Page 1 before the iowa industrial commissioner ____________________________________________________________ : WAYNE SHELTON, : : Claimant, : : vs. : File No. 871201 : METRO TRANSIT AUTHORITY, : A P P E A L : Employer, : D E C I S I O N : and : : HARTFORD INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case Defendants appeal from an arbitration decision filed January 26, 1990, awarding claimant healing period benefits, industrial disability benefits, and payment for certain medical care. The record on appeal consists of the transcript of the arbitration hearing and of joint exhibits 1 through 17. Both parties filed briefs on appeal. issues The issues on appeal are: 1. Whether claimant's alleged disability is causally connected to his November 12, 1987 injury; 2. The nature and extent of claimant's disability, if any; and, 3. Whether claimant is entitled to benefits under section 85.27. review of the evidence The arbitration decision filed January 26, 1990 adequately and accurately reflects the pertinent evidence and will not be reiterated herein. applicable law The citations of law in the arbitration decision are appropriate to the issues and evidence with the following additional citation: Expert testimony that condition could be causally related to claimant's employment together with non-expert Page 2 testimony tending to showing causation may be sufficient to sustain an award, but does not compel an award. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974). analysis The analysis of the evidence in conjunction with the law in the arbitration decision relative to the issues of claimant's entitlement to healing period benefits and relative to the issue of claimant's entitlement to payment of medical costs pursuant to section 85.27 are adopted. The analysis of evidence in conjunction with the law in the arbitration decision relative to the issue of causation between claimant's work injury and alleged permanent disability and relative to claimant's entitlement to industrial disability is modified in the following regards: Defendants argue that there is insufficient evidence of causal relationship between claimant's underlying disc disease and his activities as a bus driver to support the deputy's finding of a causal relationship between that activity and any permanent impairment to claimant. Defendants rightly state that Dr. Boulden assigned a five percent permanent partial impairment rating as relating to the underlying disc disease. Defendants overstate their case, however. As the deputy set forth in the Review of the Evidence, Dr. Boulden indicated that claimant's underlying disc disease "may or may not" be related to his activities of bouncing and riding in a bus for 15 years. The doctor indicated that further testing would be necessary for a definitive [medical] answer as to that causation. Sufficient lay evidence exists to establish the requisite causation, however, when that lay evidence is coupled with Dr. Boulden's statement of a possibility of causation. Claimant apparently had no symptoms leading to a finding of degenerative disc disease until he began experiencing back problems in late 1986 and sought chiropractic care for those. That driving a bus involves jarring and bouncing motions is not disputed. Those facts support the deputy's finding that the greater weight of evidence indicates claimant had a preexisting degenerative disease, which preexisting disease was materially worsened, aggravated and lighted up by claimant's years of bus driving. We next consider the question of the nature and extent of claimant's permanent disability, if any. The deputy found that claimant had a 15 percent industrial disability. That finding is not unreasonable given the overall circumstances presented. Claimant has a mild permanent partial impairment of his lower back. Claimant has restrictions relative to lifting over 35-40 pounds, and relative to bending, stooping, and sitting or standing for prolonged periods without breaks. Those restrictions preclude claimant from many heavy labor positions for which he would otherwise qualify. While claimant is a high school graduate and is bright enough to have developed some individual expertise as a computer Page 3 operator and programmer, his only formal training is a truck driving course. His experience has all been in the driving industry. Without appropriate work hardening, it is doubtful that claimant will be able to work in that industry without aggravating his condition. Indeed, claimant was working as a trucker at time of hearing and had worked as a short-haul trucker and as a limousine driver subsequent to his termination with this employer. Claimant testified and it is accepted that claimant experienced pain and difficulties in those positions when he was required to drive for more prolonged periods or when he was required to lift without appropriate assistance. It cannot be said that claimant is motivated, however. The record is replete with instances where claimant did not cooperate with his doctors nor with his employer relative to realistic attempts to improve claimant's physiological functioning and return him to the competitive labor market. Claimant had significant problems in his dealings with Drs. Boulden, Blessman, and Boarini. Claimant also had significant problems in his dealings with his vocational rehabilitation counselor, Ms. O'Brien. The record, taken as a whole, does not establish that any of these individuals dealt with claimant in any but the most professional manner and in any manner but a manner showing a sincere concern for claimant's well-being and a desire to assist claimant in realistically assessing his physical and economic condition and in taking responsibility for such condition. That claimant did not do so cannot be impugned to any of those individuals. [We note in passing that defendants did not refer to claimant to Mayo Clinic as Dr. Haag had suggested. That decision was reasonable under the circumstances. Claimant had at that time been examined by three experts: Dr. Boulden, an orthopaedic surgeon; Dr. Boarini, a neurological surgeon; and, Dr. Blessman, a pain specialist. All three have found that claimant's subjective complaints were significantly greater than the objective findings warranted. Nothing in the record suggests that any of the three were biased or operating out of personal prejudice toward claimant in making those findings. Nothing in the record overall suggests that further evaluation at Mayo was warranted or that claimant would have received a more non-biased result should claimant have undergone evaluation at Mayo Clinic. Likewise, the deputy found that defendants terminated claimant on account of his work injury and then refused to rehire claimant on account of his work injury. The record overall does not support that finding. Claimant's personnel file is replete with instances where claimant appeared to have placed his own immediate interests above the interests of his employer. While such instances may well not constitute misconduct that would disqualify the individual from receiving unemployment compensation, it was not unreasonable for this employer to interpret claimant's failure to more fully cooperate with the employer's attempts to return claimant to work and with the recommendations of the authorized physicians as part of a pattern of inappropriate conduct such that the employer chose to release claimant from employment, even should claimant Page 4 qualify for unemployment compensation benefits. It is noted that neither claimant nor his union further appealed his termination subsequent to the final employer determination from Mr. Spade. Such suggests a private determination that the employer had sufficient basis for termination. Likewise, claimant sought re-employment with the employer subsequent to his termination. The employer advised claimant that claimant should demonstrate his ability to work in the field by working in a light capacity for at least one year before the employer would comfortably consider re-employing claimant. Such was not an unreasonable decision on the employer's part, given claimant's past work record and claimant's desire at the time of his termination not to return to work with the employer on account of his back condition. Given the above, a McSpadden analysis which enhances claimant's industrial disability on account of employer termination or refusal of return to work subsequent to a work injury is not warranted. The employer's termination of claimant and its refusal to rehire had their basis in claimant's overall work history with the employer and not in the work injury and its sequelae per se. Similarly, claimant's industrial disability is not enhanced on account of claimant's motivation. Indeed, claimant's motivation is a factor that substantially reduces his industrial disability. Had claimant demonstrated substantial limitations on his ability to compete in the job market after participating fully in recommended work hardening and vocational and physical rehabilitation, claimant's loss of earnings might well be substantially greater than the 15 percent the deputy proposed. Claimant has not demonstrated such. On the other hand, given claimant's limited education, limited experience, mild physical impairment of the low back, and inability to engage in heavy labor on account of his restrictions, a finding of a loss of earning capacity of 15 percent is appropriate. Claimant is, therefore, found to have sustained a 15 percent permanent partial industrial disability on account of his injury of November 12, 1987. findings of fact WHEREFORE, it is found: Claimant incurred a work-related cumulative injury to his low back on November 12, 1987. Claimant's work-related low back injury is the result of his November 12, 1987 injury. Claimant has a five percent permanent impairment to his back as a result of his work-related cumulative injury on November 12, 1987. Claimant reached maximum healing on April 11, 1988. Claimant incurred a healing period beginning November 12, 1987 to and including April 11, 1988, which involved Page 5 21.714 weeks. The employer terminated claimant on May 18, 1988, after claimant brought in statements of Drs. Haag and Wignall that claimant should not return to work, which statements contradicted the statements of Drs. Boarini and Blessman that claimant could return to work. Defendants refused to rehire claimant in May 1989 even though defendants were advertising for bus drivers. Defendants' refusal to rehire claimant in May 1989 was not unreasonable nor directly related to claimant's work injury, given the overall pattern of claimant's relationship with the employer prior to his May 1988 termination and given claimant's non-return to work in May 1988 on account of claimant's back condition. Claimant was employed as an over-the-road trucker at time of hearing and was earning as much if not more money from that employment than he earned at time of his November 12, 1987 injury. Claimant has restrictions on sitting, standing, bending, stooping and lifting which restrictions preclude him from heavy labor such as he might have performed prior to November 12, 1987. Claimant's training and experience are in the driving industry. Claimant was not cooperative with efforts to physically and economically rehabilitate him. Claimant lacks motivation. Claimant's lack of motivation substantially reduces claimant's actual loss of earning capacity. conclusions of law THEREFORE, it is concluded: Claimant's cumulative low back injury on November 12, 1987 arose out of and in the course of claimant's employment. Claimant's low back injury and five percent permanent partial impairment to his back is causally connected to his cumulative work injury on November 12, 1987. Claimant reached maximum recovery on April 11, 1988. Claimant incurred a healing period beginning November 12, 1987 to and including April 11, 1988, which involved 21.714 weeks. Claimant has a 15 percent industrial disability. Defendants are responsible for claimant's medical bills in the amount of $521.19 with Hilltop Clinic (Dr. Haag), and Page 6 a Mercy Hospital bill in the amount of $145.00. Defendants are not responsible for claimant's chiropractor bill in the amount of $225.00 with Dr. Wignall. WHEREFORE, the decision of the deputy is affirmed. order THEREFORE, IT IS ORDERED: Defendants shall pay unto claimant healing period benefits beginning November 12, 1987 through April 11, 1988, encompassing twenty-one point seven one four (21.714) weeks at the rate of two hundred sixty-four and 29/100 dollars ($264.29) per week. Defendants shall pay unto claimant seventy-five (75) weeks of permanent partial disability benefits at the rate of two hundred sixty-four and 29/100 dollars ($264.29) per week commencing April 12, 1988. Defendants shall pay the accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. Defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. Defendants shall pay the medical bill of Hilltop Clinic (Dr. Haag) in the amount of five hundred twenty-one and 19/100 dollars ($521.19), and the Mercy Hospital bill in the amount of one hundred forty-five dollars ($145.00). Defendants are not responsible for Dr. Wignall's bill in the amount of two hundred twenty-five dollars ($225.00). Defendants pay the costs of the appeal, including the preparation of the hearing transcript pursuant to rule 343 IAC 4.33. Defendants file claim activity reports pursuant to rule 343 IAC 3.1(a). Signed and filed this ______ day of ____________, 1991. ______________________________ HELENJEAN WALLESER DEPUTY INDUSTRIAL COMMISSIONER Page 7 Copies To: Mr. Stephen W. Spencer Attorney at Law Suite 300, Fleming Building P.O. Box 9130 Des Moines, Iowa 50306-9130 Mr. E. J. Kelly Attorney at Law Suite 111, Terrace Center 2700 Grand Avenue Des Moines, Iowa 50312 1803; 2206 Filed October 31, 1991 HELENJEAN WALLESER BJO before the iowa industrial commissioner ____________________________________________________________ : WAYNE SHELTON, : : Claimant, : : vs. : File No. 871201 : METRO TRANSIT AUTHORITY, : A P P E A L : Employer, : D E C I S I O N : and : : HARTFORD INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 1803; 2206 Deputy affirmed. Claimant, with restrictions on prolonged sitting, standing, bending and stooping; on lifting over 35-45 pounds; and, with five percent permanent partial impairment of the body as a whole on account of functional low back pain related to work aggravation of degenerative disc disease, awarded 15 percent industrial disability, even though he was earning more at time of hearing than when injured. Restrictions precluded work in heavy labor jobs for which he was otherwise suited. Claimant lacked motivation and had not cooperated with physicians', vocational consultant's or employer's efforts to rehabilitate him and return him to work. The employer terminated claimant subsequent to the work injury when claimant sought other medical advice rather than return to work when released by two of three physicians. HELD: While claimant's actions did not meet the definition of "misconduct" under unemployment compensation law such as to disqualify him from receiving unemployment compensation benefits, conduct when viewed as part of a pattern of actions of claimant relative to his employer gave the employer sufficient reason to terminate claimant such that claimant's termination could not fairly be said to be on account of claimant's work injury under McSpadden. Likewise, the employer acted reasonably in not immediately rehiring claimant when he later reapplied for work, given claimant's earlier refusal to return to work. BEFORE THE IOWA INDUSTRIAL COMMISSIONER WAYNE SHELTON, Claimant, File No. 871201 vs. A R B I T R A T I O N METRO TRANSIT AUTHORITY, D E C I S I O N Employer, F I L E D and JAN 26 1990 HARTFORD INSURANCE COMPANY, IOWA INDUSTRIAL COMMISSIONER Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by the claimant, Wayne L. Shelton, against Metro Transit Authority, employer, and Hartford Insurance Company, insurance carrier, to recover benefits as a result of an alleged injury sustained on November 12, 1987. This matter came on for hearing before the deputy industrial commissioner in Des Moines, Iowa, on November 14, 1989. The record consists of the testimony of the claimant, claimant's wife, Julie Shelton, Dennis W. Peterson, and Cecilia L. O'Brien; and joint exhibits 1 through 17. ISSUES The issues for resolution are: 1. Whether claimant's alleged disability is causally connected to his November 12, 1987 injury; 2. The nature and extent of claimant's disability; and 3. Whether claimant is entitled to benefits under Iowa Code section 85.27. REVIEW OF THE EVIDENCE Claimant testified personally and through his depositions taken on January 27, 1989 and October 28, 1989. Claimant said he is a high school graduate. Claimant stated he went to Ryder Truck Driving School in 1972 and within the last year took a couple of computer courses. Claimant testified he began working for defendant employer in November 1973 and last worked for them on November 11, 1987. He stated he was eleventh in seniority with defendant employer. Prior to November 1973, claimant said he worked full-time and part-time for an amusement park. He explained that full-time involved every day for six months of the year. Claimant also drove a truck for a sanitary company and was a messenger for Bankers Trust during part of that former period. Claimant acknowledged that David J. Boarini, M.D., released him to go back to work in May of 1988. He explained that since Dr. Boarini looked at him about three minutes and did very little, he wanted to talk to Stanley W. Haag, M.D., his original doctor again before he made a decision. Claimant acknowledged that defendant employer offered to rehire him after Dr. Boarini and James Blessman, M.D., released him to return to work. Claimant said that since all the doctors he had seen had not released him to return to work, he did not go back. Claimant explained a grievance he filed when defendant employer terminated him for not returning to work. Claimant acknowledged the dismissal was upheld on appeal. Claimant said he had union representation at that time. The claimant said he has not hurt his back since his November 1987 injury, but he did have some low back problems during the year before. Claimant testified as to various jobs he has had since his November 1987 injury. Claimant stated his first job since that time was as a limousine driver beginning in December 1988 and lasting two and one-half months. Claimant said he then worked as a truck driver for Hawkeye Classic Tours approximately a month and a half. He indicated he had to take a DOT physical for that job and passed it. Claimant left that job for another truck driving job with better pay with Ingle Trucking. Claimant testified that this job required loading and unloading and hauling newspapers to certain destinations, usually outside Des Moines. He said the job required lifting approximately 100 bundles of newspapers weighing 30 to 50 pounds six nights a week. Claimant said he had help at times to load and unload but that this job aggravated his back condition. He emphasized it did not make his condition worse. This job ended in August 1989. Claimant testified he then worked for a short time as a delivery truck driver for Hiland Potato Chips but because of the long hours and low pay, he quit. Claimant testified he then began his current job with Hyway Carriers as a driver on September 14, 1989 and currently holds this same job. Claimant indicated he has his own company truck to drive. Claimant revealed that he passed the DOT physical for this job. He described the job as involving long and short driving hauls using an 18-wheel semi truck. Claimant described himself as a long distance over-the-road truck driver. Claimant stated he has had only one load that he has had to unload with help. He emphasized all the rest of his loads have been loaded and unloaded for him. Claimant acknowledged that he is able to work as a truck driver and do everything else that would be required of him. Claimant estimated his yearly income to be $25,000 from this recently acquired trucking job. Claimant related no present medical restrictions other than eye glasses. Although claimant indicated he has had pain ever since his November 1987 injury, he stated the long haul driving does not aggravate his back. He emphasized his back does not get better or worse. Claimant emphasized he is getting used to the pain. There was considerable testimony as to claimant's likes or dislikes with certain doctors. There is testimony as to claimant not getting along at the pain center and with Dr. Blessman. Claimant contends that the involvement of Cecilia O'Brien, a vocational rehabilitation expert hired by defendants, affected his treatment with and the attitude of William R. Boulden, M.D., concerning claimant's care, and also effected claimant's dismissal from the pain clinic. Claimant disagreed with defendant employer's insubordination contention resulting in claimant's firing in May 1988. Claimant indicated that some doctors did not release him for work and other doctors hired by defendant employer released him to work. He described what he thought was a very short, limited exam by Dr. Boarini. Claimant testified he is presently off work due to a thumb injury which has nothing to do with this present case. Judy Shelton, claimant's wife, testified that claimant did not have back pain prior to the development of his November 12, 1987 injury. She described claimant's pain as being so severe that it took claimant's breath away. She said claimant has changed his activities and no longer mows the lawn, plays catch or rides his motorcycle. Mrs. Shelton testified she remembers her husband's visit with Dr. Boarini. She revealed her suspicions when Cecilia O'Brien, the vocational rehabilitation expert, proceeded to talk privately with Dr. Boarini prior to claimant's medical exam. Mrs. Shelton indicated Cecilia O'Brien was not present during the exam itself. Mrs. Shelton emphasized she specifically timed the visit with Dr. Boarini because of her suspicions. She revealed claimant's exam lasted five minutes. She said they waited ten minutes to see the doctor. Mrs. Shelton recalled the day claimant was requested to return to work; namely, on or around May 20, 1988. She said she was driving claimant around due to the medicine he was taking. She emphasized this medicine resulted in limited memory, forgetfulness, sleepiness, and slower reaction. She said claimant was terminated on May 20, 1988. Mrs. Shelton recalled a particular day at the pain clinic when her husband had a 2:00 p.m. appointment with Dr. Blessman between classes. She said that claimant and she were still sitting for the appointment at 5:30 p.m. and then through the supper hour. She said claimant then interrupted Dr. Blessman to remind him. She said Dr. Blessman stated he was busy. Mrs. Shelton revealed that shortly thereafter claimant was kicked out of the program. Dennis W. Peterson, personnel manager of defendant employer, testified at the hearing and also through a deposition taken October 24, 1989. He indicated he knows claimant and was familiar with claimant's driving with defendant employer. He emphasized his intentions were to always put claimant with any restrictions back to work at the same job. He stated Cecilia O'Brien, the vocational rehabilitation specialist, was interested in the same goal. He indicated Ms. O'Brien would accompany claimant to his doctor appointments and make defendant employer aware of claimant's progress and make sure the appropriate steps were being taken to facilitate his return to work. Mr. Peterson admitted that he understood Dr. Boulden wrote on April 11, 1988 that "If Mr. Shelton was having the symptoms he was having that he should not return to bus driving at that time." He then acknowledged that defendant insurance carrier, through Cecilia O'Brien, decided to send claimant to Dr. Boarini. He also revealed that Dr. Boarini then gave claimant a full release with no restrictions. Peterson said he understood Ms. O'Brien accompanied claimant to the doctor's office. He said claimant immediately thereafter told him that the examination by Dr. Boarini was short in duration. Peterson indicated claimant had a release to return to work at this time from Dr. Blessman and Dr. Boarini, but had an April 11, 1988 note from Dr. Boulden indicating the opposite. Peterson said he was ready to call claimant on May 18, 1988 to set up a return to work and a bus schedule that afternoon when, in fact, claimant called him first. Peterson acknowledged claimant told him he was unable to return to work and also had Dr. Boulden's letter, but felt Dr. Boarini was now the treating doctor. Peterson said he understood that claimant heard from another source that claimant was scheduled to drive the afternoon of May 18, 1988. Peterson admitted claimant, a fourteen year veteran driver, would be familiar with the duties, rights and requirements of returning to work. Peterson acknowledged claimant had attempted to return to light duty work in February 1988 and was able to last only one week due to his pain. Peterson said claimant did come to defendant employer's office on May 18, 1988 with a note from Craig A. Wignall, D.C., stating he would not be able to return to work at that time. Peterson said they then scheduled a disciplinary hearing for May 20, 1988. Peterson did not recall having Dr. Haag's medical report regarding the medication claimant was taking and the fact it affects a person's ability to safely drive. Peterson acknowledged that he made the decision to terminate claimant after the May 20, 1988 hearing. Peterson testified defendant employer has hired ten to twenty new drivers since May 20, 1988. Peterson acknowledged that defendant employer has advertised for drivers and claimant had, in fact, applied in May 1989 for a position. Peterson indicated he discussed with claimant that claimant would have to establish some sort of work record since leaving MTA prior to claimant really being a strong candidate for re-employment. Peterson seemed to indicate this would help determine claimant's ability to perform the job. Peterson explained the reason claimant was not hired was because defendant employer was looking for a more qualified candidate, in other words, those with experience, previous work record and references. Ms. O'Brien testified that she is a rehabilitation consultant and registered nurse, and was hired by defendant. She described the information she obtained and her assessing claimant's needs. She revealed her understanding of claimant's dismissal from the pain center. She acknowledged she talked to Dr. Blessman and a staff member before Dr. Blessman finally saw claimant, which visit resulted in claimant's termination from further treatment. O'Brien contends that she understood claimant was disruptive and did not follow the program at the pain center. O'Brien believed claimant did not want to work. O'Brien admitted she set up the appointment with Dr. Boarini even though Dr. Boulden was the defendants' treating doctor before that date. She indicated Dr. Boarini then issued the claimant a return-to-work release. O'Brien discussed claimant's desire to look into computer programming employment. O'Brien felt claimant's transferable skills were in the truck driving business and not the computer field. David J. Boarini, M.D., a neurosurgeon, testified through his deposition on November 9, 1989 that he first saw claimant on May 12, 1978  at the request of Cecilia O'Brien. He said claimant was using a TENS unit at that time. Dr. Boarini said he was not able to give the amount of time he spent with claimant, but only related that it was a normal amount of time. Later, on cross-examination, Dr. Boarini estimated approximately 15 to 20 minutes as the time he spent with claimant. Dr. Boarini at that time reached a diagnosis as follows: "I felt that he had myofascial low back pain that was mechanical due to his overweight, perhaps some early degenerative changes in his back and mechanical in nature." (Joint Exhibit 5, page 8) Dr. Boarini opined that claimant had no permanent impairment or physical restrictions of any kind. He thought because of claimant's poor physical condition claimant should avoid heavy lifting until he participated in some sort of a work hardening program, but other than that no restrictions. The doctor opined that any complaint was a result of a natural aging, being in poor condition, and being obese. Dr. Boarini said that claimant's over-the-road truck driving would not cause his current complaints, but it would bring out the pain in a person who is out of shape, overweight and has a back problem. He said truck driving would be an aggravating problem. The doctor admitted he was not putting claimant back to bus driving if claimant was taking Valium or a muscle relaxer. He indicated a daily bus driving schedule might bring about pain or symptoms in claimant's low back. Although he would not say claimant did feel pain, he concluded there was considerable signs that claimant was exaggerating his symptoms. William R. Boulden, M.D., an orthopedic surgeon, testified through his deposition on November 15, 1988, that he first saw claimant on November 24, 1987 upon a referral from Dr. Haag. Dr. Boulden described the various tests he performed during claimant's examination. He formulated an opinion at that time that claimant's pain was coming from marked tightness in his back with underlying degenerative changes. He said claimant returned on December 3, 1987 after physical therapy treatment and had the same complaint. He indicated numbing medicine did not relieve claimant's pain and the doctor indicated that he did not think all of claimant's symptoms were related to the degenerative changes to his back at that point. Dr. Boulden testified he recommended a work hardening program for claimant in January 1988. He acknowledged that he and the rehabilitation specialist were trying to have claimant return to light duty work on February 15, 1988. He said claimant indicated to him he did not go back to the work hardening because the pain got worse. Dr. Boulden said he then recommended claimant be evaluated at a pain clinic by Dr. Blessman. Dr. Boulden said that on April 11 1988, when he saw claimant after claimant had gone to the pain clinic, claimant indicated he felt worse than before he went to the clinic. Dr. Boulden indicated at this point he felt he could no longer help claimant get better from an orthopedic standpoint. The doctor emphasized he still felt claimant should try to go back to work rather than sitting at home doing nothing. Dr. Boulden testified that claimant could not have gone back to work on April 11, 1988 to his regular full-duty status of bus driving at that point in time because obviously he had been off work for a significant period of time. Dr. Boulden did feel there could be some ways and means to modify things so claimant could get back to work. On April 22, 1988, Dr. Boulden opined a 5 percent impairment to claimant's back because of claimant's degenerative disc in his back. Dr. Boulden was asked and answered as follows: Q. Doctor, based on the history given by Mr. Shelton and other information available to you in your records, your experience and background and education as an orthopedic surgeon, do you have an opinion within a reasonable degree of medical certainty as to whether or not the problem that you diagnosed Mr. Shelton as suffering from is in any way related to his employment as a bus driver for fifteen years with the MTA? .... A. That opinion is that, first of all, we have to make sure what diagnosis we're talking about here. One, the patient has a soft tissue problem which I called the myofascial problem or the muscle tightness mobility, decreased mobility problem. Yes, I think that can be attributed to the fact that he doesn't do much other than sits in a bus and probably does not get a lot of physical activities other than that. Number two, we do not find that the underlying degenerative disc disease was that symptomatic in the patient. As I said earlier, the facet block did not seem to alleviate any of his symptoms; and it should have if the symptoms were coming from the facets. That's the only thing we found to be abnormal from an objective standpoint on our workup. So I can say that the stiffness and the tightness and the soreness he's having may have been attributed to the chronic sitting he does with driving a bus.... Q. Could the underlying disc disease also be related to his activities of bouncing and riding in a bus for fifteen years? A. It may,or may not. I mean, we see that in people without riding in a bus. I mean, degenerative disc disease is a diagnosis made by X rays. Whether that's symptomatic or not, you would then have to do further testing. So it may or may not have been caused by his bus driving. (Boulden Deposition, Joint Exhibit 2, pages 20-22) Dr. Boulden refused to opine whether claimant could return to full-time bus driving. He emphasized claimant has not really shown the effort to try it. He indicated he could not determine whether claimant could do that work again without trying it. Dr. Boulden testified that claimant reached maximum healing on April 11, 1988. Dr. Boulden was asked about his mentioning of claimant's involvement with symptom magnification and the basis for his opinion. He answered: That opinion was based on: one, the physical therapist's input. Number two, the Doctor Blessman at the Pain Center. Number three, the work hardening program that he attended. When I say symptoms out of proportion, I'm saying the pain, subjective pain, that he was complaining of seemed to be out of the norms that you would expect for the underlying pathology that has been found in the patient. So this is just not my input. This is a multitude of different observers giving the same opinion. (Jt. Ex. 2, pp. 27-28) Dr. Boulden said he last saw claimant on September 13, 1988. He said the restrictions he would recommend for claimant are: 1) do not do things that entail bending and twisting with his back; 2) do not do prolonged sitting of 30 to 45 minutes at a time without being able to get up and move about; 3) the same as to standing in one spot with the same amount of time limitation; and 4) maintain a good functional exercise program for both mobility and conditioning besides the weight reduction and a definite change in body tone. Dr. Boulden could not find a correlation between claimant's restrictions and claimant's degenerative disc disease and arthritis in his back. Dr. Boulden also emphasized that when he used the term "symptom magnification," he is not saying claimant is intentionally voicing complaints that may or may not be real to him. He indicated such a person's pain is out of proportion to what pain they are having. He isn't denying that claimant has pain. Dr. Boulden opined that he believes claimant lacks motivation. Stanley W. Haag, M.D., a family practitioner, testified through his deposition on July 27, 1989 that the first time he treated claimant for low back complaint was on December 26, 1986. Dr. Haag testified that his records on claimant on April 4, 1988 show he had received conflicting recommendations from Dr. Boulden and Dr. Blessman. He testified he suggested a third opinion by sending claimant to the Mayo Clinic. He understood the insurance company would not pay for the Mayo Clinic visit. Dr. Haag said he wrote at this time that "patient was not able to drive a bus at this time. He was dizzy. His ears were ringing and he was having trouble with sleepiness. He could not pass the DOT physical." (Haag Dep., Jt. Ex. 3, p. 7) Dr. Haag testified that on April 18, 1988, he determined claimant's dizziness was the result of antidepressant medicine prescribed at the pain clinic. On April 28, 1988, Dr. Haag concludes that he could not do anything more for claimant and suggested claimant see his partner, Dr. Miller, for osteopathic manipulations. Dr. Haag said this did not solve claimant's problems. Dr. Haag opined that claimant's bus driving aggravated his back. He indicated Dr. Boulden was of the opinion that claimant's work had contributed to claimant's back discomfort and wrote him a note to that effect. Dr. Haag opined a permanent impairment but said he was not qualified to give a rating. Dr. Haag emphasized that in April or May 1988, claimant was not able and should not have been driving a bus at that time, but mostly because of the medication and pain discomfort. Dr. Haag said claimant was taking Flexoral, a muscle relaxant, which slows your reflex time and Amitriptyltine, an antidepressant, from which claimant was having side effects of dizziness, sleepiness and ringing in the ears. Craig A. Wignall, D.C., testified through a deposition on October 26, 1989, that he first treated claimant on July 23, 1987 for painful low back that was hurting up to claimant's neck. Dr. Wignall said claimant's muscles, even in a relaxed state, were very tight and rigid throughout his whole back. He said the last time he saw claimant was in March 1989 at which time claimant basically had the same complaints. Dr. Wignall opined that claimant's occupation would certainly be a contributing factor, not necessarily a causative factor, to claimant's condition. The doctor could not say whether claimant's condition was permanent unless he attempted to work on claimant almost every day and see any response. Dr. Wignall said he wrote the April 1988 note keeping claimant off work to prevent any further irritation. He acknowledged that claimant had gone to a neurosurgeon who released claimant to return to work. Dr. Wignall emphasized that he did not feel claimant had any business going back to work in his condition. Dr. Wignall agreed that sitting in a city bus driving full-time, eight hours a day, five days a week for fifteen years, and bouncing along in a city bus would be the kind of microtraumas which could contribute to claimant's condition. On November 24, 1987, Dr. Boulden wrote Dr. Haag and stated: "It is my opinion that the type of work he does has probably caused this." (Jt. Ex. 1, p. 18) On January 25, 1988, Dr. Boulden wrote a letter to Dr. Haag: ...and we feel he will probably need a TENS unit on a permanent basis." (Jt. Ex. 14) On July 15, 1988, Dr. Boulden wrote: "It is my feeling that as of 4-11-88 he reached his maximum healing period. It would also be my recommendation that his permanency be 5% of the back based on aggravation of the underlying degenerative disc disease." (Jt. Ex. 1, p. 9) On December 28, 1987, Dr. Haag wrote: "I too, am inclined to agree with Dr. Boulden that Mr. Shelton's back pain has been caused by his employment as an MTA Bus Driver. At the least, this occupation has aggravaited [sic] his condition. (Jt. Ex. 1, p. 59) On April 4, 1988, Dr. Haag's notes at Mercy Medical Clinic reflect the following, in part: Has been in pain center for 2 weeks - pain got worse. Dr. at pain center said he could go back to work. Med from pain center makes him sleepy, dizzy. Ear ring for 2 weeks. Conflict in recommendations from Dr. Boulden & Dr. Blessman. Pt unimproved [illegible] pain center. No [illegible]. Recommend consultant another facility. Mayo Clinic. This pt is not able to drive a bus at this time. Pt is dizzy, ear ringing & sleepy. No way to drive a bus. (Jt. Ex. 1, p. 6) On May 19, 1988, Dr. Haag wrote: The above patient has been under my care for chronic back problems. It is my understanding that his Company's Doctor has released him to work without restriction. I would have no objection to this patient attempting to return to his employment, except that I do have concerns regarding the patient's ability to drive a City bus while taking the following prescribed medications. Parafon Forte 1 QID Diazepam 5 mmg. 1 1/2 or 1 TID In my opinion, he should not be driving a bus while taking the above prescribed medications. (Jt. Ex. 1, p. 57) The Mercy Medical Clinic notes show in particular, but not limited thereto, various medicines that were prescribed for claimant between the period of April 18, 1988 through June 27, 1988. On May 27, 1988, Dr. Boarini wrote: I think this patient has some myofascial low-back pain which is mechanical in nature and due largely to his obesity and poor physical conditioning. I don't see any evidence of a significant injury. I find no basis for giving him an impairment rating and would put him on no work restrictions. I do think that a weight loss program and a work hardening physical therapy program would be greatly to his benefit. I think he can return to work at any time. I expect him to have no permanent restrictions but would avoid any repetitive or heavy lifting until he completes a work hardening program. (Jt. Ex. 1, pp. 101-102) On May 12, 1988, Dr. Boarini gave claimant a slip to return to work on May 16, 1988. On March 31, 1988, Robert W. Jones, B.S., a vocational evaluator at the Mercy Hospital Medical Pain Center, concluded in a report: In conclusion, it is this evaluator's impression Wayne currently does not have any intention of returning to any kind of competitive employment in the near future, or ever if he can avoid doing so. The only recommendation is to have the patient evaluated for a permanent partial impairment rating and to settle his Work Comp case. (Jt. Ex. 1, p. 108) James Blessman, M.D., indicated in a report on April 7, 1988, that he believed claimant has "symptom magnification and secondary gained behavior." (Jt. Ex. 1, p. 120) Exhibit 16 reflects the job service decision which allowed claimant unemployment benefits. The administrative law judge in that matter noted the confusing or conflicting medical information on the claimant regarding whether he could return to work. APPLICABLE LAW AND ANALYSIS The claimant has the burden of proving by a preponderance of the evidence that the injury of November 12, 1987 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). When an aggravation occurs in the performance of an employer's work and a causal connection is established, claimant may recover to the extent of the impairment. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 (1960). The Iowa Supreme Court cites, apparently with approval, the C.J.S. statement that the aggravation should be material if it is to be compensable. Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's Compensation sec. 555(17)a. Our supreme court has stated many times that a claimant may recover for a work connected aggravation of a preexisting condition. Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). See also Auxier v. Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299; Ziegler, 252 Iowa 613, 106 N.W.2d 591. 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, 252 Iowa 613, 620, 106 N.W.2d 591, and cases cited. 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, 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, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257. For example, a defendant employer's refusal to give any sort of work to a claimant after he suffers his affliction may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). Iowa Code section 85.34(i) provides that if an employee has suffered a personal injury causing permanent partial disability, the employer shall pay compensation for a healing period from the day of the injury until (1) the employee returns to work; or (2) it is medically indicated that significant improvement from the injury is not anticipated; or (3) until the employee is medically capable of returning to substantially similar employment. It is not necessary that claimant prove his disability results from a sudden unexpected traumatic event. It is sufficient to show that a disability developed gradually or progressively from work activity over a period of time. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). The McKeever court also held that the date of injury in a gradual injury case is the time when pain prevents the employee from continuing to work. In McKeever the injury date coincides with the time claimant was finally compelled to give up his job. This date was then utilized in determining rate and the timeliness of the claimant's claim under Iowa Code section 85.26 and notice under Iowa Code section 85.23. Apportionment of disability between a preexisting condition and an injury is proper only when there was some ascertainable disability which existed independently before the injury occurred. Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984) The burden of showing that disability is attributable to a preexisting condition is, of course, placed upon the defendant. If evidence to establish a proper apportionment is absent, the defendant is responsible for the entire disability that exists. Varied Enterprises, Inc., 353 N.W. 2d 407; Becker v. D & E Distributing Co., 247 N.W.2d 727, 731 (Iowa 1976); 2A Larson, Workmen's Compensation Law, 59.22; 22 Am.Jur.2d 122; 2 Damages & Tort Actions 15.34[l](a). Claimant is a 41-year-old high school graduate. He has basically been a truck or bus driver during his entire adult life. He drove a bus for defendant employer beginning November 1973 until November 11, 1987, when he last worked for defendant employer. Claimant alleged he was injured on November 12, 1987 as the result of a cumulative injury to his low back. Claimant drove a city bus for defendant employer for approximately fourteen years before he was injured. Sitting in one position for a considerable length of time hour after hour, day after day riding and driving a bus or truck can and often does result in the driver incurring back problems. Usually, the problems develop cumulatively over a period of time and not through one trauma or incident. Claimant appears to have a degenerative disc disease. The greater weight of evidence shows the degenerative disc disease itself is not caused by an injury. Dr. Boulden, an orthopedic surgeon, could not find that an underlying degenerative disc disease was that symptomatic in a patient. It appears the stiffness, tightness and soreness claimant was having is attributed to the chronic sitting claimant does while driving a bus. There is conflicting or confusing medical testimony. The undersigned accepts as more accurate Dr. Boulden's and Dr. Haag's opinion that claimant's back pain has been caused by claimant's employment with defendant employer. Although there is a close question whether claimant's years of driving a bus caused the underlying disc disease, the undersigned finds a greater weight of the evidence indicates claimant had a preexisting degenerative disc disease. The undersigned finds that this preexisting disease was materially worsened, aggravated and lighted up by claimant's fourteen years of bus driving. Dr. Boulden opined a 5 percent permanent impairment to claimant's back based on the fact of the underlying degenerative disc disease. Dr. Haag was claimant's regular medical doctor to whom claimant originally had gone. At the time, it is obvious claimant was not thinking a work injury but was going to a doctor for his complaint. Dr. Haag referred claimant to Dr. Boulden who then became an employer-accepted doctor and was considered claimant's treating physician. Claimant contends he was getting no better as a result of considerable medical services provided him. Dr. Haag referred claimant to Dr. Boulden because he could not find adequate relief for claimant. Dr. Boulden gave up trying to solve claimant's problems. Dr. Blessman, at a pain clinic, terminated claimant from the program earlier than what was originally anticipated. Dr. Haag, seeing a possible medical impasse, suggested claimant go to Mayo Clinic. This appeared to be a very logical suggestion and would result in a more unbiased medical conclusion. The defendants had hired a Ms. O'Brien as a vocational rehabilitation consultant. It appears her appearance in the sequence of events was not a plus. Her style and approach seemed to alienate claimant. Claimant's attitude is not free from fault either. Although it is permissible, the actions of Ms. O'Brien preceding claimant's medical visits and the visits themselves, particularly Drs. Blessman, Boarini and Boulden, may have biased or tainted medical judgments, attitudes and services being rendered to claimant. Claimant contends that the involvement of Ms. O'Brien affected his medical treatment and the doctors' attitudes. The undersigned agrees at least in part with claimant's contention. Dr. Haag testified his records on April 4, 1988 show conflicting recommendations from Dr. Boulden and Dr. Blessman, two company-authorized doctors. Why didn't Ms. O'Brien, on behalf of the insurance company, accept Dr. Haag's suggestion for a third opinion by his recommendation of Mayo Clinic? It is obvious to the undersigned why the insurance carrier indicated they would not pay for claimant's visit to Mayo Clinic. Mayo Clinic is too unbiased. Ms. O'Brien picked Dr. Boarini for claimant. She was searching for someone in her experience that was most likely to provide her and her client with a work release for this claimant. She indicated Boulden then was no longer the employer-authorized treating physician. Claimant and his wife described the nature of Dr. Boarini's examination of claimant on May 12, 1988. The undersigned believes claimant's wife as she described how she became suspicious of the circumstances surrounding the appointment, exam, and Ms. O'Brien's preexamination consultation with the doctor. Mrs. Shelton timed the visit as being approximately five minutes. Dr. Boarini issued a work release with no restrictions after the visit providing for claimant's return to work on May 16, 1988. Ms. O'Brien conveyed this message to defendant employer shortly thereafter. Claimant was scheduled for a bus driver route to begin May 18, 1988. Claimant heard of this through a driver friend and called defendant employer, who confirmed this. Defendants and Ms. O'Brien completely disregarded the other doctors who had not issued a work release. Claimant, also being surprised by the doctors' actions and the conflicting medical advice, went to his former doctor who indicated claimant should not be released and that he should not be driving a bus. On May 19, 1988, Dr. Haag warned defendants that claimant should not be driving as he was on prescribed medication that would affect claimant's ability to drive. (Jt. Ex. 1, p. 57). It would appear the public's safety as well as claimant's could be at stake. Defendant employer set up an immediate hearing that took place on May 20 which resulted in claimant's termination for insubordination. Defendant takes pride in this proceeding by emphasizing claimant had union representation and that it was upheld by the company on its appeal to a higher company official. It is obvious by the facts presented and the decision rendered that defendant employer's mind was made up and the employer was only going through the necessary motions. Dennis Peterson admitted that he understood Dr. Boulden did not release claimant. Mr. Peterson's credibility, if not already destroyed, was completely destroyed by his comment that he could not accept claimant as a strong candidate when claimant reapplied for a job in May 1989, because he was looking for a more qualified candidate; in other words, one who has experience, previous work record and references. Peterson emphasized claimant would have to establish some sort of work record since leaving MTA prior to really being a strong candidate for re-employment. Claimant was a fourteen year veteran with MTA before receiving a work-related injury in November 1987. Peterson, as personnel manager for defendant employer, admitted he was familiar with claimant. Joint exhibit 16 helps reflect on what a nonbiased administrative law judge thought of defendants' conduct. That judge had before him the medical information defendants had from their own authorized doctors and others. Claimant was allowed unemployment benefits. The law judge referred to the conflicting medical reports. If Ms. O'Brien was as aggressive in trying to convince defendant employer to rehire claimant as she was in her other activities involving the claimant, the undersigned believes defendant employer should have rehired claimant in 1989, especially in light of the McSpadden case. It appears Ms. O'Brien was more interested in getting claimant off workers' compensation than getting claimant back to work he could perform. The undersigned paid close attention to the demeanor of the witnesses as they testified and as others were testifying. Particular notations were made throughout the hearing. The undersigned finds Cecilia O'Brien and Dennis Peterson not to be credible witnesses. The undersigned finds that claimant incurred a work-related cumulative low back injury on November 12, 1987. It is further found that claimant had a preexisting degenerative disc condition which was materially aggravated, worsened and lighted up by his November 12, 1987 cumulative injury. Claimant has a 5 percent permanent impairment to his back which was caused by his November 12, 1987 injury. Claimant contends his healing period began November 12, 1987 through June 17, 1988, inclusive. Defendants contend that claimant's healing period, if any, begins November 12, 1987 to and including April 11, 1988. Dr. Boulden wrote on April 11, 1988 that claimant reached maximum recovery on April 11, 1988 (Jt. Ex. 1, p. 9) The undersigned finds that claimant's healing period began November 12, 1987 through April 11, 1988, which involves 21.714 weeks. There have been references in claimant's medical records or in medical testimony that he is a symptoms magnifier. Dr. Boulden said he is not accusing claimant of intentional conduct. He said one's perception of pain is out of proportion to what pain they are having. He did not deny claimant was having pain. Claimant is not completely without fault in the problems he has with the doctors even though there is reason for claimant to have become disenchanted. The undersigned believes claimant's wife is credible. It is unexplainable why claimant was left sitting for several hours to see Dr. Blessman for a previously set 2:00 p.m. appointment. I have already touched on some of these areas previously. Claimant has been a truck or bus driver most of his adult life. Defendants contend claimant lacks motivation. Some doctors also refer to this. The record does show that claimant was choosey and did not earnestly seek every job possibility. He knew his capability. It is reasonable to try to find a job that may be of long duration rather than jumping to and from many low paying jobs while searching for a job that is suitable. Claimant appears to have found a job in his field. His current job appears to be more demanding and harder; in other words, long distance over-the-road, 18-wheel semi truck driver versus a City of Des Moines bus driver. Claimant is making as much if not more than he was making at the time of his injury. Given the nature of the job, it is reasonable to believe that the truck driving job would pay more. claimant is presently able to perform his duties. He said he has gotten used to enduring the pain. Defendants contend claimant has reinjured or aggravated his back condition on these subsequent jobs, including his present job. Claimant has an impairment, so it is to be expected that claimant will suffer pain and feel his permanent impairment in his current job or any job he may have in the future. That is the problem with having incurred a permanent impairment, particularly to one's low back. There is insufficient evidence to show claimant's current condition is a result of any new injury incurred after the November 12, 1987 injury. Any industrial disability finding will be based on the current facts and claimant's employment. What the future holds is only speculative. The undersigned finds claimant is motivated. Claimant's present impairment has reduced his earning capacity. Earnings and earning capacity are two different things. Claimant is fortunate to have his current job that makes full use of his transferable skills. Claimant's age is to his benefit. Claimant desires to be a bus driver again. This job would be much better considering claimant's impairment than the rigors of his current job. Claimant's termination in the employer's hearing was a subterfuge. The outcome was determinable before the hearing. Defendants contend they complied with McSpadden because they offered claimant a job in May 1988 and he refused it. Claimant was in no condition to take a bus driving job at that time. At least part of the medicine claimant was taking could affect his bus driving and was prescribed by Dr. Blessman at the pain clinic. Defendants totally disregarded the medical evidence as a whole and refused to send claimant to one of the most qualified and nonbiased medical institutions, Mayo Clinic. The undersigned finds defendants refused to rehire claimant and it is immaterial in that regard that claimant is employed by someone else. Claimant's current employment does reduce the extent of claimant's industrial disability, but does not eliminate it as defendants contend. Taking into consideration all those many items to be considered in determining claimant's industrial disability, including the consideration of McSpadden, the undersigned finds claimant has a 15 percent industrial disability. These benefits shall begin April 12, 1988 at the rate of $264.29 per week. The remaining issue is claimant's entitlement to 85.27 benefits. The only evidence as to specific bills appear to be reflected in joint exhibit 7, page 31. Defendants contend Dr. Wignall, a chiropractor, was not authorized nor was Dr. Haag, whose bills are $225.00 and $521.19, respectively. Dr. Haag was claimant's family doctor to whom claimant went not thinking at the time that he had a workers' compensation injury. Dr. Haag's treatment was beneficial to claimant. Dr. Haag referred claimant to Dr. Boulden, who then was accepted by defendants as claimant's treating physician. The undersigned finds that defendants are responsible for the bill of Dr. Haag at Hilltop Clinic in the amount of $521.19 and the Mercy Hospital bill in the amount of $145.00. Defendants are not responsible for the chiropractor bill of Dr. Wignall in the amount of $225.00. 1. Claimant incurred a work-related cumulative injury to his low back on November 12, 1987. 2. Claimant's work-related low back injury is the result of his November 12, 1987 injury. 3. Claimant has a 5 percent permanent impairment to his back as a result of his work-related cumulative injury on November 12, 1987. 4. Claimant reached maximum healing period on April 11, 1988. 5. Claimant incurred a healing period beginning November 12, 1987 to and including April 11, 1988, which involved 21.714 weeks. 6. Claimant is earning as much if not more money from his current employment than he was at the time of his November 12, 1987 injury. 7. Defendants refused to rehire claimant in May 1989 even though defendants were advertising for bus drivers. 8. Defendants refused to rehire claimant in May 1989 because claimant was not a sufficiently qualified candidate with work experience, previous work record and references, even though claimant had previously driven a bus for fourteen years for defendant employer before he received a work-related injury. 9. Claimant has a loss of earning capacity as a result of his November 12, 1987 injury. 10. Defendants are responsible for claimant's medical bills in the amount of $521.19 with Hilltop Clinic (Dr. Haag), and a Mercy Hospital bill in the amount of $145.00. 11. Defendants are not responsible for claimant's chiropractor bill in the amount of $225.00 with Dr. Wignall. CONCLUSIONS OF LAW Claimant's cumulative low back injury on November 12, 1987 arose out of and in the course of claimant's employment. Claimant's low back injury and 5 percent permanent partial impairment to his back is causally connected to his cumulative work injury on November 12, 1987. Claimant reached maximum recovery on April 11, 1988. Claimant incurred a healing period beginning November 12, 1987 to and including April 11, 1988, which involved 21.714 weeks. Claimant has a 15 percent industrial disability. Defendants are responsible for claimant's medical bills in the amount of $521.19 with Hilltop Clinic (Dr. Haag), and a Mercy Hospital bill in the amount of $145.00. Defendants are not responsible for claimant's chiropractor bill in the amount of $225.00 with Dr. Wignall. ORDER THEREFORE, it is ordered: That defendants shall pay unto claimant healing period benefits beginning November 12, 1987 through April 11, 1988, encompassing twenty-one point seven one four (21.714) weeks at the rate of two hundred sixty-four and 29/100 dollars ($264.29) per week. That defendants shall pay unto claimant seventy-five (75) weeks of permanent partial disability benefits at the rate of two hundred sixty-four and 29/100 dollars ($264.29), commencing April 12, 1988. That defendants shall pay the accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall pay the medical bill of Hilltop Clinic (Dr. Haag) in the amount of five hundred twenty-one and 19/100 dollars ($521.19), and the Mercy Hospital bill in the amount of one hundred forty-five dollars ($145.00). Defendants are not responsible for Dr. Wignall's bill in the amount of two hundred twenty-five dollars ($225.00). That defendants shall pay the costs of those actions, pursuant to Division of Industrial Services Rule 343-4.33. That defendants shall file a claim activity report upon payment of this award as requested by this agency, pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 26th day of January, 1990. BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Stephen W Spencer Attorney at Law 218 6th Ave Ste 300 P 0 Box 9130 Des Moines, IA 50306 Mr E. J. Kelly Attorney at Law Terrace Center Ste 111 2700 Grand Ave Des Moines, IA 50312 51108; 1807; 51803 Filed January 26, 1990 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER WAYNE SHELTON, Claimant, vs. File No. 871201 METRO TRANSIT AUTHORITY, A R B I T R A T I 0 N Employer, D E C I S I 0 N and HARTFORD INSURANCE COMPANY, Insurance Carrier, Defendants. 51108 Found claimant's low back work injury and 5% impairment to his body as a whole causally connected. 1807 Defendants' refusal to rehire claimant increased claimant's industrial disability under McSpadden. 51803 Claimant awarded a 15% industrial disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ LB, Claimant, vs. File No. (call for #) AASE HAUGEN HOMES, INC., A P P E A L Employer, D E C I S I O N and CONTINENTAL LOSS ADJUSTING SERVICES, INC., 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. ISSUES The issues on appeal are: The extent of claimant's disability and entitlement to disability benefits and the rate at which the benefits are to be paid. FINDINGS OF FACT Claimant began working for defendant employer in January 1987. (Transcript, page 80) Prior to that time she had worked as a kitchen interior designer, a waitress, and in a furniture upholstering store. (Tr., p. 86) When she began work for defendant employer she was paid $5.75 per hour. (Tr., pp. 80-81) Claimant was 26 years old on August 21, 1987, the date of her injury and had one child. She is a high-school graduate and has received a degree in interior design from Northeast Iowa Technical Institute. She also has an LPN certificate and was studying for her RN degree. She stated that prior to her injury she had an agreement with defendant employer that she could work part-time as an LPN on the night shift and continue schooling full-time. Her schooling was at Northeast Iowa Technical Institute. On August 21, 1987, while at work, she slipped and fell and landed on her right buttocks. She eventually sought medical treatment. She was first seen by Charles Van Norman, M.D., who took her off work. Conservative treatment did not resolve her condition and Dr. Van Norman transferred her care to Mayo Clinic. On January 8, 1988 M.J. Ebersold, Page 2 M.D., at the Mayo Clinic performed a partial hemilaminectomy and removal of an extruded disc fragment at the L-5 level. (Exhibit 3, p. 13) Claimant testified that she was released to return to work in April 1988 with a 20 pound lifting restriction (Tr., pp. 67-69) Claimant returned to work part-time working the 3-11 shift instead of her former shift of 11-7 (Tr., p. 70) Claimant testified that she was unable to continue pursuit of her RN degree because of the lifting restrictions. (Tr., p. 72) At the time of the injury claimant had completed three-fourths of the study necessary for the RN degree. In a letter dated April 25, 1988 Melinda Hanson, R.N., Program Coordinator, Northeast Iowa Technical Institute, informed claimant that she could not register for any nursing courses with a clinical component while the weight restriction was in effect. Hanson suggested an alternate course of study. (Ex. 8, p. 1) Claimant began working full-time for defendant employer in the fall of 1989. (Tr., p. 70) She testified that her physical activities and ability to travel in a car are limited. Defendant employer's job description of charge nurse indicates that there must be an ability to lift, push, pull and move a minimum of 50 pounds. (Ex. 11, p. 4) Claimant works for defendant employer within her restrictions. (Tr., p. 88) At the time of the hearing, claimant was earning $11.81 per hour. (Tr., p. 84) William J. Litchy, M.D., from the Mayo Clinic's Department of Neurology assigned claimant an 11 percent permanent partial disability on July 7, 1988. (Ex. 3, p. 20) Dr. Litchy initially did not suggest restrictions (Ex. 3, p. 14) but later imposed a 20 pound lifting restriction in a letter dated March 22, 1989. (Ex. 14) Scott E. Streator, a vocational consultant, testified and his report was in evidence. (Ex. 4) His report explained how he arrived at his conclusion that claimant had a reduced labor market access and a loss of earnings capacity. Claimant testified that prior to her injury she worked part-time for defendant employer. In the 16 biweekly pay periods preceding and including her injury (January 13, 1987 through August 29, 1987) she worked between 32 and 64 hours in a biweekly period. (Ex. 6, p. 1) Prior to working for defendant employer she last worked in 1985. (Ex. 6, p. 1) In the 12 calendar months preceding the injury claimant had $3,963.30 earnings from defendant employer (Ex. 6, p. 1) (January 13, 1987 through August 15, 1987) Claimant apparently had no other income in the 12 calendar months preceding the injury. Her income for this period was $3,963.30. CONCLUSIONS OF LAW The first issue to be resolved is the extent of claimant's industrial disability. The parties have stipulated claimant has a permanent partial disability and the commencement of permanent partial disability benefits is April 9, 1988. The party who would suffer loss if an issue were not Page 3 established has the burden of proving that issue by a preponderance of the evidence. Iowa R. App. P. 14(f). 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 the employee is fitted. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. Impairment and disability are not synonymous. The degree of industrial disability can be much different than the degree of impairment because industrial disability references to loss of earning capacity and impairment references 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 the healing period; the work experience of the employee prior to the injury and after the injury and the 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. Likewise, an employer's refusal to give any sort of work to an impaired employee may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). 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. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience as well as general and specialized knowledge to make the finding with regard to degree of industrial disability. See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 529 (App. March 26, 1985); Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 654 (App. February 28, Page 4 1985). Compensation for permanent partial disability shall begin at the termination of the healing period. Compensation shall be paid in relation to 500 weeks as the disability bears to the body as a whole. Iowa Code section 85.34. Claimant was 26 years old at the time of her injury. She had surgery to treat her lower back condition. Claimant's work experience and education indicate that she is capable of further training and other vocational pursuits. She has had no loss of actual earnings and in fact is earning approximately twice as much as she was at the time of the injury. Claimant has demonstrated good motivation by returning to work and previously achieving post-high school education. Claimant does have an 11 percent functional impairment and a 20 pound lifting restriction. The lifting restriction precludes her from completing her RN degree. The RN type of employment for which claimant is suited is unavailable to claimant. Claimant has returned to full-time work with defendant employer who allows claimant to work within her restrictions. Claimant's access to the labor market has been reduced. When all relevant factors are considered claimant has suffered a forty percent industrial disability because of her work injury. It should be noted that determining industrial disability is the responsibility of the industrial commissioner. A vocational consultant may give an opinion as to loss of earnings and access to the labor market, but this agency, as the finder of fact, determines industrial disability. The next issue to be resolved is the rate of weekly benefits. Claimant considered herself to be part-time. The evidence (Ex. 6) supports the fact that she was part-time as she never worked more than 64 hours in a two-week period. She was a part-time employee. From this record it is unclear what the usual weekly earnings of a regular full-time adult LPN in the defendant employer's locality would be. Nonetheless, claimant was a part-time employee. Claimant was not an apprentice nor a trainee for defendant employer and therefore Iowa Code section 85.36(10)(b) is not applicable. Claimant's rate is to be calculated under Iowa Code section 85.36(10) first unnumbered paragraph which provides: If an employee earns either no wages or less than the usual weekly earnings of the regular full-time adult laborer in the line of industry in which the employee is injured in that locality, the weekly earnings shall be one-fiftieth of the total earnings which the employee has earned from all employment during the twelve calendar months immediately preceding the injury. Claimant's gross earnings are therefore calculated based on one-fiftieth of the total earnings which the employee would have earned from all employment during the twelve calendar months immediately preceding the injury. The record reflects that claimant's total earnings from all employment Page 5 during the twelve months preceding her injury equaled $3,963.30. Divided by 50, this yields an average gross weekly wage of $79.27. The evidence in this record indicates claimant was single and entitled to two exemptions. Claimant's rate of weekly benefits is $72.94. WHEREFORE, the decision of the deputy is affirmed and modified. ORDER THEREFORE, it is ordered: That defendants are to pay unto claimant two hundred (200) weeks of permanent partial disability benefits at the rate of seventy-two and 94/100 dollars ($72.94) per week from April 9, 1988. That defendants shall pay accrued weekly benefits in a lump sum. That defendants shall pay interest on unpaid weekly benefits awarded herein as set forth in Iowa Code section 85.30. That defendants are to be given credit for benefits previously paid plus the amount of payments tendered. That claimant and defendants shall share equally the costs of the appeal including transcription of the hearing. Defendants shall pay all other costs. That defendants shall file claim activity reports as required by this agency pursuant to rule 343 IAC 3.1(2). Signed and filed this ____ day of November, 1993. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Dennis G. Larson Attorney at Law 312 W. Main St. Decorah, Iowa 52101 Ms. Deborah A. Dubik Attorney at Law 600 Union Arcade Bldg. 111 E. Third St. Davenport, Iowa 52801 5-1803; 5-3001 Filed November 30, 1993 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ LB, Claimant, vs. File No. (call for #) AASE HAUGEN HOMES, INC., A P P E A L Employer, D E C I S I O N and CONTINENTAL LOSS ADJUSTING SERVICES, INC., Insurance Carrier, Defendants. ____________________________________________________________ 5-1803 Claimant was 26 years old at time of injury. She had an 11 percent impairment and a 20 pound lifting restriction. She had a LPN degree but could not pursue RN degree because of restrictions. She was determined to have a 40 percent industrial disability. 5-3001 Claimant was a part-time employee who worked no more than 32 hours per week as an LPN at time of injury. She was also going to school full time (she was 26 years old). Rate determined by using Iowa Code section 85.36(10) and dividing income in 12 calendar months preceding the injury by 50 to determine gross weekly earnings. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : LB, : : Claimant, : : vs. : : File No. (call for #) AASE HAUGEN HOMES, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CONTINENTAL LOSS ADJUSTING : SERVICES, INC., : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This case came on for hearing on April 15, 1993, at Dubuque, Iowa. This is a proceeding in arbitration wherein claimant seeks compensation for permanent partial disability benefits as a result of an alleged injury occurring on August 21, 1987. The record in the proceeding consists of the testimony of claimant, and claimant's mother, Consuelo Isella Sperry, and Scott Streator; and, joint exhibits 1 through 14. ISSUES The issues for resolution are: 1. The extent of claimant's disability and entitlement to disability benefits; 2. The rate at which the benefits are to be paid; 3. The credit that is to be given defendants concerning any payments previously paid; and, 4. Interest on payments made but checks not cashed, if any. FINDINGS OF FACT The undersigned deputy, having heard the testimony and considered all the evidence, finds that: Claimant was 26 years old on August 21, 1987, the date of her injury. Claimant is approximately 31 years old at the date of the hearing and is a high school graduate. Claimant related her post-high school education in which she received an interior design and associate of arts degree and an LPN certificate working toward her RN. She obtained Page 2 these two degrees or certificates in 1985 and 1986, respectively. Claimant started working for defendant employer around the end of 1987. Claimant testified that she continued her education toward the RN and had an agreement with defendant employer that she would work part-time as an LPN on the night shift and continue school full time to obtain her RN and then upon completing that course of study, she would be hired by the defendants in an RN position. Claimant indicated that going on to reach her RN status would also benefit defendant employer because so many of the registered nurses leave the state after obtaining their education and in this case the defendants would have another RN on the staff. Claimant testified that on August 21 1987, after midnight, she was on duty and was alerted by a resident having chest pains. Claimant went to the nurses station and slipped on the floor and landed on her right buttock and felt severe pain down the right leg. Her condition became worse. Claimant was restricted from work on November 2, 1987, and on January 8, 1988, she had a partial hemilaminectomy at the L5-S1 level and was discharged from St. Mary's Hospital on January 14, 1988. Claimant said she was released in April 1988 with a 20 pound weight limit restriction but was not able to return to the particular job and shift she previously had and had to work a different shift period. Claimant corrected joint exhibit 5, page 2, in which it indicated she returned to full-time work with defendant employer in April 1988. She said that is incorrect and that she only returned part-time at that time but in the fall of 1989, she was then able to get full-time work. Claimant testified that in mid-November 1987, she had to withdraw from two classes at Northeast Iowa Institute where she was working toward her RN due to her back and the required daily physical therapy treatments. She indicated that her treatments involved approximately two and one-half to three hours a day. Claimant testified she tried to return to school to continue her RN nursing courses when she was released in April 1988, and defendant employer okayed her attempt. Later, claimant said that defendants changed their position and claimant was referred to joint exhibit 8 in which the Northeast Iowa Technical Institute indicated that because of claimant's 20 pound weight restriction that was for an indefinite period and because placing claimant in a clinical area may be expected to go beyond the weight restriction, she was told that she could not register for any nursing courses with a clinical component while that weight restriction is in effect. That same exhibit suggested that claimant might think about enrolling in a medical records program and think about altering her career goals to pursue some area that would not require lifting. Claimant related Page 3 that at that time in April 1988, she had completed three-fourths of her courses toward obtaining an RN and had one quarter to be able to reach her goal. Claimant said she called several other colleges to try to get in and all of the other places couldn't accept her due to the weight restriction so claimant has been unable to complete her registered nurse degree. Claimant emphasized that her plan had been to obtain her RN and work in that position and then she could go anywhere to get a bachelor of science in nursing or a job higher up such as director of nursing. She emphasized there are a lot of advantages in being a registered nurse and she could then rise up through the nursing system. Claimant testified that the forms she fills out for a job application asked the question as to any disability. She is limited to drawing blood only four times per day because it requires her to be in a bent over position and she related it takes a certain number of people to hold onto someone or to lift them and that since claimant is restricted to weight, she indicated she is also restricted to work the night shift in which there is apparently less physical work required. Claimant said that during the past several months defendant company has made changes in operations under OBRA and is now a skilled facility whereas before it was an intermediate or residential care facility. Claimant testified that her job description has changed since the injury and that joint exhibit 11 encompassing four pages is her new job description. Item No. 8 on page 4 of said exhibit reflects that a person must be able to lift, push, pull and move a minimum of 50 pounds, and item No. 9 indicates one must be able to assist in the evacuation of residents. Claimant related activities she used to be able to do which she cannot do now or is limited to doing. These activities involve bicycle riding which can no longer do, she cannot ride on RAGBRAI, ski or play tennis. It also hurts her back riding in her automobile. Claimant said she spends over $100 annually on over-the-counter non-prescription drugs such as Darvocet and Motrin. Claimant testified that in January 1987, when she began working for defendant employer, she was earning under $6 and in 1985 until January 1987, she was not working at any job but was a full-time student. She indicated that twelve months prior to her injury involved only income from defendant employer. Defendants' exhibit 6, pages 1 and 2, reflect her income during that period. Claimant said she was working as a part-time LPN during this time but now is full time 40 hours per week as an LPN. She now makes with her raises $11.81 per hour and as before is still paid on an hourly basis biweekly. Claimant said she has asked the nurses not to schedule her for more than four people from whom she draws blood. She acknowledged that no doctor has issued that restriction. Claimant indicated that the day shift requires more physical Page 4 work than the night shift and that when she returned to work during the day shift which she worked until April 1991, she applied for the night shift which is 11:00 p.m. to 7:00 a.m. when it came open. Claimant acknowledged that she didn't violate her restrictions when she worked the other shifts. She said there is no prohibition for her working the other shifts. She also said that when she worked the other shifts, she wasn't asked to violate her restrictions. Claimant indicated that joint exhibit 10, pages 1 through 10, are the applications that she had apparently picked up in 1988 or 1989. She said she didn't fill out the applications and that she did not look for work anywhere else. Claimant testified she cannot apply anywhere else because of her weight restrictions. It is obvious to the undersigned that these applications are forms that were proper before the passage of Americans With Disabilities Act. It also appears to the undersigned that the claimant is not aware of the change in the law when she testified that she couldn't apply anywhere else now because of her work restrictions. Claimant is not aware that the forms referred to in exhibit 10 are not proper now and that when applying for a job she need not state or offer nor is she legally allowed to be asked on any form or any personal question about any disability she had prior to a job being offered, assuming the place of employment is covered. Obviously, since claimant has not looked for work anywhere else since she returned to defendant employer, she hasn't likewise been turned down for any jobs but she indicated she has been passed over for certain jobs because she is not a registered nurse. Claimant was again asked questions regarding the various shifts and the apparent change in the nature of the shifts and the physical requirements since defendant employer has been classified as a skilled care facility and because of passage of new laws. At the time of claimant's injury, claimant indicated the day shift was the less strenuous than the 10:00 a.m. to 3:00 p.m. shift or the night shift 10:00 to 7:00. Apparently because of the new laws whereby patients are not to be disturbed in the middle of the night the night shift has become the less physical shift and claimant has now voluntarily switched to the night shift because of it being less physical. Claimant indicated she had been doing okay during the day shift before she switched. It appears the testimony is confusing at times as far as the particular shifts and whether they overlap in part. It appears at least now that the three shifts are 10:00 p.m. to 6:00 a.m., 6:00 a.m. to 2:00 p.m., and 2:00 p.m. to 10:00 p.m., the first two shifts being the more physical. It appears from prior testimony there are periods that the shifts referred to as 11:00 p.m. to 7:00 a.m., 7:00 a.m. to 3:00 p.m., and 3:00 p.m. to 11:00 p.m. Scott E. Streator, DVS, a vocational consultant, testified in person. His report is identified as joint exhibit 4. Claimant went over some of his background, the nature of his work, and the extent to which he testifies in Page 5 various cases. He related claimant's history taken from claimant when he met her for the first time in March of 1989. He went over the various criteria, documents, formula, records and sources in which he reviewed or gathered information and analyzed in putting together his report and ultimate opinion. Some of the things he emphasized were items affecting claimant's limitations, access to the job market, or limitations to reaching a registered nurse position, or claimant's 20 pound weight restriction; the fact that because of the weight restriction, she cannot reach or finish her desire to become a registered nurse but would be limited to her current LPN position; and, the fact that not being a registered nurse substantially eliminates the access to other positions which would be open to an RN. He indicated that the 20 pound weight limitation under the DOT standards would put claimant in a light weight work classification (Joint Exhibit 4, pp. 6 and 7). He testified as to the fact that the weight restriction prevents claimant from being a registered nurse. Mr. Streator was asked on cross-examination the fact that even though claimant was not to lift in excess of 20 pounds, a doctor didn't say this was light work. Mr. Streator indicated that LPN work is not light duty work but to his knowledge claimant isn't working in a total LPN situation due to the accomodation of the employer. He also emphasized that he isn't contending that claimant's current job is a makeshift job but is an accommodating job, in other words, a job in which claimant is being accommodated because of her restrictions. Consuelo Isella Sperry, mother of claimant, testified as a rebuttal witness pursuant to the undersigned having allowed a professional statement made by the defendants' attorney. Ms. Sperry testified that she is a registered nurse working for the State of Iowa, and has worked as a registered nurse at the State Mental Hospital in Independence. She testified her hourly wage is $18.30 per hour and she is not a supervisor. She acknowledged that the average earnings of a nurse depends on the experience, where you go and how bad they need you. Page 6 of joint exhibit 1 is a letter from Charles C. Van Norman, M.D., in which he mentioned in his June 7, 1990 letter that claimant has an ongoing lifting restriction of 20 pounds since her surgery in 1988, and continues to have symptoms and he has recommended limiting her workday to eight hours. He indicated he thought 12 hours would be excessive for her to be on her feet with her continuing symptoms. The undersigned might note that there is no other medical record that changes or eliminates that restriction and the evidence shows that those restrictions are currently still in existence. Joint exhibit 2, pages 1 through 11, are claimant's records from the Winneshiek County Memorial Hospital. Joint exhibit 3 is the Mayo Clinic records consisting of 20 pages. Joint exhibit 3, pages 18 and 19, are Mayo Clinic records indicating claimant had a partial hemilaminectory at L5-6 and a ligament was removed. An extruded disc fragment was found and removed on January 8, 1988, and on April 6, 1988, Page 6 William J. Litchy, M.D., gave claimant a 20 pound indefinite lifting restriction and indicated she may return to work. Joint exhibit 3, page 20, is a July 20, 1988 letter from Dr. Litchy in which he believed claimant most likely reached maximum medical benefits, continues to still have pain but no neurological deficit and he opined claimant had a 11 percent permanent partial disability. The undersigned believes the doctor means impairment. Mr. Streator went into great detail in his 61 pages as far as trying to determine claimant's industrial disability. On joint exhibit 4, page 11, he opined that claimant had a total industrial disability of 49 percent on the average. The determination of industrial disability is an evaluation and not a calculation. It appears that Mr. Streator went into great depth as to considerable calculations and computations and also did some evaluation. It is the prerogative of the undersigned to determine industrial disability in this case and not that of an expert vocational consultant. The undersigned also understands where Mr. Streator is coming from as far as his analysis and oftentimes lay people or lay experts use similar terminology that in fact means something different depending on the particular law of the state. Without question, Mr. Streator's report indicates claimant has a substantial loss of income, access to the job market and limitation of potential because she has not been able to reach the registered nurse status because of her restrictions. Joint exhibit 5 is a report from the Karr Rehabilitation Services, an organization, it appears from the record, hired by defendants. This January 29, 1993 report reflects that claimant still had a permanent 20 pound weight lifting restriction. Claimant was working full time with defendant employer at $11.36 per hour. This report confirmed various other parts of claimant's testimony or other evidence in this case. Joint exhibit 6, page 1, reflects claimant's weekly earnings. Claimant had testified that November 17, 1987 is not the last day she worked but that she was in fact restricted from work on November 2, 1987, and that the actual end of the pay period is two weeks later than the last day of work for the particular period being paid. The parties are disputing the rate to be used in this case. Claimant contends that the rate should be $154.66 based on the contention that claimant is a full-time employee and therefore the rate should be under the provisions of Iowa Code section 85.36(10). Claimant further contends that if the undersigned finds claimant is a part-time worker, then the rate should be figured under the provisions of 85.36(2). At the beginning of this hearing when the issues and stipulations were trying to be summarized and put in final form, the defendants indicated they didn't think rate was in dispute and they had stipulated that they paid some previous benefits at a $96.62 rate. It then became apparent that the rate is in fact in Page 7 dispute. The defendants contend that any rate should be figured on the basis of claimant being part-time and under the provisions of 85.36(10), and therefore the defendants contend the rate would be $72.94, and have overpaid any benefits they previously paid. The undersigned is not sure where the claimant is coming from as to her contention that she is a full-time employ as the claimant's own testimony and the other evidence and records in this case, including joint exhibit 6, page 1, shows claimant was in fact a part-time worker. In no case did she work more than 32 hours a week and that was only once and basically her hours ran from a high of 28 down to 16 hours per week. The undersigned finds that claimant is in fact a part-time worker paid by the hour and received her earnings biweekly. Claimant's injury was on August 21, 1987. In looking at joint exhibit 6, claimant's actual day she was injured fell in between the pay period covered by the entry at No. 16 for August 29, 1987. There is no dispute that claimant was paid on an hourly basis. The undersigned believes the computation should be under 85.36(6). The undersigned therefore is taking the 13 weeks prior to August 21, 1987, which amounts to claimant having gross wages of $142.30 based on those 13 as determined by adding the income of those 13 weeks and dividing by 13. Claimant being married and having one dependent child on the date of her injury results in a rate of $103.38. Joint exhibit 12, page 1, is a letter to the claimant from defendants' insurance adjuster. This letter reflects that defendants were sending some weekly benefits for permanent partial disability benefits to the claimant on December 23, 1988. They were basing their payments on the 11 percent permanent partial disability to the body as a whole that was opined by Dr. Litchy. The undersigned interprets Dr. Litchy's use of the word or at least this letter's use of the word "disability" as meaning impairment. This letter therefore reflects that the insurance carrier feels that 11 percent of 55 weeks of permanent partial disability benefits is all that they owe. In that same letter they refer to the fact that if the claimant disagrees or disputes the information in the letter, they may petition for a review-reopening. Joint exhibit 12, pages 2 and 3, is claimant's attorneys response to the insurance carrier's letter in which they disagree not only with the 11 percent determination as being the extent of claimant's industrial disability and disagreeing that the impairment would be the same as the industrial disability, but also because there was no interest included for the late payment for the 37 weeks they were paying in this December 1988 letter and, also, that claimant was going for further medical. Claimant's attorney further indicates that they were going to hold the checks and that they haven't been cashed. The above sequence of events is what leads up to the other issue to be decided in this case as to whether there was a settlement proposed or inferred by the defendants in Page 8 sending a lump sum check to the claimant and then mentioning that the additional balance of the 11 percent will be paid in monthly installments as the weeks accrue. Also, the letter mentioned that if they disputed this, they may submit a petition for review-reopening. The undersigned believes that that terminology is misleading in that since there was no arbitration decision or settlement signed by the parties and approved, claimant still had arbitration rights and that a review-reopening petition was not the remedy available if claimant disagreed with the defendants' position. This terminology may have misled the claimant to believe that it was a settlement and that anything further to change it if they disagreed would have to be done by a petition for review-reopening. There is no evidence that these checks had any notation thereon that they were in full settlement or is there any evidence of a letter specially indicating a settlement in full based on the 11 percent. The undersigned therefore believes that any inference claimant may have received from that letter is not valid in that claimant could have easily rectified any misinterpretation by follow-up letters clarifying the situation. The undersigned believes that if the checks referred to in this case were cashed, claimant would not have been held to a settlement of 11 percent industrial disability. The undersigned conclusion is further substantiated based on page 5 of joint exhibit 12 in which the claimant's attorney at the time acknowledged that they had received as of July 5, 1989, 55 weeks of benefits and they felt they were entitled to an additional 190 weeks and further stated that if they received those additional weeks which would be based on a 49 percent industrial disability, they would consider it a lump sum settlement. As of the date of the hearing, there is no dispute that claimant through her attorney has received 55 weeks of permanent partial disability benefits paid at $96.62 per week amounting to $5,314.10, representing 11 percent industrial disability. The undersigned, based on the record herein, does not understand why the claimant did not cash those checks and if there was any doubt in their mind as to whether that was payment in full, they could have easily nailed it down through further clarifying letters. The undersigned feels it is up to the claimant to resolve any doubt or they should have returned the checks to the defendants. The undersigned finds that the $5,314.10 that was sent to claimant through her attorney are benefits upon which there is no interest due and the undersigned considers the claimant having received that sum for which defendants will be given credit. Therefore, any additional permanent partial disability benefits awarded herein will begin on April 29, 1989. The parties have stipulated that any industrial disability benefits would begin on April 9, 1988. Defendants do owe interest as provided by law for those payments as they accrued up until the $3,574.94 check was paid on December 23, 1988 as per joint exhibit 12, page 1. Page 9 That exhibit also reflects that the other remaining 18 weeks of the 55 weeks will be paid every 30 days. Defendants also owe any interest on those amounts that will be owed due to the fact that the defendants were paying them at approximately four weeks or thirty days intervals rather than each week. Although the undersigned finds that the defendants are therefore to be given credit for the $5,314.10, it would also appear that the checks are possibly at a status that they must be reissued or possibly a bank but not honor them because of the date thereon because the claimant has been holding the same. Therefore, it is understood by the undersigned that that even though credit is being given, if the checks must be reissued, the defendants shall forthwith reissue them within one week of this decision and if not done by said defendants interest shall run on said sum from said date. Likewise, within that one week period, claimant shall return to the defendants the checks that have previously been issued. This, again, is assuming that said checks that have been already issued are no longer negotiable. The remaining issue to be resolved is the extent of claimant's permanent disability. Defendants contend that it is 11 percent which is the percent of impairment opined by Dr. Litchy, herein. It would appear that the defendants are using the criteria that 11 percent impairment to the body as a whole is the same as one's industrial disability. Although industrial disability could end up the same as one's impairment, or could be less or more, the facts in this case make it grossly unreasonable to assume that claimant, with a severe restriction of not lifting more than 20 pounds and who has an 11 percent impairment, would have only an 11 percent industrial disability. By any norm, a person with a 20 pound limitation would put them in a light duty category. Claimant is an LPN. It is undisputed that she was well on her way to becoming a registered nurse which is a highly sought after and desirable position for one to have. Claimant was one quarter away from becoming a registered nurse and there was no reason in the record to show that she would not have been able to attain it if it were not for her August 21, 1987 work injury. Claimant's current job description provides that claimant must be able to lift, push, pull and move a minimum of 50 pounds. This does not seem to be an unreasonable weight for an LPN in that a nurse is required to move and lift patients as a part of their duty. Defendants argue that claimant has been working for defendant employer with her 20 pound limit and has been getting along and that notwithstanding this 50 pound limit, this is not currently an obstacle. It is true claimant likes her job but the fact is claimant has a severe restriction in which she is not to lift more than 20 pounds. There is also evidence in the record that she should not work more than eight hours on a shift. The defendant employer is accommodating claimant. Page 10 Joint exhibit 8, page 1, is a letter from the North Iowa Institute dated April 25, 1988, which specifically states that claimant's 20 pound restriction prevents her from registering her for nursing courses with a clinical component while the weight restriction is in effect. Claimant testified that she tried other places to continue her RN education and received the same response. The evidence shows the weight restriction is permanent and the evidence shows that because of claimant's injury, she is unable to be a registered nurse. Without question, a registered nurse is a much more desirable position than an LPN and opens substantially more avenues and rights to a promotion or jobs than an LPN. Joint exhibit 8 also refers to the fact that claimant could start the medical records program at the North Iowa Institute because of her medical condition and, therefore, suggested she may want to alter her career goals. How demeaning this would be for the claimant who is an LPN having to change her career and think about being a medical records clerk. To the undersigned it would be similar to a professional such as a lawyer who could no longer practice law for whatever reason to become a law clerk. Claimant is now making $11.81 per hour. There is no dispute she is on an hourly basis but gets paid every two weeks. Claimant's mother is a registered nurse and is making $18.30 per hour and is not in a supervisory position and works for the State of Iowa at a mental health institution. On cross-examination, claimant's attorney seemed to indicate or possibly infer that between the State of Iowa and private industry there is no wage comparison implied the state pays more. The undersigned using the agency expertise and common knowledge would agree in many instances that the comparison might not be logic but that private industry often pays substantially more than government jobs. Claimant had no prior injuries that would affect claimant or is affecting claimant and that the only injury from which claimant suffers a permanent impairment and a loss of earning capacity is her August 21, 1987 injury. Considering claimant's pre and post-injury medical and work history, present condition, work experience, education, current physical condition, impairment, restrictions, location of her injury, surgery, severity of her injury, any healing period, age, motivation, and the fact that defendants are accommodating the claimant, the undersigned finds that claimant has a substantial loss of earning capacity. There is no evidence the weight restrictions or requirements of a licensed practical nurse or registered nurse would be any different than the weight restrictions established at defendant employer. Claimant is basically, because of her weight restriction, held hostage as far as a future job as a nurse because it would appear any attempt to seek employment elsewhere as an LPN would ultimately result in claimant being severely affected or hampered by her weight restriction. This is true notwithstanding the fact Page 11 that she can no longer even be a registered nurse who even with the same restrictions would be more qualified and more sought after with that additional expertise, education and degree. Taking claimant's current status, the undersigned finds that claimant has a 40 percent industrial disability and that benefits shall be paid at the rate of $103.38 per week and payment shall begin April 29, 1989, after allowing 55 weeks of credit as provided herein. CONCLUSIONS OF LAW Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, expe rience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disabil ity. This is so as impairment and disability are not syn onymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw Page 12 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). Iowa Code section 85.36(6) provides: The basis of compensation shall be the weekly earnings of the injured employee at the time of the injury. Weekly earnings means gross salary, wages, or earnings of an employee to which such employee would have been entitled had the employee worked the customary hours for the full pay period in which the employee was injured, as regularly required by the employee's employer for the work or employment for which the employee was employed, computed or determined as follows and then rounded to the nearest dollar: .... 6. In the case of an employee who is paid on a daily, or hourly basis, or by the output of the employee, the weekly earnings shall be computed by dividing by thirteen the earnings, not including overtime or premium pay, of said employee earned in the employ of the employer in the last completed period of thirteen consecutive calendar weeks immediately preceding the injury. It is further concluded that claimant incurred an injury on August 21, 1987 that arose out of and in the course of her employment and that said work caused claimant to incur surgery to her L5-6 vertebra and caused claimant to incur a 40 percent industrial disability. It is further concluded that claimant's weekly benefits is payable at the rate of $103.38 based on the provisions of 85.36(6) and that claimant was paid on an hourly basis with pay periods being every two weeks. Defendants should be given credit for the $5,314.10 that has been paid by the defendants, representing 55 weeks paid at the rate of $96.62 per week, but that since claimant has received the money and hadn't cashed the checks there should be no interest due on said amount during the period of time that claimant has had said checks but did not cash them. Because of the period time, the checks may have to be reissued and, if so, defendants shall reissue the same within one week of this decision and claimant shall within one week return the uncashed checks to the defendants, again, assuming they are not negotiable. ORDER THEREFORE, it is ordered: That defendants shall pay unto claimant two hundred (200) weeks of permanent partial disability benefits at the Page 13 rate of one hundred three and 38/100 dollars ($103.38) beginning April 9, 1988. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. Defendants have previously paid five thousand three hundred fourteen and 10/100 dollars ($5,314.10), representing fifty-five (55) weeks of permanent partial disability at ninety-six and 62/100 dollar ($96.62). Said checks have not been negotiated and, therefore, as provided above in the findings, if said checks are not able to be negotiated, defendants shall reissue checks for five thousand three hundred fourteen and 10/100 dollars ($5,314.10) and interest will not be due on said sum. With said fifty-five (55) weeks running from April 9, 1988, that would make the additional benefits awarded herein to actually begin on April 29, 1989. Defendants shall pay the difference including intetest on these fifty-five (55) weeks between the one hundred three and 38/100 dollar ($103.38) and the ninety-six and 62/100 dollar ($96.62) amounts. That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. This includes any interest that would have accrued on benefits to which claimant was entitled before the first lump sum payment was paid in December 1988, and any interest that may be due resulting from any delinquent payments of the remaining eighteen (18) weekly checks that encompassed the fifty-five (55) weeks for which claimant is being credited as set out herein and under the provisions herein. That defendants shall pay the costs of this action, pursuant to rule 343 IAC 4.33. That defendants shall file an activity report upon payment of this award as required by this agency, pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of May, 1993. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Dennis G Larson Attorney at Law 312 W Main St Decorah IA 52101 Ms Deborah A Dubik Attorney at Law 600 Union Arcade Bldg 111 E 3rd St Davenport IA 52801 1703; 1803; 3002; 3800 Filed May 4, 1993 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : LB, : : Claimant, : : vs. : : File No. (call for #) AASE HAUGEN HOMES, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CONTINENTAL LOSS ADJUSTING : SERVICES, INC., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1803 Awarded claimant 40% industrial disability. 3002 Found rate to be figured under Iowa Code section 85.36(6) at $103.38 1703; 3800 Claimant received 55 weeks permanent partial disability at the rate $96.62 but refused to cash check "believing" the defendants felt it was a settlement in full. Found: 1. Claimant should not have considered it settlement in full for 11% industrial disability. 2. Defendants to be given credit for the $5,314.12 amount and no interest is due for period claimant (claimant's attorney) held checks uncashed.