Page 1 before the iowa industrial commissioner ____________________________________________________________ : JAMES S. DESPARD, : : Claimant, : : vs. : : File No. 864763 JEFFERSON BUS LINES, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : UTICA NATIONAL INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ This is a proceeding in arbitration brought by James S. Despard, (claimant) commenced with the filing of a petition on September 1, 1988 against Jefferson Lines, Inc. (Jefferson Lines) employer and Utica National Insurance Company (Utica) insurer, (collectively defendants) for worker's compensation benefits as a result of an alleged injury to claimant's back occurring on August 20, 1987. On October 30, 1990, the matter came on for hearing in the Webster County courthouse in Fort Dodge, Iowa. The parties appeared as follows: the claimant in person and by his counsel M. Gene Blackburn of Fort Dodge, Iowa(1) and Jefferson Lines and Utica by their counsel Jerry C. Estes of Fort Dodge, Iowa. The record in this proceeding consisted of the following: 1. The live testimony of the Claimant, and the testimony of Mary Despard. 2. Claimant's exhibits 1-4 and defendants' exhibits A-E. At the close of all evidence, the case was deemed fully submitted. ISSUES Pursuant to the amended prehearing report submitted by the parties and approved at the hearing, the following issues are presented for resolution: 1. Whether the injury suffered on August 20, 1987 arose out of and in the course of employment. 2. Whether the alleged injury is a cause of temporary (1) While this case was awaiting decision, Mr. Blackburn died on December 8, 1990. Page 2 disability or a permanent disability. 3. The extent of entitlement to weekly compensation for temporary total disability benefits or healing period benefits and permanent disability. 4. Entitlement to medical benefits under Iowa Code section 85.27 (1989) and whether the medical expenses are causally related to the work injury or to the medical condition upon which claimant bases his claim. 5. The taxation of the acutal costs of this action. STIPULATIONS As part of the prehearing report the parties have stipulated to the following: That an employer-employee relationship existed between claimant and employer at the time of the alleged injury. That the type of permanent disability, if the injury is found 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 January 20, 1988. That the rate of compensation, in the event of an award, is $308.70 per week, based upon a gross wage of $492.63 per week and three exemptions. That the fees charged for medical services are fair and reasonable and that they were incurred for reasonable and necessary medical treatment. That the causal connection of the expenses to treatment for a medical condition upon which claimant is now basing his claim is admitted, but the causal connection of this condition to a work injury remains an issue to be decided in these proceedings. That defendants make no claim for credit for employee nonoccupational group health plan benefits or workers' compensation benefits paid to claimant prior to hearing. That the provider of medical services would testify that the fees charged were reasonable and defendant is not offering contrary evidence. That defendants are entitled to a credit in the amount of six weeks and 5 days at the rate of $308.70 plus $287.14 temporary partial disability paid for one week for all prior workers' compensation benefits paid to claimant for his back injury. That there are no bifurcated claims. FINDINGS OF FACT Page 3 After considering all of the evidence and the arguments of counsel, the undersigned makes the following findings of fact and conclusions of law. 1. Claimant was 53 at the time of the hearing. He was 50 at the time of the alleged injury date on August 20, 1987. 2. Claimant grew up in Manson, Iowa. He graduated from high school in 1955. He served in the Marine Corps for 3 years after he graduated from high school. Upon discharge from the service, claimant held a variety of jobs. These included a sales job, various positions including a supervisory position with United Parcel Post, and a delivery and repair job for Consolidated Cooperative in Gowrie Iowa. Claimant had his own trenching, plumbing and heating business between 1979 and 1981. In 1981, claimant sold his business and became a full time bus driver for Northwest Iowa Bus Lines. 3. In 1983, claimant became a reserve disaster assistant with the Federal Emergency Management Administration (FEMA) and continues in that capacity to date. Claimant was employed on an on call basis as an adjuster. He travels to the location of a federally declared disaster area and gives assistance to disaster victims. Between 1983 and 1986 claimant worked 7 disasters. The time commitment varied with the severity of the disaster. For example, claimant's first disaster required him to reside in St. Joseph, Missouri for 30 days. During 1988, claimant was called to assist with disasters in the South Pacific. On those occasions, claimant was out of the country for approximately three to six weeks at a time. During 1989, claimant was called in to assist with the aftermath of Hurricane Hugo and remained in the Southeastern part of the U.S. from September 1989 through February 1990. During the remaining part of 1990 until the time of the hearing on this matter, claimant assisted with disasters in Kansas City, Des Moines and Cedar Rapids. This position with FEMA pays $14.00 per hour without benefits. Claimant is not called for every disaster and has the option to turn down work if he is called. When Claimant is called to work on a disaster, he generally works 12 hours per day, seven days per week until the initial crisis has passed. Thereafter, claimant does paperwork and other desk related type duties until FEMA closes its office at the disaster site. Claimant expects to earn $29,200 from his work with FEMA in 1990. Claimant enjoys his work with FEMA and has purposefully made his work schedule flexible enough to accommodate calls from FEMA. 3. Claimant accepted a bus driver position with Jefferson Lines in late spring 1986. Before he could start driving for Jefferson Lines he was required to pass a physical. On June 16, 1986, claimant had a complete physical which included a drug screen, blood work and a treadmill test. David Temple, M.D., examined claimant and reviewed the test results. Claimant was found to be a relatively healthy middle aged man with a supple neck and a spine that moved well without deformity. Claimant gave a Page 4 history of being a smoker for 25 years at the rate of a pack and a half per day. He had a tonsillectomy in 1957. He had no drug allergies. He reported that he had no other hospitalizations except for an occasion where he broke both his arms. Claimant told Dr. Temple that he had no other serious illness. Among other things, Claimant also denied any history of headaches. 4. In the history given to Dr. Temple, Claimant failed to mention an acute lumbo-sacral strain to his low back on May 14, 1971, an injury to his left shoulder in 1971, a vasectomy for sterilization in 1977, a continuing problem with his cervical and upper thoracic area which required a home traction program in 1977 to deal with occasional headaches, discomfort in the upper trapezius, and some bilateral numbness of the upper extremities, and continuing treatment through 1987, with Vaughn L. Maly, D.C.. Claimant also had intermittent back pain resulting from work soreness and had adjustments to his back numerous times between 1977 and 1986. On January 8, 1982 claimant injured his back while lifting. He saw Dr. Maly for treatment. Dr. Maly indicated that claimant had injured a lumbar disc. Claimant's failure to mention this history diminishes his credibility. 5. On August 20, 1987, claimant was directed by his employer to drive to Newton, Iowa to pick up a tour group for a trip to New York City. Claimant's job duties required him to keep the bus clean, assist passengers on and off the bus, and load and unload luggage. Claimant's rate of pay at the time of this trip was $10.50 plus overtime and benefits. No value was given for the benefit package offered by Jefferson Lines. While claimant was loading luggage, in Newton, claimant felt a twinge and pain in his back. The pain became worse as the trip progressed. However, claimant did not seek medical treatment in New York and did not contact Jefferson Lines to report his distress until some time after the incident. Claimant did not request a backup driver and drove the tour group back to Iowa arriving before September 5, 1987. 6. On September 5, 1987, claimant sought treatment for his low back pain from the lifting incident with Dr. Vaughn Maly. Dr. Maly indicated that claimant reported that he had injured his back while lifting suitcases. He noted that claimant had cervical pain and lower back pain. After several visits, the low back pain had not resolved itself. Dr. Maly recommended that claimant consult with Dr. Hayne 7. Claimant was examined by Dr. Temple on October 20, 1987. During that examination, Dr. Temple found that Claimant had full range of motion in his back with lateral bending, twisting, flexing and hyperextension. Straight leg raising was negative bilaterally. Dr. Temple concluded that claimant had suffered a significant back injury, but had fully recovered by October 20, 1987 and released him to go back to work with no restrictions. Dr. Temple suggested that claimant be careful of his back because he was at risk for reinjury. Page 5 8. Claimant returned to work on or about October 27, 1987, but his pain did not abate. He next consulted with Robert A. Hayne, M.D., regarding his back pain. After a series of studies on his spine and review of an earlier CT scan, Dr. Hayne concluded that these tests were relatively negative and prescribed conservative measures including a brace to be worn while claimant was at work.(2) Claimant was released to work with no restrictions on November 29, 1987. 9. On December 12, 1987, claimant reported another injury to his back while lifting suitcases in Chicago. Claimant was off work commencing on December 16, 1987. He also indicated he could not wear the brace that had been prescribed for him because it cut into his lower abdomen. Dr. Hayne scheduled another CAT scan to check for a ruptured disc. 10. On January 6, 1988 a second CAT scan was performed. The scan showed mild generalized bulging of the L4-5 disc with minimal effacement of the thecal sac anteriorly on the left. There was some posterior bulging of the L5-S1 disc but with mild compression and effacement of the thecal sac. When Dr. Hayne compared this scan to the scan of November 23, 1987, he concluded there was no change and there was no definite evidence of a protruded intervertebral disc. 11. On January 22, 1988, claimant called Dr. Hayne's office to advise that he was going off to a government job. Dr. Hayne's office notes indicate that claimant was to stay off bus work for six weeks. 12. Claimant left for Guam and suffered no ill effects from two long plane rides and the requirements of his duties on Guam while working for FEMA. Claimant returned from Guam and was released to return to work with Jefferson Lines on March 7, 1988. 13. On May 6, 1988, Dr. Hayne gave claimant a two percent (2%) functional impairment rating based upon symptomatology. Dr. Hayne attached his office notes to the letter which gives this rating. However, Dr. Hayne makes no conclusion that the permanency rating is linked to the work injury. 14. Sometime shortly after claimant returned to work, FEMA called again and asked claimant to assist with a disaster on the Island of Truk, a state in the Federated States of Micronesia, located in the South Pacific. Claimant took a leave of absence from his employment with Jefferson Lines to take this assignment. 15. Claimant returned from his duties in the South Pacific near the end of May, 1988. Claimant had his annual physical for Jefferson Lines on June 16, 1988. During the course of the examination, claimant told Dr. Temple that he had intermittent back distress but his back was overall better. Claimant's x-rays indicated that the soft tissues and bony structures were normal and the spine was straight. (2) On November 9, 1987 Claimant had a CT scan of his spine that was negative. Claimant was admitted to Iowa Methodist Medical Center for a lumbar myelogram to rule out a herniated disc. The result of the myelogram showed minimal bulging of the L4-5 disc on a lateral view but no significant nerve root deviation or abnormality was demonstrated. An enhanced CT scan was performed after the myelogram that showed mild generalized bulging of the disc material, slightly greater on the left than on the right. There was minimal evidence of impression n the ventral aspect of the thecal sac. At L5-S1 there was small midline posterior disc bulge seen, but again there was minimal impression on the ventral aspect of the thecal sac. Page 6 In comparing this film with film taken in 1986, Dr. Temple noted there had been no appreciable change. Dr. Temple further noted that while the movement in claimant's spine was fair, he could move from a lying to sitting to standing position without any difficulties. Claimant was also able to hop on one foot without difficulty. Dr. Temple gave no functional permanency rating to claimant and released claimant for work with no restrictions. 16. Sometime after June 16, 1988, claimant voluntarily terminated his position with Jefferson Lines to accept another assignment with FEMA. 17. The testimony regarding claimant's other activities for the remainder of 1988 is confused. After claimant left his employment with Jefferson Lines and between FEMA assignments, claimant drove a pickup truck hauling a flatbed trailer loaded with fiberglass bodies for Larry Hiser, a farmer located in Manson, Iowa. Claimant made at least one trip to Texas and tolerated that trip well. Claimant took this job because he had an agreement with Hiser that would enable him to leave this employment and return to it should FEMA call with other assignments. 18. On December 19, 1988, claimant returned to Dr. Hayne complaining of back pain. Claimant told Dr. Hayne that he had to quit his job with Jefferson Lines. Claimant also reported that he had taken a job delivering fiberglass bodies and, "this requires him to be bounced about considerably". The information given to Dr. Hayne was incomplete. Claimant was not compelled to leave his employment with Jefferson Lines, he voluntarily quit. 19. Dr. Hayne ordered an MRI scan of the lumbar region. This study revealed a small disc protrusion at the L4-5 and at the L5-S1 levels in the midline without significant nerve root or thecal sac encroachment. Dr. Hayne increased claimant's permanent partial disability to six percent of the body as a whole. Dr. Hayne did not indicate that the increase in the claimant's rating was caused by the injury suffered on August 20, 1987. Additionally, Dr. Hayne did not indicate how he reached this rating. No surgery was recommended and claimant had no restrictions. 20. Claimant was examined by Samir R. Wahby, M.D., on May 8, 1989 in connection with his low back pain. Dr. Wahby found that his range of motion was within normal limits with mild pain and discomfort in the lower lumbar region. X-rays of the lumbosacral region revealed mild degenerative changes in the region. Dr. Wahby concluded that claimant had injured his facet joints. Dr. Wahby made no rating and reached no conclusion as to whether the work injury on August 20, 1987 caused the degenerative changes noted on the x-rays or the injury to the facet joints. Dr. Wahby saw the claimant once. 21. At the time of the hearing, claimant indicated that he was still working for FEMA on 1990 disasters in Iowa. He also indicated that he expected to be finished with his current FEMA assignment within the next couple of weeks. Page 7 Claimant had not sought other employment for the period of time between FEMA assignments. 22. The evidence is not clear as to what medical bills remain unpaid to date. The medical bills included in the documentary evidence include the following: Provider Date Balance Dr. Hayne 11-4-87 to 12-19-88 $25.00 Dr. Maly 7-20-89 $18.00 IMMC 1-12-88 $435.20 Ft. Dodge Med. Ctr. 9-87 $78.25 TOTAL: $556.45 CONCLUSIONS OF LAW AND ANALYSIS The first issue for consideration is whether the injury suffered on August 20,1987, arose out of and in the course of employment. Iowa Code sections 85.3(1) and 85.61(6) (1989) govern the resolution of this issue. Section 85.3(1) provides that an employer shall pay compensation to an employee, "for any and all personal injuries sustained by an employee arising out of and in the course of the employment". Section 85.61(6) defines this phrase as: [I]njuries to employees whose services are being performed on, in, or about the premises which are occupied, used, or controlled by the employer, and also injuries to those who are engaged elsewhere in places where their employer's business requires their presence and subjects them to dangers incident to the business. The claimant has the burden of proving by a preponderance of the evidence that the claimant 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, 908 (Iowa 1976); Musselman v. Central Telephone Co., 154 N.W.2d 128, 130 (Iowa 1967). The words "arising out of" have been interpreted to refer to the cause and origin of the injury. McClure v. Union County, 188 N.W.2d 283, 287 (Iowa 1971); Crowe v. DeSoto Consolidated School District, 68 N.W.2d 63, 65 (Iowa 1955). The words "in the course of" refer to the time, place and circumstances of the injury. McClure, 188 N.W.2d at 287; Crowe, 68 N.W.2d at 65. 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 the employee is doing work assigned by the employer or something incidental to the employment. Cedar Rapids Community School District v. Cady, 278 N.W.2d 298, 299 (Iowa 1979), McClure, 188 N.W.2d at 287; Musselman, 154 N.W.2d at 130. The claimant has proved by a preponderance of the evidence that he suffered an injury during the course of his Page 8 employment. The record is uncontroverted that claimant suffered some type of injury to his back on August 20, 1987. Claimant consistently reported that he experienced some pain on August 20, 1987, while lifting a suitcase into the luggage compartment on a Jefferson Lines bus. Claimant's testimony was credible on this point. Defendant's position that the condition was preexisting is not a defense. While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 76 N.W.2d 756, 760-61 (Iowa 1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 115 N.W.2d 812, 815 (Iowa 1962). There is ample evidence in the record that claimant had upper and lower back problems dating back to 1971 and that he sought treatment for these conditions from Dr. Maly over the course of several years. However, those conditions were stable at the time claimant began working for Jefferson Lines. An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 106 N.W.2d 591, 595 (1960), and cases cited therein. In this instance it is not a defense that claimant had preexisting back problems. The employment circumstance caused an injury to claimant's back. This finding, does not end our inquiry however. 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., 133 N.W.2d 867, 868 (Iowa 1965); Lindahl v. L. O. Boggs, 18 N.W.2d 607, 613-14 (Iowa 1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa 1955). The Supreme Court has long observed that an injury is the producing cause. The disability, which generally determines the extent of compensation payments, is the result of the cause (injury) upon the human body as it bears upon the ability of the injured person to earn wages. Barton v. Nevada Poultry Co., 110 N.W.2d 660, 663 (Iowa 1961). In order to resolve the second issue, the claimant must show that the injury suffered on August 20, 1987 resulted in a temporary or permanent disability. The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 73 N.W.2d at 738. The opinion of the experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974). Moreover, the expert opinion may be accepted or rejected, in whole or in part, by the trier of Page 9 fact. Sondag, 220 N.W.2d at 907. Finally, 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 material circumstances. Bodish, 133 N.W.2d at 870; Musselman, 154 N.W.2d at 133. The Supreme Court has also observed that greater deference is ordinarily accorded expert testimony where the opinion necessarily rests on medical expertise. Sondag, 220 N.W.2d at 907 The claimant has proven that he was temporarily disabled as a result of his back injury. He has failed to prove that he sustained a permanent injury to his back. The evidence clearly shows that claimant was off work due to his back between September 5, 1987 and October 20, 1987, October 27, 1987 to November 29, 1987, and December 16, 1987 to January 22, 1988 when he accepted a FEMA assignment in Guam. The evidence also demonstrates that claimant was capable of resuming all of his duties in connection with his employment with FEMA and he was equally capable of resuming his duties with Jefferson Bus Lines when he returned from Guam. Claimant simply chose not to do so as he voluntarily terminated his position with Jefferson Bus Lines to increase his availability for FEMA assignments. Moreover, claimant was released for work with no restrictions and claimant had no loss of earning capacity. Claimant demonstrated his ability to resume his driving responsibilities when he drove loads for Larry Hiser to Texas. This evidence, when coupled with the dearth of medical evidence linking claimant's work injury to the permanency ratings given by Dr. Hayne either in May of 1988 or February of 1989, shows that claimant has failed in his proof. Nor is the authority cited by claimant of any assistance. In both cases cited, the medical evidence firmly established that the work injury caused a permanent disability. Brincks v. Case Power & Equipment, File No. 843233, slip op. at 4 (Iowa Ind. Comm'r Nov. 20, 1989)(The medical evidence in the case showed that claimant had a spondylolisthesis and that the work injury either caused or aggravated the condition), aff'd, (Iowa Ind. Comm'r App. Dec. April 18, 1990); Caruth v. Tenneco/Case Power & Equipment Co., File No. 793512, slip op. at 4 (Iowa Ind. Comm'r March 29, 1988)(Dr. Boulden concluded that there was a definite relationship between the work injury and the claimant's present symptoms and complaints), aff'd, (Iowa Ind. Comm'r App. Dec. October 31, 1988). There is no such evidence here. Pursuant to Iowa Code sections 85.32 and 85.33 (1989) an injured worker is entitled to such temporary disability benefits from the date of injury until claimant returns to work or until claimant is medically capable of returning to substantially similar work the claimant was performing at the time of the injury, whichever occurs first. However, maximum medical improvement, one of the tests for ending a healing period, is not a test for determining the end of temporary total disability. In this case, Claimant returned to work at another job on January 22, 1988. At that point, Page 10 his temporary benefits came to an end. Claimant is therefore entitled to 17.142 weeks of temporary total disability benefits. The next issue in dispute involves the claimant's entitlement to medical benefits and whether the medical expenses are causally related to the work injury. Iowa Code section 85.27 governs the payment of medical benefits. From the evidence presented it appears that claimant is seeking payment for bills from Dr. Hayne, Iowa Methodist Medical Center (IMMC), Dr. Maly and Fort Dodge Medical Center. The bills attached to claimant's exhibits 2, 3, and 4 show the following amounts due: Provider Date Balance Dr. Hayne 11-4-87 to 12-19-88 $25.00 Dr. Maly 7-20-89 $18.00 IMMC 1-12-88 $435.20 Ft. Dodge Med. Ctr. 9-87 $78.25 TOTAL: $556.45 Jefferson Lines is liable for the bills related to claiamant's injuries. The undersigned finds that the medical expenses identified above, except for the back adjustment by Dr. Maly on Jul 20, 1989, are casually connected to the work injury and they are related to the work injury upon which claimant bases his claim. The final issue for resolution is the taxation of costs. The assessment of costs is governed by Iowa Code section 86.40 (1989).(3) In Iowa, the general rule is that the losing party shall pay the costs of the action. Iowa Code Section 625.1, (1989); Lalla v. Gilroy, 369 N.W.2d 431, 434, (Iowa 1985); Walters v. Bartel, 254 N.W.2d 321, 323, (Iowa 1977). In this instance, the claimant was successful in showing that he had suffered a temporary disability. Consequently, the costs of this action are taxed to Jefferson Lines and Utica. ORDER THEREFORE, it is ordered: 1. That Jefferson Lines and Utica National Insurance shall pay to claimant seventeen point one hundred and forty-two (17.142) weeks of temporary total disability benefits at the rate of three hundred eight and 70/100 dollars ($308.70). 2. That Jefferson Lines and Utica National Insurance shall pay the accrued weekly benefits in a lump sum with interest at the statutory rate as set forth in Iowa Code section 85.30 (1989). 3. That Jefferson Lines and Utica National Insurance shall pay five hundred thirty-eight and 45/100 dollars ($538.45) in medical benefits. (3) Iowa Code Section 86.40 (1989) provides that all costs incurred in the hearing before e the commissioner shall be taxed in the discretion of the commissioner. The description of such costs is included in 343 IAC 4.33. Page 11 4. That Jefferson Lines and Utica National Insurance shall receive credit against the award for weekly benefits and medical benefits previously paid. 5. That the costs of this action shall be assessed to Jefferson Lines and Utica National Insurance pursuant to Iowa Code section 86.40 and Rule 343 IAC 4.33. 6. Jefferson Lines and Utica National Insurance shall file a claim activity report upon payment of this award. Signed and filed this ____ day of December, 1990. ________________________________ ELIZABETH A. NELSON DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr James S Despard 1206 12th Avenue Manson Iowa 50563 (CERTIFIED & REGULAR MAIL) Mr M Gene Blackburn Attorney at Law 142 N 9th Street PO Box 817 Fort Dodge Iowa 50501 Page 12 Mr Jerry C Estes Attorney at Law 400 Boston Centre PO Box 1314 Fort Dodge Iowa 50501 5-1801 Filed December 28, 1990 ELIZABETH A. NELSON before the iowa industrial commissioner ____________________________________________________________ : JAMES S. DESPARD, : : Claimant, : : vs. : : File No. 864763 JEFFERSON BUS LINES, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : UTICA NATIONAL INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1801 Claimant suffered an injury to his back, but failed to prove permanency. There was no causal connection made between the functional impairment and the work injury. Claimant was awarded 17 weeks of temporary total disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER RALPH H. FLOR, Claimant, File No. 864771 vs. A R B I T R A T I O N ADM CLINTON, IOWA, D E C I S I O N Employer, F I L E D and MAY 29 1990 OLD REPUBLIC INSURANCE CO., INDUSTRIAL SERVICES Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by the claimant, Ralph H. Flor, against his employer, ADM Clinton, Iowa, and its insurance carrier, Old Republic Insurance Company, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained September 30, 1987. This matter came on for hearing before the undersigned deputy industrial commissioner at Davenport, Iowa on April 16, 1990. A first report of injury was filed on October 12, 1987. At hearing, the parties stipulated that claimant has received 132 weeks of benefits at the stipulated rate as of April 14, 1990. The record in this proceeding consists of the testimony of claimant as well as of his spouse, Alene Flor, and of Kenneth C. Plumb and of joint exhibits A through K as identified on the joint exhibit list. ISSUES Pursuant to the prehearing report and the oral stipulation of the parties at hearing, the parties stipulated that: claimant did receive an injury which arose out of and in the course of his employment on September 30, 1987; that a causal relationship exists between claimant's injury and temporary total disability and permanent partial disability; that claimant was temporarily totally disabled from October 1, 1987 through April 10, 1989; that claimant's commencement date for permanency is April 11, 1989; and that claimant's rate of weekly compensation is $370.82. The issue remaining to be decided is the extent of permanent partial disability. REVIEW OF THE EVIDENCE Claimant is 65 years old and has completed eighth grade. He worked for ADM Clinton and its predecessor, Clinton Corn, from September, 1966 onward. Prior to that, he had worked at the Savannah Ordinance Depot, had been in the armed services, and had farmed on both a full and part-time basis. Claimant had done general labor which has also involved machine operation and record keeping at Clinton Corn and ADM. When injured, he was a bulk loader. Claimant reported working 50-60 hours [per week] in the month preceding September 30, 1987. On September 30, 1987, a dust collector hose became disconnected and hit claimant on the left side of the face. Claimant fell over the edge of a railroad car landing on concrete on his left face, elbow and hip. Claimant sustained an open left distal humerus fracture, commuted with interarticular extension, a left orbital fracture, a left facial maxillary sinus fracture, and apparently aggravated his high blood pressure on account of that injury. Claimant underwent open reduction and internal fixation of the distal humerus fracture with Charles T. Cassel, M.D., the attending surgeon. E. V. Motto, M.D., attended claimant for high blood pressure which was brought under control with the use of Diazene. William Barker, M.D., and a Dr. Arbisser saw claimant for his facial fracture and orbital fracture and contusion to the left eye, respectively. Those problems were treated conservatively without drugs or invasive procedures. Claimant subsequently underwent two other surgical procedures on the left upper extremity. He initially had surgery for hardware removal, decompression, and anterior ulnar nerve transfer in summer, 1988 and then had a second surgery for hardware removal. Claimant reported that, on account of the two latter surgeries, four of nine pins originally placed in his left upper extremity were removed. Claimant also underwent physical therapy for his left elbow. Claimant reported that his jaw continues to pop out and he must physically relocate it. Claimant takes one blood pressure medication tablet per day, apparently Diazene. He never needed medical treatment for blood pressure prior to his injury. He has difficulty walking on hard surfaces and standing, walking and sitting for a prolonged time is painful. The fingers on his left hand pull into his palm in a clawing position and go numb; he has to rub them to regain normal movement. He has arm and shoulder pain and he cannot move his arm away from his body, although he can bring the arm in towards his body. Claimant reported that any vibration causes the whole left arm to go numb. Claimant had done carpentry in his own home and occasionally on a contractual basis prior to his injury. He reported that he could no longer do such. Claimant had enjoyed antique buying and refinishing furniture prior to his injury. He now has difficulty doing refinishing. Claimant had golfed, boated, fished, and danced prior to his injury. He reported that he can now dance no more than an hour and that he can fish only if someone helps him with his boat motor. Claimant reported that he cannot lift over ten pounds and that lifting must be from straight in front of his body and not with an extended, outward motion. Claimant has not returned to ADM since his injury. ADM personnel had offered him a forklift job. He told the ADM plant manager and his former foreman that he would be unable to do that job as it involved lifting of over 100 pounds on occasion and machine bouncing. No light-duty work was available. Claimant's employment with ADM was suspended after two years as a result of his inability to work. Claimant then took retirement. Claimant had planned to work until age 68 prior to his injury. Work until that age was necessary in order to recoup retirement benefits lost on account of the Clinton Corn/ADM conversion. Claimant would have received an additional $20 per month for each additional year worked. His injury resulted in his retirement three years earlier than he had originally planned. Claimant inquired about a variety of jobs subsequent to his.injury, including school bus driver, school janitor, fast food shop maintenance worker, implement store delivery man, set-up person and garden supply center clerk. Claimant felt after his discussions with individuals that he would be unable to handle any of those jobs. He did not actually apply for work or attempt work at any of those establishments. Claimant reported that he had refused a contract to build a home deck as he felt he could not handle the work. Claimant prior to his injury had planned on doing farming and carpentry on a part-time basis subsequent to his retirement. He reported he can no longer handle those jobs. Claimant agreed he had never contacted any ADM personnel about coming back to work subsequent to his injury. Claimant did not feel there were any jobs in the starch plant which he could perform. Claimant has never contacted the Iowa Department of Job Service or Iowa State Vocational Rehabilitation Services regarding a job search or vocational rehabilitation. Claimant is right-hand dominant. He intends to remain retired unless things get so bad off financially that he must return to work. Claimant's current monthly income consists of $640.00 in Social Security retirement benefits from which a Medicare benefit payment is deducted; $120.00 per month in ADM retirement benefits; and, $135.00 per month in Clinton Corn retirement benefits. He also receives his workers' compensation benefits of $370.82 per week. Claimant reported a greater income while working, reporting that a number of weeks his checks stubs reflected earnings of $600.00 per week. Check stubs were not in evidence. Under the July 1, 1987 benefit schedule, a weekly rate of $370.82 for an individual who is married and entitled to two exemptions would reflect a gross weekly wage of $610.00. Claimant's spouse corroborated his testimony. Kenneth Plumb, ADM plant manager, indicated that claimant was offered the forklift job, that claimant demonstrated his lifting ability and motion in his left arm and that claimant felt he would be unable to do the job and refused to try the job. Plumb reported that other jobs were considered for claimant, but such would have involved lifting or ladder climbing. Guard and watch duties at ADM and housekeeping duties at ADM are contracted out. Claimant would have needed to check with the contractors as to availability of those types of jobs. Plumb expressed his belief that claimant could have fulfilled the duties for those jobs. Plumb opined that in September, 1989 claimant did not seem interested in returning to work, did not seem concerned about not having a job, and was not actively seeking employment. Plumb characterized claimant as having been a very good worker who worked long hours in the months prior to his injury. He reported that cleaning off loads is the exception, not the rule, for forklift drivers. On April 11, 1989, Dr. Cassel opined that claimant had severe injury to his left elbow and secondary injuries to his left shoulder. Claimant had ulnar nerve dysfunction with weakness and pain in the arm and loss of motion in both his elbow and his shoulder. Claimant had a 9 percent impairment of the left upper extremity due to loss of motion from negative 30 to 102 degrees with 3 percent of the impairment due to loss of extension and 6 percent due to loss of flexion. Claimant had full pronation, but impairment for loss of supination equal to 2 percent, giving an 11 percent impairment of the left upper extremity secondary to loss of motion to the elbow. Claimant has loss of motion at the shoulder equal to 5 percent impairment of the shoulder for loss of full abduction, 4 percent for loss of full forward flexion, 3 percent for loss of full external rotation, and 1 percent for loss of full internal rotation equalling a total 13 percent impairment of the shoulder for loss of motion. Claimant has weakness of external rotators involving the supraspinatus, infraspinatus, teres minor and major, and suprascapular nerve and lower subscapular nerve involvement with a 30 percent loss of maximum strength as a result of nerve involvement. Gradation of strength was at 20 percent with the 30 percent and the 20 percent equalling a 6 percent impairment for shoulder weakness. Claimant had marked decreased grip strength equalling 50 percent of his normal grip strength. Dr. Cassel opined he had a 25 percent weakness of grip strength in the hand secondary to ulnar nerve dysfunction and a decreased sensation in the ulnar distribution of the hand equal to 2 percent of impairment. Utilizing the combined values chart, Dr. Cassel reported that claimant had a 30 percent impairment of the whole person. Dr. Cassel, in his report of April 11, 1989 and in his deposition of March 13, 1990, opined that claimant could not lift more than 10-15 pounds with his left hand and could not do repetitive lifting or overhead activity with his left upper extremity. The doctor opined claimant could not return to his former job as claimant described the job to the doctor. On April 11, 1989, Dr. Cassel opined that claimant could develop further progression of his pain and stiffness in his shoulder, elbow, hand and wrist. APPLICABLE LAW AND ANALYSIS Our only concern is claimant's permanent partial disability entitlement. 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, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. This is so as impairment and disability are not synonymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial disability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of 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 disability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985). Also to be considered is the following decision of this agency: Although the Iowa Supreme Court has indicated that age is a factor to be considered in determining industrial disability, it does not indicate what the effect of young age, middle age or older age is supposed to be. Obviously, it is a factor that cannot be considered separately but must be considered in conjunction with the other factors. For example, the effects of a minor back injury upon a young person with extensive formal education would limit the scope of his potential employment less than that of a middle-aged person with no formal education. How to apply age as a factor when a person is nearing the end of his normal working life is a dilemma. When considering the age factor, it is apparent that the scope of employment for which claimant is fitted is narrowed simply because of the reluctance of employers to initially employ persons of advanced years. Therefore, the advanced age alone without the combination of an injury is limiting. Lack of education or at least a showing of diminished educability is in and of itself also a limiting factor for entry into many fields of employment . . . The Michigan Supreme Court has stated regarding retirement: Compensation benefits are geared to weekly wage loss. It is consistent with the concept of tying weekly compensation benefits to weekly wage loss to factor into the benefit program the statistically established generalization that workers, even if not disabled, retire between 60 and 75 and no longer earn weekly wages. There is no discrimination against disabled workers over 65 in taking into account the wage loss they would "presumptively" suffer due to normal retirement. Cruz v. Chevrolet Grey Iron Div. of Gen. Motors, 247 N.W.2d 7641 775 (Mich. 1976). Claimant was 62 years old when injured. His testimony that he intended to work until age 68 in order to recoup retirement benefits lost in the ADM/Clinton Corn switch-over is credible. Claimant sustained a moderately severe to severe body as a whole injury on account of his work incident and subsequently retired at age 65. Claimant's employer attempted to find work for claimant within .claimant's restrictions. The employer respected claimant's self-perception that he would be unable to do such work. The employer subsequently terminated claimant under a plant policy requiring termination after a sustained period of inability to work. That termination does not reflect any refusal on the part of the employer to accommodate claimant subsequent to a work injury if such were possible. Claimant has severe limitations on the use of his left hand, arm, and shoulder as a result of his work injury. He has high blood pressure which was not apparent prior to the injury, but which can be controlled medically subsequent to the injury. Claimant is right-hand dominant. While claimant has only an eighth grade education, his testimony was articulate and he appeared to be quite an intelligent individual. He has past work experience as a general laborer as well as on occasion a machine operator and a record keeper. He has also farmed and also apparently has a local reputation for being a good carpenter. Claimant perceives himself as unable to do any of those activities subsequent to his work injury. Claimant may well be correct that his physical injuries make it difficult for him to engage in those activities fully. Nevertheless, we do not share claimant's perception that he is altogether handicapped by his work injury. Claimant's past work experience and his knowledge particularly as a carpenter and to a lesser degree as an antique buyer, furniture refinisher, and farmer certainly have resulted in a great deal of expert knowledge and transferrable skills. It is likely that claimant, with some assistance with the physical aspects of performing each enterprise, could continue to engage in income-generating activities in each of those areas. Claimant does not appear well motivated to work. In part, that may result from claimant's perception that he can no longer work. In part, that may result from claimant's perception that jobs available in the local economy for him are jobs which would generate significantly less income than he was earning at the time of his injury. In part, claimant's lack of motivation may result from the lack of any substantial difference between his income now and his income at the time he was injured. Indeed, we find claimant's testimony that he intends to remain retired unless things get so bad off financially that he must return to work most curious. It appears to reflect a realization that some work is possible for him, although he finds a return to work a less desirable alternative at this point than remaining retired. Given that, we cannot say that claimant's lack of income generation at this time is wholly a result of his work injury. It appears to result from a variety of factors, a number of which are within claimant's control. That fact makes the assessment of claimant's loss of earning capacity more difficult. Nevertheless, we note the claimant has a severe body as a whole impairment; claimant is unable to easily perform physical tasks that he could have performed prior to his injury. On the other hand, claimant has very real transferrable skills by way of his knowledge and skill as a carpenter, farmer, antique buyer, and furniture refinisher. Also, we recognize that claimant's early retirement from ADM has cost him an actual loss in amount of monthly retirement benefits had he been able to work to age 68 as anticipated prior to injury. When all those factors are considered, claimant appears to have sustained an industrial disability of 35 percent of the body as a whole. The parties stipulated that claimant's commencement date for permanency is April 11, 1989. Defendants receive credit for permanency benefits paid on and subsequent to that date. FINDINGS OF FACT WHEREFORE, IT IS FOUND: Claimant received an injury which arose out of and in the course of his employment on September 30, 1987 when claimant fell over the edge of a railroad car landing on the concrete on his left face, elbow and hip. Claimant has a moderate to moderately severe permanent partial impairment of the body as a whole on account of that injury. Claimant is right-hand dominant. Claimant has severe limitations on the use of his left hand, arm, and shoulder on account of that injury. Claimant has high blood pressure which manifested itself after the injury and not prior to the injury. Claimant's high blood pressure can be controlled medically. Claimant continues to have minor problems with his left jaw popping out on account of his work injury. Claimant was 62 years old when injured and was 65 years old at time of hearing. Claimant has completed the eighth:grade. Claimant is articulate and intelligent. Claimant has prior work experience as a general laborer who has also done machine operation and some record keeping. Claimant has prior work skills and knowledge as a carpenter, farmer, antique buyer, and furniture refinisher. Claimant's employment with the employer was suspended after two years as a result of his inability to work. The employer attempted to accommodate claimant by offering him a forklift driver position which claimant declined as beyond his post-injury physical abilities. Claimant likely could generate income with his skills as a carpenter, farmer, antique buyer, or furniture refinisher by utilizing his knowledge and seeking the assistance of another person with the physical tasks involved. Jobs available for claimant now generally are substantially lower paying jobs than that which claimant was performing when injured. Claimant retired three years earlier than he had originally planned on account of his work injury. Claimant's earlier retirement cost him approximately $60 per month in retirement benefits received with a retirement at age 65 as opposed to a retirement at age 68. Claimant has spoken to individuals regarding jobs available, but has not actually applied for jobs and has not sought assistance from Job Service or Iowa State Vocational Rehabilitation regarding returning to work. Claimant is comfortable in his retirement and is not well motivated to return to work or to generate other income. CONCLUSION OF LAW THEREFORE, IT IS CONCLUDED: Claimant is entitled to permanent partial disability resulting from his injury of September 30, 1987 of 35 percent of the body as a whole. ORDER THEREFORE, IT IS ORDERED: Defendants pay claimant permanent partial disability benefits for one hundred seventy-five (175) weeks at the stipulated rate of three hundred seventy and 82/100 dollars ($370.82) per week with benefits to commence on April 11, 1989. Defendants receive credit for benefits previously paid. Defendants pay any accrued amounts in a lump sum and pay interest pursuant to Iowa Code 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 this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 29th day of May, 1990. HELENJEAN WALLESER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Mark A. Tarnow Attorney at Law 1600 Fourth Avenue P.O. Box 4300 Rock Island, Illinois 61204 Mr. Thomas N. Kamp Attorney at Law 600 Davenport Bank Building Davenport, Iowa 52801 1803 Filed May 29, 1990 HELENJEAN WALLESER BEFORE THE IOWA INDUSTRIAL COMMISSIONER RALPH H. FLOR, Claimant, vs. File No. 864771 ADM CLINTON, IOWA, A R B I T R A T I 0 N Employer, D E C I S I 0 N and OLD REPUBLIC INSURANCE CO., Insurance Carrier, Defendants. 1803 Sixty-five-year-old injured worker, who retired at age 65 after sustaining a work injury at age 62 and who had a 30 percent body as a whole disability, awarded 35 percent industrial disability. Claimant did not appear well motivated to work as there was no substantial difference between his retirement income and his pre-injury income. Claimant did lose approximately $60.00 per month in retirement fund benefits that he would have received had he been able to continue working until age 68. Claimant could not return to his former job, but did have work experience which resulted in transferrable skills which he could have used to generate income. Page 1 before the iowa industrial commissioner ____________________________________________________________ _____ : BERTHA WOODRUFF, : : Claimant, : File Nos. 862183/852177 : 864966/923653 vs. : 923654 : SEARS, ROEBUCK & CO., : : A P P E A L Employer, : : D E C I S I O N and : : ALLSTATE INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ _____ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed September 27, 1991 is affirmed and is adopted as the final agency action in this case with the following additional analysis: Claimant has appealed and raises as an issue on appeal the extent of claimant's industrial disability resulting from injuries on January 21, 1988 and August 1, 1989. Defendants did not cross-appeal and other issues that they attempt to raise in their appeal brief will not be considered on appeal. Claimant did not have surgery following her January 21, 1988 injury. It was her recollection that she missed no work and had no physical therapy because of this injury. She has impairment ratings of five and seven percent. When all factors of industrial disability are considered claimant sustained a five percent industrial disability as a result of her January 21, 1988 injury. Claimant did have surgery following her August 1, 1989 injury to her neck. She attempted to return to work with the same employer. Her rate of earnings appear to be the same after the injury as the rate before the injury. Prior to this injury, claimant worked approximately 20 hours a week (See Joint Exhibit Q, #2, page 12 and #3, p. 66). Donald Koontz, M.D., on March 4, 1991, opined that she could work two days a week for four or five hours a day and eventually work back into "full time." Her prior job appears to be within her restrictions. Claimant's inability to perform her prior job would seem to be more the result of Page 2 self-imposed limitations than medical restrictions. When all factors of industrial disability are considered claimant sustained a 16 percent industrial disability as a result of her August 1, 1989 injury. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of March, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Robert E. McKinney Attorney at Law P.O. Box 209 Waukee, Iowa 50263 Mr. Jeff M. Margolin Attorney at Law 2700 Grand Ave., Ste 111 Des Moines, Iowa 50312 5-1800 Filed March 24, 1992 Byron K. Orton PJL before the iowa industrial commissioner ____________________________________________________________ _____ : BERTHA WOODRUFF, : : Claimant, : File Nos. 862183/852177 : 864966/923653 vs. : 923654 : SEARS, ROEBUCK & CO., : : A P P E A L Employer, : : D E C I S I O N and : : ALLSTATE INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ _____ 5-1800 Claimant, in separate accidents, sustained five percent industrial disability to her low back and 16 percent impairment to her neck. The evidence showed that, even though claimant had some restrictions, her job did not require physical activities which fell outside of the limitations. Page 1 before the iowa industrial commissioner ____________________________________________________________ : LINDA KAYE DAWDY, : : Claimant, : : vs. : : File No. 865000 COASTAL BRAND MARKETING, INC. : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CIGNA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Linda Kaye Dawdy as a result of injuries to her upper extremities which allegedly occurred on August 24, 1987. Defendants admitted compensability for the right upper extremity injury and paid weekly benefits and medical expenses. The case was heard and fully submitted at Sioux City, Iowa, on June 17, 1991. The record in the proceeding consists of joint exhibits A through O and testimony from claimant, Jerry Wendt and William Harding. issues The issues presented for determination are as follows: The nature and the extent of permanent disability to the left upper extremity or body as a whole and causal connection. The parties stipulate that claimant sustained 18 percent permanent partial disability to the right upper extremity as a result of the August 24, 1987, injury. Claimant contends entitlement to further disability as a result of left upper extremity injuries. findings of fact Having considered all the evidence received the following findings of fact are made: Claimant, Linda Kaye Dawdy, started work for defendants in January 1987. Her duties were to perform all work associated with a deli. Claimant carried buckets of ice to a pop machine, cleaned, sliced meat and made deli sandwiches. Her position was described as full-time employment. Page 2 On August 24, 1987, claimant sustained a repetitive motion injury to her right upper extremity as a result of work performed for employer. Claimant received medical treatment and lost time as a result of the right upper extremity injury. The parties stipulated as to compensability of this injury and no issues remain to be decided with respect to the right upper extremity. It is noted that a portion of claimant's testimony is at variance with the documentary evidence offered as exhibits A through O. Almost four years have elapsed since the injury occurred and memories are expected to deteriorate. To the extent that claimant's testimony differs from the exhibits offered, said exhibits are given greater weight. Documents created close in time to the events memorialized are inherently more credible than a faded memory. Claimant voluntarily left her job with employer in September 1987 so as to accept a better paying position (exhibit L, page 6). She worked briefly at Dawdy Truck Lines and Econo Lodge Motel and then in April 1988 had surgery for the work-related right upper extremity injury. Soon after the right arm surgery, claimant began experiencing pain in the left upper extremity. Claimant attributed the left arm pain to the immobilization of the right arm after surgery. In other words, claimant was forced to work the left arm harder due to the inability to use the right arm after the April 1988 surgery. Claimant stated at hearing that the left arm pain was caused by activities such as dusting, mowing the lawn, cleaning and lifting pots and pans. All such activities occurred after the surgery was performed on the right arm. In December 1988, the treating surgeon rated her right upper extremity impairment at 18 percent (ex. D, p. 4). Claimant went on to work at several other jobs before having right carpal tunnel surgery in January 1989. At the time of hearing, claimant was unemployed and continues to be plagued with persistent hand and arm pain. The primary issue to be resolved is that of causal connection of the August 24, 1987, injury to the left upper extremity complaints. Duane Nelson, M.D., was unable to make such a nexus while Bernard Kratochvil, M.D., did find a connection (ex. D, p. 5 & ex. J. p, 2). The issue of causal connection is generally one for experts to decide. In this case, it is found that Dr. Nelson's opinion on causation is entitled to greater weight. It follows that claimant has failed to prove that the left upper extremity complaints are causally connected to the August 24, 1987, injury and work performed for employer. Dr. Nelson's opinion on causation of the left upper extremity problems is entitled to greater weight for several Page 3 reasons. First, Dr. Nelson was the treating surgeon who followed claimant's medical treatment over a long period of time. The record presented indicates that Dr. Kratochvil saw claimant on only one occasion and is undoubtedly less familiar with the overall medical history. Furthermore, the history of the onset of left arm complaints supports Dr. Nelson's failure to find causation. The uncontradicted evidence clearly indicates that the left arm symptoms first appeared many months after claimant terminated her employment with employer. Appearance of symptoms subsequent to leaving employer's employ leads to the conclusions that the left arm complaints are related to intervening factors not associated with work performed for employer. The fact that claimant worked her left arm harder after the right arm surgery does not establish a causal connection to work for employer as claimant did not work for employer during the period in question. The resolution of this issue is dispositive of all other issues concerning the left upper extremity complaints. conclusions of law The claimant has the burden of proving by a preponderance of the evidence that the injury of August 24, 1987, is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id., at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Having considered all of the evidence it is found that claimant has failed to prove by a preponderance of the evidence that the left upper extremity complaints are causally connected to work performed for employer. It follows that claimant shall take nothing from this proceeding with respect to the left upper extremity complaints. Claimant is entitled to benefits for the right upper extremity injury as stipulated by the parties in the prehearing report and order approving the same and defendants are entitled to credit for benefits paid. Page 4 order IT IS THEREFORE, ORDERED: That claimant take nothing from this proceeding with respect to the claim for benefits stemming from left upper extremity complaints. That claimant is entitled to benefits as stipulated in the prehearing report and order approving the same. It is further ordered that defendants shall receive credit for benefits previously paid. It is further ordered that all accrued benefits are to be paid in a lump sum. It is further ordered that interest will accrue pursuant to Iowa Code section 85.30. It is further ordered that the costs of this action are assessed against defendants pursuant to rule 343 IAC 4.33. It is further ordered that defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of June, 1991. ______________________________ MARLON D. MORMANN DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Stanley E. Munger Attorney at Law 303 Terra Centre 600 4th Street Sioux City, Iowa 51101 Mr. John G. Fletcher Mr. James H. Gilliam Attorneys at Law STE 1100 Two Ruan Center 601 Locust St. Des Moines, Iowa 50309 Page 1 5-1108 Filed June 26, 1991 Marlon D. Mormann before the iowa industrial commissioner ____________________________________________________________ : LINDA KAYE DAWDY, : : Claimant, : : vs. : : File No. 865000 COASTAL BRAND MARKETING, INC. : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CIGNA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1108 Claimant's left arm complaints found not causally connected to original right arm injury. Treating doctor's opinion on causation accepted as correct as compared to independent evaluation. Page 1 before the iowa industrial commissioner ____________________________________________________________ : GLENDA VRBA, : : Claimant, : : vs. : : File No. 865030 DONALDSON COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE : GROUP, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in arbitration brought by Glenda Vrba against her employer based upon an injury that occurred on September 28, 1987. Claimant seeks compensation for healing period and permanent partial disability. One of the issues is whether a causal connection exists between the injury and any disability which has occurred. findings of fact Having observed the appearance and demeanor of witnesses as they testified and having considered their testimony together with all the other evidence in the record, the following findings of fact are made. Glenda Vrba injured her back on September 28, 1987 while bending over the edge of a waist-high box of parts. Since that time, she has experienced varying degrees of discomfort in her lumbar spine and also, at times, pain in her legs. Vrba has been extensively tested, but the medical practitioners have found no anatomical condition other than partial sacralization of the L5 vertebra (exhibits 5, 6, 13, 14 and 15). Joan M. Kepros, M.D., who treated claimant in late 1987 and early 1988, released her to return to work without restrictions. Dr. Kepros felt that claimant has a chronic pain syndrome (exhibit 7). Anil K. Bouri, M.D., suspected that claimant's leg symptoms were related to the low back injury (exhibit 10). John S. Jacoby, M.D., recommended that claimant be treated for chronic pain. He also recommended that her work assignments be such as to avoid stressful static bending or poor posture and lifting in excess of 25 pounds. He recommended that she work while standing upright and that any lifting be performed in the range of from knuckle to Page 2 chest height (exhibit 16). John W. Hayden, M.D., felt that claimant's current job as a punch press operator is something she should be able to perform without problem, other than for a little muscle tension (exhibit 22). On July 8, 1989, it was reported that claimant's left calf is one and one-half centimeters larger than her right (exhibit 8). Claimant was evaluated by Arnold E. Delbridge, M.D., starting in 1989. He has diagnosed her as having a thoracolumbar strain/sprain with continued residual pain and flare-ups. Dr. Delbridge restricted her activities to lifting no more than 20 pounds and avoidance of repeated lifting from floor level, repeated twisting and repeated turning. He stated that she should avoid prolonged overhead duty (exhibit 12). In a report dated December 11, 1989, Dr. Delbridge indicated that claimant's punch press operator job conforms to his restrictions. Dr. Delbridge expressed the opinion that claimant's condition has deteriorated during the preceding year and that he expects it to deteriorate further. His prognosis was quite guarded with regard to whether or not she would be able to continue with her present employment (Delbridge deposition, pages 11-17 and 25). Dr. Delbridge related claimant's current back and leg pain to the September 28, 1987 injury (exhibit 12; Delbridge deposition, page 10). Since Drs. Delbridge and Bouri have expressed the opinion that a causal connection exists between the September 28, 1987 low back injury and claimant's continuing leg and low back symptoms, it is found that their opinions are correct and that the September 28, 1987 injury is a substantial factor in producing claimant's current back and leg difficulties. Their opinions are fully consistent with the testimony from claimant and her husband regarding her lack of any prior back problems and her lack of any previous physical limitations. Glenda Vrba now experiences continuing pain in her low back. It has severely limited her ability to engage in physical activities. Claimant and her husband are found to be fully credible witnesses, as are Wayne Carolin and Joyce Grinhaug. Claimant's absences from work on April 28, 1988, January 25, 1989, July 5, 1989, July 7, 1989, October 6, 1989 and October 31, 1989 are all corroborated by medical evidence (exhibits 5, 9, 12, 14 and 15). There is no evidence in the record to establish the amount which claimant earned on the four of those six days during which she was absent from work for only part of the day. The employer has work available for claimant which she is capable of performing, albeit with a considerable degree of discomfort. She experiences discomfort whether the is working or not. She is no longer able to perform many of the positions which she had previously performed during her years of employment with Donaldson Company. It is possible that there are a few other jobs in the plant which would comply with the restrictions imposed by the physicians. It Page 3 is noted that there is no great variance between the restrictions recommended by Drs. Delbridge and Jacoby and their assessments are accepted as being correct. Dr. Delbridge has rated claimant as having permanent impairment. The fact that the available diagnostic tests have not identified the source of claimant's difficulties does not conclusively establish that she has no difficulties. It can also establish that medical science is not capable of identifying all ailments which impair a person's ability to function. When such occurs, it is quite common for the medical practitioners to characterize the situation as one in which there is a chronic pain syndrome or some similar type of condition. In view of the fact that physicians have recommended restrictions, it is found that claimant does have some permanent impairment which afflicts her as a result of the September 28, 1987 injury. While claimant is a high school graduate and has a secretarial background, she has been in manufacturing work for approximately the last 20 years and her secretarial skills are likely quite outdated. Her request for a job in the Donaldson Company office was denied. Claimant's present job is one which allows her to sit or stand as she deems appropriate. It requires repetitive movements while handling very light weights (exhibit 21). The employer has insulated claimant from experiencing the economic losses which would most likely occur if she were forced to seek other employment with a different employer. Glenda Vrba has experienced a ten percent loss of earning capacity as a result of the September 28, 1987 injury. conclusions of law The claimant has the burden of proving by a preponderance of the evidence that the injury of September 28, 1987 is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Page 4 Since Drs. Bouri and Delbridge agree as to the existence of a causal connection and there is no contrary evidence in the record, either from medical practitioners or from lay evidence, it is concluded that the injury of September 28, 1987 is a proximate cause of the difficulties claimant currently experiences with her low back and legs. Claimant has an impairment to the body as a whole; therefore 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). Industrial disability or loss of earning capacity is a concept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment of physical capacity creates an inference of lessened earning capacity. The basic element to be determined, however, is the reduction in value of the general earning capacity of the person, rather than the loss of wages or earnings in a specific occupation. Post-injury earnings create a presumption of earning capacity. The earnings are not synonymous with earning capacity and the presumption may be rebutted by evidence showing the earnings to be an unreliable indicator. Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 34th Biennial Report, 218 (1979); 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. The most notable factors of industrial disability in this case are the medical restrictions, the lack of a medically identified physiological abnormality and the fact that claimant has not experienced a loss of actual earnings. Industrial disability is not measured by actual earnings in any particular job, but rather by a measure of overall earning capacity. Actual earnings are strong evidence of earning capacity, though not exhaustive on the issue. Claimant has a ten percent industrial disability which entitles her to recover 50 weeks of compensation for permanent partial disability under the provisions of Iowa Code section 85.34(2)(u). Claimant was absent from work and paid healing period compensation from September 29, 1987 until November 30, 1987, except for a few days when she made an unsuccessful Page 5 attempt to resume working. It is therefore concluded that her entitlement to compensation for permanent partial disability is payable commencing December 1, 1987. Healing period entitlement under Iowa Code section 85.34(1) is largely an issue to be determined by medical practitioners. In this case, there is no medical opinion regarding whether or not claimant was physically capable of performing the normal duties of her employment on the times that she was absent from work for which she seeks healing period or temporary partial disability compensation. The records do show, however, that she was absent on six different occasions for the purpose of obtaining medical treatment. She is therefore entitled to recover benefits for those six occasions. Claimant is entitled to recover one-seventh week of compensation for January 25, 1989 and one-seventh week of compensation for October 6, 1989. She is entitled to recover temporary partial disability compensation for her absences on April 28, 1988, July 5, 1989, July 7, 1989, and October 31, 1989, but there is no evidence in the record from which a computation of her entitlement can be made. While claimant undoubtedly was in pain or seeing doctors on the other occasions when she was absent from work, there is no medical confirmation in the record to show that she was disabled from working on those occasions. The only additional healing period award which can be made is for the two days previously noted. order IT IS THEREFORE ORDERED that defendants pay Glenda Vrba fifty (50) weeks of compensation for permanent partial disability at the stipulated rate of two hundred ninety-four and 78/100 dollars ($294.78) per week payable commencing December 1, 1987. IT IS FURTHER ORDERED that defendants pay Glenda Vrba one-seventh (1/7) week of compensation for healing period [forty-two and 11/100 dollars ($42.11)] payable on January 25, 1989 and a like sum for healing period payable on October 6, 1989. IT IS FURTHER ORDERED that since all healing period and permanent partial disability compensation which has been awarded is accrued, past due and owing, the same shall be paid to claimant in a lump sum together with interest computed from the date each payment came due until the date of actual payment pursuant to Iowa Code section 85.30. IT IS FURTHER ORDERED that the costs of this action are assessed against defendants pursuant to Division of Industrial Services Rule 343-4.33. IT IS FURTHER ORDERED 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 ____________, 1990. Page 6 ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert C. Andres Attorney at Law First National Building, Sixth Floor P.O. Box 2634 Waterloo, Iowa 50704 Mr. Kevin R. Rogers Attorney at Law 528 West Fourth Street P.O. Box 1200 Waterloo, Iowa 50704 5-1402.30, 5-1402.40 5-1803 Filed July 20, 1990 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : GLENDA VRBA, : : Claimant, : : vs. : : File No. 865030 DONALDSON COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE : GROUP, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 5-1402.30, 5-1402.40, 5-1803 Claimant proved entitlement to 10% permanent partial disability despite the lack of showing of any reduction in actual earnings. before the iowa industrial commissioner ____________________________________________________________ : MAURICE WISECUP, : : Claimant, : : vs. : : File No. 865047 RTC TRANSPORTATION, : : A P P E A L Employer, : : D E C I S I O N CRUM & FORSTER INSURANCE, : : Insurance Carrier, : : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : ___________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed June 25, 1991, is affirmed and is adopted as the final agency action in this case. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of December, 1991. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Donald G. Beattie Attorney at Law 204 8th Street SE Altoona IA 50009 Mr. Harry W. Dahl Attorney at Law 974 73rd Street Suite 16 Des Moines IA 50312 Mr. Greg Knoploh Assistant Attorney General Tort Claims Division Des Moines IA 50319 9998 Filed December 16, 1991 BYRON K. ORTON DRR before the iowa industrial commissioner ____________________________________________________________ : MAURICE WISECUP, : : Claimant, : : vs. : : File No. 865047 RTC TRANSPORTATION, : : A P P E A L Employer, : : D E C I S I O N CRUM & FORSTER INSURANCE, : : Insurance Carrier, : : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : ___________________________________________________________ 9998 Summary affirmance of deputy's decision filed June 25, 1991. 3202 Filed June 25, 1991 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : MAURICE WISECUP, : : Claimant, : : vs. : File No. 865047 : RTC TRANSPORTATION, : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : CRUM & FORSTER COMMERCIAL : INS., : : Insurance Carrier, : : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : ____________________________________________________________ 3202 Second Injury Fund benefits were denied where claimant failed to prove a "previous" loss, although he subsequently aggravated the claimed previous injury and underwent surgery. 2901, 2906, 1108.50, 1401, 1402.40, 2209, 5-1802, 1803.1, 1803, 2500, 2700, 3001, 3002, 3003 Filed September 29, 1994 Walter R. McManus, Jr. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JERRY L. PACK, Claimant, vs. File No. 865057 FIRESTONE TIRE AND RUBBER COMPANY, A R B I T R A T I O N Employer, D E C I S I O N and CIGNA INSURANCE COMPANIES, Insurance Carrier, Defendants. ___________________________________________________________ 2901, 2906 The hearing was adjourned to the following day in order to permit the attorneys additional time to attempt to reduce the number of exhibits to the number specified in the hearing assignment order. 1108.50, 1401, 1402.40, 2209 Claimant started to work for employer while still in high school and worked for employer, primarily as a tire builder, for 33 years. Employer admitted injury but contended that the disability extended only to the massive rotator cuff tears to the right shoulder. The decision determined that employer was also liable for the massive rotator tears to the left shoulder, even though they were diagnosed and treated some three years after the original injury date. The deputy's determination was based upon the unquivocal causal connection statement of the treating orthopedic surgeon. The plant doctor indicated the left shoulder was not caused by claimant's employment but gave no reasons for his determination. The treating orthopedic surgeon based his decision on several years of work as a tire builder. The treating orthopedic surgeon stated that the right shoulder was a specific traumatic injury but that the left Page 2 shoulder was an attenuation or attritional injury which was interpreted to mean a cumulative injury. There was also evidence in the medical records that indicated the right shoulder injury was also a cumulative injury. However, the deputy determined it was a specific traumatic injury because this determination was supported by the testimony of the treating orthopedic surgeon, who made a specific causal connection statement on this point. It was determined that the cumulative disability occurred on the same date as the specific trauma injury because that was the last day claimant was able to work without restrictions that basically prohibited him from further work for employer. 5-1802 Claimant was awarded healing period benefits for the period(s) that defendants had already paid (to which the parties agreed) and in addition the periods of normal recovery specified by the treating orthopedic surgeon. These periods were nine months for the right hemiarthoplasty and six months for the left decompression. 1803.1 The surgery to the right shoulder clearly involved parts of the body as a whole which was sufficient to constitute both impairment and disability to the body as a whole. Surgical reports established that the affected body parts were primarily on the body side of the gleno-humeral joint, with the exception of the humerus and the humeral head. The decision reviews, Dailey v. Pooley, Alm v. Morris Barrick Cattle Company and Lauhoff Grain v. McIntosh. It also reviews several industrial commissioner decisions and deputy decisions in accord generally with the fact that a shoulder injury is an injury to the body as a whole. Industrial commissioner decisions reviewed were Johnson, Prewitt, Haffner, Cluney, Tomkins, Nazarenus, Godwin, and Fullerton. Deputy decisions reviewed which were in accord were Pierson, Tarr, Payton, Thomas, Patterson, and Weavill. The decision covers how Johnson explained Prewitt, and elaborates that the industrial commissioner's statutory task is not only to find impairment but more importantly to find permanent disability, with cites to the code and AMA Guides. The dichotomy between the use of medical term, upper extremity, as found in Gray's Anatomy and the AMA Guides, and the legal workers' compensation term, arm, found in the workers compensation law Iowa Code section 85.34(2)(m) is explained. An analysis of the treating orthopedic surgeons testimony clearly illustrates how physicians sometimes erroneously believe that the upper extremity is equated to Page 3 the arm. It was determined that the injury, the impairment, the derangement, the loss and loss of use, and the permanent disability was in the shoulder and more specifically parts of the body which are defined in workers' compensation law as the body as a whole. 1803 It was determined that claimant was entitled to 85 percent industrial disability to the body as a whole. Claimant had three surgeries on the right shoulder and one surgery on the left shoulder and a second surgery for the left shoulder had been scheduled at the time of the hearing. The only impairment rating, by the treating orthopedic surgeon, converted and combined to 28 percent of the body as a whole. Claimant was a career, life-time, employee of employer with no experience other than tire building from which he was now foreclosed. Restrictions were variously (1) from very heavy and heavy work to light and sedentary work, (2) no repetitive use of the upper extremities, (3) no work above shoulder height, (4) no work with the upper extremities more than one foot away from the body, (5) no pounding, shoveling, axing or vibratory work because he might shake loose his prosthesis, (6) claimant was not to carry or lift any weight, (7) he should not bend or reach at arms length or lift anything from the floor, and (8) no above ground work. Both claimant's and defendants' vocational rehabilitation witnesses determined that claimant had lost 75 percent access to the competitive employment market, that he was now limited to unskilled, entry level, minimum wage types of jobs and that within any job group of job category claimant only qualified for some of the jobs. Nevertheless, both rehabilitation witnesses testified that there was some work that claimant could do. Claimant was not odd-lot because he had made no search for work of any kind. He was not otherwise permanently and totally disabled because the evidence was that there was work that he could do. An estimated calculation showed that it was impossible to award claimant his estimated actual wage loss under the workers' compensation law. A union representative testified that claimant would be earning up to $37 per hour if he were still working whereas he was earning up to $23 per hour at the time of this injury. Claimant lost substantial employee fringe benefits. Employer made no attempt to accommodate claimant's injury until one day prior to hearing, when employer found one job that he could have done if it were accommodated. Page 4 Claimant was age 52 at the time of the injury and age 57 at the time of the hearing. He had high school education. It was determined that it was not likely that he was retrainable either academically or through on-the-job training. 2500, 2700 It was determined that the injury was the cause of the left shoulder disability and therefore defendants' were liable for the medical expenses for this care and treatment as well as the medical mileage for it. The same carrier was the group medical carrier and the workers' compensation carrier and there was no explanation why they did not pay under either policy. 3001, 3002, 3003 Claimant was an hourly and output rate employee. Therefore his rate was determined by using the introductory paragraph of Iowa Code section 85.36 and section 86.36(6) following the industrial commissioner's precedent established in Lewis v. Aalfs Mfg. Co., I Iowa Industrial Commissioner Reports 206 Appeal decision (1980) and followed in Schotanus v. Command Hydraulics, I Iowa Industrial Commissioner Reports 294 (Arbitration Decision 1981) and followed in numerous cases thereafter. This standard is also published in Lawyer and Higgs. Claimant typically worked either a 40-hour week or a 48-hour week. Vacation weeks, a plant shut down week, weeks in which claimant was sick, and one 19 hour week were skipped because they were not representative of the earnings to which the employee would have been entitled had he worked the customary hours for the full pay period in which the employee was injured. A 38.5 hour week was included because it reasonably approximated a 40-hour week sufficiently to be considered representative. The rate calculated by the deputy was the same as the rate calculated by claimant even though one different week was used. The deputy determined the proper rate to be $518.24. Defendants submitted a calculation at the time of hearing which yielded a rate of $477.71. However, prior to hearing defendants had only paid claimant at the rate of $413.14, which is an underpayment of $105.11 per week. Defendants made no explanation for this gross underpayment. This case was distinguished from Davis v. Weitz Co., file number 898933, Appeal Decision November 25, 1992, in which a district court judge reversed the commissioner when the commissioner used only 40-hour weeks to determine the rate because section 85.36(6) is plain and unambiguous. The district court judge in Davis said the method to determine the rate for an hourly employee is to (arbitrarily) use the last 13 weeks. The district court judge in the Davis case found that such an application of section 86.36(6) did not result in an injustice, absurdity or contradiction of what Page 5 he determined to be the proper result in that case. In this case, it is determined that a literal, arbitrary application of section 86.36(6) is ambiguous when that action is considered with the introductory paragraph of section 86.36 and that it does bring about an unjust, absurd, contradictory result. This case is further distinguished from Davis for the reason that (1) not only 40-hour weeks were used and (2) also because Davis was a construction worker and they do work irregular hours, days and weeks but claimant in this case is a factory worker and he regularly worked a 40 or 48-hour week under normal circumstances. It was further commented that there are 101 district court judges and each one of them could have decided this issue in a different manner. Therefore, a district court decision only binds the industrial commissioner on the particular case involved but does not change the precedent or precedents established by the industrial commissioner, who must adhere to stable precedents in order that litigants can have a predictable manner in which to dispose of litigation effectively. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROBERT KONRADI, File No. 865300 Claimant, A R B I T R A T I O N vs. D E C I S I O N ROGER POMRENKE, d/b/a F I L E D R. P. EXPRESS, INC., MAY 25 1989 Uninsured Employer, Defendant. INDUSTRIAL SERVICES STATEMENT OF THE CASE This is a proceeding in arbitration brought by claimant Robert Konradi against uninsured defendant employer Roger Pomrenke to recover benefits under the Iowa Workers' Compensation Act as the result of an alleged injury sustained on June 11, 1987. This matter came on for hearing before the undersigned deputy industrial commissioner in Storm Lake, Iowa, on March 15, 1989. The matter was considered fully submitted at the close of hearing. The record in this proceeding consists of the testimony of claimant and Violet Konradi, along with claimant's exhibits 1 through 4. Defendant's exhibits 1 and 2 were offered, but not accepted; by order of April 27, 1988, the record was closed to further evidence or activity by defendant. ISSUES Pursuant to the prehearing report submitted by the parties and approved by the deputy, the following issues have been stipulated: That if claimant's injury be found to be a work-related cause of permanent disability, it is an industrial disability to the body as a whole; that in the event of an award of weekly benefits, the rate of compensation is $192.11; that the provider of medical services would testify that the fees were reasonable and that the treatment was reasonable and necessary; that defendant has not voluntarily paid compensation prior to hearing. Issues presented for resolution include: Whether an employer-employee relationship existed between claimant and defendant at the time of the alleged injury; whether claimant sustained an injury on June 11, 1987, arising out of and in the course of the claimed employment; whether the alleged injury caused temporary or permanent disability; the extent of claimant's entitlement to compensation for temporary total disability or healing period benefits; the extent of claimant's entitlement to compensation for permanent disability and the commencement date thereof; the extent of claimant's entitlement to medical benefits; taxation of costs. REVIEW OF THE EVIDENCE Claimant testified that he first came in contact with defendant Roger Pomrenke through the offices of the Iowa Department of Job Service in December, 1986. He stated that he was hired as a truck driver to make a run to the state of Colorado. Claimant was again hired to make several trips to Colorado in January, 1987. Claimant eventually asked Mr. Pomrenke if he could have a steady job, and was answered in the affirmative. Claimant testified that it was originally agreed that taxes and Social Security would be withheld from his check by Mr. Pomrenke, and that this was done for his first check. However, claimant was simply paid in a lump sum by check on subsequent occasions until June 11, 1987. Claimant testified that he was employed as a second man driving a semi-tractor truck for the delivery of eggs. The truck lacked an Interstate Commerce Commission placard and was labeled on the side as: RPX; Roger & Cathy Pomrenke. Claimant testified that while the trailer was owned by an operation known as Farmegg Company, he personally saw the truck registration and saw that the truck was registered to Roger Pomrenke. Claimant testified that he was paid by check; sometimes by personal check from Roger Pomrenke, and sometimes by checks issued by RPX (presumably R. P. Express, Inc.). Further, claimant testified that he was aware of no distinction whatsoever between Roger Pomrenke and RPX as a corporate entity. Claimant testified that he suffered an injury while driving the truck on June 11, 1987. Due to an accidental failure to lock his tandems with a pin device, the tractor and trailer overturned when he attempted to make a turn. Claimant testified that he began suffering pain to his lower back that evening and saw a physician on the following day. Prior to that, claimant indicated that his health had been good and that he had suffered no prior back problems. Claimant testified that when he advised Mr. Pomrenke of the injury, Pomrenke stated that he had workers' compensation insurance, but that it was "$1,000 deductible." Claimant testified that his back condition continued to worsen and that he has imposed certain restrictions as to his own activities, such as truck driving, car driving of more than one to two hours at a time, steady lifting over five to ten pounds, or accepting any employment (because of his back problems, but also due to heart disease, arthritis and diabetes). Claimant has not worked since this injury. Claimant described his present back symptoms as numbness with pain in the hips and lower back. He indicated that he has problems dealing with stairs or curbs. Claimant has no plans to return to employment, although he might attempt doing craft work for an employer such as the Easter Seals Society. Violet Konradi testified that she has been married to claimant for 36 years and that claimant had no back or other health problems before his injury. She stated that claimant now complains of pain, walks badly and that his knees give out. She agreed that claimant has not worked since the truck accident. Ms. Konradi testified further that claimant is unable even to push a vacuum cleaner by way of helping at home, and that he often lies on the floor with his feet in the air to alleviate pain. Further, she testified that claimant spends most of his time just sitting and that he continues getting heat treatments. She stated that claimant's injury of June 11, 1987 is the only disabling injury he has suffered. Notes of the Buena Vista Clinic, P.C., dated June 12, 1987, show that claimant presented complaining of neck and back pain with some "pins and needle sensation" on the left side and into the buttock. The immediate impression of "DVG" (from exhibit 3, apparently David Van Gorp, M.D.), was of low back and cervical strain. Dr. Van Gorp noted that x-rays were taken and showed some changes "on the cervical spine which may be old. He also has degenerative changes." Notes of "JEM" (James E. McCabe, M.D.), of June 15, 1987, reported x-rays showing a lot of degenerative changes in the neck and lower back and old compression fracture to the anterior aspect of C6 with osteophytes. Pain was not severe. Dr. McCabe's notes of July 9, 1987 and July 23, 1987 show an impression of mild lumbar strain with some mild degenerative changes on x-rays. Clinical findings of x-rays taken June 12, 1987 were summarized as early degenerative changes in the articulating facets of the lower lumbar spine. Also, highly suspicious, probably old mild compression fracture to the anterior aspect of the body of C6 with marked osteophyte at the anterior aspect between C5-6 in conjunction with disc degenerative changes of the lower cervical spine. Claimant was also seen by Mark Wheeler, M.D. Dr. Wheeler's report of September 28, 1987 indicated an impression of multiple level disc degeneration lumbar spine with early degenerative changes. Dr. Wheeler felt that claimant's condition was likely to be permanent,and recommended that claimant seek other employment of a more sedentary nature. Claimant was released on a "prn" basis. In a letter of August 2, 1988, Dr. McCabe noted claimant's diagnosis of significant lower back pain secondary to degenerative arthritis and significant lumbar.arthritis with disc disease. It was his feel that due to claimant's physical condition, he was presently disabled from any kind of hard labor and that he was totally disabled. The record does not indicate that any physician has expressed an opinion as to whether claimant's disabilities are causally connected to the work injury. Also, there is no indication that claimant has been given any more specific restrictions other than advice to discontinue hard physical labor. APPLICABLE LAW AND ANALYSIS Claimant credibly testified that he was hired personally by Roger Pomrenke and that he was paid both on Mr. Pomrenke's personal checks, as well as the checks of R. P. Express, Inc. Claimant's 1987 United States Income Tax Return shows that neither Mr. Pomrenke nor R. P. Express issued a W-2 form. Claimant drove a truck registered to Mr. Pomrenke personally. The truck was labeled with the names of both the corporation and Mr. Pomrenke and presumably his wife or daughter. Claimant also credibly testified that he knew of no distinction whatsoever between Mr. Pomrenke and R. P. Express. The record evidence establishes an employment relationship between claimant and Roger Pomrenke. This issue must be resolved in claimant's favor. As claimant was clearly operating a truck as a part of his employment responsibilities at the time of the injury, he has established an injury arising out of and in the course of his employment relationship with Roger Pomrenke. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976). 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 claimant has the burden of proving by a preponderance of the evidence that the injury of June 11, 1987 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at,907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962). When an aggravation occurs in the performance of an employer's work and a causal connection is established, claimant may recover to the extent of the impairment. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960). Claimant has sustained medical expenses by reason of his work injury. However, the evidence fails utterly to establish any causal connection between the work injury and his claimed temporary and permanent disability. As has been seen, this question is essentially within the domain of expert testimony. Although claimant has been treated by at least three physicians, no evidence was introduced showing any causal connection by way of expert testimony. While various physicians may have recommended that claimant leave the trucking industry, there is no way to determine whether this is because of claimant's injury, or simply because of his preexisting degenerative changes and previous compression fracture. It is therefore held that claimant has failed to meet his burden of proof in establishing that his work injury caused either temporary or permanent disability. On the other hand, claimant has established that certain medical expenses were directly related to medical care sought because of the work injury. Medical expenses are set forth in plaintiff's exhibit 2. The first bill in that exhibit is from the University of Iowa Hospitals and Clinics. As has been seen, claimant also suffers from diabetes and a heart condition. The charges set forth in the statement from the University of Iowa Hospitals and Clinics are not of sufficient specificity to determine that any of those charges related to or were caused by the work injury. Rather, it appears that these charges relate to claimant's cardiac problems. The second bill is in the sum of $89.00 from American Prosthetics, Inc. This was for a lumbar brace obtained on September 28, 1987. However, it is impossible to determine whether the brace would have been necessary because of the work injury, as opposed to claimant's preexisting condition. Therefore, this charge must also be disallowed. Certain charges from June 1, 1987 (predating the injury) through October 20, 1987, accrued from Bedel's Pharmacy. The notes of Buena Vista Clinic show that the prescription for Xanax of July 27,1987 was prescribed, apparently in connection with the work injury. Therefore, that statement in the sum of $22.95 shall be allowed. Claimant underwent physical therapy at Buena Vista County Hospital pursuant to medical prescription. Those billings in the sums of $328.00 and $200.00 shall be allowed. However, the billing of October 4, 1987 of $128.00 for x-rays related to charges described as esophagus and gastroduography; as there is no showing that this was caused by the work injury, the same shall be disallowed. Dr. Wheeler's bill in the sum of $85.00 was caused by the work injury and shall be awarded claimant. Dr. Rice's radiology charges do not appear to be related to the work injury and are disallowed. Charges of the Buena Vista Clinic, P.C., from June 12 through September 30, 1987, shall be allowed, except for the hypertension office call in the sum of $20.00, the two billing service fees in the sum of $2.00, the degenerative joint office call in the sum of $20.00 and the chest pain fee of $44.00, none of which have been shown to be related to the work injury. Claimant testified that Dr. Wheeler and American Prosthetics have been paid, while defendant has paid none of the medical expenses. Claimant is not entitled to direct reimbursement for medical expenses unless he shows he has paid them from his own funds. Caylor v. Employers Mutual Casualty Co., 337 N.W.2d 890 (Iowa App. 1983). FINDINGS OF FACT THEREFORE, based on the evidence presented, the following. ultimate facts are found: 1. Claimant was hired by Roger Pomrenke personally as a truck driver, and remained in that employment until June 11, 1987. 2. Claimant was involved in a vehicle accident on June 11, 1987, when he overturned the truck and trailer he was driving for Roger Pomrenke. 3. Claimant's injury has caused him medical expenses, of which he has personally paid Dr. Wheeler and American Prosthetics. 4. Claimant was injured by his work incident to the extent that he required medical treatment; this injury arose out of and in the course of his employment with Roger Pomrenke. 5. Claimant suffers from degenerative arthritis and spinal changes and from a former compression fracture of the cervical spine. 6. No expert evidence was presented indicating that a causal connection existed between the work injury and either temporary or permanent disability. CONCLUSIONS OF LAW WHEREFORE, based on the principles of law previously stated, the following conclusions of law are made: 1. Claimant was employed by Roger Pomrenke, uninsured defendant employer, on June 11, 1987. 2. Claimant suffered an injury arising out of and in the course of that employment on June 11, 1987. 3. Claimant has established entitlement to medical benefits attributable to his work injury, being expenses and costs billed by Bedel's Pharmacy ($22.95), Buena Vista County Hospital ($528.00), Dr. Mark Wheeler ($85.00), and Buena Vista Clinic ($215.00). ORDER THEREFORE, IT IS ORDERED: Defendant is to pay unto claimant eighty-five and 00/100 dollars ($85.00) as and for medical expenses under Iowa Code. section 85.27 (Dr. Wheeler). Defendant is to pay unto Bedel's Pharmacy the sum of twenty-two and 95/100 dollars ($22.95), Buena Vista County Hospital in the sum of five hundred twenty-eight and 00/100 dollars ($528.00), and Buena Vista Clinic, P.C., in the sum of two hundred fifteen and 00/100 dollars ($215.00). The costs of this action shall be assessed to defendant pursuant to Division of Industrial Services Rule 343-4.33. Defendant shall file a claim activity report pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 25th day of May, 1989. DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Phil Redenbaugh Attorney at Law 111 West Sixth Street Storm Lake, Iowa 50588 Mr. Willis J. Hamilton Mr. Steve Hamilton Attorneys at Law 606 Ontario Street P.O. Box 188 Storm Lake, Iowa 50588 51402.40 Filed May 25, 1989 DAVID RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROBERT KONRADI, Claimant, File No. 865300 vs. A R B I T R A T I 0 N ROGER POMRENKE, d/b/a R. P. EXPRESS, INC., D E C I S I 0 N Employer, Uninsured, Defendant. 51402.40 Claimant failed to show causal connection between work injury and disability. Only medical benefits were awarded.