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.