Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SHERRY L. MORET,              :
 
                                          :
 
                 Claimant,                :      File No. 876588
 
                                          :
 
            vs.                           :    A R B I T R A T I O N
 
                                          :
 
            WILSON FOODS CORPORATION,     :       D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            On May 18, 1989, Sherry Moret (claimant) filed a petition 
 
            for arbitration as a result of injuries to claimant's back 
 
            on January 1, 1988 and a pulmonary embolism which occurred 
 
            after claimant's back surgery.  Wilson Foods Corp. (Wilson 
 
            or defendant) was identified as employer and self insured.  
 
            On May 2, 1991 these matters came on for hearing in Storm 
 
            Lake, Iowa.  The parties appeared as follows:  the claimant 
 
            in person and by her counsel Michael W. Ellwanger of Sioux 
 
            City, Iowa and Wilson by its counsel David Sayre of 
 
            Cherokee, Iowa.  
 
            The record in this proceeding consisted of the following:
 
            1.  The live testimony of the claimant.  
 
            2.  Joint exhibits 1-27.
 
            stipulations
 
            
 
                 The parties stipulated to the following matters at the 
 
            time of the hearing:
 
            a.  An employer-employee relationship existed between 
 
            claimant and employer at the time of the alleged injury.
 
            b.  The claimant sustained an injury on January 1, 1988, 
 
            which arose out of and in the course of employment.
 
            c.  The alleged injury caused a permanent disability.
 
            d.  The type of permanent disability, if the injury is found 
 
            to be a cause of permanent disability, is industrial 
 
            disability to the body as a whole.
 
            e.  The commencement date for permanent partial disability, 
 
            is August 18, 1988.
 
            f.  The rate of compensation, in the event of an award, is 
 
            $268.04 per week based on a gross weekly salary of $439.00. 
 
            Claimant is single and has one child.  She is entitled to 
 
            two exemptions.
 
            g.  Medical benefits are not in dispute.
 
            h.  Wilson is making no claim for employee nonoccupational 
 
            group health plan benefits paid prior to hearing.
 
            i.  Wilson has paid 40 weeks of workers' compensation 
 
            benefits to claimant at the rate of $268.04 per week prior 
 
            to hearing.
 
            j.  There are no bifurcated claims.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Issue
 
The only issue for resolution is the extent of 
 
            claimant's industrial loss.
 
            FINDINGS OF FACT
 
            After considering all of the evidence and the arguments of 
 
            counsel, the undersigned makes the following findings of 
 
            fact and conclusions of law.
 
            1.  At the time of the hearing, claimant was 39 years old.  
 
            At the time of her injury, she was 36 years old.  Claimant 
 
            quit school after the tenth grade.  She has had no other 
 
            education or special training since she left high school.  
 
            Claimant has smoked a half a pack to a pack of cigarettes 
 
            per day for the past 18 years.  
 
            2.  Since leaving high school, claimant has worked in 
 
            physical labor jobs.  Her first employment was with IBP for 
 
            three years in Dakota City.  Her next job was in a nursing 
 
            home where she worked as an aide lifting patients.  She next 
 
            worked at Cherokee State Hospital as a housekeeper for two 
 
            years.  She began employment with Wilson on April 17, 1979, 
 
            and has worked there ever since.  As part of her Wilson job 
 
            duties, claimant has performed almost all the jobs in the 
 
            plant.  
 
            3.  In 1987, claimant had her first injury to her back.  
 
            Prior to this first incident, claimant had no previous 
 
            history of back pain but she has had occasional chest pain.  
 
            On May 6, 1987, claimant pulled something in her lower back.  
 
            She was examined by the company doctor and given medication 
 
            and was taken off work.  Her back remained sore and she was 
 
            referred to Walter O. Carlson, M.D., for further care.  
 
            Claimant was given a back brace and a course of physical 
 
            therapy treatment.  Claimant returned to work in June of 
 
            1987.
 
            4.  In January of 1988, claimant was hanging hams on a tree.  
 
            In order to perform this work she was twisting and turning 
 
            her lower back.  While she was performing that job, she 
 
            experienced pain going down her leg and up her back.  
 
            5.  On February 9, 1988, claimant went to the infirmary 
 
            complaining of low back pain.  She indicated that she had 
 
            waited for a month because she had hoped that it would go 
 
            away.  She was referred to the Cherokee Hospital for x-rays.  
 
            Claimant has a normal x-ray series but she continued to 
 
            complain of severe pain.  Claimant was referred to Dr. 
 
            Carlson for further examination.
 
            6.  On February 12, 1988, claimant underwent a CT scan.  The 
 
            CT scan showed that there was a disc bulging centrally L4-5 
 
            and that there was central herniated disc at L5-S1 and to 
 
            the left of midline.  On February 15, 1988, claimant had a 
 
            CAT scan.  Dr. Carlson found a herniated disc at L4 with 
 
            fragments.  Claimant was scheduled for immediate surgery on 
 
            February 20, 1988.  Claimant had a laminectomy and a 
 
            diskectomy to correct the problems in her back.
 
            7.  Claimant was doing well until her second postoperative 
 
            day when she developed left chest and breast area pain.  
 
            Claimant had a series of tests to determine whether she had 
 
            a pulmonary embolus.  After review of the studies, Dr. 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Carlson and R. D. Hardie, M.D., agreed that claimant had a 
 
            chest pain that was muscular in origin as opposed to a 
 
            pulmonary embolus.  Claimant was discharged from the 
 
            hospital after surgery on February 27, 1988.
 
            8.  On March 3, 1988, claimant was admitted for possible 
 
            pulmonary embolism.  She reported at the time of her 
 
            admission for the pulmonary embolism that she had had good 
 
            relief from her back complaints and had no other complaints 
 
            except for the pain in her chest.  After another series of 
 
            lung studies, claimant was found to have a pulmonary embolus 
 
            in the right lower lobe of the lung.  Claimant was referred 
 
            to Dr. Leonard Gutnik for ongoing evaluation and management.  
 
            Claimant was given Coumadin to treat the embolism.  Claimant 
 
            was discharged on March 16, 1988.
 
            9.  After claimant's release, she started a course of 
 
            physical therapy for a recovery from her back surgery.  At 
 
            the same time, claimant stayed on the anticoagulant therapy 
 
            for six months.  Between April 1988 and June 1988, claimant 
 
            had physical therapy two to three times per week.
 
            10. On June 15, 1988, claimant had a functional capacity 
 
            assessment.  The assessment demonstrated that claimant could 
 
            sit for 60 minutes with no reports of pain or pain 
 
            behaviors.  Additionally, claimant could stand for 60 
 
            minutes.  In an eight hour day, claimant could also sit, 
 
            stand and walk with no limit and she could bend and stoop 
 
            frequently.  She was able to squat, crawl, and climb stairs 
 
            continuously.  Claimant was able to push 100 pounds 
 
            frequently and pull 100 pounds occasionally and 61 pounds 
 
            frequently.  However, claimant can only lift a maximum of 39 
 
            pounds.  She can lift 28 pounds on a more frequent basis.  
 
            In keeping with the functional assessment, claimant should 
 
            not lift more than 30 pounds above her shoulders.  Dr. 
 
            Carlson reached this conclusion in July of 1988.
 
            11. During this course of treatment, and the functional 
 
            capacity assessment, claimant was still experiencing 
 
            shortness of breath with activity.  However, on June 28, 
 
            1988, claimant's pulmonary function tests were within normal 
 
            limits.
 
            12. On July 8, 1988, claimant was diagnosed as having 
 
            reactive airway disease.  Claimant returned to work in 
 
            August of 1988.  However, after she returned to work, 
 
            claimant had pain in her back and neck, and she was 
 
            experiencing shortness of breath.
 
            13. On October 7, 1988, Dr. Gutnik was asked whether the 
 
            pulmonary embolus had a relationship to claimant's asthma.  
 
            He indicated that it was really unknown.  Dr. Gutnik did 
 
            opine, however, that the claimant would not have any serious 
 
            or long-term effects from her pulmonary embolism but her 
 
            asthma in conjunction with the embolism makes her case a 
 
            little different.  Dr. Gutnik further indicated that the 
 
            pulmonary embolism in conjunction with the asthma may 
 
            compromise her exertional activity.  He was not sure whether 
 
            in the long-term this condition would affect her 
 
            employability but he did think that it would change her life 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            style.
 
            14. On December 12, 1988, Dr. Carlson gave claimant an 8 
 
            percent body as a whole rating based on her limited range of 
 
            motion and the fact the type of surgery that she had.  He 
 
            asked claimant to return to see him on a as needed basis.
 
            15. On January 3, 1989, claimant was admitted to the 
 
            hospital in Cherokee with a spasm in her lumbar spine and 
 
            complaining of shortness of breath.  Claimant was 
 
            hospitalized from January 3, 1989 to January 7, 1989.  
 
            During the hospital course, claimant had several studies 
 
            done for her back and a pulmonary consult for her shortness 
 
            of breath.  The tests indicated that claimant was showing 
 
            some scaring at L4-5 and perhaps some further disc 
 
            involvement at L4-5 and S1.  However, there was no 
 
            definitive diagnosis.  Additionally, claimant's pulmonary 
 
            tests were normal.  Claimant was also seen in psychology for 
 
            chronic pain.  The final diagnosis upon her discharge was 
 
            chronic low back pain and chest pain of unknown etiology.  
 
            Claimant was released to return to work on January 9, 1989.  
 
            Since this hospitalization, claimant has not returned to Dr. 
 
            Carlson or Dr. Garner for her back.  Additionally, claimant 
 
            has lost no work time due to her shortness of breath or her 
 
            back injury over the past two years.
 
            16. Claimant indicates that when she is working, she has 
 
            alot of pain pushing carts and lifting boxes.  When she 
 
            bends, she comes up very slowly.  When she sits, she comes 
 
            up very slowly.  Some days are good and other days are bad.  
 
            She notes that she has shortness of breath when she over 
 
            works and when she cannot sit down during the course of the 
 
            work day.  When claimant is at home, she does not have any 
 
            associated back pain or shortness of breath.  By the end of 
 
            the day, claimant is very sore and is experiencing quite a 
 
            bit of pain.  She goes home and she will sit on an ice pack 
 
            and take some aspirin.  Claimant is taking six to eight 
 
            tablets per day.  As an aside, as part of the therapy for 
 
            pulmonary embolism, claimant was directed to take one 
 
            aspirin per day after she was off the anticoagulant 
 
            medication.
 
            17. Claimant believes that she cannot lift over 25 pounds 
 
            and does not have enough seniority to bid for the easy jobs 
 
            at the Wilson plant.  Claimant believes of the jobs in the 
 
            plant she cannot do 80 percent of the work that is available 
 
            at Wilson.  
 
            18. Currently, claimant is earning $9.15 per hour as her 
 
            base salary as a smoker's helper.  Claimant is making more 
 
            now than she did prior to the injury.  As a smoker, she 
 
            occasionally earns $9.42.  Claimant continues to work at 
 
            Wilson because there is no other work available for her in 
 
            the Cherokee area at the same rate of pay.  However, 
 
            claimant's job is well within her restrictions.
 
            19. At the time of the hearing, claimant indicated that 
 
            prolonged sitting bothers her.  However, claimant was 
 
            observed during her testimony which lasted beyond an hour 
 
            and did not show any distress while she was on the witness 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            stand.  Claimant also indicated that she experiences severe 
 
            shortness of breath from time to time and alot of shortness 
 
            of breath while she is at work.  She notes that her 
 
            breathing problems have interfered with her job and her back 
 
            has interfered with her job.  Claimant noted that she had no 
 
            prior lung problems before she had the surgery for her back.
 
            20. As far as her activities outside her work, claimant can 
 
            no longer play volleyball, jog, or dance.  She is able to 
 
            ride a bike and she bowls.  Claimant is bowling once a week 
 
            and participating in tournaments.  Claimant bowls about four 
 
            hours per month.
 
            21. On January 12, 1989, Dr. Carlson did a fairly extensive 
 
            work up on the claimant and found no adnormalities after the 
 
            spinal flare-up.  In conjunction with these studies, Dr. 
 
            Carlson counseled claimant that she should find other work 
 
            to do if she feels that she cannot do the work at Wilsons.  
 
            Specifically, Dr. Carlson indicated that:
 
            
 
                 It seems that she has a reinjury or exacerbations 
 
                 related to her previous problem and the advice 
 
                 that I gave her was simply that suggesting that 
 
                 maybe that the type of work associated at the Meat 
 
                 Packing Plant is not going to allow her to 
 
                 continue on long-term employment without further 
 
                 injury.  At this time, we have not placed any 
 
                 specific restrictions on Sherry as she was able to 
 
                 return to her previous job and seemed to be 
 
                 getting along quite well.  (Exhibit 22)
 
            22. In July of 1989, claimant again had an episode of severe 
 
            shortness of breath and coughing.  However, the pulmonary 
 
            function test done on this date were within normal limits.
 
            23. On October 23, 1989, Dr. Gutnik indicated that claimant 
 
            had a disability secondary to asthma and pulmonary emboli.  
 
            Dr. Gutnik gave claimant a 25 percent total body functional 
 
            impairment rating based on her medical condition and 
 
            problems.  Dr. Gutnik however could not find a relationship 
 
            between the asthma and pulmonary embolus.  He also indicated 
 
            that the 25 percent rating was based on a respiratory 
 
            condition and her back condition.
 
            24. In January of 1991, Dr. LeRoy Meyer found that claimant 
 
            had no significant disability from her prior pulmonary 
 
            embolus.  Claimant reported at the time of this examination 
 
            and assessment that if she were to walk six blocks, her 
 
            primary problem would be her back rather than shortness of 
 
            breath.  Dr. Meyer concluded that the symptoms are not 
 
            unexpected for someone who is in less than maximal shape.
 
            25. At the time of the hearing, claimant was still employed 
 
            by Wilson in the same job that she had had prior to her 
 
            injury.  Wilson has accommodated claimant's restrictions and 
 
            claimant has suffered no loss of wages as the result of her 
 
            injury.
 
            CONCLUSIONS OF LAW
 
            Claimant urges that she has suffered a substantial 
 
            industrial loss as a result of the injury to her back and 
 
            the pulmonary embolism that she suffered as a result of the 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            back surgery.  Wilson urges that claimant has suffered a 
 
            minimal loss and is entitled to no further benefits.
 
            The claimant has the burden of proving by a preponderance of 
 
            the evidence that the injury of January 1. 1988, is causally 
 
            related to the disability on which he now bases his 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 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 medical evidence clearly supports a conclusion that 
 
            claimant has suffered a permanent disability as a result of 
 
            the injury to her back.  The medical evidence is not 
 
            sufficient to support the same conclusion in connection with 
 
            claimant's lung problems.  Dr. Gutnik indicated that 
 
            claimant had a 25 percent impairment as a result of her back 
 
            injury and her lung condition.  He did not indicate how much 
 
            of this rating was due to the pulmonary embolus, claimant's 
 
            asthma, claimant's smoking, or claimant's back condition.  
 
            Moreover, Dr. Gutnik had indicated in October of 1988 that 
 
            he did not believe that claimant would have any long term 
 
            affects from the pulmonary embolism.  Dr. Meyer, an 
 
            evaluating physician reached the same conclusion in January 
 
            of 1991.  Finally, there is no medical evidence that links 
 
            claimant's asthma to the pulmonary embolism.  Dr. Gutnik and 
 
            his associate could not find any support for a causal 
 
            connection in the medical literature that they reviewed in 
 
            connection with claimant's case.  As a result, because the 
 
            medical evidence is insufficient to support a finding that 
 
            claimant suffered a permanent disability relating to her 
 
            lungs, claimant has no industrial loss associated with this 
 
            condition.
 
            However, since claimant had a permanent injury to her back, 
 
            she has suffered an industrial loss.
 
            Where claimant has an impairment to the body as a whole, an 
 
            industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            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.
 
            
 
                 In this instance, claimant's relative age plays a role.  
 
            Where the claimant is young, the industrial disability is 
 
            not as serious as it would be for an older employee. Mccoy 
 
            v. Donaldson Company, Inc., 1 IWAC Decisions of the Iowa 
 
            Industrial Commissioner 400, 405 (Appeal 1989); Walton v. B 
 
            & H Tank Corp., II Iowa Industrial Commissioner Report 426, 
 
            429 (Arb. 1981); Becke v. Turner-Busch, Inc., 34 Biennial 
 
            Report Iowa Industrial Commissioner 34, 36 (Appeal 1979).  
 
            Claimant has had an incomplete formal education.  There is 
 
            no evidence in the record indicating that she has sufficient 
 
            educational abilities to be retrained.  Claimant has worked 
 
            at physical labor jobs during her working career and some of 
 
            these jobs are now foreclosed to her due to her 
 
            restrictions.  Claimant is limited to lifting thirty pounds 
 
            over her head, 39 pounds on an occasional basis and 28 
 
            pounds on a frequent basis.  Claimant is still able to bend, 
 
            stoop, crawl, kneel, sit, stand, push and pull.  Claimant is 
 
            suited to light to medium work with these restrictions.
 
            Claimant has not had medical care for nearly two years for 
 
            her back.  She remains employed at Wilson, earning more 
 
            income than she did at the time of her injury.  Wilson has 
 
            accommodated her restrictions.  Even though claimant's 
 
            physicians have suggested that claimant leave the meat 
 
            packing industry, claimant has not chosen to do so.  Dr. 
 
            Carlson indicated that he was not restricting her in her 
 
            career choice as a meat packing worker. 
 
            Based upon the foregoing factors, all of the factors used to 
 
            determine industrial disability, and employing agency 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            expertise, it is determined that claimant sustained a 15 
 
            percent industrial disability.
 
            order
 
            THEREFORE, it is ordered:
 
            1.  Wilson shall pay to claimant permanent partial 
 
            disability benefits in the amount of fifteen percent (15%) 
 
            with payment commencing on August 18, 1988 at the rate of 
 
            two hundred sixty-eight and 04/100 dollars ($268.04) per 
 
            week for an injury to claimant's back.  As these benefits 
 
            have accrued, they shall be paid in a lump sum together with 
 
            statutory interest thereon pursuant to Iowa Code section 
 
            85.30 (1991).
 
            3.  Wilson shall have a credit in the amount of forty (40) 
 
            weeks at the rate of two hundred sixty-eight and 04/100 
 
            dollars ($268.04) per week against any amounts owed.  
 
            4.  The costs of this action shall be assessed to Wilson 
 
            pursuant to rule 343 IAC 4.33.
 
            5.  Wilson shall file claim activity reports as required by 
 
            rule 343 IAC 3.1.
 
            Signed and filed this ____ day of December, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                      ELIZABETH A. NELSON
 
                      DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Michael W Ellwanger
 
            Attorney at Law
 
            300 Toy Natl Bank Building
 
            Sioux City Iowa 51101
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            Mr David L Sayre
 
            Attorney at Law
 
            223 Pine Street
 
            PO Box 535
 
            Cherokee Iowa 51012
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1803
 
                                          Filed December 20, 1991
 
                                          ELIZABETH A. NELSON
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SHERRY L. MORET,              :
 
                                          :
 
                 Claimant,                :     File No. 876588
 
                                          :
 
            vs.                           :   A R B I T R A T I O N
 
                                          :
 
            WILSON FOODS CORPORATION,     :     D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant, a 39-year-old, who completed the 10th grade, 
 
            suffered a permanent injury to her back.  She works as a 
 
            smoker's helper and earns $9.15 per hour.  Claimant smokes 
 
            and has restrictive airways disease.  Claimant had a 
 
            laminectomy to resolve her back injury.  While claimant was 
 
            recovering from surgery, she developed a a pulmonary 
 
            embolism.  This problem was resolved and did not result in 
 
            any permanent disability.  Claimant had a restriction which 
 
            included lifting no more than 39 pounds on an occasional 
 
            basis and 28 pounds on a frequent basis.  Claimant is still 
 
            able to bend, stoop crawl, kneel, sit, stand, push and pull.  
 
            Wilson has accomodated claimant's restrictions.  Claimant 
 
            was awarded 15 percent disability. 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1803
 
                                          Filed December 20, 1991
 
                                          ELIZABETH A. NELSON
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SHERRY L. MORET,              :
 
                                          :
 
                 Claimant,                :     File No. 876588
 
                                          :
 
            vs.                           :   A R B I T R A T I O N
 
                                          :
 
            WILSON FOODS CORPORATION,     :     D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant, a 39-year-old, who completed the 10th grade, 
 
            suffered a permanent injury to her back.  She works as a 
 
            smoker's helper and earns $9.15 per hour.  Claimant smokes 
 
            and has restrictive airways disease.  Claimant had a 
 
            laminectomy to resolve her back injury.  While claimant was 
 
            recovering from surgery, she developed a a pulmonary 
 
            embolism.  This problem was resolved and did not result in 
 
            any permanent disability.  Claimant had a restriction which 
 
            included lifting no more than 39 pounds on an occasional 
 
            basis and 28 pounds on a frequent basis.  Claimant is still 
 
            able to bend, stoop crawl, kneel, sit, stand, push and pull.  
 
            Wilson has accomodated claimant's restrictions.  Claimant 
 
            was awarded 15 percent disability. 
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
        BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
____________________________________________________________
 
          
 
SHERRY L. MORET,   
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                      File No. 876588
 
              
 
WILSON FOODS CORPORATION,    
 
                                      REVIEW-REOPENING
 
          
 
     Employer,                           DECISION
 
     Self-Insured,  
 
     Defendant.     
 
___________________________________________________________
 
                 STATEMENT OF THE CASE
 
 
 
This is a proceeding in review-reopening brought by claimant, Sherry 
 
Moret, against her former employer, Wilson Foods Corporation.
 
 
 
Ms. Moret sustained an injury on January 1, 1988, which arose out of 
 
and in the course of her employment with defendant.  A hearing was held 
 
and decision subsequently filed on December 20, 1991, by a deputy 
 
industrial commissioner, awarded claimant 75 weeks of permanent partial 
 
disability benefits based on a determination of a 15 percent industrial 
 
disability.  No appeal of the deputy's decision was taken.  
 
 
 
Claimant has now filed a review-reopening petition claiming a change in 
 
condition.
 
 
 
This case came on for hearing before the undersigned deputy industrial 
 
commissioner on October 20, 1994 at Storm Lake, Iowa.  The evidence 
 
consists of the testimony of claimant and Diane West, claimant's 
 
sister; and joint exhibits 1 through 50 and defendant's exhibits A 
 
through E.  Claimant's exhibits 51 through 54 were excluded from the 
 
record on defendant's motion to strike.  The case was considered fully 
 
submitted at the close of the hearing.  
 
 
 
                              ISSUES
 
 
 
The parties presented the following issues for resolution:
 
 
 
1.  Whether claimant has suffered a change in condition which entitles 
 
her to additional permanent partial disability benefits, and;
 
 
 
2.  What is the appropriate commencement date for additional 
 
permanent partial disability benefits, if awarded.
 
 
 
                         FINDINGS OF FACT
 
 
 
Having heard the testimony of the witnesses and after carefully 
 
reviewing all of the evidence received, the undersigned makes the 
 
following findings of fact:
 
 
 
At the time of the hearing claimant was 42 years old.  She is 
 
unemployed.  She currently lives with her sister in Larabie, Iowa.  She 
 
has one daughter, who at the time of the hearing was 23 years old.
 
Claimant dropped out of school in the 10th grade.  She has never 
 
attempted to complete a GED program.  Much of her early elementary 
 
education was spent in special education programs, until she was 
 
returned to the regular classroom while in the eighth grade.  Claimant 
 
has great difficulty with reading and writing.  Claimant's educational 
 
background has not changed since her May, 1991 workers compensation 
 
hearing.  The arbitration decision of December 1991 recognizes 
 
claimant's limited educational background.  (Joint Exhibit 50, page 2)  
 
There has been no change in her educational background or her reading 
 
and writing abilities.
 

 
 
 
 
 
 
 
 
 
Since leaving high school, claimant has worked at various physical 
 
labor jobs.  She worked as an egg packer at Walbond in Nebraska for 
 
minimum wage.  From 1971 until 1975 she worked as a production line 
 
employee at IBP.  From 1976 until 1977 she worked at a nursing home 
 
taking care of patients.  From 1977 until 1978 she worked as a nurse's 
 
aid and housekeeper at Cherokee Hospital for minimum wage.  All but 
 
four weeks of her time at Cherokee Hospital was spent in the 
 
housekeeping department where she cleaned offices and hallways.  (See 
 
also Jt. Ex. 50, page 2)
 
 
 
In 1979 claimant began with Wilson Foods.  Her work-related injury 
 
happened in January of 1988 when she was hanging hams on a tree.  
 
Subsequent diagnostic tests indicated that she had a bulging disc at 
 
L4-5 and a herniated disc at L5-S1.  On February 20, 1988, claimant 
 
underwent a laminectomy and a diskectomy to repair the damage to her 
 
discs.  During her hospital stay, and for a period of time after her 
 
hospitalization, claimant underwent treatment for a pulmonary embolus 
 
that was determined not to be related to either her back surgery or her 
 
work at Wilson Foods. (Jt. Ex. 50, p. 2 & 3)
 
She underwent physical therapy after her back surgery from April of 
 
1988 until June of 1988.  (Jt. Ex. 50, p. 3)
 
 
 
A functional capacity assessment on June 15, 1988 set out her work 
 
restrictions.  Her complete assessment is set out at joint exhibit 50, 
 
page 4.  Particularly, claimant was limited to lifting a maximum of 39 
 
pounds.  She may lift 28 pounds on a more frequent basis and may never 
 
lift more than 30 pounds above her shoulders.  (Jt. Ex. 50, p. 4)
 
From January 3, 1989 until January 7, 1989, claimant was hospitalized 
 
for spasm and pain in her lumbar spine.  Tests indicated that she had 
 
some scaring at L4-5 and perhaps some further disc involvement at L4-5 
 
and S1.  There was no definitive diagnosis.  She was released to return 
 
to work on January 9, 1989.  From January 9, 1989 until May 2, 1991, 
 
(the day of her workers compensation hearing) she did not return to the 
 
company doctor or to her back surgeon for treatment, nor did she lose 
 
any time from work due to her back injury of January 1, 1988.  (Jt. Ex. 
 
50, p. 5)
 
 
 
As early as January 12, 1989, Walter O. Carlson, M.D., claimant's 
 
surgeon reported:
 
   
 
We have counseled Sherry from time to time.  She is going to have 
 
flare-ups of her spine and back pain.  We have also counseled her that 
 
perhaps in the future she needs to find other types of work to do, if 
 
the job that she has been able to carry out at Wilson's is no longer 
 
able to carry out in her situation. (sic) (Jt. Ex. 22)
 
And in February of 1989 Dr. Carlson wrote:
 
 
 
It seems that she has a reinjury or exacerbations related to her 
 
previous problem and the advice that I gave her was simply that 
 
suggesting that maybe that the type of work associated with the Meat 
 
Packing Plant is not going to allow her to continue on long-term 
 
employment without further injury.  At this time, we have not placed 
 
any specific restrictions on Sherry as she was able to return to her 
 
previous job and seems to be getting along quite well.  (Jt. Ex. 25, 
 
Jt. Ex. 50 p. 6)
 
 
 
All of the above information was considered by the deputy when the 
 
initial arbitration award was made.  The deputy was aware that Dr. 
 
Carlson had suggested claimant leave the meat packing industry, but he 
 
did not restrict claimant's career choice as a meat packer.  After Dr. 
 
Carlson's letters of January and February 1989, claimant was able to 
 
and did continue to work for Wilson's for over two years.  
 
 
 
She terminated her employment with Wilson Foods on May 9, 1991; just 
 
seven  days after her initial workers compensation hearing.  After 
 
quitting Wilson Foods claimant filed for unemployment benefits.  She 
 
was denied benefits because it was determined that she quit because she 
 
felt she was being harassed at work and the record did not establish 
 
sufficient evidence to show good cause attributable to the employer for 
 
her voluntary quit.  (Defendant's Exhibit E) 
 
 
 
At the hearing she testified that she quit Wilson Foods because she was 
 
being harassed by a union steward who did not like her.  She never 
 
complained to any management personnel about the harassment, nor did 
 

 
 
 
 
 
 
 
 
 
she report to management that she was physically unable to perform her 
 
job duties.  Up until May of 1991, Wilson Foods had accommodated her 
 
work restrictions.  (Jt. Ex. 50, p. 6)  There is no indication that 
 
Wilson Foods would not have accommodated her work restrictions if 
 
claimant had told them she was not able to perform her job.  There is 
 
no evidence that claimant's job duties on May 9, 1991 were not in 
 
compliance with her work restrictions, in fact it is clear that all of 
 
the jobs she was assigned to perform at Wilson were within her work 
 
restrictions.  It is clear from her testimony that she left Wilson not 
 
because she was physically unable to perform the work, but because she 
 
had a personality conflict with another employee.  When she left Wilson 
 
Foods she was making $9.20 per hour, more than she was making at the 
 
time of her original injury.
 
 
 
After leaving Wilson she was employed by Cedar Falls Construction 
 
Company as a flagger at $6.00 per hour.  She terminated her employment 
 
with Cedar Falls Construction because she said the boss was always 
 
favoring other employees over her.  Again she filed for unemployment 
 
benefits and was denied because her separation was due to a personality 
 
conflict with her supervisor and not to any conduct attributable to the 
 
employer.  (Def. Ex. B)
 
 
 
From September of 1991 until sometime in 1992 she worked at the 
 
Hacienda Motel in Cherokee as a maid for $5.00 per hour.  She cleaned 
 
rooms, made beds, climbed up and down two flights of stairs and flipped 
 
mattress.  Claimant quit her job at the Hacienda in order to move to 
 
Garden City, Kansas to help her father in his business moving mobile 
 
home trailers.  While working for her father she acted as an escort, 
 
driving ahead of him on the road.  She would also hand him tools while 
 
he worked on the trailers.  She was paid $6.00 per hour, but only 
 
worked part-time.
 
 
 
In the summer of 1992 claimant was helping her father when she picked 
 
up a cement brick and experienced a painful flare-up of her back.  (Jt. 
 
Ex. 47, p. 9)   At the hearing claimant estimated that the brick 
 
weighed 45 pounds, well beyond the lifting restrictions imposed on her 
 
by Dr. Carlson.  
 
 
 
On September 7, 1992, she was taken to the hospital suffering from 
 
lower back pain which radiated to both of her legs.  (Jt. Ex. 29, p. 
 
10)  Her back had been bothering her, but was exacerbated by a ten-hour 
 
car drive from Kansas to Iowa.  (Jt. Ex. 29, p. 3)
 
 
 
On October 5, 1992, claimant completed a form for James Joseph, Jr., 
 
M.D., on which she gave a date of injury of September and a description 
 
of her injury as pain in her lower back and right leg.  (Jt. Ex. 42, p. 
 
1)  She saw Dr. Joseph on October 6, 1992 and told him of working with 
 
her father and developing recalcitrant back pain with radiation to the 
 
right leg.  She reported her previous symptoms of leg pain on the left. 
 
 (Jt. Ex. 31, p. 3)  She asked the doctor whether any of her current 
 
problems where caused by her previous back injury.  Dr. Joseph wrote:  
 
   
 
   It was very difficult to place a cause and effect relationship on 
 
this.  She apparently never got better from her preexisting problem, 
 
however, with new injury it could also exacerbate the problem at a 
 
different level.  Thus, the question of whether this existed before the 
 
previous injury is a very difficult one to answer in this case.  (Jt. 
 
Ex. 43, p. 2)
 
 
 
On December 1, 1992, claimant again visited Regan G. Nichols, D.O. and 
 
reported that she had slipped on the ice twice and did have some back 
 
pain after each of those slips.  (Jt. Ex. 47, p. 5)
 
 
 
On January 1, 1993, claimant was in a bar when a fight broke out and 
 
two or three men who were fighting knocked her over and landed on top 
 
of her.  The pain in her back has been worse since then.  (Jt. Ex. 47, 
 
p. 4)  Dr. Nichols did not find claimant's pain significantly worse 
 
than when she first saw her in August of 1992.  (Jt. Ex. 47, p. 3)
 
According to her testimony at the hearing claimant is currently suing 
 
the bar owner, but is unable to collect on any possible judgment 
 
because the bar owner owes back taxes.
 
 
 
Claimant saw Dr. Joseph again in February of 1993.  His notes indicate 
 
that since the bar fight incident in January she has developed 
 
relatively severe right leg pain, radiating down her leg.  (Jt. Ex. 44)
 

 
 
 
 
 
 
 
 
 
There are no records of any medical treatment for claimant after 
 
February of 1993.
 
 
 
At the hearing claimant testified that she was not physically worse now 
 
than when she worked for Wilson Foods.
 
 
 
                ANALYSIS AND CONCLUSIONS OF LAW
 
 
 
The first issue to be determined is whether claimant has had a change 
 
in condition, proximately caused by the original injury, since her 
 
original award of benefits.
 
 
 
The party who would suffer loss if an issue were not established has 
 
the burden of proving that issue by a preponderance of the evidence.  
 
Iowa R. of App. P. 14(f).
 
 
 
Upon review-reopening, claimant has the burden to show a change in 
 
condition related to the original injury since the original award or 
 
settlement was made.  The change may be either economic or physical.  
 
Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Henderson 
 
v. Iles, 250 Iowa 787, 96 N.W.2d 321 (1959).  A mere difference of 
 
opinion of experts as to the percentage of disability arising from an 
 
original injury is not sufficient to justify a different determination 
 
on a petition for review-reopening.  Rather, claimant's condition must 
 
have worsened or deteriorated in a manner not contemplated at the time 
 
of the initial award or settlement before an award on review-reopening 
 
is appropriate.  Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 
 
109 (1957).  A failure of a condition to improve to the extent 
 
anticipated originally may also constitute a change of condition.  
 
Meyers v. Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa Ct. 
 
App. 1978).
 
 
 
In this case there has been a prior decision.  A redetermination of the 
 
claimant's condition as it was adjudicated by a prior award is 
 
inappropriate.  Stice v. Indiana Coal Co., 228 Iowa 1031, 1038, 290 
 
N.W. 452, 456 (1940).  Deterioration in the condition which was 
 
contemplated is not sufficient justification for a different 
 
determination.  Anderson v. J. I. Case Co., IAWC 17 (Appeal Dec. 1989)
 
Claimant argues that there has been a change in both her economic 
 
condition and her physical condition and that one or both of those 
 
alleged changes justifies an increase in her industrial disability 
 
award.  
 
 
 
Claimant relies on Blacksmith to support her contention that she has 
 
lost earning capacity since the original award and is therefore 
 
entitled to additional benefits.  
 
 
 
Blacksmith is clearly distinguishable from this case.  In Blacksmith, 
 
an employer transferred an employee, after the employee suffered a work 
 
related injury; to a lower paying position.  Here, the claimant 
 
voluntarily quit her employment, not because she couldn't continue to 
 
perform the work that she had been doing for over two years, but 
 
because she had a personality conflict with a co-employee.  At the time 
 
she quit her job she was able to physically perform the job duties 
 
assigned to her.  Wilson Foods was complying with her work 
 
restrictions.  Her quit, and subsequent loss of earning capacity, was 
 
in no way related to or caused by an inability of claimant to perform 
 
the work she was assigned.  To allow an employee to quit for any 
 
reason, and then to claim a loss of earning capacity is patently unfair 
 
to the employer.  Even if it is true that claimant may never again be 
 
able to earn the amount of money she was making at Wilson Foods, her 
 
loss of earning capacity must be proximately caused by her original 
 
injury.  Claimant's is not.
 
 
 
Claimant's educational background and training have not changed from 
 
the time of her initial award.  Her lack of education and reading and 
 
writing ability was known by the deputy making the initial arbitration 
 
award.
 
 
 
Claimant's second argument is that she has suffered a change in her 
 
physical condition that is proximately caused by her original injury.  
 
Since her original award claimant has lifted a brick and experienced 
 
back pain, she has slipped on the ice twice and experienced back pain, 
 
she has ridden in a car for a long period of time and experienced back 
 
pain and she has been knocked over in a barroom brawl and experienced 
 
back pain.  None of these incidents are attributable to her employment 
 

 
 
 
 
 
 
 
at Wilson's or to her original injury.  
 
 
 
As early as January 1989, Dr. Carlson told claimant that she could 
 
expect to have flare-ups of spinal pain from time to time.  This was 
 
contemplated by the deputy when claimant's previous award was made, it 
 
appears in the findings of fact.  No medical expert has made the 
 
determination that claimant's condition has worsened as a result of her 
 
original injury.  It would be very difficult for any medical provider 
 
to do so because claimant has had a number of intervening injuries that 
 
could be causing her pain.  Claimant has no additional impairment 
 
ratings and no additional restrictions.  She did not miss any work or 
 
seek medical care from the company doctor or her back surgeon from 
 
January 9, 1989 through May 2, 1992.  Claimant cannot establish by a 
 
preponderance of the evidence a change in condition proximately caused 
 
by her original injury of January 1, 1988, which would entitle her to 
 
additional benefits.  All other issues are rendered moot.
 
 
 
                             ORDER
 
 
 
THEREFORE IT IS ORDERED:
 
 
 
Claimant takes nothing.
 
 
 
That claimant shall pay the costs of this action pursuant to 
 
rule 343 IAC 4.33.
 
 
 
Signed and filed this ____ day of December, 1994.
 
                              
 
                              ______________________________
 
                              TERESA K. HILLARY
 
                              DEPUTY INDUSTRIAL COMMISSIONER    
 
 
 
Copies to:
 
Mr. Michael W. Ellwanger
 
Attorney at Law
 
300 Toy Building
 
Sioux City, IA  51101
 
 
 
Ms. Judith Ann Higgs
 
Attorney at Law
 
P.O. Box 3086
 
Sioux City, IA  51102
 
 
 
 
 
 
 
 
 
 
 
 
     
 
                               5-1402
 
                               Filed December 19, 1994
 
                               Teresa K. Hillary
 
 
 
        BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
____________________________________________________________
 
          
 
SHERRY L. MORET,   
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                        File No. 876588
 
WILSON FOODS CORPORATION,    
 
                                       REVIEW-REOPENING
 
          
 
     Employer,                            DECISION
 
     Self-Insured,  
 
     Defendant.     
 
___________________________________________________________
 
5-1402  
 
Claimant was unable to establish by a preponderance of the evidence 
 
that she had a change in either her physical condition or in her 
 
economic condition that was proximately caused by her original injury.  
 
Her initial award was a 15 percent industrial disability.  Claimant's 
 
educational background has not changed from the time of her initial 
 
award.  Claimant quit her job with defendant-employer, just seven days 
 
after her original arbitration hearing.  It was determined that she 
 
quit her employment not because she was physically unable to perform 
 
her job duties, but because she had a personality conflict with a 
 
co-employee.  Claimant can not claim her lack of earning capacity 
 
results from her voluntary quit from her job.  No medical provider has 
 
determined that claimant's physical condition has changed since her 
 
previous award even though claimant continues to suffer from back pain. 
 
 
 
Sporadic back pain was contemplated by the deputy who made the initial 
 
award.  In the interim, claimant has fallen on ice twice, experienced 
 
back pain from extended car journeys and been the unintended victim of 
 
a barroom brawl.  
 
 
 
 
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
           
 
                        
 
            S. RICHARD PREWITT,   
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                            File Nos. 876688/931128
 
            FIRESTONE TIRE AND RUBBER       
 
            COMPANY,                             R E M A N D
 
                                    
 
                 Employer,                     D E C I S I O N
 
                        
 
            and         
 
                        
 
            CIGNA INSURANCE COMPANIES,      
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            This matter has been remanded to the agency by the district 
 
            court to determine if the impairment resulting from 
 
            claimant's work injury on September 30, 1987 is an 
 
            impairment limited to the arm or whether it extends to the 
 
            shoulder and the body as a whole.
 
            
 
            The appeal decision in this matter filed August 12, 1992 is 
 
            incorporated by reference.  The following clarification is 
 
            made.
 
            
 
            Claimant has the burden of proving that the injury caused 
 
            the claimed disability.  Claimant is claiming a disability 
 
            to the body as a whole.  The situs of the impairment 
 
            determines whether the disability is to a scheduled member 
 
            or the body as a whole.  The issue to be decided is whether 
 
            claimant has proved that the situs of his impairment is in 
 
            the shoulder and thus to the body as a whole.  
 
            
 
            Dr. Neff's opinion will bend to the 
 
            shoulder or the body as a whole.  Because Dr. Neff found 
 
            full range of motion and normal strength of the shoulder, 
 
            his opinion of impairment rating to the upper extremity must 
 
            have excluded an impairment of the shoulder.  While the law 
 
            is construed liberally in favor of the claimant, the facts 
 
            must be examined in light of the burden of proof.  The 
 
            claimant has the burden of proof and must present evidence 
 
            to meet his burden of proof.
 
            
 
            Dr. Rosenfeld's opinion, which appears to be inconsistent 
 
            with Dr. Neff's is rejected.  Dr. Rosenfeld is an evaluating 
 
            physician who saw claimant only once in November 1990.  Dr. 
 
            Neff was a treating doctor who performed surgery and had 
 
            extensive contact with claimant.  Dr. Rosenfeld's opinion 
 
            appears to attribute part of the impairment to the right 
 
            upper extremity to loss of motion and other problems.  His 
 
            finding of loss of motion is directly contradicted by both 
 
            Dr. Neff and Mr. Bower.  Also, the other problems of the 
 
            shoulder that Dr. Rosenfeld was evaluating may or may not 
 
            have been related to the injury.
 
            
 
            This is not a case involving the issue of whether an 
 
            impairment of the shoulder is to be compensated as a body of 
 
            the whole disability.  This is a case involving the issue of 
 
            whether claimant has met his burden of proving his 
 
            impairment extends beyond the scheduled member.  To hold in 
 
            this case that claimant's disability was to the shoulder and 
 
            the body as a whole would be inconsistent with the facts and 
 
            evidence of the case.  It cannot be said that as a matter of 
 
            law the initial injury to the shoulder or the surgical 
 
            procedure performed in this case resulted in a disability to 
 
            the shoulder.  The anatomical situs of the impairment 
 
            determines whether the disability is to a scheduled member 
 
            or to the body as a whole.  Claimant has not proved that the 
 
            anatomical situs of the impairment is in the shoulder.  In 
 
            fact, evidence in this case shows that the anatomical situs 
 
            of the impairment is not in the shoulder.  There is no 
 
            reliable evidence in the record to indicate that the 
 
            anatomical situs of the impairment is in the shoulder.
 
            The district court in its decision in remanding this case 
 
            indicated that decisions of the industrial commissioner have 
 
            not helped to clarify the distinction between the situs of 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            the injury and situs of the impairment.  It is worth noting 
 
            that none of the cases the district court cited as decisions 
 
            provided by the claimant are agency law (industrial 
 
            commissioner appeal decisions) that were issued after 
 
            Lauhoff Grain Co. v. McIntosh, 395 N.W.2d 834 (Iowa 1986).
 
            In summary, claimant has not met his burden of proving that 
 
            his injury of September 30, 1987 resulted in an injury to 
 
            the shoulder or the body as a whole.
 
            THEREFORE, it is ordered that the appeal decision filed 
 
            August 12, 1992 is reaffirmed.
 
     
 
     Signed and filed this ____ day of June, 1993.
 
            
 
            
 
            
 
            
 
                                     ________________________________
 
                                           BYRON K. ORTON
 
                                       INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert W. Pratt
 
            Attorney at Law
 
            6959 University Ave.
 
            Des Moines, Iowa 50311-1540
 
            
 
            Ms. Valerie A. Landis
 
            Attorney at Law
 
            2700 Grand Ave., Ste 111
 
            Des Moines, Iowa 50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1803.1
 
                                                 Filed June 30, 1993
 
                                                 Byron K. Orton
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            S. RICHARD PREWITT,   
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                          File Nos. 876688/931128
 
            FIRESTONE TIRE AND RUBBER       
 
            COMPANY,                              R E M A N D
 
                                    
 
                 Employer,                     D E C I S I O N
 
                        
 
            and         
 
                        
 
            CIGNA INSURANCE COMPANIES,      
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
           
 
            
 
            1803.1
 
            On remand it was reaffirmed that claimant had not met his 
 
            burden of proving that the anatomical situs of the 
 
            impairment was to the body as a whole.  In fact, the 
 
            evidence in this case showed that the impairment was not in 
 
            the shoulder.  It was the treating physician's opinion that 
 
            there was full range of motion and strength in the shoulder.  
 
            It was also the treating physician's opinion that the 
 
            impairment did not extend to the body as a whole.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CAROL ELLSWORTH,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 876792
 
            DES MOINES GENERAL HOSPITAL,  :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon claimant's 
 
            petition filed June 30, 1988.  Claimant sustained a work 
 
            injury to her back on January 31, 1988 while attempting to 
 
            lift a heavy patient in the course of her employment as a 
 
            licensed practical nurse.  She now seeks benefits under the 
 
            Iowa Workers' Compensation Act from her employer, Des Moines 
 
            General Hospital, and its insurance carrier, Liberty Mutual 
 
            Insurance Company.
 
            
 
                 Hearing on the arbitration petition was had in Des 
 
            Moines, Iowa, on April 24, 1990.  The record consists of 
 
            joint exhibits 1 through 5 and the testimony of claimant and 
 
            Alex Oponski.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report, the parties have 
 
            stipulated:  that claimant sustained an injury arising out 
 
            of and in the course of her employment with Des Moines 
 
            General Hospital on January 31, 1988; that the injury caused 
 
            temporary disability for which she has received all benefits 
 
            to which entitled; that if claimant is found to have 
 
            sustained permanent disability, it is an industrial 
 
            disability to the body as a whole and the commencement date 
 
            for benefits is January 26, 1989; that the rate of weekly 
 
            compensation is $208.42 (based on a gross weekly wage of 
 
            $331.20, marital status of single and entitlement to two 
 
            exemptions); that affirmative defenses are waived; that all 
 
            requested medical benefits have been or will be paid by 
 
            defendants; that defendants paid 104.429 weeks of 
 
            compensation at the stipulated rate prior to hearing.
 
            
 
                 Issues presented for resolution include:  whether the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            injury caused permanent disability and, if so, the extent 
 
            thereof; taxation of costs.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all of the evidence, finds:
 
            
 
                 Claimant, age 49 at the time of hearing, impressed this 
 
            viewer as being of at least average intelligence.  She 
 
            graduated from high school in 1958, completed certification 
 
            as a nurse's aide, and obtained a degree as licensed 
 
            practical nurse in 1978.  She was well along in a registered 
 
            nurse program at Des Moines Area Community College at the 
 
            time of the work injury, but has discontinued that program 
 
            because she now finds herself unable to physically perform 
 
            certain aspects of clinical practice in that profession.  
 
            She has no other formal education.
 
            
 
                 Claimant held a clerical position with an insurance 
 
            company from mid-1958 until early 1959.  Following her 
 
            marriage, she was not employed outside the home from 1959 
 
            until 1974.  During that time, she helped with farm chores 
 
            including animal husbandry and baling hay.
 
            
 
                 Claimant was employed by Osceola Leisure Manor for 
 
            about four years beginning in 1974.  She worked as a cook, 
 
            housekeeper, laundry worker and as a nurse's aide.  All of 
 
            this work involved relatively heavy lifting, especially as a 
 
            nurse's aide.  After receiving her LPN degree, claimant took 
 
            employment with Des Moines General Hospital in July 1978 and 
 
            continued until the work injury.  She worked on the 
 
            gynecology floor, in the pediatrics department and on the 
 
            skilled nursing floor.  Claimant described herself as loving 
 
            the work and her annual evaluations were consistently 
 
            average to above average.
 
            
 
                 Prior to the stipulated work injury, claimant has had 
 
            long-standing complaints of back pain, cervical, thoracic 
 
            and lumbar.  Her complaints go back at least as far as 1978 
 
            and she has frequently been treated with osteopathic 
 
            manipulation.  She has complained of several work injuries 
 
            during that time.  However, it does not appear that claimant 
 
            ever had permanent medical restrictions imposed and she was 
 
            able to continue her heavy work as an LPN up until the 
 
            subject injury.
 
            
 
                 On January 31, 1988, a very large patient (weighing 
 
            between 300 and 400 pounds) fell to the floor.  Claimant and 
 
            five other employees helped the patient into bed.  Claimant 
 
            is approximately 5 feet 1 1/2 inches tall and weighs 135 
 
            pounds.  She developed pain in her back which continued to 
 
            worsen through her shift.  She was initially treated 
 
            conservatively, but after about two weeks began developing 
 
            radiating pain into the leg.  Claimant did some part-time 
 
            (work with no lifting) in medical records, human resources 
 
            and the pharmacy department.  However, walking caused her 
 
            back to worsen while she did pharmacy rounds.  She was 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            eventually referred by her original physician, Joel Boyd, 
 
            D.C., to Martin S. Rosenfeld, D.O., who took her off work 
 
            following a myelogram.  Claimant was eventually referred to 
 
            William R. Boulden, M.D., and Scott B. Neff, D.O., and 
 
            underwent surgery on August 5, 1988 performed by Dr. 
 
            Boulden.  Pre- and post-operative diagnoses were 
 
            spondylolysis, L5 bilaterally with Grade I spondylolisthesis 
 
            and spinal stenosis L5-S1 right.  Surgery was described as 
 
            Gill laminectomy, fat graft, and transverse process fusion 
 
            to the sacral bilaterally.
 
            
 
                 Although, as has been noted, claimant had a long 
 
            history of back pain complaints, a radiographic report 
 
            prepared by David Foy, D.O., on January 7, 1985 showed no 
 
            evidence of abnormality, fracture or dislocation or bony 
 
            destruction of the lumbar spine.
 
            
 
                 Dr. Boulden opined that claimant reached her maximum 
 
            medical improvement based on an evaluation of January 25, 
 
            1989.  In his letter of April 18, 1989, he stated that there 
 
            was a direct relationship between symptoms and the injury 
 
            which occurred at work and that the injury was the cause of 
 
            further treatment and fusion surgery.  Dr. Boulden felt that 
 
            claimant's underlying condition preexisted the injury and, 
 
            pursuant to American Academy of Orthopaedic Surgeons 
 
            guidelines, assigned a 25 percent "disability" rating, of 
 
            which 10 percent was preexisting and 15 percent related to 
 
            the work injury and resultant surgery.  Dr. Boulden imposed 
 
            restrictions against bending, twisting or lifting with the 
 
            back and against prolonged sitting, but further stated that 
 
            more specific restrictions would be set forth by Thomas 
 
            Bower, L.P.T., of Physical Therapy Consultants.  In a letter 
 
            of clarification of May 15, 1989, Dr. Boulden specified that 
 
            physical restrictions were as a result of the work injury 
 
            and subsequent surgery.
 
            
 
                 In a letter of May 9, 1988, Scott B. Neff, D.O., 
 
            diagnosed degenerative retro-listhesis of L2-3 and a 
 
            degenerative spondylolisthesis Grade I at L5-S1.  "Whether 
 
            or not this was present before is impossible to tell but it 
 
            certainly was asymptomatic throughout years of farm work."  
 
            Dr. Neff further noted that degenerative spondylolisthesis 
 
            can be aggravated or worsened with trauma.
 
            
 
                 Claimant underwent five weeks of physical therapy with 
 
            Thomas W. Bower.  Mr. Bower wrote on January 24, 1989 that 
 
            she was now lifting 38 pounds from floor to waist and that 
 
            there had been improvement in all areas, but not sufficient 
 
            to return her safely back to previous work duties.  Claimant 
 
            was now able to continue with an activity for at least 120 
 
            minutes, but it was unlikely she would be able to go back to 
 
            any kind of heavy lifting or work involving moving or 
 
            transferring patients.
 
            
 
                 As of the time of hearing, claimant credibly described 
 
            more or less constant lower back pain, but not such as to be 
 
            severe or debilitating.  She does not suffer radiation of 
 
            numbness or pain to the leg.  However, she finds herself 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            unable to sit or stand for long, and carrying weights causes 
 
            increased lower back pain.  Walking beyond a mile causes low 
 
            back pain beyond her toleration.  She also described 
 
            problems with chores involving bending, such as vacuuming or 
 
            changing bed linens.  Although she wishes to return to the 
 
            nursing profession, she finds herself unable because of 
 
            inability to lift or bend sufficient unto the job.
 
            
 
                 Claimant looked for work during her recovery with 
 
            various medical clinics and insurance carriers in the Des 
 
            Moines and Indianola (where she now lives) area.
 
            
 
                 However, she did not find work until May 8, 1989, when 
 
            hired by Wilden Clinic with the assistance of Assistant 
 
            Director of Human Resources Alex Oponski.  Her previous job 
 
            as LPN paid $8.28 per hour, plus a $1.00 per hour shift 
 
            differential.  Her position as telephone operator at Wilden 
 
            Clinic paid $6.15.
 
            
 
                 In December 1989, claimant went to Medical Services 
 
            Southridge (it appears that both Wilden Clinic and Medical 
 
            Services Southridge are affiliated with Des Moines General 
 
            Hospital) as an admitting clerk.  She currently earns $6.33 
 
            per hour, and from time to time a $.50 shift differential.  
 
            Claimant sits approximately half the time and finds this 
 
            easier on her back than work as a telephone operator and 
 
            data entry worker at Wilden Clinic.
 
            
 
                 Claimant is unsure as to her future plans, but does not 
 
            currently intend to undertake further educational pursuits.
 
            
 
                 Alex Oponski indicated that the top LPN wage was $10.50 
 
            at the time of claimant's injury (plus the shift 
 
            differential) and that this remains the same except for a 
 
            hospital-wide raise which claimant also received at her 
 
            present job.  Her current position carries a wage ranging up 
 
            to $7.49.  He suggested that claimant could remain employed 
 
            in medical records, patient accounts, pharmacy, admitting 
 
            and radiology, all of which involve rather minimal lifting.
 
            
 
                                conclusions of law
 
            
 
                 The parties have stipulated that claimant sustained an 
 
            injury arising out of and in the course of her employment 
 
            that caused temporary disability.  However, they dispute 
 
            whether there is a causal nexus to claimed permanent 
 
            disability.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of January 31, 
 
            1988 is causally related to the disability on which she now 
 
            bases her 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 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 The treating surgeon, Dr. Boulden, has opined that a 
 
            causal relationship does exist between the work injury and 
 
            claimant's surgical treatment and resultant disability.  No 
 
            contrary evidence exists of record.  Claimant has clearly 
 
            met her burden of proof on this issue.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, 1985).
 
            
 
                 Because of the work injury and resultant restrictions, 
 
            claimant finds herself unable to perform any of the work she 
 
            has actually done during the course of her working life.  
 
            Although she remains employed with defendant or affiliated 
 
            businesses, actual earnings are in the neighborhood of 25 
 
            percent less than was previously the case.  Claimant will 
 
            not be able to pursue her career goal of becoming a 
 
            registered nurse because of her medical restrictions, even 
 
            though she was well along in completing the required 
 
            academic curriculum.  No doubt claimant will be a less 
 
            attractive potential employee in the minds of at least some 
 
            potential employers by reason of her serious back injury and 
 
            resultant surgical fusion.
 
            
 
                 Considering these factors in specific and the record in 
 
            general, it is held that claimant has sustained a permanent 
 
            partial disability equivalent to 35 percent of the body as a 
 
            whole, or 175 weeks.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 In addition to temporary benefits already paid and no 
 
            longer at issue, defendants shall pay unto claimant one 
 
            hundred seventy-five (175) weeks of permanent partial 
 
            disability at the stipulated rate of two hundred eight and 
 
            42/100 dollars ($208.42) per week commencing January 26, 
 
            1989 and totalling thirty-six thousand four hundred 
 
            seventy-three and 50/100 dollars ($36,473.50).
 
            
 
                 Defendants shall have credit for all payments beyond 
 
            healing period, if any, made on a voluntary basis.
 
            
 
                 All accrued benefits shall be paid in a lump sum with 
 
            interest pursuant to Iowa Code section 85.30.
 
            
 
                 The costs of this action shall be assessed to 
 
            defendants pursuant to 343 IAC 4.33.
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Defendants shall file claim activity reports as 
 
            requested by this agency pursuant to 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Channing L. Dutton
 
            Attorney at Law
 
            West Towers Office Complex
 
            1200 35th Street, Suite 500
 
            W. Des Moines, Iowa  50265
 
            
 
            Mr. Richard G. Book
 
            Attorney at Law
 
            500 Liberty Building
 
            Des Moines, Iowa  50309
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1803
 
                           Filed December 19, 1990
 
                           DAVID RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CAROL ELLSWORTH,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 876792
 
            DES MOINES GENERAL HOSPITAL,  :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1803
 
            Claimant, a 49-year-old LPN, suffered back injury lifting 
 
            patient.  She discontinued RN course due to restrictions of 
 
            38 pounds lifting, bending, twisting and prolonged sitting.  
 
            Other work history was minimal and involved lifting.  
 
            Employer kept claimant working as admitting clerk, but at a 
 
            wage loss of about 25 percent.  Claimant awarded 35 percent 
 
            body as a whole.