Page 1 before the iowa industrial commissioner ____________________________________________________________ : RICHARD SUCKOW, : : Claimant, : : vs. : : File No. 869643 NEOWA FS, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ introduction This is a proceeding in arbitration brought by Richard Suckow, claimant, against Neowa FS, Inc., employer, and Employers Mutual Companies, insurance carrier, defendants, for benefits as a result of an alleged injury which occurred on June 20, 1986. A hearing was held at Waterloo, Iowa on June 25, 1990 and the case was fully submitted at the close of the hearing. Claimant was represented by Larry F. Woods. Defendants were represented by Jeffrey M. Margolin. The record consists of the testimony of Richard Suckow, claimant, Lori Suckow, claimant's wife, and Lyle Bushkofsky, claimant's exhibits 1-16 and defendants' exhibits A, B and C. The deputy ordered a transcript of the hearing. Both attorneys submitted excellent briefs. stipulations The parties stipulated to the following matters: That an employer-employee relationship existed between claimant and employer at the time of the alleged injury. That the type of permanent disability if the injury is found to be cause of permanent disability is industrial disability to the body as a whole. That the rate of compensation in the event of an award is $208.10 per week. That the provider of medical services and supplies would testify that the fees charged were reasonable and the supplies and services were for necessary and reasonable treatment of the alleged work injury. That defendants take no claim for either non-occupational group health plan benefits or workers' compensation benefits paid to claimant prior to hearing. That there are no bifurcated claims. Page 2 issues The parties submitted the following issues for determination at the time of the hearing: Whether claimant sustained an injury on June 20, 1986, which arose out of and in the course of employment with employer. Whether the alleged injury is the cause of either temporary or permanent disability. Whether claimant is entitled to either temporary or perma nent disability benefits. Whether claimant is entitled to medical benefits. findings of fact It is found that claimant sustained an injury on June 20, 1986, which arose out of and in the course of his employment when a vehicle that he was driving for employer rolled over in the ditch and he sustained lacerations and abrasions to his body. It is found that claimant did not sustain an injury from this accident to his low back. The best evidence that claimant might have sustained a low back injury is found in the two photographs of the tank truck and the damage to it which claimant was driving at the time of the injury that resulted in lacerations and abrasions. The cab of the truck is severely damaged from this roll over vehicle accident (Exhibits 14 & 15). The other evidence that claimant might have sustained a low back injury is his testimony and the testimony of his wife. Claimant's wife testified that he complained of low back pain and pain in his buttocks shortly after the accident. She rubbed his back daily after the accident and sometimes when she did so he would jump (Transcript 107-111). This evidence is outweighed by the other evidence in the case that does not support a low back injury which was caused by this vehicle accident. Claimant himself testified that immediately after the accident that he did not have any back pain. He testified that his back and legs were okay. He received no medical treatment for his back or legs (T 27 & 28). Before he left the emergency room he began to get stiff and sore all over (T 29). At home he noticed that his shoulder, neck and low back were causing pain. He said he reported this to the doctor a week later and the doctor told him that he could expect this kind of pain for approximately two weeks (T 30, 96). Claimant was being treated by Larry H. Boeke, M.D., at the Gunderson Clinic. Dr. Boeke's office notes do not reflect that claimant complained of neck, shoulder or low back pain at this time or at any other time (Ex l, page 1; Ex A, page 5). Dr. Boeke shows entries for June 20, 1986, June 21, 1986, and June 28, 1986. Claimant did not complain of any neck, shoulder or low back pain and was not treated for any neck, shoulder or low back pain. Page 3 Claimant testified that he tried to return to work on one or two occasions but stated that he was unable to do so due to pain. (T 31-34) Dr. Boeke's records do not reflect that claimant was ever taken off work on account of this accident or this injury (Ex l, p 1; Ex A, p 5). Claimant contended that he was unable to work from June 20, 1986 until the latter part of July or the first part of August 1986. This contention is not supported by any medical evidence of any kind. According to the medical records, claimant was last treated by Dr. Boeke on June 28, 1986, and received no further treatment from him after that date (T 78). Claimant then went to work for Pepsi Cola in Lincoln, Nebraska as a janitor. He testified that occasionally he lifted pop cases and when he did so it irritated his low back (T 45, 47, 71, 72, 112 & 114). Claimant worked for Pepsi Cola from approximately September of 1986 to December of 1986 at which time he moved to Atlanta, Georgia and became employed by his father doing heavy construction work from December of 1986 to August of 1987 (T 47, 53, 73, 114, 115 & 119). Claimant admitted that in the heavy construction job he frequently lifted weights between 50 and 100 pounds and that when he did so it exacerbated his low back condition (T 35, 47, 53, 73, 114, 115 & 119). Claimant next saw Walter C. Edwards, M.D., a board certified orthopedic surgeon in Atlanta, Georgia on April 21, 1987, giving this accident as a history for his low back pain (Ex 3, p 2). Dr. Edwards testified that claimant did not tell him about his employment with Pepsi Cola or the subsequent heavy construction work in Georgia (Ex 16, pages 32 & 33). X-rays at the time of the initial examination disclosed an L5 spondylolysis without spondylolisthesis. Dr. Edwards diagnosed low back pain attributed to L5 spondylolysis with no spondylolisthesis (Ex 3, p 2). Dr. Edwards testified that the spondylolysis was a structural lesion which preexisted the vehicle accident (Ex 16, p 17). Dr. Edwards also performed a static strength test on May 22, 1987 and ordered an MRI on August 14, 1987 (Ex 3, p 1; Ex 16, pp 7 & 11). The MRI agreed with Dr. Edwards' interpretation of degeneration at L5 but further disclosed focal herniation at the L-4 disc level. He explained that focal herniation is a tear in the ligaments of the annulus fibrosus accompanied by a protrusion of the lumbar disc through that tear into the spinal canal (Ex 16, pp 12 & 13). Dr. Edwards testified that the MRI results were consistent with the motor vehicle accident. He felt that the spondylolysis without spondylolisthesis at the L5 level was a preexisting condition but that the acute disc herniation at the L4-5 level was the result of the motor vehicle accident (Ex 16, pp 13 & 14). He restricted claimant to medium work which is no lifting over 50 pounds and suggested that he give up heavy work (Ex 16, p 14). He said the focal herniation constituted a 10 percent permanent physical impairment Page 4 rating (Ex 16, p 15). He said either condition could have been causing his low back pain (Ex 16, p 17). Dr. Edwards stated in a letter dated September 2, 1987: It is my opinion that the type of injury that Mr. Suckow sustained was sufficient to cause this type of disc herniation and that his complaints of pain date from the date of the accident that you describe in your letter of August 25, 1987. (Ex 6, p 1) Dr. Edwards then looked at the emergency treatment after the vehicle accident and admitted that there was no mention of back or leg pain (Ex 16, pp 31 & 32). It then came out that he was not aware of the fact that claimant worked for Pepsi Cola for approximately two months in a warehouse sometimes loading and unloading trucks (Ex 16, p 32). Dr. Edwards then testified that he was unaware of the fact that claimant was doing heavy construction work at the time that he was being treated by him. Dr. Edwards testified: "No, I had assumed that he was out of work at that time." (Ex 16, p 32 & 33) Dr. Edwards acknowledged that claimant first sought treatment for his low back from him approximately 10 months after the motor vehicle accident (Ex 16, p 33). Claimant's neurological exam was normal (Ex 16, p 34). The doctor agreed that the spondylolysis preexisted the injury of June 20, 1986 (Ex 16, p 34). He explained that a spondylolysis is: "It's an interruption of the spine in a segment known as the pars interarticularis which connects one segment of the spine to adjacent segments." ( Ex 16, p 34) He added: "It creates some in stability, it's not solid, there's more motion, and we believe that it renders the disc somewhat more vulnerable to injury." (Ex 16, p 35) Dr. Edwards granted that loading and unloading trucks for Pepsi Cola could aggravate claimant's spondylolysis and cause his symptoms to become more symptomatic (Ex 16, p 35). He also conceded the construction work "could if he were into the heavy or very heavy work level categories." The doctor agreed that construction work could aggravate the condition of spondylolysis and cause pain in the low back area (Ex 16, pp 36 & 37). The doctor agreed that pouring concrete could aggravate his low back pain (Ex 16, p 37). The doctor further agreed that an individual with spondylolysis could develop low back pain without a traumatic event (Ex 16, p 37). Dr. Edwards also admitted that ordinary living experiences such as mowing the lawn and picking up a bag of groceries could also contribute to symptoms of low back pain (Ex 16, pp 37 & 38). Dr. Edwards explained that even though the MRI report did not talk in terms of "nerve root compression" and "nerve root impingement" he felt that it was implied by the MRI report because the "fat is obliterated in the L 4-5 foramen, and that's the tissue that cushions the nerve; and if that's obliterated, then there's an implication that there's some nerve impingement." (Ex 16, p 38) Page 5 Dr. Edwards further agreed that at the time of his static strength test that claimant, who is approximately five foot six inches tall and weighed 192 pounds was 16.1 pounds overweight and was instructed to lose this weight in order to alleviate his back pain (Ex 3, p 1; Ex 16, p 39). The doctor agreed that a person who was overweight can contribute to or cause an aggravation of low back pain symptoms (Ex 16, p 40). Dr. Edwards agreed that at the time of a subsequent independent medical examination claimant had not lost weight but rather had gained weight because on June 20, 1989, he weighed 195 pounds (Ex 16, p 40; Ex A, p 2). The doctor acknowledged at the time of the deposition on June 11, 1990, that he had not seen claimant since August 14, 1987, and that he was not aware of the fact that claimant had been working full time since then (Ex 16, p 41). Finally, the doctor admitted that he relied on the history which claimant gave and that the information that he received was either inaccurate or incomplete so that it would cause him to rethink his opinion regarding causation (Ex 16, pp 42 & 43). Dr. Edwards reiterated that the spondylolysis at L5 was a structural lesion which preexisted the injury of June 21, 1986 (Ex 16, p 44). He also admitted that the back symptoms which claimant manifested could be "attributable to either this structural lesion which preexisted the June '86 car accident or the herniated disc..." (Ex 16, pp 44 & 45). The doctor said it could be attributed to the structural lesion as opposed to the herniated disc or the other way around or a little bit of both and the doctor agreed stating: "Yes. It's very difficult to decide sometimes." (Ex 16, p 45) Then this colloquy transpired between defendants' counsel and Dr. Edwards: Q. Okay. So what it comes down to is basically we aren't entirely sure if his symptoms that he relayed to you in 1987 were attributable solely to the car accident in 1986 or were caused by structural lesion with spondylolysis, is that right? A. Yes. I had assumed that he had no symptoms prior to the car accident. (Ex 16, p 45) Both claimant and his wife admitted that he did have a muscle strain or spasm in his low back while working for his father in Georgia in 1984. Claimant described it as a cramp, that would tighten up or knot up at his belt line. Claimant admitted that he performed farm work or heavy construction for his father for several years (T 34-37, 91-93, 99 & 100). Claimant's wife testified that chiropractic did not help in 1984 but he was treated at the emergency room and received muscle relaxants and ice which enabled him to sleep it off and it was gone (T 104-105). Still again Dr. Edwards admitted that the fact (1) that Page 6 claimant was working construction for a period of five months before he saw him and (2) that claimant was doing work at the warehouse for Pepsi Cola prior to that was relevant employment history which was important to consider but that he did not have this information at his disposal when he formulated his opinions back in 1987 (Ex 16, p 46). Dr. Edwards further testified focal herniated disc was consistent with repetitious heavy lifting in construction (Ex 16, p 47). The doctor also agreed that if the back pain initially occurred shortly after the vehicle accident then "that's usually taken as the point at which the problem began." (Ex 16, p 47) However, in this case, claimant's testimony and his wife's testimony concerning low back pain immediately after the accident is not supported by the medical evidence of record. The emergency room report and the report of the treating physician, Dr. Becke, indicate no back complaints or treatment for back pain (Ex 1, p 1; Ex A, p 5). Dr. Boeke's notes do not confirm that claimant complained of neck, shoulder and low back pain at any time after the accident (Ex 1, p 1; Ex A, p 5). The record indicates that claimant first sought medical treatment for his low back on April 21, 1987, 10 months after the vehicle accident. Claimant was only treated for a period of four months from April 21, 1987, to August 14, 1987, by Dr. Edwards for his low back pain and this occurred while he was doing heavy construction work for his father in Georgia lifting weights in excess of 50 pounds and up to 100 pounds, which work he did not report to Dr. Edwards at that time (Ex 3, pp 1-8). Furthermore, claimant has not sought any treatment for his low back pain since August of 1987. In addition, claimant has been employed full time for another employer in Iowa from August of 1987 up to and through the date of the hearing. Moreover, claimant testified that he is a hobby stock car driver and that at the time of the hearing he was then currently racing hobby stock cars and has received driving awards (T 84-87, 101 & 102). Claimant also admitted that in the past, for a period of approximately five years from 1979 to 1984, he engaged in demolition derbies at automobile race tracks (T 60, 61, 87-91 & 98). After he races his low back hurts (T 94, 97 & 98) There was no evidence that Dr. Edwards had any history of his hobby stock car racing or his demolition derby career either. Lyle Bushkofsky, claimant's supervisor at the time of the accident, testified that claimant had scrapes and bruises on his upper back but he was not aware of any low back injury (T 122). Claimant was examined by Lawrence C. Strathman, M.D., an orthopedic surgeon, for an independent medical examination by defendants on June 20, 1989. Claimant admitted to Dr. Strathman that the condition which began with the vehicle accident, was aggravated by lifting cases of pop at Pepsi Cola and performing construction work in Page 7 Georgia. Dr. Strathman found no neurologic deficit. He said the MRI showed some changes but no evidence of herniation and radicular component to his complaints at the time of his examination. He felt that claimant had chronic low back pain primarily associated with the spondylolysis. He recommended exercise, weight loss and not lifting more than 45 to 50 pounds. Dr. Strathman concluded that he could assess a two to three percent body as a whole impairment on the basis of aggravation of his spondylolysis in view of his history. At the same time Dr. Strathman said it could be argued that his symptoms may well have occurred and existed just on the basis of the spondylolysis alone. Furthermore, since claimant had no spondylolithesis and no neurologic deficit, it could be maintained that there is no residual impairment (Ex A, pp 2 & 3). In conclusion, Dr. Edwards' opinion that the vehicle accident might have aggravated the spondylolysis at L5, and did cause the focal herniation at L4, was clearly based on the history which claimant gave to Dr. Edwards. This history is deficient in a number of respects all of which Dr. Edwards said would cause him to rethink his opinion. In particular Dr. Edwards was not aware of the fact that claimant lifted cases of pop for Pepsi Cola and was performing heavy construction labor lifting up to 100 pounds at the time that Dr. Edwards treated claimant. In addition, it does not appear that Dr. Edwards was aware of the muscle strain that occurred in 1984, nor the fact that claimant participated in demolition derbies between 1979 and 1984, and had driven hobby stock cars competitively and other racing vehicles for approximately 10 or 11 years since 1979. Dr. Edwards also admitted that claimant's overweight condition could contribute to his back pain. The most that can be said for Dr. Edwards' testimony is that he said that the disability was "consistent" with the vehicle accident of June 20, 1986. This is not sufficient to establish that the work of driving a tank truck which rolled in the ditch caused claimant's subsequent low back complaints. The possibility of causal connection must be bolstered by strong non-medical evidence. There is no such strong non-medical evidence in this case. The evidence taken as a whole shows that claimant's back pain could be due to a number of causes other than the motor vehicle accident on June 20, 1986. There is no medical evidence that the vehicle accident of June 20, 1986, probably caused a low back injury to claimant. It is determined that claimant did not sustain an injury to his low back which arose out of and in the course of his employment on June 20, 1986. In view of this finding of fact, all of the other issues in this case, causal connection of temporary disability and permanent disability, entitlement to temporary disability and permanent disability, and entitlement to medical benefits all become moot. conclusions of law Page 8 WHEREFORE, based upon the evidence presented and the foregoing and following principles of law, these conclusions of law are made: Claimant did sustain an injury on June 20, 1986, which caused lacerations and abrasions to his body which arose out of and in the course of his employment with employer. The parties agreed that these medical bills had been paid prior to hearing. Claimant introduced no evidence of either temporary or permanent disability as a result of these abrasions or lacerations. No further findings are required with respect to the injury which resulted in lacerations and abrasions. It is determined that claimant failed to sustain the burden of proof by a preponderance of the evidence that the vehicle accident on June 20, 1986, caused an injury to his low back. Iowa Code section 85.3(1), 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); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955); Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960); Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). It is therefore determined that all other issues in the case are moot. order THEREFORE, IT IS ORDERED THAT: No amounts are owed by defendants to claimant as a result of the abrasions and lacerations injury and no amounts are owed to claimant for the alleged low back injury because claimant did not prove that he sustained a low back injury arising out of and in the course of his employment with employer. That the costs of this action, including the cost of the transcript, are charged to claimant pursuant to Division of Industrial Services Rule 343-4.33. That defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this ____ day of July, 1990. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Page 9 Copies To: Mr. Jeff M. Margolin Mr. Larry F. Woods Attorneys at Law 24 N Frederick Ave Oelwein IA 50662 Mr. E. J. Giovannetti Attorney at Law Terrace Center, STE 111 2700 Grand Des Moines IA 50312 5-1107; 5-1108.50; 5-1401 5-1402.20; 5-1402.30; 5-2907 Filed July 20, 1990 WALTER R. McMANUS before the iowa industrial commissioner ____________________________________________________________ : RICHARD SUCKOW, : : Claimant, : : vs. : : File No. 869643 NEOWA FS, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1107; 5-1108.50; 5-1401; 5-1402.20; 5-1402.30 Claimant did not prove injury arising out of and in the course of employment to his low back. He was involved in a very serious tank truck rollover accident and received several lacerations and abrasions, but there was no medical evidence of low back injury or treatment for it at that time. After the injury claimant worked for Pepsi-Cola loading and unloading pop cases some of the time; performed heavy construction for his father lifting up to 100 pounds; was overweight for his height; had a prior back strain two years earlier; and had participated in hobby stock car racing and demolition derbies for several years prior to the alleged injury. Claimant did not seek treatment for his low back until 10 months after the accident. Claimant did prove injury which caused lacerations and abrasions but these bills had been paid prior to hearing and were not in issue. There was no medical evidence claimant was taken off work or otherwise was not able to work due to the lacerations and abrasions (or for the alleged low back injury). Therefore, no award was made for the lacerations or abrasions. Claimant did not prove injury to his low back based on the testimony of he and his wife alone. Their testimony was not supported by any other medical or non-medical evidence in the record. Claimant's doctor said the low back injury was "consistent" with the vehicle accident, but defendants showed that the doctor's testimony was based on an incomplete history. 5-2907 Claimant ordered to pay costs including the cost of the transcript. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ CAROLYN BOWERS, Claimant, vs. File No. 869665 CARLISLE COMMUNITY SCHOOLS, A P P E A L Employer, D E C I S I O N and EMPLOYERS MUTUAL COMPANIES, Insurance Carrier, Defendants. ____________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed December 30, 1992 is affirmed and is adopted as the final agency action in this case with the following additional analysis: Dr. Hayne and Dr. Boulden have stated, after viewing the videotape of claimant, that claimant could return to work as a teacher within certain restrictions. The restrictions of not lifting over 15 pounds and not standing or sitting for extended periods of time are in many ways incompatible with claimant's described duties as a teacher. The opinions of Dr. Bower and Dr. Hayne that claimant could return to teaching are limited to their knowledge of claimant's duties as a teacher. In addition, Dr. Hayne explained that although claimant might be said to be able to return to teaching duties, the associated pain with doing so might interfere with her performance of those duties. (Exhibit 19, pages 34-35) It is also noted that these opinions, although accepted as part of the record, do not consist of detailed letters or statements on claimant's ability to return to teaching, nor were said opinions given in a deposition. Rather, the opinions consist of checkmarks on a form which offered a "can" or "cannot" choice. Although such evidence is considered, it necessarily carries less weight than a more detailed, reasoned medical opinion with supporting documentation and analysis. Weight is given to the fact that although defendants state that claimant could return to teaching at the school, there Page 2 is little evidence of a concrete offer of re-employment to claimant within her restrictions. There is evidence of another teacher being hired instead of claimant. The videotape evidence does contradict claimant's description of her impairment, and tends to show an exaggeration by claimant. Nevertheless, claimant does have some impairment from her injury, and this is verified by medical evidence. Claimant's motivation to seek other employment is less than exemplary. However, claimant's description of her pain and limitations appear to be partly responsible for this. There are indications in the record from both physicians and vocational workers that claimant did show good motivation to return to work. (Ex. 1, p. 10; Ex. 20, p. 29; Transcript, p. 107) Taken as a whole, the evidence shows that claimant, as a result of her work injury, is unable to return to her former employment or to engage in other employment for which she is trained or qualified. Based on these and all other appropriate factors for determining industrial disability, claimant is determined to be permanently and totally disabled. As ordered in the arbitration decision, defendants are entitled to a credit for permanent partial disability benefits previously paid. In this case, defendants have paid 86.143 weeks of permanent partial disability benefits and shall receive a credit therefor. Defendants shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of November, 1993. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Donald Beattie Attorney at Law 204 8th St., SE Altoona, Iowa 50009 Mr. D. Brian Scieszinski Attorney at Law 801 Grand Ave., Ste 3700 Des Moines, Iowa 50309-2727 1804 Filed November 17, 1993 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ CAROLYN BOWERS, Claimant, vs. File No. 869665 CARLISLE COMMUNITY SCHOOLS, A P P E A L Employer, D E C I S I O N and EMPLOYERS MUTUAL COMPANIES, Insurance Carrier, Defendants. ____________________________________________________________ 1804 Found 57-year-old claimant permanently and totally disabled. She was a school teacher. Page 1 before the iowa industrial commissioner ____________________________________________________________ : CAROLYN BOWERS, : : Claimant, : : vs. : : File No. 869665 CARLISLE COMMUNITY SCHOOLS, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This case came on for hearing on November 23, 1992, in 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 28, 1987. The record in this proceeding consists of the testimony of the claimant; claimant's husband, Billy Bowers; Laura Cozad; Richard Rattray; Ben Halupnik; and Jo Nye; and joint exhibits 1 through 28. issues The issues for resolution are: 1. The extent of claimant's permanent disability and entitlement to disability benefits; 2. Whether there is any causal connection as to a healing period beginning November 15, 1988 through January 16, 1990; and, 3. Iowa Code section 86.13 remains asserted. FINDINGS OF FACT The undersigned deputy, having heard the testimony and considered all the evidence, finds that: Claimant testified at the hearing and by deposition on September 12, 1991 (Jt. Ex. 25). Claimant is a 57-year-old high school graduate who graduated from high school in 1959 and then was a homemaker until 1970, at which time she returned to college. She received her college degree in 1973. She has twenty hours toward her Masters. Claimant's degree is in education and she was basically a schoolteacher mainly teaching children with mental disabilities. She related her teaching experience with the schools and grades Page 2 she taught. Claimant indicated that before 1980, she was in excellent health and had no back problems. She related that in early 1980 she had a sudden onset of pain that was not connected with her work and surgery was performed by Robert Hayne, M.D., in 1981 for a herniated disc in the lower lumbar area. Claimant then returned to work in the fall of 1982. She indicated there were no written restrictions after the 1981 surgery except that she was cautioned orally regarding lifting over 20 pounds. She indicated she was having no problems in the fall of 1982 to October 28, 1988, and was experiencing no back problems. She got along very well and was teaching. Claimant indicated that on October 28, 1987, she was injured while leaving a class. She indicated she slipped and fell on an oil based substance and did the splits, referred to as the spread eagle, and felt pain and discomfort. She thought she was having spasms but continued to work for a couple of weeks up until the time she was having teacher-parent conferences on November 14, 1988. She started to have these conferences when the pain was getting excruciating and she was taking a lot of medication and was unable to handle the pain. She was then off work for a time, which the parties stipulated to, from November 16, 1987 through November 22, 1987. Claimant related the medical treatment she was receiving, the doctors she was going to and the nature of her therapy. She indicated that Dr. Hayne eventually performed surgery for a herniated disc on February 20, 1989. She related her post-surgery medical treatment, therapy and the doctors she was referred to and was seen by. She also went to Mayo Clinic. Claimant testified she submitted her resignation in July of 1990, after she was told she did not meet the physical demands of an elementary schoolteacher. She then was referred to joint exhibit 1, page 1 through 4, which is a report dated July 16, 1990, by Ann H. Schutt, M.D., in which she indicated that claimant did not meet the physical demands of an elementary schoolteacher which is at the light level according to the Dictionary of Occupational Titles. That report also indicated it was recommended that claimant continue her disability retirement from teaching and consider vocational rehabilitation training for a sedentary job and/or social security disability. She was also referred to page 20 of exhibit 1, which is a January 18, 1990 report from Mayo Clinic by John L. Merritt, M.D., in which at that time he had indicated claimant had reached maximal medical improvement for any definitive procedures likely to change claimant's spinal disorders and associated right foot disorder. At that time, he opined a permanent partial impairment of 11 percent of the body as a whole relative to her spinal disorder and 2 percent of her body relative to her consequential foot disorder, thereby totaling 13 percent to the body as a whole. It is apparent it is this date the claimant is relying on as to the end of claimant's healing period as claimant contends it began on November 16, 1987 through January 16, Page 3 1990, rather than ending through November 22, 1987. This same letter causally connected claimant's present symptoms to her October 27, 1987 work-related injury. It is obvious this is the October 1987 injury they are referring to. Claimant then indicated that because of this July report, the school district did not want to hold claimant's position open because of the evaluation indicating she couldn't be an elementary schoolteacher. The contract with the school therefore was severed and claimant was no longer considered an employee-teacher. Once the contract was terminated, she would then have to reapply if she wanted to be an employed schoolteacher again with the school district and an existing employee would have a priority for any jobs. Claimant indicated that the defendant employer never discussed any position that might be available other than a schoolteacher position. Claimant did indicate that in a mediation hearing an inference was made that the defendant employer was developing a teaching position, it appears, in 1991. Claimant insisted she was never informed of this position and the insurance carrier never discussed it with her except at the mediation. She said the school district has never discussed this position with her. Claimant related she has been through the Iowa Department of Vocational Rehabilitation and did what Mayo suggested. She was in vocational rehabilitation for two weeks and they closed the file because claimant's disability was too severe for employment. She indicated they suggested she file for social security disability. Claimant said she did apply and received social security beginning November 19, 1990. She was also awarded disability benefits from an insurance company insured through her employer and had received about a year's workers' compensation benefits. She related that these benefits today amount to about 25 percent of what she was earning teaching school. Claimant contends her current physical condition is worse and she has internal pain. She described the nature and areas where she is having pain. She indicated she cannot sleep for more than two to four hours at night and has to sleep in a different room than her husband because of her restless sleeping. She testified as to the medication she was taking, and the fact that she is always fatigued and hurting. She is unable to stay in certain positions very long. She related she doesn't lift consistently anymore than approximately ten pounds and does light housework. She went over the various things she cannot do now that which would have to do if she was a schoolteacher. Claimant related her disappointment and dissatisfaction with the video tape which was taped while she was at her house. She related the neighbors' and her concern at the suspicious vehicle being in the neighborhood. She called it deceitful. Claimant agreed she had a real estate license in 1989 and was able to go out and sell real estate. She Page 4 acknowledged that she updated it in May of 1991 by taking six courses which was enough to renew her license. Claimant indicated she has trouble negotiating stairs and inclines are a problem. The claimant acknowledged that no one asked her to resign or leave her job. Laura Cozad, a vocational counselor for the Iowa Department of Vocational Rehabilitation, testified that she has worked for the department ten years and her title is vocational counselor. She indicated that her duties are accepting applications from people who have disabilities and have a hard time getting a job. She determines their potential for new employment and helps them pursue a job. Ms. Cozad said that she is trained to read medical reports and files including the Mayo Clinic file. She had claimant go through an evaluation at the center. She said claimant came in on a part-time basis not to determine her skills but her physical tolerance to see if she is employable. She said she saw a lot of pain in the claimant. She indicated that claimant wanted to increase her time at the center but they discouraged it because claimant could not tolerate it. She said she didn't want claimant to hurt herself. Ms. Cozad said claimant's pain and tolerance problem interfered with her ability to concentrate and apply what she was doing and to remember. She said she decided claimant could not function as a teacher. Claimant was in the program on August 22, 1990, and was discharged on September 17, 1990. This three to four weeks is a normal period of time. Ms. Cozad opined that it wasn't feasible for claimant to seek competitive employment because of the pain and physical tolerance to apply the skills she had. Ms. Cozad indicated that her condition prevented her from putting forth too much effort and she stated she thought claimant put forth her very best effort and was very motivated. She thought claimant wanted to do more than what was allowed and she held her back. She emphasized again that she did not want claimant to hurt herself. She said she then recommended claimant seek social security. She related it was hard for claimant to accept this. At this time, the undersigned noticed that claimant spontaneously became emotional while sitting at the counsel table with her attorney and got up and left the hearing room. Joint exhibit 8, pages 144 through 168, is the vocational rehabilitation information and reports. Page 168 of this exhibit sets out the reasons for the closing of claimant's file as she was ineligible due to the fact that claimant's disability was so severe for the claimant to benefit from services in terms of employment. This particular report was dated October 2, 1990. In a report dated September 20, 1990, claimant was put in the highest category of the severity of the handicapped (Jt. Ex. 8, p. 145). This report indicates that claimant was interested in obtaining part-time employment if they could determine what Page 5 claimant could tolerate physically. The report also indicates that claimant at this time is considered to be severely disabled due to her being severely limited in the area of work tolerance. This September 20, 1990 report also summarizes by indicating in part that the file is being closed for the reason that claimant's handicap is too severe (Jt. Ex. 8, pp. 145-147). Ms. Cozad acknowledged that she saw claimant only one time and that was the first meeting of the initial intake. She indicated she does not make her own medical opinions but relies on the doctors' opinions. She further stated that she had only Mayo Clinic records at the initial intake. Ms. Cozad indicated she thought claimant put forth maximum effort. Richard Rattray, a vocational rehabilitation counselor with the Iowa Vocational Rehabilitation agency for the last 27 years and who has been in the position of supervisor for the last nine years, explained the procedure he uses, the intake process, and how decisions are made. He indicated at the intake they start the evaluation and decide what claimant can do and whether claimant can be helped or should claimant be sent on for social security. He indicated claimant was in a lot of pain and couldn't do things full time. He said she pushed herself hard and tried. He related that claimant couldn't remember his name and address of the building. He indicated claimant's pain affected her performance and concentration. He said her concentration was not there academically. He recommended that she apply for social security and not work. Billy D. Bowers, claimant's husband, testified. He described his wife as a workaholic and they struggled in order for her to get a degree. He related that before November 1987, claimant's health was good. He said claimant's condition is getting worse. It has curtailed their vacation and when they drive in the car, they have to stop a lot. He said claimant's pain has interfered with her thought process and he has had to tolerate her. He was asked if he saw the surveillance tape and saw claimant lifting her grandchild. Mr. Bowers indicated the grandchild was small. Mr. Bowers angrily related his displeasure at defendants taking the video and getting information on him. He contended defendants' actions regarding him and his records were illegal. Ben J. Halupnik has been the superintendent of school at Carlisle since July 8, 1991. Before that he was vice president of Indian Community College. He testified in person and through his deposition of November 13, 1992 (Jt. Ex. 22). He indicated he was not superintendent when claimant was injured. He said he first became aware of claimant's situation in the late winter of 1991 or early 1992 per a visit from Ms. Nye. He related the number of teachers presently in the system and disagreed with the claimant in that he indicates a teacher's aide does not have the same duties as a teacher presently in the system and the Page 6 difference depends on certain circumstances. He related the possible difference in duties and requirements. Mr. Halupnik indicated that from time to time there is need for a teacher and they have hired approximately eight in the last two years. He also indicated that there is a need for aides and associates from time to time and they currently need another teacher's aide. He testified as to the in-home schoolteachers. He set out their requirements which he indicated were different than teachers. They were not required to work 8:00 to 5:00 but could fit their schedule in but needed to visit each home of a particular student in the program at least once a week. Mr. Halupnik suggested the in-home program for the claimant as it is less strenuous than the classroom setting and claimant would be a consultant to the parents and her situation would be flexible as to her required standing, sitting, etc. He indicated that the school is always willing to accommodate a person. He indicated these particular jobs could be full time or part-time and that 30 hours a week would be considered full time making one eligible for health, dental benefits and long-term disability. He said teacher's aides or associates are paid between $5.50 to $7.50 per hour and are paid differently than a regular teacher. Mr. Halupnik said claimant was a good instructor and had no blemishes on her record. He said that claimant was motivated and does not know of any reason why claimant wouldn't want to teach other than because of her injury. He acknowledged that he had not read claimant's medical or the Mayo medical reports which indicated claimant cannot be a teacher so he had no knowledge of this fact. He acknowledged that the school district has never offered claimant another job nor has the insurance company asked him or the school district to sit down with the claimant and work something out. He knew the defendants hired Jo Nye, the rehabilitation consultant, but did not know of the relationship. Mr. Halupnik acknowledged that claimant was never notified of the home education plan that occurred in July of 1991, and that another teacher did get it. He also admitted that assuming claimant called today for the home study job, claimant couldn't have it as such because it must be advertised and the district would have to give first preference to an existing employee schoolteacher and then if no one qualified, the advertisement would be opened to the public. He also acknowledged that the position was highly sought after and there are usually a number of applicants for the positions. Mr. Halupnik, again upon questioning, emphasized that he is limited to making an offer to the claimant. In other words, hiring must go through a procedure which involves advertising in a newspaper, interviews and looking at credentials and resumes to get the most qualified. He was asked why he didn't notify the claimant of the home study plan position and he indicated he didn't know her at the time but said that the defendants or Page 7 the rehabilitation consultant did. Mr. Halupnik, again upon recross-examination, affirmed that in the filling of the teacher home study position, if a member currently on the staff applied who is a qualified applicant under the union contract, this person other than the claimant would be hired. Mr. Halupnik then indicated that if he knew claimant was a former teacher with a disability the contract doesn't prevent claimant from being called and some job opening possibly made available. He indicated the school district has never done this as to full-time teachers. He also indicated the insurance company never requested that the school district inform them of any job openings so they could meet with claimant or the school district. Jo Nye, a nurse consultant and rehabilitation specialist whose job entails assisting people to get back to work and trying to place the handicapped, was hired by defendant insurance company. She testified in person and through her deposition on November 13, 1992 (Jt. Ex. 21). She was to attempt to see the parameters of the possibility that the defendant employer could modify a job for the claimant. She emphasized that she was not an adversary and that she usually works with a former employer first and primarily to try to get the claimant's job back. She related her conversation with the defendants' attorney and her attempt to get in contact with claimant's attorney and the problems she indicated she encountered. Ms. Nye was asked about the video tape (Joint Exhibit 28) which is a video of the alleged teaching position that claimant had had as a first grade teacher and she acknowledged that she took that to Dr. Hayne to see if this was a job in his opinion claimant could do. She said the doctor was to issue a written report but never did. She did point out joint exhibit 2, page 4, in which Dr. Hayne did check a form letter of hers indicating that he did feel that the claimant could perform the duties and physical requirements as outlined in the first grade teaching position. Ms. Nye opined that she felt claimant was capable to go into the home school study program. She was questioned as far as the video tape (Jt. Ex. 27) and indicated that this tape wasn't the vehicle to show claimant with the limp, but only that she was not using the proper body mechanics. She was questioned about reviewing the tape with Dr. Hayne and yet not contacting Mayo Clinic, which was treating claimant and who had issued restrictions. She indicated it was Dr. Hayne who did the surgery and not Mayo. Ms. Nye said she thought the defendants' attorney was going to contact Mayo regarding the video. Ms. Nye was then questioned about joint exhibit 28, the video which showed the school teaching position and what a first grade teacher did during the day. She acknowledged that it did not show a full eight hours but that the tape was cut down on time. She emphasized it was to show the particulars themselves and not the repetitiveness of a task or the time spent doing the particular task. She acknowledged that she was not aware of the home school job Page 8 and that the school district had never made her aware of it. Ms. Nye was not involved or personally aware of any in-home schoolteacher position that was offered to claimant. Defendants' attorney then indicated on the record at Ms. Nye's deposition (Jt. Ex. 21) that it was his understanding that no specific offer had ever been made to the claimant as to the in-house school teaching position (Jt. Ex. 21, p. 6). She also acknowledged that she was aware of a report by Ann H. Schutt, M.D. Joint exhibit 23 is the deposition of Byron F. Robison taken May 29, 1992. He testified that he took the video of claimant on two days, April 26, 1991 (approximately four hours) and April 27, 1991 (12 hours). He acknowledged that Mr. Bowers was involved in some of these videos. He also testified as to certain information he obtained regarding the claimant which also appeared to include something on the claimant's husband. A good part of the deposition had to do with the claimant asking questions and leaving the strong impression that the whole surveillance process in obtaining information on claimant was wrong and contrary to either the law or the dignity of the claimant's. The undersigned might add that he does not believe that the taking of a video and surveilling the claimant on cases of this type is wrong and can serve a purpose. Oftentimes, the party doing the surveillance helps the party against whom they intend to use. When one is making a substantial claim as being made here, it would seem very logical to consider a surveillance. Ray Steiner testified through his deposition taken on May 13, 1992 (Jt. Ex. 24). Mr. Steiner is the person who actually took the video and worked for Mr. Robison. Ronald M. Pattison testified through his deposition on November 13, 1992 (Jt. Ex. 26). He was the principal at the time claimant incurred her injury in October 1987. He couldn't recall if he ever offered claimant a first grade position and believed after reviewing his notes that he had talked with claimant as to interviewing for a kindergarten job but didn't recall if it was for a full-time or part-time position. He said claimant was a good employee and that she was a fourth grade teacher at the time of her injury. He acknowledged that he didn't offer the job to claimant but that if she applied for it, she would have to go through the interview process and that there would be no guarantee she would secure the job as they would have to advertise it publicly within the school district and they would have to post that position in order to see if there were others on the staff who might be interested in it. He said that it was binding process under the teachers' union contract. If a teacher bid on the job, seniority is one of the things taken into consideration in addition to experience and previous evaluations. Mr. Pattison opined that if claimant's rehabilitation period had elapsed and she was released by the doctor, she would be able to return to work and resume her duties as a schoolteacher and could have returned back to the fourth Page 9 grade. Jeff L. Johnson, a certified rehabilitation consultant, testified through his deposition on November 13, 1992 (Jt. Ex. 20). He indicated the majority of his work that he does is job placement with a variety of insurance companies in the Des Moines area. His report is represented by joint exhibit 10, dated July 12, 1991. He acknowledges his report at that time listed certain targeted jobs he felt claimant could do and that that was just a selected number of positions out of 5 percent employment that she could perform. Mr. Johnson's report of July 12, 1991, is reflected by joint exhibit 10. Robert A. Hayne, M.D., testified through his deposition on September 6, 1991, represented by joint exhibit 19. The doctor testified that his first contact with the claimant as to any back problems was June 8, 1981. He said claimant underwent a lumbar laminectomy in 1981 and that was to try to obtain relief in the right sacroiliac area with the pain increasingly frequent and severe in the back of claimant's right thigh. The doctor indicated that he issued permanent restrictions to claimant after this 1981 surgery which amounted to a 30 to 35 pound weight restriction and avoidance of repetitious bending of her back. The next time the doctor saw her was on August 3, 1988, pursuant to claimant's fall in October of 1987. The doctor testified that he saw claimant again on November 14, 1988, at which time she was experiencing pain and that she was having difficulty teaching because of the pain over the low back and in the back of the right lower extremity. He recommended that she stay off teaching until November 28, 1988. He recommended an enhanced CT scan. He then saw her in December of 1988 when she was hospitalized because of experiencing increasingly severe pain. On January 30, 1989, he saw the claimant who had not worked since November 14, 1988. The doctor said the December 1988 myelographic study showed a mild disc bulge at the third lumbar interspace and at the fourth lumbar interspace primarily in the midline. There was also evidence of degenerative disc disease at the L1,2, at the L-4,5, and at the L-3,4 levels (Jt. Ex. 19, p. 11 and 12). Exploratory surgery was carried out on February 28, 1989. The doctor saw her on August 15, 1989, and eventually referred her to Mayo Clinic. The doctor then did not see her until August 30, 1991, at which time she was having pain in her right buttock and in the back of her right lower extremity and numbness in her right foot. The doctor opined as to when he thought claimant could return back to teaching in some capacity. He testified that claimant could make a trial of it and determine by the trial of it whether she would be able to continue working. He indicated it appeared at the time of his last examination that the outlook was not too good for her being able to continue with her regular teaching duties in view of her Page 10 continuous complaints of pain (Jt. Ex. 19, p. 17). The doctor did not see any specific statements in the record as to claimant's restrictions but he indicated that when one has a lumbar laminectomy, he would recommend that they do not lift over 35 to 40 pounds and avoid repetitious bending of the lumbosacral spine. He indicated that Mayo Clinic was one pursuing these measures. He did not have claimant engage in work hardening programs because he felt claimant's condition had not improved to the state where he felt he could make such a recommendation in good faith (Jt. Ex. 19, p. 19). The doctor was also asked whether he recalled filling out a statement presented to him by Jo Nye and he did not recall filling out a statement for her (Jt. Ex. 19, p. 21). He also could not recall any particular thing he saw in the video as to claimant performing any particular thing. He affirmed his comment in a letter of October of 1989 to defendant insurance company that he did not feel claimant had ever obtained what he would call good results following the claimant's second surgery. He felt that she did obtain good results from the initial surgery back in 1980 or 1981. He agreed with the work evaluation of Dr. Schutt, of the Mayo Clinic, represented in a letter of July 16, 1990. On cross-examination, the doctor said that he believed claimant could perform such activities as sitting or standing if allowed to alternate between sitting and standing in a teaching job; she could write on the chalkboard; she could pass out papers; read books to the children; assist children with math; and observe the playground assuming she wouldn't be picking up any children. The doctor then was handed deposition exhibits 2 and 3 which were lists of certain activities done by a first grade teacher. The doctor thought claimant would be able to do those things listed thereon. The doctor did indicate that he wasn't opining that claimant could do those things as a schoolteacher listed thereon eight hours a day, day in and day out, twelve months a year, or whatever the demands of a schoolteacher are on a full-time basis (Jt. Ex. 19, p. 33). The doctor questioned whether claimant could go to a full-time position on 40 hours a week and handle the types of tasks that were indicated therein. The doctor opined that claimant had a 12 percent impairment of her body as a whole (Jt. Ex. 19, p. 39). Joint exhibit 11 is a May 1, 1991 letter from the Principal Financial Group which indicates that claimant was still on total disability from working any job based on her background and training. Claimant was getting long-term disability benefits through this insurance company which was through a policy with the Carlisle Community School District. One of the attachments to that statement represented by joint exhibit 11, page 187, is an attending physician statement signed by Dr. Schutt in which she has checked thereon that claimant is not a suitable candidate for rehabilitation services and that the present job cannot Page 11 be modified to allow for handling with her impairment and that claimant is totally disabled, etc. Joint exhibit 9 is the social security administration's award letter dated October 29, 1990, in which claimant was determined to be totally disabled. Joint exhibit 4 is an August 20, 1992 letter of William R. Boulden, M.D. He did an independent medical evaluation. In his letter, he indicates that no matter what is attempted to be done with claimant she will have minimal success in treatment. He said that while she is disabled, it would be hard pressed to rehabilitate her to get her back to physical functioning and working again. He concurred with the Mayo Clinic's rating and felt that he was dealing with a failed back syndrome with underlying chronic pain syndrome that basically will be probably recalcitrant to any type of orthopedic management. Joint exhibit 1 is the records of Mayo Clinic. A letter from them on July 16, 1990, represented by pages 1 through 4, and their letter of June 1, 1992, pages 10 and 11, basically sums up the situation as to claimant and their treatment and diagnosis of her. Their June 1, 1992 letter indicates that claimant's condition has not changed their letters of July 16, 1990 and July 11, 1991, and that claimant would not be able to perform repetitive work that would be necessary for her to be able to change positions frequently with adequate rest periods and that she would be unable to return to her teaching job. They also understood that claimant was declared totally and permanently disabled by the social security administration and totally unemployable by the Iowa State Department of Vocational Rehabilitation, and is not capable of returning to full-time employment by Dr. Hayne. Dr. Schutt, on behalf of Mayo Clinic, did not dispute these determinations. They further wrote that claimant was motivated and that she desired to return to work after her injury and that she simply was not physically able to continue. They also indicated that they did not feel claimant's back condition prior to her 1987 injury had any bearing on her current condition. The undersigned has viewed joint exhibit 27, which was offered to show claimant doing certain bending and lifting, and joint exhibit 28, which was offered to represent the duties of a first grade teacher. The parties had stipulated that claimant had a healing period from November 16, 1987 through November 22, 1987. They were disputing as to another healing period of November 15, 1988 through January 16, 1990. Although it appears there is no dispute as to the period of time, the dispute was to whether there was any causal connection as to this alleged healing period and claimant's October 28, 1987 injury. During this latter part of time, claimant was having treatment and going through various tests and procedures and ultimately had an exploratory surgery, a laminectomy in February of 1989. The parties also stipulated that any permanent Page 12 disability benefits would run from January 17, 1990. It would seem logical that if in fact there was a dispute as to this second healing period, then the parties would have disputed the beginning of permanent partial disability benefits if any were awarded and would run them from a different period of time. In this instance, it would run from the end of the first healing period, namely, November 22, 1987. The undersigned therefore finds that the greater weight of medical evidence shows claimant did incur a healing period beginning November 15, 1988 through January 16, 1990, and that said period was causally connected to claimant's October 28, 1987 work injury. The only remaining issue is the extent of claimant's permanent disability and entitlement to disability benefits. The defendants have paid the equivalent of approximately 17 percent industrial disability (85.143 weeks). Claimant is not working and has not worked for a few years because of her injury. Claimant contends she is unable to work. Claimant contends that she is not able to perform her duties or job as a schoolteacher and that this is where her transferable skills lie. She does have a real estate license which is now inactive and she has not attempted to use since her injury but takes the position she is unable to do that type of work, also. Defendants contend that claimant could teach and if not full time or as a first grade teacher or fourth grade teacher, the position she held at the time of her 1987 injury, she could teach part-time or take part in a home study program even full time if she desired and could adjust her hours and her certain style of teaching as far as staying within her restrictions. It seems undisputed that claimant was considered and had a job as a full-time teacher until July of 1990. It would appear possibly she could have had a position as a first grade teacher or possibly kindergarten but not necessarily the fourth grade position she had at the time of her 1987 injury even though that is not absolutely clear. There is no dispute that claimant has been considered totally disabled through the social security administration award dated October 29, 1990. It is found that claimant would be entitled to benefits beginning in August of 1989 (Jt. Ex. 9). It is generally true that it is not easy to get a social security award for being totally disabled. Although there is to some extent different criteria, this is an item to consider. The Iowa State Vocational Rehabilitation Department in September 1990 found claimant was not eligible for vocational rehabilitation services and that there was not a reasonable expectation that vocational rehabilitation services would benefit the claimant in terms of employability. Claimant was considered to be severely disabled due to her being severely limited in the area of work tolerance (Jt. Ex. 8). Mayo Clinic, who has treated claimant since 1989, takes Page 13 the position that claimant is permanently disabled (Jt. Ex. 1, p. 10). Dr. Schutt did not dispute the determination of social security and the Iowa State Department of Vocational Rehabilitation that claimant was permanently and totally disabled or totally unemployable. Dr. Robert Hayne did not dispute these determinations made by the above two entities and also said claimant was not capable of returning to full-time employment. The medical evidence is overwhelming, particularly taking into consideration the opinions or conclusions of other agencies who relied on medical evidence that claimant is permanently disabled. There has been testimony to the fact that claimant could possibly perform duties as a home study teacher and that possibly she could have had this type of job if she tried. There seems to be an inference or allegations that claimant is not motivated. The record is clear that when these possible jobs may have occurred or been instituted, particularly the home study teacher job, claimant was not notified of these jobs and, in fact, she would have had to apply like anyone else and top priority would have been given to a presently employed teacher who with seniority and under the union contract would have had top priority and, in fact, such a teacher did obtain that particular job. No one has been able to obtain a job for the claimant. The undersigned believes she has a history of being motivated. It is true that having been determined to be totally disabled by the various institutions can tamper one's motivation to go out and look for a job. Yet, the undersigned does not believe that one should necessarily seek out and try to do a hopeless and likely totally unproductive search. Claimant, herself, does not believe she can work but that isn't determinative. There has been some very discriminatory agencies that have concurred with the claimant and the undersigned believes with the criteria of those organizations and the criteria under the workers' compensation law, claimant has proven her case and sustained her burden to show that she is totally and permanently disabled. Am exhibit was offered by defendants to show the position of a first grade teacher and the type of job it encompasses which would be something that claimant could do, particularly with her teaching skills. Claimant was well thought of as a teacher. It is obvious from the tape that it depicts certain tasks that a teacher does but does not depict the length of time those tasks are done or does it include other tasks that would be required of a teacher. Also, it just depicts what tasks were for this particular teacher during that day. Claimant has a problem on repetitive movements and type of work in addition to her having to be careful concerning her length of standing, sitting and her lifting restrictions. The undersigned believes that the video does not do away with the overwhelming medical evidence and conclusions of others that Page 14 claimant is totally disabled. Joint exhibit 28 shows claimant doing some bending and picking up a grandchild that could possibly weigh 20 pounds. It would seem when listening to the claimant that she would be unable to do those things that are depicted in the video. The fact is she did them and seemed to do them with ease and without a problem. Although this may seem to contradict the medical evidence or conclusions by these agencies, the matter of fact is that claimant is still living and even though being totally disabled as found by the undersigned, doesn't mean that she isn't able to do anything, cannot live or may not do things on an isolated or temporary basis that might be contradictory to some of her restrictions. Claimant is not to do certain things. That doesn't mean she won't or cannot do them. Joint exhibit 28 does not show her doing the squatting, bending or lifting repetitively hour after hour, day after day, in a full-time job or even what we consider a part-time. It is not unusual for someone to go beyond their expectations or restrictions, particularly on an isolated basis, when things are necessary in their daily living. There is no evidence of claimant malingering. There was plenty opportunity for the doctors or rehabilitation consultant to see through the claimant if that was the situation. The Mayo Clinic and Dr. Hayne are well thought of in the medical field. The undersigned observed the claimant during the hearing, both while testifying and her actions and demeanor while in the hearing room. The undersigned believes the claimant is in pain and that claimant would rather be teaching than being in her current condition. The undersigned believes claimant is a credible witness and is not a malingerer and is, in fact, permanently totally disabled as a result of October 28, 1987 injury, and so finds. Claimant is 57 years of age and her skills are basically in the teaching field even though she does have a real estate license that is inactive. The evidence is very clear that claimant's surgery in the first part of 1980 was not affecting her and if, in fact, there was any impairment at the time, there is no evidence of an effect of an impairment at the time of her injury on October 28, 1987. Claimant was doing her work as a schoolteacher and having no problem. The undersigned is taking into consideration claimant's pre and post-injury medical, work history and experience; her aptitude and intellectual abilities; her emotional situation; the location and severity of her injury; her healing period; her motivation; functional impairment; and any other item that is to be considered in determining industrial disability and after considering those has arrived at the conclusion heretofore set out. Claimant shall receive weekly benefits at the rate of $280.00 per week from the date stipulated to by the parties, Page 15 namely, January 17, 1990, for as long as claimant remains permanently and totally disabled. conclusions of law The claimant has the burden of proving by a preponderance of the evidence that the injury of October 28, 1987, is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 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 Page 16 impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial dis ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, l985). It is further concluded that: Claimant incurred a work injury on October 28, 1987, which caused claimant to be permanently totally disabled. Claimant did not have any preexisting injury or impairment that affected claimant's work or physical condition in the performance of her job up to October 28, 1987, the date of her injury. Claimant incurred a healing period beginning November 16, 1987 through November 22, 1987, and another healing period beginning November 15, 1988 through January 16, 1988. Claimant has a permanent impairment and permanent restrictions as a result of her October 28, 1987 work injury. Page 17 order THEREFORE, it is ordered: That defendants shall pay unto claimant sixty-two (62) weeks of healing period benefits at the rate of two hundred eighty dollars ($280.00) per week for the periods of November 16, 1987 through November 22, 1987 (one week) and for the period of November 15, 1988 through January 16, 1990 (61 weeks). Defendants have already paid sixty-two (62) weeks of healing period at the rate of two hundred eighty dollars ($280.00) per week. That defendants shall pay claimant compensation for permanent total disability at the stipulated rate of two hundred eighty dollars ($280.00) per week during the period of claimant's disability, commencing at the stipulated date of January 17, 1990. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. The defendants have already paid sixty-two (62) weeks of healing period benefits and eighty-five point one four three (85.143) weeks of permanent disability benefits. 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. The issue of Iowa Code section 86.13 penalty benefits is bifurcated. Signed and filed this ____ day of December, 1992. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Donald G Beattie Attorney at Law 204 SE 8th St P O Box 367 Altoona IA 50009 Mr Brian Scieszinski Attorney at Law 801 Grand Ave Ste 3700 Des Moines I0309-2727 Page 18 1804 Filed December 30, 1992 Bernard J. O'Malley before the iowa industrial commissioner ____________________________________________________________ : CAROLYN BOWERS, : : Claimant, : : vs. : : File No. 869665 CARLISLE COMMUNITY SCHOOLS, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1804 Found 57-year-old claimant permanently and totally disabled. She was a schoolteacher.