2901 Filed May 29, 1991 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : GERRY L. BAILEY, : : Claimant, : File Nos. 872775 : 872776 vs. : 872778 : 936530 AALFS MANUFACTURING COMPANY, : 981393 : Employer, : A R B I T R A T I O N : and : D E C I S I O N : THE HARTFORD and AETNA : CASUALTY & SURETY COMPANY, : : Insurance Carriers, : Defendants. : ____________________________________________________________ 2901 Claimant was found to have sustained permanent injury to right arm, but injury date was not any of four alleged by claimant. DIS was ordered to establish a new litigated file and benefits were awarded thereunder. 2901 Filed May 29, 1991 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : GERRY L. BAILEY, : : Claimant, : File Nos. 872775 : 872776 vs. : 872778 : 936530 AALFS MANUFACTURING COMPANY, : 981393 : Employer, : A R B I T R A T I O N : and : D E C I S I O N : THE HARTFORD and AETNA : CASUALTY & SURETY COMPANY, : : Insurance Carriers, : Defendants. : ____________________________________________________________ 2901 Claimant was found to have sustained permanent injury to right arm, but injury date was not any of four alleged by claimant. DIS was ordered to establish a new litigated file and benefits were awarded thereunder. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ HOUSTON JOHNSON, Claimant, File Nos. 802915/872780 vs. A P P E A L AMERICAN CAN COMPANY, D E C I S I O N Employer, Self-Insured, and WAUSAU INSURANCE COMPANY, Insurance Carrier, Defendants. ____________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed February 25, 1991 is affirmed and is adopted as the final agency action in this case. The costs of the appeal, including the preparation of the hearing transcript shall be shared equally by claimant and defendant employer. Signed and filed this ____ day of September, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Steven C. Jayne Attorney at Law 5835 Grand Ave., Ste 201 Des Moines, Iowa 50312 Mr. Harry W. Dahl, Sr. Attorney at Law 974 73rd St., Ste 16 Des Moines, Iowa 50312 Page 2 Mr. Marvin E. Duckworth Attorney at Law 2700 Grand Ave., Ste 111 Des Moines, Iowa 50312 9998 Filed September 16, 1992 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ HOUSTON JOHNSON, Claimant, File Nos. 802915/872780 vs. A P P E A L AMERICAN CAN COMPANY, D E C I S I O N Employer, Self-Insured, and WAUSAU INSURANCE COMPANY, Insurance Carrier, Defendants. ____________________________________________________________ 9998 Summary affirmance of deputy's decision filed February 25, 1991. Page 1 before the iowa industrial commissioner ____________________________________________________________ : HOUSTON JOHNSON, : : File Nos. 802915 Claimant, : 872780 : vs. : A R B I T R A T I O N : AMERICAN CAN COMPANY, : A N D : Employer, : R E V I E W - Self-Insured, : : R E O P E N I N G and : : D E C I S I O N WAUSAU INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This decision concerns two proceedings which have been brought by Houston Johnson against American Can Company. File number 802915 is a proceeding in review-reopening from an agreement for settlement based upon an injury that occurred on June 17, 1985. File number 872780 is a proceeding in arbitration based upon an alleged injury of November 30, 1987. The employer is insured by Wausau Insurance Company in file number 802915, but is self-insured is file number 872780. The primary issues to be determined are whether claimant sustained an injury on November 30, 1987 which arose out of and in the course of his employment; determination of claimant's entitlement to additional compensation for healing period; determination of claimant's entitlement to additional compensation for permanent disability; determination of claimant's entitlement to recover medical expenses; and, determination of the claim for a penalty under the fourth paragraph of Code section 86.13. Included issues for determination are whether there has been a change of condition to permit review-reopening and whether there is a causal relationship between any alleged injury and the disability. The case was heard and fully submitted at Des Moines, Iowa on October 16, 1990. The record consists of the testimony of Houston Johnson, Mary Hazelton and Linda Olson-King. The record also consists of joint exhibits A through H, J through P and R and claimant's exhibits 1 through 8. findings of fact Having considered all the evidence received, together Page 2 with the appearance and demeanor of the witnesses, the following findings of fact are made. Houston Johnson is a 41-year-old married man who has lived at Des Moines, Iowa since 1968. He grew up in a small town in Mississippi where he went through the eleventh grade in high school with grades of "C's" and "D's." He has no further formal education or military training. Houston worked in a poultry dressing plant briefly before coming to Iowa at age 18. In Iowa, he performed assembly line work, built custom mattresses, performed packinghouse work for nearly ten years and then obtained employment with American Can Company in approximately 1981. At American Can, he worked as a rewind operator for approximately four years and then became a bag machine operator which was his principle position when he last worked for the employer. He sustained a back injury on June 17, 1985. Houston has a long history of back problems going back as far as 1974 when he injured his back and underwent laminectomy surgery at the L4 level of his spine (exhibit G, pages 24-28). Following that injury, he was rated as having an 11 percent permanent impairment (exhibit L, page 1). Claimant had some emotional problems while recuperating from that earlier injury. Following the injury, he returned to packinghouse work. The record does not show that he had any major continuing problems with his back between the time he recuperated from that earlier injury and the 1985 injury. On June 17, 1985, Houston was injured while working for American Can as a bag machine operator. The 1985 injury produced a herniated lumbar disc at the L4-5 level of claimant's spine. He underwent a laminectomy surgery which was performed by Des Moines orthopaedic surgeon Scott B. Neff, D.O. (exhibit K, pages 3 and 6; exhibit O, pages 8 and 9). On May 22, 1986, it was reported that claimant should return to work (exhibit A, page 49). Following recuperation from that surgery, Houston returned to work at American Can as a bag machine operator. The employer made accommodations including providing a chain hoist to be used for lifting. Dr. Neff and William R. Boulden, M.D., provided restrictions on claimant's activities as part of the return to work process. Houston got along fairly well after the return to work. He was not, however, kept entirely on the accommodated bag machine operator job. From time to time, he was assigned to perform labor-type activities as part of the building and yards crew (exhibit 8). While performing those types of activities, Houston violated the activity restrictions which had been recommended by the doctors. In early 1987, Houston began voicing complaints of increased symptoms when he saw Drs. Neff and Boulden (exhibit A, pages 35, 36, 42, 43 and 45). After conducting appropriate diagnostic tests, Drs. Neff and Boulden concluded that claimant's increased symptoms were due to Page 3 instability of his spine which could be improved through fusion surgery (exhibit A, pages 35 and 36). On December 2, 1987, Drs. Neff and Boulden performed extensive surgery on claimant's spine, including fusion of L3-S1 (exhibit G, pages 14 and 15). Following the surgery, it was initially felt that the fusion was healing solidly, but it was eventually determined that the L3-4 level had not healed. Refusion surgery of the L3-4 level was performed by Dr. Boulden on February 24, 1989 (exhibit G, pages 1-6; exhibit O, pages 48 and 49). After further recuperation, physical therapy and work hardening, it was determined that claimant had reached maximum medical improvement on September 25, 1989 (exhibit A, page 64; exhibit F, page 7; exhibit D, page 6). Claimant had been evaluated by Thomas W. Bower, licensed physical therapist, and through Workmed Midwest under the direction of Kevin F. Smith, M.D. Both found him to be suitable for medium work. Workmed Midwest felt he could perform occasional lifting of not more than 41 pounds, frequent lifting of not more than 20 pounds and constant lifting of not more than 10 pounds (exhibit E, pages 2-8). Mr. Bower and Dr. Boulden felt that claimant could infrequently lift as much as 75 pounds and could lift 35 pounds frequently (exhibit D, page 6; exhibit F, pages 7, 12 and 13). Dr. Boulden felt that claimant was capable of gainful employment (exhibit A, pages 1-4; exhibit D, page 12). Following recovery from the 1985 injury, Dr. Neff assigned claimant a 27 percent impairment rating of the body as a whole. He attributed 16 percent to the 1985 injury and surgery with 11 percent being attributed to the 1974 injury and surgery (exhibit A, pages 48 and 54; exhibit F, page 25; exhibit O, pages 11 and 12). Dr. Boulden rated claimant recently as having a 25-27 percent permanent impairment of the body as a whole (exhibit D, pages 13 and 14). He felt that the impairment had not changed significantly since the 1987 surgery had been performed. Dr. Boulden has also rated claimant as having a 30 percent permanent impairment, of which 15 percent had preexisted the fusion (exhibit A, pages 7 and 8). The American Can Company plant was viewed by therapist Bower. It was determined that the bag machine operator position and several others would be acceptable for claimant to perform (exhibit F, pages 1 and 4). While claimant was recuperating in 1988, he became clinically depressed due to the pain disorder. The depressive symptoms were determined to be a result of the work injury (exhibit A, pages 24 and 25; exhibit P). Drs. Neff and Boulden agreed that claimant's current spinal difficulties have their underlying basis in the 1974 and 1985 injuries which weakened his spine (exhibit A, pages 33 and 34; exhibit D, page 11). Both also agree that the subsequent lifting and employment activities in which the Page 4 claimant engaged following his return to work in 1986 materially contributed to the increase in the claimant's symptoms which in turn necessitated the fusion surgery and resulted in his current state of disability (exhibit A, page 27; exhibit D, pages 15 and 16; exhibit O, pages 19-21, 28-30, 41-48, 52 and 57). Following recuperation from the 1985 injury, an agreement for settlement was entered into wherein the claimant was determined to have sustained a 31 percent permanent partial industrial disability. At the time that agreement for settlement was made and approved, the claimant had returned to employment with the employer and was performing modified duties on a full-time basis. It is found that, at the time of the settlement, claimant's medical condition was stable and was not expected to worsen appreciably in the reasonably foreseeable future. It is further found that the settlement was based upon the circumstances that the claimant was employed on a full-time basis and would be physically capable of remaining employed on a full-time basis with American Can Company, the employer who had made accommodations in order to permit his return to work. It is further found that the rapid worsening, the need for surgery and the employer's failure to provide work to the claimant are all circumstances which have occurred since the settlement was entered into and which were not anticipated or expected to occur at the time the settlement was made. It is found that the opinions expressed by Drs. Neff and Boulden regarding the cause of the claimant's current disability are correct. In particular, it is found that the 1974 and 1985 injuries created a condition of weakness and susceptibility to injury. It is further found that the activities which the claimant performed in his employment when he was taken off the bag machine operator job were a substantial factor in aggravating that preexisting condition in causing the increase in his symptoms which in turn produced the need for the fusion surgery. It is further found that there is no material evidence in the record of this case which can be relied upon to attribute the claimant's post-1986 increase in symptoms, fusion surgery and current state of disability to any event or series of events other than those which occurred in his employment with American Can Company. Prior to the 1985 injury, he had been able to perform physical work with minimal restrictions. Subsequent to the 1985 injury, he became more restricted. The claimant's physical abilities are found to be essentially the same at the present time as they were when he returned to work in 1986, but the employer has not demonstrated any willingness to allow him to resume work in one of the positions which therapist Bower and Dr. Boulden have indicated were within the claimant's capabilities. Houston Johnson is a 41-year-old man with limited education and no demonstrated aptitude for educational pursuits. His work history is limited to physical labor. As indicated by Dr. Neff, his back is ruined (exhibit A, Page 5 pages 15 and 16). While it has been determined that he is physically capable of medium work, it is certain that he will experience extreme difficulty in obtaining replacement employment. His history of work place injuries and multiple back surgeries will likely weigh at least as heavily against him with other potential employers as it has with American Can. He will probably have difficulty finding any replacement employment and if he is eventually successful, the level of earnings will probably be substantially below that which he has experienced with American Can Company. There is, however, no evidence in the record to indicate that the claimant has made any significant search for replacement employment. American Can Company continues to carry him in its records as an employee, although he appears to be in an inactive status. The attempt to institute vocational assistance through Linda Olson-King was initiated too late to be of any significance. She agreed with therapist Bower that there were some positions with the employer which meet the claimant's physical restrictions. She stated that he did not have enough seniority to bid into those positions. The record contains no indication of which positions those might be, of the amount of seniority required to bid into them or of any efforts to obtain a mutual agreement to avoid the normal seniority and bidding requirements. It is noted that any collective bargaining agreement is the result of a mutual agreement. If an employer chooses to enter into a contract which does not permit it to return its injured employees to the work place, the employer is bound by the consequences of that decision. conclusions of law The liability issue in this case is not whether the employer is responsible, because it clearly is responsible. The only issue is whether the benefits should be paid by the employer directly based upon a post-April 1, 1987 injury or whether the benefits are payable by the employer's former insurance carrier, Wausau Insurance Company. It has been previously found that the 1974 and 1985 injuries produced a condition of weakness which made the claimant more susceptible to injury than what he otherwise would have been. His need for further surgery and current state of disability did not simply result from the 1985 injury. It was only after the claimant was required to perform activities which violated his physical activity restrictions that he became more symptomatic and required additional medical treatment. The condition is therefore one which falls into the category of aggravation of a preexisting condition. Aggravation of a preexisting condition is one form of compensable injury. 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 Page 6 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). This case therefore presents a new injury of November 30, 1987. The cumulative trauma rule is employed in arriving at the injury date. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). November 30, 1987 is the date that the continuous disability commenced. Since this has been determined to be a new injury, the proper file under which to proceed is number 872780. Since there has been a new injury, the review-reopening approach is not appropriate. For review-reopening to be appropriate, the causation should be the 1985 injury without any substantial new injury or aggravation. Such is not the situation in this case. It is therefore concluded that American Can Company, as a self-insured employer, is responsible for payment rather than Wausau Insurance Company. Since the matter is determined to be a new injury in the nature of an aggravation of a preexisting condition, the rate of compensation is $309.56 per week as stipulated, rather than $262.46 per week as was applicable for the 1985 injury. The extent of the healing period from the injury is established by stipulation to run from December 8, 1987 through September 25, 1989. The medical expenses are not in substantial dispute, other than as to the identify of the responsible payor. They are as follows: Iowa Lutheran Hospital $ 9,643.04 Des Moines Anesthesiologists 713.00 Central Iowa Pathologists 110.00 Total $10,466.04 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 v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). Industrial disability or loss of earning capacity is a concept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment Page 7 of physical capacity creates an inference of lessened earning capacity. The basic element to be determined, however, is the reduction in value of the general earning capacity of the person, rather than the loss of wages or earnings in a specific occupation. Post-injury earnings create a presumption of earning capacity. The earnings are not synonymous with earning capacity and the presumption may be rebutted by evidence showing the earnings to be an unreliable indicator. Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218 (1979); 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. In view of the claimant's medical condition of being capable of medium work and the lack of any showing that such work is not available to him, an award of permanent total disability compensation is not appropriate. His level of disability is, however, obviously quite high since even the employer, in whose service he was injured, has declined to make work available to him. Sunbeam Corp. v. Bates, 271 Ark. 385, 609 S.W.2d 102 (App. 1980); Army & Air Force Exch. Serv. v. Neuman, 278 F. Supp. 865 (W. D. La. 1967); 2 Larson Workmen's Compensation Law, section 57.61(b). Different individuals have differing earning capacities. The earning capacity of any individual is likely to fluctuate somewhat throughout the individual's lifetime due to any combination of a number of factors. Physical abilities change, educational levels change, experience and expertise change. When determining loss of earning capacity for purposes of making a workers' compensation award, the loss is measured from the earning capacity that existed immediately prior to the injury, rather than the earning capacity which might have existed at some previous point in time. In this case, the claimant's earning capacity had clearly been reduced by the 1974 and 1985 injuries. The amount by which it had been reduced from what it might have otherwise been cannot be mathematically determined through some formula which subtracts prior physical impairments or disability awards from 100 percent since to do so would assume that earning capacity never changes, other than as a result of injuries. As previously indicated, it can change based upon aging, education, increased experience, or even matters such as career field changes. The concept of apportionment of industrial disability is not particularly practical as is indicated by the fact that no apportionment has been made in the recent Iowa Supreme Court cases which have addressed the issue. Bearce v. FMC Corp., ___ N.W.2d ___ (Iowa 1991); Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984). The goal is to compensate for the loss which was actually sustained. That is best achieved by measuring the loss directly against the earning capacity that existed at the time of injury. The entitlement to recover for loss of earning capacity is measured by the loss that was Page 8 proximately caused by the work place injury. It is therefore determined that Houston Johnson experienced a 50 percent reduction in his earning capacity as a result of the November 30, 1987 injury. This entitles him to recover 250 weeks of permanent partial disability compensation under the provisions of Code section 85.34(2)(u). In this case, it was abundantly clear that American Can Company was the employer responsible for payment of weekly compensation to Houston Johnson and also for payment of his medical expenses and the resulting permanent partial disability. The only issue, as previously noted, was whether the employer was responsible for paying it directly as a self-insured employer, or whether the benefits were payable by its former compensation carrier, Wausau Insurance Companies. The claim was not fairly debatable. The law places the liability for payment on the employer. Iowa Code sections 85.1 and 85.3. The requirement of sections 87.1 and 87.11 for insurance or qualifying as a self-insured exist to ensure solvency. It does not alter the underlying liability. It has been previously held that a dispute between which of two subsequent insurance carriers is responsible for payment does not justify the failure to pay a claim. Denning v. Hyman Freightways, Inc., file number 751584 (Arb. Decn., May 23, 1989). The "fairly debatable" test which has been adopted by the agency applies to the merits of the claim, not to any dispute between insurance carriers. Kiner v. Reliance Ins. Co., 463 N.W.2d 9 (Iowa 1990); Seydel v. Univ. of Iowa Physical Plant, file number 818849 (App. Decn., November 1, 1989); Dolan v. Aid Ins. Co., 431 N.W.2d 790 (Iowa 1988); Anderson v. Continental Ins. Co., 271 N.W.2d 368 (Wisc. 1978). The claim for a penalty in this case is compelling. It is concluded that any failure to make timely payments would clearly be unreasonable. The amount of the penalty to be awarded is limited to 50 percent of whatever amount was unreasonably delayed or denied. The dispute between Wausau, the former carrier, and the employer, as a self-insured, is determined to have been bona fide and in good faith. That does not, however, excuse the failure to make timely payments. Neither party was compelled to make use of Code section 85.21 in order to avoid the potential for a penalty, but such was clearly available as a means of avoiding the risk of being assessed a penalty without giving up the ability to be reimbursed should the other be ultimately held responsible. It would not have been unreasonable to make payments at the rate of $262.46, the rate which would have been applicable if Wausau were responsible under a review-reopening theory. Claimant was being paid weekly benefits from Wausau Insurance Company based upon the settlement entered into for the 1985 injury with the last payment thereof having been made on January 4, 1989. Shortly after the termination of benefits by Wausau, the self-insured employer, acting Page 9 through its adjusting company Gallagher Bassett, commenced payments at the rate of $262.46 per week. Those payments have continued up to the time of hearing. It is therefore apparent that there has not been any point in time, other than for a few weeks when benefits were delayed in early 1989 when the payor changed, that the claimant did not receive weekly compensation benefits. If Wausau had been held liable, its payments, though termed permanent partial disability at the time they were paid, would have satisfied its obligation for additional healing period compensation. It would, of course, then have been responsible for additional permanent partial disability compensation. Wilson Food Corp. v. Cherry, 315 N.W.2d 756 (Iowa 1982). Claimant would not have been entitled to recover both permanent partial disability and healing period compensation at the same time based upon the same injury. Under all the circumstances present in this case, it is concluded that the claimant is not entitled to recover a penalty since there was no substantial amount of time when he was without weekly benefits and it was not unreasonable to consider the claim to be based upon the 1985 injury. While there is no record in the file of any order of the agency being entered pursuant to Code section 85.21, it is specifically concluded that the payment of weekly benefits voluntarily, whether or not it is pursuant to section 85.21, does not, under any circumstances, constitute an admission of liability. Iowa Code section 86.13(1); Iowa Code section 85.26(2). From the time claimant went off work in 1987, he was entitled to recover healing period compensation from the self-insured employer based upon the 1987 injury and also permanent partial disability compensation from Wausau Insurance Company based upon the 1985 injury. The healing period payable by the self-insured employer replaces the wages which claimant would have earned had he not been injured in 1987. If he had not been injured, he would have received wages and permanent partial disability compensation from the 1985 injury at the same time. There is no inconsistency which prevents an injured employee from receiving healing period compensation for a subsequent injury at the same time as he is receiving permanent partial disability compensation based upon a prior injury. order IT IS THEREFORE ORDERED that claimant receive nothing under his review-reopening claim based upon the 1985 injury in file number 802915. All of claimant's recovery awarded in this decision is based upon the November 30, 1987 injury in file number 872780. IT IS FURTHER ORDERED that American Can Company, the self-insured employer, pay Houston Johnson ninety-four (94) weeks of compensation for healing period at the stipulated rate of three hundred nine and 56/100 dollars ($309.56) per week payable commencing on December 8, 1987 as stipulated in the prehearing report. Page 10 IT IS FURTHER ORDERED that American Can Company, the self-insured employer, pay Houston Johnson two hundred fifty (250) weeks of compensation for permanent partial disability at the stipulated rate of three hundred nine and 56/100 dollars ($309.56) per week payable commencing September 26, 1989. IT IS FURTHER ORDERED that the self-insured employer is granted credit for the ninety-seven (97) weeks of compensation which it paid at the rate of two hundred sixty-two and 46/100 dollars ($262.46) per week. The difference in the rates which amounts to forty-seven and 10/100 dollars ($47.10) per week, shall be paid to the claimant in a lump sum together with interest pursuant to Iowa Code section 85.30 computed from the date each payment came due until the date of actual payment to the claimant. IT IS FURTHER ORDERED that American Can Company, the self-insured employer, pay the following medical expenses: Iowa Lutheran Hospital $ 9,643.04 Des Moines Anesthesiologists 713.00 Central Iowa Pathologists 110.00 Total $10,466.04 IT IS FURTHER ORDERED that American Can Company, the self-insured employer, not receive credit against the healing period or permanent partial disability awards made in this decision based upon the permanent partial disability compensation which was paid to the claimant by Wausau Insurance Company during the healing period in satisfaction of the prior settlement. IT IS FURTHER ORDERED that the costs of this action are assessed against American Can Company, the self-insured employer, pursuant to rule 343 IAC 4.33. IT IS FURTHER ORDERED that American Can Company, the self-insured employer, file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ______ day of ____________, 1991. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Steven C. Jayne Attorney at Law 5835 Grand Avenue Suite 201 Des Moines, Iowa 50312 Page 11 Mr. Harry W. Dahl Attorney at Law 974 73rd Street Suite 16 Des Moines, Iowa 50312 Mr. Marvin E. Duckworth Attorney at Law Suite 111, Terrace Center 2700 Grand Avenue Des Moines, Iowa 50312 Page 1 1702; 1802; 1803; 1806 1807; 2206; 2901; 2904 4000.2 Filed February 25, 1991 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : HOUSTON JOHNSON, : : File Nos. 802915 Claimant, : 872780 : vs. : A R B I T R A T I O N : AMERICAN CAN COMPANY, : A N D : Employer, : R E V I E W - Self-Insured, : : R E O P E N I N G and : : D E C I S I O N WAUSAU INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 2206; 2901; 2904 It was held that the proceeding was properly one in arbitration, rather than review-reopening, where the additional medical treatment, surgery and disability were attributed to aggravation of a preexisting condition which was caused by a prior work injury with the same employer, rather than the mere outgrowth or sequela of the original injury, in which case a review-reopening proceeding would have been appropriate. Between the two injuries, the employer ceased being insured and became self-insured. Self-insured employer held liable for all benefits. 4000.2 Where claimant received permanent partial disability compensation from the former insurance carrier while he was off work and then benefits were commenced by the self-insured employer, it was held that no penalty was warranted since the employee had been paid compensation while off work. The issue of whether the condition was a new injury or sequela of the prior injury was bona fide. If the case had been determined to properly be one in review-reopening, the payments paid would have satisfied the healing period obligation. Where impairment rating and activity restrictions were unchanged following the most recent surgery, the failure to voluntarily pay permanent Page 2 partial disability was held not to be unreasonable. 1702; 1803; 1806; 1807 Forty-one-year-old laborer who had not completed high school awarded 50 percent permanent partial disability where employer declined to make work available as had been done previously. It was held that permanent partial disability is based upon earning capacity as it existed immediately prior to injury. It is not to be computed by some formula in which the percentage from prior awards is deducted from 100 percent. The decision discusses how individual earning capacity fluctuates throughout an individual's lifetime. 1802; 1803 An injured worker cannot, based upon a single injury, receive both healing period and permanent partial disability at the same time. There is, however, no prohibition against receiving healing period from a recent injury while also receiving permanent partial disability from a prior injury. BEFORE THE IOWA INDUSTRIAL COMMISSIONER DARRELL E. RUZICKA, Claimant, File No. 872795 vs. A R B I T R A T I O N STEVE HENDERSHOT TRUCKING, D E C I S I O N INC., Employer, F I L E D and NOV 30 1989 ALLIED GROUP INSURANCE CO., INDUSTRIAL SERVICES Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Darrell E. Ruzicka against Steve Hendershot Trucking, Inc., and Allied Group Insurance Company. The case was heard and fully submitted on October 18, 1989 at Waterloo, Iowa. The record in the proceeding consists of testimony from Darrell E. Ruzicka and defendants' exhibit A. ISSUES Claimant alleges that he injured his left hand by getting a foreign body imbedded in it while performing the duties of his employment. The issues to be determined are whether claimant sustained an injury which arose out of and in the course of his employment, determination of claimant's entitlement to compensation for temporary total disability, healing period, and permanent partial disability, and determination of claimant's entitlement to section 85.27 benefits. The controlling issue in the case is whether the problem with claimant's left hand was proximately caused by his employment. SUMMARY OF THE EVIDENCE The following is a summary of evidence presented in this case. Only the evidence most pertinent to this decision is discussed, but all of the evidence received at the hearing was considered in arriving at this decision. Conclusions about what the evidence showed are inevitable with any summarization. The conclusions in the following summary should be considered to be preliminary findings of fact. Darrell E. Ruzicka was employed by Steve Hendershot Trucking, Inc., from February, 1985 until late 1988. His primary duty was driving a livestock truck in which he hauled both hogs and cattle. Part of his duties included cleaning out the truck as well as loading and unloading the livestock. Claimant was unable to identify any particular incident in which any foreign body had entered his left hand, but he stated that he began to notice a sore spot on the palm of his left hand, near his thumb, during the fall of 1987. Claimant stated that at that time he and his wife lived on an acreage where they had horses and chickens. The landlord had cattle which claimant fed. Claimant also stated that the home in which he lived had a woodburning furnace and that he cut all the wood for it. Claimant consulted Noel Robitaille, M.D., on January 13, 1988 for the sore. The records indicate that the area was incised, but that little was obtained from it. Claimant was started on antibiotics and directed to soak the hand. On February 5, 1988, claimant was again seen and then referred to P. Thomas McGarvey, M.D. On February 9, 1988, Dr. McGarvey made an incision in the sore, but did not find a foreign body. Claimant was continued on antibiotic medication (exhibit A, page 1). Claimant's care was transferred to James J. Mueller, M.D. A third incision of the infected area was performed. Dr. Mueller reported that a foreign body had been present in claimant's hand, although the body itself was not identified (exhibit A, page 18). The surgical pathology report found the tissues removed from claimant's hand to demonstrate acute and chronic inflammation and a foreign body granulomatous reaction (exhibit A part 2, page 4). Claimant complained that since the surgery, he has a restricted range of motion of the left thumb. Claimant expressed the belief that hog hairs to which he was exposed at work had entered his hand and caused the problem in his left hand. Claimant related that he was taken off work February 5, 1988 and released to return to work March 22, 1988. APPLICABLE LAW AND ANALYSIS Claimant has the burden of proving by a preponderance of the evidence that he received an injury which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also.Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The "arising out of" requirement is met by showing that a causal relationship exists between the employment and the injury. Sheerin v. Holin Co., 380 N.W.2d 415, 417 (Iowa 1986). "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). It is certainly possible, as claimant believes, that a hog hair or some other foreign body became lodged in claimant's hand while he was performing activities which were part of his employment duties. Claimant could not, however, identify any particular incident in which that had occurred. In view of the nature of claimant's work, such an incident would likely be so apparently minor at the time it occurred that it could quite likely go unnoticed until some subsequent time when a problem developed. It is also possible, however, that a foreign body could have entered claimant's hand under similar circumstances while claimant was feeding his landlord's cattle, cutting wood, or in any other number of ways which would be limited only by the imagination. Minor punctures, splinters, scrapes and abrasions are not uncommon occurrences and normally are shortly forgotten unless a problem develops. Claimant's case is based on the premise that the foreign body was a hog hair. There is no evidence in the record which supports that premise. The foreign body could have been a hog hair, a horse hair, or a hair from a cow. All three of those types of livestock can have coarse, bristly hair, although hog hair is generally more coarse than that from cattle or horses. The foreign body could have been a splinter. The simple fact of the matter is that there is no way of determining what the foreign body actually was. It could have been a fiber from a rope or a bristle from a brush or broom. It could have been any one of a multitude of things. Since claimant cannot demonstrate, beyond mere surmise, either that the foreign body became lodged in his hand while he was performing the duties of his employment or that the foreign body was a substance to which he was exposed exclusively, or even predominantly, through his employment, his claim must fail. It is therefore determined that Darrell E. Ruzicka has failed to prove by a preponderance of the evidence that he sustained an injury to his left hand which arose out of and in the course of his employment with Steve Hendershot Trucking, Inc. FINDINGS OF FACT 1. The evidence introduced in this case fails to show that it is probable, as opposed to being merely possible, that any foreign body became lodged in claimant's left hand while he was performing any activity related to his employment with Steve Hendershot Trucking, Inc. 2. Claimant has failed to prove that whatever foreign body was actually lodged in his left hand was something to which he was exposed as a result of his employment with Steve Hendershot Trucking, Inc. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. Claimant has failed to prove by a preponderance of the evidence that he sustained an injury which arose out of and in the course of his employment. 3. Claimant is not entitled to any recovery in this proceeding. ORDER IT IS THEREFORE ORDERED that claimant take nothing from this proceeding. IT IS FURTHER ORDERED that the costs of this action are assessed against claimant pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 30th day of November, 1989. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. W. H. Gilliam Attorney at Law 722 Water Street Second Floor Waterloo, Iowa 50703-4785 Mr. E. J. Giovannetti Attorney at Law Suite 111, Terrace Center 2700 Grand Avenue Des Moines, Iowa 50312 51402.30 Filed November 30, 1989 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER DARRELL E. RUZICKA, Claimant, vs. File No. 872795 STEVE HENDERSHOT TRUCKING, INC., A R B I T R A T I 0 N Employer, D E C I S I 0 N and ALLIED GROUP INSURANCE CO., Insurance Carrier, Defendants. 51402.30 Claimant had a foreign body in his left hand. Claimant could not identify any particular incident in which a foreign body had entered his hand. In the course of medical treatment, the foreign body could not be identified as being a substance to which claimant was exposed through his employment. Claimant failed to prove his injury arose out of and in the course of his employment. Page 1 before the iowa industrial commissioner ____________________________________________________________ : CARL KEITH KESSLER, : : Claimant, : : vs. : : File No. 872798 WATERTOWER PAINT & REPAIR CO. : INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : TRAVELERS INSURANCE and : WAUSAU INSURANCE COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Carl Keith Kessler, claimant, against Watertower Paint and Repair Co., Inc., employer, and Travelers Insurance Company and Wausau Insurance Companies, insurance carriers, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained on June 12, 1986. This matter came on for hearing before the undersigned deputy industrial commissioner on April 16, 1991, in Mason City, Iowa. The matter was considered fully submitted at the close of the hearing. The record in this case consists of the testimony of claimant, Gerald Kessler, Marcella Kessler, and Oris Moen; claimant's exhibits 1-12A; and defendants' exhibits 13-23. issues Pursuant to the prehearing report and order submitted and approved on April 16, 1991, the following issues are presented for resolution: 1. Whether claimant sustained an injury on June 12, 1986 which arose out of and in the course of employment with employer; 2. Whether claimant's alleged injury is the cause of temporary and permanent disability and, if so, the extent thereof; and 3. The appropriate rate of compensation. Page 2 findings of fact The undersigned has carefully considered all the testimony given at the hearing, the arguments made, and the evidence contained in the list of exhibits, and makes the following findings: Claimant was born on January 7, 1955, and completed the twelfth grade of school in May 1973. Claimant served in the United States Navy for two years as a boiler technician. He completed a nine month course in welding at Northeast Iowa Technical School in 1980. He worked as a tree trimmer for Kessler's Tree Service and as a construction laborer for F. A. Moser and Associates. In addition, he worked as a heat treater, wheel braider and bridge construction laborer before going to work for Watertower Paint & Repair Co. sometime in 1981-1982. At Watertower, he did steel work, welding, cutting and painting. A review of the pertinent medical evidence reveals that claimant was admitted to St. Paul Ramsey Medical Center on June 12, 1986 for treatment of burns over 13 percent of his body. On that day, he was working inside a water tower cleaning a vat of organic solvent. Apparently, he slipped and fell and became disoriented. Gerald Kessler, claimant's brother and foreman at the time, testified that it took about three hours to get him out of the tank. The hospital report indicates that the solvent ingredients were 29 percent ethylene, 42 percent methylene chloride and 18 percent perchlorephylene. Claimant was transferred to the burn unit. A major portion of the back of his right leg, both buttocks and a small portion of the postural left leg had been burned. He was started on oxygen and high fluid volumes to maintain good diuresis and to avoid any possible nephrotoxicity due to fumes. He complained of nausea and liver function tests were obtained which were normal except for an elevated transaminase. Approximately one week after the injury, claimant began complaining of lower abdominal pain and began passing bloody mucous through the rectum. He underwent proctosigmoidoscopy which was normal except for an area of edematous, hemorrhagic mucosa at 15 cm. from the anal verge. A barium enema was obtained the next day and this showed segmental sigmoid colitis which was an isolated area. At the time of discharge on June 23, 1986, the rectal bleeding had resolved spontaneously and his burns were healing well (Exhibit 3). Claimant was seen by David H. Ahrenholz, M.D., assistant director of the burn unit at Ramsey on July 7, 1986 for follow-up evaluation. Progress notes state that "these areas have healed and have virtually no trace of hypertropic scar. The patient however is quite weak and irritable at home. His diarrhea remains intermittent....However based on the healing of his wounds it appears he could be released to light duty work." On August 6, 1986, claimant underwent a biopsy of the sigmoid colon which was negative for malignancy and/or inflammation (Exs. 4-6). On April 8, 1987, a biopsy of Page 3 claimant's colon was taken and revealed colonic mucosa showing periglandular edema (Ex. 5). On March 17, 1988, claimant was seen by Steven Fisher, M.D., at the request of Wausau Insurance Companies for a permanent disability evaluation. After reviewing the claimant's medical history and conducting a physical examination, Dr. Fisher concluded as follows: I think that this man has no disability as it relates to the skin and burns of the skin itself. I feel that he has a significant problem with his colon and which was at least exacerbated by (if not caused) by his accident and should be rated according to 8MCAR1.9021C Class 3. He does have objective evidence of colonic disease and has moderate to severe exacerbations with disturbances of bowel habit. He has periodic, sometimes continual pain. He has restrictions of his activities and needs to always be fairly near a bathroom. He needs to take sulfa drugs on a continuous basis. Therefore, I feel that Class 3 most clearly classifies his problem and this class has attached to it a 30% whole person disability. (Ex. 3) On April 21, 1988, claimant was admitted to the emergency room at Central Community Hospital for evaluation of bloody stools. A barium enema was performed which was negative (Ex. 6). The record is silent as to any medical care or treatment after April 21, 1988 until April 17, 1990, when claimant's attorney referred him to W. H. Verduyn, M.D., medical director of Central Nervous System Management & Rehabilitation, for evaluation. After reviewing claimant's medical history and noting his complaints, Dr. Verduyn performed a physical examination focusing primarily on claimant's extremities, and noted normal findings. He gave no neurological or psychiatric diagnoses and recommended a neuropsych evaluation to delineate some of his complaints (Ex. 7). On February 27, 1991, claimant presented to the Center For Digestive Diseases at the University of Iowa Medical Center at the request of K. E. Zichal, claimant's treating physician. Claimant related a history of intermittent abdominal cramping and diarrhea and periodic bloody bowel movements. He stated that at this time he has approximately one bloody bowel movement every one to two months. He also stated that his symptoms were much Page 4 worse after 1987 and 1988 and subsequently improved to the present state. Gary Varilek, M.D., reported as follows: Based on his last evaluation in January, 1990, there is no evidence of ongoing colitis. His symptoms are not consistent with an active colitis. The episodes of blood are more suggestive of a hemorrhoidal etiology. The cramping that he experiences may reflect a motility disturbance which would easily be exacerbated by emotional distress. The etiology of this motility disturbance may be idiopathic meaning that there is no known etiology or could potentially be related to the solvent injury but there is no way to prove or disprove this. (Ex. 8) In conclusion, Dr. Varilek stated that: "His symptoms are minimal and should not effect his ability to work. Therefore, I feel that his GI symptoms are not significant enough to warrant assigning a level of disability." (Ex. 8) Claimant testified to numerous medical problems since the accident on June 12, 1986. In addition to bowel problems, he alleged a short term memory loss and an inability to concentrate. His wife and brother corroborated his testimony as to these complaints. He testified to a low tolerance to paint fumes and getting a rash over his body any time he is around paint. He stated he returned to work at Watertower in July 1986 doing light duty work. He avoided working around paint, solvents, chemicals or dust and spent the rest of the summer driving equipment. There was the usual fall layoff and he applied for and received unemployment compensation benefits. In the spring of 1987, he returned to work for Watertower and worked with his brother's crew doing steel and repair work. Most of the work he performed was on the ground and accessible to a bathroom which was located in a nearby trailer. Thereafter, the work cycle was repeated, and in the spring of 1989, the president of the company made him a job foreman. Oris Moen, vice president of Watertower, testified at the hearing. He stated that claimant has been a good employee with the company and was promoted to foreman on the basis of merit. He stated that when claimant was hurt in June 1986, he was making $9.40 per hour and now makes $12.60 per hour as a foreman. He testified that the company made no accommodations for claimant because of any medical problems. conclusions of law Claimant has the burden of proving by a preponderance of the evidence that he received an injury on June 12, 1986 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Page 5 An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe, 246 Iowa 402, 68 N.W.2d 63. The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63. "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283; Musselman, 261 Iowa 352, 154 N.W.2d 128. The supreme court of Iowa in Almquist v. Shenandoah Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) discussed the definition of personal injury in workers' compensation cases as follows: While a personal injury does not include an occupa tional disease under the Workmen's Compensation Act, yet an injury to the health may be a personal injury. [Citations omitted.] Likewise a personal injury includes a disease resulting from an injury....The result of changes in the human body incident to the general processes of nature do not amount to a personal injury. This must follow, even though such natural change may come about because the life has been devoted to labor and hard work. Such result of those natural changes does not constitute a personal injury even though the same brings about impairment of health or the total or partial incapacity of the functions of the human body. .... A personal injury, contemplated by the Workmen's Compensation Law, obviously means an injury to the body, the impairment of health, or a disease, not excluded by the act, which comes about, not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee. [Citations omitted.] The injury to the human body here contemplated must be something, whether an accident or Page 6 not, that acts extraneously to the natural processes of nature, and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. Claimant has established a work injury. The record clearly demonstrates that on June 12, 1986, claimant was at work cleaning a vat of organic solvent when he slipped and fell and became disoriented. When he was taken outside of the water tank, his clothes were stripped and it was noted that he had major burns on his right leg, both buttocks and a small portion of his left leg. He was treated at St. Paul Ramsey Medical Center in St. Paul, Minnesota. Therefore, claimant has demonstrated by a preponderance of the evidence that he sustained an injury on June 12, 1986 which arose out of and in the course of his employment with Watertower Paint & Repair Co. The next issue to be resolved is whether a causal relationship exists between claimant's work injury and his current complaints. The claimant has the burden of proving by a preponderance of the evidence that the injury of June 12, 1986 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, 261 Iowa 352, 154 N.W.2d 128. As to claimant's skin burns, the medical evidence clearly demonstrates that such were caused by the injury on June 12, 1986. Claimant was off work from June 12, 1986 through July 16, 1986 recuperating. He returned to full-time duty with Watertower on July 17, 1986. Regarding claimant's gastrointestinal problems, Dr. Fisher reported that "I feel that he has a significant problem with his colon and which at least exacerbated by (if not caused) by his accident...." Based on claimant's complaints, Dr. Fisher stated he has restrictions of his Page 7 activities but did not enumerate or specify the restrictions (Ex. 3). Dr. Verduyn did not relate claimant's gastrointestinal problems to his injury of June 12, 1986 (Ex. 7). Dr. Varilek, a gastroenterologist, at the University of Iowa Medical Center, stated that "Mr. Kessler developed a rather acute colitis during his hospitalization. This colitis may have been infectious, or may have been secondary to the solvent." He did not relate claimant's colitis or cramping specifically to the injury of June 12, 1986. Considering the evidence presented, the undersigned con cludes that the greater weight of the evidence does not establish a causal connection between claimant's work injury of June 12, 1986 and his gastrointestinal problems. While physicians who have treated and/or examined claimant state that it is possible that such problems were caused by the injury, claimant must prove by a preponderance of the evidence a causal connection between the injury and the disability on which he now bases his claim. This requires expert medical opinion. A possibility is insufficient, a probability is necessary. Dr. Fisher, without explanation, reported that claimant's colon problem was at least exacer bated by (if not caused) by his accident. In so concluding, he gave him a 30 percent whole person disability impairment rating. Since it is found that claimant's gastrointestinal problem is not causally related to his injury, this rating is not entitled to significant weight and consideration. Dr. Varilek, a gastroenterologist, found claimant's symptoms to be so minimal and insignificant as to not warrant assigning a level of disability. Because of his expertise in dealing with such problems, Dr. Varilek's assessment is accorded more weight and consideration. As to his complaints of short-term memory loss and other psychological symptoms, claimant has produced no expert testimony or medical evidence in this regard. Dr. Verduyn, in listing five diagnoses is his report of April 17, 1990, only restated claimant's complaints. He made no psychological diagnoses of his own and recommended a neuropsych evaluation which, according to claimant, was never performed. Therefore, claimant has not demonstrated by a preponderance of the evidence that his short-term memory loss or other emotional symptoms are causally related to his injury of June 12, 1986. Claimant requests reimbursement for a medical evaluation under Iowa Code section 85.39. Iowa Code section 85.39 provides, in part: If an evaluation of permanent disability has been made by a physician retained by the employer and the employee believes this evaluation to be too low, the employee shall, upon application to the commissioner and upon delivery of a copy of the application to the employer and its insurance carrier, be reimbursed by the employer the reasonable fee for a subsequent examination by a physician of the employee's own choice, and Page 8 reasonably necessary transportation expenses incurred for the examination. The physician chosen by the employee has the right to confer with and obtain from the employer-retained physician sufficient history of the injury to make a proper examination. Claimant is entitled to be reimbursed $450 for Dr. Verduyn's examination and reasonable necessary transportation expenses incurred for the examination. The final issue for resolution is claimant's rate of compensation. There is no dispute that claimant worked 11 weeks prior to his injury on June 12, 1986 and his gross income during that time was $6,009.50. At issue is whether claimant's gross wages should be divided by 11 or 13 weeks. If 11 weeks, the parties stipulate to a rate of $335.79; and, if 13 weeks, the parties stipulate to a rate of $291.75. Claimant's work at Watertower & Repair Co., Inc., is a seasonal job. Under Iowa Code section 85.36(9), in occupations which are exclusively seasonal, weekly earnings shall be taken to be one-fiftieth of the total earnings which the employee has earned from all occupations during the twelve calendar months immediately preceding the injury. In the absence of this information, Iowa Code section 85.36(6) controls. Section 85.36(6) provides that weekly earnings shall be computed by dividing by thirteen the earnings, not including overtime or premium pay, earned in the last completed period of thirteen consecutive calendar weeks immediately preceding the injury. In this case, claimant worked eleven weeks prior to his injury. Iowa Code section 85.36(7) states that: In the case of an employee who has been in the employ of an employer less than thirteen calendar weeks immediately preceding the injury, the employee's weekly earnings shall be computed under subsection 6, taking the earnings, not including overtime or premium pay, for such purposes to be the amount the employee would have earned had the employee been so employed by the employer the full thirteen calendar weeks immediately preceding the injury and had worked, when work was available to other employees in a similar occupation. Claimant's gross wages would usually be divided by thirteen weeks, however, in this case, claimant only had eleven weeks of earnings prior to his injury. His earnings are demonstrative of what he would have earned had he been employed a full thirteen weeks prior to the injury. Therefore, claimant's gross wages of $6,009.50 should be divided by the eleven weeks immediately preceding the injury. In conclusion, the undersigned finds that the claimant is entitled to temporary total disability from June 12, 1986 through July 16, 1986, at the stipulated rate of $335.79 and defendants are entitled to a credit for benefits paid in the Page 9 amount of $1,504.80. order THEREFORE, it is ordered: That defendants pay to claimant five (5) weeks of temporary total disability benefits at the stipulated rate of three hundred thirty-five and 79/100 dollars ($335.79) per week for the period from June 12, 1986 through July 16, 1986. That defendants pay four hundred fifty dollars ($450) for an independent medical examination conducted by Dr. Verduyn in April 1990 and for mileage expenses incurred for the examination. That defendants receive credit for benefits previously paid in the amount of one thousand five hundred four and 80/100 dollars ($1,504.80). That defendants pay all costs pursuant to rule 343 IAC 4.33. That defendants pay accrued amounts in a lump sum. That defendants pay interest pursuant to Iowa Code section 85.30. That defendants file claim activity reports as required by the agency. Signed and filed this ____ day of May, 1991. ______________________________ JEAN M. INGRASSIA DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Michael J Coyle Attorney at Law 200 Security Bldg Dubuque IA 52001 Mr C Bradley Price Mr Mark A Wilson Attorneys at Law 30 4th St NW P O Box 1953 Mason City IA 50401 5-1108; 1801; 3002 Filed May 6, 1991 Jean M. Ingrassia before the iowa industrial commissioner ____________________________________________________________ : CARL KEITH KESSLER, : : Claimant, : : vs. : : File No. 872798 WATERTOWER PAINT & REPAIR CO. : INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : TRAVELERS INSURANCE and : WAUSAU INSURANCE COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1108; 1801 Claimant was cleaning a vat of organic solvents inside a water tower and fell and incurred burns over 13 percent of his body. He was hospitalized and treated in the burn unit from June 12, 1986 through June 23, 1986. On July 7, 1986, he was released for light duty work with no disability to the skin and burns of the skin. Claimant developed intermittent abdominal cramping, diarrhea, periodic bloody bowel movements and memory problems which he alleges are causally related to his injury on June 12, 1986. No physician who treated and/or examined claimant related his gastrointestinal or memory problems to the work injury. Claimant awarded five weeks of temporary total disability benefits. 3002 Parties dispute calculations of weekly benefit rate. Claimant is a seasonal employee. Parties did not provide evidence of claimant's total earnings during the twelve calendar months immediately preceding the injury as required by section 85.36(9). Therefore, pursuant to sections 85.36(6) and 85.36(7), claimant's eleven weeks of earnings immediately preceding his injury are demonstrative of what he would have earned had he been employed a full thirteen weeks prior to the injury and his gross earnings should be divided by eleven rather than thirteen weeks.