BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : ROY VAN DRASKA, JR., : : Claimant, : : vs. : : File No. 874804 SAM BERMAN AND SONS, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : ALLIED INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ On August 25, 1988, Roy Van Draska, Jr., (claimant) filed a petition for arbitration as a result of an injury to claimant's back occurring on December 18, 1987. Sam Berman & Son (Berman) was identified as employer and Allied Insurance Co. (Allied) was identified as the workers' compensation insurer for Berman (collectively defendants). On August 13, 1990, the first portion of this dispute came on for hearing in Ottumwa, Iowa. On September 7, 1990, Deputy Industrial Commissioner Walter McManus issued his decision that claimant was entitled to an award of 25 percent industrial disability benefits resulting from the injury claimant suffered on December 18, 1987. At the time of that hearing, claimant bifurcated the issue of penalties and an additional award for failure to supply notice of the termination of benefits pursuant to Iowa Code section 86.13 (1991). On April 22, 1991, the issues regarding the penalty and the additional benefits came on for hearing in Des Moines, Iowa. The parties appeared as follows: the claimant in person and by his counsel Larry Wilson and Donald Beattie of Altoona, Iowa and Berman and Allied by their counsel Jeff Margolin and Marvin Duckworth of Des Moines, Iowa. The record in this proceeding consisted of the following: 1. The live testimony of the claimant, and Holly Swartzbaug. 2. Joint exhibit W. Additionally, official notice of the agency file was taken along with the exhibits that had been previously submitted at the time of the first hearing in this matter. Page 2 PRELIMINARY MATTERS 1. The findings of fact and conclusions of law made by Deputy McManus in his decision of September 7, 1990, are incorporated herein as if fully set out in this decision. 2. In the September 7, 1990 decision, Deputy McManus awarded claimant healing period benefits from June 10, 1988 until the date claimant's primary treating physician, Ronald R. Reschly, M.D., indicated that claimant had reached maximum medical improvement, August 18, 1988. ISSUES The issues for resolution are as follows: 1. Whether claimant is entitled to a penalty for a delay in payments pursuant to Iowa Code section 86.13 (1991). 2. Whether claimant is entitled to further benefits for failure by defendants to give a 30 day notice of termination of benefits as required by Iowa Code section 86.13 (1991) and Auxier v. Woodward State Hospital and School, 266 N.W.2d 139 (Iowa 1978). FINDINGS OF FACT After considering all of the evidence including a review of the evidence and decision already on file in this dispute, and the arguments of counsel, the undersigned makes the following findings of fact and conclusions of law. 1. After claimant reported his injury to Berman, defendants commenced payment of healing period benefits(1) on December 28, 1987 at the rate of $149.60 per week. Temporary total disability payments continued until claimant returned to work on January 28, 1988. Claimant was off work again and receiving temporary total disability payments from February 18, 1988 until May 2, 1988. On May 2, 1988, claimant returned to work to perform light duty work. Claimant worked every other day from May 10, 1988 until June 10, 1988. At that point claimant voluntarily left work and did not try to return until after he had been released from medical care by Ronald R. Reschly, M.D., in September of 1988. Defendants paid claimant temporary partial disability benefits from May 2, 1988 until June 9, 1988. 2. The medical records from Dr. Reschly do not indicate Dr. Reschly withdrew claimant's release to return to work until an entry in office notes dated July 11, 1988. Claimant was kept off work due to pain in his back. (1). These benefits have changed character as a result of the finding of entitlement to permanent partial disability payments found by the decision of September 7,1990. At the time of the payment of these benefits, defendants were paying temporary total disability (TTD) benefits. Agency precedent has long viewed TTD payments and healing period benefits as two sides of the same coin. The true character of these benefits is unknown until permanency is established. These payments have the same characteristics and the agency has determined that the provisions should be interpreted accordingly. See, Peterson v. John Morrell & Co., File Nos. 906408, 933308, Slip op. (Iowa Ind. Comm'r Arb. May 21, 1991). For the purpose of this decision the terms healing period and temporarty total disability will be used interchangeably. Page 3 3. At the time claimant left his employment on June 10, 1988, Berman had light duty work available for claimant to perform within his restrictions. Berman believed that it had met claimant's restrictions by offering part time work. 4. In a report prepared for Allied by Dr. Reschly on July 18, 1988, he indicated that claimant had been taken off work. The report gave a diagnosis of claimant's condition as low back pain with a bulging disc at L4-5. Dr. Reschly further indicated that he did not know when claimant could return to work or whether there would be any permanent disability as a result of claimant's current condition. This report did not indicate whether claimant's condition had been caused by a work-related injury. 5. When claimant left work voluntarily on June 10, 1988, without consultation with or direction from Dr. Reschly, Allied discontinued making temporary partial disability payments to claimant in reliance on Iowa Code section 86.13 (1991). Payments were discontinued because light duty work within claimant's restrictions was available and claimant refused to accept this work. The more compelling evidence from the first hearing and claimant's testimony indicate that claimant left this employment in order to care for his daughter over whom he had physical custody for the summer. At the time Allied discontinued payment, it did not send claimant a notice advising that claimant's payments would be terminated. 6. During the course of claimant's treatment, claimant had a variety of tests to determine the source of the ongoing pain in his low back. Between January 15, 1988 and August 1, 1988, claimant had x-ray studies, a CAT scan and an MRI study. Claimant declined to have a myelogram study. The results of these tests were contradictory. The x-ray studies performed after the injury were negative. The CAT scan showed a probable ruptured disc centrally at L4-5. The MRI study showed a slight loss of disc space height at L4-5 with an apparent right sided disc herniation at L4-5. Claimant refused to undergo a myelogram to confirm the disc problem in his back. 7. On August 1, 1988, Dr. Reschly's concluded that claimant appeared to have a right sided herniation at L4-5. He felt that this result was consistent with claimant's pain complaints. Claimant, at that point, declined to have surgical intervention to repair the herniated disc. Claimant was seen by Dr. Reschly again on August 18, 1988. At that examination, Dr. Reschley advised claimant that he had nothing more to offer him short of surgical intervention. Claimant was returned to the care of his family physician. He had reached maximum medical improvement on that date. Dr. Reschly rated claimant's permanent functional impairment at 15 percent on September 13 1988 based on the AMA Guides to the Evaluation of Permanent Impairment, edition unknown. 8. Dr. Reschly did not at any time prior to December 6, 1988 indicate in any of the reports to Allied or in the Page 4 medical records that were served on defendants that claimant's injury had been caused by the injury of December 18, 1987. e.g., Ex. C, p. 15. Moreover, Dr. Reschly was not consistent in filling out the supplemental medical reports supplied by Allied. For example, on the reports dated May 3, 1988, July 18, 1988, July 28, 1988, and August 23, 1988, Dr. Reschly indicated that it was unknown whether claimant would have a permanent disability as a result of the condition diagnosed in the report. On the August report, Dr. Reschly indicated that claimant would be unable to return to his job but did not indicate at that time what his permanent disability was. 9. Claimant had significant history of back problems prior to the incident of December 1987. Most significantly, claimant had a back injury in January of 1985. 10. After the rating was given, claimant demanded payment of permanent partial disability benefits to the extent of the rating given by Dr. Reschly. Defendants refused, indicating that a question of casual connection between the injury and disability was in dispute. Defendants relied on claimant's extensive preexisting back problems as the basis of their refusal to make payment. Defendants wanted to depose claimant, have him evaluated by their own doctor and wanted answers to interrogatories before they would consider payment. Claimant responded to interrogatories on November 11, 1988. 11. On March 1, 1989, defendants advised claimant that they had set up an appointment for claimant to see Thomas A. Carlstrom, M.D., for an evaluation on July 27, 1989. In the meantime, defendants fixed a date in June to take claimant's deposition. Claimant failed to appear for the first deposition. Claimant's deposition was eventually taken on July 17, 1989. 12. After the evaluation of July 27, 1989, Dr. Carlstrom issued a report to the defendants which indicated that claimant had suffered an injury in 1985 that had apparently smoldered during 1986 and came to light during 1987 and 1988. Dr. Carlstrom was not given a complete history by claimant regarding his prior back injuries. Dr. Carlstrom assigned an eight percent functional impairment to claimant's back. Based on this evaluation, defendants continued to refuse to pay permanent partial disability benefits to claimant on the ground that the disability was caused by a 1985 incident rather that the 1987 incident. 13. On September 6, 1989, Dr. Carlstrom wrote a letter to claimant's counsel indicating that claimant was confused about the dates of the injury. He then agreed that the injury date was December of 1987 and that all remaining dates should be extrapolated from that point. After this letter, defendants still had questions regarding the date of the injury and whether claimant had advised Dr. Carlstrom of his history regarding his back. Dr. Carlstrom was then provided with additional information regarding claimant's preexisting back condition. He then wrote another confusing Page 5 letter on November 7, 1989. Dr. Carlstrom wrote: I do not think, after reviewing my data and that of the rest of the chart, that his current clinical problem is one of chronic myofascial low back pain I do note that he has a small herniated disc in his back, but I don't thing that has any bearing upon his clinical status. I think that at present his impairment, suggested in my previous letter as 8% of the body as whole, should be related to the 1987 lifting incident, and I think he should be considered to have reached maximum benefits of healing in mid 1988. I suspect that he had a fair amount of previous clinical problems, with respect to his low back, which to a certain extent made him vulnerable to a more serious injury at the time of his incident in 1987. Perhaps a few percent should be related to that. (Def. Ex. A). 14. Dr. Carlstrom then corrected himself again in a letter dated on February 15, 1990, where he indicated that claimant was in fact suffering from myofascial low back pain. Dr. Carlstrom clarified all of his conclusions in his deposition on February 5, 1990 (Def. Ex. O). As a result of the deposition, Allied paid claimant accrued permanent partial disability benefits with interest in the amount of $6,582.40 on February 20, 1990. Claimant had received no payments from June 1988 until the payment in February 1990 was made. CONCLUSIONS OF LAW 1. Whether claimant is entitled to a penalty for a delay in payments pursuant to Iowa Code section 86.13 (1991). Claimant argues that he was entitled to payment of permanent partial disability benefits as early as September 13, 1988 when Dr. Reschly gave claimant his functional impairment rating. Claimant goes on to argue that even if the September 1988 date is rejected, it was clear that claimant was entitled to payment in July of 1989 after Dr. Carlstrom rated claimant at eight percent. If this date is rejected, then claimant's argue that permanent partial disability benefits should have been paid after Dr. Carlstrom corrected himself in November of 1989. Defendants had no right to wait until February 1990 to make the payment to claimant and must be penalized for that delay. Defendants, on the other hand, urge that the dispute between claimant and defendants was fairly debatable during the time defendants were attempting to obtain sufficient information regarding claimant's status and past medical history. Dr. Carlstrom's initial evaluation report supported defendants' contention that claimant's injury was not work related, but was related to an injury suffered in 1985. The claim remained a bona fide dispute until Dr. Page 6 Carlstrom was able to clarify the series of letters he wrote regarding the claimant's condition and the cause of claimant's back complaints. Consequently, defendants urge no penalty is due. Iowa Code section 86.13(1991) is the governing provision for the assessment of penalties and provides in relevant part: If a delay in commencement or termination of benefits occurs without reasonable or probable cause or excuse, the industrial commissioner shall award benefits in addition to those benefits payable under this chapter, or chapters 85, 85A or 85B up to fifty percent of the amount of benefits that were unreasonably delayed or denied. Under section 86.13, a penalty is not awarded for nonpayment of medical expenses. Penalty benefits are only applicable to weekly compensation benefits. Zahn v. Iowa State Men's Reformatory, IV Iowa Industrial Commissioner Report 409, 410 (Arb.1983). If it is alleged that an employer wrongfully withholds weekly compensation benefits from a claimant, the claimant must establish the benefits were withheld unreasonably in order for the claimant to receive additional benefits under section 86.13. Curtis v. Swift Independent Packing, IV Iowa Industrial Commissioner Report 88, 93 (Arb. 1984). It is reasonable for an employer to withhold benefits when the employer was not alerted to occurrences which would notify a reasonable person that benefits would be due or when there was no work time lost. McCormack v. Sunsprout, I Iowa Industrial Commissioner Decisions No. 1, 142, 144 (1984). However, if there are no contradictions in the claimant's claim then a penalty will be assessed. Willis v. Ruan Transport Corporation, IV Iowa Industrial Commissioner 395, 396 (1984) (The doctors' reports and the claimant's statements regarding the injury and its connection to an incident at work are consistent. Withholding benefits in this instance was found to be unreasonable and a penalty was assessed to the healing period benefits. Employer was given the benefit of the doubt as to whether the injury caused a permanent impairment due to claimant's preexisting back complaints); Peterman v. American Freight System, File No. 747931 Slip op. (Iowa Ind. Comm'r Arb. August 10, 1988). The standard, then is whether defendant's claim is fairly debatable. Where defendants assert a claim that is fairly debatable, they do not act unreasonably in the denial of payment. Seydel v. U of I Physical Plant, File No. 753405, Slip op. (Iowa Ind. Comm'r App. November 1, 1989). The agency has found that a claim is fairly debatable when the medical evidence was confusing or complex. Hoskins v. Quaker Oats, File No. 708553, Slip op. (Iowa Ind. Comm'r App. July 18, 1985). Additionally, if there is a fair question as to entitlement, a claim is fairly debatable and no penalty will be awarded. Curtis v. Swift Independent Packing, IV Iowa Industrial Commissioner Reports 88, 93 Page 7 (App. 1984). If there are significant questions of fact or law, a claim is fairly debatable and no penalties will be awarded. Danehy v. Walnut Grove Products, IV Iowa Industrial Commissioner Report 94, 98 (Arb. 1984). Finally, where there is a bona fide dispute between the parties, no penalty benefits are assessed. Just v. Hygrade Food Products Corp., IV Iowa Industrial Commissioner Report 190, 191 (App. 1984). In this instance, payments to claimant were terminated and delayed. Each instance of nonpayment requires separate analysis. The termination of benefits in June of 1988 was reasaonable. Claimant voluntarily left work without medical authorization. Since light duty work was available that satisfied Dr. Reschly's restrictions, claimant lost his benefits when he left work. However, the failure to resume payments of temporary total disability after July 18, 1988 was not reasonable. Temporary total disability benefits are available to a claimant when the claimant is unable to work due to a work-related injury. Boyd v. Western Home, File No. 890207, Slip op. (Iowa Ind. Comm'r App. June 26, 1991) (Healing period benefits awarded when claimant has inability to work); Accord, 2 Larson Workmen's Compensation, Section 57.66 at 10-307-8 (1989). Allied knew that claimant had been on and off work as a result of back complaints since early in the year. Allied also knew that claimant had been released to return to light duty work but that the release was withdrawn in July when Dr. Reschly indicated that claimant could no longer work. Moreover, it was clear to Allied that claimant was unable to return to his job when he attempted to return in September of 1988. The report from Dr. Reschly in August had made that point clear. As a result, defendants will be assessed a penalty on healing period benefits in the amount of 30 percent. With regard to the question of permanency, payments of this benefit remained a bona fide dispute until Dr. Carlstrom cleared up the confusion caused by his report and subsequent letters. The question of permanency was fairly debatable in light of claimant's significant preexisting back condition, the reports from Dr. Reschly and the report from Dr. Carlstrom. The medical records from both Dr. Reschly and Dr. Carlstrom were not models of clarity. This factor combined with Dr. Reschly's observation that claimant was motivated by a secondary gain factor cast serious doubt on whether there was a causal nexus between the injury suffered on December 18, 1987 and the permanent disability claimed by claimant. A fair reading of agency precedent does not require the insurance carrier to perform a due diligence investigation to decide whether to begin or terminate benefits as suggested by the claimant. Rather, the carrier should satisfy itself that the claim is fairly debatable after considering the medical information available to it at the time the decision is made to either delay or terminate Page 8 benefits. The carrier may not rely on creative legal theories to avoid payment. Sinclair v. Ellsworth Freight Lines, Inc., File No. 840779, Slip op. (Iowa Ind. Comm'r Arb. September 13, 1989). The carrier's decision must be grounded in fact and based upon the conclusions of experts who can supply it with solid reasons for delaying or terminating payment. Otherwise, the carrier and the employer will be assessed a penalty. Since the claim of permanency remained a bona fide dispute until after Dr. Carlstrom's deposition on February 5, 1990, defendants had probable cause to delay payment of the permanent partial disability benefit payments until the date the accrued benefits were paid and no penalty will be assessed on those benefits. 2. Whether claimant is entitled to further benefits for failure by defendants to give a 30 day notice of termination of benefits as required by Iowa Code section 86.13 (1991) and Auxier v. Woodward State Hospital School, 266 N.W.2d 139 (Iowa 1978). The second prong of claimant's request for further benefits is based upon Allied's failure to provide notice of termination of benefits when it suspended payment of the temporary partial disability benefits in June of 1988. Claimant makes this argument based on Auxier v. Woodward State Hospital School, 266 N.W.2d 139 (Iowa 1978) and Himschoot v. Montequma Manufacturing, No. 9-604/89-341, Slip op. (Iowa Ct. App. Feb. 22, 1990). Defendants rely on the same authority and the language of the Iowa Code to assert that they were not required to give claimant a notice of the termination of his benefits since he had returned to work. In the event the notice was required, claimant's additional benefits would only be from the date of termination of benefits to the date claimant filed his petition on August 25, 1988. Himschoot, Slip op. at 13. Based on this authority, 10 weeks of benefits would therefore be available to the claimant. The Auxier court held that worker's compensation benefits may not be taken away without due process of law. Auxier, 266 N.W.2d at 142. Justice Harris observed that not only is some pretermination notice required under the tenants of Goldberg v. Kelley, 90 S.Ct. 1011 (1970), but claimant must also be accorded some opportunity to protest and present proof as to why the benefits should not be terminated. The Auxier court concluded that before workers' compensation benefits are terminated, due process requires the following: 1. That claimant recieve a notice which tells the claimant about the contemplated termination of benefits; 2. That the termination will take place at a specified time not less than 30 days after the notice; 3. The reason for the termination; 4. That the claimant has the right to submit evidence or documents disputing the termination; Page 9 5. Claimant has the right to be advised whether termination is still contemplated; 6. Claimant has the right of review reopening pursuant to Iowa Code section 86.34. If the claimant demonstrates recovery by returning to work, then the requirements of Auxier are not applicable to a subsequent termination of benefits. See, Iowa Code section 86.13 (1991); Auxier 266 N.W.2d at 142. The agency has construed the phrase, "demonstrated recovery by returning to work" to mean performing duties for the employer which consist of engaging in gainful activity futhering the employer's business. Sparks v. Herberger Construction Co., IV Iowa Industrial Commissioner Report 343, 344 (Interim Dec. 1983). Where a claimant returns to work for one or two days and the employer takes the worker back in apparent good faith, and the claimant stops working because of a subjective perception of the extent and effect of the injury, Auxier does not require a notice of the termination of benefits; Armstrong v. State of Iowa Building & Grounds, II Iowa Industrial Commissioner Report 14, 15 (App. 1981), aff'd on other grounds, 382 N.W. 2d 181 (Iowa 1986). This interpretation is consistent with the underlying purpose of worker's compensation benefits which contemplates benefit payments for the injured worker for the time the worker is unable to work. When the employee actually returns to work and begins receiving wages, compensation is no longer necessary and compensation payments are suspended. Sparks, at 344. Likewise, when suitable work is available and the claimant voluntarily leaves work, the employer is entitled to suspend payments. 2 Larson Workmen's Compensation, Section 57.66 at 10-307-8 (1989). In this instance, claimant had returned to light duty work. At the time claimant's benefits were terminated, claimant was released for light duty work. The work, even though light duty work, was designed to further the business interests of the employer. Claimant's employer had light duty work available and claimant had performed those duties for over a month. Claimant left his employment for personal reasons rather than reasons associated with his back injury. Defendants, consistent with the exception contained in Auxier and Iowa Code section 86.13, were entitled to terminate claimant's benefits without issuing the Auxier notice because claimant had demonstrated his recovery by returning to work and then voluntarily leaving his job for personal reasons. No additional benefits will be awarded for the absence of a notice. ORDER THEREFORE, it is ordered: 1. Berman and Allied shall pay to claimant a penalty benefit on healing period benefits in the amount of thirty percent (30%) of the awarded healing period benefits at the rate of one hundred forty-nine and 60/100 dollars ($149.60). As these benefits have accrued, they shall be paid in a lump Page 10 sum together with statutory interest thereon pursuant to Iowa Code section 85.30 (1991). 2. Berman and Allied shall not be assessed a penalty for failure to commence permanent partial disability payments as payment of those benefits was fairly debatable. 3. Berman and Allied owe no further benefits for the failure to supply claimant with a notice of termination of benefits in June of 1988. 4. The costs of this action shall be assessed to Berman and Allied pursuant to rule 343 IAC 4.33. 5. Berman and Allied shall file claim activity reports as required by rule 343 IAC 3.1. Signed and filed this ____ day of September, 1991. ________________________________ ELIZABETH A. NELSON DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Donald G Beattie Mr Larry G Wilson Attorneys at Law 204 8th Street SE Altoona Iowa 50009 Mr Marvin E Duckworth Mr Jeff M Margolin Attorneys at Law Terrace Center Ste 111 2700 Grand Avenue Des Moines Iowa 50312 5-4000.1 - 5.4000.2 Filed September 27, 1991 ELIZABETH A. NELSON before the iowa industrial commissioner ____________________________________________________________ : ROY VAN DRASKA, JR., : : Claimant, : : vs. : : File No. 874804 SAM BERMAN AND SONS, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : ALLIED INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-4000.1 Employer who terminated temporary partial disability benefits is not required to give Auxier notice where claimant had returned to light duty work and voluntarily left his employment. 5-4000.2 Claimant was entitled to penalty benefits on healing period benefits when employer and insurance carrier failed to resume temporary total disability benefits when claimant's release to return to work was withdrawn. Claimant with significant preexisting back problems was not entitled to penalty on permanency benefits when insurance carrier refused payment. Claim was fairly debatable particularly in light of confused reports from doctors and comment from primary treating physician that claimant was letting secondary gain factors affect his symptoms. BEFORE THE IOWA INDUSTRIAL COMMISSIONER KEITH BROCKSHUS (Deceased), KIM HIVELEY in behalf of File No. 875069 SHANE BROCKSHUS, DECISION Claimant, ON vs. EQUITABLE GARDINER & COMPANY, P.C., APPORTIONMENT Employer, F I L E D and JUN 27 1989 ALLIED GROUP INSURANCE, IOWA INDUSTRIAL COMMISSIONER Defendants. The matters of the petition for equitable apportionment and stipulation in support thereof come on now for determination. The undersigned, having been fully advised in the premises, FINDS: 1. That, on or about January 29, 1988, Allied Group Insurance was the workers' compensation insurance carrier for the employer, Gardiner & Company, P.C. 2. That on or about January 29, 1988, Keith Brockshus was an employee of Gardiner & Company, P.C. 3. That on or about January 29, 1988, Keith Brockshus sustained a personal injury arising out of and in the course of his employment with Gardiner & Company, P.C., resulting in his demise. 4. That Kim Hiveley is the ex-wife of decedent Keith Brockshus. 5. That Shane Richard Brockshus is a child born on July 28, 1977, out of the marriage of Kim Hiveley and Keith Brockshus, deceased. 6. That pursuant to the previous Decree of Dissolution of the marriage of Kim Hiveley and Keith Brockshus, Kim Hiveley was granted custody of the child Shane Richard Brockshus and Keith Brockshus, deceased, was ordered to pay two hundred dollars ($200.00) per month child support. 7. That at the time of his death, Keith Brockshus was married to Peggy Brockshus and was the father of a child Shannon Raye Brockshus, born on September 7, 1986. 8. That Peggy Brockshus has not remarried. 9. That since the date of death of Keith Brockshus, Allied Group Insurance Company has been paying weekly workers' compensation death benefits in the amount of three hundred and 18/100 dollars ($300.18) per week. 10. That Kim Hiveley and Shane Richard Brockshus currently reside in Lake Park, Dickinson county, Iowa. 11. That the appropriate rate for weekly compensation purposes is determined and ordered to be three hundred and 18/100 dollars ($300.18) per week. 12. That, pursuant to Iowa Code section 85.49, the Clerk of Court of the District Court for Dickinson County, Iowa, shall act as trustee for the minor, Shane Richard Brockshus. 13. That the insurance carrier, Allied Group Insurance, is hereby ordered to pay weekly compensation in the amount of sixty and 04/100 dollars ($60.04) per week for the use and benefits of Shane Richard Brockshus. 14. That payments shall be made to the Clerk of the District Court in and for Dickinson County, Iowa, as trustee for the minor child, Shane Richard Brockshus. 15. That the remaining two hundred forty and 14/100 dollars ($240.14) shall be paid directly to Peggy Brockshus pursuant to Iowa Code section 85.43. 16. That these benefits shall continue until such time as the industrial commissioner orders otherwise or the parties are no longer eligible to receive the same under the Iowa Workers' Compensation laws. 17. That the parties waive any right to hearing pursuant to the Iowa Workers' Compensation Act and the Iowa Administrative Procedure Act. Signed and filed this 27th day of June, 1989. DEBORAH A. DUBIK DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Earl Maahs Attorney at Law 708 Lake St. P.O. Box AK Spirit Lake, IA 51360 Mr. Stephen W. Spencer Attorney at Law 218 6th Ave Ste 300 P.O. Box 9130 Des Moines, IA 50306 Mr. Daniel E. Dekoter Attorney at Law 315 Ninth St Sibley, IA 51249 51200 Filed June 27, 1989 Deborah A. Dubik BEFORE THE IOWA INDUSTRIAL COMMISSIONER KEITH BROCKSHUS (Deceased), KIM HIVELEY in behalf of SHANE BROCKSHUS, Claimant, File No. 875069 vs. DECISION GARDINER & COMPANY, P.C., ON Employer, EQUITABLE and ALLIED GROUP INSURANCE, APPORTIONMENT Insurance Carrier, Defendants. 51200 Benefits allotted in equitable apportionment based on stipulated record submitted. Page 1 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : LYNETTE R. F. GOLAY, : : Claimant, : File No. 875170 : vs. : A R B I T R A T I O N : K MART CORPORATION, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Lynette R. F. Golay, claimant, against K Mart, self-insured, employer, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained on January 28, 1988. This matter came on for hearing before the undersigned deputy industrial commissioner on June 15, 1992 in Des Moines, Iowa. The claimant was present and testified. Also present and testifying at the hearing was Charlotte Shelley. The documentary evidence identified in the record consists of joint exhibit A, claimant's exhibits 1-11 and 24-27, and defendant's exhibits 1-39. ISSUES Pursuant to the prehearing report and order dated June 15, 1992, the parties have presented the following issues for resolution: 1. Whether claimant is entitled to receive temporary total or healing period benefits from April 11 through 29, 1991; 2. Whether claimant's injury is a cause of permanent disability and, if so, the extent thereof. FINDINGS OF FACT The undersigned has carefully considered all of the testimony given at the hearing, the arguments made, the evidence contained in the exhibits, and makes the following findings: Claimant was born on November 3, 1955 and graduated from high school in 1974. She is married with one minor child. Claimant commenced working for employer in June of 1975 as a cashier-checker. In 1977, she was promoted to area merchandiser. She held this job until October 1985 when she was promoted to shipper/receiving manager. Claimant was injured on the job January 28, 1988. She was released to return to light duty work on June 6, 1988. The next one and one/half years she worked as a competitive Page 2 shopper and in customer service. In December 1989, she assumed her present duties as a merchandise clerk and pharmacy technician. At the time of her injury she earned $8.05 an hour. At the present time she earns $9.25 an hour. On January 28, 1988, while performing her usual duties at work, a stack of boxes approximately eight feet in height and at least 50 pounds in weight, fell off an adjacent roller track, striking her on the right shoulder and in the right hip area. She experienced neck, right shoulder, right arm, right hip and leg pain but managed to finish working the day. The next day she saw Stanley Haag, M.D., who took her off work and put her on rest with Tylenol #3 and some Naprosyn. The symptoms improved somewhat but they were still quite significant with increased activity. She was off work for approximately one week and returned to work at light duty for a one week period but her symptomatology exacerbated. She was put on alternative medications including Percocet, Flexeril, Tylenol #3, Naprosyn and Tolectin, which produced moderate pain reduction but incomplete relief. Claimant was referred by Dr. Haag to physical therapy consultants for evaluation and treatment. She was seen by Thomas Bower, LPT, who reported that electrical studies taken on February 19, 1988 demonstrated no evidence of abnormality either through the conduction studies or through the electromyographic samplings. Her complaints persisted and she was evaluated again on February 23, 1988 by Mr. Bower. At this time, she was started on physical therapy utilizing moist heat followed by intermittent cervical traction with range of motion. (Exhibits 33-34). On March 4, 1988, Dr. Haag referred claimant for an MRI examination of the lumbar spine. Results revealed moderate degeneration of the L4-5 and L5-S1 discs without other significant abnormality. (Ex. 6, page 66). Dr. Haag then referred claimant to Scott Neff, D.O., orthopedic surgeon, for evaluation on March 14, 1988. After reviewing claimant's medical history and noting her complaints, Dr. Neff recommended conservative therapy including a TENS unit and trigger point injections over the right shoulder and right posterior pelvic crest. (Ex. 27). On April 4, 1988, Dr. Neff saw claimant for a follow-up examination. She presented with myofascial soreness over the right superomedial border of the scapula and the right side of her low back and right buttock. Dr. Neff felt she was not a surgical candidate and recommended that she be evaluated by Karen Kienker, M.D., physical medical and rehabilitation specialist. Dr. Kienker initially saw claimant on April 19, 1988. Claimant presented with generalized pain in her upper and lower body. After conducting a comprehensive physical examination, Dr. Kienker's impression included: (1) myofascial pain syndrome involving right neck, right upper back and right hip; (2) right throchanteric bursitis; and (3) depression. Dr. Kienker recommended a full pain management program at Iowa Methodist Low Back Institute. (Ex. 11, pp. 80-84). Page 3 Claimant was evaluated by J. Dan Smeltzer, M.A., sociologist and coordinator of the pain management center, on May 1, 1988. Mr. Smeltzer determined that claimant was experiencing a significant chronic pain syndrome and depression. (Ex. 35). Claimant completed the pain management program on May 27, 1988 and contact was made with employer regarding alternative jobs. Dr. Kienker determined that claimant could return to work on June 6, 1988, four hours initially, with no lifting more than 40 pounds and no repetitive movement of the right arm. She was also restricted to occasional reaching above shoulder level with the right arm and standing no more than 30 minutes at a time. Dr. Kienker assessed a four percent permanent impairment rating. (Ex. 12-14). Claimant saw Dr. Kienker on June 22, 1988 for a follow-up evaluation. At this time, Dr. Kienker indicated that claimant may now work six hours per day for the next two weeks and then eight hours per day. She noted that there was a typographical error on her June 1 dictation report and what she meant to say was that claimant could lift up to 20 pounds not 40 pounds as stated in her dictated notes. (Ex. 16, pp. 95-96). Claimant continued to have symptoms of low back pain radiating into the right leg. An MRI of the lumbar spine was performed on January 24, 1989. It revealed marked disc degeneration with loss of hydration and disc space at the L5-S1 level. (Ex. 8). Between October 31, 1989 and January 16, 1990, claimant received nine sessions of cognitive therapy with Deems Ortega, Ph.D., psychologist. On January 22, 1990, Dr. Ortega reported, in pertinent part, "I believe that Lynette's emotional status will remain good if her employer allows Lynette to avoid tasks or work stations that will aggravate her discomfort." (Claimant's Ex. 6). On March 26, 1990, claimant was evaluated by Steven R. Adelman, D.O., neurologist. Claimant presented to Dr. Adelman for evaluation of unsteadiness of gait. Although page one of Dr. Adelman's report is missing, a summary of his examination is found on page two. He concluded that she had a normal neurologic examination with no evidence to suggest nerve root entrapment, peripheral nerve injury or other cause for her gait problems. He agreed with the diagnosis of myofascial pain syndrome. (Defendant's ex. 9, pp. 70-71). Dr. Haag referred claimant to the Mayo Clinic for evaluation of neck, right shoulder, right arm, right hip and leg pain. She was seen by Peter T. Dorsher, M.D., on April 12, 1991 for evaluation. After reviewing claimant's medical history and noting her complaints, a comprehensive physical examination was performed. Electromyographic studies of the right upper extremity were normal. A neurology consult was obtained and revealed no evidence of a neurologic disorder. Page 4 Upon conclusion of testing, claimant was diagnosed with shoulder and hip sprain/strain; superimposed right cervical, right shoulder girdle and right hip girdle myofascial pain syndrome; right ulnar neuritis at the elbow; and deconditioning. Dr. Dorsher found no indication for surgery, further investigations, or passive therapy modalities. A non-impact aerobic conditioning program was recommended. A work program at the light duty level with avoidance of repetitive bending, twisting and stooping and frequent postural shifts was also recommended. (Cl. Ex. 5). Claimant was then referred by Scott Carver, M.D., to William R. Boulden, M.D., for evaluation on April 25, 1991. Dr. Boulden indicated that claimant presented with confusing symptoms including right and left lower back pain, pain into the right buttock and right trochanteric area and pain radiating into her legs. A repeat MRI examination was recommended. On May 8, 1991, Dr. Boulden reported that the MRI examination showed nothing new. He stated, "I think a lot of her symptoms are inappropriate and I am still concerned about pain fixation or chronic pain syndrome." He recommended a rehabilitation program for muscle strengthening of her lower spine. (Ex. 29-31). Finally, claimant was evaluated by Mark B. Kirkland, D.O., on June 10, 1992. Claimant presented with complaints of neck, shoulder and hip pain. Dr. Kirkland found no objective evidence to explain or support claimant's subjective complaints. He felt that Dr. Kienker's impairment rating on June 1, 1988 was fair and he agreed with the work restrictions previously imposed. (Ex. A). CONCLUSIONS OF LAW At the hearing, the parties stipulated that claimant sustained an injury on January 28, 1988 which arose out of and in the course of employment with employer and that such injury was the cause of temporary disability during a period of recovery from January 28, 1988 to June 6, 1988, except for one week during which claimant returned to light duty. Defendant has previously paid healing period benefits for that period of time. Claimant was also off work from April 11 through April 29, 1991 in order to be evaluated, at defendant's request, at Mayo Clinic. Defendant shall pay claimant healing period benefits during the time she was off work for evaluation. The dispute in this case is whether claimant is entitled to weekly compensation for permanent disability benefits and, if so, the extent thereof. Since claimant has suffered an injury, the next question to be resolved is whether the injury has caused a permanent disability. The claimant has the burden of proving by a preponderance of the evidence that the injury of January 28, 1988, is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 133 N.W.2d 867, 868 (Iowa 1965); Lindahl v. L. O. Boggs, 18 N.W.2d 607, 613-14 (Iowa 1945). A possibility is insufficient; a probability is necessary. Burt v. John Page 5 Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa 1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960). Expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 73 N.W.2d at 738. The opinion of the experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974). Moreover, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag, 220 N.W.2d at 907. Finally, 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 material circumstances. Bodish, 133 N.W.2d at 870; Musselman, 154 N.W.2d at 133. The Supreme Court has also observed that greater deference is ordinarily accorded expert testimony where the opinion necessarily rests on medical expertise. Sondag, 220 N.W.2d at 907. The evidence in the record indicates that on January 28, 1988, claimant sustained an injury to her right arm, right sshoulder, neck and right hip. She was treated with various conservative modalities and released to return to work on June 6, 1988 with a 20 pound lifting restriction. Dr. Kienker, her treating physician, gave her a four percent permanent impairment rating. Claimant returned to light duty with employer on June 7, 1988. Despite normal clinical and laboratory findings, claimant alleges that her pain symptomatology still persists. A comprehensive evaluation at the Mayo Clinic on April 12, 1991, reported healed right cervical, shoulder and hip sprain/strain. At this time, it was determined that tests results indicated no reason for surgery, further investigations or passive therapy modalities. Claimant's primary problem appears to be a myofascial pain syndrome. A recent examination by Dr. Kirkland on June 10, 1992 reaffirmed this diagnosis. However, he noted that the pain in her right acromioclavicular joint and pain in her supraspinatus muscle is unrelated to her original injury. He agreed with Dr. Kienker's impairment rating but felt that based on his examination, he could find no clear cut objective findings. Nevertheless, he agreed that she should follow the same restrictions as previously given to her and felt that excessive bending over at the waist and excessive squatting should be avoided. (Ex. A). Although claimant has had a myriad of subjective complaints since her original work related injury, there is a paucity of objective findings to explain her symptomatology. Nevertheless, physicians who have treated and examined claimant agree that she suffers from myofascial pain syndrome. She is precluded from performing her prior work activity as a receiving manager and is restricted to light duty. Consequently, claimant has satisfied her burden of proof in demonstrating that she has suffered a permanent impairment which precludes her from performing her past work activity. Page 6 The next issue to be resolved is the extent of claimant's industrial disability. Industrial disability was defined in Diederich v. Tri-City Railway Co., 258 N.W.2d 899, 902 (Iowa 1935) as 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 person. The essence of an earning capacity inquiry then, is not how much has the claimant been functionally impaired, but whether that impairment, in combination with the claimant's age, education, work experience, pre and post injury wages, motivation and ability to get a job within her restrictions, if any restrictions have been imposed, have caused a loss of earning capacity. Olson v. Goodyear Service Stores, 125 N.W.2d 251, 257 (Iowa 1963); Diederich v. Tri-City Railway Co., 258 N.W. 899, 902 (Iowa 1935); Peterson v. Truck Haven Cafe, Inc., 1 Iowa Industrial Comm'r Dec. No. 3, 654, 658 (1985); Christensen v. Hagen, Inc., 1 Iowa Industrial Comm'r Dec. No. 3, 529, 534-535 (1985). There are no weighting guidelines that indicate how each of the factors are to be considered. There is no equation which can be applied and then calculated to determine the degree of industrial disability to the body as a whole. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience and general and specialized knowledge to make a finding with regard to the degree of industrial disability. See, Peterson, 1 Iowa Industrial Commissioner Decisions No. 3, at 658; Christening, 1 Iowa Industrial Commissioner Decisions No. 3, at 535. Claimant was born on November 3, 1955. She was 33 years old at the time of her injury and is now 36 years old. Because of her relatively young age, claimant's industrial disability is less serious than it would be for an older worker who is injured at the peak of her earnings career. McCoy v. Donaldson Company, Inc., File Numbers 782670 and 852000 (App. Decn. April 28, 1989). Claimant is a high school graduate and is capable of undergoing vocational rehabilitation and vocational retraining. Conrad v. Marquette School, Inc., IV Iowa Industrial Commissioner Report 74, 89 (1984). Claimant is foreclosed from performing her prior work activity as a receiving manager. This work was heavy in exertional level. Defendant made great efforts to accommodate claimant's physical restrictions. Claimant's loss of earning capacity or industrial disability is therefore diminished accordingly. McSpadden v. Big Ben Coal Company, 288 N.W.2d 181 (Iowa 1980). Claimant's injury has nevertheless resulted in a loss of earnings and loss of earning capacity. Claimant's job at the time of her injury was a designated level six position. Her current position is a level one position. The maximum pay for a level one position is $7.95 an hour while the maximum pay for a level six is $11.04 an hour. Claimant was Page 7 earning $8.05 an hour at the time of her injury and currently earns $9.25 an hour, which is over the level one maximum but under the level six maximum. Claimant alleges severe and intractable generalized pain which affects her ability to perform work-related activities and activities of daily living. Claimant's alleged symptomatology appears exaggerated and out of proportion to the clinical and laboratory findings in the record. Pain that is not substantiated by clinical findings is not a substitute for impairment. Waller v. Chamberlain Manufacturing, II Iowa Industrial Commissioner Report 419, 425 (1981), Goodwin v. Hicklin G.M. Power, II Iowa Industrial Commissioner Report 170 (1981). Based upon the foregoing factors, all of the factors used to determine industrial disability, and employing agency expertise, it is determined that claimant has sustained a ten percent industrial disability and is entitled to 50 weeks of permanent partial disability benefits commencing June 7, 1988. Page 8 ORDER THEREFORE, IT IS ORDERED: That defendant pay to claimant fifty (50) weeks of permanent partial disability benefits at the rate of two hundred twelve and 65/100 dollars ($212.65) per week commencing June 7, 1988. That defendant pay to claimant healing period benefits for time off work for medical evaluation from April 11 through April 29, 1991, at the rate of two hundred twelve and 65/100 dollars ($212.65) per week. That defendant receive credit for any benefits previously paid. That defendant pay accrued amounts in a lump sum. That defendant pay interest pursuant to Iowa Code section 85.30. That defendant pay costs pursuant to rule 343 IAC 4.33. That defendant file claim activity reports as required by the agency. Signed and filed this ____ day of June, 1992. ________________________________ JEAN M. INGRASSIA DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Stephen D Lombardi Attorney at Law 10101 University Avenue Suite 202 Clive Iowa 50325 Mr Joel T S Greer Attorney at Law 112 West Church Street Marshalltown Iowa 50158 5-1803 JEAN M. INGRASSIA Filed June 24, 1992 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ LYNETTE R. F. GOLAY, Claimant, File No. 875170 vs. A R B I T R A T I O N K MART CORPORATION, D E C I S I O N Employer, Self-Insured, Defendant. ___________________________________________________________ 5-1803 Claimant awarded ten percent industrial disability as a result of a work-related injury on January 28, 1988 to the right side of the body. Medical evidence indicates that her right cervical, shoulder and hip sprain/strain healed but she continued to suffer myofascial pain syndrome. She was released for light duty in June 1988 and given a four percent permanent impairment rating. Employer accommodated her restrictions. Claimant has been working 40 hours per week for employer earning more now than when she was injured. Claimant's earning capacity has been compromised and many higher paying jobs are foreclosed to her. 1803; 1803.1; 2501; 2502 3202 Filed July 31, 1991 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : PEGGY L. WATERMAN, : : Claimant, : : File Nos. 790119 vs. : 875237 : K-PRODUCTS, INC., : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : GENERAL CASUALTY COMPANIES, : : Insurance Carrier, : : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : ____________________________________________________________ 2501; 2502 An inherent part of a treating orthopaedic surgeon's function following a surgical procedure is to provide an impairment rating. Employer held liable under section 85.27 for such a rating, even though it was requested by the claimant, rather than the insurance carrier. 1803; 1803.1; 3202 Forty-one-year-old claimant, with two distinct scheduled injuries to her arms and eight percent impairment ratings to each arm, awarded 25 percent permanent partial disability where. She was restricted from repetitive activity and had only a high school education. Her actual wage loss was 15 percent due to accommodations made by her employer. Without those accommodations, the loss would have been more severe. She likely would have required retraining in order to obtain any employment whatsoever. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ HENRY E. KRIEGEL, JR., Claimant, vs. File No. 875464 FARMHAND, INC., A P P E A L Employer, D E C I S I O N and AMERICAN MUTUAL LIABILITY INS. CO., 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 July 28, 1992 is affirmed and is adopted as the final agency action in this case with the following additional analysis: Claimant's disability is to be evaluated as of the time of the hearing. The possibility that claimant may be recalled to his employment at a later date is speculative. The parties have available to them review-reopening if a change in claimant's employment status occurs. Claimant's disability as of the date of the hearing is determined to be eighty percent (80%). The claimant and defendants shall share equally the costs of the appeal including transcription of the hearing. Signed and filed this ____ day of September, 1993. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Paul J. McAndrew, Jr. Attorney at Law 122 South Linn Street Iowa City, Iowa 52240 Mr. Cecil L. Goettsch Mr. D. Brian Scieszinski Attorneys at Law 801 Grand Avenue Suite 3700 Des Moines, Iowa 50309 1803 Filed September 30, 1993 BYRON K. ORTON BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ HENRY E. KRIEGEL, JR., Claimant, vs. File No. 875464 FARMHAND, INC., A P P E A L Employer, D E C I S I O N and AMERICAN MUTUAL LIABILITY INS. CO., Insurance Carrier, Defendants. ____________________________________________________________ 1803 Deputy's decision affirmed, with short additional analysis clarifying that the award of 80 percent industrial disability was based on claimant's circumstances at the time of the hearing, and the fact that claimant might be recalled to work in the future was speculative and not a factor in the award. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : HENRY E. KRIEGEL, JR., : : Claimant, : : vs. : : File No. 875464 FARMHAND, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : AMERICAN MUTUAL LIABILITY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This case came on for hearing on June 17, 1992, at Mason City, Iowa. This is a proceeding in arbitration wherein claimant seeks compensation for permanent partial disability benefits as a result of an alleged injury occurring on January 28, 1988. The record in the proceeding consists of the testimony of the claimant; claimant's wife, M. Kriegel; Dan Cory; Charles Gray; William Livezey; and Henry Bolton; joint exhibits 2 through 9, 11 through 30, 32, 33, 35 through 40, and 43 through 46. ISSUES The issues for resolution are: 1. The extent of claimant's permanent disability and entitlement to disability benefits, if permanent disability is found; 2. Whether claimant has an industrial disability or a permanent impairment to his left upper extremity; 3. Entitlement to 85.27 medical benefits, the issue being causal connection and medical mileage; and, 4. Whether defendants are entitled to a $4,920.60 credit as to this amount being paid by a nonoccupational health carrier under the provisions of 85.38(2). Page 2 FINDINGS OF FACT The undersigned deputy, having heard the testimony and considered all the evidence, finds that: Claimant is 42 years old and dropped out of high school after completing the eleventh grade. He then got married. Approximately thirteen years later, claimant got his GED at a community college. In 1988, defendant employer sent him to a basic supervisor seminar in Des Moines. Claimant has no other formal education. Claimant also testified through his deposition taken April 5, 1991 (Joint Exhibit 15). One might note that even though the exhibits may be identified as plaintiff's, all the exhibits are joint, and therefore will be referred to as joint. Claimant related his work history (Jt. Ex. 15, pp. 9- 18). Claimant stated he first worked for defendant employer in December of 1971 and worked until 1984. He then again worked beginning January 11, 1988. Claimant related the reason he quit working in 1984 was that there had been several six month layoffs in the prior years and the company then went on strike and he needed a job so as not to lose his home. Claimant related the nature of his job up to January 28, 1988, the date of his injury. These duties involved positions as a welder, maintenance mechanic and group leader. Claimant has worked a total of 13 1/2 years for defendant employer. Claimant had a physical examination which was required by defendant employer prior to beginning work again for them on January 11, 1988 (Jt. Ex. 26). Claimant was hired as a welder. Claimant described how his accident occurred on January 28, 1988. Claimant was welding on a Series 120 loader (Jt. Ex. 35) when the loader fell and hit the claimant on the left shoulder and back of the neck (Jt. Exs. 32, 33, and 15, p. 21). Claimant testified that after the loader fell his left arm became numb and swelled and his shoulder had a burning and throbbing sensation. Claimant indicated he developed headaches and he felt as if the left side of his head was exploding. Claimant described and also showed the undersigned the clawing effect of his middle three fingers. The undersigned noticed that claimant cannot extend these three fingers beyond a claw position. Claimant indicates this clawing condition has never changed since his injury. Claimant was asked why Dr. Taylor said nothing about the clawing and claimant indicated that Dr. Taylor limited his exams to the shoulder movements due to pain, etc. Claimant took off his shirt to show how unstable his shoulder is. He also had two electrodes taped on the left shoulder and these ran to a hand held TENS unit. Claimant showed how his shoulder could be moved in and out of the socket. With the electrodes turned off, the shoulder was able to be moved in and out. When the electrodes were turned on, the shoulder showed some physical movements. The undersigned noticed that the shoulder was able to be pushed anywhere in and out of the socket when the TENS unit was Page 3 turned off and when it was turned on it was harder to pull out. When the TENS unit was turned on the shoulder muscle quivered and when turned off the quivering stopped. It was obvious to the undersigned from a personal observance that this injury was into the body as a whole and was not specifically limited to the left upper extremity. Claimant was asked why a Dr. Taylor said on July 14, 1988, that he had a normal range of motion. Claimant disagreed. He also indicated that when they were moving the arm they would hold his shoulder. Claimant returned to work on February 8, 1988, in a salary position as a supervisor because of his knowledge of production and welding. He had to fill out a new application (Jt. Ex. 21). Claimant indicated the date should be February 5, 1988 instead of 1985 and explained the reason why the other date was placed thereon. Claimant showed his hands which were swollen and discolored (purplish in color). Claimant indicated he was told the reason for that condition was poor circulation due to his shoulder injury. Claimant related that his headaches became more severe around January 7, 1990. He contends that he complained about his headaches to every doctor he saw. He also indicated that around this January 7 date, he first had the symptoms of the left side of his face swelling and having blindness in the left eye (Jt. Ex. 15, pp. 27 and 31). Claimant testified as to accidents or injuries he had prior to January 28, 1988. He related a 1977 auto accident in which he was treated for eight and one-half months and that he has had no problems from that accident after ten months. Claimant related a December 16, 1988 deer hunting incident in which he fell climbing over a fence. He went to a doctor. He indicated he fell on his right knee and left shoulder. Claimant indicated he didn't recall hurting his left arm as it hurt just as it always does. He returned to work the next day (Jt. Ex. 45; 21, p. 16; 17). In fact, claimant worked one overtime hour on December 17. Claimant also indicated that he worked nine hours on the date of the accident, December 16, even though he was supposed to be on vacation. Claimant also related an April 25, 1989 injury in which he was trying to show a co-employee how to pull a spring-wire out of a power cable. The claimant demonstrated in court how a person would hold the head with the left hand against the stomach and pull the wire through the cable. Claimant did it with ease. Claimant did not miss any work from this reported injury and worked nine hours which included one hour overtime (Jt. Ex. 21, p. 18; 23). Joint exhibit 23, page 1, also reflects claimant lost no time in April. The parties also stipulated there was no supervisory report made out for this April 25, 1989 incident. At the time of claimant's deposition, joint exhibit 15, pages 3 through 4, claimant was working for defendant Page 4 employer as a supervisor, his duties basically being instructing and assigning jobs to the welders in the maintenance departments. It was a full-time job working 40 hours a week at $2,130 per month. Claimant was laid off on August 30, 1991, from defendant employer because of an economical turndown. His medical insurance was terminated. He indicated a few people were kept on a second shift. He indicated no one has called him and that his chance for recall ends on August 30, 1992 (Jt. Ex. 38). Claimant said that defendant employer has offered no rehabilitation to him but he has sought some himself. Claimant said he is currently seeking to get a degree in computer science at Grinnell College under a program for dislocated workers. Claimant said that joint exhibit 36 is his mileage log for his trips to and from the hospital and that joint exhibit 37 is his search for work record encompassing approximately five pages. Claimant said that his last search was June 16, 1992, with no success. He indicated he has no chance to return to work for defendant employer as a welder-supervisor because of his medical problems. He also indicated that when places he seeks jobs at see his disability or injury problems, they are not interested or are not hiring. As to the mileage amount, claimant has not totaled it. Claimant emphasized that he likes working with his hands and likes to be kept busy. He indicated he is good at anything he tries to do, electrical, plumbing, carpentry, automotive, or work around the house. He loved to hunt and fish and do things with the family. He indicated he still tries to do some of these things even though he is injured, especially hunting and fishing, as these activities had been a part of his life. He stated that since his injury he supervises while his father and son basically do the work as he cannot do the work as he did before his injury. Claimant stated that there has been problems with the paying of his bills and that he has received numerous collection notices as to his January 28, 1988 injury. He indicated that he has been threatened with lawsuits and eventually after considerable harassment, the bills were paid. Claimant said that defendant employer has been helpful when he returned to work for them as a supervisor. Since his layoff, he indicated Farmland has been helpful in claimant trying to find jobs elsewhere by writing letters. He agreed that the company felt that he was a good employee. He also feels that if it wasn't for the economy, he would be working at Farmland. Claimant indicated that in January of 1988, he was making $6.96 per hour and when he returned to work on February 8, 1988, as supervisor, he was making $1,850 which was more than what he was making at the time of his injury not including overtime. He agreed that defendant employer never refused him employment due to this January 1988 injury. Claimant also acknowledged he never requested rehabilitation services from the employer or insurance carrier. Page 5 There were questions and testimony by the claimant of the various treatments by various doctors, etc. These basically are in reference to various reports later on. On cross-examination, claimant related that in the summer of 1990, he had been hit or punched by fellow employees in the shoulder which caused temporary discomfort. He indicated he never told the doctors in fear of getting the employees in trouble. These incidents appear not to have caused any new injury. Claimant acknowledged that he never requested rehabilitation servides from the emoployer or insurance company. Mrs. M. Kriegel, claimant's wife, testified that before his injury in January 1988, claimant could do all kinds of things including car maintenance, lawn work, plumbing, snow shoveling, etc. She said he cannot do these things now and that the oldest son and claimant's father do this work. She related claimant started having headaches right after his injury and that if the headaches occurred, he at times was incoherent and went into a deep sleep and could not be awakened. She affirmed claimant's testimony as to a lot of problems getting the medical bills paid and that they received collection letters. She indicated the pharmacy told him he could not have any more prescriptions due to the outstanding balance. She did indicate that the pharmacy is now honoring the bills after a threat to cut them off. Charles W. Gray testified he works for defendant employer and that he was a night supervisor until August of 1991, when he was laid off. He first knew claimant when claimant was assigned to the welding shop at a wage of $6.96 per hour (Jt. Ex. 21, p. 12). He acknowledged that he signed this form. He said he is also familiar with joint exhibit 21, page 14, which was the February 8, 1988 transfer of claimant to the second shift in a salary position as weld shop foreman, described by the claimant as a supervisory position. Mr. Gray indicated that claimant was not capable of continuing as a welder in his former job after his January 28, 1988 injury as he could not work one handed. Mr. Gray said that claimant was a very good worker, was a self-motivated person and works good by himself and that many people could not keep up with claimant at his work. Mr. Gray agreed with joint exhibit 27, page 2, which is a letter from Ron Harter, dated August 20, 1991. Mr. Harter, the plant superintendent, wrote that claimant has a reputation of being one of the best and most knowledgeable persons that Farmland has ever had in the welding department. He wrote that claimant is very highly motivated and tries to do the best he can at whatever the challenge may be. He would be a great asset to anyone looking for a dependable employee. Mr. Gray also agreed with a letter from Harry Bolton, plant manager, dated September 6, 1991, which is six days after claimant was laid off, in which claimant's mechanical aptitude and work ethics were praised (Jt. Ex. 27, p. 3). Mr. Gray indicated he wasn't in claimant's working area when the actual injury occurred but Page 6 that he filled out the report (Jt. Ex. 32) and also filled out the top part of joint exhibit 33. Mr. Gray said that after the accident claimant was in a lot of pain and that his arm and shoulder hurt and claimant had no feeling in his arms. Mr. Gray said he then filled out a report to send claimant to the hospital. Mr. Gray said claimant had pain in his arm, shoulder and neck when he returned and he could tell by the expression on claimant's face that he was in pain. He indicated claimant couldn't use his left arm and hand when he returned to work. He said claimant wore his left arm in a sling to get relief rather than let it hang down. Mr. Gray had no knowledge of claimant receiving an injury on April 25, 1989. He knows of no injury that claimant received that worsened his arm or shoulder injury or condition. Mr. Gray also said that on claimant's return to work in February 1988, he was having headaches. He never heard claimant complain of headaches prior to January 28, 1988. He said claimant's headaches got worse and claimant complained more frequently and had physical manifestation as he could see the pain reflected in claimant's face from the headaches. Mr. Gray said that he has worked with the power cables (Jt. Ex. 47) and which was marked but not offered as evidence. He said that a person with a normal arm and shoulder could not injure himself by pulling out the spring loader if one had knowledge of the gun. He said if the cable is in good shape, it would take minimum effort to pull the cable out. Dan Cory works in the buildings and grounds department at the Marshall County Courthouse temporarily. He testified that he began working at defendant employer in April 1988. He is the same person that is listed on joint exhibit 22, page 18, in answer to interrogatories. He said he has never been contacted by Farmland or the insurance carrier as to claimant's injury. He indicated claimant was made supervisor in June 1989 for the second shift in a press department and machine shop. Mr. Cory said he had no contact with the claimant other than saying hello between April 1988 and June 1989. After claimant became supervisor then he would speak to claimant at coffee and approximately three or four times a night. He said he saw claimant use his left extremity very little. He indicated claimant used it to hold down paper while writing. He said claimant's arm got worse over time. He indicated claimant used a sling and a TENS unit. He said claimant was a very good worker and employee and was always willing to help the other employees if he could. Mr. Cory said he was subpoenaed. He said claimant was not a complainer and did not like to complain. Mr. Cory said he knew claimant had headaches and that sometimes he would be sent home because they got so bad. William Livezey, who was subpoenaed to testify, stated that he worked five years for defendant employer as of July 6, 1992, after having begun July 6, 1987, as a welder. Mr. Livezey said that he had very little contact with the Page 7 claimant until the claimant became supervisor in February 1988, at which time his contact with the claimant 90 percent of the time was in a visual or talking distance. Mr. Livezey said that before the accident claimant was a real good welder and hard worker. He said claimant could run at a 250 percent rate of the job while others couldn't do 70 percent. He said claimant could do things faster than anyone else. He said he was able to determine this as the company put out a list of names and jobs and he could tell the percent or rate for a job. Mr. Livezey said that after claimant returned to work after his January 28, 1988 injury, he couldn't use his left arm at all and that he could pick up a few papers and a pen. He said he had to use a sling all the time. He said he saw claimant one time without a sling and that his arm seemed as though it had slipped out of the joint. He said claimant used a TENS unit with wires running into the arm. As to joint exhibit 47, the power cable, he said that there is not enough tension so that anyone that is pulling out the cable would not be injuring oneself. Harry Bolton, the plant manager for defendant employer, has worked there since February 1978 except for three years. His duties are to operate the plant and the production. He knows claimant and was satisfied with claimant's work and said that claimant did what he was asked to do. He said claimant came back to work after his January 28, 1988 injury and worked until his layoff in the fall of 1989. Mr. Bolton said that some people were called back to the second shift but that seniority allowed them to stay working. He said no supervisors worked the second shift but said claimant is still in a good status to be hired back and knew of no reason claimant would not be hired back unless claimant felt he couldn't do the job. He acknowledged that defendants did a pre-employment physical in January 1988 and the company's doctor did all the pre-employment physicals and they have been satisfied with his examinations. Mr. Bolton said that when claimant returned to work in February 1988, he was able to do the foreman work but was not able to do the work he was doing on January 28, 1988, at which time he was a welder and not a foreman. Ronald R. Reschly, M.D., an orthopedic surgeon, testified through his deposition on March 8, 1992 (Jt. Ex. 17). The doctor referred to the various other medical reports from other doctors and records he had. He said he first saw claimant on January 29, 1988, in reference to his January 28, 1988 work accident (Jt. Ex. 17, p. 13). The doctor indicated that claimant had purplishness of the hand, that he was tender in the shoulder area, and that overall he was impressed with the severity of claimant's pain. He indicated that claimant was holding his shoulder very protectively and that he placed him in a sling. On claimant's October 21, 1988 visit, the doctor noticed claimant still had a clawing of his middle fingers and had weakness at various places. Page 8 The doctor also referred to and read his February 23, 1988 letter in which he mentioned that he could push claimant's shoulder back and forth about one-half inch each stretch, both interior and posterior direction. He felt that claimant's mechanism of injury sounded as if it was the brachial plexus (Jt. Ex. 17, pp. 19-21). The doctor also labeled claimant's condition as reflex sympathy dystrophy (Jt. Ex. 17, p. 24). The doctor indicated he didn't think the claimant ever got past the pain syndrome that he is labeling reflex sympathetic dystrophy. He also believed the brachial plexus manifested itself in the clawing of the ulnar side of claimant's fingers (Jt. Ex. 17, p. 25). The doctor referred to his October 21, 1988 letter and a notation thereon and a November 18, 1988 notation referring to his 10 percent impairment and later his withdrawing of that. The doctor indicated he ultimately never did have an opportunity to do a complete impairment rating including the range of motion on the claimant. He indicated he is pretty much referring that to a Dr. Grundberg and a Dr. Taylor. It is obvious to the undersigned that the doctor felt there was significantly more impairment than he originally thought or originally stated in October 1988, and that was a very incomplete rating at that time. It is obvious to the undersigned that the doctor felt claimant had poor or little use of his left shoulder but that he was fortunate to have had the job of supervisor which did not require the use of his left shoulder like other work he would otherwise have to do in normal welding or similar jobs. The doctor felt that claimant will always have some degree of chronic pain when asked as far as prognosis of claimant's reflex sympathetic dystrophy. The doctor indicated that repetitive or prolonged usage about the shoulder both in terms of strength and range of motion would have an effect on claimant's shoulder (Jt. Ex. 17, pp. 37-38). He indicated temperature exposure, cold and emotional stress can affect claimant's condition to a certain extent (Jt. Ex. 17, p. 39). The doctor indicated that if claimant just let his arm hang there and do nothing with it, he would be in a lot worse trouble than he is now. He also indicated that there is a fine line between not using enough and being forced to use it too much. The doctor indicated any job that requires his repetitive strong usage above the shoulder, especially at extremes of motion, is going to be a problem for the claimant (Jt. Ex. 17, p. 40). The doctor was asked as to claimant's January 1977 car accident. The doctor indicated that this had no direct relationship to his January 28, 1988 injury and that as far as he was concerned in looking at the records, claimant's condition completely cleared up from any 1977 accident (Jt. Ex. 17, p. 46). The doctor also indicated that claimant is fair, a pusher and hard worker and that given the amount of pain claimant had a lot of the people might not have been making it back to work (Jt. Ex. 17, p. 47). The doctor was asked about claimant's December 16, 1988 Page 9 injury in which he fell when he was going over a fence and lost his balance. Basically, the doctor indicated that this was not a new injury and that he had gotten over this, was no big deal and claimant had got back to where he was when he last saw him on November 18, 1988 (Jt. Ex. 17, pp. 49- 50). The doctor also was asked regarding claimant's April 25, 1989 injury in which claimant was pulling a spring liner when he felt his left shoulder pop. The doctor indicated that it was a temporary aggravation and that claimant basically got back to the status he was in when he saw him on November 18, 1988. The doctor indicated that claimant should be able to do the supervisory job indefinitely and that in terms of welding, he indicated he could probably weld small parts if he only had to use his left arm to stabilize the parts and didn't have to use it excessively, such as writing on a piece of paper using the left hand to stabilize paper. He also indicated claimant could use the left arm in a dependent or hanging down position somewhere between occasionally and moderately. He thought claimant could do a sedentary job, supervisory jobs, very light welding jobs on a table and/or similar types of jobs, but he did not mean lifting repetitively. He thought if he should have to do lifting, it should be restricted to 10 or 15 pounds (Jt. Ex. 17, pp. 53-54). The doctor acknowledged that the arthrogram taken of claimant's shoulder in 1988 did not show any rotator cuff and the radiology reports of January 20, 1988 did not show any fracture or dislocation nor did it indicate any soft tissue or bone or joint abnormalities (Jt. Ex. 17, pp. 57, 58 and 59). Dr. Reschly acknowledged that after claimant's February 18, 1988 examination by him, he referred the claimant to Dr. Taylor, who has a subspecialty in sports medicine and experience in terms of injuries to the knee and the shoulder and Dr. Grundberg is certified in the subspecialty of the hands and upper extremity (Jt. Ex. 17, p. 62). The doctor was asked as to the EMG test that was done on April 7, 1988, and Dr. Taylor's records of March 29, 1988, regarding claimant's brachial plexus diagnosis. The doctor did understand that the EMG was normal. The doctor was not sure what all that meant in light of the fact that prior to the EMG all three of the doctors seemed to clinically have the impression that claimant had brachial plexus. The doctor concluded, based on Taylor's and Grundberg's exams, that the brachial plexus part of the injury was not very severe as it did not indicate anything on the EMG (Jt. Ex. 17, p. 67-68). The doctor was extensively questioned on cross-examination as to the December 1988 deer incident and the April 25, 1989 popping of his shoulder when he was pulling wire out of a power cable. The doctor seemed to indicate that claimant was doing pretty well and had good Page 10 motion prior to the December and April incidents. The doctor seemed to indicate that claimant had pretty much or close to a full range of motion prior to those incidents (Jt. Ex. 17, p. 91). Although the doctor's cross-examination is confusing in part, it appears that the doctor still concluded that whatever aggravation or increased pain or symptoms may have occurred after the deer incident in December of 1988 and the cable pulling in April of 1989, claimant's condition returned to basically the condition the doctor noticed in November of 1988 which he attributed to the January 28, 1988 work injury. Richard Flint Neiman, M.D., a neurologist, testified through his deposition on January 29, 1992, joint exhibit 18. Claimant was referred to Dr. Neiman by Doctor Michael Durkee regarding an evaluation. The evaluation occurred on June 30, 1989. The doctor related the history he took and indicated at that time that claimant appeared to have a claw-like deformity as far as his left hand with discoloration from the mid-humerus on down (Jt. Ex. 18, p. 11). On July 20, 1989, he thought claimant had a normal EMG study of the left upper extremity. At that time, he thought claimant had a reflex sympathetic dystrophy (Jt. Ex. 18, pp. 12-13). In his testimony, the doctor talked about the instability of claimant's shoulder and the multi direction that the shoulder could take. He also indicated that at least by February 1990, he felt that the injury was to the whole person, the same as indicated by Dr. Robb, rather than just to the left upper extremity itself (Jt. Ex. 18, pp. 18- 19). On cross-examination, Dr. Neiman agreed with Robert Hayne, M.D., that claimant's MRI of the neck was within normal limits, the x-rays of his cervical spine were within normal limits, and that claimant could probably continue working indefinitely in the supervisory capacity he is working. He also agreed with Dr. Hayne's arthrogram as being normal and that the CT scan and myelogram do no show any evidence of disc herniation, nerve root compression or impingement of the spinal cord. These are all apparently the result of Dr. Hayne's examination from January 1991 (Jt. Exs. 34 and 35). From the time of the doctor's deposition, it was obvious he did know about the December 1988 deer hunting fall incident or the April 25, 1989 spring pulling power cable incident. They also referred to a May 1988 car accident but the parties at the hearing agreed that this was another person with the name Henry Kriegel, even though at the time of the deposition that apparently had not been known by the parties as they asked the doctor about that and what effect it would have on claimant's condition. Basically, the doctor concluded notwithstanding these other incidents, that at least as to the December 1988 incident, there is no more than a temporary setback to the shoulder itself and the doctor didn't think it was an injury to cause much difficulty that claimant is currently having. It Page 11 appears the doctor felt that in November of 1988, claimant's condition was such that the symptoms he has were related to the January 28, 1988 injury and not a deer incident (Jt. Ex. 18, pp. 47, 56-57). Later, the doctor testified as to the April-May 1989 incident in which claimant was pulling a spring liner and felt his shoulder pop. The doctor felt that that popping occurred as a result of claimant's shoulder condition from the January 28, 1988 injury and that if claimant had a normal shoulder, he would not have had any subluxation (Jt. Ex. 18, p. 58). He felt it was more of an aggravation of the reflex sympathetic dystrophy which has now disappeared (Jt. Ex. 59). The doctor stated that he did not think the orthopedic doctors feel there is anything further to be done regarding the discoloration of claimant's shoulder. He did not believe an operation could correct that situation and therefore surgery is not indicated. He indicated claimant might end up developing reflex sympathetic dystrophy again and that might require another stellate ganglion block (Jt. Ex. 18, p. 63). There are various reports and records of this doctor as well as the previous doctor, Dr. Reschly, that are exhibits in this case, whether they be deposition exhibits or other exhibits. The undersigned does not feel the necessity of going through those individually and referring to them as the doctor had them before them in their testimony and referred to those. The undersigned will note that in the September 17, 1990 report of Dr. Neiman, the neurologist, the final impairment to claimant's body as a whole which made up the particular percentages to which he testified in his deposition, is set out in deposition exhibit 3, page 18. In this report, the doctor opined a grand total of 66 percent disability of the upper extremity which he translated to 40 percent of the whole person. As indicated in his testimony, this is a body as a whole injury. W. John Robb, M.D., an orthopedic surgeon, testified through his deposition on February 3, 1992. He first examined claimant on April 10, 1990, and related the history that claimant gave him. He explained the nature of his examination and the motions he put claimant through. He concluded that claimant's injury was a compression of the brachial plexus, the bundle of nerves that goes from the neck underneath the collarbone but over the first rib and the force from above jammed the shoulder girdle downward compressing these nerves against the first rib. He also referred to claimant's sympathetic dystrophy at the time (Jt. Ex. 19, pp. 11-13). Dr. Robb opined that claimant had a severe compression of the neurovascular structures, which is a brachial plexus and adjacent vessels of the left shoulder, complicated by a secondary reflex sympathetic dystrophy, and a subluxation of the left scapulo-humero joint secondary to muscle weakness as a result of the January 28, 1988 injury (Jt. Ex. 19, p. 17). The doctor then opined that claimant had a 28 percent body as a whole impairment (Jt. Ex. 19, p. 22). The doctor Page 12 indicated that in terms of physical labor, claimant would be limited to the use of his lower extremities and right arm and will have very limited use of his left arm and left hand (Jt. Ex. 19, p. 23). On cross-examination, the doctor acknowledged that in arriving at his impairment rating, he used his own experience and also referred to the Guides, as a guide only (Jt. Ex. 19, p. 33). The doctor also indicated that the incidents of December 1988 and April 25, 1989 were only temporary aggravations and not new injuries (Jt. Ex. 19, p. 34). Robert Hayne, M.D., a neurosurgeon, testified through his deposition on September 13, 1991 (Jt. Ex. 20). He initially examined claimant on January 17, 1991, and indicated claimant's examination was entirely within the normal limits except for the left upper extremity. The doctor testified that he reviewed the MRI study of the neck and felt that was within normal limits. The electromyogram he ordered of the left upper extremity showed no diagnostic abnormalities present on the electromyogram or nerve conduction velocity studies and the x-rays of his cervical spine were within normal limits (Jt. Ex. 20, pp. 6-7). After that visit, the doctor recommended that claimant have a surgical myelographic study with possibly an enhanced CT scan of the cervical spine which was carried out May 15, 1991. He indicated that this showed mild changes of spondylosis with some associated ligamentous thickening in the cervical spine region, but basically he concluded that the myelogram and corresponding CT scan were within generally normal limits. Dr. Hayne felt that these tests failed to show any significant pathological condition (Jt. Ex. 20, pp. 9-10). The doctor said a repeat electromyogram on June 24, 1991 at Younkers Rehabilitation Hospital showed in the left upper extremity there was a mild carpal tunnel syndrome and an active left cubital tunnel syndrome (Jt. Ex. 20, p. 12). The doctor last saw claimant on July 31, 1991, at which time claimant again stated his main trouble was with headaches and he also described numbness of the entire left upper extremity. The doctor said the examination showed abduction of the left arm to be impaired and the strength was 40 to 50 percent of normal strength but said this was difficult to evaluate because of pain brought about with abduction of the arm. He felt the strength and extension and flexion of the forearm was 50 to 60 percent of normal on the left and the grip on the left was 20 percent of normal and the effects of the fingers on the left were 30 percent normal (Jt. Ex. 20, p. 13). The doctor did not feel claimant was in need of any surgery for his neck or shoulder problems as of that time, nor did he recommend any surgery for claimant's headaches. The doctor opined that claimant's conditions were not likely the result of a particular trauma in January 1988 and that he did not feel the likelihood was very great that claimant had sympathetic dystrophy in the left upper extremity (Jt. Ex. 20, pp. 15-16). The doctor was also Page 13 unable to come up with any cause of claimant's headaches (Jt. Ex. 20, p. 17). The doctor said that in view of claimant continuing to work steadily in a supervisory capacity and in view of his symptoms remaining more or less with the same intensity, he felt claimant could probably continue working indefinitely in a supervisory capacity. The doctor did say the claimant did not provide him with any detailed description of his supervisory position. The doctor indicated that it would be advisable for claimant to avoid repetitious extension of his neck and to avoid lifting weights over 40 pounds or so (Jt. Ex. 20, pp. 19-20). The doctor did indicate that the fact that EMG's don't show definitely that there is a lesion at a certain level of the brachial plexus or the nerves that breaks off does not necessarily eliminate the presence of pathological involvement of a particular nerve (Jt. Ex. 20, p. 30). The doctor said there is a possibility there exists some injury to the brachial plexus from claimant's trauma on January 28, but he could not be certain in the absence of abnormalities and the various tests that are carried out. It also appears from the doctor's examination that he could not see the shoulder sublux in different directions as was indicated on a Mayo examination (Jt. Ex. 20, p. 33). The doctor did state that the nature of claimant's injury in January of 1988 when an endloader fell on claimant's shoulder could cause a brachial plexus lesion. The doctor expected due to the nature of claimant's trauma that it would produce a brachial plexus injury but in the absence of reflex changes and the absence of myographic changes, it would mitigate against there being a significant injury to the plexus but again he did not rule it out (Jt. Ex. 20, p. 35). The doctor then opined that it is probably more likely that claimant did sustain some injury to the brachial plexus but he had no explanation assuming the accuracy of the neurological findings to account for the deficit (Jt. Ex. 20, p. 37). The doctor opined that claimant had a 30 to 40 percent impairment of the function of the left upper extremity as a whole and that that would convert to 18 or 24 percent of the body as a whole under the third edition of the AMA Guides. The doctor was asked where the brachial plexus is in relation to the body and after some back and forth questions and answers, the doctor said it was on the shoulder side proximal to the upper end of the humerus (Jt. P. 20, p. 44). James B. Paulson, M.D., a specialist in family practice, testified through his deposition on April 9, 1992 (Jt. Ex. 16). Dr. Paulson was asked concerning claimant's pre-employment physical that occurred on January 8, 1988. He indicated that Dr. B. J. Wiltfang, who gave the physical, is known as one of the toughest physical examiners in terms of pre-employment in the area. He indicated there was no evidence of claimant suffering from residual disability from any previous injuries (Jt. Ex. 16). The doctor indicated Page 14 that he had examined claimant first on January 29, 1988, after he had seen Dr. Wiltfang a day earlier. Dr. Wiltfang was apparently out of the office and this is where Dr. Paulson, Dr. Wiltfang's partner, saw claimant the next day. Dr. Paulson said he sent claimant to an orthopedist because claimant appeared to have pain out of proportion of what the doctor could physically see. The doctor later learned from the doctor whom he referred claimant, Dr. Reschly, that over the course of the last four years he has come to recognize claimant's injury to brachial plexus that occurred on January 28, 1988, and that Dr. Paulson said he subsequently learned about the chronicity of the problem and how difficult it is to treat, how wide spread and bizarre the symptoms can be (Jt. Ex. 16, p. 7). Dr. Paulson said he had very minimal experience with this condition. The doctor indicated he thought claimant's post-traumatic migraine syndrome headaches and coma-like signs and symptoms were the result of his accident of January 28, 1988 (Jt. Ex. 16, p. 12). The doctor also concluded that from the reports he received from the consultants who saw him, including Dr. Gannon, Dr. Neiman, and Dr. Hayne that they felt they were looking at some form of brachial plexus injury to the shoulder and post-traumatic migraine (Jt. Ex. 16, p. 13). This doctor was asked various questions by the attorneys as to either comments or reports of other doctors who were specialists in the area. It is obvious from Dr. Paulson's deposition that he defers or is not going to contradict what other specialists may have said. The undersigned sees no reason to set out herein much of Dr. Paulson's testimony as it would appear from the attorneys that they are asking him to either agree or disagree or as a non-specialist in the area, to judge the correctness or conclusions of a specialist. Again, it is obvious the doctor feels that many of these areas should be left to the specialists. The question came up as to whether claimant was magnifying his pain symptoms or malingering and, of course, Dr. Paulson said anything could be possible. The doctor emphasized that he has seen claimant around the community in Grinnell since his January 1988 incident and knows the situation. He observed him out of the corner of his eye. He stated that claimant always had his TENS unit on and that he has never seen him doing anything with the left arm. The doctor said claimant always appeared to be in an immobile form and that he has got his TENS unit on, if not 24 hours a day it must be close to it (Jt. Ex. 16, p. 42). The doctor also commented concerning Dr. Hayne's 40 pound limit with claimant's right and left arm, neck and legs. He indicated that from his way of thinking, claimant could not lift 40 pounds using his left arm today. There are many reports and exhibits by various doctors, several of whom gave deposition testimony which has already been reviewed. The undersigned believes it is not necessary to set out herein some of the doctors' reports or comments as the doctors who gave depositions in detail either Page 15 referred to or stated in their deposition testimony the same or similar comments that are reflected in their notes or reports, or referred to other doctors' comments and opinions that are reflected in the various written exhibits. The main issues in this case is the extent of claimant's permanent disability, if he has a permanent disability, and entitlement to disability benefits, and, whether claimant's injury is to the left upper extremity alone or to the body as a whole. The fact that makes this decision more difficult is the event that occurred in December of 1988, in which claimant fell while crossing a fence while deer hunting, and in May of 1989, when he was pulling a spring from a power cable. Defendants contend that either or both of these events were new injuries which have resulted in claimant's current condition. Claimant contends that these events which occurred were at most aggravation of an already existing condition and that the accident of January 28, 1988 left claimant in such an injured condition that these other events were either caused, at least as to the April 1989 incident, or aggravated the January 28, 1988 injury conditions but that claimant's current condition is the result and would have existed notwithstanding the December 1988 and April 1989 incidents. What adds fuel to the fire is that claimant was apparently getting better prior to the December 1988 incident. The undersigned is concerned with the disagreement or dispute or lack of acknowledgement by certain specialists as to the subluxation or lack of subluxation of claimant's shoulder. The undersigned believes that taking the medical evidence as a whole, there should not be as much of a disagreement or lack of acknowledgement of claimant's subluxation or ability to move the shoulder in and out and in different directions. Claimant seemed to indicate that on some occasions when tests were given, his shoulder was actually held down or pressed into position so that it wouldn't pop out. This would tend to explain the situation if that was correct. There is no dispute that an injury arose out of and in the course of claimant's employment on January 28, 1988. The undersigned believes that the greater weight of medical evidence shows that claimant was improving from his January 28, 1988 injury but still had underlying problems with his shoulder and that this problem was a brachial plexus condition along with a reflex sympathetic dystrophy. The undersigned finds that claimant's underlying medical condition that resulted from the January 28, 1988 injury was aggravated by the deer hunting event in December 1988, but that this deer hunting incident did not cause claimant's current condition and that it was claimant's January 28, 1988 injury that has resulted in claimant's current disability. As to the May 1989 incident in which claimant was pulling a spring-wire from the power cable, the undersigned Page 16 finds that it was the condition that resulted from the January 1988 injury that caused claimant to be in such a condition that there was a popping of his shoulder that occurred in April 1989, but that this was an aggravation and was not a new and separate injury which itself caused claimant's current condition. The undersigned could have the alternative to determine that claimant's condition is the result of claimant's April 25, 1989 work injury. The undersigned believes the greater weight of medical evidence shows that that was more of an aggravation and that claimant's condition is the result of his January 28, 1988 work injury. As to whether claimant's injury is to the left upper extremity or the body as a whole, the undersigned finds that the greater weight of evidence shows that claimant's injury is to the shoulder and that area from the shoulder to the neck area and that claimant has a body as a whole injury and not a scheduled member injury. It is not uncommon for specialists to refer to a body as a whole injury that involves a shoulder area as an upper extremity, but in looking at the medical testimony and the location of the injury and the effect of the injury, it is clear to the undersigned that it is into claimant's body as a whole. At the hearing, the undersigned noticed that it was very clear that claimant's shoulder was able to be moved in different direction and literally moved in and out of what appeared to be the shoulder socket and that when the TENS unit was turned on, there was muscle movement within the shoulder and that the shoulder was less likely to be able to be moved around or pulled out of the socket. The undersigned finds that claimant incurred a brachial plexus injury as a result of the January 28, 1988 injury and this type of injury and condition itself without question is a body as a whole injury. The undersigned finds that the greater weight of medical evidence shows that claimant's permanent disability and body as a whole injury is causally connected to his January 28, 1988 work injury. There have been medical opinions setting claimant's impairment to his body as a whole from 18 percent up to 40 percent. It appears undisputed that claimant's ability to use his left arm has been severely affected. The undersigned's personal observance supports what the undersigned feels is a greater weight of medical evidence that claimant has very little use of his left arm, particularly when it comes to being able to perform any work with said arm. The undersigned having causally related a permanent disability to claimant's January 28, 1988 work injury, and further determining that claimant incurred a body as a whole injury, the extent of claimant's industrial disability is the next thing to be determined. The record shows that claimant was a very good and qualified worker. Mr. Gray had high praise for the claimant and indicated that he was a self-motivated person, worked good alone and that not many people could keep up with the Page 17 claimant at his work. Mr. Gray agreed with Mr. Harter, who is the plant manager who wrote a letter indicating that claimant was one of the best and most knowledgeable and highly motivated employee in his group. Mr. Livezey testified that claimant could do work faster than anyone and could run 250 percent on the job where others couldn't do 70 percent. Defendant employer tried to accommodate claimant and take advantage of his expertise and abilities and allowed him to return to work as a supervisor. It is obvious claimant was not at that time able to do his former welder job nor is he able to do his former job now. There is testimony from some medical individuals that claimant could continue supervising for defendant employer in the capacity that he was doing before his layoff in or around August 1991. It is also obvious from the evidence, both the testimony and written evidence, and personal observation by the undersigned that claimant has very limited use of his left upper extremity. The defendant employer was familiar with claimant and knew his abilities and, because he had a work injury on their premises, tried to accommodate the claimant which enabled claimant to do the work as a supervisor for them. It is also evident that another employer would not be so gracious or expected to be so gracious in accommodating claimant in his condition. Claimant has not worked at defendant employer since August 1991 due to a layoff at the factory. Shortly, his time will run out as far as being able to be recalled. There is no evidence that any recall of claimant to continue working will be forthcoming in the near future in considering any evidence put in the record by Farmland and yet there is still time for recall. A Mr. Bolton, defendant employer's plant manager, indicated claimant is in good status to be hired back and knew of no reason claimant would not be hired back. The fact is he has not been hired back and there is no known intent to do so in this record. Defendant employer has provided no rehabilitation for the claimant since he has been laid off in September 1991. It would appear that claimant does have some transferable skills but they are in the area of welding which he is not able to do but that his expertise is such that he can motivate and can supervise individuals. The record indicates that he did that for defendant employer until he was laid off. It is obvious defendant employer recognized his expertise. It is also clear from the record and from personal observance of the undersigned that claimant is not able to use his left arm or hand to do welding. He would be able to supervise. Claimant has made searches for work since his layoff (Jt. Ex. 37). It is understandable, just by personal observance of the claimant and the way he holds and must hold his left arm, and looking at the clawing condition of his hand and seeing the TENS unit which has wires running up to the shoulder, that it would seem fruitless for this claimant to approach an employer wanting Page 18 to perform work for which he has transferable skills and expecting to be hired under those conditions unless they were so desperate that they would take anyone. Knowing claimant's problems and his qualifications, he would most likely only be considered as a supervisor or foreman in which he would be supervising or assigning jobs. This job usually is handled by someone who has seniority or has risen up through the ranks and it would not be as possible for a company to hire this claimant with his condition over someone who would be of higher seniority within a plant. The most likely person to hire or rehire this claimant would be the defendant employer who knows his qualifications and who was responsible for his injury. They have something at stake which would motivate and encourage the defendant employer to take this claimant back. The undersigned believes that this claimant desires to work and would immediately accept an opportunity to return back to the defendant employer and doing what he was doing before his layoff which would take advantage of his expertise and skills and perform a valuable service for this employer. The undersigned is torn between the fact that it would appear from the total record that this claimant is now unemployable in his present condition and, thereby, being totally disabled. Likewise, there is still time for recall of defendant employer at which time this claimant could be placed in a supervisory capacity performing valuable work which would be valuable to the defendant employer and would enable this claimant to make something of his life and to turn his life around from this severe injury. In determining claimant to be totally disabled could leave no incentive to the defendant employer and would most likely hamper the claimant's motivation and desire to return to work. As long as there is this spark of hope of returning during this recall period, and knowing that the claimant has a review-reopening opportunity if, in fact, he is not called back within the recall period, and, also realizing the defendant employer has review-reopening rights if they put the claimant back to the supervisory job, the undersigned feels that taking into consideration all those other factors in determining industrial disability, namely, claimant's age, past and present medical history, employment history, transferable skills, nature and location of injury, intelligence, permanent impairment, claimant certainly has a substantial loss of earning capacity and has incurred an 80 percent industrial disability. Claimant is entitled to 400 weeks of permanent partial disability benefits at the rate of $234.76 beginning February 8, 1988. As to the 85.27 issue, the issue being causal connection and payment of mileage, since the undersigned has found causal connection, the defendants are responsible for claimant's medical bills and the mileage incurred in relation to those medical services received. As to the 85.38(s) issue in which defendants want Page 19 credit for $4,920.65, which amount was paid by the nonoccupational health carrier, defendants shall receive credit for that amount but that does not resolve any issue of subrogation that may be between the defendant insurance carrier and the nonoccupational health insurance carrier. Defendant employer is to hold claimant harmless from any obligation or liability on any medical bill that has been incurred as a result of claimant's January 28, 1988 injury. CONCLUSIONS OF LAW The claimant has the burden of proving by a preponderance of the evidence that the injury of January 28, 1988, is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). An injury is the producing cause; the disability, however, is the result, and it is the result which is compensated. Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). 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 Page 20 disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial dis ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, l985). It is further concluded that: Claimant incurred an injury that arose out of and in the course of his employment on January 28, 1988, which caused claimant to incur a substantial impairment to his body as a whole and certain restrictions and limitations. Claimant's December 16, 1988 incident in which he fell did not result in or cause claimant's current disability or impairment but was an incident that temporarily aggravated claimant's conditions that existed as a result of his January 28, 1988 work injury. Claimant's April 25, 1989 incident at work in which he was pulling a spring-wire from a power cable was not a separate injury which caused claimant's current condition but was a temporary aggravation. Said aggravation was the result of claimant's condition that was caused by his January 28, 1988 work injury. Defendants are responsible for payment of claimant's medical bills and medical mileage incurred as a result of his January 28, 1988 work injury. Page 21 Defendants are to be given credit for the $4,920.65 paid by a nonoccupational health carrier but that defendants are to hold claimant harmless from any obligation concerning that amount. Claimant's January 28, 1988 work injury caused claimant to incur an 80 percent industrial disability. ORDER THEREFORE, it is ordered: That defendants shall pay claimant four hundred (400) weeks of permanent partial disability benefits at the rate of two hundred thirty-four and 76/100 dollars ($234.76) beginning February 8, 1988. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. Defendants have previously paid no permanent partial disability benefits and only paid healing period which was stipulated to by the parties. That defendants shall pay all of claimant's medical bills and medical mileage expenses incurred as a result of his January 28, 1988 work injury and shall receive credit for the four thousand nine hundred twenty and 65/100 dollars ($4,920.65) paid by a nonoccupational health carrier under provisions of 85.38(2), but shall hold claimant harmless from any liability concerning this sum. That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall pay the costs of this action, pursuant to rule 343 IAC 4.33. That defendants shall file an activity report upon payment of this award as required by this agency, pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of July, 1992. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Page 22 Copies to: Mr Paul J McAndrew Attorney at Law 122 S Linn St Iowa City IA 52240 Mr Cecil L Goettsch Mr D Brian Scieszinski Attorneys at Law 801 Grand Ave Ste 3700 Des Moines IA 50309 1108; 1803; 1803.1 5-2503; 5-1700 Filed July 28, 1992 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : HENRY E. KRIEGEL, JR., : : Claimant, : : vs. : : File No. 875464 FARMHAND, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : AMERICAN MUTUAL LIABILITY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1803.1 Found claimant has a work injury resulting in a body as a whole injury rather than a left upper extremity-scheduled member injury. 1803; 1108 Found claimant's work injury caused an 80% industrial disability. Claimant is a 42-year-old high school dropout. He is currently unemployable and subject to recall in next approximate one month. If recalled, he could only do supervisory work but could not be a welder doing the actual welding that he was doing at the time of injury. Claimant was a very experienced welder before his injury. He has little use of his left arm and hand. His shoulder can be pulled in and out of the socket without a TENS unit with wires to his shoulder. 5-2503 Found claimant entitled to medical benefits and mileage. 5-1700 Defendants entitled to medical credit under 85.38(2), but are to hold claimant harmless from any liability thereon as to third party.