BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ ANNA MUSGROVE, Claimant, vs. File No. 876801 GLENWOOD STATE HOSPITAL SCHOOL, A P P E A L Employer, D E C I S I O N and STATE OF IOWA, Insurance Carrier, Defendants. _________________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed February 5, 1991 is affirmed and is adopted as the final agency action in this case. Defendants shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of July, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Sheldon M. Gallner Attorney at Law P.O. Box 1588 Council Bluffs, Iowa 51502 Mr. Charles S. Lavorato Assistant Attorney General Tort Claims Division Hoover State Office Bldg. Des Moines, Iowa 50319 9998 Filed July 29, 1992 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ ANNA MUSGROVE, Claimant, vs. File No. 876801 GLENWOOD STATE HOSPITAL SCHOOL, A P P E A L Employer, D E C I S I O N and STATE OF IOWA, Insurance Carrier, Defendants. ____________________________________________________________ 9998 Summary affirmance of deputy's decision filed February 5, 1991. Page 1 before the iowa industrial commissioner ____________________________________________________________ : ANNA MUSGROVE, : : Claimant, : : vs. : File No. 876801 : GLENWOOD STATE HOSPITAL : A R B I T R A T I O N SCHOOL, : : D E C I S I O N Employer, : : and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in arbitration brought by Anna Musgrove against her former employer, Glenwood State Hospital School, wherein she seeks compensation for permanent disability. The primary issue to be determined is determination of her entitlement to compensation for permanent disability, whether it be partial or total. She asserts the odd-lot doctrine. The case was heard and fully submitted at Des Moines, Iowa on October 24, 1990. The record consists of testimony from Anna Musgrove, James Musgrove, Okalona George, David Jennings and jointly offered exhibits 1 through 31, 33 and 34. findings of fact Having considered all the evidence received, together with the appearance and demeanor of the witnesses, the following findings of fact are made. Anna Musgrove is a 40-year-old married woman who lives at Glenwood, Iowa. She obtained a GED after leaving high school. She took one year of a two-year training course in computer programming approximately ten years ago. She has not maintained any skills in that field. Anna's work history includes work as a carhop, electrical wiring on an assembly line, grocery store clerk, cocktail waitress, packinghouse work and work as a resident treatment worker in a private nursing home. She commenced employment at the Glenwood State Hospital School in 1982. Claimant feels that she is unable to perform in any of those positions in view of her current physical condition. Page 2 Claimant worked as a recreation aide at Glenwood. The job required handling of patients. On February 15, 1988, she was pushed by a patient backward into a room divider wall, striking her back. She immediately reported the incident and reported that it caused pain in her back and leg [exhibit 31(c)]. She sought medical care from her family physician, Robert K. Fryzek, M.D. When his conservative treatment was unsuccessful at resolving her symptoms, he referred her to Maurice P. Margules, M.D., a Council Bluffs neurosurgeon (exhibit 20). Dr. Margules conducted appropriate diagnostic tests, diagnosed her as having a midline disc herniation at the L5-S1 level of her spine and performed surgery on March 8, 1988 (exhibits 21 through 24). She was released to resume light-duty work in July 1988 and did so for approximately six weeks. During that six-week period, her symptoms returned and her condition worsened. The symptoms which had initially affected her left leg now affected her right leg. Dr. Margules had retired and referred her to Daniel L. McKinney, M.D., an Omaha, Nebraska neurosurgeon. Tests were again conducted and further disc herniation at the same spinal level was identified. Dr. McKinney performed disc excision surgery on October 12, 1988 (exhibits 14 through 16). On May 9, 1989, Dr. McKinney reported that claimant was continuing to make slow, gradual improvement, but that she could be employed at light duty with restrictions. The restrictions he recommended were avoidance of lifting greater than 20 pounds, sitting for more than 30 minutes, avoidance of frequent bending and avoidance of standing or walking for more than two hours at a time (exhibit 11). On June 2, 1989, claimant declined to apply for a position as a computer operator because she did not have the physical capacity to perform the lifting or continued sitting required for the position (exhibit 26). On August 21, 1989, the employer declined claimant's requested medical leave of absence without pay and in effect terminated her employment (exhibit 28). In a report dated August 23, 1989, Dr. McKinney stated that he anticipated claimant would achieve maximum medical recovery in October 1989 and that she would have a 15 percent permanent impairment as a result of the injury (exhibit 10). He continued to express that same impairment rating until November 3, 1989 when he placed the rating at 20 percent. In that same report, he indicates that he last examined her on October 25, 1989, that she had improved, but that she remained disabled from her previous work. He stated that she is totally disabled for work at the present time, but that he would not comment on whether that situation would be permanent (exhibit 1). On November 1, 1989, a report was issued by a counselor with the Division of Vocational Rehabilitation Services of Page 3 the Iowa Department of Education. The report indicates that claimant had applied for services, but that the services were denied because the counselor did not feel that the agency would be able to provide sufficient services to enable claimant to find competitive employment (exhibit 9). In January 1990, claimant was evaluated by Midlands Rehabilitation Consultants, Inc. The report which was issued indicates that claimant was presently unable to hold any job due to her inability to be reliable in attending work in view of her unresolved pain. The report states that she would need a special job which would enable her to sit and stand alternatively and an understanding employer. The counselor also reported that she had potential for sedentary work (exhibit 8). In a report served September 6, 1990, vocational consultant Kent Jayne expressed the opinion that claimant is employable and has access to 23,715 jobs in the Omaha-Council Bluffs area. He stated that, prior to her injury, she had access to 31,112 such jobs. Jayne noted that the median weekly wage of those remaining jobs was $320.70 and that the hourly earnings were $6.45 per hour in comparison to the $8.32 per hour she had earned at Glenwood. Jayne noted that she was currently released only for part-time work (exhibit 6). He noted her restrictions to be that she could sit for up to two hours at a time and for 4-6 hours during an eight-hour work day. He also noted that she could stand or walk for up to two hours at a time and for 4-6 hours through an eight-hour work day. Jayne listed nine positions which had openings within the year ending March 31, 1990 which he felt claimant could possibly perform if given on-the-job training. Jayne opined that claimant's present vocational impairment due to her physical restrictions is 26-34 percent at her current skill level, but that it could be reduced to 10 or 15 percent if she were to complete training in computer programming (exhibit 6). Jayne made no effort to locate any job openings or perform any placement activities for claimant. Shortly prior to hearing, claimant was evaluated at the University of Nebraska Pain Management Center and found to be a good candidate for entry into the program (exhibits 4 and 5). When testifying, claimant related that her symptoms have improved during the previous year. She stated that on a good day she can perform housework or bake. On a bad day, she is able to do nothing. She had not entered the pain management center at the time of hearing, but was scheduled to enter the program shortly following hearing. Evidence from David Jennings and Okalona George establishes that claimant was a good employee at Glenwood who did her job and was seldom absent prior to this injury. Both also confirmed that claimant appears to be in pain Page 4 since the injury. Testimony from Okalona George and James Musgrove confirms that claimant does not perform very much of her housework and that she has assistance from her children for many activities. This case was heard in October 1990, approximately one year after the time claimant was last seen by Dr. McKinney. There is no evidence of any change in her physical condition since that time, other than from her own testimony which states that she has improved somewhat, but is still unable to function on a regular, recurring basis. The evidence from Dr. McKinney, Midland Rehabilitation Consultants and the Iowa Division of Vocational Rehabilitation is found to be correct in concluding that claimant is not employable at the current time. Claimant is still undergoing treatment in the form of the pain center program. Its results cannot be predicted. conclusions of law While the parties requested a determination of permanency in the case, there is also an issue with regard to whether the healing period has ended. It is readily apparent that Anna Musgrove has sustained a substantial degree of permanent disability as a result of her injury. She has obtained Social Security disability benefits. Evidence exists which would tend to indicate that her recuperation has not been completed, despite the evidence from Dr. McKinney which placed the maximum medical recovery as ending in October 1989. His most recent report, exhibit 1, declines to state that her status of being totally disabled from work is permanent. Her own testimony relates that she has improved somewhat. Evidence from vocational consultants indicates that pain management is a substantial factor in her lack of employability. It is specifically noted that the nature of her injury and the general activity restrictions which appear in the record would not normally be considered to be totally disabling. Claimant does seem to have the intellectual capacity for retraining. The concept of permanency does not necessarily embrace the concept of absolute perpetuity. Rather, it means something which is expected to continue for an indefinite and undeterminable period. Wallace v. Brotherhood, 230 Iowa 1127, 300 N.W. 322 (1941). In view of that definition, claimant's current state of total disability is determined to be permanent, despite the fact that she might improve either on her own or through a pain management program. It is clear that claimant is totally disabled as no one has suggested any job in existence which she might be able to obtain. The fact that there were some job openings which might have been within her capabilities is no indication that she could have had a reasonable chance at successfully competing to obtain any of those jobs. If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial Page 5 disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term `disability' to mean `industrial disability' or 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 man." 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, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). Industrial disability or loss of earning capacity is a concept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment of physical capacity creates an inference of lessened earning capacity. The basic element to be determined, however, is the reduction in value of the general earning capacity of the person, rather than the loss of wages or earnings in a specific occupation. Post-injury earnings create a presumption of earning capacity. The earnings are not synonymous with earning capacity and the presumption may be rebutted by evidence showing the earnings to be an unreliable indicator. Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218 (1979); 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. For example, a defendant employer's refusal to give any sort of work to a claimant after he suffers his affliction may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Sunbeam Corp. v. Bates, 271 Ark. 385, 609 S.W.2d 102 (App. 1980); Army & Air Force Exchange Serv. v. Neuman, 278 F. Supp. 865 (W. D. La. 1967). Claimant contends that she is permanently and totally disabled. Total disability under compensation law is not utter and abject helplessness. The test of total disability in workers' compensation has been long established and may be summarized as follows: When the combination of the factors considered in determining industrial disability precludes the worker from obtaining regular employment in which he can earn a living for himself, his disability is total. Guyton v. Irving Jensen Co., 373 N.W.2d 101, 103 (Iowa 1985); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 192 (Iowa 1980); Diederich v. Tri-City Ry. Co., 219 Iowa 587, 594, 258 N.W. 899, 902 (1935). Claimant asserts that she is an odd-lot employee and should benefit from the odd-lot doctrine. That doctrine, as Page 6 defined in Larson's Workmen's Compensation Law and most judicial precedents, is a reference to that group of employees who have sufficient disablement that regular work is not continually available to them in the competitive labor market, although they can sometimes find temporary work or earn some wages under limited circumstances. Mata v. W. Valley Packing, 462 N.W.2d 869, 873 (Neb. 1990). This agency has adopted a variation of the odd-lot rule by requiring an employee to make a reasonable effort to secure employment as the only way of making a prima facie showing of total disability, rather than as merely one of the ways of making such a showing. Emshoff v. Petroleum Transp. Services, file number 753723 (App. Decn., March 21, 1987); McClellan v. Midwest Biscuit Co., file number 802020 (App. Decn., September 29, 1989). This claimant's efforts to find employment are not sufficient to characterize her as an odd-lot employee under the construction adopted by this agency. The evidence in the record from Dr. McKinney and the vocational consultants other than Kent Jayne would certainly be sufficient to make a prima facie showing of total disability under the judicial definition for an odd-lot employee. In this case, however, it is not necessary to rely upon the burden-shifting provisions of the odd-lot doctrine. Anna Musgrove, as she appeared at the time of hearing, was not capable of engaging in competitive, gainful employment and it appeared that her status of total disability would continue indefinitely. She is therefore entitled to recover benefits for permanent total disability under the provisions of Iowa Code section 85.34(3). order IT IS THEREFORE ORDERED that defendants pay Anna Musgrove weekly compensation for permanent total disability at the stipulated rate of two hundred twenty-one and 66/100 dollars ($221.66) per week commencing February 15, 1988 to the date of this decision and continuing thereafter for so long as she remains totally disabled. IT IS FURTHER ORDERED that defendants pay the costs of this action pursuant to rule 343 IAC 4.33. IT IS FURTHER ORDERED that defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ______ day of ____________, 1991. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Page 7 Mr. Sheldon M. Gallner Attorney at Law 803 Third Avenue P.O. Box 1588 Council Bluffs, Iowa 51502 Ms. Eleanor E. Lynn Assistant Attorney General Tort Claims Division Hoover State Office Building Des Moines, Iowa 50319 5-1804; 5-4100 Filed February 5, 1991 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : ANNA MUSGROVE, : : Claimant, : : vs. : File No. 876801 : GLENWOOD STATE HOSPITAL : A R B I T R A T I O N SCHOOL, : : D E C I S I O N Employer, : : and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 5-1804; 5-4100 Odd-lot doctrine asserted but not necessary to apply in awarding permanent total disability to 40-year-old woman whose doctor characterized her as totally disabled, whom the employer had terminated and for whom vocational consultants had found no bona fide job opportunities. Page 1 before the iowa industrial commissioner ____________________________________________________________ : CHARLES MEEKS, : : Claimant, : : File Nos. 876894 930535 vs. : 944018 966544 966545 : 966546 966547 FIRESTONE TIRE AND RUBBER CO., : : A P P E A L Employer, : : D E C I S I O N and : : CIGNA INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE Defendants' appeal and claimant's cross-appeals from an arbitration decision awarding claimant, in total, 68 percent permanent partial disability benefits. The record on appeal consists of the transcript of the arbitration hearing; and joint exhibits 1 through 28. Both parties filed briefs on appeal. issues Defendants state the issues on appeal as: 1. The record fails to support a finding that claimant sustained a personal injury which arose out of and in the course of his employment with Firestone on March 13, 1989, April 10, 1990, and October 1, 1990; 2. The record fails to support a finding that claimant's preexisting degenerative hip arthritis was materially aggravated by his employment at Firestone; 3. The deputy's decision not to award additional permanent partial benefits for low back injuries alleged on January 5, 1989, March 13, 1989 and September 15, 1989 is supported by the record; and 4. The deputy's award of industrial disability should be reduced to reflect the claimant's actual loss of earning capacity based on his work related injuries. Claimant states the issue on cross-appeal as: Whether the deputy erred in failing to award additional permanent partial disability benefits for claimant's alleged back injuries. review of the evidence The arbitration decision filed April 13, 1992, Page 2 adequately and accurately reflects pertinent evidence and it will not be totally reiterated. The following additional pertinent facts are noted, however: Gary Richard, D.C., treated claimant for back pain from approximately November 16, 1981 through approximately February 25, 1982. James Blessman, M.D., noted on April 11, 1990, that claimant had been hit on his left foot, injuring his small toe. Blessman also noted that, in trying to escape that injury, claimant had strained his left hip or low back. Dr. Blessman, on April 20, 1990, noted that claimant had degenerative disease of the hip and back. Vera Steward, M.D., interpreted a CAT scan of October 21, 1989, as showing a narrow disc space at the L4-5 level with disc bulging posturally without edema of the nerve roots. Facet arthritis was noted particularly on the right at L4-5. M. A. Disbro, M.D., interpreted a bone scan of May 16, 1990, as showing diffusely increased uptake at the tarsal and tarsal/meta-tarsal articulations of the right foot, typical for osteoarthritis; as showing increased uptake in the left acetabula roof, typical for severe osteoarthritis; and as showing increased uptake of the right mid-femur, resulting from a remote fracture of the femur. No other significant ossous abnormality was noted. Minor degenerative uptake was apparent in the spine, shoulder, and knees. applicable law The citations of law in the arbitration decision are appropriate to the issues in evidence with the following additions: A cumulative injury may be found and a cumulative injury date may be established even though the claimant has relied on a traumatic injury theory and a traumatic injury date in claimant's pleadings. Johnson v. George A. Hormel & Company, Appeal Decision, June 21, 1988; McCoy v. Donaldson Company, Inc., Appeal Decision, April 28, 1989. The standard for determining whether the defendant has had adequate notice of the possibility that the cumulative injury doctrine might be relied upon to justify an award of benefits is one of fundamental fairness not whether notice meets technical rules of common law pleading. Tassler v. Oscar Mayer Foods Corp., 483 N.W.2nd 824 (Iowa 1992). The appropriate date of injury for purposes of computing workers' compensation benefits is the date at which disability manifested itself. Disability is manifest on that date when both the fact of injury and the causal relationship of the injury to claimant's employment are plainly apparent to a reasonable person. Tassler at 829. Claimant's ability to identify specific work incidents, with or without the need for medical care or need for time off work, does not of itself obviate a claim of gradual or cumulative injury. See Tassler, Supra; McKeever Custom Cabinets v. Smith, 379 N.W.2nd 368 (Iowa 1985). Apportionment of disability between a preexisting condition and an injury is proper only when some Page 3 ascertainable portion of the ultimate industrial disability existed independently before an employment-related aggravation of disability occurred. Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991); Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984). Hence, where employment is maintained and earnings are not reduced on account of a preexisting condition, that condition may not have produced any apportionable loss of earning capacity. Bearce, 465 N.W.2d at 531. Likewise, to be apportionable, the preexisting disability must not be the result of another injury with the same employer for which compensation was not paid. Tussing v. George A. Hormel & Co., 461 N.W.2d 450 (Iowa 1990). The burden of showing that disability is attributable to a preexisting condition is placed upon the party who will benefit from that showing. See Bearce, 465 N.W.2d at 536-37; Sumner, 353 N.W.2d at 410-11. Iowa R. App. P.14(f). analysis Defendants initially argue that the record does not support a finding that claimant sustained an injury arising out of and in the course of claimant's employment on March 13, 1989, April 10, 1990 or October 1, 1990. Defendants' argument apparently relates to the question of whether claimant sustained an injury to his left hip on any of the stated dates. It is plain that incidents occurred at work on March 13, 1989 and April 10, 1990. It is plain that those incidents impacted on claimant's left hip. The medical history so reflects. While defendants raise the specter of claimant not having been hit in the hip on either of the alleged specific incident days, that argument is ill-founded. Defendants have presented no evidence suggesting that the maneuvers claimant described on March 13, 1989 and on April 10, 1990, namely, pushing and flipping a large tire and twisting to avoid an object, respectively, were not maneuvers that could result in hip and low back pain. Similarly, Dr. Blessman's April 11, 1990 note clearly describes a strain to the left hip or low back as the result of claimant's trying to escape being hit on the left foot the previous day. Clearly, incidents at work sufficient to produce some degree of trauma to claimant's left hip and low back occurred on March 13, 1989 and April 10, 1990. Defendants further argue that claimant's preexisting degenerative hip arthritis was not materially aggravated by his employment at Firestone either by the incident of March 13, 1989 or by the incident of April 10, 1990 or sufficiently, in total, to result in a cumulative trauma with an injury date of October 1, 1990. We disagree. Only Dr. Dubansky states that claimant's March 13, 1989 incident was not a substantial aggravating factor in his left hip condition. Dr. Kimmelman, who actually performed claimant's total hip replacement, has opined that claimant's progressive degeneration of the left hip after March 13, 1989 was probably related to the incident of that date. Further, Dr. Kimmelman remarks on the rather "marked progression of [claimant's] hip disease" after March 13, 1989, to the time of his total hip replacement. Drs. Rodney Page 4 Johnson and Richard Johnston both agree that the March 13, 1989 work incident aggravated claimant's degenerative joint disease of the left hip. Johnson characterizes this as a "significant" aggravation. The radiographic evidence supports a finding that significant changes occurred in the left hip from March 1989 to October 1990. Dr. Dubansky interpreted an April 26, 1989 left hip x-ray as showing perhaps a little narrowing of the weight bearing area on the left. Dr. Rodney Johnson interpreted May 31, 1990 left hip x-rays as showing significant degeneration with complete loss of the joint space and cystic changes in both the left acetabulum and left femoral head. Dr. Johnston described June 25, 1990, pelvis x-rays as showing rather advanced degenerative arthritis of the left hip with loss of the joint space, sclerosis of the femoral head and acetabulum and as showing some slight narrowing of the joint space on the right. Johnson characterized claimant's degenerative arthritis of the hips as much worse on the left than on the right. The significantly different interpretations of x-ray taken approximately only 13 months apart supports Drs. Kimmelman, Johnston and Johnson's opinions that the March 13, 1989 incident significantly impacted on claimant's left hip degenerative arthritis. Defendants also argue that claimant's left hip condition is not a personal injury arising out of and causally related to his employment in that claimant's degenerative arthritis of the left hip represents a natural body process. That argument is also not well taken. A natural body process of osteoarthritis and degenerative joint disease would likely impact similarly throughout the body's joints. The doctors have noted that claimant's left hip condition is significantly more severe than his right hip condition. Likewise, claimant's May 16, 1990 bone scan did not note significant osteo abnormality but for that found in the left hip, and in the previously fractured right foot and right mid-femur, and but for minor degenerative uptake appearing in the spine, shoulder, and knees. The minor degenerative uptake noted is not significant evidence of overall degenerative joint disease. Its presence does not outweigh the greater evidence suggesting a swift degeneration of the left hip joint subsequent to the March 13, 1989 work incident. Defendants argue that claimant generally worked light duty when at work subsequent to March 13, 1989 and that, therefore, claimant's work subsequent to that date did not contribute to claimant's further left hip degeneration. Claimant's light duty activities did involve bending, twisting, and walking, however. These activities, even if not constituting heavy labor, might well have contributed to further degeneration of an already damaged hip. Likewise, defendants argue that claimant's nonwork activities of square dance lessons and car repair are likely causes of any aggravation of his left hip disease. We note that claimant's testimony that he square danced less than 20 minutes per weekly, two-hour, square dance session was Page 5 credible. Claimant appeared to have already had significant hip pain when, at his family's beckoning, he agreed to take the square dance lessons. He testified that his serious pain limited his capacity to participate in the lessons. We do not disagree with defendants that claimant's nonwork car repair activities may well have played some role in the progression of his left hip degenerative joint disease. That fact is insufficient to obviate a finding of causal relationship between claimant's work activities and his left hip degenerative joint disease and a finding of material aggravation of the left hip degenerative joint disease on account of the March 13, 1989 incident. The greater weight of medical evidence supports a finding of material aggravation of the left hip condition through the incident of March 13, 1989 and through claimant's subsequent work activities. The fact that the March 1989 work incident and the subsequent work activities were not the sole proximate cause of the continued left hip degeneration is insufficient to prevent claimant from prevailing on this issue. The evidence supports a finding that claimant's March 13, 1989 work incident materially aggravated and lit-up his left hip condition. Whether the April 10, 1990 work incident played any material role in aggravating claimant's left hip condition is less certain. Medical opinions of Drs. Kimmelman, Johnston and Johnson all relate back to the March 13, 1989 incident. X-rays of May 1990, already showed significant advancement of claimant's left hip condition over his left hip condition in April 1989. Those facts suggest that claimant's hip pain on and surrounding April 10, 1990, was but a manifestation of claimant's already swiftly progressing left hip degeneration and not a significant factor, of itself, in the left hip degeneration. Likewise, it appears that claimant's leaving work on October 1, 1990 and having hip surgery on October 15, 1990 was a culmination of the process set off by the March 13, 1989 incident. Clearly, claimant's disability was manifest as of that date. Both the fact of a significant left hip injury and that injury's causal relationship to claimant's employment were apparent then. For that reason, it is found that claimant sustained a cumulative trauma injury to his hip on or about October 1, 1990. It is also found that while claimant sustained a work injury to his right foot and experienced left hip pain on April 10, 1990, that claimant did not sustain an injury to his left hip arising out of and in the course of his employment on April 10, 1990. It is also found that claimant sustained an injury to his left hip arising out of and in the course of his employment on March 13, 1989, by way of a material aggravation and significant lighting up of claimant's preexisting degenerative joint disease of the left hip. However, in that any degree of permanent disability remained nonascertainable until the injury fully manifested itself on or about October 1, 1990, any permanent partial disability related to the left hip properly relates to and is payable at the compensation rate Page 6 applicable to the October 1, 1990 cumulative injury. We next consider the issues raised relative to claimant's alleged back injuries. Initially, defendants concede an incident of January 5, 1989 and that claimant worked light duty from January 5, 1989 to January 9, 1989. Defendants contend that claimant gave no notice of a back injury, however, in that the company nurse and the company doctor both characterized claimant's condition as a pulled right side muscle and not as a back injury. Defendants argument is ill-founded. Defendants had actual knowledge of the January 5, 1989 work injury. That is all that is needful. That claimant characterized the condition as a low back condition while defendant's medical personnel characterized the condition as a right side condition is, of itself, insufficient to obviate a finding of actual knowledge sufficient that the notice defense does not prevail. Defendants do not dispute that claimant had incidents involving the back on March 13, 1989 and September 15, 1989. Medical records of Dr. Dubansky support claimant's contention of low back pain subsequent to March 13, 1989. Claimant was off work for two days in September 1989 on account of the September 15, 1989 work incident. The deputy assessed each alleged back incident separately and did not causally connect the separate alleged back incidents to any permanent, work-related back condition. We disagree. Dr. Jones clearly states that the work incidents of March 13, 1989 and September 15, 1989 and probably the incident of January  1989 were all important causal factors in claimant's continued back pain problem. Jones clearly opines that claimant's permanent impairment related to his back problem "tied together as a whole" is approximately 7 to 10 percent under the AMA Guides. Dr. Jones' opinion is consistent with claimant's credible testimony of continuing back pain as well as with claimant's having received treatment for back pain with company physicians both subsequent to March 1989 and to September 15, 1990. Dr. Jones' opinion and the supporting evidence of continuing back treatment from at least March 1989 onward is sufficient to establish that claimant's series of minor, work related, back incidents ultimately culminated in a cumulative injury to claimant's low back resulting in a 7 to 10 percent permanent partial impairment of the low back. October 1, 1990 is established as the date of claimant's cumulative low back injury for purposes of computing workers' compensation benefits. Claimant left work on that date with the intent of undergoing a total hip replacement immediately subsequent to his intended vacation. Claimant never returned to regular, full duty work with the employer subsequent to that date. We consider the question of whether claimant is entitled to additional permanent partial disability benefits on account of the causally related low back condition and the question of the appropriateness of the percentage of Page 7 permanent partial disability benefits awarded in the arbitration decision. Initially, the deputy assessed permanent partial disability benefits both on account of claimant's right shoulder injury of December 15, 1987 and on account of claimant's right shoulder injury of September 23, 1990, as well as separately assessing permanent partial disability on account of claimant's hip condition. The separate assessment of disabilities is inappropriate under the facts presented. Claimant continued to work for the employer and, after a period of light duty work and dispite medical restrictions regarding the right shoulder, returned to full duty, heavy manual labor after the December 15, 1987 right shoulder incident. Claimant was already on light duty on account of his hip and back conditions when he reinjured his right shoulder on September 23, 1990. Hence, no ascertainable portion of claimant's overall industrial disability can be attributed to those work incidents. See Bearce. Claimant's right shoulder condition, with his low back condition and his left hip condition as well as his nonwork related right long finger condition, was a factor in claimant's ultimate medical retirement from Firestone, however. The right shoulder condition, therefore, can appropriately be considered along with the low back and left hip condition in assessing claimant's industrial disability on account of his inability to continue working for the employer on account of his numerous, work related conditions. Initially, claimant is an older worker. He is not a likely candidate for retraining and is not an individual who would have continued in the full-time, work force for a significant number of years. Claimant himself testified that he hoped to continue working to age 65 only. Claimant was age 58 at hearing. Claimant has a variety of restrictions regarding lifting, bending, and walking. He also has significant restrictions regarding lifting maneuvers with his right upper extremity. Claimant has an overall 18 percent permanent partial impairment of the right upper extremity on account of his right shoulder condition. He has a 20 percent impairment of the left lower extremity on account of his left hip condition. Both these conditions are properly assessed as body as a whole injuries. Defendants have not disputed such in this appeal. Under the AMA Guides to Evaluation of Permanent Impairment, an 18 percent impairment of the upper extremity equals an 11 percent impairment to the whole person; a 20 percent impairment to the lower extremity equals an 8 percent impairment of the whole person. Under the combined values chart, those figures result in 18 percent whole person impairment. Claimant additionally has 7 to 10 percent impairment the whole person on account of his low back condition. Under the combined values chart, combining that impairment with the whole person impairment on account of the combined value of the right shoulder and left hip Page 8 impairment results in a whole person impairment of 24 to 26 percent. Claimant was a long-term worker for the employer. While the employer argues that claimant would have been accommodated but for his nonwork related finger condition, the record does not support that contention. Claimant clearly retired for medical reasons related to all of his conditions including his work related right shoulder, left hip and low back conditions. The employer's representative has agreed that work within claimant's restrictions is not available to claimant in the employer's plant. Claimant, on the other hand, has elected retirement. No evidence that claimant has sought work with other employers and within his restrictions was presented. Claimant appears to have considerable talent as an auto repairer. While it does not appear that an employer in that field would accommodate claimant's multiple restrictions, it does appear that claimant is content to engage in those activities as he can and is not motivated to seek any other employment which might be available within his capabilities. This lack of motivation on claimant's part is also a factor in assessing claimant's overall industrial loss. When all factors are considered and giving significant weight to claimant's overall body as a whole impairment, his serious activity restrictions, the employer's failure to accommodate claimant and claimant's lack of motivation; it is found that claimant has sustained an overall loss of earnings capacity of 60 percent overall. conclusions of law Therefore, it is concluded: Claimant has established that his injuries of March 13, 1989, April 10, 1990 and October 1, 1990 arose out of and in the course of his employment. Claimant has established that his cumulative injury of October 1, 1990 is the cause of claimed permanent disability to the left hip, low back and right shoulder with disability manifesting itself after a variety of work incidents and injuries from December 12, 1987 through September 15, 1990. Claimant is entitled to permanent partial disability on account of his cumulative injury of October 1, 1990 of 60 percent. Page 9 Wherefore, the decision of the deputy is affirmed in part and reversed in part. order THEREFORE, IT IS ORDERED: Defendants pay claimant permanent partial disability benefits for three hundred (300) weeks at the rate of five hunderd four point seventy-one (504.71) with those payments to commence March 18, 1991. Defendants pay claimant healing period or temporary total disability benefits at the rate appropriate for the specific loss time injury, if any, for the time claimant was off work for each loss time injury. Defendants pay accrued amounts in a lump sum. Defendants pay interest pursuant to section 85.30. Defendants pay costs of the appeal, including the costs of transcription of the hearing transcript. Defendants file claim activity reports pursuant to rule 343 IAC 3.2(2). Signed and filed this ____ day of January, 1993. ______________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies to: Mr. Philip Vonderhaar Attorney at Law 840 Fifth Ave. Des Moines, IA 50309-1398 Mr. Marvin E. Margolin Attorney at Law Suite 111, Terrace Center 2700 Grand Ave. Des Moines, IA 50312 Page 1 1803; 1806; 1807 1100; 1108; 2201; 2206; 2200; 2209 Filed January 22, 1993 Byron K. Orton PJL before the iowa industrial commissioner ____________________________________________________________ : CHARLES MEEKS, : : Claimant, : : File Nos. 876894 930535 vs. : 944018 966544 966545 : 966546 966547 FIRESTONE TIRE AND RUBBER CO., : : A P P E A L Employer, : : D E C I S I O N and : : CIGNA INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1803; 1806 Under Bearce, claimant had no apportionable industrial disability from first or second right shoulder injury where claimant returned to full duty heavy labor with employer after first injury and where claimant was already on light duty for work-related back and hip conditions when second right shoulder injury occurred. 1100; 1108; 2201; 2205 Original work injury in April 1989, lit up severe degeneration of claimant's left hip. Condition distinguished from regular "wear and tear" from life devoted to hard work by fact that claimant did not have like degeneration in right hip or throughout body. 2200; 2209 Under Tassler, claimant's left hip injury actually manifested itself on date claimant left work for vacation prior to previously scheduled left hip replacement surgery. On that date, both the fact of a significant left hip injury and its causal relationship to claimant's employment were apparent to a reasonable person. 2209; 1108 Under Tassler and McKeever, series of minor back injuries with little or no lost time from each resulted in a Page 2 cumulative back injury. 1803; 1806; 1807 Where defendants' refused to accommodate claimant on account of a nonwork related right finger condition and also on account of work related right shoulder, left hip and back conditions such that claimant took disability retirement, all work conditions could be considered in assessing claimant's ultimate industrial disability. 1803; 1807 Claimant who was restricted from heavy manual labor and who had chosen not to seek other work after disability retirement from employer awarded 60 percent industrial disability. Deputy affirmed in part; reversed in part. Page 1 before the iowa industrial commissioner ____________________________________________________________ : CHARLENE (RUSHTON) LIPPINCOTT,: : Claimant, : File No. 876911 : vs. : A P P E A L : IBP, INC., : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ STATEMENT OF THE CASE Defendant appeals and claimant cross-appeals from an arbitration decision awarding claimant 15 percent industrial disability. The record on appeal consists of the transcript of the arbitration hearing; claimant's exhibits 1 through 21; and defendant's exhibits A through M. Both parties filed briefs on appeal. issues The defendant states the issues on appeal are: 1. Whether the causal relationship of the injury to the disability were established to a reasonable degree of medical certainty. 2. Whether the September 14, 1987 injury resulted in industrial disability and, if so, the amount thereof. 3. Whether Claimant's subjective complaints of pain which cannot be verified by objective findings are a substitute for disability. 4. Whether the Deputy erred when he excluded hearsay evidence concerning an incomplete medical history. Claimant filed a cross-appeal on the issue of interest. review of the evidence The arbitration decision filed September 26, 1989 adequately and accurately reflects the pertinent evidence and it will not be reiterated herein. applicable law The citations of law in the arbitration decision are appropriate to the issues and evidence. analysis The analysis of the evidence in conjunction with the law in the arbitration decision is adopted with the following additional analysis. The first issue to be addressed is whether the deputy erred in excluding hearsay evidence. Pursuant to Iowa Code section 17A.14, the rules of evidence are not strictly enforced, however, that does not mean that the ordinary rules of evidence should be disregarded at an Page 2 administrative hearing. In this case, defendant attempted to offer into evidence the contents of a conversation between defendant's employee and claimant's physician concerning claimant's job restrictions in order to impeach an exhibit. Claimant made a timely objection which was sustained. In reviewing the evidence, the conversation between defendant's employee and the physician was written down in joint exhibit H. The document was signed by the physician. The evidence contained in joint exhibit H is more reliable and better evidence then the testimony offered at the hearing. The deputy did not err in excluding the hearsay evidence. The final issue to be addressed is the amount of claimant's industrial disability as a result of her September 14, 1987 work injury. Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience 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 Co., 253 Iowa 285, 110 N.W.2d 660 (1961). Claimant's date of birth is February 16, 1961. Claimant was twenty-six at the time of her September 14, 1987 work-related injury. Claimant's injury has less of an impact upon her earning capacity than it would an employee who has reached middle age. The defendant worked with claimant by offering her light-duty work which was within her work restrictions. In addition, defendant offered claimant vocational rehabilitation. Claimant refused to participated in the defendant's rehabilitation program and voluntarily quit. Defendant made great efforts to accommodate claimant's needs and should not be penalized for claimant's refusal to accept the offered work. If employers are to be held accountable for their failure to accommodate an employee after an injury, they should not be held unduly liable when acceptable attempts at rehabilitation and reemployment are arbitrarily rejected. Claimant's loss of earning capacity or industrial disability is therefore diminished accordingly. Cf. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980). Johnson v. Chamberlain Mfg. Corporation/Collis Division, I Iowa Ind. Comm'r Rep. 166, 168 (1980). When all relevant factors discussed therein and in the arbitration decision are considered, it is determined that claimant proved by a preponderance of the evidence an industrial disability of five percent. findings of fact 1. Claimant was born February 16, 1961. 2. Claimant obtained her GED in 1978 or 1979. Page 3 3. Claimant's employment history consists of work as a waitress, assembly of small electrical parts, and line work at a turkey processing plant. 4. Claimant began working for the defendant in 1985. Her job duties at the time of the injury were to inspect the head, jowl, and shoulder of carcasses as they passed by her on the line and to use a hook and knife to cut out any unacceptable portions. 5. Claimant's injury of September 14, 1987 is an overuse syndrome which affects the right side of her upper back, right shoulder and the upper right chest. 6. As a result of the overuse syndrome, claimant should not engage in excessive or repetitive use of her right arm. She is also restricted in lifting to 15 pounds. 7. Claimant has full range of motion and no functional impairment, however, she is limited by a loss of strength and loss of ability to perform repetitive motions. 8. Claimant rejected a light-duty stamping job which is clearly within her physical restrictions. 9. Claimant rejected the defendant's offer of vocational rehabilitation. 10. Claimant was not motivated to remain employed with the defendant and resigned her employment on July 19, 1989. 11. Claimant has sustained a five percent loss of earning capacity as a result of the overuse syndrome. conclusions of law Claimant proved by a preponderance of the evidence a causal relationship between her work-related injury on September 14, 1987 and the disability affecting claimant's right upper body and right upper extremity. Claimant proved by a preponderance of the evidence that she sustained a five percent industrial disability as a result of her worked related injury on September 14, 1987. Subjective complaints of pain which are not verified by objective evidence are not a substitute for disability. The deputy did not err in excluding hearsay evidence at the arbitration hearing. WHEREFORE, the decision of the deputy is affirmed and modified. order THEREFORE, it is ordered: That defendant shall pay unto claimant twenty-five (25) weeks of permanent partial disability benefits at the rate of two hundred fourteen and 52/100 dollars ($214.52) per week payable commencing April 27, 1988. That defendant shall pay all accrued weekly benefits in a lump sum together with interest from the date each payment became due in accordance with Iowa Code section 85.30. That defendant shall receive credit against the award for weekly benefits previously paid. That defendant shall pay the costs of the appeal, including the costs of transcription of the arbitration hearing. That defendant shall file claim activity reports as requested by this agency pursuant rule 343 IAC 3.1. Page 4 Signed and filed this ____ day of August, 1991. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Harry H. Smith Attorney at Law 632-640 Badgerow Building P.O. Box 1194 Sioux City, Iowa 51102 Ms. Marie L. Welsh Attorney at Law P.O. Box 515, Dept. #41 Dakota City, NE 68731 3700, 5-1803 Filed August 30, 1991 Byron K. Orton MGT before the iowa industrial commissioner ____________________________________________________________ : CHARLENE (RUSHTON) LIPPINCOTT,: : Claimant, : File No. 876911 : vs. : A P P E A L : IBP, INC., : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 3700 Held that the deputy did not err in excluding hearsay evidence. Pursuant to Iowa Code section 17A.14, the rules of evidence are not strictly enforced, however, that does not mean that the ordinary rules of evidence should be disregarded at an administrative hearing. Claimant made a timely objection to defendant's attempt to introduce hearsay testimony at the hearing which was sustained by the deputy. 5-1803 In reviewing all the evidence as it pertains to industrial disability, it was held that claimant sustained a five percent industrial disability. Claimant was 26 at the time she sustained a work-related injury. Claimant's injury has less of an impact upon her earning capacity than it would an employee who has reached middle age. In addition, defendant offered claimant light duty work within her restrictions and vocational rehabilitation which claimant refused. Claimant voluntarily quit. Claimant's loss of earning capacity is diminished by defendant's attempts to accommodate claimant. Johnson v. Chamberlain Mfg. Corporation Collis Division, I Iowa Ind. Comm'r Rep. 166 (1980). BEFORE THE IOWA INDUSTRIAL COMMISSIONER CHARLENE (RUSHTON) LIPPINCOTT, File No. 876911 Claimant, A R B I T R A T I O N vs. D E C I S I O N IBP, INC., F I L E D Employer, SEP 26 1989 Self-Insured, Defendant. INDUSTRIAL SERVICES INTRODUCTION This is a proceeding in arbitration brought by Charlene Lippincott against IBP, Inc., her former employer. The case was heard and fully submitted at Storm Lake, Iowa on September 13, 1989. The record in the proceeding consists of testimony from Charlene Lippincott, Lee Ann Kneifl, Dan Heffernan, Jack Novak, and John Sebben. ISSUES Claimant seeks compensation for permanent partial disability. She claims that.the disability is to the body as a whole and should be evaluated industrially, while the employer contends that any permanent partial disability is a scheduled member disability of the right arm. SUMMARY OF EVIDENCE The following is a summary of evidence presented in this case. Of all the evidence received at the hearing, only that considered most pertinent to this decision is discussed. Conclusions about what the evidence showed are inevitable with any summarization. The conclusions in the following summary should be considered to be preliminary findings of fact. Charlene Lippincott is a 28-year-old married lady whose education consists of a GED which she obtained in 1978 or 1979 after dropping out of school following the ninth grade in 1977. Claimant described herself as an average student in high school. Claimant's employment history consists of work as a waitress, assembly of small electrical parts, and line work at a turkey processing plant. Claimant's employment with IBP, Inc., commenced in 1985. She held various jobs over the years. On September 14, 1987, she was working the head inspection job where her duties were to inspect the head, jowls and shoulder of carcasses as they passed by her on the line and to use a hook and knife to cut out any unacceptable portions. Claimant stated that on some carcasses, several pieces would be cut off, while on others, there were none to cut off. She stated that she held the hook in her left hand and used the knife with her right hand. Claimant stated that at times she had to cut off the entire head and jowls and when she did so, she had to throw them into a tank which was behind her. Claimant described her physical stature as 5' 7" in height and 135 pounds in weight. In 1986, claimant developed pain in her neck, pain between her shoulder blades, and headaches for which she sought chiropractic treatment (exhibit E). S. A. Steck, D.C., diagnosed her condition as displacement of the C5,C6 vertebra with cervical cephalgia (exhibit F). When seen at the Kennedy Chiropractic Office in Cherokee, the diagnosis was thoracic strain, subluxation of the fifth thoracic vertebra (exhibit G). Claimant stated that the chiropractic treatments completely resolved the problem. On September 14, 1987, claimant stated that her muscles tightened up real bad and would not release. She demonstrated the area of pain as running up the right side of her back, across the top of the right shoulder, and down the front right side of her chest. Claimant stated that she went to the nurse, was given medication and then returned to the line. Claimant stated that she continued to have the same symptoms and was eventually seen by W. E. Erps, M.D., at the Buena Vista Clinic. She was examined and placed on light duty. The initial diagnosis made by Dr. Erps was bursitis of the right shoulder (exhibit 14). The notes also show that claimant complained of numbness affecting her right forearm. Claimant stated that nothing done by the doctors at the Buena Vista Clinic improved her symptoms. Claimant's care was transferred to Brian W. Nelson, M.D., a Spirit Lake orthopaedic surgeon. Dr. Nelson diagnosed claimant as having chronic upper thoracic and right rhomboid strain (exhibit 3). She was treated with medication and aggressive physical therapy. She was taken off work for several weeks. When she attempted to return to work, her symptoms increased and she was then placed on light duty. Claimant testified that the treatment provided by Dr. Nelson had reduced a lot of her pain, although not all of it. Claimant stated that the work which she performed, even on a light-duty status, caused as much pain as if she had been working on the line. Claimant stated that the pain worsened following the return to work and she developed a burning pain on the outside of her right shoulder blade in addition to her other symptoms.. On July 19, 1988, Dr. Nelson reported that claimant has a generalized overuse syndrome which is secondary to the activities she performed at her work (exhibit 3). In an office note dated August 9, 1988, Dr. Nelson stated: She is still having the same types of symptoms that she had before indicative of a generalized over-use syndrome. My opinion remains about the same. I think that if she were to completely rest for a couple of months that her symptoms would likely completely resolve [sic] On the other hand, they would be just as likely to come back as soon as she returned to IBP. Therefore, I think that this patient must consider looking for alternative employment as I think her body's physical structure simply will not allow her to do this type of work without pain. She plans on talking this over with the people at IBP. I do not think that any other medical treatment is indicated at this time and I think she has reached her maximum medical improvement. I do not believe that she would have a permanent impairment if she were able to rest for a couple of weeks but she would have an industrial impairment which will.prevent her from doing this type of work. (Exhibit 3) On July 20, 1988, Dr. Nelson issued a return to work release which restricted claimant from performing line work and also imposed a 15-pound lifting restriction (exhibit 11). Claimant was examined by Samir R. Wahby, M.D., a Fort Dodge orthopaedic surgeon. Dr. Wahby diagnosed her condition as sternoclavicular joint chronic inflammation. He advised her to find work that does not require repeated excessive motion of her shoulder.. He assigned a five percent permanent partial disability rating of claimant's right shoulder. Dr. Wahby stated that her prognosis was good as long as she avoids the type of work which requires repeated and excessive motion of her shoulder (exhibit 1). Dr. Wahby went on to state in a subsequent report that the five percent rating is due to pain and that she has no loss of function (exhibits C and D). Claimant contacted Carl E. Toben, D.O. Dr. Toben diagnosed claimant as having cervical and thoracic perispinal [sic] discomfort and chronic perispinal [sic] myositis. He recommended that she not return to assembly line work in the packing house (exhibit 2). Claimant resigned her employment on July 19, 1989 consistent with the statement from Dr. Toben. She stated that her pain at that time was unchanged. Claimant agreed that she had been on light duty during essentially all of the time she continued to work for IBP following September of 1987. She stated that some of the light-duty jobs aggravated her condition, but others did not. She stated that at times her condition would get better, then it would get worse, then it would again get better, then again worse. Claimant stated that she is unable to do very much. She restricted her housekeeping activities and some of them are done by her 12-year-old daughter. Claimant stated that as long as she does not do much, she is okay. She has not worked anywhere since July of 1989. Claimant is currently enrolled in a program through vocational rehabilitation where she is learning typing and computer operations. Claimant stated that the activities of typing and keyboarding aggravate her condition and cause headaches. Claimant stated that the headaches have always been part of the symptoms which accompany her back, shoulder, chest and arm symptoms. Currently, claimant takes over-the-counter medication for her pain. Lee Ann Kneifl, the IBP workers' compensation coordinator, testified that initially claimant made a very good effort to perform her work, but that after her marriage in June of 1988, claimant seemed to display an attitude that indicated she was not motivated to retain her employment. Kneifl described some of the light-duty jobs of which claimant had complained as being extremely light jobs which were well within the restrictions which had been imposed by the treating physicians. Kneifl stated that the light-duty work could have continued to be available to claimant indefinitely. Jack Novak, the.personnel director at the IBP Storm Lake plant, testified that IBP attempted to accommodate claimant's work restrictions in many ways. John Sebben stated that the reject stamping job, the one which claimant was performing when she resigned, has become a permanent job. Drs. Nelson and Toben indicated that claimant was capable of performing the reject stamping job (exhibits A and H). A videotape showing a person performing the reject stamping job demonstrates that it is extremely light work. APPLICABLE LAW AND ANALYSIS All of the conditions which the physicians have diagnosed have been located in the trunk of claimant's body, rather than in her arm. Accordingly, the disability should be evaluated industrially. Lauhoff Grain Company v. McIntosh, 395 N.W.2d 834 (Iowa 1986). As 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., 219 Iowa 587, 593, 258 N..W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or 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 man." 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, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 257 (1963). Industrial disability or loss of earning capacity is a concept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment of physical capacity creates an inference of lessened earning capacity. The basic element to be determined, however, is the reduction in value of the general earning capacity of the person, rather than the loss of wages or earnings in a specific occupation. Post-injury earnings create a presumption of earning capacity. The earnings are not synonymous with earning capacity and the presumption may be rebutted by evidence showing the earnings to be an unreliable indicator. Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 34th Biennial Report, 218 (1979): 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. In this case, claimant's lack of current earnings is not a reliable indicator of her earning capacity since the medical evidence indicates that she could still be employed at IBP if she had not chosen to resign. Claimant has, nevertheless, developed a generalized overuse syndrome as described by Dr. Nelson. Such conditions typically do not cause a permanent restriction of range of motion. They typically become relatively asymptomatic when the aggravating activities are discontinued, but they also typically become symptomatic quite easily upon resumption of activities of the type which caused the syndrome to develop. Dr. Nelson's assessment of this case is consistent with that from Dr. Wahby. Claimant's prognosis is expected to be relatively good as long as the aggravating activities are avoided. While the need to avoid certain activities is not a basis for a functional impairment rating under the AMA Guides to the Evaluation of Permanent Impairment, it is nevertheless a permanent activity restriction. Under the law, it is not necessary for there to be a functional permanent impairment for there to be an award of industrial disability. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). The permanent restrictions are sufficient. Some award of permanent partial disability compensation is warranted in this case since claimant is restricted from performing activities which she was previously capable of performing. Claimant's lack of motivation is to some extent understandable since the numerous efforts at light-duty employment and medical treatment have not been successful in resolving her symptoms. She has not completely recovered. She was placed in a position of working with pain or not working. She chose to cease work. It is unlikely that any employment which claimant will be able to readily obtain will pay nearly as well as the employment which she held.at IBP. Her current attempts to enter into the clerical field certainly seem appropriate considering her physical condition. It should be emphasized, however, that the reduction in earnings which she will likely experience upon her return to employment is as much a result of her choice to leave IBP as it is of her actual physical limitations. It is also important to note that claimant did not seek to move into the management support or clerical type positions which are within the IBP workforce. When all the material factors of industrial disability are considered, it is determined that claimant has a 15 percent permanent partial disability as a result of the overuse syndrome which affects the upper right portion of the body. It is that overuse syndrome which is the injury of September 14, 1987. FINDINGS OF FACT 1. Claimant's injury of September 14, 1987 is an overuse syndrome which affects the right side of her upper back, right shoulder and the upper right chest. 2. As result of the overuse syndrome, claimant should not engage in excessive or repetitive use of her right arm. She is also restricted in lifting to 15 pounds. 3. Claimant has a full range of motion, but is impaired by a loss of strength and loss of ability to perform repetitive motions. 4. Claimant was not motivated to remain employed at IBP. The reject stamping job was clearly well within her physical capabilities. The credibility of the severity of claimant's expressed symptoms and complaints is not well established. 5. The assessment of this case as made by Drs. Nelson and Wahby is correct. 6. Claimant has sustained a 15 percent loss of her earning capacity as a result of the overuse syndrome. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. The overuse syndrome which is the injury of September 14, 1987 is a proximate cause of the permanent restrictions affecting claimant's right upper body and right arm. 3. Claimant's disability should be evaluated industrially since the physical abnormality is not limited to her right arm, even though the disability is manifested primarily in loss of use of claimant's right arm. 4. Claimant has a 15 percent permanent partial disability as a result of the September 14, 1987 injury under the provisions of Iowa Code section 85.34(2)(u) which entitles her to receive 75 weeks of compensation for permanent partial disability. ORDER IT IS THEREFORE ORDERED that defendant pay claimant seventy-five (75) weeks of compensation for permanent partial disability at the stipulated rate of two hundred fourteen and 52/100 dollars ($214.52) per week payable commencing April 27, 1988. The employer is entitled to credit for the six point two five (6.25) weeks of permanent partial disability compensation which was paid prior to hearing as shown on the form 2A on file. IT IS FURTHER ORDERED that the costs of this proceeding are assessed against the employer pursuant to Division of Industrial Services Rule 343-4.33. IT IS FURTHER ORDERED that the employer file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 26th day of September, 1989. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Harry H. Smith Attorney at Law P.O. Box 1194 Sioux City, Iowa 51102 Mr. Marlon D. Mormann Attorney at Law P.O. Box 515 Dakota City, Nebraska 68731 51803, 1803.1, 2209 Filed September 26, 1989 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER CHARLENE (RUSHTON) LIPPINCOTT, Claimant, File No. 876911 vs. A R B I T R A T I 0 N IBP, INC. , D E C I S I 0 N Employer, Self-Insured, Defendant. 1803.1, 2209 Claimant developed overuse syndrome affecting her right upper back, shoulder and upper chest. Such was held to be injury to the body as a whole to be evaluated industrially despite the fact that the primary effect was a loss of use of the claimant's right arm. 51803 Claimant awarded 15 percent permanent partial disability despite a much greater reduction in actual earnings because a primary reason for the reduction of earnings was her choice to leave IBP, rather than remain working in a light-duty status. 1402.40; 1803 Filed September 15, 1992 DAVID R. RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : DIANE WADDY, : : Claimant, : : vs. : File No. 876926 : VOCATIONAL REHABILITATION, : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 1402.40 - 1803 Claimant suffered headaches after work-related fall. Because she lacked credibility, she could not be relied upon to determine the extent to which those headaches caused disability. The only medical restriction is that claimant work half-time at her current job, which she finds stressful. That restriction does not apply to other jobs. Claimant has transferable skills. Ten percent industrial disability was awarded. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DIANE WADDY LOCKETT, File No. 876926 Claimant, A L T E R N A T E vs. M E D I C A L VOCATIONAL REHABILITATION, C A R E Employer, D E C I S I O N and STATE OF IOWA, Insurance Carrier, Defendants. ___________________________________________________________ STATEMENT OF THE CASE Diane Waddy Lockett filed a petition for alternate medical care under Iowa Code section 85.27, invoking the summary procedures of rule 343 IAC 4.48. Claimant has residual headaches related to a fall at work on February 15, 1988. Employer has admitted liability and has provided claimant with treatment since August 1990 by Louis Evan Schneider, D.O., a practitioner of internal medicine. Claimant expressed dissatisfaction with the medical treatment provided by Dr. Schneider. The petition for alternate medical care was filed on June 15, 1993. A telephone conference hearing was held on June 21, 1993. Claimant participated personally and was represented by her attorney Robert A. Wright, Jr. Defendants were represented by Joanne Moeller. The documentary evidence identified in the record consists of claimant's exhibits 1 through 9. ISSUE The sole issue presented for resolution is whether defendants should be ordered to provide alternate medical care under Iowa Code section 85.27. FINDINGS OF FACT The undersigned has carefully considered all the testimony given at the hearing, arguments made, evidence contained in the exhibits herein, and makes the following findings: The medical evidence presented in this case reveals that claimant presented to Dr. Schneider on January 29, 1993, with complaints of right leg discomfort, headaches and blurred vision. No medication was prescribed. However, a notation dated March 8, 1993, indicates that Dr. Schneider prescribed Ritalin and Toradol. Claimant had an allergic reaction to this medication (itchy, watery eyes and generalized rash). Claimant was referred by Dr. Schneider at her request to William R. McMordie, Ph.D., clinical neuropsychologist, for evaluation on April 16, 1993. Claimant related that she requested this referral for counseling. Dr. McMordie conducted a comprehensive neuropsychological re-evaluation (he had conducted two previous neuropsychological evaluations on November 22, 1989 and May 29, 1991). He concluded that, "She reports numerous somatic complaints, such as headaches and neck pains, which this writer is not competent to address." (exhibit 7). On May 19, 1993, Marc E. Hines, M.D., gave claimant a prescription for Calar which she said cured her itching and swelling. CONCLUSIONS OF LAW The employer shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies for all conditions compensable under the workers' compensation law. The employer shall also allow reasonable and necessary transportation expenses incurred for those services. The employer has the right to choose the provider of care, except where the employer has denied liability for the injury. Section 85.27; Holbert v. Townsend Engineering Co., Thirty-second Biennial Report of the Industrial Commissioner 78 (Review-reopen 1975). Claimant has the burden of proving that the fees charged for such services are reasonable. Anderson v. High Rise Construction Specialists, Inc., file number 850096 (Appeal Decision July 31, 1990). Claimant is not entitled to reimbursement for medical bills unless claimant shows they were paid from claimant's funds. See Caylor v. Employers Mut. Casualty Co., 337 N.W.2d 890 (Iowa Ct. App. 1983). When a designated physician refers a patient to another physician, that physician acts as the defendant employer's agent. Permission for referral from defendant is not necessary. Kittrell v. Allen Memorial Hospital, Thirty-fourth Biennial Report of the Industrial Commissioner 164 (Arb. Decn. 1979) (aff'd by indus. comm'r). An employer's right to select the provider of medical treatment to an injured worker should be diagnosed, evaluated, treated or other matters of professional medical judgment. Assman v. Blue Star Foods, Inc., file no. 866389 (declaratory Ruling, May 18, 1988). Claimant testified that she is no longer satisfied with the care received from Dr. Schneider. She indicated that he prescribed medication to which she was allergic and he did not prescribe medication to cure the allergic reaction. Instead, she went to Dr. Hines, a neurologist, who prescribed the proper medication to cure her symptoms. Based on this one experience with Dr. Schneider, claimant now indicates that she needs to be followed by a neurologist. She testified that she was previously under the care of Craig R. DuBois, M.D., a neurologist, and she was very satisfied with his care. A report from Dr. DuBois on May 28, 1992, indicates that he prescribed Zostrix cream bitemporally and an exercise program (ex. 9). Claimant is of the view that her dissatisfaction with an authorized physician furnishes grounds for granting alternate care. The treatment, which by statute, the employer has the right to choose, must be offered promptly and be reasonably suited to treat the injury without undue inconvenience. The statute does not require that claimant be satisfied with the treatment. The commissioner may order alternate care, but only "upon application and reasonably proofs of the necessity therefore." The statute is couched in terms of necessity, not desirability. Defendants have offered claimant medical treatment which is suited to claimant's injury. Dr. DuBois prescribed exercise and medication and Dr. Schneider has continued with this regimen. No physician has indicated that claimant requires the ongoing services of a neurologist. Dissatisfaction alone is not grounds for granting alternate medical care. Long v. Roberts Dairy Company, file number 982297 (App. Dec. Feb. 5, 1993). The undersigned has been delegated the authority to issue final agency action in this matter. Appeal of this decision, if any, would be by judicial review pursuant to Iowa Code section 17A.19. ORDER THEREFORE IT IS ORDERED: Claimant's petition for alternate medical care is denied. Signed and filed this ____ day of June, 1993. ______________________________ JEAN M. INGRASSIA DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Robert A. Wright, Jr. Attorney at Law Two Ruan Center 601 Locust, STE 921 Des Moines, Iowa 50309 Ms. Joanne Moeller Assistant Attorney General Hoover State Office Bldg Des Moines, Iowa 50319 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ DIANE WADDY LOCKETT, : : Claimant, : : vs. : : File No. 876926 VOCATIONAL REHABILITATION, : : R E V I E W - R E O P E N I N G Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ------------------------------------------------------------ STATEMENT OF THE CASE This is a proceeding in review-reopening from the decision entered September 15, 1992, wherein claimant was held to be entitled to compensation for a 10 percent permanent partial disability. The review-reopening hearing was held at Des Moines, Iowa, on May 18, 1994. The record consists of testimony from William R. McMordie, Ph.D., Kathy Sater, Kent A. Jayne, Helen Randolph, Margaret Ward, David H. Morse, Jean Schweizer, and Carl Miller. The record also contains claimant's exhibits 1 through 20 and defendants' exhibits A through L, N, O, Q, and S through X. Exhibits B-2, B-12, M, P, R, Y, Z, and AA were not received into evidence but are with the record as an offer of proof. Claimant seeks additional compensation for healing period, permanent partial disability and payment of medical expenses. She asserts that a change of condition has occurred since the hearing that was held on February 24, 1992, which warrants reopening of her case. Both parties seek to recover costs. FINDINGS OF FACT The claimant was injured on February 15, 1988. The case proceeded to hearing on February 24, 1992, and the decision was entered on September 15, 1992. When the facts are considered it is found that since the hearing of February 24, 1992, the claimant voluntarily left her employment. She had a period of unemployment. She obtained a job teaching a course at the Des Moines Area Community College. She was recalled from lay off to a position as a Program Planner III in the Department of Human Services. Page 2 That job required considerable knowledge of departmental practices, rules, policies and operations. Claimant did not have that knowledge. It is quite understandable that she was unable to satisfactorily perform in that position. Shortly prior to the May 18, 1994 hearing claimant was recalled to her previous position in the Department of Vocational Rehabilitation. At the time of hearing it was too early to know if she would be able to perform adequately in that position. She had not been able to perform adequately in that position in the past and there is ample reason to believe that she might not perform adequately now. The record of this case does not contain any objective showing that the claimant's physical, economic or emotional state has changed appreciably since the hearing that was conducted on February 24, 1992. At the time of the prior hearing, claimant was working on a part-time basis. It was apparent that she was under-employed at that time. Since the previous hearing her employment was terminated. It appears as though she voluntarily left her position in the hope of obtaining long-term disability benefits. She did not provide evidence of disability, however, in order to be successful in her effort to obtain the long-term disability benefits. It is found that the claimant has not shown any substantial change caused by the 1988 injury and its sequela in her physical, psychological or economic circumstances which were beyond what would have reasonably been anticipated to occur at the time of the prior hearing on February 24, 1992. CONCLUSIONS OF LAW 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). The claimant has failed to carry the burden of proving the change of condition which is required in order to permit reopening and reconsideration of her award. The medical evidence does not show any consensus among medical practitioners to establish that her degree of disability has changed appreciably. The claimant's condition at the time Page 3 of hearing on May 18, 1994, is virtually identical to the condition which the record shows to have existed on February 24, 1992. Her employment status changed during the time elapsing between the two hearings. It worsened, then improved. It again worsened and has now improved for a second time. It is apparent from the decision entered on September 15, 1992, that the employer's conduct in maintaining the claimant's employment was not a factor that tended to affect the amount of the award. Accordingly, changes in that employment status do not necessarily indicate that the case should be reopened. It is therefore concluded that this case should not be reopened. ORDER THEREFORE IT IS ORDERED that claimant take nothing from this proceeding. It is further ordered that each party pay the costs incurred by that party in the course of participation in this proceeding. Neither shall receive an award of costs from the other. Signed and filed this __________ day of September, 1994. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Robert A Wright, Jr. Attorney at Law 3839 Merle Hay Road STE 229 Des Moines, Iowa 50310 Ms. Joanne Moeller Assistant Attorney General Hoover State Office Bldg Des Moines, Iowa 50319 52905 Filed September 20, 1994 Michael G. Trier BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ DIANE WADDY LOCKETT, Claimant, vs. File No. 876926 VOCATIONAL REHABILITATION, R E V I E W - R E O P E N I N G Employer, D E C I S I O N and STATE OF IOWA, Insurance Carrier, Defendants. ------------------------------------------------------------ 52905 Claimant failed to show a substantial change of condition in order to warrant reopening of her previous award.