BEFORE THE IOWA INDUSTRIAL COMMISSIONER SHERON ROSSOW, File Nos. 865887 & 812650 Claimant, A R B I T R A T I O N vs. D E C I S I O N IOWA POWER & LIGHT COMPANY, F I L E D Employer, MAY 09 1989 Self-Insured, Defendant. IOWA INDUSTRIAL COMMISSIONER INTRODUCTION These are arbitration proceedings brought by Sheron Rossow, claimant, against Iowa Power and Light Company, self-insured employer, defendant. The cases were heard by the undersigned in Council Bluffs, Iowa on April 4, 1989. The record consists of the testimony of claimant. The record also consists of the testimony of Alice Sundrup and Eileen Lewis. The record additionally consists of claimant's exhibits 1-57 and defendant's exhibits 1-10. ISSUES As a result of the prehearing report and order submitted and approved on April 4, 1989, the issues presented by the parties are: 1. Whether there is a causal relationship between the alleged injuries and the disability; 2. Whether claimant is entitled to temporary disability/ healing period benefits or permanent partial or total disability benefits; and, 3. Whether claimant is an odd-lot doctrine employee. STIPULATIONS Prior to the hearing, the parties entered into a number of stipulations. These stipulations are as follows: 1. The existence of an employer-employee relationship between claimant and employer at the time of the alleged injury; 2. That claimant sustained injuries on December 17, 1985 and June 25, 1987 which arose out of and in the course of employment with employer; 3. That the alleged injury is a cause of temporary disability during a period of recovery; 4. That the time off work for which claimant now seeks either temporary total disability or healing period benefits is stipulated to be from December 19, 1985 to July 22, 1986, and from June 26, 1987 to July 8, 1988; 5. The type of permanent disability, if the injury is found to be a cause of permanent disability, is stipulated to be an industrial disability to the body as a whole; and the commencement date for permanent partial disability, in the event such benefits are awarded, is stipulated to be for the first injury, July 23, 1986, and for the second injury, June 9, 1988; and, 6. In the event of an award of weekly benefits, the rate of weekly compensation is stipulated to be $285.46 per week for the first injury and $287.35 per week for the second injury; and claimant is married with two exemptions. FACTS PRESENTED Claimant testified she commenced her employment with defendant on February 6, 1978. Claimant was hired as a stenographer and then as a secretary, positions she held for a period of time. During this time frame, claimant was not a member of any union, although a collective bargaining unit for the clerical workers was instituted at defendant's place of business. Claimant reported she became dissatisfied with clerical and bookkeeping positions. These were the types of jobs she had held for the duration of her working career. Consequently, claimant reported, she applied for a position with the physical unit at defendant's place of business. Claimant testified she eventually filed a civil rights complaint on the basis that she was refused a position. Eventually, claimant stated she was hired into the physical unit where she worked as a laborer. Then claimant began working as a meter reader. Claimant became a member of I.B.E.W., Local 499. During her hearing, claimant described the incidents surrounding her work related injuries on December 17, 1985 and on June 25, 1987. After the first injury, claimant had a lumbar laminectomy at L4-L5. This was claimant'.s second back surgery. She had had a previous laminectomy in 1974 which was unrelated to any work situation. Claimant testified she returned to her normal duties after her first surgery, but she was unable to return to work after her second surgery until July 22, 1986. After claimant's second work injury, she testified she attempted to return to work as a meter reader on February 29, 1988. She then worked for two full days and for part of another day. However, claimant testified she had a severe headache and an intense pain in her left leg. According to claimant, her pain was so severe she had to lie down in her truck to rest. As a result, claimant testified she drove her truck back to the work center, reported her pain to her supervisor, Mr. Jim Mossman. He contacted the workers' compensation director, Mary Nelson. Claimant stated she did not return to work after February of 1988. She remarked that no light duty position within the physical unit had been offered to her although she maintained there were positions dealing with inventorying equipment and there were positions in the storeroom which were light duty jobs. Claimant stated these light duty positions had been offered to other physical unit workers. Claimant did reveal she had been offered a position within the clerical unit. The position she indicated was known as a rotating service representative. Claimant understood the job involved prolonged sitting, talking on the telephone, some lifting of small trunks and buckets, and some sorting of mail. Claimant indicated she had contacted the chief union steward of the clerical unit relative to the job offer. Claimant reported she did not believe an injured employee under the physical unit could be placed in a job in the clerical unit because there was a bidding process for awarding jobs. Claimant testified she had no knowledge of any man being changed from one unit to another. Claimant, through her attorney, initially turned down the position as a rotating service representative. She thought the offer was a sham. Later, claimant, again through her attorney, indicated she would attempt to work at the position. However, in the interim, the position was filled by another employee of defendant. Claimant testified she believed another position would be offered to her. However, claimant revealed she received a letter from defendant terminating her workers' compensation benefits on July 9, 1988. Claimant indicated she is currently able to do all of her household chores, including vacuuming and sweeping. She also indicated she does light yard work but she has given up flower gardening. Claimant also reported she went golfing four or five times during the prior year, that she walked the course and that she carried her own golf bag. Claimant revealed she has only looked for a few positions outside of employment with defendant. Claimant has not been successful in securing a position. Alice Sundrup testified for claimant. She reported she is the chief union steward for the clerical unit and that she has been a steward since the onset of the collective bargaining unit. Ms. Sundrup testified she is familiar with the duties of a rotating service representative. She reported the job involves lifting mail buckets, bending, stooping, receiving telephone calls from customers, and that the position is stressful because of the customer contacts. Ms. Sundrup also reported that the clerical unit and the physical unit are separate and distinct bargaining units. She stated she is not aware a person in one unit can transfer to a light duty position in another unit. Ms. Sundrup also reported she cannot recall a male employee from the physical unit transferring to a light duty job in the clerical unit. Ms. Sundrup further stated she had been contacted by claimant relative to the rotating service representative. Ms. Sundrup revealed she would have had complaints from other clerical workers if claimant had taken the position offered to her. Alice also reported that if claimant would have accepted this position, claimant would have lost her union seniority with the physical unit but she would have retained her company seniority. Under cross-examination, Ms. Sundrup testified a job bid is kept open for seven days. After seven days, if there is no bid, the job is opened to the public. Ms. Sundrup reported she was unaware whether anyone had bid the position in question within the seven day requisite period. Ms. Sundrup also reported she thought a light duty job was given to employees for 90 days but she acknowledged some employees were in light duty jobs for periods greater than 90 days. Ms. Eileen Lewis testified for defendant. She reported she is the clerical supervisor and that she has held this position for 11 or 12 years. Ms. Lewis described the position of rotating service representative. She indicated the position is on a 15 week rotating schedule where the duties change somewhat. Ms. Lewis reported there is no lifting of heavy trunks but there is lifting of buckets. Ms. Lewis also testified a service representative is usually at her work station but a representative is allowed to get up and walk around while talking on the phone, pulling files, or sorting mail. Ms. Lewis indicated it is not problematic for any employee to stand at a work station every 30 minutes for one or two minutes. Ms. Lewis testified Mr. Lloyd Hornback, vice president, contacted her about claimant being offered the position. Ms. Lewis also reported the position was filled by another employee but that the person did not bid the position within the seven day requisite period. Ms. Lewis also reported the clerical employees are often dissatisfied when employees are off work for prolonged periods of time. If an employee,,cannot handle all of the job duties, Ms. Lewis reported her employees complain. APPLICABLE LAW An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). Claimant has the burden of proving by a preponderance of the evidence that she received injuries on December 17, 1985 and June 25, 1987, which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The claimant has the burden of proving by a preponderance of the evidence that the injuries of December 17, 1985 and June 25, 1987, are 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). The opinions of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). An opinion of an expert based upon an incomplete history is not binding upon the commissioner, but must be weighed together with the other disclosed facts and circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867 (1965). The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. Burt, 247 Iowa 691, 73 N.W.2d 732 (1955). In regard to medical testimony, the commissioner is required to state the reasons on which testimony is accepted or rejected. Sondag, 220 N.W.2d 903 (1974). 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, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960), and cases cited. An employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960). See also Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254. N.W. 35 (1934). If a claimant contends he has industrial disability he has the burden of proving his injury results in an ailment extending beyond the scheduled loss. Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964). As a claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 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, 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). In Parr v. Nash Finch Co., (Appeal Decision, October 31, 1980) the industrial commissioner, after analyzing the decisions of McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) and Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980), stated: Although the court stated that they were looking for the reduction in earning capacity it is undeniable that it was the "loss of earnings" caused by the job transfer for reasons related to the injury that the court was indicating.justified a finding of "industrial disability." Therefore, if a worker is placed in a position by his employer after an injury to the body as a whole and because of the injury which results in an actual reduction in earning, it would appear this would justify an award of industrial disability. This would appear to be so even if the worker's "capacity" to earn has not been diminished. For example, a defendant employer's refusal to give any sort of work to a claimant after he suffers his affliction may justify an award of disability. McSpadden, 288 N.W.2d 181 (Iowa 1980). Similarly, a claimant's inability to find other suitable work after making bona fide efforts to find such work may indicate that relief would be granted. McSpadden, 288 N.W.2d 181 (Iowa 1980) Under the odd-lot doctrine, which was formally adopted by the Iowa Supreme Court in Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985), a worker becomes an odd-lot employee when an injury makes the worker incapable of obtaining employment odd-lot worker worker can or quantity exist. Id., 230 Lee v. Minneapolis Street Railway Company, 230 Minn. 315, 320, 41 N.W.2d 433, 436 (1050). The rule of odd-lot allocates the burden of production of evidence. If the evidence of degree of obvious physical impairment, coupled with other facts such as claimant's mental capacity, education, training or age, places claimant prima facie in the odd-lot category, the burden should be on the employer to show that some kind of suitable work is regularly and continuously available to the claimant. Certainly in such a case it should not be enough to show that claimant is physically capable of performing light work and then round out the case for non-compensable by adding a presumption that light work is available. Guyton, 373 N.W.2d at 105. When a worker makes a prima facie case of total disability by producing substantial evidence that the worker is not employable in the competitive labor market, the burden to produce evidence of suitable employment shifts to the employer. If the employer fails to produce such evidence and the trier of fact finds the worker falls in the odd-lot category, the worker is entitled to a finding of total disability. Even under the odd-lot doctrine, the trier of fact is free to determine the weight and credibility of the evidence in determining whether the worker's burden of persuasion has been carried. Only in an exceptional case would evidence be sufficiently strong to compel a finding of total disability as a matter of law. Guyton 373 N.W.2d at 106. The court went on to state: The commissioner did not in his analysis address any of the other factors to be considered in determining industrial disability. Industrial disability means reduced earning capacity. Bodily impairment is merely one factor in a gauging industrial disability. Other factors include the worker's age, intelligence, education, qualifications, experience, and the effect of the injury on the worker's ability to obtain suitable work. See Doerfer Division of CCA v. Nicol, 359 N.W.2d 428, 438 (Iowa 1984). When the combination of factors precludes the worker from obtaining regular employment to earn a living, the worker with only a partial functional disability has a total disability. See McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 192 (Iowa 1980). In Diederich v. Tri-City R. Co., 219 Iowa 587, 258 N.W. 899 (1935) the court, addressing the issue of the meaning of disability stated: What is "permanent total disability"? Does this clause refer to "functional disability" or to "industrial disability"? For clearness we shall use the term "industrial disability" as referring to disability from carrying on a gainful occupation--inability to earn wage. By "functional disability" we shall refer to the disability to perform one or more of the physical movements which a normal human being can perform. .... It is obvious that "disability" here used cannot refer to mere "functional disability",... It is...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 terms of percentages of the total physical and mental ability of a normal man. .... ...[T]he Compensation law was passed for the purpose of compensating the working man when injured. The loss which this claimant suffered due to the injury which he received while in the employ of the company is the inability to carry on the work he was doing prior to the time of the injury, or any work which he could perform. This man at fifty-nine years of age, after thirty years as a street car motorman, with little education, cannot find or hold a position that would not require some manual labor, and, of course, due to the condition of his back, he cannot perform such work. To say that he might become a stenographer or a lawyer or a clerk or a bookkeeper is to suppose the impossible, for a fifty-nine-year old man, with no education, is not capable of securing or filling any such position. His disability may be only a twenty-five or thirty per cent disability compared with the one hundred per cent perfect man, but, from the standpoint of his ability to go back to work to earn a living for himself and his family, his disability is a total disability, for he is not able to again operate the street car and perform the work which the company demanded of him prior to the time of the accident. ANALYSIS Claimant has established by a preponderance of the evidence that her injuries on December 17, 1985 and June 25, 1987, are causally related to the disability on which she now bases her claim. There is medical testimony to substantiate the necessary causal connection. Dr. Daniel L. McKinney, M.D., FACS, writes in his letter of April 7, 1988: I first examined Sheron Rossow in my office on August 4, 1987. Mrs. Rossow gave a history of having fallen on ice in December, 1985 while at work. She eventually underwent lumbar disc surgery by Dr. R. Schuyler Gooding in January, 1986. It should be noted that in 1975 she had also undergone lumbar disc surgery by Dr. Maurice Margules. She had good relief from 1975 but did not respond as well after January, 1986. She was eventually able to return to work but reinjured her back when she stepped in a hole on the job on June 25, 1987. My examination at that time revealed mild weakness of the right hamstring muscle. Straight leg raising test produced pain in the back at 40o on the right. It was my impression that Mrs. Rossow had suffered a lumbar strain and damage to a lumbar disc. I thought she might be also suffering from a thoracic outlet syndrome but since that time I have dismissed that diagnosis. .... I believe that Mrs. Rossow has suffered an additional 5-10o injury to the body as a whole as a result of her second injury. I do not believe that she will be able to return to her work at Iowa Power and Light. I think, however, that it is possible that she could be retrained for a lighter more sedentary type of employment in the future. If you have any questions concerning this, please feel free to contact me. Dr. Bernard L. Kratochvil, M.D., also writes in his report of March 16, 1989: This woman continues to have complaints of discomfort in the neck and lower back as the result of a fall which occurred in 1985, and a second fall which occurred in 1987. She has had considerable orthopedic and neurosurgical evaluation, along with attendance at a pain clinic. It is my opinion that she has a 5% impairment of the whole body as a result of her injuries.... There is also the testimony of claimant. She testified she had recovered from her first back surgery in 1973. It was not until her fall on December 17, 1985 that claimant began having back problems. Between 1974 and December 17, 1985, claimant had led an active life as a working mother who coached little league, who gardened, and who acted as a 4-H leader. Even after her second surgery, claimant was able to return to her position as a meter reader. It was not until the fall in 1987 that claimant claimed she was unable to return to that position. In light of the foregoing, it is the determination of the undersigned that claimant has established the requisite causal connection. The next issue to discuss is the issue of permanency. As mentioned previously, claimant has had a prior back condition which is unrelated to her work. She had surgery performed on December 12, 1979, for a herniated lumbar disc at the L4, L-5 region. Medical records do not establish any functional impairment subsequent to the first surgery. Subsequent to the second surgery, claimant was evaluated by her surgeon, R. Schuyler Gooding, M.D. He determined that as of May 2, 1987, claimant had a functional impairment of 20 percent of the body as a whole. This evaluation did not take into account the fall in 1987. Claimant was also evaluated by Daniel L. McKinney, M.D., a neurological surgeon. He writes in his report of April 7, 1988: I first examined Sheron Rossow in my office on August 4, 1987. Mrs. Rossow gave a history of having fallen on ice in December, 1985 while at work. She eventually underwent lumbar disc surgery by Dr. R. Schuyler Gooding in January, 1986. It should be noted that in 1975 she had also undergone lumbar disc surgery by Dr. Maurice Margules. She had good relief from 1975 but did not respond as well after January, 1986. She was eventually able to return to work but reinjured her back when she stepped in a hole on the job on June 25, 1987. My examination at that time revealed mild weakness of the right hamstring muscle. Straight leg raising test produced pain in the back at 40o on the right. It was my impression that Mrs. Rossow had suffered a lumbar strain and damage to a lumbar disc. I thought she might be also suffering from a thoracic outlet syndrome but since that time I have dismissed that diagnosis. .... Mrs. Rossow returned to my office on September 25, 1987 still complaining of low back pain and right lower extremity pain and some lesser neck and right upper extremity pain. Because of the persistence of her complaints I recommended a myelogram to her. The myelogram was performed on September 28, 1987. This was normal in the lumbar region but did show a central disc type defect in the cervical region. This was at the sixth cervical disc level. Since most of her complaints were in the lower back and right lower extremity and since the disc bulging was more central than lateral I did not feel that it warranted surgical treatment. Mrs. Rossow continued to be managed in a conservative fashion. She tried home traction but this did not help her and in fact caused headaches. Mrs. Rossow returned to my office on November 13, 1987. Her headaches were somewhat better but she was having more numbness in her right lower extremity. Her arm pain had improved considerably. Because of the persistence of her complaints, Mrs. Rossow was seen at the University of Nebraska Pain Center in January, 1988. I am enclosing a copy of that report. Mrs. Rossow last returned to my office on March 28, 1988. She stated that the Pain Clinic had helped her to be more active but that she continued to have low back pain. She also complained of a tightness in the back of her neck and shoulders. She was not having severe extremity.pain. My examination revealed no weakness, sensory loss or reflex change. Mrs. Rossow related that she had tried to return to work but was able to work only two days and then the activity caused too much pain for her to continue. I believe that Mrs. Rossow has suffered an additional 5-10o injury to the body as a whole as a result of her second injury. I do not believe that she will be able to return to her work at Iowa Power and Light. I think, however, that it is possible that she could be retrained for a lighter more sedentary type of employment in the future. If you have any questions concerning this, please feel free to contact me. Claimant was also seen at the Pain Management Center at the University of Nebraska Medical Center at University Hospital Clinic. According to Giuseppe Siracusano, R.P.T., claimant's progress at the close of the program was as follows: Upon completion of the Pain Management Center's full program, Sheron's overall flexibility has significantly improved. Sheron's gait pattern has moderately improved. Sheron's upper extremity strength has moderately improved. The strength of the lower extremities has minimally improved. Improvement in Sheron's endurance exercise tolerance was limited by her cardiovascular status. These limitations do not exclude her from physical activities. On the practical side, Sheron's cardiovascular status necessitates that she check her heart rate regularly and alter the intensity of the activity accordingly. The counselor at the pain center, Linda McKee, determined the following: COUNSELING: Sheron practiced relaxation techniques during her treatment program. She reponded [sic] best when using progressive muscle techniques. Vocationally, Sheron plans to return to her position as a meter reader at Iowa Power. During her program, increases in her muscle strength came very slowly. She also encountered increased heart rates at fairly low levels of endurance exercises. She is of the opinion that going back to work on a part-time status and gradually working up to full-time is not an option within her company. Therefore, she plans to return to her former position full-time. In view of the physical capacities she has reached at this point, it will be imperative that Sheron pace herself throughout the day if her return to work is to be successful. Charles Edward, M.D., a physician retained by defendant, determined that as of January 6, 1988, claimant: Has been on non strenuous exercises Has had improvement in her head & neck pain but back pain remains the same. I do not feel she is capable to returning to work at this time as a meter reader. Bernard L. Kratochvil, M.D., was retained by defendant to examine and evaluate claimant. He examined claimant on March 16, 1989 in anticipation of this proceeding. Dr. Kratochvil opined the following in his report of the same date: HISTORY: This woman was evaluated by me on the 2nd of April 1987. She had fallen on some ice, while working, on the 17th of December 1985. After she was seen in April of 1987, she apparently had another injury where she stepped in a hole, in a yard, and reinjured her lower back. At the time of my examination on the 16th of March 1989, she had complaints of neck and lower back pain. The pain in the neck is located in the posterior cervical area, to both sides of the midline, and in the posterior shoulder area on both sides. She has some tingling in her upper extremities. She also complains of lower back discomfort to both sides of the midline, with an aching sensation in both lower extremities. She is not working at this time. She has been seen previously by Dr. Daniel McKinney, a neurosurgeon, and has had previous surgery by Dr. Schuyler Gooding, a neurosurgeon. She has had a myelogram performed by Dr. McKinney, also. PHYSICAL EXAMINATION: This is a fifty-one year old woman, with the above complaint. Examination of the neck reveals no muscle spasm or structural deformity. She complains of discomfort to digital pressure in the paravertebral muscles of the neck and posterior shoulder. She has full flexion and extension of the neck, full right and left side bending and rotation to the right and left. Examination of the upper extremities reveals no loss of strength or sensation, and no reflex deficit. There was no atrophy of the muscles of the upper extremities. There is full range of motion in the joints of the upper extremities. Examination of the lower back reveals tenderness to pressure in the lower lumbar area, to both sides of the midline, but no muscle spasm or structural deformity present. The straight leg raising test is negative bilaterally. There was no loss of reflexes in the lower extremities, and no sensory disturbance. The strength is good. There is a well healed surgical scar in the lower lumbar area. X-rays were not repeated. REMARKS: This woman continues to have complaints of discomfort in the neck and lower back as the result of a fall which occurred in 1985, and a second fall which occurred in 1987. She has had considerable orthopedic and neurosurgical evaluation, along with attendance at a pain clinic. It is my opinion that she has a 5% impairment of the whole body as a result of her injuries. Her complaints are subjective and there are very few objective findings except for the fact that she has had previous surgery, and does have some minimal x-ray findings.... Dr. Kratochvil's evaluation is markedly disparate from either the evaluation of Dr. McKinney or Dr. Gooding. However, Dr. Kratochvil was not a treating physician. He was only retained to evaluate claimant. Dr. McKinney and Dr. Gooding were treating physicians. They had seen claimant on more than just two occasions. Greater weight is accorded their opinions. See: Reiland v. Palco, Inc., Thirty-Second Biennial Report of the Industrial Commissioner 56 (1975); Dickey v. Continental Baking Company, Thirty-Fourth Biennial Report of the Industrial Commissioner 89 (1979). None of the three physicians determines whether any of the functional.impairment is attributable to claimant's preexisting condition. This does not make it impossible to determine the degree of functional impairment attributable to each work injury. The undersigned finds that claimant is functionally impaired by 20 percent to the body as a whole as a result of the injury sustained on December 17, 1985. The undersigned finds the claimant is functionally impaired by 10 percent as to the body as a whole as a result of the work injury sustained on June 25, 1987. Claimant alleges she is permanently and totally disabled, or that in the alternative, claimant alleges she is an odd-lot employee under Guyton, supra. Claimant maintains she is unable to return to work as a meter reader due to her physical condition and to the resulting pain which she is experiencing. The record indicates claimant returned to work for two and one half days commencing on February 29, 1989. Claimant indicated the pain was so severe, she was forced to lie in her company vehicle on the second day and that on the third day, claimant was unable to complete the work shift because of her headache pain. Claimant reported she did not work after March 2, 1988. From the facts presented, it is apparent claimant can.no longer perform her duties as a meter reader. Defendant argues claimant is quite capable of working. Moreover, defendant maintains a light duty position has been offered to claimant but she has refused a job as a rotating service representative, even though claimant had held various clerical positions throughout her 25 year work history. Defendant further argues the position of sales representative is a position which claimant's physicians, Dr. McKinney and Dr. Gooding, opined was within the job restrictions placed upon claimant so long as claimant was able to stand for one or two minutes for every 30 minutes of work. Firstly, claimant states she is unable to handle the service representative position because the job is too sedentary. Claimant reports she cannot sit for long periods of time without stiffness and pain. Claimant also believes the job is too stressful and she will have headaches if there is too much stress. Secondly, claimant states that initially she refused the position because she thought the offer was a "sham." However, later through her attorney claimant reported she agreed to accept the position on a trial basis. In the interim, the job was taken by another employee. Claimant testified she was still waiting for another position to be offered to her. In support of her position, claimant submits the report of James T. Rogers, Certified Professional Counselor with Midlands Rehabilitation Consultants. He writes in his report of July 5, 1988: JOB ANALYSIS AND TRANSFERABLE JOB SKILLS: An inspection of Sheron's work background reveals that she has worked as a meter reader, DOT Code #209.567.010; a secretary, DOT Code #201.362.030; a bookkeeper, DOT Code #210.382.014; a switchboard operator, DOT Code #235.462.010 and a laborer, power house, DOT Code #952.665.010. According to the Dictionary of Occupational Titles secretary and bookkeeper are listed as sedentary work; meter reader and switchboard operator as light work and power house laborer as heavy work. According to Sheron's doctors, she is in need of sedentary employment, employment which does not require long periods of standing and allows her to alternate sitting and standing. As such, she definitely is excluded from returning to work as a power house laborer or meter reader as well as the usual job of switchboard operator. Considering the above listed restrictions, the jobs of secretary and bookkeeper would be appropriate only on a selected basis. It should be noted that Sheron complains of neck and right upper extremity pain, (less than back and leg pain) and that, according to Dr. McKinney, myelogram did show a "disc type defect" in the cervical region. It has been my experience that cervical disc problems may interfere with one's ability to type, particularly for extended periods of time, due to neck, shoulder and upper extremity pain. While no doctor has specifically restricted her in this regard, I would view it as good rehabilitation practice to at least be on the alert to a potential problem in this area. Further, Sheron complains of problems with headaches and states that physical activity and "tenseness" bring on these headaches. They are described as excruciating and may last for several days. Sheron feels the tenseness associated with typing may bring on these headaches. According to Sheron's education and work background, she should have the following skills and abilities, some of which are transferable to other jobs. They include applying basic math skills and visual abilities to maintain records, conduct inventories and estimate quantities; recording figures in ledges or operating calculators or similar machines; concentrating on details; making change; using a cash register; dealing tactfully and courteously with the public; and adapting to routine work. It is apparent that Sheron does have transferable skills into the sedentary work category, particularly in the Worker Trait Groups (WTG) of mathematical detail, WTG #07.02; financial detail, WTG #07.03; and oral communications, WTG #07.04. Numerous sedentary jobs can be found in the above listed categories. Examples include claims clerk, correspondence clerk, order clerk, cashier, ticket seller, bookkeeper, night auditor, secretary, etc. Even though these jobs are sedentary, Sheron is in need of a special job, one which allows her to sit and stand. Ideally she should have a job that allows her to work at her own pace. She will need an understanding employer and probably understanding coworkers as well. Our experience suggests that such jobs are difficult, though not impossible, to obtain. Sheron faces the additional employment difficulties of being 50 years old, having no specialized post high school training, and having a bad neck and bad back requiring 2 surgical procedures. Sheron is likely to encounter particular difficulties in finding employment with primary employers--that is the employers who pay the highest wages and can be most selective. DISCUSSION: Sheron Rossow is a lady who is obviously severely disabled. Certainly she is unable to return to some of her past jobs such as meter reader or laborer. She does have some transferable skills in the general area of office work, secretarial, typing and bookkeeping. These skills are not up-to-date and her employability in the office area would be improved with some additional short term training such as word processing training as offered at the Computer Class Room. Even with additional training, I am unsure whether or not Sheron is going to be able to obtain and maintain employment. She is going to need a special job with an understanding employer. These jobs are available but not easy to get. As Dr. McKinney pointed out her ability to hold a job depends upon "her comfort level." There is a question whether or not she will be able to hold any job considering her back and leg pain, neck and shoulder pain and headaches. Since Sheron states that she definitely prefers to work if at all possible, and that, in fact, she feels better psychologically when working, I feel the most reasonable rehabilitation approach in her case would be to provide her with vocational rehabilitation services directed toward competitive employment. I would list the general vocational goal as secretarial which would fall in the salary range of $4.00 to $6.00 per hour, probably more toward the higher end of that scale considering Sheron's experience. In addition to guidance, counseling and job placement services, Sheron may benefit from work hardening, work adjustment training and possibly short term training to bring Sheron's office skills up to date. The fact is that no one knows if Sheron can obtain or hold a job, and the simple truth is that the only way we will know is to put her to work or put her into a simulated Work situation. Since she reports the motivation to do so, I think it only fair to give her a try. If competitive employment does not workout for Sheron, she would likely be a candidate for homebound employment. It has been my experience homebound employment ordinarily does not provide incomes which one would consider competitive. In general, this type of "employment" falls into the hobby business category. Such training can be obtained through the state of Iowa's Department of Rehabilitation at Camp Sunnyside in Des Moines. The undersigned finds claimant is not permanently and totally disabled, nor is claimant an odd-lot employee under Guyton. Claimant is physically incapable of handling the duties of a meter reader. While defendant has not been offered a light duty position within the physical unit, defendant has offered a position within the clerical unit which meets the medical restrictions placed upon claimant. Ms. Lewis has indicated the job involves moving around the room. Defendant has also agreed to allow claimant a two minute "stretching" break for every 30 minutes of work. This too is in keeping with medical recommendations. The job is in line with claimant's transferable job skills. From the facts presented, it appears this is the "special job" with "the understanding employer", which is discussed in Mr. Rogers' report. Claimant is not an odd-lot employee under Guyton. However, claimant has established she has an industrial disability. Claimant's physical impairment is, of course, only one factor in determining the extent of industrial disability. Claimant is 51 years old. While her age may be working against her, claimant has a high school education. She has transferable job skills from previous positions in the secretarial and bookkeeping fields. Another factor to consider in determining the extent of claimant's industrial disability is a loss of earnings. As a meter reader, claimant, in 1987, was earning $11.825 per hour. It is acknowledged that clerical positions pay substantially less per hour for entry level positions. Mr. Rogers has determined an appropriate salary range for clerical positions is in the $4.00 to $6.00 per hour range. Even the service representative position, which has been previously offered to claimant pays considerably less than the meter reader position. In April of 1988, the service representative position did pay $7.88 per hour. The hourly rate differs sizeably. A separate factor to consider is a loss of earning capacity. This is to be distinguished from a loss of earnings. See Rauch v. O'Bryan Brothers, Inc., File No. 828457 (Appeal Decision December 30, 1988). Claimant's impairments and her surgery have clearly affected her ability to be hired for jobs that require use of her back, or entail strenuous walking. Claimant is unable to hold positions such as meter reading. Even if claimant would have accepted the position as a service representative, there still would have been a loss of earning capacity within the corporate structure. Claimant would have started as a new employee within the unit. Claimant's earning capacity would definitely be affected by her injury. Based upon the foregoing and based upon: 1) the personal observation of claimant; 2) agency expertise, (Iowa Administrative Procedures Act 17A.14(s); and, 3) claimant's testimony, the undersigned finds the claimant has a 10 percent industrial disability as a result of the injury on December 17, 1985 and that she has a 20 percent industrial disability as a result of her injury on June 25, 1987. FINDINGS OF FACT AND CONCLUSIONS OF LAW FINDING 1. Claimant sustained a back injury arising out of and in the course of her employment on December 17, 1985. FINDING 2. Claimant sustained a back injury arising out of and in the course of her employment on June 25, 1987. FINDING 3. Claimant had a prior history of back problems including a laminectomy from a fall from a horse. FINDING 4. As a result of the injury on December 17, 1985, claimant has an attributable functional impairment of 20 percent of the body as a whole. FINDING 5. As a result of the injury on June 25, 1987, claimant has an attributable functional impairment of 10 percent of the body as a whole. CONCLUSION A. Claimant has met her burden of proving she has a 10 percent permanent partial disability as a result of her injury on December 17, 1985. CONCLUSION B. Claimant has met her burden of proving she has a 20 percent permanent partial disability as a result of her injury on June 25, 1987. ORDER THEREFORE, defendant is to pay unto claimant fifty (50) weeks of permanent partial disability benefits at the rate of two hundred eighty-five and 46/100 dollars ($285.46) per week as a result of the injury on December 17, 1985. Defendant is to pay unto claimant one hundred (100) weeks of permanent partial disability benefits at the rate of two hundred eighty-seven and 35/100 dollars ($287.35) per week as a result of the injury on June 25, 1987. Payments that have accrued shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. Defendant is to be given credit for all benefits previously paid to claimant. Costs of this action is assessed against the defendant pursuant to Division of Industrial Services Rule 343-4.33. Defendant shall file a claim activity report upon payment of this award. Signed and filed this 9th day of May, 1989. MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Sheldon M. Gallner Attorney at Law 803 3rd Ave. P. 0. Box 1588 Council Bluffs, Iowa 51502 Mr. Brian L. Campbell Attorney at Law 1100 Des Moines Bldg. Des Moines, Iowa 50309 4100 Filed May 9, 1989 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER SHERON ROSSOW, Claimant, File Nos. 865887 & 812650 vs. A R B I T R A T I 0 N IOWA POWER & LIGHT COMPANY, D E C I S I 0 N Employer, Self-Insured, Defendant. 4100 Claimant sustained two back injuries on the job when she was working as a meter maid. Claimant was medically restricted from returning to that position. Defendant offered claimant a position as a clerical worker. Claimant refused the position even though she had had 25 years of experience in the field, and the job was in keeping with claimant's medical restrictions. It was held that claimant was not an odd-lot employee under Guyton. BEFORE THE IOWA INDUSTRIAL COMMISSIONER GERALD GENE JACKSON, Claimant, File No. 865892 vs. A R B I T R A T I O N KAST KEOKUK STEEL CASTINGS CO., D E C I S I O N Employer, F I L E D and AUG 7 1989 BITUMINOUS INSURANCE COMPANIES, INDUSTRIAL SERVICES Insurance Carrier, Defendants. INTRODUCTION The above entitled cause was scheduled for hearing on July 13, 1989, at 8:00 a.m. at the Des Moines County Courthouse in Burlington, Iowa. Claimant's counsel appeared, but the claimant himself did not appear. Counsel for the claimant had exercised a great deal of diligence in attempting to procure the claimant's attendance, but had been unsuccessful. It was ascertained that the claimant was not present in the courthouse. Counsel for claimant requested that the case be dismissed without prejudice while counsel for the employer and its insurance carrier requested either that the case be dismissed with prejudice or that a decision be entered on the merits of the case. Counsel for claimant stated that it would not be possible to prevail in the case without the testimony of the claimant and declined to submit any evidence. ANALYSIS Under Iowa Rule of Civil Procedure 215, a party may dismiss that party's own petition at any time before trial has begun. In this case, the claimant did not appear for the trial at the appointed time. The claimant had not notified or communicated with his counsel as to the fact that he would not be appearing. Counsel for the defendants had appeared and was ready to proceed with the trial of the case. Accordingly, it is determined that claimant should not be allowed to dismiss the case without prejudice. Claimant has the burden of proving by a preponderance of the evidence that he received an injury on February 2, 1988 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154. N.W.2d 128 (1967). Claimant failed to introduce any.evidence whatsoever. It is therefore apparent that he has failed to meet the burden of proof which the law places upon him. FINDING OF FACT 1. Claimant has failed to introduce evidence which shows it to be probable that he sustained any injury on February 2, 1988. CONCLUSION OF LAW 1. Claimant has failed to prove, by a preponderance of the evidence, that he sustained an injury which arose out of and in the course of his employment on February 2, 1988. ORDER IT IS THEREFORE ORDERED that claimant take nothing from this proceeding. IT IS FURTHER ORDERED that the costs of this action are assessed against claimant pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 7th day of August, 1989. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. James P. Hoffman Attorney at Law Middle Road P.O. Box 1066 Keokuk, Iowa 52632 Ms. Vicki L. Seeck Attorney at Law 600 Union Arcade Building 111 East Third Street Davenport, Iowa 52801 51402.20, 51402.30 Filed August 7, 1989 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER GERALD GENE JACKSON, Claimant, vs. File No. 865892 KAST KEOKUK STEEL CASTINGS CO. A R B I T R A T I O N Employer, D E C I S I O N and BITUMINOUS INSURANCE COMPANIES, Insurance Carrier, Defendants. 51402.20, 51402.30 Claimant failed to appear for hearing. His claim was therefore denied. BEFORE THE IOWA INDUSTRIAL COMMISSIONER REX BELL, Claimant, File No. 865895 vs. A R B I T R A T I O N JOHN DEERE WATERLOO WORKS, D E C I S I O N Employer, Self-Insured, F I L E D Defendant. DEC 18 1989 INDUSTRIAL SERVICES INTRODUCTION This is a proceeding in arbitration brought by Rex Bell against his self-insured employer, John Deere Waterloo Works. The case was heard and fully submitted at Waterloo, Iowa on April 20, 1989. The record in the proceeding consists of testimony from Rex Bell and Robert Demuth. The record also contains jointly offered exhibits A through J. ISSUES Claimant seeks compensation for injuries that he sustained when he was involved in an altercation with a coemployee, Loren Scott, on March 10, 1988. The parties stipulated to all applicable issues, including healing period and permanent partial disability entitlement, except for the issues of whether the injury arose out of and in the course of employment and whether the injury was barred by the provisions of Iowa Code sections 85.16(1) or (3). A further issue exists with regard to which party carries the burden of proof regarding whether the injury arose out of and in the course of employment or that the claim is barred by the provisions of Iowa Code section 85.16. SUMMARY OF EVIDENCE The following is a summary of evidence presented in this case. Only the evidence most pertinent to this decision is discussed, but all of the evidence received at the hearing was considered in arriving at this decision. Conclusions about what the evidence showed are inevitable with any summarization. The conclusions in the following summary should be considered to be preliminary findings of fact. There is little actual dispute in the record with regard to the material facts of this case. Claimant injured his knee on March 10, 1988 while involved in an altercation with Loren Scott, another John Deere ,employee. The altercation occurred on the employer's premises at a place where it was reasonable,for claimant to be in view of his work duties. Claimant testified that Scott attacked him and that claimant acted only in self-defense. The employer instituted disciplinary action against both claimant and Scott. Both employees were discharged, but subsequently reinstated. The information provided by claimant at his disciplinary hearing was generally consistent with the information which he provided through his testimony at this hearing (exhibit B). The information provided by Scott at his disciplinary hearing was to the effect that claimant had insulted him and initiated the altercation (exhibit D). The record reflects that the parties had a previous altercation on the employer's premises, which altercation occurred on June 10, 1986. Disciplinary action was taken against both employees following that incident. The disciplinary reports indicate that each employee blamed the other for starting the altercation (exhibits A and C). None of the reports from the disciplinary hearings provide any information regarding the source or nature of the animosity between claimant and Scott. Scott did not appear and testify at this hearing. Claimant testified that he first met Scott in 1972 when they both had entered the electrician apprentice program. Claimant stated that he and Scott were both participants in the program which claimant described as containing four years of correspondence course study. Claimant stated that he and Scott worked together on the correspondence courses and studied together during the four-year course. Claimant stated that he was not aware of any animosity between them while the course was ongoing., Claimant testified that when the term of the course had ended, he was promoted into a job as an electrician, but that the company felt Scott had not successfully completed the course and Scott was returned to the foundry. Claimant stated that Scott eventually was also made an electrician after an appeal was taken. Claimant testified that he is not aware of the source of the animosity which Scott apparently feels for him. He stated that on one occasion in 1981 or 1982, he and Scott had an altercation away from the employer's plant which was started by Scott. Claimant stated that he generally avoids Scott, both within and outside of the plant . Claimant stated that he has not actually worked with Scott in the plant and has not maintained any personal relationship with Scott inside or outside the plant since the apprenticeship program ended. Claimant testified that he is not aware of the reason for Scott's animosity. There is no other evidence in the record of this case which provides any insight into the reason or basis for the altercations which have occurred or of the animosity which clearly exists between Bell and Scott. APPLICABLE LAW AND ANALYSIS Claimant has the burden of proving by a preponderance of the evidence that he received an injury on March 10, 1988 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Sheerin v. Holin Co.,,380 N.W.2d 415 (Iowa 1986); Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979); McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The "arising out of" requirement is met by showing a causal relationship between the injury and the employment. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d~298 (Iowa 1979). In this case, claimant testified in person at hearing. His evidence is uncontroverted, except for what appears in the reports regarding Loren Scott's disciplinary hearings. Claimant testified that Scott was the aggressor. Claimant's appearance and demeanor were observed while he testified at the hearing before the,undersigned. No witness who testified at the hearing controverted claimant's testimony in any manner with regard to who was the aggressor. Claimant is determined by the undersigned to be a credible witness. It is therefore determined that the claimant has proven, by a preponderance of the evidence, that the injury to his knee occurred in the manner which he described at hearing. In particular, the claimant proved that he was not the aggressor and that the injury did not occur as a result of claimant's willful intent to injure either himself or to injure Loren Scott. From the evidence presented, claimant clearly prevails with regard to Iowa Code section 85.16(1) regardless of which party is assigned the burden of proof. It is recognized that it has been held that the Iowa Supreme Court has ruled that the burden of proving the bar to recovery which is provided by Code section 85.16(2) rests on the defendant. Reddick v. Grand Union Tea Co., 230 Iowa 108, 115, 296 N.W. 800, 803 (1941). The parties have both ably briefed the law regarding injuries which result from third party actions. The decision in this case turns upon which party must carry the burden of proof. The record in this case does not contain any clear showing of the reasons for the attack which Scott made against claimant or for the animosity which apparently exists between them. In view of the fact that their contact with each other has been almost exclusively within the employer's plant, that fact alone provides evidence that the reason for the animosity has something to do with the employment. The undersigned would expect that Scott would have developed animosity toward claimant in 1976 when the electrician apprentice course was completed and claimant was promoted but Scott was not. It is certainly conceivable that Scott may have somehow blamed claimant for being sent to the foundry when claimant was immediately assigned a position as an electrician. Perhaps Scott felt that claimant had in some manner betrayed him. The evidence of an employment connection with the animosity is minimal. It is greater, however, than the evidence of any source of animosity which did not arise from the employment setting. The record is totally devoid of any nonemployment source of animosity. The factual issue is sufficiently close, however, that the legal issue regarding which party has the burden of proof must be addressed. It is determined that the claimant has the initial burden of making a prima facie showing that the injury arose out of the employment. Attacks made by coemployees are considered to arise out of the employment. Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979). If the workplace places an employee in close proximity to a mentally deranged coemployee, the resulting injury is compensable. Likewise, if the workplace creates animosity between employees, such as that arising from competition for promotions or favorable work assignments, any resulting injury is compensable. In this case the only substantial contact between Bell and Scott shown in the record is that which resulted from the employment. Claimant has therefore made the required prima facie showing. In order to make the required prima facie showing, it is not necessary for the claimant to disprove any of the section 85.16 defenses. The general rule with regard to burden of proof is that the burden of proving an entitlement to anything rests on the proponent. Norland v. Iowa Dep't of Job Serv., 412 N.W.2d 409, 410 (Iowa 1987); Wonder Life Co. v. Liddy, 207 N.W.2d 27 (Iowa 1973). The defenses provided by Code section 85.16 are generally considered to be affirmative defenses where the burden of pleading and proof is placed on the defendant. Lawyer and Higgs, Iowa Workers' Compensation -- Law and Practice, section 7-4. The industrial commissioner recently confirmed the agency precedent which places the burden on the employer. Schaapveld v. University of Iowa, file number 814525 (App. Decn. August 15, 1989). It is therefore determined that, once the claimant makes a prima facie showing that the injury arose out of the employment, the burden of proving facts which would bar recovery under section 85.16 rests on the employer. Where the evidence fails to demonstrate, by a preponderance of the evidence, that one or more of the three defenses provided by Code section 85.16 are applicable, the claimant recovers. Since the employer has failed to prove that Scott's attack was motivated by a reason personal to claimant, rather than due to an animosity which has its source in the employment, claimant is entitled to recover the benefits which the parties stipulated would be payable in the event of liability. FINDINGS OF FACT 1. Rex Bell injured his right knee on March 10, 1989 when he was attacked by Loren Scott, a fellow employee, at the John Deere plant. 2. At the time of the attack, Bell was performing activities which were consistent with and part of the duties of his employment. 3. Bell did not institute the altercation. To the contrary, the altercation commenced with an attack by Scott. 4. The evidence in the case shows it to be possible that the reason for the attack, and the underlying animosity between Bell and Scott, resulted from their association with each other as coemployees of the John Deere Waterloo Works. The record presented provides no basis, beyond mere speculation, that the animosity between claimant and Scott arose from any source other than their employment. 5. The precise source of the animosity between claimant and Scott cannot be determined with certainty from the evidence which was introduced. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. Rex Bell sustained an injury to his right knee which arose out of and in the course of his employment with John Deere Waterloo Works on March 10, 1988. 3. The employer has failed to prove by a preponderance of the evidence that the injury was either the result of claimant's willful intent to injure himself or to injury another. 4. The employer has failed to prove by a preponderance of the evidence that the injury was the result of a willful act of a third party directed against claimant for reasons personal to claimant. 5. Claimant is therefore entitled to recover the benefits which were stipulated by the parties. ORDER IT IS THEREFORE ORDERED that the employer pay claimant twelve and three-sevenths (12 3/7) weeks of compensation for healing period at the stipulated rate of four hundred thirty-two and 76/100 dollars ($432.76) per week payable commencing March 11, 1988. IT IS FURTHER ORDERED that the employer pay claimant twenty-two (22) weeks of compensation for a ten percent (10%) permanent partial disability of the right leg under the provisions of Iowa Code section 85.34(2)(o) payable commencing June 6, 1988. IT IS FURTHER ORDERED that the entire amount thereof is past due and 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 at the rate of ten percent (10%) per annum pursuant to Iowa Code section 85.30. IT IS FURTHER ORDERED that the costs of this proceeding are assessed against the employer pursuant to Division of Industrial Services Rule 343-4.33. IT IS FURTHER ORDERED that the employer file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 18th day of December, 1989. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert D. Fulton Attorney at Law 6th Floor, 1st National Building P.O. Box 2634 Waterloo, Iowa 50704 Mr. John W. Rathert Attorney at Law 620 Lafayette Street P.O. Box 178 Waterloo, Iowa 50704 1402.30, 1403.30, 1602 1603 Filed December 18, 1989 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER REX BELL, Claimant, File No. 865895 vs. A R B I T R A T I O N JOHN DEERE WATERLOO WORKS, D E C I S I O N Employer, Self-Insured, Defendant. 1402.30. 1403.30, 1602, 1603 Claimant was injured in an altercation which occurred at work with a coemployee. From the record which was made, it was possible, though not clear, that a longstanding animosity between the two individuals had its origin in the employment. No direct evidence was introduced in the case which provided any source for the animosity. It was held that the claimant has the initial burden of making a prima facie showing that the injury arose out of the employment by evidence which in some manner connects the attack with the employment. Once the prima facie showing is made, the burden of proof of any defense available under Code section 85.16 lies with the employer. It is not necessary for the claimant to disprove any of those possible defenses in order to make the initial prima facie showing that the injury arose out of the employment. 5-3000; 5-1802 Filed October 29, 1992 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DARRELL FOREMAN, Claimant, vs. File No. 865901 FOREMAN ELECTRIC & HARDWARE, A P P E A L Employer, D E C I S I O N and HERITAGE INSURANCE, Insurance Carrier, Defendants. ____________________________________________________________ 5-3000 Found claimant's rate based on his draw from his family owned, closely held corporation to be $150. This $150 draw which equalled $7,800 per year was, in fact, what he reported as his income as employee of his corporation, on his and his wife's personal tax and corporate tax returns and payroll returns. It was this same amount on which he figured his FICA and withholding. At his hearing, claimant contends he was worth $35,200 to his corporation based on his time and expertise contribution and that 61% of the rent and other expenses should be considered for the workers' compensation rate, i.e., $676.92 gross vs. $150 gross. The parties stipulated claimant had a 60% industrial disability. 5-1802 Found claimant's healing period was 66.857 weeks and not 104 weeks. Healing period ended when claimant returned to work. Page 1 before the iowa industrial commissioner ____________________________________________________________ : DARRELL FOREMAN, : : Claimant, : : vs. : : File No. 865901 FOREMAN ELECTRIC & HARDWARE, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : HERITAGE INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This case came on for hearing on September 26, 1991, at Des Moines, Iowa. This is a proceeding in arbitration wherein claimant seeks compensation for permanent partial disability benefits as a result of an injury occurring on October 5, 1987. The record in the proceeding consists of the testimony of the claimant; claimant's wife, Nancy Foreman; and John Booth; and joint exhibits 1 through 15; and pages 16, 17, 18, 19, 47, 48 and 49 of joint exhibit 16. ISSUES The issues for resolution are: 1. The extent of claimant's healing period; 2. The rate at which healing period benefits are to be paid; and 3. The commencement date of the payment of permanent partial disability benefits. findings of fact The undersigned deputy having heard the testimony and considered all the evidence, finds that: Claimant is 49 year old. He related his education and work experience prior to starting his and his wife's own business approximately 23 years ago. Claimant and his wife incorporated this electrical heating, plumbing and hardware business in 1981, pursuant to their accountant's advice, mainly at the time, due to better tax treatment of insurance funds to be received as a result of a fire damaging their business. Other than for the incorporation, the claimant and his Page 2 wife ran this business basically the same as they did before the incorporation except for a need to prepare different or additional documents and tax returns and record keeping. Claimant and his wife are now as they were at the time of claimant's October 5, 1987 injury, the sole stockholders, officers and directors of this corporation and are two of approximately three or four employees. The evidence is undisputed that defendant corporation ran the corporation as a corporation and the federal and state corporate tax returns, payroll tax returns and the parties' personal tax returns that were prepared at the required times reflect the true, accurate status of the personal and the corporation's financial situation as to income expenses, deductions, salaries, rents, etc. Claimant, his wife, and their accountant also testified there are no anticipated amendments and that the returns to this day are correct and that no changes should or are to be made. It is undisputed that claimant drew $150 per week from the corporation in fiscal year ending August 1986 and fiscal year ending August 1987, and at the time of his injury on October 5, 1987. There was considerable testimony of claimant and a vocational consultant indicating the nature of claimant's work and time spent doing certain types of work as an electrician, plumber, administrator, etc. As a conclusion of this testimony, claimant believes his services to defendant corporation and money generated in wages was at least $23,000 to $37,000. Claimant, through joint exhibits 1 and 2, in fact, believes his income as of October 5, 1987, was $35,200 per year. Claimant's vocational rehabilitation expert indicated that with claimant's 23 years of expertise and his supervisory ability, he would be making $37,000 per year, at least, if he was working for another as an electri cian, plumber, heating and air conditioning, expert and doing supervisory and administrative work. Joint exhibits 8 through 12 reflects claimant's personal and the corporation's tax returns and W2's for the years 1986 and 1987. Although they reflect the income and expense picture of claimant and his wife and defendant corporation, as per the testimony of claimant, his wife and their accountant, claimant contends that his income should be based on a 61 percent participation in the gross income and that $150 per week should not be used for workers' compensation purposes but that a gross weekly figure of approximately $676.92 should be used in arriving at a rate. It is undisputed that claimant and his witnesses testified that claimant's salary on the tax return for 1986 was $7,800 (Jt. Ex. 10, p. 2), and the ordinary and required FICA and withholding taxes were taken out accordingly. Claimant testified he was paid $150 per week in 1987 until his injury. He also testified that upon his return to work on or around January 15, 1989, he was continuing to draw $150 per week until sometime apparently in 1991. Page 3 Claimant contends part of the rent as well as part of other expenses should be income notwithstanding the fact that it was paid as rent or as other deductions by the corporation and no FICA or withholding taxes were paid on any of these expense amounts. Claimant acknowledges that the payment of rent by defendant corporation which was paid to claimant and his wife was directly then paid by them on their personal loan to the bank. This loan was incurred when claimant and his wife built the building in which defendant corporation is doing business and paying rent. Claimant further acknowledges that if the rent or these other corporate deductions were income at the time, then FICA and tax withholding should have been paid or deducted which would result in a reduction in the amount for which they would have to timely pay their mortgage payments. It is obvious the claimant and his wife now take the position that some of their rent is his income thereby indicating that the corporation would not then be paying rent. It is obvious that in this scenario, the internal revenue service would not allow claimant to take advantage of certain deductions or expenses nor would it consider the corporation renting free a building in order to get some other tax advantages for its own family owned corporation. The internal revenue service would set a reasonable amount that it would consider defendant corporation pay to a landlord as rent. The claimant's wife did not indicate that the money paid to her which she applied on the personal loan was now considered income to her. Claimant's testimony reflects his contention that he is worth more than $150 per week to defendant corporation. He contends that if he were an electrician and a plumber working for someone else, he would be making substantially more money. Although claimant's expertise working for some other person or corporation full time may result in more personal income, the fact is claimant chose his way and style of doing business. With it comes many advantages which one cannot apply a direct or exact monetary value. Claimant and his wife are sole owners of the corporation so they are their own boss. They can do what they please, take off many tax deductions they could not otherwise take if they were working for another, or if they had some other arrangement within their corporate and personal affairs. They do not even have a written lease. The undersigned listened with interest the explanation of some of the expenses and deductions that defendant corporation took which benefited the claimant and his wife which might catch the observing eye of a government tax auditor. The accountant obviously emphasized he took the figures that claimant and/or his wife gave him. It is apparent and undisputed that the claimant took advantage of the tax laws when he incorporated. He did not incorporate under S Chapter provisions, at least through his testimony, though there is other evidence he did. That is immaterial to the issue herein. It is apparent to the undersigned that defendant corporation is providing an existence to claimant and his wife and a place to work and Page 4 help in paying off their personal loan, so eventually, the building will be owned by claimant and his wife free and clear. In this financial setup, the business could not pay the claimant $23,000 to $37,000 a year and pay the necessary corporate expenses. It is apparent to the undersigned that this is not a corporation that is able to provide claimant with the tax advantages and deductions and a substantial income on top of it. The corporation paid no dividends. Claimant has gone to a great extent (Jt. Exs. 1 through 5) to convince the undersigned that claimant was making $35,200 per year and it is upon this gross one should figure the rate. This figuring would not comply with the IRS standards, and claimant and his accountant has no intent to amend their tax return. Claimant made his nest and he must now lie in it. Hindsight is always better than foresight. Claimant now wants his cake and eat it both. It would be interesting to see claimant and defendant corporation defend itself from the IRS and what position it would take if this transcript was made available to the IRS. Hindsight might again come to haunt the claimant and defendant corporation. The undersigned finds that there is no necessity to dwell on this issue any longer or set out additional facts. The claimant cites certain cases and in particular D & C, Inc. v. Sperry, 450 N.W.2d 842 to additionally support its contention. The undersigned finds that the facts herein are not similar to the facts in the Sperry case. It is important in the case at bar that claimant, himself, determined prior to his injury his draw (salary) and this was the figure he used on his tax returns which are signed as correct under the penalty of law. Defendants' attorney did an excellent job of bringing out the obvious difficulty of claimant's method that he is now trying to convince the undersigned that the claimant's income was different than what he claimed on the tax returns. The undersigned finds that claimant's rate for weekly benefits is $108.67 per week based on claimant's gross salary of $150.00 per week, married with one dependent child, as of the date of October 5, 1987. The remaining issue is the extent of claimant's healing period. Claimant contends it is two years beginning October 6, 1987, up to but not including October 6, 1989. Defendants contend it is October 6, 1987, up to and including October 5, 1988, and November 17, 1988 through January 15, 1989, which amounts to 60.857 weeks. The record is confusing as to the extent of claimant's healing period. The testimony of Scott B. Neff, D.O., in his deposition, adds to this confusion as he indicates that as of April 9, 1989, he did not have nor was he able to determine a healing period date for claimant (Jt. Ex. 16). (Also, see Jt. Ex. 13, p. 9) On page 7 of joint exhibit 13, Dr. Neff refers to a two year average healing period following a femur fracture. The doctor made a similar two year comment in his deposition (Jt. Ex. 16, p.17). On page 47 and 48 of joint exhibit 16, Dr. Neff seems to indicate in July 1989 that he could do nothing for claimant and Page 5 acknowledges he is making seemingly contradictory statements as to claimant's healing period. On page 6 of joint exhibit 13, Dr. Neff's notes indicate "I believe that he is capable of returning to work on a light duty basis with gradual increase of work capability." Claimant was asked when he resumed any part of his duties, either physical or administrative, and it appears in his deposition he agreed or at least referred to the date defendant insurance company had for the end of his healing period, namely, January 1989 (Jt. Ex. 14, pp. 32, 33). The evidence shows claimant was drawing $150 per week in January of 1989, which was what he was drawing at the time of his October 5, 1987 injury. It appears later this was increased to $200 per week, possibly sometime in 1991. Claimant's wife was not being paid anything for her full- time work until December 1990, when she was paid $200 per week (Jt. Ex. 15, pp. 4, 5) Mrs. Foreman said claimant was not being paid anything more than the $150 at that time but sometime thereafter claimant was paid more. It appears from the evidence claimant was possibly beginning to posture himself for this litigation or playing some more tax game gymnastics. The undersigned finds that the most credible date is January 15, 1989. This date is supported by the greater weight of evidence even though it is not an easy decision. Claimant was back to his full draw (salary). Although his duties were less, he was back to work and contributed to his family owned corporation. From the evidence, it is hard to determine the gap in defendants' contention in which healing period would not be payable from October 6, 1988 up to November 17, 1988, a period of approximately six weeks. The undersigned finds that claimant's healing period began on October 6, 1987 through January 15, 1989, amounting to 66.857 weeks. With this healing period established, any permanent partial disability would begin January 16, 1989. The parties had stipulated to the extent of claimant's industrial disability, which they stipulated to be 60 percent. The parties agreed that defendants would be given credit for 360.571 weeks of benefits that they have either paid or will be paying and that what has been paid has been paid at the rate of $108.67. The net result of this decision after allowing the credits for amounts paid or to be paid under the stipulated industrial disability, is that claimant is entitled to an additional 6.286 weeks of disability benefits which is represented by the additional healing period as set out above. conclusions of law Iowa Code section 85.36(1), provides: The basis of compensation shall be the weekly earnings of the injured employee at the time of the injury. Weekly earnings means gross salary, Page 6 wages, or earnings of an employee to which such employee would have been entitled had the employee worked the customary hours for the full pay period in which the employee was injured, as regularly required by the employee's employer for the work or employment for which the employee was employed, computed or determined as follows and then rounded to the nearest dollar: 1. In the case of an employee who is paid on a weekly pay period basis, the weekly gross earnings. Iowa Code section 85.34(1) provides that if an employee has suffered a personal injury causing permanent partial disability, the employer shall pay compensation for a healing period from the day of the injury until (1) the employee returns to work; or (2) it is medically indicated that significant improvement from the injury is not anticipated; or (3) until the employee is medically capable of returning to substantially similar employment. It is further concluded that: Claimant's gross income was $150 per week at the time of his October 5, 1987 work injury. Claimant claimed, for purposes of his personal, federal and state income tax returns, payroll tax, FICA and withholding deductions, that his gross income on the date of his injury of October 5, 1987, was $150 per week and that this $150 gross was claimant's salary and that the rate of $108.67 per week is based on Iowa Code section 85.36(1). Claimant returned to work on January 16, 1989, and resumed light duty work and received the same salary as he received prior to his injury, namely, $150 gross per week which he took out as a draw but, in fact, per his income tax returns, this was his resulting salary. Claimant incurred a healing period beginning October 6, 1987 through January 15, 1989, which encompasses a total of 66.857 weeks, payable at the rate of $108.67 per week. The commencement of claimant's permanent partial disability benefits would begin January 16, 1989. order THEREFORE, it is ordered: That claimant shall be paid the sixty percent (60%) industrial disability, which amounts to 300 weeks and which has been stipulated by the parties. Said benefits shall be paid at the weekly rate of one hundred eight and 67/100 dollars ($108.67) per week. That claimant shall be paid healing period beginning October 6, 1987 through January 15, 1989, amounting to sixty-six point eight five seven (66.857) weeks at the rate of one hundred eight and 67/100 dollars ($108.67) per week. Page 7 That permanent partial disability benefits shall begin on January 16, 1989. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall pay the costs of this action, pursuant to rule 343 IAC 4.33. That defendants shall file an activity report upon payment of this award as required by this agency, pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of October, 1991. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Steven C Jayne Attorney at Law 5835 Grand Ave Ste 201 Des Moines IA 50312 Mr Roger L Ferris Attorney at Law 1900 Hub Tower 699 Walnut Des Moines IA 50309 3000; 1802 Filed October 4, 1991 Bernard J. O'Malley before the iowa industrial commissioner ____________________________________________________________ : DARRELL FOREMAN, : : Claimant, : : vs. : : File No. 865901 FOREMAN ELECTRIC & HARDWARE, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : HERITAGE INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 3000 Found claimant's rate based on his draw from his family owned, closely held corporation to be $150. This $150 draw which equalled $7,800 per year was, in fact, what he reported as his income as employee of his corporation, on his and his wife's personal tax and corporate tax returns and payroll returns. It was this same amount on which he figured his FICA and withholding. At his hearing, claimant contends he was worth $35,200 to his corporation based on his time and expertise contribution and that 61% of the rent and other expenses should be considered for the workers' compensation rate, i.e., $676.92 gross vs. $150 gross. The parties stipulated claimant had a 60% industrial disability. 1802 Found claimant's healing period was 66.857 weeks and not 104 weeks. Page 1 before the iowa industrial commissioner ____________________________________________________________ : BILL KRAMME, : : Claimant, : : vs. : : File No. 865928 STYLE CRAFT, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : THE TRAVELERS, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in arbitration upon claimant's petition filed November 14, 1988. Claimant sustained an injury to his shoulder arising out of and in the course of his employment with defendant Style Craft, Inc., on September 8, 1987, while maneuvering rolls of fabric during the course of his warehouse duties. He now seeks benefits under the Iowa Workers' Compensation Act from that employer and its insurance carrier, The Travelers. Hearing on the arbitration petition was had in Storm Lake, Iowa, on December 26, 1989. The record consists of joint exhibits 1 through 12 and the testimony of the following witnesses: claimant, Stanley Thorpe, Paula Zenor, Thomas Lynn and Craig Schmeling. In addition, three of the exhibits consist of the depositions of Marilea Bailey, Arlene Berry Luchtel and Dean Schoning. issues Pursuant to the prehearing report, the parties have stipulated: that claimant sustained an injury arising out of and in the course of his employment with Style Craft, Inc., on September 8, 1987; that the injury caused temporary and permanent disability; that the extent of claimant's entitlement to healing period benefits is not in dispute; that claimant sustained an industrial disability to the body as a whole and the commencement date for permanency benefits is December 2, 1987; that the appropriate rate of weekly compensation is $202.45; that defendants paid 12.5 weeks of compensation at the stipulated rate prior to hearing. Issues presented for resolution include: the extent of claimant's entitlement to compensation for permanent disability; the extent of entitlement to medical benefits (although defendants conceded that the only accrued and Page 2 unpaid bill, exhibit 9, should be compensated); taxation of costs. findings of fact The undersigned deputy, having heard the testimony and considered all of the evidence, finds: Claimant, 37 years of age at the time of hearing and a 1970 high school graduate, has taken four years of college courses, and has been awarded an Associate of Arts degree. He last attended classes in 1974. His work history includes seasonal and manual labor in the twisted rope department of Berkeley & Company, seasonal work as a carpenter, driving and delivery work, warehouse work, brick and block laying, heavy equipment operation and warehouse work with defendant as a laborer and in a supervisory capacity. Defendant Style Craft, Inc., is a furniture manufacturer. Claimant has worked a number of jobs since the work injury. He attempted to lay concrete block with some friends, but found that his shoulder was too painful after two days at that endeavor. He worked for a tree service, but found himself unable to climb because of his shoulder and dislike of heights. He worked as a carpenter for two different companies, but found overhead work and hanging sheet rock too painful. He worked in a sales position for a time, but left because of low commissions. Just over a month before hearing, claimant took a position as head of the receiving department for a discount department store. Claimant earned $7.50 per hour with defendant, and now earns $4.85 per hour without fringe benefits. However, he anticipates a $.15 hourly raise after his 90-day probationary period. Claimant also anticipates gaining various fringe benefits at that time, including health insurance and a profit sharing and stock option program. Claimant sustained his injury while manipulating rolls of fabric. He developed pain in the right shoulder, like something "let go" and his arm dropped. Claimant is right-handed. He was thereafter treated by J. Michael Donohue, M.D. Dr. Donohue released claimant to work with restrictions and defendant did allow light-duty employment for a time. As of December 2, 1987, Dr. Donohue's chart notes reflect that claimant had reached maximum medical recovery and he was released for all activities with a permanent restriction against repetitive use of the right upper extremity above chest level. Dr. Donohue later opined that claimant had sustained a permanent impairment of the right upper extremity equivalent to 2%-3% of the body as a whole attributable to the stipulated work injury. His diagnosis was of mild impingement syndrome. Claimant's restrictions would make it difficult or impossible for him to do at least some parts of his regular job. However, he was not given the opportunity to try any work and was discharged because of his medical restrictions. Defendants assert that the reason for the discharge was job Page 3 misconduct on claimant's part. In fact, the record is replete with evidence that claimant was in many respects an unsatisfactory employee. For example, he was of surly temperament, wasted time, made excessive careless errors and engaged and permitted others to engage in a great deal of horseplay (rubber band wars, paper wad basketball and suchlike, with a watch posted against the possible appearance of a more responsible supervisor). Claimant had in fact been demoted approximately one month prior to the work injury. However, the incidents upon which defendants base their case for a misconduct discharge generally occurred before the injury, defendants did not contest claimant's subsequent claim for job insurance benefits (resulting in a determination by the Department of Employment Services that he had not been discharged for misconduct and resulting in the payment of benefits), the progressive disciplinary scheme contemplated by company policy was largely ignored (although claimant was repeatedly "counseled" and given one vacation day to conduct an "attitude check"), and personnel manager Zenor admitted that medical restrictions were (at least) part of the reason for his discharge. None of the other participants in the horseplay incidents were discharged. While defendant may well have been motivated to make a greater effort at keeping claimant employed had he been a more satisfactory employee, it is clear to this observer and it is so found that the primary reason for claimant's discharge was his work injury and resultant medical restrictions. Executive vice- president Ben Frazier wrote to claimant on June 7, 1988: "[w]e regret that your medical condition led to this situation" (a layoff due to the lack of appropriate work due to claimant's medical restrictions). Defendant now employs approximately three times as many employees as was the case when claimant was injured, but has not elected to offer him any employment whatsoever. In 1987, claimant's earnings were approximately $13,000 (the injury being in September), and in 1988 and 1989, he earned only a total of approximately $7,500. Claimant now suffers from a sore shoulder with overhead work and suffers some pain at other times, sometimes even when resting. He has lost jobs due to his inability to work over chest level and believes that he was not hired in others due to his history of shoulder injury and restrictions (which he discloses on job applications). Stanley Thorpe testified as a vocational rehabilitation specialist. He is employed by Iowa Lakes Community College in that field. His assessment pointed out that claimant has many aptitudes, scoring high in mental, verbal and skills areas, and that his extensive, if incomplete, college education and age favor his employability. However, he noted that employment in fields involving heavy labor would now be difficult for claimant because of the type of injury and because of reluctance of some employers to hire people so injured. He believed that claimant has suffered a diminution in his employability because he is now unable to Page 4 perform most of the jobs in his work history. Dr. Donohue charged $23.10 for a brief examination of claimant on June 22, 1988. Claimant had noted increased symptomatology and was assessed as having recurrent impingement syndrome. Dr. Donohue's chart notes reflect that claimant was reevaluated "for his right shoulder injury from last year." conclusions of law Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, expe rience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disabil ity. This is so as impairment and disability are not syn onymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to Page 5 make the finding with regard to degree of industrial dis ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, l985). Many of Stanley Thorpe's observations were well taken. The single most important factor in determining industrial disability in this case is that claimant is disabled from the vast majority of work he performed pre-injury because of his current medical restriction against repetitive lifting at chest level or above. In particular, carpentry, brick laying and warehouse laboring seem out of the question. Claimant's impairment rating may be minor (and in the experience of this writer, seems perhaps less than many other physicians might assign), but the restriction as to the use of claimant's right shoulder (he is right-handed) is severe, especially given his vocational background. Although claimant did not seem particularly well motivated to seek further employment, he has performed work, has sought yet other work, and has nonetheless sustained a serious drop in income. Defendant's refusal to offer him any employment following the injury may itself give rise to industrial disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). Defendant's refusal to offer work is illustrative of the problems claimant may find in seeking work with other employers. That is, it is unfortunately the case that his desirability as a potential employee is surely diminished in the eyes of at least some potential employers. On the other hand, claimant's age, educational background and intelligence should facilitate retraining and give him something of a competitive advantage in seeking future employment. Considering the record in general and these factors in particular, it is held that claimant has sustained an industrial disability equivalent to 50 percent of the body as a whole, or 250 weeks. Dr. Donohue's bill totalling $23.10 was clearly incurred following a recurrence of claimant's mild impingement syndrome. There is a clear causal relationship to the work injury and no shred of contrary evidence exists of record. Defendants shall be ordered to pay this bill. To the extent claimant seeks an award of future medical benefits, it should be noted that defendants' stipulation that the injury arose out of and in the course of employment carries with it the obligation to furnish reasonable medical services and supplies and reasonably necessary transportation expenses incurred for the services. Iowa Code section 85.27. There are no specific treatment modalities at issue here, except for Dr. Donohue's recommendation that claimant reinstitute his exercise program. Reasonable charges for that exercise program should be paid by defendants; the issue of future medical entitlement is otherwise moot. order THEREFORE, IT IS ORDERED: Page 6 Defendants are to pay unto claimant two hundred fifty (250) weeks of permanent partial disability benefits at the stipulated rate of two hundred two and 45/100 dollars ($202.45) per week, totalling fifty thousand six hundred twelve and 50/100 dollars ($50,612.50). The commencement date for permanent partial disability benefits is December 2, 1987. Defendants shall pay Dr. Donohue's bill of June 30, 1988 totalling twenty-three and 10/100 dollars ($23.10). Defendants shall supply medical services and supplies reasonably necessary to reinstitute claimant's exercise program as per Dr. Donohue's recommendation. All accrued benefits shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. The costs of this action shall be assessed to defendants pursuant to Division of Industrial Services Rule 343-4.33. Defendants shall 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. ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Joseph L. Fitzgibbons Attorney at Law 108 North Seventh Street P.O. Box 496 Estherville, Iowa 51334 Mr. Maynard M. Mohn Attorney at Law 103 North Ninth Street P.O. Box 72 Estherville, Iowa 51334 5-1803 Filed September 6, 1990 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : BILL KRAMME, : : Claimant, : : vs. : : File No. 865928 STYLE CRAFT, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : THE TRAVELERS, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 5-1803 Industrial disability determination.