1987, DeRosear Electric billed Verle DeRosear for certain materials in the amount of $275.17. Verle paid no labor charges prior to the subject injury. This payment, which preceded the injury date, is consistent with a project actually contracted to DeRosear Electric. However, it is also consistent with Verle merely having ordered needed materials through DeRosear Electric to take advantage of the contractor's discount customarily granted by materials suppliers. The corporation was certainly not averse to helping Verle out in irregular ways. For example, the company insured Verle's health through Blue Cross/Blue Shield in 1986, 1987 and probably 1988, even though he was neither an employee nor an officer of the corporation. Time records kept by Ron DeRosear on a job sheet dedicated to the Verle DeRosear project show that he and Ray worked substantial hours on the job beginning April 11, 1987, in particular showing Ray assigned three hours of work laying shingles on June 12. Obviously, this is consistent with a preexisting good faith contract between Verle and DeRosear Electric. Defendants, on the other hand, view this document, joint exhibit 2, as manufactured evidence, a Page 4 position not without support in the record. This job sheet is, at the least, irregular in that it does not conform with normal procedure. Ron and Ray each kept work sheets in their trucks. Normally, if the two men worked together on a project, only one would record the hours. If one man worked alone, he would record his own hours on his own work sheet. That was not done in this case. The Verle DeRosear job sheet was kept only by Ron. When Ray worked alone, he supposedly reported his hours to Ron, who would then make an appropriate record on his job sheet. It is most odd that Ron, rather than Ray, was assigned responsibility for keeping the work sheet, since he worked alone for the first time on June 22. Ray, on the other hand, is shown working alone on April 11 (as the very first entry, presumably when the job sheet was first kept--but why not in Ray's truck?) and 16, May 12, 18, 26, 27 and 30 and June 1, 7 and 12. It is undisputed that all of the entries are in Ron's handwriting. Ron testified that he did not prepare the exhibit at a single sitting. However, the exhibit certainly looks as though it were prepared that way. The spacing of each page has its own character. For each line (each entry is double-spaced), the name of the worker, the hours worked and the duty performed are recorded. On the first half of the first page, there are generally consistent gaps of roughly one-half inch between the hours worked and the duties performed; on the bottom half of that page, the duties performed appear more like a column, although shifted to the right on the June 5 entry, when both men worked. On the second page, the "duties" look remarkably like a column, such as might be the case if the entire page was prepared in a single sitting. Likewise the third page, except even more so. Handwriting looks remarkably consistent throughout all three pages, unlike what one might expect of entries made at different times and circumstances in a truck. Although a photocopy was received into evidence rather than the original, there appears no dramatic difference between writing instruments and the pressure used, since all writing appears to be of equal darkness and thickness. The document has also been altered. Charles Fisher, a certified public accountant, pointed out that an entry at one time appeared for July 3 on an earlier copy, but has now been deleted. The photocopy received appears to show a deleted entry on the second page immediately following June 27. Exhibit 2 is more consistent with a theory of manufacture by Ron to bolster Ray's case that the injury was work related, rather than incurred during participation in a family construction project. Verle was eventually billed for labor. Invoice number 7903 shows five payments made by Verle beginning June 30, 1987, and ending March 28, 1988. The invoice bears the initial date of June 2, 1987. Curiously, invoices numbered 7901 and 7902, which presumably would have been used first on the pad, are dated July 21 and July 22, respectively. Invoices 7930 through 7933 reflect all labor on the project from April 4 through September 4, 1987. These four invoices were apparently prepared as a single continuing document on or about September 4. Charles Fisher testified Page 5 that invoices 7930, 7931 and 7932 were out of time sequence. Fisher apparently failed to notice that these three invoices were prepared as a single continuing document with invoice number 7933, which shows a last entry of September 4. Invoice 7929, not related to this action, is dated September 2; invoice 7935, also unrelated, relates to services between June 24 and September 10. Therefore, it is clear that these invoices are not out of time sequence as Fisher suggested. However, Fisher pointed out other incongruities in his testimony. Comparing cash receipts to DeRosear Electric's bank account, some of the cash paid by Verle was not deposited until long after it was received. Ron and Ray claim they worked but were paid no overtime, although this is required by federal law. Job sheets on this supposed project were prepared only by Ron as previously discussed. Federal tax returns substantially understate income in 1987, improperly evading taxes of some $1,100. Sales tax records to a small degree understate actual taxable items. Personal items appear to have been purchased through the corporation (Verle's Blue Cross/Blue Shield, some of Ray's Mastercard payments and Ray's personal 1988 income tax were all paid by the corporation and characterized as "business expenses"). On occasion, Ray withdrew cash when making deposits for the business, rather than putting the funds in the corporate account. In addition, the corporation (when it had the money) paid Ray $550 per month in addition to his wage (Ray had personally mortgaged his home as collateral for a Small Business Administration loan to the business). Ray failed to report that income on his personal tax returns. Although DeRosear Electric engaged in numerous construction activities including electrical work, cement work, trenching, water line installation, carpentry, patch roofing (the Verle DeRosear "project" is concededly the only whole-roof job), welding and remodeling of trailers, none of these activities other than indoor electrical work was admitted to United Fire & Casualty Company, the workers' compensation insurance carrier. This, of course, resulted in a premium cost to DeRosear Electric lower than the cost to which it would have been entitled had full disclosure been made. This remained the case even though coverage was discussed with Kent Muntz and actually changed with respect to office work. Claimant and his wife did not initially treat the injury as work related with respect to insurance coverage. When he was admitted to the hospital immediately following the fall, insurance coverage was listed under Blue Cross/Blue Shield, the company health and accident carrier. The same insurer was cited when claimant was transferred to a more specialized hospital for surgery. This observer has little doubt that had claimant fallen from a roof during regular working hours while doing routine electrical work for a commercial account, the compensation carrier would have been listed upon hospital admission. In a conversation with insurance agent Muntz on June 15, 1987, Paula asked Page 6 whether the injury would be covered by workers' compensation insurance. The mere fact that this inquiry was made is inconsistent with a legitimate work injury. In a telephone conversation with Robert Warren, a claims representative for United Fire & Casualty, claimant commented that he did not know the exact rate or charge for the Verle DeRosear job, but "just wanted to help his dad." Thus, the record shows much that is suspicious or irregular. Many of these matters can be (and were) explained away in one way or another, but the cumulative effect is great. It is clear that the accounts and doings of the corporate entity were commonly used or misused as might be advantageous to family members. The finder of fact, considering the entire body of evidence, is not convinced that Raymond DeRosear was engaged in work activities at the time of his fall, as opposed to simply helping out his father along with other family members. It should not be forgotten that he (or as alleged, the corporate entity) still owed in excess of $90,000 to Verle at the time this work was performed, supposedly for his regular (hourly) wage. conclusions of law Claimant has the burden of proving by a preponderance of the evidence that he received an injury on June 12, 1987, which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "out of" refer to the cause or source of the injury. Crowe v. DeSoto Consol. School Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union, et al., Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. School Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). Claimant bears the burden of persuasion to prove that his fall arose out of and in the course of employment. As seen above, the finder of fact remains unpersuaded. Claimant's burden of proof has not been met with respect to the "arising out of" and "in the course of" requirements. Accordingly, the cause must be resolved in favor of defendants. order THEREFORE, IT IS ORDERED: Claimant shall take nothing from this proceeding. Costs of this action are assessed to claimant pursuant to rule 343 IAC 4.33. Signed and filed this ______ day of ____________, 1992. Page 7 ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. C. K. Pettit Attorney at Law 111 South Madison Bloomfield, Iowa 52537 Mr. J. W. McGrath Attorney at Law Fourth & Dodge Keosauqua, Iowa 52565 Mr. John C. Stevens Attorney at Law 112 East Second Street P.O. Box 748 Muscatine, Iowa 52761 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : RAYMOND P. DEROSEAR, : : Claimant, : : vs. : : File No. 858124 DEROSEAR ELECTRIC, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : / : UNITED FIRE & CASUALTY : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Raymond P. DeRosear, claimant, against DeRosear Electric, Inc., as the employer, and United Fire and Casualty Company, as the insurance company. both as defendants. The record in the case consists of testimony from the claimant; and, claimant's exhibits 1, 2, and 3. The sole issue to be determined is whether claimant is a covered employee under the workers' compensation insurance policy issued for defendant employer. The relative portion of the policy presents the following information: Workers Compensation & Employers Liability Insurance Policy - Information Page Policy No: 60-015 84 Issue Date: 02-24-88 Insured: De Rosear Electric Inc Page 2 Item 4. The premium for this policy will be determined by our manuals of rules, classifications, rates and rating plans. All information required below is subject to verification and change by audit. Premium = Estimated Annual Premium Rates Apply Per $100 of Remuneration Premium Basis = Total Estimated Annual Remuneration Classification Code No. Premium Rate Premium Basis Electrical Wiring within Buildings & Drivers 5190 $5000 $3.95 198 Clerical Office Employees NOC 8810 3000 .16 5 .... GENERAL SECTION A. The Policy This policy includes at its effective date the Information Page and all endorsements and schedules listed there. It is a contract of insurance between you (the employer named in item 1 of the Information Page) and us (the insurer named on the Information Page). The only agreements relating to this insurance are stated in this policy. The terms of this policy may not be changed or waived except by endorsement issued by us to be part of this policy. B. Who is Insured You are insured if you are an employer named in item 1 of the Information Page. If that employer is a partnership, and if you are one of its partners, you are insured, but only in your capacity as an employer of the partnership's employees. (Cl. Ex. 1) Subsequent renewals kept the policy in effect from 1986 through 1988. The issue in the case revolves around claimant's position with the company, and focuses on whether claimant is covered under the workers' compensation policy in effect Page 3 at the time of his injury, which occurred on July 12, 1987. Defendant insurance company, United Fire & Casualty Company, has sought to avoid coverage to claimant under the policy issued to DeRosear Electric, Inc., on the grounds that the "classifications" specified by the policy did not include the employment activity in which claimant was engaged at the time of his injury. Iowa's workers' compensation laws are liberally construed to protect the employee. And, insurance policies issued for the purpose of covering workers must be liberally interpreted to protect the employee. See, Bates v. Nelson, 38 N.W.2d, 631, 240 Iowa 926 (1949). As the Court stated in Bates, "[w]e cannot sanction a construction of our statute that places the insurance protection to the employee at the risk of possible contractual misunderstanding between the employer and insurance carrier." Bates, 240 Iowa at 931. The Court went on to state that: So far as the rights of the [worker] are concerned we think the provisions of the law are a part of the policy whether written into it or not and even when (as here, apparently) the written terms imperfectly or inadequately state the nature and extent of the employment to be covered. Any such inadequacy or imperfection, due to possible misunderstanding between employer and insurer, may be conceivably be the subject of litigation between them but cannot affect the rights of the employee. Bates, 240 Iowa at 932 At the hearing, claimant testified that he was an employee of the corporation of DeRosear Electric, Inc. Claimant is also president of the corporation, and as such is afforded coverage under a workers' compensation policy pursuant to Iowa Code section 85.1(5). As a result, claimant is entitled to coverage under the workers' compensation policy in effect at the time of his injury. However, further issues, including whether claimant sustained an injury which arose out of and in the course of his employment will be addressed at a separate hearing. ORDER THEREFORE, it is ordered: That claimant is entitled to coverage under the insurance policy. Page 4 Signed and filed this ____ day of May, 1991. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr J W McGrath Attorney at Law 4th & Dodge Streets Keosauqua Iowa 52565 Mr Charles K Pettit Attorney at Law 111 S Madison Bloomfield Iowa 52537 Mr John C Stevens Attorney at Law 122 E Second Street Muscatine Iowa 52761 1402.30 Filed March 10, 1992 DAVID RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : RAYMOND P. DEROSEAR, : : Claimant, : : vs. : File No. 858124 : DEROSEAR ELECTRIC, INC., : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : UNITED FIRE & CASUALTY : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 1402.30 Claimant, owner of electrical contracting business, was injured in a fall while roofing his father's house with other family members. Given a cumulation of irregularities, claimant did not prove that his injury arose out of employment. 2105 Filed May 24, 1991 PATRICIA J. LANTZ BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ RAYMOND P. DEROSEAR, Claimant, vs. File No. 858124 DEROSEAR ELECTRIC, INC., A R B I T R A T I O N Employer, D E C I S I O N and UNITED FIRE & CAUSALTY COMPANY, Insurance Carrier, Defendants. ___________________________________________________________ 2105 Pursuant to the hearing assignment order, the only issue to be addressed was whether claimant was entitled to coverage under the workers' compensation policy in effect at the time of the hearing. Held: Classifications delineated in insurance policies are expansive, and are construed liberally in favor of the employee. Page 1 before the iowa industrial commissioner ____________________________________________________________ : LARRY ETHELL, : : Claimant, : : vs. : : File Nos. 858197 & 933329 3 M CORPORATION, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : NORTHWESTERN NATIONAL, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Larry Ethell as a result of injuries to his back which occurred on March 8, 1987 (858197) and April 6, 1988 (933329). Defendants admitted liability in file number 858197 and denied liability in file number 933329, but paid weekly benefits and medical expenses. The case was heard and fully submitted at Des Moines, Iowa, on May 1, 1991. The record in the proceeding consists of joint exhibits 1 through 5 and testimony from claimant, Geraldine Ethell, Connie Husted, John Dugan, Jr., and Barb Chaldy. issues The issues presented for determination in file number 858197 are as follows: 1. Claimant's entitlement to temporary total disability or healing period benefits; 2. The causal connection of permanent disability and the extent of entitlement to benefits under Iowa Code section 85.34 (2)(u); and 3. Claimant's weekly rate of compensation. The issues for determination in file number 933329 are as follows: 1. Whether claimant sustained an injury on April 6, 1988, arising out of and in the course of employment; 2. Whether the alleged injury is a cause of temporary disability and the extent of temporary disability; Page 2 3. Whether the alleged injury is a cause of permanent disability and the extent of entitlement to benefits under Iowa Code section 85.34(2)(u); and 4. Claimant's weekly rate of compensation. findings of fact Having considered all the evidence received the following findings of fact are made: Claimant, Larry Ethell, was a journeyman electrician at the time he started work for employer in May 1983. His work for employer consisted of production work in a tape factory. Claimant had been laid off from his last electrician job and went to work for 3M anticipating that he could obtain another job as an electrician. On March 8, 1987, while performing production work for employer, claimant injured his low back when he was cradling a core that was being pulled by a coemployee. Claimant went off work on July 6, 1987, to receive treatment for the injury. Jerome G. Bashara, M.D., diagnosed the injury as a herniated disc and surgery was performed on July 29, 1987. Claimant was off work until December 8, 1987. Employer returned claimant to the same work that he was performing prior to the injury. Dr. Bashara rated claimant's impairment at 10 percent to the body as a whole (exhibit 1, page 6). Claimant, upon his return to work for employer, continued to perform production work which required lifting weights of 50 to 100 pounds. On April 6, 1988, claimant traded jobs with a coworker. On that date claimant experienced increased back pain caused by the lifting of heavy cores. Claimant described his job as requiring heavier and more frequent lifting than what he had been doing. Claimant again sought treatment for the low back pain with a second low back surgery on June 27, 1988 (ex. 1, p. 6). Claimant was released to perform light duty work in November 1988. Employer offered light duty employment starting November 7, 1988 through November 27, 1988, and then informed him that no further work would be offered. Claimant was assigned a 20 percent permanent impairment to the body as a whole with 10 percent caused by the April 6, 1988 injury. Permanent work restrictions of no lifting over 35 pounds, no bending, no stooping, and no twisting were assigned by Dr. Bashara (ex. 1, p. 4). Employer offered no further employment and instead retained a vocational rehabilitation counselor to assist claimant with schooling and reemployment. Page 3 Claimant reentered school with robotics as a goal. However, he did not complete any robotics classes. After completing some general course work, claimant obtained an electricians job with Herschel in March of 1990. Claimant was quickly promoted at this new job and at the time of hearing was a master electrician earning $13.55 per hour. His starting wage with Herschel was $9.12. Geraldine Ethell testified that she has been claimant's wife for 34 years. She stated that claimant's back hurts after long days at work. John Dugan, Jr., testified that he is the plant superintendent and personnel manager for Herschel. His employer is a small company which employs about 125 individuals. He said that his company was willing to give an older, injured worker a second chance. He stated that larger companies generally do not want to hire workers who have had prior injuries. He stated that claimant is an excellent worker who had no absences since being hired. Connie Husted is a human resources coordinator for 3M. She has worked for employer for the last 17 years. She testified that no work was available with 3M that would meet claimant's current work restrictions. She stated that the electrician jobs at 3M would not meet claimant's current work restrictions. She further stated that a vocational rehabilitation counselor was hired due to the lack of suitable work at 3M. Barb Chaldy is a vocational rehabilitation expert who was retained by employer to assist claimant with schooling and reemployment. Chaldy stated that claimant's grades were excellent. She also stated that electrician jobs in Iowa ranged from $6 to $21 per hour, but that claimant's work restrictions may preclude him from obtaining certain electrician jobs, such as, the positions at 3M. Chaldy described claimant as motivated. The first issue to be decided in file number 858197 is the causal connection and extent of permanent partial disability. The medical evidence offered reveals that claimant sustained 10 percent permanent partial impairment to the body as a whole as a result of the March 7, 1988, low back injury (ex. 1, p. 6). Contrary opinions concerning impairment were not offered. It is true that claimant has some preexisting treatment for low back pain, but no medical evidence linked the March 8, 1987 injury to prior problems. It is found that the March 8, 1987, injury is a cause of permanent disability. Claimant's age, education, experience and permanent impairment must be considered when assessing industrial disability. At the time of injury on March 8, 1987, claimant was a 49-year-old high school graduate with some post-high school Page 4 course work. Claimant had experiences as an industrial electrician, factory production worker, jet engine mechanic and farm operator. Claimant's impairment was rate 10 percent and he was able to return to work for employer at the same job that he had held prior to the March 8, 1987, injury. It is found that as a result of the March 8, 1987, low back injury, claimant sustained 15 percent industrial disability. The next issue concerns claimant's entitlement to healing period benefits. The evidence offered proves that claimant was unable to work and under active medical treatment as a result of the March 8, 1987 back injury staring July 6, 1987 through December 7, 1987. Claimant has proven entitlement to healing period benefits during that period in file number 858197. The final issue to be resolved in file number 858197 concerns claimant's weekly benefit rate. Claimant contends that the week of January 18, 1987, should be excluded as claimant was on sick pay. This argument is rejected. Short weeks are generally excluded as not representative of claimant's actual earnings. However, claimant was in fact compensated for the lost time. Claimant also alleges that the premium pay for shift differential should be included in the gross weekly earnings. This argument is rejected as agency precedent holds to the contrary. See Burmeister v. Iowa Beef Processors, II Iowa Industrial Commissioner Report 59, 64 (App. Dec. 1982). After deleting the shift differential, the 13-week gross earnings beginning with the week of March 8, 1987, equal $6,002.10. The average of the 13 weeks amounts to $461.70 which converts to a weekly benefit rate of $286.58 for a married claimant with three exemptions. Claimant's benefit rate is found to be $286.58 in file number 858197. The next series of issues concern file number 933329. The first issue to be decided is whether claimant sustained an injury to his low back on April 6, 1988, arising out of and in the course of employment. Claimant testified that on April 6, 1988, he reinjured his low back while lifting heavy cores at work which weighed up to 100 pounds. The treating doctors documented a medical history consistent with claimant's testimony. A statement was taken by employer and offered as exhibit 3. The statement was not dated or signed. It recited an incident when claimant was riding a lawn mower and suffered increased low back pain. It is unclear when the lawn mower incident occurred and the statement is, therefore, given no weight. Page 5 The totality of the evidence presented leads to the finding that on April 6, 1988, claimant injured his low back while performing work for employer. The next issue concerns whether the April 6, 1988, injury is a cause of permanent disability. The treating orthopedic surgeon opined that the second injury did result in 10 percent permanent partial impairment (ex. 1, p. 4). Dr. Bashara's opinion is found to be correct and claimant has sustained his burden in proving that the April 6, 1988, injury is a cause of permanent disability. The extent of industrial disability is the next issue to be considered. Factors to be considered include claimant's age, education, experience, impairment, work restrictions and employer's offer of work. At the time of injury on April 6, 1988, claimant was age 50 with similar education and work experience as previously discussed in file number 858197. His impairment for the second injury is 10 percent and his work restrictions are best described as no lifting over 35 pounds, no stooping, no twisting and no bending. Employer failed to reemploy claimant due to the work injury and the resulting work restrictions. However, employer did make a good faith offer of vocational rehabilitation. Claimant did not obtain any real benefits from his further schooling. Claimant is now employed in a job as an electrician that pays more than what he was earning at the time of the April 6, 1988 injury. However, the present earnings alone do not dictate the extent of industrial disability. It is clear that the work restrictions prevent claimant from accessing a distinct segment of the job market. Mr. Dugan's testimony that claimant would have difficulty obtaining jobs with larger employers is convincing. Having considered all the evidence received, it is found that claimant is presently 40 percent industrially disabled. The prior 15 percent industrial disability awarded in file number 858197 must be deducted from this amount. Claimant's award of industrial disability attributable to file number 933329 is 25 percent. It is noted that the parties offered considerable evidence concerning the possibility of claimant being laid off or of claimant obtaining a different job. Evidence concerning the possibility of future events occurring is far too speculative to consider. Should claimant suffer a lay off with a resulting loss in actual wages he may be entitled to apply for review-reopening as this would constitute a change in condition not contemplated at the time of the hearing. The next issue concerns claimant's entitlement to healing period benefits. Claimant was off work starting June 13, 1988 through November 6, 1988. He worked light duty starting November 7, 1988 through November 27, 1988. Page 6 He was again taken off work on November 28, 1988, due to the unavailability of light duty work. It is found that claimant was off work and under active medical care for the April 6, 1988, injury during the period starting June 13, 1988 through November 6, 1988. It is found that claimant was temporarily partial disabled as a result of the April 6, 1988, injury during the period November 7, 1988 through November 27, 1988. The final healing period begins on November 28, 1988. The next issue concerns the end of the final healing period. It is generally held that a healing period ends when significant improvement from the condition is no longer expected. It is found that such occurred on January 12, 1989, when Dr. Bashara assigned permanent work restrictions and directed the claimant to return only as needed (ex. 1, p. 11). Therefore, the final healing period begins on November 28, 1988, and continued through January 12, 1989. The causal connection of the healing periods is found to exist based upon claimant's testimony and the medical records offered which reveal that claimant was under active medical care for the treatment of the April 6, 1988, back injury during the periods in question in file number 933329. The parties stipulated that April 11, 1989, is the commencement date for payment of permanent partial disability. A deputy commissioner is free to make findings different from a stipulation if supported by the record. Permanent partial disability commences upon the termination of healing period benefits. Since the last day of healing period payments is January 12, 1989, it follows that permanent partial disability begins on January 13, 1989, in file number 933329. The final issue in file number 933329 concerns claimant's weekly rate of compensation. Claimant's gross earnings for the 13 weeks prior to April 6, 1988, total $5,973.20 with a weekly average of $459.48. The week of February 21, 1988 is excluded as short weeks are not representative of claimant's average earnings. The weeks December 27, 1987 and January 3, 1988, are also excluded as they contain holidays which also are not representative of claimant's earnings. The average weekly wage of $459.48 results in a weekly benefits rate of $289.94, based upon a status of married and three exemptions. It is found that claimant has proven entitlement to a weekly benefit rate of $289.94 in file number 933329. The parties joint stipulations filed May 8, 1991, are approved and made part of the pleadings. conclusions of law Claimant has the burden of proving by a preponderance of the evidence that he received an injury on April 6, 1988, which arose out of and in the course of his employment. Page 7 McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "out of" refer to the cause or source of the injury. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63. Claimant has sustained his burden of proving that on April 6, 1988, he sustained an injury to his low back arising out of and in the course of employment. The claimant has the burden of proving by a preponderance of the evidence that the injuries of March 8, 1987 and April 6, 1988, are causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). Page 8 Section 85.34(1), Code of Iowa, provides that healing period benefits are payable to an injured worker who has suffered permanent partial disability until (1) he has returned to work; (2) is medically capable of returning to substantially similar employment; or (3) has achieved maximum medical recovery. The industrial commissioner has recognized that healing period benefits can be interrupted or intermittent. Willis v. Lehigh Portland Cement Company, Vol. 2-1, State of Iowa Industrial Commissioner Decisions, 485 (1984). Employer is responsible for temporary partial disability pursuant to Iowa Code section 85.33(2), (3), and (4). Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, expe rience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disabil ity. This is so as impairment and disability are not syn onymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial Page 9 disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial dis ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, l985). Claimant has established in file number 858197 and file number 933329 that the respective injuries are causally connected to both permanent disability and temporary disability. In file number 858197, claimant has established entitlement to healing period benefits beginning July 6, 1987 through December 7, 1987. In file number 933329, claimant has established entitlement to intermittent healing period benefits beginning June 13, 1988 through November 6, 1988, and November 28, 1988 through January 12, 1989. Claimant is also entitled to temporary partial disability during the period November 7, 1988 through November 27, 1988. Upon considering all the material factors, it is found that the evidence in file number 858197 supports an award of 15 percent permanent partial disability which entitles the claimant to recover 75 weeks of benefits under Iowa Code section 85.34(2)(u). Upon considering all the material factors, it is found that the evidence in file number 933329 supports an award of 25 percent permanent partial disability which entitles the claimant to recover 125 weeks of benefits under Iowa Code section 85.34(2)(u). The basis of compensation shall be the weekly earnings of the injured employee at the time of the injury. Weekly earnings means gross salary, wages, or earnings of an employee to which such employee would have been entitled had the employee worked the customary hours for the full pay period in which the employee was injured, as regularly required by the employee's employer for the work or employment for which the employee was employed, computed or determined as follows and then rounded to the nearest dollar: ... 6. In the case of an employee who is paid on a daily, or hourly basis, or by the output of the employee, the weekly earnings shall be computed by dividing by thirteen the earnings, not including overtime or premium pay, of said employee earned in the employ of the employer in the last completed period of thirteen consecutive calendar weeks immediately preceding the injury. Page 10 (Iowa Code section 85.36) Short weeks are not included in the 13 weeks for determining the rate under Iowa Code section 85.36(6); Lewis v. Aalf's Mfg Co., I Iowa Industrial Commissioner Report 206, 207 (Appeal Decision 1980). Night shift differential is considered premium pay that is not used when calculating the average weekly wage. Burmeister, II Iowa Industrial Commissioner Report 59, 64. Claimant has established in file number 858197 that his weekly benefits rate is $286.58. Claimant has established in file number 933329 that his weekly benefits rate is $289.94. 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. The hearing deputy is free to make findings different from a stipulation if supported by the record. DeHeer v. Clarklift of Des Moines, IAWC Decisions of the Iowa Industrial Commissioner 179 (1989). The evidence presented proves that the commencement date for payment of permanent partial disability in file number 933329 is January 13, 1989. order IT IS THEREFORE, ORDERED: Defendants are to pay claimant healing period benefits in file number 858197 at the rate of two hundred eight-six and 58/100 dollars ($286.58) for the period July 6, 1987 through December 7, 1987. Defendants are to pay claimant seventy-five (75) weeks of permanent partial disability in file number 858197 at the rate of two hundred eight-six and 58/100 dollars ($286.58) commencing December 8, 1987. Defendants are to pay claimant intermittent healing period benefits in file number 933329 at the rate of two hundred eighty-nine and 94/100 dollars ($289.94) for the periods June 13, 1988 through November 6, 1988 and November 28, 1988 through January 12, 1989. Defendants are to pay claimant temporary partial disability in file number 933329 for the period November 7, 1988 through November 27, 1988. Defendants are to pay claimant one hundred twenty-five (125) weeks of permanent partial disability in file number Page 11 933329 at the rate of two hundred eighty-nine and 94/100 dollars ($289.94) commencing January 13, 1989. It is further ordered that defendants shall receive credit for benefits previously paid. It is further ordered that all accrued benefits are to be paid in a lump sum. It is further ordered that interest will accrue pursuant to Iowa Code section 85.30. It is further ordered that the costs of this action are assessed against defendants pursuant to rule 343 IAC 4.33. It is further ordered that defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of May, 1991. ______________________________ MARLON D. MORMANN DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Larry Spaulding Attorney at Law 801 Grand Ave STE 3700 Des Moines, Iowa 50309 Mr. Roger L. Ferris Attorney at Law 1900 Hub Tower 699 Walnut Des Moines, Iowa 50309 Page 1 51100 51802 51803 53002 Filed May 21, 1991 Marlon D. Mormann before the iowa industrial commissioner ____________________________________________________________ : LARRY ETHELL, : : Claimant, : : vs. : : File Nos. 858197 & 933329 3 M CORPORATION, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : NORTHWESTERN NATIONAL, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 51100 51802 51803 53002 Claimant sustained an injury to the low back which resulted in surgery and 10 percent impairment. At age 49, with excellent experience as an industrial electrician, claimant was reemployed by employer at same job. Temporary total disability and 15 percent industrial disability was awarded. Claimant reinjured his back doing same job and incurred another surgery with a 20 percent combined impairment and 35-pound lifting restriction. Employer did not reemploy, but offered vocational rehabilitation. Claimant entered school, but quit due to finding a higher paying job as compared to the last injury. Claimant awarded an additional 25 percent due to loss of access to job market notwithstanding an increase in actual earnings. Claimant was motivated. Claimant's weekly rate of compensation excluded night shift differential as it was a premium pay. Weeks involving illness were included as claimant was compensated for the leave. Short weeks and holidays were excluded as they did not adequately represent claimant's earnings. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JOHN K. SWANSON, Claimant, File No. 858390 vs. A R B I T R A T I O N PEPSI COLA BOTTLING COMPANY D E C I S I O N OF ESTHERVILLE, IOWA, Employer, F I L E D and MAY 25 1990 NATIONAL UNION FIRE IOWA INDUSTRIAL COMMISSIONER INSURANCE COMPANY, Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by John K. Swanson, claimant, against Pepsi Cola Bottling Company, employer (hereinafter referred to as Pepsi), and National Union Fire Insurance company, insurance carrier, defendants, for workers' compensation benefits as a result of an alleged injury on March 4, 1987. On March 6, 1990, 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 March 4, 1987, claimant received an injury which arose out of and in the course of his employment with Pepsi. 2. Claimant has been paid temporary total disability or healing period benefits through June 14, 1988. 3. If the injury is found to have caused permanent disability, the type of disability is an industrial disability to the body as a. whole. 4. Claimant's rate of weekly compensation in the event of an award of weekly benefits shall be $420.21. 5. All requested medical benefits have been or will be paid by defendants. ISSUE The only issue submitted by the parties for determination in this proceeding is the causal connection of the claimed disabilities to the work injury and the extent of claimant's entitlement to disability benefits. FINDINGS OF FACT Having heard the testimony and considered all the evidence, the deputy industrial commissioner finds as follows:. A credibility finding is necessary to this decision as defendants place claimant's credibility at issue during cross-examination as to the nature and extent of the injury and disability. From his demeanor while testifying, claimant is found credible. Claimant worked for Pepsi from February 1970 until July 24, 1987. Claimant began as a driver/route salesman. He was promoted to route manager and later to district manager. The injury herein occurred while claimant was a district manager. As a district manager, claimant supervised two route managers who in turn supervised three or four driver/route salesmen. Claimant earned $735 per week in this job at the time of the injury. Claimant received favorable performance appraisals from his supervisors at Pepsi. Claimant's testimony on his performance is uncontroverted in the record. On or about March 4, 1987, claimant injured his low back while stacking eight packs of 16 ounce Pepsi bottles for display in a Hy Vee supermarket. While turning to place one of the eight packs on the display, claimant felt immediate low back pain, hip pain and leg pain. Claimant rated the pain as eight or nine on a ten point scale. Claimant said that before the injury he experienced low back pain but that such pain never exceeded five on a ten point scale. Claimant first began receiving treatment for low back and leg pain in 1976 from a chiropractor. Claimant described his symptoms at that time as a tightness for which he would receive periodic adjustments. Claimant continued chiropractic care until 1986 when he began to see his family doctor, Brian W. Nelson, M.D., when his chiropractor retired. Claimant returned to Dr. Nelson in January 1987 with complaints of low back and leg pain. Claimant received physical therapy at that time upon a diagnosis of mild degenerative disc disease and deconditioning. After the work injury, claimant returned to Dr. Nelson for treatment. At that time, Dr. Nelson first noted that claimant's leg pain exceeded his low back pain which he stated was different than claimant's previous symptoms. Upon a diagnosis of acute exacerbation and probable herniated disc, claimant was referred for a CT scan which confirmed the diagnosis of a herniated disc at the L4-5 level of claimant's spine. Claimant continued working and received conservative care until July 1987 but the.treatment failed to improve claimant's condition and he discontinued working. Claimant was referred for evaluation to Ensor E. Transfeldt, M.D., an orthopedic surgeon. After his examination in September 1987, Dr. Transfeldt agreed with the diagnosis of a herniation and following more testing, he recommended surgery. In January 1988, Dr. Transfeldt performed low back surgery upon claimant called a laminectomy and multi level fusion of the low back. Following a long recovery, claimant was released to light duty on June 14, 1988. However, claimant was not allowed to return to work by Pepsi. On October 28, 1988, Dr. Transfeldt indicated that claimant had reached maximum healing. As of the date of the hearing, claimant had not returned to work in any capacity and remains unemployed. Claimant said he was told by Pepsi at one time that there would be a job waiting for him but none has been offered. Claimant has made a reasonable effort to seek replacement employment. Claimant has been referred to several places by a vocational rehabilitation consultant retained by defendants. As a result of the work injury of March 4, 1987, claimant has a significant permanent partial impairment to the body as a whole. Claimant is permanently restricted from activity consisting of repetitive bending, lifting, twisting, and can only occasionally lift in excess of 20 pounds. Claimant is unable to stand or walk for any prolonged period of time. Claimant has difficulty riding in automobiles. With reference to the extent of physical impairment, the combined opinions of Dr. Transfeldt, along with those of John Walker, M.D., and John Dougherty, M.D., two other orthopedic surgeons, clearly demonstrated permanent partial impairment. Unfortunately, there was no consensus of opinion as to the exact percentages. Dr. Transfeldt used a standard under "Minnesota statutes." Dr. Walker arrived at a 34 percent permanent partial impairment and Dr. Dougherty did not provide a numerical rating. However, all agreed to the type of permanent restrictions that claimant would have to be placed under for the rest of his life. With reference to the causal connection of claimant's permanent partial impairment to the work injury, the combined views of Dr. Transfeldt and Dr. Dougherty, along with the clear views of claimant's family physician, were convincing. All of these doctors noted an increase in symptoms at the time of the work injury and that the symptoms were different than what claimant had experienced before. Although claimant had significant prior back problems, he was never given a permanent partial impairment rating nor was his activities restricted until after the work injury in this case. It was clear that the work injury was the precipitating factor leading to surgery and claimant's current physical impairment. As a result of the work injury of March 4, 1987, claimant has suffered a total loss of his earning capacity and remains unemployable in the competitive labor market. Claimant has not returned to work either at Pepsi or anywhere else since the surgery. Claimant has made a laudable but unsuccessful effort to return to work by completing all referrals made for him by vocational counselors. Claimant has applied on his own to numerous employers in the area of his residence with absolutely no success. Outside of Pepsi, claimant's only past employment has been in manual labor jobs in the construction industry and in a few railroad jobs which claimant says are no longer available to him. Claimant's condition prevents a return to work to any of the jobs he has held in the past. Claimant is 49 years of age. His age deters from the prospect of successful retraining but is too young for retirement. At 49 years of age he should be in the most productive years of his working life. Consequently, his loss of earnings due to a disability is much more severe than would be the case for a younger or an older individual. Claimant has a high school education and had good grades while in high school. However, retraining does not appear a viable option at the present time. Stanley Thorp.testified at hearing and appeared very credible. Thorp opined from his review of claimant's work history and skills testing that claimant is not competitively employable. The vocational consultants retrained by defendants made no opinion as to claimant's employability but only made a passing reference that claimant's depression may deter in his ability to seek replacement employment. The view that claimant's depression is playing a role in claimant's unemployability was not convincing. Claimant appears to have been angry only with the counselor who failed to provide him with a path toward reemployment. It is the opinion of this deputy commissioner that the counselor unfairly assumed that claimant possessed this attitude when interviewing with prospective employers. How a counselor can arrive at this conclusion without talking to the prospective employers is unknown. The unsuccessful referral efforts adds considerable weight to the finding that claimant is indeed unemployable. It is therefore found that to the extent claimant does suffer from depression of some sort, this has no effect on his loss of earning capacity. It is unnecessary to the issues in this case to decide whether or not an episode of confusion at the hospital during claimant's surgery in January of 1988 was due to alcoholism or to claimant's depression. Despite a wide variety of jobs available at Pepsi, Pepsi has not offered claimant any sort of gainful employment. Apparently, even claimant's employer believes claimant is not employable in any capacity. CONCLUSIONS OF LAW I. The claimant has the burden of proving by a preponderance of the evidence that the work injury is a cause of the claimed disability. A disability may be either temporary or permanent. In the case of a claim for temporary disability, the claimant must establish that the work injury was a cause of absence from work and lost earnings during a period of recovery from the injury. Generally, a claim of permanent disability invokes an initial determination of whether the work injury was a cause of permanent physical impairment or permanent limitation in work activity. However, in some instances, such as a job transfer caused by a work injury, permanent disability benefits can be awarded without a showing of a causal connection to a physical change of condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). The question of causal connection is essentially within the domain of expert medical opinion. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion of experts need not be couched in definite, positive or unequivocal language and the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). The weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Furthermore, if the available expert testimony is insufficient along to support a finding of causal connection, such testimony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. Asse Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish compensability, the injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith, 290 N.W.2d 348, 354. In the case of a preexisting condition, an employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). In the case sub judice, the above principles were applied to arrive at the conclusion that claimant's work injury indeed was a permanent aggravation of a preexisting condition as it was a significant precipitating factor leading to claimant's current permanent disability. The lack of a specific finding as to percentage of permanent partial impairment is unnecessary in assessing disability in an industrial disability case. The focus of attention is not on a particular percentage of functional loss but a percentage of loss of earning capacity as will be discussed below. The critical findings in industrial disability cases concern claimant's work/activity restrictions. II. Claimant must establish by a preponderance of the evidence the extent of weekly benefits for permanent disability to which claimant is entitled. As the claimant has shown that the work injury was a cause of a permanent physical impairment or limitation upon activity involving the body as a whole, the degree of permanent disability must be measured pursuant to Iowa Code section 85.34(2)(u). However, unlike scheduled member disabilities, the degree of disability under this provision is not measured solely by the extent of a functional impairment or loss of use of a body member. A disability to the body as a whole or an "industrial disability" is a loss of earning capacity resulting from the work injury. Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A physical impairment or restriction on work activity may or may not result in such a loss of earning capacity. The extent to which a work injury and a resulting medical condition has resulted in an industrial disability is determined from examination of several factors. These factors include the employee's medical condition prior to the injury, immediately after the injury and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985). In the case sub judice, although claimant may have had some back problems before March 4, 1987, defendants have failed to demonstrate any rational means to apportion an award of industrial disability. Apportionment of disability between a preexisting condition and an injury is proper only when there is some ascertainable disability which existed independently before the injury occurred. Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984). There was no ascertainable disability prior to March 4, 1987. Apportionment is not possible in a permanent total disability case because the benefits are not payable for a definite time period under Iowa Code section 85.34(3), but are paid to claimant indefinitely during the period of his disability. Therefore, when the record presents the proverbial "straw that broke the camel's back," permanent total disability benefits will be fully awarded. See Loftus v. Waterloo Community School District, Case No. 777678, Arbitration Decision filed March 27, 1989; Brown v. Nissen Corporation, Arbitration Decision filed June 29, 1988. Furthermore, after claimant establishes a causal connection between the claimed disability and the work injury, claimant does not have the burden to establish the lack of a preexisting condition. There is no agency precedent as to this precise point of law and this conclusion was drawn from the general law of torts in which a plaintiff in a personal injury case is not normally charged with the burden as to the actual apportionment of damages. Any burden of that nature must be assumed by the defendant since the defendant is the party standing to gain by litigating the apportionment issue. Two damages in tort actions, section 15.34(1)(a); Wonder Life Company v. Liddy, 207 N.W.2d 27 (Iowa 1973). If no apportionment can be made, the defendant is responsible for the entire damage. Becker v. D & E Distributing Company, 24.7 N.W.2d 727, 731 (Iowa 1976). Finally, Pepsi has refused to return its injured worker to the work place. A refusal by an employer to reemploy the injured worker is evidence of lack of employability. 2 Larson, section 57.61, Pages 10-167.90-95; Sunbeam Corp. v. Bates, 609 S.W.2d 102 (1980) ; Army & Air Force Exchange Service v. Neuman, 278 F.Supp 865 (W.D. La 1967) ; Leonardo v. Uncas Manufacturing Company, 77 R.I. 245, 75 A 2d 188 (1950). It should be noted that the automatic burden shifting to the defense in permanent total disability cases (what is termed the "odd-lot doctrine") was not plead in this case and was not applied in this case to arrive at this award. Claimant simply proved by a preponderance of the evidence that he is unemployable. Therefore, it was found that claimant has suffered a total loss of earning capacity as a result of the work injury. Based upon such a finding, claimant is entitled as a matter of law to permanent total disability benefits under Iowa Code section 85.34(3) from the date of injury for an indefinite period of time in the future. Although claimant might be retrained in the future, the current commissioner has stated that we are only to assess claimant's current disability, not his future disability. The potential of success of any retraining effort is not to be considered at this time. Umpress v. Armstrong Rubber Co., Appeal Decision filed August 27, 1987; Stewart v. Crouse Cartage Co., Appeal Decision filed February 20, 1987. This agency is certainly available upon proper application by the defense in the future to review such matters should successful retraining and placement occur. ORDER 1. Defendants shall pay to claimant permanent total disability benefits at the rate of four hundred twenty and 21/100 dollars ($420.21) per week from March 4, 1987. These weekly benefits shall continue indefinitely during the period of claimant's disability. 2. Defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for weekly benefits previously paid. 3. Defendants shall pay the interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 4. Defendants shall pay the cost of this action pursuant to Division of Industrial Services Rule 343-4.33. 5. Defendants shall file activity reports on the payment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 25th day of May, 1990. LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Joseph L. Fitzgibbons Attorney at Law 108 North 7th St Estherville, IA 51334 Ms. Judith Ann Higgs Attorney at Law 701 Pierce St, Suite 200 P 0 Box 3086 Sioux City, IA 51102 1807 Filed May 25, 1990 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER JOHN K. SWANSON, Claimant, File No. 858390 vs. A R B I T R A T I O N PEPSI COLA BOTTLING COMPANY OF ESTHERVILLE, IOWA, D E C I S I O N Employer, and NATIONAL UNION FIRE INSURANCE COMPANY, Insurance Carrier, Defendants. 1807 Permanent total disability benefits awarded to a district manager of a soft drink bottling company. A crucial element in the award was the fact that the company refused to return claimant to work in any capacity. It was held that this was evidence of unemployability. Page 1 before the iowa industrial commissioner ____________________________________________________________ : JAMES FORD, : : Claimant, : : vs. : : File No. 858396 CGA BUILDERS, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : IMT INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in arbitration upon claimant's petition filed January 7, 1988. Claimant allegedly sustained an injury arising out of and in the course of employment with CGA Builders when he fell from a ladder on October 22, 1987. He now seeks benefits under the Iowa Workers' Compensation Act from that alleged employer (the existence of an employment relationship being denied) and its insurance carrier, IMT Insurance Company. Hearing on the arbitration petition was had in Des Moines, Iowa, on January 9, 1990. The record consists of claimant's testimony and joint exhibits A through L, inclusive. issues Pursuant to the prehearing report, the parties have stipulated: that if defendants are liable for permanent partial disability, claimant has suffered an industrial disability to the body as a whole and the proper commencement date is February 15, 1988; that the proper rate of weekly benefits is $140.71; that affirmative defenses are not applicable. Issues presented for resolution include: whether an employment relationship existed between claimant and CGA Builders on or about October 22 or 23, 1987; whether claimant sustained an injury arising out of and in the course of that alleged employment on or about that date; whether the alleged injury caused either temporary or permanent disability and the extent thereof; the extent of claimant's entitlement to medical benefits (it being stipulated that the fees charged for medical services and supplies are fair and reasonable and incurred for reasonable and necessary treatment, but causal connection to the Page 2 alleged work injury is disputed); taxation of costs. findings of fact The undersigned deputy, having heard the testimony and considered all of the evidence, finds: Claimant was 37 years of age at the time of hearing and had completed the eleventh grade. However, he has since obtained his General Equivalency Diploma, had further training during an eight-year stint with the United States Marines, has learned carpentry at a technical school and, at the time of hearing, was attending classes at a community college seeking a degree in commercial art. However, he anticipated that at his present rate of progress, obtaining this degree would take approximately 4-5 years. Claimant's work history includes silk screening shirts, working on call for various contractors, laying floor tile on Navy ships, laying floor tile in retail establishments for a small contractor, and concrete work and framing. In the five weeks before the claimed work injury, claimant entered into a relationship with one Dennis Paul Russo wherein claimant supplied labor for the construction of various projects, especially garages and concrete work. Russo at that time operated as a construction business, obtaining most of his contracts from another individual, one Dwight Roquet. Claimant was paid an hourly wage for his labor, but not at a set rate. Rather, the rate of pay varied by project. The formula used was to divide net profits by the total hours worked by all workers on a particular job; this quotient was then multiplied by the number of hours contributed by claimant to determine his total wage for the project. During the five weeks claimant worked, his hourly rate varied from $4.69 to $9.14 and he worked from 15 to 42.5 hours, earning an average gross weekly wage of $222.73. Unlike Russo, claimant was not in business as a contractor. Claimant furnished only a hammer and nail pouch in addition to his labor, while Russo furnished such tools as staple gun, table saw, trucks, air compressor, wheelbarrows, wood forms, picks and shovels. Russo determined where and when crews worked (claimant worked with at least one other individual, one Roger Hanson). Russo agreed in his deposition testimony of November 30, 1989, that he bore responsibility for performance of the work under Roquet and had the option of discharging claimant or anyone else who failed to perform the work to his satisfaction. Although claimant was sufficiently skilled so as not to constantly need direct and immediate supervision, Russo took it upon himself in at least some respects to control precisely how the work was performed: for example, he very specifically (if unsuccessfully) instructed claimant in how to operate an extension ladder. Claimant lacked credibility as a witness. In particular, he confessed to a long history of failing to Page 3 report income on his federal tax returns. Although the record does not indicate that claimant has been convicted of tax fraud, his confession of this criminal conduct in open court is the functional equivalent for impeachment purposes. Little weight has been assigned his testimony except to the extent it is otherwise corroborated. Claimant described the work injury as occurring on a Thursday (a standard calendar shows that October 22, 1987 was a Thursday) while he was stapling plywood to a garage from a ladder. The ladder slipped and he fell, landing on his elbow. He immediately made complaint of the injury to Russo and promptly visited the Beaverdale Clinic where notes of Robert C. Larson, M.D., reflect that a laceration was sutured on that date. According to claimant, his back began hurting the next morning and he found himself unable to move upon awakening. Claimant worked the next week, but his back remained sore. He was seen at Charter Hospital in Des Moines on October 31 and referred to Sinesio Misol, M.D., a Diplomate of the American Board of Orthopaedic Surgery. Dr. Misol first saw claimant on November 23, 1987. A spinal CT scan was performed at Charter Community Hospital and read by Carter S. Young, D.O., on November 17. Dr. Young's impression was of moderately severe facet arthropathy at L5-S1 (the disc was normal in appearance) and mild diffuse annular bulges at L3-4 and L4-5 without evidence of disc herniation. Dr. Misol wrote on April 22, 1988 that claimant showed no objective abnormality and was advised to continue physical therapy. When claimant failed to improve, he ordered an MRI examination which revealed degenerative disc disease localized to L3-4 with no evidence of nerve impingement or other difficulty. Dr. Misol noted that claimant had shown little evidence of being under severe pain, but assessed him as having a five percent physical impairment of the spine "mostly based on his symptoms." Dr. Misol opined that the degenerative disc disease might or might not be a result of claimant's fall at work and there would be no way of answering that question one way or the other. He did not contemplate or advise any surgical treatment. Dr. Misol reviewed the CT scan of October 31 and found it essentially within normal limits. His initial impression was of back pain post-fall without objective abnormality. Claimant was dissatisfied with Dr. Misol's conclusions and was referred by his attorney to Jerome G. Bashara, M.D. Dr. Bashara, a board-certified orthopaedic surgeon, testified by deposition on December 29, 1989. In the meantime, claimant next worked for a janitorial business beginning February 15, 1988 and remaining so employed for some 2-3 months. He claims it was necessary to quit that job because of back pain. It is more likely that claimant quit that job because of his involuntary hospitalization for alcoholism from April 6, 1988 until Page 4 early in May of that year. Soon after his release from the hospital, claimant accepted work as a laborer with a business known as SKT. About two weeks into that job, claimant "moved wrong" and his back "went out on [him]" causing him to be "on [his] back for a few weeks." Thereafter, claimant saw Dr. Bashara for the first time on August 5, 1988. The history given to Dr. Bashara concerning this incident was: "Approximately one month ago he attempted returning to construction work for 2 weeks and developed an increase in low back pain. He quit working at that time." It is clear to this observer that Dr. Bashara was not aware that claimant had been disabled as a result of this incident for a matter of weeks, or he would surely have referred to this in his chart notes; he did not mention this incident at all in his deposition testimony, despite the rather dramatic consequences of "moving wrong." In about August 1988, claimant began working for an enterprise known as ABC Signs where he remained employed through the date of hearing. Dr. Bashara concluded that claimant had sustained a mild compression fracture at T12 and a disc injury at L3-4. He attributed both problems to the work injury and assigned claimant a 10 percent permanent impairment rating. Restrictions imposed at the time of claimant's first appointment included no excessive bending, stooping or twisting of the lower back and no lifting over 50 pounds. It is not clear that these restrictions were intended to be permanent in nature, as that question was never discussed during deposition testimony. Dr. Bashara did not believe that claimant suffered from degenerative disc disease as opposed to a traumatic injury. He explained his difference of opinion with Dr. Misol on the basis of the October 31, 1989 Charter Hospital x-rays which did not show any evidence of narrowing or degenerative of any disc. Dr. Misol had stated that the injury at T12 was either an old fracture or the result of Scheuermann's disease; Dr. Bashara disagreed, but noted that there is no way to determine the exact age of such a fracture from looking at x-rays or slides. Dr. Bashara noted muscle spasms present on August 5, 1988 and March 10 and October 10, 1989. Dr. Misol's chart notes do not reflect similar findings when claimant was treated by that physician. Dr. Bashara's review of the November 17, 1987 CT scan indicated a mild bulging at L3-4. Dr. Misol's review of an MRI showed no evidence of disc herniation or protrusion of any significance. That MRI was performed on December 14, 1987 and was read by radiologist Dr. De Vries as showing mild, noncompressive protrusions at L3-4 and L4-5, moderate degeneration of L3-4 and questionable presence of mild to moderate facet arthropathy at L4-5 and L5-S1. Page 5 Claimant was also seen for evaluation by Peter D. Wirtz, M.D., an orthopaedic practitioner, on October 16, 1989. Claimant at that time complained of low back pain with left leg radiation. Dr. Wirtz diagnosed degenerative disc disease at L3-4, L4-5. He opined that claimant had not suffered a fracture at T12. The doctor noted that claimant as early as Dr. Misol's examination of November 23, 1987 had full range of motion without neurological condition and concluded that he had reached maximum medical benefit at that examination. He found that claimant's present symptoms related to his degenerative disc disease and did not relate to any one specific prior incident, concluding that the work injury had not left claimant with any functional impairment. He did, however, suggest restrictions somewhere between 30 and 50 pounds of activity based on degenerative lumbar disc. conclusions of law Defendants dispute the existence of an employment relationship between claimant and CGA Builders. However, the evidence clearly shows the existence of an employment relationship. Apparently, defendants believe claimant was an independent contractor working with Mr. Russo. An independent contractor is a person who contracts with another to do something for him, but who is not controlled by the other, nor subject to the other's right to control with respect to his physical conduct in the performance of that contract. Meredith Publishing Co. v. IESC, 232 Iowa 666, 6 N.W.2d 6 (1942). In this case, claimant was paid an hourly wage (although it varied from job to job) based on the sale of his labor alone. CGA Builders as personified by Dennis Russo provided all the major equipment, contracted with customers directly and controlled to some extent the manner in which the work was performed (as will be recalled, claimant was specifically instructed as to how to operate an extension ladder). Russo conceded that he had the right to discharge claimant, and there is no indication that claimant was in a position to hire his own assistants in performing job duties. The evidence clearly shows that an employment relationship existed at the time of the work injury. Claimant has the burden of proving by a preponderance of the evidence that he received an injury on October 22, 1987 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). "An injury occurs in the course of the employment when Page 6 it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Despite claimant's lack of credibility, he has also established that he suffered a work injury on October 22, 1987. He promptly reported his fall to Russo and the results of that fall were physically manifested by a laceration that required suturing on the same day. There is no hint of evidence indicating that claimant was not in the course of his employment while stapling plywood from a ladder on the project he and Russo were both working on. Claimant's injury has been shown to have arisen out of and in the course of his employment with CGA Builders. The supreme court of Iowa in Almquist v. Shenandoah Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) discussed the definition of personal injury in workers' compensation cases as follows: While a personal injury does not include an occupational disease under the Workmen's Compensation Act, yet an injury to the health may be a personal injury. [Citations omitted.] Likewise a personal injury includes a disease resulting from an injury....The result of changes in the human body incident to the general processes of nature do not amount to a personal injury. This must follow, even though such natural change may come about because the life has been devoted to labor and hard work. Such result of those natural changes does not constitute a personal injury even though the same brings about impairment of health or the total or partial incapacity of the functions of the human body. .... A personal injury, contemplated by the Workmen's Compensation Law, obviously means an injury to the body, the impairment of health, or a disease, not excluded by the act, which comes about, not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee. [Citations omitted.] The injury to the human body here contemplated must be something, whether an accident or not, that acts extraneously to the natural processes of nature, and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. The claimant has the burden of proving by a preponderance of the evidence that the injury of October 22, 1987 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 Page 7 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). As discussed below, claimant has failed to establish his entitlement to permanent disability. Pursuant to Iowa Code sections 85.32 and 85.33, temporary total disability of more than 14 days is payable in effect from the injury until the employee has returned to work or is medically capable of returning to substantially similar employment, whichever first occurs. Dr. Wirtz was of the view that claimant had reached maximum medical benefit on November 23, 1987, which would be appropriate in determining his healing period under section 85.34 if permanency benefits were awarded. However, maximum medical improvement, one of the tests for ending a healing period, is not a test for determining the end of temporary total disability. Claimant returned to work (at another job) on February 15, 1988. Claimant did establish that his inability to work from October 31, 1987 through February 14, 1988 was causally related to his fall and a flare-up of back symptoms. Temporary total disability benefits shall be awarded pursuant to the parties' stipulation. There is indeed a conflict in the medical evidence as to permanent disability. Drs. Misol and Wirtz find no causal connection between the work injury and what they see as degenerative disc disease. Dr. Bashara, also a well-qualified physician, feels otherwise. Recalling that it is claimant's burden to establish his entitlement to permanency benefits, it should be noted at this time that Dr. Bashara's opinion is substantially weakened because of the inadequate history claimant gave him concerning the incident during employment with SKT as a laborer. Dr. Bashara thought that claimant merely had increased back pain. This, in the view of the present observer, considerably understates the significance of an incident that caused claimant to be on his back for a period of weeks. Both the work injury and the SKT incident occurred prior to claimant seeing Dr. Bashara for the first time. The record does not indicate that claimant had radiological studies performed after the SKT incident; in any event, it Page 8 requires a leap of faith to connect claimant's current symptomatology to the work incident given this intervening event. Given claimant's lack of credibility, that leap is too great. It is held that claimant has failed to meet his burden of proof in establishing a causal nexus between his current condition and the work injury. The following medical bills appear to be causally related to the work injury (as opposed to the subsequent incident with SKT) and compensable: Mid Iowa X-ray and Nuclear Meds, P.C. $ 270.00 Haines Prosthetics 173.00 Charter Hospital 1,526.00 Dr. Larson -- Beaverdale Clinic 80.00 Orthopedic Associates 245.00 Dr. Bashara -- office visit 55.00 Total $2,349.00 The following expenses are remote or have not been shown to relate to the time period prior to the SKT incident: Mercy Hospital $ 511.00 Charter Outpatient 265.00 Total $ 776.00 Those expenses shall not be awarded. order THEREFORE, IT IS ORDERED: Defendants shall pay unto claimant fifteen point two eight six (15.286) weeks of temporary total disability commencing October 31, 1987 at the stipulated rate of one hundred forty and 71/100 dollars ($140.71) and totalling two thousand one hundred fifty and 89/100 dollars ($2,150.89). As these benefits have accrued, they shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. Defendants shall pay the following medical providers: Mid Iowa X-ray and Nuclear Meds, P.C. $ 270.00 Haines Prosthetics 173.00 Charter Hospital 1,526.00 Dr. Larson -- Beaverdale Clinic 80.00 Orthopedic Associates 245.00 Dr. Bashara -- office visit 55.00 Total $2,349.00 The costs of this action shall be assessed to defendants pursuant to 343 IAC 4.33. Defendants shall file claim activity reports as Page 9 requested by this agency pursuant to 343 IAC 3.1. Signed and filed this ______ day of ____________, 1990. ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Barry Moranville Attorney at Law West Bank Building, Suite 212 1601 22nd Street W. Des Moines, Iowa 50265 Mr. Cecil L. Goettsch Mr. Brian L. Campbell Attorneys at Law 1100 Des Moines Building Des Moines, Iowa 50309 1402.10; 5-1801; 5-1803 Filed November 26, 1990 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : JAMES FORD, : : Claimant, : : vs. : : File No. 858396 CGA BUILDERS, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : IMT INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 1402.10 Claimant provided labor and a hammer for a contractor who arranged all jobs, provided all major tools, had the right to hire and fire (claimant did not) and who controlled the manner in which the work was performed. Claimant was paid a varying hourly wage (net profit was divided by total hours worked by entire crew; the quotient was then multiplied by claimant's hours to determine his wage for a given project). HELD: Claimant established an employment relationship. 5-1801; 5-1803 Claimant lacked credibility and suffered an intervening accident that put him "on his back" for several weeks. The only physician to find causal relationship to permanent impairment did not have an adequate history as to this incident. Claimant proved entitlement to temporary total, but not permanent partial disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER HARVEY L. LENNIE, Claimant, File No. 858608 vs. A R B I T R A T I O N 3 M COMPANY, D E C I S I O N Employer, F I L E D and JUN 8 1989 NORTHWESTERN NATIONAL INSURANCE, IOWA INDUSTRIAL COMMISSIONER Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by the claimant, Harvey L. Lennie, against 3M Company, employer, and Northwestern National Insurance, insurance carrier, defendants, to recover benefits as a result of an alleged injury sustained on May 31, 1987. This matter came on for hearing before the deputy industrial commissioner in Des Moines, Iowa, on April 26, 1989. The record consists of the testimony of claimant; claimant's exhibits 1 through 12 and 14 through 22; and defendants exhibits 1 through 10. ISSUES The issues the parties set out in the prehearing report for resolution are: 1. Whether claimant's injury arose out of and in the course of his employment; 2. Whether claimant's disability is causally connected to his injury; 3. The nature and extent of claimant's permanent disability; and 4. Whether claimant is entitled to benefits.under 85.27. REVIEW OF THE EVIDENCE Claimant testified that he was first employed in 1958 or 1959, and that his jobs at that time and until his employment on June 17, 1974 with the defendant employer were basically manual labor jobs. Claimant indicated that in several of these pre-June 17, 1974 jobs he was exposed to noisy environments. Claimant stated that prior to June 17, 1974, he had noticed no hearing problem nor had he ever had to his knowledge a hearing test with these employers. Claimant recalled no injuries or accidents prior to June 17, 1974 except that in 1969 or 1970 he was knocked out and his nose was broken when he was hit on the right side of his head at work and in 1970 he was hit on the head with a pipe in a bar fight. Claimant emphasized that he had no hearing loss as a result of these injuries. Claimant related that in April 1974 he had a preemployment physical before he began his employment with defendant employer on June 17, 1974 and that the ear exam showed negative. Claimant acknowledged that the hearing test given at that time involved a clock or watch being placed next to each ear. Claimant testified that to the best of his knowledge he did not have a hearing problem at the time of this exam in April of 1974, although on his health questionnaire on that date claimant answered yes to the question involving "Impaired hearing, noise in ear, running ear, or other ear diseases?" (Def. Ex. 2) Claimant described the various jobs that he performed for defendant employer up to his last day of work on May 30, 1987. Claimant indicated that these jobs in different capacities involved working with, near or around noisy to very extraordinary noisy machinery up to eight or more hours a day, seven days a week. Claimant indicated that during the period 1975 to 1980 in which he was supervisor, he also spent all of his time in the plant around the noisy equipment except for approximately two hours a day in the office. The claimant testified that the employer gave a hearing test every other year beginning in 1974 or 1976 and that his hearing test results in 1985 were the first indication of a hearing problem. Claimant stated at that time the employer suggested that he see a doctor as to his hearing problem. Claimant stated that the test results indicated bad hearing in his right ear and that he should wear ear plugs. Claimant acknowledged that 3M recommended ear plugs but they were not mandatory. Claimant stated that with ear plugs you cannot hear anything and indicated that you must listen to the machines to see if something is wrong with them. Claimant suggested that wearing ear plugs could result in a safety problem. Claimant stated it was recommended that he obtain a hearing aid since the hearing in his right ear was almost gone and the left ear was bad. Claimant contended that he did not get hearing aids because he could not afford them. Claimant was extensively questioned concerning the various tests taken involving the work equipment and the noise levels and the estimated hours per day in which he would be exposed to the particularly noisy equipment. Claimant testified that he disagreed with the nature of the testing. Claimant contended that he was exposed for longer periods of time than shown by the test regarding the particular machine tested. Claimant also felt that the testing was not done in relation to the particular machine in close enough proximity to where the claimant would be operating the machine or in contact with it. Claimant was questioned as to the Pella Medical Center clinical records of January 18, 1975, which contained a note: "Had septal repair by Dr. Updegraff. Deaf R. ear." A notation in the nurse's notes at the Knoxville Hospital dated January 6, 1982, which indicated: "This pt. also admits to being deaf in the R. ear but does not use a hearing aid & states that he is allergic to Tetnus." Claimant denied that he told the nurse that he was deaf. Claimant also contended that he was not deaf in his right ear in 1975 or 1982 and does not know how that information got into his medical records. On January 13, 1988, Michael G. Genz, M.Sc., C.C.C., wrote: The enclosed audiological evaluation for January 8, 1988, would still indicate Mr. Lennie to have hearing sensitivity relatively unchanged since 1986. A profound hearing impairment is still evident in the right ear, and this is also substantiated by a negative Stenger test under earphone. Speech discrimination ability remains excellent in the left ear, but could not be established in the right ear due to the severity of the hearing impairment. The enclosed acoustic impedance test result for January 8th would still indicate normal shaped tympanograms for both ears. Acoustic reflexes are present when sound stimulus is presented to the left ear, but absent when sounds are presented to the right ear as would be consistent with this unilateral profound hearing impairment. .....He was assured that hearing sensitivity remains generally within the normal range in the left ear. (Defendants' Exhibit 6) On March 22, 1988, Mr. Genz wrote: Per the tables contained within this chapter, Mr. Lennie would be described as having a 100% hearing impairment in the right ear and a 0% hearing impairment in the left ear. The tables would then indicate Mr. Lennie to have a 16.8% binaural hearing impairment. (Defendants' Exhibit 3) The Pella Medical Center notes of January 18, 1975, note the following: "Had septal repair by Dr. Updegraff. Def R. ear." The nurse's notes and history of the Knoxville Area Community Hospital had the following notations on January 6, 1982, at which time the claimant was admitted to the hospital for acute distress due to lower back pain: "This pt. also admits to being deaf in the R. ear but does not use a hearing aid and states that he is allergic to Tetnus." APPLICABLE LAW AND ANALYSIS Claimant has the burden of proving by a preponderance of the evidence that he received an injury on May 30, 1987 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1) Chapter 85B.8 provides: A claim for occupational hearing loss due to excessive noise levels may be filed six months after separation from the employment in which the employee was exposed to excessive noise levels. The date of the injury shall be the date of occurrence of any one of the following events: 1. Transfer from excessive noise level employment by an employer. 2. Retirement. 3. Termination of the employer-employee relationship. The date of injury for a layoff which continues for a period longer than one year shall be six months after the date of the layoff. However, the date of the injury for any loss of hearing incurred prior to January 1, 1981 shall not be earlier than the occurrence of any one of the above events. Iowa Rule of Civil Procedure 80 provides: (a) Pleadings need not be verified unless special statutes so require and, where a pleading is verified, it is not necessary that subsequent pleadings be verified unless special statutes so require. Counsel's signature to every motion, pleading, or other paper shall be deemed a certificate that: Counsel has read the motion, pleading, or other paper; that to the best of counsel's knowledge, information, and belief, formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass or cause an unnecessary delay or needless increase in the cost of litigation. If a motion, pleading, or other paper is not signed, it shall.be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a motion, pleading, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay the other party or parties the amount of the reasonable expenses incurred because of the filing of the motion, pleading, or other paper, including a reasonable attorney fee. The signature of a party who is not represented by counsel shall impose a similar obligation on such party. The claimant's petition filed November 27, 1987 alleged an injury date in paragraph 4 as "ongoing." On December 1 a telephone call was made by this agency for claimant to provide a specific date of injury. This information was not provided until the parties stipulated to a date in the prehearing report. The parties, in their prehearing report, stipulated to a May 31, 1987 injury date. The claimant testified that his last day of work with defendant employer was May 30, 1987. In another workers' compensation petition filed on March 30, 1989 the claimant is alleging a back injury on May 30, 1987. All matters involving claimant's back injury have been bifurcated from this hearing loss claim and will be considered at another date. 85B.8 is determinative of the date of injury and sets out therein that the date of injury shall be the date of occurrence of anyone of the following events: (1) transfer from excessive noise level,employment by an employer; (2) retirement; and (3) termination of the employer-employee relationship. There is no evidence that the claimant's employment has been affected by any of those three items which are jurisdictional. The record indicates that the claimant is no longer actively working at defendant employer due to his back injury. Although this issue was not raised by any party, the undersigned deputy can raise a jurisdictional question at any time. The undersigned finds that this agency does not have jurisdiction based on the above statute. In fact, there is no occupational hearing loss because there is no injury. Without an injury, there is no loss. Therefore, there remains no issue of an injury which arises out of and in the course of the claimant's employment. 85B.8 indicates that "a claim for occupational hearing loss due to excessive noise levels maybe filed six months after separation from the employment in which the employee was exposed to excessive noise level." (Emphasis added.) Although the parties stipulated to an injury date, the undersigned need not accept the stipulation of the parties if the evidence and records show facts by law which would be contrary to the parties' stipulation. As referred to earlier, we, in fact, have no injury because none of the three statutory requirements were met. If we assume for purposes of argument.,that there is an injury date of May 31, 1987, the claimant has not met the jurisdiction requirements because his petition was filed November 27, 1987, less than six months after the May 31, 1987 date stipulated by the parties. Although this issue was not raised in the prehearing order nor the hearing assignment order by any party, the undersigned deputy can raise this jurisdictional question on its own. The court finds on this second point that it does not have jurisdiction. If the claimant had met the jurisdictional requirements, the medical evidence conclusively indicates that the claimant was deaf in his right ear. The claimant told medical personnel in January 1975, approximately seven months after he began employment with defendant employer, and again in January 1982, when complaining of back problems, that he was deaf in the right ear. There is no reason not to believe the claimant's statements were true. We, therefore, have no impairment to the right ear that arose out of and in the course of his employment. The audiologist's letter of March 22, 1988, which was offered as exhibit 1 by the claimant and as exhibit 3 by the defendants, states, in part: "Mr. Lennie would be described as having a 100% impairment in the right ear and a 0% hearing impairment in the left ear." The undersigned finds that claimant has no impairment in the left ear. This matter has been litigated by the parties resulting in a hearing taking considerable time of this agency and the attorneys. Two jurisdictional questions have been raised for the first time by the undersigned deputy which jurisdictional deficiencies should have been known by a reasonable scrutiny of the facts and the records which should have resulted in no action having been filed in the first instance. This agency has a considerable number of cases on file that have merit for which the agency and its deputy industrial commissioners are making a concerted effort to hear and rule thereon. it is cases such as these that take the deputies' and the agency's time causing delay in a hearing for those cases having merit. Rule 80 was to serve a purpose in preventing such filings. It appears the message is not yet clear to the practicing bar that Rule 80 was adopted to discourage ungrounded or spurious filings, undue expenses, harassment, unnecessary delay or needless increase in costs of litigation. It puts an obligation on counsel to look into the facts on behalf of their clients and make a reasonable determination. The undersigned finds that had the claimant's attorney complied with Rule 80, this action should not have been filed, and having been filed should not have reached the hearing and decision-making stage. The court costs will be assessed against the claimant in this case, but the claimant's attorney should individually and personally pay one-half but not less than $100 of the claimant's costs, whichever is greater, and shall hold the claimant free from personal responsibility or obligation as to those costs. If the claimant has already paid the same, claimant's attorney shall reimburse the claimant accordingly. FINDINGS OF FACT 1. Claimant began working for the defendant employer June 17, 1974. 2. Claimant's original notice and petition alleging an occupational hearing loss was filed on November 27, 1987, less than six months after the alleged injury date. 3. Claimant failed to establish an injury date as provided in 85B.8. 4. Claimant filed his petition prematurely as provided by 85B.8 as any claims for occupational hearing loss due to excessive noise levels may be filed six months after separation from employment in which the employee was exposed to excessive noise levels. 5. Claimant failed to prove that he incurred any compensable hearing loss in his right or left ear while employed with defendant employer. 6. Claimant failed to prove any compensable hearing loss impairment in his right or left ear resulting from his cumulative work injury on May 31, 1987. 7. Claimant was deaf in his right ear on January 18, 1975. 8. The medical evidence shows claimant has 0 percent impairment in his left ear. CONCLUSIONS OF LAW Claimant has not proved by the greater weight of evidence that he incurred a compensable occupational hearing loss that arose out of and in the course of his employment with defendant employer. This agency does not have jurisdiction of this matter as provided under Iowa Code section 85B.8. ORDER THEREFORE, it is ordered: That claimant take nothing from this proceeding. That claimant pay the costs of this action. As provided under Iowa Rules of Civil Procedure, Rule 80, a sanction is imposed upon claimant's attorney, namely: claimant's attorney shall individually and personally pay one-half of the costs for which the claimant is responsible, or one hundred dollars ($100.00) of the costs, whichever is greater, and if the claimant has already paid the court costs, then said attorney shall reimburse claimant as provided herein. The matter of claimant's back injury, which is a part of this file, has been bifurcated from this occupational hearing loss issue and the file is to be kept in the active status pending final resolution of this additional claim. Signed and filed this 8th day of June, 1989. BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Artis I. Reis Attorney at Law 3939 Grand Ave Des Moines, IA 50312 Mr. Roger L. Ferris Mr. Joseph A. Quinn Attorneys at Law 1900 Hub Tower 699 Walnut Des Moines, IA 50309 Mr. Harold B. Heslinga Attorney at Law 118 N. Market St Oskaloosa, IA 52577 Page 1 before the iowa industrial commissioner ____________________________________________________________ : HARVEY LENNIE, : : Claimant, : : vs. : : File No. 858608 3M COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : NORTHWESTERN NATIONAL : INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ This is a proceeding in arbitration brought by Harvey Lennie, claimant, against his employer, 3M Company, and its insurance carrier, Northwestern National Insurance, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury occurring on May 30, 1988. This matter came on for a hearing before the undersigned deputy industrial commissioner at the office of the Iowa Industrial Commissioner in Des Moines, Iowa on October 29, 1990. Briefs were to be filed simultaneously on November 9, 1990, and the case was considered fully submitted at that time. The record in this case consists of the testimony of the claimant, a representive of the insurance company, and a vocational rehabilitation counselor; joint exhibits 1 through 48; defendants' submission of costs for taxation; a bill from Neuro-Associates, P.C., for $100.00; a bill from Mercy Hospital Medical Center for $65.00; various prescription receipts totaling $152.60; proof of payment by claimant for the Mercy Medical and Neuro-Associate bills; and, mileage incurred by claimant. issues According to the Hearing Assignment Order and the prehearing report the following issues are presented for resolution: 1. Whether claimant's disability is causally related to his injury, 2. Whether claimant is entitled to temporary total or healing period benefits, 3. Whether claimant is entitled to permanent partial or permanent total disability benefits, Page 2 4. Whether claimant is entitled to medical benefits under Iowa Code section 85.27. Although both parties addressed the issue of whether claimant is an odd-lot employee, this issue was not listed on the hearing assignment order, and will not be addressed in this decision. See, Joseph Presswod v. Iowa Beef Processors, (Appeal Decision filed November 14, 1986), holding an issue not noted on the hearing assignment order is an issue that is waived. findings of fact The undersigned deputy, having heard all the testimony, reviewed all the exhibits, and having observed the claimant, submits the following findings of fact: Claimant was employed by 3M Company in Knoxville from mid-1974 (shortly after 3M Company opened its Knoxville plant) through May 30, 1987. During his employment tenure with the defendant company, claimant has held a myriad of positions, including job assignments as a machine operator; assistant coater/treater operator; forklift driver; compounder; working supervisor; and quality control. The injury which gives rise to this litigation occurred on or about May 30, 1987. On that date claimant was working in the quality control area, earning $10.58/hour. Claimant was pulling trash bags across the floor, stepped on a drum lid on the floor, slipped and fell, injuring his lower back. He reported his injury to his supervisor, and was treated by Steve Havener, M.D., at the Knoxville Area Community Hospital on May 31, 1987. Claimant complained of hip and back pain, and x-rays taken at the hospital indicated degenerative changes in the back. Claimant was to stay off work for 48 hours, and was instructed to contact a doctor the following Monday to determine his work status. (See Joint Exhibit 31). Claimant saw Thomas A. Carlstrom, M.D., on June 9, 1987. Dr. Carlstrom ordered a new CT Scan, which showed a lesion of the right L5-S1 disc. He recommended that claimant consider surgical treatment but continued to treat claimant on a conservative basis for the next one and one-half months. At that time, Dr. Carlstrom indicated that claimant would not be able to retain a job which required heavy exertion, and indicated claimant had sustained a five percent (5%) body as a whole due to this latest episode on May 30, 1987. He did not feel that surgical intervention would alter the impairment rating, and did not disagree with claimant's decision not to seek surgical treatment at that time. (See, Jt. Ex. 9, Page 1). Claimant did not return to work, but continued to see Dr. Carlstrom. On or about October 8, 1987, claimant's weekly benefits were changed from healing period to permanent partial disability benefits. On April 6, 1988, Dr. Carlstrom corresponded with the adjusting company for the defendant insurance company, and Page 3 indicated that claimant would be able to work presently. He also restricted claimant's lifting duties of approximately 25-30 pounds maximum and 15 pounds repetitive. Claimant was to avoid prolonged sitting or standing. On August 2, 1988, Dr. Carlstrom again corresponded with the adjusting company. Claimant was continuing to have symptoms without any improvement and Dr. Carlstrom stated the following opinion: In my opinion, this injury should be considered related to the 1986 injury. I have little information in my file about symptoms between the surgical procedure date in 1985 and the 1986 injury. If he remained asymptomatic throughout that time, one would have to say this should be entirely related to the 1986 injury. If he continued with symptoms between 1985 and 1986, I would relate it to a prior injury. Claimant underwent a lumbar laminectomy on August 4, 1988. Claimant continued under Dr. Carlstrom's care until February 19, 1989, when Dr. Carlstrom released claimant to work in the quality control area of 3M. On February 17, 1989, Dr. Carlstrom voiced the following opinion: I think this patient is experiencing a fairly good result, though he still is quite symptomatic. I gave him a return to work slip and would expect that he will tolerate heavy physical exertion poorly, but light exertion satisfactorily. I would recommend a lifting restriction of about 30 pounds maximum, and 20 pounds for repetitive work, and would recommend that he not be required to sit or stand greater than one hour in one position. I will see him back in six weeks to see how he is doing after this return to work, and if further changes are required, I'll let you know. I think he probably has reached maximum benefits of healing at the present time, and should be considered to have an impairment rating of about 12-15 percent of the body as a whole. The impairment was to be considered in addition to the five percent impairment rating given by Dr. Carlstrom immediately following the May 30, 1987 injury. Finally, correspondence dated April 13, 1989 from Dr. Carlstrom to Barbara Chaldy of Management Consulting and Rehab Services, Inc., stated the following opinion: I think he has probably reached maximum benefits of healing at this time and I think he has experienced about a 20 percent of the body impairment, based upon his postoperative status, and diminished range of motion of his back. I think that he should be able to return to work on a light duty basis. He is well motivated, and I would think that we should restrict his lifting Page 4 to 35 pounds on a maximum basis, and to 15-20 pounds on a repetitive basis. He also needs to avoid stooping, bending or twisting. The exhibits indicate that on November 20, 1989, Dr. Carlstrom referred claimant to Robert C. Jones, M.D. Dr. Jones rendered a second opinion regarding claimant's physical status, and opined that claimant sustained a 20 percent impairment, and that unless claimant was able to find a light duty job, he would be unable to work, given his occupational and educational background. He also indicated it might be possible that claimant needed another fusion at the L4-5 level. Barbara Chaldy, a rehabilitation consultant, met with claimant on several occasions. She recommended that claimant seek a vocational evaluation from the Iowa State Department of Vocational Rehabilitation (ISDVR). Claimant was evaluated by the department and was admitted to the program on November 13, 1989. He was discharged two days later, because he could not withstand the physical and mental demands of the program, and the counselors felt he was not able to participate in seeking employment at this time. Specifically, Lynn Bursell, a counselor with ISVRF, recommended that claimant undergo further medical intervention; pursue his GED at a local college or through adult education; reapply for social security; and, check into the Mercy Back Clinic. Claimant, who is 50 years old, is currently pursuing his GED. At the time of the hearing, claimant had not returned to work, and was drawing social security disability benefits. Claimant has several other physical problems which limit his employability. Specifically, he has heart problems; is deaf in his left ear, and suffers from cluster headaches. He is missing part of a finger, and cannot completely close his right hand. He also has a problem with a great toe on his left foot. conclusions of law The first issue to be resolved is whether there is a causal relationship between the alleged injury and the disability. As a general rule, the question of causal connection is essentially within the domain of expert testimony. See, 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 Page 5 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). Furthermore, if the available expert testimony is insufficient alone to support a finding of causal connection, such testimony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish compensability, the injury need only be a significant factor, not the only factor causing the claimed disability. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980). Claimant has a history of back injuries. In 1983, he underwent a lumbar laminectomy at the L5-S1 level; a herniated disc was removed by Robert Hayne, M.D. In 1985, Dr. Carlstrom performed a lumbar laminectomy at the L5-S1 interspace. Claimant was given a five percent functional impairment to the body as a whole as a result of the procedure. He returned to work after the surgery. In 1986, claimant received conservative treatment consisting of physical therapy for back pain. Dr. Carlstrom was the treating physican. As noted earlier, Dr. Carlstrom relates claimant's current problem to 1986, when claimant's back condition became increasingly symptomatic: As you are aware, I've seen Harvey Lennie on several occasions since 1985 and performed a lumbar laminectomy in July of 1985. He was able to return to work after the surgery, having a fair amount of discomfort on occasion, but precipitously became worse in the Spring of 1986 and has been symptomatic since then with right L-5 radicular pain and mild neurologic deficit. We have treated him conservatively since that time with little improvement in his symptoms and a CT scan performed since that time has shown degenerative changes principally with potential for a herniated disc at L-5, S-1. He is continuing to have symptoms without any improvement despite his rather low level of activity and because of that I intend to bring him into the hospital next week for a myelogram. In my opinion, this injury should be considered related to the 1986 injury. I have little information in my file about symptoms between the surgical procedure date in 1985 and the 1986 injury. If he remained asymptomatic throughout that time, one would have to say this should be entirely related to the 1986 injury. If he continued with symptoms between 1985 and 1986, I Page 6 would relate it back to a prior injury. On April 13, 1987, Dr. Carlstrom imposed a 20 percent functional impairment to claimant's body as a whole, resulting from his postoperative status and diminished range of motion of his back. (See Jt. Ex. 20, p. 1). Of particular controversy are the medical services rendered by Robert Jones, M.D. Dr. Jones saw claimant on November 29, 1989, and rendered his opinion that claimant's physical impairment was "in the range of 20 percent...." Dr. Jones further stated that "unless he can find a light duty job somewhere, I think he is unable to work, given his occupational and educational background." (Jt. Ex. 23, p. 1). Claimant testified that after the 1986 injury, he returned to work in the quality control department of 3M, and was able to perform his job duties without difficulty. (Transcript p. 29). Claimant had undergone medical treatment for his back prior to this latest episode. He had been restricted to light duty work at 3M, and apparently performed without difficulty his duties as a quality control worker. There is no evidence in the record that claimant had prior medically imposed lifting restrictions in addition to the five percent (5%) permanent partial impairment rating given to him in 1985. Clearly, claimant's physical condition has changed since the fall in May of 1987, although claimant was released to light duty work. His permanent impairment has increased substantially, and he has a lifting restriction of some magnitude. After reviewing all of the evidence, it seems clear to the undersigned that claimant's disability is causally related to his injury of May 1987. The next issue to be determined is whether claimant is entitled to medical benefits. 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 Page 7 proofs of the necessity therefor, allow and order other care. In an emergency, the employee may choose the employee's care at the employer's expense, provided the employer or the employer's agent cannot be reached immediately. Having previously found that claimant's injury is causally related to the alleged disability, defendants are liable for medical expenses incurred by claimant for treatment of the same. Claimant is also awarded $.21/mile for mileage incurred for medical treatment. The evidence shows that claimant asked Dr. Carlstrom to refer him to Dr. Jones, and Dr. Carlstrom obliged. Referral by an authorized physician to another practioner routinely is found to be authorized. Therefore, defendants are responsible for the payment of Dr. Jones' bill, and all other medical bills incurred as a result of claimant's 1987 injury. The next issue presented by the parties for resolution is whether claimant is entitled to temporary total/healing period benefits, or permanent partial or total disability benefits. As a general rule, temporary total benefits are paid to an injured worker where no permanent disability is anticipated; healing period benefits are paid where a permanent disability is a result of the work injury. Iowa Code section 85.34(1) provides that if an employee has suffered a personal injury causing permanent partial disability, the employer shall pay compensation for a healing period from the day of the injury until (1) the employee returns to work; or (2) it is medically indicated that significant improvement from the injury is not anticipated; or (3) until the employee is medically capable of returning to substantially similar employment. 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 section 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 "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, section 2308 (1957). Thus, the healing period generally terminates "at the time the attending physician determines that the employee has recovered as far Page 8 as possible from the effects of the injury. Winn, 203 N.E. at 906. Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60, 65 (Iowa 1981). The record conclusively establishes that claimant sustained a permanent injury as a result of the May 1987 injury; he is therefore entitled to healing period benefits during the timeframe in which he was recouperating. The extent of claimant's entitlement to weekly compensation of healing period benefits is disputed. Claimant claims his healing period ran from May 31, 1987 through April 6, 1988; and, from August 4, 1988 through February 14, 1989. Defendants argue May 31, 1987 through October 7, 1987; and August 4, 1988 through February 13, 1989. Defendants base their argument on a letter, dated October 8, 1987 from Dr. Carlstrom to David Sjulin (an adjustor for the adjusting company) indicating that claimant should seek employment in a lighter duty situation on a permanent basis. (See Jt. Ex. 9, p. 1). However, Dr. Carlstrom's office notes indicate otherwise. An entry dated December 7, 1989 indicates that the letter to Mr. Sjulin was not a work release as it was not communicated to the patient as such. (See Jt. Ex. 30, p. 10). On April 6, 1988, Dr. Carlstrom released claimant to return to work, and imposed lifting restrictions. (See Jt. Ex. 10, p. 1). It is found that claimant's first healing period began on May 31, 1987, and ended on April 6, 1988. Dr. Carlstrom performed a lumbar laminectomy on August 4, 1988, and issued claimant a return to work slip for February 20, 1989. The undersigned finds the second healing period to run from August 4, 1988 through February 19, 1989. The last issue to be decided is the extent of industrial disability claimant has sustained. Industrial disability or loss of earning capacity is a concept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment of physical capacity creates an inference of lessened earning capacity. The basic element to be determined, however, is the reduction in value of the general earning capacity of the person, rather than the loss of wages or earnings in a specific occupation. Post-injury earnings create a presumption of earning capacity. The earnings are not synonymous with earning capacity and the presumption may be rebutted by evidence showing the earnings to be an unreliable indicator. Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218 (1979); 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. Functional impairment is an element to be considered in determining industrial disability which is the reduction of Page 9 earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, expe rience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disabil ity. This is so as impairment and disability are not syn onymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial dis ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, l985). Claimant is 50 years old, and, at the time of hearing, had not yet obtained his GED. From the ages of 11 to 18, he was a resident at the training school for boys in Eldora, Iowa. Although he did not graduate, he left the school when he was 18, and during the next four to five years held jobs with manufacturing plants; the railroad; and a rock quarry as a driller and dynamite man. Page 10 In 1962, he obtained employment with Titus Manufacturing, and worked as an assembler, painter and spot welder for 12 years. All of these jobs required claimant to use his back. In 1974, defendant 3M Company opened their Knoxville facility, and claimant was one of the first employees hired by the company. He worked at various jobs, including machine operator; assistant coater treater; packer; forklift operator; and quality control. Claimant used his back most in his position as assistant coater treater operator. As previously discussed, claimant's physical condition can be described as marginal, at best; however, it does not appear that any of these prior conditions precluded claimant from a productive life in the work force. Motivation is another consideration when determining the extent of an industrial disability. Claimant expressly stated he wanted to go back to work for 3M, and made no further serious attempts to obtain employment. Claimant previously had held a supervisory position with the company, and 3M admitted that claimant would perform well as a salaried shift supervisor, a position with duties that would fall within claimant's restrictions. (Tr. P. 106). And, claimant's prior duties in quality control would adhere to his medical restrictions. However, the employer has not offered claimant any work at the plant. Claimant had held a position in quality control at least three different times in his 3M career, and it is unfortunate that the defendant company could not accommodate claimant after this latest episode. A defendant employer's refusal to give any sort of work to a claimant after he suffers his affliction may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). All factors which determine the amount of industrial disability were considered: overall medical condition (claimant has a hearing loss and prior back problems); situs of injury and nature of injury (increased impairment and medical restrictions); work experience and potential for rehabilitation (laborer positions and mediocre attempts at rehabilitations; GED classes); intellectual, emotional and physical qualifications (average); functional impairment due to the May 1987 injury (20 percent); age (50); education and motivation (below average); earnings before and after the injury (reduction). Claimant's credibility and his motivation to work are questionable at times, but the medical evidence supports the position that claimant is unable to return to the type of employment he had performed for, if not all of, most of his employment life. He has certainly sustained a loss of earning capacity, and is entitled to further benefits. After considering all of the factors which comprise the concept of industrial disability, and the undersigned finds claimant has sustained 40 percent industrial disability. Page 11 Page 12 order THEREFORE, it is ordered: Defendants shall pay unto claimant two hundred (200) weeks of permanent partial disability benefits at the stipulated rate of two hundred ninety-two and 34/100 dollars ($292.34) per week commencing February 20, 1989. Defendants shall pay healing period benefits at the stipulated rate of two hundred ninety-two and 34/100 dollars ($292.34) from May 31, 1987 through April 5, 1988, for a total of forty-four point four two nine (44.429) weeks. Defendants shall pay healing period benefits at the stipulated rate of two hundred ninety-two and 34/100 dollars ($292.34) from August 4, 1988 through February 19, 1989. Defendants shall pay claimant's unpaid medical bills in the amount of one hundred sixty-five dollars ($165.00); prescriptions totaling one hundred fifty-two and 60/100 dollars ($152.60); and mileage reimbursement of five hundred fourteen and 50/100 dollars ($514.50) (two thousand four hundred fifty (2450) miles times twenty-one cents ($.21) per mile). Defendants shall reimburse claimant for medical expenses incurred from Dr. Jones. Defendants shall receive credit for benefits previously paid claimant. Benefits that have accrued shall be paid in a lump sum together with statutory interest thereon, pursuant to Iowa Code section 85.30. Costs of this action are assessed against defendants, pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of January, 1991. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Page 13 Copies To: Mr Harold B Heslinga Attorney at Law 118 N Market Oskaloosa Iowa 52577 Mr Roger L Ferris Mr Joseph A Quinn Attorneys at Law 1900 Hub Tower 699 Walnut Des Moines Iowa 50309 1100; 1402.30; 2208 2300; 2908 Filed June 8, 1989 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER HARVEY L. LENNIE, Claimant, File No. 858608 vs. 3 M COMPANY, A R B I T R A T I 0 N Employer, D E C I S I 0 N and NORTHWESTERN NATIONAL INSURANCE, Insurance Carrier, Defendants. 1100; 2208; 2300 Occupational hearing loss case. Deputy raised two jurisdictional issues: (1) no injury date per 85B.8 notwithstanding parties' stipulation, and (2) petition filed less than six months from stipulated injury date contrary to 85B.8. 1402.30 Claimant also failed on the merits. 2908 Rule 80 sanctions applied. Claimant's attorney ordered to pay or reimburse claimant for one-half court costs assessed against claimant or $100, whichever is greater. Action should have never been filed. 1803 FILED JANUARY 29, 1991 PATRICIA J. LANTZ before the iowa industrial commissioner ____________________________________________________________ : HARVEY LENNIE, : : Claimant, : : vs. : : File No. 858608 3M COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : NORTHWESTERN NATIONAL : INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1803 Claimant, 50 years old, average intelligence, below-average motivation, sustatined a 20 percent functional impairment resulting from a fall at work. Employer failed to offer employer any light duty jobs that adhered to medical restrictons, which included no lifting of more than 35 lbs maximum-15-20 lbs repetitively. Claimant awarded 40 percent industrial disability.