1803.1; 4000 Filed April 5, 1991 Bernard J. O'Malley before the iowa industrial commissioner ____________________________________________________________ : THOMAS PERRYMAN, : : Claimant, : : vs. : : File No. 880059 UNIVERSAL RUNDLE CORP., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1803.1 Found claimant's injury was to his body as a whole and not limited to his upper right extremity. Claimant is 32 years old and didn't finish the eleventh grade. All prior work history was in general labor jobs requiring lifting 25 pounds or more. Claimant incurred a permanent restriction of no lifting over 15 pounds and problems using his right arm. Claimant is right handed. Claimant has not been able to find any full-time work and very limited restricted summer jobs. Claimant awarded 60% industrial disability. 4000 Twenty-five weeks of penalty benefits also awarded. Page 1 before the iowa industrial commissioner ____________________________________________________________ : THOMAS PERRYMAN, : : Claimant, : : vs. : : File No. 880059 UNIVERSAL RUNDLE CORP., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This case came on for hearing on March 14, 1991, in Ottumwa, Iowa. This is a proceeding in arbitration wherein claimant seeks compensation for additional healing period benefits and permanent partial disability benefits as a result of an alleged injury occurring on March 4, 1988. The record in the proceedings consists of the testimony of claimant and Larry Christy; and joint exhibits 1 through 14. issues The issues for resolution are: 1. Whether claimant's permanent disability is causally connected to his March 4, 1988 injury; 2. The nature and extent of claimant's disability and entitlement to disability benefits; 3. Whether claimant's injury is to a scheduled member or body as a whole; and, 4. Whether claimant is entitled to 86.13 penalty benefits. Page 2 findings of fact The undersigned deputy having heard the testimony and considered all the evidence, finds that: Claimant is a 32-year-old who completed the tenth grade and part of the eleventh grade. Claimant eventually received his GED in June 1989. Claimant referred to his jobs he had prior to beginning work for defendant employer in July 1987. These prior jobs were basically in general labor which required lifting 25 pounds or more on a regular basis. Claimant described his work at defendant employer, which eventually involved spraying a gel coat finish on tubs and spa molds. This is done with a pressure hose for ten hours a day. Claimant indicated this job also involved pulling the molds on a rail as he sprayed both sides and sent them on their way. On March 4, 1988, while pulling a tub mold to spray, a safety latch came off and claimant put his right arm out to prevent the mold from hitting him and this resulted in claimant being thrown against the wall. Claimant said he finished the shift that day in which he had four to five hours left. Claimant was making $7.12 per hour at that time. Claimant requested to see the company doctor. The company would not let him and claimant went to work the next day. After claimant said his shoulder felt out of place and he could not paint, and after several requests and over two weeks later, defendant employer let claimant see D. Dale Emerson, M.D., the company doctor. He said the doctor examined him and prescribed medicine but did not ask him to move his arms around but only forward. Claimant said he had his work clothes on and the doctor never asked him to take off his shirt so he could see his shoulder or where claimant was having his pain. Dr. Emerson told the claimant to stay off work after having gone to him for several visits. Claimant had some physical therapy but contends he was not given enough time for the shoulder to heal. Claimant wasn't off work at first and claimant indicated the work was aggravating his arm. Claimant eventually was off work several weeks and upon his return to work had pain and swelling within one month. Claimant was then pulled off the spraying job and did several non-spraying jobs. Claimant contends these other jobs required him to use his right arm. On Friday, September 16, 1988, Dr. Emerson gave claimant a return-to-work release. Claimant worked until January 1989, when he was terminated. Claimant related his firing resulted because claimant missed two days of work due to being in court on two consecutive Fridays. Claimant could not recall having missed any other days except when he was off due to his injury. Claimant contends he had permission to miss the two days and they were approved. Claimant first talked to defendant employer and had a union steward accompany him. Page 3 Claimant eventually filed a union grievance. Claimant contends he heard nothing except he received a letter which indicated nothing could be done concerning the grievance. He claimed he never received a reason for his termination. Claimant eventually saw J.W. Brindley, M.D., an orthopedic surgeon, who had claimant perform various direction movements, exercises and pressure tests. He said the doctor described claimant's shoulder as winging and referred claimant to a shoulder specialist in Iowa City. Claimant said his shoulder wanted to pop out. Claimant is right handed. Claimant indicated his pain now is no different than his pain three years ago. If he lifts something he has a burning sensation when his shoulder pops out. Claimant testified he saw Peter D. Wirtz, M.D., a few weeks ago and like Dr. Emerson, Dr. Wirtz never had claimant take off his shirt. Dr. Brindley and James V. Nepola, M.D., are the only doctors who had claimant take off his shirt when examining him. Although claimant said he requested to take his loose fitting shirt off so Dr. Wirtz could see claimant's shoulder and injury area, Dr. Wirtz said it was not necessary. Claimant was not required to do any pressure tests. Claimant again saw Dr. Brindley two and one-half weeks before the hearing and he again had claimant take off his shirt and do the various tests again. He said his shoulder was still winging out. Claimant obviously was surprised that Dr. Emerson and Wirtz did not perform a sufficient examination to try to determine in his opinion where and what claimant's complaints were and visually observe the area of the injury. Claimant has had no physical therapy since 1988. Claimant related his job search in the nature of his limited temporary jobs he did obtain. These jobs lasted one or two weeks in the summer of 1989, and in the summer of 1990 claimant worked for an asphalt company walking along the paving machine. Claimant also worked three weeks for the Williams Pipeline Company looking for and sealing pinholes in the line. These jobs required no lifting or pulling. Claimant said he searched for other jobs and called job service. Claimant indicated he was paid $6.00 per hour for one of these jobs in the summer of 1989. He has had no success in obtaining a full-time job. Claimant stated he enrolled in Indian Hills Community College to be a machinist and was to pay for it through a grant and vocational rehabilitation money. Claimant related he started school and then quit because his money to buy the needed tools was stolen from his wife's purse around June 11, 1989, approximately two to three weeks after school started. Claimant said Dr. Nepola, from the University of Iowa, told claimant to get more therapy but claimant had no money to pay for it. Page 4 Larry Christy, defendant employer's office manager, stated his several duties with defendant employer, one of which involves contact with claimant's personnel file. He said he is not aware that a union grievance was ever filed and he would usually know if there was a filing. He testified that no union person called him nor had claimant ever told him of a grievance. Christy said Dr. Emerson is the sole plant doctor. He related that claimant received all the benefits up to the time Dr. Emerson returned claimant to full duty with the restriction of no spraying. This was on Friday, September 16, 1988. He acknowledged claimant never had a warning regarding his performance in claimant's file and claimant was terminated due to his absence record and that the four steps for termination were followed, including a verbal and written warning before claimant was fired. He emphasized claimant was fired for his unexcused absences. He indicated that if the company had deviated from the process, there would be a grievance from the union. Christy said he knows of no grievance procedure involving the claimant. Christy said claimant has not returned to the company, had not made any contact with him since claimant's discharge nor had claimant requested to see a doctor other than the company doctor, Dr. Emerson. This witness was then shown three pages to review and acknowledge his signature on the page but emphasized he wasn't at the discharge meeting for the union and didn't remember signing the papers. Christy also acknowledged that defendant employer did not fight the claimant's unemployment benefits request even though attendance problems can be misconduct leading to denial of unemployment benefits. Peter D. Wirtz, M.D., an orthopedic surgeon, testified by way of his deposition on February 15, 1981, that he saw claimant for an evaluation on January 16, 1991, through a referral by defendants' attorney. He indicated he had all the other doctor reports and notes at that time. He related claimant's history and the motion and position changes he had claimant do during the examination. He ruled out winging in claimant's shoulder. He described winging as an alteration of the muscle that holds the shoulder blade to the rib cage. Dr. Wirtz testified the first indication of any winging of the shoulder blade was in Dr. Brindley's August 15, 1989 note, seventeen months after claimant's alleged injury. He said the winging condition would have shown up much earlier if it occurred in a March 4, 1988 injury. The doctor concluded claimant's current loss of motion and stiff rigid shoulder is not the result of a March 4, 1988 injury but that something had to have occurred prior to Dr. Brindley's August 15, 1989 examination and after claimant's musculoskeletal strain to his shoulders on March 4, 1988. Page 5 Dr. Wirtz said claimant's long thoracic nerve palsy referred to by Dr. Brindley did not occur on March 4, 1988, and that some other incident prior to August 15, 1988 caused it. He said the palsy symptoms are no longer there but the restrictions of motion remain (Joint Exhibit 1, page 18). Dr. Wirtz said this limitation is only to the right upper extremity and the impairment is 8 percent. The doctor emphasized this impairment is not the result of claimant's March 4, 1988 injury. He related the long thoracic nerve condition is not permanent in nature but the loss of motion is probably permanent (Jt. Ex. 1, p. 21). The doctor concluded claimant currently is only suffering from a right upper extremity range of motion loss. Dr. Wirtz acknowledges claimant at some time between March 21, 1988 and January 16, 1991 was suffering from a thoracic nerve palsy, but he didn't ask claimant if there was any intervening incident other than claimant's March 4, 1988 injury that might have caused this palsy condition. The undersigned has a hard time believing that a competent doctor whose opinion was that claimant had an intervening incident which the doctor believes caused claimant's condition rather than a March 4, 1988 injury didn't ask the claimant if there was an intervening incident (Jt. Ex. 1, p. 22). The undersigned is convinced from the record that claimant had a shirt on at the time of his examination by Dr. Wirtz. From this agency's experience from time to time with some medical personnel and the similarity of questionable examinations, it is incomprehensible how certain medical opinions can be arrived at in the manner in which an examination is done. Of interest is Dr. Emerson's records (Jt. Ex. 6, p. 97) in which the claimant apparently could not get time off to go to therapy. Maybe a person would recover sooner and more fully if proper attention is given in the beginning (Jt. Ex. 9, p. 126). On Friday, September 16, 1988, Dr. Emerson said claimant could return to work with full duty except no spraying (Jt. Ex. 6, pp. 105 and 107). He also indicated no disability. In looking at the medical records of Dr. Emerson, it is hard to believe at that stage of claimant's treatment and the restrictions he placed on claimant that he could come to that conclusion. If anything, it appears premature and the explanation could be that he was a company doctor. This agency from time to time sees a company doctor more interested in allegiance to the company who refers him the patient rather than to the patient to whom he owes an unbiased obligation once he assumes the patient's care. On June 3, 1988, Marc E. Hines, M.D., suggested claimant be let off work one to two weeks to give the shoulder time to heal. He also indicated that trying this may decrease claimant having continuing difficulties with his shoulder and arm (Jt. Ex. 9, pp. 126 and 127). Obviously, the defendant employer did not go along with Page 6 these recommendations. Dr. Emerson finally gave claimant four days off after considerable urging (Jt. Ex. 9, p. 128). On June 1, 1989, Dr. Hines noted claimant still continues to have shoulder pain and he raised again the fact that claimant should have had adequate time off but only received four days. Therefore, he never had time for an attempt at complete resolution of claimant's problems (Jt. Ex. 9, p. 130). It appears from the record that claimant was not getting the company treatment he should and that claimant's problems are becoming worse due to lack of care by company doctors. In claimant's medical records there has also been reference at times to carpal tunnel syndrome (right). It appears at one time, at least, one doctor thought this might be the cause of claimant's shoulder problems. On November 9, 1989, Dr. Hines wrote that he was able to identify claimant as having carpal tunnel syndrome and right long thoracic nerve involvement. He also causally connected these problems to claimant's March 4, 1988 work injury. He opined a combined 21 percent permanent impairment of claimant's upper extremity (Jt. Ex. 9, pp. 135-137). As of June 7, 1991, Dr. Hines has not changed his opinion on impairment. He has referred to a February 18, 1988 injury date. The undersigned believes and so finds that the injury referred to is, in fact, the one stipulated to by the parties, namely, March 4, 1988 (Jt. Ex. 9, pp. 142 and 143). Dr. Hines also agrees with the restrictions Dr. Brindley gave claimant and that they are his current restrictions. On October 17, 1989, Michael L. Pogel, M.D., also agreed claimant had a long thoracic nerve palsy. He also noted winging of claimant's scapula and muscle spasms in the supraclavicular area (Jt. Ex. 9, p. 148). On August 21, 1990, Dr. Brindley opined claimant had a right long thoracic nerve palsy with parascapular pain which appears myofascial in origin. He also observed obvious winging of claimant's scapula (Jt. Ex. 9, p. 155). He also saw this winging on January 31, 1990 and April 18, 1990 (Jt. Ex. 5, p. 90). It appears the permanent restrictions claimant has to which Dr. Hines agrees are in Dr. Brindley's report (Dep. Ex. D-3 of Jt. Ex. 1 and Jt. Ex. 4, p. 91), namely: "...could not lift or carry over 15 pounds and should not lift frequently....I think his main problem would be using his right arm." The greater weight of medical evidence shows claimant incurred a long right nerve thoracic palsy on March 4, 1988 and that this injury arose out of and in the course of claimant's employment and the undersigned so finds. Page 7 The greater weight of evidence also shows claimant to have an injury to his upper extremity that also goes into and affects his shoulder and body as a whole, all of which was caused by claimant's March 4, 1988 work injury. The undersigned is appalled by the care, or more suitable, lack of care by company doctors. It would appear that if more and competent attention was given to claimant's condition or if claimant was put first as to physical therapy treatment rather than the employer rushing him back to work, claimant would have been given better care and opportunity to be treated and cured rather than his current condition. Fortunately, the claimant sought other medical treatment but it appears a permanent condition cannot be avoided. It is not surprising to see a late-in-the-game evaluation by Dr. Wirtz whereby he finds nothing wrong and assumes things without asking questions or doing certain tests or performing a properexamination. It is no coincidence, as unfortunate as it may be, that this agency sees similar circumstances from time to time. Medical credibility is as important, if not more important at times, than the credibility of the nonprofessional. When it comes to 86.13 penalty benefits, defendants' actions and credibility are important. This agency experiences more problems with certain participants than others when it comes to how a claimant is treated. Claimant is young and yet he has a severe permanent disability due to the fact that his basic employment and transferable skills are in the general manual labor industry requiring lifting 25 pounds or more. Claimant has a very severe lifting restriction and this causes claimant to have a substantial loss of earning capacity. Claimant is right handed and basically the doctor indicates claimant's main problem is using his right arm. He should not lift over 15 pounds. Claimant has made sincere searches for work. He recently obtained a GED since his injury. He has a permanent impairment. Claimant has no pre-March 1988 injury history that affects him today. He began to start higher education but his grant money was stolen. The undersigned questions the manner of claimant's termination from employment. It appears defendants were looking closely for any excuse. Although it is not clear to the undersigned what may or may not have happened in the grievance process, if any, defendants' witness was certain nothing was done and yet was shown documents he signed that he never recalled. The undersigned was not given the benefit of having those papers as exhibits. Taking into consideration all those criteria not limited to those specifically referred to above in determining a person's industrial disability, the undersigned finds claimant has a 60 percent industrial disability. The undersigned finds that claimant was off work for at least 11.286 weeks to which the parties stipulated that there would be credit for healing period or Page 8 temporary total disability. The evidence is clear that claimant was released to work by at least one doctor on Friday, September 16, 1988, and that claimant did, in fact, return to work on Monday, September 19, 1988. The deputy's notes taken at the time the parties were trying to prepare the prehearing report indicate that the parties agreed claimant was off March 5, 1988 to and including September 18, 1988, and then indicated the 11.286 weeks were paid. This has to be in error as to the amount of time as the evidence is clear that claimant returned back to work at defendant employer's insistence until his request for more sincere medical care was finally honored several days thereafter. The undersigned cannot tell from the evidence how many days other than the stipulated 11.286 weeks that claimant was off during the healing period. The claimant has that burden so, if, in fact, there are more days, there is nothing specific in the records to indicate anything more than 11.286. Therefore, the undersigned finds that claimant's healing period was for a period of 11.286 weeks ending with and including September 18, 1988. As to the issue of 86.13 penalty benefits, defendants obviously were only listening to Dr. Emerson, whose "care" of claimant I have previously addressed. Then defendants sent claimant to Dr. Wirtz in January 1991, two months before the hearing. He affirmed what defendants were wanting to hear. The undersigned has a difficult time understanding the defendants' denial of any permanent partial disability benefits under the record of this case, at least prior to January 16, 1991. Defendants' actions may have been given more credence had they attempted to successfully or credibly discredit the other doctors claimant went to other than Dr. Emerson, although the odds are Dr. Wirtz would have taken the same position. The under signed finds that defendants shall pay claimant 25 weeks of 86.13 penalty benefits based on an unreasonable delay of payments of permanent partial disability benefits. conclusions of law The claimant has the burden of proving by a preponderance of the evidence that the injury of March 4, 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). 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 Page 9 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). An injury to a scheduled member which, because of after-effects (or compensatory change), creates impairment to the body as a whole entitled claimant to industrial disability. Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). Daily v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). An injury is the producing cause; the disability, however, is the result, and it is the result which is compensated. Barton, 253 Iowa 285, 110 N.W.2d 660; Dailey, 233 Iowa 758, 10 N.W.2d 569. 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, 253 Iowa 285, 110 N.W.2d 660. A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disabil ity. This is so as impairment and disability are not syn onymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a Page 10 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). The mere fact that the rating pertains to a scheduled member does not mean the disability is restricted to a schedule. Pullen v. Brown & Lambrecht Earthmoving, Incorporated, II Iowa Industrial Commissioner Reports 308 (Appeal Decision 1982). Iowa Code section 85.34(1) provides that if an employee has suffered a personal injury causing permanent partial disability, the employer shall pay compensation for a healing period from the day of the injury until (1) the employee returns to work; or (2) it is medically indicated that significant improvement from the injury is not anticipated; or (3) until the employee is medically capable of returning to substantially similar employment. Iowa Code section 85.34(2) provides that compensation for permanent partial disability shall begin at the termination of the healing period. Iowa Code section 85.34(2)(u) provides that compensation for a nonscheduled or body as a whole injury shall be paid in relation to 500 weeks and the disability bears to the body as a whole. Iowa Code section 86.13 provides, in part: If a delay in commencement or termination of benefits occurs without reasonable or probable cause or excuse, the industrial commissioner shall award benefits in addition to those benefits payable under this chapter, or chapter 85, 85A, or 85B, up to fifty percent of the amount of benefits that were unreasonably delayed or denied. It is further concluded that: Claimant's March 4, 1988 work injury caused claimant to incur a healing period amounting to 11.286 weeks and which Page 11 period ended up to and including September 18, 1988. Claimant's March 4, 1988 work injury caused claimant to incur permanent impairment and restrictions of no lifting over 15 pounds and claimant may have problems in using his right arm. Claimant's March 4, 1988 work injury caused claimant to incur a 60 percent industrial disability. Defendants were unreasonable in delaying permanent partial disability benefits. Defendants are obligated to the claimant for 25 weeks of 86.13 penalty benefits at the rate of $209.43. order THEREFORE, it is ordered: That defendants shall pay unto claimant healing period benefits at the rate of two hundred nine and 43/100 dollars ($209.43) for the period of eleven point two eight six (11.286) weeks for the period claimant missed work, which healing period ended up to and including September 18, 1988. That defendants shall pay unto claimant three hundred (300) weeks of permanent partial disability benefits at the rate of two hundred nine and 43/100 dollars ($209.43) beginning September 19, 1988. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. Defendants have paid eleven point two eight six (11.286) weeks of healing period benefits. That claimant shall pay defendants twenty-five (25) additional weeks of benefits under the provisions of 86.13 at the rate of two hundred nine and 43/100 dollars ($209.43). That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall pay the costs of this action, pursuant to rule 343 IAC 4.33. That defendants shall file an activity report upon payment of this award as required by this agency, pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of April, 1991. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Page 12 Mr H Edwin Detlie Attorney at Law 114 N Market St Ottumwa IA 52501 Mr Walter F Johnson Attorney at Law 111 W Second St P O Box 716 Ottumwa IA 52501 Page 1 before the iowa industrial commissioner ____________________________________________________________ _____ : SCHLENA A. DOWELL, : : Claimant, : : vs. : : File No. 880145 EDWIN WAGLER, d/b/a ED'S : SUPER VALU, : A P P E A L : Employer, : D E C I S I O N : and : : UNITED FIRE & CASUALTY : COMPANY, : : 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 July 26, 1991 is affirmed and is adopted as the final agency action in this case, with the following modifications: Claimant requests that a disputed medical bill of $110 be ordered paid by defendants. (See Joint Exhibit 4) Claimant testified the bill was for treatment of the phantom pain associated with the work injury to the right arm. Claimant has the burden of proving entitlement to payment for medical services. Claimant is competent to testify that treatment was necessary for treatment related to the work injury. Claimant's testimony is unrefuted. The bill in question was related to treatment of claimant's work injury and should be paid by defendants. Claimant argues that the deposition of Marilyn Holland should be considered. Claimant is correct that the deposition was part of the joint exhibits (Joint Exhibit 3). It appears defendants agree in their appeal brief that deposition should be considered. The deposition of Marilyn Holland is in the record and has been considered on appeal. (It should be noted that the confusion on the part of the deputy, if any, could have been avoided if the parties had realized that the deposition in question was one of the joint exhibits as well as an apparent separate proposed exhibit by the defendants and had taken the proper steps to avoid duplication.) Page 2 Claimant next asks that deposition costs of Dr. Hines, billed at $675 (Joint Exhibit 5) be ordered paid. Costs are taxed pursuant to rule 343 IAC 4.33) which provides that "the costs of doctors' and practitioners' deposition testimony, provided that said costs do not exceed the amounts provided by Iowa Code sections 622.69 and 622.72." Iowa Code section 622.72 provides a maximum of $150. Therefore, the costs assessed against the defendants by the deputy shall be limited to $150 for Dr. Hines' deposition. Costs are taxed pursuant to rule 343 IAC 4.33. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of November, 1991. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. J. W. McGrath Attorney at Law 4th & Dodge Keosauqua, Iowa 52565 Mr. John C. Stevens Attorney at Law 122 East Second St. P.O. Box 748 Muscatine, Iowa 52761 1803.1; 5-1402.60; 5-2907 Filed November 26, 1991 Byron K. Orton PJL before the iowa industrial commissioner ____________________________________________________________ _____ : SCHLENA A. DOWELL, : : Claimant, : : vs. : : File No. 880145 EDWIN WAGLER, d/b/a ED'S : SUPER VALU, : A P P E A L : Employer, : D E C I S I O N : and : : UNITED FIRE & CASUALTY : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ _____ 1803.1 Deputy affirmed on appeal that phantom pain from an amputation of the arm affected only the arm. The injury was a scheduled member injury. 5-1402.60 Claimant offered testimony that a disputed medical bill was related to treatment of the work injury. Claimant's testimony was unrefuted and the medical bill was allowed. 5-2907 Costs of doctor's deposition limited to maximum of $150 per rule 343 IAC 4.33 and Iowa Code section 622.72. Page 1 before the iowa industrial commissioner ____________________________________________________________ : SCHLENA A. DOWELL, : : Claimant, : : vs. : : File No. 880145 EDWIN WAGLER, d/b/a ED'S : SUPER VALU, : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : UNITED FIRE & CASUALTY : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Schlena A. Dowell, claimant, against Edwin Wagler, d/b/a Ed's Super Valu, employer, (hereinafter referred to as Ed's), and United Fire & Casualty Company, insurance carrier, defendants, for workers' compensation benefits as a result of an injury which occurred on March 17, 1988. On May 9, 1991, a hearing was held at Burlington, Iowa on claimant's petition and the matter was considered fully submitted at the close of the hearing. The evidence in the case consists of joint exhibits 1-6; and, testimony from the claimant. issues Pursuant to the prehearing report and the hearing assignment order, the parties presented the following issues for resolution: 1. Whether claimant is entitled to additional permanent partial or permanent total disability benefits; and, 2. Whether claimant is entitled to medical benefits pursuant to Iowa Code section 85.27. Page 2 preliminary matters When the undersigned arrived at the hearing, she was presented with claimant's combined motion to strike and motion in limine regarding the defendants' witness list. The hearing assignment order from this agency requires, among other things: 7. Witness and Exhibit Lists. A list of all witnesses to be called at the hearing and a list of all proposed exhibits to be offered into evidence at the hearing .......... shall be served upon opposing parties no later than fifteen (15) days prior to the date of hearing. Defendants served their witness list on the claimant on May 3, 1991. It has been a long-standing rule that failure to comply with paragraph 7 of the hearing assignment order will result in exclusion of those witnesses or exhibits on a delinquently filed list. As a result, defendants have been excluded from calling witnesses for failure to comply with a prior order from the agency. Specifically, the deposition of Maurice Schnell, M.D., and Marilyn Holland, were not considered as part of the evidence in this case. findings of fact The undersigned deputy, having reviewed all of the evidence received, finds the following facts: Claimant, Schlena Dowell, was 23 years old at the time of the hearing. She is a graduate of Mediapolis Community High School, and attended Hiles-Anderson College in Crown Point, Indiana for one year. In 1988, she received a nurse aide certification from Kirkwood Community College in Cedar Rapids, Iowa. Currently, claimant is attending the University of Iowa to earn a degree as a radiological technologist. Claimant sustained a traumatic work related injury on March 17, 1988. While she was working at Ed's, claimant was putting meat through meat grinder, when her right hand and arm became caught in the grinder. As a result, her right arm was amputated at the elbow. Due to the loss, claimant was given a 90 percent functional impairment rating of the upper extremity, (Joint Exhibit 1F, Page 2.3), and, is currently being paid permanent partial disability benefits. analysis and conclusions of law The threshold issue to be addressed is whether claimant sustained an injury which extends to the body as a whole. An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of Page 3 the employment. Section 85.3(1). The supreme court of Iowa in Almquist v. Shenandoah Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) discussed the definition of personal injury in workers' compensation cases as follows: While a personal injury does not include an occupational disease under the Workmen's Compensation Act, yet an injury to the health may be a personal injury. [Citations omitted.] Likewise a personal injury includes a disease resulting from an injury....The result of changes in the human body incident to the general processes of nature do not amount to a personal injury. This must follow, even though such natural change may come about because the life has been devoted to labor and hard work. Such result of those natural changes does not constitute a personal injury even though the same brings about impairment of health or the total or partial incapacity of the functions of the human body. .... A personal injury, contemplated by the Workmen's Compensation Law, obviously means an injury to the body, the impairment of health, or a disease, not excluded by the act, which comes about, not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee. [Citations omitted.] The injury to the human body here contemplated must be something, whether an accident or not, that acts extraneously to the natural processes of nature, and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. The right of a worker to receive compensation for injuries sustained which arose out of and in the course of employment is statutory. The statute conferring this right can also fix the amount of compensation to be paid for different specific injuries, and the employee is not entitled to compensation except as provided by the statute. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). An injury to a scheduled member which, because of after-effects (or compensatory change), creates impairment to the body as a whole entitles claimant to industrial disability. Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). Daily v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). If a claimant contends he has industrial disability he has the burden of proving his injury results in an ailment Page 4 extending beyond the scheduled loss. Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964). Claimant argues that as a result of the amputation of her right arm, she sustained an injury to her central nervous system. Furthermore, she proposes that this injury translates into a body as a whole injury, and should be evaluated industrially. Defendants' stand is that claimant sustained only a scheduled member injury, and is limited to that amount of compensation which is provided for under Iowa Code section 85.34(2)(m), which provides in pertinent part: Compensation for permanent partial disability shall begin at the termination of the healing period . . . . For all cases of permanent partial disability compensation shall be paid as follows: .... m. The loss of two-thirds of that part of an arm between the shoulder joint and the elbow joint shall equal the loss of an arm and the compensation therefor shall be weekly compensation during two hundred fifty weeks. Subsequent to the amputation, claimant has been suffering from a condition known as "phantom limb pain." Claimant was hospitalized from March 17, 1988 through March 26, 1988. (Jt. Ex. 1, A, Pages 1.2-1.3) This condition was first diagnosed on March 20, 1988, several days after the amputation. (Jt. Ex. 1, E, P. 1.13) Claimant was treated at the University of Iowa Hospitals and Clinics Pain Center on several occasions from June 1988 through December 1988; and, again from August 3, 1989 through December 20, 1989. (Jt. Ex. 1, F, PP. 2-2.12) During this time, she underwent drug therapies, physical therapy, and other types of treatment designed to control the phantom limb pain. Eventually, on February 12, 1990 and again on February 28, 1991, claimant was evaluated for her phantom limb pain by Marc Hines, M.D., a specialist in neurology. On her first visit, Dr. Hines noted that claimant was suffering from a mild amount of depression. According to Dr. Hines, claimant had phantom pain which was described as a "burning, throbbing pain, with the fingers feeling smashed." The pain was constant. (Jt. Ex. 1, B, PP. 2-2.1) On February 28, 1991, Dr. Hines associated claimant's phantom pain with "definite central processing problem, and therefore a central pain problem." As such, he equated the phantom pain with a disability to the body as a whole. (Jt. Ex. 1, B, PP. 2.2-2.3) Dr. Hines gave a more detailed description of phantom pain, and the process by which it develops in his deposition dated March 6, 1991. Specifically, Dr. Hines stated that due to the amputation and the chronic pain syndrome which is Page 5 related to the central nervous system, claimant has sustained a 67 percent impairment to the whole person. (Jt. Ex. 2, P. 18) Furthermore, Dr. Hines stated that severed nerves in an arm affects the central nervous system and causes chronic pain, which is, in fact, phantom pain. (Jt. Ex. 2, P. 19). This feeling of pain is limited to that part of the arm which was injured and subsequently amputated. There is no evidence in the record which suggests that claimant is a malinger, or that she is faking the symptoms and pain she describes. And, she is to be commended for the efforts she has put forth both in the recovery stages of this tragic accident, and for her motivated efforts to regain a sense of normalcy in her life. It appears to be little dispute that claimant developed phantom pain following her injury, a condition which Dr. Hines has characterized as a central nervous system dysfunction. The overall effect of claimant's disability is still limited to the loss of her right arm, thereby precluding an assessment of her industrial disability. It is the situs of the disability which governs the imposition of the schedule. See, Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). There has been no structural damage to any other part of claimant's body. Absent a showing by claimant that her capacity has been affected negatively by an extension of the injury to some other part of the body, she is limited to a scheduled member loss. See, Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983). Claimant has failed to prove that her scheduled member injury extends into the body as a whole. It is concluded claimant is not entitled to permanent partial disability benefits as a result of the phantom pain difficulties stemming form her March 17, 1988 injury. Claimant's right upper extremity injury is a scheduled member disability such that the legislature did not contemplate that she could collect benefits based on a loss of earning capacity. Therefore, claimant is not entitled to permanent partial disability benefits beyond that amount due for her impairment of 90 percent of the right upper extremity. The next issue to be addressed is whether claimant is entitled to medical benefits pursuant to Iowa Code section 85.27. Iowa Workers' Compensation Laws provide in pertinent part: The employer, for all injuries compensable under this chapter or chapter 85A, shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies therefor and shall allow reasonably necessary transportation expenses incurred for such services. The employer shall also furnish reasonable and necessary crutches, artificial members and appliances but shall not be required to furnish more than one set of permanent Page 6 prosthetic devices. (Iowa Code section 85.27) As claimant as sustained a compensable injury, she is awarded medical benefits for the treatment of both her right upper extremity, and any additional medical treatment or evaluation received due to the impairment incurred due to the work-related disability. order THEREFORE, it is ordered: That defendants shall pay claimant permanent partial disability benefits for two hundred twenty-five (225) weeks at the rate of seventy-four and 75/100 dollars ($74.75) commencing on December 2, 1988. That defendants shall pay medical costs incurred by claimant for treatment of her injuries pursuant to Iowa Code section 85.27. That defendants shall pay the costs of this proceeding. That defendants shall file claim activity reports as requested by the agency pursuant to rule 343 IAC 3.1(2). Page 7 Signed and filed this ____ day of July, 1991. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr J W McGrath Attorney at Law Fourth & Dodge Streets PO Box 453 Keosauqua Iowa 52565 Mr John C Stevens Attorney at Law 122 East 2nd Street PO Box 748 Muscatine Iowa 52761 5-1803.1 Filed July 26, 1991 PATRICIA J. LANTZ before the iowa industrial commissioner ____________________________________________________________ : SCHLENA A. DOWELL, : : Claimant, : : vs. : : File No. 880145 EDWIN WAGLER, d/b/a ED'S : SUPER VALU, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : UNITED FIRE & CASAULTY : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803.1 Claimant was injured on the job when her right hand and arm became caught in a meat grinder. Eventually, the extremity was amputated at the elbow. Claimant advanced that the "phantom limb pain" from which she suffers is due to a central nervous system defect caused by the accident. She claimed an industrial disability. The greater weight of the evidence shows that although the nerves in the arm are certainly affected by the amputation, the disability was still located in the right upper extremity. Defendants are currently paying 90 percent PPD benefits. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : SCHLENA A. DOWELL, : : Claimant, : : vs. : : File No. 880145 EDWIN WAGLER d/b/a ED'S : SUPER VALU, : D E C I S I O N : Employer, : O N : and : R E M A N D : UNITED FIRE & CASUALTY : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF CASE This case is on remand from the Court of Appeals. In its decision, Dowell v. Wagler, 509 N.W.2d 134, 138 (Iowa App. 1993), the Court remanded this case to the industrial commissioner for appropriate fact findings and application of the statute consistent with its opinion and the guidelines given in Simbro v. DeLong's Sportswear, 332 N.W.2d 886 (1983); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); and Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). ISSUES The issues on remand are whether claimant's phantom limb pain has caused a permanent disability and, if so, the extent of claimant's industrial disability. FINDINGS OF FACT Claimant, Schlena Dowell, was born June 15, 1967. She graduated from high school and attended Hiles-Anderson College in Crown Point, Indiana for one year. Prior to her employment with Edwin Wagler d/b/a Ed's Super Valu (hereinafter Ed's), she had had jobs as a cook, a waitress, in a bakery, and cleaning houses (Transcript, pages 8-12). She worked approximately 20 - 30 hours a week for Ed's earning approximately $3.35 - $3.40 per hour (Tr. p. 24). On March 17, 1988, while working at Ed's, claimant was putting meat through a meat grinder when her right hand and arm became caught in the grinder. Her right arm was amputated just below the elbow. She was treated at the Washington County Hospital from March 17, 1988 to March 26, 1988 for the amputation (Joint Exhibit 1e, pp. 1.41-1.42). Symptoms of phantom limb pain were noted on March 20, 1988 (Jt. Ex. 1e, p. 1.13). In an attempt to get a good result with a prosthesis, prolonged bone Page 2 stumps were trimmed and shortened on August 22, 1988 (Jt. Ex. le, pp. 1.43-1.44, 1.55). On December 5, 1988 Curtis M. Steyers, M.D., Division of Hand and Microsurgery at the University of Iowa, rated claimant as having a 90 percent permanent partial impairment of the right upper extremity (Jt. Ex. 1f, p. 2.3). On May 30, 1989 a physical therapist diagnosed claimant as having phantom pain in the right upper extremity (Jt. Ex. 1e, p. 1.57). On August 3, 1989 Dianne Byerly, M.D., and Winston Barcellos, M.D., at the University of Iowa Hospitals and Clinics, also gave their impression of phantom limb pain (Jt. Ex. 1f, p. 2.4). Claimant was examined by Marc Hines, M.D., a neurologist, on February 12, 1990 (Jt. Ex. 1b, pp. 2-2.1 and Jt. Ex. 2, p. 3). Dr. Hines described phantom pain as the experience of pain in an extremity that no longer exists or in parts of an extremity that no longer exist (Jt. Ex. 2, p. 7). He estimated that phantom limb symptoms occur in less than ten percent of individuals having amputations and half of these have phantom limb symptoms with pain (Jt. Ex. 2, p. 34). He indicated claimant's situation was a central pain processing problem in which spontaneous pain has occurred as a result of the chronic overstimulation and the absence of the normal control mechanism (Jt. Ex. 1b, pp. 2.2-2.3 and Jt. Ex. 2, p. 10). He stated that there was no realistic guarantee that medication would work to control the pain syndrome (Jt. Ex. 2, p. 14). He described claimant's long-term prognosis as a chronic condition that would rarely become better (Jt. Ex. 2, p. 15). Dr. Hines rated claimant as having a 67 percent impairment to the whole person under the second edition of the AMA Guides to the Evaluation of Permanent Impairment. That rating was a combination of the impairment from the amputation and the impairment of the nervous system (Jt. Ex. 2, pp. 16 - 18). Dr. Hines noted (Jt. Ex. 1b, p. 2.2) and claimant described (Tr. pp. 27 - 28) the presence of both stump pain and the phantom limb pain. Claimant testified that shots and medications did not help the phantom pain (Tr. pp. 15 - 16). She described the phantom pain as "always there" (Tr. p. 32, line 8 and p. 34). She indicated that initially the pain was "telescoping" i.e. moving closer to the stump but it had remained in the same place for the two years prior to the hearing (Tr. p. 35). She stated that she worked around the phantom pain (Tr. p. 32). After the injury claimant enrolled at Kirkwood Community College and received her nurses' aide certification in 1988 (Tr. p. 6). After receiving the nurses' aide certification she was employed as a nurses' aide working 40 hours per week with occasional overtime and was paid $4.20 per hour. In 1989, claimant began attending the University of Iowa to become a radiological technologist (Tr. pp. 6 - 7). In this training she has had grades of A minus, B plus (Tr. p. 7 and Jt. Ex. 3, pp. 13 - 14). Claimant is in the top 20 percent of her class (Tr. p. 25 and Jt. Ex. 3, p. 14). Marilyn Hollard, director of the radiologic technology program at the University of Iowa Hospitals and Clinics, indicated that there is a demand for graduates from that program and that graduates earn a minimum of $9.50 per hour (Jt. Ex. 3, p. 23). Claimant was to graduate from the program in Page 3 June 1991 (Tr. p. 7). Claimant described activities that she cannot perform following her injury. These included peeling potatoes or carrots, driving a car with a standard transmission, riding a motorcycle, playing tennis, and grinding meat (Tr. pp. 20 - 22). She has switched from being right-hand dominant to using her left hand (Tr. p. 21). She indicated that the owner of Ed's had been supportive and had never refused to re-employ her (Tr. p. 22). CONCLUSIONS OF LAW The first issue to be resolved is whether claimant's phantom limb pain has caused a permanent disability. The party who would suffer loss if an issue were not established has the burden of proving that issue by a preponderance of the evidence. Iowa R. App. P. 14(f). The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). Claimant suffers from phantom pain syndrome. See Dowell v. Wagler, supra at 509 N.W.2d 136. This determination is supported by claimant's testimony and the medical diagnosis of Drs. Byerly, Barcellos, and Hines as well as notes from Washington County Hospitals. Claimant's testimony is that the pain is "always there." Dr. Hines describes claimant's condition as chronic. Part of Dr. Hines' impairment rating is attributable to an impairment of the nervous system. Claimant's phantom limb pain syndrome is permanent. Claimant described having to "work through" the pain. Dr. Steyers' impairment rating is limited to the upper extremity and conversion of that impairment to a body of the whole rating (See for example table 3 of the AMA Guides, 3rd Edition Revised and 4th Edition). However, Dr. Hines has given an impairment rating based upon an impairment to the nervous system. Claimant's phantom limb pain is disabling as it interferes with claimant's ability to function. Claimant's phantom limb pain has caused a permanent disability. The second issue to be resolved is the extent of claimant's industrial disability. 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 the employee is fitted. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). Page 4 A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. Impairment and disability are not synonymous. The degree of industrial disability can be much different than the degree of impairment because industrial disability references to loss of earning capacity and impairment references 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 the healing period; the work experience of the employee prior to the injury and after the injury and the 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. Likewise, an employer's refusal to give any sort of work to an impaired employee may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). 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. 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 as well as general and specialized knowledge to make the finding with regard to degree of industrial disability. See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 529 (App. March 26, 1985); Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 654 (App. February 28, 1985). Compensation for permanent partial disability shall begin at the termination of the healing period. Compensation shall be paid in relation to 500 weeks as the disability bears to the body as a whole. Section 85.34. When a disability is compensable under Iowa Code section 85.34(2)(u) as an unscheduled disability, the functional loss to the body as a whole is one of the factors used to determine industrial disability. The Iowa Supreme Court in Mortimer v. Fruehauf Corp., 502 N.W.2d 12, 15 (Iowa 1993) clearly recognized that permanent partial disabilities are either scheduled or unscheduled and that unscheduled disabilities are determined by the industrial method, citing to Simbro v. DeLong's Sportswear, 332 N.W.2d 886 (1983). This was again recognized in Honeywell v. Page 5 Allen Drilling, No. 322/92-1228, Iowa Supreme Court filed October 20, 1993. Furthermore, the Court of Appeals in remanding this case clearly indicated that the guidelines of Simbro, Mcspadden, and Dailey should be used. See Dowell v. Wagler, 509 N.W.2d at page 138. Scheduled disabilities are evaluated on a functional basis and unscheduled losses on an industrial basis. Simbro v. DeLong's Sportswear, 332 N.W.2d at page 888. It would be inconsistent with Honeywell, Mortimer, Simbro and the court's directive in this case, as well as long-standing agency practice (see for example McEntire v. Super Value Stores, File No. 776428, Appeal Decision January 31, 1991) to interpret the language used by the court of appeals in this case to mean that the functional loss is a floor for determining industrial disability. Functional loss is one of the factors to be used in determining industrial disability which may be greater than, less than or equal to the functional loss. In this case, claimant was 20 years old when the injury occurred. The injury resulted in a severe functional loss. That functional loss includes 90 percent loss of the right upper extremity and additional functional loss of the nervous system. She is highly motivated. She is a high school graduate who has taken training after completion of high school. Her prospects for retraining are excellent as demonstrated by her near completion of the radiological technologist training with grades in the upper 20 percent of her class. Her prior work experience was limited because of her age but it involved primarily light manual labor at near minimum wage. Her employer offered to rehire her. Her actual post injury earnings are limited but were slightly higher than her pre-injury earnings ($4.20 per hour versus $3.40 per hour). There is competent evidence in this case that claimant will complete her training as a radiological technologist and be employed earning $9.50 per hour. Under the facts of this case there is a strong probability that claimant's post-injury earnings will be a minimum of $9.50 per hour. When all the relevant factors are considered claimant has suffered a 50 percent industrial disability as a result of her March 17, 1988 injury. ORDER THEREFORE, it is ordered: That defendants are to pay unto claimant two hundred fifty (250) weeks of permanent partial disability benefits at the rate of seventy-four and 75/l00 dollars ($74.75) per week from December 2, 1988. Signed and filed this ____ day of May, 1994. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Page 6 Copies To: Mr J W McGrath Mr Steven J Swan Attorneys at Law Fourth & Dodge St PO Box 498 Keosauqua IA 52565 Mr John C Stevens Attorney at Law 122 E 2nd St PO Box 748 Muscatine IA 52761 1803 Filed May 26, 1994 BYRON K. ORTON BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : SCHLENA A. DOWELL, : : Claimant, : : vs. : : File No. 880145 EDWIN WAGLER d/b/a ED'S : SUPER VALU, : D E C I S I O N : Employer, : O N : and : R E M A N D : UNITED FIRE & CASUALTY : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1803 Claimant's phantom limb pain syndrome was a condition where the pain was "always there" and claimant worked through the pain. A doctor assigned an impairment rating to the neurological system and the body of the whole because of the phantom limb pain syndrome. The syndrome interfered with her ability to function. Claimant's phantom limb pain caused a permanent disability. Based on the court of Appeals decision, Dowell v. Wagler 509 N.W.2d 134 (Iowa App. 1993), the disability was to be evaluated industrially pursuant Iowa Code section 85.34(2)(u). The claimant's functional loss was one factor considered. Claimant's functional loss is not a "floor" for an industrial disability award. Claimant was age 20 at time of the injury, had a severe functional loss from an amputation of the right upper extremity and from phantom limb pain syndrome, was well motivated, the chances of rehabilitation were excellent and earnings were greater following the injury. She was awarded an industrial disability of 50 percent. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : GREGORY DAVIDSON, : : Claimant, : : vs. : : File No. 880648 WESTINGHOUSE ELECTRIC, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : NATIONWIDE MUTUAL, : : Insurance Carrier, : : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : ___________________________________________________________ This is a proceeding in arbitration brought by Gregory Davidson, claimant, against the Second Injury Fund of Iowa, defendant, for benefits as the result of an alleged previous injury which occurred on July 3, 1976, to the left leg and an alleged second injury which occurred on May 27, 1986, to the right arm. A hearing was held in Cedar Rapids, Iowa, on November 18, 1991, and the case was fully submitted at the close of the hearing. The record consists of the testimony of Gregory Davidson, claimant; claimant's exhibits 1 through 4 and defendant's exhibits A through J. Both attorneys presented a brief written description of disputed issues at the time of the hearing. The deputy ordered a transcript of the hearing. Both attorneys submitted excellent posthearing briefs. 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 and that the rate of compensation in the event of an award is $544.24 per week. ISSUES The parties submitted the following issues for determination at the time of the hearing: Whether claimant sustained an injury on May 27, 1986, which arose out of and in the course of employment with employer; Page 2 Whether the injury of May 27, 1986, was the cause of permanent disability; Whether claimant is entitled to permanent disability benefits as a result of this injury; and Whether claimant is entitled to benefits from the Second Injury Fund of Iowa pursuant to Iowa Code section 85.64. PRELIMINARY MATTERS At the request of defendant's counsel, official notice is taken of the original notice and petition and the special case settlement with employer which appear in the industrial commissioner's file. [Iowa Administrative Procedure Act 17A.14(4)]. (transcript page 8). FINDINGS OF FACT It is determined that claimant and the employer made a joint application for special case compromise settlement for the injury of May 27, 1986, on February 6, 1991. At paragraph one and paragraph three, claimant asserts he suffered an injury on May 27, 1986, which arose out of and in the course of employment with employer. At paragraph four, claimant and employer agreed that there was a bona fide dispute as to whether or not all of claimant's current disability, or a substantial portion of the claimed disability was related to the May 27, 1986, work injury or to physical conditions other than those caused by the May 27, 1986, injury. Paragraph five states that the claimant represents to the industrial commissioner that he has reasonable doubt as to whether he would be successful in the event of a hearing under the provisions of the workers' compensation laws of the state of Iowa and is of the opinion that it would be for his best interest to settle and compromise his claim. It is determined that an order authorizing and approving a joint application for special case compromise settlement was signed by deputy industrial commissioner Deborah Dubik on February 14, 1991. In the order approving the settlement, Deputy Dubik stated, "[C]ompensability of Claimant's alleged injuries are in dispute between the parties and a special case compromise settlement should be authorized." The order also states that claimant "...is hereby forever estopped from questioning the validity of said settlement and from instituting or maintaining any further action or actions for review or otherwise." The order states that it is not to be construed as an original proceeding stopping the running of the statute of limitations. The final paragraph of the order states, "[S]aid settlement hereby approved shall constitue a final bar to any further rights arising under Chapters 85, 85A, 85B, 86, 87, or 17A, Code of Iowa." Official notice is taken of the application and the order. [Iowa Administrative Procedure Act 17A.14(4)]. Page 3 CONCLUSIONS OF LAW It is determined that claimant's action against the Second Injury Fund of Iowa as a result of the injury of May 27, 1986, to his right arm is barred by the special case settlement between claimant and employer and its insurance carrier. Lambert v. Second Injury Fund of Iowa, file number 716025 (App. Dec. September 30, 1983) (appeal to the district court dismissed). Iowa Code section 85.64, the Second Injury Compensation Act, requires a previous permanent loss of a member and a subsequent second compensable injury which causes another permanent loss of a member. Lawyer and Higgs, Iowa Workers' Compensation--Law and Practice, section 17-5 at page 143. Claimant has failed to prove that he has sustained a second compensable injury. Iowa Industrial Commissioner Robert C. Landess stated in the Lambert case: A special case settlement is basically a release and does not establish that an injury arose out of and in the course of employment. Furthermore, the fact that that money is paid in settlement does not conclusively show that employee's injury was work-related and compensable. Rich v. Dyna Technology, Inc., 204 N.W.2d 867 (Iowa 1973). Iowa Code section 85.35 provides in part in the last two sentences of that section, "Notwithstanding any provisions of this chapter and chapters 85A, 85B, 86 and 87, an approved settlement shall constitute a final bar to any further rights arising under this chapter and chapters 85A, 85B, 86 and 87. Such payment shall not construed as the payment of weekly compensation." Commissioner Landess noted in the Lambert decision that the Second Injury Fund was created by this chapter, chapter 85 of the Code of Iowa, more specifically sections 85.63 to 85.69, the Second Injury Compensation Act. Therefore, he concluded that the special case settlement was a final bar to any further rights against the Second Injury Fund. Commissioner Landess determined that employer liability, is required to be established, prior to the settlement, either by way of admission or adjudication. White v. Weinberger, 49 Mich. App. 430, 212 N.W.2d 308 (1973), aff'd 397 Mich. 23, 242 N.W.2d 427 (1976). In this case, a settlement under paragraph eight of section 85.35, even though employer did not deny liability, they did not admit liability. The application states that claimant has reasonable doubts as to whether he would be successful in the event of a hearing and was of the opinion it would be in his best interest to settle and compromise his claim. Thus, there was no admission of liability by employer in the application for compromise settlement. Page 4 Furthermore, the order approving the settlement states that compensability of claimant's alleged injuries are in dispute between the parties. Thus, there has been no admission of liability by employer that claimant (1) sustained an injury arising out of and in the course of employment with employer; (2) to a specified scheduled member; (3) which was the cause of permanent disability; and (4) for which claimant was entitled to compensation. (Iowa Code section 85.64). Nor, since the claim was settled, has there been any adjudication of these issues. It is noted that the order approving the settlement was approved as to form and content and signed by the attorneys for both parties. Iowa Code section 85.35 indicates in the final paragraph that it is a bar to any other workers' compensation action. Commissioner Landess made note of this point in the Lambert decision. Both the application for settlement and the order approving the settlement in this case provide that the settlement is a bar to any further rights under the workers' compensation chapters of the Code. Industrial Commissioner David E. Linquist determined that where claimant entered into a special case settlement under Iowa Code section 85.35 that claimant had acknowledged that an injury did not arise out of and in the course of employment. He stated, "The settlement under that section constitutes a determination that the injury did not arise out of and in the course of employment." Claimant was precluded from seeking any further award based on the injury which was the subject of the special case settlement. Holland v. Associated Grocers of Iowa, file number 757549 (App. Dec. 1990). Deputy Industrial Commissioner Helenjean Walleser, relying on Lambert, recently sustained a motion for summary judgment for the Second Injury Fund where claimant had entered into a special case settlement with employer and insurance carrier. She held that the special case settlement established that a bona fide dispute and justiciable controversy existed as to whether claimant has sustained an injury that arose out of and in the course of employment. Therefore, it cannot be said that claimant has sustained a second compensable injury. Amaya v. Pak Fabricators, Ltd., file number 996359 (1991) (appealed). Defendant Second Injury Fund contends that its liability is not separate and apart from that of the employer but is derivative from that of the employer. This view is supported by an Oklahoma case [Special Indemnity Fund v. Mickey, 563 P. 2d 123 (Okla 1977)]; 2 Larson Workmen's Compensation Law, section 59.30(i), page 10-425 (1989). Defendant also contends it is supported by Jackwig, The Second Injury Fund of Iowa: How Complex Can a Simple Concept Become?, 28 Drake L. Rev. 889, 909 (1979). The Iowa Industrial Commissioner has not adopted these specific words or this specific concept, but, nevertheless, Page 5 it is clear from the Lambert and Holland decisions and the ruling in Amaya, that claimant is precluded from pursuing an action against the Second Injury Fund after entering into a special case settlement under Iowa Code section 85.35 with the employer and insurance carrier with respect to the alleged second injury. The determination made in this case and in the cases cited in this decision are supported by Lawyer and Higgs, Iowa Workers' Compensation--Law and Practice, section 17-4 at page 142 which reads as follows: There would be substantial question in a case where an employee and employer entered into a settlement agreement pursuant to Iowa Code section 85.35 as to whether an employee could make a claim against the second injury fund because money received under such a settlement is not payment of compensation. citing Rich v. Dyna Technology, Inc., 204 N.W.2d 867 (Iowa 1973). Lambert, Holland and Amaya, which are all subsequent to the comment in Lawyer and Higgs, are decisions that proved the textbook is correct. Claimant has not cited any authority to support the view that his claim is not barred and this deputy has not been able to find any such authority. Wherefore, it is determined as a matter of law that claimant's action against the Second Injury Fund of Iowa as a result of the alleged injury of May 27, 1986, to his right arm, is barred by the special case settlement between claimant and the employer and its' insurance carrier because claimant failed to prove a second injury as required by Iowa Code section 85.64. ORDER THEREFORE, IT IS ORDERED: That no compensation is owed by the Second Injury Fund of Iowa to claimant. That the costs of this action, including the cost of the attendance of the court reporter at hearing and the transcript of the hearing, are charged to claimant pursuant to rule 343 IAC 4.33 and Iowa Code section 86.19(1). Signed and filed this ____ day of December, 1991. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Page 6 Mr. Thomas Currie Attorney at Law 3401 Williams Blvd. SW PO Box 998 Cedar Rapids, Iowa 53406 Ms. Shirley Ann Steffe Assistant Attorney General Hoover State Office Bldg. Des Moines, Iowa 50319 1100 1303 2901 3200 3302 Filed December 10, 1991 Walter R. McManus, Jr. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : GREGORY DAVIDSON, : : Claimant, : : vs. : : File No. 880648 WESTINGHOUSE ELECTRIC, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : NATIONWIDE MUTUAL, : : Insurance Carrier, : : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : ___________________________________________________________ 1100 1303 2901 3200 3302 It was determined that claimant's special case settlement with employer and insurance carrier was a bar to an action against the Second Injury Fund because as a matter of law, claimant could not prove that he sustained a second injury arising out of and in the course of his employment with employer. The decision is well documented with several citations of authority.