Page 1 before the iowa industrial commissioner ____________________________________________________________ : CHARLES GARY, : : Claimant, : File No. 875599 : vs. : : A R B I T R A T I O N PARKER-HANNIFAN, : : D E C I S I O N Employer, : Self-Insured, : Defendant. : : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Charles Gary, claimant, against Parker Hannifan, self-insured employer, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained on May 9, 1986. This matter came on for hearing before the undersigned deputy industrial commissioner, Jean Ingrassia. The record was considered fully submitted at the close of the hearing. The record in this case consists of the testimony of Charles Raymond Gary, Carol Jonelle Gary, Mark A. Gary, Matthew Ray Gary, Cleo Gary, Bob Woods, Robert Kinser, Gary Ralph Goodmote, Chris Bullington and Karen A. Stricklett. The record also consists of parties joint exhibits 1-83 and A1-A6. Pursuant to the prehearing report and order submitted and approved on November 29, 1990, the parties stipulated that an employer-employee relationship existed between claimant and employer at the time of the alleged injury. issues The issues for resolution include: 1. Whether claimant sustained an injury on May 9, 1988, which arose out of and in the course of his employment with employer; 2. Whether there exists a causal relationship between the injury and the resulting disability; 3. The nature and extent of claimant's disability, if any; and, 4. Whether claimant is entitled to medical benefits under Iowa Code section 85.27. FINDINGS OF FACT Page 2 After carefully considering the testimony given at the hearing, the arguments made and the list of exhibits contained herein, the undersigned makes the following findings: Claimant was born on February 3, 1941 and graduated from high school in 1959. He completed thirty hours of heating and air conditioning course work through Southwestern Community College and about thirty hours of welding classes and twenty-five hours of sheet metal courses through the same college. He worked at various times as a display clerk, router at Beech Aircraft, and production and machine operator and quality control manager at Douglas & Lomason. In 1974, he accepted employment at Parker-Hannifan as a maintenance mechanic and worked there for thirteen years until he quit on May 1, 1988. His employment at Parker-Hannifan was interrupted for a period of time from January 21, 1983 through September 6, 1983, during which time claimant underwent an alcohol treatment program. Claimant has not worked since leaving Parker-Hannifan. He receives long-term disability benefits totaling $1,248 per month from the company. The pertinent medical evidence reveals that claimant had an insidious onset of muscle twitching and occasional jerking in 1986 which gradually evolved into oral mandibular (lower jaw bone) dystonia (disordered tonicity of muscle). On May 26, 1987, the claimant was examined by Michael P. McDermott, D.D.S., for evaluation of acute facial pain and inability to close his mouth correctly. On June 11, 1987, bilateral arthrograms of the joints suggested degenerative processes in the joints. Arthroscopic surgery on both right and left tempromandibular joints confirmed bilateral interarticular disease. Dr. McDermott concluded that this is most commonly found with early degenerative joint changes or early arthritic changes (Joint Exhibits 58-62). In August 1987, claimant went to the Mayo Clinic and was evaluated by dentists and oral surgeons who referred him for psychiatric evaluation which he declined (Jt. Ex. 44). He had been seen by four psychiatrists previously and they were of the opinion that there is no psychological or emotional background to his problems. He was then seen by an oral surgeon in Wichita, Kansas, who suggested that his teeth be wired. This was performed on February 12, 1988, but a week later some of the wires broke off and his teeth were rewired in Council Bluffs, Iowa, on February 19, 1988. However, two days later the wires broke again and he was referred to the University of Nebraska Medical Center where the wires were cut in March 1988. On April 10, 1988, he was seen by A. S. Lorenzo, M.D., at Jennie Edmundson Memorial Hospital in Council Bluffs, Iowa, for a neurological evaluation. Dr. Lorenzo reported that "the family history of the patient reveals that his father may have Parkinson's disease, characterized primarily by tremor over 20 years." (Jt. Ex. 54) Dr. Lorenzo diagnosed focal, lateral pterygoid muscle dystonia with secondary contracture of the platysma and sternocleidomastoid muscles and neck flexors. Dr. Lorenzo did not treat claimant with any medication but referred him to Ronald F. Pfeiffer, M.D., neurologist, at Page 3 the University of Nebraska Movement Disorder Clinic, for a second opinion. Claimant was initially evaluated on May 4, 1988. He presented with complaints of involuntary opening of his mouth and a two month history of forgetfulness, bifrontal headaches and neck pain. He related that he smoked a pack and a half of cigarettes per day for the past twenty-two years and admitted that he was an alcoholic but stated that he quit drinking about five years ago. As to his family history, he reported that his father died at age 65 of a heart attack and suffered from diabetes myelitis and Parkinson's Disease. He denied muscle weakness or paresthesias in the upper or lower extremities but stated that he feels jittery all the time. He also reported a 40 pound weight loss over the past year and extreme fatigue. On examination, Dr. Pfeiffer reported that muscle strength and tone were within normal limits in both upper and lower extremities, deep tendon reflexes were brisk and symmetrical in the range of 2+/5 and Babinski signs were negative bilaterally. A sensory examination was within normal limits in both upper and lower extremities, cerebellar function was normal, gait was brisk and he was able to walk on his tip toes, heels and perform tandem walking without difficulty. Dr. Pfeiffer diagnosed mandibular dystonia and initiated baclofen therapy (Jt. Ex. 27(g)). Claimant was then referred by his attorney to Carol A. Angle, M.D., a board-certified pediatrician and professor at the University of Nebraska/Creighton University since 1954. In addition, Dr. Angle has board certification from the American Academy of Clinical Toxicology. She initially saw the claimant on May 6, 1988, and her preliminary impression included: (1) focal, oro-mandibular dystonia (Meige's syndrome); (2) generalized muscle weakness, in coordination and fasciculation, a probable component of Meige's syndrome; (3) complaints of memory loss and cognitive dysfunction, possibly due to anxiety but also associated with Meige's syndrome; and (4) two years of increased exposure to tolueneisocyanates methyl isobutylketone and other solvents in the rubber softening area (Jt. Ex. 53). Dr. Angle deferred diagnosis until she reviewed the material safety data sheets from Parker-Hannifan and other medical evidence pertinent to claimant's treatment. In the meantime, claimant continued in treatment with Dr. Pfeiffer and Artane and Baclofen therapy was discontinued after claimant reported significant side effects including visual hallucinations and blurred vision. Dr. Pfeiffer referred claimant to Timothy B. Jeffrey, Ph.D., psychologist, for a neuropsychological evaluation of cognitive and memory problems. This was conducted on June 3, 1988 and the results yielded a diagnostic impression of "Adjustment Disorder with Mixed Emotional Features secondary to mandibular dystonia." Dr. Jeffrey stated that the evaluation suggested that Mr. Gary has had problems with management of depression and anxiety prior to his difficulties with mandibula dysfunction and at the present time has mild difficulties with attention and concentration and short-term memory tasks (Jt. Ex. 41). Page 4 Dr. Pfeiffer referred claimant to Joseph Jankovic, M.D., professor of neurology at Baylor College of Medicine and Movement Disorder Expert, for therapy. Dr. Jankovic hospitalized claimant on July 29, 1988, and administered botulinum toxin injections of 50 units into each genioglossus muscle. During the course of his hospital stay he began to notice gradual improvement in his jaw movements although he continued to have considerable difficulty with chewing and swallowing of food. He was discharged on August 1, 1988 without any medications (Jt. Ex. 30). On November 2, 1988, Dr. Jankovic reported to defendants' attorney as follows: After reviewing Mr. Gary's medical records and the information you have provided me, I would have to conclude that there is no evidence that his neurologic problems, chiefly oromandibular dystonia and essential tremor, are in any way related to occupational exposure. The two conditions, dystonia and essential tremor, are often linked, and the latter condition is often improved with alcohol. This is one of the reasons why patients with essential tremor often abuse alcohol and become alcoholics. It is not clear whether his nicotine habit has played any role in his condition. (Jt. Ex. A.1) After Dr. Angle had an opportunity to review the evidence compiled thus far, she concluded that claimant had been exposed to five polypropylene chemicals, ten solvents and three miscellaneous compounds during the course of his employment with Parker-Hannifan and concluded that claimant's symptoms of muscle weakness, tremor, incoordination and cognitive dysfunction relate to thirteen years of recurrent, symptomatic, solvent exposure (Jt. Ex. 76; Deposition pp. 20-21). Claimant was then referred by his employer to Peter G. Bernad, M.D., a board-certified neurologist and internist, and professor in the department of neurology at George Washington University Medical School. Dr. Bernad testified in a deposition dated March 5, 1990, that in the last five years he also developed a subspecialty pertaining to neurotoxicological problems. His practice consists primarily of treating, evaluating and diagnosing patients with movement disorder problems. Dr. Bernad initially evaluated claimant on April 29, 1989. In his report, Dr. Bernad stated, "the patient's primarily neurologic symptomatology and problems are related to oral mandibular dystonia with the secondary neck flexion and muscle involvement. The patient is also troubled somewhat by his tremor that he has had which has been lifelong." (Jt. Ex. 26(d)) During the course of this evaluation, Mr. Gary related a 20 year history of alcohol abuse and frequent blackouts. He related symptoms, including cramps, switching Page 5 and weakness, tremors, incoordination, unsteadiness of hands, weight loss, fatigue, difficulty sleeping, irritability, memory problems, depression and shaking. A comprehensive neurological examination was conducted and Dr. Bernad reported, "It is quite clear as I watch him that his oral mandibular dystonia is more extensive then [sic] just involving the mouth or the mandibles and actually extends into the neck area and the shoulder area, and he seems to jerk forward which is striking, and may not be under voluntary control." (Jt. Ex. 26(i). As to claimant's history of complaints, Dr. Bernad testified that: My understanding of the onset of the neurological problems is that this has been virtually life long. Of course I consider the tremor and the tremor that he's had is probably something that occurred either in his teens or at least was identified in the teens, or in the 20s; and that the oral mandibular dystonia probably was present for at least 20, 30 years, as well, to some extent. (Dr. Bernad Dep., p. 25) Dr. Bernad felt that claimant's symptoms could be the result of his history of excessive alcohol ingestion. He described alcohol as a very potent neurotoxicant chemical substance which causes damage to virtually every aspect of the central and peripheral nervous system. It causes brain atrophy, degeneration of the brain stem and certain cells, vision problems, seizure, blackouts, fallouts, nerve and muscle damage, and weakness. It also causes damage to the liver, endocrine organs, pancreas, and heart. Since it affects the central nervous system, it can also affect thinking and memory. Dr. Bernad also testified that it is significant that claimant's father had a history of movement disorder because the dystonias and the general movement disorder family, have a familial tendency. It was his opinion that claimant has a neurodegenerative disorder and stated that in his opinion, "it would be very far-fetched to try to blame this on something in his environment at work." (Dr. Bernad Dep, p. 50) Dr. Bernad vigorously disagreed with Dr. Angle's impression of generalized muscle weakness and incoordination and her conclusion that claimant's symptoms are related to chronic industrial exposures. He stated that she presented no data, such as the nature of the exposure, duration, the specific type of chemical, to support her conclusions. Dr. Bernad stated that there is no scientific basis to justify her conclusions that somehow, some chemicals at the plant caused to be exacerbated the Meige's syndrome or the oral mandibular dystonia. In order to clarify some of the discrepancies between Dr. Bernad's deposition taken March 5, 1990 and the medical Page 6 reports and opinions of Dr. Angle, claimant's attorney referred him to Carl W. Ludvigsen, Jr., M.D. Dr. Ludvigsen interviewed claimant on June 4, 1990, and reported, in part, "that chronic and recurrent solvent exposure can accelerate or increase the severity of degenerative neurologic disease. The fact that other causes of the focal dystonia have, in fact, been ruled out by multiple laboratory studies which did not find a cause or focal dystonia make the association even more appealing." (Jt. Ex. 2(a)(b)) Dr. Bernad saw claimant for follow-up evaluation on September 6, 1990, and personally visited the Parker-Hannifan plant, visited claimant's work area, talked to co-workers and plant managers. He reported on October 3, 1990, that: In terms of the exposure, the possibility that rubber compounds as outlined by Dr. Angle, may have exacerbated focal dystonia is a non-scientific statement without any basis. As far as I can tell by reviewing the literature there is no evidence that is accepted by a majority of scientists and physicians that would claim that rubber compounds either cause, exacerbate, or in any way are related to Meige syndrome or any other form of segmental dystonia. (Jt. Ex. 4) Dr. Bernad further indicated that at most, claimant's total exposure to Toluene and Toluene Isocyanates is more in terms of hours (to possibly days of exposure in an entire period of years) as opposed to two years. He indicated that Dr. Angle is mistaken as to her assumptions regarding the total exposure that the claimant allegedly had to various chemicals and her theory that Meige's syndrome is caused by exposure to solvents or rubber products is not a theory that is in mainstream of neurology or neuroscientific thinking (Ex. 4(c)). Dr. Bernad concluded that claimant has a form of dystonia which is treatable and a benign essential tremor without any significant weakness or cognitive dysfunction. It was his opinion that Mr. Gary is rehabilitable (Jt. Ex. 4(d)). conclusions of law The first issue to be determined is whether claimant received an injury on May 9, 1988, which arose out of and in the course of his employment with Parker-Hanifan. Claimant has the burden of proving by a preponderance of the evidence that he received an injury on May 9, 1988, which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). Page 7 The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe, 246 Iowa 402, 68 N.W.2d 63. The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63. "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283. Musselman, 261 Iowa 352, 154 N.W.2d 128. The supreme court of Iowa in Almquist v. Shenandoah Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) discussed the definition of personal injury in workers' compensation cases as follows: While a personal injury does not include an occupational disease under the Workmen's Compensation Act, yet an injury to the health may be a personal injury. [Citations omitted.] Likewise a personal injury includes a disease resulting from an injury....The result of changes in the human body incident to the general processes of nature do not amount to a personal injury. This must follow, even though such natural change may come about because the life has been devoted to labor and hard work. Such result of those natural changes does not constitute a personal injury even though the same brings about impairment of health or the total or partial incapacity of the functions of the human body. .... A personal injury, contemplated by the Workmen's Compensation Law, obviously means an injury to the body, the impairment of health, or a disease, not excluded by the act, which comes about, not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee. [Citations omitted.] The injury to the human body here contemplated must be something, whether an accident or not, that acts extraneously to the natural processes of nature, and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. Page 8 Claimant contends that his symptoms of headache, dizziness, imbalance, nausea, staggering and memory loss are attributable to thirteen years exposure to chemical and solvents during the course of his employment at Parker-Hannifan. He testified that while working as a braider area mechanic, he was responsible for regular maintenance on the braider decks. He testified that he would typically mix Deosene and chlorine to clean machine parts. He testified it would take between 45 minutes to one hour to spray down a braider deck with these chemicals and when he hooked them up to a 90 pound air pressure pump to spray the machine, the residue would saturate his clothes. He also testified that he used Safety-Kleen and Deosene to clean rotors for braiders in the carrier room. He stated that he never wore protective clothing and the exhaust fan in the braider area was defective. He indicated that it took 15 gallons of mixture to spray one braider deck and that he needed to fill the cannister at least five times. He repeatedly insisted that the plant provided no safety equipment. Claimant's recitations regarding the particulars of his job, the nature and extent of his exposure to chemicals and solvents and the efficiency of the plant's safety mechanisms, appear exaggerated and contrary to first-hand knowledge and experience of long-term co-workers, supervisors and management personnel. There are numerous inconsistencies and contradictions in the evidence including claimant's testimonial denial that his father had a history of Parkinson's disease. He presented his mother's testimony to corroborate the absence of a family history of tremors but her lack of knowledge of claimant's 20 year history of alcohol abuse undermines the reliability of her testimony. Furthermore, prior to instituting litigation in this matter, claimant freely related to Drs. Lorenzo (Jt. Ex. 54), Jankovic (Jt. Ex. 33), and Bernad (Jt. Ex. 77) that his father had tremors. It is disturbing to the undersigned that, at the hearing, claimant vigorously denied relating this family history to three physicians. Claimant's testimony regarding the performance of his job duties and the environmental factors surrounding his job station, is convincingly controverted by the deposition testimony of Wesley Johnson, Elmer Jenkins and Bruce Doolittle, as well as the hearing testimony of Bob Woods, Robert Kinser, Gary Goodmote and Chris Bullington. Specifically, Mr. Goodmote, a 17 year employee, with 11 years of experience on the braider deck, testified that, at most, a three and one-half gallon, and not a 15 gallon cannister, was filled with 100 percent Deosene rather than 50 percent Deosene and 50 percent Chlorothane to wash the braider deck. Furthermore, he testified that the air pressure in the braider area was 60 pounds and not 90 pounds. He testified, and his testimony was corroborated by other employees, that he was never drenching wet after spraying down a braider deck. This procedure was performed on the average of once every two weeks. Evidence was presented showing that safety is a high priority at the Page 9 plant and safety equipment such as shoes, glasses, tools, rain suits, etc., is available to every employee. Showers are also available and used at the discretion of the braider operators. Mr. Gary chose not to shower before he left the work site. Dr. Bernad personally visited the work area and assisted cleaning the inside of the braider deck. After completing the task, he noticed three small spots on his suit from the Deosene. He interviewed other workers and discovered that no one ever gets drenched while cleaning braider decks. Dr. Bernad also found excellent ventilation and good air supply throughout the plant and that claimant's testimony regarding exposure to various chemicals appears exaggerated. To support his contentions that his symptoms are due to excessive exposure to chemicals at work, claimant relies on incorrect assumptions postulated by Dr. Angle. Dr. Angle admitted in her deposition that she has performed no research pertaining to industrial solvents; never treated or diagnosed a patient with focal dystonia; never visited the Parker Hannifan work facility; and relied primarily on claimant's report of events to make her assumptions about the nature and extent of his exposure to cleaning solvents. She testified that she was not treating claimant nor providing him with any medication or direction as to his clinical treatment. In summary, she testified that "All my opinion is based on what Mr. Gary told me concerning his exposure." (Jt. Ex. 76, p. 87) Claimant bears the burden of proof in this case. After carefully reviewing the record as a whole, the undersigned finds that claimant has not established by a preponderance of the evidence that his symptoms of headaches, dizziness, tremors, imbalance and memory problems are the result of thirteen years of exposure to chemicals and solvents during the course of his employment at Parker Hannifan. The words "arising out of" refer to the course or source of the injury. McClure v. Union, et al., Counties, 188 N.W.2d 283 (Iowa 1971). This requirement is satisfied by showing a causal relationship between the employment and the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986). After carefully reviewing all of the testimony and medical evidence contained in the record, the undersigned concludes that claimant has not met his burden of proof. Claimant's testimony is clearly rebutted by the testimony of co-workers and supervisors. While it is true that claimant has tremors, he has not demonstrated that such are the result of exposure to chemicals and solvents at work. Claimant's symptoms may be the result of a long history of alcohol abuse or a familial predisposition to neurological problems. While it is possible that claimant's work activities may have caused his injury, claimant must prove not merely a possibility but a probability. On this record, it cannot be said that this burden has been met. Accordingly, other issues are moot. Page 10 order THEREFORE, it is ordered: That claimant shall take nothing from this proceeding. That both parties shall divide the costs equally, pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of February, 1991. ______________________________ JEAN M. INGRASSIA DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Sheldon M Gallner Attorney at Law 803 3rd Ave P O Box 1588 Council Bluffs IA 51502 Ms Dorothy L Kelley Attorney at Law 500 Liberty Bldg Des Moines IA 50309 1108.30; 2205 Filed February 19, 1991 Jean M. Ingrassia before the iowa industrial commissioner ____________________________________________________________ : CHARLES GARY, : : Claimant, : File No. 875599 : vs. : : A R B I T R A T I O N PARKER-HANNIFAN, : : D E C I S I O N Employer, : Self-Insured, : Defendant. : : ___________________________________________________________ 1108.30; 2205 Claimant has not shown by a preponderance of the evidence that his neurological disorder arose out of and in the course of his employment with employer. Numerous conflicting medical opinions as to cause of claimant's symptoms; greater weight given to opinion of board-certified neurologist/internist with subspeciality in neurotoxicology who personally visited work site. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : JERRY L. RICE, : : File No. 875632 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N WILSON FOODS, INC., : : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration upon the petition of claimant, Jerry Rice, against his self-insured employer, Wilson Foods, Inc., defendant. The case was heard on April 1, 1993 in Davenport, Iowa. The record consists of the testimony of claimant. The record also consists of the testimony of Kent Jayne, rehabilitation counselor, retained by claimant; Dwayne Whitcop, Operations Manager, Wilson's Foods, Inc.; and Wayne Alan West, night foreman, Wilson's Foods, Inc. In addition to the above, the record consists of joint exhibits 1-82, claimant's exhibits 83, 85, and 86, as well as, defendant's exhibit 84. Subsequent to the closing of the hearing, defendant prepared a written motion to reopen defendant's case for the purpose of offering the two depositions of Jack Kenneth Miller which were taken on June 3, 1992 and August 17, 1992. At the time of the hearing, defendant's counsel neglected to formally offer the depositions as part of the record. The motion was received at the office of the Division of Industrial Services on April 5, 1993. No resistance was made by claimant's counsel. As a result of the motion, the motion to reopen is hereby granted to defendant to reopen the record in order to formally offer the depositions of Jack Kenneth Miller. The deposition of June 3, 1992 is marked exhibit 87. The deposition of August 17, 1992 is marked exhibit 88. ISSUES The issues to be determined are: 1) whether there is a causal relationship between the injury and any permanent disability; and 2) whether claimant is entitled to any permanent partial disability benefits. FINDINGS OF FACT The deputy, having heard the testimony and considered all the evidence, finds: Claimant is 45-years-old. He is the married father of Page 2 one son and one stepson. Claimant does not have a high school diploma, although he does have a GED. In addition to his GED, claimant also has fifteen hours of credit from a junior college. Claimant entered the United States Air Force in October of 1966. He was assigned the duties of a work control specialist. His duties included scheduling workloads. His highest rank obtained during his military career was that of an E-4 Sergeant. In October of 1970, claimant was honorably discharged from the military. Following his military career, claimant held a variety of positions. He drove as an over-the-road truck driver. He drove a cab. He worked at John Deere as a spot welder. He held that position until 1986 when claimant was laid off from the plant. He also was employed at the Rock Island Arsenal. Claimant commenced his employment with defendant in 1986. Prior to his employment, claimant was required to take a physical examination. On his examination form claimant stated, in writing, that he had experienced no prior health problems. According to the results of the physical examination, claimant was fit for heavy labor type duties. The duties included lifting more than 100 pounds. In December of 1987 claimant's job duties consisted of receiving product for storage and shipment, loading and unloading trucks, driving fork lift trucks, transporting product within the plant, unloading semi-trucks, stacking cartons on pallets, and placing stretch wrap around products. Basically, his duties centered around the speedy shipment of products. On December 17, 1987 claimant sustained a work-related injury. He was working on the shipping crew where he was engaged in stacking 60 pound cartons of hot dogs onto other cartons. At the time, claimant was lifting a carton. He caught his foot, lost control of himself, and he fell backwards with the product. He experienced pain in the low back and right hip area. The injury was reported to the proper supervisor although medical attention was not required on the date of the injury. Claimant developed low back pain during the next several weeks. However, he did not miss work as a result of the work injury. Eventually, on December 30, 1987, claimant was sent to the company physician, C. Pritchard, M.D. The company physician restricted claimant from lifting more than 30 pounds, but claimant was allowed to drive a fork lift truck. Claimant returned to Dr. Pritchard for follow-up care. Several diagnostic tests were ordered. A CT scan of the lumbar spine was taken. R. Hartung, M.D., a radiologist, diagnosed claimant's condition as "Herniated discs of L3-4 and L4-5." (Exhibit page 8) Dr. Pritchard referred claimant to Eugene Collins, Page 3 M.D., who removed claimant from work. Dr. Collins ordered a myelogram. The myelogram also showed that claimant had a "Herniated nucleus pulposus L3-4 and L4-5." (Ex. 5, p. 19) Claimant received conservative treatment. Claimant was also referred to Robert Chesser, M.D., who prescribed physical therapy and a work hardening program. Claimant participated in the program while he engaged in light duty work within the plant. Claimant exhibited the utmost motivation while he was a participant in the prescribed program. Karen Dhanens, OTR/L, wrote the following relative to claimant's progress: POST WORK HARDENING FOLLOW-UP SUMMARY Mr. Rice did return to work on a full-time basis. He was initially put on an off-line pick which included lifting of weights no greater than 30 pounds, infrequent lift of 30 pounds, and frequent lift of less than 10 pounds. Next, he was put on an off-line pick. The lifting was not as constant or continuous but did include lifting up to 40 pounds. Next, he was progressed to lifting of up to 50 pounds on an infrequent basis. Following my discussion with his supervisor on Tuesday, July 26, 1988; his supervisor reported that he felt Mr. Rice was functioning at his pre-injury level. He had never been an extremely fast worker and appeared to be working at the pace he had worked pre-injury. The employer is slowly working him into a forklift operator, which he would be completing on a very infrequent basis. He will not be doing any type of stretch wrapping,as [sic] this was thought to put a great deal of torque forces on the low back. At this point, his supervisor did not feel that they needed us to follow up with Mr. Rice after this point. I informed him that our department would be more than happy to follow up with Mr. Rice either on the job or per phone conversations as have been previously if it was deemed necessary. Mr. Rice is discharged from our program at this point as he is successfully continuing to function on his previous job. (Ex. 6, pp. 25 & 26) Claimant returned to work at his same position. He performed all of his regularly assigned tasks except the shrink wrap operation. There were occasions when claimant did not work all of the overtime hours which were available to him. This was a decision he made, given his low back condition. There is no evidence in the record to establish that any physician forbid claimant from working in excess of 40 hours per week. While Dr. Chesser restricted claimant Page 4 from lifting more than 30 pounds, claimant had lifted as much as 56 pounds on an occasional basis. Claimant also had to lift individual boxes and repalletize certain loads of product. He performed the duties without the assistance of another employee even though the loads exceeded his working restrictions. Claimant continued to work in his assigned job from the date of his return to work on June 10, 1988, through December 31, 1992, the date the plant closed. The evidence indicates that from 1989 through 1992, claimant was able to work his normal shift hours as assigned. During the same time period, claimant missed very little work. On the date of the plant closing, claimant was earning $7.49 per hour. The plant closing in December of 1992 was a management decision which resulted in the loss of claimant's full time employment. It is noted that claimant was invited to apply for a similar position in the Kansas City area. Defendant was willing to accommodate claimant in the workplace. However, claimant decided not to apply for a position at the Kansas City location. His decision to remain in the Quad Cities area was unrelated to claimant's low back condition. Since the plant closure claimant had been seeking other positions. On March 29, 1993, he did obtain a part-time position as a janitor at the Davenport City Hall. His starting wage was $4.65 per hour but he was paid no benefits. Claimant testified that the position would not work into a full time job and that he only worked four hours per day. The janitorial position involved pushing, pulling, lifting and carrying items. Claimant indicated that since he had commenced employment with the janitorial firm, he had sustained some pain in the low back area as a result of his work duties. For his pain, claimant testified he used over-the-counter medications such as ibuprofen. The record also indicated that since 1989, claimant had not been treated by a medical practitioner for his low back condition. CONCLUSIONS OF LAW The first issue to address is whether claimant's work injury on December 17, 1987 is causally connected to any permanent partial disability. The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced Page 5 bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). All of the medical evidence relates claimant's low back condition to the work injury described by claimant. While Dr. Pritchard's medical notes for December 30, 1987 state the low back condition occurred two months prior to the date specified by the parties, it appears this may be a scrivener's error and that "two months" should have read "two weeks." Nevertheless, Dr. Pritchard's notes of the same day, indicate the injury was sustained at work. The medical practitioners involved related the low back condition to claimant's work injury. Dr. Chesser, the treating physiatrist, related the condition to claimant's work injury. The physiatrist opined that claimant had sustained a fifteen percent permanent impairment. (Ex. 7, pp. 64 & 65) In light of the medical evidence, it is the determination of this deputy that claimant has proven by a preponderance of the evidence that his condition is related to the stipulated work injury and that he has sustained a permanent partial disability. The next issue to determine is whether claimant is entitled to any permanent partial disability benefits as a result of this work injury. It has already been mentioned that the treating physiatrist has opined that claimant has sustained a permanent functional impairment. The functional impairment has been assessed at 15 percent. It is emphasized that a finding of impairment to the body as a whole by a medical practitioner does not equate to industrial disability, which claimant is alleging in the instant case. See: Veeder v. Commercial Contracting, 87-535, (Ia Ct. of App., Nov. 29, 1988). In Veeder, the Iowa Court of Appeals cites McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); regarding industrial disability. The McSpadden court writes: Disability from injuries covered by chapter 85 has been defined by case law as "industrial disability," or a reduction in earning capacity. Among the criteria considered in determining industrial disability are the claimant's age, education, qualifications, experience and his inability, because of the injury, to engage in employment for which he is fitted." Functional disability, while a consideration, has not been the final criterion.... (Citations omitted) The Veeder Court continued as follows: Page 6 In other words, while functional capacity may be only a twenty-five or thirty percent disability compared with the one hundred percent perfect man, disability may be considered total from the standpoint of a claimant's ability to go back to work to earn a living for himself and his family. See: Diederich v. Tri-City R. Co., 219 Iowa 587, 594, 258 N.W. 899, 902 (1935). It is acknowledged that claimant has a functional impairment. He has permanent restrictions placed on him by the treating physician. Claimant is precluded from lifting more than 30 pounds. It is acknowledged that claimant has been able to lift in excess of the 30 pound weight restriction on an occasional basis. Claimant is placed in the medium category of labor tasks. Claimant has been able to return to his former position in the shipping and receiving room. The only duty which he is precluded from performing is the shrink wrap task. There is no medical evidence restricting claimant to 40 hours of work per week. Claimant has voluntarily placed those restrictions upon himself. From 1988 through the end of 1992, claimant has satisfactorily completed the job tasks which have been assigned to him. During this time frame, claimant has had an exemplary work record with few absences. He has been motivated to return to his pre-injury level of performance. By his own admission, claimant has not missed much work for any reason. During the same time period, claimant has sustained no loss of wages. His rate of pay has not been affected by his work injury. Claimant has sustained a loss of wages in 1993. However, this loss of earnings is attributable to both the plant closing, and to claimant's voluntary decision to forego applying for a position in the Kansas City plant. Claimant was invited to apply for a transfer. It appears those employees who applied for a transfer, received one. Claimant has decided not to apply for a transfer. Defendant has been willing to accommodate claimant in the workplace. The company is to be commended for its efforts to place the injured worker. Now that claimant has left the employ of defendant, he is facing a loss of earning capacity since he is restricted to the medium category of work. There are still positions for which claimant is qualified to handle. He has been working as a part-time janitor for much less money than he had earned at defendant's plant. Claimant's economic condition is not entirely due to his work injury. The general job market in his geographical location is less than desirable. Claimant is capable of working in such meaningful jobs as: over-the-road truck driver, taxi driver, material handler, clerk, and fork lift truck driver. There are suitable positions for which he is qualified. Therefore, after considering all of the foregoing, as well as after personally observing claimant, it is the determination of the undersigned that claimant is entitled to 20 percent permanent partial disability benefits as a Page 7 result of the work injury on December 17, 1987. This equates to 100 weeks of benefits commencing on June 19, 1988 and payable at the stipulated rate of $224.86 per week. ORDER THEREFORE, IT IS ORDERED: Defendant is to pay unto claimant one hundred weeks (100) weeks of permanent partial disability benefits at the stipulated rate of two hundred twenty-four and 86/l00 dollars ($224.86) per week commencing on June 19, 1988. Accrued benefits are to be paid in a lump sum together with statutory interest at the rate of ten percent (10%) per year pursuant to section 85.30, Iowa Code, as amended. Defendant shall receive credit for all benefits previously paid to claimant as a result of the work injury. Defendant shall pay the costs of this action pursuant to rule 343 IAC 4.33. Defendant shall file a claim activity report as requested by this division pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of June, 1993. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Michael W. Liebbe Attorney at Law 116 East Sixth Street P.O. Box 339 Davenport, Iowa 52805 Mr. Thomas N. Kamp Attorney at Law 600 Davenport Bank Building Davenport, Iowa 52802 1803 Filed June 22, 1993 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JERRY L. RICE, File No. 875632 Claimant, A R B I T R A T I O N vs. D E C I S I O N WILSON FOODS, INC., Employer, Self-Insured, Defendant. ___________________________________________________________ 1803 Claimant is a 45-year-old married man. He sustained a work- related injury to his low back which resulted in two herniated disks. He was treated conservatively. His treating physiatrist prescribed work hardening which claimant performed using his best effort. Claimant returned to his former position. His physician restricted him from lifting more than 30 pounds and from engaging in one task known as the shrink wrap operation. Claimant continued in his position from June of 1988 through December of 1992 when the plant closed. His work record was exemplary. He missed very little work for any reason whatsoever. His work was more than satisfactory. The plant moved its operation from the Quad Cities area to Kansas City. All of the employees were invited to apply for a transfer. Claimant selected not to apply, even though all of the similarly situated employees who applied for a transfer received the same job. Since the plant closing, claimant has only been employed as a part-time janitor for four hours per day. His rate of pay is considerably less than what it was at the time of the plant closure. Claimant is restricted to the medium classification of work categories. There is meaningful employment available to him. He can drive a semi truck, drive a cab, perform janitorial services, work as a material handler, or drive a fork lift truck. Claimant is not precluded from employment. HELD: Claimant has sustained a 20 percent permanent partial disability as a result of his work injury on December 17, 1987. Page 1 before the iowa industrial commissioner ____________________________________________________________ _____ : JAMES ANDREW, : : Claimant, : : vs. : : File No. 875653 ANDREW PALLETT COMPANY, : : A P P E A L Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL COMPANIES, : : 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 May 22, 1991 is affirmed and is adopted as the final agency action in this case with the following additional analysis: Although evidence may have been admitted concerning claimant's potential future earnings as a social worker if he completes his course of studies at the University of Iowa, such evidence is speculative. The determination of claimant's industrial disability is confined to claimant's loss of earning capacity at the time of the hearing. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of December, 1991. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Page 2 Copies To: Mr. Channing L. Dutton Attorney at Law West Towers Office Complex 1200 35th St., Ste 500 West Des Moines, Iowa 50265 Mr. D. Brian Scieszinski Mr. Cecil L. Goettsch Attorneys at Law 801 Grand Ave., Ste 3700 Des Moines, Iowa 50309-2727 9999 Filed December 17, 1991 BYRON K. ORTON MAM before the iowa industrial commissioner ____________________________________________________________ : JAMES ANDREW, : : Claimant, : : vs. : : File No. 875653 ANDREW PALLETT COMPANY, : : A P P E A L Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 9999 Summary affirmance of deputy's decision filed May 22, 1991, with short additional analysis. Page 1 before the iowa industrial commissioner ____________________________________________________________ : JAMES ANDREW, : : Claimant, : : vs. : : File No. 875653 ANDREW PALLETT COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration upon the petition of claimant, James Andrew, against his employer, Andrew Pallett Company, and its insurance carrier, Employers Mutual Companies, defendants. The case was heard on November 26, 1990, in Des Moines, Iowa at the office of the industrial commissioner. The record consists of the testimony of claimant. The record also consists of the testimony of Jeff Johnson. Additionally, the record consists of joint exhibits 1, 2, 3, 4, 5, 6, 8 and 10. issue The sole issue to be determined is: 1) whether claimant is entitled to permanent partial disability benefits. findings of fact Claimant is 35 years old. He is married with one child. Currently, claimant is enrolled as a full time college student at the University of Iowa. Claimant was employed by defendant employer in September of 1986. He continued working until January 15, 1988, the day of claimant's work injury. Claimant's job duties included tearing down damaged pallets, breaking boards and refurbishing old pal lets for resale. On the date of the injury, claimant was routinely lifting a wooden overhead door when he felt his back give. Claimant felt pain in his low back and stomach. The pain radiated down his left leg into his left foot. Eventually, claimant was examined and treated by William R. Page 2 Boulden, M.D. The orthopedic surgeon performed a discectomy. Later, Dr. Boulden evaluated claimant as having a 20 percent impairment with 15 percent of the impairment attributable to this work injury. Claimant desired a second opinion. He was examined at the University of Iowa Spine Diagnostic and Treatment Center. Ernest M. Found, Jr., M.D., and Ted Wernimont, M.S.W., wrote in their report of March 24, 1989: Therefore, based on all of the information which the staff supplied from your evaluation, I have the follow ing recommendations: 1) We are going to recommend that you continue with the home program of exercise and aerobic activity. You do have a very good knowledge of your low back situ ation and obviously have done some reading and have obtained knowledge about proper pain management techniques. We feel that it is always in the best interest of pain patients, to do as much of this work on their own as possible, and therefore, I recommend that you do this without help from anyone, and continue to pursue the goals of independent functioning which you have set. We firmly believe that your low back pain will continue to get better with time, and that using the knowledge and skills that you have to work through your pain, is very possible for you. 2) We recommend that you follow closely the aerobic recommendations put forth by Deb Nowak in this evaluation. 3) We feel that it is very important for you to begin immediately to pursue your vocational goal of return to school. We feel that you are capable at this time of continued classroom activity and with proper body mechanics and conditioning, can certainly tol erate a return to full-time classroom activity. In summary, we do not feel that you are a candidate for the Low Back Pain Rehabilitation Program at this time. We feel that you currently have the knowledge, skills and ability to pursue rehabilitation on your own. We want to absolutely assure you at this time that we feel that your back is totally solid, stable and healed, and that activity and exercise, which have been recommended for you, will do absolutely no harm to your low back. However, it is going to cause some discomfort for you to continue to get well and we want to discourage at this time, any further dependence upon the medical system, and give you the opportunity to reach these goals through your own self motivated activity and knowledge and skills that you possess. We do feel that for Workman's Compensation purposes, that you have reached maximum healing at this time. We feel that Page 3 your body as a whole impairment rating, as a result of the injury and subsequent surgical procedure, is 12%. The above limitations are based on "state of the art" testing and the results have been interpreted as such. These results in no way should exclude persons from appropriate job consideration. Should you have any other questions or concerns regard ing this evaluation, please do not hesitate to let us know. We wish you the very best and we would be happy to see you back here at University Hospitals at any time, at your request. Claimant testified that subsequent to his exam at the University of Iowa, he encountered pain and difficulties. As a result, he made an appointment at the Mayo Clinic. He was exam ined on July 26, 1989. John L. Merritt, M.D., authored a report dated October 2, 1989. In the report Dr. Merritt wrote: DIAGNOSIS: (1) Postop left L-5 hemilaminectomy with persistent pain. (2) No current active radiculopathy. (3) No disk recurrence. (4) No arachnoiditis. (5) No lumbar instability. (6) Superimposed tension myalgia, persistent. (7) Pain amplification syndrome, superimposed. (8) Musculoskeletal deconditioning. (9) Hyperlipidemia. SUMMARY AND CONCLUSION: Mr. Andrew is a 33-year-old man with the above diag noses. At this time, his condition is stable and sta tionary. There is no indication for further extensive evaluations or invasive procedures and no indication for further surgical procedures. He will need to main tain a home self-directed therapy program, but he may need short bouts of physical therapy to assist him with management as flairs of pain may occur in the future. On the most part, however, most of this should be man aged on a home self-directed program in which he has been instructed. He should of course continue with a graduated fitness program also to maintain strength and Page 4 endurance. Due to his hemilaminectomy an dissectomy [sic] and previous S-l radiculopathy, he should have an impair ment of the body as a whole in the range of 9%. We would recommend persuing [sic] a vocational reha bilitation with a goal towards obtaining training and then employment in work in the light categories defined by the Dictionary of Occupational Titles of the U.S. Department of Labor. This would involve no lifting above 25 pounds and no frequent lifting or carrying more than ten pounds and avoiding frequent bending and twisting. Because of his injury and his surgery, he definitely should not return to his previous heavy work which involved a great deal of bending twisting and lifting. As these restrictions are permanent, he should direct his vocational rehabilitation within these guidelines. Claimant did not return to work subsequent to his injury. He re-enrolled at the University of Iowa as a full time college student. He has been a student since the fall of 1989. Claimant Page 5 is scheduled to graduate in May of 199l with a degree in social work. At the time of the hearing, claimant had not been offered a full time position in his major. conclusions of law The sole issue to address is the nature and extent of claimant's permanent partial disability. Industrial disability or loss of earning capacity is a con cept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment of physical capac ity creates an inference of lessened earning capacity. The basic element to be determined, however, is the reduction in value of the general earning capacity of the person, rather than the loss of wages or earnings in a specific occupation. Post-injury earn ings create a presumption of earning capacity. The earnings are not synonymous with earning capacity and the presumption may be rebutted by evidence showing the earnings to be an unreliable indicator. Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218 (1979); 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. Functional impairment is an element to be considered in determining industrial disability which is the reduction of earn ing capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inabil ity 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 disability. This is so as impairment and disability are not synonymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportion ally 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 qualifi cations 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 Page 6 matters which the finder of fact considers collectively in arriv ing 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, moti vation - 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 disability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, l985). A claimant's industrial disability may be diminished by his failure to accept offered employment consistent with his impair ment. Johnson v. Chamberlain Mfg. Corporation, I Iowa Industrial Commissioner Report 166 (Appeal Decision, October 31, 1984) In the case at hand, claimant has been rated as having a functional impairment from 9 percent to 15 percent. Dr. Boulden, the treating physician, makes reference to certain restrictions placed upon claimant. However, this deputy is unable to deter mine the nature of those restrictions from the evidence submitted at hearing. All this deputy can ascertain is that Dr. Boulden has refused to allow claimant to return to his former position. The doctors at the University of Iowa have imposed lifting restrictions. Claimant is restricted from lifting more than 35 pounds for any lifts from the floor which are done more than 4 times per hour. Claimant is also restricted from lifting 17-18 pounds repetitively. The physicians at Mayo Clinic have also imposed certain restrictions. The restrictions include no lifting more than 25 pounds, no frequent lifting or carrying more than 10 pounds and no frequent bending and twisting. Claimant is also precluded from returning to his former position. He is to work in the light categories of occupations. Claimant's age and intelligence are positive forces in his life. Claimant's motivation is a third positive factor. He is highly motivated to better himself. He has sought assistance through the Iowa Department of Vocational Rehabilitation. The counselors at the state have found certain college grants for claimant. Claimant has returned to college. He is scheduled to receive his bachelors' degree in social work in May of 1991. Claimant has no permanent full time position after graduation. However, should claimant find a position, it is acknowledged that positions in social work are notoriously underpaid. Jeff Johnson, vocational rehabilitation expert, testified that entry level positions start at $6.93 per hour and the median average Page 7 wage is $8.27 per hour. Mr. Johnson did not know the maximum salary claimant could earn with the bachelors' degree in social work. There is no question that Mr. Johnson found a prospective job for claimant with the Association of Retarded Citizens. Claimant refused the position upon the advice of counsel. The job paid $6.35 per hour. The wage rate was slightly less than what claimant had earned at defendant-employer's place of busi ness. However, at the time the job was offered, claimant was already re-enrolled in college. It is understandable that claimant would not want to quit college for such a position. Therefore, in light of the above, and after observing claimant, it is the decision of the undersigned that claimant has a 20 percent permanent partial disability. Claimant is entitled to 100 weeks of benefits commending on March 20, 1988. order THEREFORE, IT IS ORDERED: Defendants are to pay one hundred (100) weeks of permanent partial disability benefits from March 20, 1988, at the stipu lated rate of two hundred thirteen and 23/l00 dollars ($213.23) per week. Interest shall be paid pursuant to section 85.30. Defendants are responsible for costs pursuant to rule 343 IAC 4.33. Defendants shall file a claim activity report as requested by this division pursuant to rule 343 IAC 3.l. Signed and filed this ____ day of May, 1991. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Channing L. Dutton Attorney at Law West Towers Office 1200 35th St STE 500 West Des Moines IA 50265 Mr. Cecil L. Goettsch Mr. D. Brian Scieszinski Page 8 Attorneys at Law 801 Grand Ave Suite 3700 Des Moines IA 50309 5-1803 Filed May 22, 1991 MICHELLE A. McGOVERN before the iowa industrial commissioner ____________________________________________________________ : JAMES ANDREW, : : Claimant, : : vs. : : File No. 875653 ANDREW PALLETT COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803 Claimant was awarded a 20 percent permanent partial disability for a work related back injury. 9998 Filed July 30, 1991 Clair R. Cramer WRM before the iowa industrial commissioner ____________________________________________________________ : SUSAN SCHOLL, : : Claimant, : : vs. : : File No. 875684 LIBBEY-OWENS FORD, : : A P P E A L Employer, : : D E C I S I O N and : : WAUSAU INSURANCE COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 9998 Summary affirmance of deputy's decision filed September 4, 1990. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : SUSAN SCHOLL, : : Claimant, : : File No. 875684 vs. : : LIBBEY-OWENS FORD, : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : WAUSAU INSURANCE COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ INTRODUCTION This is a proceeding in arbitration brought by Susan Scholl, claimant, against Libbey-Owens Ford, employer, and Wausau Insurance Companies, insurance carrier, defendants, for benefits as a result of an alleged injury which occurred on February 8, 1988. A hearing was held in Mason City, Iowa, on August 16, 1990, and the case was fully submitted at the close of the hearing. Claimant was represented by Russell Schroeder, Jr. Defendants were represented by Rustin T. Davenport. The record consists of the testimony of Susan Scholl, claimant, Ruth Scholl, claimant's mother, claimant's exhibits 1 and 2, and defendants' exhibits 3 through 13. Defendants' attorney presented an excellent synopsis of the issues at the beginning of the hearing in the document entitled "Defendants' Contentions." STIPULATIONS The parties stipulated to the following matters: 1. That an employer-employee relationship existed between claimant and employer at the time of the alleged injury. 2. That the extent of entitlement to weekly compensation for temporary disability, if defendants are liable for the injury, is stipulated to be from February 8, 1988 to September 12, 1988. 3. That the commencement date for permanent disability benefits, in the event such benefits are awarded, is September 12, 1988. 4. That the rate of compensation in the event of an award of benefits is $172.36 per week. 5. That claimant's entitlement to medical expenses Page 2 have all been or will be paid by defendants. 6. That defendants assert no claim for credit for employee nonoccupational group health plan benefits paid to claimant prior to hearing. 7. That defendants paid claimant 41 weeks of workers' compensation benefits at the rate of $172.36 per week prior to hearing. 8. That there are no bifurcated claims. ISSUES The parties submitted the following issues for determination at the time of the hearing: 1. Whether claimant sustained an injury on February 8, 1988 which arose out of and in the course of employment with employer; 2. Whether the injury was the cause of either temporary or permanent disability; 3. Whether claimant is entitled to permanent disability benefits and, if so, the nature and extent of benefits to which she is entitled, to include whether she received a scheduled member injury or an industrial disability injury; and, 4. Whether claimant gave proper notice as required by Iowa Code section 85.23 is asserted as an affirmative defense by defendants. FINDINGS OF FACT injury It is determined that claimant did receive an injury on February 8, 1988 which arose out of and in the course of her employment with employer. Claimant was 31 years old at the time of the injury and had worked for employer in various jobs for ten years since June 1, 1978. Earlier, claimant worked as a washer, furnace unloader and a floater. For approximately seven years prior to this injury, she worked the dehydration job. Approximately three weeks before the injury date of February 2, 1988, claimant was transferred to final pack. This was a very strenuous job which required heavy lifting and movement of both hands and arms. The weights that she handled varied from 5 to 50 pounds. Claimant alleged that she developed dull, constant pain in her back which caused shooting pains down her arms. She alleged pain to her neck, shoulders, arms and back. However, the medical records only support that she complained to the doctors of bilateral upper extremity pain. Claimant alleged that she reported neck, shoulder, arm and Page 3 back pains to Buford L. Christensen, coordinator of plant services, on February 8, 1988. Christensen acknowledged that claimant reported an injury but he testified that she only complained of pain to her wrists and hands. He denied that she reported any injury to her neck, shoulders or back. He acknowledged that he could be mistaken but did not think that he was. Christensen arranged for claimant to receive medical treatment from Kenneth B. Washburn, M.D., a physical medicine and rehabilitation specialist. Claimant saw Dr. Washburn on February 8, 1988, and he diagnosed, "IMPRESSION: Recurrent tendinitis, upper extremities, secondary to repetitive activities at work." (Exhibit 3, page 6) He saw claimant four more times in February of 1988, but the dates are cut off by the copy machine and, therefore, cannot be stated with accuracy. The third time he saw claimant he diagnosed: "IMPRESSION: 1) Tendinitis left forearm, aggravated by the increased work load." (Ex. 3, p. 7) Employer also sent claimant to see Darrell E. Fisher, M.D., an orthopedic surgeon, on February 10, 1988 (Ex. 4, p. 2). Again, the date of this entry is cut off by the copy machine. On February 10, 1988, Dr. Fisher recorded: She moved in January from a job in the dehydration section where she has been the past two years to packing glass. This involves a lot more strain on her upper extremities and she is having tendinitis and bursitis problems....She has worked at Libbey-Owens-Ford for ten years and I do not think she will tolerate this heavier work. (Ex. 7, p. 2; Ex. 4, p. 4) Dr. Fisher issued a certificate of return to work on February 15, 1988 which stated that he strongly recommended that claimant return to the dehydration job because the current final pack work is much too strenuous on her abnormal wrist and elbow (Ex. 5). Claimant, however was not able to return to work under any circumstances because she was laid off at the time and was never called back but she is entitled to healing period benefits as stipulated to by the parties. On March 9, 1988, Dr. Fisher recorded: "Her current job, she says, is the hardest she has had in the 10 years at Libbey-Owens-Ford and requires a fair amount of lifting above the shoulder level." (Ex. 7, p. 2; Ex. 4, p. 5) On May 9, Dr. Fisher commented: "She remains off work on workman's [sic] comp.,...." (Ex. 7, p. 2) On June 20, 1988, Dr. Fisher again stated: "Told her I would continue to keep her on Workman's [sic] comp if she avoids any heavy work at home and will see her again in three months." (Ex. 8, p. 2) Therefore, based on claimant's testimony, the testimony of Christensen, and the reports of Dr. Washburn and Dr. Fisher, it is determined that claimant sustained an injury on February 8, 1988 which arose out of and in the course of Page 4 employment with employer. causal connection - entitlement- temporary disability It is determined that the injury was the cause of temporary disability. The parties stipulated that if defendants are found liable for an injury that claimant is entitled to temporary disability benefits from February 8, 1988 to September 12, 1988. It is further determined that even though Dr. Fisher treated claimant for a congenital disease of neurofibromatosis, he also concurrently treated her for the left upper extremity tendinitis caused by the injury of February 8, 1988. This is clear from all of Dr. Washburn's entries and it is clear from all of Dr. Fisher's entries (Ex. 3 and 4). Therefore, it is determined that claimant is entitled to temporary disability for the period from February 8, 1988 to September 12, 1988, a period of 31 weeks for the left upper extremity tendinitis. causal connection - entitlement - permanent disability Dr. Fisher recorded on September 19, 1988, "My opinion is that she has a permanent impairment of 10% of her left elbow which I would equate as 2% of the body as a whole." (Ex. 4, p. 3; Ex. 13) John R. Walker, M.D., an orthopedic surgeon, evaluated claimant at her request on December 2, 1988. Dr. Walker found that the injury was the cause of headaches, cervical spine injury, bilateral shoulder injury, bilateral arm injury, bilateral elbow injury, bilateral wrist injury, and bilateral hand injury (Ex. 1). Dr. Walker found an 8 percent permanent impairment to the right upper extremity, a 6 percent permanent impairment to the left upper extremity, and a 7 percent permanent impairment to the body as a whole. Dr. Walker concluded: "This then gives us a total of 16% permanent, partial impairment of the body as a whole based on her work related over work, over stress syndromes and injuries." (Ex. 2) The only portion of Dr. Walker's findings that are adopted by this determination is his award of 6 percent permanent impairment to the left upper extremity for the reason that claimant did not prove that the employment was the cause of a compensable injury on February 8, 1988 to her neck, shoulders or back. There is no mention of injury to the neck, shoulders or back in any of the office notes of either Dr. Washburn or Dr. Fisher. The first evidence of headaches, neck, shoulder and back complaints allegedly attributable to the injury of February 8, 1988 appears on the report of Dr. Walker in December of 1988, some ten months after the injury date. Furthermore, claimant had not been working for employer during that period of time. She was laid off on February 8, 1988 for reasons not connected with the injury. Therefore, it is determined that claimant has sustained a scheduled member injury to her left upper extremity, more specifically the left arm. She has not sustained an industrial disability to the body as a whole. Page 5 It is determined that claimant did not sustain an injury of headaches, neck pain, shoulder pain or back pain caused by the injury of February 8, 1988. Dr. Fisher reiterated his 10 percent left elbow rating in a letter dated March 1, 1989. He stated that on September 19, 1988, he assessed a 10 percent permanent impairment to the left elbow based on the tendinitis to the left elbow (Ex. 11, p. 1). He further stated, "She had no complaints at that time, in my opinion, which were significant and due to her work in her neck, shoulders, or back." (Ex. 11, p. 2) Dr. Fisher made it clear that this impairment rating was strictly for the left elbow tendinitis by means of a letter dated May 2, 1989 in which he stated: "I do not think that that underlying congenital problem has any significance what so ever to her complaints of her left elbow for which I have treated her." (Ex. 12) Therefore, it is determined that claimant is entitled to a 10 percent impairment to the left upper extremity, a scheduled member injury, more specifically the left arm. Iowa Code section 85.34(2)(m). Ten percent of 250 weeks is 25 weeks of entitlement to permanent partial disability benefits to which claimant is entitled for the injury of February 8, 1988. notice The notice defense appears to be directed at the claim asserted by claimant for a work-related injury and disability to her neck, shoulders and back. Since claimant has not proven an injury to these body parts, then the notice defense appears to be moot. As far as an injury to her upper extremities for tendinitis, both claimant and Christensen agreed that she reported tendinitis to her upper extremities on February 8, 1988. Therefore, defendants have not established the affirmative defense of lack of notice under Iowa Code section 85.23 with respect to the tendinitis injury to the left upper extremity which occurred on February 8, 1988. Page 6 CONCLUSIONS OF LAW Wherefore, based upon the evidence presented, and the foregoing and following principles of law, these conclusions of law are made: That claimant sustained an injury on May 8, 1988 which arose out of and in the course of her employment of tendinitis to her left upper extremity. Iowa Code section 85.3(1); McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). That claimant sustained an injury to the left upper extremity, the left arm, and not the body as a whole. Iowa Code section 85.34(2)(m). That claimant did not sustain the burden of proof by a preponderance of the evidence that she sustained an injury of headaches, cervical injury, bilateral shoulder injury, or back injury. Iowa Code section 85.34(2)(u). That claimant did sustain the burden of proof by a preponderance of the evidence that the injury to the left arm was the cause of both temporary and permanent disability. 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). That claimant is entitled to 31 weeks of healing period benefits for the period from February 8, 1988 to September 12, 1988, as stipulated to by the parties. Iowa Code section 85.32(1). That claimant is entitled to 25 weeks of permanent partial disability benefits for a 10 percent permanent impairment to the left upper extremity. Iowa Code section 85.34(2)(m). That defendants did not establish the burden of proof by a preponderance of the evidence that claimant failed to give notice of the left upper extremity tendinitis. Iowa Code section 85.23. ORDER THEREFORE, it is ordered: That defendants pay to claimant thirty (31) weeks of healing period benefits at the rate of one hundred seventy-two and 36/100 dollars ($172.36) per week for a total amount of five thousand three hundred forty-three and 16/100 dollars ($5,343.16) commencing on February 8, 1988. That defendants pay to claimant twenty-five (25) weeks of permanent partial disability benefits at the rate of one hundred seventy-two and 36/100 dollars ($172.36) for a total amount of four thousand three hundred nine dollars ($4,309.00) commencing on September 12, 1988, as stipulated to by the parties. Page 7 That defendants are entitled to a credit of forty-one (41) weeks of workers' compensation benefits paid to claimant prior to hearing at the rate of one hundred seventy-two and 36/100 dollars ($172.36) for a total amount of seven thousand sixty-six and 76/100 dollars ($7,066.76). That these benefits are due to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That the costs of this action are charged to defendants pursuant to Division of Industrial Services Rule 343-4.33. That defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this ______ day of September, 1990. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Russell Schroeder, Jr Attorney at Law 1100 Gilbert St Charles City IA 50616 Mr C Bradley Price Mr Mark A Wilson Mr Rustin T Davenport Attorneys at Law 30 4th St NW P O Box 1953 Mason City IA 50401 51106, 51401, 51402.20, 51402.30 51402.40, 51402.50, 5229, 51801, 51803, 52401 Filed September 4, 1990 Walter R. McManus, Jr. before the iowa industrial commissioner ____________________________________________________________ : SUSAN SCHOLL, : : Claimant, : : File No. 875684 vs. : : LIBBEY-OWENS FORD, : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : WAUSAU INSURANCE COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 51106; 51401; 51402.20; 51402.30; 51402.40; 51402.50; 52209 Claimant's testimony and all of the medical evidence demonstrated claimant sustained a repetitive injury to her left arm after she was transferred to a much more strenuous job than she had performed in the previous 10 years with employer. The injury was the cause of both temporary and permanent disability. She did not prove any injury to her neck, shoulders and back as she contended. 51801 Claimant awarded 31 weeks of healing period benefits for the period stipulated to by the parties. 51803 Claimant awarded 10% permanent partial disability for a 10% permanent impairment to the left arm which was the only rating in the record. 52401 Defendants did not prove a notice defense for the left arm injury. As for the neck, shoulders and back, claimant did not prove injury so a notice defense was not needed.