before the iowa industrial commissioner ____________________________________________________________ : DEBORAH BUOL, : : Claimant, : : vs. : : File No. 877234 MERCY HOSPITAL, : : A P P E A L Employer, : : D E C I S I O N and : : IOWA SMALL BUSINESS EMPLOYERS,: : 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 7, 1991, is affirmed and is adopted as the final agency action in this case. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of October, 1991. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Jon M. McCright Attorney at Law 1010 The Center Cedar Rapids, Iowa 52401 Mr. Fred L. Morris Attorney at Law PO Box 9130 Des Moines, Iowa 50306 9998 Filed October 17, 1991 BYRON K. ORTON PJL before the iowa industrial commissioner ____________________________________________________________ : DEBORAH BUOL, : : Claimant, : : vs. : : File No. 877234 MERCY HOSPITAL, : : A P P E A L Employer, : : D E C I S I O N and : : IOWA SMALL BUSINESS EMPLOYERS,: : Insurance Carrier, : Defendants. : ___________________________________________________________ 9998 Summary affirmance of deputy's decision filed February 7, 1991. Page 1 before the iowa industrial commissioner ____________________________________________________________ : DEBORAH BUOL, : : Claimant, : : vs. : : File No. 877234 MERCY HOSPITAL, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : IOWA SMALL BUSINESS EMPLOYERS,: : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Deborah Buol against her former employer, Mercy Hospital, and its insurance carrier, Iowa Small Business Employers. The following issues were presented for resolution: 1. Whether claimant sustained an injury on February 12, 1988 which arose out of and in the course of her employment; 2. Whether there is a causal relationship between the alleged injury and disability; 3. Whether claimant is entitled to temporary total disability/healing period benefits or permanent partial or permanent total disability benefits. The case was heard and fully submitted on December 5, 1990, at Cedar Rapids, Iowa. The record consists of testimony from Deborah Buol, Helen Fye, Timothy Trosky, and Jerry Buol. The parties submitted joint exhibits 1 through 21, which were received. findings of fact Having considered all of the evidence received, the following findings of fact are made. Deborah Buol is a 35-year-old woman who is married and has three daughters. She graduated from Olin High School in 1973, and during her senior year in high school attended adult classes in emergency medical technician (EMT) training. Claimant completed one year of college at Mount Mercy. Claimant began working for the Area Ambulance Service (which is affiliated with Mercy Hospital) in May 1974. Her Page 2 first job assignment was as a basic EMT, and her job duties included splinting patients, clearing airways, and performing basic CPR duties. Claimant became a full-time EMT for the Area Ambulance Service in the fall of 1974. During the next 14 years, claimant advanced in her work as an EMT, becoming an EMT-II in 1979, and a paramedic in 1981. Both of these positions required additional training beyond that of a basic EMT. On the morning of February 12, 1988, claimant was dispatched to an accident site on highway 151, east of Cedar Rapids, Iowa. There were several critical patients on the scene of the accident. (Joint Exhibit 20). After attending to the critical patients on the scene of the accident, claimant traveled back to Mercy Hospital in a Lifeguard helicopter with a patient. She and another paramedic were then dispatched back to the scene of the accident to pick up two people who had been killed in the accident. After returning to Mercy Hospital, claimant began restocking the equipment in the ambulance and filling out paperwork. At that time, she noticed a pain in her lower left rear pocket area. Claimant report the injury to Gary Grantham, a senior paramedic, and was told to go to the emergency room at Mercy Hospital. Claimant was treated by R. Handler, M.D., who diagnosed low back strain. He recommended bed rest and local heat. Dr. Handler also prescribed Meclomen and Flexeril. (Jt. Ex. 1, Page 1). Claimant returned to the emergency room at Mercy Hospital on February 16, 1988. She was complaining of pain in the left lower back region, and on examination exhibited tenderness in the area of the L-S1 joint. G. L. Schmit, M.D., prescribed physiotherapy. (Jt. Ex. 1, P. 2). Claimant returned to the emergency room on February 19, 1988 and February 24, 1988 with similar complaints. She was referred to an orthopaedic specialist, and was taken off work on February 24, 1988. Claimant began to see H. P. MacMenamin, M.D. (Jt. Ex. 2, Pages 1-7). He diagnosed myofascial strain with sacroiliac strain. He recommended Motrin and an exercise program. Claimant was to be off work for two weeks. On March 22, 1988, claimant again presented to Dr. MacMenamin with no improvement. She was scheduled for a lumbar MRI and a bone scan, with the results being negative. Claimant continued to see Dr. MacMenamin during the next five months. On August 2, 1988, Dr. MacMenamin assessed claimant's condition and gave her a permanent partial impairment rating of two percent to the body as a whole due to the accident. (Jt. Ex. 2, P. 5). On August 10, 1988, Dr. MacMenamin supplemented his opinion, and imposed restrictions of no lifting over 25 pounds, and claimant was to avoid bending and twisting, and sitting for prolonged periods of time. (Jt. Ex. 2, P. 6). Page 3 Dr. MacMenamin also referred claimant to Erich Streib, M.D., a neurologist. He performed a number of examinations and tests on claimant, including an electrodiagnostic study of the left leg including sensory and motor nerve conduction studies, and an EMG. He also performed a somato-sensory to check the integrity of conduction along the spinal cord. All tests were within normal limits. (Jt. Ex. 8, P. 1). Claimant was also referred to Chad Abernathey, M.D., a neurologist. His examination produced the following impressions: April 11, 1990 Ms. Buol, I believe, suffers from possibly two separate problems. First of all she has sacroiliac joint pain which I am unable to offer any significant diagnostic or therapeutic interventions. I believe that separate from this issue is the question of her bilateral lower extremity paresthesia, subjective weakness, and pain...I have recommended to her that we proceed with a CT myelogram with examination of the spinal fluid for M.S. .... May 4, 1990 Ms. Deb Buol returns today for the results of her cerebrospinal fluid. The CSF is negative for an M.S. screen. ... continues to have symptoms but I am unable to identify a specific etiology. I am not willing to offer her a surgical exploration of the tiny defect identified on the CT myelogram and MR. It would be unlikely for this suspicious lesion to cause all of her symptoms. (Jt. Ex. 7, PP. 2-3) On November 2, 1988, claimant underwent an independent medical examination with John Walker, M.D. Dr. Walker made the following assessment: This patient is suffering, of course, from a chronic sprain of the left sacroiliac joint. It is very possible that she is beginning to get arthritic changes at this time. Secondly; [sic] she has a probable low grade disc disruption with radicular symptomatology consisting of numbness and tingling of both lower extremities (intermittent). ... At the present time I feel that she has a permanent, partial impairment amounting to 8% of the body as a whole.... It is quite obvious that she is not going to be Page 4 able to do the heavy work involving emergency call and EMT duties. At the present time I would not recommend any further particular treatment but would further add that in the future, if she gets into bad trouble with the sacroiliac joint, they respond very nicely occasionally to injections of Cortisone and Xylocaine preparations and if these fail and the problem becomes persistent and the patient cannot live with it, a Smith-Peterson interarticular arthrodesis will take care of the problem very nicely. (Jt. Ex. 4, PP. 4-5) Claimant has also encountered psychological problems, which she attributes in part to the alleged injury on February 12, 1988. Claimant has undergone counseling as far back as 1977, and had been prescribed antidepressant medication prior to February 12, 1988. (Jt. Ex. 9, PP. 1-4). At the time of the hearing, claimant was employed as an occupational healthcare assistant for St. Lukes' Hospital. She works 40 hours per week, and is compensated at a rate of $7.27 per hour. In her position as a paramedic, and at the time of her injury, claimant earned $9.97 per hour. Her actual loss of earnings is approximately 33 percent. analysis and conclusions of law The first issue presented for resolution is whether claimant received an injury on February 12, 1988 which arose out of and in the course of her employment with Mercy Hospital. An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). Claimant has the burden of proving by a preponderance of the evidence that she received an injury on February 12, 1988 which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "out of" refer to the cause or source of the injury. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63. On February 12, 1988, claimant was performing her assigned duties as a paramedic, and was dispatched to a tragic vehicle accident site. Upon completion of her duties with respect to the accident, claimant continued her every day duties when she noticed pain in her left hip and back. Page 5 Although claimant had some prior, very mild back pain episodes in 1982 and 1986, none of these episodes resulted in substantial activity restrictions, permanency or time off of work. It is clear from the evidence presented that on February 12, 1988, claimant sustained an injury which arose out of and in the course of her employment with Mercy Hospital. The next issue presented is whether there is a causal connection between the alleged injury and the disability. The claimant has the burden of proving by a preponderance of the evidence that the injury of February 12, 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 Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Furthermore, if the available expert testimony is insufficient alone to support a finding of causal connection, such testimony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish compensability, the injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980). Claimant's complaints have been consistent since the February 12, 1988 incident. Specifically, her first visit to the emergency room at Mercy Hospital indicated that she was experiencing pain in her left hip and back. Dr. MacMenamin assessed claimant's condition as a two percent functional impairment. Dr. Walker evaluated claimant and assigned an eight percent permanent partial impairment to the body as a whole. Claimant has proven by a preponderance of the evidence Page 6 submitted that the injury she sustained on February 12, 1988 is a cause of permanent disability. The next issue presented by the parties is whether claimant is entitled to temporary total disability or healing period benefits. Temporary total disability benefits are awarded in cases where injured employees will recover fully from the work related injury. Healing period benefits are provided in cases where injured employees have sustained a permanent disability. Two of the physicians seen by claimant have assessed a permanent disability rating, and the undersigned finds claimant is awarded healing period benefits. According to the prehearing report, the parties were able to stipulate to the amount of time claimant missed during the healing period. Therefore, claimant is awarded healing period benefits from February 13, 1988 through December 9, 1988. The last issue to be decided is whether claimant has sustained an industrial disability. If 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.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, 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 Page 7 injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial dis ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, l985). As discussed earlier, claimant has been given two separate impairment ratings, two percent from Dr. MacMenamin, and eight percent from Dr. Walker. Claimant's medical condition prior to the injury was unremarkable. Her condition has improved somewhat since the injury, although she still complains of chronic pain in the left sacroiliac region. Claimant's injury is located on the left lower back and hip area. Although most of the tests performed on claimant have had negative results, claimant's healing period lasted for approximately ten months. As a paramedic, she was required to do a substantial amount of lifting, twisting, bending and turning. Claimant worked for Mercy Hospital for more than 14 years. The only other work history claimant has is work performed as a waitress while she was in high school. Since the accident, claimant has worked as a nurse aide, and currently holds a position as an occupational health care assistant for St. Lukes Hospital. From the evidence presented, claimant's potential for rehabilitation appears quite encouraging. It is clear she enjoys working in the medical field, and has been quite successful in the positions she has held prior to and after the incident. Her primary interests appear to lie with hands-on patient care, and she has been fortunate to locate a position which enables her to use her EMT and paramedic training and experience, and allows her to pursue her interests. On an intellectual, emotional and physical basis, Page 8 claimant's work related injury has taken its toll. She has incurred emotional stress due to the fact that she is unable to pursue employment as a paramedic or EMT. It should be noted, however, that claimant has had to deal with other stressors in her life which have played a key role in her emotional stability, and these factors were considered when determining the amount of claimant's industrial disability and her emotional status. Claimant testified that while at Mount Mercy College, her grade point average was 1.56. However, it does not appear in the record that she had problems completing any courses taken in order to obtain her EMT and paramedic licenses. On a physical level, her injury has turned into a chronic condition. At the time of the injury, claimant was earning $9.97 per hour, and had fringe benefits including life, dental, and medical insurance, and an employer-funded pension. Claimant also had a history of working overtime hours on a regular basis. Since the accident, claimant has worked as a nurse's aide for a pediatrician's clinic in Cedar Rapids, Iowa. This position was part-time, and she earned $6.25 per hour. Her current position as an occupational health care assistant is a 40-hour work week, and she earns $7.27 per hour. Claimant has sustained a 33 percent loss of actual earnings. This position includes the same fringe benefits as her paramedic position. Claimant's prior supervisor, Timothy Trosky, and her current supervisor, Helen Fye, both testified at the hearing. Both displayed positive attitudes toward claimant's work. Both anticipated that claimant would receive regular pay increases. At the time of the injury, claimant was 32 years old, and held a high school diploma. She attended college for one year. Claimant's motivation to return to work is evidenced by her numerous attempts at securing employment. She applied for many positions in the medical field, and for some reason or another obtained limited success in her job pursuits. Lastly, because of the injury, claimant is unable to return to her paramedic position, and given the lifting and other restrictions, would probably not be able to return to any type of EMT position. Claimant's functional impairment ratings are low. She had worked her way up the EMT ladder, and had gained a good position as a paramedic which she enjoyed. She is no longer able to perform this job, as her work related injury precludes her from performing the requirements of her position. In evaluating all of the factors which comprise the concept of industrial disability, the undersigned finds claimant has sustained a twelve percent industrial disability. order Page 9 IT IS THEREFORE ORDERED: That defendants pay Deborah Buol healing period benefits payable at the stipulated rate of two hundred eighty-six and 54/100 dollars ($286.54) per week commencing February 13, 1988. That defendants pay Deborah Buol sixty (60) weeks of compensation for permanent partial disability at the stipulated rate of two hundred eighty-six and 54/100 dollars ($286.54) per week payable commencing December 10, 1988. That defendants shall pay claimant for mileage expenses incurred in the amount of eleven and 68/100 dollars ($11.68) (55.6 miles x $.21/mile). That defendants are entitled to credit for all amounts of weekly compensation previously paid to Deborah Buol. Any unpaid past due amounts shall be paid in a lump sum together with interest in accordance with Iowa Code section 85.30. That the costs of this proceeding are assessed against defendants in accordance with rule 343 IAC 4.33. That defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of February, 1991. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Jon M McCright Attorney at Law 1010 The Center Cedar Rapids Iowa 52401 Mr Fred L Morris Attorney at Law PO Box 9130 Des Moines Iowa 50306 1800 Filed February 7, 1991 PATRICIA J. LANTZ before the iowa industrial commissioner ____________________________________________________________ : DEBORAH BUOL, : : Claimant, : : vs. : : File No. 877234 MERCY HOSPITAL, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : IOWA SMALL BUSINESS EMPLOYERS,: : Insurance Carrier, : Defendants. : ___________________________________________________________ 1800 Claimant worked as an EMT and paramedic for more than 14 years. She injured her lower left back (sacroiliac region) while administering aid at an accident. She was given two functional impairment ratings: two percent and eight percent, with medical restrictions of no lifting of more than 25 pounds and no twisting, bending or sitting for long periods. All physicians stated she could not go back to work as a paramedic. Claimant was 32 years old at the time of the injury; highly motivated to return to suitable employment; loss of actual earnings of 33 percent; average intellegence; emotional instability due to the accident and her home life; and, she is a high school graduate with one year of college. Claimant awarded 12 percent industrial disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER GRACE J. ENGELHART, Claimant, File No. 877244 vs. A R B I T R A T I O N ELSA APTROOT d/b/a COMPANION D E C I S I O N NURSE'S AIDE, Employer, F I L E D and MAY 21 1990 EMPLOYERS MUTUAL INSURANCE, INDUSTRIAL SERVICES Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Grace J. Engelhart, claimant, against Elsa Aptroot, d/b/a Companion Nurse's Aide, employer, and Employers Mutual, insurance carrier, defendants, for benefits as the result of an injury that occurred on February 9, 1988. A hearing was held in Sioux City, Iowa, on April 27, 1990, and the case was fully submitted at the close of the hearing. Claimant was represented by Harry H. Smith. Defendants were represented by James P. Comstock. The record consists of the testimony of Grace J. Engelhart, claimant and joint exhibits 1 through 20. The deputy ordered a transcript of the hearing. Claimant's attorney submitted a short letter brief. Defendants' attorney submitted an excellent brief with several citations of authority. STIPULATIONS The parties stipulated to the following matters at the time of the hearing: That an employer-employee relationship existed between claimant and employer at the time of the injury. That claimant sustained an injury on February 9, 1988, that arose out of and in the course of employment with employer. That the injury was the cause of temporary disability. That the rate of compensation, in the event of an award of benefits, is $271.47 per week, That claimant's entitlement to medical benefits has been paid or will be paid by defendants. That defendants make no claim for employee nonoccupational group health plan benefits paid to claimant prior to hearing. That defendants paid claimant 44 5/7 weeks of workers, compensation benefits at the rate of $271.47 per week prior to hearing. That there are no bifurcated claims. ISSUES The parties submitted the following issues for determination at the time of the hearing: Whether the injury was the cause of permanent disability. Whether claimant is entitled to temporary or permanent disability benefits, and if so, the nature and extent of benefits to which she is entitled. SUMMARY OF THE EVIDENCE Claimant, born March 30, 1943, was 44 years old at the time of the injury and 47 years old at the time of the hearing. She has been a nurse's aide since 1974 and this has been her principle occupation in recent years. In this employment she cared for Elsa Aptroot, employer, on a 24-shift, four days a week. Claimant and her husband also manage a 45-unit, three-building apartment complex which involves showing the units to prospective tenants. On February 9, 1988, claimant was driving a motor vehicle returning employer home from the foot doctor. It was snowy. Claimant lost control of the vehicle and struck a telephone pole. Claimant testified, "I crushed my right ankle, cut my forehead, and cut my left knee up." (transcript page 15). Claimant was taken to St. Luke's Regional Medical Center where she was diagnosed as having: FINAL DIAGNOSIS: 1. Extensive laceration, left scalp and forehead. 2. Severely comminuted bimalleolar fracture, right ankle. 3. Extensive laceration and contusion of left anterior knee. 4. Contusion, right lower leg. 5. Contusion, right anterior ribs; possible rib separation, but no fracture. (exhibit 18, page 3) The right ankle fracture was treated by Mark E. Wheeler, M.D., an orthopedic surgeon. The scalp and forehead laceration was treated by Stanley A. Bloustine, M.D., a plastic surgeon. The left knee, and other injuries, were treated by Harry V. Robison, M.D., a family practitioner. The emergency room report described a large gapping laceration vertically down the center of the forehead then horizontally to the left just under the eyebrow to the lateral edge of the eyebrow with skin displaced. The laceration starts up into the scalp four to six centimeters into the hairline (ex. 17, p. 2). C.A. Johnson, M.D., described the head and face wound as follows, "There is a deep laceration vertically somewhat beveled of the central portion of the forehead which extends into and across the left eyebrow and then transversely along the upper lid. This extend in the midline back into the hair line." (ex. 18, p. 7). Dr. Robison described it as a large, deep L-shaped laceration on the left forehead, brow and into the scalp area which will require surgical closure (ex. 18, p. 1). Dr. Bloustine, the plastic surgeon, described it as "a significant facial laceration" and also as "extensive forehead laceration" (ex. 18, p. 5). He also described it as a complex laceration of the left brow and forehead totalling 12 centimeters (ex. 18, pp. 6 & 11). Dr. Bloustine surgically repaired the left forehead and facial laceration. Dr. Wheeler surgically repaired the right ankle, comminuted fracture, by open reduction and internal fixation with wires, a plate, and several screws (ex. 18, p. 10). Claimant was hospitalized for a period of ten days, from February 9, 1988 to February 19, 1988 (ex. 18, pp. 12 & 15). Dr. Wheeler continued to see claimant for her right ankle on February 29, 1988; March 31, 1988; April 14, 1988 and May 26, 1988. On these occasions the doctor noted claimant was not working. On July 11, 1988, Dr. Wheeler released claimant to return to work two days a week for a month. After that, she could resume normal work duties. Claimant testified and the parties generally agreed that claimant returned to work on July 19, 1988 and worked only two days a week through August 17, 1988 (tr. pp. 5, 16, 17, 27, 34, 35 & 36). On September 14, 1988, Dr. Wheeler assessed a 10 percent permanent partial impairment rating of the lower right extremity because of loss of motion of the ankle. On October 24, 1988, he commented that she might develop degenerative arthritis in the future. On December 5, 1988, Dr. Wheeler noted that claimant continued to have aching pains and was very tender over the scar in the medial malleolus. On March 2, 1989, she continued to have intermittent pain in her foot. On May 16, 1989, he issued a final impairment rating of 10 percent permanent partial impairment of.the lower extremity. On September 25, 1989, he noted that claimant still has pain on the medial and anterior aspects of the ankle. Her walking was somewhat limited. There was tenderness over the scar and anteriorly where the plate and screws were placed. On May 16, 1989, Dr. Wheeler wrote: The cause of her injuries was obviously the automobile accident. As is indicated in the records, she has had continued difficulty with swelling in the ankle. She has restricted range of motion which equates to a 10% permanent partial impairment rating of the lower extremity according to AMA guidelines. She has pain in the ankle when she is on it for very long. It does inhibit somewhat her normal activities. (ex. 12, p. 1) With respect to the head and face lacerations, Dr. Bloustine commented on May 26, 1988, that she has paresthesias related to the transection of the supraorbital neurovascular bundle and the direction of the scar. He noted a vertical laceration going the entire length of the forehead into the left upper eyelid and brow. He said it was not wide nor hypertrophic (ex. 13, p. 1). Dr. Bloustine's final examination was on February 22, 1989 and he reported to the insurance carrier on February 23, 1989 as follows: Ms. Engelhart is now over a year following repair of her facial lacerations. The scar is minimally noticeable. However, she does have persistent numbness and tingling and discomforts in the area of the scar from the transection of the supraorbital neurovascular bundle. This may be a permanent problem. Considering her scarring and the problem she has from the nerve damage, I think she has about a 3% to 4% permanent partial impairment from her injury in terms of her forehead. (ex. 15, p. 1) Claimant testified that her right ankle swells a lot, it is hard to walk and that she has to negotiate steps by walking sideways. Her right ankle feels like someone kicked it if she stands on it for a period of time. It's a very sharp, shooting pain. She took medications for a year after the injury, but was not taking any medications at the time of the hearing. She testified that she walks with a limp (tr. pp. 18-20). Claimant demonstrated a long vertical scar, approximately six inches long, on her right ankle. Claimant also demonstrated several scars on her left knee. There is no report from Dr. Robison concerning permanent impairment of the left knee. Claimant testified he was not asked for an impairment rating. Claimant stated that her left forehead is numb, feels irritated and it itches. She testified that she is aware of the scar. She demonstrated that it begins in her mid forehead up in the hairline and proceeds vertically downward through the eyebrow to the eyelid and then across the eyelid laterally to the left side of her left eye. Claimant testified that she applied for work some places and was refused, but she did not know why. The prospective employers did not tell her why she did not get the job. Claimant stated that it was her opinion that some people did object to facial scars. Claimant had not applied for a job as a nurse's aide yet because she is not able to lift and turn a patient because of the injury to her left knee (tr. pp. 22-26 & 32). Claimant acknowledged that she received a check in the amount of $585 dated July 21, 1988 from employer, but she did not know what it was for (ex. 6). She testified that she is usually paid after her work is completed (tr. pp. 30, 31 & 36). She acknowledged that she did not have an impairment.rating on the left knee even though she had scars, deep lacerations and two drain holes in the knee for quite some time. She indicated that an impairment rating had not been requested (tr. pp. 32 & 33). She acknowledged again that she had not applied for nurse's aide work since the injury (tr. p. 32). Claimant acknowledged that she received workers' compensation benefits from the date of the injury until August 16, 1988 as shown on Form 2A in the industrial commissioner's file and that she received permanent partial disability after that without an interruption in benefits (tr. pp. 34 & 35). APPLICABLE LAW AND ANALYSIS The claimant has the burden of proving by a preponderance of the evidence that the injury of February 9, 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 Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id., at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Claimant did prove by a preponderance of the evidence that the injury of February 9, 1988 was the cause of permanent disability to the right ankle and that she is entitled to both temporary and permanent disability benefits for this injury. Claimant obviously was unable to work from the date of the accident, February 9, 1988, when she was hospitalized for ten days, until Dr. Wheeler released her to return to work on July 18, 1988, two days a week for one month. Therefore, claimant is entitled to healing period benefits from February 9, 1988 to July 18, 1988 a period of 22 weeks and 5 days. Claimant then worked two days a week for one month. Her normal work week was four days a week. The parties stipulated that the gross weekly earnings were $434 per week on the prehearing report. Since claimant worked half as much as she normally worked, she would have been entitled to half as much pay in the amount of $217 per week. She was not entitled to the other $217 dollars of her normal weeks wages. Claimant was, therefore, entitled to temporary partial disability benefits for the period of this one month from July 18, 1988 through August 17, 1988. Iowa Code section 85.33(2). Claimant's temporary partial disability benefit is 66 2/3 percent of the difference between the employee's regular weekly earnings and the employee's actual weekly earnings during the period of temporary partial disability. Claimant then is entitled to 66 2/3 percent of $217 of temporary partial disability benefits in the amount of $144.65 per week for the period from July 18, 1988 through August 17, 1988 which is a period of 4 weeks and 3 days. Iowa Code section 85.33(4). Claimant is entitled to 22 weeks of permanent partial disability benefits for the permanent disability to her right leg, based on Dr. Wheeler's 10 percent permanent functional impairment rating to the lower extremity. Claimant contends that she is entitled to a greater award than 10 percent permanent partial disability. However, claimant did not sustain the burden of proof by a preponderance of the evidence that she is entitled to more permanent partial disability. Claimant has an extremely serious injury to the right ankle, which swells, causes her to limp, causes her to walk down stairs sideways, and feels like some one kicked her when she stands on it for a period of time. It gives her a sharp, shooting pain. The right ankle also contains a plate, several screws and wires. Nevertheless, Dr. Wheeler was aware of all of these facts and took them into consideration when he awarded the 10 percent permanent functional impairment rating. Claimant did not present any other permanent functional impairment ratings or any work restrictions from any other physicians. Therefore, it is determined that claimant has sustained a 10 percent permanent functional impairment to the right leg and is entitled to 10 percent permanent partial disability benefits for the injury to the right ankle. With respect to the left knee, claimant sustained a very serious injury which prevents her from lifting and turning patients. The injury left her with several noticeable scars on the left knee. The injury required two drains for several days during the healing process. However, claimant presented no permanent impairment rating or any work restrictions from either Dr. Robison or any other physician. Therefore, it cannot be determined from claimant's testimony alone that claimant sustained a permanent disability to the left knee which would justify an award of permanent disability benefits. Permanent impairment is typically established by expert medical evidence and claimant did not introduce any medical evidence on her left knee to establish permanent impairment. Claimant did receive a head and facial scar. Iowa Code section 85.34(2)(t) provides as follows: For permanent disfigurement of the face or head which shall impair the future usefulness and earnings of the employee in the employee's occupation at the time of receiving the injury, weekly compensation, for such period as may be determined by the industrial commissioner according to the severity of the disfigurement, but not to exceed one hundred fifty weeks. The Iowa Supreme Court recently held that the occupation referred to the job or industry in which a claimant is working rather than a specific employer-employee relationship in which the injury occurs. Byrnes v. Donaldson's Inc., No. 89-626 (filed February 21, 1990). Claimant's attorney asserts in his posthearing letter brief, "We would argue that any facial scar on a person involved in treating such as elderly people would tend to make such a person less apt to be hired in view of the psychological effect of the scarring on such a person." Claimant testified that her primary occupation for the past several years has been that of a nurse's aide. A nurse's aide is in constant contact with members of the public. For this reason, a long L-shaped facial scar that comes out of the hairline, across the entire forehead vertically to the eyelid and then across the eyelid to the side of the eye, which is 12 centimeters long, does impair the future usefulness and earnings of this employee as a nurse's aide, because of her necessity to deal with the public rather than work in a factory environment. Nurse's aides are in close contact with patients and their families. In the case cited by defendants of Tevis v. McDowell's Pleasant Hill Manor, Thirty-third Biennial Report of the Industrial Commissioner 74 (1977), claimant was a cook in the kitchen of employer and not a nurse's aide. Furthermore, the deputy did not find sufficient evidence of disfigurement. The deputy viewed the scar and may employ agency experience, technical competence and specialized knowledge to evaluate the evidence and the disability. Iowa Administrative Procedure Act 17A.14(5); Conyers v. Ling-Casler Joint Venture, vol. 1 no. 2 State of Iowa Industrial Commissioner Decisions 309 (Appeal Decision 1984). Therefore, based upon the medical evidence, about the scars, supplied by Dr. Bloustine, having viewed the scar in the court room and having considered all of the evidence in this case, it is determined that claimant has sustained a 5 percent permanent partial impairment because of the disfigurement to the face and head of claimant which impairs her future usefulness and earnings in her occupation as a nurse's aide. Even though claimant testified that the forehead scar was irritating, numb and tingled and even though Dr. Bloustine awarded a 3 percent to 4 percent impairment rating for the scar, claimant did not prove that these discomforts or the impairment was the cause of any disability. It is noted, however, that claimant's secondary employment as an apartment complex manager showing and renting 45 apartment units involves dealing with the public on a face to face basis. The scar does impair the future usefulness and earnings of the employee in her occupation as a nurse's aide. Defendants contended, by virtue of the suggestion of counsel, that claimant was paid $585 in advance by employer on January 21, 1988 by the personal check of employer (ex. 6). However, claimant did not know what this payment was for and defendants' counsel's suggestion cannot be considered as evidence. If defendants wanted to establish what this check was for, or any of the checks, (ex 5, pp. 1-3), they should have done so by their own direct evidence. However, defendants did not call any witnesses to explain the significance or meaning of any of the checks which they introduced into evidence. FINDINGS OF FACT Wherefore, based upon the evidence presented, the following findings of fact are made: That claimant was off work from the date she was hospitalized for the automobile accident injury on February 9, 1988 until Dr. Wheeler released her to return to work on July 18, 1988. That claimant was able to work two days a week rather than four days a week for the period from July 18, 1988 to August 18, 1988. That Dr. Wheeler determined that claimant sustained a 10 percent permanent functional impairment to the right lower extremity due to the severe fracture of her right ankle and its severe residual complications. That claimant's primary occupation for the past several years, according to her testimony, is that of a nurse's aide. That claimant has a secondary employment of apartment manager. That the duties of a nurse's aide involves dealing with members of the public when employed as a nurse's aide. That the duties of a nurse's aide require the employee to work in close proximity to the patient and the patient's family. That showing and renting apartments involves meeting the public face to face. That claimant sustained a 12 centimeter scar that begins in the center of her forehead up into the hair, down vertically and across the forehead to the left eyelid and then laterally across the eyelid to the left side of the left eye. That the total length of the scar in inches is approximately 4 1/2 to 4 3/4 inches. That the scar is in a prominent place on the forehead of claimant and is visible to members of the public who would be conversing with or dealing with the employee as a nurse's aide. That the permanent disfigurement of the face, forehead and left eye to this claimant impairs her future usefulness and earnings as a nurse's aide, especially with private employers such as the employer in this case where claimant was working at the time of this injury, but also with corporate employers and with employers in general in the competitive labor market. CONCLUSIONS OF LAW Wherefore, based on the evidence presented and the foregoing principles of law, the following conclusions of law are made: That the injury of February 9, 1988 was the cause of healing period disability for the period from February 9, 1988 to July 18, 1988. That claimant is entitled to 22.714 weeks of healing period disability benefits for this period of time. That the injury of February 9, 1988 was the cause of temporary partial disability for the period from July 18, 1988 to August 18, 1988. That claimant is entitled to 4.429 weeks temporary partial disability benefits for this period of time. That the injury to the right leg was the cause of a 10 percent permanent partial disability. That claimant is entitled to 22 weeks of permanent partial disability benefits for the injury to the right leg. That claimant did not sustain the burden of proof by a preponderance of the evidence that she sustained a permanent disability to the left knee. That the injury of February 9, 1988 was the cause of permanent disfigurement to the face and head of claimant which impairs the future usefulness and earnings of claimant in her occupation as a nurse's aide and also as an apartment manager. That claimant is entitled to 7.5 weeks, (5 percent of 150 weeks) for this disfigurement pursuant to Iowa Code section 85.34(2)(t). ORDER THEREFORE, IT IS ORDERED: That defendants pay to claimant twenty-two point seven one four (22.714) weeks of temporary disability benefits for the injury to the right ankle for the period from February 9, 1988 to July 18, 1988 in the amount of two hundred seventy-one and 47/100 dollars ($271.47) as stipulated in the total amount of six thousand one hundred sixty-six and 17/100 dollars ($6,166.17) commencing on February 9, 1988. That defendants pay to claimant four point four two nine (4.429) weeks of temporary partial disability benefits at the rate of one hundred forty-four and 65/100 dollars ($144.65) per week in the total amount of six hundred forty and 65/100 dollars ($640.65) for the period from July 18, 1988 to August 18, 1988 commencing on July 18, 1988. That defendants pay to claimant twenty-two (22) weeks of permanent partial disability benefits at the rate of two hundred seventy-one and 47/100 dollars ($271.47) per week in the total amount of five thousand nine hundred seventy-two and 34/100 dollars ($5,972.34) for the ten (10) percent permanent partial impairment of claimant's right leg commencing on August 18, 1988. That defendants pay to claimant seven point five (7.5) weeks of permanent disfigurement benefits at the rate of two hundred seventy-one and 47/100 dollars ($271.47) per week in the total amount of two thousand thirty-six and 03/100 dollars ($2,036.03) for the five (5) percent disfigurement of claimant's face and head. That defendants are entitled to a credit for forty-four point seven one four (44.714) weeks of workers' compensation benefits paid to claimant prior to hearing at the rate of two hundred seventy-one and 47/100 dollars ($271.47) per week in the total amount of twelve thousand one hundred thirty-eight and 51/100 dollars ($12,138.51). That all accrued benefits are to be paid in a lump sum. That,interest will accrue pursuant to Iowa Code section 85.30. That the costs of this action, including the cost of the transcript and the sixty-five ($65) dollar filing fee advanced to claimant by her counsel, are charged to defendants pursuant to Division of Industrial Services Rule 343-4.33. That defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 21st day of May, 1990. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Harry H. Smith Attorney at Law 632 Badgerow Bldg. PO Box 1194 Sioux City, Iowa 51102 Mr. James P. Comstock Mr. James M. Cosgrove Attorneys at Law 1109 Badgerow Bldg. PO Box 1828 Sioux City, Iowa 51102 51401; 51402.40; 51802; 51401; 51402.40; 51801.10; 51401; 51402.40; 51803; 1401; 1402.40; 1803; 1703 Filed May 21, 1990 Walter R. McManus, Jr. BEFORE THE IOWA INDUSTRIAL COMMISSIONER GRACE J. ENGELHART, Claimant, vs. File No. 877244 ELSA APTROOT d/b/a COMPANION NURSE'S AIDE, A R B I T R A T I 0 N Employer, D E C I S I 0 N and EMPLOYERS MUTUAL INSURANCE, Insurance Carrier, Defendants. Claimant was involved in an automobile accident and received (1) a severe right ankle injury; (2) a severe scar vertically through her entire forehead and then horizontally across her left eyelid to the left side of her eye; and (3) a severe left knee injury. 51401; 51402.40; 51802 Claimant awarded healing period benefits for the time off work. 51401; 51402.40; 51801.10 Claimant awarded temporary disability based on the evidence presented. 51401; 51402.40; 51803 Claimant awarded 10 percent permanent partial disability benefits for the right leg based on the only impairment rating submitted. Claimant asked for more, but introduced no other opinions of any other physicians with higher impairment ratings or permanent restrictions. No award of permanent partial disability was made on the left knee which appeared severely injured and claimant described as impaired because claimant introduced no evaluation from the treating physician with any impairment rating or permanent restrictions. 1401; 1402.40; 1803 Claimant awarded 5 percent disfigurement for the scar on the face and head on a finding it impaired the future usefulness and earnings of the employee as a nurse's aide and as an apartment manager. Iowa Code section 85.34(2)(t). 1703 No credit allowed for wages defendants' counsel implied were wages paid during a period of temporary partial disability because argument or suggestion of counsel cannot be considered as evidence and defendants called no witnesses to explain the checks introduced. Page 1 before the iowa industrial commissioner ____________________________________________________________ : RODNEY L. NEWCOMB, : : Claimant, : : vs. : : File No. 877383 RUAN LEASING, RUAN : TRANSPORTATION MANAGEMENT : A R B I T R A T I O N SYSTEMS, : : D E C I S I O N Employer, : : and : : LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in arbitration brought by Rodney L. Newcomb based upon an injury that occurred on January 21, 1988. Claimant seeks compensation for healing period, temporary partial disability and permanent partial disability. The case was heard at Davenport, Iowa on March 16, 1990. The record in the case consists of testimony from Rodney L. Newcomb, Kelli Schildberg and Bill Allison. The record also contains claimant's exhibits 12, 14 and 15 and defendants' exhibits 1 through 11. findings of fact Rodney L. Newcomb is a 28-year-old single man who graduated from high school in 1982. He has no post-high school education or vocational training. Newcomb's work history includes general labor and truck driving. Claimant testified that he had no physical ailments or problems which made it impossible for him to do heavy lifting prior to January 21, 1988. Newcomb commenced employment with Ruan as a casual employee for approximately two weeks and was then placed in a permanent employee status. On January 21, 1988, claimant's foot slipped while getting out of a truck and he fell down to the ground, landing on his heels. According to claimant, he felt no pain at the time of the incident, but experienced discomfort in his lower back the following morning. Page 2 Newcomb initially received treatment from Karen Edkin, D.C. He was off work, but was released to return to work by Dr. Edkin on January 28, 1988 (exhibit 2, pages 2 and 4). Claimant then sought treatment under the direction of William Catalona, M.D. Dr. Catalona felt that claimant had instability at several levels of his lumbar spine with a retrolisthesis at the L5-S1 level. He recommended that claimant remain off work. Dr. Catalona prescribed treatment in the nature of bed rest, prescription medication and physical therapy. By March 10, 1988, Dr. Catalona reported that he doubted claimant could be rehabilitated to return to heavy labor and arbitrarily assigned a 15 percent permanent impairment rating (exhibit 3, page 1). On July 5, 1988, Dr. Catalona noted that claimant was willing to return to work with restrictions on July 6, 1988 and issued a work release accordingly (exhibit 3, pages 2 and 7). While off work, claimant was seen by J. H. Sunderbruch, M.D., on March 25, 1988. Dr. Sunderbruch felt that claimant's injury was a low back strain, that he had no permanent impairment from it and that he could return to work with a 25-pound lifting restriction. Dr. Sunderbruch felt that claimant's x-rays were normal (exhibit 1, pages 5-7). Newcomb returned to restricted work on July 8, 1988. He could not explain why he did not seek to return to work sooner, despite having been contacted by his supervisor, Bill Allison, with information that work complying with Dr. Sunderbruch's restrictions was available. Claimant worked until aggravating his symptoms on or about September 2, 1988. He was then off work from September 3 through September 8, 1988, worked until September 26 and 27, 1988 when he was off, worked on September 28, 1988, and was off work again from September 29 through October 5, 1988. Claimant then resumed work until being off from November 14, 1988 through November 23, 1988. Claimant was under medical treatment during the times he was off work commencing September 3, 1988. He was treated primarily by Dr. Catalona, but was also seen by Byron W. Rovine, M.D., and Jerome G. Bashara, M.D. (Exhibits 6 and 7) Claimant had been evaluated at the University of Iowa Hospitals and Clinics in August, 1988 (exhibit 4). Those three physicians were not in substantial disagreement. Claimant was found to have mild lumbar instability. Dr. Bashara diagnosed the condition as a musculoligamentous strain. All felt that claimant was capable of working with lifting restrictions or if wearing a brace. Dr. Bashara assigned a 10 percent permanent impairment rating due to claimant's back condition. Claimant was evaluated in April, 1989 by Robert J. Chesser, M.D. Dr. Chesser found claimant to have a first degree spondylolysthesis. He recommended that claimant avoid frequent lifting in excess of 50 pounds and avoid all Page 3 lifting in excess of 75 pounds (exhibit 9). Dr. Catalona rated claimant as having an 8 percent impairment on December 7, 1988 following completion of the Work Fitness Center program (exhibit 3, page 5). While claimant was off work following the September 2, 1988 incident, he was placed into a work hardening program through the Work Fitness Center (exhibit 10). His physical capacities increased while he was in the program. On November 23, 1988, he returned to part-time work and continued in that status through December 16, 1988. He was scheduled to work 20 hours per week during the first two of those four weeks. He worked 21.8 hours the third week and 29.3 hours the fourth week. During the first two weeks, claimant was absent for reasons unrelated to his injury. Claimant's normal rate of earnings was $7.00 per hour. At that rate, he would have earned $140.00 during each of the first two weeks, $152.60 the third week and $205.10 the fourth week. Two-thirds of the difference between his normal weekly earnings of $280.00 and the part-time earnings, if he had worked all scheduled hours, are $93.33 for each of the first two weeks, $84.98 for the third week, and $49.96 for the fourth week. The total is $321.60. The employer and its insurance carrier had paid five weeks of benefits at the rate of $95.33 during this transitional work period, an amount which totals $476.65. According to exhibit 11, claimant resumed full-time work with the week beginning December 17, 1988 and worked normal full-time hours thereafter until he was subsequently injured while handling a tire on February 21, 1989. Following recovery from the February, 1989 injury, claimant resumed work for approximately two months and then resigned. After moving through a number of other jobs, claimant found his current employment as a farm hand. His current employer provides claimant work within his physical limitations. Claimant and Kelli Schildberg, the woman with whom he resides, both stated that claimant is greatly restricted in his physical capabilities and that he no longer participates in things such as recreational sports. Schildberg stated that claimant is unable, because of his back condition, to perform activities such as washing dishes or taking out the garbage. It is found that the assessment of this case made by Dr. Catalona is correct. He is a qualified orthopaedic surgeon and is more familiar with the case than any of those who have merely evaluated claimant. Further, his assessment is substantially consistent with the assessments made by Drs. Guyton, Chesser, Rovine and Bashara. The only material variance is with Dr. Sunderbruch who, despite the finding of normal x-rays and no permanent impairment also recommended a 25-pound lifting restriction. Dr. Sunderbruch's assessment of the case is inconsistent with itself as well as being Page 4 inconsistent with that from the other physicians. The assessment made by Dr. Edkin is too preliminary to have much impact upon the final result of the case. The evidence from claimant and Schildberg regarding his physical limitations is found to be somewhat exaggerated. While claimant certainly does have a well-documented back condition, the nature of that condition is not such that it would be expected to prohibit him from performing activities such as washing dishes or taking out the trash. Those activities are well within the restrictions recommended by all the physicians who have treated and evaluated claimant. It is specifically found that claimant's injury was a musculoligamentous strain or sprain. It occurred due to the preexisting spondylolysthesis. It is an injury from which he had recuperated in mid-March of 1988. His remaining off work subsequent to that time was due primarily to his reluctance to resume heavy work. There is no evidence to indicate that he actually recuperated or recovered significantly between mid-March and early July of 1988. Claimant has the same hourly rate of pay at his current job as he did with Ruan. He seems physically capable of performing that work without substantial problem. While it does aggravate his symptoms on occasion, it is likely that any type of work or activity will aggravate his symptoms in view of the nature of his underlying condition. It is found that the injury that occurred on January 21, 1988 was an aggravation of an underlying, previously latent spinal instability. The injury became permanent. It has resulted in a 10 percent reduction of claimant's earning capacity. conclusions of law The claimant has the burden of proving by a preponderance of the evidence that the injury of January 21, 1988 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). Aggravation of a preexisting condition is one form of compensable injury. While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). Page 5 Claimant's injury has been found to be an aggravation of a preexisting condition. This entitles him to recover healing period benefits as if there had been no preexisting condition. It was the January 21, 1988 incident which caused the preexisting condition to become symptomatic. The parties treated the September incident as part of the original injury, but the defense has contended that the February 21, 1989 incident was a separate injury. Defendants are correct in that contention. It was a subsequent aggravation of the preexisting condition and cannot be dealt with in this decision. It is a separate injury which requires a separate petition and contested case proceeding. Claimant seeks compensation for healing period and temporary partial disability. The case is complex in that it involves several periods of absence from work. Healing period ends when the employee returns to work, completes all significant medical improvement from the injury, or is capable of returning to substantially similar employment. [Iowa Code section 85.34(1)] In this case, however, weekly compensation was paid. The claimant did not return to work until July 8, 1988. There is no evidence in the record showing that the claimant was given the 30-day notice stating the reason for the termination of compensation and advising him of his right to file a claim with the industrial commissioner as is required by Iowa Code section 86.13. In view of the lack of that notice, claimant is entitled to recover healing period compensation commencing January 22, 1988 and running through July 7, 1988, a span of 24 weeks. While the actual healing period had ended by the time Dr. Sunderbruch issued his report on March 25, 1988, the lack of 30-day notice entitles claimant to continue to recover weekly compensation until his actual return to work. It is noted that he did not file his petition until the subsequent date of November 14, 1988. Claimant is also determined to be entitled to healing period compensation for six days commencing September 3, 1988, two days commencing September 26, 1988, one week commencing September 29, 1988, and one and two-sevenths weeks commencing November 14, 1988. This is a total of three and three-sevenths weeks. Claimant is entitled to recover temporary partial disability compensation under the provisions of Iowa Code sections 85.33(2) through (5). His failure to report to work as scheduled constitutes a refusal to accept suitable work. It is therefore treated as though he had worked the hours scheduled for purposes of computing temporary partial disability benefits in view of the nature of the reasons which appear in the record for his failing to report to work. The refusal is not one which totally disqualifies claimant from all benefits. His entitlement to temporary partial disability compensation totals $321.60. That paid Page 6 by the employer totalled $476.65, resulting in an overpayment of $155.05. If 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.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, 34th Biennial Report, 218 (1979); 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. When all the appropriate factors of industrial disability are considered, it is determined that claimant has a 10 percent permanent partial disability which entitles him to recover 50 weeks of compensation under the provisions of Iowa Code section 85.34(2)(u). The weekly compensation is payable commencing at the end of the initial healing period, namely July 8, 1988 and is payable weekly thereafter, with interruptions for subsequent healing periods and also for weeks when temporary partial disability compensation was payable. order IT IS THEREFORE ORDERED that defendants pay claimant twenty-seven and three-sevenths (27 3/7) weeks of compensation for healing period at the stipulated rate of one hundred seventy-eight and 72/100 ($178.72) per week with twenty-four (24) weeks thereof being payable on January 22, 1988; with six-sevenths (6/7) weeks thereof payable commencing September 3, 1988; with two-sevenths (2/7) weeks Page 7 thereof payable commencing September 26, 1988; with one (1) week thereof payable commencing September 29, 1988; and with the remaining one and two-sevenths (1 2/7) weeks payable commencing November 14, 1988. IT IS FURTHER ORDERED that defendants pay four (4) weeks of compensation for temporary partial disability payable commencing November 20, 1988 with the first two (2) weeks thereof payable at the rate of ninety-three and 33/100 dollars ($93.33), with the third week payable at the rate of eighty-four and 98/100 dollars ($84.98), and with the fourth week payable at the rate of forty-nine and 96/100 dollars ($49.96). IT IS FURTHER ORDERED that defendants pay claimant fifty (50) weeks of compensation for permanent partial disability at the stipulated rate of one hundred seventy-eight and 72/100 ($178.72) per week payable commencing July 8, 1988 and payable each week thereafter, with interruptions for the subsequent healing period and temporary partial disability compensation which is awarded in this decision. IT IS FURTHER ORDERED that defendants are entitled to credit against the foregoing award for all weekly compensation benefits which were previously paid. The remaining unpaid accrued amount shall be paid in a lump sum together with interest at the rate of ten percent (10%) per annum computed from the date each payment came due until the date of actual payment according to the provisions of Iowa Code section 85.30. IT IS FURTHER ORDERED that defendants pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. IT IS FURTHER ORDERED that defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this ______ day of ____________, 1990. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Philip F. Miller Attorney at Law 309 Court Avenue Suite 200 Des Moines, Iowa 50309 Page 8 Mr. Greg A. Egbers Attorney at Law 600 Union Arcade Building 111 East Third Street Davenport, Iowa 52801 1801.1, 5-1802, 5-1803 5-2206, 4000.1 Filed August 16, 1990 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : RODNEY L. NEWCOMB, : : Claimant, : : vs. : : File No. 877383 RUAN LEASING, RUAN : TRANSPORTATION MANAGEMENT : A R B I T R A T I O N SYSTEMS, : : D E C I S I O N Employer, : : and : : LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 1801.1 Where the claimant missed some days he was scheduled to work under a temporary partial disability setting, his weekly benefit for that week was computed as if he had worked whenever scheduled, rather than totally disqualifying him from benefits. 5-1802, 5-1803, 5-2206 Claimant awarded healing period, temporary partial disability and permanent partial disability for an aggravation of a preexisting back condition. 4000.1 Healing period continued until actual return to work where benefits were terminated without notice.