Page 1 before the iowa industrial commissioner ____________________________________________________________ : JOHN F. BLANCHARD, : : Claimant, : : vs. : : File No. 867353 DECKER TRUCK LINES, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ introduction This is a proceeding in arbitration brought by John F. Blanchard, claimant, against Decker Truck Lines, employer, and Liberty Mutual Insurance Company, insurance carrier, defendants, for benefits as the result of an injury that occurred on October 5, 1987. A hearing was held in Fort Dodge, Iowa, on April 4, 1990, and the case was fully submitted at the close of the hearing. Claimant was represented by Monte L. Fisher. Defendants were represented by Tito Trevino. The record consists of the testimony of John F. Blanchard, claimant; Kelly Blanchard, claimant's wife; defendants' exhibits 1 through 11; pages 1 through 5 and page 18 of defendants' exhibit 12; and defendants' exhibits 13, 16, and 17. Claimant's exhibits 1 through 11 were withdrawn because they were duplicates of defendants' exhibits 1 through 11. Claimant's exhibit 12, the medical bills, was excluded at defendants' objection because they were not timely served and did not appear on a timely served exhibit list as required by paragraph seven of the hearing assignment order. Defendants withdrew their exhibit 14. Defendants' exhibit 15 was excluded at claimant's objection because it was a deposition taken from claimant and claimant was available to testify at the hearing. Defendants' exhibits 16 and 17 were offered, taken and received into evidence at the hearing, claimant stated that he had no objection to these exhibits, and therefore, these exhibits were admitted into evidence and are admitted into evidence at this time even though the deputy failed to make that comment at the time of the hearing on the record. Claimant presented a description of disputes at the time of the hearing. The deputy ordered a transcript of the hearing. Page 2 Claimant's attorney submitted a posthearing brief. Defendants' attorney did not submit a posthearing brief. preliminary matter In an earlier injury on October 31, 1985, claimant sustained an acute lumbosacral (low back) strain while lifting a 125-pound paving form while working for Giese Construction. A CT scan and myelogram were normal, but Samir Wahby, M.D., an orthopedic surgeon, awarded claimant a 5 percent permanent impairment for the reason that claimant might have a recurrence of low back pain. William R. Boulden, M.D., said that claimant had no permanent impairment because of the negative CT scan and myelogram. Deputy Industrial Michael G. Trier determined that claimant had sustained a 5 percent functional impairment to the body as a whole and that he sustained a 10 percent loss of earning capacity as a result of the injury sustained on October 31, 1985. Blanchard v. Giese Construction, file number 811621 (filed December 23, 1987). Official notice is taken of this decision. [Iowa Administrative Procedure Act 17A.14(4)]. In this case, the parties stipulated that claimant sustained an injury to his low back which occurred on October 5, 1987, which arose out of and in the course of employment with Decker Truck Lines. In a later injury Deputy Industrial Commissioner Elizabeth A. Nelson determined that claimant sustained an injury to his low back on June 23, 1989, while working for Omaha Cold Storage Company. Claimant was awarded temporary disability benefits and his medical expenses. Deputy Nelson did not award any permanent partial disability for the reason that claimant had not given Dr. Boulden a complete history and failed to disclose still another episode of low back pain which occurred while claimant was working for Crouse Cartage Company in May of 1988 after the Decker injury and before the Omaha Cold Storage injury. Because of this she was not able to determine whether claimant's disability was attributable to the Crouse injury or the Omaha Cold Storage injury. Blanchard v. Omaha Cold Storage, file number 931382 (filed February 26, 1991). Official notice is taken of this decision. [Iowa Administrative Procedure Act 17A.14(4)]. Two issues which appear on the hearing assignment order (1) time off work and (2) section 85.23, were withdrawn by the parties at the time of the hearing. issues The parties submitted the following issues for determination at the time of the hearing: Whether the injury was the cause of additional temporary disability from July 1, 1989 to October 12, 1989. Whether claimant is entitled to additional temporary disability benefits for this period of time. Page 3 Whether the injury was a cause of permanent disability. Whether claimant is entitled to permanent disability benefits, and if so, the extent of benefits to which he is entitled. Whether claimant is entitled to medical benefits, and if so, the extent of medical benefits to which he is entitled. findings of fact causal connection-temporary disability-permanent disability It is determined that the injury of October 5, 1987, was the cause of both additional temporary disability and permanent disability. First, it should be noted that after the Giese injury on October 31, 1985, which was diagnosed as a strain, both a CT scan and a myelogram disclosed no objective evidence of serious injury to claimant's lower back. Claimant worked for Decker from September 22, 1986 (ex. 12, p. 1) until February 19, 1988 (tr. p. 84). Claimant testified that on October 5, 1987, while working for Decker, he injured his low back while he was manually, with both hands, cranking down a flatbed trailer loaded with wall board to connect it with the fifth wheel of his tractor. He further testified that it takes a lot of force to manually operate this crank and he felt a burning sensation in his back. Nevertheless, he continued to Morris, Illinois, where he was forced to quit driving and was taken to the hospital by ambulance. Claimant was treated at the Morris Hospital from October 5, 1987 to October 7, 1987, by C.M. Cumba, M.D., and Joseph Kannankeril, M.D., an orthopedic surgeon. Dr. Cumba reported that claimant could not move or walk at all. Claimant was admitted for acute low back pain and was diagnosed as having lumbar disc displacement. A CAT scan of the lumbar spine disclosed an L-4, L-5 prominent protrusion with a herniated nucleus pulposus. It also disclosed a slight protrusion at L-3, L-4 and L-5, S-1 (exhibit 5, page 11). Dr. Kannankeril contemplated a myelogram and other definitive treatment (surgery), but claimant was transferred by ambulance and private plane to Trinity Regional Hospital at Fort Dodge on October 7, 1987. Another CT scan at the Trinity Hospital disclosed disc herniation on the left and centrally at the level of the L4-5 disc. Dr. Wahby contemplated a myelogram and a possible lumbar laminectomy (ex. 4, p. 55), but claimant stated that he did not want a myelogram, he had no pain and he wanted to go home from the hospital and so he was discharged on October 10, 1987 (ex. 4, p. 54). However, claimant was back in Dr. Wahby's office on October 15, 1987, with considerable low back pain that radiated into his left Page 4 lower extremity (ex. 3, p. 2). After the Decker injury and prior to the Omaha Cold Storage claimant had another episode of back pain in May of 1988 while working for Crouse Cartage Company. Dr. Wahby recorded that claimant felt sharp pain getting out of the truck, but claimant insisted that the pain was simply brought on by driving and not by getting out of the truck. When he asked for time off work to rest his back he was fired (transcript p. 52). Although claimant was referred by Dr. Wahby to Robert A. Hayne, M.D., an orthopedic surgeon in Des Moines, there is no evidence of any further medical treatment for this episode of back pain by Dr. Wahby, Dr. Hayne or anyone else (ex. 3, p. 3). On March 2, 1989, while claimant was driving for Omaha Cold Storage, he was treated by John Grant, M.D., an orthopedic surgeon. Dr. Grant said claimant attributed this pain to cranking down the trailer while working for Decker. X-rays disclosed minimal narrowing of the L4-5 intervertebral disc space and spurring at L4-L5 and L5-S1 (ex. 8, pp. 1 & 2). Then on June 23, 1989, while driving for Omaha Cold Storage, claimant experienced another acute and incapacitating episode of low back pain while driving to St. Joseph, Missouri (tr. pp. 53-57). Claimant was then treated by Rodney E. Johnson, M.D., and Dr. Boulden. Claimant was admitted to Iowa Lutheran Hospital on July 18, 1989. On July 19, 1989, a CT scan of the lumbar spine showed a prominent L4-L5 herniated disc centrally and slightly to the right. L5-S1 also showed a herniated disc to the right side of the anterior canal (ex. 9, p. 3). On July 21, 1989, Dr. Boulden performed a bilateral diskectomy on L4-5 and a diskectomy of L5-S1 on the right (ex. 9, p. 6). Dr. Wahby gave the opinion, "This patient does not have any permanent disability from his October 5, 1987 injury." (ex. 3, p. 11). He explained in his deposition that this is because he could not find any indication that the patient had sustained any new injuries (ex. 17, p. 17). Dr. Wahby's opinion is obviously incorrect because after the Giese injury in 1985, a CT scan and myelogram were normal and claimant was diagnosed as only having a strain whereas after the Decker injury in 1987, the CT scan at Morris Hospital and Trinity Hospital both disclosed an intervertebral herniated disc at L4-L5. Dr. Wahby admitted to claimant's counsel that a herniated disc will never heal itself (ex. 17, p. 20). He admitted there was a permanent injury, but he denied there was any permanent disability (ex. 17, p. 21). No explanation is offered for how Dr. Wahby determined that claimant had sustained a 5 percent permanent impairment after the Giese injury which was only a strain and a CT scan and a myelogram produced no evidence of a herniated disc and how he could determine that this injury resulted in no permanent impairment when a CT scan at Morris Hospital and a CT scan at Trinity Hospital disclosed a prominent herniated disc at L4-L5 and a less serious disc bulging at L5-S1. Page 5 Although Dr. Boulden stated that claimant did not sustain a permanent injury after the Giese injury on December 31, 1985 (ex. 7, p. 2), he did determine that claimant had a 15 percent permanent impairment after his surgery in July of 1989 (ex. 7, p. 3). After completing a work hardening program Dr. Boulden determined that claimant's work capacity rated out with a medium-heavy clas sification due to his back. He further recommended that claimant not return to truck driving and that job vocational rehabilitation was in his best interest (ex. 7, pp. 4-6; ex. 16, pp. 4-6). He added that claimant was restricted to lifting 50-75 pounds occasionally and 40-50 pounds frequently (ex. 16, p. 6). Dr. Boulden testified that his associate, Dr. Johnson, felt that claimant's symptoms in 1989 (while working for Omaha Cold Storage) were definitely attributable to the ruptured disc which was first diagnosed in October 1987 (while working for Decker) (tr. p. 8). Dr. Johnson ordered a repeat CT scan which disclosed a ruptured disc at both L4-5 and L5-S1. Dr. Boulden said that claimant's continuing to work as a truck driver, not necessarily one incident, was the cause of claimant's worsened condition (ex. 16, p. 9). Dr. Boulden testified that within a reasonable degree of medical certainty that he was able to determine a permanent impairment rating for claimant for the injury of October 5, 1987. Dr. Boulden testified, "Based on the fact of a proven disk protrusion by CT findings in '87 which had not been present prior to that, I would have rated his back out with a 5 percent disability with a proven disk - a herniated disk, that had not been operated on." (ex. 16, pp. 11 & 12). Dr. Boulden allocated the other 10 percent of his 15 percent overall impairment rating to a continuation of truck driving after the October 5, 1987, injury until claimant became totally incapacitated in May of 1989 (ex. 16, p. 12). Dr. Boulden's opinion about impairment for the injury of October 5, 1987, is preferred over the opinion of Dr. Wahby. Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985). Dr. Boulden was not only a treating physician, but he was the latest treating physician and the surgeon who performed the surgery on claimant's back. Likewise, a doctor's expertise and board certification may accord his testimony greater weight. Dr. Wahby is an orthopedic surgeon, but Dr. Boulden is a board certified orthopedic surgeon Reiland v. Palco, Inc., Thirty-second Biennial Report of the Industrial Commissioner 56 (1985); Dickey v. ITT Continental Baking Co., Thirty-fourth Biennial Report of the Industrial Commissioner 89 (1979). In addition, Dr. Boulden's testimony is more reasonable and comports best with all of the evidence in the case. Dr. Wahby admitted that claimant's herniated disc would never heal itself and thus, it would appear that claimant did receive a permanent impairment for this reason alone. Whether it was ratable or not in Dr. Wahby's opinion is another matter. Dr. Wahby's opinion that it did not cause any disability is a matter which is more properly Page 6 determined by the industrial commissioner. Also, Dr. Boulden's opinion comports more with agency expertise based on numerous other back injuries of this nature. [Iowa Administrative Procedure Act 17A.14(5)]. Claimant's contention that his major back problems all stem from the rupture of the intervertebral disc at L4-L5 after cranking down the tailer loaded with wall board while working for Decker on October 5, 1987, is corroborated by the medical evidence. Wherefore, it is determined from the medical evidence alone that the injury of October 5, 1987, was the cause of permanent disability. Other evidence, which follows, also confirms this determination. It is further determined that the injury of October 5, 1987, was the cause of additional temporary disability for the period stipulated to by the parties between July 1, 1989 and October 12, 1989, just prior to and after claimant's two level, bilateral diskectomy by Dr. Boulden. Dr. Boulden testified, "I feel the fact that because of the problem he had with his back and the continued working as a truck driver is the leading candidate for him to have the development of further problems." (ex. 16, p. 9). Dr. Boulden testified that claimant was not released to return to truck driving, but he was released to go to vocational rehabilitation to start looking for occupations that meet the requirements of his restrictions (ex. 16, pp. 13 & 14). When Dr. Boulden was asked if he knew of any other traumas other than October 5, 1987, he responded: As he reported to Dr. Johnson that he really didn't think of much that really happened other than he continued working, and that in itself, being a truck driver, with the condition of his spine something was going to happen, that someday he was probably going to have to have something done. And it happened in 1989. (exhibit 16, pages 20 & 21) Thus, the herniated disc which occurred on October 5, 1987, appears to be the initial, primary and continuing reason for the surgery on July 21, 1989. It became the preexisting condition for the subsequent flare-ups that claimant experienced while working for Crouse and Omaha Cold Storage. The episode of back pain while working for Crouse in May of 1988 and the episode of back pain while working for Omaha Cold Storage in June of 1989, are not associated with any particular, separate and distinct incident or traumatic event other than the continuing degeneration of claimant's back which stems from the traumatic cranking experience on October 5, 1987 that ruptured the L4-L5 disc. But for this injury, claimant should have been able to drive a truck and not have it result in subsequent surgery on July 21, 1989. Dr. Wahby was not able to make a definite statement as to whether claimant's herniated disc would Page 7 become symptomatic if he continued to lead an active life after the Decker injury. Dr. Wahby testified, "You know, that I can't, you know, answer that yes or no. There is no definite rule as far as that goes." (ex. 17, p. 20). Again, Dr. Boulden's opinion is preferred over Dr. Wahby's opinion as to whether the injury of October 5, 1987, was a substantial cause of the surgery performed on July 21, 1989, and the time off work for it. The radiographic report of the CT scan taken on July 19, 1989, of the lumbar spine just prior to the surgery noted at that the L4-L5 level showed a prominent herniated disc whereas the L5-S1 level only showed a herniated disc (ex. 9, p. 3). Thus, it would appear the major problem was the L4-L5 disc herniation which occurred while working for Decker on October 5, 1987. Further causal connection of the injury of October 5, 1987, is found in these words of Dr. Wahby: Q. Okay. I think from your answers to questions from Mr. Trevino there's a very definite herniation of a disk at the L4-5 level in October '87; correct? A. That's correct, and I so stated that. Q. Right. And that was--apparently there's no dispute that was attributable to some incident at work or from his work? A. Based on the histories, yes, I have no problem with that. (exhibit 16, pages 16 & 17) Deputy Nelson related that when claimant returned from St. Joseph, Missouri, after the Omaha Cold Storage injury, that claimant stated to his employers that his back had flared up again as a result of the Decker injury. Claimant testified numerous times that the major injury occurred on October 5, 1987, while working for Decker (tr. pp. 48, 52, 63, and 87). When claimant was asked about the flare-up while working for Crouse in May of 1988, he responded: Page 8 A. My honest opinion, Tito, is it was no different from at Decker Truck Line when it first happened; it just subsided and got worse, subsided, got worse, subsided, got worse." Q. Is it any different than what you had after the Giese injury, John? A. Yes. There's quite a bit of difference. (transcript page 91) Claimant further testified in response to questions as follows: Q. John, as I understand your testimony under cross examination, the pain that you experienced on October 5, 1987, was distinct and different from the pain that you had had from the Giese injury? A. Yes, it was. Q. And up until the time that you had to stop working at Cold Storage and go have your surgery, is it your testimony that you have no recollection of a separate traumatic incident, a new injury, if you will, to your back? A. No. (transcript pages 95 & 96) Dr. Boulden testified that he operated in 1989 because claimant's symptoms had persisted since 1987 (tr. p. 22). Dr. Boulden concluded that it was claimant's last employment for Omaha Cold Storage that necessitated the surgery and most of his disability (ex. 16, pp. 25 & 26). However, Deputy Nelson disregarded Dr. Boulden's testimony on these two points for the reason that Dr. Boulden did not have a complete history which included the incident that occurred with Crouse Cartage Company. Deputy Nelson stated: Dr. Boulden based his opinion on the apportionment for the permanent functional impairment on incomplete information. Dr. Boulden based his opinion on the incorrect assumption that claimant had continuously worked with on and off symptoms until 1989, when in fact, claimant had been injured and incapacitated for at least three months. Without this information, Dr. Boulden's assignment of liability for the second injury is accorded no weight. (Blanchard v. Omaha Cold Storage, file 931382 pages 6 and 7 (Filed February 26, 1991) Deputy Nelson also concluded that Dr. Boulden proceeded on the incorrect assumption that claimant continued to drive for the entire 20-month period between the Decker injury and the Omaha Page òòò 9 Cold Storage injury as a driver for Omaha Cold Storage. (Blanchard, file 931382, footnote on page 6, filed February 26, 1991). Nevertheless, some allowance has to be made for the fact that the L5-S1 herniation became more pronounced after claimant no longer worked for Decker. Defendants make a point of the fact that when claimant was released from Trinity Hospital on October 10, 1987, Dr. Wahby recorded no pain. Claimant's statement of no pain was probably motivated by the fact, as recorded by Dr. Wahby, that he was anxious to get out of the hospital and go home. Furthermore, claimant did not want to have a myelogram. At the time of the myelogram following the Giese injury, the medical notes record that claimant was afraid to have the myelogram for fear it would leave him paralyzed. By October 16, 1987, Dr. Wahby recorded low back pain again radiating into his lower left extremity (exs. 4, p. 54; 3, p. 3). Defendants also make a point of the fact that when claimant applied for work at Crouse Cartage, claimant was refused work because of his back condition, initially, and claimant was required to obtain an opinion from Dr. Wahby before he could go to work, and Dr. Wahby found, on March 28, 1988, that claimant reported no problems with his back and that he had not had any pain lately. These statements were obviously motivated by claimant's desire to be employed at Crouse (ex. 3, p. 3). Claimant's work ethic and desire to work to support his family is admirable, but has also contributed to his current disability. Probably the best evidence of the condition of claimant's back, after the Decker injury and before anything occurred at Crouse and Omaha Cold Storage, is best established by the exten sive examination performed by the International Academy of Chiro practic Industrial Consultants (ex. 13, pp. 3-30). These evalua tors subtracted 49 points from 100 points and gave claimant a biomechanical stress index score of 51 which according to their chart constituted a "very high risk." (ex. 13, p. 11). This is why Crouse declined to hire him initially. In addition to the low score claimant obtained on his preemployment physical examination, these evaluators also commented: Bruised Disc 8 mos. ago while driving. M.D. re leased him. Left leg 1" smaller than right. Low back pain when raising left leg. Can't raise left leg all the way. Left leg weak when muscle tested. Blood in urine. Decreased reflex left leg. Active lumbar disc pathology. Low back pain everyday. Left lateral knee pain everyday." (exhibit 13, page 11). Thus, these evaluators, who had absolutely no stake in this law suit, found claimant to be seriously impaired as a result of the Decker injury on October 5, 1987, to the point where he obtained the lowest possible classification on their evaluation which placed him in the "very high risk" category. For this reason, claimant was not hired by Crouse without the consulting opinion of Dr. Wahby. Moreover, just two or three months later, Page òòò 10 when claimant reported back pain and requested time off work, he was fired by the owner of the truck which he operated for Crouse Cartage. Furthermore, claimant testified that after the October 5, 1987, injury, he lost favor at Decker Truck Lines. When asked why he left Decker Truck Lines, claimant responded: A. We weren't getting along. Problems on leaving time. I never had no problems leaving any other time, but ever since the back injury I started getting the cold shoulder from them. Otherwise I was doing real well with them, was in good with them talked to them all until the back injury. And as soon as I got that, everybody started to kind of turn away and, you know, wasn't getting the loads. Just wasn't the same as it was before, you know. (transcript pages 50 & 51). Wherefore, based on the testimony of Dr. Wahby, Dr. Boulden, The International Academy of Chiropractic Industrial Consul stants, claimant, and the medical records, it is determined that the injury with employer Decker Truck Lines, Inc., on October 5, 1987, was the cause of claimant's additional temporary disability for the stipulated period from July 1, 1989 to October 12, 1989, for the back surgery on October 21, 1989, and it was also a very substantial cause of claimant's permanent disability. entitlement to additional temporary disability Based on the foregoing discussion it is determined that claimant is entitled to an additional 14.714 weeks of healing period benefits for the period from July 1, 1989 to October 12, 1989, the period stipulated to by the parties and which is sup ported by the evidence. Defendants are entitled to a credit for these healing period benefits for the reason they were ordered paid by Deputy Nelson in her decision. entitlement to permanent disability Although claimant's overall industrial disability is more, it is determined the claimant is entitled to 150 weeks of perma nent partial disability benefits based upon a 30 percent indus trial disability to the body as a whole caused by the injury at Decker Truck Line on October 5, 1987. This determination takes into consideration the back strain which occurred while working for Giese Construction as well as the episode of back pain while claimant was working for Crouse and the episode of back pain that claimant experienced while working for Omaha Cold Storage. Bearce v. FMC Corporation, 465 N.W.2d 531 (Ia. App. 1991). With respect to impairment, it is determined that claimant had at least a 5 percent impairment to the body as a whole based upon the nonoperated intervertebral herniated disc according to Dr. Boulden's testimony, irrespective of any other injuries or episodes of back pain which claimant might have encountered at any other time or with any other employer (ex. 16, pp. 11 & 12). In addition, the functional capacity evaluation by Dr. Boulden placed claimant in a medium-heavy classification which is inter Page òòò 11 preted to mean that claimant can lift 50 to 75 pounds occasion ally and 40 to 50 pounds frequently (ex. 7, pp. 4-6; ex. 16, p. 6). The worst restriction, however, is that claimant is fore closed from over-the-road truck driving which he had performed for various companies from 1986 through 1989. Michael v. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218, 220 (Appeal Decision January 30, 1979); Rohrberg v. Griffin Pipe Products Co., I Iowa Industrial Commissioner Report 282 (1984). This would also foreclose claimant from his only other two prior employments of heavy equipment operator and construction laborer. Thus, claimant is unable to return to any of his past employments. Claimant, born March 3, 1962, was 25 years old at the time of the injury; 28 years old at the time of the hearing; and 29 years old at the time of this decision. At claimant's relatively young work career age, claimant could still develop some type of remunerative employment, but his prospects for doing so are extremely limited. Claimant was examined and evaluated by the Iowa Central Community College Assessment Center and an evalua tion report was given on October 30, 1989 (ex. 11). Claimant testified at the hearing that he completed eighth grade, but the community college stated that he attended school up through the ninth grade. Claimant has not obtained a GED. Several vocational tests were performed. Claimant placed below the third grade level in the areas of reading and spelling and at the beginning of fifth grade level in the area of arithmetic. Thus, claimant is a poor candidate for any academic retraining. Conrad v. Marquette School, Inc., IV Iowa Industrial Commissioner Report 74, 89 (1984). Claimant reported that he was able to lift 75 pounds occasionally and 50 pounds on a continuous basis, but that he was limited to sitting for periods of 30 minutes to an hour. He also expressed difficulty when standing in one place for a period of over 14 minutes. Because of his low grade equivalency scores, it was recommended that he was better suited for on-the-job training rather than training in an academic setting (ex. 11, pp. 1-5). There was no evidence that claimant has sought vocational rehabilitation training through the Iowa State Vocational Rehabilitation Service nor was there any evidence that any private, independent vocational rehabilitation assistance had been offered to claimant by employer. Even though Dr. Boulden restricted claimant from over-the-road truck driving, he made one more trip with employer and found that he was unable to do it after he was released by Dr. Boulden in October 1989 (tr. p. 58). He applied for other truck driving jobs, but was turned down because of his back injuries (tr. p. 59). Claimant then became self-employed in the junk business. He buys old discs, thrashers, rakes and other kinds of farm equip ment and scrap iron from farmers; cuts it up and sells it to sal vage buyers. He employs two other persons in this business and pays them $100 a week. He testified that he earns approximately $150 to $200 per week (tr. pp. 59, 61, 72 & 73). One hundred fifty dollars a week would yield annual earnings of $7800 per Page òòò 12 year and earnings of $200 per week would yield earnings of $10,400 per year. Claimant further testified that he was earning approximately $17,000 to $20,000 per year for employer. Based on his stipulated rate of compensation, this is probably correct. Thus, comparing his lower range of earnings, $7800, with $17,000 per year, would produce a 54 percent actual loss of income. Comparing his higher range of earnings, $10,400, with $20,000, would produce a 48 percent loss of actual income. Thus, claimant has sustained an approximate 50 percent loss of income caused by the fact that claimant is foreclosed from over-the-road truck driving. Even though Dr. Boulden performed a double diskectomy on L4-L5 and L5-S1, it is the opinion of this deputy, applying agency expertise, that claimant would have received the same restrictions as to lifting as well as being foreclosed from over-the-road trucking, even if the surgery had been only to the L4-L5 level alone. Moreover, the L5-S1 bulge first manifested itself on the CT scan at the Morris, Illinois, hospital after the Decker injury on October 5, 1987. Thus, even when a portion of the impairment is prorated between this injury and the subsequent episodes of back pain at Crouse and Omaha Cold Storage, neverthe less, this injury constitutes a substantial portion of claimant's industrial disability, loss of earnings capacity and loss of actual earnings. Aside from the testimony of Dr. Wahby and Dr. Boulden, claimant's earning capacity as an over-the-road truck driver was greatly impaired after the Decker injury on October 5, 1987, and before he went to work for Crouse and later Omaha Cold Storage based upon the 25-page questionnaire and evaluation of the Inter national Academy of Chiropractic Industrial Consultants, who subtracted 49 points from claimant's 100 percent possible ability to perform over-the-road trucking (1) because of his disability up to three weeks which had sciatic nerve involvement, (2) because he had one or more decreased or degenerated interver tebral discs, and (3) because he had one or more measurable spinal subluxations (ex. 13, pp. 5-7). More importantly, this group found that claimant's left leg was one inch smaller than his right leg; he had low back pain when raising his leg; he could not raise his leg all of the way up; his left leg was weak when muscle tested; he had decreased muscle strength in his leg; active lumbar disc pathology; and low back pain everyday. This group appears to trace this to the injury which occurred eight months ago, prior to March 29, 1988; which would be the Decker injury on October 5, 1987. Thus, irrespective of anything that occurred while working for Giese, Crouse or Omaha Cold Storage, claimant had a substantial amount of injury attributable to Decker Truck Lines because the Giese injury was only a strain and claimant had not yet gone to work for Crouse of Omaha Cold Storage. Kelly Blanchard, claimant's wife, testified that since the surgery, he has difficulty bending, lifting and performing every day work. When he gets home at night he usually goes to bed. Occasionally he has to take time off to rest his back for two or three days. He can no longer mow the yard, lift the baby or fix the car. Page òòò 13 Wherefore, based upon at least a 5 percent permanent impair ment rating; the fact that claimant's work capacity is reduced to medium-heavy, which means lifting 50 to 75 pounds occasionally and 40 to 50 pounds frequently; the fact that claimant is fore closed from over-the-road truck driving, heavy equipment operat ing or construction laborer, which are all of his past employ ments; the fact that claimant is a very poor candidate for any future education and training on an academic level; and the fact that claimant has sustained an approximate 50 percent loss of actual earnings; and taking into consideration the Giese back strain for which Dr. Boulden said claimant had no impairment, and after which he continued to work for several years without restrictions; and taking into consideration the episodes of back pain claimant encountered while working for Crouse and Omaha Cold Storage; and based upon all of the evidence presented and all of the factors used to determine industrial disability; Christensen v. Hagen, Inc., vol. I, no. 3, State of Iowa Industrial Commis sioner Decisions 529 (Appeal Decision March 26, 1985), Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 State of Iowa Industrial Commissioner Decisions 654, 658 (Appeal Decision February 28, 1985); and based upon agency expertise, [Iowa Administrative Pro cedure Act 17A.14(5)]; it is determined that claimant has sus tained a 30 percent industrial disability to the body as a whole and that claimant is entitled to 150 weeks of workers' compensa tion permanent partial disability benefits. medical benefits It is determined that claimant is entitled to $10,808.22 in medical benefits as claimed. The parties stipulated that the provider of medical services would testify that the fees charged were reasonable and that they were incurred for reasonable and necessary treatment for the alleged work injury. It is now determined that the injury of October 5, 1987, was a substantial cause of these medical expenses. Dr. Boulden testified that the initial herniation of the L4-L5 disc coupled with continued over-the-road driving caused claimant's condition to worsen to the point where the surgery was required. But for, the initial herniation of the L4-L5 disc on October 5, 1987, over-the-road truck driving in and of itself should not have resulted in the surgery which was performed by Dr. Boulden. Claimant testified as to the amounts and creditors to whom these bills were owed (tr. pp. 64-68). In addition, these medi cal bills are listed and itemized in the decision of Deputy Nelson on page seven of her decision and official notice has been taken of that decision. The medical expenses are as follows: Central Iowa Orthopaedics $ 5,125.00 Central Iowa Pathologists 170.00 DM Anesthesiologists 528.00 Manual Therapy Center 87.50 Page òòò 14 Lutheran Hospital 4,897.72 TOTAL $10,808.22 Defendants are entitled to a credit for these medical expenses which Deputy Nelson ordered to be paid by Omaha Cold Storage in her decision. conclusions of law Wherefore, based upon the foregoing and following principles of law, these conclusions of law are made: That the injury of October 5, 1987, was the cause of addi tional temporary disability for the stipulated period from July 1, 1989 to October 12, 1989. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945). That claimant is entitled to additional temporary disability benefits for 14.714 weeks of healing period benefits for this period of time. Iowa Code section 85.34(1). That the injury of October 5, 1987, was the cause of perma nent disability. Bodish, 257 Iowa 516, 133 N.W.2d 867; Lindahl, 236 Iowa 296 18 N.W.2d 607. That claimant has sustained a 30 percent industrial disabil ity to the body as a whole and is entitled to 150 weeks of perma nent partial disability benefits. Iowa Code section 85.34(2)(u); Diederich v. Tri-City R. Co., 219 Iowa 587, 593, 258 N.W. 899 (1935); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Bearce, 465 N.W.2d 531. That claimant is entitled to $10,808.22 in medical expenses. Iowa Code section 85.27. That defendants are entitled to a credit for the additional Page òòò 15 temporary total disability benefits and the medical expenses awarded here if they have already been paid by Omaha Cold Storage as ordered by Deputy Nelson. order THEREFORE, IT IS ORDERED: That defendants pay to claimant fourteen point seven one four (14.714) weeks of additional healing period benefits for the period from July 1, 1989 to October 12, 1989, a period stipulated to by the parties and supported by the evidence, at the stipulated rate of three hundred thirty-five and 73/100 dollars($335.73) per week in the total amount of four thousand nine hundred thirty-nine and 93/100 dollars ($4,939.93) commencing on July 1, 1989. That defendants pay to claimant one hundred fifty (150) weeks of permanent partial disability benefits based upon a thirty (30) percent industrial disability to the body as a whole at the stipulated rate of three hundred thirty-five and 73/100 dollars($335.73) per week in the total amount of fifty thousand three hundred fifty-nine and 50/100 ($50,359.50) commencing at the end of healing period on October 23, 1987, when Dr. Wahby released claimant to return to work after the injury of October 5, 1987 (ex. 3, page 3). Teel v. McCord, 394 N.W.2d 405 (Iowa 1986); and interrupted by the additional healing period awarded above. That defendants are entitled to a credit for the additional healing period benefits if they have previously been paid by Omaha Cold Storage pursuant to the decision of Deputy Nelson. That all accrued benefits are to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That defendants pay to claimant or the provider of medical services, ten thousand eight hundred eight and 22/100 dollars ($10,808.22) in medical expenses. That defendants are entitled to a credit for any medical expenses paid by Omaha Cold Storage pursuant to the decision of Deputy Nelson. That the costs of this action are charged to defendants, including the cost of the attendance of the court reporter at hearing and the transcript of the hearing. Rule 343 IAC 4.33; Iowa Code section 86.19(1). That defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of August, 1991. Page òòò 16 ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Monte Fisher Attorney at Law 200 Snell Bldg. Fort Dodge, Iowa 50501 Mr. Tito Trevino Attorney at Law 801 Carver Bldg. PO Box 1680 Fort Dodge, Iowa 50501 Mr. James E. Fitzgerald Attorney at Law 1223 S 20th St. Fort Dodge, Iowa 50501 Page 1 51108.50 51402.40 51802 51803 52501 52700 Filed August 23, 1991 Walter R. McManus, Jr. before the iowa industrial commissioner ____________________________________________________________ : JOHN F. BLANCHARD, : : Claimant, : : vs. : : File No. 867353 DECKER TRUCK LINES, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 51108.50 51402.40 51802 51803 It was determined that the injury was the cause of additional temporary disability and also permanent disability. Claimant awarded temporary disability (healing period) for the period stipulated to by the parties which was also supported by the evidence. Claimant awarded 150 weeks of permanent partial disability benefits based on a 30 percent industrial disability to the body as a whole after consideration for a prior injury and two subsequent episodes of low back pain were taken into consideration. 52501 52700 Claimant awarded medical expenses as claimed. Page 1 before the iowa industrial commissioner ____________________________________________________________ : ISAAC WYANT, : : Claimant, : : vs. : File Nos. 815193 : 867537 CENTURY MOTOR FREIGHT, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : FARMERS INSURANCE GROUP, : : Insurance Carrier, : Defendants. : ____________________________________________________________ introduction This decision addresses two proceedings in arbitration which have been brought by Isaac Wyant against Century Motor Freight, his former employer, and Farmers Insurance Group, the employer's insurance carrier. File number 815193 deals with a back injury which occurred on January 24, 1986. File number 867537 deals with a shoulder injury which occurred on September 24, 1987. The two proceedings were consolidated and heard at Des Moines, Iowa on August 18, 1989. The record in the proceedings consists of jointly offered exhibits 1 through 13 and defendants' exhibits A through L. The record also contains testimony from Isaac Wyant, John Van Arsdale, and Kent Jayne. issues The only issue presented by the parties is determination of the extent of permanent disability which resulted from each of the injuries. Claimant asserts that he is permanently, totally disabled and relies upon the odd-lot doctrine. It was stipulated that the rate of compensation applicable to the January 24, 1986 injury is $457.95 per week and that for the September 24, 1987 injury the correct rate of compensation is $485.00 per week. It was stipulated that healing period compensation had been paid whenever due in both cases and that any permanent partial disability compensation which is awarded for the 1986 injury is payable commencing July 7, 1986. It was stipulated that any permanent disability compensation payable for the 1987 injury should commence on May 6, 1988. It was further stipulated that 51 5/7 weeks of permanent partial disability compensation has been paid for the 1986 Page 2 injury and that 60 weeks of permanent partial disability compensation has been paid for the 1987 injury. No claim was made for additional medical expenses. summary of evidence All the evidence referred to in the Introduction, as well as the demeanor of those who testified at hearing, was considered when deciding this case. The lack of a reference to any particular part of the record does not indicate that it was overlooked. The evidentiary facts in this case are not seriously disputed by the parties except with regard to some of the events which occurred in 1988 dealing with the offer made by the employer to provide work for claimant and also with regard to the general availability of work which claimant is capable of performing and obtaining. The pertinent medical evidence is provided by claimant's treating physicians, William R. Boulden, M.D., and Scott B. Neff, D.O., without contradiction from any other physician. Isaac Wyant is a 57-year-old married man who has five grown children. Wyant stated that his formal education ended with the eighth grade, although the record at one point reflects he had represented that he had completed the tenth grade. Wyant denied having any further formal education or having served in the military. Wyant's work history contains some remote experience working on a farm, coal yard, lumberyard and department store. Approximately 35 years ago, he began driving a truck for Rock Island Motor Transit Company where he remained employed for 25 years until the company closed. He worked briefly for American Freight Systems, Inc., and then moved to Century Motor Freight approximately 10 years ago. Wyant stated that he worked the dock, performed delivery and pickup of freight, and also performed over-the-road driving. Wyant's health history as described by him includes normal childhood diseases, a left shoulder problem which resolved with treatment several years ago, a left thumb injury that occurred in 1950, an appendectomy in the early 1960's and pneumonia in 1984 (exhibit 1, page 81). Claimant specifically denied having any problem with his right shoulder or back prior to January of 1986. On January 24, 1986, Isaac Wyant was making a delivery in Rock Island, Illinois when the track of an overhead type door failed and the door fell on him. Initially, he received conservative medical treatment from Scott Q. Carver, M.D., and William R. Boulden, M.D. A CT scan was interpreted as being normal. The diagnosis of a lumbosacral strain was made (exhibit 1, page 13). Claimant was released to return to work on March 24, 1986 (exhibit 1, page 12). Claimant continued to complain of his back after he resumed employment. He was taken off work a second time by Page 3 Dr. Carver on August 8, 1986 (exhibit 1, pages 73 and 80). On August 13, 1986, Dr. Carver prescribed that the seat in the truck which claimant drove be replaced (exhibit 1, pages 73 and 79). By August 25, 1986, claimant had improved and was released to return to work (exhibit 1, pages 22, 73 and 79). On September 24, 1987, Wyant injured his right shoulder while hooking a double-bottom trailer. He was treated with medication, but was not immediately taken off work. When claimant's complaints did not resolve he was referred to Scott B. Neff, D.O., who initially diagnosed subacromial impingement of the right shoulder (exhibit 1, page 30). After diagnostic testing had been completed, a further diagnosis of a complete tear of the right rotator cuff was made and surgery was recommended (exhibit 1, pages 29, 101 and 102). On January 6, 1988, impingement syndrome release with rotator cuff repair surgery was performed by Dr. Neff (exhibit 1, pages 29 and 91-100). Claimant's shoulder was noted to be extensively deteriorated. While recuperating from shoulder surgery, claimant was again seen by Dr. Boulden regarding his back. Dr. Boulden diagnosed claimant as having degenerative disc disease of the lumbar spine. Conservative treatment was provided. Dr. Boulden stated that claimant could not return to heavy physical work due to the problems with his back (exhibit 1, page 28). On April 6, 1988, Dr. Neff indicated that claimant would have permanent impairment of his shoulder as well as in his back. He confirmed that claimant would not be able to return to his former occupation of a truck driver (exhibit 1, pages 24 and 26). On April 22, 1986, Dr. Boulden reported that claimant's problems are related to the original injury (exhibit 1, page 26). On April 28, 1988, Dr. Boulden reported that claimant would reach maximum improvement regarding his back condition on May 9, 1988. He indicated that claimant should observe permanent restrictions to avoid bending, twisting, and prolonged sitting of more than 30 minutes. He assigned a 10 percent permanent impairment rating (exhibit 1, page 25). On June 3, 1988, Dr. Neff reported that maximum healing from the shoulder surgery had occurred on May 6, 1988 (exhibit 1, page 25; exhibits H and L). Claimant has not returned to work since being taken off for the shoulder injury. In early May of 1988, claimant met with Century Motor Freight representative John Van Arsdale and possibly with Andy Selenia. According to claimant, he was told at that meeting that the employer's policy was to not take anyone back to work with restrictions. Claimant stated that after that meeting, vocational consultant Kent Jayne became involved and in early July, Jayne advised claimant that Century would not reemploy him with restrictions. Claimant stated that on July 12, 1988 he sent a letter to John Van Arsdale asking for a retirement application. Claimant stated that approximately two months later he was informed by his employer that a run had been Page 4 arranged for him. Claimant stated that he had held that same run in the past, but that it proved to be unreliable and that in time so much of the freight was diverted to other runs that he was working only one day per week. He then used his seniority to bump out to a different run. Claimant stated that he asked his employer if he would be able to move into a different run if the St. Paul runs dwindled and that he was told he could not move. Claimant stated that he had some concern that certain parts of the work such as blocking, tie downs and pulling chain binders might exceed the restrictions which his doctor had recommended. The job description for the job offered indicated that it would be necessary for claimant to block and brace freight, hook and drop trailers, and that he would have to drive for up to two hours between breaks (exhibits B and 5). Claimant acknowledged that when he was deposed, he had stated that the job did meet Dr. Boulden's restrictions. Claimant also stated at hearing that he felt the company was not sincere in its job offer. Claimant elected to take an early retirement with a pension of $1,000 per month. He stated that if he had remained employed and worked until age 65, as he had hoped to do, his pension would be $2,000 per month. John Van Arsdale confirmed that if claimant had retired at age 65, the pension would be $2,000 per month. Van Arsdale stated that retirement in the range of age 60 or 62 is more common than at age 65, but that he had no reason to doubt claimant's testimony of wanting to wait until age 65 to retire. John Van Arsdale stated that when he met with claimant in May of 1988 he told claimant that the medical information did not look good for permitting claimant to return to work as a driver or dock worker and that he suggested claimant look for other employment. Van Arsdale testified that he then started the process to obtain vocational rehabilitation services for claimant and that Kent Jayne became involved as a result. Van Arsdale stated that after working with Jayne and union representatives, a job proposal was developed in July, but that due to scheduling conflicts, a meeting with claimant could not be arranged until September 8, 1988. Van Arsdale stated that the job which is described in exhibit B was offered and that questions were asked at the meeting. Van Arsdale stated that claimant was told that the company would accommodate him, even to the extent of hiring someone locally to assist if claimant broke down while on the road. Van Arsdale stated that the job was available and had been available and that it had been run on a daily basis. Van Arsdale stated that on the day following the meeting, he received notice that claimant had declined the job and had elected to retire. Van Arsdale stated that Andy Selenia, a company representative at the Des Moines terminal for Century Motor Page 5 Freight, had been of the understanding that employees with restrictions would not be allowed to return to work, but that he then made Selenia aware that his understanding had been incorrect. Kent Jayne testified that when he became involved in this case, his initial goal was to clarify claimant's medical status and possibly arrange a return to work with Century Motor Freight. Jayne related that the optimum choice for seeking return to work of an injured employee is with the employer, but that when he initially contacted Andy Selenia, the manager of the Des Moines terminal, Selenia told him that company policy would not allow a return to work with restrictions. Jayne stated that he was subsequently advised by Van Arsdale that work with restrictions was a possibility. Jayne stated that he obtained information from Drs. Neff and Boulden which would permit claimant to return to truck driving with restrictions. Jayne confirmed Van Arsdale's testimony regarding the offer of the Des Moines to St. Paul run and of the company's assurance that claimant would not be required to violate his medical restrictions. Jayne testified that on the day following the meeting, he was informed by claimant's attorney that the offer was declined and that the employer deserved a "pat on the back" for its efforts. Jayne stated that he was then informed that claimant wanted to continue with other job placement efforts. Jayne stated that claimant's restrictions would place him in the light work status. Jayne stated that, within the Des Moines area, there were 900-1,000 jobs per year which would be open and available to claimant. Jayne stated that he had checked with employers and found several positions open, including positions in security, courier service and limo driver. He stated that the pay scale would range from $3.87 per hour to $10.00 per hour. Jayne stated that he had not given those job leads to claimant prior to the time of hearing. Jayne stated that Nancy Hendricks, one of his subordinates, had sent claimant a computer printout of targeted occupational areas based upon a transferrable skills analysis. A review of the list, which is found at exhibit 2, pages 154-156, shows it to contain a large number of positions. No evidence was introduced regarding whether or not any of the jobs such as "stand-in, balcony worker, scoreboard operator, raw juice weigher, flash adjuster, hat blocker, powder truck driver, dinkey operator, yeast distiller, coke crusher operator" or any of the others exist in appreciable numbers in the Des Moines area. Following his decision to decline the job which had been offered by Century Motor Freight, claimant did seek other jobs (exhibit 6). Claimant continued to have problems with his back which Page 6 led to Dr. Boulden performing surgery on May 10, 1989. Dr. Boulden described the surgery as a decompression laminectomy of L5-S1 for decompression of the nerves of L5. Dr. Boulden reported that the surgery had resulted in some reduction of claimant's pain and that the prognosis was good. He stated that he expected claimant to have a 10 percent impairment when the recuperative process was completed. Dr. Boulden related that claimant could possibly drive a truck if he would be able to get out frequently (exhibit 1, page 3; exhibit I). Claimant agreed that the surgery had taken away his pain, but that he still experienced numbness in his leg. At the time of hearing, claimant had not yet been released by Dr. Boulden to resume employment. On July 14, 1989, Dr. Boulden reported that claimant's disability had increased from 10 perdent to 15 percent as a result of the surgery. He recommended restrictions against bending, twisting or lifting and also against sitting for more than 45 minutes (exhibit 1, page 14). On April 7, 1988, Dr. Neff provided a rating for claimant's shoulder of 12 percent of the body as a whole (exhibit 1, pages 44 and 45). Page 7 applicable law and analysis Since claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term `disability' to mean `industrial disability' or loss of earning capacity and not a mere `functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). Industrial disability or loss of earning capacity is a concept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment of physical capacity creates an inference of lessened earning capacity. The basis element to be determined, however, is the reduction in value of the general earning capacity of the person, rather than the loss of wages or earnings in a specific occupation. Post-injury earnings create a presumption of earning capacity. The earnings are not synonymous with earning capacity and the presumption may be rebutted by evidence showing the earnings to be an unreliable indicator. Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 34th Biennial Report, 218 (1979); 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. According to claimant's testimony, his gross wages for 1985, 1986 and 1987 have been approximately $42,000, $32,000 and $39,000, respectively. Of those totals, he related that taxes had consumed approximately $13,000, $10,000 and $14,000, respectively. The evidence showed that, when claimant was receiving his pension, and workers' compensation permanent partial disability benefits, there were times when he actually had more spendable income than what had been available to him while he was actually working. It appears as though claimant might have been capable of performing the St. Paul run which was offered to him, although there is also ample evidence in the record from which claimant could have reasonably believed that the offer was not made in good faith. At the time the offer was made, Dr. Boulden's restriction of 30 minutes of sitting while driving was apparently in effect and it is difficult for the undersigned to reconcile that restriction with over-the-road truck driving. In any event, if claimant had Page 8 accepted the offered job, if the job had provided regular work, and if claimant would have been capable of performing that work on a long-term, sustained basis, the reduction in earnings which claimant has experienced would have been avoided. The fact that a major reduction in earnings had been avoided would not, however, relieve the employer from all liability for industrial disability. On the other hand, there is no certainty in the record of this case with regard to claimant's ability to perform that work on a long-term, sustained basis. If anything, the evidence from Drs. Neff and Boulden does not provide any basis for particular optimism. The fact that claimant has sustained a substantial degree of industrial disability is clearly demonstrated by his lack of success in obtaining work of any type with any other employer. The fact that Century Motor Freight is the only employer who has offered him a job is strong evidence of a very substantial degree of disability. Claimant urges application of the odd-lot doctrine. Making a bona fide search for work and finding none is one method of making a prima facie showing of permanent total disability. That showing has been made in this case. The burden of showing availability of suitable employment has therefore shifted to the defendants. The evidence of available suitable employment as provided by Kent Jayne, when coupled with the offer of employment from Century Motor Freight, is sufficient to rebut the prima facie showing of total disability. It is not sufficient, however, to limit claimant's recovery to the amount of permanent partial disability which has been voluntarily paid by the defendants. The computer printout of potential jobs is found to not be of any material value since there is no showing with regard to how many, if any, of those jobs exist in the Des Moines, Iowa area or of how frequently openings in those jobs become available. The jobs of which Kent Jayne testified provided a level of earnings which was well below the level that claimant had enjoyed as a driver for Century Motor Freight. The pay scale which he described would appear to have an average somewhere in the range of $6.00 per hour, an amount which is only approximately one-third of what would be claimant's hourly rate of earnings if his total 1987 earnings were based upon a 40-hour work week. On that same basis, even the higher range of potential hourly earnings would still be only half of claimant's 1987 hourly earning equivalent. Truck driving is not light work. The bouncing and extended sitting can be quite troublesome for someone with a back condition. Claimant had worked as a truck driver for 35 years and was 57 years of age at the time of hearing. It was certainly not unreasonable for him to elect to retire rather than risk further injury. The fact that he chose to retire does not significantly detract from his credibility or motivation. There was ample reason for him to do so. Page 9 When all the foregoing considerations are taken into account, it appears, in the final analysis, that there was some chance that claimant could have maintained his prior level of earnings if he had accepted the Century Motor Freight job, but that chance is not sufficiently strong to be considered as being probable rather than merely possible. The greater likelihood is that he would not have been able to physically perform all the duties of the employment, that the employer would have become disillusioned with providing additional assistance to him, or that he would have sustained further injury. It appears as though Wyant remains capable of performing light work which would pay in the range of $5.00-$6.00 per hour and that such work exists in the Des Moines, Iowa area. It is therefore determined that Isaac Wyant has a 60 percent permanent partial disability under the provisions of Iowa Code section 85.34(2)(u). The shoulder injury was quite severe. The most recent impairment rating from Dr. Neff rates it at 12 percent impairment of the body as a whole (exhibit 1, page 45). The back injury is responsible for a 15 percent impairment of the body as a whole according to Dr. Boulden (exhibit 1, page 14). It appears that the back condition is the one which provides the primary barrier to claimant resuming work as a truck driver. Were his only impairment the shoulder injury, it is quite likely that he could have performed the job which was offered in 1988 and could possibly have resumed normal duties (exhibit 1, pages 42-48). It is determined that one-third of the industrial disability is attributable to the shoulder injury and the remaining two-thirds is attributable to the back injury. Defendants are, of course, entitled to credit for the 111 5/7 weeks which was paid prior to hearing. findings of fact 1. Isaac Wyant has experienced a 60 percent loss of his earning capacity as a result of the injuries that he sustained on January 24, 1986 and September 24, 1987. 2. Of that total, one-third is attributable to the shoulder injury of September 24, 1987. The remaining two-thirds is attributable to the back injury. conclusions of law 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. Isaac Wyant is entitled to recover 300 weeks of permanent partial disability compensation under the provisions of Iowa Code section 85.34(2)(u). 3. One hundred weeks are payable at the rate of $485.00 per week commencing May 6, 1988. Page 10 4. Two hundred weeks are payable at the rate of $457.95 per week commencing July 7, 1986. order IT IS THEREFORE ORDERED that defendants pay Isaac Wyant one hundred (100) weeks of compensation for permanent partial disability in file number 867537 at the stipulated rate of four hundred eighty-five and 00/100 dollars ($485.00) per week payable commencing May 6, 1988. IT IS FURTHER ORDERED that defendants pay Isaac Wyant two hundred (200) weeks of compensation for permanent partial disability in file number 815193 at the stipulated rate of four hundred fifty-seven and 95/100 dollars ($457.95) per week payable commencing July 7, 1986. IT IS FURTHER ORDERED that defendants pay all accrued past due amounts in a lump sum together with interest pursuant to Iowa Code section 85.30 after crediting the prior payments of permanent partial disability compensation. IT IS FURTHER ORDERED that defendants pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. IT IS FURTHER ORDERED that defendants file claim activity reports in each of the respective cases as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this ______ day of ____________, 1990. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Channing L. Dutton Mr. Tom Drew Attorneys at Law West Towers Office Compex 1200 35th Street, Suite 500 W. Des Moines, Iowa 50265 Mr. Roy M. Irish Attorney at Law 729 Insurance Exchange Building Des Moines, Iowa 50309 Page 1 5-1803 Filed March 5, 1990 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : ISAAC WYANT, : : Claimant, : : vs. : File Nos. 815193 : 867537 CENTURY MOTOR FREIGHT, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : FARMERS INSURANCE GROUP, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 5-1803 Fifty-seven-year-old truck driver whose injuries caused him to retire, rather than accept a modified job which might not have been within his capabilities, was awarded 60 percent permanent partial disability. He had made an extensive work search and the likelihood was that any potential alternate employment would result in a two-thirds reduction in actual earnings. In view of claimant's physical condition, retirement was held to be a reasonable option and not an indicator of any lack of motivation.