Page 1 before the iowa industrial commissioner ____________________________________________________________ : ROBERT LEE COLLINS, : : Claimant, : : vs. : : File No. 873651 HAWKEYE MOVING & STORAGE, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in arbitration upon claimant's petition filed February 15, 1989. Claimant sustained a work injury to his left shoulder either of a cumulative nature or following a traumatic incident while moving office furniture in the course of his duties as a driver/laborer. He now seeks benefits under the Iowa Workers' Compensation Act from his employer, Hawkeye Moving & Storage ("Hawkeye"), and its insurance carrier, Liberty Mutual Insurance Company. Hearing on the arbitration petition was had in Ottumwa, Iowa, on March 28, 1990. The record consists of claimant's testimony, joint exhibits 1 through 35, defendants' exhibits 1 through 4, and claimant's exhibits 1 and 2. issues Pursuant to the prehearing report, the parties have stipulated: that claimant sustained an injury arising out of and in the course of his employment with Hawkeye Moving & Storage ("Hawkeye") on December 3, 1987; that defendants have paid claimant's entitlement to compensation for temporary total disability or healing period (45 weeks from December 23, 1987 through November 1, 1988); that the appropriate rate of weekly benefits is $215.56; that medical benefits are no longer in dispute; that defendants are entitled to credit for 95 weeks of compensation paid at the stipulated rate prior to hearing. Issues presented for resolution include: whether the work injury caused temporary or permanent disability and the extent and nature of the latter; whether penalty benefits should be assessed under Iowa Code section 86.13. findings of fact Page 2 The undersigned deputy, having heard the testimony and considered all of the evidence, finds: Claimant was born on April 3, 1941 and was 48 years of age at hearing. He is right-handed. He attended the seventh and some of the eighth grade. Except for several months of training in hydraulics some 15 years ago, he has developed no skills through on-the-job training, nor has he been certified in any trade, nor has he earned a General Equivalency Diploma. Claimant's work history has primarily been as a furniture mover with some four companies, including Hawkeye. He has also worked as a roofer, in a warehouse, and as a laborer in street and sewer construction work. Beginning approximately 1970 or 1972, claimant worked as a mover for a predecessor employer--Mayflower--and for Hawkeye since about 1985. Claimant's medical history includes a number of problems unrelated to the work injury, including a history of heart attacks and back trouble. In addition, he has a history of left shoulder complaints. Claimant has been treated since April 1980 by Jack Brindley, M.D., who testified by deposition taken May 22, 1989. Dr. Brindley is a board-certified orthopaedic surgeon. His records reflect that claimant complained of soreness in both shoulders and elbows on July 20, 1981 and was treated with an anti-inflammatory agent. Claimant also complained of vague symptoms of aching in the shoulders and elbows on March 10, 1982. Claimant had other complaints of the right shoulder, but next complained of left shoulder difficulties on August 31, 1987, three months before the stipulated work injury. Dr. Brindley's impression at that time was of subacromial bursitis of the left shoulder. On December 3, 1987, claimant was engaged in moving file cabinets when his left shoulder began to hurt as though it were "on fire." In his deposition testimony of October 3, 1989, claimant falsely stated that he had not had pain in that shoulder for some 4-5 years. In any event, claimant continued to work until seeing Dr. Brindley some 20 days later on December 23. Claimant did not tell Dr. Brindley of the alleged work injury (his testimony to the contrary lacks credibility), but the doctor wrote that "this has just been coming on." Claimant was initially treated conservatively based on an impression of subacromial impingement syndrome, arthroscopic surgery eventually being performed on March 16, 1988. Post-operative diagnosis was of subacromial impingement syndrome with bucket handle tear of the labrum and disruptment of the anterior inferior and middle glenohumeral ligaments and some rotator cuff roughness. Subsequently, and after further consultation with Scott B. Neff, D.O., claimant underwent acromioplasty of the left shoulder on May 25, 1988, again at Dr. Brindley's hands. Dr. Brindley's operative report reflects that the anterior Page 3 portion of the acromion was removed and the underedge of that bone burred back for approximately an inch using a power burr and the distal end of the clavicle was excised. Clearly, the operative procedure extended beyond the arm into claimant's body. In his deposition testimony, Dr. Brindley indicated that the bucket tear, disruptment of ligaments or rotator cuff roughness could have come from a specific injury or simply wear and tear. Nonetheless, Dr. Brindley concluded that claimant's injury was work related in that he worked for a moving company and did a lot of heavy lifting in awkward positions which contributed to the problem. On October 5, 1988, Dr. Brindley released claimant to return to light-duty work effective October 10 with a 50-pound lifting restriction. However, Hawkeye was unwilling or unable to return claimant to work with those restrictions. Dr. Brindley determined on November 2, 1988, that claimant had reached his maximum recuperation from surgery and rated his impairment at 20 percent of the upper extremity. Dr. Brindley agreed that the injury was actually to the shoulder, but it was rated as an upper extremity impairment for purposes of AMA and orthopaedic guidelines. Permanent restrictions were against lifting in excess of 50 pounds or overhead. A functional capacity evaluation was also performed by Thomas W. Bower, L.P.T., on October 18, 1988. Mr. Bower considered the test valid and concluded that claimant was unable to lift much more than 37 pounds maximum, and certainly would have problems with that weight on a repetitious basis. It was uncertain whether that strength could be improved given claimant's pathology. In a subsequent letter dated February 19, 1990, Dr. Brindley concurred with Bower's evaluation and felt "that he should not be able to lift over 37 pounds maximum and could no do frequent lifting of that particular weight." The record does not disclose whether Dr. Brindley had any further reason for lowering his weight restriction other than Bower's testing. Notes prepared by Donald W. Blair, M.D., on December 14, 1988 agreed that Dr. Brindley's 20 percent impairment rating was reasonable. Of interest in assessing claimant's credibility is Dr. Brindley's chart note of December 5, 1988: Patient called and thought that maybe he could get his knee taken care of if workman's [sic] comp would pay for it. He thinks that he probably did it while working but he can't remember the exact incident. He did slip on a ladder and he did alot [sic] of squatting and climbing stairs in his work. He is going to continue working on seeing if he can't get some insurance for this. Page 4 Accordingly, it seems a reasonable inference that claimant is willing to claim very questionable work injuries for compensation purposes. Defendants have pointed out the long-standing nature of claimant's shoulder complaints. Of significance is Dr. Brindley's testimony that claimant did not show a loss of range of motion in the left shoulder in 1981 or 1982, but did in 1987 and thereafter. Since his surgery, claimant worked in freight delivery for only two days, for a roofing company for four days (he was unable to tear off shingles), but intended to take further employment with that business in the summer of 1990 operating a tar "cooker," worked for a moving company for two days before being let go, began training as a bus driver, but left during training, and has worked spot jobs such as lawn mowing and the like. No further surgery is anticipated. Claimant states his arm and shoulder are now much better, but he complains of some numbness and intermittent pain which he demonstrated as being above the tip or point of the shoulder and occurring when he brings the arm across his body, drives or attempts to lift on that side. conclusions of law The parties have stipulated that claimant sustained a work injury as per his allegations. However, they dispute whether that injury caused permanent or temporary disability. The supreme court of Iowa in Almquist v. Shenandoah Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) discussed the definition of personal injury in workers' compensation cases as follows: While a personal injury does not include an occupational disease under the Workmen's Compensation Act, yet an injury to the health may be a personal injury. [Citations omitted.] Likewise a personal injury includes a disease resulting from an injury....The result of changes in the human body incident to the general processes of nature do not amount to a personal injury. This must follow, even though such natural change may come about because the life has been devoted to labor and hard work. Such result of those natural changes does not constitute a personal injury even though the same brings about impairment of health or the total or partial incapacity of the functions of the human body. .... A personal injury, contemplated by the Workmen's Compensation Law, obviously means an injury to the body, the impairment of health, or a disease, not excluded by the act, which comes about, not through the Page 5 natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee. [Citations omitted.] The injury to the human body here contemplated must be something, whether an accident or not, that acts extraneously to the natural processes of nature, and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. The claimant has the burden of proving by a preponderance of the evidence that the injury of December 3, 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 Hosp., 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. Cent. Tel. 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). The only expert testimony in the record is that claimant's injury and resultant surgery was caused by his employment. Although Dr. Brindley was not aware of the claimed traumatic incident on December 3 until long after the fact, his deposition testimony indicated that the heavy nature of work as a furniture mover caused a cumulative deterioration of the shoulder joint. Even given claimant's lack of credibility, he has met his burden of proof in establishing a causal relationship to both temporary and permanent disability. Under Iowa Code section 85.34(1), healing period is Page 6 compensable beginning on the date of injury and until the employee has returned to work, it is medically indicated that significant improvement from the injury is not anticipated, or until the employee is medically capable of returning to substantially similar employment, whichever first occurs. Claimant was off work from December 23, 1987. Although he was released to return to light-duty work effective October 10, 1988, he was not accepted back due to his medical restrictions. Dr. Brindley has indicated that claimant will never be medically capable of returning to substantially similar employment. Therefore, the healing period must end at the date it was medically indicated that significant improvement from the injury is not anticipated, or November 2, 1988. Claimant is thus entitled to 45 weeks of healing period benefits, pursuant to the parties' stipulation. The surgical treatment of claimant's shoulder extended beyond the arm into the body as a whole. Claimant's remaining symptoms include a loss of his range of motion of the shoulder and pain in the body. His injury is to the body as a whole and not merely the arm and must be compensated industrially rather than as a scheduled member injury. Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986); Roach v. Firestone Tire & Rubber Co., file number 806034 (App. Decn., August 24, 1989). 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 Page 7 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 upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial dis ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985). Given claimant's seventh grade education, his demeanor at hearing suggesting that he is of average or below average intelligence, and his work history limited largely to heavy furniture moving and other manual employment, his industrial disability is significant. His 37-pound lifting restriction will bar him from most of the jobs he has held in the past. Claimant is 48 years old and in his prime earning years. Significant retraining at this point seems questionable at best given claimant's educational background. Defendants have failed to provide him further work or even to offer vocational rehabilitation, factors that increase industrial disability. Although claimant has other physical defects, it does not appear of record that he labors under corresponding medical restrictions. Considering these factors in specific and the record in general, it is held that claimant has sustained an industrial disability equivalent to 45 percent of the body as a whole, or 225 weeks. Claimant also seeks penalty benefits under Iowa Code section 86.13, which permits an award of 50 percent of benefits that are unreasonably delayed or denied. In this case, defendants have conceded that claimant sustained an injury arising out of and in the course of employment. However, given that claimant complained of a shoulder problem diagnosed as bursitis only months before the injury, that he delayed 20 days in seeking medical treatment and even then did not at first speak of a work injury, and given further that claimant lacks credibility and appears amendable to manufacturing work injuries in a quest for benefits, this claim is "fairly debatable" and penalty benefits are inappropriate. Dodd v. Oscar Mayer Foods Corp., file number 724378 (Penalty Decn., April 27, 1989). order Page 8 THEREFORE, IT IS ORDERED: Defendants shall pay unto claimant forty-five (45) weeks of healing period benefits commencing December 23, 1987 at the stipulated rate of two hundred fifteen and 56/100 dollars ($215.56) per week and totalling nine thousand seven hundred and 20/100 dollars ($9,700.20). Defendants shall pay unto claimant two hundred twenty-five (225) weeks of permanent partial disability benefits at the stipulated rate of two hundred fifteen and 56/100 dollars ($215.56) per week commencing November 3, 1988 and totalling forty-eight thousand five hundred one and 00/100 dollars ($48,501.00). Defendants shall have credit for all payments made voluntarily prior to hearing. All accrued benefits shall be paid in a lump sum with interest pursuant to Iowa Code section 85.30. The costs of this action shall be assessed to defendants pursuant to 343 IAC 4.33. Defendants shall file claim activity reports as requested by this agency pursuant to 343 IAC 3.1. Signed and filed this ______ day of ____________, 1990. ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. H. Edwin Detlie Attorney at Law 114 North Market Street Ottumwa, Iowa 52501 Mr. Walter F. Johnson Attorney at Law 111 West Second Street P.O. Box 716 Ottumwa, Iowa 52501 5-1803; 1803.1; 4000.2 Filed December 11, 1990 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : ROBERT LEE COLLINS, : : Claimant, : : vs. : : File No. 873651 HAWKEYE MOVING & STORAGE, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 5-1803; 1803.1 Shoulder injury held compensable industrially. Forty-eight-year-old claimant with seventh grade education and work history as furniture mover and laborer awarded 45 percent body as a whole based on 37-pound lifting restriction. 4000.2 Where claimant suffered shoulder problems several months before injury, did not see physician for 20 days after injury, did not give initial history of work injury and was prone to inventing workers' compensation claims, refusal to pay benefits was fairly debatable and no penalty was imposed. Page 1 5-1801;5-1803;5-2401; 5-2503;5-2802;5-2906 Filed July 9, 1991 ELIZABETH A. NELSON before the iowa industrial commissioner ____________________________________________________________ : CARL ROBERT HENDRIXSON, : : Claimant, : : vs. : : File No. 873889 ERICKSON DISPLAYS, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1801 Claimant was successful in showing that he suffered a temporary total disability as a result of a lifting incident at work. Claimant was released to return to work but quit before the date of his actual release. Claimant was awarded temporary total disability for the time he was off work in February of 1989. 5-1803 Claimant failed to prove that he had sustained any permanent partial disability. Subsequent employment and an automobile accident resulted in claimant's continuing problems with his back rather than the injury sustained with the employer here. 5-2401 The employer had actual knowledge of the injury within the 90 day time period and as a result, claimant satisfied the notice requirement of Iowa Code section 85.23. 5-2503 Claimant was not awarded medical benefits for visits to unauthorized doctors or for unauthorized medications. 5-2802 There was sufficient evidence in the record to support a finding that claimant had been injured on the job, even though he did not report the injury until 60 days after its Page 2 occurrence. Defendants' doctor found evidence of a back sprain. 5-2906 Defendants renewed their objection to the live testimony of a doctor who had been listed on the witness list as testifying by report. The objection was not well founded since defendants had known that claimant's doctor was going to testify as to permanency. The fact that the doctor testified live did not deprive defendants of any of their rights to adequately cross examine the doctor and test the sufficiency of his rating. The objection was overruled. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DOUGLAS AUTEN, Claimant, File No. 873898 vs. A P P E A L THE CELOTEX CORPORATION, D E C I S I O N Employer, Self-Insured, Defendant. ____________________________________________________________ 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 Those portions of the proposed agency decision pertaining to issues not raised on appeal are adopted as a part of this appeal decision. The issues raised on appeal are: Whether the deputy erred in finding that the claimant has sustained a body as a whole injury and whether the deputy erred in determining that the claimant is permanently and totally disabled relating to his arm injury of May 6, 1987. FINDINGS OF FACT The findings of fact contained in the proposed agency decision filed January 22, 1992 are adopted as set forth below. Segments designated by asterisks (*****) indicate portions of the language from the proposed agency decision that have been intentionally deleted and do not form a part of this final agency decision. ***** Claimant worked for Celotex from May 1959 until June 2, 1989. During his last nine years, claimant was assigned to a janitorial position. Claimant bid for and received this job following work injuries in 1977 and 1982 to his neck and right arm. Work restrictions imposed prior to the work injury herein prohibited lifting more than 20 pounds, no heavy manual labor and no prolonged standing, sitting or walking without ability to change positions. The janitorial job required claimant to empty wastebaskets, clean rest rooms, sweep floors, refill dispensers, etc., including lifting over ten pounds and overhead work with his arms and hands. Claimant was able to perform this work except for mopping floors. To his knowledge, claimant was only told by his physicians not to use an electric floor buffer or to mop the floors. This finding is based upon claimant's testimony and that of fellow employee, Dan Brown. Page 2 Claimant earned $9.40 per hour plus overtime work in this job at the time of the alleged injury herein. Claimant was laid off in June 1989 because another employee bumped him from the janitor job under labor contract seniority rules and no other position could be found at Celotex within the most recent physician imposed work restrictions against lifting over 10 pounds and no overhead work following the work injury herein. On or about May 4, 1987, claimant injured his right shoulder while pushing and pulling in an attempt to remove hoses from a storage hanger. Claimant said that he felt something tear in his shoulder. After reporting the incident to his supervisor, claimant was referred to the company doctor, R. Woodard, M.D. Claimant continued to work over the next several weeks and was eventually referred to the Mayo Clinic in Rochester, Minnesota, who had treated claimant on previous occasions. At the Mayo Clinic, claimant was treated by Arlen Hanssen M.D., an orthopedic surgeon. When tests confirmed a rotator cuff tear, claimant underwent corrective surgery including an anterior acromioplasty in September 1987. In April 1988 both Dr. Hanssen and another orthopedic surgeon retained by defendant to treat claimant, Robert Weatherwax, M.D., reported that claimant sufficiently recovered from his injury and surgery and released claimant to return to work. Claimant then returned to work as a janitor on April 4, 1988. As a result of the work injury of May 4, 1987, claimant has an additional nine percent permanent partial impairment to the body as a whole. This injury clearly extended beyond the arm or head of the humerus and into the parts of the shoulder joint which combine together to form the socket of the arm/shoulder ball and socket joint. Also, as a result of this work injury, claimant 's restrictions worsened to the extent that physicians recommended against lifting over 10 pounds with no overhead lifting. Unknown to claimant at the time, Dr. Weatherwax had imposed these new restrictions in November 1988. In his deposition, Dr. Hanssen agrees with these restrictions today. The causal connection finding was based primarily upon the views of the primary treating physician, Dr Hanssen. Contrary views contained in the evidence from one time evaluators or others who did not perform the surgery on the right shoulder are rejected as not convincing. Dr. Hanssen admitted that claimant suffers from a degenerative condition of the shoulder which is unrelated to his employment at Celotex but that the torn rotator cuff combined with that prior condition to precipitate the impairment. The findings with reference to permanent partial impairment and work restrictions were made despite claimant's long history of medical problems. As a child, claimant suffered a fracture of both legs when he was struck by a dump truck. In 1957, claimant injured his low back and left side in an auto accident. In March 1973, claimant broke a finger and Page 3 his left hand in another motor vehicle accident. In September 1977, claimant was temporarily assigned to unload stucco blocks from boxcars and injured his neck while picking up a handful of blocks. This injury lead to surgery in 1979 on his cervical spine and permanent partial impairment ratings to the back. It was after this injury that claimant incurred work restrictions and moved to the janitor job at Celotex. In December 1978, claimant fell on ice and suffered broken ribs and low back pain. In March 1982, while filling a soap dispenser at Celotex, claimant suffered right arm muscle pain and received brief medical treatment. In August 1982, while lifting a bucket of water at Celotex, claimant tore his biceps tendon for which he received more permanent partial impairment ratings to his right arm. In November 1985, claimant suffered a right sided popping sensation in his chest while climbing through a fence while hunting. Claimant only visited the doctor once after this incident and received little, if any, treatment. There apparently was no diagnosis of this event. In 1977, claimant received permanent partial disability benefits from Celotex for a 25 percent body as a whole injury as a result of an agreement for settlement of the September 1977 work injury. In 1984, claimant received a lump payment of $10,000 in a special case settlement of the 1982 injuries and a review-reopening claim for the 1977 injury. Regardless of these settlements, the record is clear that claimant had substantial permanent partial impairment and physician imposed work restrictions prior to the injury herein, some of which led to his job transfer in 1980 to janitor. According to claimant's personal physician, Michael Stitt, M.D., claimant is totally disabled and should not lift, bend, twist, stand or sit for any period of time. Also, in conjunction with claimant's application for social security benefits after being laid off at Celotex, E. D. DeHaan M.D., also opines that claimant cannot be gainfully employed at the present time due to all of his prior injuries. It should be noted that claimant's physical capabilities were measured by a Robert Jones in October 1988. It was his opinion that claimant demonstrated a very limited physical capacity but that his testing of claimant indicated that claimant was magnifying his symptoms due to inconsistent results. Jones stated this may or may not be evidence of malingering. These views were not given any weight in this decision. Jones is not considered qualified to render the opinions he expressed in the record of this case. Jones holds a BA degree only in psychology and sociology. No showing has been made that he possesses skills or knowledge in neurology or orthopedics. He has not been certified by any recognized authority to do what he apparently does for a Des Moines based hospital. He has received no specialized training in giving capability tests. His statements that claimant's pain behavior was not typical for his condition is meaningless without a showing that he possesses Page 4 qualifications to make such statements. With reference to loss of earning capacity, it is found that the work injury precipitated new work restrictions which initially did not prevent a return to work as a janitor. However, when he was bumped from the position in June 1989, he was permanently laid off because there was no work available to him at Celotex due to the new restrictions placed on him by Drs. Hanssen and Weatherwax. Whether or not claimant knew of these restrictions is irrelevant to the analysis in this case. Clearly an accommodation was made for claimant's disability prior to June 1989 and such accommodation ended when he was laid off. Defendant's contention that claimant's loss of work at Celotex was due to the union bumping rights and not due to the work injury is not correct. A significant cause for claimant not working at Celotex today as a janitor is and remains to be his new work restrictions imposed after recovery from the May 7 injury. Claimant's past work experience outside of Celotex includes roofing, road construction, chipping welds with a sledge hammer, and railroad fireman. Except for the railroad job which is not available today, all of this work requires heavy manual labor. At Celotex, prior to the janitor job, claimant was required to perform heavy lifting. In any event, whether or not claimant suffered permanent impairment from the May 4, 1987 injury, that injury and the additional restrictions imposed as a result of that injury led to the loss of his employment at Celotex. Claimant has not worked since that time in any meaningful employment. Claimant has made a reasonable attempt to seek alternative employment. After being laid off, he sought work twice per week for 26 weeks to remain eligible for unemployment compensation benefits. Admittedly, he has not looked for work since. This is understandable when he is told by vocational rehabilitation counselors, such as Sue Lieske from the State Division of Vocational Rehabilitation, that there is little chance that vocational rehabilitation could help him obtain competitive employment and that the only possibility is in sheltered employment. Claimant is only able to perform services which are so limited in quality, dependability or quantity that a reasonably stable market for them does not exist. Claimant is not employable in the competitive labor market within the geographical area of this residence. Finally, although at the time of the hearing claimant was 58 years of age and nearing the end of a normal working life, he had no retirement plans at the time of injury and, but for the injury, he could reasonably anticipate a continuation of his employment at Celotex until his retirement. As a result of the work injury of May 4, 1987, claimant has suffered a 100 percent or total loss of earning capacity. Although an apportionment of disability could be possible given claimant's two prior serious work injuries, such an apportionment cannot be made as will be explained in the Page 5 Conclusions of Law section of this decision. CONCLUSIONS OF LAW The conclusions of law contained in the proposed agency decision filed January 22, 1992 are adopted as set forth below. Segments designated by asterisks (*****) indicate portions of the language from the proposed agency decision that have been intentionally deleted and do not form a part of this final agency decision. Segments designated by brackets ([ ]) indicate language that is in addition to the language of the proposed agency decision. I. Claimant has the burden of proving by a preponderance of the evidence that claimant received an injury arising out of and in the course of employment. The words "out of" refer to the cause or source of the injury. The words "in the course of" refer to the time and place and circumstances of the injury. see generally, Cedar Rapids, Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). An employer takes an employee subject to any active or dormant health impairments. A work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. U.S. Gypsum, 252 Iowa 613, 620, 106 N.W.2d 591 (1961), and cases cited therein. ***** [Claimant's injury resulted in impairment of the rotator cuff. The rotator cuff is anatomically a part of the body as a whole, existing beyond the shoulder joint. A medical opinion that claimant's impairment is to the upper extremity, standing alone, does not necessarily establish that the impairment is to the arm only, as the medical profession sometimes views the upper extremity as comprising both the arm and the shoulder joint. Iowa Code section 85.34(2) refers to a scheduled compensation for the loss of an arm, and does not use the term "upper extremity." The greater weight of the medical evidence establishes that claimant's injury resulted in impairment of the shoulder as well as the arm, and claimant has thus suffered a body as a whole injury and will be compensated under Iowa Code section 85.34(2)(u).] II. Claimant must next establish by a preponderance of the evidence the extent of weekly benefits for permanent disability to which claimant is entitled. As the claimant has shown that the work injury was a cause of a permanent physical impairment or limitation upon activity involving the body as a whole, the degree of permanent disability must be measured pursuant to Iowa Code section 85.34(2)(u). However, unlike scheduled member disabilities, the degree of disability under this provision is not measured solely by the extent of a functional impairment or loss of use of a body member. A disability to the body as a whole or an "industrial disability" is a loss of earning capacity resulting from the work injury. Diederich v Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A physical impairment or restriction on work activity may or Page 6 may not result in such a loss of earning capacity. Examination of several factors determines the extent to which a work injury and a resulting medical condition caused an industrial disability. These factors 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. See Peterson v Truck Haven Cafe, Inc. (Appeal Decision, Feb. 28, 1985). [Claimant eventually lost his job with defendant employer. Normally, 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). However, here the direct cause of this loss of earnings was a union contract that allowed claimant to be "bumped." Although this does not represent a McSpadden situation that might otherwise increase claimant's award of disability, nevertheless claimant's loss of earnings due to being laid off is a relevant factor in determining his disability. The position claimant occupied at the time he was "bumped" was a position he held because of work restrictions stemming from his work injury. In addition, claimant was unable to "bump" any other employee and retain employment because there were no other positions compatible with his restrictions. Thus, although the employer is to be commended for attempting to retain and accommodate claimant, the fact remains that claimant is no longer employed by defendant because of the work injury he has suffered. See Vosberg v. A.Y. McDonald Mfg. Co., Appeal Decision, February 17, 1992.] In the case sub judice, it was found that claimant suffered a 100 percent total loss of his earning capacity as a result of the work injury. Such a finding entitles claimant to permanent total disability benefits as a matter of law under Iowa Code section 85.34(2)(3) for an indefinite period of time during claimant's period of disability. If there is no change of condition, these benefits will continue for life. Although a considerable portion of this total disability is attributable to work related medical conditions which existed before the work injury herein, apportionment of disability is not appropriate or possible in a permanent total disability case because the benefits are not payable for a definite time period under Iowa Code section 85.34(2) but are paid to claimant indefinitely during the period of his disability under Iowa Code section 85.34(3). Admittedly, claimant's work injury was only one among many Page 7 disabling injuries. However, the May 1987 injury was the proverbial "straw that broke the camel's back" and permanent total disability benefits shall be awarded accordingly. Furthermore, apportionment of disability between a preexisting condition and an injury is proper only in those situations where a prior injury or illness "unrelated to employment independently produces some ascertainable portion of the ultimate disability." Tussing v. George A. Hormel & Co., 461 N.W.2d 450 (Iowa 1990); Varied Enterprises, Inc., 353 N.W.2d 407. Prior existing impairment does not mandate a finding of loss of earning capacity when there has been no lost earnings or employment. See Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991). III. Finally, claimant seeks additional weekly benefits under Iowa Code section 86.13. The unnumbered last paragraph of Iowa Code section 86.13 states that if a delay in commencement or termination of benefits occurs without reasonable or probable cause or excuse, the industrial commissioner shall award extra weekly benefits in an amount not to exceed 50 percent of the amount of benefits that were unreasonably delayed or denied. Defendants may deny or delay the payment of benefits only when the claim is fairly debatable. Seydel v. University of Iowa Physical Plant, Appeal Decision, November 1, 1989. When the claim is "fairly debatable", the insurer is entitled to debate it, whether the debate concerns a matter of fact or law. ***** The defense in this case asserts that claimant's loss of employment at Celotex was due to prior restrictions imposed as a result of the prior work injuries. Defendant also raises an estoppel theory in that they paid voluntary benefits prior to hearing on the condition that claimant withdraw the penalty benefits claim. ***** The matter is fairly debatable and no case for sanctions has been made out in this case, regardless of any estoppel theory. Claimant's request for penalty benefits is denied. WHEREFORE, the decision of the deputy is affirmed. ORDER THEREFORE, it is ordered: That defendant shall pay to claimant permanent total disability benefits at the stipulated rate of two hundred ninety-three and 89/l00 dollars ($293.89) per week from September 7, 1987, for an indefinite period of time during the period of disability. That defendant shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for weekly benefits previously paid. That defendant shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. That defendant shall pay the costs of the appeal including the transcription of the hearing. That defendant shall file activity reports on the payment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343 IAC 3.1. Signed and filed this ____ day of May, 1993. Page 8 ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Tito Trevino Attorney at Law 801 Carver Bldg P. O. Box 1680 Fort Dodge, IA 50501 Mr. Stephen W. Spencer Attorney at Law 218 6th Ave., Ste 300 P. O. Box 9130 Des Moines, IA 50306 1803 Filed May 27, 1993 BYRON K. ORTON BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DOUGLAS AUTEN, Claimant, File No. 873898 vs. A P P E A L THE CELOTEX CORPORATION, D E C I S I O N Employer, Self-Insured, Defendant. ____________________________________________________________ 1803 Claimant was given a light duty position consistent with his restrictions after his injury. Claimant was later "bumped" from this position by another employee under the union contract. Since there was no other position fitting claimant's restrictions, he was terminated. Held that although this was not a termination that would increase an industrial disability award under McSpadden, nevertheless claimant's unemployed status and loss of earnings were the result of his injury and a proper factor in assessing industrial disability. Page 1 before the iowa industrial commissioner ____________________________________________________________ : DONNA M. KOEHLER, : : Claimant, : : vs. : : File No. 874140 MORRISON, LLOYD AND MCCONNEL, : : A P P E A L Employer, : : D E C I S I O N and : : IMT 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 28, 1990, is affirmed and is adopted as the final agency action in this matter, with the following additional analysis: The American Heritage Dictionary 301 (Second College Edition 1985), defines "compel" as follows: "1. To force, drive or constrain: . . . . 2. To necessitate or pressure by force; exact: . . . ." The deputy in his analysis states that in another case, other than McKeever, the supreme court might decide a different event to be the injury date, that is, an event other than the employee being compelled to leave work on account of the injury. It is not necessary to speculate as to that in this matter, however. The record is replete with evidence demonstrating that claimant was compelled to leave work on account of her carpal tunnel syndrome. Claimant testified that she believed quitting work would relieve her symptoms. She testified that, after it did not relieve her symptoms, she then felt it was necessary to seek treatment (transcript, page 25). Claimant testified she retired on account of "various circumstances and especially my carpal tunnel business, I guess I just decided I better hang it up while I was still ahead maybe." (Transcript, page 24) In response to a question as to whether the carpal tunnel syndrome disabled her from continuing work, she stated: "Being uncomfortable at work I'm sure had quite a bearing on it." (Transcript, page 26) She expressed her concerns that her carpal tunnel syndrome was becoming more and more disabling (transcript, page 27). She also testified regarding her decision to retire. "I had Page 2 been suffering through the carpal tunnel and I just thought I'll just terminate. Just terminate the problem." (Transcript, page 33) Hence, it is clear that claimant's carpal tunnel syndrome was a substantial factor in her decision to quit work. That she and her spouse may have made other plans as to retirement does not mitigate that fact. The law does not require than an employee reach such a state of abject helplessness and disability as to be unable to function at work or otherwise without radical medical intervention before the individual employee may leave work on account of pain related to the disabling condition. Claimant's decision to attempt to alleviate her symptomatology by leaving the work place via retirement at age 60 was reasonable. It can properly be stated that she was compelled to leave work on account of her injury on her retirement date, that is, July 10, 1987. Defendants shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of October, 1991. ______________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Michael Motto Attorney at Law 1000 First Bank Center 201 West 2nd Street Davenport, Iowa 52801 Mr. James Blomgren Attorney at Law P.O. Box 732 Oskaloosa, Iowa 52577 2209 Filed October 28, 1991 BYRON K. ORTON WRM before the iowa industrial commissioner ____________________________________________________________ : DONNA M. KOEHLER, : : Claimant, : : vs. : : File No. 874140 MORRISON, LLOYD AND MCCONNEL, : : A P P E A L Employer, : : D E C I S I O N and : : IMT INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 2209 Deputy affirmed. McKeever does not require claimant's pain to be so great as to produce abject helplessness or disability before claimant may properly leave work on account of cumulative injury. Likewise, other factors may enter into decision to leave work provided cumulative injury was a substantial factor in the decision to leave. BEFORE THE IOWA INDUSTRIAL COMMISSIONER DONNA M. KOEHLER, Claimant, VS. MORRISON, LLOYD AND MCCONNEL, File No. 874140 A R B I T R A T I 0 N Employer, D E C I S I 0 N and IMT INSURANCE COMPANY, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Donna M. Koehler, claimant; against Morrison, Lloyd and McConnel, employer; and IMT Insurance Company, insurance carrier; defendants. A hearing was held in Ottumwa, Iowa, on February 22, 1990, and the case was fully submitted at the close of the hearing. claimant was represented by Michael J. Motto. Defendants were represented by James Q. Blomgren. The record consists of the testimony of Donna M. Koehler, claimant; and claimant's exhibits 1 through 4. STIPULATIONS The parties stipulated to the following matters at the time of the hearing: That an employee-employer relationship existed between claimant and employer at the time of the alleged injury. That in the event it is determined that claimant sustained an injury arising out of and in the course of her employment with employer and that the injury is the cause@of permanent disability, the parties have stipulated that claimant is entitled to 30 weeks of permanent partial disability benefits for a 6 percent permanent partial impairment to the body as a whole based upon a 3 percent permanent impairment of each upper extremity. KOEHLER VS. MORRISON, LLOYD AND MCCONNEL Page 2 The parties have further agreed that in the event of a compensable injury that claimant sustained a simultaneous injury to both upper extremities pursuant to Iowa Code section 85.34(2)(s). That the rate of compensation, in the event of an award, is $158.80 per week. That the provider of medical services or supplies would testify that the amounts charged are fair and reasonable and that the expenses were incurred for reasonable and necessary medical treatment. That the causal connection of the expenses to treatment for a medical condition upon which claimant is now basing her claim is admitted, but that the causal connection of this condition to a work injury remains an issue to be decided in these proceedings. That defendants make no claim for credit for benefits paid prior to hearing under either an employee nonoccupational group health plan or paid as workers' compensation benefits. That there are no bifurcated claims. That claimant makes no claim for temporary disability benefits. ISSUES The parties submitted the following issues for determination at the time of the hearing: Whether claimant sustained an injury on July 10, 1987, which arose out of and in the course of her employment with employer. Whether the injury was the cause of permanent disability. Whether claimant is entitled to medical benefits, more specifically, the charges of M.R. Mally, D.C., and 68 trips to the doctor with a round trip distance of 150 miles. SUMMARY OF THE EVIDENCE Claimant, born June 24, 1927, was 60 years old at the time of the injury and 62 years old at the time of the hearing. Claimant started to work for employer, a law firm, in November of 1972 and worked there for 15 years as a general legal secretary until she resigned on July 10, 1987. Her duties called for greeting clients, typing, filing, and answering the telephone. She described her primary duty as typing. She worked full time KOEHLER VS. MORRISON, LLOYD AND MCCONNEL Page 3 for this employer five days a week and every other Saturday during tax filing period. Claimant denied any part-time employments or outside employments of any other kind. Initially she used electric typewriters and selectric typewriters. Beginning in 1981 or 1982 she began using IBM memory magnetic cards. Claimant testified that she first had problems with numbness and tingling in her hands in 1978. She reported this to C.E. Schrock, M.D., at the time of her annual physical examination. This is confirmed by Dr. Schrock (exhibit 2, pages 1 & 5). Claimant further testified that Dr. Schrock sent her to see Bruce L. Sprague, M.D., an orthopedic surgeon specializing in hand problems, in 1985. This is also confirmed by Dr. Schrock (ex. 2, pp. 1 & 7). Dr. Sprague wrote to Dr. Schrock on February 6, 1985, that claimant noted numbness and tingling in both hands in the median nerve distributions not only at night, but also during the day. He found a positive Tinel's sign on the right wrist, but not on the left wrist. Dr. Sprague said there are bilateral positive Phalen's test. Dr. Sprague concluded, "I feel that she does have bilateral carpal tunnel syndromes, worse on the right than the left, and I feel that she does have some cervical spondylosis, as well, but at this time she does not appear to have any cervical radiculopathies." Dr. Sprague's final observation was as follows, "I feel that she will eventually require release of her transverse carpal ligaments sometime in the future, and I feel, at this point, she can work it into her schedule at her convenience." Dr. Sprague did not comment on causal connection or mention an impairment rating, but it does not appear that he was asked to do either one of these things (ex. 2, p. 7). Claimant testified that the attorney that she worked for, Mr. James Lloyd, was well aware of her carpal tunnel condition. Claimant testified that she discussed it with him and that he tried to assist her with it by adjusting her typing stand. He took the castors off of the typing stand in order to lower the typewriter level. Claimant testified that he also assisted her by adjusting her chair up and down. Claimant testified that the condition became progressively worse. It was more noticeable after typing. She obtained relief by not typing and performing other kinds of duties. Claimant testified that this condition affected the quality of her work in that she could not perform the work as quickly as she had done before. Claimant related that she had planned to retire at age 62. However, she decided to retire on July 10, 1987, shortly after she became 60 years old, partly due to her carpal tunnel syndrome and partly due to other circumstances. Claimant believed that quitting her job would relieve her symptoms, but it did not. In November of 1987, claimant elected to see Dr. Mally, a KOEHLER VS. MORRISON, LLOYD AND MCCONNEL Page 4 chiropractor in Davenport. Claimant testified that when she was having trouble at work, Mr. Lloyd, the attorney for whom she worked, recommended Dr. Mally to her. Claimant also mentioned the carpal tunnel syndrome to Dr. Schrock in November of 1987. At the time of her physical examination on November 23, 1987, Dr. Schrock commented, "Her carpal tunnel is being managed by a chiropractor in the Davenport area and I told her to go ahead with some B6 and see what this did." (ex. 2, p. 8). Dr. Schrock further stated, "Prior to that, because [sic] of persistent symptomatology, I had her seen by J.B. Worrell, M.D., a neurologist who performed electromyography on her, a copy of that report is also enclosed." (ex. 2, p. 1). Dr. Worrell wrote a report dated February 9, 1987, in which he concludes, "IMPRESSION: The study is quite compatible with a rather severe bilateral carpal tunnel syndrome." (ex. 2, p. 3). Dr. Schrock also remarked that claimant had an endocrine problem related to her thyroid gland and had been seen at the university hospital for this (ex. 2, p. 1). A university hospital report dated July 20, 1987, shows that claimant suffered from (1) Hashimoto's thyroiditis and (2) probable maxillary sinusitis. After she began medicating with Synthroid she reported decreased fatigue, decreased constipation and no noticeable skin changes (ex. 2, p. 4). Dr. Schrock stated that it is very difficult to make a statement concerning the etiology of the carpal tunnel syndrome. He related that he had received surgery on two occasions for carpal tunnel syndrome, but he had performed very little manual physical work in his life and had not been subject to any postural stress in his work. He said that it can occur with or without any apparent aggravation by work. He closed his letter by reminding that surgery had been recommended for claimant's carpal tunnel syndrome four years ago (ex. 2, p. 2). Claimant first saw Dr. Mally on November 20, 1987, for the carpal tunnel syndrome. He said that the initial onset from her case history reveals an approximate 10 to 20 year pathogenesis while she was employed as a secretary. He added that she had no prior pertinent history nor any of the major contributing risk factors for carpal tunnel syndrome. His treatment consisted of manipulative decompression of the involved carpal canals with physical therapy as a palliative adjunctive treatment for the soft tissue edema and pain. By July 21, 1989, the patient was indicating only bilateral hand tingling at times occasionally. Dr. Mally performed several nerve conduction studies. These disclosed weakness and impairment bilaterally on wrist flexion, extension, ulnar deviation, and grip strength. KOEHLER VS. MORRISON, LLOYD AND MCCONNEL Page 5 Dr. Mally indicated that the carpal tunnel syndrome was caused by her work in these words, "In closing, I find the patient's symptomatologies confirm subjectively and objectively correlating a cumulative trauma disorder of the repetitional strain form associated with clerical type occupational requirements (VTD operation, typists, etc.)." (ex. 1, p. 2). Dr. Mally rated the injury as follows, "I hereby consider the nature, extent, longevity, and duration of her symptomatologies correlating to carpal tunnel syndrome and have established to a reasonable degree of medical certainty (chiropractic) that Donna M. Koehler maintain a 5% permanent impairment rating to each hand." (ex. 1, pp. 2 & 3). Dr. Mally's bill shows 47 entries for treatments from November 20, 1987 through June 3, 1988. His total charges for services during this period of time are $1,819. Some additional entries appear from June 10 through June 15, 1988, but these entries are fragmentary and not complete (ex. 4, pp. 1-4). Claimant acknowledged that her husband, who was in the insurance business, sold his business in January of 1986. After that he was still employed and went to work everyday, but was free to take time off to travel or do other things which he wished to do. Claimant admitted that she never told her employers that she was forced to retire. Claimant acknowledged that no physician told her to retire. Claimant acknowledged that the carpal tunnel syndrome was only one of the reasons for her early retirement. Another reason was because that she had determined that it is later than you think. Claimant acknowledged that she had not received surgery for the carpal tunnel syndrome. Before she retired she did not feel that she could take the time from work. Also, she had heard from friends that some of the surgery was not too successful. APPLICABLE LAW AND ANALYSIS An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(l). Claimant has the burden of proving by a preponderance of the evidence that she received an injury on July 10, 1987, which, arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., KOEHLER,VS. MORRISON, LLOYD AND MCCONNEL Page 6 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). Claimant did sustain the burden of proof by a preponderance of the evidence that she sustained an injury on July 10, 1987, which arose out of and in the course of her employment with employer. She testified that she performed repetitive typing work for employer for 15 years from November of 1972 until July 10, 1987. Dr. Sprague diagnosed bilateral carpal tunnel syndrome on February 6, 1985, and prognosticated at that time that surgery would eventually be required (ex. 2, p. 7). Dr. Sprague did not comment on causal connection or give an impairment rating. This is not unusual because he merely performed a consultation for Dr. Schrock. It does not appear that he was asked for a statement on causal connection or for an impairment rating (ex. 2, pp. 1 & 7). Dr. Worrell confirmed that claimant had rather severe bilateral carpal tunnel syndrome on February 9, 1987. Again he appeared to serve only as a consultant for Dr. Schrock and only performed an electromyelogram at Dr. Schrock's request. It does not appear that Dr. Schrock asked him to comment on causal connection or to comment on an impairment rating (ex. 2, pp. 1 & 3). Dr. Schrock stated that the etiology of carpal tunnel syndrome was unknown in his opinion. He said that carpal tunnel syndrome, " ... can occur with or without any apparent aggravation by work." (ex. 2, p. 2). Therefore, Dr. Schrock acknowledges that it could be work related as well as not work related. Dr. Schrock apparently did not have an opinion on whether claimant's carpal tunnel was work related, but acknowledged that it could be aggravated by work. Dr. Mally was the only physician who gave a definitive opinion on whether the carpal tunnel syndrome which claimant sustained was or was not work related. Dr. Mally said that claimant's symptomatologies confirm subjectively and objectively correlating a cumulative trauma disorder of the repetitional strain form associated with clerical type requirements (ex. 1, p. 2). Dr. Mally issued an impairment rating of 5 percent to each hand. This converts and combines to 6 percent of the body as a whole. Guides to the Evaluation of Permanent Impairment, third edition. The parties stipulated in the prehearing report that claimant was entitled to 30 weeks of permanent partial disability benefits. From the foregoing it is concluded that claimant is entitled to 30 weeks of permanent partial disability benefits. In a prehearing brief and also during argument at hearing, defendants counsel contended that the case of McKeever Custom Cabinets vs. Smith, 379 N.W.2d 368 (Iowa 1985) did not apply to the instant case because claimant was not forced to leave her job KOEHLER,VS. MORRISON, LLOYD AND MCCONNEL Page 7 due to the injury. Therefore, there is no injury date under the holding in McKeever and if there is no injury date, there can be no injury. Defendants argument is not considered to be correct. In the McKeever case, the supreme court determined the injury date to be the date that claimant was forced to leave work rather than the date that claimant first sought medical treatment. In another case, the supreme court might decide a different event to be the injury date. In this case, the supreme court might well determine the injury date to be the last date that claimant worked for employer since that is the last possible date that claimant was exposed to the repetitive use of her hands for work for employer. In any event, it is determined that in this case the injury date is the last day of employment, July 10, 1987. Claimant is entitled to 30 weeks of permanent partial disability benefits commencing on July 10, 1987. The fact that the impairment rating was not issued until a later date is not significant. The fact that claimant did not have a period of temporary disability is not significant. In conclusion, it is determined that claimant sustained an injury on July 10, 1987, which arose out of and in the course of employment with employer. It is determined that the injury was the cause of permanent disability. It is determined that claimant is entitled to 30 weeks of permanent partial disability benefits. Claimant is also entitled to medical benefits. Claimant is entitled to the charges of Dr. Mally in the amount of $1,819 through June 3, 1988. Claimant is not entitled to 68 trips from Washington, Iowa to Davenport, Iowa because Dr. Mally's bill only reflects 47 treatments during this period of time. Forty-seven trips from Washington, Iowa to Davenport, Iowa and return at 150 miles per trip is 7,050 miles times 21 cents per mile resulting in an allowance of $1,480.50 in medical mileage to which claimant is entitled. FINDINGS OF FACT Wherefore, based upon the evidence presented, the following findings of fact are made: That claimant was employed by employer for 15 years from November of 1972 until she retired on July 10, 1987. That during that period of time, claimant performed general secretarial work which primarily consisted of typing. That claimant testified that typing aggravated the numbness and tingling in her hands and that performing other tasks diminished the amount of numbness and tingling in her hands. That Dr. Sprague diagnosed bilateral carpal tunnel syndrome in 1985. KOEHLER VS. MORRISON, LLOYD AND MCCONNEL Page 8 That Dr. Worrell said that claimant had rather severe bilateral carpal tunnel syndrome on February 9, 1987. That Dr. Sprague and Dr. Worrell did not comment on the causal connection of work to the injury. That Dr. Schrock did not know the etiology of the carpal tunnel syndrome, but acknowledged that it may or may not be caused by claimant's work. That Dr. Mally stated that both subjectively and objectively her symptoms correlated to a cumulative trauma disorder of the repetitional strain form associated with the clerical occupational type of work. That claimant testified that she worked full time for employer and did not have any part-time or other outside employment that would be responsible for her carpal tunnel syndrome. That defendants did not assert that the carpal tunnel syndrome was due to any cause other than claimant's employment. That Dr. Mally's report indicated that both the work caused the injury and the injury caused the disability for which he gave his impairment rating. That the parties stipulated that in the event of an award, claimant is entitled to 30 weeks of workers' compensation permanent partial disability benefits under Iowa Code section 85.34(2)(s). That the charges of Dr. Mally for 47 different office visits total $1,819 on June 3, 1988. That claimant made 47 trips from Washington, Iowa to Davenport, Iowa and return at 150 miles per trip. CONCLUSIONS OF LAW Wherefore, based on the evidence presented and the foregoing principles of law, the following conclusions of law are made: That claimant did sustain an injury on July 10, 1987, which arose out of and in the course of employment with employer. That the injury was the cause of permanent impairment. That claimant is entitled to 30 weeks of permanent partial disability benefits. KOEHLER VS. MORRISON, LlOYD AND MCCONNEL Page 9 That claimant is entitled to recover $1,819 in medical expenses for the bill of Dr. Mally and an additional $1,480.50 in medical mileage for trips to see Dr. Mally. ORDER THEREFORE, IT IS ORDERED: That defendants pay to claimant thirty (30) weeks of permanent partial disability benefits at the rate of One Hundred Fifty-eight and 80/100 Dollars ($158.80) per week in the total amount of Four Thousand Seven Hundred Sixty-four Dollars ($4,764) commencing on July 10, 1987. That all accrued benefits are to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That defendants pay to claimant or the provider of medical services One Thousand Eight Hundred Nineteen Dollars ($1,819) for the charges of Dr. Mally. That defendants pay to claimant One Thousand Four Hundred Eighty and 50/100 Dollars ($1,480.50) in medical mileage. That the costs of this action are charged to defendants pursuant to Division of Industrial Services Rule 343-4.33. That defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 28th day of February, 1990. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Michael Motto Attorney at Law 1000 First Bank Center 201 W. 2nd St Davenport, Iowa 52801 KOEHLER VS. MORRISON, LLOYD AND MCCONNEL Page 10 Mr. James Blomgren Attorney at Law PO Box 732 Oskaloosa, Iowa 52577 1106; 1108.50; 1401; 1402.20; 1402.30; 1402.40; 1402.60; 1403.10; 1403.20; 1403.30; 2209; 51803; 2501; 2602; 2700 Filed February 28, 1990 Walter R. McManus, Jr. BEFORE THE IOWA INDUSTRIAL COMMISSIONER DONNA M. KOEHLER, Claimant, VS. MORRISON, LLOYD AND MCCONNEL, File No. 874140 Employer, A R B I T R A T I O N and D E C I S I O N IMT INSURANCE COMPANY, Insurance Carrier, Defendants. 1106; 1108.50; 1401; 1402.20; 1402.30; 1402.40; 1402.60; 1403.10; 1403.20; 1403.30; 2209 Claimant worked for 15 years as a legal secretary. Her primary duty was typing. She exhibited carpal tunnel complaints as early as 1978. She was diagnosed as bilateral carpal tunnel in 1985 and again in early 1987. Typing aggravated it. Not typing alleviated it. Claimant retired from the law firm on July 10, 1987, partially due to the carpal tunnel and partially due to other reasons such as the quasi-retirement of her husband in 1986 and possibly due to other health problems such as a thyroid condition. She realized it is later than you think according to her testimony. She never lost any time from work for carpal tunnel. She did not decide to be treated for it until after her retirement in November of 1987 by a chiropractor. She testified the attorney she worked for was aware of it, discussed it with her, and tried to do things to alleviate it. He even recommended the chiropractor. She was never forced to quit work for this condition. An orthopedic surgeon and a neurologist who diagnosed carpal tunnel did not comment on causal connection or give an impairment rating, but it does not appear that they were asked to do so. Her personal physician did not know the etiology of it, but said it could or could not be aggravated by work. The chiropractor KOEHLER VS. MORRISON, LLOYD AND MCCONNEL Page 2 said that the pathogenesis was 10 to 20 years of secretarial work and that subjectively and objectively the injury correlated to her secretarial work. It was held that claimant sustained an injury arising out of and in the course of employment with employer. The fact that claimant lost no time from work and was not forced to retire because of the carpal tunnel was not considered to be significant. The date of injury was determined to be the last day of employment for employer. Defendants argued that since she was not forced to leave work due to the symptoms (McKeever) that she was deprived of an injury date. Therefore, she could not sustain an injury. This argument was rejected. Defendants called no witnesses and presented no exhibits. 51803 Claimant awarded 30 weeks as stipulated to by the parties based on the chiropractor's impairment rating for an injury under Iowa Code section 85.34(2)(s). 2501; 2602; 2700 Claimant awarded $1,819 for the expenses of the chiropractor and $1,450.80 in medical mileage to see the chiropractor. Page 1 before the iowa industrial commissioner ____________________________________________________________ : DAVID EDWARD MADDISON, : : Claimant, : : vs. : : File No. 874569 HY-VEE FOOD STORES, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by claimant, David Edward Maddison, against his employer, Hy- Vee Food Stores, and its insurance carrier, Employers Mutual Insurance, as defendants. Claimant sustained a work-related injury which occurred on January 17, 1988. The matter came on for hearing before the undersigned deputy industrial commissioner on October 7, 1991, at Ottumwa, Iowa. The record in the case consists of the testimony from the claimant and Bill Baynes, transportation manager for the distribution center; and, joint exhibits 1 through 5. issues Pursuant to the prehearing report submitted by the parties, the following issues are presented for resolution: 1. Whether claimant's work-related injury is a cause of permanent disability and, if so, the extent of his disability; and; 2. Whether claimant was properly notified of the termination of benefits, commonly referred to as an Auxier notice. Page 2 findings of fact The undersigned deputy, having reviewed all of the evidence received, finds the following facts: Claimant was born on December 5, 1962. He is a high school graduate, with additional training in driving a tractor-trailer. The training was provided by his employer, Hy-Vee Food Stores. While still in high school, claimant worked for the Albia Super Valu grocery store, with job duties of running a cash register; closing the store at night; stocking shelves; and, sacking and carrying groceries. Upon graduation from high school, he worked for the grocery store on a full-time basis, and then started work at a dairy farm. He worked on the farm for several years, and was offered a job running a press for Monroe Plastics, in Georgetown, Illinois. He worked at this position for one year, moved back to Iowa and began working for the Albia Super Value grocery store as a produce manager. As such, he was in charge of ordering all produce merchandise. He earned $6 per hour, and worked 40 hours per week. In May of 1984, claimant began working for Hy-Vee Food Stores, Inc. He started his employment as an order selector in the warehouse which was located in Chariton, Iowa. He earned $11 per hour. After one year, he was put into the freezer department, and worked as a frozen food selector. In this position, he would be given a list of items, locate these items in the freezer and put them in carts in order to fill the order. The orders were then shipped out to various Hy-Vee Food Stores. He earned a little more than $11 per hour, and worked in this capacity for three years. Claimant then returned to the produce area, and it is in this department where claimant received a work-related injury on January 17, 1988. Claimant hurt himself while he was lifting a bag of seed potatoes which weighed 100 pounds. He was stacking the bag onto a pallet when he felt a sharp pain in his back, and lost strength in his legs. After several months of conservative medical treatment, which included rest, prescription medications, epidural injections and physical therapy, he was scheduled to undergo a lumbar laminectomy on June 14, 1988 (Joint Exhibit 1, pages 1-69). Claimant was released to return to work with restrictions of no lifting greater than 20 pounds on a repetitive basis. A functional capacity evaluation performed in December 1988 showed that claimant could lift up to 80 pounds, but two treating physicians recommended claimant lift more than 20 pounds on a very intermittent basis (Jt. Ex. 1, p. 20). In June of 1989, claimant returned to work for Hy-Vee as an order selector, and on June 28, 1990, bid into a truck driver job, a position which he holds presently. Currently, claimant earns $13 per hour, and works 40 hours per week. Page 3 Claimant testified that his average weekly gross earnings were $600 per week. ANALYSIS and conclusions of law The first issue to be addressed is whether claimant has sustained a permanent disability, and the extent of claimant's disability. Claimant is currently under restrictions of no lifting of more than 20 pounds on a regular basis, and has been evaluated as having a functional impairment of 10 percent to the low back. This rating was based upon physical examinations with positive findings, and there is no conflicting evidence which suggests claimant has not sustained any type of permanent disability due to the work- related injury. As a result, it is found that claimant is entitled to permanent partial disability benefits. The next issue to be addressed is the extent of claimant's permanent disability. As claimant has sustained an injury to his low back, his industrial disability will be evaluated in conjunction with the permanent disability sustained as a result of the work-related injury. 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 Page 4 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 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). At the time of the injury, claimant was 25 years of age. He has been employed as a manual laborer for most, if not all, of his adult life. Claimant seemed motivated to return to work, and has performed without problem his job as a truck driver. Claimant did describe that on occasion, he must unload his own truck and lift weights exceeding 80 pounds. Claimant described that after he performs these activities, his back feels sore. Claimant has a higher hourly rate of pay at his current job than he had at the time of the injury. He seems physically capable of performing his work without substantial problem, although he testified that trips to Council Bluffs require physical work that aggravates his symptoms. Defendants provided evidence which indicates that claimant is a valued employee. Bill Baynes, claimant's present foreman, indicated that claimant had been able to successfully fulfill the job duties required of a truck driver. He stated that Hy Vee's need for qualified truck drivers will continue into the future. Claimant has sustained a serious injury to his back, and received relatively severe restrictions with respect to his activities. Specifically, claimant is to avoid lifting more than 30 pounds. He is to avoid repetitive lifting and bending as a major job function, which precludes him from seeking an order selector position with Hy-Vee. However, claimant has secured employment with Hy-Vee as a truck driver which provides him with greater actual earnings than at the time of his accident. Some of claimant's job duties are outside of his restrictions as previously noted and, claimant is unable to return to the position he held at the time of the injury. Claimant has received a functional impairment rating of 10 percent permanent partial disability (Jt. Ex. 1, p. 12). Page 5 After considering all the factors that comprise an industrial disability, it is found that claimant has a loss of earning capacity of 15 percent. The last issue to be addressed is whether the Auxier notice, a device used to inform claimants that their benefits will be ending is adequate. Although the notice in question failed to inform claimant as to why his benefits were being terminated, the notice did give claimant more than the required 30 days notice that said benefits were ending. It also advised claimant that he had a right to seek additional benefits either by working with the insurance company, or filing a petition in front of the industrial commissioner. As a result, it is found that claimant was provided sufficient notice of termination of benefits and his recourse. Claimant will not be awarded penalty benefits in this case. order THEREFORE, it is ordered: That claimant has sustained a fifteen percent (15%) industrial disability. That defendants shall pay unto claimant permanent partial disability benefits for ninety-five (95) weeks at the rate of two hundred eighty-one and 17/100 dollars ($281.17) per week beginning June 28, 1989. That defendants shall pay accrued amounts 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 costs of this proceeding, pursuant to rule 343 IAC 4.33. That defendants shall file claim activity reports as required by the agency pursuant to rule 343 IAC 3.1(2). Page 6 Signed and filed this ____ day of November, 1991. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr H Edwin Detlie Attorney at Law 114 N Market St Ottumwa IA 52501 Mr E J Kelly Attorney at Law Terrace Ctr Ste 111 2700 Grand Ave Des Moines IA 50312 5-1803 Filed: November 14, 1991 Patricia J. Lantz before the iowa industrial commissioner ____________________________________________________________ : DAVID EDWARD MADDISON, : : Claimant, : : vs. : : File No. 874569 HY-VEE FOOD STORES, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803 Claimant injured his low back while lifting 100 pound sacks of potatoes. He was employed as an order selector for a grocery store warehouse. After a laminectomy, claimant was restricted to no lifting of more than 30 pounds. He successfully bid into a truck driving position with the employer, a job he continues to hold. However, the job periodically requires him to lift more than 30 pounds. He was given a 10% functional impairment rating. Claimant was awarded 15% industrial disability.