BEFORE THE IOWA INDUSTRIAL COMMISSIONER MARY KEEVER, Claimant, VS. File No. 870104 MUSCATINE COMM. SCHOOL DIST., A R B I T R A T I O N Employer, D E C I S I O N and EMPLOYERS MUTUAL INS., Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Mary Keever, claimant, against Muscatine Community School District, employer, and Employers Mutual, insurance carrier, defendants, for benefits as the result of an alleged injury that occurred on November 5, 1987. A hearing was held in Davenport, Iowa, on October 24, 1989, and the case was fully submitted at the close of the hearing. Claimant was represented by Michael W. Liebbe. Defendants were represented by Thomas N. Kamp. The record consists of the testimony of Mary Keever, claimant; Becky Parkins, rehabilitation specialist; Kent A. Jayne, rehabilitation specialist; Craig Paul, high school principal; joint exhibits 1 through 17 and claimant's exhibits A through C. The deputy ordered a transcript of the hearing. Both attorneys submitted outstanding briefs. STIPULATIONS The parties stipulated to the following matters at the time of the hearing: That an employer-employee relationship existed between claimant and employer at the time of the injury. That the time off work for which claimant now seeks temporary disability benefits is stipulated to be from November 9, 1987 through November 30, 1987 and from December 17, 1987 through April 28, 1988. KEEVER V. MUSCATINE COMMUNITY SCHOOL DIST. Page 2 That the type of permanent disability, if the injury is found to be a cause of permanent disability, is industrial disability to the body as a whole. That the commencement date for permanent partial disability benefits, in the event such benefits are awarded, is April 29, 1988. That the rate of compensation, in the event of an award of benefits, is $199.39 per week. That claimant's entitlement to medical benefits has all been paid or will be paid if it is determined that claimant sustained a compensable injury. That defendants make no claim for credit for employee nonoccupational group health plan benefits paid to claimant prior to hearing. That defendants have paid 37 weeks and 3 days of workers, compensation benefits to claimant at the rate of $199.39 per week prior to hearing. That there are no bifurcated claims. ISSUES The parties submitted the following issues for determination at the time of the hearing: Whether claimant sustained an injury on November 5, 1987, which arose out of and in the course of employment with employer. Whether the alleged injury was the cause of either temporary of permanent disability. Whether claimant is entitled to either temporary or permanent disability benefits, and if so, the extent of benefits to which she is entitled. SUMMARY OF THE EVIDENCE Claimant, born March 12, 1965, was 22 years old at the time of the alleged injury and 24 years old at the time of the hearing. She is single and lives with her parents. Claimant graduated from high school in 1983. Claimant's complete employment history was succinctly, yet comprehensively, summarized by Becky Parkins, M.A., C.R.C., at joint exhibit 11 as follows: KEEVER V. MUSCATINE COMMUNITY SCHOOL DIST. Page 3 JOB TITLE DATES OF EMPLOYMENT WAGES 1) Food Server 1981-1982, 28 hrs/week $3.10/hr. plus tips 2) Bakery Helper 1981, summer $2.00/hr. 3) Retail Sales 1983, 1 month $3.50/hr. 4) Window Manufacturer 1984, 2 1/2 weeks $3.50/hr. 5) Mail Sorter 1984, 2 weeks $3.58/hr. 6) Janitor 1985, part-time $8.12/hr. 1986, full-time until 11/5/88 Ms. Keever has worked in the following capacity since her injury: 1) Insurance 11/87 to 6/89 commission Sales part-time 2) Mailing Machine 1989, 7 weeks total $3.58/hr. operator (joint exhibit 11) Claimant started to work for employer in approximately October of 1985 as a part-time janitor in the custodial maintenance department. She became a full-time janitor on October 1, 1986, and worked in that capacity until December 1, 1987. Claimant denied any prior back injuries and her medical records support this testimony. Although she was involved in a moped accident in 1979, and an automobile accident in 1983, there was no evidence of any back complaints or injury from either One of these accidents (jt. exs. 7, 11; transcript pages 23, 89). Claimant was injured on November 5, 1987, while lifting a 50-gallon drum, which was 3/4 full of dissected dead cats, into a dumpster which was approximately chest high. Claimant alleged that the barrel weighed between 100 and 150 pounds and that she was performing a lifting and twisting maneuver when she experienced instant pain in her lower.back that went down her left leg (tr. pp. 22, & 23) . Claimant testified that she reported the injury to a supervisor and then told her father who was also employed by employer. Claimant testified that she saw her own personal physician who took her off work until December 1, 1987. Employer sent claimant to see Ronald D. Olson, M.D., on January 7, 1988. Dr. Olson sent claimant to see William R. Pontarelli, M.D., an orthopedic surgeon, who first saw claimant on January 22, 1988 (jt. exs. 4, 5; tr. pp. 26 & 27). Dr. Pontarelli's x- KEEVER V. MUSCATINE COMMUNITY SCHOOL DIST. Page 4 rays revealed narrowed disc space at L5-Sl. He continued to keep her off work and ordered a CAT scan which showed a minimal bulging disc at L5-Sl (jt. exs. 5 & 15). Dr. Pontarelli ordered a myelogram from J.B. Worrell, M.D., a neurologist. The myelogram radiologist reported: There is excellent visualization of the nerve roots and their sheeth [sic] and no [sic] cut off signs are demonstrated. On the lateral view taken prone at the 4-5 level there is (sic] a very minor smooth indentation to the contrast material anteriorly raising the possibility of some bulging of the anulus [sic] at this level. (jt. ex. 1) The radiologist concluded that it was a negative myelogram (jt. ex. 1). Dr. Pontarelli explained the myelogram might not show a small little bulge at L5-S1 because this is a very large disc space and the myelogram die might not make an impression (jt. ex. 15). Dr. Pontarelli believed that the lifting incident which occurred on November 5, 1987, while lifting the trash, injured claimant's back and caused the condition at both L5-S1 and L4-L5 (jt. ex. 15). Dr. Worrell diagnosed a severe lumbosacral strain. His neurological examination was essentially negative. His EMG was negative. His interpretation of the CT scan said there was nothing really to suggest a ruptured disc (jt. ex. 1). Dr. Pontarelli concluded there was not a significant lesion that would warrant surgery and he referred claimant to the university of Iowa Low Back Rehabilitation Center (jt. ex. 15). Dr. Pontarelli said claimant was precluded from lifting 40 to 45 pounds repetitively, which meant 20 times a day. He added that claimant was pretty badly deconditioned from just lying around after the injury (ex. 17). Dr. Pontarelli assessed a 5 percent permanent functional impairment to the whole body based on low back pain and disc problems without surgery based upon the American Academy of Orthopedic Surgeons Guide to Evaluating Permanent Impairments (jt. ex. 17). Dr. Miely (full name unknown) at the University of Iowa, in association with Ernest M. Found, Jr., M.D., examined claimant on March 23, 1988, determined that claimant had low back pain, possibly secondary to degenerative disc. Dr. Pontarelli, however, countered that claimant was a bit young for degenerative disc disease to be a possibility (jt. exs. 3 & 17). Dr. Pontarelli added that the bulge could occur through normal wear and tear, but that it would be unusual because she was only 22 years of age (jt. ex. 17). KEEVER V. MUSCATINE COMMUNITY SCHOOL DIST. Page 5 Claimant was further examined at the Spine Diagnostic and Treatment Center, Department of Orthopaedic Surgery, at the University of Iowa Hospitals and Clinics, by Dr. Found. He determined on March 23, 1988, that claimant was very deconditioned and needed a vigorous reconditioning program (jt. ex. 2). An evaluation was made and a program recommended on March 31, 1988. Claimant was to remain off work for another four weeks (jt. ex. 2). On May 4, 1988, Dr. Found determined that the healing period had ended on April 29, 1988. He assessed a 3 percent impairment rating as the result of this low back injury (jt. ex. 2). A one day functional capacity assessment performed at the university under the direction of Dr. Found on March 31, 1988 determined that claimant's current one time maximum lifting limit was 20 pounds and the repetitive limit would be 10 pounds. One time was defined as once per hour and repetitive was defined as six times per hour (jt. exs. 2 & 3). Claimant indicated to Dr. Found and his associates that she did not perceive herself to be able to perform her old job and that she was not interested in returning to her former job for employer (jt. ex. 2). Claimant testified that employer did not take her back to work on April 29, 1988, because they did not have any work within the limitations which had been imposed (tr. pp. 29, 69 & 110). Claimant then studied life, health and accident insurance and passed the examination to be a salesperson on the second attempt. She estimated that she tried to sell insurance for four months. She received $600 in training allowance and two small commission checks, one for approximately $76 and one for $133. Claimant quit selling insurance because, "I was not a salesman." She was losing money on mileage (tr. pp. 31-33). Claimant then returned to work with the mailing company for approximately six to eight weeks at $3.48 per hour. She quit this employment because, "It was too much on me physically. There was a lot of lifting to it." (tr. p. 34). Claimant then enrolled in the American Institute of Commerce (AIC) studying computers to ultimately become a computer operator, computer programmer or other computer related job. She was enrolled in this program at the time of the hearing (tr. pp. 35 & 36). Claimant testified that she weighed 135 pounds at the time of injury and 160 pounds at the time of hearing (tr. p. 39). Claimant testified that since the injury she cannot bowl, take long car rides or play golf. Claimant testified that if she sits for a while, her legs hurt. If she stands for a half hour or so, she becomes weak and shaky and her back starts hurting. She can only ride in a car for about a half an hour and then she has to stop, get out and move around. She has trouble bending down and getting back up again (tr. pp. 39-41). KEEVER V. MUSCATINE COMMUNITY SCHOOL DIST. Page 6 Claimant agreed that:prior to the injury she saw chiropractors three or four times a year for sore muscles (tr. p. 42). She acknowledged that she drove 60 miles, from Muscatine to Cedar Rapids, to sell insurance (tr. p. 43). She agreed that she did not mention difficulty driving, at the time of her deposition in January of 1989 (tr. pp. 44 & 45). Claimant testified that Dr. Found was the last doctor that treated her and that she did not have any appointments to see any doctors in the future (tr. pp. 45-48). Claimant admitted that she had received no surgery and that no surgery had been recommended. Claimant granted that she was not presently taking any medications for her back (tr. p. 50). Claimant said she began business school at AIC on September 4, 1989 (tr. p. 52). She hoped to graduate in one year (tr. p. 53). Claimant planned to keep up her insurance sales license (tr. p. 59). Claimant granted that she may have testified at this hearing that she had D average grades in high school, but at the time of her deposition on January 18, 1989, she told defendants' counsel that she was a C student in high school (tr. p., 64). Claimant admitted that two days prior to the injury she was put on final warning for discipline and if she had one more problem that she would be discharged (tr. p. 65). Claimant also agreed that she had told defense counsel she had never used any type of exercise bicycle (tr. p. 65), but Parkins testified that claimant told her that she used a Schwinn exercise bike, but feels it aggravates her back (tr. p. 92). Claimant testified that a chiropractor had never touched her lower back (tr. p. 68). Claimant saw Maurice D. Schnell, M.D., on May 4, 1989 and May 26, 1989, at the request of her attorney (tr. pp. 46 & 47; jt. ex. 13). Dr. Schnell concluded: AP, and lateral x rays of the thoracic spine show no evidence of degenerative spinal changes, narrowing of intervertebral disc spaces, deformity of vertebral bodies, or destructive [sic] bone changes. AP, lateral, lateral flexion-extension, and oblique x rays of the lumbosacral spine fail to demonstrate [sic) any degenerative spinal changes, narrowing of intervertebral disc space, change in spinal alignment, spinal instability, or destructive bone changes. IMPRESSION: 1.) Chronic low back pain with referred pain into the buttocks, and posterior aspect of both lower extremities (left greater than the right) without objective evidence of lumbosacral radiculopathy. (2.) Etiology of the chronic low back pain undetermined.... KEEVER V. MUSCATINE COMMUNITY SCHOOL DIST. Page 7 Limitation of lumbosacral motion..... 8 percent impairment Pain.................................. 3 percent impairment Percent impairment of whole person.. l0 percent impairment (jt. ex. 13, p. 94) Parkins, an experienced and highly qualified rehabilitation specialist, testified that she provides medical case management and vocational services to people who have a disability. Her curriculum vitae is impressive (jt. ex. 16). She met with claimant for two hours on April 4, 1989 and had telephone contact with her after that. On September 20, 1989, she prepared an extensive written report (jt. ex. 11). Parkins completed a very detailed labor market access/loss of earnings capacity study and concluded as follows: Based on my analysis, Ms. Keever lost the capacity to perform a moderate number of the jobs within the Quad cities area labor market as a result of the work related injury to her back she sustained on November 5, 1987. She has experienced no loss in the capacity to earn wages as a result of the loss of functioning based on the average median weekly wages of the jobs she retains the ability to perform. (jt. ex. 11, p. 86) Parkins testified that claimant was earning $8.12 per hour from employer, but that all of her other employments had been minimum wage type jobs and in her professional opinion, claimant was being overpaid and was earning a greater wage than normally would be expected when she was being employed by employer (tr. pp. 87-89). However, Parkins also testified, "And in janitorial positions, the salaries of the employers I contacted were $3.35 to $8.75 an hours, and there was one current opening. But nine had hired in the last year and were expected to hire." (tr. p. 92). Claimant introduced a report authored by Kathryn A. Trosen, career development counselor at the Muscatine Community College, showing that claimant had eighth grade mathematic abilities and limited reading abilities (ex. A). Parkins countered that she had the general aptitude battery test, also performed by Trosen, which indicated average levels of intelligence, verbal, numerical, clerical attitudes, finger dexterity and manual dexterity. Numerical aptitude was in the 97 range, which with 100 being average, is in the average range of numerical functioning (tr. pp. 94 & 96). KEEVER V. MUSCATINE COMMUNITY SCHOOL DIST. Page 8 Parkins testified that Bettendorf Schools started janitors at $8.37 per hour and at six months they earned $9.80 per hour. They had replaced two individuals in the past year, but did not currently have an opening (tr. pp. 103 & 104). Parkins explained that she believed that claimant was over compensated when working for employer because she believed that claimant qualified on the average for jobs that did not pay as much as that particular position. Parkins did concede that claimant did have that job, was earning that money, was paid that amount of money, and that she did not have that job at the time of hearing (tr. pp. 113 & 114). Parkins repeated that claimant's general aptitude test battery scores showed average levels of intelligence; verbal; numerical; clerical aptitude; finger and manual dexterity. Spatial abilities were lower than average, but abilities to perceive forms and motor coordination were above average (tr. pp. 119 & 120). Claimant introduced a calculation by Robert L. Riley, certified public accountant, which illustrated that the difference in earnings between $8.12 and $3.48 per hour equaled an earnings loss of $4.64 per hour. Riley extended this calculation over the remaining working lifetime of claimant of 2,115 weeks and determined that claimant would sustain an actual earnings loss of $392,544. The present value of this loss, based upon a 4 percent inflation rate was approximately $193,800 and based on a 10 percent inflation rate of $94,800 dollars (ex. B, pp. 1-5) Kent A. Jayne, a rehabilitation supervisor, prepared an economic ana-lysis for claimant's earnings based upon expected work life, separation from the work force, productivity, inflation, earning power of money and determined that claimant's future earnings loss amounted to $105,820, the present value of which, at a 7.08 percent rate, amounts to $8,421 (jt. exs. 12 & 16; tr. pp. 122-124). Jayne contended Riley's calculation was incorrect stating that a 7 percent discount rate of $392,544 resulted in a present value of $24,499 rather than $129,800 as Mr. Riley had calculated. Jayne further contended that claimant's work life should have been calculated to age 61 rather than age 65. Jayne further contended that the wage difference was much larger than would be indicated if you take into account claimant's capacity to earn wages, her aptitude, abilities, achievement and work restrictions which he contended would justify an hourly wage of $6.75 per hour (tr. pp. 127 & 128). He further contended that $3.48 per hour was not a tested wage rate because claimant had only been in that job for two months (tr. p. 1.29). Riley further contended that over the 61-year working life expectancy claimant would receive some wage increases (tr. p. 130). Jayne admitted that his calculation was based on Parkins, estimate that claimant's average weekly wage would be $270 and KEEVER V. MUSCATINE COMMUNITY SCHOOL DIST. Page 9 that Jayne's calculation did not take into consideration any inflation (tr. pp. 132-137). Dr. Craig Paul testified that he was high school principal and had general administrative responsibilities over the janitorial force for employer. It was stipulated by the parties that joint exhibit 14, pages 95 to 103, were claimant's employment record and history with employer. Paul testified that within three months claimant had received three disciplinary notices and was given her final notice on November 3, 1987, that if she had any further problems she would be dismissed from her position. Paul testified that based on the information of coworkers, supervisors, teachers and the assistant principal, claimant had difficulty in getting along with others. He did not have any written complaints on other employees other than claimant. He stated that claimant was moved from the science area to fine arts, but she continued to have difficulty with other persons (tr. pp. 137-142). Claimant had placed piles of litter on the assistant principal's desk to communicate her frustration with teachers lack of room cleanliness. At other times she refused to clean up the litter or in the alternative she picked it up and placed it on the desks of teachers or on other tabletops as a frustration message for the teachers (ex. 14). Four teachers signed a written protest complaining about the quality of claimant's work (ex. 14). APPLICABLE LAW AND ANALYSIS An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(l). Claimant has the burden of proving by a preponderance of the evidence that she received an injury on November 5, 1987, which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). Claimant did sustain the burden of proof by a preponderance of the evidence that she sustained an injury on November 5, 1987, which arose out of and in the course of employment with employer. Claimant described the injury in her testimony. She gave this KEEVER V. MUSCATINE COMMUNITY SCHOOL DIST. Page 10 same account to all of the doctors. The doctors proceeded to and did treat her on the basis of this described incident of injury. Claimant reported the injury to her supervisor and to her father when it occurred. Employer sent claimant to Dr. Olson as their own choice of physician when her back complaints persisted. Claimant's testimony was not rebutted, controverted, contradicted or refuted by any other evidence including Dr. Paul who was the principal of the high school where claimant worked. The claimant has the burden of proving by a preponderance of the evidence that the injury of November 5, 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. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id., at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). Claimant did sustain the burden of proof by a preponderance of the evidence that the injury was the cause of both temporary and permanent disability. She testified that she saw her own doctor, a chiropractor, shortly after the injury occurred, and he took her off work until December 1, 1987. After that she tried to work, but was unable to do so. The parties stipulated that the times off work were from November 9, 1987 through November 301 1987 and again from December 17, 1987 through April 28, 1988. The medical records of Dr. Pontarelli and Dr..Found contain statements to the effect that claimant was continued to be off work. Dr. Found returned claimant to work on April 29, 1988. The stipulated dates for time off work are, therefore, accepted and claimant is entitled to temporary I disability benefits for these two periods of time. If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, KEEVER V. MUSCATINE COMMUNITY SCHOOL DIST. Page 11 593, 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). Claimant received three impairment ratings. Dr. Found assessed 3 percent. Dr. Pontarelli determined 5 percent. Dr. Schnell awarded 10 percent. Dr. Odell's restrictions may have been temporary. On May 4, 1988, he said that the patient seems functionally limited at this time to jobs that would require no bending, stooping, or lifting (jt. ex. 7). The functional capacity assessment done under Dr. Found's supervision, imposed a current one time maximum lifting limit of 20 pounds and a repetitive lifting limit of 10 pounds. One time was defined as once per hour and repetitive was defined as six times per hour (jt. ex. 3). Dr. Pontarelli stated that claimant should not lift more than 40 to 45 pounds more than 20 times a day (jt. ex. 15). Claimant is foreclosed from performing her previous employment for employer. Claimant was lifting 100 to 150 pounds at the time of the injury. Claimant testified three times that employer refused to employ claimant because there was no work for her within the restrictions that had been imposed (tr. pp. 28, 69 & 110). This testimony was not rebutted, controverted, contradicted or refuted by any other evidence. Dr. Paul, the principal of the high school, was present for the entire hearing and did not controvert this evidence in his testimony when he testified. Refusal of an employer to employ an injured employee is strong evidence of lack of employability. Professor Larson says it is the strongest kind of evidence against an employer. He adds, "It is hardly necessary to labor the inconsistency of permitting an employer to fire a man for physical defects caused by his own employment conditions, and then, disclaim compensation liability by presenting medical evidence that the man is not disabled after all." 2 Larson, Workmen's Compensation Law, section 57.61(b) at pages 10-173 and 10-176. At the same time, employer did establish that claimant's failure to cooperate with co-employees and recalcitrance to superiors placed her in the KEEVER V. MUSCATINE COMMUNITY SCHOOL DIST. Page 12 position of one more disciplinary action away from termination of her employment. Claimant's motivation to work is severely questioned by the fact that she only worked for a period of a few weeks in all of her other employments. In this employment which lasted approximately two years, her motivation is impugned by extremely poor behavior with co-employees and superiors. At her age, in the early 20's, industrial disability is reduced because of the numerous opportunities that she has to follow at that age. Claimant has the advantage of a high school education where she obtained fair to average grades. She demonstrated the ability to study for and pass the insurance licensing examination on the second attempt. She is currently enrolled in a one year computer training course. Defendants have offered vocational rehabilitation guidance. Claimant has pursued some vocational rehabilitation opportunities by passing the insurance licensing examination and by enrolling in the one year computer training course. It cannot be said with certainty that claimant's true earning capacity is $8.12 per hour which she was earning when she terminated employment with employer because this hourly wage is at wide disparity with her other hourly wages which were closer to minimum wage. Both Parkins and Jayne testified that she was over compensated and gave their reasons for these professional opinions. Wherefore (1) based on claimant's impairment ratings; (2) claimant's work restrictions; (3) the fact that employer had no positions for the employee within her restrictions; (4) claimant's questionable motivation to want to work at productive employment on a long-term basis; (5) all of the considerations used to determine industrial disability, Olson, 225 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963), Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 State of Iowa Industrial Commissioner Decisions 654, 658 (Appeal Decision February 28, 1985); (6) based on all of the evidence introduced in this case, including that of the vocational rehabilitation specialists; and (7) employing agency expertise [Iowa Administrative Procedure Act 17A.14(5)], it is determined that claimant has sustained an industrial disability of 15 percent to the body as a whole. FINDINGS OF FACT Wherefore, based upon the evidence presented, the following findings of fact are made: That claimant was employed by employer from the fall of 1985 until December 1987. KEEVER V. MUSCATINE COMMUNITY SCHOOL DIST. Page 13 That claimant lifted a 100 to 150 pound barrel of dissected dead cats with a lifting and twisting motion to dump the barrel into a dumpster on November 5, 1987, when she experienced an instant pain in her lower back that when down her left leg. That Dr. Pontarelli testified that the injury of November 5, 1987 was the cause of her disability. That claimant sustained an injury from this incident on November 5, 1987 that arose out of and in the course of employment with employer. That claimant's testimony established that the injury was the cause of temporary disability for the periods stipulated from November 9, 1987 through November 30, 1987 and again from December 17, 1987 through April 28, 1988. That Dr. Found assessed a 3 percent impairment; that Dr. Pontarelli determined a 5 percent impairment and that Dr. Schnell awarded a 10 percent impairment; all of these ratings to the body as a whole. That Dr. Pontarelli imposed restrictions of not lifting more than 40 to 45 pounds 20 times a day. That Dr. Found imposed restrictions of not lifting more than 20 pounds once per hour or 10 pounds more than six times per hour. That employer could find no employment for claimant within her medical restrictions. That claimant was foreclosed from performing her previous job as a janitor for employer. That based on Dr. Pontarelli's restrictions, claimant is foreclosed from performing heavy labor jobs. That based on Dr. Found's restrictions, claimant is foreclosed from performing both medium and heavy labor jobs. That claimant has demonstrated very poor-motivation to work based upon the short term of all of her other employments and her extremely poor behavior with co-employees and superiors with this employer. That claimant was 22 years old at the time of the injury and 24 years old at the time of the hearing. KEEVER V. MUSCATINE COMMUNITY SCHOOL DIST. Page 14 That claimant has a high school education; training in life, health and accident insurance; and is attending a one year course in computer training. That claimant is capable of obtaining average grades. That claimant has sustained a 15 percent industrial disability to the body as a whole. CONCLUSIONS OF LAW Wherefore, based on the evidence presented and the foregoing principles of law, the following conclusions of law are made: That claimant did sustain the burden of proof by a preponderance of the evidence that she sustained an injury on November 5, 1987, which arose out of and in the course of employment with employer. That the injury was the cause of temporary disability from November 9, 1987 through November 30, 1987 (a period of 3.143 weeks) and again from December 17, 1987 through April 28, 1988 (a period of 19.143 weeks). That claimant is entitled to 22.286 weeks of healing period benefits for these two periods of time. That claimant did sustain the burden of proof by a preponderance of the evidence that the injury was the cause of permanent disability. That claimant sustained a 15 percent industrial disability to the body as a whole. That claimant is entitled to 75 weeks of permanent partial disability benefits. ORDER THEREFORE, IT IS ORDERED: That defendants pay to claimant twenty two point two eight six (22.286) weeks of healing period benefits to claimant at the rate of one hundred ninety-nine and 39/100.dollars ($199.39) per week in the total amount of four thousand.four hundred forty-three and 61/100 dollars ($4,443.61) commencing on November 9, 1987 and interrupted by the period from December 1, 1987 to December 17, 1987. That defendants pay to claimant seventy-five (75) weeks of permanent partial disability benefits at the rate of one hundred KEEVER V. MUSCATINE COMMUNITY SCHOOL DIST. Page 15 ninety-nine and 39/100 dollars ($199.39) per week in the total amount of fourteen thousand nine hundred fifty-four and 25/100 dollars ($14,954.25) commencing on April 29, 1988 as stipulated by the parties. 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 are entitled to a credit for thirty-seven point four two nine (37.429) weeks of workers' compensation benefits paid to claimant prior to hearing at the rate of one hundred ninety-nine and 39/100 dollars ($199.39) per week in the total amount of seven thousand four hundred sixty-two and 97/100 dollars ($7,462.97). That the costs of this action, including the cost of the transcript, are charged to defendants pursuant to Division of Industrial Services Rule 343-4.33. That defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343- 3.1. Signed and filed this 21st day of May, 1990. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Michael W. Liebbe Attorney at Law 116 E. 6th St. PO Box 339 Davenport, Iowa 52805-0339 Mr. Thomas N. Kamp Attorney at Law ' 600 Davenport Bank Bldg Davenport, Iowa 52801 51106; 51108.50; 51401; 51402.20; 51402.30; 51402.40; 51802; 51804; 1807 Filed May 21, 1990 Walter R. McManus, Jr. BEFORE THE IOWA INDUSTRIAL COMMISSIONER MARY KEEVER, Claimant, VS. : File No. 870104 MUSCATINE COMM. SCHOOL DIST., Employer, : A R B I T R A T I O N and EMPLOYERS MUTUAL INS., : D E C I S I O N Insurance Carrier, Defendants. 51106; 51108.50; 51401; 51402.20; 51402.30; 51402.40 Claimant proved injury by her testimony and medical treatment. Claimant's case was not controverted. 51802 Claimant awarded healing period benefits for stipulated time off work. 51804 Claimant awarded 15 percent industrial disability for lower back injury while lifting 100 to 150 pounds of dissected dead cats. Impairment ratings were 3, 5 and 10 percent. Lifting restrictions ranged from 20 pounds and 40 to 45 pounds. Claimant's motivation to work was very poor. 1807 Employer refused to rehire employee allegedly because they had no employment within her restrictions, but at the same time, claimant had been a severe disciplinary Ptbblem and was just one incident away from being fired anyway. Page 1 before the iowa industrial commissioner ____________________________________________________________ _____ : SHARON L. BONJOUR, : : Claimant, : : vs. : : File No. 870174 ARMOUR FOOD CO., : : A P P E A L Employer, : : D E C I S I O N and : : HARTFORD INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ _____ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed November 16, 1990 is affirmed and is adopted as the final agency action in this case with the following additional analysis: Claimant has not suffered a loss of earnings, and in fact is now making more per hour than prior to the injury. The employer commendably rehired claimant in a position consistent with her work restrictions. It is speculative to look to the possibility that claimant's employer may close the plant because of the alleged uncertainties of the meat packing industry. The award of industrial disability is based on claimant's present circumstances and not events in the future that may or may not occur. Defendants shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of February, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Page 2 Copies To: Mr. Robert S. Kinsey III Attorney at Law P.O. Box 679 Mason City, Iowa 50401 Mr. Jeff M. Margolin Mr. Marvin E. Duckworth Attorneys at Law 2700 Grand Ave., Ste 111 Des Moines, Iowa 50312 9999 Filed February 28, 1992 Byron K. Orton DRR before the iowa industrial commissioner ____________________________________________________________ _____ : SHARON L. BONJOUR, : : Claimant, : : vs. : : File No. 870174 ARMOUR FOOD CO., : : A P P E A L Employer, : : D E C I S I O N and : : HARTFORD INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ _____ 9999 Summary affirmance of deputy's decision filed November 16, 1990, with short additional analysis. Page 1 before the iowa industrial commissioner ____________________________________________________________ : SHARON L. BONJOUR, : : Claimant, : : vs. : : File No. 870174 ARMOUR FOOD CO., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : HARTFORD INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in arbitration upon claimant's petition filed March 3, 1989. Claimant allegedly sustained a traumatic injury to her back on November 4, 1987, and now seeks benefits under the Iowa Workers' Compensation Act from her employer, Armour Food Company, and its insurance carrier, Hartford Insurance Company. Hearing on the arbitration petition was had in Mason City, Iowa, on January 16, 1990. The record consists of claimant's exhibits 1 through 22, 24 and 26, defendants' exhibits A through H, and the testimony of the following witnesses: claimant, Walter Bonjour, Diana Orluske and Carl Brant. issues Pursuant to the prehearing report, the parties have stipulated: that an employment relationship existed between claimant and employer at the time of the alleged injury; that if defendants are liable for temporary total or partial disability or healing period benefits, claimant's entitlement is from November 4, 1987 through May 28, 1988, for which she has been fully compensated; that if claimant has sustained a permanent disability, it is an industrial disability to the body as a whole; that the proper rate of weekly compensation is $238.00; that affirmative defenses are not applicable or waived; that all requested medical benefits under Iowa Code sections 85.27 and 85.39 have been or will be paid by defendants; that in addition to temporary disability, defendants voluntarily paid 50 weeks of Page 2 compensation at the stipulated rate prior to hearing. Issues presented for resolution include: whether claimant sustained an injury arising out of and in the course of her employment on November 4, 1987; whether the injury caused permanent or temporary disability; the extent of claimant's entitlement to compensation for permanent disability; taxation of costs. In addition, claimant's husband seeks reimbursement for wages he lost while driving her to an independent medical examination. findings of fact The undersigned deputy, having heard the testimony and considered all of the evidence, finds: Claimant was 46 years of age at the time of hearing and a high school graduate. From 1963 to 1971, she worked masking cars for an automobile paint and body shop. In 1971 and 1972, she installed cupboard doors in motor homes for a manufacturer. From 1973 to 1975, claimant worked in the hog kill for a predecessor of defendant known as the Decker Plant. In 1975 and 1976, claimant assembled radios for a manufacturer. From 1976 to 1979, claimant worked for a glass repair and installation business. From 1979 to 1983, claimant worked as an on-call casual worker for defendant while simultaneously working three hours a day serving meals to senior citizens. In 1983, the ownership of defendant Armour Food Company changed and claimant was laid off, whereupon she took work on the loading dock of a business known as Shopco where she remained until 1987. At that time, she was recalled to work by defendant and resumed employment on June 8 of that year. She worked for six weeks in the dry sausage department (heavy work), two months manufacturing hot dogs and thereafter took a position on the "Omaha" line. Her duties included emptying pans of meat scraps weighing up to or just over 50 pounds. Claimant states her work injury occurred while pulling such a pan. She described immediate lower back pain so intense as to drive her to her knees. The pan was later scaled and found to weigh 52 pounds. Claimant did not immediately have radicular pain to her legs and worked the rest of the day. She at first sought chiropractic treatment, but symptoms were not relieved. She was eventually referred to Kenneth B. Washburn, M.D., and put on restricted duty. About two weeks after this incident, claimant began developing radicular pain down the left leg through her buttock to the mid-calf area. Claimant had been seen in October 1979 by A. J. Wolbrink, M.D., relative a preemployment physical for defendant Armour Food Company. X-rays showed a fair amount of narrowing of the L5 disc space with perhaps some Page 3 sclerotic changes in the apophyseal joints and possibly minimal spurring at a couple of other levels. Dr. Wolbrink's impression was of mild degenerative disc disease, but he did not believe claimant to be of greater risk of having back problems than the average person, as she had x-ray changes but no clinical evidence of degenerative disc disease. Claimant credibly testified that prior to the work injury she had never missed work due to back problems and had no history of radicular pain. Conservative treatment proved unsuccessful and Dr. Washburn's associate, T. C. Mead, M.D., performed surgery on December 16, 1987 described as lumbar hemilaminectomy L4 and L5 with wide foraminotomy L4-5, L5-S1; excision of free fragment and L4-5 disc. Surgery was based on pre- and post-operative diagnoses of herniated L4-5 disc with free fragment and foramen lateral recess stenosis L4-5, L5-S1. On June 28, 1988, Dr. Mead imposed medical restrictions against lifting in excess of 20 pounds, more than occasional bending/stooping, climbing and driving, and requiring alternate sitting, standing and walking. On September 22, 1988, he assessed claimant as having sustained a 10 percent impairment to the body as a whole. On July 20, 1988, Dr. Washburn recommended restrictions essentially the same, but further limiting claimant against repetitive pushing with the hands. On August 19, 1988, he assessed claimant as having sustained a 10 percent impairment to the body as a whole. Dr. Wolbrink, who had seen claimant in 1979, did not examine her after the work injury, but nonetheless concluded from medical records that her surgical procedure was causally related to the subject work injury. Claimant was seen for evaluation by Peter D. Wirtz, M.D. Dr. Wirtz wrote on November 3, 1989 that based on a diagnosis of status post-operative lumbar disc removal with neurological residuals, there was no further treatment indicated, that claimant had reached her maximum medical benefit and that she had sustained a 10 percent impairment of the body as a whole (based on a 5 percent impairment from the surgery and a 5 percent impairment relating to neurological residuals). Dr. Wirtz recommended restrictions against excessive and repetitive stressful bending, twisting, lifting, pushing and pulling. He further specified that he did not find any non-work related conditions that relate to claimant's current condition. Claimant was also seen for evaluation by John R. Walker, M.D. On October 19, 1988, Dr. Walker noted that spinal views showed a marked narrowing and almost complete loss of the vertebral height of the L5 disc and that the L4 disc was collapsed between 50 and 60 percent, which he found to be the areas of extreme pain and discomfort upon palpation. He further opined that claimant had sustained an Page 4 impairment equivalent to 15 percent of the body as a whole (but anticipated future problems which would probably require further surgery). In a letter of September 7, 1989, Dr. Walker expressed the opinion that claimant's impairment was based on the subject work injury and resultant surgical treatment. When claimant returned to work on a full-time basis, she was given a job packing hams, then scaling on the bacon line, then on the redi-grill. This position includes putting paper into 15-pound boxes of meat, which she described as not heavy but repetitive. Claimant agreed this is the best full-time position she has yet held. Claimant currently complains of some aching pain in the left lower back and pain in the left leg which sometimes makes it difficult to work and causes her to limp. She is physically able to work some overtime hours, but cannot do all of the jobs with defendant she was able to perform prior to the work injury. She has had the opportunity to bid on other jobs, but has not done so due either to this injury, her lack of seniority or upper extremity problems which she describes as carpal tunnel syndrome. However, she agrees that she has not missed bidding on any "good" jobs due to her back restrictions. She has not had any subsequent back injuries. She complains of trouble sleeping, an inability to sit in the car for extended time, and described problems with vacuuming, bowling, dancing, yard work and in sexual function. Claimant has not considered seeking a desk job because of her inability to sit for extended time. She claims inability to do any other work if she were to lose her present job, but fortunately does like that job and stated that she would work 50 hours a week if the hours were available. Carl Brant, a supervisor for defendant, agreed that claimant is a good worker, is always ready to work overtime and stated that claimant's current job is in no jeopardy. However, he was unaware that claimant had medical restrictions and conceded that her current job does require a great deal of repetitive twisting and lifting. Walter Bonjour is claimant's husband and has been for some 17 years. He agreed that claimant came home complaining of a back injury on November 4, 1987 and corroborated claimant's testimony with respect to not having prior complaints or back injuries and developing leg pain a week or more after the injury. He further corroborated claimant's testimony as to the difficulties she now experiences with various aspects of day-to-day life, as did Diana Orluske. conclusions of law Claimant has the burden of proving by a preponderance Page 5 of the evidence that she received an injury on November 4, 1987 which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The supreme court of Iowa in Almquist v. Shenandoah Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) discussed the definition of personal injury in workers' compensation cases as follows: While a personal injury does not include an occupational disease under the Workmen's Compensation Act, yet an injury to the health may be a personal injury. [Citations omitted.] Likewise a personal injury includes a disease resulting from an injury....The result of changes in the human body incident to the general processes of nature do not amount to a personal injury. This must follow, even though such natural change may come about because the life has been devoted to labor and hard work. Such result of those natural changes does not constitute a personal injury even though the same brings about impairment of health or the total or partial incapacity of the functions of the human body. .... A personal injury, contemplated by the Workmen's Compensation Law, obviously means an injury to the body, the impairment of health, or a disease, not excluded by the act, which comes about, not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee. [Citations omitted.] The injury to the human body here contemplated must be something, whether an accident or not, that acts extraneously to the natural processes of nature, and thereby impairs the health, overcomes, Page 6 injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. The claimant has the burden of proving by a preponderance of the evidence that the injury of November 4, 1987 is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960), and cases cited. The parties dispute whether claimant sustained an injury arising out of and in the course of her employment. Claimant's credible testimony establishes that she suffered a lifting injury as she described on November 4, 1987. Even though she may have had some radiographic evidence of dormant back problems, she was essentially asymptomatic up until that point and has been symptomatic since. The evidence contains no indication that claimant injured herself in any manner other than as she described. Claimant was working at a regular assigned job duty where she was assigned to be at the time of this incident. She has met her burden of proof in establishing an injury arising out of and in the course of her employment. Drs. Wolbrink, Walker, and by implication, Wirtz, agree that the work injury has caused claimant's disability. No physician has expressed a contrary view. Given that claimant was asymptomatic before and developed severe and Page 7 disabling pain after the work injury confirmed both by CT scan and subsequent surgery, the evidence is overwhelming that a causal nexus exists between the work injury and both temporary and permanent disability. The parties have stipulated to the extent of claimant's temporary disability. Permanent disability remains at issue. Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, expe rience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disabil ity. This is so as impairment and disability are not syn onymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to Page 8 determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial dis ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985). The medical opinion is remarkably consistent in evaluating claimant's impairment and limitations. Dr. Mead, the treating surgeon, Dr. Washburn, another treating physician, and Dr. Wirtz all agree that claimant has a 10 percent impairment to the body as a whole. Dr. Walker believes her impairment is 15 percent. Her limitations are essentially against lifting in excess of 20 pounds, and against more than occasional bending, stooping, climbing, driving, and pushing. Dr. Wirtz also recommends against pulling and twisting. It is questionable whether claimant could continue in her previous work as a car masker, due to the twisting restriction suggested by Dr. Wirtz. It is not clear that she could perform her former work as a cupboard door installer or as a puller with hog kill. Probably she could assemble radios, depending on whether she would be able to alternate sitting and standing. Claimant is of an education and apparent intelligence suitable for retraining. Defendant Armour Food Company is to be commended for keeping claimant employed in a job essentially within her medical restrictions, which operates to reduce industrial disability. Nonetheless, claimant's age is such that she is in her prime earning years and she would surely be less attractive to potential employers due to her history of back surgery if she were to lose her current position (it is not unheard of for meat packing enterprises to close plants or to go out of business). Considering these factors in specific and the record in general, it is held that claimant has sustained a permanent partial disability equivalent to 25 percent of the body as a whole. Accordingly, she shall be awarded 125 weeks of benefits. Claimant's husband seeks to recover wages he lost while transporting her to a medical examination. He is not a party with standing to seek an award. Claimant is entitled to the reasonable cost of transportation, but there has been no showing that reasonable expenses were incurred or not paid. The parties did not present Iowa Code 85.39 as a disputed issue. order THEREFORE, IT IS ORDERED: Defendants shall pay unto claimant one hundred twenty-five (125) weeks of permanent partial disability benefits at the stipulated rate of two hundred thirty-eight Page 9 and 00/100 dollars ($238.00) per week commencing May 29, 1988 and totalling twenty-nine thousand seven hundred fifty and 00/100 dollars ($29,750.00). All accrued benefits shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. Defendants shall have credit for fifty (50) weeks of benefits paid at the stipulated rate prior to hearing (as it is assumed that precisely the correct amount of benefits has been paid for temporary total and temporary partial disability). The costs of this action shall be assessed to defendants pursuant to 343 IAC 4.33. Defendants shall file claim activity reports as requested by this agency pursuant to 343 IAC 3.1. Signed and filed this ______ day of ____________, 1990. ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert S. Kinsey III Attorney at Law 214 North Adams P.O. Box 679 Mason City, Iowa 50401 Mr. Jeff M. Margolin Mr. Marvin E. Duckworth Attorneys at Law Suite 111, Terrace Center 2700 Grand Avenue Des Moines, Iowa 50312 5-1402.30; 5-1803 Filed November 16, 1990 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : SHARON L. BONJOUR, : : Claimant, : : vs. : : File No. 870174 ARMOUR FOOD CO., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : HARTFORD INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 5-1402.30 Claimant developed symptoms resulting in disc excision following a lifting incident at work. Her injury was found to arise out of and in the course of employment. 5-1803 Forty-six-year-old claimant with high school education and work history in the meat packing industry and various manufacturing jobs underwent disc surgery and was variously given restrictions against lifting in excess of 20 pounds, excessive or repetitive bending, stooping, driving, pushing, pulling, and twisting and told to alternate sitting, standing and walking. She remains employed by defendant and has suffered no actual loss of earnings. Claimant was awarded 25 percent industrial disability.