Page 1 before the iowa industrial commissioner ____________________________________________________________ : ELIAS KING, : : Claimant, : : vs. : : File No. 863824 COLONIAL BAKING COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : INSURANCE CO. OF NORTH : AMERICA, : : Insurance Carrier, : Defendants. : ____________________________________________________________ introduction This is a proceeding in arbitration brought by the claimant, Elias King, against his employer, Colonial Baking Company, and its insurance carrier, the Insurance Company of North America, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury allegedly sustained on August 26, 1987. This matter came on for hearing before the undersigned deputy industrial commissioner at Des Moines, Iowa on May 18, 1990. A first report of injury was filed on September 21, 1987. The record in this matter consists of the testimony of claimant as well as of Kelly Gannon, Edward Lynn Greenlee, David Prochaska, and Tim James as well as of joint exhibits 1 through 26 and 28 through 32, and claimant's exhibit A. Claimant's objection to defendants' exhibit 27 is sustained for reasons discussed below. issues Pursuant to the prehearing report and the oral stipulation of the parties, the parties stipulated that claimant's rate of weekly compensation in the event of an award is $277.17 and that a causal relationship does exist between the alleged injury and a period of temporary disability. Issues remaining to be decided are: 1. Whether claimant received an injury which arose out of and in the course of his employment; 2. Whether a causal relationship exists between the alleged injury and claimed temporary total/healing period disability, specifically whether care of Sam L. Graham, Ph.D., was maintenance in nature; Page 2 3. Whether a causal relationship exists between the alleged injury and claimed permanent partial disability; 4. Whether claimant is entitled to benefits and the nature and extent of any benefit entitlement; and, 5. Whether claimant is an odd-lot employee under the Guyton doctrine. findings of fact The deputy, having heard the testimony and reviewed the evidence, finds: Claimant is a 34-year-old male. Claimant's reading skills and word pronunciation, reading vocabulary, and comprehension are all considered equal to the 5.6 grade level. His math skills are at approximately the late fourth grade or early fifth grade level. He lacks knowledge of whole numbers, fractions or decimals. After eighth grade, claimant attended special classes in school. Claimant does read the newspaper, however. Claimant began work at Colonial Bakery in 1980. He initially worked as a swing man and then worked a variety of jobs including Pan-O-Pat, mixing room, and bread oven. The jobs generally included a variety of motions including twisting, bending, and lifting weights of up to 100 pounds on an occasional basis and lesser weights on a frequent basis as well as pushing weights of up to 1,800 pounds intermittently throughout the work day. Claimant's duties also generally included some dry or wet mopping. It is possible to twist at the knee and not at the back while doing the bread oven job. When split bread is run, all the bread oven worker has to do is put the bread on a conveyor. The end conveyor worker pulls the product off the racks. Split bread is run for approximately 4-5 hours per day. Claimant was a good dough mixer and had no intellectual problems doing that job. Prior to working at Colonial, claimant had performed a variety of jobs with the University of Columbia, Missouri. He had been head janitor, a job where he had supervised several employees. He had been a dishwasher and cook's assistant. He had been a lawns keeper. Claimant also had worked previously in construction, as a railroad worker, and as a gas station attendant. At Colonial, claimant earned $10.35 per hour during regular daytime hours and $10.45 per hour when he worked between 6:00 p.m. and 6:00 a.m. Claimant received a pension or profit sharing plan; two weeks' paid vacation per year; and, medical benefits for himself and his family. Claimant was married with four children in August, 1987. He and his spouse were separated at that time, however. On August 26, 1987, claimant slipped on water at work and twisted his back. Page 3 Claimant had prior back problems in 1984 through 1986 for which he had treated with Robert Breedlove, M.D. He was hospitalized with conservative care and was off work for approximately two to three weeks. A back brace was prescribed in 1985. Claimant had been able to quit wearing it at least three months prior to August, 1987, however. Claimant returned to work subsequent to his 1984 hospitalization and was able to continue his job, but for missing an occasional day on account of back pain. Claimant had had some leg pain in 1984, but stated he had no leg pain before August, 1987 after healing from his 1984 back incident. Claimant denied having changed from bread mixer to bread oven operator on account of his pre-1987 back injuries. The record does not reflect that bread oven job would be substantially less physically demanding than the bread mixer job. In his late teens and early 20's, claimant had problems with using drugs and drinking. He treated for a variety of mental health symptoms at that time. He was hospitalized for psychiatric care in 1980. Claimant received no psychiatric care between 1980 and 1987. Claimant has not drunk nor used drugs since undergoing a religious conversion in approximately 1979. Mental health records in evidence demonstrate that claimant has a past history of anxiety and problems in interpersonal relationships. He tends to somatize his anxiety and related emotional difficulties. Claimant had had marital problems between 1980 and his August 26, 1987 injury date. Claimant denied that those difficulties had caused him to be depressed. He admitted consulting with an individual related to his church relative to them, however. Claimant was in an anxious state related to a problem with a girlfriend when Dr. Graham initially saw claimant. William R. Boulden, M.D., was claimant's primary treating physician subsequent to his August 26, 1987 back injury. Dr. Boulden performed a two-level decompression on February 1, 1988 which decompression revealed degenerative disc disease at L5-S1, L4-5 and spinal stenosis at L4-5, L5-S1. Dr. Boulden referred claimant to Thomas W. Bower, licensed physical therapist, for physical therapy and functional capacities evaluation. Claimant did not appear for all physical therapy appointments nor follow through on physical therapy as recommended. Mr. Bower has opined that, under the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, claimant has an 11 percent body as a whole impairment as a result of his two-level decompression. On an initial functional capacities evaluation in fall, 1987, Bower felt that symptom magnification was present and that there was perhaps a strong psychological component in claimant's pain levels. Bower subsequently referred claimant to Samuel Graham, Ph.D., a clinical psychologist, for evaluation. Claimant felt that his intermittent treatment with Dr. Graham helped improve his depression and assisted him in being motivated to follow through on vocational evaluation and job search. Page 4 On February 22, 1990, claimant again underwent functional capacity evaluation. Claimant was not felt to be as symptom magnifying on that examination. Claimant was placed in a light/medium lifting classification. Specifically, claimant should be permitted to lift infrequently between 35 and 40 pounds and frequently 20 pounds. No restriction in his range of motion was then demonstrated. In fall, 1987, Dr. Boulden and Mr. Bower opined that claimant could not perform the job of bread oven operator which he had held prior to his injury. Claimant has worked with vocational rehabilitation consultants Carma Mitchell, David Prochaska and Renee Barnes. He also participated in vocational evaluation and career planning at the Iowa State Vocational Rehabilitation facility from November 1, 1989 through December 7, 1989. On discharge, it was recommended that claimant not include completion of the GED in vocational planning except as a long-term and questionable goal. Writing and math skills were opined to be the most difficult to upgrade to achieve the GED. No specific competitive employment or training was recommended given claimant's lack of physical tolerance and his lack of necessary academic skills. Claimant has gone with Renee Barnes, apparently with the Iowa State Vocational Rehabilitation, to look for jobs in clothing sales. He planned to look for jobs again on the Monday subsequent to his Friday hearing. Claimant reported having attempted to be hired for approximately 25-30 jobs in cooking, sales, and gas stations. Wages offered ranged from minimum pay to $7.00 per hour, but no job offers were extended to claimant. Claimant stated he feels down when he goes out looking for jobs, but also that he does not mind trying. Claimant worked with David Prochaska, a vocational rehabilitation consultant the insurer hired, prior to seeing Dr. Graham. Claimant had not applied for most jobs Prochaska recommended. He reported he did so because of his difficulties with spelling and handwriting on applications. Claimant indicated that Dr. Graham advised him to consult state vocational rehabilitation after he discussed those problems with Dr. Graham. David Prochaska and Carma Mitchell worked with Colonial Baking to attempt to return claimant to work. Dr. Boulden apparently approved claimant's doing janitorial work at Colonial. Claimant worked approximately one-half day in the janitorial job and then did not return. Claimant felt he was unable to do that job. Prochaska then searched for other potential employment with Colonial for claimant. None within claimant's restrictions was found. Edward Lynn Greenlee, production superintendent at Colonial Bakery, trained claimant on the janitorial job to which he returned at Colonial. Greenlee did not observe problems with claimant doing the job and was unaware that claimant would not be returning the following day. Greenlee observed claimant moving quickly to get to the front door after he had finished his first four hours on that job. Page 5 Greenlee did not observe signs that claimant was experiencing back pain. Beyond claimant's lifting restriction, he is not permitted to bend, twist, or sit for prolonged periods. Prochaska reported that claimant did not follow up with him on job leads and expressed his doubt that claimant had followed up on somewhere between 25 and 30 job leads since his injury. Prochaska stated that the job leads he gave claimant were generally full-time positions within claimant's restrictions and readily available in Des Moines. Claimant often did not appropriately contact Prochaska or show up for appointments previously made with him. Prochaska felt claimant did not appear depressed when Prochaska finally made contact with claimant and that claimant never expressed the view that he was too depressed to follow a job lead or go for an interview. Prochaska felt that in a year's time claimant had actually followed up on between 15 and 20 job leads. Prochaska closed claimant's file after he had been out of contact with claimant several months. During that interval, claimant had left the state on occasion and did not have a phone. Claimant had also had some car problems at that time and had reported problems with his ex-wife. It is expressly found that, after his job injury, claimant initially was not well motivated to seek employment and that his work with Dr. Graham has improved claimant's motivation to seek employment. Prochaska opined that claimant could perform the duties of the oven operator at Colonial Bakery. He reported that, per the Dictionary of Occupational Titles, the oven operator job is classified as a light job with occasional lifting of up to 20 pounds. In working with Prochaska, claimant expressed an interest in cooking and salad making. Claimant's transferrable skills include the ability to use his hands to carry and pull objects, the ability to perform routine work repeatedly, the ability to follow simple instructions, the ability to use an assortment of tools and equipment, the ability to supervise others, knowledge of production machines set up and adjustment, inspecting products for conformance to precise specifications, directing the work of others, demonstrating operation of machines, knowledge of cooking and bakery products, and knowledge of janitorial products. Prochaska opined that jobs using those skills are available on a regular, full-time basis in Des Moines and offer stable, long-term employment. Earnings for jobs involving those skills range from approximately $3.50 to $12.50 per hour. Prochaska opined that claimant could do the jobs recommended, even with a fourth grade educational level. Prochaska opined that the bread oven job, if proper body mechanics were used, could be done without twisting. Prochaska recommended for claimant entry wages which would be approximately $4.00-$6.00 per hour. Prochaska reported that mopping, if requiring a twisting action, would be outside of claimant's restrictions. Claimant has twice replaced brake pads on his 1977 Cadillac since his injury. Apparently, he has replaced them only one pad at a time doing the right front wheel in Page 6 approximately March, 1990. Claimant's brother assisted him. Claimant used a floor jack to hoist the car from the ground to work on the brakes. To replace the brake, the hubcap, the tire and the rim must be removed. The tire and rim combined weigh 52 pounds. A 3/8" ratchet with an Allen head with approximately a 32 foot-pound torque is used to remove the calipers. Wheel lugs on a 1977 Fleetwood Cadillac are torqued at 100 foot-pounds. The caliper itself weighs between 5 and 10 pounds with the front caliper being closer to 5 pounds. Claimant also changed the spark plugs in his car once subsequent to his injury. It is possible to avoid leaning over the car to change plugs by using an extender which may be purchased at an auto supply shop. There is no evidence in the record that claimant used an extender, however. Kelly Gannon is claimant's girlfriend. They have lived together since April, 1989. At time of hearing, Ms. Gannon was pregnant with claimant's child with a delivery date of July, 1990. In January, 1990, another individual told Ms. Gannon that claimant was seeing other people. Ms. Gannon then ordered claimant to move out of her residence. Ms. Gannon subsequently called Crawford & Company and made a statement to James Quigley regarding claimant. Within 24 hours she reconciled with claimant and then called Quigley back to recant her statement. Quigley acted very irritated and hung up on Ms. Gannon. Ms. Gannon's statement generally indicated that claimant could engage in activities outside of his restrictions and had no motivation to work. At hearing, both Ms. Gannon and claimant denied the veracity of Ms. Gannon's statement. Each agreed, however, that claimant had, on occasion, wrestled playfully with Ms. Gannon. William R. Boulden, M.D., in his deposition taken March 14, 1990, opined that claimant could not engage in the activities that Ms. Gannon described in her statement to Mr. Quigley. At hearing, Ms. Gannon stated that, "That day, [she] would have done anything [she] could to get back at claimant." Ms. Gannon's statement was offered into evidence as defendants' exhibit 27. We are asked to judge both the admissibility and the veracity of Ms. Gannon's statement. Admissibility is governed by section 17A.14(1). That subsection provides, in relevant part: Irrelevant, immaterial, or unduly repetitious evidence should be excluded. A finding shall be based upon the kind of evidence on which reasonably prudent persons are accustomed to rely for the conduct of their serious affairs, . . . We cannot discuss whether reasonably prudent persons would rely on a statement such as Ms. Gannon's in the conduct of their serious affairs without first discoursing on the human condition: We write songs that suggest that the process of human attachment is all gush and goo-goo. We all want to "[K]eep the briars out. . . . You cannot live and keep free of briars . . ." The truth is the most difficult task any of us are likely to face from the Page 7 symbiotic phase onward is that of simultaneously coupling comfortably while attaching intensely. Strong emotions of attachment for another inevitably both surprise and confuse us. They bring us face to face with both our worst and best selves. The poet said it well when he stated: The whole process is a lie, unless, crowned by excess, it break forcefully, one way or another, from its confinement-- or find a deeper well. . . . Romance has no part in it. The business of love is cruelty which, by our wills, we transform to live together. It has its seasons, for and against, whatever the heart fumbles in the dark to assert . . . . . . love is cruel and selfish and totally obtuse-- . . . (William Carlos Williams, The Ivy Crown) Love, life, whatever it is, being all these things, points of high conflict between a particular man and a particular woman almost inevitably lead to situations where things are said or done that in any other context would be incredibly cruel and unforgivable. In the context in which they occur, however, they are just dumb and just life. Okay! Okay! Sometimes they are wholly stupid and utterly asinine and even then, in the context in which they occur, they are still just life. Forgiveness is not even an issue. There is no one to condemn and no one to be condemned. Persons of compassion and sound judgment recognize these realities. If by chance they should observe two others caught in such a muddle, they keep a dispassionate distance, recognizing that at such times neither member of the dyad can be held to the same standards of conduct to which we hold the banker while conducting the business of banking during banking hours. Having said all this, it is obvious that the content of Ms. Gannon's statement relative to claimant must be placed Page 8 in the context in which she spoke. At that particular moment, her subjective reality of claimant was of an individual of most despicable proportions. All her past experience of him was colored by that subjective belief. She felt a need and desire to hurt him as she believed he had hurt her. She acted impulsively and without first considering the consequences of her actions overall. Reasonably prudent people recognize the emotionality surrounding statements made by an individual in such subjective conflict; reasonably prudent people acknowledge that such statements have little value in reaching a place of objective fact; reasonably prudent people do not rely upon the content of those statements in conducting their serious affairs. For the above reasons, we find that Ms. Gannon's statement both lacks veracity and is not the type of evidence on which reasonably prudent persons would rely in conducting their serious affairs. We note also that Ms. Gannon's testimony at hearing also must be considered in light of her current involvement with claimant. For that reason, it also is given much less weight than is given the disinterested observations of Dr. Boulden and Mr. Bower. Samuel L. Graham, Ph.D., a clinical psychologist, was deposed on February 27, 1990. Dr. Graham characterized claimant as an individual who somatizes his psychological discomfort, that is, an individual who when under psychological distress is likely to experience an intensification of a physical problem such that when under psychological distress claimant would perceive his back pain as much more intense and much more disabling than at other times. Graham felt that claimant was an individual who experienced psychological discomfort in response to environmental stressors and that he had a history of doing such. He described claimant relative to his problems in the 1970's and 1980 as an individual who experienced anxiety and dysphoria intensely when having problems in living. He stated that the same process was now going on. He characterized claimant as having problems in living which had resulted in feelings of anxiety and dysphoria intense enough that he had been referred and had sought additional counseling. Claimant's problems in living included conflict with his estranged wife, problems with his girlfriend and his back injury. Graham felt claimant's psychological symptoms were not caused by a specific injury or event, but were a constitutional part of claimant. Graham felt that the more active and productive claimant was, the better his mood would be as long as the activities were within his physiological abilities and did not significantly worsen his back pain. He believed a return to work within his physical limitations would be therapeutic for claimant. Graham did not believe that claimant's work injury had resulted in a permanently disabling psychological condition. The following dialogue ensued as to lost work time: Q. In your opinion and also to a reasonable Page 9 degree of professional certainty, has the psychological condition that you have treated him for necessitated any loss of time from work above and beyond whatever may have been necessitated by his physical condition? A. The condition has not necessitated any loss of time from work. The condition may have made it more difficult for him to seek work, but would not have prevented him from working. (Graham deposition, page 29, lines 14 through 23) Graham did not believe that claimant showed signs of dysphoria or anxiety when last seen. Graham did feel that, should claimant return to work, it would be in claimant's best interests for Graham to be available to teach claimant about managing pain in the work situation. Graham felt that claimant's explanation for not looking hard and seeking employment, i.e., that he could not take the rejection that he felt, was consistent with claimant's adjustment disorder and the associated loss of self-confidence and self-esteem. Graham felt that claimant's back injury, resulting surgery and restrictions in physical activities was a substantial factor contributing to his adjustment disorder and his need for treatment. Graham felt that while claimant's adjustment disorder was resolved, claimant's inability to locate employment for a prolonged time could produce disappointment that might enhance his dysphoria and anxiety in the future. Graham felt that with a verbal IQ of 79 and a non-verbal IQ of 93, claimant would do better in jobs that rely less on verbal communications, but if physically capable of them, claimant could do all kinds of service work including cooking hamburgers, waiting on counters, working in a dry cleaners or laundry, or making deliveries where logging of the deliveries was not required. Dr. Graham's uncontroverted testimony is accepted. William R. Boulden, M.D., an orthopaedic surgeon, was deposed on March 14, 1990. Dr. Boulden opined that the changes in claimant's x-ray findings in the lumbar spine from 1984 to 1987 represented a significant, accelerated progression of his degenerated state such as would not be seen naturally in a person of claimant's age. The following dialogue subsequently ensued: Q. Could he have stenosis without having symptoms? A. Yes. Q. And is it the trauma or injury to the spine superimposed on the stenosis that can bring on the symptoms? A. Oh, it's something that has been in a balance to date before the symptoms develop, and it takes something usually to set it off, especially in the younger population. In the elderly when we see Page 10 stenosis, we're talking about people over the 65, 70 range. They can get stenosis without traumatic events because we're talking about now an end-staged degenerated spine, whereas in a 29- to 30-year old person, in Mr. King's case, his spine is not totally degenerated. It's not an end-staged, naturally degenerative spine. So something has set the symptoms in motion, and not necessarily that the pathology has changed from being very minute to very severe set off with one traumatic event. The symptoms have changed from not being symptomatic to being symptom--I mean, to being symtomatic [sic] --excuse me, I used the wrong terms--that something has occurred; a bend, usually a twisting is the worst thing. When we see spinal injuries in general--twisting injuries are the most common--that they can set off something, like a ruptured disk pulling on a nerve and making it irritated, and then because there started to be irritation there already existed, tightness, or stenosis in this case, can keep it in motion, keep it going. (Dr. Boulden deposition, page 40, line 2 through page 41, line 8) It is specifically found that claimant's work injury aggravated and made symptomatic his preexisting stenosis. Dr. Boulden felt that notations of recurrent back pain in 1985 would be indicative of ongoing degenerative changes in the back, but not necessarily stenosis because the notations did not refer to leg pain or leg fatiguability. Dr. Boulden also opined, however, that nothing found at surgery was related to a specific trauma as far as pathological change. Dr. Boulden reported claimant as having a temporary flare-up of his back pain when released back to janitorial work at Colonial such that he stopped after about four hours. Dr. Boulden expressed his opinion that the 10 percent permanent partial impairment rating which he gave claimant under the orthopaedic guides related wholly to new pathological changes and surgery subsequent to his injury and not to any preexisting condition. Dr. Boulden stated that his opinion that maximum medical improvement was reached initially on March 21, 1988 related only to claimant's orthopaedic condition and not to any psychological condition. Dr. Boulden opined that, with his back condition and without considering his intellectual abilities, claimant could work in an auto parts department; he could work as a salesperson; he could do jobs involving short distance driving; he could check freight; and, he could work as a security officer. Dr. Boulden's uncontroverted testimony is accepted. conclusions of law We first consider whether claimant has established an injury arising out of and in the course of his employment. Page 11 Claimant has the burden of proving by a preponderance of the evidence that he received an injury on August 26, 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). 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). The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The 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 Page 12 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. We note initially that claimant appears to have been a credible witness. The instances that defendants cite in their brief as evidence of a lack of credibility by way of statement or behavior of claimant do not appear founded. Rational explanations for claimant's behavior are available in each instance. Likewise, his statements where discrepant are not outside the limits of what might be simple error attributable to a layman's knowledge of the matters about which he spoke. In is undisputed that a work incident occurred. Defendants argue that no new injury arising out of and in the course of claimant's employment occurred, but rather that any problems subsequent to the work incident were a mere continuation and manifestation of claimant prior nonwork-related condition. Dr. Boulden's deposition testimony controverts defendants' position. Dr. Boulden has testified that, with an individual of claimant's age, symptomatic stenosis is generally the result of a traumatic event. He has further testified that claimant's condition prior to his alleged injury did not involve stenosis as claimant did not have leg pain prior to the alleged injury. Dr. Boulden's testimony is uncontroverted. Dr. Boulden's testimony results in a conclusion that claimant did receive an injury arising out of and in the course of his employment on August 26, 1987 which injury is causally related to claimant's claimed disability in that the work incident made symptomatic claimant's stenosis. A causal relationship question also exists as to whether claimant is entitled to additional temporary total or healing period disability on account of his care with Sam L. Graham, Ph.D. We note initially that Dr. Graham as a clinical psychologist is not considered a medical practitioner who can render an expert opinion as regards claimant's psychological condition. See Lucia v. Vitalis Truck Lines, I Iowa Industrial Commissioner Report 210 (1981); Assmann v. Blue Star Foods, Inc., file number 866389 (Decl. Ruling, May 18, 1988). Dr. Graham, of course, is certainly entitled to testify within the realm of his own specialty of clinical psychology, however. We note also the following. 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 Page 13 maximum medical recovery. The industrial commissioner has recognized that healing period benefits can be interrupted or intermittent. Willis v. Lehigh Portland Cement Co., Vol. 2-1, State of Iowa Industrial Commissioner Decisions 485 (1984). Defendants argue that claimant's healing period should end on March 21, 1988 when Dr. Boulden released claimant to return to work from an orthopaedic standpoint. Claimant argues that claimant's healing period should apparently continue during that time in which he received treatment from Dr. Graham on account of his psychological condition. Dr. Graham's testimony has established factually that claimant's work injury and its sequelae lighted up claimant's preexisting, but at that time latent, psychological condition. Dr. Graham's testimony when coupled with claimant's testimony, indicates that the condition made it more difficult for claimant to seek work. Claimant could not return to the work he had been doing at the bakery when injured; nor could claimant return to substantially similar work. Likewise, claimant could not readily seek other employment or vocational rehabilitation until his psychological problem was effectively treated. Given the above, it cannot be said that claimant had reached maximum medical healing until such point as the effects of his lighted up psychological condition on his ability to seek employment had been appropriately addressed. Claimant's treatment with Dr. Graham had an efficacious effect on his psychological well being such that claimant has subsequently been able to seek other employment more effectively. Dr. Graham first saw claimant on August 17, 1988. As of November, 1988, Dr. Graham recommended continuing care for claimant. Defendants refused to pay for such care and claimant was not again seen until August 1, 1989. Claimant at that time did not show signs of dysphoria or anxiety. He had apparently at that time reached a state of maximum psychological improvement. The failure of defendants to provide the recommended care in the interim makes it impossible to determine when claimant reached maximum improvement after November, 1988 and prior to August 1, 1989 such that he no longer needed psychological services to assist him in regaining motivation to seek rehabilitation and employment. Defendants' refusal to provide the recommended care produced this dilemma. For that reason, the date best available for determining maximum psychological improvement is August 1, 1989. Claimant is entitled to additional healing period benefits to that date. We reach the question of claimant's permanency entitlement including the related question of whether claimant is an odd-lot worker under the Guyton doctrine. 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 Page 14 285, 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, 1985). For example, 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). Similarly, a claimant's inability to find other suitable work after making bona fide efforts to find such work may indicate that relief would be granted. McSpadden v. Big Ben Coal Co., 388 N.W.2d 181 (Iowa 1980). In Guyton v. Irving Jensen Co., 373 N.W.2d 101, 103 (Iowa 1985), the Iowa court formally adopted the "odd-lot doctrine." Under that doctrine a worker becomes an odd-lot Page 15 employee when an injury makes the worker incapable of obtaining employment in any well-known branch of the labor market. An odd-lot worker is thus totally disabled if the only services the worker can perform are "so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist. The burden of persuasion on the issue of industrial disability always remains with the worker. However, when a worker makes a prima facie case of total disability by producing substantial evidence that the worker is not employable in the competitive labor market, the burden to produce evidence of suitable employment shifts to the employer. If the employer fails to produce such evidence and the trier of fact finds the worker does fall in the odd-lot category, the worker is entitled to a finding of total disability. Id. Even under the odd-lot doctrine, the trier of fact is free to determine weight and credibility of evidence in determining whether the worker's burden of persuasion has been carried, and only in an exceptional case would evidence be sufficiently strong to compel a finding of total disability as a matter of law. Id. In Guyton, the court also stated the following regarding determination of a worker's industrial loss. The question is more than the one posed by the commissioner concerning what the evidence shows Guyton "can or cannot do." The question is the extent to which the injury reduced Guyton's earning capacity. This inquiry cannot be answered merely by exploring the limitations on his ability to perform physical activity associated with employment. It requires consideration of all the factors that bear on his actual employability. See New Orleans (Gulfwide) Stevadores v. Turner, 661 F.2d 1031, 1042 (5th Cir. 1981) (are there jobs in the community that the worker can do for which he could realistically compete?) Id. Initially, we reject claimant's argument that he is an odd-lot worker under Guyton. Claimant has physical restrictions which make it impossible for him to do heavy work. Claimant, on written testing, has somewhat limited educational capacities. Claimant's responses at hearing as well as his demeanor at hearing suggest that his actual level of intellectual functioning is at least somewhat higher than that scored on written testing, however. Likewise, Mr. Prochaska's testimony, as well as Dr. Boulden's testimony, supports a finding that there are jobs available in the local market which claimant could perform, even given the combination of his physical limitations, his educational deficiencies and his perhaps somewhat limited intellectual functioning. For those reasons, claimant has not established prima facie that he is an odd-lot worker. We next consider the nature and extent of claimant's actual permanent partial disability entitlement. Claimant has a moderate physical impairment on account Page 16 of his work injury. He has difficulty with excessive sitting and standing and is not to lift more than 35-40 pounds infrequently and 20 pounds frequently. Twisting is apt to cause him great difficulty. Claimant's intellectual attainment as measured on written tests is at the elementary school level. His actual performance level may be somewhat higher, however. Claimant is unable to return to his previous employment. His employer has attempted a work return for him, however, and cannot under the facts presented be considered as having not made a reasonable attempt to return claimant to work. Claimant has a variety of transferrable skills and both Mr. Prochaska and Dr. Boulden believe that these could translate into jobs available in the local labor market. Claimant's motivation, unfortunately, remains at best tentative. While it is true that claimant's motivation was impaired on account of his psychological condition early on subsequent to his injury, the record reflects that since at least August, 1989, such should not have been a primary factor in any failure of claimant to routinely attempt a job search. Claimant, unfortunately, has made only limited attempts to search for work during that time. Claimant's limited job search makes assessment of his actual loss of earnings more difficult. It does appear though that light-medium weight jobs not requiring great educational attainment or acumen are available to claimant. Claimant was looking for work in clothing sales at time of hearing. Apparently both claimant and the vocational specialist with whom he was working at that time felt this was a realistic goal for claimant. Indeed, claimant appeared a personable individual who might do well in some form of sales work not requiring substantial record keeping. Such appears to be well within the recommendations of Mr. Prochaska. Claimant is a younger worker. The variety of jobs he held both prior to beginning work for Colonial Baking Company and the variety of jobs he held at Colonial suggests that he has some capacity for both transferring preexisting skills and acquiring new skills. When coupled with his younger age and with sufficient motivation, that should work to claimant's advantage despite his physical restrictions and educational deficiencies. It is agreed, however, that the nature of the jobs now available to claimant is such that he will now neither be assured the substantial hourly wage nor the additional benefits which he received from working at Colonial Baking Company. Likewise, he is restricted from the large variety of heavier laboring occupations that he could otherwise have entered. Such heavier labor occupations often are significantly more lucrative than are jobs classified in the light-medium weight category, especially where the light-medium weight category job does not require significant intellectual or educational prowess. When all of the above are considered, it is recognized that claimant's loss of earning capacity on account of his Page 17 injury is significant, but not overwhelmingly so. It is concluded that claimant has sustained an industrial disability of 45 percent of the body as a whole on account of his August 26, 1987 injury. order THEREFORE, IT IS ORDERED: Defendants pay claimant permanent partial disability benefits for two hundred twenty-five (225) weeks at the rate of two hundred seventy-seven and 17/100 dollars ($277.17) per week with payments to commence on August 2, 1989. Defendants receive credit for benefits already paid. Defendants pay claimant healing period benefits from his injury through August 1, 1989 at the rate of two hundred seventy-seven and 17/100 dollars ($277.17) per week. Defendants receive credit for benefits already paid. Defendants pay accrued amounts in a lump sum. Defendants pay interest pursuant to section 85.30, as amended. Defendants pay costs pursuant to Division of Industrial Services Rule 343-4.33. Defendants file claim activity reports as requested by the agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this ______ day of ____________, 1990. ______________________________ HELENJEAN WALLESER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. James R. Lawyer Attorney at Law West Towers Office Building 1200 35th Street, Suite 500 W. Des Moines, Iowa 50265 Mr. Michael R. Hoffmann Attorney at Law Breakwater Building 3708 75th Street Des Moines, Iowa 50322 Page 1 1108.50, 1802, 1803 3700, 4100 Filed September 26, 1990 HELENJEAN WALLESER before the iowa industrial commissioner ____________________________________________________________ : ELIAS KING, : : Claimant, : : vs. : : File No. 863824 COLONIAL BAKING COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : INSURANCE CO. OF NORTH : AMERICA, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 1108.50 Held that claimant had shown causal relationship in injury arising out of and in the course of his employment in development of stenosis after twisting injury at work. 1802 Held that claimant was entitled to healing period benefits during the time in which he was unable to effectively seek employment on account of aggravation of preexisting psychological condition as a result of his injury. Preexisting psychological condition which was lighted up by the injury did not make claimant unable to work physically, but did make claimant unable to actively seek employment. Psychologist whom orthopaedic surgeon and physical therapist had recommended claimant see recommended that claimant undergo additional treatment for that condition. Defendants refused to pay for such treatment. Claimant, therefore, was not seen by the psychologist for a ten-month period. At the end of that time, claimant was found to be symptom free. Healing period was held to run until psychologist last saw claimant and found claimant symptom free in that defendants by refusing to provide treatment as recommended had made it impossible to determine a more appropriate end to the healing period. Page 2 1803, 4100 Claimant, who is restricted from heavy labor and who had limited education as well as some intellectual problems, was found to be 45 percent industrially disabled. Claimant, who lacked motivation to work, was not found an odd-lot worker under the Guyton doctrine. 3700 Held that under section 17A.14(1), statements made by one member of a romantic dyad against another during a period of heightened conflict between the couple were not the types of statements on which reasonably prudent persons were accustomed to rely in the conduct of their serious affairs. Page 1 before the iowa industrial commissioner ____________________________________________________________ : DENNIS BABER, : : Claimant, : File No. 863900 : vs. : : A R B I T R A T I O N ALUMINUM COMPANY OF AMERICA, : : D E C I S I O N Employer, : Self-Insured, : Defendant. : ___________________________________________________________ INTRODUCTION This is a proceeding in arbitration brought by Dennis Baber, claimant, against Aluminum Company of America, employer and self-insured defendant, for benefits as the result of an alleged injury that occurred on August 20, 1987. A hearing was held on October 26, 1989, at Davenport, Iowa, and the case was fully submitted at the close of the hearing. Claimant was represented by Michael W. Liebbe. Defendant was represented by Thomas N. Kamp. The record consists of the testimony of Dennis Baber, claimant; Ernest Houston, electrician; Floyd T. Neubauer, electrician; Greg Guideback, safety coordinator; Sylvester L. Casta, M.D., medical director; Gary Mlakar, senior safety engineer; Kevin O'Brien, personnel staff assistant; joint exhibits 1 through 10 with 129 consecutively numbered pages and claimant's exhibit 1 through 9 with 13 consecutively number pages. The deputy ordered a transcript of the hearing. Both attorneys submitted excellent briefs. stipulations The parties stipulated to the following matters at the time of the hearing: That an employer-employee relationship existed between claimant and employer at the time of the injury. The the time off work for which claimant seeks temporary disability benefits is stipulated to be from August 21, 1987 through October 19, 1987. That the type of permanent disability, in the event the injury is determined to be a cause of permanent disability, is industrial disability to the body as a whole. That the commencement date for permanent disability benefits, in the event such benefits are awarded, is October 20, 1987. That the rate of compensation, in the event of an award, is $366.90 per week. Page 2 That claimant's entitlement to medical expenses will be paid by defendants if it is determined that claimant sustained a compensable workers' compensation injury. That defendants paid claimant $1,970.55 in disability income benefits prior to hearing under an employee nonoccupational group health plan and that defendants are entitled to a credit in this amount in the event of an award. That defendants make no claim for workers' compensation benefits paid to claimant prior to hearing. That there are no bifurcated claims. That the issue of medical benefits under Iowa Code section 85.27 and the issue of credit under Iowa Code section 85.38(2) for disability income paid to claimant prior to hearing, which are shown as hearing issues on the hearing assignment order, were withdrawn as hearing issues by the parties at the time of the hearing. issues The parties submitted the following issues for determination at the time of the hearing: Whether claimant sustained an injury on August 20, 1987, which arose out of and in the course of employment with employer. Whether the alleged injury was the cause of temporary disability. Whether the alleged injury was the cause of permanent disability. Whether claimant is entitled to temporary disability benefits. Whether claimant is entitled to permanent disability benefits, and if so, the extent of benefits to which claimant is entitled. summary of the evidence Claimant, born August 26, 1948, was almost 39 years old at the time of the alleged injury, on August 20, 1987. He was 41 years old at the time of the hearing. His education was not introduced into evidence, but his counsel stated in the posthearing brief that, "...Claimant has no formal education past high school." (claimant's brief page 1). Claimant began an apprenticeship to become an electrician in 1966 and he testified that he was a journeyman electrician at the time of the hearing and had been for several years. Past employments include the owner-operator of a semi-truck, making local deliveries as a truck driver, and working as a construction electrician. Page 3 Claimant started to work for employer in December of 1980. A preemployment health history is dated October 24, 1980. An x-ray bearing the same date disclosed that claimant had a first degree spondylolisthesis of L5 and S1 (joint exhibit page 128). Employer's medical director, E.M. Stimac, M.D., had anticipated restricting claimant to class three labor (jt. ex. p. 129) and imposing a maximum weight lifting restrictions of both 30 pounds and 50 pounds (jt. ex. p. 52), but after having claimant evaluated by John S. Sinning, M.D., an orthopedic surgeon, (jt. ex. JJ pp. 55 & 56) permitted claimant to go to work without restrictions (tr. p. 130). On November 26, 1980, Dr. Stimac commented, "Consult from Dr. Sinning feels ok for man to be hired without restriction. Feels that at this age, likely-hood of further slipping not likely." (jt. ex. pp. 52 & 53). Dr. Stimac sent Dr. Sinning a description of claimant's job requirements (jt. ex. p. 56). Dr. Sinning evaluated claimant for work as an electrician doing maintenance type work. He said the x-rays demonstrated minimal spondylolisthesis. Dr. Sinning took supplemental films taken in flexion and extension centered at L5 and found no untoward motion. Dr. Sinning said, "The slip does not increase." Dr. Sinning concluded, "I would recommend hiring Mr. Baber without restrictions according to the employment description that has been supplied to me covering electrician." He added that Mr. Baber had several years of heavy work without symptoms and he believed that claimant represented a good risk. Dr. Sinning's evaluation did not include an impairment rating (jt. ex. pp. 54 & 55). Claimant testified that his only previous back injury occurred after sneezing in the early 70's. He saw a chiropractor for this injury (transcript pp. 19 & 20). He also admitted to a whiplash type of injury and was treated by H.D. Bobb, D.C., in approximately 1983. A letter from Dr. Bobb verified that he treated claimant in 1984 for right arm numbness and pain into his shoulder from his lower neck down. His diagnosis was cervicobrachial syndrome with cervical subluxation of C-4 and C-5 (jt. ex. p. 23). Claimant denied that Dr. Bobb treated his lower back and there was no evidence that Dr. Bobb did treat his lower back (tr. p. 22). Claimant also admitted that he saw L.J. Diamond, D.C., for a work-related injury to his right shoulder (tr. p. 23). Dr. Diamond reported that he treated claimant for an injury to his neck-upper thoracic spine and shoulder which may have happened lifting a heavy box. He said he also treated claimant for a small vehicle accident at work which caused a whiplash injury and right arm numbness in 1983. Dr. Diamond said he had not seen claimant since 1986 (jt. ex. p. 24). Claimant indicated that all of these treatments were for his neck and shoulder (tr. p. 23), however, defendant's counsel correctly pointed out that some of the treatments by Dr. Diamond were to the lumbar spine as well as the upper spine (jt. ex. p. 30). Claimant responded that the doctor Page 4 might have adjusted his lower spine, but he was not aware of it (tr. pp. 42-44). Claimant testified that on Thursday, August 20, 1987, he was pulling coax. Coax is a specialized wire for communication. It has one conductor running through a shielded cable to filter out magnetic interference. He picked up a box of this wire and he felt an ache in his back. He said he told the guys he was working with that his back didn't feel good. He put a heating pad on it that night and burned his back. Claimant said he reported the coax injury to the medical department the following day on Friday, August 21, 1987. The company sent him to see John A. Baker, M.D., an orthopedic surgeon on Monday, August 24, 1987 (tr. pp. 24-26). Claimant was taken off work from August 21, 1987 through October 19, 1987. Claimant testified that prior to the injury he did not work under any restrictions. When he returned to work Dr. Baker had imposed restrictions of not lifting more than 25 pounds and that he was not supposed to do anything for over an hour (tr. pp. 29 & 30). Claimant admitted that he was never told that he could not work overtime (tr. p. 30). Claimant testified that overtime has been available, but he voluntarily chose not to do it because he found it physically taxing. He testified that he rested up on the weekends (tr. pp. 30 & 31). Claimant testified and showed his income tax W-2 forms to show that he earned $31,591.74 in 1985 and $36,851.27 in 1985 (tr. pp. 31 & 32; claimant's ex. pp. 11 & 12). Claimant further testified that from January 1, 1989 to October 15, 1989, he had only earned $23,321.55 (tr. p. 32). Claimant acknowledged that on Wednesday, August 19, 1987, he played water volleyball with people from work, but denied any injury from playing water volleyball and testified his lower back was in good condition when he came to work on August 20, 1987 (tr. pp. 33-37). Claimant reaffirmed that he had elected not to work overtime (tr. p. 39). He examined employer's records and agreed with defendant's counsel that he refused overtime from June 13, 1987 through June 18, 1988 (tr. pp. 39-41). Claimant testified that except for a 30 day disciplinary layoff that he has worked steady since he returned to work on October 20, 1987 doing his regular job, eight hours a day, within the restrictions (tr. p. 45). Ernest Houston, an electrician for 19 years for employer, said that he never missed a night playing water volleyball. He did not specifically recall the night of August 19, 1987, but said that claimant played real regular with the group at times. He never heard claimant complain of a back problem. He said that an electrician can usually always work overtime on a six day basis for the last 19 years. He usually works seven days a week. Saturday pays time and a half; Sunday pays double time. Houston testified that claimant does not work overtime (tr. pp. 45-53). Page 5 Floyd Neubauer testified that he has been employed as a construction electrician for employer since September 17, 1979. He was working with claimant at the time of the alleged injury on August 20, 1987 (tr. pp. 56 & 57). They began re-routing coax cable on Monday, August 17, 1987. He described that the job required lifting, pushing and pulling of the wire and crawling and climbing in precarious places, "...on top of railings and on the side of the buildings and [we] looked like a couple of human flies." On Friday, August 21, 1987, he saw claimant was in obvious pain. Neubauer said claimant reported to the medical department around 12:30 p.m. and went home (tr. pp. 62-65). He testified that on Monday, August 17, 1987, that claimant, in general conversation, wiggled his shoulders and indicated that his back was stiff. Between Monday, August 17, 1987 and Thursday, August 27, 1987, Neubauer testified that somehow he lost a day (tr. pp. 63 & 66). However, on one of those days, either Wednesday or Thursday morning, early, he observed claimant walking in an unusual manner as if not to jar himself (tr. p. 66). Neubauer testified that claimant made no complaint to him that he felt any pain after lifting a box of cable (tr. p. 67). Neubauer acknowledged they did physically demanding work all day long on August 20, 1987 (tr. p. 68). He estimated the box of cable would weigh between 25 and 35 pounds (tr. p. 69). Neubauer testified that on Friday morning, August 21, 1987, claimant came to work with a heating pad underneath his clothes and plugged it in while he worked sitting down (tr. pp. 71-74). On cross-examination, Neubauer granted that he did not keep a logbook of his daily activities. He sometimes made notes, but he had no written record of what occurred on Monday, August 17, 1987. Neubauer contended that he could remember this date because he was aggravated that he had to work with claimant because he did not like claimant's working habits (tr. pp. 75-78). Neubauer reiterated, "Nothing indicated it to me on Monday that he had some sort of physical problem. All he said to me on Monday was how you roll your shoulder and say, gee, my back is stiff. That's all he said to me. That's a passing comment. That's not a statement of a problem." (tr. p. 78). Neubauer acknowledged that the shoulders would not indicate a lower back problem (tr. pp. 78 & 80). Claimant made no complaints on Tuesday, August 18, 1987. Neubauer admitted that he could not remember what day claimant was walking gingerly because he lost a day from his memory (tr. p. 80). Neubauer admitted that this did not necessarily indicate a back injury, but it could have indicated a sprained ankle or a sore foot (tr. p. 81). Greg Guideback testified that he is an 11 year employee of employer. At the time of the alleged injury he was the safety coordinator for the maintenance department and claimant was under his jurisdiction. He and others conducted an investigation a week or a week and a half after the alleged injury which was normal plant procedure. Claimant told him that he lifted a box of coax and put it Page 6 into the aerial lift basket on Thursday. He had a sore back Thursday night and Friday. Claimant told Guideback this was the most likely time when the injury could have occurred. Guideback said claimant worked overtime when he first started to work for employer in the early 80's, but there came a point where he elected not to work any overtime. The witness explained joint exhibit pages 31, 32 and 33 labeled "Employee History" of overtime for claimant for the period from June 13, 1987 through June 18, 1988. Claimant refused to work overtime (tr. pp. 83-92; jt. ex. pp. 31-33). Guideback speculated that claimant's income would be lower in 1989 because he refused to work weekends, missed some regular weekdays and had been the subject of a 30-day disciplinary action (tr. pp. 93 & 94). Guideback testified that claimant told him that he picked up a box of wire with his right hand, it weighed 25 to 30 pounds. Claimant said it felt a little tender at that time; no bad pain. It hurt worse that night (tr. p. 101). Guideback testified that claimant failed to follow company procedure by notifying his supervisor before reporting to medical on Friday, August, 21, 1987. Sylvester L. Casta, M.D., medical director for employer, testified that he has practiced medicine for about 20 years, that he is licensed to practice in New Jersey and Iowa, and that as plant physician he dealt generally with occupational medicine. Dr. Casta verified that he completed the "Notice of Work Restriction-Back Condition" for claimant. This restriction reads as follows: Nature of Disability: SPONDYLOLISTHESIS WITH SPINAL RADICULAR SYNDROME RESTRICTIONS: -Lifting should be limited to 25 pounds. -Pulling or pushing should be limited to objects within the weight lift limit. -No repetitive stooping, bending, twisting or squatting. (Example: digging, shoveling or stacking, etc.) Occasional stooping, bending, squatting [sic] or twisting is permissible providing the weight being handled is within the weight lift limit. -Not to work in semi-stooped position for long periods. -To avoid prolonged standing (over 1 hour). (jt. ex. p. 60) Dr. Casta instituted these restrictions on October 19, 1987. They were reviewed on February 9, 1988. Dr. Casta testified that based upon his 30 years of the Page 7 practice of medicine and his professional medical opinion, he would have imposed a 50 pound weight restriction when claimant was hired in 1980 (tr. pp. 105 & 106). Dr. Casta could not recall why on October 13, 1987, he imposed the other restrictions beyond the lifting restriction, but he did know they were not suggested by Dr. Baker, the treating orthopedic physician. Dr. Casta testified that if Dr. Baker had not imposed a 25 pound lifting restriction that he himself would have imposed a 35 pound weight restriction with a view to raising it to 50 pounds later, but he would not go over 50 pounds (tr. pp. 107 & 108). Dr. Casta acknowledged that claimant had no restrictions prior to October 19, 1987 and that Dr. Sinning had recommended that claimant be allowed to work without any restrictions (tr. pp. 110 & 111). Dr. Casta examined claimant's complete medical record and determined that claimant did not have any treatment for low back pain in the L-5, S-1 area prior to this injury, except for an incident in 1973 when he saw a chiropractor for a back problem which developed after a sneeze (tr. pp. 113, 128 & 129). Dr. Casta granted that Dr. Stimac was going to impose a 50 pound weight restriction at the time claimant was hired, but eliminated it after claimant was seen by Dr. Sinning (tr. p. 130). Gary Mlakar, safety engineer and ten-year employee of employer, testified that the company safety investigation was completed by himself and Greg Guideback (tr. pp. 114-116; cl. ex. p. 9). Mlakar recommended to his superior, George Pratt, that, "...based on conversation with Denny, I really didn't see this as a work-related injury." (tr. p. 117). He felt that claimant, "...was very inconclusive as to the origin of the trauma to the back." (tr. p. 118). Mlakar added, "...I didn't walk away from there with a strong enough feeling that that box actually was the cause of the injury." (tr. p. 118). Mlakar admitted that he did not contact Dr. Baker for his opinion about whether claimant sustained an injury on August 20, 1987. He could not recall if he conferred with Dr. Casta. He admitted that he did not have a legal or medical background (tr. pp. 121 & 122). Kevin O'Brien testified that he administers the workers' compensation program for employer. He examined the payroll records for claimant for the year 1986 & 1987 for the one-year period prior to August 20, 1987 and said they demonstrate that claimant only worked overtime on one occasion and that was on July 5, 1987 (tr. pp. 131-133; jt. ex. pp. 34 & 35). The witness examined the overtime record from June 13, 1987 to June 17, 1989. This was a computer report. From January 1, 1987 to June 13, 1987, these records were manually maintained and he also examined these records. O'Brien found that from January 1, 1987 until August 20, 1987, claimant had 42 opportunities to work overtime and he refused 41 of them. He only accepted one of them (tr. pp. 133 & 134; jt. ex. pp. 31-33). O'Brien added that he also generally refused overtime in 1986 (tr. p. 135). There were a few times he accepted it (tr. p. 138). O'Brien testified that the approximate base wage for an electrician in 1986 would be about $30,000 per year. Page 8 Claimant testified on rebuttal that on Monday, Tuesday or Wednesday prior to the injury he did not mention any back problems or anything like that to Neubauer and he has no recollection of walking funny before Friday morning. Claimant testified that Neubauer was incorrect and that he questioned his ability to recollect backwards to Monday, August 17, 1987 from a point in time three weeks later (tr. pp. 138-140). The investigative notes of Gary Mlakar and Greg Guideback show they interviewed claimant on August 31, 1987 at employer's medical facility and they listed these findings: -He lifted-up a box of coaxial cable and put the box into a JLG basket. -He did not carry the box, he picked it up and put it in the basket. -He did not feel any pain at the time he picked-up the box. -He stated that he's not sure if picking-up the box is when he hurt his back, but thinks that's the incident. -He noticed some pain in his back that evening. The next day, Friday August 21, he was working in bldg. 800, sitting in a chair. He started to get out of the chair, the back pain was severe at that time and he went to the Medical Department around 1:00 p.m. (cl. ex. p. 9) The investigative report of G.O. Pratt, Jr., dated August 28, 1987 shows these entries: I asked Dennis how the accident happened: A: I was working in 816 North on Thursday. There were two boxes of wire. I picked one up with one hand - I think my right since I'm right handed. There is a hole in the box to pick it up. [I]t weighed about 25 to 30 lbs. I felt a little tender at the time. No bad pain. It hurt worse that night, so I used a hot pad. I terminated wire Friday, sitting on a hard steel chair bending over. When I stood up around 1:00 p.m., I could hardly get up and move. My right leg was numb. (cl. ex. p. 10) Pratt wrote to claimant on September 18, 1987: Page 9 Information from the accident investigation last week, and information received from you either by phone or from a visit to our medical department, revealed enough disparity as to the exact cause of your injury, that we are not accepting the injury as a work related injury. (cl. ex. p. 13; jt. ex. p. 70) The company medical records show that the medical department closely monitored claimant's alleged injury, treatment and recovery by frequent contacts with claimant, Dr. Baker, and the physical therapist. They also show that the medical department provided claimant with cab fares, treatment and medications as needed (jt. ex. pp. 8-13). Dr. Baker saw claimant on Monday, August 24, 1987. Dr. Baker's first comments are as follows: This is a 38 year old, 185 pound 5'11" white male who is referred from Alcoa. He is complaining of low back pain and some right sided pain. This began when picking up a spool of wire on 08-20-87. He had mild to moderate pain at that time with which he was able to continue working. The following day though, after sitting for a period of time, he developed pain and could not stand up. (jt. ex. p. 3) Claimant admitted to one episode in 1973 of back pain which developed after sneezing while he was bent over. He was treated by chiropractic techniques and he improved over about two weeks. He apparently has been doing heavy work right along. His past history is quite unremarkable. X-rays revealed a Grade 1 spondylolisthesis with about a 20 percent slip. Otherwise, they are essentially unremarkable. Dr. Baker diagnosed spondylolisthesis with a spinal radicular syndrome (jt. ex. p. 3). Claimant showed improvement on September 1, 1987. On September 16, 1987, his notes reflected that claimant was working with a therapist on a work hardening program. A CT scan was ordered (jt. ex. p. 4). On October 19, 1987, the CT scan revealed only the spondylolisthesis. Claimant had minimal complaints and was released to return to work with no heavy lifting or constant bending. A return to work slip was issued by Dr. Baker on October 19, 1987 and effective the same date. The restrictions imposed were as follows, "No lifting over 25#. No constant bending or stooping." (jt. ex. p. 6). On March 1, 1988, Dr. Baker wrote as follows: In response to your question concerning the causation of Mr. Baber's back problem. I would feel that this gentleman has had a pre-existing condition. He indicates that lifting a spool apparently was the direct cause of this particular episode of backache. This patient has a situation Page 10 which is known to lead to degenerative disc changes and which I feel has probably been very strongly present prior to the time of his current problem. In short, I would simply state that this gentleman had an aggravation of a pre-existing injury when he lifted the spool of wire. (jt. ex. p. 1). Dr. Baker wrote on September 28, 1988: In response to your letter of September 13th, The AMA guide that you quoted states "Grade I or II spondylolysis and spondylolisthesis with aggravation, persistent muscle spasm, rigidity and pain resulting from trauma" is equal to 20% impairment of the whole person. I am not sure this entirely applies to Mr. Baber as he, when last seen, did not have rigidity, spasm, pain, etc. I would extrapolate from his clinical condition and the AMA guide about a 10% disability based on this particular situation. Page 11 (jt. ex. p. 2) applicable law and analysis An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). Claimant has the burden of proving by a preponderance of the evidence that he received an injury on August 20, 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 claimant has the burden of proving by a preponderance of the evidence that the injury of August 20, 1987, is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id., at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). Page 12 If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term `disability' to mean `industrial disability' or loss of earning capacity and not a mere `functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). Neubauer's testimony cannot be relied upon to establish that claimant did not sustain an injury arising out of and in the course of his employment with employer. On one hand, Neubauer could recall on September 9, 1987, without the benefit of a log or diary, that approximately three weeks earlier on Monday, August 17, 1987, claimant wiggled his shoulders and said his back was stiff; but at the same time, testified that on one of those days prior to the injury, either Wednesday or Thursday, that he "lost a day" and could not recall what happened on the lost day (tr. pp. 63, 66 & 75-77). Therefore, Neubauer's ability to recollect and recall is somewhat impugned by his own testimony. Neubauer did acknowledge that wiggling of the shoulders might be more indicative of a cervical spine pain rather than a lumbar spine pain. Neubauer stated that claimant made no complaints or indications of pain on Tuesday, August 18, 1987. Then, on the day which is not the lost day, on either Wednesday, August 19, 1987 or Thursday, August 20, 1987, claimant walked in an abnormal protective fashion. Neubauer admitted that he thought this manner of walking was protective of his foot or ankle rather than his back (tr. pp. 66 & 81). Neubauer said claimant did not report an injury to him on August 20, 1987. Neubauer further admitted that he was aggravated because he had to work with claimant because he did not like claimant's working habits (tr. p. 770). If Neubauer was aggravated because of the fact he had to work with claimant, it would not be unusual if claimant chose not to confide in Neubauer and communicate to him everything that he was thinking and feeling. Therefore, as between claimant's testimony and Neubauer's testimony, claimant's testimony is considered to be more reliable as to what occurred on August 20, 1987. The investigation of Mlakar, Guideback and Pratt cannot be determined to be dispositive of whether claimant sustained an injury arising out of and in the course of his employment on August 20, 1987. First of all, because it is based entirely upon circumstantial evidence; second, because it appears to give no weight at all to claimant's testimony; Page 13 and third, because the investigators did not consult with Dr. Baker, the treating orthopedic surgeon, Dr. Casta, the company's medical director, or any other medical authority; and fourth, because the investigators did not take any written or dictated statements from the witnesses, but only wrote down their interpretations or conclusions of what the witnesses told them. Employer in this case is a self-insured defendant. Code of Iowa, section 507B, entitled "Insurance Trade Practices" section 507B.4, entitled, "Unfair Methods of Competition and Unfair or Deceptive Acts or Practices Defined," at paragraph nine, entitled "Unfair Claim Settlement Practices," indicates that refusing to pay claims without conducting a reasonable investigation based upon all available information is an unfair claim settlement practice if it is performed with such flagrancy as to indicate it is a general business practice. In this case, there is no indication of an unfair claim practice, but it is obvious that the defendant's claim investigation was deficient by not including the information available from the treating orthopedic surgeon, Dr. Baker. Nor does it appear that defendant checked with Dr. Casta or any other medical authority. Written statements or dictated statements were not taken from the witnesses. Consequently, employer's claim investigation cannot be dispositive of whether claimant sustained an injury on August 20, 1987 which arose out of and in the course of employment with employer. During the employer's investigation, claimant said that he felt tender at the time he lifted the coax, but did not have bad pain. It hurt worse that night, so he used a hot pad (cl. ex. p. 10). The medical department notes dated August 21, 1987, show that claimant picked up a box of electrical wire in the afternoon. It felt like he couldn't straighten up, he bent his knees and was unable to straighten up. It was tender, but seemed fine (jt. ex. p. 8). At the hearing, claimant testified, "I was picking up a box of wire, and I had an ache in my back." (tr. p. 25). From these consistent accounts, it is determined that something happened when claimant picked up the coax on the afternoon of August 20, 1987 and that claimant has attempted to relate what happened candidly without exaggeration. In other testimony, claimant stated that he had seriously reviewed all of his activities on Thursday, August 20, 1987 and Friday, August 21, 1987 and this was his best recollection of what caused his back pain on the night of August 20, 1987 when he began using a heating pad and eventually reported the injury to the employer's medical department in the early afternoon of Friday, August 21, 1987. Furthermore, Neubauer testified that their climbing activities on August 20, 1987 were very strenuous. He said they that looked like a couple of human flies. Dr. Baker's first office visit on Monday, August 24, 1987, which was only four days after the injury, shows that, "This began when picking up a spool of wire on 08/20/87. He Page 14 had mild to moderate pain at that time with which he was able to continue working. The following day though, after sitting for a period of time, he developed pain and could not stand up." (jt. ex. p. 3). The question of causal connection is essentially within the domain of expert testimony. Bradshaw, 251 Iowa 375, 101 N.W.2d 167 (1960). Dr. Baker, the treating orthopedic surgeon, and the only physician to treat claimant in this case, stated clearly and unequivocally, "In short, I would simply state that this gentleman had an aggravation of a pre-existing injury when he lifted the spool of wire." (jt. ex. p. 1). This is the only professional medical opinion on causation. This statement by Dr. Baker is not controverted, rebutted, contradicted or refuted by any other evidence. It is the testimony of the only medical expert in this case. Dr. Baker is a physician that was chosen by defendant employer. Both parties were apparently satisfied with Dr. Baker's testimony on this point because neither party took a deposition from Dr. Baker. Dr. Casta, the medical director, testified at the hearing and Dr. Casta was not asked to controvert, rebut, contradict or refute Dr. Baker's testimony. No opposing medical opinion was introduced by any other physicians. Therefore, from the foregoing evidence it is determined that claimant did sustain an injury on August 20, 1987 which arose out of and in the course of employment with employer and that the injury was the cause of both temporary and permanent disability. The parties stipulated that claimant is entitled to temporary disability benefits from August 21, 1987 through October 19, 1987, a period of eight point four two nine weeks. Dr. Baker stated, "I would extrapolate from his clinical condition and the AMA guide about a 10% disability based on this particular situation." (jt. ex. p. 2). By way of defense, defendant asserts that claimant had a first degree, or Grade I, spondylolisthesis of the L-5, S-1 at the time of his preemployment physical examination and when he started to work for employer. However, no impairment rating was ever given for the spondylolisthesis that existed at the time that claimant began his employment by either Dr. Sinning or Dr. Stimac. Nor was Dr. Sinning asked to reevaluate the spondylolisthesis prior to this hearing to testify what impairment, if any, existed at the time claimant started to work for employer. On November 26, 1980, Dr. Sinning described it as a "minimal spondylolisthesis L-5, S-1." Furthermore, Dr. Sinning did not believe that it warranted any restrictions of any kind at the time claimant began his employment (jt. ex. p. 54). Dr. Baker said that his 10 percent impairment rating was based upon, "this particular situation." (jt. ex. 2). If defendant wanted this rating reduced, the burden was on them to do so. An injured party is not charged with the burden of proving the actual apportionment of damages. This Page 15 burden is on defendant since defendant is the party standing to gain by litigating the apportionment or reduction in impairment rating. If the evidence is not sufficient to apportion the disability, then defendant is responsible for all of the disability that exists. In this case, defendant did not prove that the impairment rating of 10 percent by Dr. Baker should be reduced by any evidence of any kind. Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 Iowa 1984; Becker v. D & E Distributing Co., 247 N.W.2d 727, 731 (Iowa 1976); 2 Damages and Tort Actions, section 15-34(a); 22 Am. Jur. 2nd, section 212. Again, Dr. Baker made it quite clear that his impairment rating was based on, "this particular situation." and Dr. Baker was fully aware of claimant's earlier spondylolisthesis (jt. ex. pp. 1 & 2). Neither party deposed Dr. Baker for further clarifying information. Dr. Casta, who testified, did not dispute this impairment rating for, "this particular situation." Therefore, it cannot be said, as defendant contends, that this was only a temporary aggravation of a preexisting condition. The fact that Dr. Baker used the term disability rather than impairment, is not unusual. Both doctors and attorneys inadvertently use the terms interchangeably, as well as others, in the workers' compensation area. The Supreme Court of Iowa did the same thing in Olson, 225 Iowa 1112, 1121, 125 N.W.2d 251 (1963). The court used the term disability although it was obvious that the court was discussing impairment ratings. Beyer v. Iowa Beef Processors, Inc., file no. 759698, filed December 3, 1987. Defendant's counsel in his opening statement (tr. p. 14) and in his posthearing brief also interpreted that, "In essence, Dr. Baker is giving Claimant a 10 percent impairment of the whole person by virtue of the fact that Claimant has a Grade I or II spondylolysis and spondylolisthesis, exactly what he had in 1980 when Claimant was examined by Dr. John Sinning." (def. posthearing brief page 4). As previously discussed, however, no impairment rating was ever determined for claimant's preexisting spondylolisthesis in 1980 or at any other time until Dr. Baker awarded a 10 percent impairment, "based on this particular situation." (jt. ex. p. 2). Therefore, it is determined that claimant has sustained a 10 percent permanent impairment to the body as a whole caused by the injury of August 20, 1987. In addition to the impairment rating, Dr. Baker imposed a 25 pound lifting restriction and prohibited constant bending or stooping (jt. ex. p. 6). To these restrictions Dr. Casta has added no work in a semi-stooped position for long periods and claimant is to avoid prolonged standing, over 1 hour (jt. ex. p. 60). Claimant's employability in the competitive labor market is diminished by the fact that he has sustained a work-related back injury, litigated a workers' compensation claim, now suffers a 10 percent impairment to the body as a Page 16 whole, and is restricted from lifting more than 25 pounds. At age 41, claimant's disability is more severe because he is at or nearing the peak of his earnings career. Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report of the Industrial Commissioner 34 (Appeal Decision 1979); Walton v. B & H Tank Corp., II Iowa Industrial Commissioner Report 426 (1981); McCoy v. Donaldson Company, Inc., file numbers 782670 & 805200 (Appeal Decision April 28, 1989). There was no direct evidence on claimant's education, but his counsel indicated that he had obtained a high school education. Claimant testified that he had attended electronics school and had been employed for several years as a journeyman construction electrician. It is also clear that claimant has returned to the same job, for the same employer, and has not sustained any actual earnings loss. Nevertheless, claimant has demonstrated a significant loss of earning capacity. Holmquist v. Volkswagen of America, Inc., 261 N.W.2d 516 (Iowa Appeals 1977); 100 A.L.R. 3d 143; 2 Larson, Workmens' Compensation Law, sections 57.21 & 57.31. Postinjury earnings create a presumption of earning capacity, but they are not synonymous with earning capacity. 2 Larson, id. Claimant's 10 percent impairment rating, 25 pound lifting restriction and other restrictions imposed by both Dr. Baker and Dr. Casta diminishes earning capacity. Claimant totally failed to demonstrate any loss of actual earnings or earnings capacity from a loss of overtime pay. Claimant chose not to work overtime both before and after this injury. No physician ever told him not to work overtime. Claimant's earnings after the injury were not demonstrated to be less than before the injury from his W-2 forms. It was established claimant did not work overtime through his own choice. Furthermore, he lost time from work by not working full weeks on some occasions and because of a disciplinary action. It is also quite clear that employer has been extremely considerate of claimant, even though claimant was not always a cooperative employee. Even though employer closely monitored his injury and recovery, they, nevertheless, provided excellent medical care which resulted in claimant's early rehabilitation to work which included taxi fares, physical therapy, medications and a very competent orthopedic surgeon. Defendant has also been extremely considerate by returning claimant to work within his restrictions without a loss of income. At the same time, however, employer's toleration for claimant's disabilities will not necessarily transfer or translate to the competitive labor market as a whole. Hartwig v. Bishop Implement Co., IV Iowa Industrial Commissioner Report 159 (Appeal Decision June 28, 1984). It is not likely that other employers in the competitive labor market would be so gracious with a 41 year old employee with a Grade I spondylolisthesis, who has sustained a 10 percent impairment to the body as a whole and cannot lift more than 25 pounds. Todd v. Department of General Services, Buildings and Page 17 Grounds, IV Industrial Commissioner Report 373 (1983). Since claimant returned to work at the same job at the same pay, vocational rehabilitation is not a factor in this case. Wherefore: (1) based on the foregoing considerations; (2) all of the evidence in the record; (3) all of the factors used to determine industrial disability, Olson, 255 Iowa 1112, 1121 125 N.W.2d 251, 257 (1963); Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 State of Iowa Industrial Commissioner Decisions 654, 658 (Appeal Decision February 28, 1985); (4) employing agency expertise [Iowa Administrative Procedure Act 17A.14(5)], it is determined that claimant has sustained an industrial disability of 10 percent to the body as a whole. findings of fact Wherefore, based upon the evidence presented, the following findings of fact are made: That claimant was employed by employer from 1980 and was still employed at the time of the hearing on October 26, 1989. That claimant injured his back on August 20, 1987, when he picked up a 25 to 30 pound box of coax cable and placed it in an aerial basket and experienced what he variously described as tenderness or an ache, but not bad pain at that time. That claimant's back became progressively worse that evening and the following day until he reported to defendant's medical facility with extreme pain, without checking with his supervisor, at approximately 1 p.m. on August 21, 1987. That employer provided excellent medical care for claimant by cab fares, medications, physical therapy, work hardening, and authorizing claimant to see an orthopedic surgeon which resulted in a fairly early return to work for claimant. That Dr. Baker determined that claimant's work of lifting the coax cable on August 20, 1987 was the cause of the injury. That Dr. Baker determined that claimant sustained a 10 percent impairment to the body as a whole based on this particular situation. That Dr. Baker restricted claimant from lifting more than 25 pounds and constant bending and stooping. That Dr. Casta further restricted claimant from working in semi-stooped positions and ordered that claimant was to avoid prolonged standing, over one hour. That claimant was 39 years old at the time of the Page 18 injury and 41 years old at the time of the hearing. That claimant probably has a high school education according to the statement of his counsel. That claimant is a journeyman electrician. That claimant has returned to the same job, for the same pay, and that employer has made the necessary accommodations so that claimant can continue to work at his same job at the same pay. That claimant has sustained a 10 percent industrial disability to the body as a whole. conclusions of law Wherefore, based on the evidence presented and the foregoing principles of law, the following conclusions of law are made: That claimant sustained an injury on August 20, 1987, which arose out of and in the course of employment with employer. That the injury was the cause of temporary disability. That claimant is entitled to temporary disability benefits from August 21, 1987 through October 19, 1987 as stipulated to by the parties. That the injury was the cause of permanent disability. That claimant has sustained a 10 percent permanent disability to the body as whole. That claimant is entitled to 50 weeks of permanent partial disability benefits. order THEREFORE, IT IS ORDERED: That defendant pay to claimant eight point five seven one (8.571) weeks of healing period benefits for the period from September 21, 1987 through October 19, 1987 at the rate of three hundred sixty-six and 90/100 dollars ($366.90) per week in the total amount of three thousand one hundred forty-four and 70/100 dollars ($3,144.70) . That defendant pay to claimant fifty (50) weeks of permanent partial disability benefits at the rate of three hundred sixty-six and 90/100 dollars ($366.90) per week in the total amount of eighteen thousand three hundred forty-five dollars ($18,345) for a 10 percent industrial disability to the body as a whole commencing on October 20, 1987 as stipulated to by the parties. That defendant is entitled to a credit for one thousand nine hundred seventy and 55/100 dollars ($1,970.55) for Page 19 income disability benefits paid to claimant under the employee group health plan prior to hearing. That all accrued benefits are to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That the costs of this action, including the cost of the transcript, are charged to defendants pursuant to Division of Industrial Services Rule 343-4.33. That defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this ____ day of March, 1990. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Michael Liebbe Attorney at Law 116 E. 6th St PO Box 339 Davenport, IA 52805-0339 Mr. Thomas N. Kamp Attorney at Law 600 Davenport Bank Bldg Davenport, IA 52801 Page 1 51106; 51118.50; 51402.20; 51402.30; 51402.40; 51402.60; 1802; 1803 Filed March 21, 1990 Walter R. McManus, Jr. before the iowa industrial commissioner ____________________________________________________________ : DENNIS BABER, : : Claimant, : File No. 863900 : vs. : : A R B I T R A T I O N ALUMINUM COMPANY OF AMERICA, : : D E C I S I O N Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 581106; 51118.50; 51401; 51402.20; 51402.30; 51402.40; 51402.60 Claimant sustained the burden of proof by a preponderance of the evidence that he sustained an injury that arose out of and in the course of employment with employer. Primarily, the only treating physician testified that a prior condition of spondylolisthesis was aggravated by this incident of picking up a box of wire at work. It was not an instant traumatic accident and claimant wasn't too sure, initially, how he got the back pain, but this incident was his best opinion. The doctor supported claimant. Employer's investigation was deficient because it did not consult the doctor, ignored claimant's version, the investigators did not take written or recorded statements, but merely wrote down their interpretation of what a number of persons told them. Investigators did not check with the company doctor either. The key witness the employer relied upon was not too reliable and was "aggravated" because he did not like working with claimant. Claimant's version was supported by the orthopedic surgeon. This was considered the best evidence of injury. 1802 Claimant awarded healing period benefits for a stipulated period claimant was off work for treatment. 1803 Doctor awarded 10 percent permanent impairment for this situation. Claimant restricted from lifting 25 pounds, working in bent over positions, and prolonged standing for over one hour at a time. Claimant returned to same job, at the same pay, with accommodations made by employer. Claimant awarded 10 percent industrial disability. Page 1 before the iowa industrial commissioner ____________________________________________________________ : SANDRA K. SMITH, : : Claimant, : : vs. : : File No. 864638 CLEAR LAKE BAKERY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : TRANSAMERICA INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This case came on for hearing on September 5, 1991, in Mason City, Iowa. Claimant seeks permanent partial disability benefits as a result of an alleged injury occurring on October 2, 1987. The record in the proceedings consist of the testimony of the claimant and Bertha Miller; joint exhibits J-1 through 9; and defendants' exhibits A through AA. issues The issues for resolution are: 1. The nature and extent of claimant's permanent disability and entitlement to disability benefits; 2. Whether claimant is entitled to 85.27 medical benefits in reference to joint exhibit 9, and whether said treatment was authorized, necessary and causally connected to claimant's injury of October 2, 1987; and 3. Whether claimant is entitled to 86.13(4) penalty benefits. findings of fact The undersigned deputy, having heard the testimony and considered all the evidence, finds that: Claimant testified at the hearing and through a deposition taken January 14, 1991 (Defendants' Exhibit D). Claimant is a 38 year old who did not graduate from high school but did obtain a GED in 1973. Claimant described her work history before beginning work with defendant employer in 1984. This history shows claimant basically performed restaurant work doing waitress work, being a cashier and in some instances worked in a supervisory position. Page 2 Claimant started as a janitor for defendant employer in 1984 at $5.35 per hour. This required scrubbing floors, lifting 100 pounds of doughnut flour mix off the floor, climbing rafters to dust and wash the doors, and moving 200 pound barrels of flour in order to clean behind them. On October 2, 1987, claimant was making $7.85 per hour. She was expecting an increase after Christmas up to approximately $8.35 per hour. Claimant testified she never was involved in an accident nor had any back trouble prior to October 2, 1987. On October 2, 1987, claimant was lifting a pan of frosting that was on the floor. Upon lifting the tray one- half way up, claimant heard a crack and felt a sharp knife- like pain in her lower lumbar area of her back. Claimant described her medical treatment and the pain and problems she was having after the October 2, 1987 injury. Claimant said she could not water ski, ride a bicycle, jog, golf or bowl since the injury, for the most part. Claimant contends she has tried. Her parents owned a bowling alley and the mother is apparently operating it due to claimant's father's death October 17, 1987. Claimant said she has lived off inheritance from her father's estate since her injury. Claimant related the many places she looked for work. She indicated she disclosed her back injury. On October 20, 1989, claimant took a job with Cashway Foods as she was running out of money. Claimant quit this job in January or February 1990, as she contends she could no longer endure it. She said it was a part-time job twenty hours per week. Claimant described another job where she tried driving a van but quit after one day due to the aggravation of her injury of October 2, 1987. Recently, claimant worked for Wells Fargo Security on a very limited basis. Claimant related she did go back to work with defendant employer in September 1988, and worked two hours. Claimant indicated that after two hours, she was unable to do the work which involved lifting trays, bending, etc. Claimant said she could not endure the work and went home. Claimant said nothing else was ever offered to her by defendant employer. In 1990, claimant said someone referred her to William R. Boulden, M.D., as she was not getting any help or relief from the other doctors. Dr. Boulden sent her through a different exercise and treatment program. Claimant acknowledged there was strife, worry and stress as administrator of her father's estate and her involvement in selling some assets in her father's estate. She said being an administrator is a difficult task. Claimant said she sold her father's boat as an estate asset in May 1988, and did not help move it, but two men actually did the moving. Claimant insisted she couldn't do any Page 3 lifting or bending at that time. Claimant acknowledged K. B. Washburn, M.D., released her on June 8, 1988, to 40 pounds lifting and 30 pounds pulling (Joint Exhibit 2-D). Claimant said she was not able to lift those limits. It appears claimant wanted to go back to work and these limits were attempted to see if claimant could work again at the bakery. Claimant returned to the bakery and worked two hours and left. Claimant was asked about the vocational rehabilitation counselor's report in which the claimant indicated to him that she was fearful of reinjury in doing exercises. Claimant contends she didn't say she was afraid of a reinjury. She emphasized she wanted to do the exercises (Jt. Ex. J-4(H). Claimant's earnings in 1986 and 1987 were approximately $12,000 each year and in 1988, 1989 and 1990, claimant's income was between $247 and approximately $787 per year except in 1990, claimant received an additional $1,850 as the administrator fee of her father's estate. Claimant was asked about the Iowa Spine Clinic report on January 30, 1989 (Jt. Ex. J-4(I) in which the doctor commented that claimant's back is "solid, stable and healed and certainly does not present of a surgical problem at this time." Claimant disagreed with this conclusion. In the same exhibit, claimant was given a 3 percent impairment and the doctor said claimant's healing period ended on March 27, 1989. It was recommended in this January 30, 1989 letter that claimant go to a low back rehabilitation program at the University of Iowa. Claimant was referred to joint exhibit J-4(L), a report dated March 28, 1989, which sets out her restrictions which basically were a 45 pound one time lifting limit or not to be done more than four times per hour and a 22 to 24 pound repetitive lifting limit. The doctor implied that those restrictions were current and could be improved with continued activity and exercise and the doctor set out specific recommendations for her to follow. Claimant broke her right foot on May 15, 1989, while cleaning out her father's mobile home that was left as an asset in the estate. This does not appear to have had any effect on claimant's condition that is at issue in this decision and the undersigned so finds. Claimant disagrees with joint exhibit J-4(P), a June 29, 1989, letter where Ernest M. Found, Jr., M.D., and the rehabilitation director, Ted Wernimont, M.S.W., indicated how well claimant was getting along and is playing golf a great deal of the time even though she broke her foot several months ago. Claimant again disagrees with this report and said it isn't true. She indicated she wasn't playing golf, or at least that much. The undersigned noted claimant seems to consistently disagree with the medical reports. It appears to the undersigned the University of Iowa is in a very non-biased position and has no reason to mistake the facts or mistake the medical opinions they make. Page 4 Claimant began working at Cashway Foods stocking shelves on October 29, 1989, at $4.00 per hour (Def. Ex. 19, Interrogatory No. 19). Claimant saw Martin S. Rosenfeld, D.O., on November 7, 1989 (Jt. Ex. J-5). Defendants' questioning infers that claimant received another injury other than the October 2, 1987, which caused her to see the doctor. The doctor opined that claimant's chronic lumbar facet syndrome was caused by claimant's October 1987 injury. The doctor further opined that claimant had a 5 percent impairment to her body as a whole using the Orthopedic Academy Guidelines for a permanent physical impairment rating. Claimant acknowledged she went to a chiropractor in February 1990 (Jt. Ex. J-7). Claimant contends she didn't go back to the Iowa City hospital because she didn't agree with that doctor's analysis. Claimant went to see Dr. Boulden on April 5, 1990. He recommended a good conservative program and put her into a work hardening program (Jt. Ex. J-6(A). The doctor's impression was mechanical back pain secondary to degenerative disk disease. On July 17, 1990, Dr. Boulden opined claimant sustained a 7 percent disability of her back based upon the The AMA Guides (2d ed.). The undersigned believes the doctor means impairment instead of disability. The doctor further indicated that he felt claimant can still return back to gainful employment, maybe not the exact job that she was doing before. He also indicated claimant's specific limitations were "no activities that include repetitive bending, twisting and lifting with the back, no prolonged sitting for more than 45 minutes to an hour, without being able to change her position." Claimant said her answers to Interrogatory No. 21 (Def. Ex. C) show the places she looked for work as of January 1990. Defendants' Exhibit D, page 16, indicates claimant was not looking for work in January 1991. Claimant contends she was always willing to go back to work. Claimant was dropped from a JTPA program but does not know when or why. She did relate she had to go to California in connection with her father's estate. Claimant left the state on May 3 to May 24, 1989, to visit her sister (Jt. Ex. G-12). The undersigned cannot tell if this was the same trip involving her father's estate. Claimant broke her foot on April 15, 1989, while cleaning out a mobile home left in her father's estate. It appears she was still healing from this as of May 18 to May 25, 1989. Claimant also was planning on going to college in the fall (Jt. Ex. G-12). Claimant testified in her deposition, on page 48 (Def. Ex. D), that she was smart enough to go to college but at the hearing she said she was not smart enough. Bertha Miller, claimant's mother, testified she operates a bowling alley. She said claimant bowled and golfed once every two weeks and golfed often during the summer. Her bowling alley is closed during the summer months. She said that since the October 1987 injury, Page 5 claimant has not been able to bowl or play golf. She said claimant takes care of her son, claimant's brother who is mentally retarded, on the weekends. Ms. Miller's testimony did not add much to these proceedings or it is cumulative and will not be set out in any more detail herein. It appears surgical intervention was not called for (Jt. Ex. J-4(I). Dr. Washburn, on September 30, 1988, wrote a report apparently addressing the question among other things as to whether claimant suffered a new back injury in 1988 when she went back to her job with defendant employer and contends she was made to do things in excess of her prescribed limitations. The doctor indicated no new injury and it appears he felt at most there was an aggravation of the October 1987 injury (Jt. Ex. J-2(F). The undersigned finds claimant did not incur any new injury. Claimant appears to be somewhat self-limiting in her approach to this injury and treatment. She has some ideas that do not make her an easy rehabilitation case. This is reported by the clinic psychologist at the University of Iowa on January 19, 1989 (Jt. Ex. J-4(D). Claimant seems to exhibit a fear of reinjury. Dr. Found, assistant professor at the University of Iowa Department of Orthopedic Surgery, and Ted Wernimont, rehabilitation director, assessed claimant on January 30, 1989. In addition to indicating claimant's back was solid, stable and healed, as previously mentioned, they also addressed claimant's fears (Jt. Ex. J-4(I). Joint exhibit J-4(L), dated March 20, 1989, signed by Dr. Found and Mr. Wernimont, set out claimant's current lifting limit at 45 pounds one time lifting or not to be done more than four times per hour. They also indicate that claimant's repetitive lifting limit would be approximately 22 to 24 pounds. In the same letter, they opined a 3 percent permanent partial impairment to claimant's body as a whole and indicated her healing period ended on March 27, 1989. It appears claimant's restrictions provided by the University of Iowa as of October 3, 1989, were still similar to the restrictions of March 1989 (Jt. Ex. J-4(S). Mr. Wernimont indicated in said letter that claimant continues to do very well and is in school full time working toward a degree in the area of medical technician. He also emphasized that she needed to seriously consider getting back to her regular cardiovascular training conditioning. On November 7, 1989, Dr. Rosenfeld opined claimant had a 5 percent permanent impairment to her body as a whole (Jt. Ex. J-5). He opined claimant had a chronic lumbar facet syndrome secondary to the October 1987 injury. Defendants' exhibit I indicates that defendant employer on February 11, 1988, had no production duties that would not involve some form of lifting, bending or twisting. The president of the company at that time indicated that all of the jobs are filled and that they are not financially able to create a special job for claimant. He also emphasized in this letter that defendants felt that they would be risking further injury to the claimant if she would become employed Page 6 while in her condition. The parties agree that claimant incurred an injury that arose out of and in the course of her employment and that there is causal connection to some temporary and permanent disability. Claimant contends that her healing period is October 3, 1987 to July 17, 1990, while defendants contend that it began October 3, 1987 through March 27, 1989, which is the date referred to in Dr. Found's letter (Jt. Ex. J- 4(L). The undersigned finds that the greater weight of medical testimony would indicate that claimant reached maximum healing for the purposes of the law on March 27, 1989, as opined by Dr. Found. Although it is true that claimant had further rehabilitation or work hardening after having seen Dr. Boulden in 1990, it appears that claimant was out of condition and these reconditioning programs helped her to condition her body in general. It also appears that she let this go for awhile and it was suggested that she keep her body in condition. The undersigned believes the University of Iowa doctor, who is a specialist and expert in his field, is in the better position to determine claimant's impairment and healing period under the circumstances found herein. Although there are comments throughout the record as to claimant's motivation that seems favorable to her, it also appears that claimant's attention was devoted to the handling and settling of her father's estate and this took considerable time and placed considerable worry and stress upon her. The greater weight of evidence indicates that claimant is not able to return to the type of work and the nature of the work she was doing at the time of her October 2, 1987 injury. Claimant would be making approximately $8 per hour if she was still working for defendant employer, and it appears any job she now has been able to obtain would be in the $4 range. There is a question as to the extent of claimant trying to get better work, particularly with her father's estate keeping her busy. The fact is she must get different employment than she had at the time of her October 1987 injury, and there is no reason she would not have been able to continue doing the work and the lifting she was doing in October 1987 had it not been for that injury. There is no evidence that the restrictions (Jt. Ex. J- 4(L) have been lifted. It appears claimant has a permanent impairment to her body as a whole ranging from 3 percent to 7 percent depending on the particular doctor involved. There is no indication that defendant employer is willing to take claimant back. The only evidence concerning defendant employer in relation to claimant's job is defendants' exhibit I, dated February 11, 1988, at which time the employer made it clear that there are no jobs for claimant. They are also fearful that she may risk further injury. Of course, this would be the same fear a new employer would have in hiring claimant. Defendant employer knows claimant well and if they are unwilling to hire claimant, than how greater a fear on another employer that Page 7 does not know claimant's background as well. Which one of her potential employers would be willing to take the risk that defendant employer does not want to take. It appears claimant was encouraged to continue on with schooling. It appears that this has been interrupted. Claimant is 38 years of age and did not graduate from high school but did obtain a GED. Taking into consideration claimant's age, pre and post- work history, medical history, permanent impairment to her body as a whole, education, motivation, permanent lifting restrictions and functional limitations, pre-injury earnings and post-injury earning potential, the undersigned finds claimant has a substantial loss of earning capacity and claimant has incurred a 45 percent industrial disability. Claimant seeks payment for certain medical bills set out on joint exhibit 9 which arise as an 85.27 issue. The undersigned finds that Dr. Boulden and the Des Moines Bone & Joint, P.C., were not authorized doctors. Claimant had the right to see these doctors at her own expense. It appears that claimant disagreed with the University of Iowa Diagnostic Spine Clinic and its conclusions. This does not automatically give her the right to seek other doctors at defendant employer's expense. There is no 85.39 application filed herein. The undersigned finds that Dr. Boulden's bills in the amount of $185 and $52 and the Des Moines Bone & Joint bill in the amount of $185 are to be paid by the claimant. The other bills in joint exhibit 9 should be paid by defendants. The undersigned finds that the pharmacy bill was for prescriptions to help claimant's medical problems as a result of the October 2, 1987 injury. The Manual Therapy Center, which was prescribed by Dr. Boulden, did in fact help claimant and the undersigned finds that that bill should be paid as it was necessary and causally connected to her October 2, 1987 injury. Claimant seeks 85.13(4) penalty benefits. It appears defendants paid 15 weeks of permanent partial disability benefits based on a 3 percent impairment. Although this is a close issue in part, the undersigned finds that the total facts in this case show there was not an unreasonable delay in the commencement or termination of benefits. It appears that one of the big contentions of the claimant is that defendants paid healing period only through March 27, 1989, and claimant contends that it should be for another one and one-half years and, therefore, there would be penalty benefits on those payments claimant feels should have been paid. The undersigned finds that defendants did pay the healing period through the period in which they should have paid them. The undersigned might note that defendants have made a conclusion similar to conclusions made by insurance carriers in other cases by taking the permanent impairment and multiplying it against 500 weeks. Although this is an easy mathematical procedure, the determination of industrial disability is not a mathematical or calculating type procedure, but is an evaluation and defendants do put themselves at risk when the facts of a case are such that it Page 8 could very well be obvious that impairment has no relation to the industrial disability and that other important factors such as restrictions, etc., are not considered. Impairment is but one criterion in determining industrial disability. As indicated above, it was a close call as to whether to order 86.13(4) penalty benefits, but the undersigned finds claimant is not entitled to penalty benefits. conclusions of law 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 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 Page 9 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). Iowa Code section 85.27 provides, in part: For purposes of this section, the employer is obliged to furnish reasonable services and supplies to treat an injured employee, and has the right to choose the care. The treatment must be offered promptly and be reasonably suited to treat the injury without undue inconvenience to the employee. If the employee has reason to be dissatisfied with the care offered, the employee should communicate the basis of such dissatisfaction to the employer, in writing if requested, following which the employer and the employee may agree to alternate care reasonably suited to treat the injury. If the employer and employee cannot agree on such alternate care, the commissioner may, upon application and reasonable proofs of the 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. Iowa Code section 86.13 provides, in part: If a delay in commencement or termination of benefits occurs without reasonable or probable cause or excuse, the industrial commissioner shall award benefits in addition to those benefits payable under this chapter, or chapter 85, 85A, or 85B, up to fifty percent of the amount of benefits that were unreasonably delayed or denied. It is further concluded that: Claimant incurred an injury on October 2, 1987, that arose out of and in the course of her employment and said injury caused claimant to incur an industrial disability of 45 percent. Claimant's October 2, 1987 work injury caused claimant to incur a permanent impairment and permanent lifting restrictions of 45 pounds one time lifting or not to be done more than four times per hour, and a repetitive lifting limit of approximately 22 to 24 pounds. Claimant's October 2, 1987 injury caused claimant to incur a healing period beginning October 3, 1987 through March 27, 1989, totaling 77 weeks. Claimant has a substantial loss of earnings as a result of her October 2, 1987 injury. Because of claimant's October 2, 1987 injury, she is unable to return to the same or similar type of work she was Page 10 doing at the time of said injury and is unable to do the extent of lifting, twisting and bending she was able to do prior to her October 1987 injury. Defendants are not responsible for the Des Moines Bone & Joint, P.C., bill in the amount of $185 or Dr. Boulden's bills totaling $237. Defendants are responsible for all other bills set out in joint exhibit J-9. Claimant is not entitled to any 86.13(4) penalty benefits. order THEREFORE, it is ordered: That defendants shall pay unto claimant healing period benefits at the rate of one hundred ninety-three and 07/100 dollars ($193.07) per week beginning October 3, 1987 through March 27, 1989. That defendants shall pay unto claimant two hundred twenty-five (225) weeks of permanent partial disability benefits at the rate of one hundred ninety-three and 07/100 dollars ($193.07) per week beginning March 28, 1989. That defendants shall pay accrued weekly benefits in a lump sum and receive credit against the award for weekly benefits previously paid. Claimant has already been paid all healing period benefits. As stipulated by the parties, claimant has been paid fifteen (15) weeks of permanent partial disability benefits. That defendants are responsible for all those bills on joint exhibit J-9 except for the Des Moines Bone & Joint bill in the amount of one hundred eighty-five dollars ($185.00) and Dr. Boulden's bills in the total amount of two hundred thirty-seven dollars ($237.00). Therefore, defendants shall pay three hundred seventy-one and 19/100 dollars ($371.19) which is the total of remaining bills that defendants are ordered to pay involving joint exhibit J-9. That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall pay the costs of this action, pursuant to rule 343 IAC 4.33. That defendants shall file an activity report upon payment of this award as required by this agency, pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of October, 1991. ______________________________ BERNARD J. O'MALLEY Page 11 DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Randall E Nielsen Attorney at Law 800 Brick & Tile Bldg P O Box 1588 Mason City IA 50401 Mr J Richard Johnson Attorney at Law 1715 First Ave SE P O Box 607 Cedar Rapids IA 52406 1802; 1803; 1807; 5-2503; 4000 Filed October 25, 1991 Bernard J. O'Malley before the iowa industrial commissioner ____________________________________________________________ : SANDRA K. SMITH, : : Claimant, : : vs. : : File No. 864638 CLEAR LAKE BAKERY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : TRANSAMERICA INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1803; 1807 Thirty-eight year old claimant awarded 45% industrial disability. Claimant had a 36% loss of income, restrictions preventing her from doing her former work. The employer had no job for her. They were afraid she may get reinjured. 5-2503 Claimant awarded some 85.27 benefits and denied payment of other bills. 1802 Claimant was not awarded requested one and one-half years additional healing period benefits but was awarded 77 weeks which defendants had already paid. 4000 Claimant was not awarded any 86.13(4) penalty benefits in a close call situation.